Will climate change help or harm species listing?
| Author | Jessica B. Goldstein |
| Position | J.D. Candidate, May 2012, at American University Washington College of Law |
| Pages | 43-57 |
43 SUSTAINABLE DEVELOPMENT LAW & POLICY
While many know the effects climate change has on
the polar bear, few know that climate change also
affects the grizzly bear. On March 26, 2010, envi-
ronmental groups were victorious when the United States Fish
and Wildlife Service (“FWS”) reinstated the Endangered Spe-
cies Act (“ESA”) regulatory protections1 for the grizzly bear
(Ursus arcots horribilis) to comply with the decision in Greater
Yellowstone Coalition, Inc. v. Servheen.2 However, now that the
ESA can potentially be used to keep species listed due to ensu-
ing climate change threats, will FWS be more wary when ini-
tially listing species?
The 1973 Congress enacted the ESA with the view that an
endangered species’ value is immeasurable.3 Therefore, suppos-
edly a species with high costs of recovery and low economic
benefits receives the same treatment as a species with possibly
large benefits and low costs.4 However, budget constraints allow
only about 100 species to be listed each year and official prefer-
ences get top priority.5 An ESA official may hesitate to list a
species that, due to the threat of climate change, may never be
removed in light of the impact that species might have on the
budget.6
In the ESA and later amendments, Congress stressed the
importance of preserving the ecosystem.7 Scientists identified
that saving the habitat of a species increases the chances of spe-
cies surv ival.8 While a recent lawsuit mandated the co ntinued
listing of the grizzly bear due to climate change threats on an
important food source, it is unclear if FWS will modify initial
species listings in the future.
In 1975, the grizzly bear was listed as a threatened spe-
cies under the ESA.9 On March 29, 2007, FWS promulgated its
rule, declaring the Greater Yellowstone Area (“GYA”) grizzly
bear population a distinct population segment (“DPS”), thereby
removing it from protection under the ESA.10 The resulting
lawsuit was led by numerous environmental groups, jointly
known as the Greater Yellowstone Coalition (“GYC”).11 The
GYC sued members of the FWS along with the Secretary of the
Interior, Dirk Kempthorne,12 alleging four claims, two of which
succeeded.13
First, the GYC argued that the Service did not provide ade-
quate regulatory mechanisms to maintain the recovering griz-
zly bear population.14 The regulatory mechanisms in the 2007
Rule lacked teeth, depending only on guidelines, monitoring,
and good intentions for future action.15 This is problematic, as
a species removed from ESA protection needs an immediately
enforceable plan to keep the population stable, as it will be sus-
ceptible to new dangers.16
WILL CLIMATE CHANGE HELP OR HARM SPECIES
LISTING?
by Jessica B. Goldstein*
* Jessica B. Goldstein is a J.D. Candidate, May 2012, at American University
Washington College of Law.
The GYC al so argue d that the FWS did not adequately
consider climate change’s impact on the whitebark pine, an
important food source for grizzly bears.17 The whitebark
pine is threatened by climate change which has increased the
population of its predators, the pine nut beetle and the white
pine blister rust.18 However, the FWS concluded that the griz-
zly bears should be able to adapt to the loss of the whitebark
pine.19
U.S. District Judge Donald W. Molloy held that the FWS
failed to consider the potential impacts of global warming and
whether a dequate regulatory mechanisms existed.20 While the
FWS is considering an appeal, in the meantime, the case has
forced the FWS to keep the Greater Yellowstone Area grizzly
bear listed as a threatened species under the ESA.21
If the FWS has to consider the impacts of climate change
in its determinations under the ESA, this potentially opens the
door for the listing of a multitude of species. This case could
be the beginning of litigation by environmental groups to keep
species protected under the ESA due to the impacts of climate
change on a species’ habitat and food sources.22 While it might
appear that a population has recovered, a change in that spe-
cies’ environment or food source will leave it vulnerable.23
One concern is that after GYC v . Servheen, the FWS may be
more cautious in its initial decision to list a particular species
out of fear that it will never be removed due to climate change
arguments.24
While this may become an issue in the future as climate
change impacts increase, at least for now, the National Oceanic
and Atmospheric Administration (“NOAA”)25 does not seem
deterred by the ruling in GYC v. Serv heen. On March 16th,
2010, NOAA announced it is listing the eulachon (also known
as the Columbia River smelt) DPS as threatened due to global
warming and other factors pushing it towards extinction.26 It is
important to note, however, that Native American tribes asked
to have this fish listed in 2007 and it took two years before
NOAA proposed a rule.27 If climate change speeds up, other
species might be left behind.
Endnotes: Will Climate Change Help or Harm Species
Listing? continued on page 57
44SPRING 2010
13 Id. See Fish Facts, The End of the Line, available at http://endoftheline.
com/campaign/fish_facts/ (asserting that more recent studies from the FAO and
World Wildlife Fund indicate the state of world fisheries is even worse than
originally thought).
14 FINDINGS, supra note 12.
15 Id. See also Hansen, supra, note 8, at 225 (highlighting the Millennium
Assessment warnings of “non-linear” ecological changes, i.e., changes in air,
water, species, weather or land patterns that are abrupt and sudden due to “tip-
ping points” in the ecological equilibrium of several millennia).
16 See, e.g., Carl Bruch & Elizabeth Maruma Mrema, More Than the Sum of
Their Parts: Improving compliance with and enforcement of international envi-
ronmental agreements through synergistic implementation, THE ENVIRONMENTAL
FORUM, 2009 (discussing the synergistic implementation of Biodiversity-
Related MEAs at 27-29).
17 See, e.g., U.S. ENVIRONMENTAL PROTECTION AGENCY, REDUCING RISK: SETTING
PRIORITIES AND STRATEGIES FOR ENVIRONMENTAL PROTECTION 1 (1990).
18 See, e.g., CBD SECRETARIAT, GINCANA 3: BIOLOGICAL DIVERSITY AND CLIMATE
CHANGE 1 (2007).
19 John Ackerman, Climate Change, National Security, and the Quadren-
nial Defense Review: Avoiding the Perfect Storm, STRATEGIC STUDIES Q.,
Spring 2008, at 56 (quoting CENTER FOR NAVAL ANALYSIS (CNA) CORPORATION,
NATIONAL SECURITY AND THE THREAT OF CLIMATE CHANGE 6 (2007)).
20 See, e.g., Press Release, U.S. National Science Foundation, Future Risk
of Hurricanes: The Role of Climate Change (Oct. 8, 2008) (asserting that
increased violent weather will contribute to these problems), http://www.nsf.
gov/news/news_summ.jsp?cntn_id=112394&org=AGS (last visited Apr. 18,
2010); News Release, National Center for Atmospheric Research, Global
Warming Surpassed Natural Cycles in Fueling 2005 Hurricane Season, June 22,
2006, http://www.ucar.edu/news/releases/2006/hurricanes.shtml (last visited
Apr. 18, 2010).
21 See, e.g., Rajesh Chhabara, Climate change refugees seek new international
deal, CLIMATE CHANGE CORP., Dec. 27, 2008, http://www.climatechangecorp.
com/content.asp?contentid=5871 (last visited Apr. 18, 2010).
22 See, e.g., Lester Brown, Melting Mountain Glaciers Will Shrink Grain Harvests
in China and India, EARTH POLICY INSTITUTE, Mar. 20, 2008, http://www.earthpolicy.
org/index.php?/plan_b_updates/2008/update71 (last visited Apr. 18, 2010).
23 See, e.g., Damian Carrington, IPCC officials admit mistake over melting Hima-
layan glaciers, UK GUARDIAN, Jan. 20, 2010, http://www.guardian.co.uk/environ-
ment/2010/jan/20/ipcc-himalayan-glaciers-mistake (last visited Apr. 18, 2010).
24 See, e.g., THOMAS FRIEDMAN, HOT, FLAT AND CROWDED (2008); Lauren
Morello, New Study Predicts Massive Food Shortages by Century’s End, CLI-
MATEWIRE, Jan. 09, 2009.
25 See SUSAN FLETCHER, CONGRESSIONAL RESEARCH SERVICE, BIOLOGICAL DIVER-
SITY: ISSUES RELATED TO THE CONVENTION ON BIODIVERSITY (1995) (concluding
that biodiversity loss was real and a threat to U.S. interests and that broad
consensus existed with the President and Senate “after working with industry
and environmental groups to resolve problems with some treaty language”, and
affirming that “no new legislation would be needed to implement the treaty, as
current law is regarded as sufficient to carry out the treaty terms”).
26 CBD, supra note 1, pmbl.
27 See id. art. 1. See generally LYLE GLOWKA ET AL., A GUIDE TO THE CONVEN-
TION ON BIOLOGICAL DIVERSITY (1994) (Annotating the Convention).
28 CBD, supra note 1, art. 2.
29 See id. art. 10.
30 Id. art. 3. See also id. art. 15.1 (“Recognizing the sovereign rights of States
over their natural resources, the authority to determine access to genetic
resources rests with the national governments.”).
31 See, e.g., S. REP. NO. 103-30, at 5; IUCN, supra note 5, at 2; see also,
Desiree McGraw, The CBD – Key Characteristics and Implications for Imple-
mentation, RECIEL, Vol. 11(1), at 18-19 (2002).
32 Id. (quoting W. Lang, International Environmental Cooperation, in G.
SJOSTEDT & S. UNO, THE SWEDISH INSTITUTE OF INTERNATIONAL AFFAIRS, INTERNA-
TIONAL ENVIRONMENTAL NEGOTIATIONS: PROCESS, ISSUES AND CONTEXTS 19 (1993)).
33 See generally Memorandum of Record by Secretaries Christopher, Babbitt
and Espy to Senate Majority Leader George Mitchell (Aug. 16, 1994) (indicating
that the U.S. retains full sovereignty under the “framework” conception of the
CBD); President’s Message to the U.S. Senate transmitting the CBD, WEEKLY
COMP. PRES. DOC. (Nov. 19, 1993) (“There are hundreds of State and Federal
Laws and programs and an extensive system of [lands and waters] . . . considered
sufficient to effectively implement our responsibilities under the Convention.”).
34 See S. REP. NO. 103-30, at 6-16 (describing each article of the CBD).
Other important CBD articles deserve attention for their impacts upon the
conservation (and sustainable use) of biological diversity, including Article
5 (Cooperation); Article 7 (Identification and Monitoring); Article 9 (Ex-situ
Conservation); Article 11 (Incentive Measures); Article 12 (Research and
Training); Article 13 (Public Education and Awareness); and Article 25 (Sub-
sidiary Body on Scientific, Technical and Technological Advice).
35 For the current work program of the CBD, see Programmes, Convention on
Biological Diversity, http://www.cbd.int/programmes (last visited Apr. 18, 2010).
36 Over 160 of the 191 Parties to the Convention have completed their Biodi-
versity Action Plans under Article 6 and twenty-five parties have completed at
least one revision: Angola, Austria, Belize, Bhutan, Botswana, Brazil, Cuba,
Republic of Congo, Estonia, European Community, Finland, Indonesia, Japan,
India, Latvia, Madagascar, Morocco, Netherlands, Philippines, Singapore, St.
Vincent, Sweden, Thailand, United Kingdom and Vietnam.
37 The beauty of the U.S. federal system is not only its breadth and depth, but
also its advancement of U.S. biodiversity interests with multiple legal tools,
many of which have been borrowed by other countries and, in reality, by the
CBD. It is a long list, constantly evolving and most certainly not exclusive:
National Forest Management Act, 16 U.S.C. §§ 1600-1616 (1976) (explicit
“diversity” standard statute); National Park Service Organic Act, 16 U.S.C.
§§ 1 (1916) (protection of natural resources for future generations); National
Wildlife Refuge Administration Act, 16 U.S. §§ 668dd-668ee (1998); Marine
Sanctuaries Act, 16 U.S.C. §§ 1431-1445 (2000); Federal Land Management
and Policy Act, 43 U.S.C. §§ 1701-1784 (1976); Sikes Act (Department of
Defense lands and waters), 16 U.S.C. §§ 670g-670o (1974); Farm Bill provi-
sions (e.g., “Swampbuster” and Conservation Reserve Programs), 16 U.S.C.
§§ 3801, 3821-23, 3831-3836 (1985); Antarctic Conservation Act, 16 U.S.C.
§§ 2461-2466 (1979); Alaska National Interest Lands Conservation Act, 16
ment Act, 16 U.S.C. §§ 1451-1465 (1972); Outer-continental Shelf Lands Act,
43 U.S.C. §§ 1331-1376 (1953); Wilderness Act, 16 U.S.C. §§ 1131-1136
(1964); Endangered Species Act, 16 U.S.C. §§ 1531-1544 (1973); Lacey Act
16 U.S.C. §§ 701, 3371-78 (1900); Fish and Wildlife Coordination Acts, 16
U.S.C. §§ 661-666c, 670 (1934); Federal Aid in Wildlife Restoration Act, 16
U.S.C. §§ 669-669i (1937); Federal Aid in Fish Restoration Act, 16 U.S.C. §§
777-777l (1950); Land and Water Conservation Fund Act, 16 U.S.C. §§ 4601-
4611 (1990); National Environmental Education Act, 20 U.S.C. §§ 5501-10
(1995); Magnuson-Stevens Fishery Conservation and Management Act, 16
U.S.C. §§ 1801-1882 (1976); Federal Noxious Weeds Act, 7 U.S.C. §§ 2801-14
(2000); Federal Insecticide Fungicide Rodenticide Act, 7 U.S.C. §§ 136 (1947);
Clean Water Act, 33 U.S.C. §§ 1251-1387 (1972); Clean Air Act, 42 U.S.C.
§§ 7401(1970); Global Climate Change Prevention Act of 1990, 7 U.S.C. §§
6701-10 (2004); Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1407
(1972); Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712 (1918); Scenic and
Wild Rivers Act, 16 U.S.C. §§ 1271-1287 (1968); Wild Bird Conservation Act,
16 U.S.C. §§ 4901-4916 (1992); Tuna Conventions Act, 16 U.S.C. §§ 951-961
(1950); Great Lakes Fish and Wildlife Restoration Act, 16 U.S.C. § 941(1990);
Colorado River Basin Salinity 43 U.S.C. §§ 1571-1599 (1974); African Ele-
phant Conservation Act, 16 U.S.C. §§ 4201-4245 (2002); Rhinoceros and Tiger
Conservation Act, 16 U.S.C. §§ 5301(1994); National Trail System Act, 16
U.S.C. §§ 1241-51(2009); and others.
38 U.S. CONST. art. I., § 8; amend. X, XI; See also Susan George & William Snape,
State Endangered Species Acts, in ENDANGERED SPECIES ACT: LAW, POLICY AND PER-
SPECTIVES 345-59 (Donald C. Baur & Wm. Robert Irvin, eds., 2d ed. 2010).
39 See generally 42 U.S.C. § 7401(1970); 33 U.S.C. § 1251 (1972).
40 See Association of Fish and Wildlife Agencies, http://www.fishwildlife.org/
(last visited Apr. 18, 2010) (describing the different biodiversity-related activi-
ties done by the 50 + state fish and wildlife agencies).
41 See S. REP. NO. 103-30, at 6-7.
42 See generally cases sited supra, note 37, and particularly the Endangered
Species Act, National Forest Management Act, Wildlife Refuge Act, and the
National Environmental Policy Act.
43 See Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. §§ 9601-9675 (1980); Resource Conservation and Recovery
Act, 42 U.S.C. §§ 6901-6992k (1976).
ENDNOTES: JOINING THE CONVENTION ON BIOLOGICAL DIVERSITY continued from page 16
45 SUSTAINABLE DEVELOPMENT LAW & POLICY
44 See, e.g., The Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692
(1976); see generally Animal and Plant Health Inspection Service programs;
Food and Drug Administration nanotechnology policies; and the National
Genetic Resources Program.
45 16 U.S.C. §§ 4701-4751 (1996).
46 16 U.S.C. §§ 528-531 (1960) (providing that some public lands in the
United States are managed under the “multiple use/sustained yield” concept).
47 See National Environmental Policy Act, 42 U.S.C. §§ 4321; 40 C.F.R.
§ 1500. See, e.g., U.S. COUNCIL ON ENVIRONMENTAL QUALITY, INCORPORATING
BIODIVERSITY CONSIDERATIONS INTO ENVIRONMENTAL IMPACT ANALYSIS UNDER THE
NATIONAL ENVIRONMENTAL POLICY ACT (1993) [hereinafter CEQ]. See also CBD,
supra note 1, art. 7 (Identification and Monitoring); U.S. NATIONAL RESEARCH
COUNCIL, A BIOLOGICAL SURVEY FOR THE NATION (1993).
48 See American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act, Endangered Species Program, U.S. Fish and
Wildlife Service, http://www.fws.gov/endangered/tribal (last visited Apr. 18,
2010) (stating that “[m]any Indian lands have remained untouched by conven-
tional land use practices and therefore are an island of high quality ecosystems,
attracting many sensitive species.”). See also Dean B. Suagee, Cultural Rights,
Biodiversity and the Indigenous Heritage of Indian tribes in the United States,
in CULTURAL RIGHTS, CULTURAL WRONGS 81-102 (Halina Niec, ed., 1998).
49 These conventions, treaties, agreements and declarations include the North
American Agreement on Environmental Cooperation, 32 I.L.M. 1480 (1993);
the Convention on Nature Protection and Wildlife Preservation in the West-
ern Hemisphere, 161 U.N.T.S. 193 (1940); International Convention for the
Conservation of Atlantic Tunas, 20 U.S.T. 2887 (1966); the U.N. Framework
Convention on Climate Change, 31 I.L.M. 849 (1992); U.N. Convention to
Combat Desertification, 33 I.L.M. 1328 (1994); Convention on International
Trade in Endangered Species, 993 U.N.T.S. 243 (1975); Convention Concern-
ing the Protection of World Cultural and Natural Heritage, 11 I.L.M. 1358
(1975); Inter-American Biodiversity Information Network, International Coral
Reef Initiative, Convention on Wetlands of International Importance (Ramsar),
11 I.L.M. 963 (1975); Agreement Relating to Conservation and Management
of Straddling Stocks and Highly Migratory Species, 34 I.L.M. 1542 (1995);
Convention on Antarctic Marine Living Resources, 19 I.L.M. 841 (1982); Polar
Bear Treaty, 13 I.L.M. 13 (1976); Rio Declaration on Environment and Devel-
opment, 31 I.L.M. 874 (1992); Montreal Protocol on Substances that Deplete
the Ozone Layer, 26 I.L.M. 1550 (1987); Convention for the Protection and
Development of the Marine Environment of the Wider Caribbean Region, 22
I.L.M. (1983); International Convention for the Prevention of Pollution from
Ships (MARPOL), 12 I.L.M. 1319 (1973); Convention for Regulation of Whal-
ing, 161 U.N.T.S. 72 (1946); and others.
50 While more work is needed, the United States Congress has been at the fore-
front of international efforts to reform biodiversity-related aid programs under
both multilateral development banks such as the World Bank and U.S. federal
agencies such as the Agency for International Development. So-called “debt for
nature” swaps have also proven effective in advancing all three of the CBD’s
objectives.
51 CBD, supra, note 1, art. 14.1-2 (Article 14.2 contains an unused provision
that the U.S. would want to oversee pertaining to “studies” on “the issue of
liability and redress, including restoration and compensation, for damage to
biological diversity, except where such liability is a purely internal matter.”);
Anti-Deficiency Act, 31 U.S.C. § 1341 (1982). (prohibiting the making or
authorizing of any expenditure or obligation of any appropriations or funds in
excess of the amount available in the appropriation unless authorized by law).
52 See, e.g., WILLIAM J. SNAPE, III, BIODIVERSITY AND THE LAW 178-201 (1996)
(addressing how the National Environmental Policy Act has long been applied
in many biodiversity-related contexts).
53 40 C.F.R. § 1508.14 (2010) (providing that the term “human environment”
under the U.S. NEPA “shall be interpreted comprehensively to include the
natural and physical environment and the relationship of people with that envi-
ronment”).
54 See generally 42 U.S.C. § 4332(2) (2010).
55 42 U.S.C. § 4321 (2010).
56 42 U.S.C. § 4332(2)(F)-(H) (2010).
57 40 C.F.R. §§ 1500.3-6 (2010).
58 See CEQ, supra note 47.
59 40 C.F.R. § 1508.27 (2010).
60 See, e.g., Ctr. for Biological Diversity v. Nat’l Highway Transp. Safety
Admin, 508 F.3d 508, 523, 550 (9th Cir. 2007) (holding that environmental
assessment under NEPA inadequate for failing to discuss and analyze the
cumulative impact of motor vehicle efficiency standards on global warming
because, inter alia, “recent evidence shows that there have already been severe
impacts in the Arctic due to warming, including sea ice decline.”).
61 See 5 U.S.C. § 552 (2010) (establishing a foundation of open government in
the United States that acts, with strict exceptions, as a world model and would
advance U.S. and democratic interests if implemented at the CBD for biological
resources).
62 U.S. Council on Environmental Quality Regulations, 40 C.F.R. § 1500.1
(2010) (“NEPA procedures must insure that environmental information is
available to public officials and citizens before decisions are made and before
actions are taken. The information must be of high quality. Accurate scientific
analysis, expert agency comments, and public scrutiny are essential to imple-
menting” NEPA or any other sustainable development project. And, ultimately,
the goal “is not to generate paperwork – even excellent paperwork – but to fos-
ter excellent action.”).
63 CBD, supra, note 1, art. 2 (providing that all legal, scientific, economic, and
technical information feeds into a pattern of inevitable “use of components of
biological diversity,” ideally “in a way and at a rate that does not lead to the
long-term decline of biological diversity”).
64 Id. art. 14.1 (c), (d) (focusing on impacts and information to other coun-
tries).
65 See id. arts. 15.4, 15.7, 16.2, 16.3, 19.2.
66 Id. arts. 15.5, 19.3.
67 Richard Blaustein, Genetic Resources and the Convention on Biological
Diversity, 56 BIOSCIENCE 560, 560 (2006).
68 See Catherine J. Tinker, Introduction to Biological Diversity: Law, Institu-
tions, and Science, 1 Buff. J. Int’l Law 1, 16 (1994).
69 CBD, supra note 1, art. 15.2.
70 See id. arts. 16.2, 16.3, 16.5.
71 Id. art. 19.1.
72 See generally Raffaelo Gervigni, Incremental Cost in the CBD, Environ-
mental and Resource Economics 11: 217-241 (1998).
73 CBD, supra note 1, art. 20.2.
74 See SECRETARIAT OF THE CONVENTION ON BIOLOGICAL DIVERSITY, BONN GUIDE-
LINES ON ACCESS TO GENETIC RESOURCES AND FAIR AND EQUITABLE SHARING OF THE
BENEFITS ARISING OUT OF THEIR UTILIZATION iv (2002), http://www.cbd.int/doc/
publications/cbd-bonn-gdls-en.pdf (last visited Apr. 19, 2010) (“The Guidelines
identify the steps in the access and benefit-sharing process, with an emphasis on
the obligation for users to seek the prior informed consent of providers. They also
identify the basic requirements for mutually agreed terms and define the main
roles and responsibilities of users and providers and stress the importance of the
involvement of all stakeholders. They also cover other elements such as incen-
tives, accountability, means for verification and dispute settlement. Finally, they
enumerate suggested elements for inclusion in material transfer agreements and
provide and indicative list of both monetary and non-monetary benefits.”).
75 International Treaty on Plant Genetic Resources, art. 1.1, opened for signa-
ture Nov. 3, 2001, [hereinafter ITPGR]. See also ITPGR, arts. 10-13.
76 See generally David Cooper, International Treaty on Plant Genetic
Resources for Food and Agriculture, RECEIL, Vol. 11(1), at 1-16 (2002).
77 See also ACCESS AND BENEFIT SHARING ALLIANCE (ABSA), OBJECTIVES, SCOPE,
COMPLIANCE, FAIR AND EQUITABLE SHARING OF BENEFITS, AND ACCESS IN THE ABS
INTERNATIONAL REGIME (2008); Richard Blaustein, The United States and the
CBD after the WSSD, SCIENCE, TECHNOLOGY AND INNOVATION VIEWPOINTS, July
28, 2003.
78 See generally S. REP. NO. 103-30, at 4.
79 See generally BRUCE STEIN ET AL., PRECIOUS HERITAGE: THE STATUS OF BIO-
DIVERSITY IN THE UNITED STATES (2000) (assessing U.S. biological diversity;
updated data at www.natureserve.org (last visited Apr. 18, 2010)); U.N.
ENVIRONMENT PROGRAMME, GLOBAL BIODIVERSITY ASSESSMENT (1995) (assessing
biodiversity at the global level; for updated assessments, see http://earthwatch.
unep.net/biodiversity/index.php (last visited Apr. 18, 2010)); JARED DIAMOND,
COLLAPSE (2005); DAVID QUAMMEN, THE SONG OF THE DODO (1996); DAVID
QUAMMEN, MONSTER OF GOD (2003); and CHARLES BERGMAN, RED DELTA (2002)
(highlighting both global and U.S. biodiversity treasures and loss).
80 G.A. Res. 61/203, U.N. GAOR, 61st Sess., U.N. Doc. A/RES/61/203 (Jan.
19, 2007). See also 2010 Biodiversity Target, CBD, http://www.cbd.int/2010-
target/ (last visited Apr. 19, 2010) ( “To achieve, by 2010, a significant reduc-
tion of the current rate of biodiversity loss at the global, regional, and national
level, as a contribution to poverty alleviation and to the benefit of all life on
Earth.”); “Carta di Siracusa” on Biodiversity, G8, Environment Ministers Meet-
ing, Apr. 22, 2009; Blake M. Mensing, Countdown 2010, All Eyes on Oryza:
The Current Access and Benefits-Sharing Provisions of International Instru-
ments Will Keep the 2010 Biodiversity Target Out of Reach, 7:1 SCRIPTED
46SPRING 2010
166, 168 (2010), available at http://www.law.ed.ac.uk/ahrc/script-ed/vol7-1/
mensing.asp.
81 See, e.g., MICHAEL SCOTT, DALE GOBLE & FRANK DAVIS, THE ENDANGERED
SPECIES ACT AT THIRTY: RENEWING THE CONSERVATION PROMISE (2006); MICHAEL
SCOTT, DALE GOBLE & FRANK DAVIS, CONSERVING BIODIVERSITY IN HUMAN-DOM-
INATED LANDSCAPES (2006) (examining the core conservation challenges in the
United States).
82 See, e.g., International Centre for Trade and Sustainable Development,
Where Does TRIPS Go From Here?, INTELLECTUAL PROPERTY PROGRAMME, Aug.
7, 2008, http://ictsd.org/i/news/bridgesweekly/18031/ (last visited Apr. 18,
2010) (“Specific questions that would need to be worked out include how to
avoid erroneous patents using genetic resources; how to bring national regimes
into compliance on prior informed consent and access and benefit sharing on
mutually agreed terms; how patent offices would be equipped with the neces-
sary information to deal with the patentability issues in these areas; and whether
the patent system should maintain its role as a provider of innovation incentives.”)
83 See President’s Message to the U.S. Senate transmitting the CBD, WEEKLY
COMP. PRES. DOC. (Nov. 19, 1993); S. REP. NO. 103-30, at 4, 23.
84 See Letter from Republican Senators to Senate Majority Leader George
Mitchell (Aug. 5, 1994); Response from the State Department to letter from
Republican Senators to Senate Majority Leader George Mitchell (Aug. 8, 1994)
(on file with author).
85 Topics addressed in the MOR included: Benefits to Agriculture, Private Sec-
tor Involvement, The Convention may not be used in place of U.S. Laws, The
Convention does not prevent Amendment of Environmental Legislation, The
Convention does not Provide for a Private Right of Action, No Binding Dispute
Resolution, Effect of Amendments or Protocols on the United States.
86 See S. REP. NO. 103-30, at 23.
87 See Id. (Protecting intellectual property rights and technology transfer
“These understandings make clear that the Convention cannot be used as a
vehicle for compulsory technology transfer and that access to technology and
patents must be consistent with the ‘adequate and effective protection of intel-
lectual property rights.’”).
88 CBD, supra note 1, art. 15.5. See, e.g., Adrian Casas, Prior Informed Con-
sent in the Convention on Biological Diversity – Bonn Guidelines: National
Implementation in Colombia, SUSTAINABLE DEV. L. & POL’Y, Summer 2004, at
27-28.
89 See CBD, supra note 1, art. 19.1; International Treaty on Plant Genetic
Resources for Food and Agriculture (2009), available at ftp://ftp.fao.org/
docrep/fao/011/i0510e/i0510e.pdf.
90 The central issue for the U.S. biotechnology industry has changed from
whether the CBD harms its interests to how best to engage with the CBD.
91 See, e.g., National Research Council Report Examines Biotechnology’s
Benefits for U.S. Farmers, Biotechnoloy Industry Organization, http://www.bio.
org/news/pressreleases/newsitem.asp?id=2010_0414_05 (last visited Apr. 18,
2010); see generally Biotechnoloy Industry Organization, http://www.bio.org
(last visited Apr. 20, 2010).
92 See e.g., S. REP. NO. 103-30, at 35 (showing that Merck and Co., Inc.,
told the Senate in a 1994 letter supporting ratification of the Biodiversity
Treaty that, “the loss of biodiversity could literally mean lost opportunities for
researching the mechanisms of disease and discovering some important new
medicines. Plants, insects, microorganisms and marine organisms have yielded
some of the greatest pharmaceutical breakthroughs of this century.”); Id. at
28-29 (highlighting that the American Seed Trade Association told the Senate
of its “fundamental support for ratification of this important intellectual prop-
erty rights document.”); Id. at 36 (demonstrating that the Biotechnology Indus-
try Organization said it “believes that the key element of a fair and balanced
Biodiversity Convention is recognition of the value of the products of nature,
as well as the contributions made by persons and institutions that modify those
products into useful articles of commerce.”).
93 Convention on Biological Diversity, Conference of the Parties, Ninth Meet-
ing, Decision IX/12 (May 19, 2008), available at http://www.cbd.int/decision/
cop/?id=11655 [hereinafter COP 9].
94 World Trade Organization, Ministerial Declaration of 14 November 2001,
WT/MIN/(01)/DEC/1, 41 I.L.M. 746, at para. 19 (2002).
95 S. REP. NO. 103-30, at 22 (“The committee notes that a further safeguard is
contained in the Convention’s requirement that financial assistance be limited
to cover ‘agreed full incremental costs.’ Thus costs are limited to those projects
that are agreed between the GEF and the developing country, a process which,
as the administration has noted in the response to committee questioning ‘will
be driven in part by the availability of resources in GEF to fund such proj-
ects.’”).
96 Id. at 21-22 (“The United States will meet its financial obligation under the
Convention through voluntary contribution to the Global Environment Facil-
ity. The amount of the contribution will be determined through negotiations in
which the United States has an effective veto over funding levels that it deems
excessive. Moreover, this contribution itself requires a statutory appropriation,
in which the Senate must affirmatively concur. Thus, the Senate will have an
opportunity to participate fully in deciding the level of the U.S. financial contri-
butions under the Convention.”).
97 Id., at 23.
98 But see id., at 26-27 (showing the only formal opposition to the Treaty filed
before the Congress was the Minority Report of Senators Helms, Pressler, and
Coverdell, the three Republican members of the Senate who had voted against
the CBD for the “vague and unfinished nature of the treaty” when successfully
reported out of the Foreign Relations Committee 16-3).
99 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833
U.N.T.S. 397 (comprising customary international law and consisting of rights
and responsibilities to use oceans, defines territorial vs. non-territorial waters,
including the term “continental shelf,” and establishing guidelines for the
marine environment and associated natural resources). See, e.g., PEW OCEANS
COMMISSION, AMERICA’S LIVING OCEANS: CHARTING A COURSE FOR SEA CHANGE
80-81 (2003) (discussing the importance of both the UNCLOS and CBD for
long-term ocean conservation).
100 Statement of Jeffrey Burnam, Assistant Secretary of State (Apr. 17, 2002).
101 See, e.g., Remarks to the Corporate Council on Africa’s U.S.-Africa Busi-
ness Summit, 39 WEEKLY COMP. PRES. DOC. 759, 820 (June 26, 2003) (high-
lighting opportunities for agricultural biotechnology to alleviate hunger and
enhance agriculture in Africa); DR. AHMED DJOGHLAF, CBD EXECUTIVE SECRE-
TARY, WORLD FOOD SECURITY: THE CHALLENGES OF CLIMATE CHANGE AND BIOEN-
ERGY ( 2008); Elizabeth Shelburne, The Next Breadbasket?: How Africa Could
Save the World – And Itself, THE ATLANTIC, at 72-73 (2009).
102 Letter from Assistant Secretary of State Wendy Sherman to Senate Majority
Leader George Mitchell (Aug. 8, 1994).
103 See Intergovernmental Science-Policy Platform on Biodiversity and Eco-
system Services, http://ipbes.net (last visited Apr. 18, 2010); See also The Eco-
nomics of Ecosystems and Biodiversity, http://teebweb.org (last visited Apr. 18,
2010) (drawing attention to the economic benefits of healthy natural services).
104 Peer review process for ABS studies commissioned in accordance with deci-
sion IX/12, paragraph 13(a), (b) and (e), Convention on Biological Diversity,
available at http://www.cbd.int/abs/peerreview/.
105 See, e.g., Convention on Biological Diversity [CBD], Ad Hoc Open-Ended
Working Group on Access and Benefit-Sharing, CBD Doc. UNEP/CBD/WG-
ABS/7/3 (Feb 10, 2009); VALUING LOCAL KNOWLEDGE: INDIGENOUS PEOPLE AND
INTELLECTUAL PROPERTY RIGHTS (Stephen Brush & Doreen Stabinsky, eds., 1996).
106 Convention on Biological Diversity, Conference of the Parties, Sixth Meet-
ing, Decision VI/24 (Apr. 7, 2002), available at http://www.cbd.int/decision/
cop/?id=7198. See, e.g., Convention on Biological Diversity, Ad Hoc Open-
Ended Working Group on Access and Benefit-Sharing, CBD Doc. UNEP/CBD/
WG-ABS/5/INF/2 (July 20, 2007); Draft Programme, United Nations Environ-
ment Program, First Pan-African Workshop on ABS and Forests (June 22,
2009), available at http://www.unep.org/environmentalgovernance/LinkClick.
aspx?fileticket=
MiHTrVnLCIc%3D&tabid=385&language=en-US; Santiago P. Soplin &
Manuel Ruiz Muller, The Development of an International Regime on Access
to Genetic Resources and Fair and Equitable Benefit Sharing in the Context of
New Technological Developments, INITIATIVE FOR THE PREVENTION OF BIOPIRACY,
April 2009, http://www.biopirateria.org/documentos/Serie%20Iniciativa%2010.
pdf (last visited Apr. 19, 2010).
107 Blaustein, Genetic Resources and the CBD, supra note 67, at 563 (quoting
James Miller, Missouri Botanical Garden).
108 See Fifth Meeting of the Conference of the Parties serving as the Meeting
of the Parties to the Cartagena Protocol on Biosafety (COP-MOP 5), http://
www.cbd.int/doc/?meeting=MOP-05 (last visited Apr. 18, 2010) (including
topics such as: Access and Benefit Sharing, Strategic issues including 2010
biodiversity targets, Inland waters biodiversity, Marine and coastal biodiversity,
Mountain biodiversity, Protected areas, Sustainable use of biodiversity, Biodi-
versity and climate change, Forest biodiversity, Invasive alien species, Global
Taxonomy Initiative, Incentive measures, and others.).
109 See, e.g., Administrative Procedure Act, 5 U.S.C. § 702 (2010) (requiring
waiver of sovereign immunity for federal government to be sued in court).
110 See, e.g., Marjo Vierros, The Convention on Biological Diversity: Moving
From Policy to Implementation, SUSTAINABLE DEV. L. & POL’Y, Fall 2006, at
17-20.
47 SUSTAINABLE DEVELOPMENT LAW & POLICY
111 See IUCN, REPORT OF THE ELEVENTH GLOBAL BIODIVERSITY FORUM: EXPLORING
SYNERGY BETWEEN THE UN FRAMEWORK CONVENTION ON CLIMATE CHANGE AND
THE CONVENTION ON BIOLOGICAL DIVERSITY (1999).
112 See, e.g., SOVEREIGNTY INTERNATIONAL, INC., HOW THE CONVENTION ON BIO-
DIVERSITY WAS DEFEATED (1998) (hyping “land use policies required by the
treaty”). See also Letter from Bob Stallman, President, American Farm Bureau
Federation to Secretary of State Colin Powell (Nov. 11, 2004) (opposing bio-
safety protocol that the U.S. never needs to sign under the CBD).
113 See generally TONY WHITTEN ET AL., THE WORLD BANK AND BIODIVERSITY CON-
SERVATION (2008); E. CASTRO ET AL., MAPPING CONSERVATION INVESTMENTS (2001).
114 See Convention on Biological Diversity, Ad Hoc Open-Ended Working
Group Review of Implementation of the Convention, CBD Doc. UNEP/CBD/
WG-RI/2/5 (May 16, 2007) (funding for biodiversity projects have already
been approved by the GEF Council for countries such as Cameroon, Colombia,
Ecuador, Honduras, Mexico, Caribbean Islands, and Pacific Islands).
115 See S. REP. NO. 103-30, at 21-22 (deliberating on question of cost and selec-
tion of financial mechanism); see generally Global Environment Facility, http://
www.gefweb.org/biodiversity (last visited Apr. 20, 2010); Senate Question/
Answer No. 3.
116 See Letter from Assistant Secretary of State Richard Verma to Senate For-
eign Relations Committee John Kerry (May 11, 2009).
117 See ITPGR, Annex I (listing of crops covered under the Multilateral Sys-
tem); ITPGR Standard Material Transfer Agreement, art. 15.
118 President George W. Bush transmitted the ITPGR for ratification on July
7, 2008. Transfers under this “multilateral system” are to be accompanied by
a standard material transfer agreement, the current version of which was con-
cluded in June 2006. Provision of plant genetic resources from U.S. gene banks
is fully consistent with the Department of Agriculture’s long-standing general
practice of providing access to such plant genetic resources upon request. Rati-
fication of the treaty will provide U.S. agricultural interests with similar access
to other parties’ gene banks, thus helping U.S. farmers and researchers sustain
and improve their crops and promote food security. The Treaty may be imple-
mented under existing U.S. authorities.
119 See CBD, supra note 1, art. 32; The United States participated in the nego-
tiation of the text and the subsequent preparations for entry into force under
the Protocol, as well as its first COP. Article 32 of the CBD makes it clear not
only that non-parties to the treaty cannot be parties to the protocol, but also that
parties to the treaty can also choose not to be parties to a CBD protocol. In any
event, the Biosafety Protocol is essentially limited to: a) advanced informed
agreements for living modified organisms (“lmo”) to be introduced into the
environment; b) lmos commodities need documentation of lmo possibility in
shipment; and c) a savings clause stating that existing international agreements
on intellectual property rights or liability are presumed unchanged.
120 It should be noted that in October 2000, the U.S. got beyond gridlock and
ratified 34 treaties by unanimous consent including the CBD-related Desertifi-
cation Convention. This demonstrates progress can be made.
121 Ahmed Djoghlaf, Executive Secretary, Convention of Biological Diversity,
Statement at the United Nations Information Centres Seminar on the Interna-
tional Year of Biodiversity (Mar. 2, 2010), available at http://www.cbd.int/
doc/speech/2010/sp-2010-03-02-unic-en.pdf (quoting Prime Minister Yukio
Hatoyama of Japan, “Our modern industrial activities and lifestyles have
brought a wealth of benefits to our lives; at the same time, though, we must
realize that they are also shortening the time remaining for humans to continue
living the civilized lives they do today.”).
10 Id. (emphasizing that a clone is like a genetic twin born at a different time
and therefore this process should not be equated with genetic engineering).
11 ScientificAmerican.com, Are We Eating Cloned Meat?, http://www.scienti-
ficamerican.com/article.cfm?id=are-we-eating-cloned-meat (last visited Apr. 5,
2010) (reporting that critics of the FDA’s findings emphasize that the Univer-
sity of Connecticut study that the FDA relied on, only evaluated the meat and
milk of six animals and that more studies were necessary to evaluate the risks
posed by cloned animal products).
12 Center for Food Safety, et al., Citizen Petition Before the United States Food
and Drug Administration, Petition Seeking Regulation of Cloned Animals,
(Oct. 12, 2006), available at http://www.centerforfoodsafety.org/pubs/ cloned_
animal_petition10-12-06.pdf (emphasizing the scientific uncertainty about the
effect animal cloning will have on disease rates).
13 See id. (making its request under the U.S. Constitution, the Administrative
Procedure Act, and the FDA’s own regulations).
14 See Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 360 (2007) (lay-
ing out the requirements imposed by the act, including a rigorous pre-market
review process that would analyze the potential risks posed by animal cloning).
15 Andrea Thompson, Cloned Milk and Meat: What’s the Beef?, LIVE SCI., Jan.
9, 2008, http://www.livescience.com/health/080109-animal-cloning.html (quot-
ing Jaydee Hanson, a spokesman for the Center for Food Safety, who pointed
out the industry participation and noted that though the studies did not reveal
anything harmful in the cloned meat that “[w]e shouldn’t see what the effects
are by going ahead and feeding them to humans just in case there aren’t any,”
and that the FDA’s risk assessment was poorly done).
16 Compare U.S. Food and Drug Admin., Animal Cloning: A Risk Assess-
ment, Jan. 15, 2008, http://www.fda.gov/downloads/AnimalVeterinary/
SafetyHealth/AnimalCloning/UCM124756.pdf (last visited Apr. 12, 2010)
with Michael Hansen, Comments of Consumers Union to US Food and Drug
Administration on Docket No. 2003N-0573, Draft Animal Cloning Risk
Assessment, http://www.consumersunion.org/pdf/FDA_clone_comments.pdf
(last visited Apr. 12, 2010) (attacking the FDA because its “conclusions of
safety appear to be based on data on milk from 43 cow clones, and data on beef
from 16 cow clones, and 5 pigs.”).
17 Biotechnology Industry Organization, Lobbying Disclosure Report for Q1 of
2008, available at http://disclosures.house.gov/ld/pdfform.aspx?id=300058671
(listing FDA Risk Assessment on Cloning, H.R. 992, and S. 414 as part of the
Biotechnology Industry Organization’s lobbying efforts).
18 See Heidi Stevenson, Bananas Are Dying, Killed by Corporate Monoculture,
(June 2, 2008), http://www.naturalnews.com/023339_banana_bananas_disease.
ENDNOTES: LIVESTOCK ANIMAL CLONING: THIS STEAK IS GIVING ME DÉJÀ VU continued from page 18
html (outlining how monocropping caused the extinction of an entire species of
banana by exposure to Panama disease).
19 EPA.gov, Regulatory Definitions of Large CAFOs, Medium CAFOs, and
Small CAFOs, http://www.epa.gov/npdes/pubs/sector_table.pdf (noting the cat-
egorical minimum numbers of confined animals for an industrial farm, includ-
ing the staggering number of 125,000 chickens to earn the large CAFO label).
20 See, e.g., Ephraim Leibtag, AMBER WAVES, Corn Prices Near Record High,
But What About Food Costs? (Feb. 2008), available at http://www.ers.usda.
gov/AmberWaves/February08/Features/CornPrices.htm (stating that on aver-
age it takes “7 pounds of corn to produce 1 pound of beef, 6.5 pounds of corn
to produce 1 pound of pork, and 2.6 pounds of corn to produce 1 pound of
chicken.”).
21 SierraClub.org, Concentrated Animal Feeding Operations, Human Health,
Community and Environmental Impacts, http://iowa.sierraclub.org/CAFO_
impacts.pdf (last visited Apr. 7, 2010) (stating that “[b]ecause CAFOs concen-
trate large numbers of animals close together, they facilitate rapid transmission
and mixing of viruses.”).
22 See id. (citing the Union of Concerned Scientist’s estimate that eighty-seven
percent of the antibiotics used in the U.S. are fed to livestock).
23 See MacKenzie, supra note 7 (laying out how reductions in biodiversity
results in the increase of disease rates); Physicians for Social Responsibil-
ity, U.S. Meat Production, http://www.psr.org/chapters/oregon/safe-food/
industrial-meat-system.html (last visited Apr. 7, 2010) (describing how the
host mothers of cloned animals require an increase in antibiotics and discussing
how antibiotic-resistant diseases are being incubated in CAFOs); CONVENTION
ON BIOLOGICAL DIVERSITY, BIODIVERSITY AND AGRICULTURE 12 (2008) (presenting
data gathered by the Food and Agriculture Organization that shows that “less
than 14 species—including cattle, goats, sheep, buffalo and chickens—account
for 90% of global livestock production.). The report also noted that in recent
years there has been “alarming genetic erosion within these species” and that a
breed is being lost each month. Id.
24 See Friends of the Earth, Cloned Food: What it Means to Eat Meat and
Dairy from Cloned Animals, http://www.foe.org/sites/default/files/FOE_
Cloned_Food_Factsheet.pdf (reiterating that monogenetic livestock herds are at
risk of high losses due to the lack of biodiversity’s protection).
25 David Gutierrez, FDA Admits Cloned Meat, Milk May Have Already Entered
Food Supply, NAT. NEWS, Jan. 29, 2009, http://www.naturalnews.com/025467_
food_meat_cloned.html (last visited Apr. 12, 2010) (emphasizing that the
voluntary ban on cloned animal products did not include a clone’s offspring and
that those products could have made their way onto American dinner plates).
48SPRING 2010
26 See Press Release, Mikulski Renews Call for Labeling of Cloned Food (Jan.
22, 2008), http://mikulski.senate.gov/record.cfm?id=290888 (last visited Apr.
12, 2010) (mentioning DeLauro’s companion bill in the discussion of Senator
Mikulski’s original introduction of the Cloned Food Labeling Act).
27 Cloned Food Labeling Act, S. 414, 110th Cong. (2007), available at
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_
bills&docid=f:s414is.txt.pdf.
28 See id.
29 See Findarticles.com, Business Wire, BIO Says, Proposed ‘Cloned Food
Labeling Act’ Will Mislead Consumers, http://findarticles.com/p/articles/
mi_m0EIN/is_2007_Jan_26/ai_n17155461/ (Jan. 26, 2007) (quoting BIO’s
CEO and President’s reaction to the introduction of the Cloned Food Labeling
Act, “[l]abels that are misleading to consumers are unlawful. To require the
labeling of foods that are indistinguishable from foods produced through tradi-
tional methods–as Sen. Mikulski’s proposal does–would mislead consumers by
falsely implying differences where none exist. It also risks diverting attention
from important safety and nutritional information.”). See also BIO Fact Sheet,
supra note 4 (revealing that the major animal cloning technology companies
are planning to create a clone registry to provide an option for clone-free claims
to be verified, but emphasizing that this registry is meant to preserve consumer
choice rather than being based on safety or nutritional concerns).
30 See Govtrack.us, S. 414: Cloned Food Labeling Act, http://www.govtrack.us/
congress/bill.xpd?bill=s110-414 (last visited Apr. 12, 2010) (showing that the last
action taken on the Cloned Food Labeling Act was its referral to committee).
31 See Govtrack.us, H.R. 992: Cloned Food Labeling Act, http://www.gov-
track.us/congress/bill.xpd?bill=h110-992 (last visited Apr. 12, 2010) (laying
out the status of the House version of the Cloned Food Labeling Act).
32 See Pew Initiative Poll: Americans’ Knowledge of GM Foods Remains Low
(Nov. 7, 2005), available at http://pewagbiotech.org/research/2005update/
(indicating that two thirds of Americans are uncomfortable with animal clon-
ing). See also Gutierrez, supra note 25 (listing Smithfield Foods, General Mills,
Campbell Soup, Nestle, California Pizza Kitchen, Supervalu, Kraft Foods and
Tyson Foods, as companies that have pledged not to use cloned animal prod-
ucts based on polling showing that the majority of consumers do not want to eat
cloned animal products).
33 Bruce I. Knight, Under Secretary, U.S. Dep’t Agric., Animal Cloning:
Transitioning from the Lab to the Market 3-4 (Mar. 5, 2008), available at
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5067983
(outlining the steps the National Organic Program and the National Organic
Standards Board have taken to list animal cloning technology in the “Excluded
Methods” of the national organic labeling program).
34 Tiffany Sharples, Your Steak — Medium, Rare or Cloned?, TIME, Feb.
17, 2008, http://www.time.com/time/health/article/0,8599,1714146,00.
html?imw=Y (stating that the high cost will most likely mean that people will
not be eating a clone directly, but rather their offspring).
1 Petition for Water Quality Criteria for Endocrine Disrupting Chemicals
Before the EPA, Center for Biological Diversity (Jan. 10, 2010), available at
http://www.biologicaldiversity.org/campaigns/pesticides_reduction/endocrine_
disruptors/pdfs/EPA_304_EDC_petition.pdf.
2 Nat’l Inst. of Envl. Health Sciences (“NIEHS”), Environmental Agents:
Endocrine Disruptors, http://www.niehs.nih.gov/health/topics/agents/endocrine/
(last visited Apr. 12, 2010).
3 Id. (providing studies, reports, and general information).
4 See NIEHS, ENDOCRINE DISRUPTORS 1 (2007) http://www.niehs.nih.gov/
health/docs/endocrine-disruptors.pdf (providing an overview of how endocrine
disrupters function) (last visited Apr. 20, 2010).
5 See id.
6 See id.
7 33 U.S.C. § 1251(a) (2006).
8 33 U.S.C. § 1251(a)(2).
9 33 U.S.C. §§ 1313-1314.
10 33 U.S.C. § 1314(a)(1).
11 33 U.S.C. § 1314(a)(2).
12 33 U.S.C. § 1313(a)(3).
13 Water Quality Standards, 40 C.F.R. § 131.6 (2010).
15 33 U.S.C. § 1313(d)(1)(A).
16 33 U.S.C. § 1313(d)(1)(C).
17 33 U.S.C. § 1314(a)(1).
18 See Our Children’s Earth Found. v. EPA, 506 F.3d 781, 785 (9th Cir. 2007)
(holding that the EPA does not have discretion to ignore the technology-based
criteria).
19 See, e.g., Christian G. Daughton, “Emerging” Chemicals as Pollutants in
the Environment: a 21st Century Perspective, 23 RENEWABLE RES. J. 6 (2005)
(discussing the emergence of new chemical pollutants).
20 See generally Pharmaceuticals in the Nation’s Water: Assessing Potential
Risks and Actions to Address the Issue: Hearing Before the Subcomm. on
Trans. Safety, Infrastructure Sec., & Water Quality of the S. Comm. on Env’t
& Pub. Works, 111th Cong. (2008) (statement of J. Sass, Senior Scientist, Nat.
Res. Def. Council) [hereinafter Sass Testimony] (providing general informa-
tion on PPCPs); Daughton, supra note 19; Mark Alpert, Fighting Toxins in the
Home: Everyday Materials May Pose Health & Environmental Threats, 298
SCI. AM. 46 (2008).
21 See NIEHS Report, supra note 4, at 1-2 (describing some products and
chemicals that contain EDCs).
22 See Sass Testimony, supra note 20, at 8-9 (discussing health risks of low
dose exposure to EDCs).
23 See id., at 2-4 (discussing the ways in which EDC’s enter the environment).
24 See id.
25 “Spray-drift” describes the phenomenon of pesticides drifting beyond the
area to which they were intended to be applied. See U.S. EPA, Pesticides: Topi-
cal & Chemical Fact Sheets: Pesticide Spray and Dust Drift, (Dec. 2009), http://
www.epa.gov/pesticides/factsheets/spraydrift.htm (last visited Apr. 20, 2010).
26 See OW/ORD Emerging Contaminants Workgroup, Aquatic Life Criteria
for Contaminants of Emerging Concern, Part I, General Challenges and Rec-
ommendations, 2-4 (EPA, White Paper, June 3, 2008) (explaining why EPA is
concerned with CECs), available at http://www.epa.gov/waterscience/criteria/
library/sab-emergingconcerns.pdf [hereinafter EPA White Paper].
27 See Sass Testimony, supra note 20, at 2-4 (discussing the source of PPCP’s
and the ways in which they enter the environment).
28 See, e.g., id. (discussing the detection, inter alia, of antibiotics, anti-convul-
sants, mood stabilizing drugs, and pharmaceuticals and personal care products).
29 See, e.g., id., at 2-5 (discussing health effects on animals and humans).
30 Jeff Donn, Martha Mendoza & Justin Pritchard, Pharmaceuticals Lurking in
U.S. Drinking Water, Associated Press, Mar. 10, 2008, http://www.msnbc.msn.
com/id/23503485/ (last visited Apr. 20, 2010).
31 Id.
32 See JENNIFER A. JENKINS, ET AL., EFFECTS OF WASTEWATER DISCHARGES ON
ENDOCRINE AND REPRODUCTIVE FUNCTION OF WESTERN MOSQUITOFISH (GAMBUSIA
SPP.) AND IMPLICATIONS FOR THE THREATENED SANTA ANA SUCKER (CATOSTOMUS SAN-
TAANAE), 2 (U.S. Dept. of Interior & U.S. Geological Survey Open-File Report
2009-1097) (rev. May 2009), available at http://pubs.usgs.gov/of/2009/1097/
pdf/OF2009-1097.pdf.
33 ROBERT J. GILLIOM, ET AL., THE QUALITY OF OUR NATION’S WATERS—PES-
TICIDES IN THE NATION’S STREAMS AND GROUND WATER 1992-2001, 9 (U.S.
Geological Survey, Circular 1291, 2007), available at http://pubs.usgs.gov/
circ/2005/1291/pdf/circ1291_front.pdf.
34 Id.
35 Endangered Species Act, 16 U.S.C. §§ 1531-1544 (2006).
36 16 U.S.C. § 1532(19).
37 50 C.F.R. §17.3.
38 See generally Susan Jobling, et al., Wild Intersex Roach (Rutilus rutilus)
Have Reduced Fertility, 67 BIOLOGY OF REPROD. 515, 515 (2002) (finding that
EDC-caused altering of sex characteristics leads to reduced reproductive abil-
ity).
39 See, e.g., J.M. Lazorchak & M.E. Smith, National Screening Survey of
EDCs in Municipal Wastewater Treatment Effluents, EPA/600/R-04/171
(2004); Karl Fent, et al., Review: Ecotoxicology of Human Pharmaceuticals, 76
AQUATIC TOXICOLOGY 122 (2006).
40 Jenkins et al., supra note 32, at 2 (summarizing that the greatest exposure
and effect of EDC’s was found at wastewater effluent sources).
ENDNOTES: ENDOCRINE-DISRUPTING CHEMICAL POLLUTION continued from page 22
49 SUSTAINABLE DEVELOPMENT LAW & POLICY
41 Jenkins et al., supra note 32, at 39
42 Jenkins et al., supra note 32, at 39.
43 Jenkins et al., supra note 32, at 39.
44!!See PETER L. TURTLE & ERIK L. ORSAK, LAS VEGAS WASH WATER QUALITY
AND IMPLICATIONS TO FISH AND WILDLIFE 4-5 (U.S. Fish & Wildlife Serv., FFS
No. 1F27 and 1F31, Nov. 1, 2002), available at http://www.fws.gov/pacific/
ecoservices/envicon/pim/reports/LasVegas/LasVegasWash/Final_Las_Vegas_
Wash_Study.pdf.
45 Id. at 4.
46 Id. at 28.
47 Id. at 29.
48 Id. at 32.
49 Id. at 29.
50 United States Geological Service, Endocrine Disruption in Lake Mead,
http://nevada.usgs.gov/water/projects/mead_endocrine.htm (last visited May 3,
2010).
51 Endangered and Threatened Wildlife and Plants; Determination of Endan-
gered Status and Critical Habitat for the Desert Pupfish, 50 C.F.R. § 17 (1986).
52 50 C.F.R. § 17.
53 See JENNIFER A. JENKINS & RASSA O. DRAUGELIS-DALE, BIOINDICATORS FROM
MOSQUITOFISH (GAMBUSIA AFFINIS) SAMPLED FROM THE IMPERIAL VALLEY IN SOUTHERN
CALIFORNIA, 1 (U.S. Geological Survey Open-File Report 2006-1307, 2006).
54 Id.
55 S.L. Goodbred, et al., Evidence of Endocrine Disruption in Western Mos-
quitofish (Gambusia affinis), 93 (Imperial Valley, California, U.S. Fish & Wild-
life Serv., 2006).
56 See Jenkins, supra note 33, at 20-21.
57 See id. at 10.
58 Id. at 38.
59 Jennifer Adibi, et al., Maternal Urinary Metabolites of Di-(2-Ethylhexyl)
Phthalate in Relation to the Timing of Labor in a U.S. Multicenter Pregnancy
Cohort Study, 169 AM. J. EPIDEMIOLOGY, 1015, 1015 (2009).
60 See id.
61 Gayle C. Windham, et al., Exposure to Organochlorine Compounds and
Effects on Ovarian Function, 16 EPIDEMIOLOGY182, 182 (2005).
62 Heidi Blanck, et al., Age at Menarche and Tanner Stage in Girls Exposed In
Utero and Postnatally to Polybrominated Biphenyl, 11 EPIDEMIOLOGY 641, 641 (2000).
63 Michele Marcus, The Michigan PBB Cohort 20 Years Later: Endocrine Dis-
ruption? 1 (2000), available at http://www.epa.gov/ncer/science/endocrine/pdf/
humanhealth/r825300_marcus_0415.pdf.
64 Ida N. Damgaard, et al., Persistent Pesticides in Human Breast Milk and
Cryptorchidism, 114 ENVTL. HEALTH PERSPECTIVES 1133, 1133 (2006).
65 VICTORIA HOLT, ET AL., FINAL REPORT: PERSISTENT ORGANIC POLLUTANTS AND
ENDOMETRIOSIS RISK, (U.S. EPA 2007), available at http://cfpub.epa.gov/ncer_
abstracts/index.cfm/fuseaction/display.abstractDetail/abstract/2361/report/F.
66 Neculai Codru, et al., Diabetes in Relation to Serum Levels of Polychlori-
nated Biphenyls and Chlorinated Pesticides in Adult Native Americans, 115
ENVTL. HEALTH PERSPECTIVES 1442, 1442 (2007).
67 EPA White Paper, supra note 26, at 2.
68 EPA, WATER QUALITY STANDARDS HANDBOOK 3-3 (2nd ed. 1994), available at
http://www.epa.gov/waterscience/standards/handbook/handbookch3.pdf.
69 See id.
70 Id. at 3-4.
71 See Emily Willingham, Endocrine-Disrupting Compounds and Mixtures:
Unexpected Dose-Response, 46 ARCHIVES OF ENVTL. CONTAMINATION & TOXICOL-
OGY 265, 265 (2004) (finding that small doses can result in large changes when
combined with other compounds).
72 CHARLES E. STEPHAN, ET AL., GUIDELINES FOR DERIVING NUMERICAL NATIONAL
WATER QUALITY CRITERIA FOR THE PROTECTION OF AQUATIC ORGANISMS AND THEIR
USES, 18 and 57 (U.S. EPA, 1985).
73 Id.
74 Andrea C. Gore, et al., Endocrine Disruption for Endrocrinologists (and
Others), 147 ENDOCRINOLOGY S1, S1 (2006).
75 Stephan, supra note 72, at 54.
76 Notice of Availability of Final Aquatic Life Criteria Document for Tributyl-
tin, 69 Fed. Reg. 342, 343 (Jan. 5, 2004).
77 Id.
78 See Notice, id. (noting tributyltin’s toxicity).
79 EPA White Paper, supra note 27, at 3.
80 Stephan, supra note 72, at 27.
81 See 33 USC §§ 1314(a)(1)-(2) (mandating that the EPA periodically update
its water quality criteria to “reflect the latest scientific knowledge”).
1 See Michael B. Gerrard, Introductory Comments: The Current State of Cli-
mate Change Law, SUSTAINABLE DEV. L. POL’Y, Winter 2010, at 2.
2 See Petition, Center for Biological Diversity, Petition for Revised pH Water
Quality Criteria under Section 304 of the Clean Water Act, 33 U.S.C. § 1314,
to Address Ocean Acidification (Dec. 18, 2007), 1, available at http://www.
biologicaldiversity.org/programs/oceans/pdfs/section-304-petition-12-18-07.pdf
[hereinafter Petition].
3 See Clean Water Act Section 303(d): Notice of Call for Public Comment on
303(d) Program and Ocean Acidification, 75 Fed. Reg. 13538 (Mar. 22, 2010),
[hereinafter Call for Public Comment].
4 See Petition, supra note 2 at 6.
5 See id.
6 See Sarah R. Cooley & Scott C. Doney, Anticipating ocean acidification’s
economic consequences for commercial fisheries, Environmental Research Let-
ters (2009), 2-3, available at http://iopscience.iop.org/1748-9326/4/2/024007/.
7 See id. at 2-5 (explaining that the loss of revenue from depleted fish stocks
would jeopardize the jobs of fishermen, those who buy their catch to sell, and
the travel and recreation industries that rely on marine biodiversity to attract
tourists).
8 See Petition, supra note 2 at 1.
9 See id. at 2.
10 See Press Release, Center for Biological Diversity, EPA Agrees to Review
Ocean Acidification Impacts Under Clean Water Act: Agency Will Analyze
Effects of CO2 Emissions on Water Quality (Jan. 27, 2009), available at
http://www.biologicaldiversity.org/news/press_releases/2009/ocean-acidifica-
tion-01-27-2009.html; Ocean Acidification and Marine pH Water Quality Crite-
ria, 74 Fed. Reg. 17484 (Apr. 15, 2009).
11 See Press Release, Center for Biological Diversity, Lawsuit Filed Against
Environmental Protection Agency for
Failure to Combat Ocean Acidification (May 14, 2009), available at http://
www.biologicaldiversity.org/news/press_releases/2009/ocean-acidifica-
tion-05-14-2009.html.
ENDNOTES: USING THE CLEAN WATER ACT TO PROTECT OUR OCEANS' BIODIVERSITY continued from page 23
12 See Ctr. for Biological Diversity v. E.P.A, No: 2:09cv00670 (W.D. Wash.
filed May 14, 2009); see generally Andy Hosaido, Environmental Litigation
Standing After Massachusetts v. EPA: Center for Biological Diversity v. EPA,
SUSTAINABLE DEV. L. POL’Y, Fall 2009, at 30 (discussing the potential impact of
Clean Water Act based litigation to combat the effects of climate change).
13 See Press Release, Center for Biological Diversity,!EPA Solicits Input on
Ocean Acidification and Carbon Dioxide Limits Under Water Pollution Law
(Mar. 22, 2010), available at http://www.biologicaldiversity.org/news/press_
releases/2010/ocean-acidification-03-22-2010.html; Call for Public Comment,
supra note 2.
14 33 U.S.C. § 1314(a)(2)(B) (2009).
15 See Call for Public Comment, supra note 3.
16 See U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21st
Century (2004).
17 See id.
18 See Call for Public Comment, supra note 3.
19 See Robin Kundis Craig, The Clean Water Act on the Cutting Edge: Cli-
mate Change and Water Quality Regulation, 24 NATURAL RES. & ENV’T, 14, 17
(2009) (explaining that most NPDES permits rely on technology-based effluent
limitations, which may not be sufficient for water quality damaged by ocean
acidification).
20 See id. at 18.
21 See id. (discussing the ability of the CWA to regulate airborne emissions as
it has for airborne mercury deposits, but recognizing it would be financially and
logistically difficult and that the Clean Air Act would be a more effective tool
for airborne carbon dioxide emissions).
22 See Petition, supra note 2 at 6 (noting that fifty percent of anthropogenic
carbon dioxide emissions since the industrial revolution have already been
absorbed by the oceans).
50SPRING 2010
VI/24, available at http://www.cbd.int/decision/cop/?id=7198. See also Bonn
Guidelines, http://www.cbd.int/abs/bonn.shtml (last visited May 4, 2010).
7 A significant amount of literature is now being written about the IR. I par-
ticularly recommend Kathryn Garforth & Jorge Cabrera Medaglia, Sustain-
able Biodiversity Law: Global Access, Local Benefits, ICFAI J. INT’L L., Oct.
2005, Vol. IV, No. 4; MIRIAM DROSS & FRANZISKA WOLFF, BFN-SKRIPTEN, NEW
ELEMENTS OF THE INTERNATIONAL REGIME ON ACCESS TO GENETIC RESOURCES AND
BENEFIT SHARING- THE ROLE OF CERTIFICATES OF ORIGIN (2005); Miriam Dross &
Franziska Wolff, Do we need a new access and benefit-sharing instrument?,
Y.B. OF INT’L ENV’T L., 2004, Vol. 15; Jorge Cabrera Medaglia, Las negocia-
ciones sobre el Régimen Internacional de acceso a recursos genéticos y distri-
bución de beneficios: opciones para un país en desarrollo, PUENTES, May-June
2004, Vol V, No. 3; Tim Hodges & Anne Daniel, Promises and Pitfalls: a First
Step on the Road to the ABS International Regime, RECIEL, 2005, Vol. 14, No.
2; Tomme Young, Opciones y Procesos de desarrollo de un Régimen Interna-
cional sobre Acceso y Distribución de Beneficios: Manual de Resumen para las
delegaciones de la CBD (on file with author); BILL BOWEN, THE ABS PROJECT,
IUCN, DEVELOPING AN EFFECTIVE INTERNATIONAL REGIME FOR ACCESS AND BENEFIT
SHARING FOR GENETIC RESOURCES: USING MARKET-BASED INSTRUMENTS (2004).
8 G.A. Res. 57/260, U.N. Doc. A/RES/57/260 (Dec. 20, 2002). Although
the language of the Summit refers only to benefit-sharing, the meeting on the
Convention’s Program of Work (Montreal, Mar. 2003) recommended that the
Working Group on ABS consider, at its second meeting, the process, nature,
scope, elements, and modalities for an international regime on access to genetic
resources and benefit-sharing.
9 World Summit on Sustainable Development, Johannesburg, S. Afr., Aug.
26-Sep. 4, Plan of Implementation of the World Summit on Sustainable Devel-
opment,¶ 42, U.N. Doc. A/CONF.199/20.
10 Seventh Ordinary Meeting of the Conference of the Parties to the Conven-
tion on Biological Diversity, Kuala Lumpur, Malay., Feb. 9-20, 2004, Access
and benefit-sharing as related to genetic resources, ¶ D, U.N. Doc. UNEP/
CBD/COP/DEC/VII/19 (Feb. 20, 2004).
11 Id.
12 Id.
13 Eighth Ordinary Meeting of the Conference of the Parties to the Convention
on Biological Diversity, Curitiba, Braz., Mar. 20-31, 2006, Access and benefit-
sharing, U.N. Doc. UNEP/CBD/COP/DEC/VIII/4 (Jun. 15, 2006). See www.
cbd.int for information about the IR negotiating process.
14 See Fifth Meeting of the Ad Hoc Open-ended Working Group on Access
and Benefit-sharing, http://www.cbd.int/wgabs5/ (last visited May 4, 2010).
15 See Sixth Meeting of the Ad Hoc Open-ended Working Group on Access
and Benefit-sharing, http://www.cbd.int/wgabs6/ (last visited May 4, 2010).
16 Ninth Meeting of the Conference of the Parties to the Convention on
Biological Diversity, Bonn, Ger., May 19-30, 2008, Access and benefit-sharing,
U.N. Doc. UNEP/CDB/COP/DEC/IX/12 (Oct. 9, 2008).
17 Eighth Meeting of The Ad Hoc Open-Ended Working Group on Access
and Benefit-Sharing, Montreal, Canada, Nov. 9-15, 2009, Annex 1, U.N. Doc.
UNEP/CBD/WG-ABS/8/8 (Nov. 20, 2009).
18 The so-called “Montreal text” was considered unusable due to both its
length and the number of bracketed areas of texts, 3400 pairs of them.
19 See Earth Negotiations Bulletin, Ninth Meeting of the Ad-Hoc Open-ended Working
Group on Access to Genetic Resources and Benefit Sharing of the Convention on
Biological Diversity, http://www.iisd.ca/biodiv/abs9/ (last visited May 4, 2010).
20 See Ad Hoc Open-Ended Working Group On Access And Benefit-Sharing,
Report of the Ninth Meeting of the ABS/WG, Annex I, UN Doc. UNEP/CBD/
WG-ABS/9/3 (Apr. 26, 2010), available at http://www.cbd.int/doc/meetings/
abs/abswg-09/official/abswg-09-03-en.pdf [hereinafter Report of the Ninth
Meeting of the ABS/WG].
21 See Secretariat of the Convention on Biological Diversity, Access and Ben-
efit-Sharing: Communication of a Proposed Protocol Pursuant to Article 28,
Paragraph 3 of the Convention on Biological Diversity, SCBD/SEL/LG/71198
(Apr. 15, 2010), available at http://www.cbd.int/doc/notifications/2010/ntf-
2010-071-abs-en.pdf.
22 Article 28 (Adoption of Protocols) provides that any if this instruments shall
be adopted at a meeting of the Conference of the Parties and that “The text of
any proposed Protocol shall be communicated to the Contracting Parties by the
Secretariat at least six months before such meeting.” See Convention on Bio-
logical Diversity art. 28, June 5, 1992, 1760 U.N.T.S. 79.
23 A note in the Protocol is written with the following statement: “This
document, which was not negotiated, reflects the efforts by the Co-Chairs
to elaborate the elements of a draft Protocol, and is without prejudice to the
rights of the Parties to make further amendments and additions to the text.
This document should be read in conjunction with the main body of the report,
which reflects the views of the Parties during the ninth meeting of the Working
Group on Access and Benefit-sharing, which took place in Cali, Colombia.”
See Report of the Ninth Meeting of the ABS/WG, supra note 20, at 44.
24 One of the most contentious issues of the negotiations in Cali, was the
relationship between the Protocol and other international instruments. These
discussions and disagreements are not reflected in the current text. See Id. For
many delegations it is important that the ABS Protocol includes a self-standing
article on its relationship with other international agreements and processes.
25 Discussions in the World Intellectual Property Organization are also
particularly relevant for genetic resources and Traditional Knowledge, but
outside the scope of this article. The WIPO Intergovernmental Committee
on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore (“IGC”) was established by the WIPO General Assembly in
October 2000 as a forum for debate and dialogue on the relationship between
intellectual property, traditional knowledge, genetic resources, and traditional
cultural expressions. It was considered that these topics did not fall within the
scope of other WIPO bodies. The IGC’s mandate consists of analyzing aspects
of intellectual property related to genetic resources, traditional knowledge, and
the protection of expressions of folklore. One of the topics the Committee had
considered—and continues to do so under its current mandate—is precisely
the relationship between intellectual property and genetic resources (including
disclosure of origin in patent applications) and the protection of TK. The
Committee has met on several occasions (15). The current mandate of the
Committee (2009-2011) includes:
(a) The Committee will, during the next budgetary biennium (2010/2011),
and without prejudice to the work pursued in other fora, continue its work
and undertake text-based negotiations with the objective of reaching
agreement on a text of an international legal instrument (or instruments)
which will ensure the effective protection of GRs, TK and TCEs.
(b) The Committee will follow, as set out in the Annex, a clearly defined
work program for the 2010/2011 biennium. This work program will make
provision for, in addition to the 15th session of the Committee scheduled
for December 2009, four sessions of the IGC and three inter-sessional
working groups, in the 2010-2011 biennium.
(c) The focus of the Committee’s work in the 2010/2011 biennium will
build on the existing work carried out by the Committee and use all WIPO
working documents, including WIPO/GRTKF/IC/9/4, WIPO/GRTKF/
IC/9/5 and WIPO/GRTKF/IC/11/8A (Traditional Cultural Expressions,
Traditional Knowledge and Genetic Resources), which are to constitute
the basis of the Committee’s work on text-based negotiations.
(d) The Committee is requested to submit to the 2011 General Assembly
the text (or texts) of an international legal instrument (or instruments)
which will ensure the effective protection of GRs, TK and TCEs. The
General Assembly in 2011 will decide on convening a Diplomatic
Conference. World Intell. Prop. Org. [WIPO], Matters Concerning the
Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore, 1-2, Agenda Item 28,
WIPO G.A. 38th Sess. (Sept. 22- Oct. 1, 2009), available at http://www.
wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_15/wipo_grtkf_ic_15_ref_
decision_28.pdf.
This was the Committee’s strongest mandate yet. The scope of work of the IGC
includes the possible development of an international instrument or instruments
on IPRs and genetic resources as well as traditional knowledge.
26 See Third Ordinary Meeting of the Conference of the Parties to the
Convention on Biological Diversity, Buenos Aires, Argentina, Nov. 4-15, 1996,
Access to Genetic Resources, ¶ 8, U.N. Doc. UNEP/CBD/COP/DEC/III/15;
Fifth Ordinary Meeting of the Conference of the Parties to the Convention on
Biological Diversity, Nairobi, Kenya, May 15-26, 2000, Access to Genetic
Resources, ¶¶ 1-4, U.N. Doc. UNEP/CBD/COP/DEC/V/26 B (May 26, 2000);
Sixth Ordinary Meeting of the Conference of the Parties to the Convention on
Biological Diversity, the Hague, Neth., Apr. 7-19, 2002, Access And Benefit-
Sharing As Related To Genetic Resources ¶ 10, U.N. Doc. UNEP/CBD/COP/
DEC/VI/24(D); Id. UNEP/CBD/COP/DEC/VI/24/24(C)(1); Eighth Ordinary
Meeting of the Conference of the Parties to the Convention on Biological
ENDNOTES: THE RELATIONSHIP BETWEEN THE ACCESS AND BENEFIT SHARING INTERNATIONAL REGIMEN AND OTHER
INTERNATIONAL INSTRUMENTS THE WORLD TRADE ORGANIZATION AND THE INTERNATIONAL UNION FOR THE PROTECTION
OF NEW VARIETIES OF PLANTS continued from page 33
51 SUSTAINABLE DEVELOPMENT LAW & POLICY
Diversity, Curitiba, Braz., Mar. 20-31, 2006, Access and Benefit-Sharing, U.N.
Doc. UNEP/CBD/COP/DEC/VIII/4(D).
27 Kent Nnadozie et al., Synergetic Implementation: Coordinated National
Implementation Of Access And Benefit Sharing Issues – CBD, Biosafety
Protocol, ITPGRA and Relevant IPR Instruments (unpublished manuscript, on
the file with the author).
28 See Convention on Biological Diversity Conference of Parties, Access to
Genetic Resources, ¶ 8, U.N. Doc. UNEP/CBD/COP/DEC/III/15.
29 See e.g., Council for Trade-Related Aspects of Intellectual Property Rights,
Summary Of Issues Raised And Points Made With Regard The Relationship
Between The Trips Agreement And The CBD, IP/C/W/368/rev 1 (Feb. 8, 2006),
available at http://www.wto.org/english/tratop_e/TRIPs_e/ipcw368_e.pdf.
30 See World Trade Organization, Ministerial Declaration of 20 November
2001, ¶ 32(i), WT/MIN(01)/DEC/1 [hereinafter Doha Declaration].
31 Nnadozie et al., supra note 27.
32 Ninth Ordinary Meeting of the Conference of the Parties to the Convention
on Biological Diversity, Bonn, Ger., May 19-30, 2008, The Role of Intellectual
Property Rights and Technology Transfer in the Context of the Convention
on Biological Diversity, U.N. Doc. UNEP/CBD/COP/9/INF/7 (May 3, 2008),
available at https://www.cbd.int/doc/meetings/cop/cop-09/information/cop-09-
inf-07-en.pdf.
33 Seventh Ordinary Meeting of the Conference of the Parties to the Conven-
tion on Biological Diversity, Kuala Lumpur, Malay., Feb. 9-20, 2004, Transfer
of Technology and Technology Cooperation Annex, U.N. Doc. UNEP/CBD/
COP/DEC/VII/29 (Apr. 13, 2004).
34 Doha Declaration, supra note 30, ¶ 19.
35 There are several issues that were discussed by the delegations at the TRIPS
Council, which are relevant to the CBD, such as the “patentability of life,”
removal of references to patenting of microorganisms from article 27, inclusion
of the Traditional Knowledge protection on the concept of sui generis systems
found in article 27.3(b), the scope and extension of the exemptions of article
27.3 (b), among others. See Eighth Ordinary Meeting of the Conference of the
Parties to the Convention on Biological Diversity, Curitiba, Braz., Mar. 20-31,
2006, The Relationship between the TRIPS Agreement and the Convention on
Biological Diversity–Summary of Issues Raised and Points Made–Submission
by the WTO Secretariat, U.N. Doc. UNEP/CBD/COP/8/Inf/37.
36 For a detailed analysis of the different legal ways in which some countries
have included disclosure of origin in patent applications at the national level,
see Thomas Henninger, Disclosure requirements in patent law and related
measures. An overview of existing national and regional legislation on IP and
biodiversity, ICTSD, Mar., 2010.
37 Doha Declaration, supra note 30, ¶ 34.
38 Id. ¶ 12.
39 Communication from Brazil, China, Colombia, Cuba, India, Pakistan, Peru,
Thailand, and Tanzania, Doha Work Programme – The Outstanding Implemen-
tation Issue on the Relationship Between the TRIPS Agreement and the Con-
vention on Biological Diversity, WT/GC/W/564 (May, 31 2006), available at
http://www.wto.org/english/tratop_e/trips_e/art27_3b_e.htm. Norway has also
submitted an alternative proposal for disclosure of origin. Communication from
Norway, The Relationship Between the TRIPS Agreement, the Convention on
Biological Diversity and the Protection of Traditional Knowledge, IP/C/W/473
(June 14, 2006).
40 The language of the proposal is broader and makes reference to “biological
resources.”
41 For further details see documents WT/GC/W/564/Rev.2, TN/C/W/41/Rev.2,
IP/C/W/474 and WT/GC/W/564/Rev.2/Add.2, TN/C/W/41/Rev.2/Add.2,
IP/C/W/474/Add.2.
42 See WT/GC/W/591TN/C/W/50 (June, 9 2008) (“Issues related to the exten-
sion of the protection of geographical indications provided for in article 23 of
the TRIPS Agreement to products other than wines and spirits and those related
to the relationship between the TRIPS Agreement and the Convention on
Biological Diversity,” which summarized the different positions on this issue
before the Mini-Ministerial.).
43 The three current intellectual property issues: the relationship between the
TRIPS Agreement and the CBD; the extension of the protection of geographi-
cal indications provided for under Article 23 to products other than wines and
spirits; and the establishment of a multilateral system of notification and regis-
tration of geographical indications for wines and spirits.
44 Communication from Albania, Brazil, China, Colombia, Ecuador, the Euro-
pean Communities, Iceland, India, Indonesia, the Kyrgyz Republic, Liechten-
stein, the Former Yugoslav Republic of Macedonia, Pakistan, Peru, Sri Lanka,
Switzerland, Thailand, Turkey, the ACP Group, and the African Group, Draft
Modalities for TRIPS Related Issues, TN/C/W/52 (July 19, 2008). Draft Modality
text as contained in document TN/C/W/52 have been cosponsored by 110 Mem-
bers that request the inclusion of the TRIPS related issues as part of the horizontal
process for the negotiations. The Draft speaks of country providing/source of
genetic resources not of origin. This proposal of Draft Modalities attempts to link
the amendments to the TRIPs agreement on three issues, creation of a registry for
geographical indications, establishment a disclosure of origin obligation and the
extension of the geographical indications protection. The proposal suggests the
inclusion of these issues as part of the horizontal process in order to elaborate a
final draft legal texts with respect to each of the issues as part of the single under-
taking of the Doha Round.
45 The minutes of the meetings of the TRIPs Council can be found on the WTO
website.
46 See generally Jorge Cabrera Medaglia, Trade (in particular free trade agree-
ments) and access to genetic resources and benefit sharing: exploring some the
linkages, ASIAN BIOTECHNOLOGY AND DEV. R., July 2008, Vol. 10, No. 3.
47 Ninth Ordinary Meeting of the Conference of the Parties to the Conven-
tion on Biological Diversity, Bonn, Ger., May 19-30, 2008, Access and Benefit
Sharing Annex, U.N. Doc. UNEP/CBD/COP/IX/12.1 (Oct. 9, 2008). The
Annex in accordance to Decision IX/12.1 shall be the basis for the negotiations.
The Components have been divided in two different categories: “Components
to be further elaborated with the aim of incorporating them in the IR” and
“Components for Further Consideration.” The distinction was later on aban-
doned at the Seventh Meeting of the ABS-WG.
48 Eighth Ordinary Meeting of the Conference of the Parties to the Convention
on Biological Diversity, Curitiba, Braz., Mar. 20-31, 2006, Access and Benefit-
Sharing, U.N. Doc. UNEP/CBD/COP/DEC/VIII/4(D).
49 This issue has not been agreed yet, important disagreements about this
language remain. See Ninth meeting of the Conference of the Parties to the
Convention on Biological Diversity, Bonn, Ger., May 19-30, 2008, Access and
benefit-sharing, U.N. Doc. UNEP/CDB/COP/DEC/IX/12 (Oct. 9, 2008).
50 Id. at 49.
51 It is not the intention of this article to develop the idea of the certificate
in depth. For further detail, see the following documents; Miriam Dross &
Franziska Wolff, New Elements of the International Regime on Access and
Benefit Sharing of Genetic Resources: the Role of Certificates of Origin, BFN,
2005; JOSE CARLOS FERNANDEZ, THE FEASIBILITY, PRACTICALITY AND COST OF A
CERTIFICATE OF ORIGIN SYSTEM FOR GENETIC RESOURCES: ECONOMIC CONSIDER-
ATIONS, in Yokohama Round Table: Toward Fair and Equitable Benefit Sharing:
Instruments for the Effective Implementation of the Bonn Guidelines under
the Convention On Biological Diversity; Yokohama, Japan, Mar. 11, 2005;
Brendan Tobin, David Cunningham, and Kazuo Watanabe, The Feasibility,
Practicality and Cost of a Certificate of Origin System for Genetic Resources,
United Nations University Institute of Advanced Studies Yokohama, Japan,
Dec. 2004, available at http://www.ias.unu.edu/binaries2/abswg-03-inf-05-en_
revised%202.pdf.
52 An analysis of the causes behind processes to reform the implementation
of ABS laws can be found in, KATHRYN GARFORTH AND JORGE CABRERA MEDA-
GLIA, LEGAL REFORM FOR THE DEVELOPMENT AND IMPLEMENTATION OF MEASURES
ON ACCESS TO GENETIC RESOURCES AND BENEFIT-SHARING (T.W. McInerney, ed.,
International Development Law Organization 2006).
53 JOSE CARLOS FERNANDEZ, THE FEASIBILITY, PRACTICALITY AND COST OF A CER-
TIFICATE OF ORIGIN SYSTEM FOR GENETIC RESOURCES: ECONOMIC CONSIDERATIONS,
in Yokohama Round Table: Toward Fair and Equitable Benefit Sharing: Instru-
ments for the Effective Implementation of the Bonn Guidelines under the Con-
vention On Biological Diversity; Yokohama, Japan, Mar. 11, 2005.
54 On this last aspect, see Sélim Louafi & Jean-Frédéric Morin, Certificates of
Origin for Genetic Resources and International Trade Law (IDRRI 2004).
55 Ninth meeting of the Conference of the Parties to the Convention on Bio-
logical Diversity, Bonn, Ger., May 19-30, 2008, Access and benefit-sharing,
U.N. Doc. UNEP/CDB/COP/DEC/IX/12 (Oct. 9, 2008).
56 Ninth Meeting of the Ad Hoc Open Ended Working Group On Access and
Benefit-Sharing, Revised Draft Protocol on access to Genetic Resources and
the Fair and Equitable Sharing of Benfits Arising from their Utilization to the
Convention on Biological Diversity art. 13(1)-(5), U.N. Doc. UNEP/CBD/WG-
ABS/9/3 Annex I, available at https://www.cbd.int/doc/meetings/abs/abswg-
09/official/abswg-09-03-en.pdf.
57 Eighth Ordinary Meeting of the Conference of the Parties to the Convention
on Biological Diversity, Curitiba, Braz., Mar. 20-31, 2006, Access and Benefit-
Sharing, U.N. Doc. UNEP/CBD/COP/DEC/VIII/4(C).
58 Fifth Meeting of the Ad Hoc Open Ended Working Group On Access and
Benefit-Sharing, Report of the meeting of the Group of Technical Experts on
an international recognized certificate of origin/source/legal provenance U.N.
52SPRING 2010
Doc. UNEP/CBD/WG-ABS/5/7 (Feb. 20, 2007), available at http://www.cbd.
int/doc/meetings/abs/abswg-05/official/abswg-05-07-en.pdf.
59 BRENDAN TOBIN, GEOFF BURTON, & JOSE CARLOS FERNANDEZ-UGALDE, CER-
TIFICATES OF CLARITY AND CONFUSION: THE SEARCH FOR A PRACTICAL, FEASIBLE
AND COST EFFECTIVE SYSTEM FOR CERTIFYING COMPLIANCE WITH PIC AND MAT
UNU-IAS (2008) available at http://www.ias.unu.edu/resource_centre/Certifi-
cates%20of%20Clarity%20or%20Confusion_The%20search%20for%20a%20
practical_%20feasible%20and%20cost%20effective%20system%20for%20
certifying%20compliance%20with%20%20PIC%20and%20MAT.pdf.
60 Id.
61 See Sélim Louafi & Jean-Frédéric Morin, Certificates of Origin for Genetic
Resources and International Trade Law (IDDRI 2004), (suggesting that in
order to ensure consistency with WTO rules, any certification system should
be designed on a product basis—not on that of a country or an individual
company).
62 Transfer of Technology has also been identified as a benefit sharing option
in the Bonn Guidelines.
63 Ninth Meeting of the Ad Hoc Open Ended Working Group On Access and
Benefit-Sharing, Revised Draft Protocol on access to Genetic Resources and
the Fair and Equitable Sharing of Benfits Arising from their Utilization to
the Convention on Biological Diversity art. 18, U.N. Doc. UNEP/CBD/WG-
ABS/9/3 Annex I, available at https://www.cbd.int/doc/meetings/abs/abswg-
09/official/abswg-09-03-en.pdf.
64 In this regard Article 1 of the CBD has been pointed out, “It is noteworthy
that this fundamental provision of the Convention already includes an explicit
reference to technology transfer as a means to implement its third objective.”
See Ninth Ordinary Meeting of the Conference of the Parties to the Convention
on Biological Diversity, Bonn, Ger., May 19-30, 2008, The Role of Intellectual
Property Rights and Technology Transfer in the Context of the Convention
on Biological Diversity, U.N. Doc. UNEP/CBD/COP/9/INF/7 (May 3, 2008),
available at https://www.cbd.int/doc/meetings/cop/cop-09/information/cop-09-
inf-07-en.pdf. Decision VII/19 makes an explicit reference to the elaboration
and negotiation of the IR to effectively implement the provisions in article 15,
8 (J) and three objectives of the CBD. Seventh Ordinary Meeting of the Confer-
ence of the Parties to the Convention on Biological Diversity, Kuala Lumpur,
Malay., Feb. 9-20, 2004, Access and benefit-sharing as related to genetic
resources, ¶ D, U.N. Doc. UNEP/CBD/COP/DEC/VII/19 (Feb. 20, 2004).
65 Ninth Ordinary Meeting of the Conference of the Parties to the Convention on
Biological Diversity, Bonn, Ger., May 19-30, 2008, The Role of Intellectual Prop-
erty Rights and Technology Transfer in the Context of the Convention on Biological
Diversity, U.N. Doc. UNEP/CBD/COP/9/INF/7 (May 3, 2008), available at https://
www.cbd.int/doc/meetings/cop/cop-09/information/cop-09-inf-07-en.pdf.
66 Part 2 of CBD article 16 provides that technology subject to patents or other
IPRs access and transfer must be provided “on terms which recognize and are
consistent with the adequate and effective protection of IPR.” The inclusion
of the phrase “adequate and effective” makes a direct link to the TRIPs. See
Susan Bragdon et al., Safeguarding Biodiversity: The Convention on Biologi-
cal Diversity (CBD), in The Future Control of Food (Geoff Tansey& Tasmin
Rajotte eds., 2008).
67 A general description of the International Union for the Protection of New
Varieties of Plants was provided in document UNEP/CBD/WG-ABS/3/2,
which highlights its relationship to access and benefit-sharing. Third Meeting
of the Ad Hoc Open Ended Working Group On Access and Benefit-Sharing,
Analysis of Existing National, Regional, and International Legal Instruments
Relating to Access and Benefit Sharing and Experience Gained in their Imple-
mentation, Including Identification of Gaps, U.N. Doc. UNEP/CBD/WG-
ABS/3/2 (Nov. 10, 2004).
68 Id.
69 INTERNATIONAL UNION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS,
WHAT IT IS, WHAT IT DOES, UPOV PUBLICATION NO. 437 (E)(2003), available at
http://upov.int/export/sites/upov/en/about/pdf/pub437.pdf [hereinafter UPOV].
70 Int’l Convention for the Protection of New Varieties of Plants, art. 15 (Mar.
19, 1991), http://upov.int/export/sites/upov/en/publications/conventions/1991/
pdf/act1991.pdf (last visited May 5, 2010).
71 UPOV, supra note 69.
72 Third Meeting of the Ad Hoc Open Ended Working Group On Access and
Benefit-Sharing, Compilation of submissions provided by parties, governments,
indigenous and local communties and relevant stakeholders in preparation
for the third meeting of the ad hoc open-ended working group on access and
benefit-sharing, U.N. Doc. UNEP/CBD/WG-ABS/3/INF/1.
73 International Union for the Protection of New Varieties of Plants, Reply of
UPOV to the Notification of June 26, 2003, from the Executive Secretary of the
Convention on Biological Diversity (CBD), http://www.upov.int/export/sites/
upov/en/news/2003/pdf/cbd_response_oct232003.pdf
74 Third Meeting of the Ad Hoc Open Ended Working Group On Access and
Benefit-Sharing, Compilation of Submissions Provided by Parties, Govern-
ments, International Organizations, Indigenous and Local Communities and
Relevant Stakeholders Related to the International Regime on Access and
Benefit-Sharing, U.N. Doc. UNEP/CBD/WG-ABS/4/INF/3 (Dec. 14, 2005),
available at http://www.cbd.int/doc/meetings/abs/abswg-04/information/
abswg-04-inf-03-en.pdf.
75 Fifth Meeting of the Ad Hoc Open Ended Working Group On Access and
Benefit-Sharing, Overview of recent developments at the international level
relating to access and benefit-sharing, Convention on Biological Diversity,
U.N. Doc. UNEP/CBD/WG-ABS/5/4/Add.1
76 UPOV, REPORT ON THE IMPACT OF PLANT VARIETY PROTECTION (2005), avail-
able at http://www.upov.int/en/publications/impact.html.
77 Id. at 3, 5.
78 Int’l Union for the Protection of New Varities of Plants, Access to Genetic
Resources and Benefit Sharing; ¶ 6, available at http://www.upov.int/en/
news/2003/pdf/cbd_response_oct232003.pdf.
79 Id. at ¶¶ 7-9.
80 Id. at ¶ 10.
81 Id. at ¶ 12.
82 Id. at ¶ 11.
83 Letter from Kamil Idris, Secretary-General, UPOV, to Ahmed Djoghlaf,
Executive Secretary, CBD (Apr. 17, 2008), available at http://www.upov.int/
export/sites/upov/en/about/pdf/upov_cbd_17_04_2008.pdf.
84 In the case of plant varieties, there may be technical and practical obstacles
to this provision unless it is carefully structured. Some difficulties have been
pointed out regarding the applicability of a disclosure requirement to plant vari-
eties, such as: problems that occur when plant varieties originate from genetic
material which came from different countries and sources and from crosses
and back-crosses and obstacles to determining the origin of the germplasm of a
variety because of the lack of documentation and the length of time between its
acquisition and its use in breeding programmes. See Graham Dutfield, Protect-
ing Traditional Knowledge and Folklore: A review of progress in diplomacy
and policy formulation (2003) (Issue Paper No. 1, ICTSD and UNCTAD)
available at http://ictsd.org/downloads/2008/06/cs_dutfield.pdf.
85 See Int’l Convention for the Protection of New Varieties of Plants, art. 15(1)
(iii) (Mar. 19, 1991), http://upov.int/export/sites/upov/en/publications/conven-
tions/1991/pdf/act1991.pdf; Int’l Convention for the Protection of New Variet-
ies of Plants, art. 5(3) (Oct. 23, 1978), http://www.upov.int/en/publications/
conventions/1978/act1978.
86 Ninth Meeting of the Conference of the Parties to the Convention on Bio-
logical Diversity, Bonn, Ger., May 19-30, 2008, Access and benefit-sharing
Annex I, III, U.N. Doc. UNEP/CDB/COP/DEC/IX/12 (Oct. 9, 2008).
87 COP Decision VII/19 reaffirms the fact that disclosure of origin in IPR
applications is part of the terms of reference of the Annex to Decision VII/19 D
for the development of the IR. It recognizes that this issue has been discussed
in the WIPO and the WTO, and invites the relevant fora to begin (or continue)
discussing the topic of disclosure of origin in IPR applications, bearing in mind
the need to ensure that their work is supportive of and does run counter to CBD
objectives. Seventh Ordinary Meeting of the Conference of the Parties to the
Convention on Biological Diversity, Kuala Lumpur, Malay., Feb. 9-20, 2004,
Access and benefit-sharing as related to genetic resources, U.N. Doc. UNEP/
CBD/COP/DEC/VII/19 (Feb. 20, 2004). See also Ninth Meeting of the Ad Hoc
Open Ended Working Group On Access and Benefit-Sharing, Revised Draft
Protocol on access to Genetic Resources and the Fair and Equitable Sharing of
Benfits Arising from their Utilization to the Convention on Biological Diversity
art. 18, U.N. Doc. UNEP/CBD/WG-ABS/9/3 Annex I, available at https://
www.cbd.int/doc/meetings/abs/abswg-09/official/abswg-09-03-en.pdf.
88 See Nnadozie et al., supra note 27; Joshua Sarnoff & Carlos Correa,
Analysis of Options for Implementing Disclosure of Origin Requirements in
Intellectual Property Applications – A contribution to UNCTAD’s response to
the invitation of the Seventh Conference of the Parties of the Convention on
Biological Diversity, UN Doc. UNCTAD/DITC/TED/2004/14 (2006); IUCN ET
AL., DISCLOSURE REQUIREMENTS: ENSURING MUTUAL SUPPORTIVENESS BETWEEN THE
WTO TRIPS AGREEMENT AND THE CBD (2005), available at http://www.iprson-
line.org/resources/docs/Disclosure_req_book.pdf; Tobin et al., supra note 59;
JORGE CABRERA MEDAGLIA, IUCN, THE INTERNATIONAL REGIMEN FOR ACCESS AND
BENEFIT SHARING (2006).
89 Interpretation of the TRIPS agreement is undertaken under the procedures
of the WTO (Article IX.2 of the WTO Agreement). For the intellectual property
53 SUSTAINABLE DEVELOPMENT LAW & POLICY
point of view existing standard on patentability scope and use of patents, such
as those set out in articles 27, 29, 32, and 62 of the TRIPS agreement may
afford some guidance to how WIPO and WTO Member States may address
this concept. See World Inetll. Prop. Org. [WIPO], Technical Study on Patent
Disclosure Requirements Related to Genetic Resources and Traditional Knowl-
edge, WIPO Publication No.786(E) (2003), available at http://www.wipo.int/
tk/en/publications/technical_study.pdf.
90 The current drafting of the disclosure requirements in article 13 of the Draft
Protocol, could respond to this approach. The text does not address what could
happen in the case of non compliance with the disclosure requirements, e.g.
if the patent could be revoked or otherwise limited in is effect if obtained in a
breach of a disclosure obligation. The lack of clarity on the legal consequences
of the lack of disclosure or insufficient or false disclosure is one of the critics of
the current provisions. See Earth Negotiations Bulletin, op cit..
91 Decision IX/12 created an Expert Group on concepts, terms, working defini-
tions and sectoral approaches.
92 “Locating such provisions within the CBD regime would not incorporate
disclosure requirements directly into the intellectual property law system, and
thus would complicate efforts to assure that disclosure obligations are adopted
within the intellectual property treaty regimes. Further disclosure requirements
mandated within the CBD would not directly apply to the intellectual property
systems of countries that are not Parties of the CBD.” See Sarnoff & Correa,
supra note 88, at 36. This is the case for the United States, which is a signatory
but has not yet ratified the CBD.
93 See Report of the Technical Expert Group, op cit, par. 4 (regarding the
objectives of the certificates).
94 World Intell. Prop. Org. [WIPO], Intellectual Property and Traditional
Knowledge, Booklet No. 2, WIPO Publication No. 920(E), (2009).
95 CBD, supra note 1, art. 18.
96 CBD, supra note 1, art. 15, 16, 19.
97 See Agreement on Trade-Related Aspects of Intellectual Property Rights,
Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organiza-
tion, Annex 1C, Art. 7, 8, 66.2, 1869 U.N.T.S. 299 (1994), available at http://
www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm (declaring objectives:
“the protection and enforcement of IPR should contribute to the promotion of
technological innovation and to the transfer and dissemination of technology. .
. .” ); id. art. 8 (stating principles: “Members may, in formulating or amending
other laws and regulations, adopt measures necessary to . . . promote the public
interest in sector of vital importance to their socio-economic and technological
development, provided that such measures are consistent with the provisions of
this Agreement); id. art. 66.2 (addressing Least Developed Country Members:
“Developed Countries shall provide incentives to enterprises and institutions in
their territories for the purpose of promoting and encouraging technology trans-
fer to least developed country Members. . . . ”). The TRIPs Council adopted a
Decision on February 2003 which lays down an obligation to developed coun-
tries to submit reports on actions taken or envisaged to provide such incentives.
98 Doha Declaration, supra note 30, para. 19.
99 Sarnoff & Correa, supra note 88, at 23 (“Although UPOV has suggested that
disclosure obligations that would deny or invalidate plant rights conflict with
the UPOV Convention, UPOV did not directly address the issue of entitlement
to apply for such rights, but rather treated such requirements as an additional
condition for protection”).
100 Sarnoff & Correa, supra note 88, at 35 (“Applying such disclosure require-
ments only in the context of patents, however, would not affect other intel-
lectual property applications whose subject matter implicates CBD access and
benefit sharing requirements. Of particular relevance such a limitation would
not apply mandatory disclosure obligations to the subject matter of plant breed-
ers rights”).
101 The current text of the Protocol (Article 13) refers broadly to disclosure
requirements and check points, including IPR Offices. It may also include PBR
offices. However, the formulation of the obligation is unclear in terms of legal
sanctions, to what extent is a condition for protection or not, etc.
102 The same argument applies to the certificate as an instrument to facilitate the
disclosure requirements.
103 See The Role of Intellectual Property . . . op cit, paragraph 48, note 14.
104 See Nnadozie et al., supra note 27.
105 Center for International Sustainable Development Law Biodiversity and
Biosafety Law Programme, The Interface Between Sustainable Forest Manage-
ment and Access and Benefit Sharing: Outlining Potential Areas of Synergy,
Jorge Cabrera, Oliver Rukundo, & Frederic Perron-Welch, Montreal, Can., 2010.
ENDNOTES: USING REDD TO PROMOTE BIODIVERSITY-SENSITIVE FOREST FIRE MANAGEMENT SCHEMES continued from page 34
1 U.N. FAO, FIRE MANAGEMENT: VOLUNTARY GUIDELINES 11 (FAO 2006),
available at www.fao.org/forestry/site/35853/en [hereinafter VOLUNTARY GUIDE-
LINES].
2 SECRETARIAT OF THE CONVENTION ON BIOLOGICAL DIVERSITY, IMPACT OF HUMAN-
CAUSED FIRES ON BIODIVERSITY AND ECOSYSTEM FUNCTIONING, AND THEIR CAUSES
IN TROPICAL, TEMPERATE AND BOREAL FOREST BIOMES 14 (2001), available at
http://www.cbd.int/doc/publications/cbd-ts-05.pdf [hereinafter IMPACT OF
HUMAN-CAUSED FIRES ON BIODIVERSITY].
3 VOLUNTARY GUIDELINES, supra note 1, at 3.
4 U.N. FAO, FIRE MANAGEMENT GLOBAL ASSESSMENT 2006 x (FAO 2007),
available at ftp://ftp.fao.org/docrep/fao/009/A0969E/A0969E00.pdf.
5 U.N. FAO, Fire Management: Forests and Fire, March 6, 2010, http://
www.fao.org/forestry/firemanagement/en/ (last visited April 20, 2010)
(“Although fire has been the primary agent of forest degradation, as a natural
process it serves an important function in maintaining the health of certain eco-
systems.”).
6 ELISA MORGERA & MARIA TERESA CIRELLI, U.N. FAO, FOREST FIRES AND THE
LAW: A GUIDE TO NATIONAL DRAFTERS BASED ON FIRE MANAGEMENT VOLUN-
TARY GUIDES 9-10 (2009), available at ftp://ftp.fao.org/docrep/fao/011/i0488e/
i0488e00.pdf.
7 IMPACT OF HUMAN-CAUSED FIRES ON BIODIVERSITY, supra note 2, at 8.
8 See id. at 14.
9 See Robert Nasi et al., Forest Fire and Biological Diversity, 53 UNASYLVA
36, 39 (2002), available at ftp://ftp.fao.org/docrep/fao/004/y3582e/y3582e05.
pdf.
10 See id.
11 IMPACT OF HUMAN-CAUSED FIRES ON BIODIVERSITY, supra note 2, at 17.
12 Id.
13 Mark A. Cochrane, Fire Science for Rainforests, 421 NATURE 913, 913
(2003), available at http://goes.msu.edu/publications/pdfs_ps/CGCEO%2079.
pdf.
14 Id.
15 IMPACT OF HUMAN-CAUSED FIRES ON BIODIVERSITY, supra note 2, at 17.
16 Id. at 9.
17 See id. at 17(boreal); id. at 15 (temperate); id. at 10 (tropical).
18 See id. at 17.
19 See id.
20 See Cochrane, supra note 13, at 915, box 2 (explaining that increased log-
ging can give rise to frequent fires by reducing canopy cover, which releases
moisture, and increasing presence of dead biomass).
21 Id. at 913.
22 IMPACT OF HUMAN-CAUSED FIRES ON BIODIVERSITY, supra note 2, at 11.
23 UN-REDD PROGRAMME SECRETARIAT, UN REDD YEAR IN REVIEW 2 (2009),
available at http://www.un-redd.org/NewsCentre/2009_Year_In_Review/
tabid/3499/language/en-US/Default.aspx.
24 See id. at 4.
25 See id.
26 See Copenhagen Accord art. 6, Dec. 18, 2009, FCCC/CP/2009/11/Add.1,
Decision 2/CP.15 (expressing non-binding support for the expansion of REDD
plus).
27 AMAZONAS SUSTAINABLE FOUNDATION, THE JUMA SUSTAINABLE DEVELOPMENT
RESERVE PROJECT: REDUCING GREENHOUSE GAS EMISSIONS FROM DEFORESTATION IN
THE STATE OF AMAZONAS, BRAZIL 114 (2008), available at http://www.climate-
standards.org/projects/files/juma/PDD_Juma_Reserve_RED_Project_v5_0.pdf.
28 Alan Grainger et al., Biodiversity and REDD at Copenhagen, 19 CURRENT
BIOLOGY 974, 975 (2009), available at http://download.cell.com/current-
biology/pdf/PIIS096098220901776X.pdf (advocating the use of biodiversity
assessments in REDD national plans to avoid REDD policies that harm biodi-
versity).
54SPRING 2010
ENDNOTES: GETTING ON THE LIST: POLITICS AND PROCEDURAL MANEUVERING IN CITES APPENDIX I AND II DECISIONS FOR
COMMERCIALLY EXPLOITED MARINE AND TIMBER SPECIES continued from page 40
2 See Summary of the Fourteenth Conference of the Parties to the Convention
on International Trade in Endangered Species of Wild Fauna and Flora, EARTH
NEGOTIATIONS BULLETIN (Int’l Inst. for Sustainable Dev., New York, N.Y.),
June 18, 2007, at 21, [hereinafter ENB CITES COP-14], available at http://
www.iisd.ca/download/pdf/enb2161e.pdf; Convention on International Trade
in Endangered Species of Wild Fauna and Flora, pmbl, Mar. 3, 1973, 27 U.S.T.
1087, 993 U.N.T.S. 243 (entered into force July 1, 1975) [hereinafter CITES]
(regulating trade in species and their parts).
3 See ENB CITES COP-14, supra note 2, at 21; ENB CITES COP-15, supra
note 1, at 17.
4 See ENB CITES COP-14, supra note 2, at 21.
5 CITES, COP15 DECISIONS ON AMENDMENT PROPOSALS, available at http://www.
cites.org/eng/news/meetings/cop15/CoP15-decisions-on-proposals.pdf [herein-
after COP15 DECISIONS].
6 Adding a species to Appendix I or II is only the first step to providing
protection for a species under CITES. The range of additional actions needed,
funding, and enforcement mechanisms are beyond the scope of this article. See
generally James B. Murphy, Comment, Alternative Approaches to the CITES
“Non-Detriment” Finding for Appendix II Species, 36 ENVTL. L. 531, 533
(2006); ENB CITES COP-15, supra note 1 (considering some of the relevant
issues); TRAFFIC, Marine species get raw deal at CITES, Mar. 25, 2010, http://
www.traffic.org/home/2010/3/25/marine-species-get-raw-deal-at-cites.html
(last visited Apr. 15, 2010).
7 CITES, supra note 2, arts. I-VI.
8 See Memorandum of Understanding Between the Secretariat of the Conven-
tion on International Trade in Endangered Species of Wild Fauna and Flora and
IUCN-The World Conservation Union, July 1999, available at http://cites.org/
common/disc/sec/CITES-IUCN.pdf; CITES, supra note 2; CITES, The CITES
species, http://www.cites.org/eng/disc/species.shtml (last visited Apr. 22, 2010)
[hereinafter The CITES species].
9 See The CITES species, supra note 8.
10 CITES, supra note 2, art. II(1). Although, for reasons considered in the sec-
tion analyzing listing decisions of COP-15, Appendix I does not include all
species referred to.
11 See CITES, supra note 2, art. III.
12 CITES, supra note 2, art. II(2); Fourteenth Meeting of the Conference of the
Parties to CITES, The Hague, Neth., June 3-15, 2007, Criteria for Amendment
of Appendices I and II, Conf. 9.24 (Rev. CoP14) (amending Res. Conf. 9.24
(1994)), Annex 2b(A), available at http://www.cites.org/eng/res/all/09/E09-
24R14.pdf [hereinafter CITES Criteria].
13 See CITES, supra note 2, art. IV(2)(a), (4).
14 CITES, supra note 2, arts. II(3), V, XVI.
15 The CITES species, supra note 7.
16 CITES, supra note 2, art. IX.
17 CITES, supra note 2, arts. III-V.
18 CITES, supra note 2, arts. VIII, XXIII(2).
19 See CITES, supra note 2, arts. XV(3), XXIII(3).
20 CITES, supra note 2, art. XV. See generally Annecoos Wiersema, The New
International Law-Makers? Conferences of the Parties to Multilateral Environ-
mental Agreements, 31 MICH. J. INT’L L. 231 (2009) (discussing the creation of
international legal obligations through COPs).
21 CITES, supra note 2, art. XV.
22 CITES, supra note 2, art. XV(1)(a).
23 CITES, supra note 2, art. XV(1)(a), (2)(c).
24 CITES, supra note 2, art. XV(1)(a), (2)(b).
25 CITES, supra note 2, art. XVI(1).
26 CITES, supra note 2, art. XVI(2).
27 Id., art. XVI(3).
28 CITES Criteria, supra note 12.
29 Id. See generally Annecoos Wiersema, Adversaries or Partners? Science
and the Precautionary Principle in International Wildlife Regimes, 11:4 J. INT’L
WILDLIFE L. & POL’Y 211 (2008) (discussing the textual changes in the CITES
Criteria related to the precautionary principle).
30 CITES Criteria, supra note 12, Annex 1.
31 Id.
32 CITES Criteria, supra note 12, Annex 2a.
33 CITES Criteria, supra note 12, Annex 2b.
34 CITES Criteria, supra note 12, Annex 1, Annex 2b.
35 CITES Criteria, supra note 12, Annex 5.
36 Id.
37 Id.
38 See ENB CITES COP-15, supra note 1, at 15-18; ENB CITES COP-14,
supra note 2, at 22.
39 CITES, supra note 2, art. XV(1)(a), (2)(b).
40 See FAO-CITES Memorandum of Understanding, 2006, available at http://
www.cites.org/eng/disc/sec/FAO-CITES-e.pdf [hereinafter MoU].
41 MoU, ¶ 6.
42 ENB CITES COP-14, supra note 2, at 22.
43 See Third FAO Expert Advisory Panel for the Assessment of Proposals to
Amend Appendices I and II of CITES Concerning Commercially-Exploited
Aquatic Species, Dec. 7-12, 2009, Report, FAO Fisheries Report. No. 925,
available at ftp://ftp.fao.org/FI/DOCUMENT/R925/r925.pdf (providing a full
analysis and recommendations of COP-15 aquatic species listing proposals).
44 ENB CITES COP-15, supra note 1, at 18.
45 Id., at 17.
46 ENB CITES COP-14, supra note 2, at 21.
47 See COP15 DECISIONS, supra note 4 (listing all decisions taken at COP-15
related to amendments to the Appendices).
48 ENB CITES COP-15, supra note 1, at 17-18.
49 See, e.g., Trade and Conservation: Fin times, THE ECONOMIST (London),
Mar. 18, 2010, available at http://www.economist.com/science-technology/dis-
playstory.cfm?story_id+15720346; Jolly & Broder, supra note 1; Press Release,
European Union, EU Confirms Support for Bluefin Tuna Trade Ban
(Mar. 11, 2010), http://www.euractiv.com/en/sustainability/eu-confirms-sup-
port-bluefin-tuna-trade-ban-news-329139 (last visited Apr. 20, 2010).
50 Christine Goepp Towberman, Fishing for a Solution: The Role of the United
States in Preventing Collapse of the Eastern Atlantic Bluefin Fishery, 38 ENVT’L
L. REP. NEWS & ANALYSIS 10102, 10102 (2008).
51 Fifteenth Meeting of the Conference of the Parties to CITES, Doha, Qatar,
Mar. 13-25, 2010, Summary record of the 8th session of Committee I, 1, CoP15
Com. I Rec. 8, (Mar. 18, 2010) available at http://www.cites.org/eng/cop/15/
sum/E15-Com-I-Rec08.pdf [hereinafter Summary – tuna]; Bluefin tuna: Eaten
away, supra note 1.
52 Jolly & Broder, supra note 1.
53 ICCAT has only forty-two countries as members in contrast to the 175 of
CITES. Id.
54 Fifteenth Meeting of the Conference of the Parties to CITES, Doha, Qatar,
Mar. 13-25, 2010
Proposal to include Atlantic Bluefin Tuna (Thunnus thynnus (Linnaeus, 1758))
on Appendix I of CITES in accordance with Article II 1 of the Convention, ¶
12, CoP15 Prop. 19, available at http://www.cites.org/eng/cop/15/prop/E-15-
Prop-19.pdf [hereinafter Atlantic Bluefin Tuna Proposal].
55 David Jolly, Europe Leans Toward Bluefin Trade Ban, N.Y. TIMES, Feb. 4,
2010, available at http://www.nytimes.com/2010/02/04/world/europe/04tuna.
html?fta=y.
56 ENB CITES COP-15, supra note 1, at 15, 18.
57 See Summary – tuna, supra note 51, at 3.
58 Atlantic Bluefin Tuna Proposal, supra note 54, ¶ 8.
59 Summary – tuna, supra note 51, at 4.
60 See id., at 1-2 (including text of the amended proposal).
61 Id., at 2-3.
62 David Jolly, Japan Plans to Ignore Any Ban on Bluefin Tuna, N.Y. TIMES,
Feb. 20, 2010, available at http://www.nytimes.com/2010/02/20/business/
energy-environment/20tuna.html?fta=y; McCurry, supra note 1.
63 Bluefin tuna: Eaten away, supra note 1; Summary – tuna, supra note 51, at 4.
64 Towberman, supra note 50, at 10109.
65 Id.
66 Summary – tuna, supra note 51, at 4.
67 Id.
68 See Summary – tuna, supra note 51, at 4; Bluefin tuna: Eaten away, supra
note 1.
69 CITES, Rules of Procedure of the Conference of the Parties (as amended at
the 14th meeting, The Hague, Neth. 2007), R. 18, available at http://www.cites.
org/eng/cop/E14-Rules.pdf [hereinafter Rules of Procedure].
70 Summary – tuna, supra note 51, at 4.
55 SUSTAINABLE DEVELOPMENT LAW & POLICY
71 Id., at 4-5. Although the votes on the proposals were conducted by secret
ballot, it is likely that the seventy-two parties recorded as having voted to close
debate also cast the seventy-two votes to reject the amended proposal, as well
as the sixty-eight votes to reject the original proposal and a few of the thirty
abstentions. Forty-three parties voted to approve the amended proposal and
only twenty voted in favor of the original proposal. See id., at 4-8 (laying out
the complete votes on the motion to close debate and on the proposals).
72 See McCurry, supra note 1.
73 See id. (describing how Japan had been amassing votes months before COP-
15 and how Japanese funding for developing countries’ fishing industries had
been used to send delegates from some developing countries to the COP).
74 Press Release, CITES, CITES Conference Ends Without New Sharks in its
Net (Mar. 25, 2010), http://www.cites.org/eng/news/press_release.shtml (last
visited Apr. 23, 2010).
75 ENB CITES COP-15, supra note 1, at 15-16; Fifteenth Meeting of the
Conference of the Parties to CITES, Doha, Qatar, Mar. 13-25, 2010, Summary
record of the sixth plenary session, 2, CoP15 Plen. 6, (Mar. 25, 2010), available
at http://www.cites.org/eng/cop/15/sum/E15-Plen-06.pdf [hereinafter Summary
– sixth plenary].
76 David Jolly, U.N. Group Rejects Shark Protections, N.Y. TIMES, Mar. 23,
2010, available at http://www.nytimes.com/2010/03/24/science/earth/24shark.
html.
77 Fifteenth Meeting of the Conference of the Parties to CITES, Doha, Qatar,
Mar. 13-25, 2010, Summary record of the 13th session of Committee I, 1,
CoP15 Com. I Rec. 13 (Rev. 1), (Mar. 23, 2010), available at http://www.cites.
org/eng/cop/15/sum/E15-Com-I-Rec13.pdf [hereinafter Summary – hammer-
head & oceanic whitetip sharks].
78 Id., at 1-3.
79 Fifteenth Meeting of the Conference of the Parties to CITES, Doha, Qatar,
Mar. 13-25, 2010, Inclusion of Sphyrna lewini (scalloped hammerhead shark)
in Appendix II in accordance with Article II paragraph 2(a) of the Convention
and satisfying Criterion A in Annex 2a of Resolution Conf. 9.24 (Rev. CoP14),
3, CoP15 Prop. 15, available at http://www.cites.org/eng/cop/15/prop/E-15-
Prop-15.pdf; Summary – hammerhead & oceanic whitetip sharks, supra note
77, at 2-4. See also ENB CITES COP-15, supra note 1, at 15.
80 See CITES, supra note 2, art. XV(2)(b); CITES Criteria, supra note 12,
Annex 5.
81 Summary – hammerhead & oceanic whitetip sharks, supra note 77, at 3.
82 See id., at 4.
83 Fifteenth Meeting of the Conference of the Parties to CITES, Doha, Qatar,
Mar. 13-25, 2010, Inclusion of Carcharhinus longimanus (Poey, 1861) in
Appendix II in accordance with Article II paragraph 2(a) of the Convention
and satisfying Criterion A in Annex 2a of Resolution Conf. 9.24 (Rev. CoP14),
2, CoP15 Prop. 16, available at http://www.cites.org/eng/cop/15/prop/E-15-
Prop-16.pdf.
84 ENB CITES COP-15, supra note 1, at 16.
85 Summary – hammerhead & oceanic whitetip sharks, supra note 77, at 4.
86 Id.
87 Id., at 5.
88 Id.
89 Fifteenth Meeting of the Conference of the Parties to CITES, Doha, Qatar,
Mar. 13-25, 2010, Inclusion of Lamna nasus (Bonnaterre, 1788) in Appendix
II in accordance with Article II 2(a) and (b), 1, CoP15 Prop. 17, available at
http://www.cites.org/eng/cop/15/prop/E-15-Prop-17.pdf; Fifteenth Meeting of
the Conference of the Parties to CITES, Doha, Qatar, Mar. 13-25, 2010, Sum-
mary record of the 14th session of Committee I, 1, CoP15 Com. I Rec. 14 (Rev.
1), (Mar. 23, 2010), available at http://www.cites.org/eng/cop/15/sum/E15-
Com-I-Rec14.pdf [hereinafter Summary – porbeagle & spiny dogfish sharks].
90 Juliet Eilperin, Only One Breed of Shark, the Porbeagle, Earns Protection
at CITES Conference, WASHINGTON POST, Mar. 24, 2010, at A02.
91 Summary – porbeagle & spiny dogfish sharks, supra note 89, at 1.
92 ENB CITES COP-15, supra note 1, at 16.
93 Summary – porbeagle & spiny dogfish sharks, supra note 89, at 2.
94 Id., at 4.
95 Rules of Procedure, supra note 69, at R. 19(1); Summary – sixth plenary,
supra note 75, at 2.
96 Id.
97 Summary – sixth plenary, supra note 75, at 2. See also ENB CITES COP-
15, supra note 1, at 16.
98 Fifteenth Meeting of the Conference of the Parties to CITES, Doha, Qatar,
Mar. 13-25, 2010, Inclusion of Squalus acanthias Linnaeus, 1758 in Appendix
II in accordance with Article II 2(a) and (b), 2, CoP15 Prop. 18, available at
http://www.cites.org/eng/cop/15/prop/E-15-Prop-19.pdf [hereinafter Spiny
Dogfish Shark Proposal].
99 Summary – porbeagle & spiny dogfish sharks, supra note 89, at 3.
100 Id., at 3-4
101 Id., at 4.
102 Spiny Dogfish Shark Proposal, supra note 98, at 2.
103 Summary – porbeagle & spiny dogfish sharks, supra note 89, at 4.
104 See Marjorie Mulhall, Note, Saving the Rainforests of the Sea: An Analysis
of International Efforts to Conserve Coral Reefs, 19 DUKE ENVTL. L & POL’Y F.
321, 329 (2009).
105 Fifteenth Meeting of the Conference of the Parties to CITES, Doha, Qatar,
Mar. 13-25, 2010, Inclusion of all species in the family Coralliidae (Corallium
spp. and Paracorallium spp.) in Appendix-II of CITES, 2, CoP15 Prop. 21,
available at http://www.cites.org/eng/cop/15/prop/E-15-Prop-21.pdf [hereinaf-
ter Coral Proposal].
106 Id., at 1.
107 Mulhall, supra note 104, at 345; Fifteenth Meeting of the Conference of the
Parties to CITES, Doha, Qatar, Mar. 13-25, 2010, Summary record of the 10th
session of Committee I, 3, CoP15 Com. I Rec. 10 (Rev. 1), (Mar. 21, 2010),
available at http://www.cites.org/eng/cop/15/sum/E15-Com-I-Rec10.pdf [here-
inafter Summary – coral].
108 ENB CITES COP-14, supra note 2, at 19. Although the affirmative vote in
the plenary was only one fewer than in the Committee, the votes against nearly
doubled, from twenty-eight to fifty-five. Id.
109 Mulhall, supra note 104, at 344.
110 Summary – coral, supra note 107, at 3.
111 Id.
112 Id.
113 Id.
114 See ENB CITES COP-14, supra note 2, at 20; ENB CITES COP-15, supra
note 1, at 16-17.
115 See ENB CITES COP-14, supra note 2, at 21; Fifteenth Meeting of the
Conference of the Parties to CITES, Doha, Qatar, Mar. 13-25, 2010, Summary
record of the fifth session of Committee I, 5, CoP15 Com. I Rec. 5 (Rev. 1),
(Mar. 17, 2010), available at http://www.cites.org/eng/cop/15/sum/E15-Com-I-
Rec05.pdf [hereinafter Summary – rosewood].
116 See Fifteenth Meeting of the Conference of the Parties to CITES, Doha,
Qatar, Mar. 13-25, 2010, Inclusion of Aniba rosaeodora Ducke in Appendix II,
in compliance with the provisions of Article II, paragraph 2 (a), of the text of
the Convention, and paragraph A of Annex 2 a., 1-5, CoP15 Prop. 29, available
at http://www.cites.org/eng/cop/15/prop/E-15-Prop-29.pdf.
117 Summary – rosewood, supra note 115, at 4-5.
118 Fifteenth Meeting of the Conference of the Parties to CITES, Doha, Qatar,
Mar. 13-25, 2010, Inclusion of Bulnesia sarmientoi in Appendix II, in compli-
ance with the provisions of Article II, paragraph 2 (a),
of the text of the Convention, and Resolution Conf. 9.24 (Rev. CoP14), Annex
2 a, paragraph A, 4-7, CoP15 Prop. 42, available at http://www.cites.org/eng/
cop/15/prop/E-15-Prop-42.pdf.
119 Id. at 5-6.
120 Fifteenth Meeting of the Conference of the Parties to CITES, Doha, Qatar,
Mar. 13-25, 2010, Summary record of the sixth session of Committee I, 2,
CoP15 Com. I Rec. 6 (Rev. 1), (Mar. 17, 2010), available at http://www.cites.
org/eng/cop/15/sum/E15-Com-I-Rec06.pdf .
121 CITES, supra note 2, art. XV(1)(b).
122 See Press Release, European Union, supra note 48; McCurry, supra note 1.
123 Mulhall, supra note 104, at 345.
124 Id.
125 See Towberman, supra note 50, at 10109.
126 Id.
127 Although import restrictions, such as a ban, are generally considered to be
in violation of GATT principles, Article XX(g) allows for adoption of nondis-
criminatory measures “relating to the conservation of exhaustible resources if
such measures are made effective in conjunction with restrictions on domestic
production or consumption,” under which an import ban could potentially be
justified. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat.
A-11, 55 U.N.T.S. 194.
128 ENB CITES COP-14, supra note 2, at 22.
56SPRING 2010
ENDNOTES: THE ROLE OF THE PUBLIC IN THE AMERICAN PIKA'S FUTURE continued from page 41
ENDNOTES: FINDING THE BALANCE: HARMONIZING RENEWABLE ENERGY WITH WILDLIFE CONSERVATION continued from page 42
1 Press Release, U.S. Fish & Wildlife Serv., Endangered Species Act Protec-
tion for the American Pika is Not Warranted (Feb. 5, 2010), available at http://
www.fws.gov/mountain-prairie/species/mammals/americanpika/PressRe-
lease02052010.pdf.
2 U.S. Fish & Wildlife Serv., Endangered Species: American Pika, available
at http://www.fws.gov/mountain-prairie/species/mammals/americanpika/.
3 Ctr. for Biological Diversity, Action Timeline, http://www.biologicaldiver-
sity.org/species/mammals/American_pika/action_timeline.html.
4 See id.
5 Press Release, U.S. Fish & Wildlife Serv., Fish and Wildlife Service to
Conduct Status Review of the America Pika (May 7, 2009), available at http://
www.fws.gov/mountain-prairie/species/mammals/americanpika/05072009Press
Release.pdf.
6 Endangered Species Act, 16 U.S.C. §§1531-1544 (1973).
7 See Press Release, U.S. Fish & Wildlife Serv., supra note 1.
8 About My Planet, American Pika Declined ESA Listing Despite Warming
Concerns, http://www.aboutmyplanet.com/environment/american-declined/
(last visited Apr. 18, 2010).
9 United Nations Conference on Environment and Development: Rio Declara-
tion on Environment and Development, 31 I.L.M. 874 (1992).
10 Aarhus convention, 2161 U.N.T.S. 447; 38 I.L.M. 517 (1999), available at
http://www.unece.org/env/pp/documents/cep43e.pdf.
11 See id. art. 1.
12 About.com, The Long Road to Listing: Protecting the Polar Bear Under
the Endangered Species Act, http://animals.about.com/od/carnivores/qt/polar-
bearesa.htm.
13 Id.
14 Id.
15 See Hill v. Norton, 275 F.3d 98, 102 (D.C. Cir. 2001).
16 Id.
17 Id. at 104.
18 See Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978).
19 See id. at 173.
20 National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 (1969).
21 Council Directive 97/11, art. 7, 1997 O.J. (L 073).
1 Press Release, U.S. Dep’t of the Interior, Secretary Salazar Issues Order to
Spur Renewable Energy Development on U.S. Public Lands (Mar. 11, 2009),
http://www.blm.gov/ca/st/en/info/newsroom/2009/march/DOI0911_Salazar_
spurs_renewables.print.html.
2 Press Release, U.S. Dep’t of the Interior, Secretary Salazar Announces
Approval of Cape Wind Energy Project on Outer Continental Shelf off
Massachusetts (Apr. 28, 2010), http://www.doi.gov/news/doinews/Secre-
tary-Salazar-Announces-Approval-of-Cape-Wind-Energy-Project-on-Outer-
Continental-Shelf-off-Massachusetts.cfm; see Ros Krasny, Cape Wind, First
U.S. Offshore Wind Farm, Approved, REUTERS, Apr. 28, 2010, http://www.
reuters.com/article/idUSTRE63R42X20100428 (announcing that Cape Wind’s
approval is encouraging for other offshore projects because it has withstood
much opposition).
3 Cf. DOI Press Release, supra note 1 (announcing a task force “to resolve
obstacles to renewable energy permitting, siting, development, and produc-
tion”). Renewable energy regulation is not an insurmountable obstacle; those
same companies that have adapted to complying with fossil fuel regulations
are renewable energy research and development investors and are familiar with
many applicable regulations. Cf. JERRY TAYLOR & PETER VAN DOREN, CATO
INST., POL’Y ANALYSIS NO. 422, EVALUATING THE CASE FOR RENEWABLE ENERGY:
IS GOVERNMENT SUPPORT WARRANTED? 2 (2002), available at http://www.cato.
org/pubs/pas/pa422.pdf (highlighting that “corporate conglomerates” such as
Exxon and Shell have invested in renewable energy research and development
projects since the 1970s).
4 See ENERGY INFO. ADMIN., U.S. DEP’T OF ENERGY, ANNUAL ENERGY REVIEW
2008 xix (2009) [hereinafter EIA], available at http://www.eia.doe.gov/emeu/
aer/pdf/aer.pdf (illustrating production, consumption, and imports of various
sources of energy). In 2008, the U.S. consumed 884.5 million tonnes of oil
(“MTO”), 600.7 MTO-equivalent of natural gas, and 565.0 MTO-equivalent of
coal; BRITISH PETROLEUM, BP STATISTICAL REVIEW OF WORLD ENERGY 41 (2009),
available at http://www.bp.com/liveassets/bp_internet/globalbp/globalbp_uk_
english/reports_and_publications/statistical_energy_review_2008/STAGING/
local_assets/2009_downloads/statistical_review_of_world_energy_full_
report_2009.pdf (providing energy production and consumption information for
over fifty countries).
5 See EIA, supra note 4, at 282 (illustrating that wind and solar were each
only one and seven percents of the total ten percent attributed to renewable
energy). Nonetheless, the U.S. leads the world in wind power generation capac-
ity; BRITISH PETROLEUM, supra note 4, at 5 (noting that wind and solar genera-
tion capacity are growing at above average rates).
6 Cf. Lincoln L. Davies, Alternative Energy & the Energy-Environment Dis-
connect, 46 IDAHO L.R. 473, 474 (2010) (“An America no longer addicted to oil
would be sustainable and secure: a more self-reliant nation . . . where energy
consumption and environmental protection fit hand in glove . . . . [B]reaking the
nation’s oil addiction inevitably demands the simultaneous pursuit of energy
and environmental objectives.”).
7 See, e.g., Natural Resources Defense Council, Stop Dirty Fuels, http://www.
nrdc.org/energy/dirtyfuels.asp (last visited Apr. 24, 2009) (arguing that “we
now face a choice: to set a course for a more sustainable energy future of clean,
renewable fuels, or to develop ever-dirtier sources of transportation fuel derived
from fossil fuels — at an even greater cost to our health and environment”).
8 See CLEAN AIR TASK FORCE, CRADLE TO GRAVE: THE ENVIRONMENTAL IMPACTS
FROM COAL 2 (2001), available at http://www.catf.us/publications/reports/
Cradle_to_Grave.pdf (providing a life-cycle analysis of coal). Run-off from
surface piles of mining materials contaminates surface water while groundwater
is affected by the dislocation of aquifers. See id. (discussing adverse effects of
coal extraction and mining). Coal transportation also results in damage to the
ambient air. See id. at 3 (stating that coal transportation by truck, rail, or “coal
slurry pipeline” indirectly or directly affects the air).
9 See E&P FORUM/UNEP, ENVIRONMENTAL MANAGEMENT IN OIL & GAS EXPLORATION
& PRODUCTION 17-20 (1997), available at www.ogp.org.uk/pubs/254.pdf (identifying
the environmental concerns of oil and gas development in a chart); id. at 39-49 (pro-
viding a list of environmental protection measures for oil and gas development). Cf.
Press Release, American Geological Institute, Petroleum and the Environment (Mar.
10, 2005), http://www.agiweb.org/news/Petroleum_final.pdf (announcing the release
of a report explaining environmental issues associated with petroleum).
10 See 16 U.S.C. §§ 1531-1544 (2006) (prohibiting the unauthorized taking of
a listed—endangered or threatened—species or modification of its critical habi-
tat); see generally ENERGY & BIODIVERSITY INITIATIVE, EBI REPORT: INTEGRATING
BIODIVERSITY INTO OIL & GAS DEVELOPMENT (2007), http://www.theebi.org/prod-
ucts.html (providing guides as to the incorporation of biodiversity protection
into the various stages of oil and gas development).
11 See generally Javier Santillan et al., Environmental Impacts Associated
with Manufacturing of Solar and Wind Power Alternative Energy Systems, 20
REMEDIATION J. 107 (2010), available at http://www3.interscience.wiley.com/
journal/123308850/abstract?CRETRY=1&SRETRY=0 (summarizing “the
environmental impacts associated with raw material extraction and refining,
product manufacturing, use, and postuse disposal for photovoltaic (PV) and
wind turbine technologies”).
12 Contra American Wind Energy Association, Wind Energy and the Environ-
ment, http://www.awea.org/faq/wwt_environment.html (last visited Apr. 24,
2010) [hereinafter AWEA] (“Studies have found that even when . . . manufac-
turing wind turbines and building wind plants . . . are included, wind energy’s
CO2 emissions are quite small.”).
13 See generally Victoria Sutton & Nicole Tomich, Harnessing Wind is Not
(By Nature) Environmentally Friendly, 22 PACE ENVTL. L.R. 91 (2005) (arguing
that wind energy regulation does not adequately protect endangered species).
14 See U.S. Groups Say Vast Areas Off-Limits to Clean Energy, REUTERS,
Apr. 1, 2009, http://www.reuters.com/article/GCA-GreenBusiness/idUS-
TRE5307A020090401 (noting that the map covers thirteen western states);
NRDC, Clean Energy and Conservation, http://www.nrdc.org/land/sitingrenew-
ables/default.asp (last visited Apr. 18, 2010) (providing a link to view the map).
57 SUSTAINABLE DEVELOPMENT LAW & POLICY
15 See Meredith Blaydes Lilley & Jeremy Firestone, Wind Power, Wildlife,
& the Migratory Bird Treaty Act: A Way Forward, 38 ENVTL. L. 1167 (2008)
(suggesting that a bat protection act would assist in lowering bat mortality
caused by wind projects); see also AWEA, supra note 12 (comparing sources
of human-induced avian mortality and concluding that wind turbines cause far
fewer avian deaths than collisions with buildings).
16 See Krasny, supra note 2 and accompanying text (declaring approval of the
Cape Wind project despite pending litigation); see also Sutton, supra note 13,
at 100-02 (discussing the initial difficulty in assessing and permitting the proj-
ect due to a lack of agency expertise).
17 See Patrick Cassidy, Wind Farm Lawsuit May Be Next, CAPE COD
TIMES, Mar. 19, 2010, http://www.capecodonline.com/apps/pbcs.dll/
article?AID=/20100319/NEWS/3190325/-1/special01 (noting that wildlife
advocates argue that the biological opinion issued by the federal government
does not contain “adequate measures to preserve the [roseate tern and piping
plover]” two species of endangered and threatened birds).
18 Cf. U.S. FISH & WILDLIFE SERVICE, WIND TURBINE GUIDELINES ADVISORY COM-
MITTEE RECOMMENDATIONS vii (2010), http://www.fws.gov/habitatconservation/
windpower/Wind_Turbine_Guidelines_Advisory_Committee_Recommenda-
tions_Secretary.pdf (noting that “as the United States moves to expand wind
energy production, it also must maintain and protect the nation’s wildlife and
habitats, which wind energy production can negatively affect”). For a discus-
sion of the European Union’s approach to wind projects, see Donald Zillman et
al., More Than Tilting at Windmills, 49 WASHBURN L.J. 1 (2009).
19 Animal Welfare Inst. v. Beech Ridge Energy LLC, 675F. Supp. 2d 540, 579-
81 (D. Md. 2009); see Maria Glod, Court Constricts W.Va. Wind Farm to Protect
Bats, WASH. POST, Dec.10, 2009, http://www.washingtonpost.com/wp-dyn/con-
tent/article/2009/12/09/AR2009120904106.html (stating that although the envi-
ronmental plaintiffs “support wind power as one way to mitigate climate change”
that the risks to the bat presented by the wind project as proposed was too great).
20 See Beech Ridge, 675 F. Supp. 2d at 581 (“Outside [the hibernation] period
determining the timing and circumstances under which wind turbine operation can
occur without danger of the take of an Indiana bat is beyond the competence of this
Court, but is well within the competence of the FWS under the ITP process.”).
21 See 16 U.S.C. § 1533(a) (authorizing the grant of a permit for the taking of
an endangered species that is “incidental to, and not the purpose of, the carrying
out of an otherwise lawful activity”).
22 Id. A comparable authorization to take an endangered species is available
for projects with a federal nexus via the § 7 inter-agency consultation process.
See 16 U.S.C. § 1536.
23 Beech Ridge, 675 F. Supp. 2d at 581 (noting Congressional encouragement
to develop of wind energy through the Wind Energy Research and Develop-
ment Act of 2009, H.R. 3165, 111th Cong. (2009)).
24 See Posting of Todd Woody to Green Blog, http://green.blogs.nytimes.
com/2010/02/11/brightsource-alters-solar-plant-plan-to-address-concerns-over-
desert-tortoise/ (Feb. 11, 2010, 12:20 EST) (highlighting the threat to the desert
tortoise posed by a solar energy project); Desert Clash in West Over Solar
Power, Water, ASSOCIATED PRESS, Apr. 18, 2009, http://www.msnbc.msn.com/
id/30283556 (discussing the conflict over water as a result of its use as a cool-
ing agent in solar power generations).
25 See Hadassah M. Reimer & Sandra A. Snodgrass, Tortoises, Bats, & Birds,
Oh My: Protected-Species Implications For Renewable Energy Projects, 46
IDAHO L.R. 545, 572 (2010) (highlighting that desert solar projects could affect
the Mohave desert squirrel, burrowing owl, pygmy rabbit, and Amargosa toad).
26 See supra note 14 and accompanying text (providing information about
NRDC’s renewables map).
27 See supra notes 21-22 and accompanying text (discussing authorizations to
take endangered species).
28 See generally RENEWABLE ENERGY ACTION TEAM, BEST MANAGEMENT PRAC-
TICES & GUIDANCE MANUAL: DESERT RENEWABLE ENERGY PROJECTS (2009), http://
www.energy.ca.gov/2009publications/CEC-700-2009-016/CEC-700-2009-016-
SD-REV.PDF (recommending that “[b]ecause of the potential magnitude of
the impacts to desert tortoises from proposed renewable energy projects, FWS
and DFG must evaluate translocation efforts on a project-by-project basis in
the context of cumulative effects”); ARIZ. GAME & FISH DEP’T, GUIDELINES FOR
SOLAR DEVELOPMENT IN ARIZONA (2010), http://www.azgfd.gov/hgis/documents/
FinalSolarGuidelines03122010.pdf (providing guidelines to protect wildlife
habitat, including limiting the spread of non-native, invasive species).
29 See supra note 11 and accompanying text (providing a life-cycle analysis of
solar and wind energy).
30 See generally Elizabeth Thomas, The Myth of a Single,“Green” Power
Resource, 10 NAT. RES. & ENV’T 65 (1996) (arguing that it is more appropriate
to determine whether a certain project is appropriate in a specific location rather
than labeling any energy source as green).
ENDNOTES: WILL CLIMATE CHANGE HELP OR HARM SPECIES LISTING? continued from page 43
1 Endangered and Threatened Wildlife and Plants; Reinstatement of Protec-
tions for the Grizzly Bear in the Greater Yellowstone Ecosystem in Compliance
With Court Order (“Grizzly Bear Final Rule”), 75 Fed. Reg. 1,496 (Mar. 26,
2010) (to be codified at 50 C.F.R. pt. 17).
2 Greater Yellowstone Coalition, Inc. v. Servheen, 672 F.Supp.2d 1105 (D.
Mont. 2009).
3 Endangered Species Act, 16 U.S.C. § 1531 (1973) (declaring the inherent
“esthetic, ecological, educational, historical, recreational, and scientific value”
of endangered species to the Nation and all people).
4 G.M. Brown Jr. & J.F. Shogren, Economics of the Endangered Species Act,
12 J. ECON. PERSPECTIVES 3, 8-9 (1998).
5 See id. at 8.
6 Id. at 11-13.
7 16 U.S.C. § 1531(b) (“The purposes of this Act are to provide a means
whereby the ecosystems upon which endangered species and threatened species
depend may be conserved. . . .”).
8 See Brown & Shogren, supra note 5, at 8.
9 Greater Yellowstone Coal., Inc., 672 F.Supp.2d at 1110. A threatened spe-
cies is “any species which is in danger of extinction throughout all of a signifi-
cant portion of its range.” 16 U.S.C. § 1532(6).
10 Designating the Greater Yellowstone Area Population of Grizzly Bears as a
Distinct Population Segment; Removing the Yellowstone Distinct Population
Segment of Grizzly Bears From the Federal List of Endangered and Threatened
Wildlife; 90-Day Finding on a Petition To List as Endangered the Yellowstone
Distinct Population Segment of Grizzly Bears (“Grizzly Bear 2007 Rule”), 72
Fed. Reg. 14,866, 14,869 (Mar. 29, 2007) (to be codified at 50 C.F.R. pt. 17).
11 Great Yellowstone Coal., Inc., 672 F.Supp.2d at 1105.
12 Id.
13 GYC claimed that “(1) there are inadequate regulatory mechanisms to protect
the grizzly once it is delisted; (2) the Service did not adequately consider the
impacts of global warming and other factors on whitebark pine nuts, a grizzly
food source; (3) the population is unacceptably small and dependent on transloca-
tion of outside animals for genetic diversity; and (4) the Service did not properly
consider whether the grizzlies were recovered across a significant portion of their
range.” Id. at 1109. The first two claims succeed in court. Id. at 1126.
14 Id. at 45.
15 Id. at 24.
16 Louisa Willcox, The Good, the Bad, and the Grizzly–The Delisted Yellow-
stone Grizzly Update from Natural Resources Defense Council, PBS Nature,
http://www.pbs.org/wnet/nature/episodes/the-good-the-bad-and-the-grizzly/
the-delisted-yellowstone-grizzly-update-from-natural-resources-defense-coun-
cil/1036/ (last visited Apr. 12, 2010).
17 Greater Yellowstone Coal., Inc. , 672 F.Supp.2d at 118.
18 See Willcox, supra note 16. The FWS admitted if whitebark pines suffer a
slow decline, it will be difficult to notice any changes in the grizzly survival
rate. Presented studies portrayed a relationship between the availability of
whitebark pine nuts and grizzly bear survival and fecundity rates. Greater
Yellowstone Coal., Inc., 672 F.Supp.2d at 1120.
19 See Greater Yellowstone Coal., Inc., 672 F.Supp.2d at 1119 (discussing the dis-
connect between the studies the agency relies on and its conclusion in its 2007 Rule).
20 Id. at 1126.
21 “Grizzly Bear Final Rule,” 75 Fed. Reg. at 1496.
22 See Russell Prugh & Jessica Farrell, Despite Apparent Recovery, Climate
Change Keeps Grizzly Bears on ESA List, Marten Law, http://www.martenlaw.com/
newsletter/20091019-grizzly-bears-kept-on-esa-list (last visited Apr. 12, 2010).
23 See Greater Yellowstone Coal., Inc., 672 F.Supp.2d at 1119-20.
24 See id. at 1126-27.
25 The NOAA is also responsible under the ESA to list species and promulgate
rules for their protection. 16 U.S.C. § 1536.
26 NOAA, Eulachon, http://www.nwr.noaa.gov/Other-Marine-Species/Eula-
chon.cfm (last visited Apr. 16, 2010).
27 Id.
