TAKING THE BITTER WITH THE SWEET: WENATCHI FISHING RIGHTS

By

Nolan Shutler*

In 2010, the Ninth Circuit decided United States v. Confederated Tribes of the Colville Indian Reservation, holding that the Wenatchi and Yakama Tribes both have non-exclusive fishing rights in common with the State of Washington. In reaching this allocation, the court relied heavily on the records of the negotiations leading up to an 1855 Treaty that established both tribes’ reservation lands as well as the negotiations surrounding an 1894 Agreement that established the Wenatchi fishing rights at the Wenatshapam Fishery. The Wenatchi had previously been barred from asserting these rights at their aboriginal fishery by a 1994 decision but had continued fishing at the location nonetheless. In 2008, the Yakama Tribe brought an action for permanent injunction in district court in order to protect its rights at the fishery under the 1855 Treaty. This action resulted in a favorable decision at the district court level for the Wenatchi; however, both they and the Yakama appealed. The Yakama sought a finding that the lower court erred, and the Wenatchi sought a decision on whether they held primary rights at the fishery. The Ninth Circuit denied both appeals, affirming the lower court’s ruling. This Chapter asserts, inter alia, that the Ninth Circuit’s primary rights analysis, which creates the “new law” of the case, has both positive and negative effects on tribal sovereignty; but that in the end, the remedy is too little too late for the Wenatchi whose crucial off-reservation fishing rights rely on the very document (procured through deceit) which ceded their rightful ownership of a reservation at the fishery.**

“Does our Great Father at Washington think a salmon is an eagle that lives on top of a mountain, or does he think a salmon is a deer that lives in the woods and hills, or does he think a salmon is a mountain goat that lives among the rocks of the snow-covered mountains? Tell our Great Father the Indian does not care for the little trout in the lake, but wants the salmon that lives in the rocky places in the river where the Indian can find him . . . . We want our fishery in the river where Governor Stephens gave it to us a long time ago.” [1]

I. Introduction

American Indian tribes in the United States understand better than most that “justice delayed is justice denied.”[2] Successive policy eras of allotment and termination left many tribes bereft of ancestral lands and cultural practices which they have since fought hard to regain in both the legislature and the courts. Often, where justice is achieved, it is overdue. Generally, tribes fight for sovereignty—the ability to regulate their own land and citizens—and must contend with both the states in whose borders they exist and the federal government whose trust-responsibility dictates a degree of paternalistic control over tribes. Many of the greatest victories for Indian tribes and advocates are had in the legislature, not in the courts.[3] One area of Indian law, however, where tribes have found success is in the assertion of explicit and even implied rights under treaties, specifically, fishing rights.[4]

Treaties evidence the unique “domestic, dependent nation” status that tribes hold vis-à-vis the United States government.[5] Aside from the obvious features that make up what we think of as a nation—political structures, ethnic identity, cultural traditions, and historical conscience—the relationship that sovereigns have with one another tells the international community and history, just by its very existence, that these two entities are separate and distinct but also share a nation-to-nation relationship. While not without its own wrinkles,[6] this separate nation status, qualified by the domestic and dependent relationship, yielded the trust doctrine.[7] Under the doctrine and various treaties, the federal government assumes responsibility for the health and welfare of the indigenous nations. Policy on how it should be applied (and whether it even should be applied) has undergone several iterations in the past two centuries.[8] Whether the United States has lived up to its trust responsibility is a matter of ongoing debate, but may be fairly rebutted by a glance at the dismal poverty, rates of high school dropout, and alcoholism and drug abuse on reservations.[9]

The losses sustained by tribes are often irretrievable. However, the recent Ninth Circuit decision in United States v. Confederated Tribes of the Colville Indian Reservation (Colville),[10] appears on its face to oppose this trend. It decided that the Wenatchi Tribe, a sub-group of the Colville Indian Tribe with citizens living on both the Colville Indian Reservation and the Yakama Indian Reservation, holds treaty fishing rights in common with the Yakama Nation and the citizens of Washington state at their traditional fishing grounds—the Wenatshapam fishery at the confluence of Icicle Creek and the Wenatchee River, near present day Leavenworth, Washington.[11]

This decision represents a hard-fought victory in a struggle that has lasted more than a century, but it is a qualified victory. At the time of the decision, the Wenatchi had waited more than 150 years for the protection of fishing rights at their ancestral fishery. While the District Court of Oregon found an agency’s decision to stay research on the Kenniwick Man for several months as “hasty,” (in a case in which the Wenatchi tribe joined several other Washington and Oregon tribes in support of the agency’s decision to enjoin scientific testing on an ancient skeleton),[12] it took more than twenty years and two separate cases to decide that the Wenatchi have rights to fish at their ancestral fishery, which the court noted “was the hub around which the Wenatchi’s cycle of life rotated.”[13] Moreover, while the Yakama appealed this decision in an effort to overturn the district court’s finding that the two tribes held the non-exclusive fishing rights in common (presumably because they wished to hold onto rights to the full fifty percent of the take), the Wenatchi cross-appealed on the grounds that they sought either the only Indian rights at their ancestral fishing grounds, or the primary fishing rights thereon.[14] The Ninth Circuit determined that the Wenatchi have rights but not primary fishing rights. The court cited the fact that the two tribes’ fishing rights stemmed from separate agreements and not a “common ‘treaty time:’” a novel criteria in the determination of primary rights.[15]

The Colville decision is a careful recitation of the treaty negotiations and history of the fishery. Yet just as interesting as the Ninth Circuit’s detailed discussion, is what the court declined to discuss about the current fishery. Certain features in the recent historical landscape must have played a role in the parties’ motivations and, while legally irrelevant, are relevant to the fishery’s regulatory scheme. In 2003, the Yakama Nation pledged over $32 million of federal monies to a hatchery less than half a mile upstream from the Wenatshapam Fishery.[16] And since 2008, the river has seen a steady increase in returning salmon, setting records for the amount of fish at the fishery since the 1938 creation of the dam.[17] This investment and development in the fishery may not bear a direct relation to the litigation, but in the highly controversial debate over anadromous fish rights in the Northwest, the court must have been aware of the effect its decision would have on the regulatory scheme.

This Chapter is divided into five parts. Part II discusses the legal background of Indians within the United States’ justice system, including Indians’ nation-to-nation status, treaty rights, and reserved fishing rights. Part III addresses the specific history of the Wenatchi Tribe prior to and after the negotiation of the 1855 Treaty and 1894 Agreements that make up its relationship with the federal government. Part IV summarizes the Colville decision. Part V analyzes the decision, and the final part offers the conclusion that while the decision appears to veer from or ignore the course of precedent, it may be a warranted diversion.

II. Legal Background

Native American Tribes share a special relationship with the United States. Tribes exercise certain sovereign powers over the lands reserved in the various treaties, agreements, executive orders, and legislative documents that make up the field of federal Indian law. This field is variously described as “a maze,”[18] “patchwork,”[19] and “crazy quilt.”[20] Depending on the state in which the reservation is located, the agreement between the tribe and the United States, the enrollment status of the tribal citizen, or other factors, court decisions may differ widely made on similar fact patterns.[21] Practitioners in Indian law, therefore, can only hope that a court will choose one line of precedent over another.

Certain basic principles govern the political status of tribes, their relation to the United States, treaty interpretation, and its application to fishing rights.

A. Discovery, Tribes as “Domestic Dependent Nations,” and the Trust Doctrine

European settlers began arriving in America in the sixteenth century and found that the lands they had come to develop were already occupied by between 50 and 100 million people.[22] Over 600 distinct ethnic and social groups had subsisted “since time immemorial” on the land which now makes up the United States.[23] Settlers found the normal application of property law inconvenient as applied to “aboriginal title,”[24] preferring instead to apply the Doctrine of Discovery.[25]

Aside from the obvious impediment to development that recognition of indigenous title in these lands would have posed, the colonizing Europeans believed that Indians were inferior and lacked a concept of property ownership.[26] By violence, disease, fraud, and treaties promising “reserved lands,” the British removed Indians from their ancestral homes and displaced them to the west in order to create the first thirteen colonies.[27] By the early nineteenth century though, population growth and the rise of Thomas Jefferson’s agrarian society militated further expansion.[28] Land speculators who had purchased lands in the West prior to the American Revolution, sought to capitalize on this growth by selling territorial lands to settlers.[29] But these lands posed a problem: How does one measure the title of land purchased from Indians?

In a series of three decisions, the fourth Chief Justice of the Supreme Court, John Marshall, sought to resolve this legal question and in so doing, created the trust doctrine.[30] The “Marshall trilogy,” or “Cherokee Cases,” forms the basis of the trust doctrine: the nation-to-nation relationship between the federal government and tribes is both a limit on tribal sovereignty as well as an affirmative responsibility of the United States to reserve certain lands and rights from state acquisition or interference. Ultimately, the cases grew out of early federalist efforts to limit state power.[31]

However, by 1871, Congress grew weary of treaty-imposed burdens under the trust doctrine and put an end to treaty-making.[32] Policy had shifted with an eye towards assimilation, and in 1887, Congress passed the General Allotment Act,[33] which divided the reservations into fee parcels among tribal citizens. Ostensibly, Congress intended for the Act to encourage assimilation and engender a sense of ownership in individual Indians; however, it had the effect of decreasing trust land from 138 million acres to 48 million acres between 1887 and 1934.[34] By allotting property within the reservation to individual Indians, Congress was able to avoid treaty-imposed responsibilities and to open up more lands to white settlement. Individual Indians often defaulted within a generation or two, unable to maintain property under state law taxation, and were forced to sell their land to non-Indians.[35] Finally, deprived of their “aboriginal title,” many tribes were decimated—what little land they had was now gone, their tribes were no longer recognized political entities, and their children were disabused of Indian language and practice.[36]

In the wake of the assimilative efforts of the Allotment Era, the federal government made movements towards total termination of tribal recognition beginning in 1953 and continuing into the 1960s.[37] During what is now known as the Termination Era, the federal government sought to terminate the trust relationship altogether by taking reservation lands out of trust, and dismantling tribal governments. In the realm of criminal jurisdiction, Congress passed Public Law 280[38] in 1953, which provided certain states with jurisdiction over Indian offenses that had previously been the federal government’s responsibility to prosecute, relieving itself of its own trust duties to enforce laws in “Indian Country.”[39]

Indian trust lands lost to Allotment or Termination may be irretrievable; however, tribes have been very successful in gaining a political stronghold in the United States[40] and proving President Washington incorrect in his assessment of the Indians’ ability to survive.[41] While much of this success has come by way of political maneuvering, tribes have also had some limited success in court.[42] Treaties are by far the strongest tool in litigation, partly because of the interpretive principles developed by courts, and partly because of the nature of the document.[43] It is a powerful reminder of the nation-to-nation relationship between the United States and tribes. Moreover, because of particular provisions, treaties reserve to tribes off-reservation rights in water, game and fish, and other easements, which as legislative acts between the tribe and the federal government are superior to state law.[44]

B. Treaty Interpretation

Treaties evidence the nation-to-nation status that tribes possess vis-à-vis the federal government.[45] It grew out of this initial constitutional relationship, but after the creation of countless reservations, expanded to recognize the loss of the Indian’s traditional modes of survival: “[d]eprived of a land base large enough to supply their subsistence, [the Indians] became dependent on federal rations promised in treaties.”[46] This separate nation status is unique in the world with regard to indigenous peoples and serves as a model for other countries where Europeans have colonized aboriginal lands.[47]

Likewise, the trust doctrine serves as a guiding principle in the interpretation of treaties. It manifests itself in two ways: 1) treaties are to be understood in the manner that the signing Indians would have understood them, and 2) ambiguities in treaty making are to be resolved in favor of Indians.[48]

First, treaties are to be read as the Indians would have understood their terms at the time of treaty-making.[49] Federal courts have recognized the essential challenges that language posed for the creation of meaningful compacts between the government and tribes.[50] Indians spoke a wide variety of languages, most unwritten, that each had their own variants and dialects. In the Northwest, for instance, in order to communicate as travel and trading increased in the early nineteenth century, the various Indian, French, Spanish, British, Russian, and American groups developed the Chinook Jargon.[51] Of course this language developed out of necessity in order to communicate regarding fairly basic matters and would have been unable to capture many of the complex legal matters described in the treaties. Moreover, since these treaties were often attended by elements of duress and fraud, the courts are careful to determine the exact nature of what the Indians understood the treaty to convey.[52] Under the same reasoning which is applied to adhesion contracts in contract law, federal courts have, therefore, found this interpretive framework to be more than simply a principle of equitable consideration, but indeed the rule in treaty interpretation.[53]

Second, courts consider ambiguities in treaties and agreements made with the Indians in the light most favorable to the Indians.[54] Under the above interpretive rule and because treaties represent a grant from the Indians and not to the Indians, ambiguity in the text should be interpreted to the benefit of the Indian party.[55] Indeed, courts also apply this canon of construction broadly to agreements and executive orders negotiated with Indians such that the documents “are to be resolved from the native standpoint.”[56] These canons of construction do not imply a “special privilege” that contradicts constitutional principles of equal protection; instead, it is important to remember that Indians hold a political, non-racial status in the United States,[57] that historical disparities militate for some level of equitable consideration, and most importantly, that these treaties were essentially adhesion contracts.

Thus, in the context of the political relation between the federal government and tribes, an interpretive view that validates the disadvantaged bargainer is consistent with common law treatment of adhesion contracts. The treaties themselves were creatures of Western legal tradition, and no tribe ever solicited the government to enter into one. Modern courts seem loathe to admit that often Indians signed these treaties under threat of annihilation.[58] Rather than void the treaties, therefore, it is simpler to construe the treaties in a manner favorable to tribes—to view the treaties as if, in the first place, they actually were for the benefit of the tribes. This legal fiction is preferable in light of the dearth of legal remedies to which a tribe has access outside of treaty enforcement.

C. Reserved Fishing Rights

In order to understand the greater social and legal context in which the Ninth Circuit’s recent Colville decision operates, it is crucial to understand the role of fish in traditional Indian culture, the background of Indian fishing rights in general, and in particular the background of those fishing rights in the Northwest.

1. Importance of Salmon

For tribes in present day Northern California, Oregon, Washington, Idaho, Canada, and Alaska, salmon represent more than simply a source of food; they are essential to life and culture itself.[59] Anadromous fish hatch in shallow freshwater streams hundreds of miles inland from the ocean and in the early spring return to the ocean.[60] Salmon hatched at these locations return to the very same streams to spawn again.[61] From time immemorial the Columbia Plateau tribes of the Northwest followed these fish runs.[62] The various Indian tribes depended on the fish for subsistence throughout the year; and their annual harvest festivals celebrated the bounty of the salmon with dances and ceremonies as well as drying and curing the fish for use later in the year. Indeed, the salmon were “were not much less necessary to the existence of the Indians than the atmosphere they breathed.”[63]

2. Winans—Not a Grant to the Indians, but from the Indians

In United States v. Winans, the Supreme Court determined that a tribe may reserve through treaty provisions the right to fish and hunt at “all usual and accustomed” places.[64] In this case, the court held that the Winans brothers, who obtained a license from Washington to erect a fish wheel on the Columbia River, could not exclude the Yakama from crossing their private land and catching the fish.[65] Not only did the brothers erect fences that kept the Yakamas and other tribes from accessing their usual and accustomed fishing grounds, but the fish wheel they had erected was such an efficient method of catching the salmon that it limited the take available for the Yakama Tribe.[66] Moreover, under the interpretive principles summarized above and the plain language of the treaty, it simply could not be denied that this right was one that the Indians intended to reserve for themselves. Under the trust doctrine, the federal government necessarily has to protect this right from the interference of the state or else be subject to takings claims.[67]

It likewise follows that the regulation of the state does not apply to the Indian fishermen while fishing under their reserved treaty rights at usual and accustomed locations unless “necessary for the conservation of fish.”[68] Moreover, while at their usual fishing grounds, the state may not place unreasonable restrictions on the structures and devices used by the Indian fisherman.[69] While these decisions may seem to unfairly favor tribal citizens who represent a small portion of the population by giving them a right to fish free of regulation based purely on their Indian status, that is an incomplete description of the right as the courts have determined it. As an initial limitation on Indian fishing rights are the tribe’s own regulations.[70] These treaty rights are not based on the fact that the claimants are Indians, but rather on their specific tribal status, and therefore, their specific treaty rights: “The treaty protects only the fishing grounds of signatories, not of the after-affiliated tribes.”[71] Thus, the ‘usual and accustomed places’ are those of the tribe that signed the treaty.

3. Fishing Rights in the Northwest

United States v. Washington, decided by District Judge George Hugo Boldt, held that Indians fishing in the State of Washington have a right to take up to fifty percent of the fish.[72] This decision immediately caused an uproar—citizens of the state, with no knowledge of the treaty rights and only a vague notion of the American Indian history in their area, burned the judge in effigy and rallied against the federal interference with state gaming regulations as an unconstitutional application of law.[73] Senator Slade Gordon, then attorney general, appealed the decision to the Ninth Circuit, which affirmed the reasoning of the district court.[74] Finding that the central reasoning was sound and that the laws of the federal government which authorized the creation of the treaty pre-empted the state regulations, the Ninth Circuit essentially affirmed Judge Boldt’s decision.[75] In subsequent litigation, the district court took continuing jurisdiction over the case because of the state’s refusal to enforce federal rules.[76]

In addition to their immense value to the tribes, as well as the economic value that salmon hold for commercial fisherman, their decreased numbers are likewise a driving factor behind the contentious nature of the dispute. Dams like the Grand Coulee Dam, and other detrimental factors, have reduced the Columbia River salmon population to less than ten percent of what it was when Lewis and Clark’s expedition arrived in the Northwest.[77] But multiple parties are invested in conserving salmon stocks and are therefore motivated to find regulatory schemes that benefit everyone.[78] Working together, the states, the tribes, and the federal government have helped to fund significant hatchery projects, fish ladders, and habitat restoration in order to increase the salmon population in the Columbia basin.[79] These efforts have shown some success, but have not curtailed litigation surrounding the fishery.

III. Historical Background

Here, an historical overview of the Wenatchi from their existence prior to European settlement to the signing of the 1894 Agreement will provide the reader with the context necessary to understand the full background of the Ninth Circuit’s decision in Colville.

A. The Wenatchi and Other Tribes of the Columbia Plateau Prior to White Settlement (? –1800)

The Wenatchi Tribe is one of the fourteen distinct tribal groups residing on the Colville Reservation, which comprise a federally recognized confederated tribe.[80] Wenatchi have lived in and around the Wenatchee Valley since time immemorial.[81] The Wenatchi were one of several groups who together made up the tribes of the Middle Columbia of the Columbia Plateau Indians residing in present day Washington; a group which includes dozens of other tribes such as the Snoqualmie, Columbia-Sinkiuse, Kittitas, and the Yakama-Palouse:[82]

In the pivotal decade of the 1850s, five distinct bands comprised the Wenatchi with closely related neighboring tribes upstream including the Entiat, Chelan, and Methow. Unlike the Plains Indians, however, the Wenatchi were a “tribe” less in a political sense than linguistic and geographic. . . . Rather, each band was autonomous under the leadership of its own headmen and was known by a distinctive name. The westernmost band, the Sinpusq’ísoh, was generally headquartered in the vicinity of their famous fishery. . . .[83]

These tribes shared social, religious, and political practices but considered themselves distinct groups.[84] Tribal leaders, or “headmen,” had authority based on knowledge and diplomacy, but none were considered “Head Chief” of the various tribes.[85]

No records exist to determine exactly how long it has been “since time immemorial,” but scientific findings and Indian narratives indicate that it is a very long time. Scientists have postulated that the last major flood of the Columbia Plateau would have been roughly 13,000 years ago.[86] Even given the range allowed by the scientists’ carbon-dating,[87] that would imply that the Ancestors of the current Indians could probably have inhabited the land since before recorded history in the Western world. Indeed, the discovery of 9,300-year-old remains in Kennewick, Washington establishes that humans were probably in the area since at least that time.[88]

In addition to seasonal migrations, which followed the wild harvests, the Wenatchi and related bands traveled extensively for trade with other Indians. After the introduction of horses on the Columbia Plateau in the 1730s, they traveled as far east as the plains of present day central Montana to trade with the Blackfoot.[89] They also traveled south to Celilo Falls, which served as a trading spot between Sahaptin and Coastal Salish tribes.[90] At The Dalles, the Wenatchi traded furs, roots, pemmican, feathers, clothing, and horses. These items were then transported north for trade with the Okanogan, San Poil, and other tribes of the Upper Columbia.[91] But at least 200 Wenatchi stayed at the Wenatchapam Fishery at the forks of the Wenatchee and Icicle rivers yearlong and in the summer that number swelled to over 3,000 Indians from the various Middle Columbia Tribes.[92]

B. Contact with Non-Indian Traders

The Wenatchi and other tribes were amicable with the non-Indians, but the Indians were nevertheless wary of non-Indian incursions into their territory.[93] Disputes arose when non-Indians punished Indians (sometimes by hanging) for stealing various dry goods, which the Indians perceived as just payment for their gestures of welcome.[94] Moreover, even before the arrival of the traders, the Indians of the Columbia Plateau had already begun to feel the devastating effects of epidemics and their population was quickly receding.[95] Figures from this era are subject to debate by historians, but Mooney puts the Piskwau group, including the Wenatchi tribe, at around 1,400 persons in 1780,[96] although Lewis and Clark calculated the Wenatchi at 820.[97] By 1853, the combined population of Wenatchi, Okanogan, and Columbia Indians was estimated at 550;[98] and by 1905, only 93.[99] As a point of comparison, between the passage and expiration of the Donation Land Claim Act,[100] the territorial population rose from 8,000, to 30,000.[101]

In the summer of 1853, Captain George B. McClellan and about sixty of his men entered Wenatchi territory on an exploratory mission accompanied by the Kittitas Chief Owhi, and met the Wenatchis.[102] But even prior to this first meeting, “[t]he Wenatchi and their Columbia-Sinkiuse neighbors knew of McClellan’s movements in the region and some expressed concern about his intentions.”[103] Apparently overlooking “the significance of Kamiakin’s irrigated vegetable gardens and barley field, the tribe’s cattle herds, or the priests’ bountiful orchard,” McClellan expressed the intentions of the United States to build a road over the Cascade Mountains to Puget Sound (he did not mention anything about a railroad).[104] After several days of meetings, Chief Owhi agreed to allow McClellan to build his road: “This seemed the reasonable course to avoid what tragedies had befallen the Indians of the East and California . . . . For [his] part, McClellan . . . surely approved of Tecolekun and Owhi’s request for protection of the historic Wenatchi fishery.”[105] The Indians were wise to be skeptical of McClellan, and Kamiakin and other chiefs had already begun mobilizing forces.[106]

Isaac I. Stevens secured appointment as the Territorial Governor in 1853, then also assumed the title of Territorial Superintendent of Indian Affairs and was named the supervisor of the Northern Pacific Railroad survey.[107] The slight and irascible man was essentially the Napoleon of the Northwest.[108] Over the course of a single year, Stevens negotiated ten Indian treaties at eight separate councils and secured from the Indians the vast majority of the lands that comprise present day Washington.[109] Though modeled on the George Manypenny Treaties that sought to incorporate President Jefferson’s agrarian ideals, in truth, Stevens and others in the federal government viewed these treaties as “‘temporary expedient[s]’ that were expected to provide a safe haven until tribal members became ‘enterprising and prosperous American citizens.’”[110]

C. The Yakama Treaty of 1855

Normally, at the conclusion of treaty negotiations both parties agree to set down their weapons and abide peaceably by the terms of the treaty. However, that was not the case with the Yakama Treaty of 1855,[111] signed at the Walla Walla Council of the same year, because in this case there was no dispute. Instead, the treaty was for the sole purpose of removing an impediment to progress: for Stevens, settlement was progress, and it could not be completed without first extinguishing aboriginal title in the land.[112] It is little wonder, then, that the years following the signing of the treaty were fraught with violence—resistance and defiance on the part of the Indians and retaliation on the parts of the United States Army and the Civilian Militia. Therefore, the Yakama Treaty of 1855 may be one of only a very few treaties that actually started a war.[113]

Stevens’ objective in the treaty negotiations was to extinguish aboriginal title and open up land to settlement and development.[114] Stevens called more than seventeen distinct tribes to the council at Walla Walla, but signed only three treaties; the treaty he signed with the “Yakima” was really an agreement with a confederation of fourteen tribes.[115] Stevens recognized that the tribes were distinct political units, but “for the purposes of this treaty” he “considered [the tribes] as one nation, under the name of ‘Yakama.’” [116] Stevens spoke at length, for over a week, extolling the virtues of reservation life, but the chiefs were unimpressed; after a half century of trading and dealing with settlers, the Indians were not “naïve primitives, but . . . owned horses, cattle, and cultivated lands. The Walla Walla Council was a negotiating session between parties whose capacity to draw upon a common set of assumptions about the past and future was closer than often assumed.”[117] While some of the tribes’ leaders demonstrated a willingness to cede lands for a reservation, others, such as the Walla Walla and Cayuse of the northern tribes were dismayed by the idea of a distant southern reservation.[118]

After a week of continued negotiations, Stevens grew impatient.[119] Chief Owhi addressed the council, “Shall I say that I will give you my land? I cannot say, I am afraid of the almighty . . . . My people are far away, they do not know your words,” and in response to further protests of a similar nature, Stevens concluded bluntly: “The papers will be drawn up tonight.”[120] The following morning, when Kamiakin and other tribal leaders prepared to leave the council grounds, Stevens was outraged and threatened that should they leave, Kamiakin’s Yakama would “walk in blood knee deep.”[121] At Stevens’ further insistence and the urging of fellow chiefs, Kamiakin as well as thirteen others, including Tecolekun of the Wenatchi, signed the treaty against their will.[122] Of particular interest to the Wenatchi and the Colville decision is Article X:

[T]here is also reserved and set apart from the lands ceded by this treaty, for the use and benefit of the aforesaid confederated tribes and bands, a tract of land not exceeding in quantity one township of six miles square, situated at the forks of the Pisquouse or Wenatshapam River, and known as the “Wenatshapam fishery,” which said reservation shall be surveyed and marked out whenever the President may direct, and be subject to the same provisions and restrictions as other Indian reservations.[123]

At the end of the negotiations, the Yakama had been persuaded to surrender its interest in 29,000 square miles in return for a reservation of less than 2,000 square miles and $650,000.[124]

Miners and speculators were already making their way north through the valley as the chiefs signed the treaty, and well before its ratification.[125] The treaty opened cession lands “not actually occupied and cultivated by said Indians in 1855, and not included in the reservation” to settlement; but the federal government had neither ratified the treaty nor set aside the reserved lands.[126] The duress incurred at the treaty table and the arrival of self-entitled non-Indians on Indian ancestral lands prompted many of the tribes and bands to attack white settlers.[127] This fighting drew the attention of the Army, who fought the Indians on dual fronts from Fort Simcoe and Fort Dalles.[128] Initial campaigns were unsuccessful and, despite disagreement with the Army, Stevens raised a civilian militia, which mercilessly attacked villages of women and children.[129]

Throughout these battles, the Wenatchi remained relatively uninvolved.[130] Indeed, the Wenatchi took this opportunity instead to confirm their peaceful intentions and seek out government agents who would be willing to mark the boundaries of the Wenatshapam fishery.[131] First in 1856, Chief Skamow met with Colonel George Wright, who actually marked boundaries for a six-mile reservation around the fishery and reiterated that the United States would honor the Treaty;[132] then two years later Captain J.J Archer, upon learning that Skamow and others had helped protect white settlers from raiding Indians, stated his intention to make sure an eight-square mile reservation was marked out.[133] By the late summer of 1858 the Army had successfully subdued the Indians through “scorched earth” destruction of their villages.[134] Throughout all of this, the Wenatchi, persisted at their fishery, believing that eventually the government agents would survey their reservation as promised.[135]

D. End of the Treaty Era, Allotments, and the 1894 Agreement

By the 1880s, there were still very few permanent American settlers living in Wenatchee Valley,[136] but recent legislation threatened the Wenatchi’s territory and gave the Indians reason for concern. Passage of the Indian Appropriations Act of 1871 marked the end of the treaty era as the United States’ Indian policy turned from conciliation to assimilation.[137] To this end, Congress passed legislation under the Indian Appropriations Act of 1875[138] that came to be known as the Indian Homestead Act because it extended the Homestead Law of 1862[139] to Indians, allowing individual Indians to claim parcels of off-reservation land that would remain inalienable for five years without renouncing tribal status.[140] Few Indians took advantage of these land grants, but even as early as 1869, the Board of Indian Commissioners began seeing the potential for allotting the reservations into individual parcels in order to encourage Indians to settle into agrarian lifestyles.[141]

On April 9, 1872, President Grant issued an Executive Order creating the Colville Reservation;[142] by summer, he issued a second Executive Order, which moved the reservation to the west, excluding certain native lands and rivers and shrinking the overall size.[143] At a council held at Priests Rapids with General O. O. Howard in 1878, Indian Chiefs Moses and Harmelt again lobbied for reservation of the Wenatchi fishery, and the General made the recommendation to Washington.[144] But as with the three previous statements reassuring the Wenatchi, this too would prove to be an empty gesture. And between 1883 and 1887, the government opened up settlement and mining on the Columbia Reservation, north of Colville and bordering Canada, giving Indians who resided there the choice of one-square mile allotments or transfer to the Colville Reservation.[145] Congress later ratified easements and cessions that further shrank the Colville reservation[146] (this land was eventually returned to trust status in 1956).[147]

The Wenatchi, who by now numbered less than 200, planned for the fact that they might never be allotted their reservation at the Wenatshapam fishery and sought out homestead surveys.[148] By 1887, their claims came into conflict with those of white settlers, often fraudulently surveyed by the Benson Syndicate.[149] The Commissioner of Indian Affairs directed special agent George W. Gordon to investigate the conflicting claims, and he visited the valley and spoke with settlers who claimed to have witnessed Colonel George Wright marking out the boundaries of the Wenatshapam between Icicle River and Peshastin Creek.[150] Gordon recommended that Wright’s correspondence be searched for the exact locations of the markings, but added that because there was then a white settlement overlapping the location (then called Mission), the reservation could be moved upstream at the Icicle fork where there were only white squatters, or, better still, moved eight or ten miles up the creek where there was no one.[151]

By 1890 when Wapato John sent a letter to General Howard asking what had become of the Wenatchi reservation, at least three official recommendations had been made to the Commissioner of Indian Affairs to survey it.[152] No action was taken; instead when the Great Northern Railroad submitted plans that required going directly through the center of the proposed reservation, the Secretary of the Interior approved the plans within two months.[153] Less than a year later, engineering and grading crews were already working on the line west of the Cascades.[154] In 1892, the Yakima Indian Agent, Jay Lynch, sent a letter to the Commissioner asking whether the Wenatchi’s fishery reservation had ever been surveyed, and the Commissioner directed Lynch to undertake the survey.[155]

Each subsequent attempt by the government to plot the survey was an effort to move the reservation away from the desired and agreed upon lands. As Gordon before him, Lynch assumed that the reservation would be better located further in the mountains at the head of the Wenatchee River where it flows from Lake Wenatchee.[156] Of course, the Wenatchi as well as the other settlers in the area with whom Lynch spoke recalled that the intended location for the reservation was at the fork of the two rivers.[157] One such settler reported having observed Lynch turning around before even making it up to the lake because of high water, and moreover, fixing the location on the basis of a defective map.[158] Nonetheless, within about a month the Commissioner of Indian Affairs recommended to the Secretary of the Interior that the President create the reservation by executive order, and shortly thereafter President Benjamin Harrison did so.[159]

It took another year for the commissioner to hire a surveyor to actually complete the work in Wenatchee Valley, at which point the Great Northern Railroad had completed their work in the area.[160] This development and the erroneous guidance of past agents affected where the surveyor could mark the boundaries of the reservation, and upon completion, he commented that only “a few salmon” made it up that far and that while there were some trout, they did “not appear to be abundant or easily caught.”[161]

Chief Harmelt and the Wenatchi noticed the agent incorrectly plotting the survey and asked him to correct it; he lied and told them: “I have no power nor authority to change the location.”[162] Further protests fell on deaf ears, and before the faulty survey could even be submitted for approval to the general land office, the Commissioner of Indian Affairs requested the Interior Secretary for leave to negotiate a cession of the lands on the grounds that it was incorrectly surveyed.[163] In a further example of the government’s deception, and despite the common understanding that the Indians on the Yakima Reservation were distinct from those residing in the Wenatchee Valley, the Indian Agents persisted in contacting the Yakama Tribe, on the Yakima Reservation, 100 miles from the fishery where Harmelt and the Wenatchi were wintering.[164] Nevertheless, the agency recognized that the Wenatchi should be present; the acting Secretary of the Interior at the time, William Sims, wrote that “[t]he rights of such Indians in land or fishing privileges should be taken into consideration and protected.”[165] However, in the end, that was the exact opposite of the purpose and effect of the 1894 Agreement.

The behavior of the government’s agents at the negotiations evidence what any modern court would describe as fraud. Harmelt and several other Wenatchi had traveled to the Council Proceedings a long distance through deep snow only to discover that they would not receive the fishery that had been promised.[166] Erwin reiterated that he had no power to move the reservation and suggested instead that the Indians profit by the government’s mistake by selling the improperly surveyed reservation,[167] to which Chief Harmelt responded: “I can not steal money from the Government. The land don’t belong to us and we have no right to sell it.”[168] Erwin tried a different tack: “[I]f you agree to sell, you will be selling a privilege and not a property.”[169] To this, the Yakima Captain Eneas responded, “It seems to me you whites think the Indians are just like beasts and don’t know anything about land. . . . I am not going over to my friend’s house and throw him off his place and tell him I would get rich and fat off of his place.”[170]

Finally, Erwin offered to “give” the Wenatchi allotments in the valley where their reservation properly should have been as well as fishing rights appurtenant to the land if they would agree to sell the reservation.[171] Harmelt explained that he was uncomfortable accepting such an offer without the consent of the whole tribe, and so he and the other Wenatchi traveled back to the valley.[172] Once gone, however, the council reconvened and Agents Erwin and Lane continued to press the Yakamas who were present; they objected: “I will not sell this piece of land away from the Wenatchee Indians that owns [sic] the land.”[173] Erwin persisted though, claiming that he had received a letter from a non-Indian settler, Mr. Chase, as representative of the Wenatchi, who said they wanted to sell.[174] Without a strong stake in the disposition, the Yakama needed only to find a fair price and they would be done with the negotiations.

The Yakamas agreed to a sum of $20,000.[175] Once the Yakamas consented to the amount it was to be deposited into their reservation funds to be used for irrigation and other tools on the Yakama Reservation.[176] It was not until 1900 that the Department of the Interior sent an allotting agent, William E. Casson, who for the next two years endeavored to convince the Wenatchi not to take allotments but rather to go onto the Colville or Yakama Reservations.[177] Casson ended up allotting only twenty-two parcels of land that accounted for a little more than ten percent of the agreed upon acreage of the original Wenatchi Reservation, and, as if to spite those who had not gone to the reservation, he converted all twenty-two allotments from trust to fee patents so that they were alienable and taxable.[178] Thus, “[w]ithin a few years, largely as a result of taxes and fees that were imposed, all of the Wenatchi homesteads were lost to whites.”[179]

IV. The Colville Decision[180]

A. A Disagreeable Decision in District Court

Modern litigation of the Yakama and Wenatchi fishing rights began in 1968 when the United States filed suit against the State of Oregon on behalf of four tribes seeking a declaratory judgment on the rights to take fish from the Columbia River and its tributaries.[181] The District Court of Oregon ruled that the Yakama Indian Nation, the Confederated Tribes and Bands of the Warm Springs Reservation of Oregon, the Confederated Tribes of the Umatilla Reservation, and the Nez Perce Tribe of Idaho were all entitled to a “fair share” of the Columbia River salmon.[182] In the ensuing appeal, the State of Washington intervened in 1974, and the State of Idaho in 1983,[183] and as a result the District of Oregon adopted a “comprehensive fish management plan” in 1988.[184] In 1989, the Colville tribe intervened as well on behalf of five constituent tribes.[185]

In 1994, the Colville tribe appealed the court’s denial of intervention on behalf of five of its constituent tribes, including the Wenatchi, arguing that these tribes were parties to the 1855 Treaty.[186] With no explanation as to why Colville had waited over twenty years to assert these rights and upon consideration of an extensive record amassed during a three-day bench trial, the court denied the intervention motion.[187] The Ninth Circuit affirmed the district court’s denial, thereby foreclosing the Wenatchi from exercising treaty fishing rights under the 1855 Treaty.[188] The reasoning supporting this holding was that, while normally “[r]ights under a treaty vest with the tribe at the time of the signing of the treaty . . . Indians later asserting treaty rights must establish that their group has preserved its tribal status.”[189] The district court found that the tribes had not maintained their tribal status because they had refused to relocate to the reservation, and only later were subsumed into the Colville Confederacy.[190] The Ninth Circuit reasoned that such evidence was merely one factor in a larger factual inquiry, which was whether the group had “maintained sufficient political continuity.”[191] In short, the Ninth Circuit affirmed the district court in a decision that was stunningly insensitive to the plight of the Wenatchi and other Salish tribes of the Middle Columbia who chose not to be herded onto the reservation as Stevens brusquely dictated.

The Wenatchi were denied their rights for not going on to the reservation, which the court saw as evidence that the Wenatchi had failed to maintain political cohesion,[192] this, despite the fact that Article X of the Treaty specifically reserved trust land for the Wenatchi.[193] Even more exasperating is the fact that the court fundamentally misunderstood the concept of treaty rights; it distinguished the case of the Muckleshoot Indians who, despite signing separate treaties, all came together and exercised their treaty rights continuously throughout the period in question.[194] The critical issue for the Ninth Circuit then, rather than the plain meaning of the treaty and subsequent 1894 Agreement, was “whether the tribes have shown that they have maintained political cohesion with the tribal entities created by the treaties and receiving fishing rights.”[195] This analysis is troubling for three reasons: 1) how does a tribe lose fishing rights that belong to them in the first instance;[196] 2) how does a tribe access its usual and accustomed fishing grounds in order to exercise continuous use, when there is a fence blocking access;[197] and 3) how could the Wenatchi have abided by Article X, under which they would have needed to stay at Wenatshapam, and, at the same time, go to the Yakama reservation?[198]

The Ninth Circuit’s prior decision in Oregon I, failed to adequately consider the historical record and the way in which the Indians would have understood it. The court chose not to address the difficulties faced by the Wenatchi, but instead relied on the fact that the Yakama did go to the reservation, and did continuously exercise their treaty rights under the treaty, while the Wenatchi tribe did not.[199] Yet it was clear to some federal Indian agents as early as 1897, that the government had perpetrated fraud against the Wenatchi; Indian Inspector McConnell, when he saw this record, wrote the Secretary of the Interior a scathing criticism of the government’s actions:

Are we a nation of thieves and unmitigated scoundrels? Are we devoid of all sense of honor? Does seventy millions of people because of their superior numbers and intelligence propose, little by little to deprive the sorely depleted tribes in the west of the small patrimony their more magnanimous conquerors—the early settlers in this country gave them? or more properly speaking, allowed them to retain. After wresting from them the heritage which had descended to them from generation to generation. Will the interest of private individuals, or the greed of corporations be allowed to sully our national honor? Must men like myself who assisted in redeeming the wilderness and who are to-day powerless to undo the wrongs which were partially of our doing, bow our heads in humiliation at the recital of the falsity of the promises we have made?[200]

The acting Commissioner of Indian Affairs responded tersely, blaming the Wenatchi tribe, claiming its citizens had “slept upon their rights by failing to have said fishery definitely located.”[201] The Ninth Circuit likewise relied on the notion that the Wenatchi had “slept on their rights,” by, essentially, not acting more like the Yakama.[202]

In this previous decision, the Ninth Circuit completely ignored the equitable considerations that, under the canons of construction, a court must consider. Thus, the most recent Colville decision can be seen as a corrective to this earlier holding; both in the sense that it carefully considered the historical record and because it weighed that record appropriately. Furthermore, despite this prior holding, Wenatchi tribal citizens continued to fish at Wenatshapam during the entire course of this earlier case and the Colville case.

The Colville case began in 2003 when the Yakama sought and obtained an injunction to prevent Wenatchi fishers from infringing on the Yakama’s rights at Wenatshapam.[203] The district court ruled that res judicata prevented the Wenatchi from arguing they held rights under the 1894 Agreement.[204] However, the Ninth Circuit reversed this ruling; distinguishing between the 1855 Treaty and the 1894 Agreement, it found that the latter was not an amendment, but rather a contract for the sale of lands that was an exchange of distinct benefits.[205] On remand, the district court found that the 1894 Agreement provided fishing rights and land in exchange for the Article X reservation.[206] This Ninth Circuit decision arises from the Yakama appealing and the Wenatchi cross-appealing. The Yakama argued that the district court erred in finding what it characterized as an “implied agreement.”[207] And the Wenatchi argued that either the district court erred in finding any fishing rights for the Yakama at the Wenatshapam Fishery or, in the alternative, that it erred by not finding the Wenatchi fishing rights superior.[208]

B. Summary of the Colville Decision

The Confederated Tribes and Bands of the Yakama Indian Nation (Yakama) and the Confederated Tribes of the Colville Indian Reservation (Colville) on behalf of their Wenatchi constituent Tribe (Wenatchi) both cross-appealed the United States District Court for the District of Oregon’s holding as to an 1894 treaty agreement that the Yakama and Wenatchi share fishing rights in common at the “Wenatshapam Fishery” near present-day Leavenworth, Washington. The United States Court of Appeals for the Ninth Circuit affirmed the district court’s decision, holding with regard to the Wenatshapam Fishery (1) that the 1894 negotiations’ intent was to grant the Wenatchi fishing rights there, (2) that the Yakama did not sell their fishing rights, and (3) that both tribes retain non-exclusive fishing rights there and the Wenatchi do not possess “primary rights.”[209]

The “Stevens Treaties” sought to quickly extinguish Indian title and rights by consolidating several tribal entities to facilitate easier treaty making. Indeed, the Treaty with the Yakamas[210] (1855 Treaty) recognized fourteen separate tribal entities as a single tribe.[211] These tribes were not related in any significant way, other than geographically, and did not share a common language, let alone a singular bargaining interest.[212] In addition to specifications of the size and boundaries of the Yakama reservation, the treaty granted exclusive rights to fishing in the waters on or adjacent to the reservation, and also reserved “the right of taking fish at all usual and accustomed places, in common with citizens of the Territory.”[213] Article X of this treaty, at the behest of Wenatchi tribal leaders, set aside a second reservation at the Wenatshapam Fishery (Article X Reservation), which the terms of the treaty recognized would be surveyed sometime in the future by order of the President.[214]

The Ninth Circuit recognized that during the next forty years the Wenatchi continued to fish at the Wenatshapam location, believing they would be secure in their possession of the fishery, and the Department of the Interior never conducted any survey of the area agreed upon.[215] Eventually, prompted by the Yakama Reservation Indian Agent, the Secretary of the Interior authorized a survey in 1893.[216] The Ninth Circuit never directly addresses the Indian Agents’ deceptive practices in the record but allows the record to speak for itself, noting that the Article X Reservation was never surveyed at Wenatshapam and was instead made further off in the mountains away from the river.[217]

Furthermore, the court took no issue with the fact that Congress only considered the government’s record in its decision to ratify the 1894 agreement, which contains only the complaints and comments of white settlers, letters between the Indian agents, and the bare record of the Council Proceedings.[218] Moreover, far from acting as advocates or guardians for the Indians, Agents Lynch, Erwin, and Lane all acted to protect the interests of the settlers and the railroad. To its credit, however, the Ninth Circuit did incorporate E. Richard Hart’s detailed article on the Treaty and subsequent Agreement regarding the Wenatshapam Fishery and the agents’ various acts of dishonesty.[219]

The Ninth Circuit recounted the Council Proceedings, and in doing so glossed over a significant glitch. In December of 1893, acting on the authorization of the Department of the Interior,[220] Agent Erwin proposed to the four Wenatchi leaders present on the Yakama Reservation that they sell their mountain reservation in return for allotments in the Wenatchee Valley and federally protected fishing rights.[221] He indicated that the Department intended for the Indians to retain “the lawful use of the fisheries in common with the white people.”[222] Here, unfortunately, the Ninth Circuit misconstrued the record, concluding that the Wenatchi leaders eventually agreed to the transfer at $1.50 an acre, when in fact several historical accounts express a different sentiment: Chief Harmelt was brushing off the cost when he said: “I am well satisfied between you two. Whatever [the Yakama] ask for the land that is my same price.”[223] He had not yet agreed to the bargain, but with that statement was rather re-establishing his interest, which was that the allotments, if made, would adjoin the fishery.[224] The court reads the record to reflect that an agreement between the Wenatchi and Erwin had been established, and only the price was subject to change.[225] Given, however, the language barrier and Chief Harmelt’s attitude throughout the negotiations (that he wished to maintain the land at the fishery as a reservation), it is difficult to imagine that there was a true meeting of the minds here in the way the court interpreted. A deeper reading of the record shows that in fact, Yakama leaders eventually agreed to the transfer on behalf of the Wenatchi.

Nevertheless, this 1894 Agreement served as the keystone to the Wenatchi’s fishing rights at Wenatshapam.[226] Indeed, given the fact that Colville had been barred from asserting rights under the 1855 Treaty by the court’s previous decision, the later Agreement was the platform of the Wenatchi’s argument.[227] This is the central irony of the case, and it highlights the central irony of many similar documents executed between tribes and the United States, which is that these “agreements” are often the only method a tribe has to prove its particular rights. Therefore, in litigation, a tribe is loathe to point out the many ways in which an agreement may be invalid.

In January 1894, after the Wenatchi leaders had returned to Wenatshapam, 150 miles away, the Department proposed by telegraph a lump sum of $15,000 for the Article X Reservation.[228] In response to the Yakama leaders protesting the absence of the Wenatchi, Erwin promised, “[j]ust what we said to those Wenatchee Indians we will carry out.”[229] Satisfied, a Yakama representative counter-offered to relinquish all rights in the Wenatshapam Fishery in return for $20,000.[230] The Department accepted this offer and, along with 246 citizens of the Yakama Nation, signed the 1894 Agreement.[231] The Ninth Circuit reasoned that in the first article, the agreement extinguished all Yakama rights in the Wenatshapam Fishery, while the second article indicates the consideration given for this relinquishment, as well as an acknowledgment that the Wenatchi would be allotted land in the vicinity of where they lived or elsewhere.[232] The government again failed to make this allotment, and in 1902 and 1903 removed the Wenatchi to the Colville Reservation.[233]

The Ninth Circuit applies separate standards of review to the factual findings of the district court, including issues of negotiators’ intent, and to the district court’s interpretation of treaties. Thus it reviewed the historical record for clear error, while it reviewed treaty interpretations de novo.[234] Moreover, given the special nature of past dealings between the United States and Indians, the court went on to enunciate relevant principles of interpretation—specifically, the canons of construction previously discussed.[235] In considering whether to limit its analysis of the 1894 Agreement to the four corners as the Yakama suggested, the Ninth Circuit first returned to its 2006 opinion in which it found the relevant provisions of the agreement ambiguous.[236] It then turned to the proposition that, given the language barrier and legal sophistication of the parties to these treaties, a court should construe treaty language as the American Indians would have understood it, and resolve any ambiguities in favor of them.[237] Such an interpretative framework, the Ninth Circuit concluded, necessarily required it to look beyond the four corners of the 1894 Agreement.[238] Given that the Agreement itself is silent as to Wenatchi fishing rights, the Ninth Circuit therefore considered the transcript of the negotiations to determine how the tribal leaders understood the terms of the agreement.[239]

The Ninth Circuit’s review of the record supported the district court’s finding that the Indian leaders present at the 1894 negotiations would have understood the terms to provide non-exclusive fishing rights to the Wenatchi at Wenatshapam.[240] The court cites evidence from both Yakama leaders and federal negotiators that the Agreement would preserve the fishing rights of the Wenatchi.[241] So, despite the ambiguity inherent in the 1894 Agreement itself, the Ninth Circuit concluded that its effect was to secure the Wenatchi rights.[242] Of course, the court could have reached this result even in the absence of such evidence by turning to the relevant principles of interpretation; any ambiguity in the document should be interpreted in favor of Indians.

Consequently, the Ninth Circuit held that the 1894 Agreement to sell the Article X Reservation also did not extinguish the Yakama’s fishing rights at Wenatshapam.[243] The Ninth Circuit declined to adopt the Wenatchi’s proposed interpretation,[244] finding instead that the Yakama’s cession was limited to its Article X rights in the land around the fishery and did not extend to rights not explicitly ceded—in other words, its rights to fish at all usual and accustomed places.[245] Adhering to the United States Supreme Court’s holding in Winans that a treaty or agreement is “not a grant of rights to the Indians, but a grant of rights from them,”[246] the Ninth Circuit reasoned that the 1894 Agreement merely ceded the tribe’s exclusive fishing rights reserved by the 1855 Treaty. But, as the later agreement would have been understood by the negotiating parties, the Yakama retained its non-exclusive fishing rights.[247]

Finally, the Ninth Circuit held that the Wenatchi did not hold rights superior to those of the Yakama, but that both tribes held non-exclusive fishing rights in common with the state. First, the court noted that the “primary rights” analysis developed in United States v. Skokomish Indian Tribe[248] and United States v. Lower Elwha Tribe (Lower Elwha),[249] depends upon an analysis of pre-treaty control of the contested rights when two tribes have signed treaties at the same “treaty time.”[250] Since the 1894 Agreement secured the Wenatchi rights and the 1855 Treaty secured the Yakama rights, there was no common “treaty time” at which to determine primacy or control of the Wenatshapam Fishery.[251] Secondly, the Ninth Circuit observed that the 1894 Agreement did not reserve Wenatchi rights in existence prior to 1855, but was a grant of new rights independent of the previous treaty.[252] Thus, regardless of actual control of the Wenatshapam Fishery prior to 1855, the Wenatchi would still lack the 1855 Treaty rights to prompt a “primary rights” analysis.

V. Criticism Of the Primary Rights Analysis in Colville

The Ninth Circuit’s decision in Colville severely limits the application of primary rights. Whether this represents progress in the law depends on who is asking. Obviously, individual tribes would prefer to have the ability to regulate a fishery, especially in the Pacific Northwest where the take may vary widely from year to year, is highly sensitive to environmental factors, and may be fairly limited. In this way a tribe can control its own percentage and divvy up remaining fish (if they choose to permit other tribes to take). In fact, this is essentially the role that the pre-treaty Wenatchi played at the Wenatshapam fishery.[253] On the other hand, the court demurring from a decision of historical fact regarding which tribe had control over a certain location more than a hundred years ago promotes both judicial efficiency as well as a certain abstract tribal sovereignty. This Part first analyzes the court’s two findings from the previous Part, and then discusses the relative merits of the existence of “primary rights.”

A. Problems with the Colville Analysis

1. Abrogation or Ignorance of Lower Elwha and Skokomish Indian Tribe

In Colville the court altered the primary rights test by placing the focus on whether the two tribes formed treaties with the United States at roughly the same time, and in so doing abrogated or ignored the prior analyses. The Lower Elwha court did not focus on whether the tribes’ treaties were made during roughly the same time but rather the relations of the tribes prior to the period of treaty-making; [254] in that case the Makah challenged a decision, arising from the continuing jurisdiction of the court in Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n.[255] The Makah Tribe sought review of the finding that the Lower Elwha Indians had primary rights on the Hoko River because they had the ability to exclude the Makah at the time they signed their respective treaties.[256] The Makah challenged on two separate grounds: 1) that evidence of custom, or “anthropological principle,” was insufficient to prove that the Lower Elwha had the ability to exclude the Makah in the 1850s,[257] and 2) that “considerations of law and equity require that it be allowed to share the rivers.”[258]

First, with regard to evidence of custom, the Ninth Circuit relied on United States v. Top Sky[259] for its holding that evidence of historic practices (such as battle acumen) is sufficient as long as it is probative on the issue.[260] Second, with regard to the considerations of law and equity, the court relied on the Winans rule that “[t]he treaties ‘secured,’ or reserved, to the tribes their pre-treaty rights to take fish,”[261] in order to determine that present day “hardship to the Makah cannot deprive the Elwha of vested treaty rights.”[262] Finally, the court determined that even if the Makah can show that they were capable of attacking the Lower Elwha and fishing at the locations they claimed to control, “[t]hese instances of Makah fishing on Elwha territory do not destroy the Elwha Tribe’s primary right.”[263] Furthermore, “‘[t]emporary occupancy by friends or raiding by enemies does not destroy the exclusive occupancy required for aboriginal title . . . once exclusive occupancy has been established.”[264]

As applied to the present case, it is difficult to imagine a stronger argument for a finding of primary rights for the Wenatchi. The Wenatchi were a party to the same 1855 treaty as the Yakama, and more than evidence of custom, the Wenatchi had an incredibly detailed account of their pre-treaty use of the fishing grounds at Wenatshapam.[265] Furthermore, the Yakama do not have equitable concerns in the same manner as the Makah—the Yakama are a relatively wealthy tribe with access to fishing grounds throughout the state whereas the Makah’s access is much more limited. The Ninth Circuit may have considered the fact that the Yakama had other equitable concerns, such as a $32 million investment in the hatchery located less than a mile upstream from the fishery at issue.[266] However, this reasoning is not presented in the case, which instead places the focus on the time at which the treaties (that give rise to the rights) were signed, rather than whether control was exercised prior to the treaty-signing time.[267] In denying primary rights to the Makah, it was important that the tribe had exclusive control of the fishery, where in Colville it was important that the Wenatchi’s rights in the fishery stemmed from the separate 1894 Agreement.

Skokomish Indian Tribe elaborates on the two prongs of Lower Elwha, clarifying that the factors to consider “were [not] a rigid formula or test, but rather . . . useful as an analytical tool.”[268] Moreover, Skokomish Indian Tribe provides a clear definition for what exactly primary rights are: “[a] primary right is the power to regulate or prohibit fishing by members of other treaty tribes.”[269] As applied to the Wenatchi, a less rigid formula would appear on its face to yield a clear-cut case for this right to regulate. First, under the Ninth Circuit’s interpretation of the 1894 Agreement and the surrounding historical evidence, it is clear that the Wenatchi believed the Wenatshapam fishery would be a reservation for its benefit, and then later, that they would at least possess land there in fee. Moreover, the Wenatchi exercised permissive control over the fishery prior to the 1855 Treaty.[270] However, what the Wenatchi fail to mention in the brief and what the Ninth Circuit declines to rely upon, is the fact that the Wenatchi are not a federally recognized tribe, and, even under the prior tests, may not have been able to exercise primary rights for that reason.[271]

2. What about Winans?

By holding that the 1894 Agreement did not reserve Wenatchi rights in existence prior to 1855, the Ninth Circuit narrowly avoided contravening the Winans rule that treaties reserve to a tribe pre-treaty fishing rights.[272] Here, under the de novo standard of review,[273] the court could have easily looked to the record and determined that the Wenatchi had permissive control over the fisheries at the time the 1855 Treaty was signed by the Wenatchi and Yakama Tribes and, applying the Lower Elwha and Skokomish Indian Tribe decisions, found primary rights in the Wenatchi. However, it persisted in maintaining precedent and refused to overrule Oregon I, finding that the Wenatchi, as well as other tribes that chose not to reside on the Yakama Reservation, extinguished treaty rights under the 1855 treaty by failing to maintain political unity.[274] The Wenatchi were successful in asserting rights under the 1894 Agreement that are, at least for them, the exact same fishing rights, save for the fact that the Yakama’s 1855 rights of exclusivity at the fishery were really for the Wenatchi’s benefit. Without explicitly saying so, the Ninth Circuit avoids finding primary rights in a tribe who lacked cohesiveness throughout the period in question. It is troubling however, that a tribe’s inability to maintain political cohesiveness due to the onslaught of American culture should actually divest them of rights held since time immemorial.

B. Jurisprudential Concerns with Primary Rights

The Colville decision essentially limits primary rights to fact situations that are highly similar or identical to those of Lower Elwha. In one sense this can be viewed as a positive direction for Indian law precedent because it narrows the conditions under which a federal court imposes superior rights in a fishery, and allows tribes to make cooperative decisions in order to regulate and control take. From a jurisprudential standpoint, courts will want to limit their involvement in inter-tribal disputes that may arise with regard to one tribe’s regulation to which other tribes might object. Insofar as it increases judicial efficiency, one need only consider how a federal judge would feel about being put in the position of “counting fish.”[275] Indeed, stepping back from the primary rights allocation likewise motivates tribes to negotiate the apportionment of the take and encourages inter-tribal cooperation. This has the effect of removing federal courts from a position of authority over inter-tribal relations, and in turn creating more opportunity for the exercise of sovereignty. Of course, it can also be argued that ceding this authority to tribes is similar to the federal government ceding its trust responsibilities. In sum, the Ninth Circuit’s decision in Colville treads lightly on a divisive area of the law, but, nevertheless, it fails to consider some factors in its analysis.

First, while the court went into great detail regarding the Wenatchi’s history at the Wenatshapam fishery, it excluded any mention of either the Yakama’s historical use of the fishery or their modern day improvements. The Ninth Circuit never discussed the possibility of the Yakama’s potential adverse possession claim. The injunction in 2003 evidences a hostile intent to exercise dominion over the property, as does the fence that was erected. One can only assume that it is irrelevant to the court’s primary rights decision (which impact would seriously alter the regulatory landscape) that the Yakama have plans to spend over $32 million dollars in federal Bureau of Indian Affairs funds at the hatchery within the next seven years.[276] Focusing instead on the Wenatchi’s historical use, it altogether avoided any sort of adverse possession argument, instead relying on two factors: 1) whether there was a common treaty time out of which the conflicting rights at usual and accustomed places arise; and 2) the status quo at that common treaty making time. The court gave no indication of why this analysis prevails logically over the Lower Elwha / Skokomish Indian Tribe rule, and, in the final analysis, places little emphasis on the second factor.

In addition, the Colville decision overlooks the relative bargaining power of the two tribes. One cannot help but notice a parallel between the Colville Court’s primary rights analysis and the Wenatchi’s 19th century plight in the effect of surrounding financial ventures. Not once in the conversation with Stevens in 1855, or Erwin in 1894, did either of those negotiators discuss their underlying motivations to develop the railway. Only McClellan was forthright with the Wenatchi;[277] from then on the whites with whom they spoke constantly dissembled their true intentions. History can now see that Stevens sought conquest of the Northwest as a means to political power,[278] and that Erwin was a great friend to the railways.[279] For their part, the Wenatchi merely sought the fishing reservation that had been promised and were content to peacefully wait for the government’s performance on its contract; instead the government begrudgingly allotted them land, which, due to taxes, quickly left tribal citizens’ possession. As a small, peace-loving fishing village, the Wenatchi had no chance against the machinations of the federal agents. In the modern era, it appears the Wenatchi have learned this lesson. The Colville court was well aware of Chief Harmelt’s attempts to regain the reservation and must also have been aware of the tribe’s modern struggle for the reservation. But here, of course, the Wenatchi only argued for fishing rights; and while they no longer had any legal claim to the reservation, the court may have been swayed by their moral claim to some interest in the ancestral fishery. Nevertheless, the Wenatchi is not a federally recognized tribe but rather a member tribe of the Colville Confederacy, whereas the Yakama is not only one of the largest tribes in the Northwest, but has a sizable reservation with exclusive, on-reservation rights. In terms of regulatory capacity and expertise, the Yakama clearly have more to offer, which cuts against a finding of primary rights in the Wenatchi. For better or worse, the court does not reach these questions, and looks instead to the record.

VI. Conclusion

The Colville opinion exemplifies the power of the historical narrative in Indian law. It is nearly impossible for a court to deny fishing rights such as those now solidified in the Wenatchi of Colville in light of such a rich record of events surrounding the fishery. Here, the official record itself is rife with indications of betrayal and fraud on the part of the government officials. However, as is often the case, it fails to capture the whole picture. Indeed, there is clear evidence outside of the official record to bring an issue of duress or to interpret the validity of the treaty in the first place. The tribal leaders signed their names under the threat of the annihilation of their peoples, and as further evidence of the tribes’ resistance, within less than a year, several of those leaders would die in battle and while captured, fighting to maintain their ancestral homes. Of course, at this stage it would be fatal to any tribe’s legal claims to deny the validity of its treaty. Ironically, the very document of deceit is now their document of delivery, finding for the Yakama, under the 1855 Treaty, and for the Wenatchi, under the 1894 Agreement, the vestigial rights to their way of life.

It nearly goes without saying that not all tribes are as “lucky” as the Wenatchi. Beyond the detailed factual record compiled by the government, there are also several historical accounts by noted historians, as well as a feature-length documentary.[280] Few tribes will have recourse to this broad of an array of information or to be able to call expert witness historians at trial to prove the legitimacy of facts that the tribal people and locals in town have known for generations.

Moreover, it should not be overlooked that the Wenatchi were wise enough not to “shoot the moon;” past experience dictates that a tribe’s chances of success on the merits are much greater when what they ask for is only a piece of what they are owed. Here the treaty language of 1855 reserved land for the Wenatchi in the amount of “one township of six miles square” or about thirty-six square miles,[281] the 1894 Agreement purports to extinguish that reservation, which is at least, how the Ninth Circuit views the disposition of this “reservation.”[282] The Agreement, then, is for the sale of the reservation, reserving within it the fishing rights. Indeed, how the Indians would have understood this, and how they did understand it, was that they had sold the falsely surveyed reservation several miles to the north in exchange for money and adjoining allotments at their fishery in a somewhat smaller amount.

Essentially, the court’s decision avoids recognition of Wenatchi’s primary rights in order to avoid adjudicating between tribes, but also to avoid recognition of the full, and disturbing, history. The court has the power to, and does, avoid discussing the issue of the fraud and abuse around the Wenatshapam Fishery reservation. By establishing the rights sold in the 1894 Agreement, the court validates “new rights” that a tribe had become barred from asserting under its original treaty. Then why not allow the Wenatchi primary rights? To recognize the Wenatchi’s history at Wenatshapam is to recognize that history of fraud and violence. It is convenient (and helpful to the tribe) to validate the 1894 Agreement, but it also cedes the last piece of legal power that the Wenatchi could have claimed to distinguish their unique interest in the fishery.

The parties did not brief the issue, nor of course, did the court consider the possibility that instead of mere fishing rights at the confluence of the Icicle and Wenatchee Rivers, the Wenatchi deserve a reservation under the terms of the 1855 Treaty because of the fraud committed against them in 1894. This argument did not escape the imagination of Chief Harmelt, who personally went to Washington D.C. twice to speak before Congress.[283] In 1933, when Harmelt was in his eighties, the Wenatchi hired attorney Frederick Kemp to submit a contract to the Indian Office, essentially making this argument.[284] For two years Kemp and the Wenatchi never heard back from the department; then in 1935 when the Wenatchi opposed the Indian Reorganization Act Constitution for the Colville Reservation, Commissioner of Indian Affairs John Collier canceled the contract with the tribe.[285]

However, all hope is not lost for the Wenatchi; their recent public exposure has forced their case in front of the state legislature, which backs the tribe’s request for land near Leavenworth in federal forestlands.[286] While there does not appear to be development on this front, the tribe has seen support in the United States Senate.[287] There is hope yet that the Wenatchi may some day have a reservation in the Wenatchee Valley.

Intervention by Non-Settling PRPS in Cercla Actions

By

Toby A. McCartt*

This Chapter examines the issue of non-settling potentially responsible parties (PRPs) moving to intervene in Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) actions where the government is seeking entry of a consent decree between it and settling PRPs. The Chapter examines one such case in particular, the Ninth Circuit’s recent decision in Aerojet General Corp. v. United States, and with reference to other cases wherein non-settling PRPs sought intervention, focuses in on the most salient issue in these cases—whether the non-settling PRP has a significantly protectable interest sufficient to support intervention under CERCLA Section 113(i) and Rule 24(a)(2) of the Federal Rules of Civil Procedure. The Chapter posits that courts in general have been imprecise in defining the interest posited by non-settling PRPs seeking intervention—an interest in a contribution claim against the settling PRPs, which contribution claim will be extinguished upon entry of the consent decree. The conclusion reached is that a PRP has a significantly protectable interest in a contribution claim only after it has been sued or has settled its liability to the government. This Chapter also examines some of the arguments employed by courts to avoid the significantly protectable interest inquiry entirely and critically evaluates some of the past case law in the area, demonstrating that the collective failure of the courts to identify precisely the interest at stake and to apply properly the principles of intervention law has led to the disparate results in the courts.  

I. Introduction

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA),[1] as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA),[2] establishes a mechanism for those who remediate sites contaminated by hazardous substances to seek compensation from those who are responsible under CERCLA for the contamination.[3] CERCLA establishes broad categories of potentially responsible parties (PRPs) and provides for assigning liability to those PRPs.[4] The United States Environmental Protection Agency (EPA) is the primary agency in charge of implementing CERCLA for the federal government,[5] but CERCLA also authorizes states, Indian tribes, and even private parties to recover costs expended by them in remediating a site pursuant to CERCLA.[6]

When the federal government settles with a PRP, it must lodge the proposed settlement, in the form of a consent decree, with the appropriate district court, which then reviews the settlement and, if the settlement is fair, reasonable, and consistent with CERCLA, enters the consent decree.[7] A party that has been sued or has settled its liability under CERCLA may seek contribution from other PRPs.[8] However, a party that settles its liability to the government through a consent decree obtains protection from such claims for contribution.[9] The extinguishment of the non-settling PRP’s contribution claim could potentially leave that PRP facing millions of dollars in liability without recourse as to the settling PRPs.

Often a PRP that is not a party to a settlement between another PRP and the federal government objects to the terms of the settlement. In these situations, the non-settling PRP may seek to intervene in the litigation filed by the government in which the government and the settling PRPs are seeking entry of a consent decree.[10] Cases such as these have created a rather large body of case law examining when and under what circumstances a non-settling PRP may intervene in such an action. The results have not been consistent. Courts applying the same statutory provisions to similar sets of facts have come to different conclusions.[11]

This Chapter will examine the relevant statutory provisions and the standards that courts have developed to apply those provisions. It will then engage in a broad survey of the case law to date, focusing especially on the recent decision by the Ninth Circuit Court of Appeals in United States v. Aerojet General Corporation. After surveying the cases, this Chapter will provide some critical analysis of the decisions in those cases and the principles on which those decisions were made. The conclusion that it will reach is that a non-settling PRP’s interest in a contribution claim only arises after that PRP has been sued or has settled its liability to the government in a judicially approved consent decree.

A. Rule 24(a)(2), CERCLA Section 113(i), and the Interplay Between Them

Both CERCLA and the Federal Rules of Civil Procedure grant non-parties to litigation a right to intervene in that litigation under certain circumstances. In the Federal Rules of Civil Procedure, that right is found in Rule 24(a)(2). In CERCLA, the right of intervention is found in CERCLA Section 113(i).

Rule 24(a)(2) of the Federal Rules of Civil Procedure (Rule 24(a)(2)) provides:

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: . . . (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.[12]

CERCLA Section 113(i) provides:

Intervention[.] In any action commenced under this chapter or under the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] in a court of the United States, any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situated that the disposition of the action may, as a practical matter, impair or impede the person’s ability to protect that interest, unless the President or the State shows that the person’s interest is adequately represented by existing parties.[13]

The similarities in the language are unmistakable. The only material differences between the two statutes are the burden of proof as to the adequacy of representation and the lack of an explicit timeliness requirement in CERCLA Section 113(i). This similarity has led courts to apply the same standards in interpreting both Rule 24(a)(2) and CERCLA Section 113(i) as to all but the adequacy of representation element.[14]

B. Elements Required for Intervention

Taking the two statutes together, they each require the applicant for intervention to prove four separate elements.

1. Timeliness

Under Rule 24(a)(2), the applicant’s motion to intervene must be “timely.”[15] While CERCLA Section 113(i) does not include the requirement that the application be “timely,” courts analyzing the two sections together seem to miss this fact entirely, assuming that CERCLA Section 113(i) imposes a requirement of timely motion to intervene.[16] It would seem, though, that the mechanics of entering a CERCLA consent decree would impose a de facto timeliness requirement even where there is none in the statute. Once the government and the settling PRPs reach a settlement, the government must lodge the settlement with the court for not less than thirty days before the court may enter the settlement as a consent decree.[17] Often, the consent decree is filed concurrently with the complaint initiating the suit.[18] The non-settling PRP would only have the period between the initiation of the suit and the entry of the consent decree in which to file a motion to intervene. Furthermore, even if the consent decree is not lodged with the complaint, the clock to determine timeliness should not begin to run until the consent decree is lodged with the court rather than at the initiation of the litigation. This is because timeliness is to be judged based on when the applicant for intervention became aware, or should have been aware, that its interests were at stake in the litigation.[19]

2. Significantly Protectable Interest

Both CERCLA Section 113(i) and Rule 24(a)(2) require that the applicant for intervention have “an interest” relating to the subject of the litigation.[20] The interest required under both statutes has been variously characterized by courts as a “legally protectable interest”[21] or a “legally sufficient interest.”[22] The United States Supreme Court used the term “significantly protectable interest” and, in a later case, qualified that the interest must be “legally protectable.”[23] Justice O’Connor posited that the “requirement of a ‘significantly protectable interest’ calls for a direct and concrete interest that is accorded some degree of legal protection.”[24] However, the Supreme Court has given little guidance for the lower courts as to how these broad terms should be interpreted.[25] The majority rule that has emerged in the lower courts is that the interest required by Rule 24(a)(2) is one that is direct, substantial or significant, and legally protectable (DSL Rule).[26]

In what has become a heavily cited case, an en banc panel of the Fifth Circuit in New Orleans Public Service, Inc. v. United Gas Pipeline Co. (NOPSI)[27] defined the interest as being “direct,” “substantial,” and “legally protectable,” not just a mere economic interest, but rather, “one which the substantive law recognizes as belonging to or being owned by the applicant.”[28] NOPSI involved a dispute between a power provider and its gas supplier over, inter alia, pricing of gas.[29] The applicant in that case sought intervention as a representative of the class of rate-payers who purchased power from NOPSI.[30] The en banc panel of the Fifth Circuit denied the application for intervention on the above standard, stating that the “purely economic interest” of the applicant was insufficient for intervention.[31] The Ninth Circuit employs a similar standard to the Fifth Circuit, requiring that the interest asserted must be protected under some law and there must be a relationship between that legally protected interest and the plaintiff’s claims.[32]

It must be noted that some courts do not apply such a rigid and formal test of the significantly protectable interest.[33] This Chapter, though, will examine the element of the significantly protectable interest in terms of the “direct, substantial, and legally protectable” definition, as informed by cases like NOPSI. There are several reasons why this Chapter will do so. The first is that a majority of circuits apply the more rigid “direct, substantial, legally protectable” test.[34] The second is that NOPSI figures prominently in the previous body of CERCLA intervention jurisprudence.[35] The third, and most practical reason, is that where an interest is found to be a significantly protectable interest under the more rigid, conservative test, it will, a fortiori, be a significantly protectable interest under a more liberal test. Therefore, the conclusions of this article will seek to establish boundaries under the “direct, substantial, legally protectable” rule. In circuits that take a more liberal approach, these boundaries will be one-way: an applicant for intervention found to have a significantly protectable interest will have such an interest under a more liberal test, but an applicant found not to have a significantly protectable interest may have one under the more liberal minority approach.

3. Impairment of Interest Absent Intervention

Both CERCLA Section 113(i) and Rule 24(a)(2) require that the applicant’s interest be so related to the litigation that the disposition of the litigation “may, as a practical matter, impair or impede” the applicant’s ability to protect that interest.[36] Applicants for intervention need not “demonstrate to a certainty that their interests will be impaired” in the litigation.[37] Prior to the 1966 amendment of Rule 24(a)(2), this element required that the applicant for intervention be legally bound by the disposition of the case in which intervention was sought, but the 1966 amendment provided the more “flexible and practical criteria” of the current standard.[38]

4. Inadequacy of Representation

The greatest difference between CERCLA Section 113(i) and Rule 24(a)(2) is in their allocation of the burden of proving adequacy or inadequacy of representation by the existing parties. CERCLA Section 113(i) puts the burden on the government to show that the existing parties adequately represent the interests of the applicant.[39] Rule 24(a)(2) puts the burden on the applicant for intervention to show that representation by the existing parties is inadequate to protect the interests of the applicant.[40] The allocation of the burden of proof is seemingly immaterial in the context of non-settling PRPs moving to intervene in cases in which the government and the settling PRPs are seeking entry of a consent decree. The interests of the parties to the litigation will align once they have reached a settlement, and they will jointly support that which the non-settling PRP obviously opposes: entry of the consent decree. Given this dynamic, it would seem unlikely that a court could find on either standard that the interests of a non-settling PRP are represented adequately by the existing parties.

II. Intervention in CERCLA Settlements Between the Government and PRPs

While CERCLA Section 113(i) (on the books since SARA was enacted in 1986)[41] and Rule 24(a)(2) (the current version of which was enacted in 1966)[42] are the same in every jurisdiction, courts have nonetheless come to very different conclusions about their application to situations in which non-settling PRPs moved to intervene in CERCLA cases between the government and settling PRPs seeking entry of a consent decree establishing the extent of liability of the settlers. The earliest trend could perhaps be characterized best as hostile to the non-settling PRP seeking intervention, with the lone outlier being United States v. Acton Corporation, where the District Court for the District of New Jersey found that the PRPs had a right to intervene.[43] The Acton decision was heavily criticized by district courts that had determined that non-settling PRPs do not have a right to intervene.[44] The first of the Circuit Court of Appeals to examine the issue agreed with those district courts, in dicta, that a non-settling PRP should be denied intervention, while at the same time finding that a PRP that had already settled should be allowed to intervene in a subsequent action.[45] But since these early victories for the opponents of intervention, the Eighth[46] and Tenth[47] Circuits and a handful of district courts[48] began bucking what had become known as the “majority rule” and found instead that non-settling PRPs should be allowed to intervene. Most recently, the Ninth Circuit entered the discussion and came down solidly on the side of allowing intervention for non-settling PRPs.[49]

What is perhaps most striking about the entire line of cases examining the issue of intervention by non-settling PRPs is the extent to which the reasoning of those cases is divorced from the body of intervention jurisprudence that the courts have developed since the enactment of Rule 24(a)(2). It is the position of this Chapter that this tendency to interpret CERCLA Section 113(i) in a vacuum has helped lead to the divergent results in cases where non-settling PRPs are seeking intervention to prevent the entry of a consent decree between the government and settling PRPs. Some courts have looked entirely to CERCLA-specific issues to determine whether intervention should or should not be allowed. This Chapter will briefly discuss some of those issues that have led courts to do so.

Yet many courts have looked beyond CERCLA’s policies and applied the four-part intervention inquiry described above. It is with these courts that this Chapter is primarily concerned. As argued above, the elements of timeliness, impairment of interest, and adequacy of representation will seldom be important issues for consideration by the court.[50] The decisive issue will tend to be a non-settling PRP’s significantly protectable interest. To date, the interest that non-settling PRPs have cited to support their applications for intervention has been their interest in future contribution claims against the settlers—the contribution claims that would be barred upon entry of the consent decree by operation of CERCLA Section 113(f)(2).[51] And it is here that courts have failed to identify clearly the interest at issue and, more importantly, when that interest arises in a manner that hardens the interest into a significantly protectable interest sufficient for intervention of right. This failure has kept courts from arriving at a principled manner of distinguishing between non-settling PRPs that do have an interest in contribution that is significantly protectable and those that do not.

This Part will examine the issues relating to intervention by non-settling PRPs through the lens of the Ninth Circuit’s recent decision in United States v. Aerojet General Corp.. The analysis will begin by briefly touching upon the CERCLA-specific arguments that have caused some courts to avoid entirely the significantly protectable interest inquiry and will explain why the Ninth Circuit was correct in dismissing those arguments. It will then turn to the Ninth Circuit’s discussion of the significantly protectable interest of the applicants for intervention in Aerojet General. Through that analysis of Aerojet General and with reference to other cases, a principle will emerge: a PRP that is not a party to a consent decree between other PRPs and the government does not have a significantly protectable interest in a contribution claim at stake in the consent decree and, therefore, may not intervene unless it has been sued or has settled its liability with the government through a prior consent decree. Having reached and supported this conclusion, this part will then turn to other courts that have also failed to recognize this important dividing line among non-settling PRPs—an inquiry that will essentially divide these courts into those that reached the wrong conclusion and those that reached the right conclusion but failed to demonstrate an understanding of when the contribution claim hardens into a significantly protectable interest.

A. The Ninth Circuit’s Decision in Aerojet General Corporation

The Court of Appeals for the Ninth Circuit first addressed the issue of intervention by non-settling PRPs in its 2010 decision of United States v. Aerojet General Corporation.[52] This is perhaps surprising since it came almost twenty years after two of its lower courts had issued opinions on which many courts subsequently relied in denying non-settling PRPs intervention.[53] In deciding Aerojet General, though, the Ninth Circuit thoroughly disavowed the reasoning of its lower courts and instead embraced the reasoning of the Eighth and Tenth Circuits and the district courts that had allowed non-settling PRPs to intervene.

The parties to Aerojet General did not dispute the timeliness of the motion to intervene, leaving the Ninth Circuit to wrestle with the remaining three elements required for intervention: 1) whether the applicants had a significantly protectable interest, 2) whether that interest would be impaired or impeded if the applicants were not allowed to intervene, and 3) whether the existing parties adequately represented the interests of the applicants for intervention.[54] The Ninth Circuit also addressed the argument that CERCLA Section 113(i) is ambiguous and that courts should therefore consult policy and legislative history in interpreting the statute.[55]

The following will analyze each of these issues and elements of intervention through the lens of Aerojet General, starting with the policy and legislative history arguments that have derailed some courts before they moved on to the elements of intervention. It will then turn to an analysis of the impairment of interests and adequacy of representation elements required for intervention. This Part will then address the most important and difficult element of intervention—the requirement of a significantly protectable interest—and explain that while the Ninth Circuit correctly decided that element in Aerojet General, the court’s reasoning suffers from the same imprecision that has characterized other courts looking at the issue.

1. The Relevant Facts of Aerojet General

Aerojet General arose from groundwater contaminated with volatile organic compounds  in the San Gabriel Basin in eastern Los Angeles County, California.[56] EPA placed the site on the National Priorities List in 1984 and subsequently divided it into eight separate operable units, among them the South El Monte Operable Unit (SEMOU) that was at the center of Aerojet General.[57] EPA sent PRP letters to sixty-seven PRPs pursuant to CERCLA Section 122(e).[58] After some of these PRPs entered into agreements with EPA or made good faith offers of settlement, EPA issued a unilateral administrative order pursuant to CERCLA Section 106(a).[59] Subsequent discovery by EPA of perchlorate contamination caused EPA to revise its remedial plan for SEMOU.[60] Ultimately, the remedial plan formulated by EPA would take thirty years to complete at a cost of $87 million.[61]

In the meantime, the water providers that were responsible for performing much of the remedial work had sued all the PRPs identified by EPA.[62] This meant that those PRPs had gained the right to sue other PRPs for contribution under CERCLA Section 113(f)(1),[63] and those PRPs exercised that right, filing suits and counterclaims against the PRPs that had settled with the water providers as well as the water providers themselves.[64] EPA subsequently settled their claims with ten of the PRPs that had already settled with the water providers and filed suit in the Central District of California, lodging a proposed consent decree with that court.[65] The non-settling PRPs availed themselves of their ability to comment on the proposed consent decree and also sought information from EPA pursuant to the Freedom of Information Act.[66] The non-settling PRPs then sought intervention, under Rule 24(a)(2) and CERCLA Section 113(i), in the action to approve the consent decree.[67] The district court denied their motion and entered the consent decree, and the non-settling PRPs appealed.[68]

2. Policy and Legislative History

a. Is the Statute Ambiguous?

There is a canon of statutory interpretation providing that courts should not look to the legislative history or policy of a statute unless it is necessary to interpret an ambiguity in the statute.[69] While it may seem odd that CERCLA Section 113(i) could be ambiguous even though it uses language so similar to Rule 24(a)(2)—a rule that courts have applied for decades—some courts have come to this conclusion. The court in United States v. Acorn Engineering Co.[70] stated that it “is nothing short of absurd” to assert that Section 113(i) is not ambiguous on its face.[71] The provision’s limitation of the intervention right to persons who have an interest relating to the litigation—which interest may be impaired or impeded by the disposition of the litigation—was beyond comprehension to that court.[72] On the other hand, the Tenth Circuit in United States v. Albert Investment Co.,[73] noted that the parties in that case could not identify what language, exactly, is ambiguous—the government had pointed only to the courts that have found such ambiguity as prima facie evidence that there was, in fact, ambiguity in the statute.[74] It concluded that “[t]he collective failure to identify the ambiguities in Section 113 makes resorting to legislative history problematic.”[75] The Acton court was even more terse, stating that “the statute’s terms are unambiguous” and “give[] the intervention rights to ‘any person’ who satisfies the section’s requirements.”[76]

b. Policy Arguments

Some courts that have found ambiguity in CERCLA Section 113(i) have determined that CERCLA’s policies dictate that non-settling PRPs have no right to intervene. In Arizona v. Motorola, Inc.,[77] the court relied primarily on policy grounds—citing CERCLA’s preference for early settlement and the incentives it gives to PRPs to settle their liability with the government—in rejecting the non-settling PRPs’ motion to intervene.[78] The court in United States v. Vasi[79] also embraced this theory that CERCLA should punish those PRPs who choose not to enter into a settlement and then seek intervention.[80] Allowing intervention by those PRPs risked “caus[ing] delays in implementation of the clean up of the hazardous waste site . . . effectively thwart[ing] the settlement process.”[81]

The Ninth Circuit agreed with the Acton and Albert Investment courts that there was no ambiguity in the statutes in question and therefore no reason to resort to legislative history and policy.[82] However, the court did indulge in some analysis of the policy underlying CERCLA.[83] Citing CERCLA Section 113(f)(1), the court noted the “countervailing policy arguments in favor of treating all PRPs fairly, an interest that is itself embodied in the statutory scheme.”[84] The incentive for PRPs to settle will remain even if intervention by non-settling PRPs is allowed, since entry of the consent decree will still cut off contribution claims, so CERCLA’s policy favoring early settlement is still served.[85]

Other courts have interpreted CERCLA’s policies as being consistent—or, at least, not inconsistent—with allowing intervention by non-settling PRPs. As noted in Albert Investment, the Supreme Court in Burlington Northern and Santa Fe Railway Co. v. United States recognized that CERCLA favors both “timely cleanup . . . [and] ensur[ing] that the costs of such cleanup efforts were borne by those responsible for the contamination.”[86] The second policy favors allowing intervention by non-settling PRPs in order to give them the opportunity to argue that the settling PRPs are not paying their fair share.[87] The court in United States v. ExxonMobil Corp.[88] posited that participation of the non-settling PRPs may “assist, not hinder, the [c]ourt in its obligation to analyze the fairness of the consent decree.”[89] The Eighth Circuit found in United States v. Union Electric Co.[90] that there is no inherent inconsistency in the fact that CERCLA Section 113(f)(2) provides an incentive to PRPs to settle early by cutting off the contribution rights of the non-settling PRPs granted by Section 113(f)(1), and the intervention right granted by Section 113(i) “provides for intervention to protect that and other interests of persons affected by the litigation.”[91]

c. Legislative History

Some courts that have found ambiguity in CERCLA Section 113(i) have resorted to the legislative history of CERCLA in finding that CERCLA Section 113(i) does not allow for intervention by non-settling PRPs. There is some support for this proposition in SARA’s legislative history. A House Report described CERCLA Section 113(i) as providing a right to intervene to those who “claim[] a direct public health or environmental interest in the subject of a judicial action allowed under” CERCLA.[92] Courts have also cited Representative Glickman’s statements that “[w]hen a motion to intervene is granted under [Section 113(i)], the intervenor shall only be able to raise issues relating to the selected remedy” and that Section 113(i) was not intended “to interfere with the rights of the United States to enter into settlements with [PRPs under CERCLA].”[93] These two statements from the legislative history alone were sufficient to move both the Vasi and Acorn Engineering courts to conclude that the legislative history supported the proposition that CERCLA Section 113(i) was not intended to allow non-settling PRPs to intervene.[94]

The court in Albert Investment examined the legislative history to see if it supported the contention that CERCLA Section 113(i) was intended to exclude PRPs from intervention.[95] While proponents of the legislative history argument point exclusively to the two statements above that support the proposition that Congress intended to exclude PRPs,[96] the Albert Investment court noted that there were “proposed versions of [SARA] which restricted Section 113(i) to persons claiming ‘a direct public health or environmental interest’” and that Congress did not pass that bill.[97] This language is the same as that used in the statement from the House Judiciary Report used to support the decision in Acorn Engineering and other cases,[98] which may have informed the ABC Industries court’s statement that “[i]n light of these ambiguities [in the legislative history], . . . the use of the legislative history [is] dubious.”[99] At any rate, Albert Investment is undoubtedly correct that “[t]he law that Congress passed does not contain the proposed limitation on intervention,” which may fairly lead to the conclusion “that Congress intended the broad intervention right that it created.”[100] Given that the language of CERCLA Section 113(i) does not reflect the only statements in the legislative history regarding CERCLA Section 113(i) and that Congress rejected a proposal that would have tracked those statements, the legislative history would seem to be a poor source of authority on which to base the conclusion that CERCLA Section 113(i) was intended to exclude non-settling PRPs.

3. Impairment of the PRP’s Interests

Once it had found that the non-settling PRPs seeking intervention had significantly protectable interests, it followed quite easily for the Ninth Circuit in Aerojet General that those interests would be impaired absent intervention.[101] The parties did not dispute that entry of the consent decree would reduce or even eliminate the value of the non-settling PRPs’ contribution claims.[102] The Ninth Circuit noted that the non-settling PRPs could be held jointly and severally liable for the remaining amount of the government’s response costs after entry of the consent decree, so entry of the consent decree could “affect the amount the non-settling PRPs ultimately have to pay.”[103]

Ninth Circuit precedent also establishes that an interest may not, as a practical matter, be impaired or impeded if the applicant for intervention has “other means” to protect those interests.[104] In Aerojet General, the Ninth Circuit found that the non-settling PRPs did not have other means to protect their interests.[105] Participation in the cases brought by the water providers was inadequate because it would not allow the non-settling PRPs to challenge the fairness of the settlement in the instant case.[106] The court also found that while the “[n]otice and comment procedures do provide non-settling PRPs some degree of protection against an unfair consent decree,” this protection is insufficient to constitute other means that would preclude a finding of impairment of interests absent intervention.[107] Citing the dynamics of settlement and the attendant convergence of the government’s and the settlers’ interests once settlement is reached, as well as the unlikelihood that the government would “abandon or substantially modify the proposed consent decree in response to [the non-settling PRPs’] comments at this stage of the process,” the court found that commenting alone would not be sufficient protection of the non-settling PRPs’ interests.[108]

CERCLA Section 122(d)(2) provides the avenue for anyone, including non-settling PRPs, to submit comments to the government, which must then provide those comments to the court.[109] Some courts have cited this fact as support for both the propositions that notice and comment were intended to be a substitute for intervention by non-settling PRPs and that the PRP’s interest in contribution would not, “as a practical matter, [be] impair[ed] or impede[d]” absent intervention.[110] To the court in Vasi, Congress’s inclusion of this provision for public participation indicated that Congress intended CERCLA Section 122(d)(2) to be the proper avenue for PRPs to voice their objections to a proposed consent decree.[111] The court in ABC Industries likewise thought that providing comments on a proposed consent decree adequately protected the interests of a non-settling PRP.[112] This argument was also embraced in Acorn Engineering, where the court said that if CERCLA Section 122(d)(2) was not included, it might be a different matter, but the inclusion of 122(d)(2) “render[s] the alleged right to intervention unwarranted and misplaced.”[113]

As the Albert Investment court noted, though, CERCLA Section 122(d)(2) leaves both the government and the judge free to ignore the comments.[114] The Ninth Circuit echoed this concern in Aerojet General.[115] The court in Albert Investment noted that intervention, on the other hand, allows the intervenor to appeal the decision of the district court, and the appellate court may review a court’s “failure to consider adequately an intervenor’s objections.”[116] And the conclusion reached in Albert Investment and Aerojet General as to notice and comment seems to comport best with notions of fairness. Notice and comment is available to anyone, whether they have an interest in the site or not. Could it fairly be said that a process that weighs the comments of a PRP facing millions of dollars in potential liability the same as a private individual with absolutely no connection to the site adequately protects the interests of the former? While some courts have been willing to answer “yes,” fairness and logic seem to be on the side of those courts that answered “no.”

4. Adequacy of Representation

Though the parties to the consent decree did not attempt to argue that they adequately represented the interests of the non-settling PRPs, the Ninth Circuit nonetheless engaged in analysis of the issue.[117] The court noted that the burden of proof shifts from the applicant—to prove inadequacy of representation by the existing parties—under Rule 24(a)(2) to the government—to prove the adequacy of representation by the existing parties—under CERCLA Section 113(i).[118] But, citing again to the dynamics of settlement, the court concluded that “[u]nder either standard . . . the interests of the non-settling PRPs are not adequately represented by existing parties.”[119]

5. The Significantly Protectable Interest(s)

The Ninth Circuit agreed with its sister circuits, the Eighth and Tenth, that the non-settling PRPs had a significantly protectable interest in their contribution claims against the settling PRPs. The court rejected the argument that the contribution interest is “contingent or speculative,” noting that the contribution claim arises during litigation under CERCLA Section 107 and is vested in any “‘liable or potentially liable’ person.”[120] The Ninth Circuit also went beyond its sister circuits—indeed, beyond any court surveyed here—in finding that the non-settling PRPs also had a significantly protectable interest in ensuring that the amount paid by the settling PRPs was as large as possible.

Citing CERCLA Section 122(h)(4),[121] the court found that “because non-settling PRPs may be held liable for the entire amount of response costs minus the amount paid in a settlement, [the non-settling PRPs] have an obvious interest in the amount of any judicially-approved settlement.”[122] The Ninth Circuit characterized this interest as an interest “in a fair and reasonable allocation of liability” that is “‘protected under some law.’”[123] While the Ninth Circuit characterized the interest in a fair allocation of response costs as being a separate interest, that interest and the interest in contribution are perhaps best understood as being two sides of the same coin. The interest in arriving at an equitable allocation of response costs in the consent decree is only a significant interest because the consent decree will cut off the non-settling PRP’s ability to seek such an equitable allocation through a subsequent contribution action against the settlers. In essence, the interest in an equitable allocation of costs is really just an interest in ensuring that the settlers pay the fair value of the contribution protection they will receive. To the Ninth Circuit, the PRPs’ interests in both their future contribution claim and the equitable allocation of response costs bear a relationship to the claims in the suit in which the PRPs were trying to intervene since the resolution of that suit would directly affect them.[124] Therefore each of these interests is a significantly protectable interest sufficient for intervention under both Rule 24(a)(2) and CERCLA Section 113(i).[125]

a. PRP’s Contribution Interest Not So Contingent as Not to Be Significantly Protectable

The court in Aerojet General cited two other courts that have found that CERCLA Section 113(f)(1) “creates only a contingent or speculative interest in non-settling PRPs” that “is therefore not significantly protectable.”[126] In Vasi, the court determined that the moving PRP’s “potential right to contribution does not constitute a direct, substantial, legally protectable interest” but rather only “a remote economic interest which has been found insufficient to support intervention under Rule 24(a)(2).”[127] The court went on to explain that since the PRP applying for intervention had not been established to be a responsible party, and since the defendants in the action had also not been established as responsible parties, the moving PRP’s “right to contribution is at present a contingency, and is not something which it owns.”[128] The court in Arizona v. Motorola opined that the non-settling PRPs did not have a significantly protectable interest that would allow intervention, dismissing their interest as “a remote economic” one.[129] That court also found that the interest was not one recognized by substantive law, being “at most a contingency” and “not something which [the applicants] own[].”[130] The argument that a non-settling PRP’s interest in a contribution claim is “contingent” and “merely economic” rather than one that is direct, significant, and legally protectable draws heavily on the Fifth Circuit’s decision in NOPSI.[131]

The Ninth Circuit disagreed with the Vasi and Motorola courts and sided instead with the Union Electric court, finding that the interest in a contribution claim is not too “contingent” to be a significantly protectable one.[132] The Ninth Circuit states that “[a]lthough only parties found liable can be made to pay a contribution claim, the statute explicitly provides an interest in such a claim to any ‘liable or potentially liable’ person.”[133] The court goes on to make the critical point that “the statute provides that the interest arises during or following a civil action under [sections] 106 or 107 of CERCLA.”[134] Here, the court hinted at what will be shown in this article to be the critical point—that the interest in a contribution claim only becomes a significantly protectable interest once a PRP has been sued or settled its liability with the government.[135] Unfortunately, the Ninth Circuit finishes the thought with the proposition that “under the statute, a non-settling PRP need not have first been found liable in order for the contribution interest to arise.”[136] This statement is imprecise. While it is certainly true that a non-settling PRP’s contribution claim is not dependent on being found liable, it is dependent on the PRP being sued or settling its liability with the government.

b. PRP’s Contribution Interest Is Statutory and Protected by Law

Another argument that draws heavily on NOPSI is that a non-settling PRP’s interest in a contribution claim is not “something more than an economic interest” and is not “one which the substantive law recognizes as belonging to or being owned by the applicant.”[137] For instance, the court in Acorn Engineering held that “a non-settling PRP’s contribution interest is not only unrecognized by the substantive law, but is also expressly prohibited by the substantive law, namely, by [S]ection 113(f)(2).”[138] In other words, since CERCLA Section 113(f)(2) cuts off the PRP’s contribution claim after entry of the consent decree, that provision means that the PRP’s right to a contribution claim is “merely economic, rather than statutory.”[139]

The Ninth Circuit rejected this line of reasoning as well, noting that CERCLA itself provides the right to contribution and therefore the right is “protected under some law” as required for intervention.[140] In doing so, the Ninth Circuit joined the courts that have found that CERCLA Section 113(f)(1)’s grant of a right to a contribution claim means that the contribution claim is one that is recognized by law as belonging to the applicant.[141] Albert Investment noted that the PRP applying for intervention in that case “seeks to protect a substantive right that currently exists: the statutory right to seek contribution from the settling defendants.”[142] Union Electric stated what should be obvious, that “[t]he non-settling PRPs’ interest [in contribution] was created by provisions of the precise statute under which the litigation was brought” and “is directly related to the subject matter of the litigation, because it may be asserted ‘during or following’ that litigation, and arises from the liability or potential liability of persons as the result of that litigation.”[143]

The Acorn court’s reasoning also fails to recognize that CERCLA Section 113(f)(2) not only provides that a contribution claim will cease to be recognized and protected by the substantive law, but it provides when the contribution claim will cease to be recognized and protected by the substantive law. CERCLA Section 113(f)(2) states: “A person who has resolved its liability . . . [to the government in a] judicially approved settlement shall not be liable for claims for contribution.”[144] If the past tense in this provision means anything, it must mean that the contribution claims are cut off after the court enters the consent decree, i.e., when the settlement has been “judicially approved.” The rationale of the Acorn court would seem to suggest that contribution claims are not recognized or protected by the law once the consent decree has been lodged, not when it is entered. As the Acton court states, “the fact that [the non-settling PRPs] may later lose their right of contribution against the settling defendants once the consent decree has been approved does not make the right contingent at present.”[145] A good comparison might be statutes of limitation. While a statute of limitation may, in the future, bar a particular claim, that does not mean that that claim is not presently recognized by or protected under the law.

B. Do Non-Settling PRPs Have a Significantly Protectable Interest?

As discussed above, courts have come to differing conclusions as to whether a non-settling PRP has a significantly protectable interest in a contribution claim at stake in litigation seeking entry of a consent decree between other PRPs and the government. In order to answer the question of whether a non-settling PRP has a significantly protectable interest in a contribution claim, it is important to define that interest properly and to establish precisely when that interest arises. Some courts have failed to do so, and that failure skews their analysis. According to CERCLA Section 113(f)(1), a PRP has a right to a claim for contribution “during or following any civil action under” CERCLA Sections 106 or 107(a).[146] According to CERCLA Section 113(f)(3)(B), a party that has settled its liability with the government “in an administrative or judicially approved settlement” may also seek contribution from other PRPs.[147] So the PRP’s right to a contribution claim arises once that PRP has been sued or has entered into a settlement with the government that has received a judicial imprimatur.[148] If the government and other PRPs enter into a settlement that is then approved by a court in a consent decree, then the PRP’s contribution claim will be barred by operation of CERCLA Section 113(f)(2).[149] However, if a PRP is forced to incur response costs itself, for instance because EPA has issued to that PRP a unilateral administrative order under CERCLA Section 106(a), then the PRP does not have a contribution claim but rather a remedy that sounds in a CERCLA Section 107(a) cost recovery action.[150] A PRP’s CERCLA Section 107 cost recovery action is not barred by CERCLA Section 113(f)(2), and therefore the entry of a consent decree between the government and a settling PRP will not affect that cost recovery action.[151]

Therefore, there are at least three scenarios in which a non-settling PRP may find itself. The first scenario is when the PRP has been sued or has entered into an administrative or judicially approved settlement with the government. The second scenario is that it has complied with an administrative order or otherwise incurred response costs directly. The third scenario is that EPA or a state agency has issued it a notice identifying it as a PRP, but no further action against the PRP has been taken, or the PRP otherwise has reason to believe that it may be responsible for contamination at a facility, for instance because it was a former owner or operator of the facility or because it generated or transported hazardous substances found at the facility. Whether or not a non-settling PRP has a significantly protectable interest in the possible entry of a consent decree that would bar future contribution claims would seem to depend on which scenario contains the PRP.

1. The Contribution Interest of a PRP that Has Been Sued Is Significantly Protectable

The first scenario, in which the PRP has been sued for cost recovery under CERCLA Section 107(a) or has settled with the government in an administrative or judicially approved settlement, is the easiest to address—the PRP in that scenario certainly has a significantly protectable interest at stake in the entry of the consent decree. In this situation, the PRP has a currently vested right to a contribution claim, an interest that is protected under the law and has a direct relationship between it and the suit in which the government and the settling PRPs are seeking entry of a consent decree[152] that would eliminate that right of contribution.[153] The interest is “direct,” “substantial” and “legally protectable,” more than a mere economic interest but rather “one which the substantive law recognizes as belonging to or being owned by the applicant.”[154] As the court in Acton noted, while the PRP’s ability to collect anything from that contribution claim is contingent on many other factors, “none of these ‘contingencies’ go to the existence of the right itself.”[155] Thus, once a PRP has been sued or has settled with the government, it has a significantly protectable interest in a contribution claim.

The courts in Acton, Aerojet, and Albert Investment were all faced with PRPs that had been sued,[156] and each of those courts correctly determined that the non-settling PRPs had a significantly protectable interest in the litigation. In Arizona v. Motorola, the non-settling PRPs were also parties in the related suit, yet the court erroneously determined that the non-settling PRPs’ currently vested right to contribution claims against the settling PRP was a “remote economic interest that [was] insufficient to support intervention.”[157] In ABC Industries, the non-settling PRPs seeking intervention not only had a currently vested right to contribution claims, but also were actively pursuing those claims against the settling PRPs.[158] While noting that the non-settling PRPs’ contribution claims “do not appear contingent or speculative,” the court nonetheless concluded that they were not significantly protectable.[159] The PRP seeking intervention in Browning-Ferris[160] had already settled its liability with the United States through a consent decree in a prior action,[161] so it had a currently vested right to seek contribution under CERCLA Section 113(f)(3)(B).[162] Yet the court in that case found that the PRP seeking intervention did not have a significantly protectable interest in the litigation.[163]

In Alcan Aluminum, the Third Circuit addressed a motion to intervene made by the representative of a group of PRPs that had already settled with the government in a previous consent decree (the Air Products defendants).[164] The government then sought entry of a consent decree with another group of PRPs as to the same facility (the Alcan defendants).[165] The Air Products defendants objected to the entry of the consent decree between the Alcan defendants and the government because, pursuant to CERCLA Section 113(f)(2), entry of the consent decree would eliminate the Air Products defendants’ right to seek contribution from the Alcan defendants for sums paid by the Air Products defendants to the government.[166] The court recognized that the courts in Motorola and Vasi determined that the proposed intervenors in those cases did not have a significantly protectable legal interest to support intervention but noted that those cases did not deal with PRPs that had already settled.[167] In those cases where the PRP had not already settled, the Alcan court opined, “courts have properly found the interest of non-settlor applicants to be merely contingent.”[168]

The Third Circuit distinguished the interest of a non-settling PRP from that of a PRP that has already settled. The non-settling PRP’s interest is contingent in the sense that the PRP has not already been found liable, “it is unclear what, if any, liability it will have,” and “any contribution right it might have depends on the outcome of some future dispute in which the [non-settling PRP] may, or may not, be assigned a portion of liability.”[169] In contrast, a PRP that has already settled has an interest in contribution that “is contingent only in the sense that it cannot be valued.”[170] For the Third Circuit, it is “[t]he act of settling [that] transforms a PRP’s contribution right from a contingency to a mature, legally protectable interest.”[171] Here, the Third Circuit was correct because “the act of settling” does in fact create a right to contribution under CERCLA Section 113(f)(3)(B),[172] and therefore once a PRP has settled with the government, it has a significantly protectable interest in a contribution claim. However, the Third Circuit’s dicta as to earlier cases belies any notion that the Third Circuit fully grasped the precise point at which CERCLA Section 113(f)(1) creates a significantly protectable interest in a contribution claim—being sued “transforms a PRP’s contribution right from a contingency to a mature, legally protectable interest” just as surely as does the “act of settling.”[173]

This conclusion is further buttressed by the irrebuttable presumption of consistency with the National Contingency Plan (NCP) that arises upon entry of a consent decree between the federal government and settling PRPs. CERCLA Section 107(a)(4)(A) provides that a PRP may be liable to the federal government for “all costs of removal or remedial action incurred by the United States Government . . . not inconsistent with the national contingency plan.”[174] To state the negative, a PRP is not liable for costs incurred by the federal government that are inconsistent with the NCP. Therefore, since the PRP would not be liable for costs incurred that were inconsistent with the NCP, the resolution of the issue of whether the response costs incurred by the government were consistent with the NCP could have a potentially significant effect on the amount that a PRP may later be forced to pay the federal government. According to a regulation promulgated by EPA and incorporated into the NCP, “[a]ny response action carried out in compliance with the terms of . . . a consent decree entered into pursuant to [S]ection 122 of CERCLA[] will be considered ‘consistent with the NCP.’”[175] In other words, once a court has entered a consent decree between the federal government and a PRP, the response action embodied in that consent decree is presumptively consistent with the NCP. According to courts that have applied this regulation, the regulation creates “an irrebuttable presumption that actions taken pursuant to the terms of an EPA consent decree are consistent with the [NCP].”[176] This means that the only opportunity that a non-settling PRP will ever have to challenge the remedial plan’s consistency with the NCP is when the district court considers the consent decree between the federal government and the settling PRPs. It is striking that not one of the cases surveyed herein addresses the irrebuttable presumption of consistency with the NCP and its effects on the non-settling PRP.

2. A PRP that Has Incurred Response Costs Does Not Have a Significantly Protectable Interest

The second scenario, where the PRP has incurred response costs and therefore has a right to pursue cost recovery under CERCLA Section 107(a), is also easily addressed—the PRP does not have a significantly protectable interest in a contribution claim at stake in the litigation in which the government and settling PRPs are seeking entry of a consent decree. In this scenario, the PRP still has a legally protectable interest—the statutory right to seek cost recovery from the settling PRPs. This interest, though, is not related to the outcome of the litigation between the government and the settling PRPs in any meaningful way, and even if it were so related, the non-settling PRP’s interest will not be impaired or impeded by the entry of the consent decree. The PRP that has incurred response costs will have a remedy that sounds in a CERCLA Section 107(a) cost recovery action. The entry of a consent decree between the government and the settling PRPs cuts off only a PRP’s right to a contribution claim under CERCLA Section 113(f)(1) or 113(f)(3)(B).[177] The entry of the consent decree will not eliminate or otherwise affect the rights of a PRP that has incurred costs and thereafter seeks cost recovery, and that PRP does not have a significantly protectable interest in the litigation.

The non-settling PRP seeking intervention in City of Glen Cove[178] expended millions of dollars in response costs pursuant to a unilateral administrative order issued by EPA.[179] However, the case occurred at a time when all Circuits of the federal court system were operating under the erroneous belief that a PRP’s claim, whether for contribution or cost recovery, would sound in CERCLA Section 113(f)(1) and therefore would be cut off by entry of the consent decree pursuant to CERCLA Section 113(f)(2).[180] Given this assumption, the court found in Glen Cove that the non-settling PRP had a significantly protectable interest,[181] but the proper outcome in the post Cooper / Atlantic Research world would be to find that the non-settling PRP did not have a significantly protectable interest in a contribution claim, since its CERCLA Section 107(a) claims against the settling PRPs would be unaffected by entry of the consent decree.

3. A PRP that Has Not Incurred Response Costs or Been Sued Has No Significantly Protectable Interest

The final scenario—where the PRP has not been sued, has not settled with the government, and has not incurred response costs recoverable under CERCLA Section 107(a)—is a more difficult question. The PRP in this scenario has no currently vested contribution right under CERCLA Section 113(f)(1).[182] Whatever interest the PRP may have in a future contribution claim is not one that “the substantive law recognizes as belonging to or being owned by the applicant.”[183] So the PRP in this scenario does not have a significantly protectable interest in a contribution claim, and therefore may not intervene of right under CERCLA Section 113(i) or Rule 24(a)(2). This was the situation in which the non-settling PRPs in Union Electric found themselves. They were among 735 PRPs identified by EPA, but EPA had not yet filed suit against them.[184] In United States v. ExxonMobil Corporation, the non-settling PRPs had likewise not been sued or entered into a settlement.[185] Both the Union Electric and the ExxonMobil courts determined incorrectly that the PRPs seeking intervention had a significantly protectable interest despite the fact that the PRPs had not been sued and therefore had no vested right to a contribution claim.

4. Significantly Protectable Interests: Questions from Conclusions

The preceding sought to answer the question of whether and when a PRP has a significantly protectable interest in litigation between the government and settling PRPs where a consent decree is sought. The answer at which it arrived was that a PRP only has a significantly protectable interest in a contribution claim after the PRP has been sued or has settled its liability to the government. But is this answer satisfactory? Are the courts to say to a deep-pocketed PRP that has made a major contribution to the contamination at a site that it has no significantly protectable interest, even though that PRP in all likelihood will eventually be sued by someone? Meanwhile, should the de minimis PRP that has already settled have carte blanche to intervene in any future action between the government and settling PRPs? Should the courts really determine whether a PRP has a significantly protectable interest based solely on whether the government or another PRP chooses to sue that PRP the day before or the day after a consent decree is entered? It would seem, then, that a universal rule, while satisfyingly easy to apply, will be incapable of equitably addressing the widely varying fact patterns in which it will be applied in individual cases.

United States v. ExxonMobil Corporation presents a good example of when the rules stated above would work injustice on the non-settling PRPs. In that case, EPA identified three parties potentially responsible for contamination at a site straddling a river, with ExxonMobil being the owner of the site on one side of the river and the two other PRPs being identified as a generator of hazardous substances at and the owner of the property on the other side.[186] EPA entered into a settlement with ExxonMobil whereby ExxonMobil would contribute $3 million of the approximately $24 million in response costs.[187] EPA then sued ExxonMobil and lodged the consent decree, but did not sue the other two PRPs that it had identified and that would likely have to shoulder the remaining $21 million in response costs.[188] The PRPs sought intervention to oppose the consent decree on the grounds that it “unreasonably underestimates Exxon’s liability.”[189] The court granted the PRPs’ motions to intervene “for the limited purpose of challenging the proposed consent decree.”[190]

Since the PRPs seeking intervention in ExxonMobil had not been sued, they did not have a significantly protectable interest in a contribution claim. But given that there were only three PRPs identified for the site and that EPA was settling one of them out and leaving $21 million on the table, could there really be any doubt that at some point the remaining two PRPs would be sued? And once those PRPs were sued, they would have no recourse against ExxonMobil.[191] Furthermore, the irrebuttable presumption of consistency with the NCP would operate to deny those parties from defending themselves on the ground that the costs incurred were inconsistent with the NCP. Would denying the motion to intervene of the remaining PRPs have been just? Perhaps this is what the ExxonMobil court was getting at when it said that “[t]he arguments [of the non-settling PRPs] . . . will assist, not hinder, the [c]ourt in its obligation to analyze the fairness of the consent decree.”[192]

III. Conclusion

This Chapter has examined the existing case law regarding the specific issue of non-settling PRPs intervening in litigation to oppose entry of consent decrees between the government and settling PRPs, focusing on whether a non-settling PRP has a significantly protectable interest in a contribution claim. It arrived at the conclusion that under the “direct, substantial, and legally protectable” formulation of the significantly protectable interest, an interest in a contribution claim is only significantly protectable when the PRP applying for intervention has been sued or has settled its liability to the government. While there clearly are equitable arguments to be made that at least some non-settling PRPs—like those in ExxonMobil—should be allowed to intervene, an applicant for intervention of right under Rule 24(a)(2) and CERCLA 113(i) does not have a significantly protectable interest sufficient for intervention of right until its contribution claim becomes something that the law recognizes as belonging to the PRP. CERCLA does not supplant the Federal Rules of Civil Procedure. To the extent that it would be unfair to exclude certain non-settling PRPs from consideration of a consent decree, fairness could be served by allowing permissive intervention under Rule 24(b)(2) or participation as an amicus curiae. The primary purpose of this Chapter has been to identify a principled manner of defining a PRP’s interest in a contribution claim and determining whether it is a significantly protectable one sufficient for intervention of right. The hope is that this analysis may help guide courts to more consistent outcomes in future cases.

The Clean Development Mechanism and the Poverty Issue

By

Marie Blévin*

The Clean Development Mechanism (CDM) is one of the flexible mechanisms set forth by the Kyoto Protocol. The mechanism is designed to help Annex 1 Countries meet their greenhouse gas emissions reduction commitment by implementing a project in a Non-Annex 1 Country hosting the project, a project that must also enhance sustainable development in the host country. While there is no formal definition of sustainable development, one aspect of it is poverty eradication. The UNFCCC has recognized that climate change and poverty are linked. Because the CDM is the only mechanism involving developing countries, this Article analyzes the impacts of this mechanism on poverty alleviation. The first Part of the Article focuses on the current system and its failure as it relates to poverty eradication; neither the poorest countries nor the most vulnerable populations benefit from the CDM projects. The second Part of this Article focuses on possible modifications of the CDM to better address poverty, analyzes the financial schemes imagined or implemented to supplement the CDM, comes to the conclusion that the CDM is probably not an adequate solution to poverty eradication, and advocates for a new financial system to supersede the current mechanism. (This Article was written before the Cancún Summit on Climate Change.)

I. Introduction

The Clean Development Mechanism (CDM) was introduced late in the Kyoto negotiations, and was in fact referred to as the ‘Kyoto Surprise.’[1] It is one of the three market-based mechanisms created by the Kyoto Protocol in 1997 to contribute to reducing emissions of greenhouse gases (GHGs), and the only one involving developing countries.[2] Defined at Article 12 of the Kyoto Protocol, the objective of the CDM “shall be to assist Parties not included in Annex I in achieving sustainable development and in contributing to the ultimate objective of the Convention, and to assist Parties included in Annex I in achieving compliance with their quantified emission limitation and reduction commitments under Article 3.”[3] A CDM project must be approved by the host country and the investor country’s Designated National Authorities (DNA),[4] and registered with the Executive Board (EB)[5] established by the United Nations Framework Convention on Climate Change (UNFCCC).[6] The CDM project helps reduce GHG emissions in the host country by enabling the developed country to meet its obligation through this flexible means and by allowing the creation of Certified Emissions Reductions (CERs), which are carbon credits that can be sold and traded on the developed countries’ carbon markets.[7] The registration of the project and the issuance of CERs are overseen by the EB, with the objective of “ensuring [CDM] environmental integrity.”[8]

The two main goals of this mechanism are one, to help Annex I Countries meet their GHG emissions reduction objective, and two, to promote sustainable development in the Non-Annex I Countries where the projects are implemented.[9] Non-Annex I Countries range from fast growing economies—Brazil, China, India—to Least Developed Countries (LDCs) and Small Island Developing States (SIDS) with weaker economies and infrastructure.[10] The CDM is thus seen as a tool to limit climate change effects and to improve the situation in the developing countries, through capacity building, infrastructure, and technology transfer.[11]

Eradication of extreme poverty and hunger is the first goal set by the United Nations members as part of the Millennium Development Goals.[12] A way to achieve that goal is to “[s]upport research and development in yield-enhancing agricultural and climate change technologies.”[13] The Conference of the Parties acknowledged the link between climate change, sustainable development, and poverty eradication in 2002 in the Delhi Ministerial Declaration on Climate Change and Sustainable Development, in which the Conference called for “energy policies [that] are supportive to developing countries’ efforts to eradicate poverty.”[14] The United Nations Development Programme (UNDP) also recognized that theoretically, the CDM could be used as a tool to alleviate poverty.[15] Investors bring finance and technology to developing countries, allowing efficient and innovative measures to enhance the quality of life of the population, while reducing GHG emissions in that country.[16]

Out of the two goals of the CDM, the current system primarily focuses on the first objective, GHG emissions reduction, without realizing the possibilities for poverty eradication. This is favored by the fact that the host country alone, through its DNA, can assess whether the project achieves sustainable development.[17] Host countries have therefore no specific incentives to accept projects with a greater effect on sustainable development over projects carrying a high reduction of GHGs, but with an insignificant impact on sustainable development and poverty alleviation. A study conducted in 2007 about the CDM and sustainable development concluded that “left to market forces, the CDM does not significantly contribute to sustainable development.”[18]

The first CDM project was registered in 2005,[19] and since then, more than 5,600 projects have been carried out, registered, or are currently in the pipeline.[20] The success of this new mechanism is obvious; it has attracted investors in many developing countries and has helped transfer to Non-Annex I Countries the technology needed to reduce GHG emissions.[21] However, questions remain. What has been, and currently is, the impact of the CDM on the poverty issue? Do the CDM projects foster sustainable development and improve standards of living in the host countries, in terms of quality of air, water, and access to natural resources or employment? How do impoverished populations really benefit from the CDM project revenue? A 2007 review of the first sixteen registered CDM projects found that less than one percent of the GHG reductions achieved through these projects had a significant impact on sustainable development.[22] An Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol, in preparation of documents for further negotiations post-Copenhagen, sought to promote co-benefits of the CDM projects and explicitly stated that one of these co-benefits should be “poverty eradication.”[23] Climate change related mechanisms could play an important role to alleviate poverty, but so far, the poverty eradication goal has been left aside.

In the first Part of the analysis, this Article establishes that the implementation of CDM projects has been inadequate. The Article points to the reasons that limit a more effective implementation of the CDM in poor countries, especially the LDCs, SIDS, and Africa. The second Part summarizes and assesses the proposals made by different states and organizations to better implement the CDMs, as well as envisions other solutions that would better address the poverty issue.

II. The CDM and the Poverty Issue: A Failure?

The CDM was created to benefit both developed and developing countries. It enables all Non-Annex I Countries to host a CDM project and benefit from its revenue.[24] Unfortunately, only a few countries have benefited from the CDM.[25] First, this leads to questions of the effectiveness of the CDM on eradicating poverty in the poorest countries. Second, it raises questions about whether in fast growing developing countries or in the most vulnerable countries, the CDM projects truly benefit the poorest populations and help enhance their lives, which is likely the core issue to evaluate.

A. CDM and the Poorest Countries

1. The Unbalanced Distribution of the CDM Projects: Major Host Countries

The inequity in the regional distribution of the CDM projects is a recognized fact: one of the mandates of the EB is indeed to report to the Conference of the Parties serving as the Meeting of the Parties (COP/MOP) about the geographical distribution of the CDM project activities, identifying the barriers to a more equitable distribution.[26] To understand the repartition of the CDM projects worldwide, Table 1 below shows the evolution, from 2004 to 2009, of the CDM projects in the pipeline in the biggest four host countries: Brazil, China, India, and Mexico.

Table 1: Evolution of CDM projects in the pipeline in Brazil, China, India, and Mexico as a fraction of all the projects, from January 2004 to March 2009.[27]

The implementation of the CDM projects reveals an unequal focus on some countries. As of 2004, as indicated in Table 1, Mexico, India, China, and Brazil represented about 50% of the CDM projects in the pipeline.[28] Except for a decrease in 2004–2005, the number of CDM projects in the pipeline in these host countries has been constant and fluctuates between 65% and 85% of all projects.[29] Concerning the registered projects, as of March 2010 Brazil, South Africa, India, China, and Mexico account for about three quarters of all projects,[30] while other African countries account for less than 2% of the aggregate number of registered projects, with thirty-eight projects as of the beginning of 2010.[31] This data demonstrates that the CDM projects, whether already registered or still in the pipeline, are principally implemented in a small number of countries. The distribution of the CDM projects is therefore clearly unequal, with these five countries hosting more than 2,250 projects.[32]

According to a list published by the World Bank, in 2010 China’s Gross Domestic Product (GDP) ranks second worldwide, Brazil ranks seventh, India ninth, Mexico thirteenth, and South Africa twenty-eighth.[33] The majority of CDM projects are therefore implemented in countries with a high GDP, whereas only a quarter of these projects are distributed among the rest of the Non-Annex I Countries.[34] A high GDP does not necessarily mean that the population of the country does not live in poverty. For example, India’s GDP ranks ninth worldwide,[35] yet more than 40% of its population lives on less than one U.S. dollar per day.[36]

However, the link between a high GDP and a high number of CDM projects must be noted. Investments are mainly made in countries with a high GDP and fast growing economies.

2. The CDM Projects in the Least Developed Countries, Small Island Developing States, and Africa

The LDCs is a category of countries designated by the United Nations.[37] Whether a country falls within the category is determined by three criteria: 1) low per capita income, 2) weak human assets, and 3) economic vulnerability.[38] With regards to climate change, the LDCs are considered the most vulnerable and the least able to adapt to the various effects of global warming.[39] Special attention is given to the LDCs in the UNFCCC in Article 4.9, which states: “The Parties shall take full account of the specific needs and special situations of the [LDCs] in their actions with regard to funding and transfer of technology.”[40] However, the text of the Kyoto Protocol does not refer explicitly to the LDCs. As shown in Table 1, the CDM projects are not particularly focused on the LDCs.[41] Should it therefore be concluded that, while the UNFCCC calls for the effects of global warming on the most vulnerable countries to be taken into account, the Kyoto Protocol CDM’s main focus is not necessarily the development of the poorest countries? Have sustainability improvement and poverty alleviation in the poorest countries been forgotten in the implementation of the CDM?

The EB has recognized the inequitable distribution of CDM projects. In 2006, it requested the Parties to submit their observations relating to the systemic barriers to an equitable distribution of CDM project activities.[42] All submissions acknowledged the barriers, and two of the primary reported obstacles were “a need for increased financial resources to assist in building requisite capacity and [] innovative means of project financing/risk management.”[43] The Nairobi Framework was launched in 2006 to address this issue.[44] It is designed to promote CDM projects in the poorest countries, with a particular focus on African countries, and to enhance the geographical distribution of the projects.[45] The Nairobi Framework strives to “[b]uild capacity in developing CDM project activities[,] [b]uild and enhance capacity of CDM [DNAs] to become fully operational[,] [p]romote investment opportunities for projects[, and] [i]mprove information sharing[,] outreach[,] exchange of views on activities[,] education[,] [] training[, and] [i]nter-agency coordination.”[46] While this framework is a good step towards improving the geographical distribution of the projects, and though data show that progress has been made,[47] two issues remain. First, the improvement did not reach a truly balanced geographical distribution because Africa, the LDCs, and the SIDS are still underrepresented in the CDM projects. Second, the attempt of the Conference of the Parties to bring more equity into this mechanism does not necessarily address the poverty issue. It is obvious that as more projects are implemented in the most vulnerable countries, more investments and development will result. It is, however, not clear how to best ensure that these investments and technologies benefit the poorest populations.

B. CDM and the Poorest Populations

1. Scope of the CDM: The Poverty Eradication Objective Is Not Taken into Account

Even when CDM projects are implemented in a small number of countries, and not in the most vulnerable, do they meet their objective of sustainable development and poverty alleviation? The World Resources Institute conducted a review of potential projects in China, India, and Brazil, just after the Kyoto Protocol was signed, to assess the benefits of the CDM projects with regards to sustainable development and poverty eradication.[48] According to this study, the long-term benefits of the projects can promote sustainable development;[49] however, on a short-term basis, projects may not necessarily effect employment increases, at least not locally. Indeed, some people will be removed from their land in order to implement certain projects.[50] Moreover, the sustainable development benefits of the CDM projects are often incidental, and not a main objective: “Without careful assessment of the noncarbon attributes, there is a danger that the CDM will become little more than a cost-reduction tool for developed countries legitimized by incidental secondary benefits that may or may not be consistent with developing country priorities.”[51]

Though these projects are implemented in fast growing economies, some of these countries still face extreme poverty.[52] To determine the impact of such projects, the subsequent analysis will focus on the situation of the second largest emitter within the Non Annex I Countries that have ratified the Kyoto Protocol, India.[53] In 2009, India enjoyed a 9% increase in economic growth,[54] but still more than 40% of its population remains below the poverty line.[55]

2. Case Study: CDM Projects in India

The following analysis is based on the 300 most recent CDM projects implemented in India.[56] Out of the twenty-eight states of India and seven union territories,[57] CDM projects are implemented in only twenty-three states and two territories.[58] Out of the regions that host at least one CDM project, the figures shed light on the fact that projects are concentrated in seven regions, namely Rajasthan, Gujarat, Karnataka, Maharashtra, Andra Pradesh, Uttar Pradesh, and Tamil Nadu.[59] These regions account for over 60% of the projects, as indicated in Table 2.[60] It is therefore obvious that the CDM projects in India are implemented only in a small part of the country and that most parts of the country are completely ignored.

Table 2: Number of CDM Projects in India by Region[61]

The comparison of CDM project implementation to the GDP of each Indian state establishes a link between the implementation of the CDM and the higher economy of these regions.[62] On the other side, when we look at the poverty rate and take the five states with the highest percentage of its population living under the poverty line—the five states being Bihar, Jharkhand, Madhya Pradesh, Orissa, and Uttarakhand—between 38.3% and 46.4% of the population lived under the national poverty line from 2004 to 2005[63]—less than 10% of the total number of projects have been implemented in these states.[64]

The data therefore establishes a clear link between the percentage of people living in poverty and the CDM implementation. The states that receive the most CDM projects, investments, and co-benefits, are the states where income per capita and GDP are generally higher than average.[65] The poorest regions receive few, if any, CDM projects.[66] This illustrates how CDM projects can be unequally distributed within a host country.

If the focus is put on the most recent thirty projects implemented, the trends seem similar: twenty-two projects were registered in the five main host regions—more than 73%—and twelve regions host at least one CDM project.[67] Not only are the CDM projects unequally distributed among developing countries, but the data also illustrates the unequal distribution of the CDM projects among people. This comprehensive—though admittedly not exhaustive—review of the CDM projects reveals that the Kyoto mechanism’s goal of promoting sustainable development and reducing poverty fails to reach the world’s poorest populations.

3. The Institutional Limits Causing the Inefficiency of the CDM Projects Regarding the Poverty Alleviation Objective

a. The Absence of Control and Oversight of the Executive Board over the Relevance of the Project Regarding Sustainable Development and Poverty

Nowhere in the Kyoto Protocol does a definition of the sustainable development concept exist. A commonly agreed upon definition was rejected during the Kyoto negotiations by the developing countries,[68] making the host country responsible for determining whether a project meets the criterion of sustainable development. According to the Bonn Declaration, the Parties agreed “[t]o affirm that it is the host Party’s prerogative to confirm whether a [CDM] project activity assists it in achieving sustainable development.”[69] This prerogative can be the best tool to achieve sustainable development and poverty alleviation.[70] However, it also has the potential to have the most perverse effects—scholars agree on the fact that the determination by the host country “will create the incentive for non-annex 1 countries to set very low sustainable development criteria in order to attract foreign investments [and that] these incentives could lead to a race to the bottom, while the sustainable development objective is most likely to be not fulfilled.”[71] Host countries will therefore not systematically reject projects with low sustainable development and low poverty reduction benefits. It is obvious that host countries benefit from the CDM through foreign investment and technology transfer, but the population is often the last beneficiary of the CDM projects, that is, if it benefits at all.[72] Scholars propose the adoption of common elements that would define sustainable development, such as the employment generated by the project, promotion of biodiversity, poverty alleviation, or improvement of education and training.[73] However, the Parties have not considered this solution. At best, they suggest that DNAs “publish the criteria they use in assessing the contribution of project activities to sustainable development.”[74] This increase of transparency would certainly encourage host countries to implement projects that better fulfill the sustainable development criterion; however, no real control of the impact on development and the poorest populations would be in place. Too often still, host countries focus on the direct economic benefits, such as foreign investments, and treat the social and environmental effects “as an optional extra rather than a central project feature.”[75]

One of the criteria that must be met in order to issue CERs is the additionality of the project. The Kyoto Protocol poses the condition that “[e]mission reductions resulting from each project activity shall be certified . . . [provided that they] are additional to any that would occur in the absence of the certified project activity.”[76] The Marrakesh Accords further explain that “[a] CDM project activity is additional if anthropogenic emissions of [GHGs] by sources are reduced below those that would have occurred in the absence of the registered CDM project activity.”[77] The reduction of GHG emissions must be additional to the level of GHGs that would have been emitted otherwise, according to the baseline scenario.[78] The project developer must therefore demonstrate that his CDM project is additional, following a methodology preapproved by the EB or an original methodology that will subsequently be approved by the EB.[79]

The additionality test has been envisioned by the EB as an essential element in the implementation of the CDM project; it was designed to verify that the project would effectively reduce the GHG emissions and that without the CDM, such a project would not have occurred.[80] In other words, it ensures the “environmental integrity” of the project.[81] However, the efficiency and credibility of the additionality test have been widely criticized.[82] Not only is the test a financial burden for the implementation of small-scale projects, which have been proven to be the best projects to help alleviate poverty,[83] but also the application of the test has often been inaccurate.[84] Because the EB is under-staffed, the additionality is verified by third parties[85] called Designated Operational Entities (DOEs).[86] DOEs, paid by the developer to verify the project, may find a project additional when it is actually controversial.[87] This represents a really high risk of manipulation of the CDM. The additionality test is therefore not a safeguard for the efficiency of the project anymore; it is a challenge to it. As two Stanford professors noted: “[I]n practice, much of the current CDM market does not reflect actual reductions in emissions, and that trend is poised to get worse.”[88] Moreover, the additionality criteria is sometimes distorted to translate into “environmental additionality,” a concept undefined in the Marrakesh Accords, which tends to attribute credits to projects that would be implemented even if they would receive no carbon credits and would reduce only in theory the GHG emissions compared to a hypothetical, more polluting project.[89]

b. The Lack of Incentive to Implement CDM Projects in the Most Vulnerable Countries

Small-scale projects can be developed under the CDM scheme. They benefit from a simplified procedure for their registration and implementation.[90] Yet, three main obstacles to the implementation of CDM projects in the most vulnerable countries can be identified.

First, small-scale projects are often used in rural low-income communities[91] and are often seen as the best tool in the CDM system to address poverty alleviation.[92] Small-scale projects can be implemented in areas where infrastructure does not need to be as developed as for large-scale projects, and local communities can seek employment through these projects.[93] As of March 2011, 43% of the registered CDM projects were small-scale projects.[94] The impact of the small-scale projects on low-income populations can be so important and beneficial that organizations and scholars have called for an even more simplified methodology to establish small and very small-scale projects within the most vulnerable communities.[95] However, the administrative costs of registration and the large investment required for a CDM project usually lead investors to favor large-scale projects, attracted by the economy of scale that they can realize.[96] In contrast, a simplified methodology provides an incentive to investors to promote small-scale projects.[97] Unfortunately, given the problems that already plague the methodology, including the lack of transparency and the lack of accuracy, simplifying the methodology would open the door to more controversies and would not ensure the environmental integrity of small-scale projects. Therefore, while the small-scale project frame is a good first step to reach the poorest populations, the methodology is not currently designed to effectively ensure that sustainable development and poverty eradication remain the center of the projects.

Second, the improvement of the enforcement of investment contracts in the less favored countries must be emphasized. Less favored countries must provide guarantees to the investor; it should not only be the investor’s goal to achieve poverty alleviation, but also the host country’s goal. Host countries must offer a secured legal framework to the investors and must also provide the necessary infrastructure if they wish to attract CDM projects. The Parties to the UNFCCC acknowledged that the lack of stability noticed in these countries is an obstacle to an equal distribution of CDM projects.[98] Hence, it is the responsibility of the most vulnerable host countries to first put in place a viable financial and legal system before trying to attract investors within their territory.

Third, a CDM project helps the developed country to meet its GHG reduction commitment by contributing to the reduction of GHG emissions in a non-capped developing host country. The amount of issued CERs is therefore an important factor for the investors because investors will be able to sell these CERs either privately or on a carbon trading market.[99] Because LDCs, SIDS, and Africa have a very low initial GHG emissions rate, there is consequently little incentive to invest in CDM projects in these countries.[100] The Nairobi Framework takes this logic into account, recognizing that in Africa, the “scope for reducing emissions is correspondingly lower than in other regions.”[101] This is a systemic barrier to an equal distribution of the CDM project activities. Investors need to be presented with some other incentive to implement CDM projects in these low GHG emitting countries.

III. Rethinking the CDM to Take into Account the Poverty Issue

The Parties to the Kyoto Protocol as well as non-governmental organizations have acknowledged the current failures of the CDM,[102] and have proposed different remedies that could potentially address the poverty eradication,[103] but those remedies are more focused on the general sustainable development aspect of the CDM than on directly alleviating poverty. Some changes to the current system could however be put in place in order to put the poverty issue at the center of the fight against climate change.

A. Different Modifications to the CDM System

Various modifications to the current scheme of the CDM projects have been suggested both by the Parties to the UNFCCC and by non-governmental organizations.[104] These modifications would apply at the stage of assessment of the project as well as during its implementation.

1. Stage of Assessment

a. Giving the EB Power of Oversight over the Sustainable Development Aspect of the CDM Projects and Giving It Power of Sanction

As stated above, the host country bears the responsibility of verifying the sustainable development impacts of the CDM project.[105] After being approved by the DOE, the project is then registered with the EB.[106] This registration corresponds to the formal acceptance by the EB of a validated project as a CDM project activity: “Registration is the prerequisite for the verification, certification and issuance of CERs relating to that project activity.”[107] This is a formal power, but the EB does not assess the sustainable development benefits of the project.[108] In order to address this, the Parties to the Convention have asked the EB to take a more executive role in the CDM registration process[109] and the Board has tried to improve transparency and information availability.[110]

Unfortunately, the EB has limited oversight power[111] and chronically lacks personnel resources.[112] The Board indeed admits this fact.[113] Thus, though the CDM is a successful scheme, with a rapidly increasing number of projects, the EB faces a heavy case load, which “frequently require[s] that the Board be in session or in consultations for well over the eight hours planned for a typical meeting day.”[114] Even if the Board had the power and resources to ensure that projects complied with the sustainable development criterion, what kind of sanction would be the most efficient way to address failure to comply? Starting from the hypotheses that a project would not promote “sustainable development” in the host country and that the sustainable development criterion had been agreed upon, different sanctions could be imagined. These include non-issuance of CERs, a diminished number of CERs, and a fine imposed on the developer, host country, or individual DOE.[115]

All these sanctions are financial because it seems inapplicable and irrelevant to simply exclude one host country from the benefit of the CDM system based on the fact that it would have accepted a project that does not address sustainable development, or to exclude an investor from implementing further projects for the same reason. A financial sanction is surely the best way to ensure compliance of the project. However, the first two sanctions, applied after the project starts, probably create too strong of a disincentive for investors, leading them to choose not to implement any projects rather than risk the loss of the financial benefit of CER. Moreover, it would be difficult to assess the real impact of the project before it runs for several years and the calculation of the diminished amount of CER could ultimately be criticized for being discretionary. The third sanction—a fine—which would be applied after the project has already had an impact on the environment, could accurately evaluate social improvement and poverty alleviation, and would therefore be more feasible. The oversight of the EB and its power to sanction would ensure that the project is and remains focused on poverty alleviation after a few years of implementation. The concrete effects of the project could be measured.

The amount of the fine should be determined with precaution; it should be based on the value of the project and the degree of the project’s noncompliance and it should be high enough to serve as a deterrent, yet low enough to prevent investors from withdrawing from the CDM scheme. The problem with this solution, however, is that the project would run for several years, depriving the poorest populations of benefits, before being condemned. Even if the fine amounts were ultimately redistributed to the most vulnerable populations wronged by the CDM project, the objective of sustainable development and poverty eradication would not be achieved solely with the CDM. By any means, given the difficulties of reaching an agreement on measurement, reporting, and verification, even self-verified measures,[116] it seems unlikely that the Parties would agree to include a power of sanction in the mandate of the EB or the Secretariat.

b. Lowering the “Additionality” Test

Some have recommended lowering the additionality requirements for certain projects, certain countries, and certain periods to adjust the distribution of CDM.[117] This may a priori seem tempting but the outcome may not result in a greater consideration of the poorest countries and the poorest populations. The additionality test is a way to ensure environmental integrity, though not always effectively, as demonstrated above.[118] Rather, it would be better to have an organ at the United Nations assess the additionality. A standardized test could however be implemented for the LDCs to lower the administrative costs of CDM. Some have suggested the establishment of a positive list of projects that would not be required to pass the additionality test;[119] this exemption would apply to “certain project types, in certain countries, and for a certain period of time.”[120] Such an approach would allow an adjustment of the CDM distribution, both geographically and activity-wise. However, major obstacles would still have to be overcome; for example, who would determine this list and based on what criteria? Such an approach would likely create the same problem posed by the effort to develop a common definition for “sustainable development.” For example, the geographical focus of this positive list could be easily effectuated by comparing the number of projects historically implemented in each country and allowing the less favored countries to be part of this list, or by including all countries as part of predetermined groups such as the LDCs or the SIDS, or by reference to other factors, such as GDP or the percentage of the population living below the poverty level. The kind of activities to be included in such a list would, however, be more controversial. Each country has different expectations of the CDM.[121] While poverty alleviation is a concern for all developing countries, so too is economic growth, even if a focus on the latter would mean less impact on poverty eradication.[122] Moreover, additionality depends more on the concrete circumstances of the project than on predefined characteristics.[123]

Some non-governmental organizations, such as CDM Watch, have suggested the adoption of a “negative” list of projects that would be unlikely to meet the additionality test.[124] CDM Watch advises that “[t]his negative list should include large hydro power plants since hydropower is a widespread technology that does not need additional support to be built. Moreover, large hydropower projects often have high and sometimes devastating social and environmental costs” and, thus, provide further justification for their inclusion on the “negative” list.[125]

However, the same problem arises as for the positive list. The determination of additionality must be made in accordance with the circumstances of the project. As CDM Watch states itself, “large hydropower projects often have high and sometimes devastating social and environmental costs.”[126] It is a general feature of these projects that is often noticed, but not systematically. Excluding a project based on this common assumption could also lead to the exclusion of a small number of projects that could be very beneficial to the most vulnerable people.

c. Changing the Criteria of Sustainable Development to a Broader, More Controllable Criterion-Analysis of the “Gold Standard” Proposal

The Gold Standard was established by a small group of non-governmental organizations, including the World Wildlife Fund, to promote the sustainable development aspect of the CDM.[127] As viewed by the UNDP,

The ‘Gold Standard’ . . . represents the first independent best practice benchmark for the CDM and Joint Implementation (JI) greenhouse gas offset projects. It offers project developers a tool to ensure that the CDM and JI deliver credible projects with real environmental benefits and, in so doing, give confidence to host countries and the public that projects represent additional investments in sustainable energy services.[128]

To meet the Gold Standard, eligible projects must be in the renewable energy sector, or energy efficiency sector, and an additionality test is used to assess whether the project would have happened without a CDM.[129] This criterion once again shows the importance of the additionality requirement to ensure environmental integrity of the project. The project’s contribution to social improvement and sustainable development is also verified. The project developer must first apply the UNDP safeguards principles, which include human rights, environmental protection, labor standards, and anti-corruption measures.[130] Then the developer must provide a social and environmental impact assessment and a sustainability-monitoring plan.[131]

What are the benefits of the Gold Standard? The host country of a Gold Standard certified project receives long-term benefits from the project, and such certification “give[s] confidence to host countries and the public that projects represent additional investments in sustainable energy services.”[132] Though the projects and developers that meet the Gold Standard’s criteria do not receive extra credit or more investment opportunities, they can benefit from the network of the Gold Standard Organization to sell their credits. They can use a logo indicating that their project has received the Gold Standard certification and can advertise that fact.[133] These incentives are, however, minor, and probably explain the low number of Gold Standard certified projects listed.[134] It is interesting to point out that the majority—105 projects, or 57%—of these projects, although applying the Gold Standard and being focused on sustainable development, are implemented in Brazil, South Africa, India, China, and Mexico.[135] Once again, the distribution of CDM projects, even if they are oriented towards social improvement and poverty eradication, is unequal and fails to reach the poorest countries and people.

2. Stage of Implementation

a. Constraining the Issuance of CER

One solution could be to limit more drastically the amount of CER that can be generated by CDM projects. Currently, in Europe for instance, the Directive 2004/101/EC allows operators of the Member States to use reduction units as well as CERs, within a limit of a percentage of their respective allowances.[136] In France, for example, operators can use a maximum amount of CERs, up to 13.5% of France’s allowance.[137] Limiting the amount of CER would probably actually favor the GHG emission reductions, by limiting the amount of controversial non-additional projects and by giving more time to the EB to exercise more than a purely formal control over the project. However, the amount of CER actually traded on the markets is only a very small portion of the total amount offered for sale.[138] It would be thus useless to set forth such a solution without modifying the structure and functioning of the EB.

Another way of constraining the issuance of CER would be to impose on Annex I Countries the obligation to get a certain percentage of the CERs issued from “highly” sustainable projects. This idea seems the most functional in theory. Annex I Countries could take commitments to favor some kind of projects, and Non-Annex I Countries could also decide, under the supervision of the UNFCCC, to develop a particular type of project on their territories. However, this would require a sharp definition of sustainability and high sustainability and would necessitate the overview of the project by an unbiased third party—not the project developer, not the DOE, and not the host country. For the reasons stated above—the quasi impossibility to obtain a commonly agreed definition of sustainable development,[139] and the lack of financial and personal resources of the host countries to approve the projects[140]—this solution would be, in the current situation, irrelevant.

b. Applying a Coefficient to CERs Issued from Certain Projects (Country or Industry) that Favor the Poorest Populations

It has been suggested that a coefficient be applied to CER issued from certain projects that are implemented in predetermined countries, and then to multiply the amount of CER in order to promote those projects that favor the poorest populations.[141] Although it would certainly create a good incentive for investors to develop projects in the forgotten countries, a coefficient applied to the CERs issued according to the kind of project would in fact render this system more harmful than beneficial.

According to this suggested adaptation of the CDM framework, if a given project impacts social and poverty alleviation in the host country, a coefficient should be applied at the issuance of the CERs, so that they would therefore be valued more.[142] For example, if a multiplying coefficient was applied to the equivalent of one metric ton of reduced carbon dioxide (CO₂), a given project might be allowed to issuance of 1.20 or 1.30 CER. This would be prima facie a good incentive to investors, who would be able to compensate the low amount of CO₂ to be reduced in the LDCs, SIDS, and Africa, and who would find an economical balance between the money invested and the outcome of it. However, this system would likely fail the very first goal of the Kyoto Protocol, that of reducing GHG emissions.[143]

The investors would indeed sell on the carbon market more emission allowances than actual emission reductions, and thus allow the carbon credit buyers to acquire more credits than actually allocated overall. It could be possible to imagine a minus coefficient applied to projects less focused on sustainable development and poverty eradication, in order to balance the amount of credits available on the carbon markets. However, this scheme would require not only a very complex calculation of the credits issued with a minus or bonus coefficient,[144] but also the imposition on investors, on an aggregate scale, to invest in a set amount of bonus coefficient projects and a set amount of minus coefficient projects at the same time, in order to achieve balance.

B. How to Redesign the CDM to Tackle Poverty?

In addition to modifying the mechanism and the framework of the CDM to better address the poorest countries’ expectations of the CDM, financial resources must be incorporated to supplement the current system. Adaptation to climate change and transition to a greener and more sustainable economy will require not only political support both from developed and developing countries, but also strong financial support.

Stanford University Professor, Michael Wara, has suggested the creation of an international fund to supersede the current CDM system.[145] He suggests that this fund be based on the model of the Multilateral Fund for the Implementation of the Montreal Protocol.[146] This fund, to which developed countries contribute, provides financial assistance to developing countries in the phasing-out of the use of ozone-depleting substances (ODS).[147] The fund acknowledges the common but differentiated responsibilities of all countries in the depletion of the ozone layer.[148] The fund delivers financial and technical assistance to developing countries enabling them to comply with their ODS reduction commitments as set forth in the Montreal Protocol, by having the developed countries bear “any additional costs incurred by developing countries in transitioning away from ODSs to new, ozone-friendly chemicals.”[149] The fund, created about twenty years ago, [150] has proven to be successful, with more than 6,700 projects supported—as of December 2010—and with a total reduction of more than 459,910 tons of ODS.[151]

For Professor Wara, a climate fund is the real alternative to the CDM.[152] However, if modeled after the Multilateral Fund for the Implementation of the Montreal Protocol (Multilateral Fund), the climate fund advocated by Professor Wara would suffer the same defaults as the ones pointed out in the CDM framework. The Multilateral Fund sets criteria for the approval of projects, including those “with potential for the most cost-effective and efficient reduction in the emission of controlled substances.”[153] Yet no single criterion holistically considers sustainable development.[154] The fund suggested by Professor Wara would therefore provide no guarantee regarding poverty alleviation. It would obviously help developing countries transition to technologies emitting less GHG, but would not necessarily link the projects to poverty eradication in order to address the needs of the most vulnerable populations. The Multilateral Fund, just as the CDM scheme, gives competence to the host country for the approval of the project[155] and creates no incentive to invest in projects impacting poverty.

Financial mechanisms dedicated to sustainable development and poverty alleviation are already in place under the authority of the World Bank. Beginning in 1999 with the Prototype Carbon Fund,[156] the World Bank later developed more funds, including the Community Development Carbon Fund (CDCF),[157] the BioCarbon Fund,[158] the Italian Carbon Fund,[159] and the Spanish Carbon Fund.[160] The CDCF particularly targets poverty.[161] It unites donors from both the public and private sectors, nine governments, and sixteen corporations, and promotes projects with a special focus on social benefits.[162] This fund specifically addresses the poverty issue by encouraging investors to carry out “small scale projects that measurably benefit poor communities and their local environment.”[163] Established in 2003, the fund has however only contributed to the implementation of thirty-three projects as of April 2010.[164] Further, the fund can be criticized extensively for its partiality and inefficiency,[165] inter alia, because of its “schizophrenia”[166] in promoting sustainable development and poverty eradication on the carbon market while supporting fossil-fuel industries at the same time under the influence of northern nations,[167] in sustaining a small number of projects in comparison with the amount of financial support, in its workings with a global network of countries and enterprises,[168] and in its inability to distance itself from the interests of the northern nations and corporations.[169]

The funds that the World Bank administers with one government seem to be a better response to these critics. The Spanish Carbon Fund was created in 2005[170] and has already financed twenty projects[171] with a capital of $344 million in U.S. dollars.[172] This fund is surely one of the most active and successful funds created by the World Bank in partnership with a government. It eludes some of the critics, such as the influence of some countries in particular, and has proven to be, on a smaller scale, more efficient than the CDCF. This kind of fund could be a global response to the drawbacks of the CDM system, and supplement rather than supersede the CDM, provided that all Annex I Countries implemented such a financial mechanism. However, to date, only the Spanish,[173] Italian,[174] Danish,[175] and Dutch[176] governments have taken such a step and unless more governments, and especially large GHG emitters such as the United States, imitate them, this can only be a temporary and incomplete answer.

With a number of flaws and a failure to alleviate poverty, the CDM system could obviously be improved. What if the real solution to address poverty eradication actually came from the directly concerned countries? The Annex I Countries, the World Bank, and the EB can reform the current scheme, but those best able to analyze and design a mechanism, whether purely financial or market-based, are the poorest nations and the poorest communities. Who can better assess the needs and the responses? And what if the solution had already been put on the table? A fund called the Clean Development Fund was envisioned by developing countries upon a proposition from Brazil at the dawn of the Kyoto negotiations.[177] It would have relied on the polluter pays principle and would have urged the developed countries to comply with their Kyoto Protocol commitments.[178] Failure to do so would have triggered a financial obligation, and obliged the non-complying parties to contribute to the fund.[179] This fund would then have contributed to sustainable development in the poor and poorest countries and would have helped to alleviate poverty.[180] This would have had the same effect as the financial sanctions discussed above, and would have been a major incentive to reduce GHG emissions as well as to tackle poverty. This fund was, unfortunately, eventually abandoned and translated into a market-based mechanism during the negotiations under the impulsion of the northern countries, especially the United States.[181] Thus, the CDM scheme was born. At a time when all governments, civil society organizations, and companies are wondering about the future of CDM, the worldwide poverty issue, and the “post-Copenhagen” regime, it may be time to remember the “pre-Kyoto” world to finally link two of the most tragic and vital issues of our generation—climate change and poverty.

Transitioning to a Sustainable Energy Economy: The Call for National Cooperative Watershed Planning

By

Ann E. Drobot*

Recent developments in the Middle East have underscored the national security concerns that arise from America’s reliance on foreign fuels. While Americans stand enraptured by scenes broadcast from the epicenter of historic national uprisings, feelings of hope and support for the advancement of democratic principles are mingled with concerns about how this could impact us at the pump. Breaking America’s dependence on foreign oil is but one driving factor leading policymakers to call for the transformation of the United States energy economy. Climate change is another—and both energy-based challenges are causing policymakers to chart a course toward a “sustainable energy economy,” one that incorporates clean energy technology and the increased use of water-intensive domestic renewable fuels and nuclear power.

This Article explores what the transformation of the United States energy economy to a “sustainable energy economy” will mean for the nation’s water resources. It begins by exploring the interdependency that exists between energy and water, often referred to as the “energy–water nexus,” and specifically highlights the critical role that water plays in energy generation and fuel production. Next, it examines the current threats that forecasted population growth and climate change already pose for the very water resources expected to support this sustainable energy economy. The Article suggests that the path to achieving a sustainable energy economy starts with sustainable water resource management which, because of the energy–water nexus, requires the integration of energy and water-related policies. It goes on to explore the limited degree to which these policy areas have been integrated in existing regulatory regimes and policy initiatives.

The Article concludes that achieving a “sustainable energy economy” will require a large-scale cooperative watershed planning effort—one that will ensure that water resources are available to support and sustain a transformation of the United States energy sector. After addressing some of the legal challenges that may face such a water-based planning effort, the Article identifies recent legislation that could provide a starting point by which to address some of the significant challenges associated with achieving a “sustainable energy economy.”

I. Introduction

Climate change looms as a defining issue of the 21st century, pitting the potential disruption of our global climate system against the future of a fossil fuel-based economy.[1]

The United States energy sector exists at the center of this defining issue. Because greenhouse gas emissions from the energy industry are a primary component in what is said to be anthropogenic-induced climate change-related impacts,[2] curbing greenhouse gas emissions from the energy sector has been and will continue to be the focus of the policy debate concerning effective mitigation and adaptation strategies. The United States energy sector also exists at the center of national efforts to break our addiction to foreign oil in order to achieve energy independence. Given that 51% of the 6.9 billion barrels of oil consumed in the United States in 2009 were imported from foreign countries,[3] achieving energy independence will be no small undertaking, particularly in the face of steady forecasted growth in United States’ energy demand.[4] In the context of both climate change and energy independence, developing a “more sustainable energy economy” has become the battle cry for today’s policymakers.

But what does a more sustainable energy economy look like? As described in the current Administration’s National Security Strategy released in May 2010, a more sustainable energy economy incorporates the development of clean energy technology, increases the use of renewable energy, and reinvigorates nuclear power.[5] For example, in response to the “real, urgent, and severe” dangers associated with climate change, the Administration targets actions that will “stimulate our energy economy at home, reinvigorate the United States domestic nuclear industry, increase our efficiency standards, invest in renewable energy, and provide the incentives that make clean energy the profitable kind of energy.”[6]

Similarly, regarding our dependence on foreign oil which “undermine[s] our security and prosperity”[7] and “leave[s] us vulnerable to energy supply disruptions and manipulation and to changes in the environment on an unprecedented scale,”[8] this Administration calls for the transformation of our energy economy, the accelerated deployment of clean energy technologies, and the increased use of renewable and nuclear power.[9]

As well intentioned as policymakers may be to shore up national security, to devise effective climate change mitigation and adaptation strategies, and to lead in the development of clean energy technology—be it for the betterment of our economy or to promote more environmentally sustainable solutions—no single misstep will undermine their efforts to develop this “sustainable energy economy” more than the failure to consider one of the energy sector’s most fundamental components—water. The interdependency between water and energy, often referred to as the “energy–water nexus,”[10] cannot be overstated. Nor can the significance that each plays in today’s society. Our society is dependent on energy. Energy is a fundamental component of delivering clean water; cultivating food; operating industry; powering homes, offices, hospitals, and schools; and providing transportation.

By the same token, our society is dependent on water. Water is essential to life on earth. It is critical to continuing economic activity, to the proper functioning of earth’s environment, and to the maintenance of biodiversity.[11] It is also an essential component in energy generation and fuel production and, as such, will play a key role in whether we achieve energy independence, are successful in climate change-related strategies, or lead in the development of clean energy technology. In essence, water is a key component to developing a “sustainable energy economy.”

Because water is an essential component in developing a sustainable energy economy, ensuring that the demand for water does not outpace the available supply is crucial to achieving these national energy-based goals. Water resource limitations have already interfered with attempts by the energy sector to expand energy production,[12] and the “green” energy sector is not immune from these challenges.[13]

Policymakers should be aware of recent studies that paint a troubling picture of the alarming rate at which our freshwater resources are being depleted.[14] Groundwater levels in some regions have dropped “as much as 300 to 900 feet over the past 50 years”[15] and the rate of aquifer pumping often outpaces the rate of recharge.[16] High demands to meet both human and industrial needs, drought conditions, and contamination contribute to water scarcity in many regions of the United States,[17] including, most recently, the southeast region which historically has housed abundant supplies of freshwater resources.[18] Now, like the southwest, ecological systems in the southeast are starting to exhibit signs of stress as stakeholders scramble to secure their “fair share” of a resource once thought to be limitless.[19]

Recent drought conditions in the southeast region, which reduced water resources to exceedingly low levels and set off water wars between states,[20] provide some insight into the impact that water scarcity could have on energy generation. In water-stressed areas of the country, power plants will increasingly compete with other water users and tradeoffs will occur, raising increasing concerns over which use is more important: water to support domestic uses, food supply, or energy production.[21]

This Article advances the notion that creating a “sustainable energy economy” in support of the current Administration’s energy policies cannot be achieved without first charting a course toward achieving sustainability of our nation’s water resources. Because current energy policies make significant demands on water resources that are already stressed and are expected to undergo even greater assault from increased demands and climate change-related impacts, the path to a sustainable energy economy must involve the integration of two highly compartmentalized policy areas—energy policy and water policy. The integration of these policy areas will start policymakers down the path toward achieving sustainability of our water resources, a goal that this article maintains will require large-scale cooperative watershed-based management and planning that takes into account the dynamics of the energy–water nexus.

Part I of this Article details the energy–water nexus, a concept that describes the interdependency existing between energy and water. The energy–water nexus provides the framework for understanding how decisions made in energy policy could impact our nation’s water resources and, in turn, how the diminished state of these resources could undermine energy-based policy initiatives. This Part details the “water footprint”[22] of various methods of electricity generation and fuel production and briefly addresses the reciprocal side of the energy–water nexus—how water supply is dependent on energy.

Part II provides an overview of the challenges already threatening the sustainability of our nation’s water resources. These challenges include burgeoning population growth—including projected national population shifts—and the concomitant increase in energy and water demands, and climate change-related direct and indirect impacts. This Part provides the contextual framework under which policymakers currently operate when making energy-based policy decisions that could exacerbate challenges already faced by stressed water resources.

Part III explores the limited degree to which energy policy and water policy have been integrated in existing energy-based and water-based regulatory regimes. This Part concludes that, with the limited exception of power generation facilities that fall under the jurisdiction of the Federal Energy Regulatory Commission (FERC) and the Nuclear Regulatory Commission (NRC), we are far from achieving the integration of energy policy and water policy necessary to achieve sustainability of our water resources in support of a more sustainable energy economy.

Part IV explores the current state of national energy policy and water policy and the degree to which recent policy initiatives are, or are not, signaling an integration, by policymakers, of these highly compartmentalized policy arenas. This Part concludes that despite the presence of ongoing dialogue concerning the integration of energy- and water-related issues, with the limited exception of the recently enacted Omnibus Public Land Management Act of 2009 (OPLMA),[23] the integration of energy and water policy necessary to achieve sustainability of our water resources is not taking place on the policy level.

Part V discusses roadblocks in our current legal structure that promise to interfere with legislative efforts to achieve a more sustainable energy economy through the regulation of water resources, including challenges relating to federalism and governance. Part V also proposes a cooperative national watershed planning effort that incorporates the dynamics of the energy–water nexus as one potential solution to the challenges outlined in this Article.

Our already stressed water resources are expected to undergo increasing assault by significant projected population increases, and the resulting demands made on the water and energy sectors, as well as climate change-related impacts and response measures designed to mitigate these impacts. Perhaps unintentionally, this Administration, through its energy policies, has now added developing clean energy technology, increasing the use of renewable energy, and reinvigorating nuclear power—i.e., creating a “sustainable energy economy”—to the burgeoning list of demands being placed on the nation’s water resources. In order to avoid the catastrophic water shortages and significant ecological impacts that await us at the end of our current path, policymakers must develop a clear understanding of the role that water plays in the energy sector and this understanding must provide the framework by which future energy-based policies and decisions are made.

II. The Energy–Water Nexus: How Energy and Water Are Linked

Much has been written on the subject of the energy–water nexus and the interdependency of these two vital resources.[24] With the advent of climate change and the current direction of the nation’s energy policy, the dynamics of the energy–water nexus have increased in import. Because of the energy–water nexus, decisions made concerning energy generation, like increasing the use of nuclear power, as well as decisions made concerning increased use and production of renewable energy sources, can significantly impact water resources.[25] For this reason, policymakers need to be keenly aware of the inextricable link between these two vital resources and the impact that decision-making in the energy policy arena can have on water resources, and vice versa.

For purposes of underscoring potential impacts that energy policy can have on water resources, it is important to understand, as detailed below, that energy generation and fuel production are dependent on water resources. This Part also details the flip side of the energy–water nexus—water production’s dependency on energy. It is important to remember this half of the energy–water equation when considering the energy demand (and related water use) associated with accessing alternative sources of water supply as our nation’s freshwater resources become further depleted.

A. Energy Supply and Fuel Production Are Water Dependent

Water is an integral component in energy production.[26] It plays a vital role in energy generation, including hydroelectric power generation, thermoelectric power plant cooling, and emissions scrubbing.[27] It also plays a vital role in energy resource development, including resource extraction, refining, processing, and transportation.[28]

1. Water Use in the Energy Generation Process

In the context of energy generation, the United States electric industry produced a reported 3,913,771 gigawatt-hours (GWh) of electricity in 2009.[29] In terms of water use, based on an average of twenty-five gallons of water used for every kilowatt-hour (kWh) generated,[30] in 2009 alone, the energy sector used approximately 98 trillion gallons of water in processes related to energy generation.[31]

Hydropower, the most obvious water-dependent energy source, remains an “important component” of United States electricity generation.[32] In 2006, hydropower provided approximately 7% of the nation’s electricity.[33] Water flow through hydroelectric turbines primarily consists of fresh surface water[34] and averages 3,160 billion gallons a day.[35] The United States Geological Survey (USGS) does not report the water used in hydropower generation as “withdrawn” from its source because it remains in-stream and is used repeatedly by successive dams.[36]

Thermoelectric-generating technologies, on the other hand, use steam rather than water flow to drive turbine generators.[37] These plants, which obtain heat from a variety of sources, including oil, coal, nuclear, natural gas, biomass, concentrated solar energy, and geothermal energy, require large amounts of water for plant cooling systems.[38] To operate these cooling systems, United States power plants withdraw water from a variety of sources, including surface water, ground water, fresh water, and saline water.[39] As compared to other water “use categories,” water withdrawals in thermoelectric power generation account for an estimated 41% of all freshwater withdrawals, 61% of all surface water withdrawals, and 94% of all saline water withdrawals in the United States.[40] As much as 99% of thermoelectric power plant cooling requirements are met using surface water withdrawals,[41] approximately 71% of which consist of fresh water.[42] When examined in the context of actual number of gallons used, according to the Department of Energy’s (DOE) most recent statistics, in 2010 thermoelectric power plants are expected to use an estimated 145 billion gallons of the nation’s freshwater resources per day in the electricity generating process.[43]

Thermoelectric power plants located in the southeast region of the United States also reveal demanding water utilization and consumption patterns. Currently, 84% of the nation’s thermoelectric-power-related water withdrawals are occurring in eastern states, with thermoelectric power generally being the largest category of water withdrawal.[44] Power generating facilities located in the southeastern states[45] are responsible for approximately two-thirds of all freshwater withdrawals in that area,[46] drawing approximately 40 billion gallons of water a day.[47] Evaporation resulting from power plant cooling processes in this region causes the annual loss of nearly 140 billion gallons of water, an amount equivalent to the annual water use of more than one million homes.[48]

a. Water Use by Cooling Process

Water use in electricity generation primarily arises in connection with power plant cooling processes[49]—a thermoelectric power plant’s need for water is due to the simple physical law that water can absorb 4,000 times as much heat as air for a given rise in temperature.[50] Fossil and nuclear power plants, accounting for approximately 80% of electric power generating capacity, “require cooling to condense the steam turbine exhaust.”[51] Today’s power plants primarily use water as the cooling medium,[52] withdrawing it mainly from large volume sources such as underground aquifers, lakes, rivers, and oceans.[53] The quantity of water required to cool the plant depends on both the generating and cooling technologies employed at a plant and the ambient meteorological conditions that exist at the plant’s location.[54] Depending on the cooling process utilized, the water used in the cooling process is either consumed by evaporation in cooling towers or returned to its original source.[55] Although not all water used in thermoelectric power generation is “consumed,” a recent DOE report indicates that thermoelectric generation does consume approximately 3.3 billion gallons of water per day.[56]

Conventional power plants, including oil, coal, natural gas, biomass, and nuclear powered facilities, use one of three cooling processes in the generation of electricity: closed-loop, open-loop, and dry-cooling systems.[57] Approximately 56% of conventional power plants use closed-loop cooling systems.[58] In closed-loop systems, the facility withdraws water from a source, cycles it through heat exchangers, allows it to cool in either ponds or towers, and then recirculates it.[59]

Power plants using closed-loop cooling systems withdraw less water initially—approximately 300 to 700 gallons per megawatt-hour (MWh),[60] (these plants account for only 8% of withdrawals by power plants[61])—but have a higher water consumption rate because of the evaporation that occurs during the cooling process.[62] The higher consumption rate requires the power plant to withdraw additional cooling water in order to replace water lost during the cooling process.[63] Approximately 81% of electric generating facilities using closed-loop cooling systems reported consumptive use rates at or more than 50%.[64] These closed-loop cooling systems are more commonly found in the Western United States.[65]

Approximately 43% of power-generating plants use open-loop cooling systems.[66] In open-loop cooling systems, the facility withdraws water from a source and passes it through the condenser only once, then discharges it downstream to a receiving water body.[67] Plants employing the open-loop cooling system withdraw approximately 91% of all water used by power plants.[68] More than half of the nation’s nuclear reactors use the open-loop cooling system.[69]

Although this cooling process requires more water withdrawals upfront than closed-loop cooling systems require (withdrawal rates range from approximately 20,000 to 60,000 gallons / MWh[70]), less water evaporates in the process (usually 200 to 400 gallons / MWh[71]), thereby reducing consumptive use rates as compared to closed-loop cooling systems.[72] However, impacts to water resources caused by the open-loop cooling process are not limited to water consumption. Because open-loop cooling systems often discharge process water at a higher temperature than the receiving water—sometimes by as much as twenty-five degrees Fahrenheit[73]—this practice may alter the temperature of the receiving water, thereby significantly altering the ecosystem[74] and causing increased evaporation from the receiving body of water.[75] Open-loop cooling systems are used in older power plants and are more commonly found in the Eastern United States.[76]

The dry-cooling process is “dependent entirely on air” and therefore uses less water than either the open- or closed-loop cooling systems.[77] However, because this cooling process is most cost efficient in cold, arid environments,[78] only 1% of power generating systems employ dry cooling systems.[79]

A relatively recent Clean Water Act (CWA)[80] provision is likely to have considerable impact on the design of future power generation facilities[81] and, in turn, on the withdrawal and consumption patterns of these facilities. Section 316(b),[82] which is “[d]esigned to protect aquatic life from [] being killed by [cooling water] intake structures,”[83] strongly discourages the use of open-loop cooling systems.[84] This provision is expected to cause the energy sector to transition to a greater use of closed-loop and dry-cooling systems.[85] Because closed-loop cooling systems consume more water in the cooling process than open-loop cooling systems, water consumption levels by the energy sector are expected to increase.[86]

b. Water Use by Fuel Type

Water use at power plants also varies by the type of fuel used to generate the electricity. Understanding this dynamic of the energy–water nexus is particularly important in light of the current energy policies supporting increased use of nuclear power and renewable fuels. Power plants using natural gas, for example, use approximately fourteen gallons of water for every kWh generated.[87] By comparison, coal and waste-incineration plants use approximately thirty-six gallons of water per each kWh generated, and nuclear power plants use a striking forty-three gallons of water for every kWh generated.[88] Giving these numbers some context, in 2006, in the process of generating 877 billion kWh of electricity, natural gas plants used an estimated 12.3 trillion gallons of water.[89] During that same time period, coal-fired power plants, which generated 1,957 billion kWh of electricity, used an estimated 52.8 trillion gallons of water.[90] Nuclear power plants, which generated an additional 787 billion kWh of electricity, used an estimated 33.8 trillion gallons of water,[91] a significant amount of water for a form of power generation that is increasing in popularity under current energy policy.[92]

Statistics on water withdrawals gathered from three nuclear power plants located in the southeast region also help to put these numbers into perspective. Georgia’s Edwin Hatch Plant, for example, on a daily basis withdraws an average of 57 million gallons from the Altamaha River,” but consumes (or loses to evaporation) 33 million gallons,[93] which is enough to service more than 196,000 homes.[94] Progress Energy’s newest nuclear plant, the Harris Plant located in North Carolina, draws in 33 million gallons a day from Harris Lake, 17 million gallons of which is lost every day to evaporation.[95] Similarly, Duke Energy’s McGuire Plant, also located in North Carolina, withdraws more than 2 billion gallons of water daily from Lake Norman.[96]

Water demands by “renewable” energy-fired power plants like solar thermal or biofuel powered plants do not differ conceptually from demands made by conventional fossil-fuel or nuclear power plants in that these plants still require significant amounts of water in the cooling processes.[97] Electricity production using renewable forms of energy may in fact be more water intensive given the “low energy return on energy investment”[98] ratio for a number of renewables. Corn-based ethanol’s energy production ratio, for example, generates an energy return that varies between 1.2:1 and 1.6:1 (i.e., 1.2 units of energy returned for each unit of required energy input).[99] Compare this with petroleum’s ratio of 15:1.[100] For its part, geothermal electricity production has a relatively low thermal efficiency, which is the ratio of electricity output to thermal energy input, as compared to other electricity generating technologies, meaning it also requires amounts of water similar to nuclear and coal generation.[101]

Policymakers need to be aware that water use in support of electricity generation extends beyond direct electricity generation activities. For example, an alarming amount of water is utilized at nuclear reactor power plants even in the absence of electricity generating activity.[102] Nuclear power plants require water to remove heat produced by the reactor core, to cool equipment and buildings associated with reducing the core’s heat, and to lubricate oil coolers for the equipment, including the main turbine and chillers for air conditioning, responsible for cooling the reactor.[103] During the summer months, the Hope Creek plant in New Jersey uses 52,000 gallons of water per minute, even when not producing electricity.[104] Similarly, even when not producing electricity, the Milestone Unit 2 in Connecticut requires 30,000 gallons per minute and the Pilgrim plant in Massachusetts requires 13,500 gallons per minute.[105]

These statistics underscore the policymakers’ need to be aware of the obvious tradeoffs associated with various fuel types in areas of carbon emissions and water use. For example, nuclear-fired power plants, which are increasing in popularity due to energy policies that promote reduced carbon emissions, use significantly more water than other forms of energy generation. Coal-fired power plants use a significant amount of water and emit high levels of carbon emissions, a seemingly bad choice for power generation in a climate change era. From a cost standpoint, however, coal is considered a cheap and abundant fuel source. Natural gas, on the other hand, uses less water and emits lower carbon emissions than other fuel sources. Perhaps for these reasons, DOE forecasts indicate that 90% of the next 1,000 power plants in the Unites States will use natural gas.[106] That notwithstanding, natural gas use does not come without its distinct set of water-related complications.[107]

The above statistics speak only to water use in the generation of electricity and in the cooling processes at electricity generation plants. Although the energy sector’s demands on water resources during these processes are considerable, water use during energy generation activities only conveys part of the water-dependency dynamic. To understand the full extent of the energy sector’s dependency on water resources, one must also consider the role that water plays in the production cycle of the various fuel types. Policymakers should pay particular attention to the considerable role that water plays in the production of renewable resources—like biofuels—particularly in light of recent energy policies that promote increased production of these fuel sources.

2. Water Use in Fuel Production

In addition to playing an integral role in electricity generation, water is a vital player in the extraction, refining and processing, and transportation of fossil fuels (including oil, coal, and natural gas), nuclear power, and renewable resources (including hydropower, biomass, geothermal energy, wind, and solar).[108] For example, the United States energy sector consumes between one and two billion gallons of water per day solely in connection with petroleum refinement processes.[109] A brief survey of water use in the production cycle of various fuel types further highlights this dimension of the energy–water nexus.

a. Oil

Domestic petroleum is produced from underground locations where impervious rock forms prevent the petroleum from migrating to the surface.[110] While oil’s initial extraction does not require significant amounts of water, enhanced oil recovery (EOR) techniques used to extract oil once deposits become depleted frequently involve the injection of water or steam into a well.[111] The quantity of water used in EOR can range from approximately eighty-one gallons per barrel of oil to 14,000 gallons of water per barrel of oil, depending on the age of the oil field and the method of EOR employed.[112] The refining process can also be water intensive. According to DOE estimates, petroleum refineries use one to two billion gallons of water per day[113] and consume between 1 and 2.5 gallons of water for each gallon of product.[114]

b. Oil Shale

Oil shale is carbonate rock that is rich in an organic sedimentary material called “kerogen,” which, when heated, is converted to a synthetic crude-like oil called “shale oil.”[115] According to the DOE, oil shale is emerging as a potential United States fuel source[116] with an estimated 2 trillion barrels of this “unconventional oil resource[]” contained in oil shale deposits located throughout Colorado, Utah, Wyoming, Kentucky, Ohio, and Indiana.[117]

The development of oil shale resources requires significant quantities of water.[118] Mining and aboveground processing (referred to as “retorting”) together consume an estimated two and five gallons of water per gallon of refinery-ready oil (fifteen to thirty-eight gallons per million British thermal units (MMBtu)).[119] To meet water demands associated with processing this fuel source,[120] an oil shale industry that produces 2.5 million barrels of oil per day (MMBbl/d) is estimated to require between 105 and 315 million gallons of water per day.[121] Policymakers exploring this potential fuel source should be aware that the more arid conditions of portions of the region containing oil shale deposits may increase the challenges associated with obtaining the water resources necessary to support a sizeable oil shale industry.[122]

c. Coal

Coal, the primary source of energy production in the United States, contributed approximately 45% of the United States’ power between January 2010 and July 2010.[123] Coal-fired generation, which increased 13.3% between July 2009 and July 2010, makes up over half of the 10.1% increase in net power generated in the United States over that same time period.[124] “[C]onversion of coal to energy requires . . . mining, processing, transportation, and combustion.”[125] Depending on the source of the coal, estimates for water use in coal mining vary between 10 to 100 gallons per ton of coal mined (ranging from one to six gallons per MMBtu).[126]

Once extracted from surface or underground mines, much of the mined coal is cleaned or washed to increase heat content by removing noncombustible material, including approximately 80% of Eastern and interior coal.[127] Water requirements for coal washing range from twenty to forty gallons per ton of coal washed (one to two gallons per MMBtu).[128] When applied against 2003 coal industry production data, water use estimates in coal mining range from 70 to 260 million gallons per day.[129]

d. Natural Gas

Between January 2010 and July 2010, natural gas power plants contributed 22.9% of the power generated in the United States.[130] Natural gas has been identified as an important “bridge fuel”[131] in the effort to reduce our reliance on fossil fuels and transition to more “sustainable” energy resources.[132] “The production of natural gas from conventional domestic sources . . . peaked in 1973,”[133] and, companies now access unconventional sources of gas, like shale gas, through a procedure known as “hydraulic fracturing.”[134] By 2035, the U.S. Energy Information Administration (EIA) predicts that shale gas will make up more than 35% of domestic natural gas production.[135]

Water is an essential component of both the drilling and deep shale fracturing process.[136] Shale fracturing requires operators to drill vertically thousands of feet underground at which point they deviate the drill bit and drill laterally through the shale—in some locations, more than 3,500 feet.[137] The wells are then “fractured” by pumping large volumes of “fracking fluid,” the primary constituent of which is water, at high pressure, into the well boring.[138] The intent is to release trapped gas by fracturing the shale.

The volume of water needed in the hydraulic fracture operation can vary substantially based on local conditions.[139] According to the New York Department of Environmental Conservation, a single well requires between 2.4 million and 7.8 million gallons of water and a fractured well “may require up to 3 million gallons of water per treatment.”[140] The DOE estimates that natural gas production uses approximately 400 million gallons of water per day.[141]

e. Nuclear

Nuclear power plants contributed 19.5% of the power generated in the United States between January 2010 and July 2010.[142] The nuclear fuel cycle involves uranium mining and processing (milling, conversion, enrichment, and fuel fabrication).[143] While nuclear power plants require more cooling water than any other electric power generating plant, when compared to other fuels, the water requirements for mining and processing uranium are minimal. “Water required for uranium mining varies from less than 1 gal[lon] per MMBtu for underground mining to 6 gal[lons] per MMBtu for surface mines.”[144] Uranium processing consumes an additional estimated seven to eight gallons per MMBtu.[145] Because the majority of uranium process mining and enrichment facilities are located outside of the United States, United States’ water resources are not implicated in much of the mining and processing activities.[146] With respect to domestic mining and processing activities, the DOE estimates that water use in domestic uranium mining and processing ranges from approximately 3 to 5 million gallons of water per day.[147]

f. Biomass

Because of its significant water demands, biomass production has come under significant scrutiny.[148] The term “biomass” includes a “wide variety of renewable plant materials that [are] converted to provide various sources of energy.”[149] Although renewable energy resources[150] (including biomass, geothermal, solar, and wind) contributed only 4.2% of the power generated in the United States between January 2010 and July 2010,[151] this number is expected to increase significantly as a result of the nation’s energy policies which call for the increased use and production of these energy sources.

Many renewable energy fuel sources make considerable demands on water resources, a dynamic of the energy–water nexus that policymakers should not overlook. Ethanol, for example, “the most commonly produced biofuel in the United States,”[152] incorporates water into its production cycle at two stages: in the growing of feedstock, which can be very water intensive, and in the refining process, which uses a modest amount of water by comparison to biofuel production.[153] Depending on where the corn is grown and whether it is irrigated, water requirements associated with ethanol production can range from 7 to 321 gallons of water per gallon of ethanol produced.[154] Water is introduced in the refining process through either the wet milling or dry milling processes.[155] A dry mill corn-ethanol facility, the most common ethanol refining process,[156] uses approximately four gallons of water per gallon of ethanol produced.[157]

In keeping with the national energy policy calling for increased use of and production of renewable resources, ethanol production rose to 9 billion gallons in January 2008, a 130% increase from January 2005.[158] Using 2008 ethanol production statistics to quantify the potential impact of ethanol production on water resources, water used to grow corn to produce ethanol ranged from 63 billion to 2.8 trillion gallons of water, while water used in the refinement process added another 36 billion gallons to ethanol’s water price tag.[159]

B. The Reciprocal Side: Water Supply Is Energy Dependent

Additional evidence of the interdependency between water and energy can be found on the flip side of the energy–water nexus. Not only is energy production water dependent, but also water production is energy dependent.[160] Meeting “the Nation’s water needs requires energy for supply, purification, distribution, and treatment.”[161] According to a recent report to Congress on the interdependency of energy and water, approximately 4% of United States power generation nationwide is used to supply and treat water.[162] In fact, electricity represents an estimated 75% of the costs associated with municipal water processing and distribution.[163]

Of all energy-dependent activities associated with municipal water supply, pumping is by far the most energy-intensive.[164] The amount of energy required for pumping water depends on the accessibility of the water in terms of depth and in terms of location of the water source in relation to the consumer. For example, pumping water from a depth of 120 feet consumes approximately 540 kWh per million gallons of water.[165] By comparison, as much as 2,000 kWh per million gallons is consumed when pumping water from a depth of 400 feet.[166]

The State of California provides us with a clear case study in the vital role that energy plays in the distribution of domestic water supply. According to the California Energy Commission 2005 estimates, in 2001 the water sector in California was the biggest electricity consumer in the state,[167] responsible for 19% of the state’s electricity use and 32% of the state’s natural gas use.[168] Electricity consumption of this magnitude results in large part from the distance between the location of the municipal water resource, in northern California, and much of California’s domestic water consumer base, located in southern California.[169] Providing domestic water supply to this consumer base requires California to convey water some 600 miles, a journey that traverses the Tehachapi Mountain range,[170] a costly proposition in terms of energy consumption.

Energy is expected to play an even bigger role in meeting our nation’s water needs as our freshwater resources become increasingly depleted. Additional energy will be required to pump water greater distances, draw water from greater depths, and access alternative sources of municipal supply.[171] These alternative sources of supply oftentimes involve processes that in and of themselves are alarmingly energy intensive.[172] For example, delivering one million gallons of clean water from a lake or river requires approximately 1,400 kWh of energy.[173] Delivering this same amount of water from groundwater and wastewater requires 1,800 kWh and upwards of 2,350 kWh, respectively.[174] Delivering the same amount of water from seawater, on the other hand, demands as much as 16,500 kWh,[175] an extremely energy-intensive process by comparison.

Despite being labeled more energy intensive than any other source,[176] the United States government is increasingly focusing on desalination as a means by which to address growing concerns over water scarcity.[177] Desalination, which most commonly involves the treatment of seawater through reverse osmosis, is a treatment process that consumes up to ten times more energy than traditional treatment of surface water.[178] In fact, energy has been identified as “the largest single variable cost for a desalination plant.”[179]

Because of the energy–water nexus, energy production is implicated in every decision made that relates to alternative sources of water. For this reason, policymakers need to remain alert to the impact that such an increased energy requirement may have on the very water resources they are looking to supplement. Similarly, because of the energy–water nexus, water resources are implicated in every policy decision that relates to energy production.

Given the interdependency between these two vital resources, it is difficult to imagine that policymakers are not taking water resources into consideration when formulating energy policy. As discussed in Parts III and IV, however, United States’ energy policy and water policy remain largely compartmentalized. Current energy policy and the resultant impacts that these policies may have on the nation’s water resources, however, necessitate a shift in this compartmentalized manner of policymaking and a movement toward the integration of these inextricably linked resources in current policy. This is particularly necessary in light of existing stressors that already seek to undermine the sustainability of our water resources.

III. The Gathering Storm: Current and Future Threats to the Nation’s Water Resources

Our nation is already facing challenges in the energy and water sectors brought on by any number of factors, including drought conditions, poor planning, and unfettered patterns of resource utilization and consumption.[180] Water scarcity, in particular, is becoming an issue for many regions of the United States.[181] Even under normal climate conditions, most states predict water shortages within the next ten years.[182] According to experts, however, we are no longer operating under “normal” climate conditions.[183] Predicted impacts from climate change along with increased demands on both the energy and the water sectors fueled by projected population growth threaten to exacerbate already stressed water resources, raising the specter of resource supply disruptions in both sectors and escalating concerns over national security.[184]

A. Potential Impacts from Projected Population Growth

“[R]ising demand for energy—fueled by both population growth and expanding uses of energy—may soon outstrip our ability to supply it with existing resources.”[185] The EIA predicts the United States population to increase by approximately 70 million people by 2021,[186] with the Census Bureau projecting the population to reach as high as 420 million by 2050.[187] In the context of electricity production, the EIA projects that “259 gigawatts of new generating capacity—the equivalent of 259 large coal-fired power plants—will be needed between 2007 and 2030” to meet the needs of the growing population.[188]

At the same time, United States trends show unparalleled per capita use of water.[189] Compared to the global average water footprint of 1,243 cubic meters per year, the average United States citizen uses 2,483 cubic meters, the largest per capita water footprint of any country in the world.[190] Simultaneously, electricity use is increasing in connection with significant population shifts to the south, where air conditioning use is high,[191] and warming trends promise to make it higher.

Of equal concern is the projected population growth in areas of the United States that are already experiencing stressed water systems. Areas in the West, for example, have already been identified by the United States Bureau of Reclamation as “at risk for serious conflict over water, even in the absence of climate change.”[192] Nevertheless, between the years 2000 and 2030, population is projected to increase 114.3% and 108.8% in Nevada and Arizona, respectively.[193] Similarly, even while Georgia, Alabama, and Florida battle over water for drinking, recreation, farming, hydropower, and environmental purposes,[194] interim projections indicate a 79.5% increase in Florida’s population by 2030 and population growth for North Carolina and Georgia at 51.9% and 46.8%, respectively.[195]

The projected increase in population, coupled with a projected population shift to areas of the country where air conditioning use is high, is expected to increase energy demands for cooling requirements, a problem that is likely to be exacerbated by predicted climate change-related warming across the nation.[196] Corroborating this trend are climate change models, which “project continued warming in all seasons across the Southeast and an increase in the rate of warming through the end of this century.”[197] Moreover, experts predict an increase in the number of “very hot days” in this region,[198] coupled with more dramatic temperature increases during those hot days.[199] Studies show that for every 1.8 degrees Farenheit increase in temperature, the demand for cooling increases 5% to 20%.[200] Because the majority of buildings are cooled using electricity, the energy industry should expect significant increases in electricity use and higher peak demands in this region.[201] For purposes of impacts to water resources, these increased demands for electricity generation translate into increased demands on water resources servicing energy-generation power plants.

B. Predicted Impacts from Climate Change-Related Conditions

In addition to burgeoning population growth, climate change poses another threat to the sustainability of our nation’s water resources. The existence of climate change is “unequivocal.”[202] The global average temperature has risen 1.5 degrees Fahrenheit since 1900 and it is projected to rise another two degrees Fahrenheit to 11.5 degrees Fahrenheit by 2100.[203] The average temperature across the United States has risen approximately 2 degrees Fahrenheit over the last fifty years and it, too, is expected to increase.[204] Moreover, during the last thirty years, average winter temperatures in the Midwest and northern Great Plains have increased more than seven degrees Fahrenheit.[205] Giving consideration to climate change-related impacts in the context of the energy–water nexus is important for a number of reasons.

First, experts predict that climate change will significantly and directly impact the nation’s water resources.[206] Because the production of energy from fossil fuels is inextricably linked to the availability of adequate water supplies, there is a high likelihood that these direct impacts to water resources will, in turn, directly impact power plant production in many regions of the United States.[207] In fact, constraints on electricity production in thermal power plants because of water shortages are already predicted for Arizona, Utah, Texas, Louisiana, Georgia, Alabama, Florida, California, Oregon, and Washington state by 2025.[208]

Second, experts link climate change primarily to “human-induced emission of heat-trapping gases” emitted from the burning of fossil fuels, including coal, oil, and gas.[209] In other words, climate change itself is intimately linked to energy production. In fact, 87% of greenhouse gas emissions come from energy production and use.[210] Because of the direct link between energy generation and the increase in temperature, policymakers are targeting the reduction of carbon dioxide emissions from the energy sector as a “primary focus” of climate change mitigation strategies.[211] Because of the energy–water nexus, however, these strategies, which include carbon sequestration and the shift to renewable forms of domestic energy, could pose additional threats to the sustainability of our nation’s water resources.

1. Predicted Source Impacts

Scientists predict that climate change will have significant direct impacts on water resources in the United States.[212] Changes in the water cycle and overall patterns of precipitation,[213] along with increases in water temperatures and water vapor in the atmosphere, are expected to impact various regions of the United States differently.[214] Experts predict that certain regions of the United States, including much of the Midwest and Northeast, will experience an increase in frequency and intensity of heavy downpours, ^[215] while others, including much of the West, Southwest, and Southeast, will experience increased drought,[216] and still others will experience both.[217]

Experts also predict reduced frost days, reduced snow cover, and longer “ice-free periods” on lakes and rivers.[218] More precipitation is expected to fall as rain rather than snow, thereby decreasing mountain snowpack and related late summer stream flow from snowmelt.[219] This change in precipitation is expected to result in higher water temperatures, reduced water availability, and resultant competition among various water users, including the energy sector.[220] Higher water temperatures caused by increased air temperatures and reduced water flow also lead to increased evaporation and resultant changes in pollution levels and aquatic ecosystems.[221]

Coastal areas should expect more intense hurricanes and related wind, rain, and storm surges,[222] along with rising sea levels associated with expanding ocean water and melting glaciers, ice caps, and ice sheets.[223] Among other impacts, rising sea levels are expected to diminish the supply of fresh water resources, including shallow aquifers,[224] by “increas[ing] the salinity of both surface water and ground water through salt water intrusion.”[225]

These climate change-related source impacts are already being felt by the energy sector. Experts expect these impacts to continue for some period of time despite society’s attempts at mitigation.[226] For example, reduced snowpack and earlier peak runoff are changing the timing and amount of stream flows impacting hydropower production.[227] In the context of thermoelectric power generation, problems arising from climate change-related impacts include: scarcity of water resources resulting in increased competition among users;[228] increased energy demand associated with cooling requirements in southern regions;[229] and warmer temperatures that impact the availability and quality of power plant cooling water.[230]

These operational impacts were recently observed throughout much of the southeast region during its recent drought—one of the worst in recorded history[231]—which lasted approximately two years and drained municipal reservoirs, cost billions of dollars in destroyed crops, and set off water wars throughout the region.[232] Twenty-two of the twenty-four nuclear reactors located in regions suffering from the most severe levels of drought rely on submerged intake pipes to withdraw cooling water from the lakes and rivers that were suffering impacts from drought conditions.[233] Reduced water levels in lakes and rivers in the southeast came exceedingly close to dropping below minimum water levels set by the NRC, which would have led to the mandatory shutdown of the nuclear plant.[234] For example, in January 2008, Progress Energy’s Harris nuclear plant, which generates electricity for some 550,000 homes,[235] was 3.5 feet away from a mandatory shutdown because of reduced water levels in Harris Lake.[236] Similarly, Duke Energy’s McGuire Nuclear Station, which provides electricity to half of its customer base in the Carolinas,[237] was less than one foot away from a mandatory shutdown.[238] Moreover, water shortages in the Catawba River Basin in 2002 required Duke Energy’s hydroelectric plants to run at 40% of capacity.[239]

Drought-reduced water levels can also cause water temperatures to increase to levels that are too hot for power plants to use as a coolant or too warm to act as receiving waters for the discharge of heated process waters from power plants.[240] This increase in temperature may lead to increases in cooling water withdrawals because of an overall decrease in cooling capacity,[241] or, as in the case of the Browns Ferry Nuclear Reactor, it may result in a shutdown, as occurred in August 2007 when the water temperature in the Tennessee River exceeded ninety degrees Fahrenheit.[242]

Decreasing the capacity of cooling water efficiency can also reduce a power plant’s power outputs,[243] thereby requiring increased power generation to meet power production demands. These impacts could have significant implications for national electric power supply, because even a reduction of 1% in electricity generated by power plants could result in a loss of 25 billion kWh per year—the amount consumed by two million Americans.[244]

Source impacts—i.e., predicted changes in the water cycle and patterns of precipitation, increased evaporation, drought conditions, the reduction in surface and groundwater levels, the salination of freshwater resources, and increased water temperatures and consequent changes in pollutant concentrations—are but one category of climate change-related impacts that threaten the sustainability of the nation’s freshwater resources and, in turn, our attempts to achieve a more sustainable energy economy. Increased demand on these resources brought about by climate change-related conditions is another. For example, the energy sector itself is likely to increase its water use in response to increased cooling demands brought on by higher temperatures in the south.[245] The increased demand for water by the agricultural sector resulting from warmer temperatures and longer growing seasons is also expected.[246]

Increased demand on water resources by other users impacts the energy sector in two ways. First, it increases the likelihood that energy production will be constrained by limited water supplies. Second, it has the potential to increase energy demands associated with pumping water from greater depths and moving water greater distances. Moreover, it may increase energy demand associated with the production of alternative sources of water supply.[247] As discussed in Part I, these alternative sources of water supply, like desalination, can be more energy-intensive than any other existing source of supply.[248]

2. Impacts from Mitigation Measures

The role that the energy–water nexus should play in climate change policymaking decisions that target the energy sector is clearly illustrated in the potential impact that climate change-related mitigation measures could have on water resources. Because energy is at the heart of climate change,[249] and because of the significant climate change-related impacts that experts predict for our water resources,[250] it may now be more accurately described as the “climate change–energy–water nexus.” “Climate affects water, water affects energy. The way we use energy affects climate . . . ,”[251] and the way we address climate change affects both.

Responses to climate change generally fall into two categories: mitigation and adaptation.[252] Mitigation focuses on prevention strategies. It is an attempt to limit climate change by addressing its underlying cause—for example, by reducing emissions of greenhouse gases. Adaptation, on the other hand, involves strategies designed to reduce the adverse effects of climate change. Because experts link climate change primarily to greenhouse gas emissions, the large percentage of which come from energy production and use,[253] mitigation strategies in the context of energy generation tend to focus on the reduction of greenhouse gas emissions from the energy production process.[254] Two mitigation strategies that could exacerbate existing water resource concerns include reducing the use of fossil fuels in the energy generation process and replacing them with fuels that emit lower levels of CO₂, including nuclear power and biofuels, and the deployment of carbon sequestration technologies.

At present, renewable resources other than hydropower account for less than 4% of the nation’s electricity production.[255] Under the current Administration, this number is slated to increase significantly. The increase in domestic renewable energy sources appears to serve two distinct purposes: (1) to reduce greenhouse gas emissions as a mitigation strategy for climate change; and (2) to increase energy security by decreasing the nation’s reliance on foreign oil.[256]

Because of the Administration’s policies concerning energy independence, this shift to “renewable” forms of energy has gained momentum. The focus in the short term appears to be on increased use of nuclear power and biofuels. President Obama recently committed to expanding the nation’s use of nuclear energy “[t]o meet our growing energy needs and prevent the worst consequences of climate change.”[257] On February 16, 2010, President Obama announced $8.3 billion in federal loan guarantees to finance nuclear power plant construction, a move he declared “is only the beginning.”[258]

Moreover, the American Recovery and Reinvestment Act of 2009 (ARRA)[259] provides a number of incentives for renewable energy development and deployment, and President Obama’s 2010 budget called for doubling the country’s renewable energy capacity in three years.[260] Furthermore, under the Energy Independence and Security Act of 2007 (EISA),[261] Congress mandated a renewable fuels standard that requires “36 billion gallons of renewable fuel to be blended into the nation’s fuel supply by 2022, with an allowance for fifteen billion gallons of corn-based ethanol by 2015.”[262] Recent statistics by the Renewable Fuels Association revealed a 130% increase in ethanol production from January 2005 to January 2008,[263] indicating that this shift to renewable energy fuels is already underway.

Policymakers must be aware that choices about emission reductions not only will have consequences for climate change-related impacts, but also may have far-reaching effects on the sustainability of our nation’s water resources. As in the case of nuclear power, for example, these more “carbon-friendly” forms of energy production pose significant trade-offs for water resources.[264] As previously discussed, nuclear power plants require an average of forty-three gallons of water for every kWh generated,[265] can withdraw more than 2 billion gallons of water a day from water sources, and some are responsible for consuming approximately 33 million gallons a day.[266] Even when not producing electricity, nuclear power plants can require up to 52,000 gallons of water per minute in cooling water.[267]

Similarly, studies paint biomass life-cycle production as a highly water-intensive activity that could seriously exacerbate water supply problems in regions of the United States where water is already scarce. Although water demands in biomass production vary greatly based on agricultural production systems and climate conditions,[268] recent studies by Argonne National Laboratory indicate that the water demand in ethanol production is “substantially in excess” of the water required in gasoline production.[269] One 2008 study concluded that the life-cycle water footprint for biofuel[270] ranges from 1,388 to 19,924 liters of water per liter of biofuel.[271] Another study found that ethanol production requires 1,700 gallons of water per gallon of ethanol produced.[272] Still another analysis concluded that biofuels “can consume 20 or more times as much water for every mile traveled than the production of gasoline.”[273] These numbers clearly illustrate how energy policy must account for life-cycle water costs.[274]

Other attempts to reduce greenhouse gas emissions as mitigation for climate change may also have significant impacts on the nation’s water resources. Carbon capture and storage (CCS), for example, could increase water demand at traditional power plants by between 20% and 33%.[275] In the CCS process, carbon dioxide is captured from flue gas, compressed to convert it from a gaseous state to a “supercritical fluid,” and transported to a sequestration site, usually by pipeline, where it is injected into deep subsurface rock formations through one or more wells to a depth where the pressure and temperature are sufficient to keep the CO₂ in a “supercritical state.”[276] Additional water is required in the process because of the additional energy required in CO₂ capture, transportation, and injection.[277] Moreover, the large majority of commercial approaches to CO₂ capture currently result in a significant energy penalty which, at a coal-fired power plant, can approach 30% because of parasitic steam loads.[278] Finally, tougher air pollution laws have led to the installation of scrubbers at many coal-generated power plants. Using scrubbers to reduce air emissions has created “vast new sources” of wastewater that contain chemicals from the scrubbing process.[279]

Our nation’s water resources are already exhibiting strain from a wide range of factors, including historic drought levels and unfettered use and consumption. Experts predict anticipated climate change-related impacts to compound these challenges which will only be further exacerbated by increased demand associated with significant population growth. This is the “water resource framework” under which policymakers currently operate. Despite the already strained state of much of the nation’s water resources, however, and despite the absence of comprehensive energy and climate change legislation,[280] aggressive policy initiatives that promote renewable energy production and deployment and establish renewable fuel standards[281] are causing a shift in the nation’s energy portfolio towards increased use of water-intensive renewable energy resources. This apparent disconnect may be due in large part to the highly compartmentalized handling of energy- and water-related issues. Historically, decisions concerning energy production have been made without consideration of water resource maintenance.[282] A cursory review of our current regulatory regimes indicates that with the limited exception of power generating facilities that fall under the jurisdiction of FERC or the NRC—and even within those regulatory regimes—compartmentalization of energy- and water-related issues remains the general rule.

IV. Compartmentalization of Energy Policy and Water Policy Under Current Regulatory Regimes

A. Energy-Based Regulation that Integrates Water-Related Issues

United States’ energy regulation consists of a “patchwork quilt of federal, state, and local agencies, many of which have jurisdiction over a discrete segment of the energy industry and none of which regulates an entire industry.”[283] On the federal level, the FERC and the NRC regulate the siting and operation of distinct modes of electric power generation—hydropower and nuclear power—which together, in 2009, produced only 27% of the nation’s electricity (6.8% and 20.2%, respectively).[284]

In each instance, to varying degrees, consideration is given to water resource utilization. Aside from this limited federal regulatory coverage, however, regulations governing the remaining 73% of power generation plant siting and operation, and the manner in which these power plants utilize and impact water resources, are often left entirely to state and local regulatory authorities.[285] These regulatory gaps, while consistent with the federal government’s historic deference to state regulation of water resources, may require reconsideration in light of the heightened concerns surrounding water resource scarcity, concerns which are only magnified by expert predictions concerning climate change-related impacts.

1. FERC Hydropower Licensing

The hydropower licensing process represents one of the few instances in which a federal regulating authority is called on to specifically consider the impact that demands generated by electrical power generation will have on water resources and to incorporate those impacts into its decision-making process.[286] FERC, originally known as the Federal Power Commission, was created under the Federal Water Power Act of 1920, which was later incorporated into the Federal Power Act (FPA),[287] to oversee the construction of hydroelectric dams on interstate rivers.[288] Under the FPA, FERC is charged with licensing and regulating non-federal (i.e., private, municipal, and state) hydroelectric projects that affect navigable waters, occupy United States public lands, use water or water power at a government dam, or affect the interests of interstate commerce.[289]

In its capacity as a licensing authority, FERC has developed three distinct licensing processes referred to as the “integrated,” “traditional,” and “alternative” licensing processes, all of which have varying degrees of FERC staff involvement at different stages of the licensing process.[290] Today, pursuant to a rule issued in July 2003, the integrated licensing process is the default process for both the licensing and relicensing of hydroelectric projects.[291] FERC incorporates water-related concerns and impacts into its decision-making throughout the licensing process. This integration of energy and water-related issues can first be seen in the “pre-application process,” which lays the groundwork for environmental studies through data gathering and interagency consultation. The integration of energy- and water-related issues can also be seen in FERC’s licensing decision-making process, as discussed below.

a. The Pre-Application Process

The FERC pre-application process requires applicants to consider, in some depth, environmental issues associated with a project, prior to filing license applications.[292] Because hydroelectric generation uses water flow through hydroelectric turbines to generate electricity, such environmental review would certainly implicate water resources. As part of the “pre-application process,” a potential applicant is required to file a notice of intent to file a license application and a pre-application document (PAD).[293] As a practical matter, “[t]he PAD serves as the foundation for issue identification, study plan development, and [FERC’s] environmental analysis” under NEPA,[294] all of which take water resource conditions into consideration.

Among other things, the PAD must include a description of the project location, facilities, and operations, including detailed maps showing lands and waters located within the project boundary. It must also include a description of existing environment and resource impacts on the following resources: geology and soils; fish and aquatic resources; wildlife and botanical resources; wetlands, riparian, and littoral habitat; rare, threatened, and endangered species; recreation and land use; aesthetic resources; and the river basin, among others.[295] Specifically, with respect to water resources, the PAD must describe the proposed project’s water resources and water resources in the surrounding area, and must address the quantity and quality of those water resources affected by the project through the discussion of several items, including:

1. Drainage area;

2. The monthly minimum, mean, and maximum recorded flows in cubic feet per second of the stream or other body of water at the power plant intake or point of diversion . . . ;

3. A monthly flow duration curve . . . ;

4. Existing and proposed uses of project waters for irrigation, domestic water supply, industrial and other purposes, including any upstream or downstream requirements or constraints to accommodate those purposes;

5. Existing instream flow uses of streams in the project area that would be affected by project construction and operation . . . ;

6. Any federally-approved water quality standards applicable to project waters;

7. Seasonal variation of existing water quality data for any stream, lake, or reservoir that would be affected by the proposed project . . . ;

8. The following data with respect to any existing or proposed lake or reservoir associated with the proposed project; surface area, volume, maximum depth, mean depth, flushing rate, shoreline length, substrate composition; and

9. Gradient for downstream reaches directly affected by the proposed project.[296]

Notice and circulation of the PAD starts “a process of give and take between the applicant, the FERC staff, and the commenting agencies.”[297] As part of the pre-application process, the applicant is required to consult with “relevant Federal, state, and interstate resource agencies, including as appropriate the National Marine Fisheries Service, the United States Fish and Wildlife Service, . . . the United States Environmental Protection Agency, the Federal agency administering any United States lands utilized or occupied by the project, the appropriate state fish and wildlife agencies, the appropriate state water resource management agencies, [and] the certifying agency or Indian tribe under Section 401(a)(1) of the [CWA].”[298] The applicant must integrate the responses of agencies expressing concerns into project proposals.[299] Agency comments are used by FERC to initiate the review process under NEPA and by the applicant to construct a “study plan” by which it will provide more detailed environmental impact information, all of which will ultimately result in a “preliminary licensing proposal” that, if satisfactory, will conclude in the submission of the license application. ^[300]

b. Factors Considered by FERC in Its Licensing Decisions

Once FERC receives the application for a license or relicense, it evaluates the project within the NEPA framework and according to a set of nine factors to determine whether the license is “best adapted to serve the public interest.”[301] This “public interest” analysis is another example of the way in which FERC considers water resources in its hydropower licensing process. In addition to nine public interest factors, FERC must determine the terms of the license with consideration given to the extent to which the proposed project is consistent with federal or state comprehensive plans for improving, developing or conserving waterways impacted by the project.[302] Specifically, under FPA Section 10(a):

[T]he project adopted . . . shall be . . . [the] best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, for the adequate protection, mitigation, and enhancement of fish and wildlife . . . and for other beneficial public uses, including irrigation, flood control, water supply, and recreation[] . . . .[303]

In order to ensure that the project “will be best adapted to the comprehensive plan”[304] FERC is required to consider, among other things, the extent to which the project is consistent with a filed comprehensive plan as well as any recommendations by agencies exercising authority over fish and wildlife, flood control, navigation, irrigation, recreation, cultural, and other relevant resources of the State in which the project is located.[305]

At a minimum, the FPA Section 10(a) review appears to integrate energy- and water-related issues in each of FERC’s licensing decisions. One of the most obvious limitations associated with FERC’s hydropower licensing process, however, is the limited scope of its jurisdiction. As previously mentioned, FERC’s licensing process only applies to a small percentage of electricity generating power plants. Moreover, there are no doubt challenges associated with reaching a consensus of many agencies with divergent interests concerning the parameters of a specific project. To further underscore the shortcomings that may be associated with FERC’s regulations, this last challenge is overcome in FERC’s licensing scheme, perhaps by necessity, by leaving the “best interest”[306] determination solely in the hands of FERC,[307] a party whose mission it is to “assist customers in obtaining reliable, efficient and sustainable energy services.”[308]

Nevertheless, FPA Section 10(a) could serve as a framework for the analysis to further integrate energy and water-related concerns and to advance the goal of achieving sustainability of our water resources. Contemplating, at the outset of the licensing or relicensing of an energy project, a plan to adapt an energy project to an overall comprehensive plan for water resources would certainly advance national efforts to achieve sustainability of our water resources. Among other things, contemplating such a plan benefits commerce, utilizes energy production, protects, mitigates, and enhances ecosystems, and provides for other beneficial public uses like irrigation, flood control, water supply, and recreation and would further promote efforts to create a more sustainable energy economy in support of our nation’s current energy and national security goals.

2. NRC Nuclear Power Plant Licensing

Licensing of nuclear power plants under the Atomic Energy Act of 1954 (AEA)[309] represents the second instance in which a federal energy-based regulatory regime contemplates the integration of energy and water-related issues. Similar to the limitations seen under the FERC licensing regime, licensing by the NRC is limited to nuclear power plants, only one segment—albeit a growing segment—of power generating facilities. Although the NRC review process appears, on its face, to be comprehensive in its integration of energy- and water-related issues, a significant limitation exists in that, with the exception of a NEPA review, the integration of energy- and water-related issues occurs only in connection with safety-related issues. Although, in the case of a nuclear reactor, safety is of vital importance, it far from covers the scope of water- and energy-related issues that require integration in the pursuit of sustainability of the nation’s water resources.

As a general overview, constructing a nuclear facility requires compliance with NEPA and the AEA’s licensing provisions.[310] Most, if not all, presently operating nuclear power plants are licensed under Part 50 of the Code of Federal Regulations,[311] a licensing process that involves two distinct chronological steps: 1) obtaining a construction permit; and 2) obtaining a license to operate.[312] In 1989, in an attempt to standardize the licensing process and avoid the duplicative efforts that plagued the Part 50 process, the NRC[313] adopted a new reactor licensing process—the Part 52 process.[314]

Part 52 divides the licensing process into three separate standardized licenses: the Early Site Permit (ESP); the Design Certification (DC); and the Combined Operating License (COL).[315] The ESP process is a site permitting process that allows a permit applicant to resolve issues relating to a chosen site—in particular, issues relating to site safety, environmental concerns, and emergency preparedness—before having to commit to a particular nuclear reactor design.[316] Once issued, the siting permit allows the permit holder to “bank” the approved site for a period of up to forty years before commencing construction of the proposed nuclear facility.[317]

The DC process was designed “to streamline new reactor licensing without sacrificing security and safety.”[318] Under Part 52, applicants may seek “certification” of a standard nuclear reactor design, which may, in turn, be purchased by a company for construction on an approved nuclear reactor site—for example, a site with an ESP.[319] Because the facility design would have already undergone the design scrutiny associated with the DC process, the applicant seeking to construct the nuclear facility would not be required to undergo facility design review again.[320]

Finally, the COL process combines construction and operating licensing into a one-step process. The procedures for obtaining approvals are similar to the processes involved in Part 50, the primary difference being that an applicant who previously availed himself of the ESP and DC processes would only need refer to them in the COL application, and as such, would not be made to revisit issues (such as environmental issues related to site approval) already “addressed” in the previous processes.[321]

The NRC permitting process integrates energy and water-related issues through several different mechanisms. In the case of an ESP application, for example, the NRC staff evaluates issues related to site safety, emergency planning, and environmental protection. The NRC documents findings related to site safety and emergency planning in a safety evaluation report and documents findings relating to environmental protection issues in an environmental impact statement (EIS).[322] Issues existing at the energy–water interface are addressed in both the environmental report and safety report, as discussed below.

a. The Environmental Report

The environmental report section of the ESP application serves as the starting point for the NRC’s EIS.[323] Among other things, the applicant’s environmental report is required to contain:

a description of the proposed action, a statement of its purposes, a description of the environment affected, . . . [a discussion of t]he impact of the proposed action on the environment[,] . . . [a]ny adverse environmental effects which cannot be avoided should the proposal be implemented[,] [a]lternatives to the proposed action[,] . . . [t]he relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity[,] and [a]ny irreversible and irretrievable commitments of resources which would be involved.”[324]

The report also requires an analysis that “considers and balances the environmental effects of the proposed action, the environmental impacts of alternatives to the proposed action, and alternatives available for reducing or avoiding adverse environmental effects.”[325]

A guidance document intended to assist NRC staffers responsible for nuclear power plant environmental reviews provides guidance to applicants concerning the degree to which the applicant’s environmental review and the NRC’s EIS should examine water-related issues.[326] Environmental Review Plan (ERP) Section 2.3, for example, is devoted entirely to hydrological and water quality issues. Among the many subsections of ERP Section 2.3, is the Environmental Standard Review Plan (ESRP) 2.3.1, titled “Hydrology,” which “directs the staff’s description of the surface-water bodies and groundwater aquifers that could affect the plant-water supply and effluent disposal or that could be affected by plant construction or operation of the proposed project.”[327] ESRP 2.3.1 further provides that:

The scope of review directed by this plan includes consideration of site-specific and regional data on the physical and hydrological characteristics of ground and surface water in sufficient detail to provide the basic data for other reviews addressing the evaluation impacts on water bodies, aquifers, aquatic ecosystems, and social and economic structures of the area.[328]

Related surface and groundwater “data and information needs” identified in this section include:

• Regarding freshwater streams within the watershed:
  • A list of major streams, including the size of the drainage area and gradient;
  • Maximum, average maximum, average minimum, and minimum monthly flow;
  • Flood frequency distribution; and
  • Historical drought stages and discharges by month, and the seven-day once-in-ten years low flow.
• Regarding lakes and impoundments:
  • A general description;
  • Influential intake or discharge structures, as well as the size, location, and elevation of outlets;
  • Variations in inflows, outflows, and water surface elevations; and
  • Storage volumes and retention times.
• Regarding groundwater:
  • Areal extent of aquifers, recharge, and discharge areas, elevation and depth, and geologic formations;
  • Interactions between site surface and groundwaters;
  • Recharge rates; and
  • Designations or proposals for designation of “sole source aquifers.”[329]

Similarly, the scope of review under ESRP 2.3.2, titled “Water Use,” includes: “(1) consideration of such water uses as domestic, municipal, agricultural, industrial, mining, recreation, navigation, and hydroelectric power, (2) identification of their locations, and (3) quantification of water diversions, consumption, and returns.”[330]

Similar ESRPs exist for water quality[331] and water treatment,[332] among others. The scope of review under ESRP 3.3.1, entitled “Water Consumption,” calls for consideration of the “quantity of water required for plant operation, the amount of water consumed by the plant water systems, and the amount of water discharged to a water body.” The analysis is based on the rationale that “[a] detailed and thorough description of the plant water consumption is essential for the evaluation of potential impacts to the environment that may result from plant, construction, or operation.”[333]

This last statement raises an important limitation to the integration of energy- and water-related issues in the context of the environmental report. That is, the analysis, although an apparently thorough one, is only performed with an eye toward “environmental impacts.” Considerations supporting the integration of energy and water-related issues in the context of power plant siting extend far beyond environmental impacts to include water scarcity, potential competition among various uses, and national security concerns. Moreover, issues identified in the NEPA analysis are identified in order to ensure that the NRC’s decision to grant a permit is an informed one.[334] NEPA does not require the NRC to choose an alternative that is the “right alternative.”[335] It merely requires the agency to comply with a decision-making process that forces them to consider environmental impacts of the proposed action (in this case granting a permit) along with comparative impacts associated with reasonable alternative actions.[336]

b. The Site Safety Analysis Report

In addition to submitting an environmental report as part of its application, the applicant is required to submit a site safety analysis report, which contains detailed information concerning the design of structures, systems, and components at a proposed nuclear facility.[337] The NRC reviews the applicant’s report and summarizes its findings in a safety evaluation report. Like the environmental report, the applicant must integrate energy- and water-related issues, only in this context, the integration is limited in scope to operational safety issues. The site safety analysis report is required to include:

• The specific power level of the facilities and anticipated maximum levels of radiological and thermal effluents each facility will produce;
• The type of cooling systems, intakes, and outflows that may be associated with each facility;
• The boundaries of the site and general location of each facility on the site;
• The seismic, meteorological, hydrologic, and geologic characteristics of the proposed site with appropriate consideration of the most severe of the natural phenomena that have been historically reported for the site and surrounding area and with sufficient margin for the limited accuracy, quantity, and period of time in which the historical data have been accumulated;
• The existing and projected future population profile of the site’s surroundings;
• A description and safety assessment of the facility’s proposed site;
• Information demonstrating that site characteristics allow for development of adequate security plans; and
• An evaluation of the site against applicable sections of the Standard Review Plan (SRP).[338]

The Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants[339] is considered “the most definitive basis available for specifying the NRC’s interpretation of an acceptable level of safety for light-water reactor facilities.”[340] Because cooling water availability is a key factor in nuclear reactor safety, the integration of energy- and water-related issues occurs in connection with the applicant’s safety evaluation report. In that regard, the above-referenced Standard Review Plan contains a number of comprehensive SRPs that deal specifically with issues identified at the energy–water interface. These include, among others, SRP 2.4.1 titled Hydrologic Description, SRP 2.4.2 titled Floods, SRP 2.4.11 titled Low Water Considerations, and SRP 2.4.12 titled Groundwater. ^[341]

In each of the report’s “areas of review,” the applicant is required to gather historical data relating to the proposed site to determine whether the design, structures, systems, and components of the proposed facility meet the NRC’s regulatory requirements. For example, SRP 2.4.11 is included in the site safety analysis because “[l]ow water conditions could adversely affect sources of water required for cooling the proposed plant. Accordingly . . . [regulatory] requirements are imposed to ensure that components and structures associated with the ultimate heat sink will continue to function, thereby keeping the plant in safe condition.”[342] Under SRP 2.4.11, when assessing whether the proposed nuclear plant can safely operate under the “low water conditions” unique to the proposed site, the NRC considers, among other things:

• Historical data concerning drought-related low water conditions at and in the vicinity of the site, including initiating phenomena, locations, and durations, and data related to the “worst drought considered reasonably possible in the region;”
• Data concerning non-drought related low-water levels caused by other phenomena, including other hydrometeorological events and the blockage of intakes by sediment, debris, littoral drift, and ice, including locations and durations of the events;
• The potential for “other anthropogenic water uses [that] could exacerbate the natural causes of low water” including “use limitations imposed or under discussion by Federal, State, or local agencies authorizing the use of water,” or institutional restraints on water use such as limitations on use and discharge permits;
• A description of all safety-related water supply requirements at or in the vicinity of the site, including the design basis of the plant’s intake system; and
• Applicant’s “assessment of the potential effects of site-related proximity, seismic, and non-seismic information on the postulated worst-case low-flow scenario for the proposed plant site.”[343]

If the assessment reveals safety concerns, modifications to the proposed facility plan or site selection may be required.[344]

As of January 2010, twenty-six applications for newly-built reactors had been filed with the NRC.[345] While there is some comfort in knowing that issues relating to the energy–water nexus are being considered in connection with the upsurge of licensing applications for this extremely water-intensive form of power generation, it is important to keep in mind the limitations of the analyses being performed. As previously discussed, integration of energy and water-related issues performed in the context of the environmental review are limited in scope to environmental impacts.[346]

Similarly, in the context of conducting a safety evaluation, integration of energy- and water-related issues takes place for the limited purpose of safety review, which although important in the context of nuclear power, fails to consider the many dimensions of energy- and water-related issues that require integration in order to achieve sustainability of our water resources. Moreover, included among these additional considerations, are potential climate change-related impacts which may require adaptation strategies. Such consideration appears to be missing from the NRC’s current licensing regime.

For example, when assessing whether a proposed plant can operate safely under low water conditions, NRC guidance calls for an examination of water use limitations “imposed or under discussion by Federal, State, or local agencies authorizing the use of water.”[347] This may be an accurate depiction of water resource availability and the capacity of the plant’s safety features to respond to today’s low water conditions, but whether this is an accurate depiction of water resource availability and the capacity of the plant’s safety features to respond to conditions forty years from now, when the license term expires,[348] is questionable, particularly with the dawn of climate change-related impacts.

An even more fundamental question arises in connection with the NRC’s reliance on historical data, like drought conditions and flood events, in determining whether the safety-related plant features can effectively withstand like conditions. As in the case of flooding, for purposes of an ESP, an applicant considers:

[T]he most severe natural phenomena that have been historically reported for the site and surrounding area and reasonable combination of these phenomena in establishing design-basis information pertaining to the local intense precipitation, flooding causal mechanisms, and the controlling flooding mechanism, with sufficient margin for the limited accuracy, quantity, and period of time in which the historical data have been accumulated.[349]

Will the built in “margin” be significant enough to accommodate climate change-related precipitation events, the severity of which is still unknown? Increasingly, scholars are concluding that historical data cannot be relied on to predict conditions impacted by climate change: “Accurate prediction of climate change effects on local ecological conditions is, for now (and perhaps always will be), beyond the capacity of ecological models.”[350] Further, “the effects of climate change will themselves be complex—ever-changing, often unpredictable, and subject to feedback mechanisms that may not be completely understood and that may change over time.”[351]

This further begs the question of whether, in the era of climate change, public health and safety concerns are adequately addressed by a licensing process that relies on historical data to grant site approvals that may be “banked” for up to forty years. The NRC’s new permitting regime is meant to provide “predictability” in the licensing process by offering finality on issues assessed during the ESP phase of permitting, before an applicant commits resources to construction. In that regard, with limited exception, the NRC staff is precluded from imposing new site characteristics, design parameters or terms and conditions on an ESP at the COL permitting stage.[352] We may find that, for public health and safety reasons, in this climate change-created “world of triage, best guesses, and shifting sands,”[353] a COL application that relies on an ESP granted decades earlier, the terms of which are based on historic data from that time may, by definition, call for the reassessment of the environmental and technical assumptions upon which the ESP was based.

Outside of the limited analyses performed by the FERC and the NRC, on the limited segment of energy production generation facilities that fall within their discrete jurisdictions, there is no federal mandate arising from energy-based regulation that requires decision-making authorities at the federal or state level to consider water resource management in connection with decisions concerning siting and operation of the remaining 77% of energy production power plants facilities. Although the analysis performed in connection with FERC and NRC licensing exhibit some degree of energy and water policy integration, each instance is limited in scope and, for the reasons outlined above, fails to address vital issues relating to the sustainability of our nation’s water resources. As will be discussed in the next section, dialogue among policymakers concerning the interdependency between water and energy is beginning. Based on the roles that the federal and state governments have historically played in the areas of water policy and energy policy, however, the likelihood of such a federal mandate in the near future appears slim.

B. Water-Based Regulation that Integrates Energy-Related Issues

A cursory examination of the degree to which water-based regulatory regimes integrate energy-related issues reveals two CWA provisions that deserve note. These include CWA Section 316(b), which is designed to prevent entrainment of aquatic life at cooling water intake structures;[354] and CWA Section 303(d), which requires states to identify impaired waters and Total Maximum Daily Loads (TMDLs) for those waters,[355] which are, in turn, incorporated into National Pollution Discharge Elimination System, or NPDES, permits.[356] In that these two provisions, for different reasons, promote closed-loop cooling systems, a more water consumptive cooling process, they symbolize the complexity associated with issues that exist at the energy–water nexus.

As previously discussed, CWA Section 316(b) targets cooling water intake structures. Compliance with this provision requires U.S. Environmental Protection Agency (EPA) to ensure that the “location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.”[357] Because entrainment is associated more often with the open-loop cooling process that withdraws greater quantities of water from the water resource, the best technology available for minimizing entrainment is likely to involve the closed-loop or air-cooling process.[358]

CWA Section 303(d) may promote increased use of closed-loop cooling systems for a different reason. CWA Section 303(d) requires states to identify a list of impaired waters that are not meeting established state water quality standards and establish TMDLs for those water bodies.[359] A TMDL establishes the maximum amount of a pollutant that can be discharged to a water body in order for it to meet established water quality standards.[360] The TMDL allocates pollutant loads among pollutant sources and provides a basis for states to establish water quality-based controls that provide the pollution reduction necessary for a water body to meet established water quality standards.[361] TMDL requirements could constrain a power plant’s discharge of cooling water if it contained certain levels of pollutants and if the receiving waters were impaired.[362] A closed-loop cooling system avoids problems associated with discharging water containing pollutants into an impaired water body.

Because closed-loop cooling systems consume more water in the cooling process than open-loop cooling systems, water consumption levels by the energy sector in response to these CWA provisions are expected to increase.[363] While addressing issues relating to entrainment and pollution is clearly in support of achieving sustainability of our nation’s water resources, promoting the use of a more consumptive form of the cooling process seems contrary to these goals.

V. Energy and Water Policy: Does It Help or Hinder?

With the exception of facilities governed under the limited jurisdiction of the FERC and the NRC, state public utility commissions are traditionally responsible for regulating energy-generating facilities located in their state.[364] As noted, historically, decisions concerning energy production have been made without consideration paid to water resource maintenance and vice versa.[365] The increasing occurrences of water shortages in various regions coupled with the promise of increased demand and climate change-related impacts lead policymakers to rethink these historical assumptions. The prospect of energy disruption, the realization that our current path leads to increased competition and prioritization among various water users, and the concomitant threat to energy independence, renewable resource development, and national security that accompanies conditions of water scarcity and energy interruption all point to the need to create a “more sustainable energy economy.”

A. Energy Policy

A review of the current Administration’s agenda items, recent energy-related legislative activity, and activities by various federal agencies that play an important role in the energy sector reveals a national “energy policy” that focuses on three primary issues: climate change,[366] energy independence and security, and renewable resources. Although these issues are central to the problems arising at the energy–water nexus, recent legislation and activities by the various agencies are still failing to consider the impact that these policy-driven activities will have on the already stressed state of our nation’s water supply as recently seen in the policy initiatives calling for an increased production and use of water-intensive renewable resources.

Some of the more significant energy-related legislation includes the 2005 Energy Policy Act (EPAct),[367] EISA, and ARRA, each of which calls for an increase in water-intensive domestic renewable fuels production. EPAct, for example, established a DOE loan guarantee program to support development of renewable energy and other clean energy technologies,[368] as well as authorized $800 million of new clean renewable energy bonds to finance facilities generating electricity from renewable sources.[369] EPAct also created a Renewable Fuel Standard program, whereby Congress required an increasing volume of renewable fuel, including ethanol, biodiesel, and all motor vehicle fuels derived from biomass, be used in gasoline in the United States starting in 2006 and increasing annually through 2012.[370]

EISA continued the effort to increase production of renewable energy by increasing the annual statutory renewable fuel volumes established in EPAct, extending the Renewable Fuel Standards Program through 2022[371] and mandating the production of renewable fuels from “renewable biomass.”[372] Finally, ARRA allocated some $6 billion in new funds to support the DOE loan guarantee program originally established under EPAct,[373] extended and modified the tax incentives made available to businesses and individuals involved in development and production of renewable energy sources under EISA,[374] and authorized an additional $1.6 billion in clean renewable energy bonds.[375]

Although certainly in advance of the current Administration’s energy agenda, these recent energy-based policy initiatives fail to integrate water-related issues into policies that clearly promote more water-intensive forms of energy production. Instead, these policies signal the ongoing lack of integration, by policymakers, of energy- and water-related issues in the context of national energy policy.

B. Water Policy

In contrast to the failure by policymakers to integrate water resource considerations into energy-based legislation, policymakers recently experienced a measurable degree of success in integrating energy-related activities into a water-based national assessment program. In what has been touted as a move toward national water planning,[376] in March 2009, Congress enacted the OPLMA, in which it created a National Water Availability and Use Assessment Program (NWAUAP) in the Department of the Interior.[377] Using energy production as a prominent justification,[378] this program directs the Secretary of the Interior to create and maintain “a comprehensive national water use inventory” and “conduct an ongoing assessment of water availability.”[379] The goals of this program are:

(1)    [T]o provide a more accurate assessment of the status of the water resources of the United States;

(2)    [T]o assist in the determination of the quantity of water that is available for beneficial uses;

(3)    [T]o assist in the determination of the quality of the water resources of the United States;

(4)    [T]o identify long-term trends in water availability;

(5)    [T]o use each long-term trend described in paragraph (4) to provide a more accurate assessment of the change in the availability of water in the United States; and

(6)    [T]o develop the basis for an improved ability to forecast the availability of water for future economic, energy production, and environmental uses.[380]

The Secretary is required to incorporate its findings in a report to Congress by December 31, 2012, and every five years thereafter.[381] The required data will help to shed light on a number of key issues that exist at the intersection of energy and water. Specifically, OPLMA Section 9508(d) requires the Secretary to provide a detailed assessment of:

(1)    the current availability of water resources in the United States, including—

(A)   historic trends and annual updates of river basin inflows and outflows;

(B)   surface water storage;

(C)    groundwater reserves; and

(D)   estimates of undeveloped potential resources (including saline and brackish water and wastewater);

(2)    significant trends affecting water availability, including each documented or projected impact to the availability of water as a result of global climate change;

(3)    the withdrawal and use of surface water and groundwater by various sectors, including—

(A)   the agricultural sector;

(B)   municipalities;

(C)    the industrial sector;

(D)   thermoelectric power generators; and

(E)    hydroelectric power generators;

(4)    significant trends relating to each water use sector, including significant changes in water use due to the development of new energy supplies;

(5)    significant water use conflicts or shortages that have occurred or are occurring; and

(6)    each factor that has caused, or is causing, a conflict or shortage described in paragraph (5).[382]

Although limited in scope to federal water projects, OPLMA integrates energy and water-based issues, as well as climate change-related impacts by requiring the Secretary to “assess each effect of, and risk resulting from, global climate change with respect to water supplies that are required for the generation of hydroelectric power at each Federal water project that is applicable to a Federal Power Marketing Administration.”[383] Moreover, OPLMA Section 9503 goes so far as to “establish a climate change adaptation program,”[384] although the scope of the program is specifically limited to “area[s] that encompass[] a watershed that contains a federally authorized reclamation project.”[385] Provisions of this program require the Secretary:

(1)    to coordinate with . . . other appropriate agencies to assess each effect of, and risk resulting from, global climate change with respect to the quantity of water resources located in a [reclamation project] service area; and

(2)    to ensure, to the maximum extent possible, that strategies are developed at watershed and aquifer system scales to address potential water shortages, conflicts, and other impacts to water users located at, and the environment of, each service area.[386]

With respect to each major reclamation river basin, the Secretary is also required to analyze, among other things, “the extent to which changes in the water supply of the United States will impact . . . hydroelectric power generation facilities.”[387] Additionally, “[i]n consultation with appropriate non-Federal participants,” the Secretary must “consider and develop appropriate strategies to mitigate” any such impact to hydroelectric generation facilities including strategies relating to “the modification of any reservoir storage or operating guideline in existence as of [the date of OPLMA’s enactment]; the development of new water management, operating, or habitat restoration plans; water conservation; improved hydrologic models and other decision support systems; and groundwater and surface water storage needs.”[388]

Also falling under the heading of water policy, the EPA Administrator “has identified ‘clean energy and climate change’ as a top Agency priority, and EPA national and Regional offices are working to define strategies and actions in th[e] area.”[389] In an effort to “describe climate change impacts on water programs, define goals and objectives for responding to climate change, and to identify a comprehensive package of specific response actions,” EPA released its National Water Program Strategy: Response to Climate Change in 2008, in which EPA outlines its plans to work cooperatively with national, state, and local governments and public and private stakeholders to “understand the science, develop tools, and implement actions to address the impacts of climate change on water resources.”[390]

On a positive note, dialogue concerning the interdependency between water and energy is starting to take place as policymakers begin to recognize that this nexus holds an important key to developing a more sustainable energy economy. For example, in response to a December 2004 letter[391] to the Secretary of Energy from the chairman and ranking members of the House and Senate Subcommittees on Energy and Water Development Appropriations, the DOE issued a December 2006 report entitled Energy Demands on Water Resources: Report to Congress on the Interdependency of Energy and Water,[392] cited throughout this Article, which focuses on the “interdependency of energy and water” and the “threats to national energy production resulting from limited water supplies.”[393]

More recently, the DOE, in conjunction with the National Energy Technology Laboratory, issued a report entitled Estimating Freshwater Needs to Meet Future Thermoelectric Generation Requirements,[394] also cited throughout this Article. In this report, the DOE recognized the need to reconcile “[g]rowing concerns about freshwater availability . . . with growing demand for power if the United States is to maintain economic growth and current standards of living.”[395]

A selection of bills introduced in the House and Senate offers further evidence that the message is being heard. For example, HR 3598, entitled the Energy and Water Research Integration Act,[396] recently passed by the House, is designed “to ensure consideration of water intensity in the DOE’s energy research, development, and demonstration programs to help guarantee efficient, reliable, and sustainable delivery of energy and water resources.”[397] Similarly, a bipartisan bill recently introduced to the Senate, the Energy and Water Integration Act of 2009,[398] calls for three major new studies detailing different dimensions of the energy–water interface.[399] The first study targets the impact of energy development and production on United States’ water resources, broken down by three distinct sectors, one of which is the electricity sector.[400] This study would also analyze water impact associated with specific fuel sources, including any impacts resulting from extraction or mining practices.[401] The second study targets electrical power plant water and energy efficiency.[402] And the third study targets energy use by the Bureau of Reclamation’s water storage and delivery operations.[403] The future of this bill and others like it remains unknown, particularly in light of the recent turnover of the House of Representatives, where “many . . . dismiss strong scientific evidence of human-caused warming.”[404]

Despite the growing dialogue, ongoing assessments, and legislative initiatives, for the most part, energy and water policy still operate in separate spheres and lack the integration required to trigger the coordinated effort necessary to make any meaningful and timely impact on the crisis developing in our energy and water sectors.

VI. Challenges and Solutions: Steps Toward Achieving a “More Sustainable Energy” Economy

Creating a more sustainable energy economy is a complex undertaking which necessitates a bilateral approach to managing the issues identified in this Article. First, in order to avoid compounding problems that already exist at the energy–water interface, and to further the goals associated with creating and maintaining a sustainable energy economy, all future energy-based policy initiatives must be examined through the lens of, and influenced by, the dynamics of the energy–water nexus. In today’s world, this analysis should certainly be influenced by current and anticipated climate change-related impacts.

Second, laying the groundwork necessary to create and maintain the sustainable energy economy vital to the success of our nation’s energy policies requires us to undertake a massive national planning effort. Developing the policy framework by which to manage this large-scale planning effort is a formidable task. Policymakers who are versed in the interdependency between water and energy would no doubt agree that our nation’s waters lie at the center of this planning effort. This Article goes a step further to suggest that the path to achieving a sustainable energy economy starts with achieving sustainability of our nation’s water resources. In that regard, this Article suggests that the policy framework by which to achieve sustainability of our nation’s water resources which, in turn, will support national efforts to create a more sustainable energy economy, requires participation by federal and state stakeholders and integration of federal and state planning efforts in a large-scale watershed planning and management program that incorporates the dynamics of the energy–water nexus.

The idea of watershed planning is not a new one.[405] The watershed planning process, as described by EPA, is a process which identifies a series of “cooperative, iterative steps to characterize existing conditions, identify and prioritize problems, define management objectives, develop protection or remediation strategies, and implement and adapt selected actions as necessary.”[406] Although watershed management and planning is often discussed in the context of restoring impaired water bodies,[407] a large-scale national planning effort could lay the groundwork necessary to achieve sustainability of the nation’s water resources. Even states like Florida, which are at the forefront of watershed planning,[408] could benefit from this larger national effort.[409] Before turning to the task of detailing the framework for this large-scale planning effort, however, several significant challenges that are implicated in any discussion concerning the federal government’s role in water planning deserve consideration—these involve the concept of “federalism” and identifying the appropriate governance structure by which to achieve these lofty goals.

A. Challenges Associated with Pursuing National Watershed Planning: The Concept of Federalism

“Federalism” has been described as the interaction between the two layers of government in the United States—the federal government and the state government.[410] The passing of the OPLMA supports the proposition that federal policymakers are making progress in acknowledging the impacts that climate change generally, and energy production specifically, are having and will continue to have on the nation’s water resources for years to come. Despite this progress, however, political and legal mechanisms that are currently in place concerning the states’ authoritative role in managing water resources within state boundaries will pose significant barriers to any policymaker using federal water-based regulation and policymaking as the sole means by which to create and maintain a sustainable energy economy.[411]

Throughout federal water-related legislation, Congress has made it clear that the state reigns supreme in the allocation and administration of water within its boundaries.[412] An example of Congress’s deference to the authority of the states in this regard is clearly articulated in the Clean Water Act, which provides:

It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any State.[413]

Even the seemingly groundbreaking OPLMA, which toys with the notion of national water planning, ardently reiterates that the “States bear the primary responsibility and authority for managing the water resources of the United States, [and] the Federal Government should support the States, as well as regional, local, and tribal governments,” in their efforts.[414]

“Past federal deference to state water law and policy has been based largely on the notion that states and localities are better qualified to make decisions that are influenced by variable local physical and economic conditions.”[415] Although the federal government has “influenced state water law and policy through financial investments in infrastructure and technology,” through regulations designed to address issues like environmental protection, and through the resolution of interstate disputes, “only rarely [has the federal government] disturbed the core authority of the states to allocate water resources among competing users—what might be viewed as the heart of water law and policy.”[416]

As illustrated by recent energy-based policy initiatives, an attempt by policymakers to avoid triggering the federalism-related challenges often associated with water-based initiatives by using energy-based regulatory schemes to create a sustainable energy economy is likely to prove ineffective for several reasons. First, because of the energy–water nexus, policy initiatives that fail to take water resources into consideration only exacerbate existing problems which, in turn, only undermines the very energy-based policies being pursued. Second, federalism-related challenges are not altogether avoided by legislating in the energy policy arena. Similar to the degree of federal deference afforded states in their role as water resource managers, the federal government has often deferred to the states in energy facility siting decisions and in regulating the operation of energy production facilities.[417]

Even in the context of regulating nuclear power, Congress has made it clear that excepting issues relating to nuclear power plant safety, state regulatory schemes govern. As articulated in Section 274(k) of the AEA, “[n]othing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.”[418] Moreover, the Supreme Court has identified the AEA as an example of Congress legislating “in a field which the States have traditionally occupied.”[419] Specifically,

Congress, in passing the 1954 Act and in subsequently amending it, intended that the Federal Government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant, but that the States retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, cost, and other related state concerns.[420]

As further articulated by the NRC Atomic Safety and Licensing Appeal Board, “[s]tates . . . retain the right, even in the face of the issuance of an NRC construction permit, to preclude construction on such bases as a lack of need for additional generating capacity or the environmental unacceptability of the proposed facility or site.”[421]

Because of the historic roles that states have played in decisions relating to water resource management and energy production, under the political and legal mechanisms currently in place, any legislative initiative targeted at creating and maintaining a sustainable energy economy by way of water resource management will implicate federalism concerns. As such, in any responsive legislation, policymakers will be called upon to strike the “proper” balance between federal and state governmental authority.

B. Challenges Associated with Pursuing National Watershed Planning: Identifying the Appropriate Governance Structure

In addition to federalism-related concerns, policymakers striving to lay the groundwork for creating a more sustainable energy economy will also be required to contend with the related and equally challenging issue of determining the most effective governance structure. On the issue of governance, the national, international, and global nature of climate change-related issues have prompted many policy analysts to call for a “fundamental reassessment” of existing governance structures—one that shifts the balance of federalism and incorporates considerations relating to the “character of different environmental problems and the appropriate contributions that different levels of government can make in solving them.”[422] Similar governance issues arise in the context of achieving sustainability of our water resources.

Because states have historically played a primary decision-making role in the areas of water law and policy, current regulatory regimes arguably place the burden of developing a “more sustainable energy economy” squarely on the shoulders of the states. Given the national, international, and global scale of the issues policymakers are looking to address, however, placing this obligation or this power in the hands of states operating in furtherance of state interests results in a mismatch of both “natural and political scales.”[423] This mismatch of scales arguably imposes significant constraints on any attempt to develop effective regional, national, international, and global solutions to the problems policymakers are hoping to address.

Proffered approaches to address governance-related challenges have ranged from encouraging an “enhanced federal role in water resource law and policy”[424] to implementing a “national water policy”[425] to the suggestion that Congress must “undertake wholesale change in the statutes.”[426] Another theory views the issue as one involving a “trade-off: deference to states in water matters comes at a cost of protecting national interests.”[427] In the end, how, and whether, federalism will be rebalanced and the governance structure that will be identified by policymakers as most effective in addressing challenges relating to sustainability of water resources and responding to dilemmas that exist at the energy–water nexus remain to be seen. The final framework will surely remain a subject of political and scholarly debate for years to come.

That notwithstanding, in the context of today’s regulatory regime, one thing remains clear—because of the historical role that states have played in water management and energy production, and because of the national, international, and global interests at stake, the policy framework designed to address issues arising at the intersection of energy and water will require the active participation of, and commitment by, both federal and state governments. The challenge lies in designing a framework that capitalizes on the “comparative advantage[s] in dealing with various environmental issues,”[428] while remaining true to historic state and federal roles in water resource management and energy-based decisions.

C. Taking Steps Toward Achieving a More Sustainable Energy Economy: Cooperative National Watershed Planning and Management

A cooperative large-scale watershed planning and management effort requires integrated planning on a number of levels. First, because of the dynamics of the energy–water nexus, this planning effort requires the integration of two historically highly compartmentalized policy areas—energy policy and water policy. The integration of these policy arenas must take place on both federal and state governance levels, throughout decision-making concerning energy siting and water resource management and allocation.

Additionally, a successful watershed planning effort will require participation by both federal and state stakeholders. Existing and future federal hydroelectric projects as well as the national, international, and global-level implications associated with decisions made in this arena, particularly in the context of national security and climate change, calls for federal involvement in the watershed planning efforts. By the same token, for federalism-related concerns, and because states have played a primary role in water management and allocation, and in energy production and siting, states are well positioned from a governance perspective to play a primary role in achieving sustainability of our water resources. Provisions of the recently enacted OPLMA represent the beginning of the integration of energy and water policy on a federal level. With some limitation, OPLMA may also provide the means by which to achieve the integration of federal and state efforts in cooperative watershed planning.

1. OPLMA: The Integration of Energy and Water Policy on the Federal Level

As detailed in Part IV of this Article, OPLMA integrates water planning and energy production in the context of its NWAUAP and in the context of federal hydroelectric power generating facilities, the segment of energy production over which the federal government exercises primary jurisdiction.[429] In connection with maintaining its national water use inventory and conducting the ongoing assessment of water availability under the NWAUAP, OPLMA charges the Department of Interior (DOI) with improving the ability to forecast water availability for energy production.[430] Moreover, DOI must identify water use trends associated with the energy sector generally,[431] and specifically, with development of new energy supplies.[432]

Further integration of energy and water policy on the federal level can be seen in OPLMA’s “climate change adaptation program” designed to identify the risks and effects of climate change-related impacts to watersheds that support federally authorized reclamation projects.[433] Under this program, DOI is charged with developing strategies, “at watershed and aquifer system scales,” to address potential water shortages, conflicts, and other potential impacts to water users.[434] To the extent that changes in water supplies are expected to impact hydroelectric power generation facilities, DOI is further called on to develop strategies, in consultation with non-Federal participants, that will mitigate any impact to these facilities.[435]

Inasmuch as the integration of energy and water policy is beginning on the federal level, two “integration components” that make up the recommended policy framework by which to create a more sustainable energy economy remain largely unaddressed—these include the integration of energy and water policy on the state level and the vertical integration of federal and state watershed planning efforts. With some limitation, Title VI of OPLMA provides a starting point by which to address both of these remaining components.

2. OPLMA Title VI: The Integration of Federal and State Watershed Planning Efforts

OPLMA Title VI Subtitle A entitled “Cooperative Watershed Management Program”[436] (the “Watershed Program”) appears to provide a preliminary policy framework by which to structure the large-scale watershed planning initiative contemplated by this Article with one major exception—it fails to ensure the participation of state stakeholders in the watershed management and planning process. For those stakeholders choosing to participate in OPLMA’s Watershed Program, however, Title VI provides the means by which to expand and integrate the watershed planning efforts already underway on every level of governance.

The Watershed Program authorizes DOI to establish a grant program by which DOI shall provide grants to form or enlarge a watershed group and to conduct one or more projects “in accordance with the goals of a watershed group.”[437] Title VI defines “watershed group” as a “self-sustaining, cooperative watershed-wide group” that is comprised of and incorporates the perspectives of a wide array of affected stakeholders including, among others, hydroelectric production, irrigated agricultural production, the environment, potable water purveyors and industrial water users, private property owners within a watershed, and federal, state, and local agencies that have authority with respect to the watershed.[438] The watershed group addresses water availability and quality issues, makes decisions on a consensus basis, and is “capable of promoting the sustainable use of the water resources of the relevant watershed and improving the functioning condition of rivers and streams through—water conservation; improved water quality; ecological resiliency; and the reduction of water conflicts.”[439]

Under the grant program, the DOI may award a grant recipient three “phases” of grants. First phase grants of up to $100,000 per year for up to a three-year period[440] are awarded to eligible recipients “to establish or enlarge a watershed group; to develop a mission statement for the watershed group; to develop project concepts; and to develop a restoration plan.”[441] The second phase grants of up to $1 million per year for up to a four-year period[442] are awarded to “plan and carry out watershed management projects.”[443] And third phase grants of up to $5 million per year for up to a five-year period[444] are awarded to “plan and carry out at least 1 watershed management project.”[445]

Insofar as OPLMA’s Watershed Program specifically incorporates issues relating to hydroelectric production, it promotes the integration of energy and water policy on the federal level. However, promoting the sustainable use of water resources, by definition, also requires consideration of impacts on the watershed caused by other forms of energy production, most of which are managed on the state-level, including nuclear power generation and renewable energy production. Because a watershed group is meant to be comprised of all affected stakeholders, consideration of energy–water issues relating to thermoelectric and renewable energy production would presumably be incorporated into any cooperative watershed planning and management effort. To ensure consideration of these issues, however, and to promote the integration of energy and water policy on a state-level, it is necessary to consider all forms of energy production in the context of watershed planning and management.

Insofar as the Watershed Program calls for participation by all affected stakeholders, including federal and state agencies with authority over the watershed, it appears to promote the integration of federal and state-based planning efforts. While participation in this large-scale planning effort is likely to undermine the historic control that states have exercised over water policy decisions, it remains unclear whether OPLMA’s Watershed Program provides the incentive necessary to ensure participation by all “affected stakeholders.” With crises looming in many areas of our water sector and in the shadow of additional climate change-related impacts, achieving sustainability of our nation’s water resources may be impossible without state buy-in to the planning effort. Consequently, this Article suggests that the proposed national watershed planning initiative be structured to increase the likelihood of state participation either through cooperative federalism or by creating meaningful incentives.

3. Cooperative Watershed Planning: Ensuring Participation by the States

Federally structured cooperative federalism has already been effectively used to achieve national goals relating to the quality of the nation’s waters. Under the framework of cooperative federalism, “federal and state governments work together in structured, overlapping, and synergistic ways to achieve mutual goals,”[446] as exemplified by the CWA, which involved improved water quality.[447] In that instance, the cooperative federalism approach came only after Congress determined that national interests were at stake and the states’ efforts were inadequately advancing these national interests.[448]

Achieving energy independence, developing effective climate change-related mitigation and adaptation strategies, and becoming a global leader in renewable energy production are currently a few of the more significant national policy interests. Whether policymakers perceive these interests as being threatened by state action (or inaction) may determine whether Congress makes a “conscious and deliberate federal intervention”[449] into an area of law historically belonging to the states.

A second, less federally invasive approach, and one that is recommended here, takes the form of an “Economic Incentive Program”—a program designed to “tap into basic economic interests, using constructed market frameworks or direct incentives, to induce desired behavior or otherwise make it more likely to occur.”[450] In other words, “[t]ying meaningful strings to federal aid.”[451] Conditioning federal aid on state water law or policy reform is an approach that has been utilized in the past and could be an effective means by which to obtain state buy-in to national watershed planning under an overarching federal framework.

The CWA presents an example of an incentive-based regulatory program.[452] In an effort to control the amount of sewage being discharged into navigable waters, Congress provided infrastructure grants that greatly increased the amount and effectiveness of sewage treatment in the United States.[453] Ironically enough, this infrastructure, which is now breaking down, may provide the very avenue by which incentive legislation could be designed.

States are facing significant costs associated with addressing the growing problem of inadequate and aging water infrastructure.[454] These escalating costs could provide the incentive necessary to induce states to take part in this national watershed planning effort. In return for participation in watershed planning, the federal government could offer grants to assist states in tackling this growing problem—and it is a problem. The nation’s 1 million miles of water mains are aging.[455] The age of some system components surpasses the 100-year mark[456] raising serious public health concerns and causing an estimated loss of approximately 1.7 trillion gallons of water per year at an annual national cost of $2.6 billion.[457] And “[some] experts fear that the problem is getting worse.”[458]

Evidence of failing water systems exists nationwide:[459] “Each day, one can find news reports that a half-dozen or more communities are affected by ‘boil water’ alerts due to water main breaks or other failures within their water-delivery system.”[460] In one Colorado community, water storage tanks with leaking rivets were the suspected cause of drinking water contamination leading to 389 cases of illness and resulting in a boil order for approximately 8,500 residents.[461] Washington D.C. averages a pipe break every day and intense rains have reportedly overwhelmed the city’s systems causing untreated sewage to flow into the Potomac and Anacostia Rivers.[462] According to an EPA report some 240,000 water mains break per year.[463] Moreover, USGS estimates indicate a resulting loss of up to 6 billion gallons of drinking water each day.[464]

Although an economic incentive program will certainly raise budgetary concerns given the state of the current federal budgetary crisis, policymakers can rest assured in knowing that, as is also the case in the context of issues existing at the energy–water interface, the costs associated with dealing with infrastructure problems later will certainly exceed the costs associated with dealing with them today particularly as portions of infrastructure approach the end of operational life spans. Deferred maintenance or a “run to failure” will inevitably increase long-term costs and damage the environment, will result in a loss of scarce natural resources, and will lead to service disruptions that harm customers.[465] Unfortunately, deferred maintenance has been the approach taken by many municipalities and states for decades[466] and operation, maintenance, and capital investment in these failing systems have been seriously underfunded.[467] According to EPA’s Aging Infrastructure Research program, “if operation, maintenance, and capital investment remain at [2007] levels, the potential funding shortage for drinking water and wastewater infrastructure could exceed $500 billion by 2020.”[468]

Incentives for infrastructure improvements on the energy front are also available. The electric grid, for one thing, is in serious need of upgrade with the expansion and improvement of the electric grid already having been the focus of legislative initiatives.[469] Moreover, in order to meet our renewable energy goals, thousands of miles of transmission lines are needed to bring power from renewable resources, which are often located far from load centers, to customers.[470] Additional power lines are also needed to connect renewable resources to the grid.[471]

Building the infrastructure necessary to access power generated by renewable resources is fundamental to achieving a “more sustainable energy economy.” ARRA, for example, appropriated $4.5 billion to DOE to be used for “electricity delivery and energy reliability activities to modernize the electric grid,” which includes “implementation of [the] Smart Grid programs created in [EISA].”[472] ARRA further provides ratemaking incentives for investor-owned utilities that propose to build transmission facilities that will improve reliability or reduce congestion.[473] Under an economic incentive program, funding by the federal government to assist the states in paying for the necessary development, repair, and replacement of energy and water-based infrastructure, like the appropriations or incentives seen in ARRA, could be used as a “carrot” to secure commitment by receiving states to participate in the national water planning and management effort outlined above.

VII. Conclusion

Perhaps without realizing, recent energy-based policy decisions have charted a course for the energy sector that threatens the viability of one of our most vital natural resources—water. To avoid the potential catastrophe that awaits us if we stay true to this course, policymakers must become well versed in the energy–water nexus, and this knowledge must provide the framework by which future energy-based policy decisions are made. In addition to the survival of our economy and our way of life, achieving sustainability of our nation’s water resources is vital to creating the more sustainable energy economy necessary to support energy-independence, renewable energy, and climate change-related goals.

Creating a sustainable energy economy calls for achieving sustainability of our nation’s water resources—a task that requires a large-scale national watershed planning effort. The enormity of the task before us is enough to give pause to even the most ardent protectors of water resources. Recent legislation, however, may provide the starting point by which to address many of these vital issues. Success lies in ensuring the necessary participation by all affected stakeholders and in incorporating the dynamics of the energy–water nexus. In short, “[w]hether proponents realize it or not, any plan to switch from gasoline to electricity or biofuels is a strategic decision to switch our dependence from foreign oil to domestic water.”[474] A policy framework must be put in place to ensure that our nation’s water resources can withstand the growing demands that are sure to arise from the transformation of the United States energy economy to a “sustainable energy economy.”

Unnatural Foundations: Legal Education’s Ecologically-Dismissive Subtexts

By

Don Ellinghausen, Jr.*

The specter of accelerating environmental decline, increasingly accompanied by a full-throated, corporate-financed chorus of climate change deniers and free market fundamentalists, has prompted environmentalists to apply greater scrutiny to those forces and institutions reinforcing and abetting this revanchist phenomenon. An emerging analysis contends that legal education serves as an indispensable resource for anti-environmentalism, given that it perpetuates the production of zealous practitioners who serve as apparent values-free apparatchiks—as opposed to responsible planetary citizens—furthering an increasingly destructive corporate-development agenda. Legal education notably frustrates the fostering of environmental empathy through its continuing adherence to an anachronistic, anthropocentric curriculum conceived in a pre-ecological worldview. This curriculum thwarts earth-consciousness through reifying property, discussed within a constricted parts-and-parcels, case-analysis perspective which excludes the critical considerations of holism and interconnection. Property analysis remains rooted in a pre-modern paradigm, blowing the dust off Victorian logics wholly inapt for our oil-and-carcinogen-soaked world. Constitutional law courses also imbue the flawed message that “neutral” analytical tools exist, in which language serves only its “own” interests, all the while as “nature” is evaluated only within contemporary capitalism’s use-development parameters. Students frequently fail to comprehend how aggressively-ideological agendas masquerade behind such linguistic legerdemain, as ardent anti-environmental arguments disappear down Borgesian mazes of semantic manipulation. Finally, ethical concerns remain restricted within practitioner-enabling versus socially-cognizant confines; ask not what you can do for your planet, but what your planet can do for you. The implicit endorsement of environmentally-oblivious career paths begins with awarding accolades and plaudits to those students who assume positions at the commanding heights of the growth-fixated, ecologically-dismissive corporate apparatus. Little or no consideration is given to just what “output measures” (the entity once better known as “values”) legal education provides. This article seeks to examine why the enduring lesson of legal education is that almost everything is “natural”—except nature.

I. Introduction

If we are dwelling within a system that is degrading life on Earth, then every node of the system requires attention.[1]

Four decades after the inaugural Earth Day, a substantial number of law schools offer environmental law specializations, with most providing elective courses for those students eager to develop insights and skills in this thriving area of advocacy.[2] However, this development has been shadowed by the rise of a resurgent anti-environmentalism, as aggressive corporate-promoted co-option (“greenwashing”) and confrontation (global warming “denialism”) have obscured or belittled otherwise unavoidable indications of accelerating environmental decline.[3] Prospects for impactful reform have dimmed, despite the abundance of studies portending potentially calamitous climate change. As environmentalists’ concerns over these increasingly-inescapable harbingers of ecological damage grow, so too have the efforts of some in their ranks to identify and target those deemed most responsible for marginalizing and minimizing the potency of their message.

Deep ecologists, eco-socialists, and other systemic-focused critics consider the legal profession the linchpin of this emboldened anti-ecological perspective, noting that “[t]he number of lawyers hired by single corporations to defend themselves against any limitation of their perceived rights to exploit the natural world is evidence of the strange principles of jurisprudence that allow the devastation of the planet to proceed.”[4] They also contend that “[o]ur legal and political establishments perpetuate, protect and legitimi[z]e the . . . degradation of [the] Earth by design, not by accident.”[5] The “perpetuate and protect” accusation refers to the number of prestigious law firms and legally-advised industry pressure groups that facilitate this process, while the “legitimize” label is affixed to legal education, which is considered thoroughly complicit in environmental degradation, given that “law schools teach the principles that allow these violations of the planet.”[6]

Legal education evades or otherwise implicitly discourages necessary whole earth thinking, and exclusion of extra-occupational perspectives has intensified in a recessionary job market. Lawyer training exemplifies how we have “fractured our educational system into its scientific and its humanistic aspects, as though these were somehow independent of each other.”[7] Such specialization obscures total views, so that “we have trouble understanding the world as an integrated community in which the well-being of the parts depends on the well-being of the whole.”[8] Adhering to such a narrow, parochial mindset is especially troubling when considering the deepening ecological crisis, in which lawyers, as the acknowledged “architects and defenders of property rights,” are indispensable actors.[9]

Contemporary legal education prioritizes the development of skilled technicians, prepared to apply allegedly agenda- and bias-free solutions to complex problems. It also fosters a crisis-impervious mindset; zealous pursuit of client representation, not greater social concerns, characterizes the educational ethic. Law schools provide a Turner Classic Movies perspective for a Discovery Channel world, adhering to timeworn scientifically and ethically-discredited precepts despite their self-evident ecological inapplicability. Legal education “repeats an ancient curriculum developed for nineteenth century lawyers to meet nineteenth century concerns and contexts,” and fails to “challenge the categories or to question the underlying worldviews reflected in that century-old system.”[10] As ecological concerns rested outside the purview of nineteenth century lawyers, so today environmental law remains largely on the curricular periphery, even as climate peril appears less and less an “elective” subject. Law graduates, unaware of critical ecological understandings, nonetheless develop an enhanced esteem for property. Environmentalists assert that “[w]e have built an entire legal system—the entire legal system of the United States, with a few footnotes and exceptions, with the exceptions in the footnotes—on property rights.”[11]

This Article will examine how the core and shadow legal curricula each impart ecologically-harmful memes, which in turn mire lawyers deeper in complicity with the ongoing global assault on the environment. These memes include a resistance to incorporating modern eco-scientific understandings; a faux-historical analysis of the roots of American jurisprudence, particularly in regard to property rights; implicit encouragement of an amoral, materialistic careerism; and the concomitant transmission of a truncated, self-serving sense of ethical responsibility.

II. Inclusionary Ecological Science Meets Exclusionary Property Education

By defining land as a commodity, the dominant legal philosophies legitimi[z]e and facilitate our exploitative relations with Earth.[12]

Legal education analyzes property wholly within the context of a discredited physical science paradigm, which employs antedated anthropocentric models in increasingly fruitless attempts to explicate a moving target, the dynamic ecosphere. Ecological science reveals that “the Earth is so integral in the unity of its functioning that every aspect . . . is affected by what happens to any component member of the community.”[13] The late eco-theologian Thomas Berry noted how these emerging ecological insights illustrate that “[n]othing bestows existence on itself. Nothing survives by itself. Nothing is fulfilled in itself. Nothing has existence or meaning or fulfillment except [within] . . . the larger community of existence.”[14] James Lovelock’s “Gaia theory” posits that “[t]he Earth System behaves as a single, self-regulating system comprised of physical, chemical, biological and human components.”[15] Contemporary science “has radically altered its view of the arrangement both of life and of nonliving components of the [E]arth,” constructing a new paradigm “that place[s] relationship at the center.”[16] Disdaining acknowledgment of this seminal concept of interconnection, property education adheres to an eclipsed worldview, which frustrates assimilation and understanding of ecological holism; it excludes rather than includes. This intransigence stymies environmental reform, highlighting how “laws and legal systems are primarily individualistic in tone, hence their resistance to a holistic ecosystem approach.”[17]

Ecologists claim that this resistance to holistic thinking stems from an “arrogant and obsessively anthropocentric worldview” which is nowhere “more apparent than in law.”[18] Legal education’s reluctance to assimilate the emergent eco-scientific paradigm reflects how “few of the people who make most of the decisions that affect the relationship between humans and other aspects of the Earth Community have made the shift from a mechanistic worldview to a holistic or ecological worldview.”[19] Uncomprehending or unappreciative of this transformative reorientation, lawyers instead proffer zealous representation to those corporate entities[20]—the very engines of ecological destruction—who fiercely resist this understanding. Legal property education’s intense focus on individual parts and parcels greatly disserves the development of systemic awareness, of how all these combative land use issues exemplify developers’ determination to impose short-term, market-driven deadlines on natural systems which operate on millennial rather than quarterly-profit timetables.

Although property education examines land disbursement schemes from medieval to present times, there is no corresponding analysis of natural systems’ progression.[21] Each case concludes with its legal resolution, foregoing discussion of any potentially significant ecological impacts. This is a troubling omission, given that “[i]n the domain of atmosphere and climate the delay between cause and effect can be thirty years.”[22] Law students immersed in a history and tradition-hallowing curriculum are not appreciative of how “[t]he slow, inexorable pace of ecological and climatic cycles and lag times bear no relation to the hasty cycles and lag times of human attention, decision, and action.”[23] Legal education remains obeisant to the capitalist use-development paradigm, in which “[o]ur economic models are projections and arrows when they should be circles.”[24] The trajectory of legal education culminates in the bar exam and job hunting; the stressful academic regimen parallels the ever more frenetic pace of the larger society, where even the alarmingly present melting of the polar ice caps is deemed too distant and speculative for contemporary comprehension.[25] As futurist Lester Brown observes, “We are crossing natural thresholds that we cannot see and violating deadlines that we do not recognize. Nature is the time keeper, but we cannot see the clock.”[26] Property education facilitates linear analysis of a cyclical subject—nature—in which “changes happen rapidly and reflect past, not present, actions.”[27]

A. Balking Antiques: How Originalism Thwarts Ecological Holism

I’m not a policy person. I’m a language person.[28]

Law students are introduced to judicial philosophies that essentially enshrine or venerate historical epochs while steadfastly resisting introduction of scientific advances or extra-legal ethical movements. Constitutional law classes provide cursory overviews of originalism and textualism, and do not alert students to the outsize influence of these interpretive tools in conservative judicial analysis, particularly in the realm of property rights issues. Originalism effectively mires legal analysis in a pre-industrial paradigm, precluding the application of contemporary “principles of ecological connectedness and carrying capacity in the definition of property norms, rights, and obligations.”[29] Environmental ethicist James Garvey notes that “[o]ur values grew up in a low-tech, disconnected world of plenty. Now, cumulative and apparently innocent acts can have consequences undreamt of by our forebears.”[30] Originalist property analyses omit the requisite ecological context—“When capitalism started, nature was abundant and capital was scarce; it thus made sense to reward capital above all else. Today we’re awash in capital and literally running out of nature.”[31] The Founders’ assumptions about land reflected an unchallenged anthropocentric perspective, so that nature, particularly nature-as-wilderness, remained confined within use-value parameters, without regard for its (then unrecognized) vital contributions to planetary health. Originalism redirects philosophical analysis of environmental concerns to a period prior to its scientific explication and comprehension.[32] This stratagem somewhat cynically facilitates subsequent assertions that ecological values were never contemplated—if not dismissed—by the Founders.

The prevailing property paradigm “was invented when the American continent seemed empty,” and “envisions not only that the economy can grow forever, but also that the total scale of legally-justified damage to the Earth can grow forever as well.”[33] Originalism’s pursuit of the Founders’ intentions sidesteps essential contextualization; their world was one of seemingly unlimited “virgin” land and “inexhaustible” natural resources,[34] which is why the Constitution does not offer express language on property rights and usage. As the Founders anticipated the dynamic of settlement in and improvement of what they deemed (value-free) wilderness, their outlook was necessarily open-ended, relying on (what they believed would be far-distant) future generations to address changes in circumstances.

Property rights proponents, however, claim their tenets both pre-date the Constitution and also implicitly resonate within it. However, these contentions frequently betray a greater debt to contemporary use-and-development rationalizations than to the Founders’ intentions, more likely “originating” in the Federalist Society than in the Federalist Papers. The Constitution’s drafters understood that government necessarily pre-dated any lawfully enforceable, commonly recognized concept of property, and accordingly drew upon their knowledge of developed, malleable English land ownership practices.[35] Strict textualist analyses thus more often contravene, rather than honor, the Founders’ foresight. Obdurate faux-originalism comprises an indispensable element of pro-development campaigns to resist much-needed environmental remedies given a vastly transformed landscape. This is truly disturbing given how “[w]e interfere a million times more deeply in nature than we did one hundred years ago, and our ignorance is increasing in proportion to the information that is required.”[36] Textualist defenses of property similarly contravene the new ecological paradigm, as:

[T]he language of physical theory [has] changed and our conception of reality changed with it. Unfortunately, the languages of our social, political, and economic theories have endured despite achieving mature formulation before widespread industrialization, . . . the explosion of scientific knowledge, and globalization of economies . . . [which] altered our social life without altering theories about our social life.[37]

Trying to shepherd analysis of implosive ecological changes into the confines of pre-industrial worldviews emphasizes how “the vocabulary and expressions that are available to us influence and even steer our thought.”[38] Property discussions take place within the “language of liberalism,” which “excludes an alternative vocabulary that enables us to consider the central concerns of environmentalists.”[39] An ecologist contends that “[o]ur entire language is permeated by historically charged euphemisms that acquire a reified life of their own,” which serve to “assimilate the past to the present and in the very pretence of illuminating the past, they cunningly conceal it from our eyes.”[40] This shows how “[o]ur civilization is masterful at twisting even our richest words to make them into slogans for a commodity-based reality. Our language and our habits of speech have coevolved with a violent relation to the world for so many generations . . . [and] one does not step out of them very easily.”[41] The George W. Bush Administration’s double-speaking, anti-environmental policies bore such Luntzian appellations as “Clear Skies” and “Healthy Forests,” or what has been characterized as “Orwellian language for unconscionable violence.”[42] Ecologists conclude that “[l]anguage becomes so perfectly attuned to the agendas of the powerful that the concepts and connotations with which resistance could be formulated are eliminated, making protest appear irrational and naïve.”[43]

Textualism frustrates the pursuit of environmental reforms under the guise of impartial refereeing, with the language—rather than the interpreter’s ideology—providing answers. But professionally-specialized vocabularies “are never neutral. Things that are included in a vocabulary gain a familiar reality; things that are left out are ignored or even have their existence denied.”[44] Additionally, “[t]his betrayal by language is crassly ideological,” exclusionary-minded, and demonstrates how intra-disciplinary terminologies “serve only to separate the sectarians of the parish from those who are excluded from the conversation.”[45] Textualist semantics repel efforts to incorporate ecological understandings into property law, for “[i]f a ‘right’ cannot be conceived of and described in the language of law, our governance systems will not recogni[z]e it or give adequate weight to it when making decisions.”[46] Further, ecologists argue that courts “define our concerns in economic terms and predetermine the range of possible responses. Often we cannot even raise the issues important to us because the economic language of others excludes our issues from the discussion.”[47] They believe that “[w]e need an Earth-centered language. . . . [W]ords need to be extended to include the various beings of the natural world, their freedoms, their rights, their share in the functioning of the Earth.”[48] Textualist bona fides of impartiality fail to conceal how “[e]very vocabulary shapes the world to fit a paradigm,”[49] and that language-parsing defenses of expansive land-use rights underpin a scientifically and ethically-discredited property paradigm.[50]

B. Reified Property

We know more about property lines than we do about the life that moves under, over, and through them.[51]

Property rights ideology serves as a philosophical bulwark and rallying point for those resisting the holistic, communitarian message of environmentalism. Along with property’s formidable cultural symbolism, land use maximalism also harnesses the energies of powerful corporate entities—and their legal counsel. The failure to enact broad-reaching environmental legislation since the 1970s has emboldened those who regard every element of the Earth Community as a “natural resource” indistinguishable from any other market commodity, and subject to the same (too often literal) slash-and-burn whims. Fervent property rights proponents, in extractive industry/developer-financed think tanks and faux-populist groups, demonize environmentalism as “eco-socialism” for resisting the commoditization of nature.[52] The gross disparity in legal resources between these forces and environmentalists dramatizes the difficulties the latter face in trying to halt the assault on natural systems, as land use debates are characterized by “[e]xploitation of the concept of private property that goes outward, destructively, like a ripple of water moving through rock.”[53]

The ubiquity of aggressive property rights rhetoric suggests that it has resonated with anxious, hard-pressed homeowners, to the detriment of crisis-confronting ecological messages. “Ownership Society” ideology fails to consider that “[w]hen landowners physically alter their lands, they don’t act only for themselves,” but for present and future human and non-human life, “given the ways land parcels are interconnected ecologically and economically.”[54] Interconnection, the sine qua non of the emerging ecological paradigm, is equally disserved by pro-development dissembling and legal education’s emphasis on parts and parcels, rather than systems and wholes. Failure to acknowledge relational-minded ecology deprives students of the critical understanding that “most private property is connected with other private (and public) property globally through the atmosphere and regionally via water flows and the movements of animals, plants, and microorganisms. To one degree or another, what happens on private property is everyone’s business.”[55]

This understanding has also been disserved by decisions such as Lucas v. South Carolina Coastal Council[56] in 1992, which dramatized Supreme Court conservatives’ disdain for incorporating core ecological precepts into property law determinations.[57] Environmentalists found Lucas especially foreboding “because it seemed to accept too easily the precept that the economically profitable exploitation of a natural resource is somehow constitutionally guaranteed or at least preferable.”[58] Subsequent High Court land use rulings “set[] up property owners to view environmental laws not as a legitimate democratic expression of the proper structure of property rights in our current circumstances, but as invasions of their rights.”[59]

Takings controversies also typify how contemporary, ideologically-driven memes take root to the detriment of holistic, countervailing legal-ecological perspectives. Takings, “where the conflict between individual and holistic considerations is most evident,” has become the philosophical blade’s edge for aggressive anti-regulatory campaigns.[60] It has assumed totemic status for property rights ideologues, even as critical legal analyses dispel myths and misperceptions surrounding its ascendancy. The anti-regulatory animus of takings argumentation unmasks the abiding conservative fealty to “market fundamentalism,” or “the belief that there is no reasonable alternative to a virtually unregulated market,” one in which “governments should do nothing other than define property rights and enforce contracts.”[61] The astonishing tenacity of this argument, as market forces further melt, erode, and poison the earth, highlights how “[c]apitalism as an ethical system has succeeded in convincing the people living under it that it is not a system at all but a state of nature.”[62]

Legal property instruction epitomizes an educational system in which “we are brought up believing that capitalist market relations are more natural, more incontrovertible, than anything within nature.”[63] The absence of any market-critical perspectives produces lawyers who zealously represent those pursuing innately ecologically-destructive practices, as markets’ “purely human-centered value” discourages concern for natural areas which “have little or no market value, even when their true value to society is vast.”[64] Case-analysis instruction’s intense focus on the minutiae of land disputes fosters narrowly compartmentalized, as opposed to panoramic, holistic understandings of land use.

Market fundamentalism also incorporates a flawed anti-ecological analysis drawn from Garrett Hardin’s 1968 essay The Tragedy of the Commons.[65] Hardin postulated that inevitable overuse by one or more contributors rendered the commons concept unsustainable.[66] Property rights proponents seized upon his analysis (bereft of “any experimental or observed evidence”) as confirming their assertion that only unburdened private ownership could forestall environmental peril.[67] Their pro-development, anti-regulatory message thereby acquired an Earth-friendly gloss, as they proclaimed that individual property owners, not naturalists, biologists, or scientists, were best equipped to recommend land use policy, and concluded that “there is no standard independent of the desires of the owners of property to judge what should be conserved.”[68]

Ecologists respond by noting that “Hardin’s premise depends on absolute egoism and denies several millennia of experience in the mutuality and negotiation of commoning.”[69] Commons were not a “license to free-for-all,” as Hardin ignored how “healthy self-governing commons systems are frequent in the world and in history.”[70] Commons thrived in cultures that protected them from outside pressures, suggesting how Hardin’s argumentation applies only to those societies “operating under capitalist social relations, where land and resources are privately held and exploited for individual gain.”[71] Those seeking “to affix the word ‘tragedy’ to the commons” should acknowledge that “the nightmare did not begin with the creation of the commons, but with the process of its destruction, the process under which it was taken under private ownership” via enclosure.[72] Property rights ideologues disparage the pre-modern commons paradigm because it “involves other people putting limits on what resources you can exploit, how much you can accumulate, how things will be shared. The free market has none of those constraints.”[73] Legal property instruction rarely addresses the equities involved in private versus public ownership,[74] instead channeling discussion into those options available in a hyper-individualistic market economy, in which “[w]hat counts as a saleable commodity is not its ultimate usefulness to humanity but how much money can be made from selling it.”[75] As a result, law students assimilate a perspective in which “[n]ature as a network of biotic communities disappears . . . and becomes visible only as bits and pieces of it are brought to the marketplace for sale.”[76]

Property education evades critical discussion of public equities in favor of focusing on individualistic “dividend ecology” land use, reconfiguring natural entities into stock offerings.[77] Fragmentation serves as both the start and terminus of a truly unnatural property paradigm in which “[p]arts of ecosystems are plucked like fruits to be transformed into commodities, parts are used as sewers, and parts are invisible because they are not given value by the human participants in markets.”[78] This destructive process flourishes in no small part because most lawyers “do not know enough about natural regulatory systems, and in any case do not believe that they are relevant to humans.”[79]

As case-analysis-structured property education often does little more than examine isolated micro-controversies, it also implicitly suggests that individualistic, rights-justified behavior trumps ecological wellbeing. This contravenes the critical understanding that “[m]aintaining the integrity of ecological systems requires consideration of scales that are greater than individual landowners or individual tracts of land.”[80] The ideological offensive to literally or figuratively “black-letter” property rights must inevitably surrender to nature’s systemic requirements as “[a]ll private property depends on Nature’s infrastructure. When that infrastructure collapses, it causes natural disasters that make property boundaries irrelevant.”[81]

Absent a more inclusive, equities-examining, future-observant analysis of property, students instead assimilate the use-value perspective, rooting discussion entirely within market-deferential confines. Omission of ecological viewpoints produces lawyers who therefore “lack the language that would enable them to name the nonmonetized knowledge, activities, and relationships in their own communities,” able to identify a Springing Executory Interest but none of the natural harbingers of spring.[82] This follows poet-naturalist Gary Snyder’s comment that “attention to the observable order of nature is rarely practiced by those who think that wealth is purely a creation of human organization, labor, or ingenuity.”[83] Law schools too often focus on developing cog-fillers for the “Total Economy,” where “everything—‘life forms’ . . . or the ‘right to pollute’—is ‘private property’ and has a price and is for sale.”[84]

If lawyers, as architects and defenders of property rights, want to dispel similar priced-and-available-for-sale insinuations, legal education must incorporate ecological understandings and, at the very least, deign to discuss the equities in the privatization-versus-commons debate. For law students to attain ecological literacy, they “must learn to think about the ecosphere in terms of interconnectedness, context and process—the basic principles of all living systems.”[85] As Professor David Orr observes, “All education is environmental education. By what is included or excluded, students are taught that they are part of or apart from the natural world.”[86] Berry concludes that “educational institutions need to understand that ecology is not a course nor a program. Rather, it is the foundation of all courses, all programs, and all professions . . . .”[87]

III. Legal Education: Elusive Ethics in the Crass Need Game

One has every right in our time to develop suspicions about those who wear suits and ties.[88]

The manifold pressures involved in training students to “think like a lawyer” more likely erode rather than encourage extralegal ethical understandings, as the bar exam, not personal/cultural transformation, remains the paramount concern. Students as well as faculty propel the “relentless focus” classes place “on the procedural and formal qualities of legal thinking,” a fixation that “is sometimes to the deliberate exclusion of the moral and social dimensions.”[89] The result is that too many students learn the law “from too insular a perspective. Despite growing recognition of the importance of cross-cultural and cross-disciplinary perspectives, the core curriculum stubbornly resists intruders.”[90] Legal instruction exhibits American universities’ “failure to educate people to think broadly, to perceive systems and patterns, and to live as whole persons.”[91] A legal curriculum critic suggests that “[e]ducational priorities are apparent in subtexts as well as texts. What the core curriculum leaves unsaid sends a powerful message that no single required course can counteract.”[92]

Property education’s evasion of ecological themes betrays an abiding professional mission to develop resolute tacticians unencumbered with equity-rooted sympathies or inclinations. Contemplation of overriding justice concerns suffers dismissal as fuzzy idealism, detrimental to client-focused training. If, as E. F. Schumacher claimed, “[e]ducation cannot help us as long as it accords no place to metaphysics,”[93] it is no wonder that lawyers are often regarded as lacking in what George H.W. Bush termed “The Vision Thing.”[94] Ecologists note how technically-proficient, but values-deficient, education “fragments instead of unifies, overemphasizes success and careers, separates feeling from intellect and the practical from the theoretical, and unleashes on the world minds ignorant of their own ignorance.”[95] Law schools turn out lawyers who lack rudimentary knowledge of environmental processes, relegating nature to the oversight of zealous partisans exemplifying what D.H. Lawrence characterized as the “know-it-all state of mind.”[96] Legal education prioritizes tactical-adversarial skills as opposed to empathetic-cooperative knowledge, prompting criticism that “a distinction needs to be made between intelligence and cleverness,” as the former aims for “wholeness,” while the latter remains “personified by the functionally rational technician armed with know-how and methods but without a clue about the higher ends technique should serve.”[97]

The law school milieu also frustrates the development of ecologically-cognizant consumer consciousness through implicit endorsement of the lifestyle rewards awaiting those who embrace conventional careerism. Aspirations for stakeholder/partnership status intertwine with pursuit of the appropriate material accoutrements of such attainment.[98] Students awaiting on-campus interviews, previously dissuaded from confronting larger equitable considerations, remain warily reluctant to too-closely scrutinize the underlying values and goals of their prospective employers.[99] Even then, idealization of corporatized large firm employment means that on-campus interviewers may represent those most able architects and determined defenders of an ecologically-destructive status quo.[100] Students who shun this process for public interest or other less-remunerative positions suffer a patronization akin to scratch lottery players in a room full of Powerball winners.

This enduring tendency to prioritize pecuniary over planetary concerns illustrates “the increased commercialism and competitiveness of legal practice and the absence of a widely shared vision of the public interest.”[101] It reflects the profession’s embrace of the reigning corporate style, and the values underlying it. Once graduates leave the rope-line and enter the club, they need to adjust their priorities—and personas—to better fit in an environment every bit as pressured as the one they left. Contemporary lawyers discover that “upscale business entertaining calls for upscale dining and clothing, upscale housing invites upscale furnishings, and all require upscale incomes.”[102] Less pretentious, lower ecological-footprint choices present obstacles to career viability; for example “[a]n attorney who might prefer to keep driving her battered old Dodge knows she would be sending a subliminal signal to potential clients that [she is] not likely to win their cases.”[103]

Retaining the clunker is nearly incomprehensible for those law graduates who are mesmerized by the “idealized vision of professional life,” in which they “can expect both moral independence and worldly rewards, such as power, wealth, and prominence.”[104] Yet when this dream dims, the consequences—reflected in the burgeoning ranks of practitioners entering intra-professional treatment programs for depression, substance abuse, and marital/relationship problems—are acute.[105] Whole Personhood has been discarded in pursuit of a chimerical professional ideal, and retrieval is a task beyond the capabilities of LEXIS or Westlaw. This abandonment reinforces philosopher Zygmunt Bauman’s assertion that entry to prestigious professions requires applicants “to recast themselves as commodities: that is, as products capable of catching the attention and attracting demand and customers.”[106] For the 3L aspirant to the corporate legal kingdom, this requires attainment of “zero drag,”[107] or no out-of-work commitments, for who knows how these pursuits (from biking to trail-hiking to vegetarianism) might clash with prevailing shareholder norms. As Bauman states:

The ideal employee would be a person with no previous bonds, commitments or emotional attachments, and shunning new ones; a person ready to take on any task that comes by and prepared to instantly readjust and refocus their own inclinations, embracing new priorities and abandoning those previously acquired in short order.[108]

Those seeking to assuage a nagging sense of seller’s remorse can fall into a psychologically—and ecologically—destructive rut of compensating via consumption, as “[a]ttorneys working sweatshop hours feel entitled to goods and services that will make their lives easier and their leisure time more satisfying.”[109] But no amount of spending can overcome the “Cultural Autism” of sacrificing hour after billable hour of one’s youth at the expense of encountering a wider world, especially the world of nature.[110] Even though “the quality of exposure to nature affects our health at an almost cellular level,” the pale ranks of nascent architects and defenders of land use include those whose last prolonged exposure to sunlight was a weekend catnap in the firm’s atrium.[111] Funneling high achievers into a career path that effectively precludes contact with nature—while commending an unsustainable materialism—unsurprisingly produces young lawyers who remain oblivious of their day-to-day activities’ potential impact on environmental health. The unquestioning pursuit of professional success has spawned too many Captain Louis Renaults, who are shocked, shocked when confronted with their work’s complicity in ecological damage. In contrast to the idealized Atticus Finch, today’s lawyers exemplify those contemporary professionals who do not “know enough of the whole terrain to be dangerous to the established order. Narrowness, ‘methodolatry,’ and careerism have rendered many unfit and unwilling to ask large and searching questions.”[112]

Legal education reflects and reinforces hyper-individualism, the “cult of self [which] dominates our cultural landscape,” and is predicated on “the misguided belief that personal style and personal advancement, mistaken for individualism, are the same as democratic equality.”[113] Too many belatedly discover that chasing materially-defined rewards becomes “a psychologically frustrating and ecologically lethal mode of forming personal identity.”[114] Recognizing the ecologically- and psychologically-harmful effects of pursuing a careerist lifestyle comprises a necessary first step before recognizing that indispensable insights from extra-professional sources and disciplines, especially ecology, merit a place in any truly “ethical” lawyer’s understanding. It is high time for aspiring lawyers to remove their careerist blinders and open the window, for as environmental philosopher Holmes Rolston III has remarked, “The unexamined life is not worth living; life in an unexamined world is not worth[] living either. We miss too much of value.”[115]

IV. Expanding Ethics: Redefining Human-Earth Relations

If ethical considerations govern the relations between individuals and the community around them, why do we restrict our understanding of that community only to the human community?[116]

Amid mounting concerns that lawyers’ ethical values are not recognized—if not derided—by the public, analysis of the sub-textual messages of legal education is even more necessary. The ABA-sponsored Sullivan Report noted how “a number of studies have shown that students’ moral reasoning does not appear to develop to any significant degree during law school.”[117] It observed that “law school typically blares a set of salient, if unintentional, messages that undercut the likely success of efforts to make students more attentive to ethical matters.”[118] Despite professional proclamations of ethical rectitude, the sub-textual, shadow legal curriculum promotes skepticism toward any restriction placed upon the aggressive, unfettered pursuit of advantage in legal contests.[119] The steely-tactical, winner-take-all mindset law schools tacitly encourage plants the seeds for lawyers’ later difficulties in comprehending that ethics represent more than irksome, easily-circumvented technicalities.

Legal education too infrequently contemplates those greater social policies and values that lie beyond the case-analysis structure; the core curriculum remains a forced march through an overwhelming thicket of minutiae, with larger social concerns consigned to selective courses. Questioning is largely confined to formal and procedural concepts, and
any attempt to insert social or broader ethical concerns into discussion—whether by faculty or students—often results in resigned, fatigued
silence.[120] Students intuitively decide to “separate their sense of justice
and fairness from their understanding of the requirements of legal
procedure and doctrine,” concluding that “matters of justice are secondary to formal correctness.”[121]

Understanding of and appreciation for equitable considerations also suffer from the abiding perception that the required core ethics course presents a one-size-fits-all solution toward addressing lawyers’ social responsibility.[122] Yet ethical instruction’s sub-text often fosters a fraternal “nudge-nudge, wink-wink” attitude when encountering ineffectual formalities—“[w]hen legal ethics courses focus exclusively on teaching students what a lawyer can and cannot get away with, they can inadvertently convey a sense that knowing this is all there is to ethics.”[123] Students imbued with a shallow, somewhat cynical sense of professional ethics comprise an inauspicious audience for attempts to introduce an ecologically-responsible planetary ethic.

Another barrier to an expansive ethical sensibility is what has been characterized as “attorneys’ amoral advocacy—their willingness to defend causes and clients without regard to the ethical merits.”[124] The acknowledged pinnacle of professional success is to land a position with a top firm—regardless of their client list.[125] Instructed that their primary responsibility is “to defend, not judge, the client,” these achievers find that “good ethics and good business are in happy coincidence.”[126] Atticus Finch iconography assumes a (truly) rich irony in a field in which the commanding heights are occupied by those who zealously defend the corporate elite—or write the laws that fortify their preeminence. The reputed level playing field is readily refuted in examining the socio-economic-political clout of environmental transgressors against the resources of their opponents: globalized corporations versus tree-sitters, or oil and gas colossi versus the residents of bayou small towns. Persisting gross disparities in legal resources mock notions of an equal contest; instead, they accentuate how corporate “haves” are able to litigiously overwhelm attempts to redress glaring inequities. Ecologists consider this emblematic of “a deep cultural pathology . . . [which] is particularly pathetic when we bargain over these issues of life and survival for monetary gain or some commercial advantage for a few individuals or a corporative enterprise.”[127] Legal education must confront this pathology by addressing its equitable oversights, and in finally recognizing and incorporating contemporary Earth ethics.

A. Paradigm Shift: Green-Letter Ethics

A question we might well ponder: when human beings unilaterally declare their superiority to all other species, who do they think is paying attention?[128]

Legal education’s failure to acknowledge or incorporate fundamental eco-ethical considerations into the core curriculum exposes an antedated framework, in which vital new extra-curricular ideas are kept at arm’s length. In the case of property, this buttresses a pre-industrial, conquest-and-control concept of nature, which resists the introduction of modern, scientifically-supported concepts of land’s role in ecosystem health. As Berry notes, “To assume that conquest and use are our primary relations with the natural world is ultimate disaster not only for ourselves but also for the multitude of other living forms on the planet.”[129] As the acknowledged legislators of the world, lawyers must acknowledge the contemporary nature philosophies of ecologists, biologists, and climatologists in revamping a woefully archaic property paradigm that evades contemporary planetary realities. As ecologist John Rodman noted, “It is probably a safe maxim that there will be no revolution in ethics without a revolution in perception.”[130] An indispensable first step in this transformation lies in recognizing that “it is not possible to specify any reasonably clearly discernible, morally relevant characteristic that includes all humans but excludes all non-humans.”[131] Environmental ethicists conclude that “[t]here is no reasonable alternative to redrawing our moral boundaries to include all life.”[132] The history of
ethics chronicles an expansive incorporation of those formerly
marginalized on account of race, gender, or ancestry.[133] Responding to the
growing recognition of planetary interconnection requires further legal
protections for natural entities, which to this point have been denied a
“hearing”—and rights.

Property education’s reluctance to provide a broader ecological framework for discussion underlines the prevailing pedagogical focus on developing efficient, fact-processing crackpot realtors. This tendency also evinces an abiding suspicion of introducing metaphysically-tinged considerations, even though “[r]egarding nature as a community of purposive systems does not involve the surrender of reason nor any leap into ‘mysticism.’”[134] Reluctance to introduce ecological equities may lie in their potential to topple the obsolescent, constricted notion of ethics propounded in legal education. It is past time for legal education to acknowledge that a “new ecological paradigm implies a correspondingly ecologically oriented ethics.”[135]

Expanding the role of ethics will first require uprooting the pervasive anthropocentrism characterizing the curriculum. In particular, incorporating discussion of interconnectedness necessitates broadening the field of actors implicated in legal analysis, for “[r]ecognizing the interdependence of only those humans who are able to resolve conflicts by bargaining with each other is not the same as recognizing the pre-contractual, natural interdependence of all components of land communities.”[136] Rolston argues that “[t]here is something Newtonian, not yet Einsteinian, besides something morally naïve, about living in a reference frame where one species takes itself as absolute and values everything else relative to its utility.”[137] If an expanded ethical framework “requires a paradigm change about the sorts of things to which duty can attach,” he adds, “so much the worse for those ethics no longer functioning in, nor suited to, their changing environment. The anthropocentrism associated with them was fiction anyway.”[138] As another critic asks, “Why totalize an instrumental image of nature developed under historically contingent circumstances?”[139]

Ridding the curriculum of discredited anthropocentric biases presents a formidable undertaking. Yet the contemporary legal system cannot evade its complicity in the contention that the environmental crisis “is the consequence of putting human rights before human obligations to the Earth and all the other life forms we share it with.”[140] Gaian theory places humankind within a parliament of species, not enshrined above all others, heedless of their concerns, as it “makes clear that we have no special human rights; we are merely one of the partner species in the great enterprise of Gaia.”[141] As Berry commented, “The ecological community is not subordinate to the human community. Nor is the ecological imperative derivative from human ethics. Rather, our human ethics is derivative of the ecological imperative . . . [which is] the well-being of the comprehensive community . . . .”[142]

B. Expanded Standing: A Stone Left Unturned?

A few such elms would alone constitute a township. They might claim to send a representative to the General Court to look after their interests.[143]

Professor Christopher Stone’s path-breaking book, Should Trees Have Standing?,[144] provides a starting point for discussions of expanding legal-environmental ethical parameters. Proposing that non-human members of the comprehensive community be recognized as legal rights-holders, Stone acknowledged the great naturalist Aldo Leopold’s hope that expanded ethics would be an inevitable consequence of ecological evolution.[145] In this paradigm, nature would possess legally actionable rights unrelated to its value to or use by humans.[146] Stone’s analysis points toward a new legal-ethical consensus in which “humankind is no longer the sole yardstick against which the utility of environmental protection must be measured,” as nature assumes rights-bearing status and “is entitled to a certain amount of integrity independent of human interest.”[147] For Berry, this consensus should embody the principle that “every being has three basic rights: the
right to be, the right to habitat, and the right to fulfill its role in the great
community of existence.”[148]

Unfortunately, Stone’s proposal has achieved only “meager precedent” comprising “less than meets the eye.”[149] Its marginalization reflects the ideological ascendancy of property rights and conservative judicial intransigence against considering ecologically-derived land use philosophies. Each tendency thrives in the absence of legal curriculum’s failure to provide any environmentally-cognizant perspectives for analyzing property and its necessary equitable and ecological considerations. This omission is emblematic of a legal structure in which “[w]ith few exceptions, the most dangerous and harmful acts of human beings, those that kill or threaten to exterminate other forms of life or even the life-support systems of Earth, are not even recognized as crimes.”[150] This demonstrates the dire need for legal education to extend the parameters of ethics, discussed within a planetary context rather than solely an occupational context.

V. Green-Lettering Law

[F]alse reification of the self is basic to the planetary ecological crisis in which we find ourselves.[151]

Few labels are as dreaded in academia, particularly in professional education, as that of “popularizer,” that is, someone with the effrontery to incorporate multi-disciplinary influences and seek to connect with a broad, non-specialist audience. Intra-disciplinary journals, often incomprehensible to even the most educated layperson, operate in a fusty, hermetic sphere which “thwarts universal understanding . . . [and] keeps the uninitiated from asking unpleasant questions.”[152] The enormity of the environmental crisis requires abandoning the dubious high ground of insular professionalism, as “education that examines the cultural disconnect and what is happening to the natural world is precisely what is most needed today.”[153] Legal education must confront transformative changes in ethical understanding and revamp an archaic 19th-century curriculum by incorporating 21st-century realities. Disciplinary retreats into “core curriculum” redoubts—designed in-and-for a vanished world and its anti-natural paradigm—greatly disserve both students and the society in which they will wield outsize influence. Curricular originalism “allows students and faculty to retreat into these self-imposed fiefdoms and neglect the most pressing moral, political, and cultural questions.”[154]

Why should legal education undertake this transformation? Is not its role more properly to prepare technicians-tacticians, rather than (those frequently mocked) “Big Picture” thinkers? Starting with legally counseled developers, extractors, and agribusinesses, moving on to lawyer-dominated local, state, and national governmental bodies and agencies, and concluding with lawyers’ socio-cultural ubiquity, the profession cannot evade responsibility for its indispensable environmental role. Confronting escalating ecological peril cannot be delegated to environmental law practitioners alone; the entire profession needs to reexamine its role in the part-and-parceling of the planet, for as Stone asserts, “[T]he law has not merely an educative, but a spiritualizing role in our society.”[155] Garvey adds that “[t]here is viciousness in refusing to act unless others do too. It is nothing less than ignoring the moral demands on us while simultaneously trying to place moral demands on others.”[156] Accordingly, a legal critic notes, “If lawyers see themselves as officers of justice, they must accept greater obligations to pursue justice.”[157] Lawyers’ duty of zealous representation does not absolve them from broader societal ethics and norms, but instead obligates them to be more rather than less aware of the possibly far-reaching effects of their counsel. Professor Deborah Rhode has proposed granting legal professionals a greater range of freedom of conscience, “where the ethical stakes are substantial, lawyers have an obligation to refuse assistance whatever the other consequences. We do not normally absolve individuals of moral responsibility on the ground that their successor could be worse.”[158]

The core legal curriculum needs to incorporate ecological understandings, which does not necessitate requiring environmental law courses so much as expanding the parameters of ecologically-pertinent discussion and analysis in the existing framework; not to retrofit but rather to reinvigorate. Ethics, presented without reference to earth ethics, and property, offered within an 18th-century paradigm, evince disregard, if not disrespect, for the most critical issue facing humankind. Necessary contextualization can be provided without derailing the priority of practice preparation; reexamination of the curriculum’s sub-textual messages will simply result in more ecologically-conscious practitioners, and fewer amoral tacticians. Law schools must help construct “ethical frameworks that lead us to question and examine the results of our teaching and research on the natural and human communities of which we are a part . . . [and] must be not only of the world but in it.”[159] This task cannot be delegated to specialists, for “[h]ad environmental law worked, we would not have an ecological crisis.”[160]

In the end, the legal education process must reexamine what values are implicitly transmitted, and how they operate to the benefit or detriment of the greater society. As Schumacher observed, “Education which fails to clarify our central convictions is mere training or indulgence.”[161] The intensifying bottom-line-oriented pressures confronting practitioners might account for the growing number of those who are now disillusioned with their craft. So also might be the profession’s—and legal education’s—greater failure to inspire a greater sense of identification with the “outside” world, particularly the world found in nature. The late eco-philosopher Arne Naess’s concept of the ecological self offers a promising alternative path.[162] Defining the self as “that with which this person identifies,” Naess suggested that it could be “as comprehensive as the totality of our identifications,” supplanting conventionally-defined (career, status) identities in favor of more ecologically-expansive ones (other species, natural systems).[163] This process “enlarges our temporal context, freeing us from identifying our goals and rewards solely in terms of our present lifetime.”[164] Naess’s Deep Ecology, or “ecosophy,” proposes that “there is an identity between the human self, properly understood, and the natural world. To destroy it is to destroy ourselves.”[165] Legal education needs to reexamine and reevaluate what sort of identifications it implicitly encourages—and discourages. Ultra-competitiveness and the laurels awarded to those who attain the (market-defined) commanding heights of the profession subvert otherwise indispensable life-lessons. As Stone cautioned:

If we only stop for a moment and look at the underlying human qualities that our present attitudes toward property and nature draw upon and reinforce, we have to be struck by how stultifying of our own personal growth and satisfaction they can become when they take rein of us.[166]

Naess’s concept “refers to self-realization in the sense that one’s own self-realization is intimately bound up with the self-realization of others rather than to self-realization in an egoic, narrowly self-centered, or ‘ego-trip’ sense.”[167] Legal education, unfortunately, has invested in developing the latter, rather than the former state of awareness. The ecological costs overshadow those experienced by practitioners who find themselves confronting mounting occupational frustration and materialist malaise. New ecological insights emerge with increasing frequency, but legal education has yet to acknowledge the paradigm-transforming foundation upon which these findings build. As the Dalai Lama observes, “It has become an urgent necessity to ethically reexamine what we have inherited, what we are responsible for, and what we will pass on to coming generations. We ourselves are the pivotal human generation.”[168]