Endnotes

Pages:40-50
 
CONTENT
40 Sustainable Development Law & Policy
29
See id.; see also Solar City Launches First Public Offering of Solar Bonds,
Solar city, https://solarbonds.solarcity.com/ (last visited March 5, 2017) (issu-
ing $200 million in asset-linked retail bonds).
30
See This is Leed, leeD, http://leed.usgbc.org/leed.html (last visited Mar.
5, 2017) (laying out the Leadership in Energy and Environmental Design
(“LEED”) certification process for green commercial and residential buildings
in the United States as established by the United States Green Building Council
(“USGBC”)).
31 See intl cap. mktS. aSSn, supra note 13, at 1.
32
See Green Projects, supra note 6.
33
See id. (outlining a climate resilient project in Belize that built-up roads to
confront heightened flooding risk from rising sea levels and a project in China
that reconstructed a river basin and improved drainage to prevent flooding and
contamination caused by climate change).
34
See Tax Incentives for Issuers and Investors, climate bonD initiative,
https://www.climatebonds.net/policy/policy-areas/tax-incentives (last visited
Mar. 5, 2017) (explaining that “bond investors do not have to pay income tax on
interest from the green bonds they hold”).
35
See What are Green Bonds, supra note 3 (explaining that “Green Bonds are
an opportunity to invest in climate solutions through a high quality credit fixed
income product”).
36
See Climate Bonds for Beginners, climate bonD initiative, https://www.
climatebonds.net/resources/overview/climate-bonds-for-beginners (last visited
Mar. 5, 2017) (stating that 89% of green bonds are investment-grade); see also
Christopher Swope, Explainer: What Are ‘Green Bonds’ and Why Are Cities So
Excited About Them?, citiScope (May 20, 2016), http://citiscope.org/story/2016/
explainer-what-are-green-bonds-and-why-are-cities-so-excited-about-them
(contending municipal bonds are viewed as safe and attract many investors).
37
See Michael Chamberlain, Socially Responsible Investing: What
You Need to Know, forbeS (Apr. 24, 2013), http://www.forbes.com/sites/
feeonlyplanner/2013/04/24/socially-responsible-investing-what-you-need-to-
know/#40115f885863 (breaking down how SRIs make investment decisions).
38
See Envtl. Fin. Staff, Show Me the Green Money!, envtl. fin. (Aug. 22,
2016), https://www.environmental-finance.com/content/analysis/show-me-the-
green-money.html (making clear how SRIs can be beneficial to issuers’ investor
portfolios).
39
See Bridget Boulle, The Dawn of an Age of Green Bonds?, Green econ.
coal. (Mar. 12, 2014), http://www.greeneconomycoalition.org/know-how/
dawn-age-green-bonds.
40
See id. (giving AAA status is the safest rating an investment can receive).
41
See Zanki, supra note 5.
42
Boulle, supra note 39.
43
See History, climate bonD initiative, http://www.climatebonds.net/market/
history (last visited Mar. 5, 2017) [hereinafter CBI History]; see also EIB
Climate Awareness Bonds, the eur. inv. bank, http://www.eib.org/attachments/
fi/projects-supported-by-cabs.pdf (last visited Mar. 5, 2017) (financing projects
such as energy efficient, private and public housing in Austria).
44
See New World Bank Green Bond Is a Story of Market Growth and Innova-
tion, wbG, http://www.worldbank.org/en/news/feature/2015/02/25/green-bond-
story-market-growth-innovation (last visited Mar. 5, 2017) [hereinafter New
World Bank].
45 See Strategic Framework, supra note 2.
46
See What are Green Bonds, supra note 3.
47
See id.
48
See New World Bank, supra note 44.
49
What are Green Bonds, supra note 3.
50
See Our Governance, ifc, http://www.ifc.org/wps/wcm/connect/
corp_ext_content/ifc_external_corporate_site/about+ifc_new/IFC+Governance
(last visited Mar. 12, 2017) (explaining that the IFC is a member of the World
Bank Group although it remains a separate legal entity).
51
CBI History, supra note 43.
52
See id. (describing how green bonds became mainstream investments).
53
See Boulle, supra note 39.
54
See id. (creating more demand by issuing through larger well known corpo-
rate issuers).
55
Compare SIFMA, supra note 19 (computing 2010 corporate bond issu-
ances at $1.03 trillion) with Global Bonds, the worlD bank treaSury, http://
treasury.worldbank.org/cmd/pdf/InvestorBriefsGlobalBonds.pdf (last visited
Mar. 10, 2017) (approximating annual World Bank bond issuances at $2 to $4
billion).
56
See Mike Cherney, Massachusetts Goes ‘Green, wall St. J. (June 4, 2013,
7:33 PM), http://www.wsj.com/articles/SB100014241278873245630045785
25762271478512 (investing in water quality, energy efficiency, and pollution
reduction across the State).
57
Id.
58
See Zanki, supra note 8 (detailing that funding will be distributed to water
conservation projects and installing solar panels on public schools).
59
See Scott M. Stringer, A Green Bond Program for New York City, n.y.c.
office of the comptroller 4 (2015), https://comptroller.nyc.gov/wp-content/
uploads/2016/06/Green_Bond_Program_Update.pdf (reporting that investors
agreed for eligible green projects to be modeled after the systems of other suc-
cessful issuers).
60
Id. (recognizing that a high-quality program would improve the City’s risk
profile among investors and verify NYC as a leader in the green municipal bond
market).
61
See Boulle, supra note 39 (increasing market size when corporate issuers
with deep pockets began issuing green bonds).
62
What are Green Bonds, supra note 3; see generally Safeguard Policies, the
worlD bank, http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/
EXTPOLICIES/EXTSAFEPOL/0,,menuPK:584441~pagePK:64168427~piPK
:64168435~theSitePK:584435,00.html (last visited Mar. 12, 2017) [hereinafter
Safeguard Policies] (framing the World Bank’s policies for monitoring the
social and environmental impacts of its investments).
63
See Zanki, supra note 5 (conveying that a definitive green standard will
prevent manipulation and increase transparency).
64
See unDp, supra note 24 (displaying the major concerns and risks in the
green bond market).
65
See Kapur, supra note 9 (asserting that without increased transparency
investors will exit the market).
66
See generally ILSR Admin, Top 10 Ways Walmart Fails on Sustainability,
inSt. for local Self-reliance (Apr. 17, 2012), https://ilsr.org/top-10-ways-
walmart-fails-sustainability/ (deducing that Wal-Mart is the most notorious
greenwasher and has recently begun highlighting its sustainability efforts yet
has failed to meet these promises and ignores its drastic environmental impact).
67
See About Greenwashing, GreenwaShinG inDex, http://greenwashingindex.
com/about-greenwashing/ (last visited Mar. 12, 2017) (defining greenwashing).
68
See id. (presenting common examples of greenwashing).
69
See Phillip Ludvigsen, Advanced Topics in Green Bonds: Risks, envtl.
fin. (Nov. 24, 2015), https://www.environmental-finance.com/content/analysis/
advanced-topics-in-green-bonds-risks.html (revealing that issuers may make
environmental claims without supporting evidence).
70
See Fred Pearce, Greenwash: Why ‘Clean Coal’ is the Ultimate Climate
Change Oxymoron, the GuarDian (Feb. 26, 2009), https://www.theguardian.
com/environment/2009/feb/26/greenwash-clean-coal (publicizing that claims of
modern coal being 70% cleaner come from a reduction of sulphur and nitrogen
not carbon emissions).
71
See Ludvigsen, supra note 69 (calling for up-to-date disclosure of projects
environmental data to keep investors informed and able to monitor progress).
72
See id. (explaining that increased disclosure of environmental impacts will
help investors weigh decisions on which projects they deem green enough for
their money).
73
See intl cap. mktS. aSSn, supra note 13, at 3.
74
See id. at 2 (presenting that these requirements will prevent issuers from
misleading the market).
75
See id. at 3.
76
See id. (listing the eligible broad green bond project categories based on
environmental and sustainable sectors in need of financing).
77
See GBP Membership, intl cap. mktS. aSSn, http://www.icmagroup.org/
Regulatory-Policy-and-Market-Practice/green-bonds/membership/ (last visited
Mar. 12, 2017) (listing eighty-eight issuers and underwriters who are members
of the GBP).
78
See Robert N. Freedman, Financing Green: The Rise of the Green Bond,
law360 (June 26, 2014 5:47 PM), http://www.law360.com/articles/552291/
enDnoteS: Green GreeD iS GooD: how Green bonDS cultivateD into wall StreetS environmental paraDox
continued from page 11
41Spring 2017
financing-green-the-rise-of-the-green-bond?article_related_content=1 (recog-
nizing despite the benefits of the GBP, problems still exist in the market).
79
See Kapur, supra note 9 (contending the lack of regulation will allow gre-
enwashing to saturate the market and prevent meaningful change).
80
See intl cap. mktS. aSSn, supra note 13, at 1-6.
81
See Zanki, supra note 5 (stressing the issues with the market subscribing to
voluntary guidelines).
82
See intl cap. mktS. aSSn, supra note 13, at 2 (explaining the ICMA’s
argument for voluntary prescription).
83
See id. at 2 (noting that green bond issuers are not required to follow the
GBP).
84
See About Us, intl cap. mktS. aSSn, http://www.icmagroup.org/About-
ICMA/ (last visited Mar. 29, 2017).
85
See Graham Cooper, Green Bond Market Needs Dialogue with
Policymakers, Says Think Tank, envtl. fin. (June 8, 2016), https://www.
environmental-finance.com/content/news/green-bond-market-needs-dialogue-
with-policymakers-says-think-tank.html (suggesting public sector development
of standards would be beneficial for the green bond market).
86
See id. (noting a clear definition of “greenness” is essential to the market).
87
intl cap. mktS. aSSn, supra note 13, at 3.
88
See Cooper, supra note 85 (reiterating that integrity is crucial the markets
financial and environmental success).
89
See Ludvigsen, supra note 69 (arguing an implied benefit of environmental
externalities can be valued).
90
See intl cap. mktS. aSSn, supra note 13, at 5 (verifying sustainability
by comparing internal claims made by the issuer to external evaluations of
reviewer).
91
See id. at 4.
92
See Ludvigsen, supra note 69 (rebuking second-party sources who provide
ratings for a green bond project they helped create and declaring it an “indepen-
dent” rating).
93
See Moody’s Corporation, mooDyS, https://www.moodys.com/Pages/
atc.aspx (last visited Mar. 12, 2017) (describing Moody’s role in the financial
industry as issuing credit ratings and analysis for securities and bonds).
94
See Dominic Rushe, Credit Agencies Dropping Claims That They are
‘Independent’, Harvard Finds, the GuarDian (Apr. 9, 2015, 7:30 AM), https://
www.theguardian.com/business/2015/apr/09/credit-agencies-rejecting-claims-
independent-harvard (noting Moody’s has shied away from referring to itself as
“independent” after the 2008 financial crisis).
95
See Rupert Neate, Ratings Agencies Suffer Conflict of Interest, Says Former
Moody’s Boss, the GuarDian (Aug. 22, 2011, 1:18 PM), https://www.theguard-
ian.com/business/2011/aug/22/ratings-agencies-conflict-of-interest (confirming
credit rating agencies’ role in the 2008 financial crisis).
96
See Kat Greene, SEC Says Conflicts of Interest Persist at Ratings Agencies,
law360 (Dec. 23, 2014 9:57 PM), http://www.law360.com/articles/607603/
sec-says-conflicts-of-interest-persist-at-ratings-agencies (reporting that conflict
of interests continue to exist).
97
See Usman Hayat, Green Bonds: What’s Right, What’s Wrong, enter. inv.
(July 9, 2015), https://blogs.cfainstitute.org/investor/2015/07/09/green-bonds-
whats-right-whats-wrong/ (arguing conflicts of interest will arise if current
disclosure laws and service providers both advise and offer reviews to issuers).
98
Climate Bond Standard, supra note 22.
99
See id. at 8-9 (requiring issuers to disclose quantitative methods for deter-
mining sustainability impacts).
100
See Climate Bond Standard, supra note 22, at 11-12 (outlining the pre-
issuance and post-issuance certification process to ensure investors of the
integrity of their funds).
101
See id. at 3 (demonstrating the Climate Bond Standard is voluntary for
issuers to show off their climate integrity).
102
See Kapur, supra note 9 (explaining these voluntary guidelines come with
costs not required for conventional bonds).
103
See intl cap. mktS. aSSn, supra note 13, at 3 (noting the difference
between conservation projects that preserve wildlife habitats and sustainability
projects that produce renewable energy and smart farms).
104
See Climate Bond Standard, supra note 22, at 3 (stating the Climate Bond
Standard follows the requirements of the GBP, which purposely do not weigh
eligible projects against each other); see also intl cap. mktS. aSSn, supra
note 13, at 3.
105
See Protecting the Environment, nuclear enerGy inSt., http://www.nei.
org/Issues-Policy/Protecting-the-Environment (last visited Mar. 12, 2017)
(detailing the conservation concerns of nuclear power).
106
See Envtl. Fin. Staff, Green Bond Comment- July 2016, envtl. fin. (July
27, 2016), https://www.environmental-finance.com/content/analysis/green-
bond-comment-july-2016.html (pointing out without a standard the market will
continue to permit controversial projects).
107
See Giulio Boccaletti, Not All Types of Water Projects Should Be Consid-
ered Green, envtl. fin. (Oct. 23, 2015), https://www.environmental-finance.
com/content/analysis/not-all-types-of-water-projects-should-be-considered-
green.html (arguing the lack of a definition for “sustainable resource manage-
ment” makes classification of water projects as a green bond industry unclear).
108
See id. (highlighting several of the negative environmental impacts of water
projects that, some have argued, outweigh the benefits).
109
See Hamza Ali, US Munis Tap Green Bond Market for Water Projects,
envtl. fin. (Aug. 31, 2016), https://www.environmental-finance.com/content/
news/us-munis-tap-green-bond-market-for-water-projects.htmlt [hereinafter Ali
Munis] (stating that projects that provide drinking water may not be green ).
110
See generally Water Climate Bonds Standard, climate bonD initiative,
http://www.climatebonds.net/files/files/Climate%20Bonds-Draft%20Water%20
Bond%20Standard-Consultation%20Paper%2020-11-2015.pdf [hereinafter
Water Climate Bonds Standard] (defining eligibility for water projects financed
by green bonds and intending to provide investors with a framework to evaluate
water related bonds).
111
See Meg Wilcox, San Francisco Public Utilities Commission (SFPUC)
Issues World’s First Certified Green Bond for Water Infrastructure, cereS, (May
18, 2016), https://www.ceres.org/press/press-releases/san-francisco-public-
utilities-commission-issues-world2019s-first-certified-green-bond-for-water-
infrastructure (issuing $240 million in green revenue bonds for sustainable
storm water management and water projects based on the Water Climate Bonds
Standard).
112
See Sophie Robinson-Tillett, Green Bond Market Risks Losing Credibility,
Warns Allianz, envtl. fin. (Nov. 24, 2015), https://www.environmental-finance.
com/content/news/green-bond-market-risks-losing-credibility-warns-allianz.
html (emphasizing that standardization is needed in order to preserve the
market).
113
See Kapur, supra note 9 (noting that voluntary regulations come with
lower costs but also enable greenwashed projects which do nothing to mitigate
climate change and push away investors).
114
See Robinson-Tillett, supra note 112 (stating that without regulatory inter-
vention, a mixed market will never recover its credibility).
115
See Zanki, supra note 5 (standardizing “green” provides clarity for all
international market participants).
116
See u.S. fooD & DruG aDmin., how iS the term “orGanic” reGulateD?
(2016), https://www.fda.gov/AboutFDA/Transparency/Basics/ucm214871.
htm (last visited Mar. 12, 2017) (outlining the process for regulating the term
organic); see also u.S. Dept of aGric., orGanic reGulationS, https://www.
ams.usda.gov/rules-regulations/organic (last visited Mar. 12, 2017) (explaining
the USDA’s regulations of organics).
117
See u.S. Dept of aGric., supra note 116 (mentioning the regulation and
comment review process).
118 See u.S. Dept of aGric., becominG a certifieD operation (addressing
concerns of increasing regulatory costs by reimbursing eligible organic produc-
ers up to 75% of the certification costs).
119
See u.S. Dept of aGric., supra note 116.
120
See id.
121
See Cooper, supra note 85 (arguing for the government to lead the regula-
tion of the market).
122
See generally Sec. & exch. commn, what we Do, https://www.sec.gov/
about/whatwedo.shtml (last visited Mar. 12, 2017) (giving an overview of the
SEC’s role).
123
envtl. prot. aGency, what iS Green infraStructure, https://www.epa.
gov/green-infrastructure/what-green-infrastructure (last visited Mar. 12, 2017).
124
See Kapur, supra note 9 (noting the industry is nervous that regulations will
lower issuance rates).
125
See generally Green City Bonds, How to Issue a Green Muni Bond, Green
bonD coal. 1-3 (July 28, 2015), http://www.climatebonds.net/files/files/
Green%20City%20Playbook.pdf (illuminating the historic value of municipal
bonds).
126
See id. at 4 (combining a safe investment in municipal bonds with the bud-
ding potential municipalities possess to mitigate climate change).
127
See Kapur, supra note 9 (reporting municipal bonds without verification are
likely to be greenwashed).
128
See id. (stating that investors are skeptical when verification is lacking).
42 Sustainable Development Law & Policy
129
See generally id. (suggesting that tax benefits are useless without the intrin-
sic environmental benefits).
130
See Robinson-Tillett, supra note 112 (highlighting how even the private
sector is concerned about greenwashing and standardized regulation is needed
in the green bond market).
131
See Hamza Ali, Moody’s Issues First GBA of a US ‘Muni’ Bond, envtl.
fin. (Aug. 11, 2016), https://www.environmental-finance.com/content/news/
moodys-issues-first-gba-of-a-us-muni-bond.html [hereinafter Ali GBA ].
132
See Hamza Ali, Moody’s Announces Green Bond Assessment Criteria,
envtl. fin. (Jan. 14, 2016), https://www.environmental-finance.com/content/
news/moodys-announces-green-bond-assessment-criteria.html [hereinafter Ali
Criteria] (explaining Moody’s grading system for the new GBA).
133
See id. (making clear that Moody’s does not market GBAs as official credit
ratings).
134
See id. (allowing investors to make more educated decisions about the
bonds they invest in).
135
See generally id. (suggesting that although beneficial, GBAs do not solve
the problems with voluntary prescription).
136
See id. (admitting that the GBA is voluntary).
137
Ali GBA, supra note 131.
138
See generally Boccaletti, supra note 107 (summarizing the debate over
whether water projects should be eligible for green bond status).
139
See Graham Cooper, US Municipalities Launch $800m of Green Bonds for
Water Projects, envtl. fin. (June 1, 2016), https://www.environmental-finance.
com/content/news/us-municipalities-launch-800m-of-green-bonds-for-water-
projects.html (announcing $800 million in new green municipal bonds dedi-
cated to water projects in Massachusetts, San Diego, and New Jersey).
140
See Ali Munis, supra note 109 (acknowledging that without a clear defini-
tion, it is unclear how green a project needs to be).
141
See Robinson-Tillett, supra note 112 (warning that standardization is
needed for the market to remain healthy and robust).
142
See generally mun. Sec. rulemakinG bD., about mSrb, http://www.msrb.
org/About-MSRB.aspx (last visited Mar. 12, 2017) (publicizing the MSRB’s
role in the municipal bond market).
143
See generally fin. inDuS. reG. auth., http://www.finra.org/about (last
visited Mar. 12, 2017) (stating that FINRA is a private corporation that works
as a self-regulatory organization and is financed by its many broker-dealer
members).
144
See mun. Sec. rulemakinG bD., supra note 142 (clarifying the MSRB’s
rules are enforced by the SEC).
145
See generally mun. Sec. rulemakinG bD., primary market DiScloSureS,
http://www.msrb.org/Market-Transparency/Primary-Market.aspx (last visited
Mar. 12, 2017) (increasing the MSRB’s jurisdiction after the 2008 financial
crisis).
146
MSRB Rule, MSRB Rule G-32(a)(iii)(A), http://www.msrb.org/rules-and-
interpretations/msrb-rules/general/rule-g-32.aspx.
147
mun. Sec. rulemakinG bD., continuinG DiScloSureS, http://www.msrb.org/
Market-Transparency/Continuing-Disclosure.aspx (last visited Mar. 12, 2017).
148
See Ludvigsen, supra note 69 (exclaiming investors can do little until some
sort conformity is implemented).
149
See id. (calling the GBP and CBI beneficial in defining a standard of care).
150
See generally intl cap. mktS. aSSn, supra note 13; Climate Bond Stan-
dard, supra note 22.
151
See Ludvigsen, supra note 69 (suggesting that investors who assert false
environmental promises from issuers were material to their investment deci-
sions should be able litigate their claims).
152
See Zhu v. UCBH Holdings, Inc., 682 F. Supp. 2d 1049, 1052 (N.D. Cal.
2010) (allowing plaintiffs to consolidate claims if they relying on the same
information to prevent “delay, confusion and prejudice”).
153
Id. at 1051.
154
Id. at 1052.
155
Id.
156
Id.
157
See Ludvigsen, supra note 69 (realizing that investors cannot point to a
standard of care until regulations are made).
158
See Class Action Attorney: Answers About Class Action Lawsuits, lieff
cabraSer heimann & bernStein, llp, https://www.lieffcabraser.com/about-us/
class-action-faq/ (last visited Mar. 12, 2017) [hereinafter Action Attorney]
(agreeing that class actions help individuals get remedies from large and power-
ful entities).
159
See Class Actions, JuStia, https://www.justia.com/trials-litigation/class-
actions/ (last visited Mar. 12, 2017) [hereinafter Class Actions] (combining
resources lowers the financial costs and can amplify legal arguments).
160
See Action Attorney, supra note 158 (confirming it makes little financial
sense to bring an individual case against large businesses).
161
See id. (pursuing class actions are effective measures of stopping wrongdo-
ers from continuing their behavior).
162
See Class Actions, supra note 159 (litigating class actions requires greater
resources and time to reach a conclusion).
163
See In re Oppenheimer Rochester Funds Grp. Sec. Litig., 2015 U.S. Dist.
LEXIS 141073 at *15-16 (D. Colo. Oct. 16, 2015) (discussing the procedural
history of the case).
164
Id. at *25.
165
Id. at *26-27.
166
Id. at *27-28.
167
See id. at *30-31 (discussing how proof of false or misleading statements
must be established).
168
See id. at *52-53 (ruling class action litigation is superior to any other form
of adjudication in this case to prevent re-litigating cases and the high costs of
individual litigation).
169
Id. at *15-16.
170
See Kevin LaCroix, Thinking About Bondholder Securities Class Actions,
the D&o Diary (Feb. 20, 2015), http://www.dandodiary.com/2015/02/articles/
securities-litigation/thinking-about-bondholder-securities-class-actions/
(explaining that bondholder class actions provide remedies for those mislead by
issuers and may act a deterrent against similar action in the future).
171
See Ludvigsen, supra note 69 (identifying that investors cannot point to a
standard of care until regulations are made).
172
See Abell v. Potomac Ins. Co., 858 F.2d 1104, 1109 (5th Cir. 1988).
173
See id. at 1117-18 (ruling that the Plaintiff’s must prove their reliance on
false statements led to their investment in order to be compensated).
174
See id. at 1118 (explaining that neither party demonstrated whether most of
the class member relied upon the false statements).
175
See id. at 1116-17 (holding the defendant’s statements were indeed materi-
ally false because it advertised an investment as feasible when it was not)
176
See id. at 1109 (showing that carrying out securities class actions can come
at great expense for plaintiffs without that guarantee of compensation).
177
See generally Sec. claSS action clearinGhouSe, http://securities.stanford.
edu/about-the-scac.html (last visited Mar. 12, 2017) (collecting information on
court mandated securities class action settlements).
178
See David Pierson, PG&E Will Pay Residents Who Sued Over Groundwater
Pollution, l.a. timeS (Feb. 4, 2006), http://articles.latimes.com/2006/feb/04/
local/me-erin4 (reporting a $295 million settlement for class action victims of
the defendant’s pollution and cover-up).
179
See Michael C. Gilleran, The Rise of Unfair and Deceptive Trade Practice
Act Claims, am. bar aSSn (Oct. 17, 2011), http://apps.americanbar.org/
litigation/committees/businesstorts/articles/fall2011-unfair-deceptive-trade-
practice-act-claims.html (awarding multiple settlements deters companies from
committing business fraud by hurting their bottom line).
180
See Zanki, supra note 5 (arguing despite the implementation of the GBP, a
formalized standard is still needed).
181
See Cooper, supra note 85 (recognizing the lack of a standard has created
uncertainty).
182
See Robinson-Tillett, supra note 112 (warning that issuers may take advan-
tage of the lack of standard for financial gain).
183
See Kapur, supra note 9 (cautioning that the market may depart from its
intended purpose and lose credibility).
184
See Robinson-Tillett, supra note 112 (asking for regulatory consistency
before it’s too late).
185 See generally u.S. Sec. & exch. commn, about the DiviSion of enforce-
ment, https://www.sec.gov/divisions/enforce/about.htm (last visited Mar. 12,
2017) (defining the SEC’s enforcement role in the securities industry).
186
See u.S. Dept of aGric., supra note 116 (outlining the process for defin-
ing the term organic); see also u.S. fooD & DruG aDmin., supra note 116
(explaining how FDA defines organic).
187
See u.S. Dept of aGric., supra note 116; see also u.S. fooD & DruG
aDmin., supra note 116 (describing the process for defining organic).
188
envtl. prot. aGency, supra note 123.
189 See generally id. (explaining how EPA handbooks can easily be replicated
for the green bond industry).
190
See Safeguard Policies, supra note 62 (explaining the World Bank’s policies
for monitoring the social and environmental impacts of its investments).
43Spring 2017
191
See Kapur, supra note 9 (stressing the need for balance between regulation
and market growth).
192
See generally u.S. Sec. & exch. commn, supra note 185 (explaining the
SEC’s enforcement role in the securities industry).
193
See Kapur, supra note 9 (arguing investors will seek out bonds that verify
their own “greenness”).
194
See Intl cap. mktS. aSSn, supra note 13 (detailing the voluntary process
guidelines for issuing green bonds).
195
See id. at 3 (describing why the broad categories were selected).
196
See generally Water Climate Bonds Standard, supra note 110 (proposing
criteria for certifying bond offerings linked to water-related assets).
197
See Pearce, supra note 70 (advocating against “clean coal” projects); see
also Ali GBA, supra note 131 (debating the problems of allowing green bonds
to fund water projects).
198
See intl cap. mktS. aSSn, supra note 13, at 2-3 (discussing pollution
control projects and how to manage them).
199
See id. at 3 (noting agriculture and fishery projects can be eligible if they
can manage their sustainable and conservation impact).
200
See id. (listing examples of eligible green bond conservation projects).
201
See id. (listing clean transportation as a commonly used type of project
supported by the green bond market).
202
See generally leeD, supra note 30.
203
See intl cap. mktS. aSSn, supra note 13, at 3 (listing energy efficient
construction projects).
204
See Cooper, supra note 85 (endorsing projects that align with government
standards is beneficial).
205
U.S. Dept of aGric., orGanic labelinG, https://www.ams.usda.gov/rules-
regulations/organic/labeling (last visited Mar. 12, 2017).
206
See Ali Criteria, supra note 132 (describing Moody’s criteria for the GBA
and scoring assessment).
207
See Climate Bond Standard, supra note 22, at 11 (explaining important
factors considered in the certification process).
208
See Sarah Fister Gale, Green Bonds: Are Your Projects a Good Fit?, water
worlD, http://www.waterworld.com/articles/print/volume-31/issue-3/features/
green-bonds-are-your-projects-a-good-fit.html (certifying green bonds will help
municipalities signal to investors and stand apart from greenwashed projects).
209
See Kapur, supra note 9 (noting that only two municipal issuers received
external reviews in 2015).
210
See generally mun. Sec. rulemakinG bD., supra note 142 (classifying the
MSRB’s role in the bond market).
211
See Gale, supra note 208 (disclosing the environmental impact of projects
creates trust with investors).
212
See Ludvigsen, supra note 69 (explaining the risks associated with green
fraud).
213
See intl cap. mktS. aSSn, supra note 13, at 2 (following the same core
elements established in the GBP).
214
intl cap. mktS. aSSn, supra note 13 (recommending a high level of
disclosure throughout the bonds maturation); see also mun. Sec. rulemakinG
bD., supra note 147 (requiring municipal issuers to continuously disclose
information).
215
See Municipal Bonds, axa equitable fin. ServS., https://us.axa.com/
axa-products/investment-strategies/articles/municipal-bonds.html (June 2015)
(explaining how municipal bonds differ from corporate bonds with serial
maturities).
216
See Cooper, supra note 85 (calling on the government to clarify and
enforce eligible projects).
217
See intl cap. mktS. aSSn, supra note 13, at 3 (creating nine categories of
eligible projects).
218
See id. at 4 (allowing investors to compare green bonds based on the qual-
ity of their disclosed sustainability impact).
219
mun. Sec. rulemakinG bD., electronic municipal market acceSS
(emma) webSite, http://www.msrb.org/About-MSRB/Programs/EMMA.aspx
(last visited Mar. 12, 2017).
220
See intl cap. mktS. aSSn, supra note 13, at 4 (pushing issuers to keep
readily available information on the use of proceeds so issuers may track their
investment’s progress).
221
See Swope, supra note 36 (calculating that the cost of an independent
review ranges between $10,000 and $50,000).
222
See Kapur, supra note 9 (relaying concerns that balance is needed to keep
“investment oxygen” in the market).
223
See Phillip Ludvigsen, External Review of Green Bonds: Lessons Learned,
envtl. fin. (Oct. 14, 2016), https://www.environmental-finance.com/content/
analysis/external-review-of-green-bonds-lessons-learned.html#refs (asserting
that investors rely on information disclosed in the review process).
224
See Iliana Lazarova, The Wild West of Green Bonds, clean enerGy fin. f.
(Mar. 2, 2016), http://www.cleanenergyfinanceforum.com/2016/03/02/the-wild-
west-of-green-bonds (discussing how environmental impact, yield, and public
confidence need to weighed by all market participants).
225
See id. (indicating the responsibility placed on issuers, investors, banks,
and regulators of reforming the market and allowing it to grow).
226
See Action Attorney, supra note 158 (stating that conjoining lawsuits levels
the playing field for persons against deep-pocketed defendants).
227
See id. (emphasizing that little financial incentive exists to bring small
individual claims against established defendants).
228
See LaCroix, supra note 170 (explaining that paying out large settlements
to defendants sends a signal to issuers to change their practices or face similar
law challenges).
229
See Ronald Barusch, Dealpolitik: The Useful Corruption of Shareholder
Lawsuits, wall St. J. (Jan. 13, 2011 1:28 PM), http://blogs.wsj.com/
deals/2011/01/13/dealpolitik-the-useful-corruption-of-shareholder-lawsuits/
(asserting that fearing class action litigation is enough for businesses to make
better decisions).
230
See Action Attorney, supra note 158 (requiring separate lawsuits could risk
varying decisions in different courts).
231
See In re Oppenheimer Rochester Funds Grp. Sec. Litig., 2015 U.S. Dist.
LEXIS 141073 at *23-24 (D. Colo. Oct. 16, 2015).
232
See LaCroix, supra note 170 (providing that bondholder class actions
provide remedies and act as deterrents for similar conduct from issuers).
233
See Gilleran, supra note 179 (stating that granting multiple settlements
deters fraud and leads to legitimate fair business practices).
234
See Ludvigsen, supra note 69 (arguing that misleading investors with
environmental claims could be seen as material to their investment decision and
thus open the possibility of litigation).
235
See Abell v. Potomac Ins. Co., 858 F.2d 1104, 1117-18 (5th Cir. 1988)
(noting the difference between materially false information and class member
reliance on that information).
236
See Ludvigsen, supra note 69 (explaining the benefits of a “green” standard
would have on setting industry good practices).
237
See LaCroix, supra note 170 (finding four out of five of the largest securi-
ties class action between 1996 and 2005 involved bondholder recoveries,
although it is unclear whether there is a causal relationship between the size of a
class action and bondholder recovery).
238
See CBI History, supra note 43 (reporting the story of the first green bond
and its original purpose).
239
See Zanki, supra note 5 (publishing green bond issuance at $42.4 billion in
2015).
240
See Envtl. Fin. Staff, Green Bond Comment–August 2016, envtl. fin.
(Sept. 2, 2016), https://www.environmental-finance.com/content/analysis/
green-bond-comment-august-2016.html (discussing 2016 green bond issuance
projections of up to $100 billion).
241
See Freedman, supra note 78 (arguing more regulation is needed to protect
the integrity of the market).
242
Hank Paulson Jr., How to Raise Trillions for Green Investments, n.y. timeS
(Sept. 20, 2016), http://www.nytimes.com/2016/09/20/opinion/how-to-raise-
trillions-for-green-investments.html.
44 Sustainable Development Law & Policy
against non-commercial risks, such as war and civil disturbance and the expro-
priation of assets).
21
intl fin. corp., policy on environmental anD Social SuStainability 12
(2012), http://www.ifc.org/wps/wcm/connect/7540778049a792dcb87efaa8c6a8
312a/SP_English_2012.pdf?MOD=AJPERES.
22
See lewiS, supra note 13, at 1.
23
Balaton-Chrimes & Haines, supra note 12, at 447.
24
violet benneker et al., GlaSS half full? the State of accountability
in Development finance 14 (Caitlin Daniel et al. eds., 2016), http://grievancem-
echanisms.org/resources/brochures/IAM_DEF_WEB.pdf.
25
See e.g., Daniel D. Bradlow, International Law and Public Participation
in Policy-Making, in International Financial Institution and International Law,
supra note 10, at 1, 29 (“These mechanisms, despite some concerns about
their efficacy, have resulted in increased accountability for these institutions.”);
see also Kate MacDonald & May Miller-Dawkins, Accountability in Public
International Development Finance, 6 Global poly 429 (2015) (“Amidst an
explosion of new global governance practices during the last quarter century,
one of the most striking developments has been the rise of new norms and
institutions of accountability.”); Balaton-Chrimes & Haines, supra note 12 (not-
ing that DFIs sought to “increase accountability to stakeholders while retaining
their focus on industrialization and export-led economic growth.”).
26
MacDonald & Miller-Dawkins, supra note 26, at 433.
27
See Saper, supra note 16, at 1293 (citing Richard B. Stewart, Account-
ability Participation and the Problem of Disregard in Global Regulatory
Governance 2 (Sept. 2, 2009) (discussion draft), available at http://iilj.org/
courses/documents/2008Colloquium.Session4.Stewart.pdf) (relying on Richard
Stewart’s global governance analysis, which defines accountability as “institu-
tionalized mechanisms under which an identified account holder has the right
to obtain an accounting from an identified accountant for his conduct, evaluate
that conduct, and impose a sanction or obtain another appropriate remedy for
deficient performance.”); id. at 1293-94 (adopting this construction of “account-
ability,” Saper indicates that the structure and procedures of the CAO fail to
provide complete accountability, and he analyzes whether its functions are able
to respond to broader problems of disregard in the absence of an accountability
mechanism); see generally Richard B. Stewart, Remedying Disregard in Global
Regulatory Governance: Accountability, Participation and Responsiveness, 108
am. J. intl l. 211 (2014).
28
Saper, supra note 16, at 1281.
29
Balaton-Chrimes & Haines, supra note 12, at 447.
30
office of the compliance aDviSor/ombuDSman (cao), operational
GuiDelineS 8 (2013), http://www.cao-ombudsman.org/documents/CAOOpera-
tionalGuidelines_2013.pdf [hereinafter cao operational GuiDelineS].
31
See id. at 11 (examining three criteria in making this determination: (1)
whether “[t]he complaint pertains to a project that IFC/MIGA is participating
in, or is actively considering”; (2) whether the issues “pertain to CAO’s mandate
to address environmental and social impacts of IFC/ MIGA projects”; and (3)
whether “[t]he complainant is, or may be, affected by the environmental and/or
social impacts raised in the complaint.” This assessment involves the CAO team
visiting the project site, conducting town-hall-style meetings, and surveying
relevant stakeholders at the local and national level); see also office of the
compliance aDviSor/ombuDSman (cao), leSSonS from cao caSeS: lanD
19 (2015), http://www.cao-ombudsman.org/howwework/advisor/documents/
cao_advisoryseries_land.pdf [hereinafter cao lanD caSe StuDieS] (describing
such assessments as they took place in Uganda, the Philippines, and Sumatra).
32
See cao operational GuiDelineS, supra note 31, at 9 (illustrating the
parallels between the Compliance and Ombudsman functions).
33
cao, 2015 annual report 12 (2015), http://www.cao-ombudsman.org/
publications/documents/CAO_Annual_Report_2015.pdf.
34
cao operational GuiDelineS, supra note 31, at 4 (“[The] CAO has no
authority with respect to judicial processes. [The] CAO is not an appeals court
or a legal enforcement mechanism, nor is [the] CAO a substitute for interna-
tional court systems or court systems in host countries.”).
35
See e.g., office of the compliance aDviSor/ombuDSman (cao), builD-
inG hope anD health throuGh DialoGue: a Story of company-community
DiSpute reSolution in nicaraGua 1 (2016), http://www.cao-ombudsman.org/
publications/documents/CAO_Nicaragua_REV_ENG.pdf (noting that “[t]
hrough the dialogue process, stakeholders were able to focus on local, practical,
effective, and sustainable outcomes for all [stakeholders] involved.”).
36
office of the compliance aDviSor/ombuDSman (cao), a Journey
towarD SolutionS: a Story of community-company DiSpute reSolution in
uGanDa 1 (2015), http://www.cao-ombudsman.org/publications/documents/
CAODisputeResolutionSeries_JourneytowardSolutions_Uganda_October2015.
pdf.
37
cao 2015 annual report, supra note 34, at 8 (2015) http://www.cao-
ombudsman.org/publications/documents/CAO_Annual_Report_2015.pdf.
38
Saper, supra note 16, at 1299.
39
See Deanna Kemp et al., Just Relations and Company-Community Conflict
in Mining, 101 J. buS. ethicS 93, 93 (2011).
40
cao operational GuiDelineS, supra note 31, at 16.
41
Id.
42
Id.
43
cao 2015 annual report, supra note 34, at 12.
44
See cao operational GuiDelineS, supra note 31, at 4, 19 (noting that the
CAO will “keep the compliance investigation open and monitor the situation
until actions taken by [the] IFC/MIGA assure [the] CAO that [the] IFC/MIGA
is addressing the noncompliance.”).
45
Id. at 20.
46
Id.
47
See office of the compliance aDviSor/ombuDSman (cao), how we
work: aDviSor, http://www.cao-ombudsman.org/howwework/advisor/index.
html (last visited Apr. 17, 2017) (noting that the CAO “aims to improve perfor-
mance in a systemic way and provide guidance to IFC and MIGA on emerging
trends and strategic issues” based on its caseload and experience).
48
See cao lanD caSe StuDieS, supra note 32, at 8-9.
49
See e.g., the worlD bank, haiti: the challenGeS of poverty reDuction,
http://go.worldbank.org/MZUS4TPRR0 (last visited Apr. 17, 2017).
50
See the worlD bank, haiti overview, http://www.worldbank.org/en/
country/haiti/overview (last visited Apr. 17, 2017) (using 2014 data).
51
See U.S. CIA, the worlD factbook: Haiti, (last updated Jan. 12, 2017),
https://www.cia.gov/library/publications/the-world-factbook/geos/ha.html (not-
ing 80 percent of the population in Haiti lives below the poverty line, and 54
percent lives in abject poverty).
52
See n.y.u. Global JuStice clinic & u. cal. haiti JuStice initiative, byen
konte, mal kalkile, human riGhtS & envtl riSkS of GolD mininG in haiti
2, 40-41 (2016), http://chrgj.org/wp-content/uploads/2015/12/byen_konte_mal_
kalkile_human_rights_and_environmental_risks_of_gold_mining_in_haiti.
pdf [hereinafter konte], (discussing how exploiting minerals is part of Haiti’s
Poverty Reduction Strategy).
53
See Tate Watkins, Curses of Aid and Gold in Haiti, meDium (June 14,
2013), https://medium.com/@tatewatkins/curses-of-aid-and-gold-in-haiti-
7a99bd074fc4#.85b5r0k86 (reporting that, in 2013, then-Prime Minister
Laurent Lamothe remarked that “[t]he mining sector can help Haiti liberate
itself”); Asset Portfolio: Haiti, euraSian mineralS, http://www.eurasianminer-
als.com/s/haiti.asp (last visited Apr. 17, 2017) (stating that the Massif du Nord
Metallogenic Belt in Haiti “hosts numerous gold, copper, copper-gold, and
copper-gold-silver occurrences and prospects.”).
54
See konte, supra note 52, at 35 (noting that the recent interest in the
resources in Haiti’s North can be compared to the interest in extracting gold
from the same mineral belt in neighboring Dominican Republic).
55
See id. at 2, 61-62 (“Between 2006 and early 2013, two Canadian and
two U.S. companies reportedly invested more than $30 million to explore for
gold, copper, silver, and other metals . . . . Those four companies—Majescor
Resources Inc. (Majescor), VCS Mining LLC (VCS), Newmont Mining Corpo-
ration (Newmont), and Eurasian Minerals Inc. (Eurasian)—have all conducted
exploration activities, including core sampling, in some of their permit areas, as
well as other exploration and prospection activities.”).
56
See intl fin. corp., ifc proJect information portal: euraSian miner-
alS inc. 2, https://disclosures.ifc.org/#/projectDetailSPI/7389 (last visited Apr.
17, 2017) (stating that the development benefits could include “both revenues/
foreign exchange contribution to the national economy and development of vital
transportation/energy infrastructure that would improve possibilities for other
economic activities”).
enDnoteS: appraiSinG the role of the ifc anD itS accountability mechaniSm: community experienceS in
haitiS mininG Sector
continued from page 25
45Spring 2017
57
Id. at 1. (noting that the IMF’s equity investment in Eurasian was also
intended to support Eurasian’s Akarca and Sisorta gold exploration projects in
Turkey).
58
See id.; see also Maura R. O’Connor, Two Years Later, Haitian Earthquake
Death Toll in Dispute, columb. JournaliSm rev. (Jan 12. 2012), http://www.
cjr.org/behind_the_news/one_year_later_haitian_earthqu.php ( highlighting the
discrepancy between the Haitian government’s official death toll of 316,000 and
the initial death toll report indicating 230,000 deaths).
59
See the worlD factbook: haiti, supra note 52.
60
Adriana Gomez & Josef Skoldeberg, IFC Invests in Eurasian Minerals
Supporting Haiti’s Recovery and Job Creation, intl fin. corp. (Feb. 19, 2010),
http://ifcext.ifc.org/ifcext/pressroom/ifcpressroom.nsf/0/1fd6671e5e82770a852
576d200501301?opendocument.
61
Id.
62
See Asset Portfolio: Haiti, supra note 54 (“EMX executed the royalty gen-
erator business model in Haiti by recognizing the country’s excellent, but under-
explored mineral potential and taking advantage of ‘early mover’ opportunities
in 2006.”).
63
See id. (describing the joint venture as a “Regional Strategic Alliance”
between the two companies).
64
See Konte, supra note 52, at 67 (reporting that the six Joint Venture Des-
ignated Projects include: La Miel, La Mine, the North-Central Haiti Venture,
the Northwest Haiti Venture, the Northeast Haiti Venture, and the Grand Bois
“Surrounding Properties” Venture, but the Grand Bois project remained outside
the scope of the joint venture agreement and was wholly owned and operated by
Eurasian until 2016).
65
Id. at 2.
66
Id. at 23.
67
Asset Portfolio: Haiti, supra note 54.
68
Id. (Sono Global Holdings Inc.).
69
Id.
70
ifc proJect information portal: euraSian mineralS inc., supra note 57.
71
intl fin. corp., performance StanDarDS on environmental anD
Social SuStainability 2 (Jan. 1, 2012), http://www.ifc.org/wps/wcm/con-
nect/c8f524004a73daeca09afdf998895a12/IFC_Performance_Standards.
pdf?MOD=AJPERES [hereinafter environmental anD Social SuStainability
StanDarDS] (stating that “in the case of its direct investments, IFC requires its
clients to apply the Performance Standards to manage environmental and social
risks and impacts so that development opportunities are enhanced” (emphasis
added)).
72
See ifc proJect information portal: euraSian mineralS inc., supra note
57 (defining a Stakeholder Engagement Plan as a plan designed and imple-
mented by the client “that is scaled to the project risks and impacts and devel-
opment stage” and “tailored to the characteristics and interests of the Affected
Communities.”); see also envtl & Social SuStainability StanDarDS, supra
note 72, at 13 (including within the plan strategies to engage the disadvantaged
and vulnerable populations).
73
ifc proJect information portal: euraSian mineralS inc., supra note 57.
74
See discussion infra Part III.b. (referring to “Eurasian’s” activities, which
includes its participation in the Newmont-Eurasian joint venture as well as the
company’s activities at the Grand Bois project site, making the distinction only
where it is factually and legally relevant).
75
See konte, supra note 53 at 37-38 (defining exploration activities as
all activities conducted under prospection or research permits granted to
Newmont-Eurasian in Haiti. For an explanation of the different types of mining
permits under Haiti’s Mining Decree of 1976).
76
See ifc proJect information portal: euraSian mineralS inc., supra note
57 (encompassing Eurasian’s exploration activities to include: dust and noise
control; water management, including drainage, trenches, drilling pads, and
access roads rehabilitation; use of forested and agricultural land for exploration;
and, if warranted, development, occupational health and safety, visual impacts
and community safety); see generally envtl & Social SuStainability Stan-
DarDS, supra note 72 (discussing the IFC’s calculation of project risk).
77
Id. at 5-15, 31-39 (highlighting Performance Standard 1, “Assessment and
Management of Environmental and Social Risks and Impacts” and Performance
Standard 5, “Land Acquisition and Involuntary Resettlement”).
78
See konte, supra note 53, at 209-11 (explaining the matter of private land
ownership in Haiti is not straightforward, as patterns of land use and ownership
that exist outside of formal legal title are complex. For a thorough description
of land governance in Haiti, For the purpose of this analysis, “landowners” will
encompass landowners, landholders, and land users alike).
79
Id. at 212.
80
Id. (drawing the data contained in the report from several fact-finding
investigations between 2012 and 2015. Although the author of this article did
not accompany researchers on any such investigations in Haiti, she is a contrib-
uting author of the report).
81
Id. at 212 (collecting the following data about the communities of La Mon-
tagne during numerous GJC fact finding visits).
82
Id. at 14.
83
Id. at 212.
84
Id. at 245 n.125 (noting the Global Justice Clinic was unable to verify
exactly how many agreements have been signed. The authors’ best estimation,
based on an analysis of the enumerations on the documents themselves and
interviews with individuals familiar with the effort to obtain such agreements,
is that several hundred have been signed).
85
See id. at 212, 205-296 (exploring what “Free, Prior and Informed Con-
sent” might look like in the context of mining-affected communities in Haiti).
86
Id. at 214.
87
Id.
88
See id. at 215.
89
See id. at 213.
90
Id. at 215.
91
See id.
92
Id. at 216; see also GJC Notes of Community Meeting with Residents of
La Montagne, in Northwest Department, Haiti (May 15, 2014) (on file with the
New York University School of Law Global Justice Clinic).
93
konte, supra note 53, at 216. But see id. at 263 (noting that the Land
Access Agreement reserved the right of the company to hire the landowner to
work on the property, but there was no guarantee of such employment).
94
Id. at 216.
95
Id. at 216.
96
Id.
97
Id. at 219.
98
Id. at 218.
99
Id.
100
Letter from Nicholas Cotts, External Relations Group Executive for
Newmont Mining Corporation, and David Cole, President and CEO of Eurasian
Minerals Inc., to Margaret Satterthwaite, Director, Global Justice Clinic, at 6
(Apr. 1, 2015) (on file with the New York University School of Law Global
Justice Clinic).
101
environmental anD Social SuStainability StanDarDS, supra note 72, at
7-9.
102
Id.
103
ifc proJect information portal: euraSian mineralS inc., supra note 57.
104
See Email from IFC to student, Global Justice Clinic (Apr 15, 2015, 2:04
PM EST) (on file with the New York University School of Law Global Justice
Clinic) (disclosing the GJC lodged information disclosure requests with the IFC
related to the Newmont-Eurasian joint venture, which the IFC denied on April
15, 2015. GJC appealed the denial and the IFC responded that under its 2006
information disclosure policy, the IFC is not required to disclose the documents
that GJC requested); see also Email from Karen Finkelston to Margaret Satter-
thwaite, Director, Global Justice Clinic (May 29, 2015, 5:59 PM EDT) (on file
with the New York University School of Law Global Justice Clinic) (showing
that Newmont-Eurasian provided GJC with an informal summary of baseline
efforts, but did not include information related to the joint venture’s stakeholder
engagement or consultation processes).
105
See office of the compliance aDviSor/ombuDSman, compliance appraiSal
report: Summary of reSultS: ifc inveStment in lyDian international
ltD. complaint 02 (proJect #27657), armenia 8 (2015), http://www.cao-
ombudsman.org/cases/document-links/documents/CAOCompliance_Apprais-
alReport_Armenia_Lydian-02_10222015forweb_English.pdf. [hereinafter
cao compliance appraiSal report Summary compl. 2] (explaining the CAO’s
compliance appraisal of Lydian International Ltd.’s stakeholder engagement,
triggered after a complaint was submitted to the CAO).
106
konte, supra note 53, at 217.
107
Id. at 216.
108
Id. at 217.
109
envtl & Social SuStainability StanDarDS, supra note 72, at 12.
110
konte, supra note 53, at 212.
111
See id. at 213; see also Letter from Nicholas Cotts, External Relations
Group Exec. for Newmont Mining Corp., and David Cole, President and CEO
of Eurasian Minerals Inc., to Margaret Satterthwaite, Dir., Global Justice
Clinic, at 6 (Apr. 1, 2015) (on file with the N.Y.U. School of Law Global Justice
Clinic).
46 Sustainable Development Law & Policy
112
See environmental anD Social SuStainability StanDarDS, supra note 72,
at 3.
113
See id. at 7.
114 See id. at 14, 47-52 (“For projects with adverse impacts to Indigenous
Peoples, the client is required to engage them in a process of ICP and in certain
circumstances the client is required to obtain their Free, Prior, and Informed
Consent (FPIC). The requirements related to Indigenous Peoples and the defini-
tion of the special circumstances requiring FPIC are described in Performance
Standard 7.”).
115
See id. at 14 (noting that the ICP process can be distinguished from
ordinary consultation requirements under PS1, as it involves a more in-depth
exchange of views, and ultimately leads to the company incorporating the views
of affected-communities into their decision-making processes).
116
See id. at 48-52 (explaining the requirements for engaging indigenous
people and the special circumstances requiring FPIC).
117 ifc proJect information portal: euraSian mineralS inc., supra note 57.
118
envtl & Social SuStainability StanDarDS, supra note 72, at 13.
119
See id. at 14.
120
See konte, supra note 53, at 216-219.
121
intl fin. corp., StakeholDer enGaGement: a GooD practice hanDbook
for companieS DoinG buSineSS in emerGinG marketS 111, 115 (2007), http://
www.ifc.org/wps/wcm/connect/938f1a0048855805beacfe6a6515bb18/
IFC_StakeholderEngagement.pdf?MOD=AJPERES [hereinafter StakeholDer
enGaGement].
122
See konte, supra note 53, at 218.
123
See id. at 219.
124
See id. at 219 (“Nothing was promised outside of the agreement in return
for a signature. There was also no anticipation that any resident would be dis-
placed by our exploration activities and thus, nothing was ever promised in that
regard.”).
125
StakeholDer enGaGement, supra note 122, at 111.
126
Id. at 113.
127
See id. at 115.
128
See id. at 117.
129 See konte, supra note 53, at 228.
130
Id. at 136, 217.
131
envtl & Social SuStainability StanDarDS, supra note 72, at 13.
132
Id.
133
Id. at 10.
134
intl fin. corp., GuiDance note 5: lanD acquiSition anD involuntary
reSettlement 16 (Jan. 1, 2012), http://www.ifc.org/wps/wcm/connect/4b97670
0498008d3a417f6336b93d75f/Updated_GN5-2012.pdf?MOD=AJPERES.
135
konte, supra note 53, at 216-219.
136
Id. at 217.
137
environmental anD Social SuStainability StanDarDS, supra note 72, at
13.
138
Id.
139
intl fin. corp., GuiDance note 1: aSSeSSment anD manaGement of
environmental anD Social riSkS anD impactS 32 (2012), http://www.ifc.org/
wps/wcm/connect/b29a4600498009cfa7fcf7336b93d75f/Updated_GN1-2012.
pdf?MOD=AJPERES.
140
konte, supra note 53, at 221.
141
Id. at 212 (“Evidence from La Montagne also reveals that Haitian govern-
ment officials were notably absent; resident accounts indicate that the govern-
ment failed to effectively inform the local population about mining prior to
Newmont-Eurasian’s arrival and failed to support rural farmers as they negoti-
ated access to their land.”).
142
Letter from Nicholas Cotts, External Relations Group Executive for
Newmont Mining Corporation, and David Cole, President and CEO of Eurasian
Minerals Inc., to Margaret Satterthwaite, Director, Global Justice Clinic, at 6
(Apr. 1, 2015) (on file with the New York University School of Law Global
Justice Clinic).
143
konte, supra note 53, at 217.
144
See N.Y.U. Global Justice Clinic et al., Access to Information in Haiti:
Obstacles to the Enjoyment of the Right to Access Information in the Context
of the Development and Mining and Tourism Industries and the Practice
of Journalism: Executive Summary of Submission to the Inter-American
Commission on Human Rights (Mar. 17, 2015), http://chrgj.org/wp-content/
uploads/2015/03/150316_Executive-Summary_English_Final.pdf (highlighting
in 2015, the GJC, together with Haitian partners, made a submission to the
Inter-American Court of Human Rights explaining the impact of the Haitian
government’s failure to guarantee the effective enjoyment of the right of access
to information in the context of the development of mining and tourism indus-
tries on project-affected communities); see also konte, supra note 53, at 205
(noting the Haitian government failed to appear the hearing).
145
See International Covenant on Civil and Political Rights, opened for
signature Dec. 16, 1966, 999 U.N.T.S. 171, 178 (entered into force Mar. 23,
1976); see also konte, supra note 53, at 235 n.5 (noting that the International
Covenant on Economic and Social Rights has been interpreted to include the
right of access to information in relation to specific substantive rights, such as
the right to health and the right to water).
146
See Constitution of Haiti, March 10, 1987, tit. 3, ch. 2, § I, art. 40, pmbl.
(articulating the government’s duty to publish “all laws, orders, decrees, inter-
national agreements, treaties, and conventions” in both Creole and French. and
recognizing “the right to progress, information, education, health, employment,
and leisure for all citizens.”).
147
office of the Special rapporteur for freeDom of expreSSion, the riGht
of acceSS information para. 22 (2009), http://www.oas.org/dil/access_to_infor-
mation_IACHR_guidelines.pdf.
148
byen konte, mal kalkile?, supra note 53, at 200.
149
Id. at 211.
150
See Saper, supra note 16, at 1322 (noting that the CAO was developed in
response to a lack of accountability); Bradlow, supra note 26, at 28 (“Neverthe-
less, it would seem that these mechanisms, despite some concern about their
efficacy, have resulted in increased responsibility for these institutions.”).
151
See konte, supra note 53, at 221.
152
environmental anD Social SuStainability StanDarDS, supra note 72,
at 35 (“Where there are Affected Communities, the client will establish a
grievance mechanism to receive and facilitate resolution of Affected Com-
munities’ concerns and grievances about the client’s environmental and social
performance.”).
153
GuiDance note 1, supra note 139, at 37.
154
See id. (noting that “businesses should respect human rights, which means
to avoid infringing on the human rights of others and address adverse human
rights impacts business may cause or contribute to . . . .”); see also Special
Representative of the Secretary General, Guiding Principles on Business
and Human Rights: Implementing the United Nations “Protect, Respect and
Remedy” Framework, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011), www2.ohchr.
org/english/bodies/hrcouncil/docs/17session/A.HRC.17.31_en.pdf (clarifying
that although this does not specifically endorse the United Nation’s Guiding
Principles on Business and Human Rights, the principles established by U.N.
Special Representative, John Ruggie, is now widely accepted as the authorita-
tive framework for business’ responsibility towards human rights).
155
See konte, supra note 53, at 221 (noting that “[i]n response to GJC
requests for information about its community grievance mechanism, Newmont-
Eurasian sent general information, from publicly available reports, about its
grievance procedures at other mining sites.”).
156
Id.
157
CAO operational GuiDelineS, supra note 31, at 11 (explaining that com-
plaints may be made by those who “believe they are, or may be, affected by the
social and environmental impacts of IFC/MIGA projects”).
158
See Anthony Bebbington et al., Mining and Social Movements: Struggles
Over Livelihood and Rural Territorial Development in the Andes, 36 worlD
Dev. 2888, 2892 (2008).
159
Id. at 2890.
160
Id.
161
Id. at 2892.
162
CAO operational GuiDelineS, supra note 31, at 10.
163
See id. (requiring complainants need only state the way(s) in which they
believe to have been, or are likely to be, affected by environmental and/or social
impacts of the project); see also cao 2015 annual report, supra note 34,
at 79 (noting in practice, 52 percent of complaints handled by the CAO have
explicitly cited human rights or rights-based issues).
164
See CAO operational GuiDelineS, supra note 31, at 10 (indicating the
CAO Operational Guidelines prompt only that a complainant “may wish” to
include, inter alia, information as to “What has been done by the complainant
to attempt to resolve the problem, including specifically any contact with IFC/
MIGA staff, the client, or host government.”).
165
Id.
166
See konte, supra note 53, at 216-19 (highlighting the experiences of La
Montagne residents).
167
See generally id.
47Spring 2017
168 Id. (drawing on the GJC’s research conducted via roundtable interviews in
affected areas to conclude that Haitians have little knowledge of Eurasian and
the IFC).
169
office of the compliance aDviSor/ombuDSman (cao), 2008-2009
annual report 37 (2009) http://www.caoombudsman.org/publications/docu-
ments/CAO2009AnnualReportEnglish_low.pdf.
170
Id. at 3.
171
See office of the compliance aDviSor/ombuDSman (cao), cao upDate
(2016), http://www.cao-ombudsman.org/publications/documents/CAONewslet-
terIssue2_FY2016Q2_Web.pdfhttp://www.cao-ombudsman.org/documents/
CAONewsletterIssue2_FY2016Q2_Web_001.pdf (explaining that in 2015, the
CAO undertook an outreach meeting with CSOs from Myanmar via video, and
they discussed the role of the CAO and the Inspection Panel for communities
affected by the World Bank Group’s growing portfolio in Myanmar).
172
See cao 2015 annual report, supra note 34, at 50 (explaining that in
2015, CAO met with civil society representatives from Haiti).
173 See CAO operational GuiDelineS, supra note 31, at 10 (listing available
languages as English, French, Portuguese, Spanish, Russian, Chinese and Ara-
bic but not including Creole).
174
See benneker, supra note 25, at 56 (advocating requirements for com-
munication with project-affected people); see also Saper, supra note 16, at
1318 (arguing that despite increasing costs of borrowing from the IFC due to
language, cultural, and geographical barriers, such a policy is “nevertheless
absolutely necessary in order for the IFC/MIGA to be more responsive to pro-
tect affected communities.”).
175
lewiS, supra note 13, at 12.
176
CAO 2015 Annual Report, supra note 34, at 65.
177
marGaret e. keck & katherine Sikkink, activiStS beyonD borDerS:
aDvocacy networkS in international politicS 1 (1998).
178
Id. at 2.
179
See e.g., Balaton-Chrimes & Haines, supra note 12, at 446 (detailing the
spectrum of accountability demands which are held by project affected peoples
ranging from “immanent complaints” about how projects may proceed to “con-
testational grievances” as to whether projects should proceed at all).
180
keck & Sikkink, supra note 178, at 2.
181
lewiS, supra note 13, at 10.
182
CAO 2015 Annual Report, supra note 34, at 73.
183
Id.
184
See David Hunter, Using the World Bank Inspection Panel to Defend the
Interests of Project-Affected People, 2 chi. J. intl l. 201, 205–06 (2003)
(exemplifying the preference by the World Bank Inspection Panel Procedure,
which deliberately disallows CSOs from filing complaints on behalf of affected
communities); see also accountability counSel, communitieS, http://www.
accountabilitycounsel.org/communities/ (last visited Apr. 17, 2016) (present-
ing the role of Accountability Counsel, an international NGO that primarily
assists project-affected communities to file complaints with IAMs and enhance
accountability in development finance, adopts a strong “community-centered”
approach which focuses on training local communities about their options for
addressing human rights and environmental abuses associated with internation-
ally-financed projects—and ultimately seeks to place communities in a position
to defend their own rights. Attorneys from Accountability Counsel also met
with Haitian mining justice advocates in the USA, in February 2014, to discuss
communities’ potential recourse to the CAO, though this was done after the
exploration projects had been placed in care and maintenance status).
185
CAO 2015 Annual Report, supra note 34, at 50 (noting that the CAO met
with civil society representatives from Haiti in 2015 after the IFC had com-
pleted its investment in Eurasian).
186 ifc proJect information portal: euraSian mineralS inc., supra note 7.
187
See Brian Concannon Jr. & Beatrice Lindstrom, Cheaper, Better, Longer-
Lasting: A Rights-Based Approach to Disaster Response in Haiti, 25 emory
intl l. rev. 1145, 1145, 1152 (2011).
188
Id. at 1156; Madeline Kristoff & Liz Panarelli, Haiti: A Republic of
NGOs?, 23 u.S. inSt. of peace 1 (2010), https://www.usip.org/sites/default/
files/PB%2023%20Haiti%20a%20Republic%20of%20NGOs.pdf (“Estimates
of the number of nongovernmental organizations (NGOs) operating in Haiti
prior to the earthquake range from 3,000 to as many as 10,000.”); see also Mark
Schuller, Invasion or Infusion?: Understanding the Role of NGOs in Contem-
porary Haiti, 13 J. haitian StuD. 96, 96 (2007) (“It is impossible to discuss
development in Haiti without talking about [NGOs].”).
189
Concannon Jr. & Lindstrom, supra note 188, at 1145 (remarking that the
vast amount of funding went to international humanitarian NGOs, rather than
domestic NGOs).
190
Id.
191
See Statement by Professor Philip Alston, Special Rapporteur on Extreme
Poverty and Human Rights, Seventy-First Session of the U.N. G.A. (Oct. 25,
2016), http://chrgj.org/wp-content/uploads/2014/07/Alston-GA-3rd-Cee-
statement-25-October-FINAL.pdf.
192
See, e.g., Anam Salem, At UN peer review, Haiti Urged to Ensure Respect
for Human Rights as it Considers Development of Mining Sector, n.y.u.
ctr. for hum. rtS. & Global JuSt. (Dec. 2, 2016), http://chrgj.org/at-un-
peer-review-haiti-urged-to-ensure-respect-for-human-rights-as-it-considers-
development-of-mining-sector/ (“In November 2016, the GJC and its Haitian
partner, the Kolektif Jistis Min (KJM), attended Haiti’s Universal Periodic
Review (UPR) before the United Nations Rights Council in Geneva, to urge
states to address the human rights risks of mining in Haiti during the review.”).
193
See, e.g., Anam Salem, Global Justice Clinic Conducts
Survey Planning Trip to Northern Haiti, n.y.u. ctr. for
hum. rtS. & Global JuSt. (Mar. 1, 2016), http://chrgj.org/
global-justice-clinic-conducts-survey-planning-trip-to-northern-haiti/.
194
byen konte, mal kalkile?, supra note 53, at 107 n.12 (citing a number
of meetings undertaken by the GJC with residents of La Montagne, Patricko,
Dity, Grand Bois and Esterè throughout 2013-2014) (Notes of those community
meetings on file with the New York University School of Law Global Justice
Clinic).
195
See The Human Rights Defenders Series Presents “Understanding Haiti
Today: Human Rights, the Resource Curse, and the Plunder of Poverty: A
Talk with Nixon Boumba of the Haiti Mining Justice Collective”, N.Y.U.
ctr. for hum. rtS. & Global JuSt. (Feb. 7, 2014), http://chrgj.org/event/
the-human-rights-defenders-series-presents-understanding-haiti-today-
human-rights-the-resource-curse-and-the-plunder-of-poverty-a-talk-with-
nixon-boumba-of-the-haiti-mining-justice-collec/ (“In Spring and Fall 2013,
the GJC sent teams to visit mining exploration areas near Cap-Haitien in con-
junction with the Kolektif Jistis Min. There, they held community meetings to
discuss potential rights impacts of mining. These meetings included screenings
of a video “postcard” made by GJC students that conveyed advice and shared
experiences from a mining-impacted community in Papua New Guinea, the site
of another GJC project.”).
196
See Remedying Violations and Advancing Rights in Haiti’s Emerging Min-
ing Sector, N.Y.U. ctr. for hum. rtS. & Global JuSt., http://chrgj.org/clinics/
global-justice-clinic/economic-social-and-cultural-rights/preventing-violations-
and-advancing-rights-in-haitis-emerging-mining-sector/ (last visited Apr. 17,
2017) (collecting data by Community Water Agents every month since May
of 2015 to monitor changes in water quality in six to eight communities where
companies have explored for metals in Haiti). Cf. Ellie Happel, Water is More
Valuable than Gold, NACLA (Apr. 25, 2016), http://nacla.org/news/2016/04/25/
water-more-valuable-gold (conducting a mixed-methods, GJC rights-based
study to produce data about the availability, accessibility, acceptability, afford-
ability, and quality of water in communities likely to be directly impacted by
commercial gold mining in Haiti).
197
See N.Y.U. Ctr. for Hum. Rts. & Global Just. et al., Human Rights Impacts
of Gold Mining in Haiti, (Nov. 7-9, 2016), http://chrgj.org/wp-content/
uploads/2016/03/Human-Rights-Impacts-of-Gold-Mining-in-Haiti.pdf (“Hai-
tian communities affected by mining activity have organized to learn more
about the industry and to discuss how the development of the sector may affect
their futures.”); Inter-Am. Comm’n on H.R., Rep. on the 154th Sess. of the
IACHR, at 12 (Mar. 13-27, 2015), http://www.oas.org/es/cidh/prensa/docs/
Report-154.pdf.
198 See IFC proJect information portal: euraSian mineralS inc., supra note
7.
199
These impressions were drawn from discussions with community organiz-
ers held by the GJC.
200
See e.g., accountability counSel, amplifyinG voiceS DefenDinG
riGhtS 11 (2015), http://www.accountabilitycounsel.org/wp-content/
uploads/2012/05/2012-15-AC-Report.pdf (noting that various NGOs are
helping nomadic goat herders in Mongolia file complaints with both the CAO
and the IAM by training the herders on negotiation techniques and preparing
the herders for the “intensive dialogue process” facilitated by the CAO); see
also office of the compliance aDviSor/ombuDSman (cao), memoranDum of
unDerStanDinG relatinG to the eStabliShment of a tripartite council (June
8, 2015), http://www.cao-ombudsman.org/cases/document-links/documents/
FinalSignedMoUwithAnnexures_ENG.pdf (highlighting that representatives
from the herder communities are now engaged in an ongoing Tripartite Council,
mediated by the CAO, which undertakes compensation working groups, joint
fact finding exercises with Rio Tinto, and participatory water monitoring).
48 Sustainable Development Law & Policy
201
While the end result of the CAO’s compliance function could be a recom-
mendation, by the CAO to the IFC that it should divest from the project this
rarely occurs–and would not necessarily lead to the entire project being halted.
202
Samantha Balaton-Chrimes & Fiona Haines, The Depoliticisation of
Accountability Processes for Land-Based Grievances, and the IFC CAO, 6
Global Pol’y 446 (2015).
203
Balaton-Chrimes & Haines, supra note 12, at 446, 448.
204 See id. at 4447
205
See intl fin. corp., proJect information portal: lyDian intl 3 https://
disclosures.ifc.org/#/projectDetailESRS/384 (last visited Apr. 17, 2017) (“The
main driver for IFC equity investment involvement is the support of Lydian’s
development of the Drazhnje and Amulsar exploration projects, as a basis for
setting benchmarks on sustainability in resource development in Kosovo and
Armenia. IFC’s second equity investment will be used primarily to fund the
continued exploration of Lydian’s mineral resource properties in Kosovo and
Armenia, including feasibility studies, environmental and social impact assess-
ments and other preparatory activities.”).
206
See intl fin. corp., caSeS: armenia/lyDian intl 3, http://www.cao-
ombudsman.org/cases/case_detail.aspx?id=222 (last visited Apr. 17, 2017)
(“[The] IFC is a 7.9% shareholder and has invested over $16 million in stages
since 2007.”).
207
Id.
208
office of the compliance aDviSor/ombuDSman (cao), DiSpute reSolu-
tion concluSion report in lyDian intl 3-02/GnDevaz, armenia 2 (Aug.
2015), http://www.cao-ombudsman.org/cases/document-links/documents/
LydianIntl3-02_ConclusionReport_ENG.pdf.
209
ifc caSeS, supra note 207.
210
office of the compliance aDviSor/ombuDSman (cao), compliance
appraiSal report: ifc inveStment in lyDia intl ltD. (proJect #27657),
armenia, complaint 01, 12 (2015), http://www.cao-ombudsman.org/cases/
document-links/documents/CAOCompliance_AppraisalReport_Armenia_Lyd-
ian-01_042715-English.pdf.
211 office of the compliance aDviSor/ombuDSman (cao), termS of refer-
ence 2 (Jan. 8, 2016), http://www.cao-ombudsman.org/cases/document-links/
documents/ToRforLydianInvestigation-08-Jan2016.pdf.
212
See supra notes 40-50 and accompanying text.
213
See office of the compliance aDviSor/ombuDSman (cao), compliance
appraiSal: Summary of reSultS: ifc inveStment in lyDian international
ltD. (proJect #27657), armenia, complaint 02 8 (2015), http://www.cao-
ombudsman.org/cases/document-links/documents/CAOCompliance_Appraisal-
Report_Armenia_Lydian-02_10222015forweb_English.pdf (suggesting that the
IFC’s supervision of the project was insufficient, particularly in light of the fact
that Lydian International was operating through a joint venture agreement with
Newmont); see also CAO compliance appraiSal report lyDian intl, supra
note 209 (noting that Newmont’s investment in the project “should provide
comfort regarding the quality of Lydian’s management team and assets as well
as assurance that Lydian’s assets would be developed in line with industry best
practice.”).
214
See e.g., Mariel Aguilar-Støen & Cecile Hirsch, Environmental Impact
Assessments, Local Power and Self-Determination: The Case of Mining and
Hydropower Development in Guatemala, 2 extractive inDuS. & Socy 472,
478 (2015).
215
See id. at 477.
36
See id. at 54 (defining the problem of “Resource Management” as the
“potential for over-generation by variable [renewable] resources during off-peak
periods when there is sufficient load to accommodate such generation”).
37
See Johnston, supra note 26, at 51-52.
38
See generally Mathias Aarre Maehlum, Grid Energy Storage, enerGy
informative (May 3, 2013), http://energyinformative.org/grid-energy-storage-
caes-pumped-hydro-and-flywheel/. (discussing how this is already possible with
some technologies such as compressed air energy storage (CAES) and pump-
storage hydroelectricity. However, these technologies have their limitations,
including deployment in locations with certain existing geological features
which they require to store the large amounts of air or water which are neces-
sary to generate power at scale).
39
See Joseph B. Treaster and Kate Zernike, Hurricane Katrina Slams Into
Gulf Coast; Dozens Are Dead, n.y. timeS, (Aug. 30, 2005), http://www.
nytimes.com/2005/08/30/us/hurricane-katrina-slams-into-gulf-coast-dozens-
are-dead.html.
40
See Jim Polson and Mark Chediak, Sandy’s Blackouts
Fall to 1.9 Million, Half in New Jersey, bloomberG, (Nov. 12,
2012), http://www.bloomberg.com/news/articles/2012-11-04/
sandy-s-blackouts-fall-to-2-5-million-with-new-jersey-worst-off.
41
See Hurricane Sandy Boosts Generac Sales, Earnings Power, inveStorS
buS. Daily (June 28, 2013), http://www.nasdaq.com/article/hurricane-sandy-
boosts-generac-sales-earnings-power-cm256506 (stating that Hurricane Irene
and other storms convince people to purchase generators).
42
Peter Kayode Oniemola, Integrating Renewable Energy into Nigeria’s
Energy Mix through the Law: Lessons from Germany, 2 renewable enerGy l.
& poly rev. 29, 29 (2011); see Lucy Butler & Karsten Neuhoff, Comparison
of Feed-in Tariff, Quota and Auction Mechanisms to Support Wind Power Devel-
opment, 33 renewable enerGy 1854, 1858 (2008) (indicating an installed wind
energy capacity in Germany of 20,622MW by the end of 2006).
43
See Butler, supra note 43, at 1864 (stating that the strong competition
among developers could have led to more share in the profits for landowners).
44
See id. at 1863 (describing German turbine manufacturer presence in the
domestic and international market).
45
See generally teSla powerwall, https://www.teslamotors.com/powerwall
(last visited Apr. 27, 2017).
46
See, e.g., U.S. Department of Energy Launches $40 Million Effort to
Improve Materials for Clean Energy Solutions, u.S. Dept of enerGy (Feb. 24,
2016), http://energy.gov/articles/us-department-energy-launches-40-million-
effort-improve-materials-clean-energy-solutions (announcing a new U.S.
Department of Energy initiative that aims to bring clean energy materials to
market more quickly in order to “give American entrepreneurs and manufactur-
ers a leg up in the global race for clean energy”).
47
See Tesla, supra note 46 (showcasing Tesla’s Powerwall system).
48
See, e.g., Ucilia Wang, 12 Energy Storage Startups To Watch
in 2015, GiGaom, (Jan. 22, 2015, 7:00 AM), https://gigaom.
com/2015/01/22/12-energy-storage-startups-to-watch-in-2015/
49
See generally Zachary Shahan, US Solar + Storage Market to Go Beyond
$1 Billion a Year by 2018, clean technica (Dec. 18, 2014), http://cleantech-
nica.com/2014/12/18/solar-storage-market-go-beyond-1-billion-year-2018/
(discussing a report by GTM Research, predicting that the U.S. “will install 328
MW of behind-the-meter energy storage by 2018”).
50
See Amy L. Stein, Reconsidering Regulatory Uncertainty: Making a Case
for Energy Storage, 41 fla. St. u. l. rev. 697, 698-701 (2014) (indicating
technological and financial concerns facing DES).
51
See Press Kit, teSla motorS (2016), https://www.teslamotors.com/
presskit/teslaenergy.
52
See Terry DeVitt, Lithium Battery Catalyst Found to Harm Key Soil
Microorganism, phySorG (Feb. 4, 2016), http://phys.org/news/2016-02-lithium-
battery-catalyst-key-soil.html (explaining environmental dangers posed by
lithium batteries); see also Airlines Ban Hoverboards over Battery Danger,
10newS (Dec. 11, 2015), http://www.wtsp.com/story/news/2015/12/10/airlines-
ban-hoverboards-over-battery-danger/77123728/. See generally Monte Whaley,
Vaping Dangers: Reports of Burns, Injuries from Exploding E-cigarettes,
Denver poSt (Jan. 29, 2016), http://www.thecannabist.co/2016/01/29/
vaping-dangers-colorado-reports-exploding-e-cigarettes/47430/.
53
See Diane Cardwell, Energy Storage Industry Gaining Momentum, n.y.
timeS, (Oct. 25, 2015), http://www.nytimes.com/2015/10/26/business/energy-
environment/energy-storage-industry-gaining-momentum.html?_r=0 (stating
that only as energy policies and technologies have battery storage systems
started to become financially viable).
enDnoteS: batterieS incluDeD: incentivizinG enerGy StoraGe
continued from page 39
49Spring 2017
54
William Pentland, As Energy Storage Enters Mainstream Markets, System
Size Becomes Key Differentiator, forbeS, (Jan. 19, 2016), http://www.forbes.
com/sites/williampentland/2016/01/19/as-energy-storage-enters-mainstream-
markets-system-size-becomes-key-differentiator/#6700ffd269db (“IHS Technol-
ogy is forecasting that the global installed capacity of energy storage systems
will double by 2017. The brunt of the new energy storage projects deployed in
2016, or about 45% of the total capacity, is likely to be in the United States.”).
55
See Johnston, supra note 26, at 62-63 (describing the inefficiencies in the
emerging technology supply chain as a “valley of death”).
56
Rebecca Smith & Cassandra Sweet, Will Tesla’s Newest Battery
Pan Out?, wall St. J. (May 5, 2015), http://www.wsj.com/articles/
will-teslas-newest-battery-pan-out-1430522030.
57
See international enerGy aGency, technoloGy roaDmap enerGy Stor-
aGe 41 (2014), https://www.iea.org/publications/freepublications/publication/
TechnologyRoadmapEnergystorage.pdf (stating that the high costs and perfor-
mance issues in battery systems is hindering its growth).
58
See Smith & Sweet, supra note 56 (quoting the head of Lawrence Berkeley
National Lab whom stated that batteries need to become 75% cheaper before
they reach the general market).
59
See Jake Richardson, 70% Decrease In Energy Storage Costs By
2030, Says Report, clean technica (Jan. 25, 2016), http://cleantechnica.
com/2016/01/25/70-decrease-energy-storage-costs-2030-says-report/ (stating
that the cost to store energy may decrease seventy percent in fifteen years); see
also Bryn Huntpalmer, Advancing Solar Storage Solutions, altenerGymaG,
(Jan. 26, 2016, 8:18 AM), http://www.altenergymag.com/article/2016/01/
advancing-solar-storage-solutions/22648/ (informing that while there is move-
ment to make batteries more affordable, a standard lithium-ion batter currently
costs about $1000 per kilowatt hour).
60
See Tesla supra note 46, at 2. (displaying costs for the 14 kWh Powerwall
battery, which could power a one bedroom home; not including fees for installa-
tion and supporting hardware).
61
Time-of-use pricing schemes offer an alternative to flat rate pricing, which
is more amenable to the adoption of DES. See infra Section IV.B.3.
62
See Tim Dickinson, The Koch Brothers’ Dirty War on Solar Power, rollinG
Stone (February 11, 2016) http://www.rollingstone.com/politics/news/the-koch-
brothers-dirty-war-on-solar-power-20160211 (suggesting that power utilities
are poorly able to handle market disruption, and comparing it to what digital
photography did to Kodak).
63
See Jeff Winmill, Electric Utilities and Distributed Energy Resources-
Opportunities and Challenges, 6 San DieGo J. climate & enerGy l. 199, 200-
01 (2015) (noting that utility infrastructure investments are around $100 billion
per year).
64
Id.; see also Ivan Penn, Utilities Push a Solar Pricing Proposal They Say is
Fairer for Non-Solar Users, l.a. timeS (Jan. 20, 2016, 6:13 PM), http://www.
latimes.com/business/la-fi-solar-subsidy-plan-20160121-story.html.
65
See Elisabeth Graffy & Steven Kihm, Does Disruptive Competition Mean a
Death Spiral for Electric Utilities?, 35 enerGy L.J. 1, 23-28 (2014) (analyzing
how disruptive technological competition, automobiles, were met with regula-
tory protection for tramcars).
66
See JuDy chanG, et. al., the value of DiStributeD electricity StoraGe in
texaS: propoSeD policy for enablinG GriD-inteGrateD StoraGe inveStmentS,
2-3 (2014). http://www.brattle.com/system/news/pdfs/000/000/749/original/
The_Value_of_Distributed_Electricity_Storage_in_Texas.pdf.
67
See u.S. Dept of enerGy office of electricity Delivery anD enerGy
reliability, supra note 10, at 30 (“[W]here utilities are vertically integrated,
utilities may construct, own, and operate power plants and the costs are reflected
in retail prices.”).
68
See Open Meeting Memorandum, ariz. corp. commn, utilitieS Div., 4-5
( Sept. 30th, 2013), http://images.edocket.azcc.gov/docketpdf/0000148646.
pdf; see also Troy A. Rule, Solar Energy, Utilities, and Fairness, 6 San DieGo J.
climate & enerGy l. 115, 119-120 (2015).
69
See Ryan Randazzo, Corporation Commission OK’s APS Request to
Withdraw Application for Higher Solar Rates, ariz. republic, (Oct. 20,
2015), http://www.azcentral.com/story/money/business/energy/2015/10/20/
corporation-commission-oks-aps-request-withdraw-application-higher-solar-
rates/74301500/.
70
See infra Section IV.C.2. (discussing net metering policies).
71
See Ryan Randazzo, Arizona Regulators Seek Solar Net-
metering Compromise, ariz. republic (Dec. 29, 2015), http://
www.azcentral.com/story/money/business/energy/2015/12/28/
arizona-regulators-seek-solar-net-metering-compromise/77716104/.
72
Id.
73
See Daniel Rothberg, Lawsuit Filed Over New Rooftop Solar Utility Rates,
laS veGaS Sun, (Jan. 15, 2016), http://lasvegassun.com/news/2016/jan/15/
lawsuit-filed-over-new-rooftop-solar-utility-rates/.
74
See id.
75
See id.
76
See id.
77 See Daniel Rothberg, Ballot Measure Would Restore Old Rooftop Solar
Rates, laS veGaS Sun (Jan. 25, 2016), http://lasvegassun.com/news/2016/
jan/25/ballot-measure-would-restore-old-rooftop-solar-rat/.
78
See Andy Balaskovitz, Michigan Researchers Issue Guide-
lines for Sustainable Energy Storage, miDweSt enerGy newS
(Feb. 19, 2016), http://midwestenergynews.com/2016/02/19/
michigan-researchers-issue-guidelines-for-sustainable-energy-storage/.
79
See e.g., Andrew Burger, Smarter Energy, triple punDit (Mar. 4,
2014), http://www.triplepundit.com/2014/03/smarter-energy-zero-financing-
intelligent-power-storage/; see also Intelligent Energy Storage System Market
(2015-2021): Global Market Study and Analysis, empowereD newS (Feb. 5,
2016), http://empowerednews.net/intelligent-energy-storage-system-market-
2015-2021-global-market-study-and-analysis/1872252/.
80
See Balaskovitz, supra note 79, at 2.
81
See Vaishnovi Kamyamkhane, Are Lithium Batteries Sustainable to the
Environment? wayback machine (Sept. 5, 2012), https://web.archive.org/
web/20120905095017/http://www.alternative-energy-resources.net:80/are-
lithium-ion-batteries-sustainable-to-the-environment-i.html?.
82
See DeVitt, supra note 53, at 1; see generally U.S. envt prot. aGency,
Vocabulary Catalog, (2017), https://ofmpub.epa.gov/sor_internet/registry/
termreg/searchandretrieve/termsandacronyms/search.do?search=&term=biorem
ediation&matchCriteria=Contains&checkedAcronym=true&checkedTerm=tru
e&hasDefinitions=false (defining Bioremediation as “[u]se of living organisms
to clean up oil spills or remove other pollutants from soil, water, or wastewater;
use of organisms such as non-harmful insects to remove agricultural pests or
counteract diseases of trees, plants, and garden soil”).
83
See DeVitt, supra note 53, at 2.
84
See Katherine Tweed, 7 Energy Storage Stories You Might Have Missed
in 2015, enerGy collective (Dec. 25, 2015), http://www.theenergycollec-
tive.com/martin-lamonica/2304480/7-energy-storage-stories-you-might-
have-missed-2015.
85
See id.
86
See id.
87
See Andrew H. Meyer, Comment, Federal Regulatory Barriers to Grid-
Deployed Energy Storage, 39 columbia J. of envtl l. 480, 483 (2014).
88
See Press Kit, supra note 52, at 3.
89
See Fuel Cells Fuel Alternative Energy Options, enerGy DeSiGn reSourceS
(Oct. 29, 2013), https://energydesignresources.com/resources/e-news/e-news-
90-fuel-cells.aspx.
90
See CPUC Improves and Streamlines Self-Generation Incentive Program,
cal. pub. util. commn., (Sept. 8, 2011), http://docs.cpuc.ca.gov/PUB-
LISHED/NEWS_RELEASE/142914.htm.
91
See Fuel Cells, supra note 90.
92
See 2015 Handbook, Self-Generation incentive proGram, 1, 10 (July 17,
2015), http://cpuc.ca.gov/WorkArea/DownloadAsset.aspx?id=7722.
93
See cal. pub. util. commn, supra note 91.
94
See id. (listing the specific utilities: Pacific Gas and Electric Company,
Southern California Edison, Southern California Gas Company, and San Diego
Gas & Electric).
95
See 2013 SGIP Impact Evaluation, Advanced Energy Storage Performance,
cal. pub. util. commn, 1, 86 (2013), http://www.cpuc.ca.gov/NR/rdonlyres/
AC8308C0-7905-4ED8-933E-387991841F87/0/2013_SelfGen_Impact_
Rpt_201504.pdf.
96
Id.
97
See Meyer, supra note 88, at 483.
98
See id.
99
See id.
100
See discussion, supra Section II.C. for an explanation of utilities’ existen-
tial concerns over DES.
101
Kimberly Wojcik, Energy Storage: The Future of Cleantech has Arrived, J.
of multiState taxation anD incentiveS 7 (2015).
102
See About Us, new york battery anD enerGy StoraGe technoloGy con-
Sortium, https://www.ny-best.org/About_NY-BEST (last visited Feb. 24, 2016).
103
See id.
104
See id.
105
See id.
50 Sustainable Development Law & Policy
106
See Wojcik, supra note 101, at 7-8.
107
See id. at 8
108
See id.
109
See id.
110
See id.
111
See Juan Cole, Hawaii’s Governor Dumps Oil and Gas in Favor of 100 Per-
cent Renewables, thenation (Aug.262015), http://www.thenation.com/article/
hawaiis-governor-dumps-oil-and-gas-in-favor-of-100-percent-renewables/.
112
Id.
113
See Travis Hoium, Hawaii may have Just Given Energy Storage a Huge
Boost, the motley fool (Oct.22, 2015), http://www.fool.com/investing/gen-
eral/2015/10/22/hawaii-may-have-just-given-energy-storage-a-huge-b.aspx.
114
Id.
115
Id.
116
Id.
117
See Helle Abelvik-Lawson, Three Problems With Transitioning to
Renewable Energy and How to Fix Them, truthout (Dec. 28, 2015), http://
www.truth-out.org/opinion/item/34193-three-problems-with-transitioning-to-
renewable-energy-and-how-to-fix-them.
118 Id.
119 See Tesla Powerwall, Green mountain power, (Jan.21,2016) http://prod-
ucts.greenmountainpower.com/tesla-powerwall.
120
Id.
121
Id. (detailing Green Mountain Power’s DES offerings to its customers);
See also Josh Castonguay, Re:GMP – Tesla Powerwall Innovative Pilot, Green
mountain power, (Dec. 2, 2015) http://www.greenmountainpower.com/upload/
photos/426Hudson_12.02.2015_-_Tesla_Pilot_Filing.pdf; See discussion infra
Section IV.C.2. regarding utility shared access programs.
122
See Meyer, supra note 88, at 482.
123
See Energy Storage Competitiveness Act, 42 U.S.C. § 17231(h)(1) (2007).
124
See Batteries and Energy Storage, arGonne national laboratory, (Jan.
21, 2016) http://www.anl.gov/energy/batteries-and-energy-storage .
125
Id.
126
aDvanceD reSearch proJectS aGency-enerGy, General Questions About
ARPA-e, (Jan. 21, 2016), http://arpa-e.energy.gov/?q=faq/general-questions.
127
See Johnston, supra note 26, at 39.
128
Id.
129
Business Energy Investment Tax Credit, u.S. Dept of enerGy, (Feb. 24,
2016), http://energy.gov/savings/business-energy-investment-tax-credit-itc..
130
See Johnston, supra note 26, at 39.
131
Id. at 40.
132
See Meyer, supra note 88, at 483.
133
Property Assessed Clean Energy Programs, center for SuStainable
enerGy, (Feb. 24, 2016), http://energycenter.org/policy/property-assessed-
clean-energy-pace#PACE-FAQs, (“Property assessed clean energy, or PACE,
financing allows property owners to fund energy efficiency, water efficiency
and renewable energy projects with little or no up-front costs. With PACE,
residential and commercial property owners living within a participating district
can finance up to 100% of their project and pay it back over time as a voluntary
property tax assessment through their existing property tax bill.”).
134
Id.
135
Property Tax Exclusion for Solar Energy Systems, u.S. Dept of enerGy,
http://energy.gov/savings/property-tax-exclusion-solar-energy-systems (last
visited Apr. 22, 2017).
136
See Distributed Energy Storage, trilliant, http://trilliantinc.com/solutions/
consumer/distributed-energy-storage (last visited Apr. 22 , 2017) (noting that
utilities must provide price signals to consumers and their distributed energy
sources to provide incentives).
137
See discussion infra Section IV.C.2. (discussing net metering).
138
See Issues & Policies, Solar enerGy inDuS. aSSn, http://www.seia.org/
policy/distributed-solar/net-metering (last visited Apr. 22, 2017) (describing
how net metering has been used as a mechanism for offering credits for distrib-
uted solar generation).
139
See Johnston, supra note 26, at 41 (emphasizing that net metering programs
also incentivize customers to install their own renewable energy systems).
140
Id.
141
See Rate Design Guiding Principles for Solar Distributed Generation,
Solar enerGy inDuS. aSSn, http://www.seia.org/research-resources/rate-
design-guiding-principles-solar-distributed-generation-0 (last visited Apr. 13,
2017) (outlining foundational principles for a rate-based approach that balances
shareholder’s and customer’s interests).
142
See Fredric Beck & Eric Martinot, Renewable Energy Policies and Bar-
riers, in 5 encyclopeDia of enerGy 365, 372 (2004) (pointing out that at least
twelve U.S. states have enacted an RPS ranging from 1 to 30% of electricity
generation).
143
Id.
144
See e.g. RPS Solar Carve Out Arizona, Solar enerGy inDuS. aSSn, Feb.
2, 2013, http://www.seia.org/sites/default/files/resources/RPS%20Solar%20
Fact%20Sheet%20AZ.pdf (explaining carve outs for solar in Arizona’s RPS
policy and showing a 15% carve out in Arizona).
145
See Galen Barbose, Renewables Porfolio Standards in the United States:
A Status Update, 7-8, available at http://www.cesa.org/assets/2012-Files/RPS/
RPS-SummitDec2012Barbose.pdf
146
See e.g., Ted Allrich, Pinnacle West: The Peak of the Energy Pyramid,
http://seekingalpha.com/article/20935-pinnacle-west-the-peak-of-the-energy-
pyramid (last visited Feb. 9, 2016) (indicating APS’s 4,000 MW generation
capacity); see also NYC Special Initiative for Rebuilding and Resiliency, A
Stronger, More Resilient New York, 108, http://s-media.nyc.gov/agencies/sirr/
SIRR_singles_Lo_res.pdf (indicating Con Edison’s 11,000+ MW generation
capacity).
147
See discussion, infra Section I.B.2. (regarding the benefits of DES for grid
security).
148
See u.S. Dept of enerGy office of electricity Delivery & enerGy
reliability, supra note 10, at 30 (explaining that utility infrastructure costs are
recouped through retail energy rates).
149
See discussion infra Section II.C. (regarding utilities’ concerns over DRG’s
diminishing effect on their revenue).
150
See discussion, infra Section IV.C.2. (regarding utility shared access
programs).
151
See discussion, infra Section II.D on the potential environmental harms
associated with DES technology.
152
See Hazardous Waste Recycling, EPA (last updated Dec. 28, 2016), https://
www.epa.gov/hw/hazardous-waste-recycling.
153
See 40 C.F.R. § 261.20(c) (2017); see also 1 caroline n. broun & JameS
t. o’reilly, rcra & SuperfunD: a practice GuiDe § 2:37 (3d ed. 2016) (list-
ing ignitability, corrosivity, reactivity, and toxicity along with relevant qualifiers
for consideration of whether a solid waste can be considered hazardous for the
purposes of RCRA); epa, hazarDouS waSte liStinGS: a uSer-frienDly ref-
erence Document 11 (2012), https://www.epa.gov/sites/production/files/2016-
01/documents/hw_listref_sep2012.pdf.
154
See 9 philip weinberG et al., new york practice SerieS–environmental
law anD reGulation in new york § 8:32.30 (2d ed. 2016) (describing a simi-
lar law for batteries signed by the Governor of New York in 2010).
155
See id. (explaining that manufacturers or retailers are subject to various
civil penalties depending on the frequency of violation).
156
See Vaishnovi Kamyamkhane, Are Lithium Batteries Sustainable to the
Environment? internet archive: wayback machine (Sept. 5, 2012), https://
web.archive.org/web/20120905095017/http://www.alternative-energy-resources.
net:80/are-lithium-ion-batteries-sustainable-to-the-environment-i.html?.
157
See also ariz. pub. Serv., arizona StatewiDe Service territory (2017),
https://www.aps.com/library/communications1/AZ_Map.pdf.
158
See natl park Serv., Green parkS plan 4 (2016), https://www.nps.gov/
subjects/sustainability/upload/NPS-Green-Parks-Plan-2016.pdf.