Collaboration and the Ecology of Democracy

• Author: Daniel Kemmis - Matthew McKinney
• Position: author of Community and the Politics of Place and This Sovereign Land: A New Vision for Governing the West - Director, Center for Natural Resources & Environmental Policy, The University of Montana and Chair, Natural Resources Conflict Resolution Program
• Pages: 46-70

46 SUSTAINABLE DEVELOPMENT LAW & POLICY

COLLABORATION AND THE ECOLOGY

OF DEMOCRACY*

by Daniel Kemmis and Matthew McKinney**

INTRODUCTION

This article explores various citizen-driven, multiparty

natural resource and public land management col-

laborations, viewed as one emerging species within the

“ecology” of democracy. Examples from the Quincy Library

Group Partnership, Beaverhead–Deerlodge National Forest,

Blackfoot Valley, and Valles Caldera Trust will trace the trajec-

tory of collaborative democracy from its organic inception to its

present form. To anticipate the core of the argument: we believe

that the kind of problemsolving collaboration we will be exam-

ining is democratic in the most fundamental sense of that word

because it is nothing more nor less than the effort of people to

shape the conditions under which they live, rather than leaving

that shaping to someone else.

We begin by explaining what we mean by an “emergent

form of democracy.” This concept of emergence derives primar-

ily from complexity theory. Complexity theorists stress that it is

inherently impossible to provide in advance a rule or algorithm

that will produce the structure or pattern that in fact emerges.1

This phenomenon is illustrated both in the social and physical

realm: similar to emerging markets and cities, politics seem to

merge naturally out of the human condition. As the bureaucratic

state matured throughout the 20th century, it produced its own

characteristic set of mechanisms for “participatory democracy,”

including public notice and hearings, comment periods, and

administrative appeals.

In terms of the evolving ecology of democracy, a new

democratic life form is emerging in the open spaces left by

the older, established democratic forms of representative,

procedural, and direct democracy.2 This movement toward

a collaborative democracy is a direct response to some of the

shortcomings of the late 20th-century framework of procedural

democracy.3 Whatever else public hearings might accomplish,

they rarely result in democratic solutions.4 Surprisingly, it is the

stakeholders, who have battled each other in public hearings for

decades, who are beginning to engage in serious, face-to-face

problem solving.5 Therefore a desire for authentically-engaged

and constructive citizen involvement arose, producing new, less

structured forms of deliberative and collaborative democracy.

Multiparty collaborative natural resource and land manage-

ment includes elements of alternative dispute resolution and

deliberation, but also exhibits unique features that justify its

treatment as a separate species of democracy. Specif‌ically, the

emergence of collaboration is also a reaction to the previously

neglected importance of “place” when governing public lands.

Because so much of the collaborative experience to this point is

place-driven, it seems worthwhile to explore what there is about

place-focused problems in land management that has produced

so much of this emergent democratic form.

THE EMERGENCE OF COLLABORATIVE LAND

AND NATURAL RESOURCES MANAGEMENT IN THE

AMERICAN WEST

To that end, we turn our attention to the remarkable spread

of collaborative practices in our own place—the American

West—and to a range of collaborative activities arising within

this familiar setting. The West is characterized by contentious,

fairly localized natural resource issues on or near public lands

in the western states.6 Our hope is that, by examining how col-

laboration has emerged and matured in this rather narrow niche of

public land management, we can develop useful methodologies for

studying what catalyzes, constrains, and sustains its existence (or

for studying what might cause its failure to thrive) in other settings.

There are two especially salient components of this land

management niche. One is literally ecological: these collabora-

tions, without exception, revolve around the uses to be made of

very specif‌ic landscapes, as well as the soil, water, f‌lora, and

fauna of those landscapes.7 Part or all of each of these landscapes

consist of public land, usually administered either by the U.S.

Forest Service or the Bureau of Land Management.8 In most

cases, the parties to the collaboration include natural resource

extractors and users of the public land in question on the one

hand (timber or grazing interests, for example) and conserva-

tionists seeking to protect the land or the species inhabiting it

on the other.9 A fundamental feature of the dynamics behind

collaboration in these cases is the simple fact that different

people or interests have conf‌licting objectives for what should

happen to one particular piece of land and its natural resources.

The second key component of this setting is the existing

decision-making system that constitutes the governing frame-

work for the public lands. This decision structure is remark-

ably complex, comprising a broad range of statutes such as the

National Environmental Policy Act of 1969 (“NEPA”),10 the

*This article has been adapted from Collaboration and the Ecology of Democ-

racy (Kettering Foundation, 2011), a book-length monograph by Kemmis and

McKinney. The editors of this journal have revised and adapted the longer mono-

graph for purposes of this journal.

** Daniel Kemmis is the author of Community and the Politics of Place and This

Sovereign Land: A New Vision for Governing the West.

Matthew McKinney is Director, Center for Natural Resources & Environmental

Policy, The University of Montana and Chair, Natural Resources Conf‌lict Reso-

lution Program.

47FALL 2011

Endangered Species Act of 1973 (“ESA”),11 the National Forest

Management Act of 1976 (“NFMA”),12 the Federal Land Policy

and Management Act of 1976 (“FLPMA”),13 and the Federal

Advisory Committee Act of 1972 (“FACA”).14 These statutes

are further f‌leshed out by a corresponding and even more volu-

minous set of agency regulations, multiple layers of appeals

(including frequent recourse to federal courts), and the case law

emerging from that litigation.15 This is the “procedural republic”

in all its glory.16

The increasing problems with this governing framework

have been extensively noted and analyzed. For example, former

Secretary of the Interior Cecil Andrus describes the public land

and natural resources governance system as “the tangled web of

overlapping and often contradictory laws and regulations under

which our federal public lands are managed.”17 Congressman

Scott McInnis, former Chair of the Subcommittee on Forests and

Forest Health, def‌ines the system as “a decision-making appa-

ratus that is on the verge of collapsing under its own weight.”18

Similarly, former Forest Service Chief Jack Ward Thomas calls

this governing framework “a sort of blob,”19 and in June 2002,

Forest Service Chief Dale Bosworth presented to Congress a

report entitled, “The Process Predicament,” which describes the

effects of regulatory and administrative gridlock on national for-

est management.20 The report focused heavily on the Agency’s

increasing inability to fulf‌ill its primary duties.21 The undeniable

fact remains that the current resolution processes for addressing

natural resource conf‌licts on public lands simply do not work.

Collaborative democracy is emerging so profusely in this

setting because many of the people with the greatest stakes in

the landscapes in question f‌ind that the existing decision system

cannot reconcile competing stakes in these resources as effec-

tively as can the stakeholders themselves acting on their own ini-

tiative.22 This response is especially rife in the vast reaches of the

West where public lands and natural resources are so prevalent.23

Here, in what is often referred to as the “public lands West,” we

have seen a steadily growing number of local agreements among

environmentalists, ranchers, loggers, miners, and recreation-

ists about how the public land and natural resources should be

managed in their particular river drainage area or ecosystem.24

More and more Westerners have come to realize that they

can do better by their communities, economies, and ecosystems

by working together outside of the established, centralized

governing framework.25 Accordingly, they have largely aban-

doned the cumbersome, uncertain, underfunded, and increas-

ingly irrelevant mechanisms of that older structure.26

The collaboration movement is a pragmatic response to the

slowly accumulating evidence that our historical experiment

with proceduralism produces mixed results at best. The more

statutory and regulatory layers added to any particular issue, the

denser the maze and the higher the likelihood that the system

will malfunction. Then, it is not surprising that the “public lands

West,” where more layers exist than anywhere else, is the place

where the search for an alternative decision making structure is

most active.27 It is because the existing system is so pervasively

and palpably unworkable out West that people are willing to

put so much work into fashioning an alternative. It is this set

of circumstances, above all, that is propelling the collaborative

movement in the West.

There is simply too much at stake to let the prevailing

system continue—and inevitably fail. As such, the collaborative

method of resolving public land and natural resource issues has

spread across the region evolving from a purely organic creation

into its now-institutionalized state.28 And although some agen-

cies now promote collaboration in a variety of ways,29 this has

not established the method’s foothold on the landscape at any-

one’s direction or by anyone’s design; collaborative democracy

remains almost entirely undirected and most often occurs with-

out any off‌icial sanction or any clear way of connecting it to the

existing decision structure.30 Thus, we will begin our tour of this

democratic evolution with the most feral examples of collabora-

tion, and then move on to more domesticated instances.

THE QUINCY LIBRARY GROUP

The Quincy Library Group is a typical example of a

collaborative effort that arose organically and originated outside

the established governing structure. In Quincy, California, mutu-

ally dissatisf‌ied with a management plan proposed by the Forest

Service, a group of loggers, environmentalists, citizens, and local

government off‌icials from the area came up with an alternative

f‌ive-year management plan to preserve old growth, endangered

species habitats, and roadless areas for 2.5 million acres of forest

surrounding Quincy, and also to keep the town’s local sawmills

in business.31 Unable to persuade the Forest Service to adopt

the plan through the traditional methods, the group enlisted the

support of their congressional delegation and eventually got their

bill through Congress in 1996.32 Ultimately, the locally initiated

collaboration created a congressionally binding resolution to the

region’s valuable timber resources.33

THE BEAVERHEAD–DEERLODGE PARTNERSHIP

The Beaverhead–Deerlodge Partnership is another example

of the organic development of collaborative democracies. This

Partnership emerged in response to the Forest Service’s forest

plan review, which the Forest Service is obligated to conduct

at least every f‌ifteen years.34 In keeping with that requirement,

the Forest Service published a new draft forest plan for the

Beaverhead–Deerlodge National Forest of southwestern Montana

in 2006.35 But reactions to the draft plan were mixed.36 Con-

servationists and timber interests had a shared history of deep

antagonism, in which they had typically taken diametrically

opposed positions at public hearings on anything proposed by the

Forest Service.37 Thus, the owners of the locally owned lumber

mills still operating in the area, already hard-pressed by global

competition, were concerned that the proposed plan would drive

them out of business because it would not allow them to har-

vest enough timber from the national forest to keep their mills

running.38 Conservationists, on the other hand, were convinced

that the proposed plan was short on wilderness designation and

that the proposed f‌ish and wildlife programs were not protective

enough of threatened species.39

48 SUSTAINABLE DEVELOPMENT LAW & POLICY

One local sawmill owner, Sherman Anderson, observed that

environmental activism and Forest Service policy had reduced

the amount of public timber coming into his sawmill from ninety

percent of his feedstock to f‌ive percent.40 Those supply prob-

lems, coupled with f‌ierce competition from Canadian mills, had

driven a steady stream of small sawmills out of business over the

last few years.41 Anderson, operating at a loss even before the

bottom dropped out of the housing market in the recession of

2008, feared that he would be next.42

After years of conventional management tactics that

resulted in this situation, representatives from f‌ive Montana

lumber mills instead began meeting independently with local

representatives from the National Wildlife Federation, the

Montana Wilderness Association, and the Montana Trout

Unlimited to explore whether they might collectively f‌ind more

benef‌icial outcomes for forest management than those proposed

by the Forest Service.43 This collaborative effort became known

as the Beaverhead–Deerlodge Partnership.44 The partners found

common ground after some of the conservationists acknowl-

edged that logging itself was not necessarily bad for wildlife

and water quality if it was conducted in the right way and at

the right scale.45 The timber interests, meanwhile, acknowledged

the conservationists’ view that substantial portions of the forest

should not be logged, but would be better protected as wilder-

ness.46 The two sides hammered out ways to f‌it f‌ish and wildlife

restoration into a sustainable timber-harvesting program.47 The

Partnership’s laborious efforts were eventually incorporated into

legislation introduced by Senator Jon Tester, which is currently

pending in Congress.48

THE BLACKFOOT CHALLENGE

As this kind of citizen-initiated collaboration has gained

momentum in the public land and resources arena, government

agencies have sometimes been invited to become collaborating

partners. Consider, for example, the Blackfoot Challenge. This

collaborative group that includes private landowners, federal and

state land managers, local government off‌icials, and corporate

landowners now coordinates much of the management of the

Blackfoot River, its tributaries, and adjacent public and private

lands—approximately 2,400 square miles in western Montana.49

Working together, the mission of the Blackfoot Challenge is

“to coordinate efforts that conserve and enhance the natural

resources and rural way of life throughout the watershed.”50 The

Blackfoot Challenge is now known nationally as a collaborative

model for preserving the wild beauty, ecological health, and

natural resources of the watershed.51

When the Obama administration launched its America’s

Great Outdoors initiative in 2010, it staged its f‌irst public event

on the ranch owned by Jim Stone, the chair of the Blackfoot

Challenge board, as a way of underscoring how important the

collaborative efforts of groups like this have become in the

recent history of American conservation.52 In a recent interview,

Denny Iverson, the Challenge Board’s Treasurer, explained

that he moved with his parents from Minnesota to a Blackfoot

Valley ranch in 1975.53 He was in high school at the time, and

he tells how his father, whose dream had long been to own a

ranch in Montana, initially struggled to make this dream ranch

prof‌itable.54 Many ranchers were already employing creative

ways to preserve their properties. For example, like many of

their neighbors, one way the Iverson’s had kept their ranch in

the black was by leasing some of the surrounding public land

for their cattle to graze on.55 As with hundreds of other ranchers

across the West, the prof‌itability of their ranch depended on the

grazing resources of those leases.56 But once public land grazing

had become a target of several national environmental groups,

these groups threatened the ranchers that their leases would not

be renewed unless grazing could be done in an environmentally

benign way.57

Another way the Iversons kept their ranch solvent was by

spending a fair amount of time in the local woods, supplying

timber to local sawmills.58 Some of that timber came from private

land, like their ranch, but some also came from Forest Service

land.59 As with public land grazing, some national environmental

groups sought to end all commercial harvesting of timber from

public land.60 If successful, those efforts would have reduced

the thin margin that supported the Iverson ranch and family.

Ultimately, the family survived by collaborating with neighbors

and local interests in the Blackfoot Challenge. Whether it was

grazing or logging, the Iversons and their neighbors (including

the neighboring sawmills) learned that they had to become

conservationists to preserve their way of life. It is primarily the

Blackfoot Challenge that enabled them to do that. Above all, i

t has given them a new way of working with conservation

organizations like the Nature Conservancy or Trout Unlimited,

and with government agencies like the Forest Service.

Both federal and state land management agencies are seated

on the Board of Blackfoot Challenge, and Iverson spends a lot

of time working with them.61 When asked whether his involve-

ment with this collaborative group has changed his view of

government, Iverson responded, “It’s changed it in a big way.

Before, I was just trying to scratch a living out of the ground.

I was a pretty right-wing conservative, with very little use for

government, especially the federal government.”62 Although he

has not changed his core principles, he now recognizes that both

he and the government agencies have changed since their initial

consultations; Iverson considers himself to be more moderate

than before, 63 and says that the agencies are “more eff‌icient

[and] more responsive.”64 Iverson attributes his involvement with

the Blackfoot Challenge with enabling him to see the agency

personnel as people who share similar community values.65

According to Iverson, “When the meeting’s over, we’ll buy them

a beer. In fact, we’d never have gotten to know each other so well

if we hadn’t started going to Trixie’s Antler Saloon together.”66

Iverson and the Blackfoot Challenge have show “how govern-

ment works—or maybe more important, how it can work.”67

Here again, as with the Beaverhead-Deerlodge Partnership,

a diverse group of citizens has taken the initiative to conserve a

place that is near and dear to their hearts. As a result, the Black-

foot Challenge’s mission statement, “to coordinate efforts that

49FALL 2011

conserve and enhance the natural resources and rural way of life

throughout the watershed,” has f‌inally become a reality.68

THE VALLES CALDERA TRUST

At present, one of the strongest tributes to the effective-

ness of collaboration in the public land and resource arena

is the fact that the practice itself has become more often

blessed, if not mandated, by both statutes and agency rules and

procedures.69 One good statutory example is the Valles Caldera

Trust.70 In 2000, Congress acquired the privately-owned Baca

Ranch in northern New Mexico.71 Instead of giving one of the

existing land management agencies responsibility for this newly

acquired public land, Congress mandated that “an experimental

management regime should be provided by the establishment of

a trust capable of using new methods of public land manage-

ment that may prove cost-effective and environmentally sensi-

tive.”72 Specif‌ically, Congress established a diverse, multiparty

governing board for the land and its natural resources and, in

effect, mandated that it be managed collaboratively.73 Given the

initial success of the Valles Caldera Trust, Congress again called

collaboration into play three years later in the Healthy For-

ests Restoration Act of 2003.74 This shows that Congress has

conf‌idence in the various stakeholders’ ability to “reduce wildf‌ire

risk to communities, municipal water supplies, and other at-risk

Federal land through a collaborative process of planning, priori-

tizing, and implementing hazardous fuel reduction projects.”75

MOVING TOWARDS GOVERNMENT-INITIATED

COLLABORATIVE LAND AND NATURAL

RESOURCE MANAGEMENT

Following this trend toward governmental involvement,

public land management agencies themselves now routinely

invite or encourage collaboration among various stakeholders.

To illustrate this type of collaboration, consider the ongoing

process to develop a new planning rule for the Forest Service.

The National Forest Management Act (“NFMA”), which governs

land and resource management in the national forests, requires

the Agency to develop plans for all national forests and grass-

lands.76 The Forest Service adopted the f‌irst set of rules to guide

the development of these plans in 1979.77 Although the planning

rules were revised in 1982, all four subsequent attempts to revise

the rules have each failed.78

In 2009, at the direction of the Obama administration,

the Forest Service launched yet another effort to revise and

update the planning rules.79 Collaboration has emerged as a

hallmark of this new process. According to the off‌icial Forest

Service website, the agency “is committed to developing a new

planning rule that endures over time. We believe a transparent

and participatory method is the best way to accomplish this.

We’ll be working hard to gather input collaboratively throughout

the development of a new planning rule.”80

This rulemaking approach is an example of how govern-

ment agencies now frequently use collaboration. In this case,

it is being used to develop administrative rules, but agencies

also increasingly use collaboration to develop policy proposals,

management plans, and site-specif‌ic work plans.81 The govern-

ment’s use of collaboration is not limited to natural resources

and environmental policy, and is increasingly invoked at every

level—local, state, and federal—to formulate (via the legislative

branch) and implement (via the executive branch) public policy.82

However, the transition of place-specific collaborative

results into legislation remains problematic. One observer has

noted, for example, “if replicated more broadly, the place-based

approach to forest management could further disaggregate the

National Forest system.”83 This concern was also echoed by

Undersecretary of Agriculture Harris Sherman when he testi-

f‌ied on Senator Tester’s pending bill, noting that place-specif‌ic

collaboration “establishes a potentially harmful precedent

because it may lead to multiple site-specif‌ic legislative efforts

transferring much needed resources from other units of the

National Forest System where priority work must also be

accomplished.”84 Here again, the diff‌iculty may be viewed as

a manifestation of the old problem of the few and the many.

The perspective of a more broadly representative, but genuinely

deliberative, public could be brought to bear on some of these

conf‌licts, which could expand the range of public involve-

ment without necessarily losing the problem solving impetus

that has led to the collaborative solution in the f‌irst place.

Integration of the enactment into legislation of place-based col-

laborative management into legislation, then, is both promising

and problematic.

The one thing that contributes most signif‌icantly to the

steady expansion of collaborative problem solving is the fact

that, in so many circumstances, it works. And in fact, it works

better than other available democratic mechanisms.85 In evo-

lutionary terms, this is a straightforward example of natural

selection: what works well survives and thrives.86 Collaboration

has gained a foothold in certain niches of our political ecology

because it brings a kind of selective advantage to those settings.

CONCLUSION

Although these government-sponsored efforts are a wel-

come addition to the ecology of democracy, they represent

a qualitatively different kind of collaboration than the type of

citizeninitiated collaboration illustrated by the Beaverhead–

Deerlodge Partnership or the Blackfoot Challenge. Our experi-

ence has convinced us that, at least in the public lands arena,

collaboration would never have been widely employed by agen-

cies, let alone mandated by legislative bodies, had it not initially

emerged in a completely organic, indirect way, and if it had not

proven its viability on the challenging political landscape that

produced it. It is this organic, citizen-initiated form of collabora-

tion that we mean when we speak of “collaborative democracy.”

Encouraging as the government adoption of collaborative

methods may be, it also raises questions about how readily col-

laboration can be transposed into settings that vary substantially

from those in which it emerged. To extend the ecological meta-

phor a step further, creating collaborative approaches to public

land and resource issues by the use of legislation or administra-

tive practice can be viewed as the equivalent of domesticating

50 SUSTAINABLE DEVELOPMENT LAW & POLICY

animals or plants that originally emerged and evolved in the

wild. Useful and often lovable as these domesticated species

may be, it nevertheless remains true that a dog is not a wolf,

nor is a cat a tiger. Thus, while we promote and encourage

collaboration in a number of constrained institutional settings,

the need to preserve space and if possible, native habitat, means

that collaborative democracy must continue to f‌lourish and

evolve in its own organic, undirected way.87

Recall, for example, the Blackfoot Challenge, the land-

owner-based group in Montana that helps to coordinate the

management of the Blackfoot River, its tributaries, and adjacent

public and private lands.88 The Challenge was organized locally,

but known nationally as a model for preserving the rural character,

ecological health, and natural beauty of its watershed.89 It sup-

ports environmentally responsible resource stewardship through

cooperation of private and public interests.90 These interested par-

ties all share a common vision of how the Challenge operates in

the Blackfoot watershed, and all believe that success is most likely

to result from building trust by working together.

The Blackfoot Challenge, however, is merely part of a

grander scheme. It is a good example of how place-based collab-

orative efforts often “nest” within one another as the watershed

lies within the much larger Crown of the Continent.91 During the

past eight years, a number of independent and complementary

initiatives (including the Blackfoot Challenge) have emerged to

promote conservation and community stewardship in this remark-

able landscape.92 These initiatives present the prospect of grander

collaboration between individual collaborative coalitions.

The enticing possibility is that this nesting of networked,

collaborative initiatives will evolve into new forms of gover-

nance. This is best described by Meg Wheatley and Deborah

Frieze in “Using Emergence to Take Social Innovations to

Scale,” as a common phase in the process of emergence char-

acterized by “the sudden appearance of a system that has real

power and inf‌luence.”93 Further, Wheatley and Frieze explain

how “[p]ioneering efforts that hovered at the periphery suddenly

become the norm.”94

This emerging system has profound implications for

regional entrepreneurs. By better understanding the emergent

properties of nested, place-based collaborative efforts in a locale

like the Crown of the Continent, individuals and organizations

will be better poised to mobilize political power and facilitate

lasting change. Coincidentally, they can also develop and test

new forms of governance, thinking regionally and acting at

whatever spatial scale makes sense.

These, then, are some of the governance implications that

seem to be manifesting in conjunction with the ongoing emer-

gence of collaboration (especially place-based collaboration) as

a democratic form. While it may be impossible to predict with

any precision what exact forms of democratic governance might

actually emerge, it seems clear that the better we understand

the dynamics driving these exciting and promising develop-

ments, the better positioned we will be to encourage those most

likely to advance both the cause of democracy and protection of

America’s natural resources.

Endnotes: Collaboration and the Ecology of Democracy

1 See generally JOHN CLEVELAND, INNOVATION NETWORK FOR COMMUNITIES,

COMPLEXITY THEORY: BASIC CONCEPTS AND APPLICATION TO SYSTEMS THINKING

(1994), available at http://www.slideshare.net/johncleveland/complexity-

theory-basic-concepts/download (providing an overview of complex adaptive

systems).

2 E.g., Tischa A. Muñoz-Erickson, Bernardo Aguilar-González, & Thomas

D. Sisk, Linking Ecosystem Health Indicators and Collaborative Management:

A Systematic Framework to Evaluate Ecological and Social Outcomes, 12

ECOLOGY & SOC’Y 1, 1 (2007), http://www.ecologyandsociety.org/vol12/iss2/

art6/ES-2007-2092.pdf (noting that collaboration is emerging as a “promising

decision-making approach for resolving conf‌licts over the management of pub-

lic lands and natural resources”).

3 Donald Snow, Coming Home: An Introduction to Collaborative Conserva-

tion, in ACROSS THE GREAT DIVIDE 1, 1–2 (Philip Brick et al. eds., 2001).

4 See NAT’L RESEARCH COUNCIL, PUBLIC PARTICIPATION IN ENVIRONMENTAL

ASSESSMENT AND DECISION MAKING 1, 9 (Thomas Dietz & Paul C. Stern, eds.,

2008) (discussing the growing tension about the continuing eff‌icacy of public

participation in agency decisionmaking).

5 See Snow, supra note 3, at 3–6 (describing how collaborators were able to

overcome gridlock among interested parties).

6 Snow, supra note 3, at 4–6.

7 See ELLEN M. WILLIAMS & PAUL V. ELLEFSON, DEP’T OF FOREST RES., PAPER

NO. 113, NATURAL RESOURCE PARTNERSHIPS: FACTORS LEADING TO COOPERATIVE

SUCCESS IN THE MANAGEMENT OF LANDSCAPE LEVEL ECOSYSTEMS INVOLVING MIXED

OWNERSHIP 1 (1996), http://www.forestry.umn.edu/prod/groups/cfans/@pub/@

cfans/@forestry/documents/asset/cfans_asset_184413.pdf (discussing how land

use goals have evolved to include ecological values).

8 See About Us – Meet the Forest Service, U.S. FOREST SERV., http://www.

fs.fed.us/aboutus/meetfs.shtml (last visited Nov. 3, 2011); Land Use Planning,

BUREAU OF LAND MGMT., http://www.blm.gov/wo/st/en/prog/planning/plan-

ning_overview.html (last visited Nov. 3, 2011).

9 See supra note 3 and accompanying text.

10 National Environmental Policy Act of 1969, 42 U.S.C. § 4332 (2006).

11 Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2006).

12 The National Forest Management Act of 1976, 16 U.S.C. §§ 1600–1614

(2006).

13 Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701–

1782 (2006).

14 Federal Advisory Committee Act of 1972, 5 U.S.C. app. 2 §§ 1–16 (2006).

15 See generally SARAH BATES VAN DE WETERING, PUB. POLICY RESEARCH

INST. OF UNIV. OF MONT., COLLABORATIVE GOVERNANCE REP. NO. 1, THE LEGAL

FRAMEWORK FOR COOPERATIVE CONSERVATION (2006), http://cnrep.org/documents/

by_author/bates/Final%20Legal%20Framework%20CC%20Report.pdf (provid-

ing an overview of public resource management laws).

16 See generally Michael J. Sandel, The Procedural Republic and the Unen-

cumbered Self, 12 POL. THEORY 81 (1984) (noting how divisions of procedural

authority at multiple levels make it diff‌icult to reach workable solutions).

17 Cecil D. Andrus & John C. Freemuth, Policy After Politics: How Should

the New Administration Approach Public Land Management in the Western

States?, 21 J. LAND RESOURCES & ENVTL. L. 1, 2 (2001).

18 Conf‌licting Laws and Regulations: Gridlock on the National Forests,

Oversight Hearing Before the Subcomm. on Forests and Forest Health of the

H. Comm. on Res., 107th Cong. 2–3 (2001) (statement of Rep. Scott McInnis,

Chairman, Subcomm. on Forests and Forest Health).

continued on page 69

51FALL 2011

adoption of the forthcoming Basin Plan and eventual compliance

with its standards.42 The MDBA faces the challenge of redirecting

policy toward a future of sustainable water use that recognizes the

vulnerability of the communities that will be affected most.43 As

the Guide’s proposals are integrated into the forthcoming Basin

Plan, the MDBA must show MDB communities how their input

has been incorporated and how the central government’s policy

decisions have the communities’ interests at heart.44 As proposed

by the Guide, the Basin Plan, and its implementation, must provide

a viable framework for balancing these considerations in order to

ensure future water resource security, economic stability, and nec-

essary environmental rehabilitation.45

WATER CRISIS IN THE MURRAY-DARLING BASIN: AUSTRALIA ATTEMPTS TO

BALANCE AGRICULTURAL NEED WITH ENVIRONMENTAL REALITY

by Joshua Axelrod

continued from page 12

the development of an island-wide master plan has been in the

works for many years, but has been repeatedly delayed.21 This

legacy of poor planning has fostered the island’s chronic sprawl,

causing increased consumption of land even as population growth

has slowed.22 By drafting and enacting a long-range master plan

focused on resolving the island’s ineff‌icient land use patterns and

prioritizing natural resource conservation, policymakers have

an opportunity to reverse this trend. Accompanied by transpar-

ency, public participation and gubernatorial accountability, the

approval of a comprehensive master plan could represent the best

hope of protecting f‌inite natural resources and promoting sustain-

able economic development on one of the world’s most densely

populated islands.23

WEAK PLANNING PROCESS FRUSTRATES PROTECTION OF PUERTO RICO’S

THREATENED COASTLINE

by Mark Borak

continued from page 23

member-nations to establish the organization’s binding powers. The

permanent-observer nations should argue that the impacts of fossil

fuel development are of global concern and affect all nations.31

Therefore, proper safety and environmental standards are needed

to ensure stable and sustainable development of the Arctic’s natu-

ral resources, a goal to which the AC is already committed.

The permanent-observer nations should also seek more inf‌lu-

ence on the affairs of the AC in relation to fossil fuel develop-

ment. Without usurping the position of the member-nations, the

permanent-observer nations should demand some limited voting

rights when the AC wishes to enact binding resolutions. Providing

the permanent-observer nations with voting rights would allow

more countries to voice their priorities and concerns, which may

force the AC member-nations to consider the implications of their

fossil fuel development plans on the global community.

If the AC member-states wish to take advantage of the ben-

ef‌its of climate change in the Arctic, they should do so in a manner

that also honors their Ottawa commitments and the AEPS. The

international community, then, should pressure the AC to make

changes to its structure and provide effective oversight of fossil

fuel extraction in the Arctic. In turn, the AC should respond by

making the Ottawa Declaration binding and enforceable upon

member-nations, allocating voting power to the permanent-

observer nations, and effectuating the needed regulations.

THE ARCTIC COUNCIL: GATEKEEPER OR DOORMAT TO THE WORLD’S NEXT

MAJOR RESOURCE BATTLE?

by Oded Cedar

continued from page 40

52 SUSTAINABLE DEVELOPMENT LAW & POLICY

Endnotes: NATURAL RESOURCES CONFLICT IN THE DEMOCRATIC REPUBLIC OF THE CONGO: A QUESTION OF GOVERNANCE?

continued from page 11

46 See OPEN SOCIETY INITIATIVE FOR SOUTHERN AFRICA, THE DEMOCRATIC REPUBLIC

OF CONGO EFFECTIVE DELIVERY OF PUBLIC SERVICES IN THE EDUCATION SECTOR 8 (2009).

47 Id. at 4.

48 See IPIS, supra note 19, at 10.

49 See Bof‌in, supra note 21, at 26.

50 Id.

51 Id. at 27.

52 See IPIS, supra note 19, at 62.

53 See WORLD BANK INSTITUTE, Overview of WBI’s Capacity Development and

Results Framework (June 1, 2011), http://wbi.worldbank.org/wbi/Data/wbi/

wbicms/f‌iles/drupal-acquia/wbi/Overview%20of%20CDRF_June1.pdf.

54 Id.

55 Id.

56 Id.

57 Id.

58 Id.

59 Id.

60 See USAID, supra note 35.

61 See IPIS, supra note 19, at 67, 71-72.

62 See The Congo Basin Forest Partnership, The Forests of the Congo Basin —

State of the Forest 2006, 17-18 (2006), http://www.gtz.de/de/dokumente/en-

state-of-forests-congo-basin-2006.pdf.

63 Id.

64 Id.

65 See Laurent Debroux et al. (eds.), Forests in Post-Conf‌lict Democratic

Republic of Congo: Analysis of a Priority Agenda 56 (2007).

66 Id. at 25-38.

67 Id. at 21-24.

68 Id. at 21.

69 Id. at 4-6.

70 See Bof‌in, supra note 21, at 24-25.

71 Id. at 30.

72 See PATRICIA KAMERI-MBOTE ET AL., EFFECTIVE NATURAL RESOURCE MANAGE-

MENT FOR CONFLICT PREVENTION: TETHERING PLURAL LEGAL NORMS IN DIVERSE

CONTEXTS IN EASTERN AFRICA (2007), http://www.asareca.org/paap/uploads/

publications/Effective%20Natural%20Resource%20Management%20for%20

Conf‌lict%20Prevention.pdf.

73 See id.

74 See United Nations Expert Group Meeting on Natural Resources and

Conf‌licts in Africa: Transforming a Peace Liability into a Peace Asset, Cairo,

Egypt, June 17-19, 2006, https://www.un.org/africa/osaa/reports/Natural

%20Resources%20and%20Conf‌lict%20in%20Africa_%20Cairo%20

Conference%20ReportwAnnexes%20Nov%2017.pdf.

75 See Overview, Democratic Republic of Congo – Forest and Nature Conser-

vation Projects, WORLD BANK (2009), http://web.worldbank.org/external/

projects/main?Projectid=P100620&theSitePK=40941&piPK=64290415&pageP

K=64283627&menuPK=64282134&Type=Overview (last visited Nov. 10, 2011).

76 Id.

77 See AFRICAN DEVELOPMENT BANK, GEOGRAPHICALLY INTEGRATED ECONMAKALA

+ REDD Pilot Project, Project Appraisal Report (2010), http://www.afdb.org/

f‌ileadmin/uploads/afdb/Documents/Project-and-Operations/RDC%20-%20

Approved%20-%20Gographically%20integrated%20Ecomakala%2B%20

REDD%20pilot%20project.pdf.

78 Id at 5.

79 Id at 6.

80 Id.

81 What is EITI?, EXTRACTIVE INDUSTRIES TRANSPARENCY INITIATIVE, http://eiti.

org/eiti, (last visited Nov. 10, 2011).

82 Democratic Republic of Congo, Candidate Country, EXTRACTIVE INDUSTRIES

TRANSPARENCY INITIATIVE, http://eiti.org/DRCongo (last visited Nov. 10, 2011).

83 Id.

84 RAINBOW INSIGHT, EVALUATING THE EITI’S IMPACT ON THE TRANSPARENCY

OF NATURAL RESOURCE REVENUES (2009) http://eiti.org/f‌iles/Rainbow%20

Insight%20Report.pdf

85 Id. at 6.

86 Id.

87 Daniel Feldman, Conf‌lict Diamonds, International Trade Regulation, and

the Nature of Law, 24 U. PA. J. INT’L. ECON. L. 835 (2003).

88 What is the Kimberley Process? KIMBERLEY PROCESS, http://www.

kimberleyprocess.com/home/index_en.html, (last visited Nov. 10, 2011).

89 Id.

90 IPIS, supra note 119, 64-65, 67.

91 See HUBERT ANDRÉ-DUMONT ET AL., DEMOCRATIC REPUBLIC OF CONGO, IN

MINING IN 35 JURISDICTIONS WORLDWIDE 62 (2011), http://www.mcguirewoods.

com/news-resources/publications/international/mining-drcongo.pdf.

92 Id.

93 OECD Seeks to Integrate Conf‌lict Minerals Rules, INTERNATIONAL TIN

RESEARCH INITIATIVE (Jul. 2011), http://www.itri.co.uk/index.php?option=com_

zoo&task=item&item_id=1950&Itemid=177.

94 The International Conference of the Great Lakes, FOREIGN AND COMMON-

WEALTH OFFICE OF THE UNITED KINGDOM (June 2011), http://www.fco.gov.uk/en/

global-issues/conf‌lict-minerals/voluntary-schemes/certif‌ication-mechanisms/-

international-conference-great-lakes-region.

95 A Phased and Constructive Approach Towards Improved Due Diligence,

Governance and Due Traceability, INTERNATIONAL TIN RESEARCH INITIATIVE

(Oct. 2009), http://www.itri.co.uk/index.php?option=com_mtree&task=att_

download&link_id=49697&cf_id=24 (last visited Nov. 11, 2011).

96 Ruben De Koning, Controlling Conf‌lict Resources in the Democratic

Republic of the Congo, STOCKHOLM INT’L PEACE RES. POLY. BRIEF (July 2010),

http://books.sipri.org/f‌iles/misc/SIPRIPB1007.pdf.

97 KPMG, DODD-FRANK CONFLICT MINERALS (SECTION 1502) OVERVIEW-

ADVISORY (Oct. 2011). http://www.kpmg.com/US/en/IssuesAndInsights/

ArticlesPublications/Documents/conf‌lict-minerals-overview-october-12-2011.pdf.

98 P. SCHUTTE ET AL., FEDERAL INSTITUTE OF GEOSCIENCES AND NATURAL

RESOURCES, THE CTC (CERTIFIED TRADING CHAINS) MINERAL CERTIFICATION SYS-

TEM: A CONTRIBUTION TO SUPPLY CHAIN DUE DILIGENCE AND GOOD GOVERNANCE IN

THE MINING SECTOR OF RWANDA AND THE GREAT LAKES REGION IN CENTRAL AFRICA

http://www.bgr.bund.de/EN/Themen/Min_rohstoffe/CTC/Downloads/paper_

SMIDI_2011.pdf?__blob=publicationFile&v=3.

99 Id.

100 See IAN GARY & TERRY L. KARL, BOTTOM OF THE BARREL: AFRICA’S OIL

BOOM AND THE Poor18-19 (2003) http://www.arts.ualberta.ca/~courses/

PoliticalScience/474A1/documents/IanGaryandTerryLynnKarlBottomof

theBarrelAfricaOilPoor.pdf.

101 Id.

102 Id. at 48.

103 Id.

104 Biodiversity Conservation in Regions of Armed Conf‌lict: Protecting World

Heritage in the Democratic Republic of the Congo, UNESCO, http://whc.

unesco.org/en/congobiodiversity/ (last visited Nov. 10, 2011).

105 Id.

106 Plantation of Fuel Wood around Virunga National Park for the Population

of Goma, WWF, http://wwf.panda.org/who_we_are/wwf_off‌ices/belgium/

projects/index.cfm?uProjectID=CD0015 (last visited Nov. 12, 2011).

107 Id.

108 See TONY MOKOMBO, TECHNICAL REPORT PRESENTED TO THE US AID FOR

THE PERIOD OF APRIL 1, 2000 – OCTOBER 31, 2000, AFRICA REGIONAL PROGRAM

FOR THE ENVIRONMENT (“CARPE”) (2000), http://pdf.usaid.gov/pdf_docs/

PDABS845.pdf.

109 See WILDLIFE CONSERVATION SOCIETY, ANNUAL REPORT 2009 (2009). http://

www.wcs.org/f‌iles/pdfs/wcs_2009_annual_report_f‌inal_wo_don_lores.pdf.

110 See Conservation International Foundation: Bonobo Conservation

Concession in Equateur Province – DRC, AFRICAN DEVELOPMENT BANK (2010),

http://www.afdb.org/en/projects-and-operations/project-portfolio/project/

p-z1-c00-025/.

111 The Republic of Congo and Rwanda are revitalizing their relations,

AFRIQUE AVENIR (Nov. 2010), http://www.afriqueavenir.org/en/2010/11/18/the-

republic-of-congo-and-rwanda-are-revitalizing-their-relations/

112 INTERNATIONAL CRISIS GROUP, SECURITY SECTOR REFORM IN THE CONGO,

AFRICA REPORT No. 104 (Feb. 2006), http://www.crisisgroup.org/~/media/Files/

africa/centralafrica/drcongo/Security%20Sector%20Reform%20in%20the%20

Congo.pdf.

113 Congolese mining ban fails to end armed control of trade, GLOBAL WITNESS

(Mar. 2011), http://www.globalwitness.org/library/congolese-mining-ban-fails-

end-armed-control-trade

114 See De Koning, supra note 98, at 5.

53FALL 2011

115 See IPIS, supra note 19, at 71-72.

116 See MEIKE WESTERKAMP ET AL., REGIONAL COOPERATION IN THE GREAT LAKES:

A CONTRIBUTION TO PEACEBUILDING? (2009), http://www.initiativeforpeace

building.eu/pdf/Regional_Cooperation_in_the_Great_Lakes_region.pdf.

117 See generally IPIS, supra note 19, at 53 (describing a dispute between arti-

sanal miners and a Canadian corporation’s rights under an exploration permit).

118 Stephanie Matti, The Democratic Republic of Congo? Corruption, Patronage,

and Competitive Authoritarianism in the DRC, 56 AFR. TODAY NO.4 (2010).

119 Id.

Endnotes WATER CRISIS IN THE MURRAY-DARLING BASIN: AUSTRALIA ATTEMPTS TO BALANCE AGRICULTURAL NEED

WITH ENVIRONMENTAL REALITY

continued from page 12

1 Fact Sheet: Managing Australia’s Water Resources, THE MURRAY-DARLING

BASIN AUTH., http://mdba.gov.au/services/publications/managing-water-resources

(last visited Oct. 31, 2011) [hereinafter Fact Sheet].

2 About the Basin, THE MURRAY-DARLING BASIN AUTH., http://www.mdba.gov.

au/explore-the-basin/about-the-basin (last visited Oct. 31, 2011) [hereinafter

About the Basin].

3 See generally View Feedback Received in 2009 and 2010, THE MURRAY-

DARLING BASIN AUTH., http://www.mdba.gov.au/have-your-say/view-feedback/

feedback-received-2009-2010 (last visited Nov. 2, 2011).

4 Fact Sheet, supra note 1.

5 See Fact Sheet, supra note 1 (specif‌ically the Water for the Future program

which includes $9 billion (Aust.) for the Australian government to invest in the

Restoring the Balance in the Murray-Darling Basin program and the Sustain-

able Rural Water Use and Infrastructure program).

6 See generally Brian D. Richter et al., Ecologically Sustainable Water Mgmt.:

Managing River Flows for Ecological Integrity, 13 ECOLOGICAL APPLICATIONS

206, 206-224 (2003) (advocating for the important benef‌its that healthy fresh-

water ecosystems confer upon human society and the need for water manage-

ment solutions that balance quantitative human water needs with the needs of

the ecosystem the water is being taken from).

7 DENIS FLETT ET AL., THE MURRAY-DARLING BASIN AUTH., REVIEW OF CAP

IMPLEMENTATION 2008-09 8 (2009), http://www.mdba.gov.au/f‌iles/publications/

MDBA-REVIEW-OF-CAP-08-09-Nov09-web.pdf.

8 Fact Sheet, supra note 1.

9 Water Act 2007 (Austl.), http://www.comlaw.gov.au/Details/C2011C00621.

10 Id.

11 See About the Murray-Darling Basin Authority, THE MURRAY-DARLING

BASIN AUTH., http://www.mdba.gov.au/about (last visited Oct. 31, 2011)

[hereinafter Murray-Darling Basin Authority].

12 See The Science Used in Developing Water Requirements for the Basin

Plan, THE MURRAY-DARLING BASIN AUTH., http://mdba.gov.au/draft-basin-plan/

science-draft-basin-plan/science-used-water (last visited Oct. 31, 2011).

13 ABARE, ENVIRONMENTALLY SUSTAINABLE DIVERSION LIMITS IN THE MURRAY-

DARLING BASIN: SOCIOECONOMIC ANALYSIS 3-4 (2010), http://www.mdba.gov.au/

f‌iles/bp-kid/1071_Eviron_MDBA_2010_report.pdf.

14 See generally MARSDEN JACOB ASSOCIATES ET AL., ECONOMIC AND SOCIAL

PROFILES AND IMPACT ASSESSMENTS FOR THE MURRAY-DARLING BASIN PLAN x

(2010) http://www.mdba.gov.au/f‌iles/bp-kid/1074-Marsden-synthesis.pdf.

15 See Draft Basin Plan, THE MURRAY-DARLING BASIN AUTH., http://mdba.gov.

au/draft-basin-plan.

16 Murray-Darling Basin Authority, supra note 11.

17 Fact Sheet, supra note 1.

18 MARK HAMSTEAD ET AL., WATER PLANNING IN THE MURRAY-DARLING BASIN:

CURRENT PRACTICES AND OPTIONS FOR DIVERSION LIMITS 4 (2009), http://www.

mdba.gov.au/f‌iles/bp-kid/1205-water-planning-mdba.pdf.

19 Fact Sheet, supra note 1.

20 ALLUVIUM, KEY ECOSYSTEM FUNCTIONS AND THEIR ENVTL. WATER REQUIRE-

MENTS 92 (2010), http://www.mdba.gov.au/f‌iles/bp-kid/1187-Alluvium-2010-

f‌inal-published-report.pdf.

21 See FRONTIER ECONOMICS, STRUCTURAL ADJUSTMENT PRESSURES IN THE

IRRIGATED AGRICULTURE SECTOR IN THE MURRAY-DARLING BASIN vi (2010),

http://www.mdba.gov.au/f‌iles/bp-kid/392-Frontier-Economics-2010-adjustment-

report-Final-for-public-release.pdf.

22 Id.

23 See EBC ET AL., CMTY. IMPACTS OF THE GUIDE TO THE PROPOSED MURRAY-

DARLING BASIN PLAN. VOLUME 1: EXECUTIVE SUMMARY 5 (2011), http://www.

mdba.gov.au/f‌iles/bp-kid/257-EBC-Vol1-exec-summary.pdf.

24 See generally MACQUARIE RIVER FOOD & FIBRE, SUBMISSION TO THE MURRAY-

DARLING BASIN AUTH. ON THE GUIDE TO THE PROPOSED BASIN PLAN 3 (2010),

http://www.mdba.gov.au/f‌iles/submissions/Macquarie%20River%20Food%20

and%20Fibre%201%20of%202.pdf.

25 NAT’L FARMERS’ FED’N, NFF SUBMISSION TO GUIDE TO THE PROPOSED BASIN

PLAN 6 (2010), http://www.mdba.gov.au/f‌iles/submissions/National_Farmers

_Federation.pdf.

26 See MACQUARIE RIVER FOOD & FIBRE, supra note 21, at 3; NAT’L FARMERS’

FED’N, supra note 23, at 6; NAT’L IRRIGATORS’ COUNCIL, SUBMISSION TO THE

“GUIDE TO THE PROPOSED MURRAY-DARLING BASIN PLAN” 4 (2010), http://www.

mdba.gov.au/f‌iles/submissions/National_Irrigators_Council.pdf.

27 ABARE, supra note 12, at 25-28.

28 MACQUARIE, supra note 25, at 4.

29 See KAREN ROBERTSON, OPINION SUBMISSION LETTER ON MDBA PLAN, http://

www.mdba.gov.au/f‌iles/submissions/Karen%20Robertson.pdf (last visited

Nov. 6, 2011).

30 ABARE, supra note 12, at 6.

31 ABARE, supra note 12, at 6

32 See generally Janet C. Neuman, Drought Proof‌ing Water Law, 7 U. DENV.

WATER L. REV. 92, 92-110 (2003) (discussing the impact of current water use

law and policy on drought-prone western states and the need for a rethinking of

water use policy that addresses water allocation rights, crop planning, subsidies,

eff‌iciency, conservation, data collection and monitoring, with a goal of “greater

appreciation of water as a precious and f‌inite resource”).

33 EBC ET AL., supra note 20, at 4-5.

34 About the Basin, supra note 2.

35 EBC ET AL., supra note 20, at 7.

36 MARSDEN JACOB ASSOCS. ET AL., supra note 13, at xv.

37 EBC ET AL., supra note 20, at 4.

38 Id. at 11.

39 Id. at 4.

40 Id. at 11.

41 See generally Alon Tal, Seeking Sustainability: Israel’s Evolving Water

Management Strategy, 313 SCIENCE 1081, 1081-1084 (2006) (examining Israel’s

ongoing water use management challenges due to a fundamental lack of water

resources and the innovations and policies that have allowed per capita water

usage to remain f‌lat for forty years despite a continuing rise in the standard of

living).

42 EBC ET AL., supra note 20, at 12.

43 See generally WENTWORTH GROUP OF CONCERNED SCIENTISTS, THE URGENT

PROVISION OF WATER TO THE COORONG AND LOWER LAKES (2008), http://www.

wentworthgroup.org/uploads/1.%20Urgent_Provision_of_Water.pdf (urging

signif‌icant reductions in water usage within the Murray-Darling Basin to

minimize the environmental and economic damage from overuse of water

resources).

44 See generally Robin Gregory et al., Bringing Stakeholder Values into

Environmental Policy Choices: A Community-based Estuary Study Case, 39

ECOLOGICAL ECONOMICS 37, 37-52 (2001) (examining past environmental policy

failures due to a lack of community input or involvement, controversial science,

and the promise to use minimal funding wisely and proposing a model for

future success in community involvement in development and implementation

of water management policy).

45 See Generally Dan A. Tarlock & Lora A. Lucero, Connecting Land, Water,

and Growth, 34 URB. LAW. 971, 971-980 (2002) (discussing the need for future

water management policies that recognize that the limits of water resource

usage have been reached and that future planning will require a comprehensive

water use policy that includes a centralized planning and enforcement scheme,

greater community input, informed decision-making, and constant monitoring

with the goal of improving water resource allocation, land-use policy, and water

conservation).

54 SUSTAINABLE DEVELOPMENT LAW & POLICY

Endnotes: BANKRUPTING PEACE SPOILERS: WHAT ROLE FOR UN PEACEKEEPERS?

continued from page 17

37 The UN Organization Stabilization Mission in the Democratic Republic of

Congo, UN PEACEKEEPING, http://www.betterworldcampaign.org/un-peacekeeping/

missions/democratic-republic-of-congo.html (last visited Nov. 21, 2011).

38 PHILIPPE LE BILLON, CTR. ON INT’L COOPERATION & POLITICAL ECON. RESEARCH

INST., RESOURCES FOR PEACE? MANAGING REVENUES FROM EXTRACTIVE INDUSTRIES

IN POST-CONFLICT ENVIRONMENTS 3 (2008), http://www.peri.umass.edu/f‌ileadmin/

pdf/working_papers/working_papers_151-200/WP167.pdf.

39 Peacekeepers intervened, for example, in the clashes between local youths

and demobilized rebel soldiers during the 2001 diamond rush in Koidu, Sierra

Leone’s diamond capital. Le Billon, supra note 38 at 3-4.

40 This reluctance was despite the fact that the mandate included coordinating

with, and assisting, Sierra Leonean law enforcement in the discharge of its

responsibilities. Sierra Leone UNAMSIL Mandate, UNAMSIL, http://www.

un.org/en/peacekeeping/missions/past/unamsil/mandate.html (last visited nov.

21, 2011).

41 Le Billon, supra note 38, at 3.

42 Id.

43 Id. at 3-4.

44 Id.

45 See generally Sarah Meek, Policing Sierra Leone, in SIERRA LEONE:

BUILDING THE ROAD TO RECOVERY 105-16 (Institute of Security Studies ed., 2003).

46 S.C. Res. 1509, § 3(r), U.N. Doc. S/RES/1509 (Sep. 19, 2003).

47 U.N. S.C. Rep. of the Panel of Experts Pursuant to Paragraph 25 of the

Security Council Resolution 1478 (2003) Concerning Liberia, ¶¶ 26-34, U.N.

Doc. S/2003/779 (Aug. 7, 2003).

48 The deployment of UNAMSIL, in contrast, was delayed in part because the

RUF maintained control of diamond-rich territories, notably in Kono District.

PHILIPPE LE BILLON, INT’L INST. FOR STRATEGIC STUDIES, FUELLING WAR: NATURAL

RESOURCES AND ARMED CONFLICTS 34 (2005).

49 Id.

50 GLOBAL WITNESS, RESOURCE CURSE OR CURE? REFORMING LIBERIA’S

GOVERNANCE AND LOGGING INDUSTRY 2 (2004).

51 Philippe Le Billon, Getting It Done: Instruments of Enforcement, in NATURAL

RESOURCES AND VIOLENT CONFLICT: OPTIONS AND ACTIONS 215, 248 (Ian Bannon

& Paul Collier, eds., 2003).

52 GLOBAL WITNESS, OPEN LETTER TO THE UN SECURITY COUNCIL, REGARDING

CONFLICT RESOURCES AND PEACEKEEPING IN LIBERIA AND THE DEMOCRATIC REPUBLIC

OF CONGO (DRC) (2005), http://www.globalwitness.org/sites/default/f‌iles/

import/Open%20letter%20to%20Security%20Council.doc.

53 The unit has also helped the mission to minimize the environmental

impact of peacekeeping operations and has conducted an environmental

baseline survey, among other activities. See Environment and Natural Resources

Unit, UNITED NATIONS MISSION IN LIBERIA (2004), http://unmil.org/2content.

asp?sub=31&main=20&pgt=2.

54 See U.N. S.C. Rep. of the Panel of Experts Pursuant to Paragraph 2 of

Security Council Resolution 1549 (2004) Concerning Liberia, ¶ 9, U.N. Doc.

S/2004/955 (Dec. 6, 2004), http://allafrica.com/download/resource/main/main/

idatcs/00010356:c529cbb6086a1044e994d0d48ca07ea5.pdf.

55 Id. at ¶¶ 98 – 102.

56 Andreu Solà-Martín, Liberia: security challenges, development fundamentals

32 THIRD WORLD QUARTERLY 1217, 1222 (2011).

57 UN sanctions were imposed on diamond exports from 2001 to 2007, and

on timber exports from 2003 to 2006. See S.C. Rep., supra note 54, at ¶¶ 24,

97; ROBERT POWELL & MOHAMED YAHYA, INT’L ALERT, THE CURRENT STATE OF

DIAMOND MINING IN THE MANO RIVER REGION AND THE USE OF DIAMONDS AS A TOOL

FOR PEACE BUILDING AND DEVELOPMENT 10, 26-27, 31 (2006).

58 UNMIL Statement, UNMIL deploys extra security in Firestone Rubber

Plantation and urges restraint, UNITED NATIONS MISSION IN LIBERIA (Dec. 7,

2007), http://unmil.org/1article.asp?id=2570&zdoc=1.

59 Africa Update, SAPA-AFP (Apr. 19, 2007), http://www.minesandcommunities.

org/article.php?a=115.

60 See S.C. Res. 1279, U.N. Doc. S/RES/1279 (Nov. 30, 1999).

61 The DRC is part of the Kimberley Process Certif‌ication Scheme; thus,

its off‌icial exports ought to exclude diamonds that come from rebel-controlled

areas. DAVID CORTRIGHT & GEORGE A. LÓPEZ, INTERNATIONAL PEACE ACADEMY,

SANCTIONS AND THE SEARCH FOR SECURITY: CHALLENGES TO UN ACTION 189 (2002).

62 S.C. Res. 1856, U.N. Doc. S/RES/1856, at 4 (Dec. 22, 2008), http://www.

undemocracy.com/S-RES-1856%282008%29.pdf.

63 Id. at 5.

64 See S.C. Res. 1857, U.N. Doc. S/RES/1857 (2008); S.C. Res. 1807, U.N.

Doc. S/RES/1804 (2008); U.N. S.C. Rep. of the Panel of Experts on Liberia

Submitted Pursuant to Paragraph 4 of Security Council Resolution 1854 (2008)

¶ 2, U.N. Doc. S/2009/290 (2009).

65 GLOBAL WITNESS, FACED WITH A GUN, WHAT CAN YOU DO? WAR AND THE

MILITARIZATION OF MINING IN EASTERN CONGO 25-26 (2009).

66 See Le Billon, supra note 18 at 2-3.

67 Some regional and UN peacekeeping units have allegedly been involved

in resource traff‌icking ;thus, there is the additional risk that, through closer

involvement with conf‌lict resources, UN personnel will become embroiled

in corruption. Matthias Basanisi, Op-Ed., Who Will Watch the Peacekeep-

ers?, N.Y. TIMES (May 23, 2008), http://www.nytimes.com/2008/05/23/

opinion/23basanisi.html.

68 See generally PHILIPPE LE BILLON, CENTER ON INT’L COOPERATION, RESOURCES

FOR PEACE? MANAGING REVENUES FROM EXTRACTIVE INDUSTRIES IN POST-CONFLICT

ENVIRONMENTS 3 (2008).

69 U.N. Charter art. 33, para. 1.

70 S.C. Res., supra note 62, at 4.

71 Id.

72 See, e.g., United Nations, Liberia: Development challenges top agenda

as the nation recovers from years of civil strife, http://www.un.org/events/

tenstories/06/story.asp?storyID=2100 (last visited, Dec. 4, 2011).

73 See, e.g., Le Billon, supra note 38 at 3.

74 Given the wide variations in the behavior of individual missions or elements

within those missions, the review provided in this chapter is only preliminary;

a systematic assessment of the involvement of UN missions in resource sectors

could contribute to more effective future peacekeeping operations. CORENE

CROSSIN ET AL., WHERE DID IT COME FROM? COMMODITY TRACKING SYSTEMS, IN

NATURAL RESOURCES AND VIOLENT CONFLICTS: OPTIONS AND ACTIONS 97, 125

(Ian Bannon & Paul Collier eds., 2003).

75 See IAN SMILLIE, VERIFOR CASE STUDY — THE KIMBERLEY PROCESS FOR

DIAMONDS 2 (2005) (showing that Russia was initially very reluctant to support

and participate in the Kimberley Process Certif‌ication Scheme because it

viewed transparency about production volume and diamond prices as an

infringement on its sovereignty and commercial interests).

76 Le Billon, supra note 68, at 10.

77 GREG MUTTITT, CRUDE DESIGNS: THE RIP-OFF OF IRAQ’S OIL WEALTH 7 (2005).

78 James Burk, Public Support for Peacekeeping in Lebanon and Somalia:

Assessing the Casualties Hypothesis, 114 Pol. Sci. Q. 53, 54 (1999).

79 DAVID CORTRIGHT & GEORGE A. LÓPEZ, supra note 61, at 156.

80 Le Billon, supra note 68, at 9.

81 Most accusations of resource appropriation have been made under the

following circumstances: when mining was being undertaken by mercenary

companies, as was the case with the South African mercenary group Executive

Outcomes, in the mid-1990s; when neighboring countries have conducted military

interventions, as both Uganda and Rwanda did during the late 1990s, in the

former Zaire/DRC; and when non-UN-mandated foreign military interventions

have been conducted, as was the case with the United States in Colombia and

Iraq. Concerns about resource appropriation may be valid for UN-mandated

peacekeeping contributors with large mining investments. In the case of the

DRC, relative stability in the most signif‌icant mining areas, especially in

Katanga, may have contributed to the neglect of “local” violence, most of

which was concentrated in the eastern part of the country and affected artisanal

mining. As long as key mining projects were not under threat, the country was

considered “at peace.” See Le Billon, supra note 51, at 26, 34, 83; Séverine

Autesserre, Local Violence, National Peace? Postwar “Settlement” in the

Eastern D. R. Congo (2003-2006), 49 AFR. STUD. REV. 1, 5 (2006).

82 Potential alternatives include targeted interventions at key sites, and backing

for judicial procedures against traders involved in conf‌lict-resource traff‌icking.

Le Billon, supra note 68, at 10-11.

83 For example, Jean-Marie Guéhenno, Special Representative of the

Secretary General for Peacekeeping Operations, has stressed that peacekeeping

deployment should take mining areas into account, a consideration that he

considered particularly important in the case of the DRC (UNSC 2007).

U.N. Env’t Programme [UNEP], From Conf‌lict to Peacebuilding: The Role

of Natural Resources and the Environment at 8, DEP/1079/GE (Feb., 2009).

55FALL 2011

84 See Michael Ross, The Natural Resource Curse: How Wealth Can Make

You Poor, in NATURAL RESOURCES AND VIOLENT CONFLICTS: OPTIONS AND ACTIONS

17, 24-32, 233-34, 243 (Ian Bannon & Paul Collier eds., 2003).

85 Id.

86 See, e.g., S.C. Res. 1643, ¶ 9, U.N. Doc. S/RES/1643 (Dec. 15, 2005).

87 U.N. S.C. Rep. of the Secretary-General on inter-mission cooperation and

possible cross-border operations between the United Nations Mission in Sierra

Leone, the United Nations Mission in Liberia and the United Nations Operation

in Côte d’Ivoire, ¶ 11, U.N. Doc. S/2005/135 (Mar. 2, 2005).

88 JEREMY M. WEINSTEIN, INSIDE REBELLION: THE POLITICS OF INSURGENT VIOLENCE

347 (2007).

89 Id.

90 This was the case, for example, in Sierra Leone, where the RUF maintained

control of the Kono diamond mines. Resources are not the only consideration,

however. In Angola, UNITA units moved from diamond-rich areas to the home-

land of its leader—a choice that was criticized from within the movement.

WEINSTEIN, supra note 87 at 9.

91 Id. at 347.

92 See generally Macartan Humphreys, Natural Resources, Conf‌lict, and

Conf‌lict Resolution: Uncovering the Mechanisms, 49 J. OF CONFLICT RESOL.,

No.4 508 (2005), http://www.columbia.edu/~mh2245/papers1/MH8JCR05_

paper.pdf.

Endnotes: THE REAL COST OF CHINA’S RARE EARTH EXPORT QUOTAS ON AMERICAN JOB SECURITY

continued from page 18

1 See, e.g., Regulatory Impediments to Job Creation: Hearing Before the H.

Comm. on Oversight & Gov’t Reform, 112th Cong. (2011).

2 Currency Exchange Rate Oversight Reform Act of 2011, S. 1619, 112th

Cong. (2011) (proposing to identify and correct misaligned currency).

3 ROBERT E. SCOTT, ECON. POLICY INST., BRIEFING PAPER NO. 323, GROWING

U.S. TRADE DEFICIT WITH CHINA COST 2.8 MILLION JOBS BETWEEN 2001 AND

2010, at 1 (2011).

4 E.g., EMILY COPPEL, AM. SEC. PROJECT, RARE EARTH METALS AND U.S.

NATIONAL SECURITY 2 (2011), available at http://americansecurityproject.org/

wp-content/uploads/2011/02/Rare-Earth-Metals-and-US-Security-FINAL.pdf.

5 See MARC HUMPHRIES, CONG. RESEARCH SERV., R41347, RARE EARTH ELE-

MENTS: THE GLOBAL SUPPLY CHAIN 3 (2011) (explaining how the demand for rare

earths is “derived” from the demand for the f‌inal products in which the minerals

are used).

6 See id. at 2; COPPEL, supra note 4, at 2 (stating that cheap labor and lax

environmental regulations are two factors that “make it much more economical

to mine and produce rare earth metals in China”).

7 E.g., HUMPHRIES, supra note 5, at 13.

8 Stormy-Annika Mildner & Gitta Lauster, Settling Trade Disputes over

Natural Resources: Limitations of International Trade Law to Tackle Export

Restrictions, 3 GOETTINGEN J. Int’l L. 251, 254 (2011).

9 See Joanna Bonarriva, Michelle Koscielski, & Edward Wilson, Export

Controls: An Overview of Their Use, Economic Effects, and Treatment in the

Global Trading System 6–7 (U.S. Int’l Trade Comm’n, Working Paper No.

ID-23, 2009).

10 See CINDY HURST, INST. FOR THE ANALYSIS OF GLOBAL SEC. [IAGS], CHINA’S

RARE EARTH ELEMENTS INDUSTRY: WHAT CAN THE WEST LEARN? 24–25 (2010)

(discussing China’s plan to stockpile rare earth minerals (“REMs”)).

11 China’s Monopoly on Rare Earths: Implications for U.S. Foreign and

Security Policy: Hearing Before the Subcomm. on Asia & the Pacif‌ic of the

H. Comm. on Foreign Affairs, 112th Cong. 1 (2011) [hereinafter Hearing]

(statement of Rep. Donald A. Manzullo, Chairman, Subcomm. on Asia & the

Pacif‌ic) (explaining how “the pricing uncertainty created by [China’s] action

threatens tens of thousands of American jobs”); see also Gao Changxin, Rare

Earth’s Surging Price, CHINA DAILY (Nov. 17, 2010, 15:13), http://www.

chinadaily.com.cn/bizchina/2010-11/17/content_11564412.htm (discussing

how foreign companies that open processing plants in Baotou will help

“transform it from a resource base into a hightechnology center”).

12 Panel Report, China – Measures Related to the Exportation of Various

Raw Minerals, WT/DS394/R (July 5, 2011).

13 The General Elimination of Quantitative Restrictions provides: “No prohibi-

tions or restrictions other than duties, taxes or other charges . . . shall be instituted

or maintained by any contracting party on the . . . exportation or sale for export

of any product destined for the territory of any other contracting party.” General

Agreement on Tariffs and Trade, Oct. 30, 1947, art. XI ¶ 1, 61 Stat. A-11, 55

U.N.T.S. 194.

14 Panel Report, China – Measures Related to the Exportation of Various Raw

Minerals, WT/DS394/R (July 5, 2011).

15 Mildner & Lauster, supra note 8, at 272–73 (quoting China Defends Export

Restrictions, BBC NEWS (Nov. 5, 2009), http://news.bbc.co.uk/2/hi/business/

8344053.stm).

16 See Panel Report, China – Measures Related to the Exportation of Various

Raw Minerals, WT/DS394/R, ¶ 7.148 (July 5, 2011) (stating that even had the

exceptions applied, China did not meet the requirements necessary to claim the

exceptions as a defense).

17 As speculated, China f‌iled an appeal on August 31, 2011. E.g., Mary Swire,

China Appeals WTO Ruling on Raw Material Exports, TAX-NEWS.COM (Sept.

5, 2011), http://www.tax-news.com/news/China_Appeals_WTO_Ruling_On_

Raw_Material_Exports____51268.html.

18 See Richard Jones, Exclusive: Inside China’s Secret Toxic Unobtainium

Mine, DAILY MAIL ONLINE (Jan. 10, 2010, 11:19 AM), http://www.dailymail.

co.uk/news/article-1241872/EXCLUSIVE-Inside-Chinas-secret-toxic-

unobtainium-mine.html (describing the lack of labor and environmental regulation

at Baiyun Obo mine and reporting that China is “restricting supply to force

manufacturers to bring their factories and technological secrets to China”).

19 See generally JUSTIN PAUL & GWENETTE CAMPBELL, U.S. ENVTL. PROT.

AGENCY, DOC. NO. 908R11003, INVESTIGATING RARE EARTH ELEMENT MINE DEVEL-

OPMENT IN EPA REGION 8 AND POTENTIAL ENVIRONMENTAL IMPACTS (2011) (providing

background on REMs and exploring mining potential in the United States).

20 See Ariel Schwartz, Can the U.S. Break China’s Stranglehold on Rare

Earth Metals?, FAST COMPANY.COM (Aug. 16, 2011), http://www.fastcompany.

com/1773009/how-the-us-could-end-up-with-a-plentiful-cheap-supply-of-

rare-earth-metals; HUMPHRIES, supra note 5, at 14.

21 E.g., HUMPHRIES, supra note 5, at 14–16.

22 See, e.g., Hearing, supra note 11, at 50 (statement of Mark A. Smith,

President & CEO, Molycorp, Inc.) (explaining that Molycorp’s plan to expand

facilities at Mountain Pass, which is often called “Project Phoenix,” will cost

$781 million).

23 See HUMPHRIES, supra note 5, at 13–15. Of the f‌ive stages in the REM

supply chain—“mining, separation, ref‌ining, alloying, and manufacturing

(devices and component parts)”—the U.S. is currently only capable of mining

and separation. Id. at 13.

24 See Brooke Infusino, Molycorp Minerals LLC, EXPLORATION PROCESSING,

http://www.exploration-processing.com/cms2/index.php?option=com_content

&view=article&id=962:molycorp-minerals-llc&catid=130&Itemid=84 (last

visited Nov. 12, 2011) (reporting that Molycorp Minerals LLC’s General

Manager, Rocky Smith, has stated that “[r]estarting rare earth mineral mining

at Molycorp could generate thousands of new jobs for all of the support busi-

nesses and as many as 900 new jobs at Molycorp Minerals”).

25 Dodd–Frank Wall Street Reform and Consumer Protection Act, Pub. L. No.

111-203, § 1502, 124 Stat. 1376, 2213–18 (2010) (to be codif‌ied at 15 U.S.C. §

78m).

26 Conf‌lict Minerals, 75 Fed. Reg. 80,948 (Dec. 23, 2010) (to be codif‌ied at 17

C.F.R. pts. 229, 249).

27 Id.

28 See S.E. Smith, Dirty, Dangerous and Destructive—The Elements of a

Technology Boom, GUARDIAN (Sept. 26, 2011, 9:00 EDT), http://www.guardian.

co.uk/commentisfree/2011/sep/26/rare-earth-metals-technology-boom (explain-

ing that the environmental damage caused by rare earth minerals occurs at two

levels: (i) during the extracting, processing, and ref‌ining stages, and (ii) after

consumers have discarded, rather than recycled, the products).

56 SUSTAINABLE DEVELOPMENT LAW & POLICY

Endnotes: HIGH-VALUE NATURAL RESOURCES: A BLESSING OR A CURSE FOR PEACE?

continued from page 22

4 Int’l Monetary Fund (“I.M.F.”), Algeria, Country Rep. No. 05/51 (Feb.

2005); Angola, Country Rep. No. 07/355 (Oct. 2007); Sudan, Country Rep.

No. 11/86 (Apr. 2011); Sierra Leone, Country Rep. No. 09/12 (Jan. 2009);

Chad, Country Rep. No. 10/196 (June 2010); Iraq, Country Rep. No. 11/75

(Mar. 2011); Socialist People’s Libyan Arab Jamahiriya, Country Rep. No.

08/301 (Sept. 2008); Nigeria, Country Rep. No. 11/57 (Feb. 2011); Niger,

Country Rep. No. 09/70 (Feb. 2009); Côte d’Ivoire, Country Rep. No. 10/228

(July 2010); Central African Republic, Country Rep. No. 10/332 (Oct. 2010);

Sean Turnell, Finding Dollars and Sense: Burma’s Economy in 2010, in FINDING

DOLLARS, SENSE, AND LEGITIMACY IN BURMA (Susan Levenstein ed., 2010).

5 I.M.F., Algeria, Country Rep. No. 05/51 (Feb. 2005); Angola, Country Rep.

No. 07/355 (Oct. 2007); Sudan, Country Rep. No. 11/86 (Apr. 2011).

6 I.M.F., Sierra Leone: Selected Issues and Stat. Appendix, IMF Country

Rep. No. 09/12 at 55 (Jan. 2009), http://www.imf.org/external/pubs/ft/scr/2009/

cr0912.pdf.

7 I.M.F., Chad: 2010 Art. IV Consultation: Staff Rep; Staff Supp.; Pub. Info.

Notice on the Exec. Bd. Discussion; and Statement by the Exec. Dir. For Chad,

IMF Country Rep. No. 10/196 at 5, 7 (June 2010), http://www.imf.org/external/

pubs/ft/scr/2010/cr10196.pdf; I.M.F., Iraq: Second Rev. under the Stand-By

Arrangement, Requests for Waiver of Applicability, Extension of the Arrange-

ment, and Rephasing of Access – Staff Rep; Press Release on the Exec. Bd.

Discussion; and Statement by the Exec. Dir. for Iraq, IMF Country Rep. No.

11/75 at 4-5 (Mar. 2011), http://www.imf.org/external/pubs/ft/scr/2011/cr1175.

pdf; I.M.F., Socialist People’s Libyan Arab Jamahiriya: Stat. Appendix, IMF

Country Rep. No. 08/301 at 4-5 (Sept. 2008), http://www.imf.org/external/pubs/

ft/scr/2008/cr08301.pdf.

8 I.M.F., Niger: Selected Issues and Stat. Appendix, IMF Country Rep. No.

09/70 at 100 (Feb. 2009), http://www.imf.org/external/pubs/ft/scr/2009/cr0970.pdf.

9 I.M.F., Côte d’Ivoire: Second Rev. under the Three-Year Arrangement

under the Extended Credit Facility, Request for Waivers of Nonobservance

of Performance Criteria, and Financing Assurances Rev. - Staff Rep.; Staff

Statement; Press Release on the Exec. Bd. Discussion; and Statement by the

Exec. Dir. for Côte d’Ivoire, IMF Country Rep. No. 10/228 at 9 (July 2010),

http://www.imf.org/external/pubs/ft/scr/2010/cr10228.pdf.

10 I.M.F., Central African Republic: Sixth Rev. under the Arrangement under

the Extended Credit Facility and Fin. Assurances Rev. – Staff Rep; Debt. Sus-

tainability Analysis; Staff Supp.; Press Release on the Exec. Bd. Discussion;

and Statement by the Exec. Dir. For Central African Republic, IMF Country

Rep. No. 10/332 at 5 (Oct. 2010), http://www.imf.org/external/pubs/ft/scr/2010/

cr10332.pdf.

11 See Sean Turnell, Finding Dollars and Sense: Burma’s Economy in 2010,

in FINDING DOLLARS, SENSE, AND LEGITIMACY IN BURMA, 29 (Susan Levenstein

ed., 2010).;.

12 For end dates of conf‌licts see generally Nils Petter Gleditsch et al., Armed

Conf‌lict 1946-2001: A New Dataset, 39 J. OF PEACE RES. 61 (2002); Lotta

Harbom & Peter Wallensteen, Armed Conf‌licts, 1946-2009, 47 J. OF PEACE

RES. 501 (2010). For all other data see I.M.F., Republic of Yemen, Country

Rep. No. 01/61 (Apr. 2001); Algeria, Country Rep. No. 05/51 (Feb. 2005);

Angola, Country Rep. No. 07/355 (Oct. 2007); Socialist People’s Libyan Arab

Jamahiriya, Country Rep. No. 08/301 (Sept. 2008); Niger, Country Rep. No.

09/70 (Feb. 2009); Chad, Country Rep. No. 10/196 (June 2010); Colombia,

Country Rep. No. 10/156 (May 2010); Côte d’Ivoire, Country Rep. No. 10/228

(July 2010); Democratic Republic of the Congo, Country Rep. No. 10/11 (Jan.

2010); Iraq, Country Rep. No. 11/75 (Mar. 2011); Nigeria, Country Rep. No.

11/57 (Feb. 2011); Sudan, Country Rep. No. 11/86 (Apr. 2011). Numbers in

parentheses indicate the year for which the data were obtained. Where there are

two columns instead of three, the data for the third column were unavailable.

For post-conf‌lict countries, data were obtained for the year following the end

of hostilities or for the f‌irst year for which they were available. (In some cases,

conf‌lict reignited after the period included in the f‌igure.) For conf‌lict-affected

countries, the data are for the latest year for which they were available. Country

data ref‌lect various resource sectors, as follows: Algeria, oil and gas; Angola,

oil, gas, and diamonds; Chad, Colombia, Libya, Nigeria, Sudan, and Yemen,

oil and gas; Côte d’Ivoire, oil, gas, and coffee; the Democratic Republic of the

Congo (DRC), mining; Iraq, oil and gas. For Niger, export share data are based

on uranium and gold, government revenues data are based on uranium, and

gross domestic product data are based on mining.

13 See generally U.N. Env’t Programme, supra note 2.

14 Paul Collier & Anke Hoeff‌ler, Greed and Grievance in Civil War, 56

OXFORD ECON. PAPERS 563, 588 (2004).

15 U.N. Secretary-General, Report of the Secretary-General on Peacebuilding

in the Immediate Aftermath of Conf‌lict, U.N. Doc. A/63/881-S/2009/304 (June

11, 2009), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/367/70/PDF/

N0936770.pdf?OpenElement; see also World Bank, World Development Report

2011 (2011), http://wdr2011.worldbank.org/sites/ default/f‌iles/pdfs/WDR2011_

Full_Text.pdf.

16 The conceptual framework adopted in this book draws substantially from

the Report of the Secretary-General on Peacebuilding in the Immediate After-

math of Conf‌lict (U.N. Secretary-General 2009), but the activities have been

regrouped and supplemented by activities articulated in Guiding principles for

stabilization and reconstruction, Humanitarian Charter and Minimum Standards

in Disaster Response (Sphere 2011), Civilian capacity in the aftermath of

conf‌lict and From Conf‌lict to Peacebuilding: The Role of Natural Resources

and the Environment. See U.N. Secretary-General, Report of the Secretary-

General on peacebuilding in the immediate aftermath of conf‌lict, 29, U.N.

Doc. A/63/881-S/2009/304 (June 11, 2009); U.S. Inst. of Peace and U.S. Army

Peacekeeping & Stability Operations Inst., Guiding principles for stabilization

and reconstruction 146 (2009), www.usip.org/ publications/guiding-principles-

stabilization-and-reconstruction; Sphere, Humanitarian Charter and Minimum

Standards in Disaster Response, Sphere Project, http://www.sphereproject.org/

content/view/720/200/lang (last visited Oct. 31, 2011); U.N., Civilian Capacity

in the Aftermath of Conf‌lict: Independent Report of the Senior Advisory Group

(Mar. 2011), www.civcapreview.org/LinkClick.aspx?f‌ileticket=K5tZZE99vzs%

3d&tabid=3188&language=en-US; see also U.N. Env’t Programme, supra note 2.

17 For the purposes of this article, the term “armed civil conf‌lict” refers to

both internal and internationalized internal conf‌licts included in the Uppsala

Conf‌lict Data Program/ Peace Research Institute Oslo (UCDP/PRIO) Armed

Conf‌lict Dataset. According to the UCDP/PRIO data set, from 1989 to 2008

there were only eight armed conf‌licts between independent countries. During

the same period, more than 120 internal conf‌licts occurred, although some of

these were internationalized in the sense that other countries provided military

support for the government or for the rebels. The preponderance of internal

conf‌licts is ref‌lected in the larger volume, which focuses on resource management

in the wake of such conf‌licts. See Gleditsch et al., supra note 12, at 615; see

also Lotta Harbom & Peter Wallensteen, Armed Conf‌licts, 1946-2008, 46 J. OF

PEACE RES. 577 (2009); Lotta Harbom & Peter Wallensteen, Armed Conf‌licts,

1946-2009, 47 J. OF PEACE RES. 501 (2010).

18 See generally Siri Aas Rustad & H. M. Binningsbø, Rapid recurrence:

Natural resources, armed conf‌lict and peace (Center for the Study of Civil War.

Oslo: Peace Research Institute Oslo, Working Paper, 2010).

19 See Paul Collier & Anke Hoeff‌ler, High-Value Natural Resources, Develop-

ment, and Conf‌lict: Channels of Causation in HIGH-VALUE NATURAL RESOURCES

AND POST-CONFLICT PEACEBUILDING (Päivi Lujala and Siri Aas Rustad eds.,

2011).

20 See Collier & Hoeff‌ler, supra note 14, at 588; Macartan Humphreys, Natural

Resources, Conf‌lict, and Conf‌lict Resolution: Uncovering the Mechanisms, 49

J. OF CONFLICT RESOLUTION 508, 511 (2005).

21 Humphreys, supra note 20, at 512.

22 Collier & Hoeff‌ler, supra note 14, at 588; Humphreys, supra note 20,

at 511-12.

23 The numerous examples of secessionist movements in resource-rich areas

include Aceh, Indonesia; Biafra, Nigeria; Bougainville, Papua New Guinea;

Cabinda, Angola; Kurdistan, Iraq; and southern Sudan. Collier & Hoeff‌ler,

supra note 14, at 588; Paul Collier & Anke Hoeff‌ler, The Political Economy of

Secession, in NEGOTIATING SELF-DETERMINATION 37, 47-48 (Hurst Hammun et al.

eds., 2006); Päivi Lujala, The spoils of nature: Armed civil conf‌lict and rebel

access to natural resources, 47 J. OF PEACE RES. 4-5 (2010).

24 See PAUL COLLIER ET AL., BREAKING THE CONFLICT TRAP: CIVIL WAR AND

DEVELOPMENT POLICY 63 (2003).

25 For further discussion of the conf‌lict in Sierra Leone, see, e.g., Roy Macon-

achie, “The Diamond Area Community Development Fund: Micropolitics and

Community-led Development in Post-war Sierra Leone,” in See also COLLIER ET

AL., supra note 24.

26 See Collier & Hoeff‌ler, supra note 14, at 588.

57FALL 2011

27 Stephanie Hanson, FARC, ELN: Colombia’s Left-Wing Guerrillas, COUNCIL

ON FOREIGN RELATIONS (Aug. 19, 2009), http://www.cfr.org/colombia/farc-eln-

colombias-left-wing-guerrillas/p9272#p4.

28 Guerrilla Miners: The FARC Turn to Gold, ECONOMIST at 36 (Jan. 29,

2011); Simon Romero, In Colombia, New Gold Rush Fuels Old Conf‌lict,

NEW YORK TIMES (Mar. 3, 2011), http://www.nytimes.com/2011/03/04/world/

americas/04colombia.html?pagewanted=all.

29 See COLLIER ET AL., supra note 24, at 60.

30 See U.N. Env’t Programme, supra note 2, at 6.

31 See COLLIER & HOEFFLER, The Political Economy of Secession, supra note

23, at 47-48; Michael Ross, How Do Natural Resources Inf‌luence Civil War?

Evidence From Thirteen Cases, 50 INT’L ORG. 35 (2004); Päivi Lujala, The

Spoils of Nature: Armed Civil Conf‌lict and Rebel Access to Natural Resources,

47 J. OF PEACE RES. 4-5 (2010).

32 See COLLIER ET AL., supra note 24, at 127.

33 See COLLIER ET AL., supra note 24, at 127.

34 See Gleditsch et al., supra note 12, at 615 (The Uppsala Conf‌lict Data

Program/Peace Research Institute Oslo Armed Conf‌lict Dataset def‌ines conf‌lict

as an armed contestation between the government in a country and a rebel

organization in which more than twenty-f‌ive battle-related deaths occur. The

f‌igure includes all armed civil conf‌licts active from 1970 to 2008); Harbom

& Wallensteen, Armed Conf‌licts, 1946-2008, supra note 17, at 577.; Lotta

Harbom & Peter Wallensteen, Armed Conf‌lict, 1989-2006, 44 J. OF PEACE RES.

623 (2007). Resource data: Rustad & Binningsbø, supra note 18.

35 RICHARD M. AUTY, SUSTAINING DEVELOPMENT IN MINERAL ECONOMIES: THE

RESOURCE CURSE THESIS 1 (1993).

36 Id. (coining the term “resource curse,” which refers not only to poor eco-

nomic development, but also to other negative political and social outcomes

that have been associated with abundant natural resources, including detach-

ment from the electorate and increased risk of armed conf‌lict); TERRY L. KARL,

THE PARADOX OF PLENTY: OIL BOOMS AND PETRO-STATES 242 (1997) (coining the

term “paradox of plenty,” which refers to the destabilization of states endowed

with natural resources).

37 KARL, supra note 36, at 32; Nadira Lalji, The Resource Curse Revised, 29

HARV. INT’L REV. 34 (2007); Michael L. Ross, Blood Barrels, 87 FOREIGN AFF.

2, 8 (2008).

38 See Humphreys, supra note 20, at 512.

39 KALU N. KALU, STATE POWER, AUTARCHY, AND POLITICAL CONQUEST IN

NIGERIAN FEDERALISM 124-26 (2008).

40 KALU, supra note 39, at 125.

41 See U.S. Inst. of Peace and U.S. Army Peacekeeping & Stability Operations

Inst., Guiding principles for stabilization and reconstruction 146 (2009), www.

usip.org/ publications/guiding-principles-stabilization-and-reconstruction.

42 See COLLIER ET AL., supra note 24, at 180; see also World Bank, supra note

15, at 19.

43 See Humphreys, supra note 20, at 534; Havard Hegre & Nicholas Samba-

nis, Sensitivity Analysis of Empirical Results on Civil War Onset, 50 J. OF

CONFLICT RESOLUTION 508, 531 (2006).

44 See, e.g., Collier & Hoeff‌ler, supra note 14, at 588; James D. Fearon &

David D. Laitin, Ethnicity, Insurgency, and Civil War, 97 AM. POL. SCI. REV.

75 (2003); Hegre & Sambanis, supra note 43, at 531.

45 See, e.g., Fearon & Laitin, supra note 44.

46 See Ross, supra note 31, at 35.

47 Fearon & Laitin, supra note 44, at 87; Indra De Soysa & Eric Neumayer,

Resource Wealth and the Risk of Civil War Onset: Results from a New Dataset

of Natural Resource Rents, 1970-1999, 42 CONFLICT MGMT. AND PEACE SCIENCE

201, 216 (2007); Humphreys, supra note 20, at 525; Päivi Lujala, The spoils

of nature: Armed civil conf‌lict and rebel access to natural resources, 47 J. OF

PEACE RES. 15, 16 (2010).

48 Lujala, supra note 47, at 16.

49 Id.

50 See COLLIER & HOEFFLER, The Political Economy of Secession, supra note

23, at 37.

51 See James D. Fearon, Why Do Some Civil Wars Last so Much Longer than

Others?, 41 J. OF PEACE RES. 275, 284 (2004).

52 Id. at 277.

53 Michael Ross, What Do We Know about Natural Resources and Civil War,

41 J. OF PEACE RES. 337, 338 (2004).

54 Id. at 338; Fearon, supra note 51, at 284; Siri Aas Rustad et al., Foliage and

Fighting: Forest Resources and the Onset, Duration and Location of Civil War,

27 POL. GEOGRAPHY 761, 761 (2008).

55 Ross, supra note 53, at 338.

56 See Le Billon, supra note 3, at 564.

57 See Ross, supra note 31, at 35.

58 Id. at 52.

59 Päivi Lujala, Deadly Combat Over Natural Resources: Gems, Petroleum,

Drugs, and the Severity of Armed Civil Conf‌lict, 53 J. OF CONFLICT RESOLUTION

50, 54 (2009) (An extreme case is offshore oil and gas drilling, in which the

product can be exported by pipelines or ships without ever being present on

land in the producing country.)

60 Id. at 68.

61 See Le Billon, supra note 3, at 574.

62 See Lujala, supra note 59, at 55.

63 See Le Billon, supra note 3, at 562.

64 Id. Resources that are used to f‌inance conf‌lict are sometimes referred

to as “conf‌lict resources.” Although specif‌ic def‌initions of the term vary, one

widely used def‌inition is that of Global Witness: “Conf‌lict resources are natu-

ral resources whose systematic exploitation and trade in a context of conf‌lict

contribute to, benef‌it from or result in the commission of serious violations

of human rights, violations of international humanitarian law or violations

amounting to crimes under international law.” Because this def‌inition applies

only to conf‌licts in which there are specif‌ic violations of international law, it

has a somewhat narrower scope than others. See also Conf‌lict, GLOBAL WITNESS,

http://www.globalwitness.org/campaigns/conf‌lict (last visited Oct. 27, 2011).

65 See Ross, supra note 31, at 41.

66 See Le Billon, supra note 3, at 562. There are other f‌inancing sources,

including payments from nationals living abroad and voluntary and nonvolun-

tary support from civilians.

67 See Ross, supra note 31, at 350.

68 Id. at 344.

69 Id. at 346 n.13. (Alluvial deposits are found in sand, clay, and gravel

discharged by rivers. Existing or ancient riverbeds can be mined using simple

tools such as shovels, buckets, and pans.).

70 World Bank. World Development Report 2011 at 81 (2011), http://wdr2011.

worldbank.org/sites/ default/f‌iles/pdfs/WDR2011_Full_Text.pdf; COLLIER ET

AL., supra note 24, at 76.

71 See COLLIER ET AL., supra note 24, at 77.

72 See Ross, supra note 31, at 351 (discussing the “Kimberly Process”).

73 See Ross, supra note 31, at 64.

74 See Le Billon, supra note 3, at 565.

75 See generally U.N. Env’t Programme, supra note 2.

76 Id.

77 See COLLIER ET AL., supra note 24, at 179; Lujala, supra note 59, at 57.

78 See Fearon & Laitin, supra note 44, at 87.

79 U.N. Security Council, Report of the Secretary-General on the Protection

of Somali Natural Resources and Waters, 11-12, U.N. Doc. S/2011/661 (Oct.

25, 2011).

80 World Bank. World Development Report 2011 at 64 (2011) http://wdr2011.

worldbank.org/sites/ (It is important to note that, in some cases, high-value

resources have nothing to do with triggering or f‌inancing the conf‌lict—but as

the conf‌lict winds down, they become important issues to be addressed in the

peacebuilding process.).

81 See generally U.N. Env’t Programme, supra note 2.

82 See Collier & Hoeff‌ler, supra note 14, at 588.

83 See Rustad & Binningsbø supra note 18, at 16 (The term “conf‌lict episode”

refers to how a conf‌lict is reported in the UCDP/PRIO Armed Conf‌lict Dataset:

a peace period is def‌ined as the absence of conf‌lict for more than two calendar

years, and begins the f‌irst day that hostilities end, e.g., after military victory by

one side.). See Gleditsch et al., supra note 12, at 615; Harbom & Wallensteen,

Armed Conf‌lict, 1989-2006, supra note 34; Harbom & Wallensteen, Armed

Conf‌licts, 1946-2008, supra note 17, at 577. The Rustad and Binningsbø 2010

study considers oil, gas, diamonds, minerals, forest resources, land, and agricul-

tural products (including crops used to produce drugs), and all internal conf‌licts

from the UCDP/PRIO Armed Conf‌lict Dataset from 1946 through 2006.

84 U.N. Secretary-General, Report of the Secretary-General on Peacebuilding

in the Immediate Aftermath of Conf‌lict, 29, U.N. Doc. A/63/881-S/2009/304

(June 11, 2009).

58 SUSTAINABLE DEVELOPMENT LAW & POLICY

Endnotes: WEAK PLANNING PROCESS FRUSTRATES PROTECTION OF PUERTO RICO’S THREATENED COASTLINE

continued from page 23

1 See Sierra Club, Petition to Revise Critical Habitat for the Endangered

Leatherback Sea Turtle 30 (Feb. 22, 2010), http://www.nmfs.noaa.gov/pr/pdfs/

petitions/leatherback_criticalhabitat_feb2010.pdf.

2 Id. at 31-33.

3 Id. at 6.

4 See Sierra Club, Petition to Revise Critical Habitat for the Endangered

Leatherback Sea Turtle 13 (Nov. 2, 2010), http://www.nmfs.noaa.gov/pr/pdfs/

petitions/leatherback_criticalhabitat_nov2010.pdf; See also NAT ‘L MARINE

FISHERIES SERVICE & U.S. FISH AND WILDLIFE SERV., LEATHERBACK SEA TURTLE

(DERMOCHELYS CORIACEA) 5 YEAR REVIEW: SUMMARY AND EVALUATION 14-15

(2007), http://www.nmfs.noaa.gov/pr/pdfs/species/leatherback_5yearreview.pdf.

5 Id. at 32.

6 Endangered and Threatened Wildlife and Plants; 90-Day Finding and

12-Month Determination on a Petition To Revise Critical Habitat for the

Leatherback Sea Turtle, 76 Fed. Reg. 47133 (Aug. 4, 2011) (to be codif‌ied

at 50 C.F.R. pt. 17), available at http://www.regulations.gov/#!document

Detail;D=FWS-R4-ES-2011-0045-0001 (explaining that the revision is being

done based on a recommendation from the EPA’s f‌ive-year review of listed sea

turtle species and upon completion of the review, the EPA would determine

whether changes to the species status or critical habitat needed to be made).

7 See id. at 47138-9.

8 Puerto Rico Preserves Beach from Development, MSNBC.com, (updated

Oct. 5, 2007 12:27:24 PM ET), http://www.msnbc.msn.com/id/21148775/ns/

us_news-environment/t/puerto-rico-preserves-beach-development/.

9 Kevin Mead, Coalition Blasts Newly Stamped NEC Plan, CARIBBEAN BUSI-

NESS (July 5, 2011), http://cbonlinepr.com/news03.php?nt_id=59214&ct_id=1.

10 Id.; see also PLAN Y REGLAMENTO DE CALIFICACIÓN ESPECIAL, AREA DE

PLANIFICACIÓN ESPECIAL DE LA GRAN RESERVA DEL NORESTE (APEGRN), RULE

8042, PUERTO RICO PLANNING BOARD (July 5, 2011), http://www.jp.gobierno.pr/

Portal_JP/Portals/0/Reglamentos/Plan%20y%20Reglamento%20APEGRN%20

Parte%20III.pdf.

11 Orden Ejecutiva del Gobernador de Puerto Rico, ADMINISTRATIVE BULLETIN

NO. OE-2009-042, Oct. 30, 2009, http://www.jp.gobierno.pr/Portal_JP/Portals/0/

VP/BorradorVP/III(1a)%20OE-2009-42A%20APECEN_r.pdf.

12 Puerto Rico Permit Process Reform Act, 2009 P.R. Laws 161, 65, http://

www.jp.gobierno.pr/Portal_JP/Portals/0/Leyes/Ley_Num_161.pdf.

13 See Aura N. Alfaro, NEC Gains Ground, but Criticism Lingers, CARIBBEAN

BUSINESS, (July 1, 2011), http://www.caribbeanbusinesspr.com/news03.php?nt_

id=59063&ct_id=1; See also Maria Miranda, Environmental Group Files Law-

suit Regarding NEC, PUERTO RICO DAILY SUN (August 10, 2011), http://www.

prdailysun.com/index.php?page=news.article&id=1312947087.

14 See Mead, supra note 9.

15 Raissa Calderón Mauras-Ricci, Legislation Proposed to Protect the NEC,

PUERTO Rico Daily Sun (Sept. 24, 2011), http://www.prdailysun.com/index.

php?page=news.article&id=1316918892.

16 Fortuño Off‌icials Linked to NEC Area Developers, PUERTO RICO DAILY

SUN (Oct. 26, 2011), http://www.prdailysun.com/index.php?page=news.

article&id=1319598119.

17 Id.

18 See generally George J. Stigler, The Theory of Economic Regulation, 2

THE BELL JOURNAL OF ECONOMICS AND MANAGEMENT SCIENCE, No. 1, 3-21

(Spring, 1971), http://www.giuripol.unimi.it/Materiali%20Didattici/Regolazione

%20dei%20Mercati%20-%20Ammannati/STIGLER_economicRegulation.pdf

(introducing the modern theory that in time regulatory agencies come to be

controlled by the industries they regulate).

19 See Irina Slinko et. al., Laws for Sale: Evidence from Russia, 7 AM. L.

& ECON. REV. 284, 285 (2005).

20 See Sebastián Martinuzzi et al., Land Development, Land Use, and Urban

Sprawl in Puerto Rico Integrating Remote Sensing and Population Census

Data, 79 LANDSCAPE & URB. PLAN. 288, 289 (2007), http://www.fs.fed.us/global/

iitf/pubs/ja_iitf_2007_martinuzzi001.pdf.

21 See Thomas H. Douthat, “Puerto Rico, You Lovely Island ... Puerto Rico,

You Ugly Island”: Combating Criollo Sprawl-the Puerto Rico Land Use Plan

and Transect-Based Zoning As A Solution to the Island’s Land Use Problems,

76 REV. JUR. U.P.R.441, 453-54 (2007).

22 Id. at 441, 443.

23 See MARÍA JUNCOS-GAUTIER ET AL., FINAL REPORT: LAND USE SUSTAINABILITY

INDEX FOR PUERTO RICO (2009), http://cfpub.epa.gov/ncer_abstracts/index.cfm/

fuseaction/display.abstractDetail/abstract/7535/report/F.

Endnotes: LIQUID CHALLENGES: CONTESTED WATER IN CENTRAL ASIA

continued from page 30

67 Antipova, et al., supra note 10, at 505-06.

68 WEINTHAL, supra note 23, at 7.

69 Bo Libert et al., Water and Energy Crisis in Central Asia, 6 CHINA &

EURASIA FORUM QUARTERLY 3, 10 (2008).

70 Id. at 10-11.

71 David Trilling, Kyrgyzstan: Melting Glaciers Threaten Central Asia’s

Ecological and Energy Future, EURASIANET.ORG (Oct. 18, 2010), http://www.

eurasianet.org/node/62177.

72 Id.

73 Id.

74 Id.

75 Libert et al., supra note 70, at 10.

76 Libert et al., supra note 70, at 14.

77 Libert et al., supra note 70, at 10.

78 Libert et al., supra note 70, at 10.

79 ICG ASIA REPORT NO. 34, supra note 32, at 23.

80 Libert, et al., supra note 70, at 14.

81 ICG ASIA REPORT NO. 34, supra note 32, at 23.

82 BANK INFORMATION CENTER, TAJIKISTAN’S ROGUN HYDRO: SOCIAL AND ENVI-

RONMENTAL ASPECTS 1, 6 (2011).

83 Id. at 6.

84 Id.

85 See CHRISTINE BICHSEL, CONFLICT TRANSFORMATION IN CENTRAL ASIA: IRRI-

GATION DISPUTES IN THE FERGHANA VALLEY 38-40 (2009) (discussing irrigation

issues in the FerghanaValley).

86 Sievers, supra note 45, at 374.

87 Sievers, supra note 45, at 374-75.

88 ICG ASIA REPORT NO. 34, supra note 32, at 5.

89 Sievers, supra note 45, at 365.

90 ICG ASIA REPORT NO. 34, supra note 32, at 4.

91 Sievers, supra note 45, at 374, 401.

92 ICG ASIA REPORT NO. 34, supra note 32, at 5.

93 ICG ASIA REPORT NO. 34, supra note 32, at 13-14.

94 ICG ASIA REPORT NO. 34, supra note 32, at 5, 12-13.

95 ICG ASIA REPORT NO. 34, supra note 32, at 12.

96 Martin Kipping, Can “Integrated Water Resources Management” Silence

Malthusian Concerns? The Case of Central Asia, 2 WATER INT’L 305, 311

(2008).

97 See Kipping, id. at 311 (arguing that the transnational nature of the water

makes the local conf‌licts more diff‌icult to resolve).

98 Cf. HAMMOND MURRAY-RUST ET AL., INT’L WATER MGMT. INST., RESEARCH

REPORT NO. 67, WATER PRODUCTIVITY IN THE SYR DARYA-RIVER BASIN 1, 4-5

(2003) (discussing the creation and effect of the ICWC as a means of reforming

water management in the Syr-Darya River Basin).

99 ICG ASIA REPORT NO. 34, supra note 32, at 15-16.

100 ICG ASIA REPORT NO. 34, supra note 32, at 16.

101 ICG ASIA REPORT NO. 34, supra note 32, at 15-16.

102 ICG ASIA REPORT NO. 34, supra note 32, at 15-16.

103 ICG ASIA REPORT NO. 34, supra note 32, at 15-16.

104 See FRANCINE HIRSCH, EMPIRE OF NATIONS, ETHNOGRAPHIC KNOWLEDGE AND

THE MAKING OF THE SOVIET UNION 1, 168-69 (2005) (discussing a petition by

Uzbek-identif‌ied residents of villages on the Kirgiz side of the river claiming

that they should be unif‌ied with Uzbekistan, as their identity was culturally

Uzbek, and their villages were agricultural, rather than cattle breeding).

105 See HIRSCH, id. at 171 (expounding upon the diff‌iculties in territorial disputes

in the Ferghana Valley, where delineations were not always straightforward).

59FALL 2011

106 See HIRSCH, id. at 170 (accentuating the fact that nationality was linked to

land and resources).

107 See HIRSCH, id. at 172 (discussing the great amount of work Soviet authorities

put into drawing boundaries, as well as the continuing disputes that resulted).

108 See HIRSCH, id. at 169 (discussing the distinction between animal husbandry

and irrigated agriculture as a factor in determining where National borders lie).

109 Max Spoor, Agrarian Transition in Former Soviet Central Asia: A Compara-

tive Study of Kazakhstan, Kyrgyzstan and Uzbekistan, 1, 4-5 (Int’l Inst. of Soc.

Studies: Working Paper No. 298, 1999) (describing specialization between Central

Asian Countries; Uzbekistan specialized in cotton and Kyrgyzstan specialized in

wool).

110 Tjaart W. Schillhorn van Veen, The Kyrgyz Sheep Herders at a Crossroads

1, 4-8 (Overseas Dev. Group: Pastoral Dev. Network Series No. 38d, 1995)

(discussing the transition to collectivism and them privatization under the

Soviet scheme).

111 Zvi Lerman & David Sedik, FAO Reg’l Off‌ice for Europe & Cent. Asia,

Policy Studies on Rural Transition No. 2009-1: Agrarian Reform in Kyrgyzstan:

Achievements and the Unf‌inished Agenda 1, 1-2 (2009) (discussing “The shift

of productive resources – land and livestock – from enterprises to the individual

sector has resulted in a signif‌icant increase in the share of individual farms in

agricultural production.”).

112 See Lerman & Sedik, id. at 4 (presenting current f‌igures of f‌ifty-f‌ive percent

of product being crops and forty-f‌ive percent livestock).

113 See id. at 4.

114 ICG ASIA REPORT NO. 34, supra note 32, at 5.

115 ICG ASIA REPORT NO. 34, supra note 32, at ii.

116 ICG ASIA REPORT NO. 34, supra note 32, at 5.

117 HIRSCH, supra note 104, at 318.

118 ICG ASIA REPORT NO. 34, supra note 32, at 3-4.

119 Micklin, supra note 29, at 511.

120 HIRSCH, supra note 104, at 318 (discussing the link between nationality,

land, national rights, and economic and cultural resources as a result of Soviet

inf‌luence).

121 See ICG ASIA REPORT No. 34, supra note 32, at 10-11 (outlining the various

international approaches to the water management issues in Central Asia).

122 See ICG ASIA REPORT No. 34, supra note 32, at 4 (citing 42 examples of

violent conf‌licts involving water); see also Philip Micklin, supra note 29, at 522

(discussing water management reform as a means of avoiding conf‌lict).

123 See Micklin, supra note 30, at 511-13 (discussing the problems caused by

the shrinking Aral Sea).

124 ICG ASIA REPORT NO. 34, supra note 30, at 8-10.

125 Id. at 6.

126 ICG ASIA REPORT NO. 34, supra note 30, at 6..

127 See Micklin, supra note 29, at 524 (discussing the environmental impact

of the Aral Sea problem).

128 See Micklin, supra note 29, at 512-13 (discussing a reduction in irrigation

as a necessity for improved management in the Aral Basin).

129 See Micklin, supra note 29, at 515 (discussing water pricing, privatization

of land and granting rights of self-governance as a means of institutional change

to promote water eff‌iciency).

130 See SERVICE REFORM INITIATIVE, supra note 51, at 21(describing the central-

ization of water management during the Soviet era).

131 See SERVICE REFORM INITIATIVE, supra note 51, at 25 (discussing the

argument for making users more responsible at the local level).

132 ICG ASIA REPORT NO. 34, supra note 32, at 10 (pointing out the various

projects launched since 1991 to resolve water conf‌lict in Central Asia); see

generally INT’L CRISIS GRP., ICG ASIA REPORT NO. 33, CENTRAL ASIA: BORDER

DISPUTES AND CONFLICT POTENTIAL (2002) (outlining the efforts made toward

mitigating the impact of the Aral Sea disaster).

133 See Sievers, supra note 45, at 393-97 (detailing the involvement of various

international donors).

134 Sievers, supra note 45, at 393-97.

135 See Micklin, supra note 29, at 518-20. Most prominently is the Aral Sea

Basin Programme (ASBP), which began in 1994 with the original plan to

extend it over a period of f‌ifteen to twenty years, and f‌inanced jointly by the

World Bank, UNDP, and UNEP. The aims of the programme were: rehabilitation

and development of the disaster zone; strategic planning and comprehensive

management of the Amu Darya and Syr Darya Rivers; and building institutions

for planning and implementing the two f‌irst points. The third point lead to the

foundation of ICAS and IFAS mentioned earlier. After a review of the ASBP

in 1996, the World Bank, together with GEF, launched the Water and Environ-

mental Management Project for the period 1999 to 2003. Between 1993 and

1998 USAID funded the Environmental Policy and Technology project, which

supported regional efforts to come to an agreement on the operation of the Tok-

togul Reservoir. In 2001 it launched the Natural Resource Management Project,

the water component of which aimed at improving inter-state cooperation and

sharing of the Syr Darya River f‌low. This project was further expanded in 2002.

The European Union ran the Water Resources Management and Agricultural

Production (WARMAP) project starting in 1995 for the utilization, management

and allocation of water in Central Asia.

136 See generally WEINTHAL, supra note 23, at 51-2 (arguing that more emphasis

should have been put on agriculture); see generally Sievers, supra note 45

(arguing that international agencies have not lived up their promises or regional

expectations).

137 See accord JÜRG KRAHENBÜHL ET AL., SWISS AGENCY FOR DEVELOPMENT AND

COOPERATION, SWISS WATER STRATEGY FOR CENTRAL ASIA 2002-2006: STRENGTH-

ENING REGIONAL WATER MANAGEMENT CAPACITIES, 3, 4-6 (2002) (discussing the

Swiss Water Strategy for Central Asia); see also ICG ASIA REPORT No. 34, supra

note 32, at 10 (discussing regional and international water management efforts);

see accord RUTH S. MEINZEN-DICK & BRYAN RANDOLPH BRUNS, NEGOTIATING

WATER RIGHTS: INTRODUCTION, IN NEGOTIATING WATER RIGHTS (Bryan Randolph

Bruns & Ruth S. Meinzen-Dick eds., 2000) (discussing WUAs as well as other

institutions developed to deal with water conf‌lict in Central Asia); see accord

Jenniver Sehring, Irrigation Reform in Kyrgyzstan and Tajikistan, 21 IRRIGATION

& DRAINAGE SYS. 277, 277, 283 (2007) (describing the role of WUAs and other

institutions in Kyrgyzstan and Tajikistan).

138 SERVICE REFORM INITIATIVE, supra note 51, at 94 (suggesting that even with

the ICWC, agreements on water allocation tend to occur on a yearly basis).

139 Micklin, supra note 29, at 559-60 (explaining that a return of the sea to

its pre-1960’s condition would require a substantial increase of inf‌low and a

signif‌icant decrease in consumptive use for irrigation); see Micklin, supra note

29, at 561 (“Although restoration of the Aral to, or near, its pre-1960s level and

ecological state is not a reasonable prospect, various partial rehabilitation

scenarios for the sea and river deltas hold considerable promise.”).

140 See Weinthal, supra note 23, at 67 (describing a water, energy and agricul-

ture approach which could have been taken rather than the water or water and

energy approach taken by most international agencies).

141 See Weinthal, supra note 23, at 68 (arguing that agriculture was ignored

because specialists preferred simple technical solutions over complicated political

solutions).

142 See Sievers, supra note 45, at 383 (“The erosion of this general presumption

of the eff‌icacy and moral authority of international organizations coincides with

the expansion of the Central Asian states’ participation in international environ-

mental regimes.”); see also Sievers, id. at 396 (discussing the failure of indig-

enous environmental NGOs to counterweight failed regional programs).

143 See generally JÜRG KRAHENBÜHL ET AL., supra note 137; see generally

MURRAY-RUST ET AL., supra note 98, at 4-6.

144 MURRAY-RUST ET AL., supra note 98, at 12 (explaining that upon the

withdrawal of The World Bank’s funds for competitions promoting water

eff‌iciency, IWMI came together with SIC-ICWC to continue to strengthen

water saving practices).

145 MURRAY-RUST ET AL., supra note 98, at 12 (“The overarching goal of the

project is to forge a gradual change in attitude of water users and water managers

at all levels in the hierarchy towards water as a limited resource and prepare

indicative recommendations for policymakers regarding irrigation water

allocations within the region.”).

146 JÜRG KRAHENBÜHL ET AL., supra note 137, at 3, 20 (2002) (explaining that

the goal of the IWRM, in part, is to reorganize water management on the basis

of hydraulic boundaries).

147 JÜRG KRAHENBÜHL ET AL., supra note 137, at 3, 16 (2002) (discussing the

objectives of the Swiss Water Sector Interventions, including automation and

technical improvement of canal systems).

148 See generally Second On-Farm Irrigation Eff‌iciency Program, THE WORLD

BANK, http://web.worldbank.org/external/projects/main?pagePK=64283627&p

iPK=73230&theSitePK=258599&menuPK=258625&Projectid=P126390 (last

visited Oct. 24, 2011); Asian Development Bank, Building Capacity for the

Formation and Management of Water User Associations, Adb.org, http://www.

adb.org/projects/project.asp?id=29515 (last visited Oct. 24, 2011); Academy

for Educational Development, Central Asia Water User Association Support

Program, AED.org http://www.aed.org/Projects/WUASP.cfm (last visited Oct.

24, 2011); Rural Infrastructure Rehabilitation Project, THE WORLD BANK http://

web.worldbank.org/external/projects/main?pagePK=104231&piPK=73230&

theSitePK=40941&menuPK=228424&Projectid=P058898 (last visited Oct.

24, 2011). WUAs are non-commercial voluntary associations of water users

60 SUSTAINABLE DEVELOPMENT LAW & POLICY

f‌inanced by members’ payments for water service delivery. Usually established

along the boundaries of the former state and collective farms, they are intended

to operate, maintain and rehabilitate the irrigation system, deliver water to the

end users, purchase water from the state, and collect water fees from the users.

149 See Jenniver Sehring, Irrigation Reform in Kyrgyzstan and Tajikistan, 21

IRRIGATION & DRAINAGE SYS. 277, 283 (2007) (explaining that although the

introduction of market-economics is often seen as the main tool for reaching

greater eff‌iciency, there are several problems in implementing such a scheme).

150 Id.

151 See Sehring, supra note 149, at 284 (pointing to three basic reasons for

non-payment of water-related fees: soviet mentality, lack of understanding,

and widespread poverty).

152 See Sehring, supra note 149, at 284 (discussing the lack of perceived

legitimacy).

153 See Sehring, supra note 149, at 284 (citing the failure to prevent or punish

water theft as one of the reasons they are perceived as illegitimate).

154 Sehring, supra note 149, at 285-87 (discussing WUA an introduction of

democratic grass roots to the water management issues, while explaining where

these policies have failed actual users, in part because the individuals do not

understand the system).

155 Sehring, supra note 149, at 287 (explaining that existing power structures

have dominated over attempted reforms, as the political culture is characterized

by a lack of proactiveness and an orientation to respect village leaders).

156 Kipping, supra note 98, at 315.

157 See, e.g., Transboundary Water Management in Central Asia, GIZ, http://

www.gtz.de/en/weltweit/eurpa-kaukasus-zentralasien/29994.htm (last visited

Oct. 24, 2011) (discussing the context, objective, and approach for GIZ’s

involvement in water management in Central Asia) [hereinafter Transboundary

Water Management in Central Asia].

158 Id.

159 See A Source of Peace – Transboundary Water Management in Central Asia,

CAwater-info.net, http://www.cawater-info.net/projects/pdf/fact_sheet_programme

_cas_en.pdf (last visited Oct. 24, 2011) (citing the advisory services as a reason

for increased expertise and management capacities of IFAS) [hereinafter A

Source of Peace]; see also Transboundary Water Management in Central Asia,

supra note 157 (“The programme provides funds for technical equipment, such

as measuring devices, or supplies this equipment itself.”).

160 See A Source of Peace, supra note 159. (describing the overall objective for

improvement of watercourse management for selected transboundary rivers).

161 See A Source of Peace, supra note 159 (outlining GIZ’s approach involving

training personnel as well as interdisciplinary and cross-regional dialogue).

162 See A Source of Peace, supra note 159 (stating that in addition to institu-

tional measures, the program provides technical assistance in the form of mea-

surement devices and other equipment).

163 See Micklin, supra note 29, at 522 (suggesting that absent signif‌icant

improvements, water use will be a continuing source of conf‌lict in Central

Asia).

164 See generally Micklin, supra note 29, at 522-23 (discussing the ongoing water

management problems in Central Asia as they relate to the Ferghana Valley).

165 See, e.g., Aral Sea Desertif‌ication, RAP361.COM (Oct. 25, 2011), http://

rap361.com/?p=14962.

166 ICG ASIA REPORT NO. 34, supra note 32, at 6. (discussing a Soviet Union

plan to use nuclear weapons on a glacier to ref‌ill the Aral Sea basin).

167 See Micklin, supra note 29, at 520-21 (discussing the successes and

continuing needs of the f‌ive Central Asian States involved in the water

management issue).

168 See Micklin, supra note 29, at 520-21 (explaining the continued absence

of a water management infrastructure will allow for a continuation of nations

serving their own water and energy interests at the expense of others due to an

expansion in agriculture).

169 Micklin, supra note 29, at 515.

170 See generally ICG ASIA REPORT NO. 34, supra note 32, at 21 (discussing

the construction of hydropower complexes as a partial solution to the conf‌lict).

171 See ICG ASIA REPORT NO. 34, supra note 32, at 24 (suggesting that Tajikistan

would have to raise from US $700 million to US $1 billion to complete the

hydropower project).

172 See RUTH S. MEINZEN-DICK & BRYAN RANDOLPH BRUNS, NEGOTIATING WATER

RIGHTS: INTRODUCTION, IN NEGOTIATING WATER RIGHTS 27 (Bryan Randolph

Bruns & Ruth S. Meinzen-Dick eds., 2000) (arguing that water rights should

be seen as a negotiating process and is not simply deduced from economic,

technical or legal analysis).

173 SERVICE REFORM INITIATIVE, supra note 51, at 24 (arguing that population

increase in conjunction with changing climate will make water resources even

more scarce).

174 SERVICE REFORM INITIATIVE, supra note 51, at 99-100 (discussing the f‌inancial

restraints and conf‌licts between territorial entities as a hindrance to solving

water management issues).

175 See ICG ASIA REPORT NO. 34, supra note 32, at 5, 12-14; see also Kipping,

supra note 98, at 312-13.

176 See INT’L CRISIS GROUP, ICG ASIA REPORT No. 33, Central Asia: Border

Disputes and Conf‌lict Potential, 13 (2002). (“[T]he Ferghana Valley has been

at the centre of border disputes between Uzbekistan and Kyrgyzstan.”).

177 See id. at 4, 6 (suggesting that f‌inal demarcation of borders will not happen

in the near future, in part, because of a lack of political will).

178 See WEINTHAL, supra note 23, at 51 (Describing the involvement of the

World Bank, UNDP and UNEP, as well as ICAS and IFAS); see also Sievers,

supra note 45, at 393-97 (discussing the failure of international institutions to

take meaningful action to solve the water problems in Central Asia).

179 See Micklin, supra note 29, at 515; see also Sievers, supra note 45, at 383

(discussing the lack of organization and cooperation between international

funders and state governments).

180 See Sievers, supra note 45, at 397 (suggesting that the goal of international

agencies is to move the region towards a market-based economy).

181 See SERVICE REFORM INITIATIVE, supra note 51, at 38 (detailing the compo-

nents of the IWRM).

182 See SERVICE REFORM INITIATIVE, supra note 51, at 94 (explaining that agree-

ments tend to be bilateral rather than multi-lateral, yearly instead of long term,

and often fail to be implemented by one, if not all, sides); see also ICG ASIA

REPORT NO. 34, supra note 32, at i (“An annual cycle of disputes has developed

between the three downstream countries – Kazakhstan, Turkmenistan and

Uzbekistan – that are all heavy consumers of water for growing cotton, and the

upstream nations – Kyrgyzstan and Tajikistan.”).

183 See generally ICG ASIA REPORT NO. 34, supra note 32, at 6-7 (describing

recent political changes in Kyrgyzstan).

184 See generally INT’L CRISIS GRP., ICG ASIA BRIEFING NO. 79, KYRGYSTAN:

A DECEPTIVE CALM (2008). (discussing corruption and monopolization as well

as lack of training as reasons for continued f‌inancial crisis).

185 See ICG ASIA BRIEFING NO. 79, id. at 14 (explaining a statement by Chudinov

Sheppling pointing out that Kyrgyzstan will have to reduce its energy consump-

tion by thirty percent and will only have enough electricity for lighting).

186 See ICG ASIA BRIEFING NO. 79, supra note 184, at 13 (explaining that the

water level in Toktogul, the country’s largest reservoir and the source of most

of its energy, was catastrophically and inexplicably low).

187 See BANK INFORMATION CENTER, supra note 82, at 6-7 (explaining that the

majority of water originates in Tajikistan and Kyrgyzstan, but is not used there).

188 See WEINTHAL, supra note 23, at 68 (discussing the reliance on cotton

production for social control and political stability).

189 See WEINTHAL, supra note 23, at 68 (explaining that Turkmenistan and

Uzbekistan could not jeopardize the foreign revenue from the cotton industry).

190 See WEINTHAL, supra note 23, at 68.

61FALL 2011

Endnotes: A CASE FOR THE UNITED STATES’ OPPOSITION OF INTERNATIONAL AND DOMESTIC COAL SUBSIDIES

continued from page 31

1 U. N. Framework Convention on Climate Change (“UNFCCC”), May 9,

1992, S. Treaty Doc. 102-38, 1771 U.N.T.S. 107.

2 BRUCE RICH, ENVTL. DEFENSE FUND, FORECLOSING THE FUTURE 6 (2009),

http://www.edf.org/sites/default/f‌iles/9593_coal-plants-report.pdf.

3 The U.S. Treasury Department has issued guidance to multilateral development

banks stating that lending policies should foster planning for and development of no

or low carbon energy sources rather than funding conventional coal-f‌ired facilities.

See U.S. DEP’T OF TREASURY, GUIDANCE TO MDBS FOR ENGAGING WITH DEVELOPING

COUNTRIES ON COAL-FIRED POWER GENERATION (2009).

4 See LUCY JOHNSTON ET AL., SYNAPSE ENERGY ECON., PHASING OUT FEDERAL

SUBSIDIES FOR COAL 6-17 (2010) (listing examples of domestic coal subsidies,

including tax credits, low interest loans, and loan guarantees); Daryl Glaser,

Does hypocrisy matter? The Case of US foreign policy, 32 REV. OF INT’L STUD.

251-68 (2006) (arguing that the United States damages it credibility with hypo-

critical policies).

5 Daryl Glaser, Does Hypocrisy Matter? The Case of US Foreign Policy, 32

REV. OF INT’L STUD. 251-68 (2006) (arguing that the United States damages it

credibility with hypocritical policies).

6 Richard S.J Tol, The Economic Effects of Climate Change, 23 JOURNAL OF

ECON. PERSPECTIVES 29-51 (2009).

7 Heike Mainhardt-Gibbs, Bank Info. Ctr., World Bank Group Energy Sector

Financing Update, 1 (2010).

8 See, e.g., Press Release, Bank Info. Ctr., South Africans Say No to Eskom’s

R29 Billion World Bank Loan, BANK INFORMATION CENTER (Feb. 16, 2010),

http://www.bicusa.org/en/Article.11773.aspx (reporting a protest consisting of

over 50 organizations opposed to IBRD’s loan for a coal-f‌ired power plant).

9 World Bank Group Mgmt., Striking a Better Balance—The World Bank

Group and Extractive Industries: The Final Report of the Extractive Industries

Review, vii (Sept. 17, 2004), http://siteresources.worldbank.org/INTOGMC/

Resources/f‌inaleirmanagementresponse.pdf (“[T]he Extractive Industries

Review recommend[ed] that the Bank Group should withdraw from investment

in oil and coal in developing countries”).

10 The United States has substantial inf‌luence over the IBRD, comprising

sixteen percent of the voting power, when the next closest country, the United

Kingdom, only has four percent. See World Bank Group, International Bank

for Reconstruction and Development Subscriptions and Voting Power of Mem-

ber Countries (Sept. 30, 2011), http://siteresources.worldbank.org/BODINT/

Resources/278027-1215524804501/IBRDCountryVotingTable.pdf.

11 World Bank Group, Minutes of Joint Meeting of the Executive Directors

of the Bank and IDA, and the Boards of Directors of IFC and MIGA (April 8,

2010), http://www-wds.worldbank.org/external/default/WDSContentServer/

WDSP/IB/2010/04/28/000112742_20100428165745/Rendered/PDF/542790MI

N0M201101Off‌icial0Use0Only1.pdf.

12 Mainhardt-Gibbs, supra note 7, at 4.

13 See, e.g., Inter-American Dev. Bank, Brazil Expands Energy Supply in North-

eastern Region with IDB Financing (Mar. 20, 1009), http://www.iadb.org/en/news/

news-releases/2009-03-20/brazil-expands-energy-supply-in-northeastern-region-

with-idb-f‌inancing,5178.html (stating that the Inter-American Development Bank

gave just under $200 million to two new coal-f‌ired power plants in Brazil).

14 AFRICAN DEV. BANK, MEDUPI POWER PROJECT, PROJECT APPRAISAL REPORT iii

(2009), http://www.afdb.org/f‌ileadmin/uploads/afdb/Documents/Project-and-

Operations/South%20Africa%20-%20Medupi%20%20Power%20Project.pdf

(reporting that the African Development Bank recently gave a $1.7 billion loan

to a coal-f‌ired power plant).

15 I.R.C. § 45K (2011).

16 ADENIKE ADEYEYE ET AL., ENVTL. LAW INST., ESTIMATING U.S. GOVERNMENT

SUBSIDIES TO ENERGY SOURCES: 2002-2008 7 (2009), http://www.elistore.org/

Data/products/d19_07.pdf.

17 Id.

18 JOHNSTON ET AL., Supra note 4, at 13-15.

19 Id. at 15-17.

20 Guri Bang, Energy Security and Climate Change Concerns: Triggers for

Energy Policy Change in the United States?, 38 ENERGY POL’Y 1645-53 (2010)

(“The US economy is dependent on easy and plentiful access to cheap oil, coal,

and natural gas.”)

21 JAMES T. BARTIS ET AL., RAND, PRODUCING LIQUID FUELS FROM COAL 5

(2008).

22 Coal and Climate Change Facts, PEW CTR. ON GLOBAL CLIMATE CHANGE,

http://www.pewclimate.org/global-warming-basics/coalfacts.cfm (last visited

Nov. 1, 2011).

23 Id.

24 Id.

25 See LINDA LUTHER, CONG. RESEARCH SERV., MANAGING COAL COMBUSTION

WASTE (CCW): ISSUES WITH DISPOSAL AND USE 1 (2010), http://www.fas.org/sgp/

crs/misc/R40544.pdf (stating that coal combustion waste, including coal ash

and toxic chemicals like arsenic, constitutes the nation’s second largest waste

stream after municipal solid waste).

26 See e.g., A.M. Donoghue, Occupational Health Hazards in Mining, 54

OCCUPATIONAL MED. 283-286 (2004) (detailing health risks to coal miners,

including silicosis, “black lung,” and lung cancer).

27 Coal use accounts for nearly twenty percent of global—and over thirty

percent of United States—green house gas emissions. PEW, Supra note 20. The

United States produces over seven billion tons of CO2 per year, with two billion

coming from coal-burning power plants. Id.

28 The external costs of the United States’ coal use include costs associated

with water pollution, toxic coal waste, and air pollution. See Peter Rafaj &

Socrates Kypreos, Internalisation of External Cost in the Power Generation

Sector: Analysis with Global Multi-regional MARKAL Model, 35 ENERGY POL’Y

828-843 (2007).

29 Paul Epstein et al., Full Cost Accounting for the Life Cycle of Coal, 1219

ANNALS OF THE NY ACAD. OF SCI. 73, 93 (2011) (“The low estimate is $175 bil-

lion, or over 9¢/kWh, while the true monetizable costs could be as much as the

upper bounds of $523.3 billion.”).

30 NAT’L RESEARCH COUNCIL, HIDDEN COSTS OF ENERGY: UNPRICED CONSE-

QUENCES OF ENERGY PRODUCTION AND USE (2010) (“Just the damage from exter-

nal effects the committee was able to quantify add up to more than $120 billion

for the year 2005.”).

Endnotes: NATURAL RESOURCE “CONFLICTS” IN THE U.S. SOUTHWEST: A STORY OF HYPE OVER SUBSTANCE

continued from page 36

27 63 Fed. Reg. 31400, 31401 (June 9, 1998).

28 WILDEARTH GUARDIANS, LESSER PRAIRIE-CHICKEN: A DECADE IN PURGATORY 2,

3 (2008), http://www.wildearthguardians.org/site/DocServer/WildEarth_

Guardians_Decade_in_Purgatory.pdf?docID=924&AddInterest=1059.

29 See generally DAVIS ET AL., LESSER PRAIRIE CHICKEN INTERSTATE WORKING

GROUP, LESSER PRAIRIE-CHICKEN CONSERVATION INITIATIVE 13, 14 (May 2008),

http://www.wafwa.org/documents/LPCCI_FINAL.pdf (showing that the lesser

prairie chicken’s diet consists largely of insects).

30 Id. at 40.

31 Id. at 15.

32 75 Fed. Reg. 69222, 69243 (Nov. 10, 2010).

33 See 63 Fed. Reg. 31400, 31400 (June 9, 1998) (discussing the importance

of listing the lesser prairie-chicken as threatened and designating critical

habitat). In the end, the Fish and Wildlife Service determined that their listing

though warranted, was precluded by higher priority species. Id.

34 Id.

35 75 Fed. Reg. 69222, 69243 (Nov. 10, 2010).

36 FITZGERALD ET AL., THE RANGE AND DISTRIBUTION OF SCELOPORUS ARENICOLUS

IN TEXAS: RESULTS OF SURVEYS CONDUCTED 8-15 JUNE 2011, 1 (2011), http://twri.

tamu.edu/media/278298/tx_dsl_f‌inal.pdf.

37 Id. at 1.

38 75 Fed. Reg. 77801, 77805 (Dec. 14, 2010).

39 Id. at 77805-06.

62 SUSTAINABLE DEVELOPMENT LAW & POLICY

40 Id. at 77805; U.S. FISH & WILDLIFE SERV. ET AL., TEXAS CONSERVATION

PLAN FOR THE DUNES SAGEBRUSH LIZARD (SCELOPORUS ARENICOLUS) 21-22

(Sept. 27, 2011), http://texasahead.org/texasf‌irst/resources/task_force/priority/

reference_docs/dsl/TCP_DSL_Plan_92711.pdf.

41 75 Fed. Reg. 77801, 77809 (Dec. 14, 2010) (noting that the shinnery oak

is poisonous to livestock in the spring when it is budding).

42 Id.

43 U.S. FISH & WILDLIFE SERV. ET AL., supra note 40, at 86. Farmers also kill

shinnery oak for f‌ire suppression purposes and control of the boll weevil. This

destabilization is ultimately not all that economically benef‌icial for farmers

because it leads to erosion. Id.

44 47 Fed. Reg. 58454 (Dec. 30, 1982).

45 See 75 Fed. Reg. 69222, 69243 (Nov. 10, 2010) (f‌inding that sagebrush liz-

ards warrant listing as endangered but are precluded by higher listing priorities).

46 75 Fed. Reg. 77801, 77805 (Dec. 14, 2010).

47 Id.; see also Nicole L. Slomensky & Lee A. Fitzgerald, Population Varia-

tion in Dune-Dwelling Lizards in Response to Patch Size, Patch Quality and

Oil and Gas Development, 56(3) Sw. NATURALIST 315 (2011).

48 75 Fed. Reg. 77801 (Dec. 14, 2010).

49 See U.S. FISH & WILDLIFE SERV. ET AL. supra note 40, at 21-22 (arguing that

the implementation of a conservation plan to protect sagebrush lizard will lower

the negative impact on Texas economy); see also GOODSTEIN, supra note 3.

50 See Newby, supra note 10; see also Manning, supra note 23; May, supra

note 23.

51 Rene Romo, Lizard Listing at Center of Debate, ABQ JOURNAL (Apr. 27, 2011),

http://www.abqjournal.com/news/state/27231871475newsstate04-27-11.htm.

52 May, supra note 23.

53 Mella McEwan, Cornyn Talks Sagebrush Lizards, Government Intrusion at

Midland Appearance, MYWESTTEXAS.COM (Aug. 24, 2011), http://www.mywest-

texas.com/top_stories/article_d82c2cec-ecf5-575d-9207-8102671f12d8.html.

54 See, e.g., S. 782, 112th Cong SA 397; Simonich, supra note 25.

55 Mella McEwan, Comptroller Proposes Conservation Plan for Lizard Habi-

tat, MYWESTTEXAS.COM (Oct. 10, 2011, 10:13am), http://www.mywesttexas.com/

business/oil/top_stories/article_60a38efe-f352-11e0-96ba-001cc4c002e0.html.

56 See JAY C. LININGER & CURT BRADLEY, CTR. FOR BIOLOGICAL DIVERSITY,

IMPACT OF DUNES SAGEBRUSH LIZARD ON OIL AND GAS ACTIVITIES IN NEW MEXICO:

ANALYSIS OF BUREAU OF LAND MANAGEMENT OFFERINGS AND NOMINATIONS IN

2010-2011, 1-13 (2011), http://www.biologicaldiversity.org/species/reptiles/

dunes_sagebrush_lizard/pdfs/Oil&Gas_DSL_Report_v1.5_f‌inal.pdf; JAY C.

LININGER, CURT BRADLEY & TAYLOR MCKINNON, IMPACT OF DUNES SAGEBRUSH

LIZARD PROTECTION ON OIL AND GAS PRODUCTION IN WEST TEXAS 6 (2011), http://

www.biologicaldiversity.org/species/reptiles/dunes_sagebrush_lizard/pdfs/

Texas_DSL_habitat_report.pdf; cf. GOODSTEIN, supra note 3, at 1, 2 (concluding

generally that environmental regulations have little real effect job numbers).

57 LININGER & BRADLEY, supra note 56, at 1-13.

58 See Endangered Status for Dunes Sagebrush Lizard, 75 Fed. Reg. 77803

(Dec. 14, 2010) (to be codif‌ied at 50 C.F.R. pt. 70) (representing a forty percent

loss since 1982); see also LININGER & BRADLEY, supra note 56, at 1.

59 LININGER & BRADLEY, supra note 56, at 1-2.

60 See LININGER & BRADLEY, supra note 56, at 14 (concluding that protecting the

dunes sagebrush lizard would have no effect on oil and gas leasing opportunities).

61 Id. at 2.

62 Id. at 2.

63 See May, supra note 23 (quoting Ben Shepperd, president of Permian Basin

Petroleum Association).

64 LININGER & BRADLEY, supra note 56, at 2.

65 Id. at 2.

66 See U.S. FISH & WILDLIFE SERV. ET AL., supra note 40, at 56 (referring

to Fig. 1-2); see also LININGER, BRADLEY & MCKINNEN, supra note 57, at 6

(concluding that the limited area of dunes sagebrush lizard habitat in Texas

would have only minimal effect, if any, on oil and gas activity in west Texas).

67 See, e.g., LININGER & BRADLEY, supra note 56, at 14.

68 Id. at 14.

69 See U.S. FISH & WILDLIFE SERV., CANDIDATE CONSERVATION AGREEMENTS

WITH ASSURANCES HANDBOOK (DRAFT) 1, 5 (2003), http://library.fws.gov/ES/

handbook_draft.pdf [hereinafter U.S. FISH & WILDLIFE SERV. HANDBOOK]; see

also U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-803, ENDANGERED SPECIES:

FISH AND WILDLIFE SERVICE USES BEST AVAILABLE SCIENCE TO MAKE LISTING

DECISIONS, BUT ADDITIONAL GUIDANCE NEEDED FOR CRITICAL HABITAT DESIGNATIONS

(2003), http://www.gao.gov/new.items/d03803.pdf.

70 16 U.S.C. § 1533(a)-(b) (2006).

71 16 U.S.C. § 1536 (2006).

72 16 U.S.C. § 1533(f) (2006).

73 16 U.S.C. §§ 1538-39 (2006).

74 16 U.S.C. § 1532(19) (2006).

75 16 U.S.C. § 1533(b)(1)(A) (2006).

76 See U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 69, at 14 (explaining

that peer review, a routine component of science, is considered the most reliable

tool to ensure that quality science will prevail over political considerations).

77 See id. at 11 (depicting the complex review process that the FWS must go

through before publishing a f‌inal rule).

78 16 U.S.C. § 1533(b)(1)(A) (2006).

79 See Dennis D. Murphy & Paul S. Weiland, The Route to Best Science in

Implementation of the Endangered Species Act’s Consultation Mandate: The

Benef‌its of Structured Effects Analysis, ENVTL. MGMT. 1, 3 (2010), http://www.

vision.ca.gov/docs/Route_to_Best_Science.pdf (describing the importance of

transparency in decision making to allow affected individuals and reviewing

courts to determine whether a federal agency made a well informed decision).

80 16 U.S.C. § 1535(a) (2006).

81 50 C.F.R. § 424.12 (2011).

82 50 C.F.R. § 424.16 (2011).

83 See generally U.S. FISH & WILDLIFE SERV. HANDBOOK, supra note 69, at

22 (explaining the process to create a f‌inal rule, including the importance of

addressing formal written comments from the public and modifying or revising

the draft to ref‌lect the public comments).

84 See 50 C.F.R. § 246.16 (2011); see also U.S. GOV’T ACCOUNTABILITY OFFICE,

supra note 69, at 3 (concluding that the FWS’ internal decision-making process

and external peer review ensures that it considers the best available science

when making listing decisions under the ESA).

85 See 16 U.S.C. § 1533(a)-(b) (2006).

86 16 U.S.C. § 1533(b)(2) (2006); see also Home Builders Ass’n of N. Cal. V.

U.S. Fish & Wildlife Serv., 616 F.3d 983, 991-92 (discussing economic impact

considerations).

87 16 U.C.C. § 1533(b)(2) (2006).

88 See generally U.S. FISH & WILDLIFE SERV. HANDBOOK, supra note 69

(describing how “Candidate Conservation Agreements with Assurances

(‘CCAAs’) for private property owners promote conservation of unlisted

species on non-federal lands and provide property owners with the regulatory

certainty that they desired.”).

89 See generally id.

90 See generally id.

91 See generally id.

92 See generally id.

93 See generally id.

94 Cf. NIEMI ET AL., supra note 11 (recounting the similar propaganda

advanced by the timber industry after a 1991 court ruling banned logging

on 24 million acres of national forest land in the Pacif‌ic Northwest).

95 See, e.g., Newby, supra note 10; see also Manning, supra note 23.

96 See generally LAWRENCE MISHEL, ECON. POLICY INST., REGULATORY

UNCERTAINTY: A PHONY EXPLANATION FOR OUR JOBS PROBLEM 2-6 (Sept. 2011),

http://w3.epi-data.org/temp2011/EPIBrief‌ingPaper330.pdf.

97 See e.g., MISHEL, supra note 96, at 2-3 (f‌inding that the lack of job growth is

simply the continuing result of the f‌inancial collapse and a lack of demand and

explaining that Republicans’ delay of the rulemaking process actually prolongs

any uncertainty for businesses); Jan Eberly, Is Regulatory Uncertainty a Major

Impediment to Job Growth, U.S. DEPT. OF TREAS. (Oct. 24, 2011), http://www.

treasury.gov/connect/blog/Pages/Is-Regulatory-Uncertainty-a-Major-Imped-

iment-to-Job-Growth.aspx (concluding also that slow economic growth has

more to do with lack of demand as opposed to alleged regulatory uncertainty);

Phill Izzo, Dearth of Demand Seen Behind Weak Hiring, WALL ST. J. (July 18,

2011), http://online.wsj.com/article/SB10001424052702303661904576452181

063763332.html (reporting that a survey of economists also found that minimal

demand is the primary reason businesses are not hiring).

98 See Senator John Cornyn, MAPLIGHT.ORG, http://maplight.org/us-congress/

legislator/553-john-cornyn (last visited Oct. 31, 2011).

99 See Representative Steve Pearce, CENTER FOR RESPONSIVE POLITICS, http://

www.opensecrets.org/politicians/summary.php?cycle=2012&cid=N00012672

&type=I (last visited Oct. 17, 2011) (showing that Oil and Gas contributors put

forth $52,000 towards Pearce’s campaign).

100 Id.

101 See Senator John Cornyn, supra note 98.

63FALL 2011

Endnotes: CUBAN OFFSHORE DRILLING: PREPARATION AND PREVENTION WITHIN THE FRAMEWORK OF THE UNITED STATES’

EMBARGO

continued from page 39

1 See Shasta Darlington, Cuban Offshore Oil Plans Gain Momentum,

CNN (Sept. 1, 2010), http://articles.cnn.com/2010-09-01/world/cuba.oil_1_

rig-cupet-drilling-companies?_s=PM:WORLD (reporting that if drilling began

in mid-year 2011, the exploratory wells would be completed by 2014). But

see Jeff Franks, Arrival of Cuba Offshore Oil Rig Delayed Again, REUTERS

(Oct. 12, 2011), http://www.reuters.com/article/2011/10/12/cuba-oil-idUS-

N1E7930U020111012 (stating that the arrival of the oil rig has been delayed

until December 2011).

2 See Thomas Omestad, Cuba Plans New Offshore Drilling in Search for Big

Oil Finds in the Gulf of Mexico, U.S. NEWS & WORLD REP. (Feb. 3, 2009), http://

www.usnews.com/news/energy/articles/2009/02/03/cuba-plans-new-offshore-

drilling-in-search-for-big-oil-f‌inds-in-the-gulf-of-mexico/ (noting that foreign f‌irms

have signed exploration and production agreements for 21 of the 59 blocks, are

discussing contracts over the 23 additional blocks, and that that some commentators

foresee Cuban offshore drilling increasing the cost of the U.S. embargo policy).

3 See id. (stating that some U.S. law makers have “urged that an exception

be made in the embargo to permit energy cooperation”).

4 See, e.g., Press Release, The U.S. Attorney’s Off‌ice, Dist. of Colo., Boulder

Company Sentenced for “Trading with the Enemy” (Sept. 17, 2009), available

at http://www.justice.gov/usao/co/press_releases/archive/2009/September09/9

_17_09.html.

5 H.R. Res. 372, 112th Cong. (2011) (permitting the U.S. Secretary of the

Interior to deny drilling leases to foreign companies that deal with countries

under U.S. trade sanctions, including Cuba.).

6 Sean Thomas, 50 Years of Sanctions: Time for a Cuban Healing, RT

POLITICS (edited Oct. 22, 2010, 05:09), http://rt.com/politics/russian/us-cuba-

economic-embargo/ (“In 1960, President Eisenhower enacted the f‌irst serious

embargo against Cuba, halting all sugar purchases from the country, ending

all oil deliveries and continuing arms embargos that were in place during the

revolutionary period, starting in 1958.”).

7 See id. (noting that the embargo and the mobilization of Cuban exiles was

an attempt to overthrow Fidel Castro and reestablish U.S. inf‌luence); See also

John Sweeny, Why the Cuban Trade Embargo Should Be Maintained, HERITAGE

FOUND. BACKGROUNDER, Nov 10, 1994, at 4, available at http://thf_media.

s3.amazonaws.com/1994/pdf/bg1010.pdf (noting that the original goals of the

embargo were to “compel Castro to open Cuba’s economy and establish democracy,

to weaken Cuba’s communist regime, and to force Castro to relinquish power”).

8 22 U.S.C. § 2370(a)(1) (2006).

9 Proclamation No. 3447, 27 Fed. Reg. 1085 (Feb. 7, 1962).

10 See Thom Woodroofe, Time to Bring Cuba in from the Cold, SYDNEY MORNING

HERALD (Nov. 3, 2010) http://www.smh.com.au/opinion/politics/time-to-bring-

cuba-in-from-the-cold-20101103-17do3.html (describing how President Kennedy

signed the executive order implementing the Cuban embargo).

11 These regulations prohibit United States Citizens and corporations from

conducting business transactions with Cuba or Cuban nationals. The statute

includes transactions involving property in Cuba or belonging to Cuban nationals

unless the transaction occurs under license. See Cuban Assets Control Regulations,

31 C.F.R. § 515.201 (2011).

12 The TWEA empowers the president to control or prevent trade with a

foreign country at a time of war. See 50 U.S.C. § 1702 (2006).

13 Helms-Burton Act of 1996, 22 U.S.C. §§ 6021-6091 (2006).

14 Woodroofe, supra note 8.

15 22 U.S.C. § 6064 (2006).

16 John W. Boscariol et al., Export Controls and Economic Sanctions, 44 INT’L

LAW. 25, 33 (2010) (noting that the Omnibus Act lightens restrictions on travel

and remittances to Cuba); 31 C.F.R. § 515.561.

17 A January 14, 2011 press release announced changes to policies govern-

ing “(1) purposeful travel; (2) non-family remittances; and (3) U.S. airports

supporting licensed charter f‌lights to and from Cuba.” The measures are said

to “increase people-to-people contact; support civil society in Cuba; enhance

the free f‌low of information to, from, and among the Cuban people; and help

promote their independence from Cuban authorities.” Press Release, The White

House Off‌ice of the Press Secretary, Reaching Out to the Cuban People (Jan.

14, 2011), http://www.whitehouse.gov/the-press-off‌ice/2011/01/14/reaching-

out-cuban-people.

18 See Daniel Hernandez, U.S. Opens the Door Further on Travel to Cuba,

L.A. TIMES (Jan. 25, 2010), http://latimesblogs.latimes.com/laplaza/2011/01/

cuba-travel-restrictions-obama-white-house-.html (discussing loosening restric-

tions on Cuba under Obama and the Cuban government’s response).

19 See Nelson Acosta, Cuba Says U.S. embargo has Toughened Under

Obama, REUTERS (Sept. 15, 2010), http://www.reuters.com/article/idUS-

TRE68E4FS20100915 (quoting the Cuban Foreign Minister stating “[t]he

embargo policy in the last two years, that is to say under the government of Presi-

dent Obama, has not changed at all . . . [i]n some aspects it has even hardened”).

20 See Howard LaFranchi, Obama Eases Cuba Travel, but Embargo Remains,

CHRISTIAN SCI. MONITOR, Apr. 13, 2009, http://www.csmonitor.com/USA/For-

eign-Policy/2009/0413/p90s01-usfp.html (stating the actual easing of sanctions

is merely due to keeping family connections but really does nothing to change

the economic sanctions placed on Cuba or better the Cuban-US relationship).

21 It is important to note that the President alone cannot end the embargo; an

act of Congress is required. PATRICK J. HANEY & WALT VANDERBUSH, THE CUBAN

EMBARGO: THE DOMESTIC POLITICS OF AN AMERICAN FOREIGN POLICY 162 (2005).

22 See Rachel D. Solomon, Note, Cuban Baseball Players, the Unlucky Ones:

United States-Cuban Professional Baseball Relations Should Be an Integral

Part of the United States-Cuba Relationship, 10 J. INT’L BUS. & L. 153, 169

(2011) (“The United States’ embargo against Cuba stems from the 1917 Trad-

102 See id. (revealing ExxonMobil’s contribution of $70,600 to Sen. Cornyn’s

campaign).

103 S. 782, 112th Cong SA 429 (proposing exclude listing of the lesser prairie

chicken); S. 782, 112th Cong SA 397 (proposing exclude listing of the sage-

brush chicken).

104 See, e.g., DEFENDERS OF WILDLIFE, INVESTING IN NATURE: THE ECONOMIC

BENEFITS OF CONSERVING NATURAL AREAS IN NORTHEAST FLORIDA (2004), http://

www.defenders.org/resources/publications/programs_and_policy/science_

and_economics/conservation_economics/valuation/investing_in_nature.pdf

(detailing the economic benef‌its of resource conservation in northeast Florida,

including benef‌its f‌lowing from increased tourism, recreation opportunities and

quality of life); ECONORTHWEST, COALITION FOR SONORAN DESERT PROTECTION,

ECONOMIC BENEFITS OF PROTECTING NATURAL RESOURCES IN THE SONORAN DESERT

1, 27 (2002), http://www.sonorandesert.org/uploads/f‌iles/economicreport.pdf

(discussing the economic benef‌its of protecting resources in the Sonoran

Desert); NIEMI ET AL., supra note 11 (describing the economic benef‌its that

resulted from forest protection in the Pacif‌ic Northwest).

105 See generally Thomas M. Power, Public Timber Supply, Market Adjustments,

and Local Economies: Economic Assumptions of the Northwest Forest Plan, 20

CONSERVATION BIOLOGY 341 (2006) (deconstructing the Northwest Forest Plan in

the Pacif‌ic Northwest to stabilize local economies).

106 See NIEMI ET AL., supra note 11, at 3 (describing the widespread economic

fears that were plaguing community members after Judge Dwyer instituted an

injunction on timber sales).

107 See id..

108 See id. at 16 (recalling timber industry groups’ predictions that owl protection

would reduce total employment in Oregon by 102,000 and 150,000 jobs).

109 See id. at 14-15 (commentating on public expressions of the economic fears

associated with declines in timber sales).

110 Power, supra note 104, at 348-9.

111 See NIEMI ET AL., supra note 11, at 21-33. Ironically, Representative Pearce

refers to the logging ban in the Pacif‌ic Northwest as being emblematic of the way

in which wildlife protection causes economic distress. See Simonich, supra note 25.

112 See ECONORTHWEST, supra note 103, at 1, 27 (concluding that the benef‌its

of resource conservation in the Sonoran Desert are increasing relative to the

costs of that conservation).

113 See, e.g., id. at 38 (reporting that preservation of natural resources can lead

to an economic stimulus in the local economy).

114 Cf. U.S. FISH & WILDLIFE SERV. ET AL., supra note 40, at 22 (explaining that

if certain soils are removed can result in active erosion or “blowouts” causing

damage to the landscape).

115 Cf. DAVIS ET AL., supra note 29, at 1, 14, 49 (stating that the Lesser Prairie

Chicken’s diet consists primarily of insects).

64 SUSTAINABLE DEVELOPMENT LAW & POLICY

ing With the Enemy Act . . . , which bans transfers of property between United

States citizens and enemy nations, unless authorized by the President.”)

23 See 31 C.F.R. § 515.201 (identifying the specif‌ic transactions that are

prohibited between Cuba and the United States and its territories).

24 See United States v. Platte River Assocs., CRIM.08-CR-00295-WYD, 2009

WL 130347 at 1, 2 (D. Colo. 2009) (holding that the providing computer soft-

ware used in oil exploration to Cuba violated the TWEA and that the defendant

engaged in illegal transactions with Cuba); See also Press Release, U.S. Attorney’s

Off‌ice, supra note 4.

25 Repsol holds oil exploration leases with Cuba. Repsol has Contract for

Oil Rig Said Cuba-Bound, REUTERS (May 5, 2010), http://www.reuters.com/

article/2010/05/05/cuba-oil-repsol-idUSN0512908420100505.

26 Platt River, supra note 24, at 1.

27 Press Release, U.S. Attorney’s Off‌ice, supra note 4.

28 Id.

29 See CHRISTOPHER SCHENK, UNITED STATES GEOLOGICAL SERVS., GEOLOGICAL

ASSESSMENT OF UNDISCOVERED OIL AND GAS RESOURCES OF THE NORTH CUBA BASIN,

CUBA (2010), available at http://pubs.usgs.gov/of/2010/1029/pdf/OF10-1029.pdf

(noting that current data estimates 4.6 billion barrels of oil off of Cuba).

30 Monica Hatcher, Cuba Drilling Poses Spill Issue: Group Says Trade

Embargo Could Hinder a Response by the U.S., HOUS. CHRON. (Sept. 6, 2010),

http://www.chron.com/disp/story.mpl/business/7186410.html.

31 Jeff Franks, Cuban Oil Production Could be a Catalyst for a Change

in Relations with U.S. N.Y. TIMES, (Nov. 5, 2010), http://www.nytimes.

com/2008/06/12/business/worldbusiness/12iht-cubaoil.4.13670441.html, at 1.

32 Id.

33 See Hilary Moise, U.S. Embargo against Cuba under Growing Siege,

COUNCIL ON HEMISPHERIC AFF. (July 18, 2006), http://www.coha.org/cuba-

embargo-under-growing-siege/ (describing the unpopularity and unprof‌itability

of the U.S. Embargo against Cuba among U.S. businesses).

34 Hatcher, supra note 30.

35 See Tim Padgett, How Cuba’s Oil Find Could Change the US Embargo,

TIME (Oct. 23, 2008), http://www.time.com/time/world/article/0,8599,

1853252,00.html#ixzz13Li5cosN (quoting Kirby Jones, the head of the

U.S.-Cuba Trade Association, stating in reference to Cuban oil that “there

will be a feeling that there is a real [U.S.] price to be paid for [maintaining]

the embargo”).

36 See Maryann Tobin, Gov. Arnold Schwarzenegger Accuses Oil Companies

of Self Serving Greed, EXAMINER.COM (Sept. 30, 2010), http://www.examiner.

com/political-spin-in-national/gov-arnold-schwarzenegger-accuses-oil-compa-

nies-of-self-serving-greed-video (noting that Governor Schwarzenegger said

that Texas oil companies who were pushing propositions in California were

using “millions of dollars of scare-tactic advertising” to “manipulate the will

of the people and the public good”); See also, Story of Hatred of Rockefellers,

N.Y. TIMES (Aug. 12, 1907), http://query.nytimes.com/mem/archive-free/pdf?re

s=F60C1EF8385512738DDDAB0994D0405B878CF1D3 (quoting Frank Rock-

efeller who describes his brother, oil baron, John D. Rockefeller as a “monster

merciless in greed”).

37 See Editorial, The House and Global Warming, N.Y. TIMES, June 26, 2009.

At A24 (stating that the outcome of a House bill on global warming is dependent

upon politicians who “fear higher energy costs for businesses and consumers.”).

38 Zachary Goldfarb, Cheney Pushes for More Drilling, WASH. POST (June 12,

2008), http://www.washingtonpost.com/wp-dyn/content/article/2008/06/11/

AR2008061103948.html.

39 See Emily Gertz, Can Offshore Drilling Really Make the U.S. Oil Indepen-

dent?, SCIENTIFIC AM. (Sept. 12, 2008), http://www.scientif‌icamerican.com/arti-

cle.cfm?id=can-offshore-drilling-make-us-independent (noting that the United

States currently consumes 20 million barrels daily with projected consumption

in 2030 of 23 million).

40 Id.

41 See id. (discussing that fuel prices are based on the amount of oil in known

reserves and that increasing the reserves with Cuban oil will drive down the price).

42 Simon Romero, Spanish Seek Oil Off Cuba, N.Y. TIMES (July 5, 2004),

http://www.nytimes.com/2004/07/06/business/international-business-spanish-

seek-oil-off-cuba-potential-shift-in-gulf-output.html?pagewanted=print.

43 See Nick Miroff, Cuban Offshore Drilling Plans Raise U.S. Concerns,

NAT’L PUB. RADIO (Sept. 12, 2011), http://www.npr.org/2011/09/12/140405282/

cuban-offshore-drilling-plans-raise-u-s-concerns (discussing U.S. oil experts’

trip to Havana to address environmental concerns).

44 On April 20, 2010, an explosion on a BP operated oil rig in the Gulf of

Mexico left eleven workers dead, sinking the rig two days later. For eighty-

seven days the well discharged millions of gallons of oil and natural gas into

the ocean before f‌inally being contained. Scientists are still assessing the spill’s

impact on the Gulf of Mexico. See, e.g., Campbell Robertson & Leslie Kauff-

man, Size of Spill in Gulf of Mexico Is Larger Than Thought, N.Y. TIMES (Apr.

28, 2010), http://www.nytimes.com/2010/04/29/us/29spill.html; Talk of the

Nation: Assessing the BP Spill’s Impact, NAT’L PUB. RADIO (Sept. 16, 2010),

http://www.npr.org/templates/story/story.php?storyId=129910789.

45 See Victoria Burnett, U.S. is Urged to Plan Aid Cuba in Case of an Oil

Spill, N.Y. TIMES (Sept. 8, 2011), http://www.nytimes.com/2011/09/09/world/

americas/09cuba.html (quoting William Riley, the co-chairman of the Deepwa-

ter Horizon oil spill investigation, as urging the United States to adopt plans for

a Cuban oil spill).

46 See David Goodhue, Cuba Leases to Bring Deepwater Drilling Within 50

Miles of Key West, WORKBOAT.COM (Sept. 9, 2010), http://www.workboat.com/

newsdetail.aspx?id=4294998861 (quoting Lee Hunt, president of the Interna-

tional Association of Drilling, as he discusses how the embargo would impede

U.S. companies from aiding Cuba if an oil spill occurred).

47 Id.

48 Lesley Clark & Sara Kennedy, Cuba Ready to Drill for Oil Deeper than BP,

PALM BEACH POST (Sept. 30, 2010), http://www.palmbeachpost.com/news/world/

cuba-ready-to-drill-for-oil-deeper-than-946069.html?printArticle=y.

49 See Rory Carroll, Cuba Braces to Contend with BP Oil Spill, GUARDIAN

(June 16, 2010), http://www.guardian.co.uk/world/2010/jun/16/cuba-braces-bp-

oil-spill (quoting several Cuban off‌icials who were concerned about damage to

Cuba due to the Deepwater Horizon oil spill).

50 Id.

51 Johannes Werner, Oil Spill Doesn’t Slow Down Cuba’s Drilling Program,

ST. PETERSBURG TIMES (May 14, 2010), http://www.tampabay.com/news/busi-

ness/energy/oil-spill-doesnt-slow-down-cubas-drilling-program/1095064.

52 See Jack Nelson, Embargo of Cuba Exacts a ‘Tragic Human Toll,’ Health

Report Charges, L.A. TIMES, (Mar. 3, 1997), http://articles.latimes.com/1997-

03-03/news/mn-34339_1_health-association (discussing the results of a study

by the American Association for World Health which found that the embargo

increased suffering and deaths in Cuba).

53 See Joseph Bradica, Havana Club Rum: One Step Back for U.S. Interna-

tional Trademark Policy, 16 TEMP. INT’L & COMP. L.J. 147, 157 (2002) (noting

that critics claim that the embargo, by preventing medical technology from

arriving in Cuba, has lead to a rise in disease).

54 Nelson, supra note 52.

55 Id.

56 A survey of 135 Havana metropolitan area residents revealed that “an over-

whelming majority” (ninety-three percent) was against the embargo, with seven

percent responding that the embargo was good or did not matter. Alberto R.

Coll, Harming Human Rights in the Name of Protecting Them: The Case of the

Cuban Embargo, 12 UCLA J. INT’L L. & FOREIGN AFF. 199, 270–71 (2007).

57 In contrast to America’s relations with Cuba, the United States has

denounced China’s human rights record yet continued to trade heavily with the

nation. A recent joint statement between China and the United States says China

welcomes the United States as a stabilizing force in the Asia-Pacif‌ic region

and the United States welcomes “a successful China that plays a greater role in

world affairs.” See Lexington, China in the Mind of America, THE ECONOMIST,

Jan. 22, 2011, at 43; See also Mark Knoller, Obama: I’ll Stick with Embargo

For Now, CBS NEWS (April 20, 2009, 2:50 AM), http://www.cbsnews.com/

stories/2009/04/19/politics/100days/worldaffairs/main4955009.shtml (discuss-

ing how some commentators criticize the United States for trading with China,

a communist country with known human rights abuse issues, while not trading

with Cuba).

58 See Nelson, supra note 52 (noting how the U.N. has passed resolutions con-

demning the embargo and requesting that the United States end the embargo).

59 See Castro Opponent Free After 17 Years in Jail, REUTERS (April

3, 2007), http://www.reuters.com/article/2007/04/23/us-cuba-prisoner-

idUSN2331960920070423 (discussing the story of a Cuban political prisoner

who was jailed after shouting slogans against Fidel Castro at a music concert).

60 See Yoani Sanchez, Communist Party Congress to Work on Economy but

not Human Rights, HUFFINGTON POST (Nov. 14, 2010, 6:09 PM), http://www.

huff‌ingtonpost.com/yoani-sanchez/communist-party-congress_b_783317.html

(discussing how in Cuba one “cannot leave without permission” and “free

association is punished”).

61 Cuba: Release of Dissidents Still Leaves Scores in Prison, HUMAN RIGHTS

WATCH (July 8, 2010), http://www.hrw.org/en/news/2010/07/08/cuba-release-

dissidents-still-leaves-scores-prison.

62 See Paul Haven, Cuba to Chart Economic Future at Party Congress,

SEATTLE TIMES (Nov. 9, 2010), http://seattletimes.nwsource.com/html/busi-

65FALL 2011

nesstechnology/2013384454_apcbcubapartycongress.html (discussing an

economic proposal made by communist party leaders and aff‌irming that Cuba

will stay a one party socialist system).

63 Id.

64 See Cuba to Study Oil Spill Risks and Prevention, RADIO CADENA

AGRAMONTE (Jan. 29, 2011), http://www.cadenagramonte.cu/english/index.

php?option=com_content&view=article&id=4151:cuba-to-study-oil-spill-risks-

and-prevention&catid=2:cuba&Itemid=14 (discussing Cuban off‌icials planning

workshops to study the threat and prevention of oil spills).

65 Cuba Looks to Cooperate on Offshore Safety, UPSTREAMONLINE.COM (Aug.

25, 2010, 18:25 GMT), http://www.upstreamonline.com/live/article227380.ece.

66 See Andres Schipani, US Bill to Bar Oil Groups with Cuban Links, FIN.

TIMES (Feb. 25, 2011), http://www.ft.com/cms/s/0/cdf8d4b4-4060-11e0-9140-

00144feabdc0.html#axzz1F2K2yOqC (noting that several foreign oil compa-

nies are trying to obtain licenses to drill in Cuba).

67 International Oil Spills, U.S. DEP’T OF STATE, http://www.state.gov/g/oes/

ocns/opa/marine/oil/index.htm (last visited Nov. 8, 2011).

68 Id.

69 See id. (listing exclusively all countries with which United States has

oil spill agreements); See also Lesley Clark, Coast Guard Preparing for

Cuba Oil Spills, MCCLATCHY (Sept. 30, 2010), http://www.mcclatchydc.

com/2010/09/30/101416/coast-guard-preparing-for-cuba.html (noting that no

oil spill agreement exists between the United States and Cuba).

70 The Joint Contingency Plan Between the United Mexican States and the

United States of America Regarding Pollution of the Maritime Environment by

Discharge of Hydrocarbons or Other Hazardous Substances, U.S.-Mex., Feb. 25

2000, 32 U.S.T. 5899 [hereinafter MEXUS Plan].

71 Id. at 1; International Convention on Oil Pollution Preparedness, Response

and Cooperation, Nov. 30, 1990, 1891 U.N.T.S. 51, S. Treaty No. 102-11.

72 See DANIEL WHITING, 1997 INT’L OIL SPILL CONFERENCE, MEXUS PLAN:

MEXICO/UNITED STATES BILATERAL RESPONSE PLAN 967, 967 (1997), http://www.

iosc.org/papers/01240.pdf (stating that the agreement requires the “develop-

ment of a bilateral response plan”).

73 Id. at 168–69 (stating that elements of the plan were tested in 1995 and

1996 to determine their validity).

74 STAFF TRIP REP. TO THE COMM. ON FOREIGN RELATIONS, 111TH CONG., CHANGING

CUBA POLICY IN THE UNITED STATES NATIONAL INTEREST 6 (Comm. Print 2009) (stat-

ing that Cuban off‌icials indicated to U.S. representatives that they were interested

in cooperating with the United States on security and commerce issues).

75 See U.S. Rep. Cliff Stearns says Cuba and China are Partnering to Drill for

Oil off Florida’s Coast, POLITIFACT FLORIDA (Mar. 30, 2010), http://politifact.

com/f‌lorida/statements/2010/mar/31/cliff-stearns/cliff-stearns-cuba-china-oil-

drilling/ (stating that Cuba potentially could drill within forty-f‌ive miles off the

coast of Florida, closer than U.S. companies are legally permitted).

76 Franks, supra note 31.

77 See Jillian L. Genaw, Offshore Oil Drilling in the United States and the

Expansion of Cuba’s Oil Program: A Discussion on Environmental Policy,

20 IND. INT’L & COMP. L. REV. 47, 70–71 (2010) (arguing that allowing U.S.

oil companies to conduct more offshore drilling will reduce the risk of envi-

ronmental harm by decreasing imports from foreign oil tankers, which have a

higher rate of oil spills).

78 See Maria Gavrilovic, Obama Says Dependency on Foreign Oil Poses

Terrorist Threat to U.S., CBS NEWS (July 11, 2008 2:24 PM), http://www.

cbsnews.com/8301-502443_162-4253821-502443.html (quoting Barack Obama

stating that foreign countries can use prof‌its from oil to fund terrorists); Sarah

Palin ‘Still Considering’ 2012 Run, Admits She Gets Her ‘Butt Kicked’ in Polls,

NYPOST.COM (posted Feb. 17, 2011 9:46AM), http://www.nypost.com/p/news/

local/palin_to_answer_questions_from_ny_h20Rw0ytsQeli7Rh2s9RCN (quoting

Sarah Palin as saying that it made sense not to rely on foreign regimes that “can

use energy as a weapon against us”).

79 Genaw, supra note 77.

80 See Franks, supra note 1.

81 On the other hand, Cuban oil independence would likely result in loosening

Venezuelan inf‌luence, a current concern of the United States. See Kristen

Begg, US Report Slams Cuba and Venezuela for Guerrilla Links, COLOM.

REP. (Aug. 5, 2010, 16:10), http://colombiareports.com/colombia-news/

news/11201-us-report-slams-cuba-and-venezuelas-terrorist-links.html

(noting that the State Department listed Venezuela with countries that do not

cooperate with U.S. anti-terrorism efforts).

82 See Brian Latell, Raul Skating on thin Ice, MIAMI HERALD (Jan. 28, 2010),

http://www.miamiherald.com/2011/01/28/2038545/raul-skating-on-thin-ice.

html (“Raúl Castro’s performance of late has generated more doubts about the

viability of the family dictatorship than at any time since he and Fidel won

power more than 50 years ago.”).

83 Rory Carroll, Fidel Castro Says his Economic System is Failing, GUARDIAN

(Sept. 9, 2010), http://www.guardian.co.uk/world/2010/sep/09/f‌idel-castro-

cuba-economic-model.

84 Id.

85 Raul Castro once told reporters asking if there would be changes to post-

Fidel Cuba, “Yes, toward a better form of socialism and—here’s something

you’ll like—toward a more democratic society.” Morgan Neil, Younger Castro

Hints at ‘More Democratic’ Cuba, CNN (Feb 20, 2008), http://edition.cnn.

com/2008/WORLD/americas/02/20/raul.castro/index.html.

86 Leonard Doyle, The End of Communism? Cuba Sweeps Away Egalitarian

Wag e s , INDEPENDENT (Jun. 13, 2008), http://www.independent.co.uk/news/

world/americas/the-end-of-communism-cuba-sweeps-away-egalitarian-wages-

846248.html.

87 H.R. 372, 112th Cong. (2011).

88 The bill would restrict U.S. offshore drilling licenses from companies that

aid Cuban drilling efforts by amending the Outer Continental Shelf Lands Act,

43 U.S.C. § 1337(a), to add: (9) The Secretary may deny issuance of an oil and

gas lease under this Act, or a permit for exploration, development, or produc-

tion under such a lease, to any person that has engaged in activities with the

government of any foreign country that is subject to any sanction or an embargo

established by the Government of the United States, including any sanction or

embargo established under section 203 of the Emergency Economic Powers Act

(50 U.S.C. 1702). Id. at § 1.

89 See Kevin Derby, Vern Buchanan Introduces Bill to Stop Cuban Offshore

Drilling Near Florida, SUNSHINE ST. NEWS (Jan. 21, 2011 11:45 AM), http://www.

sunshinestatenews.com/story/vern-buchanan-introduces-bill-stop-cuban-offshore-

drilling-near-f‌lorida (stating that Vern Buchanan believes his legislation, if passed,

will induce Repsol into abandoning its Cuban drilling); See also Judson Berger,

Lawmaker Aims to Block Cuba Oil Drilling Near Florida Coast, FOXNEWS.COM

(Jan. 24. 2011), http://www.foxnews.com/politics/2011/01/24/lawmaker-aims-

block-cuba-oil-drilling-near-f‌lorida-coast/ (noting that Vern Buchanan wants to

threaten Repsol’s assets in U.S. territory through the new bill).

90 Berger, supra note 89.

91 See Repsol Continues with Drilling Plans in Cuba, CUBA STANDARD (Jan.

29, 2010, 10:56 PM), http://www.cubastandard.com/2011/01/29/repsol-contin-

ues-with-drilling-plans-in-cuba/ (noting how Repsol continues its plans to drill

in Cuba despite the threat of Vern Buchanan’s bill).

92 The United States has often sanctioned foreign companies for dealing

with Cuba. See Juan O. Tomayo, US Could Sanction Dutch Bank for Doing

Business with Terror Sponsors, MIAMI HERALD (July 27, 2011), http://www.

miamiherald.com/2011/07/27/2333786/us-could-sanction-dutch-bank-for.

html#ixzz1fX4JT6PK (reporting that Dutch Bank ING faces huge f‌ines from

the United States for possible transaction with Cuba); see also David M. Sham-

berger, The Helms-Burton Act: A Legal and Effective Vehicle for Redressing U.S

Property Claims in Cuba and Accelerating the Demise of the Castro Regime, 21

B.C. INT’L & COMP. L. REV. 497, 505 (1998) (noting that the U.S. government

sanctioned two foreign companies, who operated in Cuba, by refusing access to

their principals and families to America).

93 But see Thomas Wire, Misguided Effort on Cuba Oil Drilling, ST. PETERS-

BURG TIMES (Feb. 7, 2011), http://www.tampabay.com/opinion/editorials/

misguided-effort-on-cuba-oil-drilling/1149686 (arguing that the United States

should be pursuing cooperation with Cuba to prevent oil spills rather than

attempting to stop the drilling).

94 See, Thomas J. Donohue, The Cuban Economic Embargo: Time for a

New Approach, CATO INST. (Feb. 15, 2000), http://www.cato.org/pub_display.

php?pub_id=5081&full=1 (stating that the embargo gives Fidel Castro an

excuse for his failed economy).

95 See Neil, supra note 76.

66 SUSTAINABLE DEVELOPMENT LAW & POLICY

Endnotes: THE ARCTIC COUNCIL: GATEKEEPER OR DOORMAT TO THE WORLD’S NEXT MAJOR RESOURCE BATTLE?

continued from page 40

1 See 1 GEORGE SANTAYANA, Reason in Common Sense, in Vol. 1 THE LIFE OF

REASON 284 (1905), http://www.gutenberg.org/f‌iles/15000/15000-h/vol1.html.

2 According to the Merriam-Webster’s dictionary “land grab” means “a usu-

ally swift acquisition of property often by fraud or force.” Land Grab Def‌inition,

Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/land-

grab (last visited Nov. 18, 2011). There have been countless land grabs throughout

history, two of the most notable are “Manifest Destiny” and “The Scramble for

Africa.” See id. The Cambridge dictionary further def‌ines “land grab” as “the act

of taking an area of land by force, for military or economic reasons.” Land Grab

Def‌inition, Cambridge Dictionaries Online, http://dictionary.cambridge.org/dic-

tionary/business-english/land-grab (last visited Nov. 18, 2011).

3 See The Arctic is Poised to be Oil’s Final Frontier, SEEKING ALPHA (Sept.

28, 2011), http://seekingalpha.com/article/296430-the-arctic-is-poised-to-be-

oil-s-f‌inal-frontier [hereinafter Oil’s Final Frontier]; Sergey Andaykin, Large

Russian Interest for Arctic Licenses, BARENTS OBSERVER (Oct. 24, 2011), http://

www.barentsobserver.com/index.php?id=4976120&cat=116320&printable=1;

see generally Peter F. Johnston, Arctic Energy Resources and Global Energy

Security, 12 J. MIL. & STRATEGIC STUD., no. 2 (2010) (citing various efforts by

arctic nations, through political and commercial entities, to explore the oceans

and continental shelf in the Arctic and to stake their claim to any resources).

4 There is no certain way to know the amount of oil and natural gas available

in the Arctic formations because methodologies of estimation are so varied.

Figures range wildly from 44 billion to 157 billion barrels of oil (13% of the

world’s undiscovered supply), and 770 trillion cubic feet to 2,990 trillion cubic

feet of natural gas (approx. 30% of the world’s undiscovered natural gas). See

Johnston, supra note 3, at 2-4.

5 See Oil’s Final Frontier, supra note 3 (citing technological feasibility of

exploration in the Arctic by the world’s larger oil companies like Exxon

and Rosneft); Christoph Siedler, Taking Stock of North Pole Riches,

SPEIGEL ONLINE (Sept. 7, 2009), http://www.spiegel.de/international/

world/0,1518,druck-648197,00.html (discussing the technological feasibility

of oil and gas development in the Arctic); Duncan E.J. Currie, Sovereignty and

Conf‌lict in the Arctic Due to Climate Change: Climate Change and the Legal

Status of the Arctic Ocean, GLOBELAW.COM (Aug. 5, 2007), http://www.globe-

law.com/LawSea/Climate_Change_and_Arctic_Sovereignty.html (providing

evidence about the changing environmental factors that lead to political con-

f‌licts and negotiations over sovereignty of the Arctic).

6 See Oil’s Final Frontier, supra note 3; see also Siedler, supra note 5 (dis-

cussing increased interest in the Arctic by large oil companies and geological

studies and surveys that speak to the technical and economic feasibility of tap-

ping into the Arctic fossil fuel reserves).

7 See Johnston, supra note 3, at 1, 18-20 (discussing the concerns about the

global availability of oil and natural gas, China’s increasing demands for fossil

fuels, and the hope/expectation that Arctic reserves will alleviate the strain on

global supplies).

8 See Currie, supra note 5 (noting reductions in ice sheet and permafrost

cover, and other drastic changes to the Arctic environmental as a result of

changing climates that provides access to shipping channels and other com-

mercial development in the Arctic); LINDA NOWLAN, ARCTIC LEGAL REGIME FOR

ENVIRONMENTAL PROTECTION, INTERNATIONAL UNION FOR CONSERVATION OF NATURE

AND NATURAL RESOURCES 2-3 (2001) (showing further evidence of melting ice

and increasing temperatures in the Arctic).

9 See NOWLAN, supra note 8, at 9-10 (discussing the impetus behind the cre-

ation of the Arctic Council).

10 The eight original member nations are the United States, Canada, Russia,

Iceland, Norway, Denmark, Finland, and Sweden. See Lev Levit, About Us:

Member States, Arctic Council (Jul. 29 2011), http://www.arctic-council.org/

index.php/en/about-us. The eight original member states have voting power

and discretion over all matters and initiatives discussed by the Arctic Council.

See Arctic Council Rules of Procedure: General Provisions Rule 7, ARCTIC

COUNCIL (Sept. 17-18, 1998), http://www.arctic-council.org/index.php/en/about/

documents/category/4-founding-documents (download Arctic Counsel Rules of

Procedure) [hereinafter Rules of Procedure].

11 The permanent-observer nations are France, Germany The Netherlands,

Poland, Spain, and the United Kingdom. See About Us: Observers, ARCTIC

COUNCIL (Apr. 27, 2011), http://www.arctic-council.org/index.php/en/about-us/

partners-links.

12 Nowhere in the Rules of Procedure adopted by the Arctic Council, does it

provide for voting rights to Observers, but the rules do allow for Observers to

submit statements at Ministerial Meetings of the Council. Therefore, by nega-

tive implication, there are no voting rights allotted to Observer Nations. Also, to

obtain the status of “Observer” the Council implicitly determines that the sub-

ject observer has sometime to contribute to the Council, therefore participation

is essential and encouraged. See generally Rules of Procedure, supra note 10.

13 See About the Arctic Council, Arctic Council (Apr. 7, 2011), http://www.

arctic-council.org/index.php/en/about-us [hereinafter About the Arctic Council].

14 Id.

15 See Declaration on the Establishment of the Arctic Council (Sept. 19,

1996), http://www.arctic-council.org/index.php/en/about/documents/category/4-

founding-documents [hereinafter Ottawa Declaration].

16 See NOWLAN, supra note 8, at 9-16.

17 The Arctic Environmental Protection Strategy (“AEPS”) was a non-binding

declaration made f‌ive years before the creation of the Arctic Council. Most

if not all of the member-nations of the AC were present and signed on to the

AEPS, which makes aff‌irmative commitments to investigate, mitigate, and

protect the Arctic against the effects of pollution brought on by fossil fuel

development (among other things). See Arctic Environmental Protection Strat-

egy, U.S.-Can.-Russ.-Fin.-Ice.-Nor.-Swed.-Den., at 2-4, 9-10, 14-15, Jun. 14,

1991,http://www.arctic-council.org/index.php/en/about/documents/f‌ile/53-aeps

(download Arctic Environmental Protection Strategy). The Arctic Council is

often seen as the outgrowth of AEPS, and was by many accounts expected to

further the goals of AEPS. See NOWLAN, supra note 8, at 9. Therefore, the AC

goals of “sustainable development” must have some nexus with the environ-

mental aims of AEPS. It is not unreasonable to expect the AC to have some

interest in regulating the development of fossil fuels in the Arctic.

18 See NOWLAN, supra note 8, at 9, 11, 15-16 (discussing the impetus behind

the creation of the Arctic Counsel, analyzing the effectiveness of the Council in

light of barriers to funding and decision-making power, and the inherent tension

between environmental concerns and sustainable development that predominate

the Council’s dialogue.)

19 See Robert Sibley, China Enters the Arctic Equation, POSTMEDIA NEWS

(Oct. 28, 2011), http://www.canada.com/news/China+enters+Arctic+equat

ion/5625499/story.html (discussing the speech and support expressed by the

Danish Ambassador in his latest speech in Beijing).

20 Specif‌ically, Sibley wrote, “Some suggest the Danish ambassador was not

only trying to leverage Denmark’s inf‌luence in the Arctic Council, but soliciting

Chinese investment to help the Danes exploit Greenland’s natural resources.

And from China’s perspective, they say, the ambassador’s remarks ref‌lect

China’s interest in gaining access to resources and increasing its geopoliti-

cal clout.” See id. (citing noted scholars and analysts from the University of

Calgary who have tracked China’s increased interest in Arctic resources and

China’s questioning of Canadian sovereignty over the Northwest Passage).

21 See generally GOVERNMENT OF CANADA, STATEMENT ON CANADA’S ARCTIC

FOREIGN POLICY: EXERCISING SOVEREIGNTY AND PROMOTING CANADA’S NORTHERN

STRATEGY ABROAD, GOVERNMENT OF CANADA (2010), http://www.international.

gc.ca/polar-polaire/canada_arctic_foreign_policy_booklet-la_politique_etran-

gere_du_canada_pour_arctique_livret.aspx?lang=eng&view=d (making strong,

broad, and sweeping assertions about Canadian rights to sovereignty in certain

areas of the Arctic, and expressing a plan to exercise those rights through the

Arctic Council and other mechanisms).

22 See Toni Johnson, Thawing Arctic’s Resource Race, COUNCIL ON FOREIGN

RELATIONS (Aug. 9, 2007), http://www.cfr.org/arctic/thawing-arctics-resource-

race/p13978 (last visited Nov. 19, 2011) (discussing the move to place a f‌lag,

and the subsequent “research team” that went out to prove that the Arctic’s

underwater ridge connected to the Siberian Continental Shelf, thus giving Rus-

sia a claim to sovereignty under international maritime law).

23 EXEC. OFFICE OF THE PRESIDENT, U.S. ARCTIC REGION POLICY (2009), https://

rapidlychanginarctic.custompublish.com/getf‌ile.php/868102.1463.wfsxdypcyp/

US+Arctic+Policy+2009.pdf [hereinafter Combined Strategies for the Arctic].

24 Presumably, the aff‌irmative statements of the eight member-nations of the

AC and the other articles cited in this piece evidence the strong expectation

among the global community that the fossil fuel reserves will be developed.

See id.

67FALL 2011

25 The Ottawa Declaration also avows the member-nations’ commitment to

sustainable development of the natural resources within the Arctic. See Ottawa

Declaration, supra note 15. Each member nation has enunciated a policy that

supports the development of oil and gas reserves in the Arctic in each member-

nation’s respective “Strategy for the Arctic.” See FINLAND PRIME MINISTER’S

OFFICE, FINLAND’S STRATEGY FOR THE ARCTIC REGION 19-22 (2010); GOVERNMENTS

OF DENMARK, THE FAROES, AND GREENLAND, KINGDOM OF DENMARK STRATEGY FOR

THE ARCTIC 2011-2020 24-29 (Aug. 2011); GOVERNMENT OF ICELAND, A PARLIA-

MENTARY RESOLUTION ON ICELAND’S ARCTIC POLICY (2011); CANADA MINISTER OF

PUBLIC WORKS AND GOVERNMENT, CANADA’S NORTHERN STRATEGY 14-16 (2009);

NORWEGIAN MINISTRY OF FOREIGN AFFAIRS, NEW BUILDING BLOCKS IN THE NORTH

23-25 (2009); See also Combines Strategies for the Arctic, supra note 23, at art. G.

26 See DEEP WATER: THE GULF OIL DISASTER AND THE FUTURE OF OFFSHORE

DRILLING, NATIONAL COMMISSION ON THE BP DEEPWATER HORIZON OIL SPILL AND

OFFSHORE DRILLING 126-127 (2011), http://www.oilspillcommission.gov/sites/

default/f‌iles/documents/FinalReportChapter4.pdf (discussing the failure of

government regulators to enforce necessary regulations and maintain proper

enforcement to ensure that BP was not cutting corners and lacking in the neces-

sary safeguards to prevent the oil spill).

27 See NOWLAN, supra note 8, at 10 (noting that a “unique” aspect of the Arctic

Council is the fact that provides indigenous people’s of the Arctic with ‘Perma-

nent Participant’ status and provides them with an ability to inf‌luence the coun-

cil’s actions).

28 Nowlan states, “The Arctic Council’s effectiveness is signif‌icantly enhanced

by this innovative approach to indigenous peoples. There is a general consensus

among the participants that indigenous involvement in the AEPS has made the

process a different and more successful product. Their participation gives ‘real

life examples’ of the impacts of policies and developments.” See NOWLAN, supra

note 8, at 11.

29 See NOWLAN, supra note 8, at 15-16 (discussing the lack of enforcement and

decision making authority vested in the Council).

30 See id.

31 See SUSAN JAY HASSOL, IMPACTS OF A WARMING ARCTIC: ARCTIC CLIMATE

IMPACT ASSESSMENT 2-5 (2004) (discussing the impacts resource extraction

on global and arctic climate change. Further discussing responses to climate

change through mitigation of greenhouse gas emissions, and citing the role of

fossil fuels in adding to greenhouse gas emissions).

Endnotes: THREATS TO A SUSTAINABLE FUTURE: WATER ACCUMULATION AND CONFLICT IN LATIN AMERICA

continued from page 45

1 Jan Hendriks, Water Laws, Collective Rights and System Diversity in

Andean Countries, in OUT OF THE MAINSTREAM: WATER RIGHTS, POLITICS, AND

IDENTITY 168-71 (Rutgerd Boelens et al. eds. 2010).

2 Anthony Bebbington et al., Federating and Defending: Water, Terri-

tory and Extraction in the Andes, in OUT OF THE MAINSTREAM. WATER RIGHTS,

POLITICS AND IDENTITY 320 (Rutgerd Boelens et al. eds., 2010); KATE BERRY &

ERIC MOLLARD, SOCIAL PARTICIPATION IN WATER GOVERNANCE AND MANAGEMENT:

CRITICAL AND GLOBAL PERSPECTIVES (Routledge 2009).

3 See generally Jose Esteban Castro, Water Struggles, Citizenship and

Governance in Latin America, 51 DEVELOPMENT, 72 (2008) (exploring some

of the trends and problems that have arisen in Latin America surrounding water

access).

4 Id. at 75; PAUL H. GELLES, WATER AND POWER IN HIGHLAND PERU: THE

CULTURAL POLITICS OF IRRIGATION AND DEVELOPMENT (Rutgers Univ. Press 2000);

Antonio Gaybor, Acumulación en el campo y despojo del agua en el Ecuador,

in JUSTICIA HÍDRICA: ACUMULACIÓN, CONFLICTOS Y ACCIÓN CIVIL 195-208 (Rutg-

erd Boelens et al. eds. 2011).

5 UNITED NATIONS ENVIRONMENT PROGRAMME, Climate Change Hits Hard

on Latin America and the Caribbean, (Apr. 6, 2007), http://www.unep.org/

documents.multilingual/default.asp? documentid=504&articleid=5558&l=en.

6 Francisco Pena, Acumulación de Derechos de Agua y Justicia Hídrica en

Mexico: El Poder de Las Elites, in JUSTICIA HÍDRICA: ACUMULACIÓN, CONFLICTOS

Y ACCIÓN CIVIL 209-22 (Rutgerd Boelens et al. eds. 2011)

7 Id.; see also Erik Swyngedouw, Dispossessing H20: The Contested

Terrain of Water Privatization, 16 CAPITALISM NATURE SOCIALISM 81, 81-98

(2005); KAREN BAKKER, BEYOND PRIVATIZATION: WATER, GOVERNANCE, CITIZENSHIP

(2010); MIGUEL SOLANES & ANDREI JOURAVLEV, COMISIÓN ECONÓMICA PARA

AMÉRICA LATINA Y EL CARIBE (U.N. CEPAL), RECURSOS NATURALES E INFRAESTRUC-

TURA: WATER GOVERNANCE FOR DEVELOPMENT AND SUSTAINABILITY 22-25 (2006).

8 U.N. CEPAL, Recursos Naturales e Infraestructura, dministración del agua

en America Latina y el Caribe en elumbral del siglo XXI, 12, (July 2001) (by

Andrei Jouravlev).

9 Swyngedouw, supra note 7, at 93; JULIO F. ALEGRIA, CONFLICTS AND WATER

MANAGEMENT IN PERU IN THE CONTEXT OF CLIMATE CHANGE 9-10 (2009), avail-

able at http://www.iproga.org.pe/boletin/bol2041/JulioAlegria.pdf.

10 Hendriks, supra note 1, at 17-72; Mourik Bueno de Mesquita, Agua,

concentración de recursos naturales y conf‌lictos en el Perú, in JUSTICIA

HÍDRICA: ACUMULACIÓN, CONFLICTOS Y ACCIÓN CIVIL 179-94 (Rutgerd Boelens

et al. eds. 2011).

11 Swyngedouw, supra note 7, at 91.

12 Rutgerd Boelens & Margreet Zwarteven, Prices and Politics in Andean

Water Reforms, 36 DEVELOPMENT AND CHANGE 735, 735-58; BAKKER, supra note

7.

13 Hendricks, supra note 1, at 168-71.

14 Swyngedouw, supra note 7, at 82.

15 Id. at 83-84.

16 Pena, supra note 6, at 214.

17 Id. at 85 (discussing the establishment of regulatory bodies and the subse-

quent budgetary issues that led to ineff‌icient operation).

18 Rutgerd Boelens, The Politics of Disciplining Water Rights, 40 DEVELOP-

MENT AND CHANGE, 307, 315-18 (2009) [hereinafter Water Rights].

19 Id. at 313-14.

20 Boelens & Zwarteven, supra note 12, at 739-44.

21 Castro, supra note 3, at 73; Bebbington et al., supra note 2, at 313.

22 Bebbington, supra note 2, at 307-31.

23 Rutgerd Boelens, Armando Guevara-Gil & Aldo Panf‌ichi, Indigenous

Water Rights in the Andes: Struggles Over Resources and Legitimacy 20 THE

JOURNAL OF WATER LAW 268, 275-76. [hereinafter Indigenous Water Rights].

24 Id. at 317.

25 Id.

26 See, e.g., ANTOINETTE HILDERING, International Law, Sustainable Develop-

ment and Water Management (2004); see, e.g., ECONOMIC COMMISSION FOR

EUROPE, 45th Sess., Charter on Ground-Water Management, E/ECE/1197 ECE/

ENVWA/12 (1989) available at http://www.inter nationalwaterlaw.org/docu-

ments/regionaldocs/groundwater_charter.html.

27 HILDERING, supra note 26.

28 James Keese, International NGOs and Land Use Change in a Southern

Highland Region of Ecuador, 26 HUM. ECOLOGY 451, 464-66 (1998); Carols

Larrea & Lisa L. North, Adjustment Policy Impacts on Truncated Development

and Democratisation, 18 THIRD WORLD Q. 913, 915-29 (1997); See generally

Victoria A. Lawson, Government Policy Biases and Ecuadorian Agricultural

Change, 78 ANNALS ASS’N AM. GEOGRAPHERS 433, 434-49 (1988).

29 Gaybor, supra note 4, at 197-99.

30 Id.

31 Id.

32 Id.

33 Id.

34 Id. at 199.

35 Id.

36 Id.

37 Id.

38 Id.

39 Id.

40 Id. at 200.

41 Id.

42 Id.

43 Id.

44 Id.; Leontien Cremers et al, Institutional Reform in the Andean Irrigation

Sector: Enabling Policies for Strengthening Local Rights and Water Manage-

ment, 29 NATURAL RESOURCES FORUM 37, 41 (2005).

45 Gaybor, supra note 4, at 200; Julio A. Berdegue & Ricardo Fuentealba,

Latin America: The State of Smallholders in Agriculture at 20 (2011).

46 Gaybor, supra note 4, at 200.

47 Id.

68 SUSTAINABLE DEVELOPMENT LAW & POLICY

48 Id.

49 Id.

50 Id.

51 Id.

52 Id.

53 Id.

54 Id.

55 Indigenous Water Rights, supra note 23, at 271.

56 Id.

57 Juan Antonio Zúñiga & Israel Rodríguez, Son 80 millones los pobres que

hay en el país, af‌irma especialista, LA JORNADA (July 21, 2009), http://www.

jornada.unam.mx/2009/07/21/politica/003n1pol. .

58 Id.

59 En manos de 39 familias, 13.5 del PIB, EL UNIVERSAL (July 2, 2008),

http://www.eluniversal.com.mx/f‌inanzas/65197.html.

60 Id.

61 See id.; Pena, supra note 6, at 209

62 Pena, supra note 6, at 212.

63 Id.

64 Id. at 212-13.

65 Id. at 213.

66 Id.

67 Id.

68 Id.

69 Id.

70 Id.

71 Id.

72 Id.

73 Id.at 213-14.

74 Id.at 214.

75 Id.

76 See generally S. VARGAS & E. MOLLARD, PROBLEMAS SOCIOAMBIENTALES Y

EXPERIENCIAS ORGANIZATIVAS EN LAS CUENCAS DE MEXICO (2005).

77 Tribunal Latinoamericano del Agua, Caso: Proyecto hidroeléctrico “La

Parota” sobre el río Papagayo en el estado de Guerrero, República Mexicana

(Mar. 2006), http://tragua.com/audiencias/2006/veredictos_2006/CasoLaParota.pdf.

78 Paul Tarwick, Against the Privitization of Water: An Indigenous Model for

Improving Existing Laws and Successfully Governing the Commons, 31 WORLD

DEVELOPMENT 977, 978 (2003).

79 See id. at 985-86 (discussing legislation that while “democratic in spirit”

deprives farmers of access to water and gives government bureaucracies the

distribution power which is frequently misused).

80 See INTERNATIONAL FEDERATION FOR HUMAN RIGHTS, Peru—Bagua: Bloodshed

in the Context of Amazon Protest, Urgent Need for Good Faith Dialogue 14

(2009), http://www.f‌idh.org/IMG//pdf/rapperou529ang.pdf [hereinafter IDFHR]

(stating that since 2006 Indigenous territory has been parceled off to mining

and chemical companies).

81 Id. at 14-15.

82 Id.

83 Id. at 15-18.

84 AMNESTY INTERNATIONAL, Victims of Peru Amazon Violence Deserve Justice

Without Discrimination (Dec. 2, 2009), http://www.amnesty.org/en/news-

and-updates/report/victims-peru-amazon-violence-deserve-justice-without-

discrimination-20091 [hereinafter AMNESTY].

85 Anna Luisa Daigneault, Remembering the Violence at Bagua, One Year

Later: A Memorial for Peru’s ‘Tiannamen Square’, THE MEDIA CO-OP (Jun. 6,

2010), http://www.mediacoop.ca/story/ 3586.

86 See generally CONSTITUTION, Dec. 31, 1993 [PERU].

87 AMNESTY, supra note 84.

88 IDFHR, supra note 75, at 25-30.

89 Id. at 31.

90 Bueno de Mesquita, supra note 10, at 180.

91 Id.

92 IDFHR, supra note 75, at 33-35.

93 Id. at 15-16

94 Id. at 15.

95 Id.

96 Bueno de Mesquita, supra note 10, at 183.

97 Id.

98 Id. at 191.

99 See Water Resources Management Modernization Project of Peru, UNITED

NATIONS EDUCATIONAL, SCIENTIFIC, AND CULTURAL ORGANIZATION (“UNESCO”),

http://www.iciwarm.org/en/about/prjPeru.cfm (last visited Dec. 19, 2011).

100 Bueno de Mesquita, supra note 10, at 191.

101 Id.

102 Id.

103 Id. at 191-92.

104 Id.

105 Id.

106 Id. at 192.

107 Id.

108 Id.

109 Id.

110 Id.

111 See, e.g., Bebbington et al., supra note 2, at 312.

112 Water Rights, supra note 18, at 323.

113 See generally BAKKER, supra note 7.

114 AMNESTY INTERNATIONAL, ANNUAL REPORT: ECUADOR 2011 (2011),

http://www.amnestyusa.org/research/reports/annual-report-ecuador-2011.

115 See generally BAKKER, supra note 7.

116 Id.

117 See, e.g., AMNESTY INTERNATIONAL, supra note 114.

118 INFORME TRIMESTRAL SOBRE LA ASAMBLEA NACIONAL CONSTITUYENTE DE LA

REPÚBLICA DEL ECUADOR [QUARTERLY REPORT ON THE NATIONAL CONSTITUENT

ASSEMBLY REPUBLIC OF ECUADOR], MAR. 2008, at 28.

119 Id.

120 Id.at 23-4.

121 Id.

122 NATIONAL ASSEMBLY LEGISLATIVE AND OVERSIGHT COMMITTEE, [CONSTITUTION]

OCT. 20, 2008, TRANSITORY PROVISIONS, ART. 27 (ECUADOR).

123 SUSAN REIDER, CHALLENGING THE STANDARD NARRATIVE: MYTH-MAKING AND

ACCOUNTABILITY IN ECUADORIAN ENVIRONMENTAL AND INDIGENOUS POLITICS 13-14

(2010).

124 Luis Ángel Saavedra, Voids in Water Bill, LATIN AMERICAN PRESS (Nov.

18, 2009), http://www.latinamericapress.org/articles.asp?item=1&art=5993;

see also Gonzalo Oritz, Ecuador: Native Groups in Showdown Over Water

Bill, GLOBALISSUES.ORG (Apr. 29, 2010), http://www.globalissues.org/

news/2010/04/29/5427; Julia Apland, The Water Conf‌lict in Ecuador, COLUMBIA

WATER CENTER (May 14, 2010), http://blogs.ei.columbia.edu/2010/05/14/

the-water-conf‌lict-in-ecuador/.

125 Id.

126 Id.

127 Id.

128 Apland, supra note 129.

129 See Ortiz, supra note 129.

130 See generally Pena, supra note 6 (discussing general water reform efforts

in Mexico).

131 Id.

132 See CIP Americas, Inter-American Development Bank Megaprojects:

Displacement and Forced Migration (May 19, 2010), http://www.cipamericas.

org/archives/2421.

133 Saavedra, supra note 124.

134 U.N.E.S.C.O WATER: A SHARED RESPONSIBILITY 12 (2006).

135 Bebbington et al., supra note 2, at 318.

136 Id.

137 Id. (Noting that indigenous mobilization “is very far from being a

suff‌icient vehicle for changing both the rules of the game and the ways in

which this game is played such that indigenous and citizen rights of access

to water, resources and self-governance are guaranteed”).

138 Id.

139 Id.

140 Id. (Explaining that that “constitutional change, no matter how apparently

progressive, will do little to protect water rights while cultures of power con-

tinue to be inf‌lected with authoritarianism”).

141 Id.

142 Id.

143 David Howard, Mo Hume, & Ulrich Oslender, Violence, Fear, and Devel-

opment in Latin America: A Critical Overview, DEVELOPMENT IN PRACTICE,

November 2007, at 714 (stating that the underdevelopment in Latin America

can be explained by the exploitation of satellite areas for the economic develop-

ment of the core. As a result, satellite areas remain undeveloped because they

do not have access to their own resources).

69FALL 2011

144 Id. at 715 (“The escalating depletion of …land, air, water, the corpora-

tization and privatization of hitherto public assets, the reversion of common

property rights won through years of hard class struggle to the private domain

indicate a new wave of enclosing the commons”).

145 Castro, supra note 5, at 75.

146 Id.

147 Boelens & Zwarteven, supra note 12, at 735, 741.

148 Bebbington, et al., supra note 2, at 316-17; Indigenous Water Rights, supra

note 23, at 271.

149 Indigenous Water Rights, supra note 23, at 328.

150 Id. at 271.

151 Id. (Explaining that “[l]ocal territories are invaded and existing water rights

often neglected”).

152 Id.

153 Id.

154 Boelens & Zwarteven, supra note 12, at 735-58.

155 Id.

156 Id. at 744. (Revealing that “water reforms in the Andes threaten to destroy

existing local and indigenous water rights systems”).

157 Water Rights, supra note 23, at 328-29.

158 DIK ROTH, ET AL., LIQUID RELATIONS: CONTESTED WATER RIGHTS AND LEGAL

COMPLEXITY 1 (2005).

Endnotes: COLLABORATION AND THE ECOLOGY OF DEMOCRACY

continued from page 50

19 See The Lubrecht Conversations, CHRONICLE OF COMMUNITY, Autumn 1998, at 9.

20 USDA FOREST SERV., THE PROCESS PREDICAMENT: HOW STATUTORY, REGU-

LATORY, AND ADMINISTRATIVE FACTORS AFFECT NATIONAL FOREST MANAGEMENT

(2002), http://www.fs.fed.us/projects/documents/Process-Predicament.pdf.

21 USDA FOREST SERV., Id.

22 See Snow, supra note 3, at 2 (describing “collaborative conservation” as

an emerging movement that “reaches across the great divide connecting pres-

ervation advocates and developers, commodity producers and conservation

biologists, local residents, and national interest groups to f‌ind working solutions

to intractable problems that will surely languish unresolved for decades in the

existing policy system”).

23 E.g., Snow, supra note 3, at 4.

24 See Snow, supra note 3, at 2; see also Williams & Ellefson, supra note 7,

at 1 (discussing the various stakeholders that may be involved in resource

partnerships).

25 See From Troubled Waters: The Emergence of Collaborative Conservation,

in ACROSS THE GREAT DIVIDE 13, 13–14 (Philip Brick et al. eds., 2001) (introducing

several essays that addresses the emergence of collaborative conservation groups).

26 Philip Brick & Edward P. Weber, Will Rain Follow the Plow? Unearthing

a New Environmental Movement, in ACROSS THE GREAT DIVIDE 15, 15 (“Col-

laboratives are a response to dysfunctional environmental strategies and policy

processes, but are also symbiotically dependent on them.”).

27 See Andrus & Freemuth, supra note 17, at 11 (concluding that collaborative

processes “matter[] most” in the West).

28 See Snow, supra note 3, at 6–7; Michael McCloskey, The Skeptic: Collabo-

ration Has Its Limits, HIGH COUNTRY NEWS (May 13, 1996), http://www.hcn.org/

issues/59/1839.

29 See infra notes 49–68 and accompanying text (describing the Blackfoot Chal-

lenge as an illustration of agency involvement in the collaborative movement).

30 See Snow, supra note 3, at 6–7 (“Collaborative groups are usually ad hoc

and ex parte. They often lack corporate status and are informal in structure.”)

31 See generally Ed Marston, The Quincy Library Group: A Divisive Attempt

at Peace, in ACROSS THE GREAT DIVIDE 79 (Philip Brick et al. eds., 2001)

(providing a case study of the Quincy Library Group Partnership).

32 Herger-Feinstein Quincy Library Group Forest Recovery Act Record

of Decision: Final Environmental Impact Statement, http://www.fs.fed.us/r5/

hfqlg/archives/record_of_decision/ (last visited Nov. 4, 2011).

33 Herger-Feinstein Quincy Library Group Forest Recovery Act Record of

Decision: Final Environmental Impact Statement, Id.

34 The National Forest Management Act of 1976, 16 U.S.C. §§ 1600–1614

(2006).

35 ECOSYSTEM RESEARCH GROUP, DRAFT PARTNERSHIP STRATEGY FOR THE BEA-

VERHEAD–DEERLODGE NATIONAL FOREST (2006), http://www.mtmultipleuse.org/

wilderness/B-DpartnershipStrategy.pdf.

36 Ted Fellman, Collaboration and the Beaverhead-Deerlodge Partnership:

The Good, the Bad, and the Ugly, 30 PUB. LAND & RESOURCES L. REV. 79, 93

(2009).

37 See supra notes 4–5 and accompanying text.

38 Fellman, supra note 36, at 95.

39 Phil Taylor, Wilderness Bills Proliferate as Promoters Hope to Break

2-Year Drought, N.Y. TIMES (May 3, 2011), http://www.nytimes.com/

gwire/2011/05/03/03greenwire-wilderness-bills-proliferate-as-promoters-

hope-16290.html?pagewanted=all.

40 Public Lands and Forests Legislation: Hearing on S.1470, S. 1719, S.1787,

H.R. 762, and H.R. 934 Before the Subcomm. on Public Lands and Forests of S.

Comm. on Energy & Natural Resources, 111th Cong. 45–46 (2009) (statement

of Sherman Anderson, President and Owner, Sun Mountain Lumber, Inc.).

41 Ray Ring, Taking Control of the Machine, HIGH COUNTRY NEWS (July 20,

2009), http://www.hcn.org/issues/41.12/taking-control-of-the-machine.

42 Ring, supra note 41.

43 Ring, supra note 41; see also ECOSYSTEM RESEARCH GROUP, supra note 35,

at 4.

44 E.g., Ring, supra note 41; ECOSYSTEM RESEARCH GROUP, supra note 35.

45 Ring, supra note 41; ECOSYSTEM RESEARCH GROUP, supra note 35.

46 E.g., Ring, supra note 41; ECOSYSTEM RESEARCH GROUP, supra note 35.

47 ECOSYSTEM RESEARCH GROUP, supra note 35, at 23–27.

48 Forest Jobs and Recreation Act of 2011, S. 268, 112th Cong. (2011); see

also Ring, supra note 41.

49 Who We Are_History, BLACKFOOT CHALLENGE, http://blackfootchallenge.org/

Articles/?p=185 (last visited Nov. 4, 2011); see also Blackfoot Community Con-

servation Area, BLACKFOOT CHALLENGE (Feb. 2010), http://blackfootchallenge.

org/Articles/wp-content/uploads/2010/06/Blackfoot-Community-Conservation-

Area_2010.pdf (mapping out the entire Blackfoot Community Conservation

Area (BCCA)).

50 Who We Are, BLACKFOOT CHALLENGE, http://blackfootchallenge.org/

Articles/?cat=3 (last visited Nov. 4, 2011).

51 Sonja Lee, Blackfoot Challenge Rises to the Task, GREAT FALLS TRIB. (Aug.

21, 2005), http://blackfootchallenge.org/Articles/?p=116.

52 Rob Chaney, Montanans See Their Ideas in Obama Outdoors Initiative,

MISSOULIAN, (Feb. 17, 2011, 8:45 PM), http://missoulian.com/news/state-

and-regional/article_71277f94-3b0e-11e0-be21-001cc4c03286.html (“‘I can’t

stress enough how that impresses me, that Washington is f‌inally starting to get

it,’ said Iverson, a Potomac rancher and logger who helps lead the Blackfoot

Challenge.”).

53 Telephone interview with Denny Iverson, Treasurer, Blackfoot Challenge

Board, (Feb. 24, 2011).

54 Id.

55 Id.

56 Id.

57 Id.

58 Id.

59 Id.

60 Id.

61 Id.

62 Id.

63 Id.

64 Id.

65 Id.

66 Id.

67 Id.

68 Who We Are, supra note 50.

69 See supra note WETERING, supra note 15 and accompanying text.

70 See About VDCP, VALLESCALDERA, http://www.vallescaldera.gov/about/

(last visited Nov. 4, 2011).

71 Valles Caldera Preservation Act, 16 U.S.C. § 698v (2006); see also WETER-

ING, supra note 15, at 18.

72 16 U.S.C. § 698v (2006).

70 SUSTAINABLE DEVELOPMENT LAW & POLICY

73 16 U.S.C. § 698v-5.

74 16 U.S.C. § 6501(1) (2006).

75 16 U.S.C. § 6501(1).

76 National Forest Management Act, 16 U.S.C. § 1600(6) (2006).

77 36 C.F.R. § 219.1 (2009).

78 ALYSON FLOURNOY ET AL., CTR. FOR PROGRESSIVE REFORM, REGULATIONS IN

NAME ONLY: HOW THE BUSH ADMINISTRATION’S NATIONAL FOREST PLANNING RULE

FREES THE FOREST SERVICE FROM MANDATORY STANDARDS AND PUBLIC ACCOUNT-

ABILITY 3–4 (2005).

79 Press Release, U.S. Forest Service, USDA Forest Service Launches Collab-

orative Process for New Planning Rule (Dec. 17, 2009), http://www.usda.gov/

wps/portal/usda/usdahome?contentidonly=true&contentid=2009/12/0620.xml.

80 Collaboration & Public Involvement, U.S. FOREST SERV., http://www.fs.usda.

gov/wps/portal/fsinternet/!ut/p/c4/04_SB8K8xLLM9MSSzPy8xBz9CP0os-

3gjAwhwtDDw9_AI8zPwhQoY6BdkOyoCAPkATlA!/?ss=119987&navtype=

BROWSEBYSUBJECT&cid=null&navid=131000000000000&pnavid=null&

position=BROWSEBYSUBJECT&ttype=main&pname=Planning%20Rule-%20

Collaboration%20&%20Public%20Involvement (last visited Nov. 4, 2011).

81 NAT’L RESEARCH COUNCIL, supra note 4, at 37–38.

82 See generally Martin Nie & Michael Fiebig, Managing the National

Forests through Place-Based Legislation, 37 ECOLOGY L.Q. 1 (2010) (analyzing

forest-specif‌ic, place-based legislation from multiple standpoints).

83 Public Lands and Forests Legislation: Hearing on S.1470, S. 1719, S.1787,

H.R. 762, and H.R. 934 Before the Subcomm. on Public Lands and Forests of S.

Comm. on Energy & Natural Resources, 111th Cong. 101 (2009) (statement of

Martin Nie, Professor, College of Forestry and Conservation, Univ. of Montana).

84 Public Lands and Forests Legislation: Hearing on S.1470, S. 1719, S.1787,

H.R. 762, and H.R. 934 Before the Subcomm. on Public Lands and Forests of S.

Comm. on Energy & Natural Resources, 111th Cong. 19 (2009) (statement of

Harris Sherman, Undersecretary Natl. Res. & Env’t, Dep’t of Agric. Env’t).

85 See supra notes 22–26 and accompanying text (describing how the collabo-

ration movement is emerging largely in response to the failures of the

traditional governing framework).

86 CHARLES DARWIN, ON THE ORIGIN OF SPECIES BY MEANS OF NATURAL SELECTION,

OR THE PRESERVATION OF FAVOURED RACES IN THE STRUGGLE FOR LIFE (1859),

available at http://darwin-online.org.uk/content/frameset?viewtype=side&itemI

D=F401&pageseq=2.

87 See Snow, supra note 3, at 6–7 (discussing the def‌ining characteristics of

collaboration); see also Democracy’s Organic Dimension, Kettering Found.,

http://www.kettering.org/ketterings_research/Democracys_Organic_Dimension

(last visited Nov. 29, 2011) (noting that the “organic foundation of ad hoc asso-

ciations and civic organizations” coexists with procedural democracy).

88 Supra notes 49–57 and accompanying text.

89 Supra note 51 and accompanying text.

90 Supra notes 49–57 and accompanying text.

91 Nie & Fiebig, supra note 82, at 18; see also Snow, supra note 3, at 4 (“[E]

nvironmental conf‌licts in the West tend to breed long-standing hostilities and

help to fracture communities . . . .”).

92 See generally Nie & Fiebig, supra note 82 (questioning forest-specif‌ic,

place-based legislation’s “governance, conf‌lict resolution, precedent, wilderness

designation, and funding” processes).

93 Meg Wheatley & Deborah Frieze, Using Emergence to Take Social Innova-

tions to Scale, FIELDNOTES, Winter 2007, at 4.

94 Wheatley & Frieze, Id.