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
 
CONTENT
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 & SOCY 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 NATL 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, DEPT 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 RICOS
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 WORLDS 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. INTL. 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 INTL 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: AFRICAS 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 ProvinceDRC, 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 NATL FARMERS’ FEDN, 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; NATL FARMERS
FEDN, supra note 23, at 6; NATL 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 INTL 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, INTL INST. FOR STRATEGIC STUDIES, FUELLING WAR: NATURAL
RESOURCES AND ARMED CONFLICTS 34 (2005).
49 Id.
50 GLOBAL WITNESS, RESOURCE CURSE OR CURE? REFORMING LIBERIAS
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, INTL 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 INTL 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 IRAQS 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 CHINAS 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], CHINAS
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, ChinaMeasures 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, ChinaMeasures 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, ChinaMeasures 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 INTL 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. INTL 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 RICOS 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 NATL 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, TAJIKISTANS 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 INTL 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., INTL 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 INTL 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 INTL 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 INTL 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. DEPT 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 INTL 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 INTL 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 POLY 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 POLY
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 NATL 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 “CONFLICTSIN 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. GOVT 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. GOVT 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. GOVT 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 INTL
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. INTL 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,
NATL 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, NATL 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. INTL & 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. INTL 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. DEPT 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 INTL 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. INTL & 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. INTL & 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 WORLDS 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 CANADAS ARCTIC
FOREIGN POLICY: EXERCISING SOVEREIGNTY AND PROMOTING CANADAS 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 MINISTERS
OFFICE, FINLANDS 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 ICELANDS ARCTIC POLICY (2011); CANADA MINISTER OF
PUBLIC WORKS AND GOVERNMENT, CANADAS 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 ASSN 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 ADMINISTRATIONS 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 NATL 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.