Endnotes

Document

Cited authorities 5

Cited in

Pages	40-50

40 Sustainable Development Law & Policy

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).

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 int’l cap. mktS. aSS’n, supra note 13, at 1.

See Green Projects, supra note 6.

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).

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”).

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”).

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).

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).

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).

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.

See id. (giving AAA status is the safest rating an investment can receive).

See Zanki, supra note 5.

Boulle, supra note 39.

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).

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.

See What are Green Bonds, supra note 3.

See id.

See New World Bank, supra note 44.

What are Green Bonds, supra note 3.

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).

CBI History, supra note 43.

See id. (describing how green bonds became mainstream investments).

See Boulle, supra note 39.

See id. (creating more demand by issuing through larger well known corpo-

rate issuers).

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).

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).

Id.

See Zanki, supra note 8 (detailing that funding will be distributed to water

conservation projects and installing solar panels on public schools).

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).

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).

See Boulle, supra note 39 (increasing market size when corporate issuers

with deep pockets began issuing green bonds).

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).

See Zanki, supra note 5 (conveying that a definitive green standard will

prevent manipulation and increase transparency).

See unDp, supra note 24 (displaying the major concerns and risks in the

green bond market).

See Kapur, supra note 9 (asserting that without increased transparency

investors will exit the market).

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).

See About Greenwashing, GreenwaShinG inDex, http://greenwashingindex.

com/about-greenwashing/ (last visited Mar. 12, 2017) (defining greenwashing).

See id. (presenting common examples of greenwashing).

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).

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).

See Ludvigsen, supra note 69 (calling for up-to-date disclosure of projects

environmental data to keep investors informed and able to monitor progress).

See id. (explaining that increased disclosure of environmental impacts will

help investors weigh decisions on which projects they deem green enough for

their money).

See int’l cap. mktS. aSS’n, supra note 13, at 3.

See id. at 2 (presenting that these requirements will prevent issuers from

misleading the market).

See id. at 3.

See id. (listing the eligible broad green bond project categories based on

environmental and sustainable sectors in need of financing).

See GBP Membership, int’l cap. mktS. aSS’n, 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).

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 Street’S 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).

See Kapur, supra note 9 (contending the lack of regulation will allow gre-

enwashing to saturate the market and prevent meaningful change).

See int’l cap. mktS. aSS’n, supra note 13, at 1-6.

See Zanki, supra note 5 (stressing the issues with the market subscribing to

voluntary guidelines).

See int’l cap. mktS. aSS’n, supra note 13, at 2 (explaining the ICMA’s

argument for voluntary prescription).

See id. at 2 (noting that green bond issuers are not required to follow the

GBP).

See About Us, int’l cap. mktS. aSS’n, http://www.icmagroup.org/About-

ICMA/ (last visited Mar. 29, 2017).

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).

See id. (noting a clear definition of “greenness” is essential to the market).

int’l cap. mktS. aSS’n, supra note 13, at 3.

See Cooper, supra note 85 (reiterating that integrity is crucial the markets

financial and environmental success).

See Ludvigsen, supra note 69 (arguing an implied benefit of environmental

externalities can be valued).

See int’l cap. mktS. aSS’n, supra note 13, at 5 (verifying sustainability

by comparing internal claims made by the issuer to external evaluations of

reviewer).

See id. at 4.

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).

See Moody’s Corporation, mooDy’S, 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).

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).

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).

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).

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).

Climate Bond Standard, supra note 22.

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 int’l cap. mktS. aSS’n, 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 int’l cap. mktS. aSS’n, 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. Dep’t 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. Dep’t of aGric., supra note 116 (mentioning the regulation and

comment review process).

118 See u.S. Dep’t 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. Dep’t 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. comm’n, 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 int’l cap. mktS. aSS’n, 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 aSS’n (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. comm’n, 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. Dep’t 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. Dep’t 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. comm’n, 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 Int’l cap. mktS. aSS’n, 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 int’l cap. mktS. aSS’n, 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. aSS’n, 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. Dep’t 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 int’l cap. mktS. aSS’n, supra note 13, at 2 (following the same core

elements established in the GBP).

214

int’l cap. mktS. aSS’n, 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 int’l cap. mktS. aSS’n, 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 int’l cap. mktS. aSS’n, 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).

int’l 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.

See lewiS, supra note 13, at 1.

Balaton-Chrimes & Haines, supra note 12, at 447.

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.

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 pol’y 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.”).

MacDonald & Miller-Dawkins, supra note 26, at 433.

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. int’l l. 211 (2014).

Saper, supra note 16, at 1281.

Balaton-Chrimes & Haines, supra note 12, at 447.

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].

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).

See cao operational GuiDelineS, supra note 31, at 9 (illustrating the

parallels between the Compliance and Ombudsman functions).

cao, 2015 annual report 12 (2015), http://www.cao-ombudsman.org/

publications/documents/CAO_Annual_Report_2015.pdf.

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.”).

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.”).

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.

cao 2015 annual report, supra note 34, at 8 (2015) http://www.cao-

ombudsman.org/publications/documents/CAO_Annual_Report_2015.pdf.

Saper, supra note 16, at 1299.

See Deanna Kemp et al., Just Relations and Company-Community Conflict

in Mining, 101 J. buS. ethicS 93, 93 (2011).

cao operational GuiDelineS, supra note 31, at 16.

Id.

cao 2015 annual report, supra note 34, at 12.

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.”).

Id. at 20.

Id.

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).

See cao lanD caSe StuDieS, supra note 32, at 8-9.

See e.g., the worlD bank, haiti: the challenGeS of poverty reDuction,

http://go.worldbank.org/MZUS4TPRR0 (last visited Apr. 17, 2017).

See the worlD bank, haiti overview, http://www.worldbank.org/en/

country/haiti/overview (last visited Apr. 17, 2017) (using 2014 data).

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).

See n.y.u. Global JuStice clinic & u. cal. haiti JuStice initiative, byen

konte, mal kalkile, human riGhtS & envt’l 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).

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.”).

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).

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.”).

See int’l 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

haiti’S mininG Sector

continued from page 25

45Spring 2017

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).

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).

See the worlD factbook: haiti, supra note 52.

Adriana Gomez & Josef Skoldeberg, IFC Invests in Eurasian Minerals

Supporting Haiti’s Recovery and Job Creation, int’l fin. corp. (Feb. 19, 2010),

http://ifcext.ifc.org/ifcext/pressroom/ifcpressroom.nsf/0/1fd6671e5e82770a852

576d200501301?opendocument.

Id.

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.”).

See id. (describing the joint venture as a “Regional Strategic Alliance”

between the two companies).

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).

Id. at 2.

Id. at 23.

Asset Portfolio: Haiti, supra note 54.

Id. (Sono Global Holdings Inc.).

Id.

ifc proJect information portal: euraSian mineralS inc., supra note 57.

int’l 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)).

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 envt’l & Social SuStainability StanDarDS, supra

note 72, at 13 (including within the plan strategies to engage the disadvantaged

and vulnerable populations).

ifc proJect information portal: euraSian mineralS inc., supra note 57.

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).

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).

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 envt’l & Social SuStainability Stan-

DarDS, supra note 72 (discussing the IFC’s calculation of project risk).

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”).

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).

Id. at 212.

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).

Id. at 212 (collecting the following data about the communities of La Mon-

tagne during numerous GJC fact finding visits).

Id. at 14.

Id. at 212.

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).

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).

Id. at 214.

Id.

See id. at 215.

See id. at 213.

Id. at 215.

See id.

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).

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).

Id. at 216.

Id.

Id. at 219.

Id. at 218.

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

envt’l & 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

envt’l & Social SuStainability StanDarDS, supra note 72, at 13.

119

See id. at 14.

120

See konte, supra note 53, at 216-219.

121

int’l 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

envt’l & Social SuStainability StanDarDS, supra note 72, at 13.

132

Id.

133

Id. at 10.

134

int’l 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

int’l 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. int’l 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

int’l 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

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 int’l fin. corp., proJect information portal: lyDian int’l 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 int’l fin. corp., caSeS: armenia/lyDian int’l 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 int’l 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 int’l 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 int’l, 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. & Soc’y 472,

478 (2015).

215

See id. at 477.

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”).

See Johnston, supra note 26, at 51-52.

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).

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.

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.

See Hurricane Sandy Boosts Generac Sales, Earnings Power, inveStor’S

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).

Peter Kayode Oniemola, Integrating Renewable Energy into Nigeria’s

Energy Mix through the Law: Lessons from Germany, 2 renewable enerGy l.

& pol’y 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).

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).

See id. at 1863 (describing German turbine manufacturer presence in the

domestic and international market).

See generally teSla powerwall, https://www.teslamotors.com/powerwall

(last visited Apr. 27, 2017).

See, e.g., U.S. Department of Energy Launches $40 Million Effort to

Improve Materials for Clean Energy Solutions, u.S. Dep’t 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”).

See Tesla, supra note 46 (showcasing Tesla’s Powerwall system).

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/

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”).

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).

See Press Kit, teSla motorS (2016), https://www.teslamotors.com/

presskit/teslaenergy.

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/.

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

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.”).

See Johnston, supra note 26, at 62-63 (describing the inefficiencies in the

emerging technology supply chain as a “valley of death”).

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.

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).

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).

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).

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).

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.

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).

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).

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.

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).

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.

See u.S. Dep’t 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.”).

See Open Meeting Memorandum, ariz. corp. comm’n, 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).

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/.

See infra Section IV.C.2. (discussing net metering policies).

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/.

Id.

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/.

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/.

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/.

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/.

See Balaskovitz, supra note 79, at 2.

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?.

See DeVitt, supra note 53, at 1; see generally U.S. env’t 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”).

See DeVitt, supra note 53, at 2.

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.

See id.

See Andrew H. Meyer, Comment, Federal Regulatory Barriers to Grid-

Deployed Energy Storage, 39 columbia J. of envtl l. 480, 483 (2014).

See Press Kit, supra note 52, at 3.

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.

See CPUC Improves and Streamlines Self-Generation Incentive Program,

cal. pub. util. comm’n., (Sept. 8, 2011), http://docs.cpuc.ca.gov/PUB-

LISHED/NEWS_RELEASE/142914.htm.

See Fuel Cells, supra note 90.

See 2015 Handbook, Self-Generation incentive proGram, 1, 10 (July 17,

2015), http://cpuc.ca.gov/WorkArea/DownloadAsset.aspx?id=7722.

See cal. pub. util. comm’n, supra note 91.

See id. (listing the specific utilities: Pacific Gas and Electric Company,

Southern California Edison, Southern California Gas Company, and San Diego

Gas & Electric).

See 2013 SGIP Impact Evaluation, Advanced Energy Storage Performance,

cal. pub. util. comm’n, 1, 86 (2013), http://www.cpuc.ca.gov/NR/rdonlyres/

AC8308C0-7905-4ED8-933E-387991841F87/0/2013_SelfGen_Impact_

Rpt_201504.pdf.

Id.

See Meyer, supra note 88, at 483.

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. Dep’t 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. Dep’t 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. aSS’n, 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. aSS’n, 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. aSS’n, 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. Dep’t 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 nat’l park Serv., Green parkS plan 4 (2016), https://www.nps.gov/

subjects/sustainability/upload/NPS-Green-Parks-Plan-2016.pdf.

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