58 SUSTAINABLE DEVELOPMENT LAW & POLICY
Endnotes: U.S. Food Aid Reform through Alternative Dispute Resolution
1 EDWARD J. CLAY & BENJAMIN LERNARD SCHAFFER, ROOM FOR MANOEUVRE:
AN EXPLORATION OF PUBLIC POLICY PLANNING IN AGRICULTURE AND RURAL DEVEL-
OPMENT 55 (1984) (citing quotation from unpublished notes of interviews with
female household workers, Mymensingh District, Bangladesh, 1980).
2 AMARTYA SEN, HUNGER AND FAMINES: AN ESSAY ON ENTITLEMENT AND DEPRI-
VATION 1 (1981).
3 JOHAN POTTIER, ANTHROPOLOGY OF FOOD: THE SOCIAL DYNAMICS OF FOOD
SECURITY 142 (1999).
4 Sen’s assertion that a lack of access , and not necessarily a lack of supply,
causes a lack of adequate food repositioned government and policy as key fac-
tors in preventing and ameliorating both hunger and famines. SEN, supra note 2,
5 See generally, id.
6 Id. at 142-143.
7 See generally SEN, supra note 2.
8 GORDON CONWAY, ONE BILLION HUNGRY: CAN WE FEED THE WORLD? 29-32
9 GAN ZIEGLER, UNITED NATIONS COMM’N ON HUMAN RIGHTS, THE RIGHT TO
FOOD: REPORT BY THE SPECIAL RAPPORTEUR ON THE RIGHT TO FOOD 5 (2001), avail-
able at http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/f45ea4df67ecca98c125
10 FOOD & AGRIC ORG. OF THE UNITED NATIONS, THE STATE OF FOOD INSECURITY
IN THE WORLD 2008 6 (2008), available at ftp:// ftp.fao.org/docrep/fao/011/
11 Number of hungry people rises to 963 million, FOOD & AGRIC ORG. OF THE
UNITED NATIONS (Dec. 9, 2008), http://www.fao.org/news/story/en/item/8836/.
12 POTTIER, supra note 3, at 165-67.
13 Tom Melling, Dispute Resolution within Legislative Institutions, 46 STAN.
L. REV. 1677, 1689 (1994).
14 JENNIFER CLAPP, HUNGER IN THE NEW BALANCE: THE NEW POLITICS OF INTER-
NATIONAL FOOD AID 69 (2012).
15 Attempts to reform food aid have been the result of collaboration and con-
versation between only key supporters of the suggested reforms. Notable actors
include aid organizations like Oxfam America and CARE, policy think tanks
such as The Heritage Foundation, and supporting legislators.
16 7 U.S.C. § 1691.
17 The Editorial Board, Food Aid Reform, N.Y. TIMES, April 27, 2013, http://
18 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-07-560, FOREIGN ASSISTANCE:
VARIOUS CHALLENGES IMPEDE THE EFFICIENCY AND EFFECTIVENESS OF U.S. FOOD
AID 7 (2007); Stacey Rosen, A Pilot Program for U.S. Food Aid, AMBER WAVES
2 (Nov. 2008) http://www.ers.usda.gov/AmberWaves/November08/PDF/AW_
19 For example, in proposing the FY2014 budget, President Obama also
addressed the need for food aid reform. His proposal, after consideration by the
113th Congress, was largely rejected. His proposals are comparable to those
addressed through The Food Aid Reform Act (H.R. 1983), including monetiza-
tion, local procurement, and U.S. cargo preferences. Charles E. Hanrahan,
International Food Aid Programs: Background and Issues, CONG. RESEARCH
SERV. 12 (May 20, 2013), available at http://foreignaffairs.house.gov/sites/
20 Id. at 3.
21 MITCHEL B. WALLERSTEIN, FOOD FOR WAR/FOOD FOR PEACE: UNITED STATES
FOOD AID IN A GLOBAL CONTEXT 47, 146-47 (1980).
22 CLAPP, supra note 14, at 3 (From the 1950s to the 1970s political and pub-
lic concern focused on the controversial geopolitical and agricultural surplus-
dumping motivations behind food aid programs of multiple donor countries,
namely the United States, Europe, and Australia).
23 BILL WINDERS, THE POLITICS OF FOOD SUPPLY: U.S. AGRICULTURAL POLICY
IN THE WORLD ECONOMY 129 (2009). “In its early days, food aid policy was
driven largely by forces no longer relevant in the current context: sizable grain
surpluses needing to be disposed of, which determined the largest donors, and
geopolitical considerations of the Cold War, which determined the most likely
recipients. Humanitarian concerns always underlay food aid policies, but the
economic and political considerations of donor countries typically dictated the
terms.” CLAPP, supra note 14, at 15. See also Harriet Friedmann, The Political
Economy of Food, 197 NEW LEFT REVIEW 29, 29-57 (1993); THEODORE COHN,
THE INTERNATIONAL POLITICS OF AGRICULTURAL TRADE: CANADIAN-AMERICAN
RELATIONS IN A GLOBAL AGRICULTURAL CONTEXT 91-108 (1990); JOHN CATHIE,
THE POLITICAL ECONOMY OF FOOD AID 2, 11, 22 (1982).
24 WINDERS, supra note 23, at 95 (citing Harriet Friedmann, The Political
Economy of Food: The Rise and Fall of the Postwar International Food Order,
88 AM. J. SOC. 248 (1982) (Speciﬁcally, donor-oriented aid was blamed for turn-
ing previously self-sufﬁcient countries into aid-dependent nations while serving
the capitalist expansion of major agribusiness interests overseas and for distort-
ing farmer incentives in recipient countries, reducing local food production and
25 See WALLERSTEIN, supra note 21, at 47 (Most notably the 1970s food crisis
increased awareness for the importance of effective food aid policies).
26 CLAPP, supra note 14, at 1.
27 The perception that aid policy had become less donor-oriented and thus
more altruistic was true in many cases; in fact, the majority of donor countries
(apart from the United States) made substantial efforts in the 1970s to reform
the practices of geopolitical and surplus oriented food donations. CLAPP, supra
note 14, at 3.
28 See generally CHRISTOPHER BARRETT & DANIEL MAXWELL, FOOD AID AFTER
50 YEARS: RECASTING ITS ROLE (2005); U.S. GOV’T ACCOUNTABILITY OFFICE,
supra note 18 (2007); EDWARD J. CLAY, MATTHEW GEDDES & LUISA NATALI,
ORG. FOR ECON. CO-OPERATION & DEV., UNTYING AID: IS IT WORKING? AN EVALU-
ATION OF THE IMPLEMENTATION OF THE PARIS DECLARATION AND OF THE 2001 DAC
RECOMMENDATION OF UNTYING ODA TO THE LDCS (2009); E. Holt-Gimenez &
A Shattuck, Food Crises, Food Regimes and Food Movements: Rumblings of
Reform or Tides of Transformation?, 38 J. PEASANT STUD. 109, 109-10 (2011).
Like the crisis in the 1970s, this crisis generated public awareness for the
importance of effective international food assistance.
29 CLAPP, supra note 14, at 2.
30 “Old debates about the use of food aid to further foreign policy goals or
dispose of grain surpluses have given way to debates over how food aid is given.
In particular, the question of whether food aid is tied to food sourced in the
donor country has generated heated exchanges between donors.” CLAPP, supra
note 14, at 5.
31 CLAPP, supra note 14, at 5.
32 CLAPP, supra note 14, at 5.
33 CLAPP, supra note 14, at 5.
34 The idea of untying food aid “gained signiﬁcant momentum in inter-
national policy circles starting in the mid-1990s, after the European Union
adopted the policy in 1996. Agencies such as the Food and Agricultural Organi-
zation (“FAO”) and the Organization for Economic Co-operation and Develop-
ment (“OECD”) have taken up the issue in extensive reports directed at their
membership since 2005, and from 2007 the WFP began to strongly endorse the
idea. Some donors, such as Canada and Australia, eventually followed the EU
on this idea by untying their own food aid programs.” CLAPP, supra note 14,
35 The idea of untying food aid had been championed by development experts
since the mid-1970s. The Paris Conference on International Economic Coopera-
tion, a meeting of 27 governments representing industrialized, oil-producing,
and developing countries held in 1975-77 as part of global negotiations on
a New International Economic Order, strongly promoted the idea in its ﬁnal
declaration, yet uptake was slow and uneven. CLAPP, supra note 14, at 6.
36 The speciﬁc stakeholders working to maintain the US’s policy of tied aid
will be discussed more thoroughly in Part III, but include the agricultural indus-
try, the shipping industry, and some food aid NGOs, including most notably the
Alliance for Global Food Security.
37 CLAPP, supra note 14, at 6.
38 Ofﬁcially called the European Recovery Program, the Marshall Plan was
the United States program that provided aid to Europe in the form of economic
support to help rebuild European economies after the end of World War II
with the purpose of preventing the spread of Soviet Communism. The speciﬁc
goals of the United States were to rebuild the war devastated region, remove
trade barriers, modernize industry, and return Europe to prosperity. MICHAEL
J. HOGAN, THE MARSHALL PLAN: AMERICA, BRITAIN, AND THE RECONSTRUCTION OF
WESTERN EUROPE, 1947-1952 (1998).
39 U.S. AGENCY FOR INT’L DEV., CELEBRATING FOOD FOR PEACE 1954-2004:
BRINGING HOPE TO THE HUNGRY 7 (2004), available at http://foodaid.org/news/
continued on page 75
36 JEAN-PAUL RODRIGUE ET AL., THE GEOGRAPHY OF TRANSPORT SYSTEMS: AIR
POLLUTANTS EMITTED BY TRANSPORT SYSTEMS (2009), available at http://people.
37 U.S. NUCLEAR REGULATORY COMM’N, BACKGROUNDER OF RADIOACTIVE WASTE
(2011) available at http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/
38 NIMBY, or “not in my backyard” refers to the “opposition to the locating
of something considered undesirable (as a prison or incinerator) in one’s neigh-
borhood.” Deﬁnition of NIMBY, MERRIAM-WEBSTER.COM, http://www.merriam-
webster.com/dictionary/nimby (last visited Dec. 23, 2013).
39 GEMMA AYMONNE HEDDLE, SOCIOPOLITICAL CHALLENGES TO THE SITING OF
FACILITIES WITH PERCEIVED ENVIRONMENTAL RISKS 2 (June 2003), available at
40 Jim Day, How Electric Cars Really Work, LAS VEGAS REV.-J., Aug. 24,
41 Tom Wolf, The Rise and Fall of the Environmental Movement, L.A. TIMES,
Mar. 24, 1991, at M6 (as cited in POPULATION, LAW, AND THE ENVIRONMENT,
supra note 3, at 61).
42 Dana Milbank, Despite Appeal, Saving the Earth Lacks Donors, WALL ST.
J., July 11, 1990, at B1 (as cited in POPULATION, LAW, AND THE ENVIRONMENT,
supra note 3, at 67).
43 Wolf, supra note 41, at M6.
44 Misunderstood Mess: A Survey of Waste and the Environment, THE
ECONOMIST, May 29, 1993 Supp., at 1-18 (as cited in POPULATION, LAW, AND THE
ENVIRONMENT, supra note 3, at 75).
45 Id.; see also Amanda Onion, The Diaper Debate: Are Disposables as Green
as Cloth?, ABC NEWS, May 26, 2005, http://abcnews.go.com/Technology/stor
y?id=789465&page=1(“Research by Bill Rathje, a trash expert and professor
emeritus at the University of Arizona, has shown that even a head of lettuce, let
alone a plastic diaper, can persist for decades in a landﬁll where there is often a
lack of exposure to air and sun that would otherwise break materials down.”).
46 Bob Schildgen, Hey Mr. Green: The Great Diaper Debate, SIERRA CLUB
MAG. (Nov. 3, 2009), http://sierraclub.typepad.com/mrgreen/2009/11/the-
great-diaper-debate.html; see also Amanda Onion, supra note 45, at 1 (“After
a three-year . . . study, the London-based Environmental Agency concluded
that disposable diapers have the same environmental impact as reusable diapers
when the effect of laundering cloth diapers is taken into account. . . . The Union
of Concerned Scientists has estimated about 18 billion diapers are thrown into
landﬁlls every year. And a 1998 study by the Environmental Protection Agency
found that diapers made up 3.4 million tons of waste, or 2.1[%] of U.S. garbage
in landﬁlls that year.”).
47 William Booth & D’Vera Cohn, Sharing the Environmental Burden, WASH.
POST, April 18, 1990, at 1 (as cited in POPULATION, LAW, AND THE ENVIRONMENT,
supra note 3, at 75).
48 The Catalytic Converter, WORCESTER POLYTECHNIC INSTITUTE, http://www.
wpi.edu/about/history/catalytic.html (last visited Aug. 14, 2011); U.S. ENVTL.
PROT. AGENCY OFFICE OF MOBILE SOURCES, AUTOMOBILE EMISSIONS: AN OVERVIEW
(1994), available at http://www.epa.gov/oms/consumer/05-autos.pdf.
49 The Race to Build Really Cheap Cars, BLOOMBERGBUSINESSWEEK (Apr. 23,
50 Mark Trumbull, Poverty Now Comes with a Color TV, MSN MONEY, http://
Investing/Extra/PovertyNowComesWithAColorTV.aspx (last visited Nov. 17,
2013) (stating that in 2002, the wealthiest 10% of Americans had 2.4 cars per
51 Taehan Min-guk, Korea, South, ENCYCLOPEDIA NATIONS, http://www.nation-
visited Nov. 17, 2013).
52 Heather Timmons, In India, a $2,500 Pace Car, N.Y. TIMES, Oct. 11,
53 See AL GORE, EARTH IN THE BALANCE: ECOLOGY AND THE HUMAN SPIRIT 333-
34 (1992) (as cited in POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at
54 See generally, id. at 216-237.
56 Peter Schweizer, Gore Isn’t Quite as Green as He’s Led the World to
Believe, USA TODAY, Dec. 7, 2006, http://www.usatoday.com/news/opinion/
57 UN SECRETARY-GENERAL, THE MILLENNIUM DEVELOPMENT GOALS REPORT
2009 (2009), available at http://www.unhcr.org/refworld/docid/4a534f722.html.
58 Christina D. Romer, Great Depression, http://elsa.berkeley.edu/~cromer/
great_depression.pdf (last visited Aug. 19, 2011).
59 See id.
60 Jerry Morton, Romania, BREAD, SALT & PLUM BRANDY, http://breadsaltand-
plumbrandy.com/index-4.html (last visited Nov. 17, 2013); The People’s Palace:
Ceausescu’s Lasting, Loathed Legacy, BUCHAREST LIFE, http://www.bucharest-
life.com/bucharest/palace-of-parliament (last visited Aug. 19, 2011).
61 See generally Kelvin Teo, Between Tolerating the Future Dictator and Per-
petuating Democracy, NEW ASIA REPUBLIC, Mar. 7, 2011, http://newasiarepublic.
62 MILLER, supra note 29, at 318.
63 MILLER, supra note 29, at 318.
64 The Poorest Countries in the World, GLOBAL FINANCE, (Aug. 14, 2011),
65 See MILLER, supra note 29, at 304.
66 See generally GORE, supra note 53.
67 See Thomas Goltz, Earth First Meeting Reﬂects Gap Between Radicals,
Mainstream, WASH. POST, July 19, 1990, at A3 (as cited in POPULATION, LAW, AND
THE ENVIRONMENT, supra note 3, at 14).
68 See Laurene Conner, Sustainable Development: A Global Agenda Struc-
tured on Population Control, ILLUMINATI CONSPIRACY ARCHIVE, http://www.
conspiracyarchive.com/NewAge/sustainable_development.htm (last visited
Nov. 17, 2013).
69 Public Works Appropriation Act, 1967, Pub. L. No. 89-689, 80 Stat. 1002,
70 Joy G. Dryfoos, Family Planning Clinics—A Story of Growth and Conﬂict,
20 FAMILY PLAN. PERSPECTIVES 282, 284 (1988).
71 Anna Clark, Why the GOP’s Plans to Cut Family Planning Will Cost Us
All, ALTERNET: PERSONAL HEALTH (May 25, 2011), http://www.alternet.org/
72 Ann Devroy, Bush Hints at Veto of Foreign Aid Bill; President Denounces
Provision to Fund Population-Control Agency, WASH. POST, Oct. 10, 1989,
http://www.highbeam.com/doc/1P2-1216468.html (as cited in POPULATION, LAW,
AND THE ENVIRONMENT, supra note 3, at 29).
73 POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 80. There do
exist some environmental groups that focus on population, but they are a small
percentage of environmental groups. Groups that do address population issues
include Zero Population Growth, the Population Crisis Committee, and the
74 THOMAS R. MALTHUS, AN ESSAY ON THE PRINCIPLE OF POPULATION, AS IT
AFFECTS THE FUTURE IMPROVEMENT OF SOCIETY 4 (1798), available at http://www.
esp.org/books/malthus/population/malthus.pdf (as cited in POPULATION, LAW,
AND THE ENVIRONMENT, supra note 3, at 19 ).
76 Id. at 1-5.
77 See generally Morgan Rose, What Malthus Missed, and Attacks on Indi-
vidualists, LIBRARY OF ECON. & LIBERTY (Oct. 28, 2002), http://www.econlib.org/
78 Charles C. Mann, How Many Is Too Many, ATLANTIC MONTHLY, Feb. 1993,
at 50, available at http://www.theatlantic.com/past/docs/issues/93feb/mann1.
htm (as cited in POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 20).
80 Id. at 49.
81 Population, Law, and the Environment, supra note 3, at 20.
82 CHIRAS, supra note 12, at 152 (as cited in POPULATION, LAW, AND THE ENVI-
RONMENT, supra note 3, at 31).
83 PAUL R. EHRLICH, THE POPULATION BOMB (1968) (as cited in POPULATION,
LAW, AND THE ENVIRONMENT, supra note 3, at 1).
Endnotes: AS THE WORLD WELCOMES ITS SEVEN BILLIONTH HUMAN: REFLECTIONS AND POPULATION, LAW,
AND THE ENVIRONMENT
continued from page 14
60 SUSTAINABLE DEVELOPMENT LAW & POLICY
84 DONELLA H. MEADOWS, ET AL., THE LIMITS TO GROWTH (1972) (as cited in
POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 2).
85 JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 83 (1962)
(as cited in POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 21).
86 SIMON KUZNETS, POPULATION, CAPITAL, AND GROWTH 3 (1973) (as cited in
POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 21-22).
87 JOSEPH A. SCHUMPETER, HISTORY OF ECONOMIC ANALYSIS 251 (1994 ed.)
(emphasis omitted) (as cited in POPULATION, LAW, AND THE ENVIRONMENT, supra
note 3, at 18).
88 RODERICK STACKELBERG, THE ROUTLEDGE COMPANION TO NAZI 158 (2007).
89 MILTON JACOB ROSENBERG, AN AMERICAN TRAPPED IN A COMMUNIST PARADISE:
AN HISTORICAL AUTOBIOGRAPHY 90 (2003) (“Stalin awarded women with medals
and privileges if they gave birth to ﬁve or more children. If a Soviet woman
gave birth to ten or more children, she was awarded the title of Hero of Socialist
90 WILLIAM L. STEFFEN, GLOBAL CHANGE AND THE EARTH SYSTEM: A PLANET
UNDER PRESSURE 289-91 (2d prtg. 2005).
91 Mann, supra note 78, at 47.
92 POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 2.
93 K. BRUCE NEWBOLD, POPULATION GEOGRAPHY: TOOLS AND ISSUES 17 (2010)
(“Between 1960 and 1998, the world’s population doubled from three to six
94 GEORGE TYLER MILLER, ENVIRONMENTAL SCIENCE: WORKING WITH THE EARTH
5 (5th ed. 1995).
95 John Vidal, Every Third Person Will Be a Slum Dweller Within 30 Years,
UN Agency Warns, GUARDIAN, Oct. 4, 2003, http://www.guardian.co.uk/
world/2003/oct/04/population.johnvidal (“The largest study ever made of global
urban conditions has found that 940 million people–almost one-sixth of the
world’s population–already live in squalid, unhealthy areas, mostly without
water, sanitation, public services or legal security.”).
96 Julian Borger & Juliette Jowitt, Nearly a Billion People Worldwide are
Starving, UN Agency Warns, GUARDIAN, Oct. 4, 2003, http://www.guardian.
963 million people are starving).
97 18,000 Children Die Everyday of Hunger, UN Says, USA TODAY, Feb. 17,
98 Eliminating Non-Sustainability/Regenerating the Environment, WORLD
GAME INST., http://www.unesco.org/education/tlsf/mods/theme_a/interact/www.
worldgame.org/wwwproject/what14.shtml (last visited Nov. 17, 2013); World
Demands Surpassing Food Supplies, HOUSTON CHRONICLE, Jan. 16, 1994, at
99 David Biello, Another Inconvenient Truth: The World’s Growing Popula-
tion Poses a Malthusian Dilemma, SCIENTIFIC AM. (Oct. 2, 2009), http://www.
dilemma; Borger & Jowitt, supra note 96; U.N. DEP’T ECON. & SOC. AFFAIRS,
WORLD POPULATION TO 2300, at 84 (2004), available at http://www.un.org/esa/
population/publications/longrange2/WorldPop2300ﬁnal.pdf (Currently, 1 billion
people are starving to death while in Malthus’ time there were approximately 1
billion people on earth).
100 John V. Last, The U.N.’s Imaginary Babies, WALL ST. J., Aug. 4, 2011,
102 George Carey, Waste Footprint, HEC GLOBAL LEARNING, http://www.glo-
balfootprints.org/waste (last visited Nov. 17, 2013) (“A child born in a wealthy
country is likely to consume, waste, and pollute more in his lifetime that 50
children born in developing nations. Our energy-burning lifestyles are pushing
our planet to the point of no return.”).
103 See Biello, supra note 99 (“Today, at least one billion people are chroni-
cally malnourished or starving. Simply to maintain that sad state of affairs
would require the clearing (read: deforestation) of 900 million additional hect-
ares of land, according to Pedro Sanchez, director of the Tropical Agriculture
and Rural Environment Program at The Earth Institute at Columbia Univer-
sity.”); AMANDA LEIGH HAAG, Checking Earth’s Vital Signs, in NASA: Supporting
Earth System Science 44, 44-45 (Laurie J. Schmidt ed., 2005), available at
http://nasadaacs.eos.nasa.gov/articles/2005/2005_mea.html (“[The earth’s] vital
signs aren’t looking good. Of the 24 categories of ecosystem health that were
evaluated, 15 are being seriously degraded at a rate that cannot be sustained,
said Walt Reid, director of the MA [Millennium Ecosystem Assessment], an
international, multimillion dollar undertaking. ‘If we think of the planet’s eco-
system services as a bank account that could last indeﬁnitely if managed wisely,
we are instead spending the principal. That does provide short-term beneﬁts, but
the long-term costs will be signiﬁcant,’ said Reid. By altering the planet, be it
through deforestation, over-ﬁshing, or degradation of land and climate change,
‘we’re depleting a capital asset,’ he said.”); U.N. ENV’T PROGRAMME, GLOBAL
ENVIRONMENT OUTLOOK GEO-4: ENVIRONMENT FOR DEVELOPMENT 12 (2007)
(“changes such as a growing population and increased consumption of energy
have had a huge impact on the environment, challenging society’s ability to
achieve sustainable development”), available at http://www.unep.org/geo/geo4/
104 See generally POPULATION, LAW, AND THE ENVIRONMENT, supra note 3.
105 See RICHARD M. MOSEY, 2030: THE COMING TUMULT 91-93 (2009); See
generally POPULATION, LAW, AND THE ENVIRONMENT, supra note 3.
106 See MOSEY, supra note 105, at 91-92, 98-99; see generally POPULATION,
LAW, AND THE ENVIRONMENT, supra note 3; Robert M. Hardaway, Environmental
Malthusianism: Integrating Population and Environmental Policy, 27 ENVTL. L.
107 George D. Moffett, Fertility Rates Decline in Third-World Nations,
CHRIST. SCI. MO., July 8, 1992, at B16, available at http://www.csmonitor.
com/1992/0708/08101.html (as cited in POPULATION, LAW, AND THE ENVIRON-
MENT, supra note 3, at 100).
108 M. Peter McPherson, Address on International Family Planning, 86 DEP’T
ST. BULL. 43 (Nov. 25, 1985), available at http://pdf.usaid.gov/pdf_docs/
pdaas192.pdf (as cited in POPULATION, LAW, AND THE ENVIRONMENT, supra note 3,
109 Comstock Act, Ch. 258 § 2, 17 Stat. 598 (1873) (presently codiﬁed as
amended at 18 U.S.C. § 1461 (2011)) (as cited in POPULATION, LAW, AND THE
ENVIRONMENT, supra note 3, at 92).
110 Pub. L. No. 91-662, 84 Stat. 1973 (1971) (as cited in POPULATION, LAW, AND
THE ENVIRONMENT, supra note 3, at 92).
111 MILTON LADER & LAWRENCE MELTZER, MARGARET SANGER: PIONEER OF BIRTH
CONTROL 44 (1969) (as cited in POPULATION, LAW, AND THE ENVIRONMENT, supra
note 3, at 92).
112 MARGARET SANGER, MARGARET SANGER: AN AUTOBIOGRAPHY 89-91 (Cooper
Square Press ed., 1999) (as cited in POPULATION, LAW, AND THE ENVIRONMENT,
supra note 3, at 93).
113 Id. at 89.
114 Tariff Act of 1930, ch. 497, tit. 3, § 305, 46 Stat. 688 (1930) (codiﬁed as
amended at 19 U.S.C. § 1305 (2011)) (as cited in POPULATION, LAW, AND THE
ENVIRONMENT, supra note 3, at 95).
115 N.Y. PENAL LAW §§ 1141-42 (McKinney Supp. 1937) (as cited in POPULA-
TION, LAW, AND THE ENVIRONMENT, supra note 3, at 95).
116 CONN. GEN. STAT. §§53-32, 54-196 (West, 1969) (as cited in POPULATION,
LAW, AND THE ENVIRONMENT, supra note 3, at 95).
117 Griswold v. Connecticut, 381 U.S. 479 (1965).
118 Eisenstadt v. Baird, 405 U.S. 438 (1972).
119 Casti Connubii, Encyclical of Pope Pius Xi on Christian Marriage (Dec.
31, 1930), in JOHN CAVANAUGH, THE POPES, THE PILL, AND THE PEOPLE; A DOCU-
MENTARY STUDY (1965), available at http://www.vatican.va/holy_father/pius_xi/
encyclicals/documents/hf_p-xi_enc_31121930_casti-connubii_en.html (as cited
in POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 87).
120 CAVANAUGH, supra note 119, at 14 (citing de Convig. Aduit ii: 12) (as cited
in POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 87).
121 CAVANAUGH, supra note 119, at 109 (as cited in POPULATION, LAW, AND THE
ENVIRONMENT, supra note 3, at 87).
122 Miriam Zoila Perez, Past and Present Collide as the Black Anti-Abortion
Movement Grows, COLORLINES: NEWS FOR ACTION (Mar. 3, 2011, 9:35 AM),
123 JACQUELINE KASUN, THE WAR AGAINST POPULATION: THE ECONOMICS AND IDE-
OLOGY OF WORLD POPULATION CONTROL 159 (1st ed.1988) (citing KARL PEARSON,
LIFE, LETTERS, AND LABOURS OF FRANCIS GALTON (4 vols. 1914-40)) (as cited in
POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 88).
124 Id. at 160.
125 Id. at 86 (quoting EDWARD POHLMAN, HOW TO KILL POPULATION 161 (1971)).
126 POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 88.
127 KASUN, supra note 123, at 209.
128 KASUN , supra note 123, at 207 (as cited in POPULATION, LAW, AND THE ENVI-
RONMENT, supra note 3, at 89-90).
129 KASUN, supra note 123, at 38 (citing ROBERT L. SASSONE, HANDBOOK ON
POPULATION 99 (4th ed. 1978)) (as cited in POPULATION, LAW, AND THE ENVIRON-
MENT, supra note 3, at 90).
130 PAUL R. EHRLICH & ANNE H. EHRLICH, THE POPULATION EXPLOSION 39 (1991)
(as cited in POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 22).
131 Roe, 410 U.S. at 116.
132 Karen Breslau, Overplanned Parenthood: Ceausescu’s Cruel Law,
NEWSWEEK, Apr. 22, 1990, at 35, available at http://www.ceausescu.org/ceaus-
escu_texts/overplanned_parenthood.htm (as cited in POPULATION, LAW, AND THE
ENVIRONMENT, supra note 3, at 103).
133 David Grimes et al., Unsafe Abortion: the Preventable Pandemic, WORLD
HEALTH ORG.: SEXUAL & REPRODUCTIVE HEALTH 4 (2006), available at http://
134 Lindsay Beyerstein, Illegal Abortion Kills Kenyan Women, THE FOCAL POINT
(Mar. 4, 2010, 2:08 PM), http://bigthink.com/ideas/18925 (“[A] staggering
35% of all maternal deaths in Kenya are due to unsafe abortions. At least 2,600
women die from complications of unsafe abortions every year and another
21,000 are hospitalized at great cost to Kenya’s cash-strapped health system.
Kenyan health care providers told CRR [the Center for Reproductive Rights]
the true numbers are probably much higher because so many women never seek
medical attention. When they die, the true cause is seldom recorded.”).
135 LAURENCE H. TRIBE, ABORTION: THE CLASH OF ABSOLUTES 35 (1990) (as cited
in POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 112).
136 See Susan A. Cohen, Toward Making Abortion ‘Rare’: The Shifting
Battleground Over the Means to an End, 9 GUTTMACHER POLICY REV., 1 (2006),
available at http://www.guttmacher.org/pubs/gpr/09/1/gpr090102.html.
137 Id. at 2.
138 Id. at 3.
139 Id.; MYRA MARX FERREE, SHAPING ABORTION DISCOURSE: DEMOCRACY AND THE
PUBLIC SPHERE IN GERMANY AND THE UNITED STATES 27 (2002).
140 Breslau, supra note 132, at 35.
141 Breslau, supra note 132, at 35.
142 The Netherlands had one of the world’s lowest abortion rates in the 1990s
but subsequently saw a rate increase due to increased abortions among poor,
minority populations “in which access to birth control [is] restricted, in which
female sexuality [is] tightly policed, in which girls who become pregnant out-
side marriage are disgraced[,] and in which the costs and obligations of child-
bearing [are] loaded almost entirely on women alone.” David Frum, Let’s Get
Real about Abortions, CNN, Oct. 29, 2012, http://www.cnn.com/2012/10/29/
143 JOHN T. NOONAN, THE MORALITY OF ABORTION: LEGAL AND HISTORICAL PER-
SPECTIVES, 23 (1970) (as cited in POPULATION, LAW, AND THE ENVIRONMENT, supra
note 3, at 113).
146 Effraenatam, I Codicis Juris Fontes, ed. P. Gasparri, 308 (as cited in
NOONAN, supra note 143, at 27 (as cited in POPULATION, LAW, AND THE ENVIRON-
MENT, supra note 3, at 113).
147 Sedes Apostolica, I Codicis Juris Fontes, 330-31 (as cited in NOONAN, supra
note 143, at 33 (as cited in POPULATION, LAW, AND THE ENVIRONMENT, supra note
3, at 113).
148 Roe, 410 U.S. at 132-34.
149 LAURENCE H. TRIBE, ABORTION: THE CLASH OF ABSOLUTES 31 (1990) (as
POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 112).
150 JAMES C. MOHR, ABORTION IN AMERICA: THE ORIGINS AND EVOLUTION OF
NATIONAL POLICY, 1800-1900, at 3 (1978) (as cited in POPULATION, LAW, AND THE
ENVIRONMENT, supra note 3, at 115).
151 Id. at 5.
152 Reports of Persons Arrested Under the Auspices of ‘the Committee for the
Suppression of Vice’ of the Young Men’s Christian Association of New York
City, 1872-1873, MSS ledgers in the Library of Congress Entry #5 (as cited in
MOHR, supra note 150, at 197) (as cited in POPULATION, LAW, AND THE ENVIRON-
MENT, supra note 3, at 116).
153 MOHR, supra note 150 at 226.
154 Roe, 410 U.S. at 154.
155 See Refugee Act of 1980, 8 U.S.C.A. § 1101 (West 2011) (allowing
immigration from anywhere in the world if an immigrant claimed “fear of pros-
ecution” based on a social group or political opinion. Such a policy virtually
invited dictatorial human-exporting countries to rid themselves of their prison
156 RICHARD D. LAMM & GARY IMHOFF, THE IMMIGRATION TIME BOMB: THE
FRAGMENTING OF AMERICA 62-63 (1985) (as cited in POPULATION, LAW, AND THE
ENVIRONMENT, supra note 3, at 133).
159 See generally POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at
160 Vlae Kershner, A Hot Issue for the 90s: California Leads in Immigration—
and Backlash, S.F. CHRON., June 21, 1993, at A6 (as cited in POPULATION, LAW,
AND THE ENVIRONMENT, supra note 3, at 144).
162 BOOKER T. WASHINGTON, The Atlanta Exposition Address, in UP FROM SLAV-
ERY: AN AUTOBIOGRAPHY (1901), available at http://www.bartleby.com/1004/14.
html (as cited in POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 138).
163 LAMM & IMHOFF, supra note 156, at 138.
164 Martha R. Gore, Foreign Workers Take Jobs From Americans, EXAMINER,
Feb. 1, 2009, http://www.examiner.com/watchdog-politics-in-national/
165 Vlae Kershner, Why Immigration Laws are so Hard to Change, S.F.
CHRON., June 21, 1993, at A7 (as cited in POPULATION, LAW, AND THE ENVIRON-
MENT, supra note 3, at 139).
166 Michael Mandel et al., The Immigrants, BLOOMBERGBUSINESSWEEK (July 12,
1992), http://www.businessweek.com/stories/1992-07-12/the-immigrants (as
cited in POPULATION, LAW, AND THE ENVIRONMENT, supra note 3, at 140).
167 Vernon M. Briggs, Despair Behind the Riots: The Impediment of Mass
Immigration, 11 CENTER IMMIGR. STUD. 1 (1992) (as cited in POPULATION, LAW,
AND THE ENVIRONMENT, supra note 3, at 139-40).
168 Mandel, supra note 166.
169 LAMM & IMHOFF, supra note 156, at 140.
170 LAMM & IMHOFF, supra note 156, at 140.
171 RICHARD M. MOSEY, supra note 105, at 98-99; Biello, supra note 99;
HAAG, supra note 103, at 44-45; Global Warming Effects-Mitigate Temperature
Increase, TIME FOR CHANGE, http://timeforchange.org/mitigate-global-warming-
effects-temperature-simulation (last visited Aug. 29, 2011); See generally
POPULATION, LAW, AND THE ENVIRONMENT, supra note 3.
172 Carbon is only a trace element in our atmosphere (less than 2%); of this
2%, only 3% is attributable to human carbon emissions; of that 3%, only 22%
is attributable to U.S. carbon emissions; thus even if the United States reduced
its carbon emissions to zero, it world have only an inﬁnitesimal effect on global
carbon emissions. Chip Knappenberger, Climate Impacts of Waxman-Markey
(the IPCC-based arithmetic of no gain), MASTERRESOURCE (May 6, 2009), http://
markey-climate-bill—the-impacts-of-us-actions-alone/; see also TIME FOR
CHANGE, supra note 171, http://timeforchange.org/CO2-emissions-by-country.
173 Nadia Zakir, Emissions Trading Initiatives: Responding to Climate Change
Through Market Forces, 16 A.B.A. BUS. L. TODAY 6 (2007), available at http://
174 Eric Shaffner, Repudiation and Regret: Is the United States Sitting Out the
Kyoto Protocol to its Economic Detriment, 37 ENVTL. L. 441, 454 (2007).
175 See Council Directive 2003/87, art. 1, 2003 O.J. (L 275) 32, 36 (EC).
176 ICE OTC: Chicago Climate Exchange, available at https://www.theice.
177 Clean Development Mechanism, INTERGOVERNMENTAL PANEL ON CLIMATE
178 Regional Greenhouse Gas Initiative, http://www.rggi.org/.
179 CAL. HEALTH & SAFETY CODE § 38500 et seq. (West 2006), available at
180 Climate Stewardship Act of 2007, S. 280, 110th Cong. (2007), available at
181 DICKINSON, MACKAMAN, TYLER & HAGEN, ABCS OF CARBON MARKETS, 7
(2009), available at http://www.dickinsonlaw.com/docs/publications/280.pdf.
183 Ian W.H. Parry, Fiscal Interactions and the Case for Carbon Taxes over
Grandfathered Carbon Permits, 19 OXFORD REV. ECON. POL’Y 3, 385, 397
184 The Basic Principles: Supply and Demand, BASIC ECONOMICS.INFO, http://
www.basiceconomics.info/supply-and-demand.php (last visited Nov. 18, 2013).
185 See generally Ian W. H. Parr y, Reducing Carbon Emissions: Interactions
with the Tax System Raise the Cost, 128 RESOURCES FOR FUTURE 9 (1997), avail-
able at http://www.rff.org/rff/Documents/RFF-Resources-128-co2redux.pdf.
186 Rose Gutfeld, Shades of Green, WALL ST. J., Aug. 2, 1991, at A1.
62 SUSTAINABLE DEVELOPMENT LAW & POLICY
local government to keep the private entity under close scrutiny
and empower states to revoke the company’s contract should the
company act against its stated purpose. The only exception may
be allowing foreign beneﬁts corporations to pledge to provide
a public beneﬁt to the state in which it wishes to incorporate.21
Many states have enacted statutes allowing foreign and domestic
entities to incorporate as beneﬁts corporations, provided their
articles and bylaws state a purpose that involves a beneﬁt to soci-
ety or the environment, or both.22 To modify cur rent policy, the
enabling statute that empowers municipalities to enter into priva-
tization contracts would stipulate that the stated purpose of the
corporation would include a declaration to directly provide an
identiﬁable and enforceable beneﬁt to the incorporating state.23
Finally, under this policy, any privatized contract for water
infrastructure, service upgrades or maintenance, funded in
whole or in part by municipal or public funds, should be subject
to resident hiring requirements.24 Case law and current trends
have tested the constitutionality and authority of state govern-
ments to require private companies working on public contracts
funded with public funds to fulﬁll certain requirements, such
as the employment of an established percentage of municipal
residents.25 These employment requirements would ser ve a
quality assurance and oversight function by putting responsible,
accountable stakeholders in control of the daily operations pro-
vided for in the privatization contract.26
In light of looming resource shortages, past mismanage-
ment, and systemic water service failures due to a lack of effec-
tive oversight, the time has come to promote accountability on
the state level for those entities seeking to gain private control
of natural resources.27 This accountability must allow states
and municipalities to maintain some level of control over these
resources and promote the stewardship of local communities
by private public service entities. This proposed policy would
allow local control of resources but create an accountability
mechanism making state legislatures accountable to Congress,
and the people and private water companies accountable to state
legislatures. Furthermore, this accountability policy will further
protect municipal water resource availability and the integrity
of water management and maintenance infrastructures for future
Endnotes: Oversight and Accountability of Water Privatization Contracts: A
Proposed Legislative Policy
1 Sharmila L. Murthy, The Human Right(s) to Water and Sanitation: His-
tory, Meaning, and the Controversy Over-Privatization 18, 31 BERKELEY J.
INT’L L. 89 (2013) (discussing the United Nations General Assembly attention
to the global crisis involving safe drinking water and noting a review of the
2010 minutes of the U.N. General Assembly vote involving human rights and
safe drinking water “suggests that the politics around privatization may have
inﬂuenced the positions of the abstaining countries.” Although the article notes
the U.N. debate is centered on human rights, there has already been debate from
an economic and social rights perspective. The author notes three themes that
highlight the “tensions between human rights and the private sector involvement
in the water and sanitation sectors” to include “ﬁnancial stability, efﬁciency, and
dispute resolution.”); see also, Julie C. Padowski, Dissertation, The Complexity
of Urban Water Resources Management: Water Availability and Vulnerability
for Large Cities in the United States 67, Univ. of Fla. (2011) (“As such urban
areas have invested heavily in developing technology to secure the resources
needed to meet and maintain these steadily increasing levels of production,
although often to the detriment of the environment. . . . Despite constantly
growing needs, over the years urban areas have continued to successfully
exploit resources, despite their seemingly unsustainable rate of consumption. .
. . In the [United States] however, the growing uncertainty surrounding future
urban water availability has, for many water providers, become a primary
issue of concern. . .”); Julie Padowski & James Jawitz, UNIV. OF FLA., Water
Availability and the Vulnerability of Large United States’ Cities, GLOBAL WATER
FORUM (Apr. 16, 2013), http://www.globalwaterforum.org/2013/04/16/water-
availability-and-the-vulnerability-of-large-united-states-cities/ (“Water avail-
ability measurements . . . based solely on renewable water supplies indicated
that nearly half of the sampled urban population (47%) faced moderate (27%)
or severe (20%) risk of water scarcity. Of those considered “at-risk,” 14 urban
areas were identiﬁed as having availability levels below the national average
of 600 liters per capita per day (lpcd). These results suggest that these cities
suffer perpetual water shortages not from variability in supply, but rather from a
perennial, systematic, lack of water.”).
2 Padowski & Jawitz, supra note 1.
3 Craig Anthony Arnold, Water Privatization Trends in the United States:
Human Rights, National Security, and Public Stewardship, 33 WILLIAM & MARY
ENVTL. L. & POL’Y REV. 785 (2009); see also, Murthy, supra note 1, at 123.
4 See Arnold, supra note 3 (noting water privatization proﬁt potential encour-
ages: (1) commodiﬁcation of water counteracting conservation and leading to
urban sprawl, (2) rate hikes to offset the cost to update water systems threaten-
ing the poorer populations access to water, and (3) private use for proﬁt (i.e.,
water bottling operations)).
5 Murthy, supra note 1, at 18-19, 26 (citing Jennifer Davis, Private-Sector
Participation in the Water and Sanitation Sector, 30 ANN. REV. ENV’T &
RESOURCES 145, 154 (2005) (noting also “[t]he more a state delegates its
responsibilities to fulﬁll to a non-state actor, the greater its duty to protect.
Accordingly, governments must confront the question of ﬁnancial sustainability
and affordability. While higher tariffs may be needed to improve water and
sanitation infrastructure, long-term ﬁnancing and some form of subsidy for
the poor likely will be required to ensure that no one is denied access to basic
services due to an inability to pay.”); Andrew Nickson & Claudia Vargas, The
Limitations of Water Regulation: The Failure of the Cochabamba Concession in
Bolivia, 21 BULL. LATIN AM. RES. 99-120 (2002) (arguing that political motives
for privatization in communities with limited resources allows politicians to
pass responsibility for raising water rates to a private water company to save
6 Murthy, supra note 1, at 26 (citing MATTHEW C. R. CRAVEN, THE INTERNA-
TIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: A PERSPECTIVE
ON ITS DEVELOPMENT (1995)) (arguing that more oversight and regulation are
required by political governing bodies).
OVERSIGHT AND ACCOUNTABILITY OF WATER PRIVATIZATION CONTRACTS:
A PROPOSED LEGISLATIVE POLICY
continued from page 15
7 Arnold, supra note 3; see also, ROBIN A. JOHNSON ET AL., LONG-TERM
CONTRACTING FOR WATER AND WASTEWATER SERVICES 9, 11 (2002) (“Long-term
contracts can produce other important beneﬁts for the community. Hiring the
existing workforce promotes continuity and helps avoid nasty, divisive labor
battles. Cities can also enhance local economic development through long-term
contracts. . . . It has often been seen that private sector companies become
good ‘corporate citizens’ and get involved in worthwhile community activities,
charities, etc. This adds additional value to long-term partnership arrangements
as companies ‘invest’ in the communities they serve. . . . Management contracts
also enable municipalities to overcome potential employee opposition to
privatization. Surveys on privatization consistently show that employee opposi-
tion is the leading obstacle to privatization of public services. A management
contract can lessen opposition by allowing employees to remain on the public
payroll. As employees become more comfortable with private management,
they may be more willing to work for the contractor in a full [operations and
management] agreement.”); White v. Mass. Council of Constr. Emplrs, 460 U.S.
204 (1983) (holding it constitutional for cities, acting as market participants, to
condition wholly or partially city-funded public projects to be performed by city
residents); see also, United Bldg. & Constr. Trades Council v. Camden, 465 U.S.
208 (1984) (citing Toomer v. Witsell, 334 U.S. 385 (1948) (“[The Privileges and
Immunities Clause] does not preclude discrimination against citizens of other
States where there is a ‘substantial reason’ for the difference in treatment. ‘[T]
he inquiry in each case must be concerned with whether such reasons do exist
and whether the degree of discrimination bears a close relation to them;’” and
further noting that States should be given “considerable leeway in analyzing
local evils and in prescribing appropriate cures . . . [t]his caution is particularly
appropriate when a government body is merely setting conditions on the expen-
diture of funds it controls”); see e.g., Beneﬁt Corp Information Center, State by
State Legislative Status, http://beneﬁtcorp.net/state-by-state-legislative-status
(last accessed Dec. 1, 2013) (listing the status of each state in passing a beneﬁts
corporation statute); BENEFIT CORP, 2013 STATE BY STATE SUMMARY CHART
(2013), available at http://beneﬁtcorp.net/storage/documents/2013_State_by_
State_Summary_Chart.pdf (providing a summary of both model statutory and
state by state statutory language).
8 Arnold, supra note 3, at 791-794 (citing Safe Drinking Water Act of 1974,
Pub. L. No. 93-523, 88 Stat. 1660 (1974) (codiﬁed at 42 U.S.C. §§ 300f- 300j-
26 (2006)), amended signiﬁcantly by the Public Health Security and Bioter-
rorism Preparedness and Response Act of 2002, Pub. L. No. 107-188, 116
Stat. 594 (2002)); Shiney Varghese, Privatizing U.S. Water, Inst. for Agric. &
Trade Policy 4 (2007), available at http://www.iatp.org/ﬁles/451_2_99838.pdf;
see also, JOHNSON ET AL., supra note 7, at 4 (“The 1997 changes were not the
ﬁrst time the tax law guidelines governing partnerships were changed. Before
a 1986 tax law change, the privatization landscape included both short-term
contract-operations arrangements and long-term (20-year) private-ownership
arrangements. Under the latter, private-sector partnerships allowed for facilities
to be upgraded or expanded, and new facilities to be designed, built, ﬁnanced,
operated, and owned by private partners. The 1986 tax law changes removed tax
beneﬁts for private ownership and the market became almost entirely short-term
contract-operations arrangements. These arrangements were quite successful.
Many companies in the business enjoyed a greater than 90[%] renewal rate in
lieu of reprocurement.”).
9 Varghese, supra note 8, at 2-3; see also Murthy, supra note 1, at 126;
Arnold, supra note 3, at 791.
10 Arnold, supra note 3, at 828 (“Private control and commodiﬁcation of
water threaten the integrity and sustainability of waters, water systems, and
watersheds in interconnected human and natural systems” by failing “to achieve
ecological integrity and sustainability, because water is treated as disaggregated
into discrete units of private control and consumption, instead of being con-
sidered part of interdependent human and natural communities.” (emphasis in
original)); see also ERIC FREYFOGLE, WHY CONSERVATION IS FAILING AND HOW IT
CAN REGAIN GROUND (2006); ROBERT GLENNON, WATER FOLLIES: GROUNDWATER
PUMPING AND THE FATE OF AMERICA’S FRESH WATERS (2002); SANDRA POSTEL AND
BRIAN RICHTER, RIVERS FOR LIFE: MANAGING WATER FOR PEOPLE AND NATURE
(2003); Jonathan Adler, Water Marketing as an Adaptive Response to the Threat
of Climate Change, 31 HAMLINE L. REV. 729 (2008).
11 Arnold, supra note 3, at 794, 799; Murthy, supra note 1, at 125-126, n. 178
(citing George R. G. Clarke, Katrina Kosec & Scott Wallsten, Has Private Par-
ticipation in Water and Sewerage Improved Coverage? Empirical Evidence from
Latin America, 21 J. INT’L DEV. 327, 335 (2009) and Douglas Jehl, As Cities
Move to Privatize Water, Atlanta Steps Back, N.Y. Times, Feb. 10, 2003, http://
12 Arnold, supra note 3, at 799-800 (“Atlanta entered into the contract in
1999 due to the inefﬁciencies and inadequacies of its public sector water
operations, as well as high infrastructure-related costs. The parties, however,
rushed through the bidding and approval process, failed to gather sufﬁcient
information, and did not negotiate carefully. Moreover, United [Water] ran the
Atlanta system poorly, resulting in extensive complaints and widespread public
and municipal regret over the privatization decision. It underbid the highly
competitive contract to operate, maintain, and upgrade Atlanta’s aging water
infrastructure but blamed the city for allegedly failing to fully disclose the
condition of its infrastructure. As United Water cut jobs and training to reduce
expenses, it developed backlogs of thousands of work orders and delivered poor
quality of water, often with inadequate pressure. As a result, water ran orange
to brown for many customers, tinting clothes laundered in it and hair washed
in it, and United Water had to issue numerous ‘boil water’ orders because low
pressure or insufﬁcient water treatment made the water unsafe to drink, even
though some customers said that they did not receive notices until one to two
days after the water became unsafe. In one example, United did not address a
broken main gushing water into the street and washing away pavement during
a severe drought for ten days, even though a customer notiﬁed United repeat-
edly. In addition, inefﬁciencies led to waste, such as failure to bill customers
properly, which resulted in millions of dollars of lost revenues to the City of
Atlanta. After city ofﬁcials and United Water management agreed to terminate
the contract after only four years, the city resumed operation of its water system
under a new structure, making infrastructure upgrades, hiring new staff, and
introducing new customer service processes.” (citations omitted)).
13 Peter Orszag, Atlanta’s Water War Is First in a Gathering Flood, BLOOM-
BERG (Mar. 20, 2012), http://www.bloomberg.com/news/2012-03-20/atlanta-s-
16 Varghese, supra note 8, at 6.
17 Varghese, supra note 8, at 6 (“More directly affecting the public drinking
water supply is the increased use of bottled water. Despite community opposi-
tion, corporations such as Nestle, Coke and Pepsi have been successful in
convincing the public that their bottled water is healthier than municipal water.
According to a number of studies, bottled water usage is becoming pervasive,
which in essence is participating in a new form of privatization of the drinking
water supply. In the U.S., despite very high tap water quality standards (unlike
bottled water, which is not regulated by EPA [U.S. Environmental Protection
Agency]), more and more Americans feel the need to opt out of the public water
system, and depend on bottled water. This loss of faith is less a result of under-
performance of the water utility than of highly successful marketing strategies.
This loss of faith sometimes seems shared even by the EPA itself. On December
12, 2006, EPA organized a listening session on ‘Exploring Bottled Water as
an Alternative Compliance Option for Chronic Contaminants Regulated under
the Safe Drinking Water Act in Limited Situations for Non-Transient, Non-
Community Water Systems.’ In the listening session itself, citizens’ groups
argued that this initiative poses a new threat to public water systems.”).
18 Arnold, supra note 3, at 803-804; see also JOHNSON ET AL., supra note 7, at
3 (“The landscape for contract operations was radically transformed in 1997.
Long-term contracts for public utility operations were made possible when the
Internal Revenue Service [(‘IRS’)] issued Revenue Procedure 97-13 which
allows operators to enter into contracts of up to 20 years in length. Prior to
1997, contracts for water and wastewater services not only were limited by the
IRS to ﬁve years, but also needed a termination clause that allowed contract
cancellation after only three years. In other words, a contractor could only
be assured of a three-year involvement in a project. With such a narrow time
frame, operators were limited in their ability to invest in infrastructure improve-
ment. With the need for capital improvements that the water infrastructure
requires, opportunities for building a mutually beneﬁcial partnership over an
extended term have become an attractive solution under the rule changes. The
new federal rules also open the door to new possibilities of expanded efﬁciency
and cost reductions.”).
19 Arnold, supra note 3, at 799-800; see also Orszag, supra note 13.
20 JOHNSON ET AL., supra note 7.
21 The theory is that if a company wanted to incorporate anywhere in the
United States or abroad, it could, but to provide public services, state policy
would require the company to be a beneﬁts corporation. The beneﬁts corpora-
tion would be required to have a stated purpose to provide a public beneﬁt to
that state and reinvest a certain portion of the proﬁts back into the corporation
to allow it to carry on its purpose. The goal of this policy is a type of shared
accountability: the corporation to the state and the state to state citizens. See
64 SUSTAINABLE DEVELOPMENT LAW & POLICY
35 See Chertok & Miller, supra note 24, at 927.
36 Chertok & Miller, supra note 24, at 927.
37 Chertok & Miller, supra note 24, at 927-28.
38 See Gregory D. Eriksen, Note, Breaking Wind: Facilitating Wind Energy
Development in New York State, 60 SYRACUSE L. REV. 189, 196 (2009) (stating
that challenges to decisions of SEQRA lead agencies usually take form of a
petition under Article 78 of the New York Civil Practice Law and Rules); N.Y.
C.P.L.R. art. 78 (McKinney 2006). New York courts usually uphold agencies’
SEQRA decisions unless they are “arbitrary and capricious” or otherwise
legally erroneous. H.H. Warner, LLC v. Rochester Genesee Reg’l Transp. Auth.,
87 A.D. 3d 1388, 1390, 930 N.Y.S.2d 131, 132 (App. Div. 2011).
39 See Chertok & Miller, supra note 24, at 926 (DEC drafted relevant
40 See N.Y. COMP. CODES R. & REGS. 6, § 617.4.
41 The lead agency can rebut this presumption if its environmental assessment
identiﬁes “potential adverse environmental impacts, take[s] a ‘hard look’ at
them, and ‘[makes] a reasoned elaboration of the basis for its determination’
that there would be no adverse impacts.” Chinese Staff & Workers Ass’n v.
Burden, 932 N.Y.S.2d 1, 2 (App. Div. 2011) [hereinafter Chinese Staff II].
42 See Sterk, supra note 6, at 2044-45.
43 N.Y. COMP. CODES R. & REGS. 6, § 617.5(c).
44 Id. at § 617.5(c)(1) (maintenance of existing facility), (2) (replacement or
repair of structure or facility), (9) (construction of single-family, two-family or
three-family residence), (10) (construction of accessory residential structures),
(12) (granting of individual setback and lot line variances), (13) (other vari-
ances for single-family, two-family and three-family residences). Cf. Sterk,
supra note 6, at 2044 (Type II actions include “replacement of existing facilities
on the same site, granting of setback and lot size variances, construction of
minor accessory structures … and mapping of existing roads.”); Patricia Salkin,
The Historical Development of SEQRA, 65 ALB. L. REV. 323, 340-44 (2001)
(listing numerous other exclusions).
45 N.Y. COMP. CODES R. & REGS. 6, § 617.2(ak) (deﬁning “unlisted” actions).
46 Id. at § 617.7 (agency must determine signiﬁcance of environmental
impact as to both Type I and unlisted actions).
47 See Chertok & Miller, supra note 24, at 926.
48 SEQRA’s broad deﬁnition of “environment” is not the only difference
between SEQRA and NEPA; however, it is the difference most relevant to
this article. Two other differences are important but less relevant to the issues
discussed below. First, SEQRA is a substantive statute (requiring agencies
to actually avoid adverse environmental impacts to the maximum extent
possible), while NEPA is merely a procedural statute, requiring agencies to
disclose rather than avoiding environmental impacts. See Chertok & Miller,
supra note 24, at 927-28 (SEQRA requires lead agency to certify that its action
“avoids or minimizes adverse environmental impacts to the maximum extent
practicable” through mitigation measures); Jody Freeman & Jim Rossi, Agency
Coordination in Shared Regulatory Space, 125 HARV. L. REV. 1131, 1195 n.291
(2012) (noting that because NEPA is “procedural”, it “requires only that action
agencies disclose environmental impacts, not that they alter their plans in light
of what they learn”); Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 351 (1989) (NEPA “prohibits uninformed—rather than unwise—agency
action”). Second, SEQRA requires an EIS whenever agency action “may” sig-
niﬁcantly affect the environment. N.Y. ENVTL. CONSERV § 8-0109(2) (McKinney
2013). By contrast, NEPA requires an EIS only for actions that “will” create
such an impact. See Robertson, 490 U.S. at 356, n.17.
49 42 USC § 4332(2)(C).
50 Chinese Staff I, 502 N.E.2d at 503.
51 N.Y. ENVTL. CONSERV § 8-0105(6).
53 Id. (“long-term effects” must be considered under SEQRA).
54 See supra notes 34-35 and accompanying text.
55 Jackson, N.E.2d at 434.
57 Id. at 436.
58 Id. at 435.
59 See infra note 96.
60 See George Lefcoe, Finding the Blight That’s Right for California Redevel-
opment Law, 52 HASTINGS L.J. 991, 1033 (2001) (describing “inﬁll” as “re-use
of developed urban parcels”); Hubble Smith, Finding the Will to Inﬁll, LAS
VEGAS BUS. PRESS, Jan. 16, 2012, at 6 (Inﬁll development, “broadly deﬁned [is]
new construction on vacant parcels with utility and infrastructure already in
place and surrounded by existing homes and businesses.”).
61 Anne Marie Pippin, Community Involvement in Brownﬁeld Redevelopment
Makes Cents: A Study of Brownﬁeld Redevelopment Initiatives in the United
States and Central and Eastern Europe, 37 GA. J. INT’L & COMP. L. 589, 596
62 See Bill Lurz, Don’t Give Up on Developing Land, HOUSING GIANTS (Nov.
24, 2008) at 7, http://www.nxtbook.com/nxtbooks/reed/hg_20081124/index.
php?startid=5#/6 (“[M]any of the best inﬁll sites will require . . . rezoning.”);
Your Right to Know, ATLANTA J. & CONSTITUTION, March 3, 2005, at 1 (“Usually
. . . developments require rezoning.”).
63 See Chertok & Miller, supra note 24 and accompanying text.
64 See infra Part III A.
65 See infra Part III B.
66 N.Y. ENVTL. CONSERV. §8-0105(6).
68 Chinese Staff I, 502 N.E.2d at 176.
69 Id. at 177.
70 Id. at 178 (More precisely, the city issued a “conditional negative declara-
tion,” which means that the project would “not have any signiﬁcant effect on the
environment if certain modiﬁcations were adopted by the developer.”).
72 Id. at 179.
73 Id. at 180.
75 Id. at 181.
77 See Diane K. Levy, Jennifer Comey & Sandra Padilla, In the Face of
Gentriﬁcation: Case Studies of Local Efforts to Mitigate Displacement, 16 J.
Endnotes: HOW ENVIRONMENTAL REVIEW CAN GENERATE CAR-INDUCED POLLUTION: A CASE STUDY
continued from page 22
generally, John Sanbrailo, Public-Private Partnerships: A Win-Win Solution,
Hufﬁngton Post (Sep. 25, 2013), http://www.hufﬁngtonpost.com/john-
sanbrailo/publicprivate-partnership_4_b_3990605.html. If the company fails to
provide a beneﬁt to the state, the state will revoke its charter. The organizational
documents and bylaws would state a business purpose that is state-speciﬁc. If
the company acts outside of its stated state-speciﬁc purpose, it loses its charter
in that state and the contract to provide the public service. To incentivize com-
panies to form for state-speciﬁc public service provider purposes, states would
have to allow these corporations to generate a proﬁt, a substantial portion of
which would be reinvested in the corporation to the beneﬁt of the community
it serves. The proﬁt would be key to generating revenue for continued main-
tenance. To avoid proﬁt generation and immediate dissolution to redistribute
proﬁts, state policy should also consider a provision in the law regarding the
remaining revenues distribution should private-public service providers dis-
solve. Any proﬁts generated should be protected much like the cy pres doctrine
protects charitable gifts. See generally Beneﬁts Corporation Information Center,
http://beneﬁtcorp.net/ (last accessed Dec. 28, 2013).
22 See BENEFIT CORP, 2013 STATE BY STATE SUMMARY CHART, supra note 7 (pro-
viding a summary of both model statutory and state by state statutory language
that either follows or modiﬁes the model statutory language).
23 For a discussion and examples, see Arnold, supra note 3, at 792-793.
24 Arnold, supra note 3, at 792-793; Varghese, supra note 8, at 2.
25 Arnold, supra note 3, at 792-793; see supra note 7 and accompanying text.
26 See generally, JOHNSON ET AL., supra note 7, at 9; Arnold, supra note 3, at
27 Murthy, supra note 1; see also Varghese, supra note 8, at 3 (referring to
national and multinational water companies: “Tracking these national and mul-
tinational corporations is also a challenge because they are continually making
changes to their structure such as adding and dropping cities and subsidiaries,
trading divisions of their operations, and changing the name of their corporation
completely. They also frequently alter contracts.”).
AFFORDABLE HOUSING & COMMUNITY DEV. L. 238, 240 (Spring 2007) (describing
how “secondary displacement” occurs when gentriﬁcation leads to higher rents,
and existing residents cannot remain in neighborhood); James A. Kushner,
Affordable Housing as Infrastructure in the Era of Global Warming, 42/43 URB.
LAW. 179, 206 (2010/2011) (noting that if a neighborhood is “attractive . . . a
side effect can be secondary displacement” as rents rise); Chinese Staff I, 509
N.E.2d at 181 (using the term “secondary displacement”).
78 Chinese Staff I, 509 N.E.2d at 181 (“The fact that the actual construc-
tion on the proposed site will not cause the displacement of any residents or
businesses is not dispositive for displacement can occur in the community
surrounding a project as well as on the site of a project. Indeed, this project is
to be constructed on one of seven sites available for development in the area
and three of these sites are within one square block of the site of Henry Street
79 Fisher v. Giuliani, 720 N.Y.S.2d 50 (App. Div. 2001).
80 Id. at 51-52 (describing city’s plan in detail). See also Phillip Weinberg,
Environmental Law, 52 SYRACUSE L. REV. 353, 360 (2002) (describing the plan
81 Fisher, 720 N.Y.S.2d at 53.
83 However, the court did require further review of a “discretionary mecha-
nism” allowing additional development at the city’s discretion. Id. at 52, 55
(describing discretionary mechanism and explaining reversal of city’s decision
on this point). As to this issue, the court rejected the city’s contention that
environmental review was premature. Id. at 55. Thus, the “discretionary mecha-
nism” discussion did not reach the merits of whether SEQRA required an EIS.
84 Id. at 55.
85 Chinese Staff II, 932 N.Y.S.2d at 1.
86 Id. at 2.
88 Id. at 4.
90 Id. at 6.
91 Cf. East Coast Dev. Co. v. Kay, 667 N.Y.S.2d 182, 184 (Sup. Ct. 1996)
(stating in dicta that city could not rely on SEQRA to justify rejection of com-
mercial building on outskirts of city, partially because project “would not alter
the physical character of any coherent cultural enclave or neighborhood”).
92 Roderick M. Hills, Jr. & David N. Schleicher, Balancing the “Zoning
Budget,” 62 CASE W. RES. L. REV. 81, 90 (2012) (using ter m).
93 See Greg Greenway, Getting the Green Light for Senate Bill 375: Public
Engagement for Climate-Friendly Land Use in California, 10 PEPP. DISP.
RESOL. L.J. 433, 442 (2010) (noting that inﬁll development is not as common as
professional planners would like because when one landowner proposes such
development, other neighborhood “residents frequently organize to oppose such
development”); Mary Lynne Vellinga, Activists Trumpet Growth Defeat: This
Week’s Turnout Shows Their Rising Clout, Environmentalists Say, SACRAMENTO
BEE, Mar. 17, 2007, at B1 (quoting statement by local ofﬁcial that environmen-
tal community would be more politically powerful if they fought “to counteract
the NIMBY stuff [local ofﬁcials] deal with all the time on good inﬁll projects”);
Steven Anderson, Fill ‘Er In? Developers, Ofﬁcials Seek To Avoid Battles Like
Crescent Rim, IDAHO BUS. REV., Sept. 26, 2005 (questioning whether “the pros-
pect of concerted neighborhood opposition make inﬁll projects more trouble
than they’re worth”).
94 See Hills & Schleicher, supra note 92, at 90.
95 See John W. Caffry, The Substantive Reach of SEQRA: Aesthetics, Findings
and Non-Enforcement of SEQRA’s Substantive Mandate, 65 ALB. L. REV. 393,
414 (2002) (listing persons most likely to be dissatisﬁed with agency action to
include “concerned citizens who live near project sites” as well as environmen-
96 Cf. Sarah Townsend, Ministers to Study New Airport, PLANNING RESOURCE
(Jan. 28, 2011), http://www.planningresource.co.uk/article/1051537/ministers-
study-new-airport (describing how British ofﬁcials are building new London
airport on a “greenﬁeld” site to “get around the NIMBY problem”).
97 See Sterk, supra note 6, at 2069-71 (explaining that “litigants rarely suc-
ceed when they complain that decisions made by municipalities or state agen-
cies paid inadequate attention to date included in the EIS” and listing numerous
examples); Caffry, supra note 95, at 412 (describing how during the 1990s,
court challenges to agency SEQRA determination prevailed in 28% of the cases
where no EIS was prepared, and 10% of cases where a ﬁnal EIS was prepared).
98 Sterk, supra note 6, at 2084.
99 See Chad Lamer, Why Government Policies Encourage Urban Sprawl, and
the Alternatives Offered by New Urbanism, 13 KAN. J.L. & PUB. POL’Y 391, 402
100 See Sterk, supra note 6, at 2081-82 (citing one example of a 196-page
impact statement, and another EIS that included 174 pages on trafﬁc and trans-
portation alone, as well as 57 pages on mitigation of such problems).
101 See Patrick Gallagher, Reviewing the Environmental Review, 47 FAIRFAX
COUNTY BUS. J. 19 (Sept. 26, 2011) (“[T]he review process of any development
moves ahead at [lead agencies’] discretion, sometimes taking as many as four
o[r] ﬁve years before a decision is rendered.”).
102 See Tuxedo Land Trust, Inc. v. Town of Tuxedo, 950 N.Y.S.2d 611 (Sup. Ct.
103 See Save Coney Island, Inc. v. N.Y.C., 910 N.Y.S.2d 765 (Sup. Ct. 2010).
104 Empire State Dev. Corp., SEQRA Findings Statement 5-6, http://www.
SEQRAFindingsStatement.pdf (last visited August 16, 2012).
105 Id. at 6.
106 See Develop Don’t Destroy v. Empire State Dev. Corp., 942 N.Y.S.2d 477
(App. Div. 2012).
107 See Thomas Merrill & David M. Schizer, Energy Policy for an Economic
Downturn: A Proposed Petroleum Fuel Price Stabilization Plan, 27 YALE J.
REG. 1, 20 (2010) (“[A]lternative modes of transportation, such as walking,
bicycling or public transportation, are impossible or inconvenient in suburbs
and exurbs.”); Michael Lewyn, Sprawl in Canada and the United States, 44
URB. LAW. 85, 96-97 (2012) (comparing transit ridership in a variety of North
America cities and metropolitan areas, and showing that central cities consis-
tently have more transit ridership than region as a whole; for example, 52.8% of
New York City residents use public transit to get to work, as opposed to 24.9%
of region-wide commuters).
108 Lewyn, supra note 107, at 111, 119-20.
109 See PAMELA BLAIS, PERVERSE CITIES 60-61 (2010) (citing numerous studies).
110 Id. at 61 (A “minimum threshold density is needed to support a rudimen-
tary level of transit service (say, about every half hour). As densities increase,
so, too, does the economic viability of higher levels of service.”).
111 Merrill & Schizer, supra note 107, at 17.
112 Merrill & Schizer, supra note 107, at 18.
113 See infra notes 114–28 and accompanying text (discussing evidence that
transit-oriented places pollute less). It could be argued that this reality is not
relevant to inﬁll development as a whole, because not all inﬁll areas are equally
compact or transit-oriented. For example, an inner-ring suburb such as Long
Island’s Nassau County may be developed enough for most development to be
inﬁll development, yet highly automobile-dependent. Yet even these suburbs
are less automobile-dependent than outer suburbs. For example, in Nassau
County seventy-seven percent of commuters drove to work—a higher percent-
age than in New York City, but still lower than outer-ring Suffolk County where
over eighty-seven percent did so. See U.S. Census Bureau, State & County
Quickfacts, http://quickfacts.census.gov/qfd/states/36000.html (last visited Dec.
16, 2013) (click on links for individual New York counties, then go to “Browse
Data Sets” for county, then click link for “Economic Characteristics”). And in
semi-suburban Queens, located between Manhattan and Long Island, only a
minority of commuters drove to work. Id.
114 See OLIVER GILLHAM, THE LIMITLESS CITY 114 (2002) (describing the argu-
ment that density breeds congestion).
115 See BLAIS, supra note 109, at 65.
116 BLAIS, supra note 109, at 65
117 BLAIS, supra note 109, at 65. See also WILLIAM FULTON, ET.AL., WHO
SPRAWLS MOST? HOW GROWTH PATTERNS DIFFER ACROSS THE U.S. 8 (2001),
available at http://www.brookings.edu/~/media/research/ﬁles/reports/2001/7/
118 See David SCHRANK, ET.AL., TTI’S 2010 URBAN MOBILITY REPORT 3 (2010),
available at http://tti.tamu.edu/documents/mobility_report_2010.pdf.
119 See TRANSP. RESEARCH BD., DRIVING AND THE BUILT ENVIRONMENT ix-x
(2009) [hereinafter TRB], available at http://www.nap.edu/catalog.php?record_
id=12747#toc (describing authors and sponsorship).
120 Id. at 4. See also ABT ASSOCIATES, RESEARCH ON FACTORS RELATING TO
DENSITY AND CLIMATE CHANGE 5 (2010), available at http://www.nahb.org/
ﬁleUpload_details.aspx?contentID=139993&fromGSA=1 (noting that this view
is supported by “weight of the evidence”).
121 TRB, supra note 119, at 4. See also TRB, supra note 119, at 31-66
(describing the relationship between density and vehicle miles traveled in more
122 TRB, supra note 119, at 4.
66 SUSTAINABLE DEVELOPMENT LAW & POLICY
123 See EDWARD L. GLAESER & MATTHEW KAHN, THE GREENNESS OF CITIES 1
(2008), available at http://www.hks.harvard.edu/var/ezp_site/storage/fckeditor/
(“[L]ow-density development . . . is associated with far more carbon dioxide
emissions than higher-density construction.”). See also SIERRA CLUB, SPRAWL
REPORT 2001: A SUMMARY (2001), available at http://www.sierraclub.org/
sprawl/report01/summary.asp (suggesting that most auto-oriented regions have
124 GLAESER & KAHN, supra note 123, at 5.
125 Mass. v. EPA, 549 US 497, 504 (2007) (holding that carbon dioxide is a
major greenhouse gas).
126 GLAESER & KAHN, supra note 123, at 5.
127 GLAESER & KAHN, supra note 123, at 5.
128 See supra note 107; BROOKINGS INST., WHERE THE JOBS ARE: EMPLOYER
ACCESS TO LABOR BY TRANSIT, NEW YORK-NORTHERN NEW JERSEY-LONG ISLAND
NY, NJ-PA METRO AREA (2012), available at http://www.brookings.edu/
Papers/2012/7/transit%20labor%20tomer/pdf/New_York.pdf (presenting a table
showing that in New York City, 58.1% of residents can reach typical job in 90
minutes via public transit; only 14.4% of suburban jobs equally accessible).
129 See GLAESER & KAHN, supra note 123, at 8 (noting that suburbanites emit-
ted 6,172 more pounds of automobile-related emissions per household than city
residents; however, this gap was partially offset by city residents’ generation
of 2,367 more pounds of public transit-related emissions per household). New
York suburbanites emitted more home heating emissions than city residents as
well; however, this was not the case in all metropolitan areas studied. Id.
130 See supra notes 75-76 and accompanying text.
131 See EDWARD L. GLAESER & JOSEPH GYOURKO, THE IMPACT OF ZONING UPON
HOUSING AFFORDABILITY 19-20 (2002), available at http://www.nber.org/papers/
w8835.pdf (noting that delayed issuance of building permits correlated with
high housing costs).
132 See, e.g., E. Coast Dev. Co., 667 N.Y.S.2d at 184-86 (holding that the
“visual impact” of proposed commercial development for users of nearby hik-
ing trail justiﬁed city’s rejection of project).
133 See John Darakjian, SB 375: Promise, Compromise, and the New Urban
Landscape, 27 UCLA J. ENVTL L. & POL’Y 371, 372 (2009) (describing amend-
ments part of SB 375, enacted in 2008).
134 Katherine M. Baldwin, NEPA and CEQA: Effective Legal Frameworks for
Compelling Consideration of Adaptation to Climate Change, 82 S. CAL. L. REV.
769, 771 (2009) (describing CEQA, one of the “little NEPA” statutes).
135 CAL. PUB. RES. CODE § 21000 et seq. (West 2013).
136 And for some other residential development as well. See infra note 145 and
137 See Byron K. Toma, The Error of Streamlining CEQA for Transit Priority
Projects: Why California Transit Agencies May Share the Same Future as Polar
Bears, 18 U. BALT. J. ENVTL. L. 171, 173 (2011).
138 See CAL. PUB. RES. CODE § 21155.
139 See Darakjian, supra note 133, at 393 (citing CAL. PUB. RES. CODE §§
140 See Darakjian, supra note 133, at 393.
141 Darakjian, supra note 133, at 393 n.95 (citing conversation with private
developer who stated that the “low-income requirement is a big deterrent to
builders, because you’re giving these units away”).
142 This statement can be easily veriﬁed by a look at Google Street View,
http://maps.google.com (search for “New York, NY”).
143 See Darakjian, supra note 133, at 393.
144 CAL. PUB. RES. CODE. § 21155.2(b).
145 See Darakjian, supra note 133, at 393 (describing SCEA as a “truncated”
form of review).
146 See Toma, supra note 137, at 191-92. In addition, a statute enacted in
2012, SB 226, creates additional protections for a wide variety of inﬁll projects.
See STATE OF CAL., GOVERNOR’S OFFICE OF PLANNING & RESEARCH, NARRATIVE
EXPLANATION OF THE PROPOSED ADDITION TO THE CEQA GUIDELINES IMPLEMENTING
SB 226 at 10-11 (2012), http://opr.ca.gov/docs/Narrative_Explanation_%20of_
Guidelines_and_Performance%20Standards.pdf (listing types of inﬁll projects
covered in Table 3). If a project’s effects have already been analyzed in a prior
environmental impact statement or document addressed in such a statement, a
government agency need not analyze those effects under SB 226. Id. at 11-12.
Even state legislators are uncertain about the long-term effect of this statute.
See Noreen Evans and Das Williams, CEQA A Fundamental Safeguard For
California, States News Service (Jan. 29, 2013), http://sd02.senate.ca.gov/
news/2013-01-29-ceqa-fundamental-safeguard-california (quoting a statement
by two state legislators that “until we see how well SB 226 and SB 375 suc-
ceed at streamlining the approval process for new development, we hesitate to
add additional requirements”). Cf. William Fulton, SB 226: Complicated or
Simple?, 27 CAL. PLANNING & DEV. REP. , Nov. 1, 2012, at 13 (describing SB
226 as “too complex”). Thus, it seems premature to speculate about the impact
of SB 226 upon inﬁll development.
147 See Matthew D. Francois, An Update on Climate Change Regulations and
How the California Model Might be Replicated Elsewhere, ASPATORE, 2012
WL 1200516, *5 (explaining that an environmental impact statement “is not
required to reference, describe, or discuss a reduced-density alternative to
address the impacts of car and light-duty truck trips generated by the project.”).
148 See Toma, supra note 137, at 191 (Streamlining allowed only if project
“has incorporated all feasible mitigation measures, performance standards,
or criteria articulated in the prior applicable [environmental review]” such as
review “related to a General Plan.”). In addition, streamlining applies only
if a project is consistent with a “sustainable communities strategy” that will
propose a regional development pattern and will be created by a regional plan-
ning organization. See Annika E. Leerssen, Smart Growth and Green Building:
An Effective Partnership to Signiﬁcantly Reduce Greenhouse Gas Emissions,
26 J. ENVTL. L. & LITIG. 287, 309-10 (2011); Darakjian, supra note 133, at
387-89 (describing sustainable communities strategy). It is unclear whether this
requirement will signiﬁcantly affect transit priority projects.
149 Toma, supra note 137, at 175.
150 Toma, supra note 137, at 194 (expressing concern over “time delays and
151 See supra notes 109-10 and accompanying text.
152 See, e.g., Steve Harrison, November Ballot Spot Likely: Signatures Clear
The Way For Revote on Transit Tax, CHARLOTTE OBSERVER, June 1, 2007, at 1A
(noting that opponents of Charlotte light rail expansion argue that “plan to build
additional light-rail lines doesn’t make sense for a low-density city such as
Charlotte”); Jim Beamgard, Bus Line Wants to Carry Riders Farther, Faster—A
Conversation with Ray Miller, TAMPA TRIBUNE, Aug. 7, 2005, at 1 (quoting
opponents of rail in Tampa who say “we’ll never have the densities here needed
… [so] it really doesn’t take cars off the road”).
153 See, e.g., Editorial, SOUTH FLA. SUN-SENTINEL, May 28, 2006, at 4H (“[H]igh-
density developments will only worsen trafﬁc congestion if mass transit is not
available to replace the automobile for signiﬁcant numbers of people.”).
154 See Sterk, supra note 6, at 2090.
155 Sterk, supra note 6, at 2089 (noting that in 1988, out of over 3,000 environ-
mental impact statements and environmental assessment decisions, more than
80 percent ﬁled by local government units; by contrast, federal government ﬁled
only 430 environmental impact statements under NEPA).
156 See supra Part III.
157 In addition, Sterk also proposes two other reforms less speciﬁcally targeted
towards rezoning and other decisions related to private land use and thus less
relevant to this article. He proposes eliminating private causes of action by
barring private citizens from seeking judicial review of an EIS. See Sterk, supra
note 6, at 2086-87. This proposal would certainly make SEQRA less burden-
some for landowners by reducing SEQRA-related litigation, albeit perhaps at a
heavy environmental cost (insofar as it presumably reduces citizens’ ability to
delay environmentally harmful decisions). He also proposes expanding judges’
role by requiring de novo review of decisions with signiﬁcant environmental
impact, on the basis that this reform would eliminate squabbling over stand-
ing and other procedural issues. Sterk, supra note 6, at 2088. The question of
whether judges are qualiﬁed to wrestle with environmental tradeoffs is beyond
the scope of this article.
158 Sterk, supra note 6, at 2085-86.
159 Sterk, supra note 6, at 2085-86.
160 See supra notes 49-53 and accompanying text.
27 U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT, LOUISIANA: REASONABLY
FORESEEABLE DEVELOPMENT SCENARIO FOR FLUID MINERALS 3 (2008), available at
29 Oliver Houck, Land Loss in Coastal Louisiana: Causes, Consequences,
and Remedies, 58 TUL. L. REV. 3, 9-13 (1983).
30 P.C. Scruton, Sediments of the Eastern Mississippi Delta, SCRIPPS INST. OF
OCEANOGRAPHY, New Series No. 792, at 22, available at http://sp.sepmonline.
31 Houck, supra note 9, at 1069.
32 Houck, supra note 9, at 1069.
33 See CLARK KENT ERVIN, NEW ORLEANS’ PREPAREDNESS FOR TERRORISM (AND
CATASTROPHIC NATURAL DISASTERS) 7 (Aspen Inst., 2010); WILLIAM FREUDEN-
BURG, ET. AL, CATASTROPHE IN THE MAKING: THE ENGINEERING OF KATRINA AND THE
DISASTERS OF TOMORROW 31 (Island Press, 2011).
34 Veronica Devore, As Mississippi Rises, Historian Discusses ‘Great Flood’
of 1927, PBS NEWS HOUR (May 9, 2011), http://www.pbs.org/newshour/
35 RISK MGMT. SOLUTIONS, THE 1927 GREAT MISSISSIPPI FLOOD: 80-YEAR
RETROSPECTIVE 1-2 (2007), available at http://www.rms.com/publications/1927_
MississippiFlood.pdf; Stephen Ambrose, Great Flood, NAT’L GEOGRAPHIC NEWS
(May 1, 2001), http://news.nationalgeographic.com/news/2001/05/0501_river4.
36 Stephen Ambrose, Great Flood, NAT’L GEOGRAPHIC NEWS (May 1, 2001),
37 RISK MGMT. SOLUTIONS supra note 35, at 12.
38 RISK MGMT. SOLUTIONS, supra note 35, at 1-2.
39 See RISK MGMT. SOLUTIONS supra note 35, at 1-2.
40 RISK MGMT. SOLUTIONS supra note 35, at 8.
41 NAT’L PARK SERVICE, MISSISSIPPI RIVER FACTS (Oct. 10, 2012), http://www.
42 Flood Control Act of 1928, ch. 569, 45 Stat. 535 (1928).
43 Fact Sheet: What is a Levee?, FED. EMERGENCY MGMT. AGENCY (2012),
http://www.fema.gov/library/viewRecord.do?id=4827 (deﬁning levees as man-
made earthen embankments built on both sides of a river to prevent it from
overﬂowing during periods of high water).
44 See ARMY CORPS OF ENG’RS, MEDIUM DIVERSION AT MYRTLE GROVE WITH
DEDICATED DREDGING (2013).
45 Micaela M. Conor, Louisiana Coastal Area Medium Diversion at Myrtle
Grove with Dedicated Dredging, LA. COASTAL PROTECTION & RESTORATION
AUTH.: PLANNING DIV. 1 (2012), https://www.estuaries.org/pdf/2012posters/
46 See Harley S. Winer, Re-Engineering the Mississippi River as a Sediment
Delivery System, J. OF COASTAL RES., 229, 230 (2011), available at http://www.
48 U.S. Army Corps of Eng’rs, Freshwater Diversion 6, http://www.mvn.
49 See Jonathan M. Nelson, et al., Mechanics of Flow and Sediment Transport
in Delta Distributary Channels, U.S. GEOLOGICAL SURVEY (2011), http://water.
50 Houck, supra note 29, at 18-19.
51 Winer, supra note 46, at 30.
52 Houck, supra note 29, at 19.
53 FREUDENBERG, supra note 33, at 34.
54 FREUDENBERG, supra note 33, at 34.
55 Oliver Houck, Can We Save New Orleans?, 19 TUL. ENVTL. L.J. 1, 17
(2006); Oliver Houck, Retaking the Exam: How Environmental Law Failed
New Orleans and the Gulf Coast South and How it Might Yet Succeed, 81 TUL.
L. REV. 1059, 1064-65 (2007) [hereinafter Houck, Retaking the Exam] (citing
Donald Davis, Louisiana Canals and Their Inﬂuence on Wetland Development,
122 (1973) (unpublished Ph.D. dissertation, Louisiana State University – Baton
Rouge) (on ﬁle with Hill Memorial Library, Louisiana State University) (stating
that over 600 oil rigs were built in the 1970s surrounded by a massive network
56 Houck, supra note 29, at 25-26.
57 Houck, supra note 29, at 32-33.
58 Houck, supra note 29, at 33.
59 Houck, supra note 29, at 37-38.
60 Houck, supra note 29, at 37-38.
61 U.S. ARMY CORPS OF ENG’RS, MISSISSIPPI RIVER GULF OUTLET: DEEP-DRAFT
DE-AUTHORIZATION INTERIM REPORT TO CONGRESS ii (2006), http://www2.mvn.
63 Houck, supra note 29, at 40-41.
64 Houck, supra note 29, at 40-41.
65 Houck, Retaking the Exam, supra note 55, at 1064-65.
66 Joby Warrick & Michael Grunwald, Investigators Link Levee Failures to
Design Flaws, WASH. POST, Oct. 24, 2005, http://www.washingtonpost.com/
67 U.S. Army Corps of Eng’rs, supra note 61.
68 See Houck, supra note 29, at 25-26.
69 LA. COASTAL WETLANDS CONSERVATION & RESTORATION TASK FORCE & THE
WETLANDS CONSERVATION & RESTORATION AUTH., COAST 2050: TOWARD A SUS-
TAINABLE COASTAL LOUISIANA 1 (1998), available at http://www.coast2050.gov/
report.pdf [hereinafter COAST 2050].
70 Id. at 1.
71 See generally Houck, supra note 29; COAST 2050, supra note 69, at 9.
72 See Michael Metzger, Assessing the Effectiveness of Louisiana’s
Freshwater Diversion Projects Using Remote Sensing, UNIV. NEW ORLEANS
THESES & DISSERTATIONS No. 633, at 57 (2007), available at http://
74 See Army Corps of Eng’rs, supra note 61.
75 Jill A. Jenkins, et al., Photograhic Images Captured While Sampling for
Bald Eagles near the Davis Pond Freshwater Diversion Structure in Barataria
Bay, Louisiana (2009-10), U.S. GEOLOGICAL SURVEY 1 (2011), available at
76 U.S. Army Corps of Eng’rs, Bonnet Carré Spillway 7 (2012), http://www.
77 Id. (noting by reference on a chart title “Spillway Openings (as of 2011)
for years 1937, 1945, 1950, 1973, 1975, 1979, 1983, 1997, 2008, 2011).
78 Id. (suggesting these leakage events usually occur in periods of high water
in the spring and early summer.).
79 Id. at 9.
80 Id. at 7.
81 Cindy Brown, et. al., All the King’s Horses and All the King’s Men: What is
the Future of the Pontchartrain Basin Wetlands?, NATURE CONSERVANCY OF LA.
2 (2005), http://www.csc.noaa.gov/cz/CZ05_Proceedings/pdf%20ﬁles/Brown.
82 Roy Reeds, Engineers Open Spillway in Attempt to Save an Imperiled Mis-
sissippi Dam; Earlier Problems, N.Y. TIMES, April 18, 1973, at 93.
83 U.S. Army Corps of Eng’rs, Morganza Floodway, Team New Orleans,
http://www2.mvn.usace.army.mil/bcarre/morganza.asp (last updated Jan. 3,
84 Coastal Wetlands Planning, Protection and Restoration Act, The Atchafa-
laya Basin, http://lacoast.gov/new/about/basin_data/at/default.aspx#dynamics
(last visited November 3, 2013).
85 Metzger, supra note 72, at 13.
86 Metzger, supra note 72, at 15.
87 See TROPICAL ISLE, http://tropicalisle.com/ (last visited Nov. 3, 2013) (sug-
gesting the Hand Grenade as a most popular Bourbon Street adult beverage
served at Tropical Isle).
88 Metzger, supra note 72, at 62.
89 Metzger, supra note 72, at 62.
90 Metzger, supra note 72, at 14.
91 New Orleans District, U.S. ARMY CORPS OF ENG’RS, Modiﬁcation of
Davis Pond Diversion 2 (May 2012), http://www2.mvn.usace.army.mil/
Endnotes: LAPLACE RISING: THE STORY OF HOW A TINY COMMUNITY IN SOUTHERN LOUISIANA WILL SAVE THE LARGEST
DELTA IN NORTH AMERICA
continued from page 33
68 SUSTAINABLE DEVELOPMENT LAW & POLICY
94 LA. COASTAL AREA, Modiﬁcation of Davis Pond Diversion, http://www.lca.
gov/Projects/14/Default.aspx (last visited Nov. 15, 2013).
96 Mark Schleifstein, West Bay Diversion Wins Reprieve from Federal-State
Coastal Restoration Task Force, TIMES-PICAYUNE, Oct. 11, 2012, http://www.
99 See generally Gina Schilmoeller, Invoking the Fifth Amendment to Preserve
and Restore the Nation’s Wetlands in Coastal Louisiana, 19. TUL. ENVTL. L. J.
100 Houck, supra note 29, at 26-27.
101 SOLOMON NORTHRUP, TWELVE YEARS A SLAVE 139 (1997), available at http://
102 Houck, supra note 29, at 26-27.
103 CAL. STATE LANDS COMM’N, THE PUBLIC TRUST DOCTRINE 1 (2001), available
trine.pdf (citing Institutes of Justinian 2.1.1; Las Seite Partidas 3.28.6 (S. Scott
trans. & ed. 1932)).
106 Shively v. Bowlby, 152 U.S. 1, 58 (1894) (holding that historically states
have been granted the sovereign ability to control lands and waterways subject
to the tide’s inﬂuence so long as they still conform to the obligations of the
federal public-trust doctrine.); See generally, Phillips Petroleum Co., 484 U.S.
108 Ill. Cent. R. Co. v. Ill., 146 U.S. 387, 435-36 (1892).
109 Id.; Joseph D. Kearney & Thomas W. Merrill, The Origins of the American
Public Trust Doctrine: What Really Happened in Illinois Central, 71 U. CHI. L.
REV. 799, 800-01 (2004).
110 See Jamie Bartram, et al., Water Quality Monitoring – A Practical Guide to
the Design and Implementation of Freshwater Quality Studies and Monitoring
Programmes, UNITED NATIONS ENV’T PROGRAMME & WORLD HEALTH ORG. (1996),
available at http://www.who.int/water_sanitation_health/resourcesquality/
111 Ill. Cent. R. Co., 146 U.S. at 455-56.
112 Ill. Cent. R. Co., 146 U.S. at 435-36 (holding that the “ebb and ﬂow of
the tide” rule for waters protected under the public trust is under-inclusive in
the case of the United States, as there are many bodies of water necessitating
protection that are not subject this phenomenon, unlike the British Isles).
113 Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988).
114 Id. at 476.
115 Nat’l Audubon Soc’y v. Superior Court, 33 Cal.3d 419, 425 (1983).
116 Id. at 431.
117 Id. at 452.
118 Responsible Wildlife Mgmt. v. State, 103 P.3d 203 (Wash. Ct. App. 2004).
119 Id. at 208 (C.J. Brintnall, concurring).
120 Sam Brandao, Louisiana’s Mono Lake: The Public Trust Doctrine and Oil
Company Liability for Louisiana’s Vanishing Wetlands, 86 TUL. L. REV. 759,
121 Id. at 774; Save Ourselves, Inc. v. La. Env’t Control Comm’n, 452 So.2d
1152, 1157 (La. 1984).
122 Id. at 1156.
123 Id. at 1156-57; James G. Wilkins & Michael Wascom, The Public Trust
Doctrine in Louisiana, 52 LA. L. REV. 861, 863-64 (1992).
124 Avenal v. Louisiana, 886 So.2d 1085, 1091-92 (La. 2004).
125 Id. at 1091.
127 Id. at 1101-02.
128 Id. at 1102.
129 FED. R. CIV. PRO. 23(c)(1)(B) (For purposes of this article, Fed. R. Civ.
Pro. 23(g), appointment of counsel, will not be addressed); LA. CODE CIV. PROC.
ANN. art. 591 (2013).
131 LA CONST. art. IX, § 1.
132 FED. R. CIV. P. 23.
133 LA CONST. art. IX, §§ 1,3.
134 See discussion of Morganza, Bonnet Carré, Davis Pond and Caernarvon
diversion structures, supra.
135 33 C.F.R. § 222.5(f)(7).
136 LA CONST. art. I, §4.
137 United States v. Carmack, 329 U.S. 230, 241-42 (1946).
138 Arkansas Game & Fish Comm’n v. U.S., 33 S. Ct. 511 (2012).
139 Id. at 515.
140 See Ill. Cent. R. Co., 146 U.S. 387 (detailing the federal public-trust doc-
trine as it relates to the sovereign states); LA. CONST. art. IX §1.
141 Avenal, 886 So.2d at 1102 (citing LA. CIV. CODE ANN. art. 450 and Com-
ment (b), “navigable water bodies are ‘public things that belong to the State,’
and . . . such property is ‘dedicated to public use, and held as a public trust, for
public uses.”); LA. CONST. art. IX §3.
142 Avenal, supra note 127, at 1101.
143 28 U.S.C.§ 1346(b).
144 Robinson v. United States (In re Katrina Canal Breaches Litig.), 696 F.3d
436 (Ct. App. 5th 2012).
145 See Id.
147 Id. at 127.
149 33 U.S.C.A. § 702(c).
150 U.S. Army Corps of Eng’rs, Hurricane Isaac With and Without 2012 100-
Year HSDRRS Evaluation at i (November 2012), http://www2.mvn.usace.army.
151 DAVID ROGERS, JAYE CABLE & WILLIAM NUTTLE, LEVEES AND FLOOD PROTEC-
TION 22-23 (2012), http://www.mississippiriverdelta.org/ﬁles/2012/07/Ques-
152 See Dan Swenson & Mark Schleifstein, High Water Marks, Blame
Hurricane Isaac, Not Post-Katrina Levee System, for high sure, Corps says,
TIMES-PICAYUNE, Nov. 12, 2012, http://media.nola.com/environment/photo/map-
153 Richard Rainey, Corps of Engineers Critic Repeats Accusations of Shoddy
Wor k , TIMES-PICAYUNE, Aug. 22, 2012, http://www.nola.com/katrina/index.
155 Anthony G. Craine, Joseph Kony, ENCYCLOPEDIA BRITANNICA (2013), avail-
able at http://www.britannica.com/EBchecked/topic/1017670/Joseph-Kony.
156 HARRIET BEECHER STOWE, OLD TOWN FOLKS, ch. 39 (1869), available at
opponents are demonstrating their will in the courtroom, at the
polls, and in the marketplace.33 The growing GMO labeling
movement is a major source of local and national activism. Voters
in California and Washington voted to overcome signiﬁcant
resistance by corporations that fear GMO labeling, despite the
fact that those entities label their products in 64 other countries
around the world.34 Monsanto and others have spent $22 mil-
lion to defeat the Washington labeling initiative, the most ever
spent to defeat a ballot initiative in the state’s history.35 In 2013,
twenty-six additional states introduced similar GMO labeling
legislation.36 It remains to be seen if the biotech industry will
overcome these efforts with its deep pockets,37 inestimable legal
resources, and political muscle.38
The resurgence of the GMO debate following the intro-
duction of Golden Rice indicates that the argument is far from
settled. Questions remain as to the long-term safety and sustain-
ability of genetically modiﬁed products, generally, and the abil-
ity of Golden Rice, speciﬁcally, to effectively impact the global
hunger epidemic without signiﬁcant ecological consequences.
History has taught us that informed skepticism has the power
to inform society, protect consumers, and preserve the environ-
ment. Before Golden Rice is allowed unfettered access to the
global marketplace, escalating the proliferation of GM food
sources, the long-term safety and environmental sustainability
of genetic modiﬁcation should be further analyzed to prevent
Endnotes: Genetically Modiﬁed Food: A Golden Opportunity?
1 See CLIVE JAMES, GLOBAL REVIEW OF THE FIELD TESTING AND COMMERCIALIZA-
TION OF TRANSGENIC PLANTS: 1986 TO 1995, at v (1996) available at http://www.
2 See Jon Entine, No, You Shouldn’t Fear GMO Corn, SLATE (Aug. 7,
see also AMERICAN ASSOCIATION FOR THE ADVANCEMENT OF SCIENCE, STATEMENT
BY AAAS BOARD OF DIRECTORS ON LABELING OF GENETICALLY MODIFIED FOODS 1
(Oct. 2012), available at
3 See Sasha J. Wright, Why The GMO Debate Misses the Point, POPU-
LAR SCI. BIOHACKERS BLOG (Oct. 29, 2013 10:32 AM), http://www.popsci.
&loc=recent&lnk=2&con=IMG; see also Beth Hoffman, Just Because
Science Can Genetically Engineer Foods, Doesn’t Mean We Should
(Aug. 26, 2013), http://www.forbes.com/sites/bethhoffman/2013/08/26/
4 Hoffman, supra note 3.
5 See INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRO-BIOTECH APPLICA-
TIONS, ISSAA BRIEF 43-2011: EXECUTIVE SUMMARY, available at http://www.
6 See CARL K. WINTER & LISA K. GALLEGOS, UNIV. OF CAL. DEP’T OF AGRIC.
& NATURAL RES., SAFETY OF GENETICALLY MODIFIED FOOD 1 (2006), available at
7 Tom Philpott, Do GMO Crops Really Have Higher Yields?, MOTHER JONES
(Feb. 13, 2003), http://www.motherjones.com/tom-philpott/2013/02/do-gmo-
crops-have-lower-yields; Robin Vinter, US FARMERS MAY STOP PLANTING GMS
AFTER POOR GLOBAL YIELDS, FARMER’S WEEKLY (FEB. 6, 2013), http://www.fwi.
8 See 20 Questions on Genetically Modiﬁed Foods, WORLD HEALTH ORGANI-
9 See U.S. and Monsanto Dominate Global Market for GMO Seeds, ORGANIC
CONSUMERS ASS’N (Aug. 7, 2013), http://www.organicconsumers.org/articles/
10 MONSANTO CO., MONSANTO 2012 ANNUAL REPORT 40, available at
11 See Emily Waltz, GM Crops: Battleﬁeld (Sept. 2, 2009), http://www.nature.
13 THE CTR. FOR FOOD SAFETY & SAVE OUR SEEDS, SEED GIANTS VS. U.S.
FARMERS 6-7, available at http://www.centerforfoodsafety.org/ﬁles/seed-
14 Kristine Lofgren, Monsanto Has Sued Hundreds of Small Farmers,
Heads to the Supreme Court, INHABIT (Feb. 13 2013), http://inhabitat.com/
15 New Poll Finds Widespread Support for GMO Labeling As New Hampshire
House Committee Prepares to Vote on GMO Labeling Law, FOOD DEMOCRACY
NOW! (Nov. 5, 2013), http://www.fooddemocracynow.org/blog/2013/nov/5/
16 Our Mission, INT’L RICE RESEARCH INST., http://www.irri.org/about-us/our-
mission [hereinafter IRRI] (last visited Dec. 6, 2013).
17 Amy Harmon, Golden Rice: Lifesaver?, N.Y. TIMES, Aug. 23, 2013, http://
Entine, supra note 2; Hoffman, supra note 3.
18 Harmon, supra note 17.
19 See Vitamins and Supplements Lifestyle Guide, WEBMD, http://
20 Harmon, supra note 17.
21 Harmon, supra note 17.
22 See Harmon, supra note 17.
23 Caroleanne Wright, GM Golden Rice: Miracle or Menace? Top Activ-
ists Speak Out, NATURAL NEWS (Sept. 19, 2013), http://www.naturalnews.
com/042124_golden_rice_gmos_activists.html. Furthermore, biotech giant
Syngenta owns the patent for Golden Rice. While it claims the seeds will be
available royalty free, legally Syngenta can change its position at any time.
Golden Rice is a project of the International Rice Research Institute (“IRRI”), a
nonproﬁt organization lead Dr. Gerard Barry, a twenty-year Monsanto veteran.
Both Monsanto and GMO producer Syngenta contribute funding to IRRI. IRRI,
supra note 16.
24 Beth Hoffman, Golden Rice and GMOs: The Best Solutions To World Hun-
ger?, (Aug. 31, 2013), http://www.forbes.com/sites/bethhoffman/2013/08/31/
25 Id.; AFR. RICE CTR., AFRICA RICE TRENDS 5 (2007), available at http://www.
26 Id.; CTR. FOR FOOD SAFETY, http://www.centerforfoodsafety.org/ge-map/
(last visited Dec. 6, 2013).
27 See Wright, supra note 23.
28 Jason Koebler, Herbicide Resistant “Super Weeds” Increas-
ing Plaguing Farmers, U.S. NEWS & WORLD REPORT (Oct.
19, 2012), http://www.usnews.com/news/articles/2012/10/19/
GENETICALLY MODIFIED FOOD: A GOLDEN OPPORTUNITY?
continued from page 34
70 SUSTAINABLE DEVELOPMENT LAW & POLICY
30 Genetically Modiﬁed or Sustainable Agriculture?, GREENPEACE, http://www.
31 See Stephanie Strom, Misgivings about How Weed Killer Affects the Soil,
N. Y. TIMES, Sept. 19, 2013, http://www.nytimes.com/2013/09/20/business/
32 See Harmon, supra note 17.
33 Strom, supra note 31.
34 New Poll Finds Widespread Support for GMO Labeling as New Hampshire
House Committee Prepares to Vote on GMO Labeling Law, FOOD DEMOCRACY
NOW! (Nov. 5, 2013), http://www.fooddemocracynow.org/blog/2013/nov/5/
37 Tarini Parti & Jenny Hopkinson, Monsanto, DuPont Pour Millions into
GMO Fight, POLITICO (Sept. 11, 2013), http://www.politico.com/story/2013/09/
38 Lindsay Boerma, Critics Slam Obama for “Protecting” Mon-
santo, CBS NEWS (Mar. 28, 2013), http://www.cbsnews.com/news/
(last visited Feb. 21, 2013). Haze also contributes to “greenhouse gas and haze
emissions from deforestation, land-use conﬂicts, loss of biodiversity, indigenous
rights violations, pollution of waterways and the disruption of eco-systems.”
Jenny Marusiak, Big Job ahead for Sustainable Palm Oil Group, ECO-BUSINESS.
COM, Oct. 31, 2012, http://www.eco-business.com/features/big-job-ahead-
for-sustainable-palm-oil-group/. The U.S. Environmental Protection Agency
(“EPA”) deﬁnes regional haze as “visibility impairment that is produced by a
multitude of sources and activities which emit ﬁne particles and their precursors
and which are located across a broad geographic area.” Regional Haze Regula-
tions, 64 Fed. Reg. 35714, 35715 (July 1, 1999) (to be codiﬁed at 40 C.F.R. pt.
51). Haze is further distinguished by the size of the particulate matter—PM2.5
is haze with particulates up to 2.5 microns wide, and PM10 is haze with par-
ticulates up to 10 microns wide. See Ahmad et al., supra. ASEAN is concerned
with monitoring PM10. Ahmad et al., supra.
16 See Ahmad et al., supra note 15; Alan Rogers, Haze – Brown Clouds,
BORNEO POST (Nov. 4, 2012), http://www.theborneopost.com/2012/11/04/haze-
brown-clouds/ (explaining that low humidity means dry air which is stable and
characterized by no horizontal or vertical air movement).
17 See Ahmad et al., supra note 15; Rogers, supra note 16. On a clear day,
ground visibility can extend up to seven miles. Glossary: Visibility, WEATHER
gecontent=visibility (last visited Feb. 21, 2013).
18 See Rogers, supra note 16 (noting that the variability of air pollution
is affected by local meteorological conditions); Laura S. Henry et al., From
Smelter Fumes to Silk Road Winds: Exploring Legal Responses to Transbound-
ary Air Pollution over South Korea, 11 WASH. U. GLOBAL STUD. L. REV. 565,
584 n.96 (2012) (citing WORLD HEALTH ORG., THE HEALTH RISKS OF PARTICULATE
MATTER FROM LONG-RANGE TRANSBOUNDARY AIR POLLUTION 1, 11 (2006), avail-
able at http://www.euro.who.int/__data/assets/pdf_ﬁle/0006/78657/E88189.
19 See Regional Haze Regulations, supra note 15 (noting that visual impair-
ment occurs because haze covers a broad geographical area); Merrill, supra
note 10, at 970 (discussing the drifting nature of transboundary pollution).
20 See Merrill, supra note 10, at 968 (deﬁning transboundary air pollution).
21 See Tom Ginsburg & Gregory Shaffer, The Empirical Turn in International
Legal Scholarship, 106 AM. J. INT’L L. 1, 38 (2012).
22 Id. (noting the varied effects of environmental regulation on states involved
in the regulatory solution).
23 Id. For an example dealing with ozone, see Jonathan Remy Nash & Rich-
ard L. Revesz, Markets and Geography: Designing Marketable Permit Schemes
to Control Local and Regional Pollutants, 28 ECOLOGY L.Q. 569, 599–601
24 See Ginsburg & Shaffer, supra note 21, at 38 (explaining the growing ﬁeld
of international environmental law and its extremely technical complexities).
25 Ginsburg & Shaffer, supra note 21, at 38.
26 See Merrill, supra note 10, at 970 (noting that transboundary pollution can
be partial, unidirectional, or reciprocal, but usually has an impact on both the
source and affected states).
27 Merrill, supra note 10, at 970 (noting a source state will consider the cost
of pollution incurred by its residents before adopting regulation).
28 See Merrill, supra note 10, at 971 (referencing reciprocal pollution as when
the pollution from A affects B and the pollution from B affects A).
29 See Merrill, supra note 10, at 971. These characteristics, which Merrill
refers to as “partial” and “reciprocal” transboundary pollution, are instrumental
in his argument that transboundary pollution disputes should be governed
by his “golden rules,” which would allow affected states to apply the source
state’s liability rules against it. Id. Though this model may be attractive if it is
restricted to norm creation in treaties, its emphasis on assigning liability may be
a fatal defect if source states have not ratiﬁed the treaty. Id.
30 The haze is an also an issue in other areas of ASEAN member states.
See, e.g., Kultida Samabuddhi, Haze Returns to the North, BANGKOK POST,
Feb. 27, 2012, http://www.bangkokpost.com/learning/easier-stuff/281819/
haze-returns-to-the-north (discussing haze in Thailand’s northern provinces);
Wanwisa Ngamsangchaikit, Haze the Next Threat, TTR WEEKLY, No v. 2, 2012,
http://www.ttrweekly.com/site/2012/11/haze-the-next-threat/ (discussing haze’s
impact on tourism in North Thailand). It is likely that, as the region continues
to industrialize and haze pollution increases overall, more transboundary
haze issues will arise. See, e.g., Alan Khee-Jin Tan, The ASEAN Agreement on
Transboundary Haze Pollution: Prospects for Compliance and Effectiveness
Suharto Indonesia, 13 N.Y.U. ENVTL. L.J. 647, 653–55 (2005); Gooch, supra
note 4; Ahmad et al., supra note 15; Koh Kheng-Lian, A Breakthrough in
Solving the Indonesian Haze?, in INTERNATIONAL UNION FOR CONSERVATION OF
NATURE ENVIRONMENTAL LAW AND POLICY PAPER NO. 72 at 225 (Sharelle Hart
ed., 2008) (blaming President Suharto’s Mega Rice Project which attempted to
turn one million hectares of peatland into rice paddies for potential increase in
transboundary haze pollution).
31 See Gooch, supra note 4 (“The haze, attributed mostly to ﬁres burning
on the Indonesian island of Sumatra, has become a recurring summer blight,
engulﬁng parts of Malaysia, Thailand, Brunei and Singapore, and leaving a
litany of health and economic costs in its wake.”).
32 See infra Part IV.A.
33 See Khee-Jin Tan, supra note 30, at 653 (noting that Indonesia’s common
practice is to log an area and convert the land into a cash crop plantation).
34 See Khee-Jin Tan, supra note 30 at 653. (explaining that logging involves
removing the valuable tropical timber to make way for plantations).
35 See Indonesia, UN-REDD PROGRAMME (2009), http://www.un-redd.org/
CountryActions/Indonesia/tabid/987/language/en-US/Default.aspx (last visited
Nov. 12, 2013) (noting Indonesia is the third largest area of tropical rainforest in
the world). For more on the problem tropical deforestation poses from a climate
change perspective, see William Boyd, Ways of Seeing in Environmental Law,
37 ECOLOGY L.Q. 843 (2010).
36 Peatlands are important for maintaining biological diversity and stor-
ing carbon. See Values of Peatlands in Indonesia, SUSTAINABLE MGMT.
OF PEATLAND FORESTS IN SE. ASIA, http://www.aseanpeat.net/index.
cfm?&menuid=128&parentid=68 (last visited Feb. 21, 2013); Fact Sheet
Norway-Indonesia Partnership REDD+, http://www.norway.or.id/Page-
Files/404362/FactSheetIndonesiaPeatMay252010.pdf (last visited Feb. 21,
37 See Values of Peatlands in Indonesia, supra note 36 (noting that Indonesia
emits about ﬁve times as much carbon dioxide yearly from degraded peatlands
as it does burning fossil fuels).
38 See Andrew C. Revkin, The Fire Down Below, N.Y. TIMES DOT EARTH
BLOG, Aug. 20, 2010, 12:01 PM, http://dotearth.blogs.nytimes.com/2010/08/20/
the-ﬁre-down-below/ (referring to this underground burn as smoldering ﬁres,
which have been reported in boreal, temperate, and tropical forests). For
a domestic example, see Willie Drye, Vast Peat Fire may Burn for Months
in North Carolina, NAT’L GEOGRAPHIC NEWS, June 13, 2008, http://news.
Endnotes: INDONESIA'S ROLE IN REALIZING THE GOALS OF ASEAN'S AGREEMENT ON TRANSBOUNDARY
continued from page 45
estimates Indonesia’s peatlands have 35 million tons of carbon stored in them.
Indonesia, GREENPEACE INT’L, http://www.greenpeace.org/international/en/
(last visited Nov. 2, 2013).
39 See Khee-Jin Tan, supra note 30, at 653–55.
40 See Khee-Jin Tan, supra note 30, at 653–55 (noting these slash-and-burn
ﬁres are deliberate).
41 See Khee-Jin Tan, supra note 30, at 653–55.
42 See Khee-Jin Tan, supra note 30, at 653–55.
43 See Khee-Jin Tan, supra note 30, at 653–55.
44 See Khee-Jin Tan, supra note 30, at 653–55.
45 See Khee-Jin Tan, supra note 30, at 653–55.
46 See Khee-Jin Tan, supra note 30, at 653–55 (noting the root cause of the
haze pollution problem in Indonesia is clearly man-made).
47 See Khee-Jin Tan, supra note 30, at 671-72.
48 See PARUEDEE NGUITRAGOOL, ENVIRONMENTAL COOPERATION IN SOUTHEAST
ASIA: ASEAN’S REGIME FOR TRANS-BOUNDARY HAZE POLLUTION 77 (2010).
49 For a discussion of the problems posed by geography, known as the
“core-periphery problem,” see for example Edith Brown Weiss, Understanding
Compliance with International Environmental Agreements: the Baker’s Dozen
Myths, 32 U. RICH. L. REV. 1555, 1576 (1999) (“National governments enter
into international agreements with other countries, but the authority of national
governments may not reach effectively into local areas. While local communi-
ties may be essential to implementing the agreement, they may be unaware of
the international commitments or have no interest in complying with them. This
is sometimes described as a core-periphery problem, in which the core govern-
ment has difﬁculty ensuring compliance by actors who are geographically on
50 See CIA WORLD FACTBOOK, East &Southeast Asia: Indonesia, https://
51 See id.
52 See Gooch, supra note 4 (noting ﬁres are a recurring summer blight for the
islands of Indonesia).
53 See Gooch, supra note 4 (revealing both Malaysia and Singapore have
provided Indonesia with equipment to help ﬁght ﬁres and detect hot spots in an
attempt to decrease haze).
54 See JAKARTA GLOBE, supra note 1 (explaining the Air Pollutant Index, which
measures air quality as unhealthy when registering a reading ranging from 101-
200, has reached 127 in the capital, Kuala Lumpur, and as high as 144 in other
55 States that have ratiﬁed the Transboundary Haze Pollution Ag reement have
access to this information, which can help “reduce the potential haze particles
drifting to an adjoining country,” but Indonesia has not ratiﬁed the Agreement
and thus may not have access to this resource. See Rogers, supra note 16.
56 See United Nations Conference on the Human Environment, Stockholm,
Sweden, June 5-16, 1972, Declaration on the Human Environment, art. II,
princ. 21, U.N. Doc. A/CONF.48 (1972) [hereinafter Stockholm Declaration].
57 The principle of good neighborliness originates in the U.N. Charter and
requires states to honor treaty obligations and to improve international relations
in general. U.N. Charter art. 74. See also Phillipe Sands, International Environ-
mental Law: An Introductory Overview, in GREENING INTERNATIONAL LAW i, xii
(Phillipe Sands, ed. 1994). In the environmental context, this principle was at
issue in Hungary and Slovakia’s dispute over the construction of the Gabcikovo
Dam. See Case Concerning the Gabcikovo-Nagymaros Project (Hung. v.
Slovk.), 1997 I.C.J. 3, 63 (Sept. 25).
58 Sands sees four objectives of sustainable development as that term is used
in the Brundtland Report: (1) preserving natural resources so they will beneﬁt
present and future generations; (2) setting standards or quotas for exploiting
natural resources; (3) requiring states take into account the needs of other states
when exploiting a resource; and (4) requiring that economic plans integrate
environmental concerns. Sands, supra note 57, at xxxiii. See also United
Nations, Report of the World Commission on Environment and Development,
U.N. Doc. A/42/427 (Dec. 11, 1987); Paciﬁc Fur Seal Arbitration (U.S. v. Gr.
59 This principle holds that those responsible for pollution must bear the costs
of the harm it causes. Sands, supra note 57, at xxxiv. Sands doubts this principle
has attained the status of customary international law in part because of the
absence of relevant case law. Id.
60 See Robert V. Percival, Liability for Environmental Harm and Emerging
Global Environmental Law, 25 MD. J. INT’L L. 37, 41 (2010); Stockholm
Declaration, supra note 56, at art. II. The Stockholm Declaration recognizes the
right to a healthy environment. Stockholm Declaration, supra note 56, at art. I.
61 This principle holds that all states have a common responsibility to protect
natural resources, but the degree of action states take to do so depends on
factors such as how responsible it is for creating a particular problem and the
extent to which it can eliminate, “prevent, reduce or control the problem.” See
Sands, supra note 57, at xxxiv.
62 French obstruction of the International Court of Justice’s jurisdiction in a
case about the environmental effects of France’s nuclear tests in the Paciﬁc is
instructive. See Request for an Examination of the Situation in Accordance with
Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear
Tests (New Zealand v. France) Case (N.Z. v. Fr.), 1995 I.C.J. 288 (Sept. 22).
63 See Brown Weiss, supra note 49, at 1559 (noting all actors to the agree-
ment interact in different ways as the agreement evolves over time).
64 See Brown Weiss, supra note 49, at 1559.
65 See Brown Weiss, supra note 49, at 1559 (explaining while the states “are
the primary actors, . . . other actors are also essential, including intergovern-
mental organizations, secretariats to the agreements, nongovernmental organi-
zations, private industrial and commercial organizations, and individuals”).
66 See Merrill, supra note 10, at 967-972.
67 See Jonathan Wiener, On the Political Economy of Global Environmental
Regulation, 87 Geo. L.J. 749, 762 (1999) (noting consenting states bind them-
selves to regulation because they view themselves as winning parties).
68 See id. (explaining opponents block and delay agreement and negotiations,
raising the cost for would-be winners).
69 See Antonia Chayes, International Agreements: Why they Count as Law,
103 AM. SOC’Y INT’L L. PROC. 158, 160 (2009); see also Brown Weiss, supra
note 49, at 1584–85.
70 For more on the problems of state consent to MEAs, see Wiener, supra
note 67; and Merrill, supra note 10, at 980–81.
71 See Wiener, supra note 67, at 774; Merrill, supra note 10, at 980–81.
72 See Wiener, supra note 67, at 774; Merrill, supra note 10, at 980–81.
73 See Wiener, supra note 67, at 774; Merrill, supra note 1100, at 980–81.
74 See Brown Weiss, supra note 49, at 1584–85 (“The coercive measures
found in international environmental agreements are of three kinds: those that
provide for trade sanctions, those that withdraw certain privileges of member-
ship, and those that provide for publication of infractions in ofﬁcial publications
accessible to the public.”).
75 See Abram Chayes, Environmental Concerns: Dispute Resolution has a
Role to Play, 4 NO. 3 DISP. RESOL. MAG. 25, 26–27 (1998) (“Some commenta-
tors have regarded these ‘incentives’ and ‘sanctions’ as the key to the commit-
tee’s success.”). See also Mer rill, supra note 10, at 980–81. An arrangement that
simply reversed the asymmetry, with the source state bearing most of the cost,
and the affected state enjoying most of the beneﬁts, is also undesirable from a
Coasean perspective. See generally Ronald Coase, The Problem of Social Cost,
3 J.L. & ECON. 1 (1960).
76 See Wiener, supra note 67, at 749.
77 See Wiener, supra note 67, at 749 (noting these measures are a deviation
from the consent approach to the agreement).
78 See Wiener, supra note 67, at 749.
79 On the question of why states do not invoke coercive measures, see infra
Part III.A. The difﬁcult factual problems are another limit on the use of litiga-
tion and arbitration to stop transboundary haze pollution. See generally Wiener,
supra note 67; Henry et al., supra note 18.
80 See Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (1938) [here-
inafter Trail Smelter I] (requiring the Canadian company operating the Trail
smelter to cease causing further damage to the State of Washington), further
proceedings 3 R.I.A.A. 1938 (1941) [hereinafter Trail Smelter II] (holding Can-
ada responsible for the Trail smelter pollution and requiring Canada to conform
to its treaty obligations). See generally John E. Read, The Trail Smelter Dispute,
1 Can. Y.B. Int’l L. 213 (1963) (describing the Trail Smelter arbitration).
Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (Apr. 16, 1938), fur-
ther proceedings 3 R.I.A.A. 1938 (Mar. 11, 1941). The Canadian Trail Smelter
was polluting U.S. waters as recently as 1994. See Austen L. Parish, Trail
Smelter Déjà vu: Extraterritoriality, International Environmental Law, and the
Search for Solutions to Canadian-U.S. Transboundary Water Pollution Disputes,
85 B.U. L. REV. 363, 371–73 (2005).
81 Due to the paucity of case law, it is debatable whether the “polluter pays”
principle has reached the status of customary international law. See Sands supra
note 57, at xxxiii.
72 SUSTAINABLE DEVELOPMENT LAW & POLICY
82 See Percival, supra note 60, at 39; Trail Smelter Arbitration, supra note 80.
This responsibility, known as the sic utere principle, is embodied in article 2 of
the Stockholm Declaration. See Stockholm Declaration, supra note 56, at art. II.
83 See Merrill, supra note 10, at 958 (noting that despite the radioactivity
levels that harmed individuals and condemned agriculture, there was never a
suit for compensation brought against the Soviet Union).
84 See ABRAM CHAYES & ANTONIA CHAYES, THE NEW SOVEREIGNTY 187 (Har-
vard University Press 1995); see also Brown Weiss, supra note 49, at 1573. For
an example of a reporting regime providing scientiﬁc certainty, see infra Part
85 See CHAYES & CHAYES, supra note 84, at 2.
86 See CHAYES & CHAYES, supra note 84, at 2.
87 See CHAYES & CHAYES, supra note 84, at 2. (noting the slow process of
behavioral change is a disincentive for sanctions).
88 See CHAYES & CHAYES, supra note 84, at 2, 63-66 (claiming that while this
is not the most obvious cost, it is the most important cost of sanctions).
89 See CHAYES & CHAYES, supra note 84, at 2, 63-66.
90 See CHAYES & CHAYES, supra note 84, at 2 (explaining that high political
costs associated with sanctions often lead to intermittent efforts to impose sanc-
tions where the sanctioning state is responding to political exigencies, and not
the need for enforcement).
91 See CHAYES & CHAYES, supra note 84, at 3.
92 When an MEA has “low compliance” it means that parties have not suf-
ﬁciently changed their behavior to meet the obligations imposed by the MEA.
When there is low compliance, the MEA is not effective. When an MEA has
“weak targets” it means that although parties may be in compliance with the
terms of the agreement, compliance with these terms does not lead to the
MEA’s goal of mitigating the transboundary pollution. See Tseming Yang &
Robert Percival, The Emergence of Global Environmental Law, 36 ECOLOGY
L.Q. 615, 655-57 (2009). For a discussion of how domestic politics can lead to
MEAs with weak targets, see Robert Putnam, Diplomacy and Domestic Poli-
tics: The Logic of Two Level Games, 42 INT’L ORG. 427 (1988). See also Merrill,
supra note 10, at 961 (1997); Brown Weiss, supra note 49, at 1582–83.
93 See George Downs, et al., Is the Good News About Compliance Good News
about Cooperation?, 50 INT’L ORG. 379, 379–406 (1996).
94 See Brown Weiss, supra note 49, at 1582–83.
95 Antonia Chayes, supra, note 69, at 160.
96 See Yang & Percival, supra note 92, at 655–57.
97 See Brown Weiss, supra note 49, at 1558-59.
98 See CHAYES & CHAYES, supra note 84, at 22-28.
99 See CHAYES & CHAYES, supra note 84, at 22-28.
100 See CHAYES & CHAYES, supra note 84, at 1.
101 See Antonia Chayes, supra note 69, at 160.
102 See Abram Chayes, supra note 75, at 25-26.
103 See Abram Chayes, supra note 75, at 27 (“It is not clear, however, which
side had the greater bargaining leverage on this score. Russian compliance
is crucial to the overall success of the ozone regime, while the [Global Envi-
ronmental Facility] funding was not in any way necessary for Russia’s overall
104 Some states have laws that regulate activity that takes place beyond their
borders. See e.g. Alien Tort Claims Act, 28 U.S.C. § 1350; Foreign Corrupt
Practices Act, 15 U.S.C. §§ 78dd-1-3.
105 See Brown Weiss, supra note 49, at 1586 (“The threat of coercive measures
can induce conforming behavior even though the coercion is never invoked . . .
[t]hey are particularly useful for countries whose intention to comply is weak or
who face strong domestic pressures to lapse into noncompliance.”); CHAYES &
CHAYES, supra note 84, at 115.
106 See Yang & Percival, supra note 92, at 654–57.
107 See CHAYES & CHAYES, supra note 84, at 118.
108 See CHAYES & CHAYES, supra note 84, at 22–25.
109 See Abram Chayes, supra note 75, at 27.
110 See CHAYES & CHAYES, supra note 84, at 3.
111 Periodical reevaluations allow parties to determine the effect compliance
and noncompliance (meeting the MEA’s obligations) have on overall effective-
ness (the extent to which the MEA solves the problem it was intended to solve).
For more on the interaction between compliance and effectiveness, see Kal
Raustiala, Compliance & Effectiveness in International Regulatory Coopera-
tion, 32 CASE W. RES. J. INT’L L. 387, 391–99 (2000).
112 See CHAYES & CHAYES, supra note 84, at 22–25.
113 See CHAYES & CHAYES, supra note 84, at 135.
114 See CHAYES & CHAYES , supra note 84, at 135, 142–51.
115 See CHAYES & CHAYES, supra note 84, at 151-53.
116 Transparency serves other functions as well: it reassures parties that others
are making good faith efforts to comply with the MEA and may serve as a
deterrent for parties that are considering noncompliance. See CHAYES & CHAYES
supra note 84, at 135, 142-53.
117 See Merrill, supra note 10, at 966–67.
118 See Merrill, supra note 10, at 966–67.
119 See CHAYES & CHAYES, supra note 84, at 135.
120 See CHAYES & CHAYES, supra note 84, at 136-37.
121 See CHAYES & CHAYES, supra note 84, at 137.
122 See CHAYES & CHAYES, supra note 84, at 138-39. LRTAP is the ﬁrst MEA
to regulate transboundary air pollution. See Convention on Long-Range Trans-
boundary Air Pollution, AIR POLLUTANT INFO. SYS., http://www.apis.ac.uk/over-
view/regulations/overview_CLRTAP.htm (last visited Nov. 12, 2013). LRTAP
is also an exception to Merrill’s theory that transboundary pollution is easiest to
regulate when there are a small number of parties involved. See Merrill, supra
note 10, at 934-35.
123 See Status of the Convention on Long-range Transboundary Air Pollution
and its related Protocols, UNITED NATIONS ECON. COMM’N FOR EUR. 1 (June
22, 2012), http://www.unece.org/ﬁleadmin/DAM/env/documents/2012/air/
124 Twenty-six states have ratiﬁed LRTAP and seventeen have acceded to
LRTAP, which legally binds them to its terms. See id.
125 See Convention on Long-range Transboundary Air Pollution at pmbl., Nov.
13, 1979, 1302 U.N.T.S. 217.
126 See id. at art. 1(a) (deﬁning air pollution and air pollutants as “substances
or energy [in] the air resulting in deleterious effects of such a nature as to
endanger human health, harm living resources and ecosystems and material
property and impair or interfere with amenities and other legitimate uses of the
environment”); id. at art. 8(a) (“Data emissions at periods of time to be agreed
upon, of agreed air pollutants, starting with sulphur dioxide.”).
127 See Convention on Long-Range Transboundary Air Pollution, supra note
122. Between 1990 and 2006, “SO2 levels have dropped by 70% within the
European Union, and by 35% in the United States;” “[nitrous oxide] levels have
dropped by 35% within the European Union, and by 23% in the United States;”
“[a]mmonia… levels have dropped by 20% in the European Union;” “non-
methane volatile organic compounds have decreased by 41% in the European
Union;” and “[haze] has declined by 28% in the European Union.” UNECE’s
Convention on Long-range Transboundary Air Pollution celebrates 30th Anni-
versary, UNITED NATIONS ECON. COMM’N FOR EUR., http://www.unece.org/env/
lrtap/30anniversary.html (last visited Nov. 12, 2013).
128 See Lothar Gundling, Multilateral Co-operation of States under the ECE
Convention on Long-Range Transboundary Air Pollution, in TRANSBOUNDARY
AIR POLLUTION: INTERNATIONAL LEGAL ASPECTS OF THE CO-OPERATION OF STATES 19,
19-20 (Cees Flinterman et al. eds., 1986).
129 See CHAYES & CHAYES, supra note 84, at 138.
130 See CHAYES & CHAYES, supra note 84, at 138–39.
131 See CHAYES & CHAYES, supra note 84, at 138–39.
132 See CHAYES & CHAYES, supra note 84, at 139.
133 See CHAYES & CHAYES, supra note 84, at 139.
134 See CHAYES & CHAYES, supra note 84, at 247.
135 See Merrill, supra note 10, at 963-64.
136 See CHAYES & CHAYES, supra note 84, at 247.
137 See CHAYES & CHAYES, supra note 84, at 247.
138 See CHAYES & CHAYES, supra note 84, at 154-55.
139 See CHAYES & CHAYES, supra note 84, at 155. One drawback to this
approach is that parties may fail to report, or may report inaccurate information.
See CHAYES & CHAYES, supra note 84, at 155.
140 See CHAYES & CHAYES, supra note 84, at 159.
141 See CHAYES & CHAYES, supra note 84, at 184.
142 See CHAYES & CHAYES, supra note 84, at 184.
143 See CHAYES & CHAYES, supra note 84, at 184.
144 See CHAYES & CHAYES, supra note 84, at 185.
145 See CHAYES & CHAYES, supra note 84, at 185. An example of a more inva-
sive veriﬁcation procedure can be found in the Antarctic Treaty, which allows
for onsite inspections. Antarctic Treaty art. VII, Dec. 1, 1959, 12 U.S.T. 794,
402 U.N.T.S. 71. For an analysis of the Antarctic Treaty, see David J. Bederman
& Soniya P. Keskar, Antarctic Environmental Liability: The Stockholm Annex
and Beyond, 19 EMORY INT’L L. REV. 1383 (2005).
146 See CHAYES & CHAYES, supra note 84, at 229-31.
147 See CHAYES & CHAYES, supra note 84, at 154.
148 See CHAYES & CHAYES, supra note 84, at 166.
149 See CHAYES & CHAYES, supra note 84, at 167.
150 See CHAYES & CHAYES, supra note 84, at 167.
151 See CHAYES & CHAYES, supra note 84, at 168. Providing advance notice is
customary international law under the Rio Declaration. United Nations Confer-
ence on Environment and Development, Rio de Janeiro, Braz., June 3-14, 1992,
Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26
(Vol. I), 31 I.L.M. 874 (1992). See also Lake Lanoux Arbitration (Fr. v. Sp.),
12 R.I.A.A. 281 (Arbitral Tribunal 1957); Abram Chayes, supra note 75, at 27
(discussing the Lake Lanoux Arbitration as an example of party cooperation).
152 See CHAYES & CHAYES, supra note 84, at 155.
153 See CHAYES & CHAYES, supra note 84, at 155.
154 See CHAYES & CHAYES, supra note 84, at 195-96.
155 This concept is sometimes referred to as global environmental law. See
Yang & Percival, supra note 92, at 623 (“Global environmental law’s content
is the common set of legal principles developed by national, international, and
transnational environmental regulatory systems. It includes substantive values,
principles, and procedural approaches. Among the most readily identiﬁable
principles and tools are the precautionary principle, ‘polluter pays,’ environ-
mental impact assessments, and pollution permitting. One might also readily
assert that protection of public health and the integrity of ecological systems are
among the most important substantive goals in environmental law.”).
156 See Merrill, supra note 10, at 985.
157 See, e.g., Yang & Percival, supra note 92, at 633-34.
158 See CHAYES & CHAYES, supra note 84, at 250–270.
159 See Robert V. Percival, The Globalization of Environmental Law, 26 PACE
ENVTL. L. REV. 451, 459 (2009).
160 See Percival, supra note 60, at 49 (“Greenpeace International, for example,
was among the ﬁrst global NGOs to expose toxic waste dumping in developing
countries.”); Ginsburg & Shaffer, supra note 21, at 38–39 (“Nongovernmental
actors frequently play major roles in the politics of international environmental
lawmaking, including by heightening global concern about the environment and
by framing issues to be addressed.”).
161 See CHAYES & CHAYES, supra note 84, at 251.
162 See CHAYES & CHAYES, supra note 84, at 251.
163 See Khee-Jin Tan, supra note 30, at 648.
164 See Khee-Jin Tan, supra note 30, at 648.
165 Agreement, supra note 12, at art. 2.
166 Status of Ratiﬁcation, HAZE ACTION ONLINE (Mar. 8, 2010), http://haze.
167 See Khee-Jin Tan, supra note 30, at 648.
168 See Khee-Jin Tan, supra note 30, at 648–49.
169 See Khee-Jin Tan, supra note 30, at 648–49.
170 See Khee-Jin Tan, supra note 30, at 656–57.
171 See Khee-Jin Tan, supra note 30, at 656–57.
172 See Nicholas A. Robinson, Forest Fires as a Common International
Concern: Precedents for the Progressive Development of International Environ-
mental Law, 18 PACE ENVTL. L. REV. 459, 475 (2001).
173 See Pathoni, supra note 14; see also Moments Before Indonesian Crash,
Jet Pilot Blinded by Haze, CNN, Sept. 26, 1997, http://www.cnn.com/
174 See Khee-Jin Tan, supra note 30, at 656–57. A hectare is 10,000 square
meters. Hectare, MERRIAM-WEBSTER, http://www.merriam-webster.com/diction-
ary/hectare (last visited Nov 12, 2013).
175 See Khee-Jin Tan, supra note 30, at 656–57.
176 See Khee-Jin Tan, supra note 30, at 656–57.
177 See Khee-Jin Tan, supra note 30, at 656–57.
178 See Khee-Jin Tan, supra note 30, at 656–57.
179 See Khee-Jin Tan, supra note 30, at 656–57.
180 See Khee-Jin Tan, supra note 30, at 656–57.
181 See Tom Ginsburg, The State of Sovereignty in Southeast Asia, 99 Am.
Soc’y Int’l L. Proc. 419, 420 (2005). ASEAN’s 1976 Treaty of Amity and Coop-
eration laid out these principles: “1) respect for state sovereignty; 2) freedom
from external interference; 3) non-interference in internal affairs; 4) peaceful
dispute settlement; 5) renunciation of the use of force; and 6) cooperation.” Id.
Relying on these principles, ASEAN has historically dealt with issues facing
the region by “non-legal, consensual decision-making.” See Khee-Jin Tan, supra
note 30 at 648–49. See also Ginsburg, supra, at 420-21 (“The ASEAN Way is
also a style of informality. The organization proceeds responsively, and institu-
tionalization has been slow . . . . The quiet, private, and nonconfrontational style
of the meetings and their minimal institutionalization have allowed the forums
182 See infra Part IV.A.
183 Khee-Jin Tan, supra note 30, at 648–49.
184 The Association of Southeast Asian Nations Declaration (Bangkok Decla-
ration) Aug. 8, 1967, 6 I.L.M. 1233 [hereinafter Bangkok Declaration].
185 See Ginsburg, supra note 181, at 420-21.
186 See Bangkok Declaration, supra note 184.
187 In contrast to ASEAN, which has reinforced state sovereignty, the EU has
eroded it. For a discussion of these differences see BAHAR RUMELILI, CONSTRUCT-
ING REGIONAL COMMUNITY AND ORDER IN EUROPE AND SOUTHEAST ASIA (2007);
Michael Leifer & Soedjati Dijiwandono, Europe and Southeast Asia, in EUROPE
AND THE ASIA PACIFIC 198 (Hanns Maull et al. eds., 1998).
188 See Kheng-Lian, supra note 30, at 230-31.
189 See Kheng-Lian, supra note 30, at 230-31.
190 See Kheng-Lian, supra note 30, at 230-31.
191 Agreement, supra note 12, at pmbl.
192 Agreement, supra note 12, at art. 2.
193 See supra Part III.B.
194 This is also in keeping with the “ASEAN way.” See supra Part IV.A.
195 Agreement, supra note 12, at art. 27.
196 See Convention on Long-range Transboundary Air Pollution, supra note
125, at art. 2 (emphasis added). Article 3 of the Convention similarly requires
parties to “develop without undue delay policies and strategies which shall
serve as a means of combating the discharge of air pollutants.” Convention on
Long-range Transboundary Air Pollution, supra note 125, at art. 3 (emphasis
197 See supra Part III.B.
198 Agreement, supra note 12, at art. 4.
199 Agreement, supra note 12, at art. 9.
200 See supra Part III.B.
201 Agreement, supra note 12, at art. 9 (emphasis added).
202 Agreement, supra note 12, at art. 9 (emphasis added).
203 Agreement, supra note 12, at art. 9 (emphasis added).
204 Agreement, supra note 12, at art. 9 (emphasis added).
205 Agreement, supra note 12, at art. 7 (emphasis added).
206 Agreement, supra note 12, at art. 17.
207 Agreement, supra note 12, at art. 9.
208 Agreement, supra note 12, at art. 7.
209 Agreement, supra note 12, at art. 7.
210 Agreement, supra note 12, at art. 6.
211 Agreement, supra note 12, at art. 10.
212 Agreement, supra note 12, at art. 11.
213 See CHAYES & CHAYES, supra note 84, at 3.
214 See Agreement, supra note 12, at arts. 5, 19, 20 (Article 5 establishes the
Centre, while the Secretariat and the Fund are established by articles 19 and 20,
215 Agreement, supra note 12, at art. 11
216 See ASEAN Specialised Meteorological Centre, SING. NAT’L ENVTL.
AGENCY, http://www.weather.gov.sg/wip/web/ASMC/About_Us (last visited
Nov. 12, 2013). ASMC also displays hotspots at http://www.weather.gov.sg/wip/
217 See id.
218 Agreement, supra note 12, at art. 8.
219 Agreement, supra note 12, at art. 8.
220 Agreement, supra note 12, at art. 8.
221 Agreement, supra note 12, at art. 11.
222 CHAYES & CHAYES, supra note 84, at 135.
223 See supra Part II.B.
224 Agreement, supra note 12, at art. 18.
225 Agreement, supra note 12, at art. 19.
226 Agreement, supra note 12, at art. 18; see BHARAT H. DESAI, MULTILATERAL
ENVIRONMENTAL AGREEMENTS: LEGAL STATUS OF THE SECRETARIATS 134-35 (2010).
227 See DESAI, supra note 226, at 134-35.
228 Agreement, supra note 12, at art. 20.
229 Agreement, supra note 12, at art. 20.
230 See supra Part III.B.
231 Sok Lak, ASEAN Tackle Transboundary Haze in Region, WONDERLAK,
Nov. 29, 2011, 3:17 PM, http://wonderlak.blogspot.com/2011/11/asean-tackle-
transboundary-haze-in.html (describing the ASEAN Haze Fund).
232 Sujadi Siswo, ASEAN Begins Voluntary Contribution Towards Fund to
Fight Haze, CHANNEL NEWS ASIA, Nov. 11, 2006, http://www.wildsingapore.com/
news/20061112/061111-1.htm (detailing the cost of ﬁghting haze pollution).
233 Agreement, supra note 12, at art. 20.
234 Agreement, supra note 12, at art. 16.
235 Agreement, supra note 12, at art. 16.
74 SUSTAINABLE DEVELOPMENT LAW & POLICY
236 Agreement, supra note 12, at art. 16.
237 Agreement, supra note 12, at art. 16.
238 Agreement, supra note 12, at art. 9
239 Agreement, supra note 12, at art. 12.
240 Agreement, supra note 12, at art. 5.
241 Agreement, supra note 12, at art. 12.
242 Agreement, supra note 12, at art. 14–15.
243 Agreement, supra note 12, at art. 13.
244 See Gooch, supra, note 4.
245 See ASEAN Pressures Indonesia over Rise in Haze Pollution, BANGKOK
POST, Sept. 24, 2011, http://www.eco-business.com/news/asean-pressures-
indonesia-over-rise-in-haze-pollution/ (citing a “change of Parliament” as the
reason for the delay).
246 See infra, Part V.B.
247 See infra, Part V.B.
248 See Ginsburg & Shaffer, supra note 21, at 38 (explaining the challenges in
international environmental law).
249 See Abram Chayes, Panel III: International Law, Global Environmental-
ism, and the Future of American Environmental Policy, 21 ECOLOGY L.Q. 480,
250 See supra Part III.B.
251 Antonia Chayes, supra note 69, at 160.
252 Indonesia Urged to Ratify Haze Agreement Soon, ASEAN- KOREA CENTER,
Sept. 27, 2012, 4:45 AM, http://blog.aseankorea.org/archives/14035; Residents
Blame Plantations for Haze, NEW STRAITS TIMES, Oct. 11, 2012, http://www.
(explaining that locals blame plantations for making the haze worse).
253 Media Release, 14th Meeting of the Sub-Regional Ministerial Steering
Committee (MSC) on Transboundary Haze Pollution, ASEAN (Oct. 31, 2012),
available at http://www.asean.org/news/asean-secretariat-news/item/media-
on-transboundary-haze-pollution [hereinafter Media Release] (declaring that
Indonesia is committed to reducing haze pollution).
254 See BANGKOK POST, supra note 245; Simamora, supra note 14 (discussing
the government’s dissatisfaction with the activities of ASEAN countries which
impacts negatively on Indonesia).
255 See supra Part IV.B.
256 Media Release, supra note 253, at para. 1; Indonesia-Singapore Collabora-
tion to Deal with the Land and Forest Fires in Jambi Province, HAZE ACTION
ONLINE ( Feb. 21, 2013), http://haze.asean.org/?page_id=234 (noting that the
members of the MSC are Brunei, Indonesia, Malaysia, Singapore, Thailand—
the states most affected by transboundary haze).
257 Media Release, supra note 253, at para. 3.
258 See Woo Sian Boon, Haze Meeting:Govts Agree To Share Concession
Maps, TODAY ONLINE, July 18, 2013, http://www.todayonline.com/singapore/
259 Media Release, supra note 253, at para. 3.
260 Media Release, supra note 253, at para. 6.
261 Media Release, supra note 253, at para. 6.
262 See supra Part V.B.
263 See generally Media Release, supra note 253.
264 Media Release, supra note 253, at para. 4.
265 See Indonesia-Singapore Collaboration to Deal with the Land and Forest
Fires in Jambi Province, ASEAN HAZE ACTION ONLINE, http://haze.asean.
org/?page_id=234 (last visited Nov. 12, 2013) [hereinafter Indonesia-Singapore
269 See Media Release, supra note 253 at para. 7.
270 See Indonesia-Singapore Collaboration to Deal with the Land and Forest
Fires in Jambi Province, SING. NAT’L ENVTL. AGENCY at 5 (last visited Nov. 12,
2013) available at http://haze.asean.org/?wpfb_dl=137 [hereinafter SING. NAT’L
271 Id. at 43-44.
272 Id. at 44-45.
273 Id. at 9, 30, 35 (noting that other steps included: (1) workshop to develop
the capacity of the Jambi ofﬁcers in reading and interpretation of satellite imag-
ery and hotspot information; (2) socialization workshop of sustainable farming
and zero-burning practices; (3) development of a land use map for Mauro
Jambi regency; (4) installation of a geographical information system to support
regional ﬁre and haze monitoring and assessment; (5) setting up air and weather
monitoring stations and development of a Fire Danger Rating System; (6)
review of the ﬁre prevention and suppression capability and capacity of planta-
tion companies and relevant stakeholders in Muaro Jambi regency; and (7)
training workshop on ﬁre prevention and suppression capabilities). Indonesia
has also signed a memorandum of understanding with the U.S. EPA to fur ther
cooperation between the United States and Indonesia (“MOU”). Memorandum
of Understanding Between the Environmental Protection Agency of the United
States of America and the Ministry of the Environment of the Republic of Indo-
nesia, U.S. DEP’T OF STATE (June 27, 2011), available at http://www.state.gov/
documents/organization/177115.pdf (stating that the MOU covers “prevention
and management of greenhouse gases[,] . . . air pollution . . . environmental
degradation[,] . . . threats to human health and to ecosystems[,] . . . environmen-
tal policy and management[,] e]nvironmental education and public awareness[,
and] environmental governance[,]” and that to accomplish this, parties will
exchange technical and governance information, organize workshops and train-
ing, and participate in joint projects).
274 See Thomas Cho & Dylan Loh, Plantation Owners Responsible for Sus-
tainable Production: Stakeholders, CHANNEL NEWS ASIA, Oct. 31, 2012, http://
html#.UnKrM5FUO5l (discussing the increasing demand for palm oil); Maru-
siak, supra note 15.
275 See Cho & Loh, supra note 274.
276 See Marusiak, supra note 15.
277 See Abram Chayes, supra note 75, at 26–27.
278 If the Secretariat were to pledge to allocate the Fund so that Indonesia
received the bulk of the Fund, it could reduce the Indonesian legislature’s oppo-
sition to ratiﬁcation.
279 See supra Part II.A.
280 See supra Part II.A.
281 See supra Part II.A.
282 See Coase supra note 75 (recognizing that this approach is not unlike a
283 See supra Part III.B.
284 See supra Part III.B.
285 See supra Part III.B.
286 See Kathy Marks, Illegal Logging Responsible for Loss of 10 Million Hect-
ares in Indonesia, THE INDEPENDENT, Oct. 26, 2009, http://www.independent.
hectares-in-indonesia-1809417.html (noting that illegal logging has destroyed
half of Indonesia’s rainforests).
287 Need for New Intervention, SUSTAINABLE MGMT. OF PEATLAND FORESTS IN
SE. ASIA, http://www.aseanpeat.net/index.cfm?&menuid=96&parentid=92 (last
visited Nov. 1, 2013).
288 Indonesian Activists Demand Minister’s Transparency on Concession
Map, THE JAKARTA POST, July 28, 2013, available at http://www.asianewsnet.
that although concession maps show where companies’ oil palm plantations are
located, these maps are not publicly available); ASEAN To Have Haze Monitor-
ing System, BANGKOK POST, Oct. 10, 2013, 12:58 PM, http://www.bangkokpost.
prevent-haze (recognizing that governments have agreed to share maps with one
another); Southeast Asia Agrees To Adopt Haze Monitoring System, REUTERS,
Oct. 9, 2013, 3:29 AM, http://www.reuters.com/article/2013/10/09/us-asia-
summit-haze-idUSBRE99807920131009. World Resources Institute, an NGO,
has what it claims are concession maps from 2010. Nigel Sizer et al., Peering
Through the Haze: What Data Can Tell Us about the Fires in Indonesia, WORLD
RESOURCES INSTITUTE (June 21, 2013), http://insights.wri.org/news/2013/06/
289 See Ministry of Forestry WebGIS, MINISTRY OF FORESTRY: DIRECTORATE GEN.
OF FORESTRY PLANNING, http://webgis.dephut.go.id (last visited Nov. 12, 2013).
290 Residents Blame Plantations for Haze, NEW STRAITS TIMES, Oct. 11,
haze-1.155458 (discussing ASEAN meeting’s consensus on the necessity of hot
291 Peatlands in SEA, SUSTAINABLE MGMT. OF PEATLAND FORESTS IN SE. ASIA,
http://www.aseanpeat.net/index.cfm?&menuid=9 (last visited Nov. 12, 2013)
(explaining the prevalence of peatlands in Southeast Asia).
1 DAVID VOGEL, The Environment and International Trade, 12.1 J. POL’Y
HIST. 72, 76.
2 Id.; General Agreement on Tariffs and Trade, Art. XX Apr. 15, 1994, 1867
U.N.T.S. 187, 33 I.L.M. 1153 (1994) [hereinafter GATT 1994].
3 GATT 1994, Art. XX.
4 Chronological List of Disputes, WORLD TRADE ORG. (Dec. 3, 2013, 9:30
5 Margo McDiarmid, Joe Oliver Takes Oilsands Fight to Europe’s Finan-
cial Heart, CBC NEWS (Nov. 19, 2013), http://www.cbc.ca/news/politics/
7 Charles T. Drevna et al., Multi-Association Letter Regarding EU Fuel
Quality Directive, INSTITUTE FOR 21ST ENERGY (Dec. 3, 2013, 9:30 PM), http://
8 Barbara Lewis, Update 2-EU Vote on Tar Sands Oil Delayed Until
2013, REUTERS (Apr. 20, 2012), http://www.reuters.com/article/2012/04/20/
9 Directive 2009/30, 2009 O.J. (140) 1, 2 (EC).
10 DÉFENSE TERRE, WTO IMPLICATIONS OF REPORTING MEASURES FOR TAR SANDS
UNDER THE FUEL QUALITY DIRECTIVE 1 (2011), available at http://www.transport-
11 Drevna, supra note 7.
12 Drevna, supra note 7.
13 Drevna, supra note 7.
14 GATT 1994, Art. I:1. In WTO cases, four criteria have been used to deter-
mine if a product constitutes a “like product:” the physical properties, the extent
to which it is capable of serving the same or similar end use, the extent to which
consumers perceive and treat the product as an alternative to perform speciﬁc
functions to satisfy a particular demand, and the international tariff clas-
siﬁcation of the product. WTO Rules and Environmental Policies: Key GATT
Disciplines, WORLD TRADE ORG. (Dec. 3, 2013, 9:30 PM), http://www.wto.org/
15 GATT 1994, Art. III:4.
16 GATT 1994, Art. XX(g).
17 Increased GHG emissions increases average temperature, the frequency
of heat waves and extreme weather events, the severity of coastal storms, and
mortality. Endangerment and Cause or Contribute Findings for Greenhouse
Gases under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,497-
98 (Dec. 15, 2009).
18 Panel Report, United States—Standards for Reformulated and Conven-
tional Gasoline, 19, WT/DS2/9 (May 20, 1996), available at http://www.wto.
19 See Endangerment and Cause or Contribute Findings for Greenhouse
Gases under Section 202(a) of the Clean Air Act, 74 Fed. Reg. at 66,523.
20 Panel Report, supra, note 18.
21 Panel Report, supra, note 18, at 1-4.
22 These standards created baselines “to permit scrutiny and monitoring
of the level of compliance of reﬁners, importers and blenders with the “non-
degradation” requirements.” Panel Report, supra, note 18 at 4.
23 Panel Report, supra, note 18, at 19.
24 Panel Report, supra, note 18, at 5-6.
25 Panel Report, supra, note 18, at 29-30.
26 See GATT 1994, Art. XX (stating that measures should not be “applied in a
manner which would constitute a means of arbitrary or unjustiﬁable discrimina-
tion between countries where the same conditions prevail.”).
27 More speciﬁcally, the DSB considered whether: (a) the application of the
measure necessarily results in discrimination, (b) the discrimination is arbitrary
or unjustiﬁable in both the actual provisions of the measure and how it is
applied in practice, and (c) discrimination occurs between countries where the
measures prevail. APPELLATE BODY REPORT, United States—Import Prohibition
of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, ¶ 150-60, (Nov. 6,
28 In United States—Standards for Reformulated and Conventional Gasoline,
the DSB appellate body found that the United States “had not sufﬁciently
explored the possibility of entering into cooperative arrangements with
affected countries in order to mitigate the administrative problems raised by
the United States in their justiﬁcation of the discriminatory treatment.” WTO
Rules and environmental policies: GATT exceptions, WORLD TRADE ORG. (Dec.
20, 2013, 4:00 PM), http://www.wto.org/english/tratop_e/envir_e/envt_rules_
29 The provision does not impose a different standard on tar sands oil than
other forms of crude oil within its boundaries. Therefore, there is no discrimina-
tion of like products. DÉFENSE TERRE, supra note 10, at 8. See supra note 27
and accompanying text; Directive 2009/30, 2009 O.J. (140) art. 7a (EC); GATT
1994, Art. XX.
30 The EU and Canada participated in multi-year peer reviewed consultations,
which demonstrates the EU’s good faith effort in mitigating potential disputes.
DÉFENSE TERRE, supra, note 10,at 8.
31 Directive 2009/30, 2009 O.J. (140) ¶ 2 (EC).
32 See GATT 1994, Art. XX(b), (g).
Endnotes: ARTICLE XX: PROTECTOR OF PUBLIC HEALTH, THE ENVIRONMENT, AND THE NEW PROVISIONS OF EUROPEAN
UNION'S FUEL QUALITY DIRECTIVE
continued from page 46
40 WORLD FOOD PROGRAMME, 2010 FOOD AID FLOWS 7 (2011), available at
41 7 U.S.C.A. § 8701.
42 Id.; “U.S. international food aid programs have traditionally been autho-
rized in farm bills. The most recent of such bills, the Food, Conservation, and
Energy Act of 2008 (P.L. 110-246), authorized through FY2012 and amended
international food aid programs. . . . U.S. international food aid has been dis-
tributed mainly through ﬁve program authorities: the Food for Peace Act (P.L.
480); Section 416(b) of the Agricultural Act of 1949; the Food for Progress Act
of 1985; the McGovern-Dole International Food for Education and Child Nutri-
tion Program; and the Local and Regional Procurement Pilot Project, a pilot
program in the 2008 farm bill which ended in FY 2012. In addition, the 2008
farm bill also reauthorized the Bill Emerson Humanitarian Trust (BEHT), a
reserve of commodities and cash for use in the Food for Peace program to meet
unanticipated food aid needs.” Hanrahan, supra note 19, at ii.
43 CLAPP, supra note 14.
44 “By setting out food aid policies within speciﬁc pieces of legislation that
it must approve annually, Congress plays a strong role in determining the direc-
tion of these policies.” CLAPP, supra note 14, at 72.
45 Agricultural Trade Development Assistance Act, 7 U.S.C. § 1721 (2006).
47 See HOUSE FOREIGN AFFAIRS COMM., FOOD AID REFORM, available at http://
48 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-07-560, supra note 18, at 7.
49 Fiscal year 2014 request for U.S. food aid was $1.47 billion as compared to
the $1.15 billion the House Agricultural Appropriations introduced. HOUSE FOR-
EIGN AFFAIRS COMM., supra note 47; U.S. AGENCY FOR INT’L DEV. , U.S. INTER-
NATIONAL FOOD ASSISTANCE REPORT 2007, at 7 (2008), available at http://kenya.
50 7 U.S.C.A. § 1691.
51 U.S. AGENCY FOR INT’L DEV., supra note 39.
52 U.S. AGENCY FOR INT’L DEV., supra note 39 (following World War II, U.S.
agricultural policy funded an unprecedented and unmatched level of research,
credit, and production advice while also supporting farmers’ incomes, the
combination of which created a massive food commodity surplus by the end of
the Korean War.).
53 U.S. AGENCY FOR INT’L DEV., supra note 39.
54 Hanrahan, supra note 19, at 2.
Endnotes: U.S. FOOD AID REFORM THROUGH ALTERNATIVE DISPUTE RESOLUTION
continued from page 58
76 SUSTAINABLE DEVELOPMENT LAW & POLICY
55 Hanrahan, supra note 19, at 2.
56 U.S. AGENCY FOR INT’L DEV., supra note 39.
57 Hanrahan, supra note 19, at 2.
58 Paul L. Doughty, Peace, Food and Equity In Peru, 15 URB. ANTHROPOLOGY
& STUD. CULTURAL SYS. & WORLD ECON. DEV., 45-59 (1986).
59 Id.; CLAPP, supra note 14, at 71(Although Title II is currently the most sig-
niﬁcant component of the Food for Peace program, prior to 1980, the majority
of aid was delivered under Title I, “sold on concessional terms to poor coun-
tries[,] and was in turn sold on local markets in an untargeted fashion” with the
chief purpose of creating export markets for U.S. grain. The food crisis in the
1970s initiated a decrease in Title I aid funding, and beginning in the 1980s the
United States distributed the bulk of its food aid under Title II.).
60 Doughty, supra note 58.
61 U.S. AGENCY FOR INT’L DEV., supra note 39.
62 Milwaukee v. Sec’y of Agric., 877 F.2d 540 (1989).
63 46 U.S.C. §§ 55305(b), 55314(a)(1) (2006); 46 U.S.C. § 55314(c)(3).
64 22 U.S.C. § 2354(c) (2006); 22 C.F.R. § 228.13(a) (2008).
65 U.S. AGENCY FOR INT’L DEV., supra note 39.
66 U.S. AGENCY FOR INT’L DEV., supra note 39.
67 Food for Peace Act (Agricultural Trade Development and Assistance Act of
1954) 7 U.S.C. §§ 1691-1738r.
68 Derek J. Hanson, Foreign Food Aid Procurement: Why Domestic Prefer-
encing Requirements Must be Substantially Reduced to More Effectively and
Efﬁciently Alleviate Global Hunger 39 PUB. CONT. L.J. 51, 63 (Fall 2009) (citing
Agricultural Trade Development and Assistance Act of 1954, Pub. L. No.
83-480 § 201, 68 Stat. 454, 457 (1954).
72 See Erin C. Lentz, Simone Passarelli, & Christopher B. Barrett, The Timeli-
ness and Cost-Effectiveness of the Local and Regional Procurement of Food
Aid, 49 WORLD DEV. 9, 11 (2013).
73 46 U.S.C. §§ 55305(b), 55314(a)(1) (2006); 46 U.S.C. § 55314(c)(3);
Originally, P.L. 83-644 required U.S.-ﬂag vessels to transport 50% of U.S. gen-
erated food aid waterborne cargos, but in 1985 the total was increased to 75%.
Hanrahan, supra note 19, at 15.
74 Hanrahan, supra note 19, at 15.
75 Murray A. Bloom, The Cargo Preference Act of 1954 and Related Legisla-
tion, 39 J. MAR. L. & COM. 289 (2008).
76 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 18, at 23; U.S. GOV’T
ACCOUNTABILITY OFFICE, INTERNATIONAL FOOD ASSISTANCE: FUNDING DEVELOPMENT
PROJECTS THROUGH THE PURCHASE, SHIPMENT, AND SALE OF U.S. COMMODITIES IS
INEFFICIENT AND CAN CAUSE ADVERSE MARKET IMPACTS 23 (2011), available at
http://www.gao.gov/assets/330/320013.pdf [hereinafter INT’L FOOD ASSISTANCE].
77 INT’L FOOD ASSISTANCE, supra note 76, at 26.
78 INT’L FOOD ASSISTANCE, supra note 76, at 23.
79 INT’L FOOD ASSISTANCE, supra note 76, at 24.
80 INT’L FOOD ASSISTANCE, supra note 76, at 24.
81 INT’L FOOD ASSISTANCE, supra note 76, at 24-25.
82 INT’L FOOD ASSISTANCE, supra note 76, at 25 (reﬂagging is a term used to
denote the transfer of a ships registration from one nationality to another; in
this instance, reﬂagging refers to foreign ships coming under the authority and
protection of the United States).
83 INT’L FOOD ASSISTANCE, supra note 76, at 26.
84 INT’L FOOD ASSISTANCE, supra note 76, at 26.
85 “Based on KCCO data, from ﬁscal year 2002 to 2010, the number of U.S.-
ﬂag vessels awarded food aid contracts declined by 50 percent, from 134 to 67
vessels” INT'L FOOD ASSISTANCE, supra note 76, at 27.
86 Food Aid Reform, U.S. AGENCY FOR INT’L DEV., http://www.usaid.gov/
foodaidreform (last visited, Jul. 31, 2013).
87 Food Security Act of 1985, Pub. L. No. 99-198, § 1111, 99 Stat. 1354
88 INT’L FOOD ASSISTANCE, supra note 76, at 5.
89 INT’L FOOD ASSISTANCE, supra note 76, at 1.
90 INT’L FOOD ASSISTANCE, supra note 76, at 1, 7.
91 INT’L FOOD ASSISTANCE, supra note 76, at 7.
92 Some implementing partners work with the recipient country’s government
to monetize the aid commodities—for example, in Bangladesh, the government
is the sole purchaser of USAID monetized aid. INT’L FOOD ASSISTANCE, supra
note 76, at 13–14. An additional common procedure is through the formation
of a consortium among several partners with one partner serving as the sell-
ing agent, or alternatively, a single partner might work independently to sell
the food aid commodity. U.S. AGENCY FOR INT’L DEV., MONETIZATION FIELD
MANUAL (Oct. 2012), available at http://www.usaid.gov/sites/default/ﬁles/docu-
ments/1866/MonetizationManual12222012FINAL.pdf [hereinafter MONETIZA-
93 MONETIZATION MANUAL supra note 92, at 10.
94 MONETIZATION MANUAL supra note 92, at 10.
95 MONETIZATION MANUAL supra note 92, at 10.
96 MONETIZATION MANUAL supra note 92, at 4.
97 MONETIZATION MANUAL supra note 92, at 4.
98 MONETIZATION MANUAL supra note 92, at 1.
99 MONETIZATION MANUAL supra note 92, at 2.
100 MONETIZATION MANUAL supra note 92, at 2.
101 Pub. L. No. 99-198, § 1111. The rationale behind this amendment was
twofold. First, there was a worry that the cost recovery formula was unfairly
inﬂexible, working to “punish participants where market forces were beyond
their control, or not reward situations where the market price was above the
formula value.” H.R. REP. No. 107-424 (2002). Secondly, because only USAID
was required to meet cost recovery requirements, there was concern that this
difference in standard could result in inequitable inconsistencies in monetiza-
tion, “potentially [penalizing] one agency or the other agency.” INT’L FOOD
ASSISTANCE, supra note 76, at 6.
102 Hanrahan, supra note 19, at 12. Less resolutely, both USAID and USDA
“must ensure that monetization transactions do not entail substantial disincen-
tive to, or interfere with, domestic production or marketing in that country.” Id.
103 See H.R. REP. No. 107-424, at 236 (2002) (Conf. Rep.).
104 Id. at 69; CLAPP, supra note 14, at 46-47, 69. International efforts to
untie and reform international food aid have been present since the 1970s and
became a prominent and widely accepted policy by the mid-1990s as notable
donor states such as the EU began to adopt policies that untied aid, spurring
likeminded efforts in other donor countries. Furthermore, international develop-
ment organizations such as FAO, OECD, and WFP avidly support policies
providing ﬂexible, untied food aid. CLAPP, supra note 14, at 46-47, 69.
105 CLAPP, supra note 14, at 74.
106 CLAPP, supra note 14, at 73.
107 SEN, supra note 2; POTTIER, supra note 3, at 142.
108 Sen’s theory of famine was not without critiques, the majority of which
“stressed that famines develop over time; [that] famine is a process, not an
event . . .” arguing that, “[a]s famine ethnographies now show, famines indeed
come mostly ‘at the tail end of a long-term process of increasing vulnerability
. . . to food supply shocks.’ The view that normal market processes were at the
root of famine, invaluable as a new insight, also overlooked the possibility that
well-functioning markets sabotaged in war can trigger famine.” SEN, supra note
2, at 143 (citing STEPHEN DEVEROUX, THEORIES OF FAMINE 159 (1993)).
109 STEPHEN DEVEROUX, THEORIES OF FAMINE 71 (1993).
110 POTTIER, supra note 3, at 143.
111 The Heritage Foundation is a preeminent conservative think-tank dedicated
to advancing conservative public policy. See generally, THE HERITAGE FOUNDA-
TION: LEADERSHIP FOR America, www.heritage.org (last visited Dec. 20, 2013).
112 Oxfam America is a decidedly liberal international aid organization with
companion interests in opposing the majority of conservative political and
economic agendas. See generally, OXFAM AMERICA: WORKING TO END POVERTY
AND INJUSTICE, www.oxfamamerica.org (last visited Dec. 20, 2013).
113 Hanrahan, supra note 19, at 8, 14.
114 Hanrahan, supra note 19, at 15.
115 CLAPP, supra note 14, at 78.
116 Christopher Barrett, an agricultural economist, and Daniel Maxwell, then
international deputy regional director of CARE, published Food Aid after 50
Years: Recasting Its Role, which argued that the U.S. food aid system needed
to be more ﬂexible by including cash for local and regional purchases, in 2005.
Around the same time, OECD published a report showing that in-kind food aid
was both more costly and more time-consuming to provide. In 2007, GAO pub-
lished a report on the performance of U.S. food aid programs, which indicated
that, inter alia, rules on in-kind aid and transport were making the programs
ineffective and inefﬁcient. CLAPP, supra note 14, at 77, 80-81.
117 151 CONG. REC. 24,197 (2005) (Remarks by Andrew S. Natsios, USAID
Administrator at the Kansas City Export Food Conference on the Local Pur-
chase Initiative (May 3, 2005)); see also 7 U.S.C. § 1691 (2006) (stating that the
policy of the United States is the promotion of food security in the developing
world through the use of agricultural commodities and local currencies). But
see U.S. INTERNATIONAL FOOD ASSISTANCE REPORT 1 (2007), available at http://
www.usaid.gov/ our_work/humanitarian_assistance/ffp/fy07_usifar.pdf (listing
as important goals the need to combat hunger and to “develop and expand
export markets for U.S. agricultural commodities”).
118 Hanrahan,, supra note 19, at 15. Critiques of the cargo preferences are
largely about efﬁciency. Those suppor ting reform note the inefﬁciencies in both
time and cost that come with requiring aid to be shipped on U.S.-ﬂagged ves-
sels. Hanrahan,, supra note 19, at 15.
119 The Editorial Board, supra note 17.
120 Hanrahan,, supra note 19, at 14.
121 Monetization is often blamed for causing commercial displacement of local
agricultural products, causing harm to traders and local farmers and undermin-
ing the development of local markets, which may act to reduce long term food
security. CLAPP, supra note 14, at 78.
122 It is argued that buying locally or regionally could result in price spikes
that would make it difﬁcult for poor people to buy the supplies they need on
local markets. Some also argue that the reliability and quality of food supplies
could not be guaranteed with local or regional procurement. Hanson, supra note
68, at 60.
123 Charles Abbott, Fierce Lobbying Counters White House Push for Food
Aid Reform, REUTERS, May 1, 2013, http://www.reuters.com/article/2013/05/01/
124 Hanrahan, supra note 19, at 14.
125 Elijah E. Cummings, Duncan Hunter & Nick Rahall, Keep-
ing the Food in Food for Peace, U.S. NEWS & WORLD REPORT, May
21, 2013, http://www.usnews.com/opinion/articles/2013/05/21/
126 ACTIONAID INT’L, POWER HUNGRY: SIX REASONS TO REGULATE GLOBAL FOOD
CORPORATIONS 12 (2005), available at http://www.actionaid.org.uk/_content/
127 BARRETT & MAXWELL, supra note 28, at 89.
128 CLAPP, supra note 14, at 73.
129 “Just one of those ﬁrms, Cargill, is reported to have sold $1.09 billion
in grain to the U.S. government for food aid between 1995 and 2005.” CLAPP,
supra note 14, at 73.
130 BARRETT & MAXWELL, supra note 28, at 91-92.
131 BARRETT & MAXWELL, supra note 28, at 91-92.
132 CLAPP, supra note 14, at 74.
133 Liz Jayankura, U.S. food aid policies discussed at IFAC, WHEAT LETTER
(U.S. Wheat Associates), May 3, 2007, available at http://www.uswheat.org/
Polly Diven, The Domestic Determinants of U.S. Food Aid Policy, 26 FOOD
POL’Y 455 (2001) (discussing the historical signiﬁcance of food aid to commod-
ity producer groups).
134 CLAPP, supra note 14, at 74.
135 CLAPP, supra note 14, at 82.
136 Chris Gillies, U.S.-Flag Vessel Operators Torn by Market, AMERICAN SHIP-
PER (May 2004), http://www.americanshipper.com/paid/MAY04/US_ﬂag_frm.
137 BARRETT & MAXWELL, supra note 28, at 96; Samuel Loewenberg, Bush in
Food Aid Fight with Congress, POLITICO, Feb. 06, 2008, 6:17PM, http://www.
138 Celia Dugger, CARE Turns Down Federal Funds for Food Aid, N.Y. TIMES,
Aug. 16, 2007, http://www.nytimes.com/2007/08/16/world/africa/16food.
139 CLAPP, supra note 14, at 74 (citing Interview with Marc Cohen, senior
research fellow, IFPRI).
140 Dugger, supra note 138, at 1-3.
141 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 18, at 108.
142 BARRETT & MAXWELL, supra note 28, at 94.
143 CLAPP, supra note 14, at 74.
144 “Additionally, the supporters of these changes mischaracterize the impor-
tance of the U.S. merchant marine and the essential policy nexus between it
and food aid programs. Since 1936, U.S. law has held that the United States
shall have a merchant marine sufﬁcient to carry . . . a substantial portion of the
water-borne export and import foreign commerce of the United States and . . .
capable of serving as a naval and military auxiliary in time of war or national
emergency.” Cummings et al., supra note 125.
145 Furthermore, critics note “[a] study issued by IHS Global Insight in 2009
found that barely 2[%] of U.S. foreign trade is now moving in U.S.-ﬂagged ves-
sels.” Cummings et al., supra note 125.
146 Cummings et al., supra note 125.
147 Cummings et al., supra note 125.
148 Hanrahan, supra note 19, at 20.
149 “USA Maritime cites a report it commissioned on the economic impacts of
U.S. international food aid, which shows that the combination of handling, pro-
cessing, and transporting U.S. commodities all the way from the farm to foreign
ports supported $2 billion of U.S. industry output, $523 million in household
earnings, and over 13,000 jobs in 2009.” Hanrahan, supra note 19, at 20 (citing
PROMAR INTERNATIONAL, IMPACTS ON THE U.S. ECONOMY OF SHIPPING INTERNATIONAL
FOOD AID (2010), available at http://mebaunion.org/WHATS-NEW/Food_Aid-
150 “Barrett and Maxwell have shown, for example, that food aid delivered
by the top eight NGOs accounted for 30[%] of the weighted average of their
gross revenues for 2001; some relied on U.S. food aid for up to 50[%] of their
budget.” CLAPP, supra note 14, at 75 (citing BARRETT & MAXWELL, supra note 28,
151 “Each has received tens of millions of dollars’ worth of in-kind food aid
through the Food for Peace program each year over the past decade.” CLAPP,
supra note 14, at 75.
152 U.S. AGENCY FOR INT’L DEV., U.S. INTERNATIONAL FOOD ASSISTANCE REPORT
(2006), available at http://www.usaid.gov/ our_work/humanitarian_assistance/
ffp/fy06_usifar.pdf; U.S. AGENCY FOR INT’L DEV., U.S. INTERNATIONAL FOOD
ASSISTANCE REPORT (2007), available at http://www.usaid.gov/ our_work/
humanitarian_assistance/ffp/fy07_usifar.pdf; U.S. AGENCY FOR INT’L DEV.,
U.S. INTERNATIONAL FOOD ASSISTANCE REPORT (2008) available at http://www.
usaid.gov/ our_work/humanitarian_assistance/ffp/fy08_usifar_revised.pdf; U.S.
AGENCY FOR INT’L DEV., U.S. INTERNATIONAL FOOD ASSISTANCE REPORT (2009),
available at http://www.usaid.gov/ our_work/humanitarian_assistance/ffp/
153 EMMY SIMMONS, P’SHIP TO CUT HUNGER & POVERTY IN AFR., RECONSIDER-
ING FOOD AID: THE DIALOGUE CONTINUES 65 (2007), available at http://www.
see also, id.
154 CLAPP, supra note 14, at 76.
155 Hanrahan, supra note 19, at 19.
156 CLAPP, supra note 14, at 77.
157 See generally, Steve Inskeep, A Political War Brews Over ‘Food For
Peace’ Aid Program, NAT’L PUB. RADIO (Apr. 04, 2013, 3:18 AM), http://www.
opposition to Bush administration reform proposals); Abbott, supra note 123
(concerning opposition to the Obama administration reform proposal and the
Food Aid Reform Act proposal); Brad Plumer, Food Aid Reform is Running into
Trouble in Congress, WASH. POST, May 17, 2013, http://www.washingtonpost.
running-into-trouble-in-congress/; Charles Abbott, U.S. Senate Largely Rebuffs
Obama Plan for Food-Aid Reform, REUTERS, Jun. 03, 2013, http://www.reuters.
158 An example might be found in the governing structure of the WFP, where
developing countries have a majority presence on the governing executive
board. Incorporating key ﬁgures, representing the major recipients of P.L.
480 aid—which in 2010 included Niger, Djibouti, Zambia, Burma, and South
Sudan—in any preceding negotiations to food aid reform proposals would
greatly expand the dialogue and balance the weight of the conversation between
donor and recipient more equitably. Noting the largest recipients of aid are
largely centralized in Africa, making sure the representatives from that conti-
nent were present in the dialogue would be a substantial improvement. Notable
hunger relief organizations in the region include Action against Hunger and
Oxfam. Furthermore, the inclusion of hunger relief organizations should be
achieved with an aim of balancing representation on either side of the debate
about monetization. The insights of organizations like CARE, which once relied
upon monetization, but have since moved away from the practice for humanitar-
ian and efﬁciency reasons, would be valuable and important voices in shaping
effective reform. ROBERTA VAN HAEFTEN, MARY ANN ANDERSON, HERBET CAUDILL
& EAMONN KILMARTIN, SECOND FOOD AID AND FOOD SECURITY ASSESSMENT
(FAFSA-2) 3-8 (2013), available at http://www.usaid.gov/sites/default/ﬁles/
159 EDWARD CLAY, BARRY RILEY, & IAN UREY, ORG. FOR ECON. CO-OPERATION
& DEV., THE DEVELOPMENT EFFECTIVENESS OF FOOD AID: DOES TYING MATTER?
3 (2006), available at http://www.odi.org.uk/sites/odi.org.uk/ﬁles/odi-assets/
160 FOOD & AGRIC. ORG., THE STATE OF FOOD AND AGRICULTURE 4 (2006).
162 SEN, supra note 2.
163 POTTIER, supra note 3, at 166.
164 ALEX DE WAAL, FAMINE THAT KILLS 32 (1989).
78 SUSTAINABLE DEVELOPMENT LAW & POLICY
165 Melling, supra note 13, at 1680 (concerning the deﬁnition of alternative
166 Furthermore, “Congress is the ‘anvil’ of democracy—the place where bar-
gains are forged and policy is hammered out. This institutional structure affects
individual legislators’ incentives and creates unique barriers to the cooperative
resolution of conﬂict.” Melling, supra note 13, at 1682.
167 Melling, supra note 13, at 1679.
168 Robert H. Mnookin, Why Negotiations Fail: An Exploration of Barriers to
the Resolution of Conﬂict 8 OHIO ST. J. DISP. RESOL. 235, 238 (1993).
169 “Some critics of mediation believe that the lack of procedural safeguards,
the absence of an authoritative third-party decision maker, and the neutrality of
the mediator, allow for instances in which a disputing party might use power
unfairly to impose a solution upon the other. However, this concern seems often
misplaced as mediation contains core features that act as safeguards to prevent
power abuses by a more powerful party.” Jordi Agustí-Panareda, Power Imbal-
ances in Mediation: Questioning Some Common Assumptions, 59 DISP. RESOL.
J. 24, 29 (May–July 2004).
170 Id. (citing Robert Bush, Efﬁciency and Protection, or Empowerment
and Recognition? 41 FLA. L. REV. 253 (1989); L.A. Pinzón, The Production
of Powe r and Knowledge in Mediation,” 14 MED. Q. 5 (1996); Lon Fuller,
Mediation: Its Forms and Functions, 44 S. CAL. L. REV. 325 (1971); G.A.
CHORNENKI, MEDIATING COMMERCIAL DISPUTES: EXCHANGING ‘POWER OVER’ FOR
‘POWER WITH, IN RETHINKING DISPUTES: THE MEDIATION ALTERNATIVE 164 (J.
Macfarlane ed., Cavendish Publishing 1997)).
171 “In facilitative mediation, the mediator structures a process to assist the
parties in reaching a mutually agreeable resolution. The mediator asks ques-
tions; validates and normalizes parties’ points of view; searches for interests
underneath the positions taken by parties; and assists the parties in ﬁnding and
analyzing options for resolution.” Zena Zumeta, Styles of Mediation: Facilita-
tive, Evaluative, and Transformative Mediation (Sept. 2000), http://www.medi-
172 Melling, supra note 13, at 1678.
173 The concept of “outside strategies” is taken from the political science
analysis of Timothy Cook, who uses the term to refer speciﬁcally to the use of
the media as a bargaining or position-promoting tool on the part of politicians.
Here, I use the term, not with regard to legislators or politicians exclusively, but
to all stakeholders involved in the food aid reform debate. TIMOTHY E. COOK,
MAKING LAWS AND MAKING NEWS: MEDIA STRATEGIES IN THE U.S. HOUSE OF REPRE-
SENTATIVES 154 (1991).
174 “The problem arises when a principal and an agent have different incen-
tives. For example, lawyers, particularly those who bill by the hour, have an
incentive to avoid settling a case until the litigation reaches the courthouse
steps. Research suggests that it is difﬁcult to align the interests of the principal
and agent, either by contract or by custom. Thus, agents can inﬂict unnecessary
losses on disputing parties or prevent them from discovering joint gains.” Mel-
ling, supra note 13, at 1681.
175 Reform proposals have been made primarily through reforms in annual
Presidential Fiscal Year budgets. The most recently proposed Food Aid Reform
Act was a hasty bill proposed with bipartisan support, but no preceding negotia-
tions with potential opposition.
176 COOK, supra note 173, at 154 (In the realm of political science, the act of
bargaining through the mass media is commonly called an “outside strategy,”
establishing what is referred to as the “politicians’ dilemma.”); Melling, supra
note 13, at 1681 (concerning “principal agent barrier”).
177 Key examples include letters to the editor, press releases, and publications
on the websites of the Maritime Industry, Agricultural industry, and food aid
178 Melling, supra note 13, at 1689.
179 Melling, supra note 13, at 1689.
180 Lawrence Susskind & Connie Ozowa, Mediating Public Disputes:
Obstacles and Possibilities, 41 J. SOC. ISSUES 145, 147-48, 157 (1985) (discuss-
ing problems of representation); Melling, supra note 13, at 1681.
181 CLAPP, supra note 14, at 78.
182 CLAPP, supra note 14, at 78.
183 CLAPP, supra note 14, at 78.
184 Andrew Natsios Extended Interview, RELIGION & ETH-
ICS NEWSWEEKLY, PUB. BROAD. SERV. (Feb. 19, 2010),
185 CLAPP, supra note 14, at 78. Academic studies, including Amartya Sen’s
work were inﬂuential in shaping Natsios’ opinion; in a 2005 speech, Natsios
commented, “I’ve seen children starve to death when there was a surplus of
food in their local markets, but there was no one to buy the food because we
didn’t have the money to do that, so people died.” PUB. BROAD. SERV., supra note
186 Inskeep, supra note 157.
187 U.S. DEP’T OF AGRIC., USDA’S 2007 FARM BILL PROPOSALS, available at
188 CLAPP, supra note 14, at 80.
189 CLAPP, supra note 14, at 82.
190 CLAPP, supra note 14, at 69.
191 Speciﬁcally, the President’s agenda “called for the establishment of more
reliable levels of food aid, with the proportion of the U.S. programs that relied
on unpredictable surpluses not to exceed 10[%],” while also seeking “better-
focused programs, improved safeguards to avoid commercial displacement, and
overall improved transparency and efﬁciency.” CLAPP, supra note 14, at 78.
192 CLAPP, supra note 14, at 78.
193 CLAPP, supra note 14, at 69.
194 CLAPP, supra note 14, at 69.
195 CLAPP, supra note 14, at 82.
196 CLAPP, supra note 14, at 82.
197 However, the administration did manage to negotiate the establishment of
two pilot programs in untied, locally and regionally procured aid, which now
account for a quarter of U.S. food aid; “[a]nd according to independent reviews
they’re working pretty well.” Inskeep, supra note 157.
198 Abbott, supra note 123.
199 Abbott, supra note 123.
200 Abbott, supra note 123.
201 Abbott, supra note 123.
202 Abbott, supra note 123.
203 Abbott, supra note 123.
204 Abbott, supra note 123.
205 Abbott, supra note 123.
206 The remaining portion allotted to the standard in-kind and tied aid
programs was 55%, equal to roughly $800 million of the $1.4 billion total, as
remaining earmarked for U.S. produced and shipped food aid.
207 Food Aid Reform Act, H.R. 1983, 113th Cong. (1st Sess. 2013).
208 Press Release, Chairman Royce, House Comm. on Foreign Affairs, Sub-
committee Ranking Member Bass Move to Reform U.S. Food Aid Delivery to
Help More at Less Expense (May 15, 2013) available at http://foreignaffairs.
move-reform-us-food-aid-delivery-help [hereinafter Press Release, House
Comm. on Foreign Affairs].
211 HOUSE COMMITTEE ON FOREIGN AFFAIRS, ROYCE-BASS FOOD AID REFORM ACT:
SECTION-BY-SECTION 1, available at http://foreignaffairs.house.gov/sites/repub-
213 SEN, supra note 2.
214 Press Release, House Comm. on Foreign Affairs, supra note 208.
215 Arguably, the urgency with which the bill was introduced eliminated the
logistical possibility for complex negotiations to take place. Furthermore, com-
ing on the tails of controversy over the FY2014 budgetary reforms to food aid,
the atmosphere for cooperative dialog was even further reduced.
216 See Cydney Hargis, Reforming U.S. Food Aid Would Eliminate 7,000-Mile
Food Chain (Jun. 12, 2013), http://www.ipsnews.net/2013/06/reforming-u-
s-food-aid-would-eliminate-7000-mile-food-chain/ (noting the likelihood of
passage to be about 7%).
217 “[T]he President’s budget: Shifts $1.1 billion to International Disaster
Assistance (IDA) for emergency food response. This shift would augment
IDA’s Emergency Food Security Program, previously described, which provides
up the $300 million for cash-based food security assistance (e.g., local and
regional procurement, vouchers, or cash transfers). The total available for IDA
emergency food security assistance would be $1.4 billion. Shifts $250 million
to Development Assistance (DA) for a Community Development and Resil-
ience Fund (CDRF). The CDRF would address chronic food insecurity in area
of recurrent crises such as the Horn of Africa or the West African Sahel. The
CDRF also would receive $80 million of DA from USAID’s Bureau of Food
Security, which administers the Feed the Future program. Total funding for
this program would be $330 million. Shifts $75 million to a new Emergency
Food Assistance Contingency Fund (EFAC). EFAC would serve as a fund
to provide emergency food assistance for unexpected and urgent food needs.”
Hanrahan, supra note 19, at 17-18 (emphasis in original).
218 Hanrahan, supra note 19, at 17-18.
219 Hanrahan, supra note 19, at 18.
220 Hanrahan, supra note 19, at 18.
221 Food for Peace by the Numbers. U.S. AGENCY FOR INT’L DEV. (Nov. 01,
2013), http://www.usaid.gov/foodaidreform/ffp-by-the-numbers; Food Aid
Reform, U.S. AGENCY FOR INT’L DEV. (NOV. 01, 2013), http://www.usaid.gov/
222 Food Aid Reform, U.S. AGENCY FOR INT’L DEV., supra note 221.
223 Dispute resolution scholars have recognized that regardless of the ultimate
outcome, if a signiﬁcant stakeholder is absent from a ﬁnal decision affecting
their interests, they will likely oppose the decision. Melling, supra note 13, at
224 The 9 Billion-People Question, ECONOMIST, Feb. 24, 2011, http://www.
225 Press Release, House Comm. on Foreign Affairs, supra note 208.
226 Press Release, House Comm. on Foreign Affairs, supra note 208.
227 Agustí-Panareda, supra note 169, at 24, 29-30.
228 Agustí-Panareda, supra note 169, at 29.
229 Agustí-Panareda, supra note 169, at 29-30.
230 Agustí-Panareda, supra note 169, at 29-30.
231 Inskeep, supra note 157 (concerning opposition to Bush’s proposals);
Abbott, supra note 123(concerning opposition to Obama’s proposals).
232 CONWAY, supra note 8.