The Growth of Environmental Justice and Environmental Protection in International Law: In the Context of Regulation of the Arctic's Offshore Oil Industry

Author:E. A. Barry-Pheby
Position:Worked for many years as a legal researcher and adviser within the charity sector. Barry-Pheby studied the LLB at London Guildhall University, the Legal Practice Course at the College of Law, London and an LLM in Legal Practice at Manchester Metropolitan University
Pages:48-73
 
CONTENT
48 SUSTAINABLE DEVELOPMENT LAW & POLICY
THE GROWTH OF ENVIRONMENTAL JUSTICE AND
ENVIRONMENTAL PROTECTION IN INTERNATIONAL LAW:
IN THE CONTEXT OF REGULATION OF THE ARCTICS OFFSHORE OIL INDUSTRY
by E.A. Barry-Pheby*
INTRODUCTION
T
1 With its short food
chain, and low temperatures, the Arctic Ocean is highly
vulnerable to pollution.2 This marine environment is central to
Arctic indigenous peoples3 existence: providing food, warmth,
livelihood and cultural integrity.4 Yet the offshore hydrocarbon
industry is increasingly exploiting the Arctic Ocean: many activ-
ities are in deeper, and formerly unexplored, territories.5 Rele-
vant international law is not keeping pace, leaving this delicate
marine environment, and its indig-
enous coastal populations increas-
ingly vulnerable to oil pollution.6
There is greater inclusion of
international environmental law
principles and concepts in relevant
international law yet environ-
mental protection is still severely
curtailed by weak application
of the precautionary principle,
little progression in the creation of
marine protected areas (“MPA’s”),
inadequate protection of identified
species at risk from oil pollution,
and a sustainable development model weighted heavily towards
economic development. Similarly, there has been a substantial
growth of international law affording greater rights to indig-
enous peoples and ground-breaking involvement of indigenous
peoples in the law-making process. Yet constraints are imposed
by the failure of key states to ratify relevant international law and
from limitations of the Arctic Council’s soft law. Examples of
environmental injustice are found in inadequate public participa-
tion for environmental impact assessments identified as tokenis-
tic, ineffective or untimely, and in distributive inequalities of the
sustainable development of Arctic coastal states. The tension
between state sovereignty and international law has caused an
impasse, which needs to be circumvented to sufficiently support
environmental protection and environmental justice in regula-
tion of the Arctic’s offshore oil industry.
ENVIRONMENTAL PROTECTION
The Arctic faces ongoing degradation from global warm-
ing, ozone depletion, radioactive waste, pollution from persis-
tent organic pollutants, pollution from heavy metals, and oil
development.7 Oil pollution from the offshore industry has the
potential to damage marine animals, change migratory patterns,
destroy flora and halt indigenous peoples subsistence lifestyles.8
The Arctic marine environment is rendered particularly
vulnerable to oil pollution due to the severe limitations that
climatological, oceanographic and ecological factors impose on
oil biodegradation.9 Furthermore, industry clean-up methods are
rendered difficult, some postulate impossible, due to the Ocean’s
remoteness, semi-permanent ice cover10 and climatological
extremes.11 Oil spills in the Arctic marine environment could
remain unweathered, and toxic, for
decades.12
With some reticence, the
offshore industry primarily drills
only during summer seasons.13
During the summer season the
climate may be problematic, with
“gale force winds, week-long
storms, and heavy fog restricting
visibility.14 While the increasing
melting of the Arctic summer
ice is announced with growing
hysteria,15icebergs, ice packs and
increased ‘wave and storm action’
could present new problems.16
Unfortunately, the heavily anticipated Arctic Council’s
binding agreement on oil pollution preparedness and response
may fail to address the salient needs of the Arctic environment.
In February 2013 Greenpeace leaked the draft agreement and
heavily criticised the limitations of this piece of draft legislation,
describing it as “incredibly vague” and “inadequate.17
Numerous academics acknowledge problems with the pri-
marily soft international law regulating the Arctic.18 The prob-
lems identified relate to: a) the nature of international law (and
the systemic failures of this particular soft law);19 b) procedural
failures and weaknesses including inadequate implementation
procedures, evaluation, outcome targets, follow-up procedures
and integration of science into practice and policy;20 c) a lack
*E.A. Barry-Pheby worked for many years as a legal researcher and adviser
within the charity sector. Barry-Pheby studied the LLB at London Guildhall Uni-
versity, the Legal Practice Course at the College of Law, London and an LLM in
Legal Practice at Manchester Metropolitan University. She will begin her doc-
torate at Newcastle University’s School of Law in 2013. Email: emmapheby@
gmail.com.
The tension between
state sovereignty and
international law has
caused an impasse
492012–2013
of integration of recognized and accepted environmental prin-
ciples and approaches such as ecosystem-based management
(“EBM”), biodiversity, creation of Marine Protected Areas
(“MPA”s), sustainable development, the precautionary principle
and the polluter pays principle;21 and d) a range of other faults
including lack of funding, many years without an Arctic Council
permanent secretariat, geopolitical tensions, a resistance by
coastal states to develop international law and a lack of real inte-
gration of indigenous and other local people’s opinions.22
Soft law can provide more detail, and be quicker and less
cumbersome to create (as it does not demand domestic ratifica-
tion), than hard law.23 Furthermore, it often supports enhanced
stakeholder involvement.24 It is also acknowledged that soft law
has the potential to better address politically sensitive issues,
allowing for the retention of sovereignty while resulting in the
integration of the essence of soft law into domestic legislation.25
Fitzmaurice identifies that soft law can play a “fundamental”
role in environmental protection.26
The inclusion of international environmental law principles
and concepts provides, prima facie, a legal foundation for eco-
logical, cultural and scientific perspectives; promotes discourse;
and potentially raises environmental protection standards.27
Therefore, the next part will analyze the growth of environmental
protection in relevant international law by examining the inclu-
sion of international environmental law principles/concepts.28
THE PRECAUTIONARY PRINCIPLE
The precautionary principle is increasingly included in
international instruments relevant to the Arctic marine envi-
ronment, including: the Convention of Biological Diversity,29
Agenda 21,30 the Rio Declaration,31 the Convention for the
Protection of the Marine Environment of the North-East Atlantic
(the “OSPAR Convention”),32 the Environmental Impact
Assessment (“EIA”) Guidelines33 and the Offshore Oil and Gas
Guidelines.34 The precautionary principle provides an essential
mechanism for considering environmental protection in the
face of scientific uncertainty, or more accurately the inability
of scientific modelling to predict, with any certainty, the risk of
deleterious effects.35 The precautionary principle is particularly
relevant given the identified vulnerability of the Arctic marine
environment36 and the dispute amongst environmentalists, scien-
tists and politicians regarding the risk of oil spills, the ‘response
gap,’37 the effect of oil waste products on the marine environ-
ment, and effective clean-up methods in sea-ice clean-up.38
The precautionary principle is one of four principles on
which the Arctic Offshore Oil and Gas Guidelines are based,
and the guidelines require states to ‘widely apply’ it.39 Yet
the Offshore Oil and Gas Guidelines lack evaluation of their
implementation, monitoring and follow-up procedures. This has
weakened their capability to set and maintain higher standards.40
While enforcement of soft law41 is problematic, evaluation,
monitoring and follow-up mechanisms are more readily car-
ried out, although these mechanisms are insufficient in Arctic
soft law, perhaps partially due to state resistance and funding
problems.42
The Environmental Impact Assessment (“EIA”) Guidelines
identify the need for a precautionary approach in keeping with
the Rio Declaration’s definition.43 The EIA Guidelines, less
direct than the Offshore Oil and Gas Guidelines, state only that
a precautionary approach is “encouraged” when conducting an
EIA.44 These Guidelines have seemingly had limited influence
on practice through a lack of awareness of their existence and a
lack of follow-up procedures.45
The language of the binding OSPAR Convention46 is
stronger, and its effect is prima facie more substantial, driven
by the OSPAR Commission (“OSPARCOM”). OSPAR directs
Contracting Parties to apply the precautionary principle when
there are “reasonable grounds for concern”47 with regards to
inputs that could cause damage to humans or marine flora and
fauna.48 OSPARCOM also “collect(s) and review(s)”data to
assess the effects of development on relevant marine environ-
ments.49 This data gathering is key to the success of the OSPAR
and OSPARCOM and reportedly lowers oil pollution levels
and raises standards of the state parties.50 A main limitation of
OSPAR in relation to the Arctic Ocean is that only two of the
Contracting Parties are Arctic coastal states (Denmark51 and
Norway) – therefore the OSPAR Convention only covers 8% of
the surface area of the Arctic Ocean.52 Theoretically the OSPAR
boundaries could be widened,53 but as the Convention was devel-
oped to support a set maritime area,54 this has not happened.
The Convention on Biological Diversity (“CBD”) has been
an instrumental framework convention which other international
law has followed.55 The CBD preamble directs56 parties to adopt
a precautionary approach, and this is reiterated by Decision II/10
advocating a “precautionary approach” in the marine environ-
ment.57 As a framework Convention, it has been successful, but
it does not have the substantive detail required to address the
salient issues of Arctic offshore development.
The inclusion of the precautionary approach into interna-
tional hard and soft law regulating the Arctic is positive, yet its
effect is limited. OSPAR only covers a small proportion of the
Arctic Ocean, the framework Convention CBD lacks substan-
tive detail and only contains this approach within its preamble,
and the EIA and Arctic Offshore Oil and Gas Guidelines have
weak monitoring and follow-up procedures and are soft law. The
result being that protection of the Arctic Ocean is curtailed: with
a large response gap58 and questionable clean-up methods little
supported in the weak interpretation/application of the precau-
tionary principle.
BIOLOGICAL DIVERSITY
Marine ecosystems are intricate, and interdependent, so
damage to part of the food chain can have a catastrophic effect
on the whole ecosystem.59 In the Arctic Ocean, plankton is a
key part of the food chain for birds, fish and marine mammals.60
The Arctic Ocean, with restricted biodiversity and species with
increased longevity is in particular need of conservation of its
biological diversity.61
MPAs are identified as an effective way of supporting
biological diversity yet despite this there are so few MPAs in
50 SUSTAINABLE DEVELOPMENT LAW & POLICY
the Arctic.62 Aiding biological diversity does not automatically
preclude all offshore development, and MPAs can be designated
to restrict or prevent certain activities in vulnerable areas.63 Such
action can support recovery of the wider marine environment.64
The International Union for Conservation of Nature (“IUCN”)
identifies that an “imperfect” MPA, that only limits certain
activities, is preferable to no MPA.65
The Convention on Biological Diversity66 seeks to conserve
biodiversity and to support the sustainable development of
environmental resources. One hundred and ninety-three states
are parties to the Convention, and it is ratified by all the Arctic
coastal states except the U.S.A. Article 8 directs parties to con-
sider the creation of protected areas, and in 2004 the Conference
of Parties identified the need for MPAs as a key way of support-
ing biological diversity.67 The CBD as a framework Convention
does not provide substantive detail and its requirements are
“broad and vague, or carefully qualified.”68
The Arctic Council Working Group, Conser vation of Arctic
Flora and Fauna (“CAFF”),69 provides for some monitoring
and assessment of the Arctic environment and aims to promote
biological diversity. In 1998, CAFF set up the Circumpolar
Protected Areas Network (“CPAN”) to support the g rowth of
protected areas.70 Unfortunately CPAN became dormant due to
inner-wrangling and state differences regarding MPAs.71
Another way to support biodiversity is to protect specific
species that are in decline. There are seventeen varieties of
cetaceans in the Arctic Ocean including the narwhal, bowheaded
and beluga whales. Bowheaded whales are an endangered spe-
cies and an oil spill within their territory could have a disas-
trous effect on the species.72 The Exxon Valdez oil spill caused
mortalities and a continuing decline in whale numbers.73 Polar
bears, classified as marine mammals, spend most of their life on
Arctic ice floes, or swimming.74 They have a number of features
which make them particularly vulnerable to oil pollution. Firstly,
contamination is magnified along each step of the food chain.
If a polar bear eats contaminated prey, it also consumes toxic
levels of hydrocarbons. The ingestion of these hydrocarbons
can lead to a multiplicity of health problems, and ultimately
death.75 Secondly, polar bears are a non-migratory species76 and
they hibernate to cope with food scarcity. When they wake from
hibernation, if prey is not readily available, as happens in cases
of large-scale oil pollution, they will not get the nutrients they
need to survive.77 Thirdly, if oil penetrates the fur of polar bears
it compromises its insulation, leaving the bear at a heightened
risk of hypothermia and death.78
In 1946, following an increase in commercial whaling, the
International Convention for the Regulation of Whaling was
established. The Convention’s purpose was to conserve whales,
specifically by regulating the whaling industry.79 In response to
declining polar bear numbers due to harvesting, the International
Agreement for the Conservation of Polar Bears was created.
Article II of the Agreement requires contracting parties to “pro-
tect the ecosystems of which polar bears are a part,”80 paying
“special attention” to polar bear habitats.81 However, it does not
preclude exploration.82 Whilst both the International Convention
for the Regulation of Whaling and The International Agreement
for the Conservation of Polar Bears successfully addressed the
concerns of whaling and harvesting,83 the newer threat posed by
offshore oil development has not been addressed.
SUSTAINABLE DEVELOPMENT
There has been increased interest in Arctic offshore hydro-
carbon activities with high bidding for leases that previously did
not receive bids due to their remote and potentially hazardous
locations.84 The Arctic offshore oil industry is experiencing
rapid growth to meet the demands of world hydrocarbon needs,
domestic energy security and desired economic growth.85 The
rate of growth of the Arctic offshore oil industry is predicted to
rise. The United States Geological Society estimates that ninety-
billion barrels of Arctic oil remain untapped.86
Sustainable development,87 identified as a somewhat fluid
concept,88 has a classic definition in the Bruntdland report:
“development that meets the needs of the present without
compromising the ability of future generations to meet their
own needs.”89 Sustainable development, conceived at global
conferences and forums, has been extensively incorporated into
relevant international legislation.90
The Arctic Council, from its inception as the Arctic
Environmental Protection Strategy (“AEPS”), identified sus-
tainable development in the Arctic as a key objective.91 To
focus further on sustainable development, the AEPS created
the Sustainable Development Program, which later evolved
into the more formal Sustainable Development Working Group
(“SDWG”).92 Discord amongst Arctic states over the definitions
and boundaries of sustainable development led to substantial
delays in devising a programme for the SDWG.93 Consequently
the SDWG’s focus is somewhat ‘disparate’ and has circumvented
focusing on several controversial issues.94
Since 1998 under the auspice of the SDWG a number of
reports have been produced, more recently including the Best
Practices in Ecosystems-Based Ocean Management report, the
Arctic Energy report and as part of the International Polar Year
an energy summit was held (with consequential report), in which
the Arctic’s offshore oil industry was part of a wider discus-
sion of many energy sources.95 Following changes in the Arctic
Council chair in 2006 to Norway96 there was clearly a shift
towards further consideration of the impact of the offshore oil
industry, however this has had limitations: the SDWG’s Arctic
Energy report notes that it is “not intended as a comprehensive
assessment of Arctic energy resources, nor of the impacts of
Arctic energy development on the natural and human environ-
ments in the circumpolar environment” and is instead a strategic
report.97
The EIA Guidelines identify that sustainable development
is the cornerstone principle of the Arctic Council.98 They also
identify that the key to sustainable development is the inclu-
sion of “traditional knowledge.” 99 The Arctic Offshore Oil and
Gas Guidelines (created by Protection of the Arctic Marine
Environment or “PAME”) identify that offshore oil and gas
activities in the Arctic should be predicated on the principle of
512012–2013
sustainable development.100 The Guidelines direct governments
to be “mindful of their commitment to sustainable development”
focusing on eight key issues, including: biological diversity,
transboundary pollution, and “broad public participation in deci-
sion making.”101 Public participation in EIAs has been criticised
for being tokenistic, ineffective or untimely.102
The OSPAR Convention identifies in its preamble “that con-
certed action at national, regional and global levels is essential
to prevent and eliminate marine pollution and to achieve sustain-
able management of the maritime area.”103 OSPAR also refers
to the need for programs and plans to implement sustainability.
OSPARCOM identifies “that sustainable development through
the application of the Ecosystem Approach” is a key principle for
the North-East Atlantic Environment Strategy and requires that
“[t]he Contracting parties [ensure][the]involve[ment] of relevant
stakeholders in the development of their national approaches to
sustainable uses of the seas.”104
The more advanced implementation, monitoring and
follow-up procedures of OSPAR better support sustainable
development. The OSPAR bound countries of Norway and
Greenland (via Denmark) could help to coerce the other Arctic
states to consider better integration of sustainable development
into practice, perhaps via OSPARCOM. The inner-wrangling,
inefficiencies and procedural problems experienced by SDWG,
and the lack of follow-up procedures of the EIA and Offshore
Oil and Gas Guidelines, could be better addressed. They are not
de facto a problem of all soft law, but rather are problems associ-
ated with the Arctic’s inter national law.105
ENVIRONMENTAL PROTECTION–CONCLUSION
The Arctic Council and working groups have instigated
many meetings, reports and legislation, which increasingly con-
siders environmental protection via implementation of interna-
tional environmental law concepts and principles. Yet, the Arctic
Council and its working groups have limited funds, lack enforce-
ment mechanisms, are somewhat thwarted by procedural and
structural problems and are restrained by States’ desire to main-
tain their sovereign rights to freely exploit natural resources.106
The environmental protection provided by inclusion of
these international environmental law principles/concepts with
regards to the offshore oil industry in the Arctic appears insuf-
ficient: the precautionary principle is applied in a diluted form,
there are still so few MPAs in the Arctic Ocean, species specific
legislation remains narrow despite new and potential risks from
the offshore oil industry, and sustainable development favours
state economic growth providing insufficient consideration to
distributive justice.
ENVIRONMENTAL JUSTICE AND HUMAN RIGHTS
The indigenous, Arctic coastal population maintains a
largely symbiotic relationship with the marine environment:
some still leading subsistence lifestyles and many others heavily
relying on the marine environment for food, warmth and cultural
identity.107 Pollution by the offshore oil industry that damages
the marine environment would fundamentally interfere with
indigenous peoples’ lives.108
The environmental justice movement has arisen in response
to racial and social inequalities that have caused ‘disproportion-
ate environmental burdens.109 Arctic indigenous peoples have
been described as victims of ‘eco-crime’.110 Dorough states
that ‘indigenous peoples have been and continue to be victims
of subjugation, domination and exploitation’.111 Environmental
justice is a multi-dimensional concept identified as incorporating
many elements of: distributive,112 procedural,113 recognitive,114
productive115 and ecological justice.116
INTERNATIONAL LAW
International law increasingly addresses Arctic indig-
enous peoples’ human rights in an environmental context
in: the Indigenous and Tribal Peoples Convention,117 the
UN Declaration on the Rights of Indigenous Peoples118 the
Convention on Biological Diversity, soft law created by the
Arctic Council, the inclusion of indigenous peoples in the United
Nations Permanent Forum on Indigenous Issues (“UNPFII”), the
creation of the Inter-American Commission on Human Rights,
and the inclusion of six groups of indigenous peoples as perma-
nent participants in the Arctic Council.119
The ILO Convention 169120 is a legally binding piece
of international legislation setting out minimum standards
for indigenous rights. It accords distributive and procedural
elements of environmental justice to indigenous peoples via:
recognition of cultural diversity,121“ensuring that members of
these peoples benefit on an equal footing from the rights and
opportunities which national laws and regulations grant to other
members of the population,”122 and by providing consultation
and decision-making rights.123 Furthermore, indigenous peoples
were involved in the creation of this legally binding piece of
international law.124
Only two of the five Arctic coastal states (Denmark and
Norway)125 are parties to this Convention. Although, Henriksen
speculates that “the other Arctic countries cannot ignore the
comprehensive set of international minimum standards on
indigenous rights.”126 Unfortunately by failing to ratify this
Convention it is presumably what they intend to do.
The United Nations Declaration on the Rights of Indigenous
Peoples is a rights-based piece of international legislation that
proliferates environmental justice. Article 18 states indigenous
peoples’ “right to participate in decision making in matters
which would affect their rights,” and Article 32 directs that “(s)
tates shall consult and cooperate with the indigenous peoples
concerned through their own representative institutions . . . to
obtain their free and informed consent prior to the approval
of any project affecting their lands or territories and other
resources, particularly in connection with development, utili-
zation or exploitation of mineral, water or other resources.”127
Both Articles 18 and 32 clearly centralize indigenous peoples’
right to the procedural facet of environmental justice with regard
to any offshore oil development.
The Declaration took decades of deliberations with battling
over the minutiae of detail, yet minor alterations could have
substantially weakened its effect. For example, with regards
52 SUSTAINABLE DEVELOPMENT LAW & POLICY
to the issue of “free, prior and informed consent” some states
wished to substitute “obtain” with “seek.”128 The strength of
the Declaration is greatly attributed to the participatory role of
indigenous peoples in its creation.129 This Declaration is seen
as a crucial step in paving the way to the creation of a binding
Convention on indigenous rights.130
Other international law also provides Arctic indigenous
peoples with rights in corollary with their territories and envi-
ronment, including: the non-binding United Nations Conference
on Environmental and Development (UNCED) Agenda 21,131
the Rio Declaration on Environment and Development,132 and
the binding Convention on Biological Diversity.133 In contrast,
indigenous people were not included in the Ilullissat Declaration
discussions. Furthermore, the United Nations Convention on the
Law of the Sea (UNCLOS)134 incorporates a traditional view
of sovereignty and fails to mention indigenous people’s rights,
which Rebecca Bratspies sees as “striking a jarring note of dis-
cord with recent developments in international law.”135
Other notable inclusions of indigenous people in inter-
national law and policy making include: The creation in 2000
of the United Nations Permanent Forum on Indigenous Issues
(“UNPFII”),136 The Inter-American Commission on Human
Rights, which is relevant to two of the Arctic coastal states, the
USA and Canada, and the role of indigenous peoples as perma-
nent participants in the Arctic Council.
The Arctic Council is the main forum for inter-governmen-
tal political discussion of Arctic environmental issues and the
driving force behind the creation of many reports and much
international soft law.137 Although the presence of the permanent
participants can be influential the decisions are made with the
consensus of Arctic Council members states only.138 The funda-
mental doctrine of state sovereignty persists.
There has been huge growth of indigenous peoples’ rights in
international law via UNDRIP, ILO169, CBD, the soft law of the
Arctic Council and the inclusion of indigenous peoples in inter-
national forums. Yet, there are limitations on Arctic indigenous
peoples’ rights. First, after decades of debate, only Norway and
Denmark139 are parties to ILO169, and Russia is not a party to
UNDRIP (which is not a binding instrument). Second, the Arctic
Council’s Permanent Participants do not have voting rights.
Third, the vulnerable position of the permanent participants can
be seen by the Russian government’s immediate decision to sus-
pend the work of the Russian Association of Indigenous Peoples
of the North (RAIPON) in November 2012.140 RAIPON can no
longer officially participate in Arctic Council work. Finally, the
soft law that the Arctic Council creates faces substantial criti-
cism for its poor compliance rates, lack of implementation and
insufficient monitoring standards.141
The exclusion of indigenous peoples from the Ilulissat
Declaration’s discussions suggests both reluctance by the five
coastal states to identify indigenous peoples as on an equal foot-
ing, and their intention not to accede state sovereign rights to
restraints imposed by international law. There is clearly a gap
between rhetoric and reality and a reluctance to go beyond this
impasse.
ENVIRONMENTAL IMPACT ASSESSMENTS (“EIA”S) AND
ENVIRONMENTAL JUSTICE
EIAs are a key way of allowing analysis, consultation,
research142 and public participation. Public participation is, prima
facie, able to fulfil a critical part of according environmental
justice to indigenous peoples by providing procedural rights.143
EIAs are defined by the Espoo Convention as a “national pro-
cedure for evaluating the likely impact of a proposed activity
on the environment.”144 The CBD Guidelines, Arctic Offshore
Oil and Gas Guidelines and EIA Guidelines all include broad
boundaries of what the EIA process should involve: including
impact on “human-health” and the importance of incorporating
traditional (and other local) knowledge.145
International legislation regulating the Arctic has embraced
the EIA concept. The Espoo Convention (addressing trans-
boundary EIAs for offshore hydrocarbon activities)146 has forty-
five Contracting Parties, of which only Canada, Denmark and
Norway are Arctic coastal states.147 The EIA Guidelines and
the Offshore Oil and Gas Guidelines provide Arctic-specific
guidance: identifying features of the Arctic’s cr yosphere and
eco-system that demand consideration.148 The Offshore Oil and
Gas Guidelines attempt more stringent regulation of transbound-
ary impacts than the standards set by the Espoo Convention.149
UNCLOS requires states to conduct an assessment for hydrocar-
bon activities although as a framework the Convention does not
provide substantive detail.150
The Espoo Convention requires adherence to public partici-
pation procedures although it does not elaborate on the form that
this participation should take, or the stage at which it should be
instigated.151 Koivurova states that the lack of detail regarding the
form and timing of public participation makes this Convention
“considerably weakened.152 The Espoo Convention’s153 strong
institutional arrangements provide a forum for effective follow-
up procedures, prescribing that there should be regular reviews
for implementation;154 the last such meeting was in Geneva
in June 2011.155 The Espoo Convention is praised for setting
detailed procedural standards and for creating what “seems to
have become a global standard for how to conduct TEA.”156 Yet it
is criticized for not having harmonized standards of EIAs across
contracting states in practice and therefore potentially causing
problems of reciprocity.157 As only three of the five coastal states
are parties to this Convention, its ability to harmonize legislation
governing the Arctic Ocean is limited.158
PAME’s Offshore Oil and Gas Guidelines identify the
importance of “full and meaningful” public participation,159
but do not provide substantive detail on this issue. The EIA
Guidelines, although more detailed, identify the importance of
incorporation of traditional knowledge into the EIA process
from initial exploration stages and throughout the exploitation
process.160 However, they are often criticized for lacking imple-
mentation, having poor follow-up evaluation procedures,161 and
a study identified that key parties were not even aware of the
existence of these Guidelines.162
In practice there are examples of Arctic public participation
falling far short of standards international legislation aspires
532012–2013
to achieve. In the United States, the villagers of Kaktouik (the
nearest community to prospective development in the US sector
of the Beaufort Sea) felt that their views were sought so late in
the process that they did not actually influence or alter practice
and that it was a tokenistic process.163 These villagers wished to
raise technical concerns but instead Shell provided public rela-
tion employees to answer these technical concerns.164 Similarly
Canadian Inuits have criticised public participation in the region
as insufficient and untimely.165 Steiner also commented that “the
general public is asked to review and comment on an overwhelm-
ing stream of technically complex documents, but is outmatched
by well-paid industry advocates.166 The offshore industry
presents a different picture – one where they seek “consent”
rather than mere consultation and where they, in response to
indigenous people’s requests,
stopped operations for a two-
week period “to enable locals
to carry out their subsistence
hunting during the whaling
season.”167
The indigenous peoples
of the Arctic are not of only
one opinion with regards to
offshore activities but they are
united in supporting the need
for continued, and ongoing,
involvement of indigenous
peoples in the international
debates, and at a local level, their involvement in each and every
planned development.168 Examples of inadequate involvement
in decision-making and insufficient information provisions are
examples of environmental injustice.
ENVIRONMENTAL PROTECTION AND ENVIRONMENTAL
JUSTICE – CONFLICTING CONCEPTS?
The environmental movement in the Arctic has historically
alienated the indigenous population.169 In the 1970s and 80s,
Greenpeace launched a campaign against seal hunting that
Greenland’s indigenous peoples found offensive, inaccurate and
damaging.170 There were later objections to Greenpeace’s attack
on indigenous peoples whaling.171 While Arctic indigenous peo-
ples are described as victims of “eco-crime(s),” environmental-
ists are perceived as having done little to pursue this injustice.172
In turn, Indigenous peoples often appear keen to maintain their
distance from the environmental movement.173
To consider whether environmental protection and envi-
ronmental justice mutually drive up standards or conflict, this
paper focuses on sustainable development and EIAs. Sustainable
development, in balancing economic growth with environmental
protection, is potentially at odds with environmental justice.174
The indigenous coastal communities risk environmental costs
yet share little of the economic benefits.175 Often large propor-
tions of high paid offshore oil industry jobs do not go to local
people176 but instead to skilled, experienced workers outsourced
from other areas.177 Also, complex revenue systems for offshore
industries can mean minimal local benefits; for example, in
Alaska beyond six miles offshore the revenues gained go entirely
to the federal government with no share going to the state of
Alaska.178 The Deepwater Horizon and Exxon Valdez disasters
illustrate the level of damage that oil pollution can cause to local
fishing and tourism industries, sustainable lifestyles and the
environment.179 Despite a $2.5 billion clean-up operation, less
than 10% of the spilled Exxon Valdez oil was recovered from the
water and shore.180 Twenty years later, the damage to organisms
and their marine environment is still apparent.181 Immediate
sizeable effects from the Exxon Valdez spill were obvious, with
estimated mortalities of 2,800-5,000 sea otters, 250,000-700,000
seabirds, 300 harbour seals, 250 bald eagles, 22 killer whales
and billions of herring and salmon eggs.182
Indigenous peoples state
that both the offshore industry
and central governments do
not adequately consider their
lack of economic benefits, or
the potentially devastating
risks they face: This is at odds
with the distributive element
of environmental justice.183
Sustainable development is
identified as an “unabashedly
anthropocentric concept,”184
yet this does not provide the
full picture, for it can con-
ceivably fail to duly consider certain groups of people. It is not
however automatically a concept that excludes distributive ele-
ments; it has only been deconstructed and interpreted in this way
in the Arctic region.185 The concept of sustainable development
demands consideration of future generations and can therefore
be viewed as potentially distributive, and not at odds with envi-
ronmental justice. Careful reframing of sustainable development
in the Arctic context is needed to allow due consideration of
indigenous peoples and to provide environmental justice.
The second issue is whether EIAs potentially cause conflict
between environmental justice and environmental protection. If
the EIAs of offshore oil projects provide sufficient procedural
mechanisms for indigenous peoples’ involvement and deci-
sion-making, they could be seen as complying with principles
of environmental justice. Given that environmental protection
does not ipso facto demand restriction on all development, it
is not necessarily at odds with environmental justice.186 EIAs
can potentially drive up standards of environmental protection
and comply with the procedural requirements of environmental
justice.
CONCLUSION
There has been substantial growth in international law
according rights to indigenous peoples, illustrating that indig-
enous peoples are no longer “passive observers to fundamental
decisions being made about [their] homeland.”187 Yet they are
now somewhat locked into the rhetoric of international politics
The environmental
movement in the Arctic has
historically alienated the
indigenous population.
54 SUSTAINABLE DEVELOPMENT LAW & POLICY
and law-making. Increasingly there has been inclusion of key
international environmental law principles and concepts into
relevant international law. Yet the ability of the inclusion of these
principles and concepts to drive up standards of environmental
protection has been limited. There is a deadlock created by the
tension between state sovereign rights to utilise natural resources,
environmental protection, and the rights of indigenous peoples.
The five coastal states, undeterred by the soft law created
and unfettered by international hard law they have not ratified,188
delineate themselves with traditional ideas of sovereign rights
in order to utilise natural resources unabated. The exponential
growth in recognition of indigenous rights regarding their envi-
ronments and the growing recognition of environmental protec-
tion in international law certainly provides a beacon of hope for
the future, but at the present the offshore oil industry continues
to grow far beyond the capacity of international law.
Endnotes: The Growth of Environmental Justice and Environmental Protection
in International Law: In the Context of Regulation of the Arctic’s Offshore Oil
Industry
1 Tavis Potts, The Management of Living Marine Resources in the Polar
Region (2010); M.H. NORDQUIST ET AL., CHANGES IN THE ARCTIC ENVIRONMENT
AND THE LAW OF THE SEA 4, 404 (listing the USA, Canada, Norway and Russia
as the four heavily industrialised coastal states (coastal industries include
fishing, mineral extraction and the hydrocarbon industry), the fifth coastal state
is Greenland); Intl. Arctic Sci. Comm., An Introduction to the Arctic Climate
Impact Assessment (Feb 2010); N. E. Flanders & R.V. Brown, Justifying
Public Decisions in Arctic Oil and Gas Development: American and Russian
Approaches, 51 Arctic 264 (September 1998).
2 Timo Koivurova, The Importance of International Environment Law in
the Arctic, The Arctic Centre (November 2011), www.arcticcentre.org/?Dep-
tID=5484 [hereinafter Koivurova, Environment Law]; Timo Koivurova, Govern-
ance of protected areas in the Arctic, 5 Utrecht Law Rev. 44 (2009) [hereinafter
Koivurova, Governance]; WWF, Oil Spill Response Challenges in Arctic Waters
(October 2011); An Introduction to the Arctic Climate Impact Assessment, supra
note 1.
3 In keeping with the preferred plural usage of indigenous peoples found
throughout relevant international law, this paper adopts the same pluralisation.
Definitions of indigenous peoples are disputed but for the purposes of this
paper the definition of indigenous peoples is taken from the working definition
used by the United Nations Permanent Forum on Indigenous Issues. See UN
Permanent Forum on Indigenous Issues, Who Are Indigenous Peoples? www.
un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf [hereinafter Who
Are Indigenous Peoples].
4 See ASLAUG MIKKELSEN & OLUF LANGHELLE, ARCTIC OIL AND GAS – SUSTAINA-
BILITY AT RISK, (2011) (A large part of indigenous Arctic diets consist of marine
mammals. Some indigenous peoples maintain totally subsistence lifestyles); see
also D. Cavanagh, Marine Mammals and the Inuit, Journal of the Vancouver
Aquarium 10 (1987); J. HOLDER & M. LEE, ENVIRONMENTAL PROTECTION LAW AND
POLICY (Cambridge Univ. Press 2010).
5 WWF, Oil Spill Response Challenges in Arctic Waters, supra note 2, at 6
(listing the newly explored offshore Arctic areas which includes: West Green-
land, the Russian Barents Sea, the Canadian Beaufort Sea territory and in the
USA Chukchi Sea territory, some involving deep-water drilling.)
6 See generally ALLEN MILNE, OIL, ICE AND CLIMATE CHANGE: THE BEAUFORT
SEA AND THE SEARCH FOR OIL (R.J. Childerhose ed., 1977) (noting that The Arctic
Ocean is particularly vulnerable to the effects of oil pollution due to its short
food chain and environmental factors limiting biodegradation); see also G.P.
GLASBY, ANTARCTIC SECTOR OF THE PACIFIC, 312-3 (Elsevier Science Publishing
Co. 1990).
7 Sarah R. Hamilton, Toxic Contamination of the Arctic: Thinking Globally
and Acting Locally to Protect Arctic Ecosystems and People, 15 Colo. J. Int’l
Envtl L. &Pol’y 71, 71 (2004); LAURA WESTRA, ENVIRONMENTAL JUSTICE AND THE
RIGHTS OF INDIGENOUS PEOPLES 208 (Routledge 2012).
8 Mary Simon, Canadian Inuit, 66 INTL J. 879 (2010-11); Rebecca M.
Bratspies, Human Rights and Arctic Resources, 15 Sw. J. Int’l L. 250, 260
(2008-9).
9 R. Rayfuse, Protecting Marine Biodiversity in Polar Areas Beyond National
Jurisdiction 17(1) REICEL, 4 (2008) (highlighting that furthermore freezing
water can trap oil and prevent waves from dispersing and allowing evaporation).
10 See PAME, The Arctic Ocean Review – Phase 1 Report, at 10 (2009-11)
(noting the Arctic Ocean has previously been in the main a frozen ocean with
seasonal and perennial sea ice, although this is altering due to global warming);
Peter Wadhams, Arctic Ice Cover, Ice Thickness and Tipping Points AMBRIO 9
(23/24) and NSIDC nsidc.org, accessed 30 January 2012.
11 See generally PAME, supra note 10; TIMO KOIVUROVA, OFFSHORE HYDROCAR-
BON: CURRENT POLICY CONTEXT IN THE MARINE ENVIRONMENT (Arctic Transform
2010) [Hereinafter, Koivurova, Maine Environment] (noting the period of time
in which the climatology/cryosphere make clean-up operations impossible
is called a ‘response gap’. There is much debate amongst scientists, environ-
mentalists and the oil industry as to how large the ‘response gap’ is and how
adequately it is addressed).
12 Arctic Environmental Protection Strategy, Report on Recent Lingering
Oil Studies at 3.2 (June 1991); see also The Exxon Valdez Oil Spill Trustee
Council, Long Term Effects of Initial Exposure to Oil (2010), available at www.
evostc.state.ak.us/recovery/longTerm.cfm.
13 See Offshore Technology 26-7 (October 2012) (Statoil carry out one of the
few all year offshore Arctic drilling activities in the Norwegian Barents Sea
area). See The House of Commons (Environmental Audit Committee), Protect-
ing the Arctic, at 5 (September 2012) (explaining that Shell did not wish to
adhere to the summer only drilling requirement and challenged the decision for
summer only drilling in offshore Alaska).
14 Environment Group, Offshore exploration in the Arctic, www.pewtrusts.org/
news_room_detail.aspx?id=58806.
15 Wadhams, supra note 10; cf. National Snow and Ice Data Center, (October
2012) available at http://nsidc.org/arcticseaicenews (melting sea ice could be
viewed as advantageous to industries such as oil, fishing and shipping, and to
states to wish to exploit this Ocean). But cf. M Bravo & G. Rees, Cryo-Politics:
Environmental Security and the future of Arctic Navigation, 13 Brown J. World
Aff. 205 (2006-7) (supporting the argument that the full complexity of the
measurements is not accounted for and that the large mass of an entire ocean is
being labeled with what is not a consistent trend for the many seas and waters it
includes).
16 See generally Arctic Changes, Postnote, Number 334 (Parliamentary Office
of Science and Technology, London, UK) June 2009, at 4.
17 See Greenpeace Press Release, ‘Leaked Arctic Council oil spill response
agreement ‘vague and inadequate’, February 4 2013 at <www.greenpeace.
org/international/en/press/releases/Leaked-Arctic-Council-oil-spill-response-
agreement-vague-and-inadequate—-Greenpeace/?accept=aa29a15f9873f37b52
0e73bc7551178f>
18 See Koivurova, Marine Environment, supra note 11, at 37; see generally
T. Koivurova, E.J. Molenaar & D.L. Vanderzwaag, Canada, the EU, and Arctic
Ocean Governance: A Tangled and Shifting Seascape and Future Directions, 18
J Transnat’l L. &Pol’y 247 (2008-9) [hereinafter Koivurova, Shifting Seascape].
19 L.A Fayette, Ocean Governance in the Arctic 23 INTL J. MARINE & COASTAL
L. 531 (2008), 559; Koivurova & Molenaar, International Governance and
Regulation of the Marine Arctic, WWF (2009) available at http://www.wwf.se/
source.php/1223579/International%20Governance%20and%20Regulation%20
of%20the%20Marine%20Arctic.pdf.
continued on page 71
552012–2013
Endnotes: LEGAL TOOLS FOR ENVIRONMENTAL EQUITY VS. ENVIRONMENTAL JUSTICE continued from page 13
46 See Louisiana Energy Services: Uranium and Environmental Racism,
EJNET.ORG, http://www.ejnet.org/ej/les.html (last visited Nov. 15, 2012) (relat-
ing that while Louisiana Energy Services was indeed defeated in their efforts to
build in northern Louisiana, and was subsequently kicked out of two communi-
ties they targeted in Tennessee, they ultimately managed to build their uranium
enrichment facility in Eunice, New Mexico, in a community with a Hispanic
population nearly triple the national average and a poverty rate 45% above the
national average).
47 In the Matter of Louisiana Energy Services, L.P., 47 N.R.C. 77, 101, 106-07
(1998).
48 Id. at 100-102.
49 Mike Ewall, Environmental Injustice in Delaware County, PA, ACTIONPA.
ORG (Feb. 2008), http://www.ejnet.org/chester/delco-ej.pdf (listing waste facili-
ties within Delaware County, PA).
50 Chester Residents Concerned for Quality Living v. Seif (Chester I), 944 F.
Supp. 413, 415 (E.D. Pa. 1996).
51 Id. at 414, 417.
52 42 U.S.C. § 2000d (2000).
53 42 U.S.C. § 2000d-1 (2000).
54 Chester Residents Concerned for Quality Living v. Seif (Chester II), 132
F.3d 925, 927-28 (3d Cir. 1997).
55 Chester I, 944 F. Supp. at 417 (“We thus find that by alleging only dis-
criminatory effect rather than discriminatory intent, plaintiffs failed in their
complaint to allege a violation of Title VI.” (emphasis in original)).
56 Id. at 417-18.
57 132 F.3d 925 (3d Cir. 1997).
58 Id. at 928.
59 Id. at 937.
60 463 U.S. 582, 103 S. Ct. 3221, 77 L.Ed.2d 866 (1983).
61 Chester II, 132 F.3d at 929.
62 Id. (citing Alexander v. Choate, 469 U.S. 287, 292-94, 105 S. Ct. 712, 716
(1985)).
63 Id.
64 Id. at 930.
65 Id. (quoting Guardians 463 U.S. at 645, 103 S. Ct. at 3255) (Stevens, J.,
dissenting)).
66 Id. (citing Guardians, 463 U.S. at 584, 589-93, 103 S. Ct. at 3223, 3226-28
(opinion of White, J.); 463 U.S. at 615, 103 S. Ct. at 3239-40 (Marshall, J.,
dissenting)).
67 Id. at 930-31.
68 Id. at 932.
69 Id. (discussing Chowdhury v. Reading Hosp. and Med. Ctr., 677 F.2d 317
(3d Cir. 1982)).
70 Id. at 933 (explaining three prong test looks at: “(1) whether the agency
rule is properly within the scope of the enabling statute; (2) whether the statute
under which the rule was promulgated properly permits the implication of a
private right of action; and (3) whether implying a private right of action will
further the purpose of the enabling statute.” (quoting Polaroid Corp. v. Disney,
862 F.2d 987, 994 (3d Cir. 1988) (internal quotations and citation omitted)).
71 Seif v. Chester Residents Concerned for Quality Living, 524 U.S. 915, 118
S. Ct. 2296 (1998) (granting writ of certiorari).
72 See generally Julia B. Latham Worsham, Disparate Impact Lawsuits Under
Title VI, Section 602: Can A Legal Tool Build Environmental Justice? 27 B.C.
ENVTL. AFF. L. REV. 631, 675-80 (2000) (detailing the dynamics surrounding
the CRCQL Supreme Court appeal).
73 Id.
74 Seif v. Chester Residents Concerned for Quality Living, 524 U.S. 974, 119
S. Ct. 22, 22-23 (1998) (“The judgment is vacated, and the case is remanded
to the United States Court of Appeals for the Third Circuit with instructions to
dismiss.”).
75 145 F. Supp. 2d 446 (D.N.J. 2001).
76 Id. at 473-474.
77 Id. at 459-60.
78 Id. at 450.
79 Id. at 451-52.
80 Id. at 472 (noting that the Plaintiffs spent particular attention on briefing the
claim of disparate impact in violation of § 602).
81 189 F.3d 387 (3d Cir. 1999).
82 Id. at 399.
83 Camden I, 145 F. Supp. 2d at 474.
84 See generally Risk Assessments vs. Alternative Assessments, EJNET.
ORG, http://www.ejnet.org/ej/riskassessment.html (last visited Nov.20, 2012)
(explaining flaws in risk assessment and advocating for a more involved
process).
85 Camden I, 145 F. Supp. 2d at 474.
86 Id.
87 Id. at 488-90.
88 Id. at 490.
89 Id. at 461-66.
90 PM2.5 NAAQS Implementation, ENVTL. PROT. AGENCY, http://www.epa.gov/
ttnnaaqs/pm/pm25_index.html (last updated July 14, 2008).
91 Camden I, 145 F. Supp. 2d at 497-98 (noting the EPA’s own admission that
their regulations regarding particulate matter were “inadequate to protect the
public health”).
92 Id. at 499.
93 Id. at 452.
94 Id.
95 Id. at 503-05.
96 Alexander v. Sandoval, 532 U.S. 275 (2001).
97 Id. at 279.
98 Id. at 293.
99 Id. at 286-87.
100 Id. at 287 (“That understanding is captured by the Court’s statement in J. I.
Case Co. v. Borak, 377 U.S. 426, 433 (1964), that ‘it is the duty of the courts
to be alert to provide such remedies as are necessary to make effective the
congressional purpose’ expressed by a statute.”).
101 422 U.S. 66, 95 S. Ct. 2080 (1975).
102 Id. at 78.
103 Sandoval, 532 U.S. at 288.
104 Touche Ross & Co. v. Redington, 442 U.S. 560 (1979).
105 Sandoval, 532 U.S. at 286 (citing Touche Ross 442 U.S. at 578).
106 Touche Ross, 442 U.S. at 575.
107 Sandoval, 532 U.S. at 288-89.
108 Id. at 316 (Stevens, J., dissenting).
109 Id. at 295, 317.
110 Id. at 295 n.1.
111 Id. at 299.
112 Id. at 311.
113 Id. at 302 n.9.
114 Cannon v. Univ. of Chi., 441 U.S. 677 (1979).
115 Id. at 702-03.
116 Sandoval, 532 U.S. at 298 (Stevens, J., dissenting).
117 Id. at 303; id. at 280 (Scalia, J.).
118 Regents Univ. Cal. V. Bakke, 438 U.S. 265 (1978).
119 Sandoval, 532 U.S. at 307-08 (Stevens, J., dissenting).
120 Id. at 299-301.
121 42 U.S.C. § 1983; Blessing v. Freestone, 520 U.S. 329, 340 (1997).
122 Sandoval, 532 U.S. at 300 (Stevens, J., dissenting).
123 S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot. (Camden II), 145
F. Supp. 2d 505, 509 (D.N.J. 2001).
124 Id.
125 Id.
126 S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot. (Camden III), 274
F.3d 771, 781 (3d Cir. 2001).
127 Sandoval, 532 U.S. at 309 (Stevens, J., dissenting).
128 Camden III, 274 F.3d at 774.
129 Blessing v. Freestone, 520 U.S. 329, 338, 117 S.Ct. 1353, 1358 (1997). The
Blessing test to determine whether a federal statute creates an individual right
enforceable through § 1983 looks at the following: (1) Congress must have
intended that the provision in question benefit the plaintiff; (2) the plaintiff must
demonstrate that the right protected by the statute is not so vague and amor-
phous that its enforcement would strain judicial competence; and (3) the statute
must unambiguously impose a binding obligation on the States. In other words,
the provision giving rise to the asserted right must be couched in mandatory
terms.
130 Camden III, 274 F.3d. at 791.
131 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).
56 SUSTAINABLE DEVELOPMENT LAW & POLICY
132 Id. at 283; see also Derek Black, Picking up the Pieces after Alexander v.
Sandoval: Resurrecting a Private Cause of Action for Disparate Impact, 81
N.C.L. REV. 356, 366-67 (2002) (“The Gonzaga Court stated that it was not
changing the Blessing test, but Gonzaga stressed that Congress must intend to
create a federal right, not merely intend the statute to benefit the plaintiff.”).
133 Gonzaga, 536 U.S. at 283.
134 See CENTER FOR RACE, POVERTY & THE ENVIRONMENT, ET. AL., THE EPA DENIES
CIVIL RIGHTS PROTECTION FOR COMMUNITIES OF COLOR (2011), http://www.ejnet.
org/ej/tvifactsheet.pdf (arguing that the EPA’s Select Steel decision and Califor-
nia Department of Pesticide settlement have eroded civil rights protection and
demanding their rescission and increased oversight).
135 Title VI Complaints Listing, EJNET.ORG, http://www.ejnet.org/ej/2011-
07-15complaints.pdf (last visited Nov. 24, 2012).
136 ANN E. GOODE, ENVTL. PROT. AGENCY, SELECT STEEL DECISION MEMORANDUM
& REPORT 10 (1998), http://www.epa.gov/ocr/docs/ssdec_ir.pdf.
137 Id. at 37-38.
138 Id. at 2.
139 Id. at 3.
140 Id. at 2.
141 See Brief Amicus Curiae of the United States at 13, 19, Save Our Summers
v. Washington Department of Ecology, 132 F. Supp. 2d 896 (E.D. Wash. 1999)
(No. CS-99-269-RHWQ), available at http://www.cforjustice.org/wp-content/
uploads/2009/03/amicus.pdf.Endnote 143: insert “available at” before URL
(urging the court to consider the purposes and structure of both environmental
-

statutes can be harmonized, there is no need to consider which is controlling,
and they may be separately applied).
142 Camden I, 145 F. Supp. 2d at 498-99.
143 OFFICE OF CIVIL RIGHTS, ENVTL. PROT. AGENCY, INVESTIGATIVE REPORT FOR
TITLE VI ADMINISTRATIVE COMPLAINT FILE NO. 16R-99-R9 (2011), http://www.
epa.gov/ocr/TitleVIcases/ir-082511.pdf.
144 Id. at 37 (deter mining that the plaintiffs had made a prima facie showing of
adverse impact).
145 Compare id. at 37-38 (stating that the EPA agreed to increased monitoring
of air concentration levels and community outreach and education efforts),
with Complaint at 40-41, Angelita C. v. Cal. Dep’t of Pesticide Regulation, No.
16R-99-R9 (Office of Civil Rights, Envtl. Prot. Agency) (1999), http://www.
ejnet.org/ej/angelitac-complaint.pdf (asking the EPA to ban methyl bromide, or
in the very least to enforce much larger buffer zones).
146 OFFICE OF CIVIL RIGHTS, supra note 143, at 37-38.
147 Press Release, Center on Race, Poverty, & the Environment, EPA Fails to
Enforce Civil Rights Act (Aug. 25, 2011), http://www.ejnet.org/ej/angelitac-
crpe-pr.pdf (quoting Brent Newell, General Counsel).
148 See EPA roundly criticized over draft supplement to Civil Rights plan,
INSIDEEPA.COM (July 20, 2012), http://www.enviro-lawyer.com/EPA%20
Roundly%20Criticized.pdf (quoting a neighborhood association as saying
that “[d]espite Rosemere’s lawsuit and the subsequent national debate of the
failures of the [EPA Office of Civil Rights (OCR)], and despite [Lisa Jackson’s]
continued promises for EPA to increase efficiency in that office to make envi-
ronmental justice a national priority, the OCR continues to fail in its intake and
investigation guidelines in regard to Title VI complaints.”).
149 See Padrias Hacia Una Vida Mejor v. Jackson, No. 1:11CV01094 AWI
DLB, 2012 WL 1795823, at *3 (May 16, 2012), http://www.epa.gov/ocr/
TitleVIcases/decisions/#padres (“On June 30, 2011, Plaintiffs filed this lawsuit.
Plaintiffs allege that EPA has violated, and continues to violate, 40 C.F.R. §
7.115(c)(1) because it failed to issue preliminary findings and recommendations
for voluntary compliance in response to Plaintiffs’ Title VI complaint within
180 days of EPA’s initiation of investigation.”).
150 RAFEAL DELEON, ENVTL. PROT. AGENCY, DISMISSAL AND CLOSURE OF TITLE VI
COMPLAINT (Aug. 20, 2012), http://www.epa.gov/ocr/TitleVIcases/decisions/
padres/Padres_complaint_01-95-R9_decision-ltr_DTSC_20120830.pdf.
151 Id. at 1.
152 Id.
153 Id. at 4-7.
154 Eiji Yamashita, EPA awards grant to environmental group: Greenaction
Campaign to Conduct Outreach on Impact of Diesel Emissions, HANFORD
SENTINEL, Dec. 10, 2011, http://www.hanfordsentinel.com/news/local/
epa-awards-grant-to-environmental-group/article_856323fa-22d5-11e1-894b-
001871e3ce6c.html.
155 40 C.F.R. §§ 7.120(d), 7.115(c).
156 EPA Fails to Enforce Civil Rights Act, supra note 147 (reporting that dozens
of complaints have languished at the EPA).
157 U.S. COMMISSION ON CIVIL RIGHTS, NOT IN MY BACKYARD: EXECUTIVE ORDER
12,898 AND TITLE VI AS TOOLS FOR ACHIEVING ENVIRONMENTAL JUSTICE 55-62
(2003), http://www.usccr.gov/pubs/envjust/ej0104.pdf.
158 Rosemere Neighborhood Assoc. v. U.S. Envtl. Prot. Agency, 581 F.3d
1169, 1175 (9th Cir. 2009), http://www.ca9.uscourts.gov/datastore/opin-
ions/2009/09/17/08-35045.pdf.
159 DELOITTE CONSULTING LLP, EVALUATION OF THE EPA OFFICE OF CIVIL RIGHTS
FINAL REPORT 19 (2011), http://www.epa.gov/epahome/pdf/epa-ocr_20110321_
finalreport.pdf (concluding that the backlog was “directly attributable to OCR’s
difficulty in securing the time of resources in the program and regional offices
that have required technical and regulatory expertise to execute the highly
analytical investigation plan”).
160 S. 4009, 109th Cong. (2006).
161 S. 2918, 110th Cong. (2008); H.R. 5896, 110th Cong. (2008).
162 S. 2918 § 1; H.R. 5896 § 1.
163 S. 2918 § 3; H.R. 5896 § 3.
164 Id.
165 S. 2918 § 5; H.R. 5896 § 5 (providing the right to recovery on (1) “claims
based on proof of intentional discrimination” and (2) “claims based on the
disparate impact standard of proof”).
166 Id.
167 Id.
168 S. 2918 § 3; H.R. 5896 § 3.
169 See generally SCHUYLKILL TAXPAYERS OPPOSED TO POLLUTION, http://www.
ultradirtyfuels.com (last visited Nov. 27, 2012) (providing a brief history of
“coal-to-oil” refineries in Schuylkill County and their impact on residents).
In response to comments by the author, the Department of Energy, in their
Environmental Impact Statement, recognized the prison population as an envi-
ronmental justice community, but pretended that they would not be impacted
by the coal-to-oil refinery proposed adjacent to them because the pollution
would be within legal limits, along the flawed lines of the aforementioned Select
Steel decision. DEPT OF ENERGY, FINAL ENVIRONMENTAL IMPACT STATEMENT FOR
THE GLIBERTON COAL-TO-CLEAN FUELS AND POWER PROJECT xxxi-xxxii (2007),
http://www.netl.doe.gov/technologies/coalpower/cctc/EIS/gilberton_pdf/0%20
WMPI%20FEIS%20Front%20Matter.pdf.
170 E.g., Uma Outka, Environmental Injustice and the Problem of the Law, 57
ME. L. REV. 209, 246-248 (2005).
171 Pub L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C.
§§ 4231 et seq.).
172 42 U.S.C. §§ 4332(C)(iii), (D)(iv), (E) (2011).
173 See generally Philpower Incinerator Saga, GREEN DEL., http://greendel.org/
versionone/incineration/ppstory.html (last updated June 18, 2000) (providing
history on the “Philpower Incinerator Saga”).
174 Philpower Corporation, ENERGY JUSTICE NETWORK, http://www.energyjus-
tice.net/map/displayfacility-69734.htm (last visited Nov. 25, 2012).
175 Del. S.B. 280, 140th Gen. Assemb. (2000) (codified at Del. Code. Ann. tit.
7, §§ 6002-03).
176 See supra note 46 and accompanying text.
177 See generally Environmental Justice Case Study: Shintech PVC Plant in
Convent, Louisiana, UNI. OF MICH., http://www.umich.edu/~snre492/shin.html
(last visited Nov. 25, 2012) (providing a case study of the Shintech proposal).
178 Id.
179 TOXICOLOGY EXCELLENCE FOR RISK ASSESSMENT and ENVIRONMENTAL PROTEC-
TION AGENCY, COMPARATIVE DIETARY RISKS: BALANCING THE RISKS AND BENEFITS
OF FISH CONSUMPTION (1999), available at http://www.tera.org/Publications/
CDR%20Front%20Matter.pdf.
180 ROGER D. MASTERS, The Social Impli cations of Evolutionary Psychology:
Linking Brain Biochemistry, Toxins, and Violent Crime, in EVOLUTIONARY
PSYCHOLOGY AND VIOLENCE: A PRIMER FOR POLICYMAKERS AND PUBLIC POLICY
ADVOCATES (Richard W. Bloom and Nancy K Dess, Eds., 2003).
181 Letter from Martin Luther King, Jr., Letter From Birmingham Jail (April
16, 1963), available at
html.
572012–2013
Endnotes: ON DIVERSITY AND PUBLIC POLICYMAKING: AN ENVIRONMENTAL JUSTICE PERSPECTIVE continued from page 19
4 See Grutter, 539 U.S. at 330 (2003) (citing studies regarding educational
benefits of diversity); Michele DeStefano, Nonlawyers Influencing Lawyers: Too
Many Cooks in the Kitchen or Stone Soup?, 80 FORDHAM L. REV. 2791,
2804-05 (2012) (discussing studies showing that racial and cultural diversity
“has a positive impact on accuracy, flexibility, group creativity, thoughtfulness,
and information sharing”); Seletha R. Butler, All On Board! Strategies for Con-
structing Diverse Boards of Directors, 7 VA. L. & BUS. REV. 61, 73-80, (2012)
(discussing benefits of board diversity).
5 See, e.g., Coglianese, supra note 1, at 110-11 (noting public support of
environmentalism as current issue for environmental justice groups).
6 See Collin, supra note 2, at 513, 518.
7 American Fact Finder, American Community Survey Selected Popula-
tion Tables (2006-10), U.S. CENSUS BUREAU, http://factfinder2.census.gov/
faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_10_SF4_
DP03&prodType=table (last visited Oct. 25, 2012) (noting that in 2010 10.6% of
black families had a household income of $100,000 or more, and more than 21%
of white households earned less than $25,000 per year).
8 See Rick Jervis, Six years after Katrina, pockets of New Orleans languish-
ing, USA TODAY (Aug. 25, 2011), http://usatoday30.usatoday.com/news/nation/
story/2011-08-25/Six-years-after-Katrina-pockets-of-New-Orleans-languish-
ing/50141660/1 (discussing the plight of New Orleans East, a predominantly
middle and upper middle class African American community six years after
hurricane Katrina)
9 See Sam Evans, Voices From the Desecrated Places: A Journey to End
Mountaintop Removal Mining, 34 HARV. ENVTL. L. REV. 521 (2010) (discuss-
ing the impact of mountaintop mining on impoverished white communities in
Appalachia).
10 State sanctioned racism; open and notorious acts of murder, humiliation and
degradation; physical segregation; economic isolation; civic neglect; and politi-
cal disenfranchisement. See, e.g., Paul Butler, One Hundred Years of Race and
Crime, 100 J. CRIM. L. & CRIMINOLOGY 1043, 1043 (2010) (discussing “evolution
of thinking about criminal justice and racial justice over the last one hundred
years”); See generally JOHN STRAUSBAUGH, BLACK LIKE YOU: BLACKFACE, WHITE-
FACE, INSULT & IMITATION IN AMERICAN POPULAR CULTURE (Aug 16, 2007) (explor-
ing race relations in American popular culture and how blackface performance
came to be denounced as purely racist mockery).; MICHAEL HARRINGTON, THE
OTHER AMERICA, (Simon and Shuster, 1962) (exploring depth of poverty crisis
and analyzing why “invisible” citizens as the elderly, children, and minorities are
not given adequate opportunities).
11 See, e.g., Bethany Li, ‘We Are Already Back’: The Post-Katrina Struggle for
Survival and Community Control in New Orleans East’s Vietnamese Community
of Versailles, 18 ASIAN AMER. L.J. 25 (2011) (discussing a Vietnamese commu-
nity’s struggle for survival after Hurricane Katrina); Joan D. Flocks, The Envi-
ronmental and Social Injustice of Farmworker Pesticide Exposure, 19 GEO. J. ON
POVERTY L. AND POLY 255 (2012) (discussing hazards to migrant farmworkers
from pesticide exposure); Nancy B. Collins & Andrea Hall, Nuclear Waste in
Indian Country: A Paradoxical Trade, 12 LAW & INEQ. 267 (1994) (discussing
impacts of radioactive wastes on Tribal communities).
12 See Michael Gelobter, et al., The Soul of Environmentalism: Rediscovering
Transformational Politics in the Twenty-First Century, GRIST.ORG (2008), avail-
able at http://archive.fieldmuseum.org/research_collections/ccuc/ccuc_sites/
newallies/pdf/Soul_of_Environmentalism.pdf.
13 See Richard J. Lazarus, Highways and Bi-ways for Environmental Justice,
31 CUMB. L. REV. 569, 576 (2001) (noting early sanitation and public health
movements with a focus on urban environmental concerns).
14 Id. at 572; See Gelobter, supra note 12, at 4 (referring to the environmental
movement as the “Elvis of Sixties activism”).
15 Gelobter, supra note 12, at 5-8.
16 See Collin, supra note 2, at 538.
17 Tseming Yang, Environmental Regulation, Tort Law and Environmental
Justice: What Could Have Been, 41 WASHBURN L.J. 607, 610 (2002).
18 Id. at 611.
19 See id. at 612, 621 (noting the exclusion of minority groups and the poor
from environmental decision-making and the weakness of environmental
enforcement provisions). In addition to this array of more traditional environ-
mental concerns, environmental justice advocates also demand recognition and
consideration of other factors that can profoundly affect the health and wellbeing
of communities, such as economic isolation, access to health care, quality of
housing and education, and access to healthy food choices.
20 See Collins, supra note 2, at 545.
21 Agriculture: Sustainability, U.S. EPA, http://www.epa.gov/agriculture/tsus.
html (last visited Oct. 28, 2012).
22 These types of restrictions are at the heart of laws like the federal Clean
Air Act (“CAA”), 42 U.S.C. §§ 7401-7641, and Clean Water Act (“CWA”), 33
U.S.C. §§ 1252-1387, among others, and state law equivalents.
23 See e.g., The National Environmental Policy Act (“NEPA”), 42 U.S.C. §§
4321-70.
24 See Solid Waste Disposal Act, 42 U.S.C. §§ 6921-39 (hazardous waste
provisions).
25 See e.g., Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-87;
Forest and Rangeland Renewable Resources Planning Act, 16 U.S.C. §§ 1600-
87; Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-44.
26 See generally Learn the Issues, U.S. EPA, http://www.epa.gov/gateway/
learn/ (last visited Oct. 28, 2012).
27 While these categories overlap to some degree, the categories themselves
serve as useful methodical reference points. Additionally, there are categories
not included here, such as statutes that serve a primarily informational function,
such as NEPA, 42 U.S.C. §§ 4321-70, or the Emergency Planning and Commu-
nity Right-to-Know Act (“EPCRA”), 42 U.S.C. § 11046.
28 The Clean Air Act and Clean Water Act largely reflect this approach to envi-
ronmental protection. See 42 U.S.C. § 7401(a)(3), 33 U.S.C. § 1252(a) While
such standards are usually tied in various ways to adverse health impacts, the
stringency of emission controls are typically not directly linked to a demonstra-
tion of hazard or risk.
29 See 42 U.S.C. § 7412(k)(2)(A).
30 An adage famously used by J.F.K in suppor t of free trade. President John F.
Kennedy Address at the Paulskirche in Frankfurt, Germany, 24 (June 25, 1963),
available at http://www.jfklibrary.org/Asset-Viewer/Archives/JFKPOF-045-023.
aspx.
31 See Technology Transfer Network Air Toxics Web Site: About Air Toxics, U.S.
EPA, http://www.epa.gov/ttn/atw/allabout.html (last visited Oct. 25, 2012).
32 Indeed, the problem of disproportionate impacts can be summed up thusly:
“Are members of some communities asked to shoulder more than their share of
the public health burden associated with the maintenance of our industrialized
way of life?” To the extent that the answer is “yes”, any justification that merely
accepts such disparities as the natural consequence of relative powerlessness
(economic, political, and societal) is morally repugnant.
33 See Yang, supra note 17, at 607, 610-12.
34 See 42 U.S.C. § 7412(d) (instructing the agency to consider cost, non-air
quality impacts, and energy requirements when setting “achievable” standards
for HAPs); 42 U.S.C. § 7412(f)(2) (instructing EPA to set “residual risk” stan-
dards 8 years after initial HAP emission controls are adopted “if promulgation of
such standards is required in order to provide an ample margin of safety to pro-
tect public health.”). See generally, Mark W. Ciaravella, Comment, Regulation of
Hazardous Air Pollutants Under Section 112 of The Clean Air Act Amendments
of 1990, 15 ENERGY L.J. 485 (1994).
35 See, e.g., Natural Resources Defense Council v. EPA, 529 F.3d 1077 (D.C.
Cir. 2008) (EPA successfully arguing that HAP standards need not protect the
public from cancer risks of greater than one in one million).
36 42 U.S.C. §§ 7412(c)(9), 7412(f)(2).
37 In the agency’s words: “EPA strives to provide maximum feasible protection
against risks to health from HAP[s] by: (1) Protecting the greatest number of
persons possible to an individual lifetime cancer risk level of no higher than
approximately 1 in 1 million and (2) limiting to no more than 1 in 10,000
the estimated cancer risk to the hypothetical maximum exposed individual.”
National Emission Standards for Hazardous Air Pollutants from Secondary Lead
Smelting, 60 Fed. Reg. 32,587, 32,591 (June 23, 1995) (to be codified at 40
C.F.R. pts. 9, 63).
38 See, e.g., National Emissions Standards for Hazardous Air Pollutants: Sec-
ondary Aluminum Production, 77 Fed. Reg. 8,576, 8,593 (February 14, 2012)
(to be codified at 40 C.F.R. pt. 63) (requesting comment on “whether and how
best to estimate and evaluate total HAP exposure”).
39 See id. at 8,595.
40 See National Emission Standards for Hazardous Air Pollutants From the
Portland Cement Manufacturing Industry, 75 Fed. Reg. 5,4970, 54,986 (Sep-
tember 9, 2010) (explaining that EPA’s metrics for assessing health risks “do not
reflect any potential cumulative or synergistic effects of an individual’s exposure
to multiple HAPs or to a combination of HAPs and criteria pollutants”).
58 SUSTAINABLE DEVELOPMENT LAW & POLICY
41 See Yang, supra note 17, at 610-11.
42 See generally George Friedman-Jimenez, M.D., Achieving Environmental
Justice: The Role of Occupational Health, 21 FORDHAM URB. L.J. 605 (1994).
43 This article does not address the question of “geographic implementation
bias” whereby environmental protection policies, law enforcement, or other
environmental benefits are simply targeted geographically more vigorously at
wealthy communities and/or white communities as compared with poor and/or
non-white communities. See generally id.
44 See Alice Kaswan, Environmental Justice: Bridging the Gap Between
Environmental Laws and “Justice,” 47 AM. U. L. REV. 221, 231-32 (1997)
(discussing the history of “studies suggesting that minority and low-income
communities currently endure undesirable land uses to a greater extent than
other communities”).
45 See the Resource Conservation and Recovery Act (“RCRA”) 42 U.S.C. §§
6921-39 (regulating hazardous management and disposal).
46 See Kaswan, supra note 44, at 269 (explaining that the United States has
only a few hazardous waste disposal facilities, which studies show are dispro-
portionately located near low-income or minority populations).
47 See Kaswan supra note 44, at 232-33 (citing two studies from the 1980s
that found correlations between communities’ racial and economic demograph-
ics and their proximity to hazardous waste sites).
48 See Kaswan supra note 44, at 232-33 (“Studies have shown a correlation
between race and exposure to air pollution, between race and lead poisoning,
between race and pesticides, and between race and exposure to occupational
hazards.”); Lazarus, supra note 2, at 801-806 (observing that minorities are
also more likely to be employed in areas of work that expose them to greater
environmental risks, such as pesticide-heavy farming and the steel industry).
49 For example, the preservation of wild places is a critically important
societal goal for many reasons, not the least of which are habitat protection,
ecosystem services, and inter-generational equity. See generally Edith Brown
Weiss, The Planetary Trust: Conservation and Intergenerational Equity, 11
ECOLOGY L.Q. 495-582 (1984); Will R. Turner et al., Global Conservation of
Biodiversity and Ecosystem Services, 57 BIOSCIENCE 868, 868 (2007).
50 See John Schelhas, Race, Ethnicity, and Natural Resources in the United
States: A Review, 42 NAT. RESOURCES J. 723, 739, 750-54 (2002) (discussing,
among other things, discrimination in the conservation movement and the
under-participation of minorities in outdoor recreation).
51 Id. at 751 (explaining the marginality hypothesis).
52 Id.
53 See id. at 739 (citing the example of the Southern California Chapter of
the Sierra Club, which in the 1950s explicitly excluded minorities from its
meetings).
54 See Lisa Grow Sun, Smart Growth in Dumb Places: Sustainability, Disas-
ter, and The Future of the American City, 2011 BYU L. REV. 2157, 2162-66
(2011) (discussing this history and also observing that recently, “mainstream
environmentalists and environmental law scholars are engaged in a full-blown
love affair with cities”).
55 From the perspective of human psychological norms, this should not come
as a particular surprise. People disproportionately value their own set of interest
and concerns and tend to prioritize based on their own experiences. See gener-
ally David M. Messick & Max Bazerman, Ethical Leadership and the Psychol-
ogy of Decision Making, 37 SLOAN MGMT. REV. 9 (1996).
56 42 U.S.C. § 4331 (2006) (declaring “it is the continuing policy of the
Federal Government” to take the measures necessary “to foster and promote the
general welfare, to create and maintain conditions under which man and nature
can exist in productive harmony, and fulfill the social, economic, and other
requirements of present and future generations of Americans”).
57 Exec. Order No. 12,898, 59 Fed. Reg. 7,629 (Feb. 11, 1994) [hereinafter
“E.O. 12898”] (ordering, among other things, each federal agency to “make
achieving environmental justice part of its mission by identifying and address-
ing, as appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on minority
populations and low-income populations in the United States”).
58 In fact, in 1997, the Council on Environmental Quality (“CEQ”) issued the
document “Environmental Justice: Guidance Under the National Environmental
Policy Act,” which contemplates some meaningful procedural steps to ensure
robust consideration of community concerns during NEPA review. It also pro-
vides that “agencies that promulgate or revise regulations, policies, and guid-
ances under NEPA or under any other statutory scheme should consult with
CEQ and EPA to ensure that the principles and approaches presented in this
guidance are fully incorporated into any new or revised regulations, policies,
and guidances.” COUNCIL ON ENVTL. QUALITY, ENVIRONMENTAL JUSTICE: GUIDANCE
UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT 19 (1997), available at http://
ceq.hss.doe.gov/nepa/regs/ej/justice.pdf (emphasis added).
59 See e.g. Kaswan, supra note 44, at 238 (“If the government’s remediation
decisions are influenced bythe demographics of the communities adjoining
contaminated areas, the decisionmaking process could be considered unjust.”)
60 Charles Davis, Approaches to the Regulation of Hazardous Wastes, 18
ENVTL. L. 505, 529 (1988). Notably, Robert Percival has observed with respect
to the CAA and NEPA, that “both were founded on the conviction that action-
forcing legislation was necessary to overcome agency resistance to change.
Robert V. Percival, Checks Without Balance: Executive Office Oversight of the
Environmental Protection Agency, 54 LAW & CONTEMP. PROBS. 127, 129 (1991).
Moreover, in discussing the “tradeoff between politics and expertise as a basis
for decision-making” current Justice Kagan observed that one inherent limita-
tion of agency officials is their “insulation from the public, lack of capacity for
leadership, and significant resistance to change.” In her view, these attributes
“pose significant risks to agency policymaking.” Elena Kagan, Presidential
Administration, 114 HARV. L. REV. 22452352-53 (2001).
61 See Kaswan, supra note 44, at 251-52 (“Environmental justice advocates
expect that Executive Order 12,898’s two-pronged approach – requiring
(1) the compilation and consideration of demographic information, and (2)
the improvement of public participation mechanisms – will result in fairer
decisionmaking”).
62 See Yang, supra note 17, at 607 (noting that “[o]ne of the most severe
criticisms has been the claim that environmental laws were not merely doing
too little for the poor and people of color but that they were in fact the cause of
some of the racism and injustice”).
63 See generally RONALD N. JOHNSON & GARY D. LIBECAP, THE FEDERAL CIVIL
SERVICE SYSTEM AND THE PROBLEM OF BUREAUCRACY 177 (1994).
64 See generally Messick & Bazerman, supra note 55, at 37 (discussing “con-
centration bias” and “benefits allocation bias”).
65 Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 290 (1986) (J. O’Connor
concurring in part and concurring in judgment), quoting S. Rep. No. 92-415, p.
10 (1971) (accompanying the amendments extending coverage of Title VII to
the States).
66 Id.
67 Nearly the same observation was made during hearings before the House
Legislation and National Security Subcommittee of the Committee on Govern-
ment Operations. Environmental Protection Agency Cabinet Elevation–Envi-
ronmental Equity Issues: Hearing before the Legis. & Nat’l Sec. Subcomm. of
the Comm. on Gov’t Operations, 103rd Cong. 63 (1993) (statement by Richard
Moore, coordinator for the Southwest Network for Environmental and Eco-
nomic Justice), available at http://www26.us.archive.org/stream/environmen-
talpro00unit/environmentalpro00unit_djvu.txt (“To establish credibility in EPA
programs, the Agency must reverse its historical resistance to cultural diversity
and integration in the workforce. Congress and EPA should put employees of
color in substantive decision-making positions and heed input.”).
68 This commentary is not meant to suggest that the perspectives of the
American white upper middle class are homogenous. They manifestly are not.
However, the range of experiences and perspectives among a broader commu-
nity of people will necessarily be more expansive.
69 See Jennifer K. Brooke & Tom R. Tyler, Diversity and Corporate Perfor-
mance: A Review of the Psychological Literature, 89 N.C. L. REV. 715, 726-27
(2011) (arguing that “a diversity of viewpoints can only benefit a company if
those viewpoints can be expressed”).
70 See Rebecca K. Lee, Core Diversity, 19 TEMP. POL. & CIV. RTS. L. REV.
477, 488-91 (2010) (explaining that “[d]espite its objectives, surface diversity
reinforces asymmetric relationships of power present in broader society and
recreated within organizations. The problem with surface diversity speaks to the
problem of assimilation … [and] the phenomenon of ‘covering.’” Lee defines
“covering” as “deemphasizing aspects of one’s identity that deviate from the
assimilation ideal”); George A. Martínez, Latinos, Assimilation and the Law: A
Philosophical Perspective, 20 CHICANO-LATINO L. REV. 1, 27 (1999) (discussing
“the costs to Latinos and other minority groups in attempting to assimilate”).
71 See Lee, supra note 70, at 493-94 (encouraging businesses to adopt the
“core diversity” model for achieving inclusive management, which “seeks to
apply people’s differences to concretely improve the organization’s practices at
its core”). Another aspect of addressing this problem has been the pursuit of a
“critical mass” of diverse participants. See Grutter, 539 U.S. 318-19 (asserting
that with regard to race, the goal is to achieve “a number that encourages under-
represented minorit[ies] … to participate” without “feel[ing] isolated or like
spokespersons for their race”).
72 See generally Lazarus, supra note 2.
592012–2013
73 Lazarus, supra note 2, at 827 (emphasis added).
74 Criticism in this regard can be levied equally at government policymakers
and at mainstream environmental organizations. This latter group, which has
been largely responsible for defining the nature and scope of the environmental
debate over the past several decades, is firmly rooted in the classic environ-
mental mindset and has its own set of institutional traditions that have proven
amazingly resistant to change.
75 Fisher v. Univ. of Tex., 132 S.Ct 1536 (2012) (granting cert again in the
context of university admission policies).
76 See Grutter, 539 U.S. at 328 (“The Law School’s educational judgment that
such diversity is essential to its educational mission is one to which we defer.
The Law School’s assessment that diversity will, in fact, yield educational ben-
efits is substantiated by respondents and their amici. Our scrutiny of the interest
asserted by the Law School is no less strict for taking into account complex
educational judgments in an area that lies primarily within the expertise of the
university.”); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 314 (1978).
77 See Bakke, 438 U.S. at 313 (1978); Grutter, 539 U.S. at 324.
78 Of course the Court has effectively cabined its grant of leave for race-con-
scious decision-making by relying on the special solicitude afforded universities
in the name of “academic freedom.” Bakke, 438 U.S. at 319; Grutter, 539 U.S.
at 324, 329. However the rationale for encouraging diversity in certain public
policymaking is implicit in Powell’s rationale in Bakke: the “nation’s future
depends upon leaders trained through wide exposure to the ideas and mores of
students as diverse as this nation of many peoples.” Bakke, 438 U.S. at 313. If
such diversity of thought is important in education, should it be considered any
less critical to our nation’s future within the institutions that make and imple-
ment important public policy?
79 Notably, indicators of “sameness” – sometimes described in terms of
whether a person is a “good fit” – often emerge as a “factor” in hiring decisions
with the effect preventing diversity (with respect to race, gender, disability, or
otherwise) and furthering the creep toward institutional homogeneity. See DAVID
M. BLANCHARD, REPRESENTING EMPLOYEES IN DISCRIMINATION CASES 4 (2012)
(“Millions of Americans have lost their jobs because they were not a ‘good fit’
or because the company wanted to move in a ‘different direction.’”). In such
instances ultimately the burden is on the applicant to prove that the employer’s
stated reason is a “pretext.” Id. at 1.
80 See CULTURAL DIVERSITY CHALLENGES FOR EPA: A STRATEGY FOR BOLD
ACTION, ENVTL. PROT. AGENCY 3, 13 (1992) (“1992 Diversity Strategy”) (recog-
nizing that “organizations benefit from a broad range of perspectives” which
can stimulate “creative thinking, problem solving [and] innovation).
81 U.S. EPA, ENVIRONMENTAL EQUITY: REDUCING RISK FOR ALL COMMUNITIES
(1992), available at http://www.epa.gov/environmentaljustice/resources/reports/
annual-project-reports/reducing_risk_com_vol1.pdf.
82 Environmental Justice: Basic Information, U.S. EPA, http://www.epa.gov/
compliance/ej/basics/ejbackground.html (last updated May 24, 2012); 58 Fed.
Reg. 59,723, 59,723 (Nov. 10, 1993) (EPA Notice of Establishment of the
National Environmental Justice Advisory Council and Request for Suggestions
of Candidates for Membership).
83 The IWG was also a creature of E.O. 12898. See E.O. 12898, supra note
57, at § 1-102 (describing the EJ IWG’s composition and duties, which includes
providing guidance to federal agencies “on criteria for identifying dispropor-
tionately high and adverse human health or environmental effects on minority
populations and low-income populations”). See also Federal Interagency
Working Group on Environmental Justice, U.S. EPA, http://www.epa.gov/
compliance/ej/interagency/index.html (last updated Sept. 13, 2012) (stating
that the role of the Environmental Justice Interagency Working Group is “to
guide, support and enhance federal environmental justice and community-based
activities”).
84 See Memorandum from Gary Guzy, U.S. EPA General Counsel, regarding
EPA Statutory and Regulatory Authorities under which Environmental Justice
Issues may be Addressed in Permitting (Dec. 1, 2000), available at http://
www.epa.gov/environmentaljustice/resources/policy/ej_permitting_authori-
ties_memo_120100.pdf (reporting that the Environmental Appeals Board
(EAB) directly addressed the environmental justice issues in RCRA hazardous
waste permits in a 1995 report and found that “‘when the Region has a basis to
believe that operation of the facility may have a disproportionate impact on a
minority or low-income segment of the affected community, the Region should,
as a matter of policy, exercise its discretion to assure early and ongoing oppor-
tunities for public involvement in the permitting process.’”).
85 Even today, more than 82% of the 2,400 employees comprising the EPA’s
senior career staff (grade GS 15) are white (non-Hispanic). See Letter from
James H. Johnson, Jr., Chair, National Advisory Council for Environmental
Policy and Technology, to Lisa P. Jackson, Administrator, U.S. EPA (Dec.
22, 2011), available at http://www.epa.gov/ ocempage/nacept/reports/
pdf/2011_1222_nacept_diversity_letter.pdf. One could say this group exhibits
all the diversity of Mercy College in Des Moines, Iowa, or St. Olaf College in
Northfield, Minnesota. Mercy College Quick Facts, MERCY COLLEGE OF HEALTH
SCIENCES, http://www.mchs.edu/quick-facts.cfm (last visited Nov. 1, 2012);
St. Olaf College 2012 Profile, ST. OLAF COLLEGE 1, available at http://www.
stolaf.edu/about/StOlafProfile.pdf. That said, whites made up about 90% of
GS 15 employees in 1994 (70% of whom were males). See U.S. EPA, FY 1994
AFFIRMATIVE EMPLOYMENT PROGRAM ACCOMPLISHMENT REPORT AND FY 1995 PLAN
UPDATE: STRATEGIC PLAN FOR DIVERSITY 77 (1995), available at http://www.epa.
gov/nscep/index.html.
86 See generally Environmental Justice, U.S. EPA, http://www.epa.gov/envi-
ronmentaljustice/index.html (last updated Oct. 15, 2012) (asserting the EPA’s
commitment to promoting environmental justice, which the EPA defines as
“the fair treatment and meaningful involvement of all people regardless of race,
color, national origin, or income with respect to the development, implementa-
tion, and enforcement of environmental laws, regulations, and policies”); and
Strengthening and Revitalizing the EPA’s Civil Rights and Diversity Programs,
U.S. EPA, http://www.epa.gov/epahome/ocr-statement.htm (last updated April
24, 2012). While EPA has by no means solved all of its longstanding issues
(especially as they relate to the enforcement of Title VI of the Civil Rights Act
of 1964), the efforts within the administration have been significant and seem-
ingly genuine.
87 Exec. Order No. 13,583, 76 Fed. Reg. 52,847 (Aug. 18, 2011) (establishing
a Coordinated Government-wide Initiative to Promote Diversity and Inclusion
in the Federal Workforce, and inter alia, acknowledging that “[a] commitment
to equal opportunity, diversity, and inclusion is critical for the Federal Govern-
ment as an employer,” that the federal government has a “special obligation to
lead by example,” and that the government “must create a culture that encour-
ages collaboration, flexibility, and fairness to enable individuals to participate to
their full potential”).
88 Memorandum from Lisa P. Jackson, Administrator, U.S. EPA, to All EPA
Employees regarding Seven Priorities for EPA Action, available at http://blog.
epa.gov/administrator/2010/01/12/seven-priorities-for-epas-future/ (emphasis
added).
Endnotes: ON FERTILE GROUND: THE ENVIRONMENTAL AND REPRODUCTIVE JUSTICE MOVEMENTS AS A UNIFIED FORCE
FOR REFORMING TOXIC CHEMICAL REGULATION continued from page 20
4 Reproductive Health Analysis of the Toxic Chemicals Safety Act (H.R.
5820), REPRODUCTIVE HEALTH TECHNOLOGIES PROJECT 1 (2010) http://www.poder-
texas.org/files/TSCA_Reform_Bill.pdf.
5 Renee Skelton & Vernice Miller, The Environmental Justice Movement,
NATIONAL RESOURCE DEFENSE COUNCIL (2006), http://www.nrdc.org/ej/history/
hej.asp, (last visited OCT. 26, 2012) (CITING TOXIC WASTES AND RACE IN THE UNITED
STATES: A NATIONAL REPORT ON THE RACIAL AND SOCIO-ECONOMIC CHARACTERISTICS
OF COMMUNITIES WITH HAZARDOUS WASTE SITES, COMMN FOR RACIAL JUSTICE OF THE
UNITED CHURCH OF CHRIST (1986), http://www.ucc.org/about-us/archives/pdfs/
toxwrace87.pdf. This study was updated twenty years later with similar find-
ings. See TOXIC WASTES AND RACE AT TWENTY 1987-2007: GRASSROOTS STRUGGLES TO
DISMANTLE ENVIRONMENTAL RACISM IN THE UNITED STATES, UNITED CHURCH OF CHRIST
JUSTICE AND WITNESS MINISTRIES (2007), http://www.ejrc.cau.edu/2007%20
UCC%20Executive%20Summary.pdf.
6 LAW STUDENTS FOR REPRODUCTIVE JUSTICE, SUPRA NOTE 2 AT 1.
7 Chinue Turner Richardson, Environmental Justice Campaigns Provide
Fertile Ground for Joint Efforts With Reproductive Rights Advocates, 9 GUTT-
MACHER POL. REV. 14, 17 (2006), available at http://www.guttmacher.org/pubs/
gpr/09/1/gpr090114.pdf.
8 Why is Reproductive Justice Important to Women of Color?, SISTER SONG,
http://www.sistersong.net/index.php?option=com_content&view=article&id=14
1&Itemid=81 (last visited Oct. 28, 2012).
9 See Environmental Justice, ENVTL PROTECTION AGENCY, http://www.epa.
gov/environmentaljustice/ (last visited Oct. 28, 2012); see also 17 PRINCIPLES OF
60 SUSTAINABLE DEVELOPMENT LAW & POLICY
Endnotes: A LEGAL STANDARD FOR POST-COLONIAL LAND REFORM continued from page 28
21 See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979) (declaring
that the right to exclude is “universally held to be a fundamental element of the
property right”); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 435 (1982) (emphasizing the importance of the right to exclude, calling it
“one of the most treasured strands in the owner’s bundle of property rights”).
22 JOSEPH W. SINGER, PROPERTY LAW: RULES, POLICIES, AND PRACTICES (5th ed.
2010).
23 Id.
24 See id. (explaining that rights language justifies property regimes or rules
because they are right, i.e. they describe ways in which people ought to behave
towards each other).
25 Id.
26 Id.
27 See People First – Zimbabwe’s Land Reform Programme 2, Ministry of
Lands, Agriculture and Rural Settlement in conjunction with the Department
of Information and Publicity, Office of the President and Cabinet, (2001)
(describing three consecutive land reform programs and one joint government/
large-scale commercial white-farmer program implemented by the government
to address the clear imbalance in land ownership between black and white
Zimbabweans at independence).
28 Id. at 14.
29 Id.
30 In the 1980s, Zimbabwe thrived on a strong agricultural sector. Exports
of crops such as tobacco ranked high on the world market. Today, Zimbabwe
is primarily an importer of commodities, including many food products. See
Pazvakavambwa & Hungwe, supra note 5, at 137.
31 Land Tenure Act (Zimbabwe 1969).
32 See Pazvakavambwa & Hungwe, supra note 5, at 139.
33 See Carol Rose, Possession as the Origin of Property, 52 U. CHI. L. REV.
73, 88 (1985) (“[t]he common law gives preference to those who convince the
world that they have caught the fish and hold it fast . . . one has, by ‘possession,
separated for oneself property from the great commons of unowned things.”).
34 See Singer, supra note 22, at 17 (describing the historical “finders keepers”
concept as a simple and workable rule to allocate ownership of unpossessed or
abandoned objects).
35 Id.
36 See, e.g., JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988) (explain-
ing that the fact that one grabs something is not a strong enough reason for
others to recognize his rights to control it unless those others have similar
opportunity to obtain property); see also, Singer, supra note 22, at 17.
37 The series of clashes through which the indigenous Africans were driven
from their lands includes the First Chimurenga, or First War of Independence,
in which the Shona and Ndebele uprising in opposition to displacement was
violently quelled in 1897 by the Pioneer Column, a group of settlers sent to the
region by the British South African Company in search of gold and diamonds.
See Pazvakavambwa & Hungwe, supra note 5, at 138.
38 Id.
39 Id.
40 Id.
41 LOCKE, supra note 1, at 21.
42 Id. at 19.
43 Id.
44 For an excellent summary of the agrarian profile of Zimbabwe leading up
to the year 2000, see Thomas W. Mitchell, The Land Crisis in Zimbabwe: Get-
ting Beyond the Myopic Focus Upon Black and White, 11 IND. INTL & COMP.
L. REV. 588 (2001); see also, United Nations Development Program (UNDP),
Interim Mission Report, Zimbabwean Land Reform and Resettlement: Assess-
ment and Suggested Framework for the Future 3, Jan. 2002 available at http://
www.eisa.org.za/PDF/zimlandreform.pdf. Colonial legislation created land
classification and barred blacks from ownership of land in “velds” where the
soil and weather conditions best promoted agriculture on a large-scale. The
Land Apportionment Act of 1965, authorized the colonial government to move
indigenous populations to marginal lands in the predominantly dry agricultural
zones. Human Rights Watch, Fast Track Land Reform in Zimbabwe, A1401 (8
March 2002), available at http://www.unhcr.org/refworld/docid/3c8c82df4.
html. As a result, as Zimbabwe celebrated independence from Great Britain in
1980, about 4,500 large-scale commercial farmers, consisting of less than one
per cent of the population, occupied 45 per cent of the agricultural land. Id. This
grossly disproportionate land-ownership profile can be traced back to the Land
Apportionment Act of 1931, a law passed by the colonial government which
created a land apartheid scheme, with land being designated black or white, as
well as by the type of activity the land would be used for. Under this legisla-
tion alone, 51 percent of land was allocated to about 3,000 white farmers, and
1.2 million indigenous Zimbabweans were confined to Native Reserves (later
renamed “communal lands”) consisting of 30 percent of Zimbabwean land. See
Pazvakavambwa & Hungwe, supra note 5, at 138-139.
45 LOCKE, supra note 1, at 21.
46 See Rugadya, supra note 20, at 3 (explaining that, in the context of
Ugandan land reform, prior to the colonization era none of the communities in
Uganda recognized individual ownership of land and that individual rights of
possession and use of land existed but were subject to sanction by the holder’s
family, clan, or community).
47 For example, one planted seed in the ground to trigger a communally
recognized right to access the land until harvest time. Local leaders divided the
land among members of the community according to each man’s ability and
willingness to put the land to productive use. Grazing was carried out in com-
mon, often intermingling livestock and rotating them across the entire expanse
of land in a collective effort to ensure adequate access to pasture for all. See
Thomas Griffiths, Indigenous People, Land Tenure and Land Policy in Latin
America, FOOD & AGRICULTURAL ORGANIZATION 47 (2004).
48 While no one held title to land under customary law, the colonial system
and its titling model introduced a system of individual land ownership in line
with the Jeremy Bentham’s theory of property as a justified expectation. See
JEREMY BENTHAM, THE THEORY OF LEGISLATION 111-113 (C.K. Ogden ed. 1931)
(stating that property is nothing but a basis of expectation of deriving certain
advantages from a thing which we possess; this expectation, can only be the
work of law).
49 See Griffiths, supra note 47, at 51.
50 Id. (citing P. Garcia, TERRITORIOS INDIGENAS: TOCANDO A LAS PUERTAS DEL
DERECHO. REVISTA DE INDAS, LXI (223)).
51 Id.
52 Id.
53 See Miranda, supra note 10 (and accompanying text).
54 See infra Parts II and III (drawing on international law to outline a legal
standard for land reform policy).
55 Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc
A/810 at 71 (1948), art. 17.
56 See Poul Wisborg, Are Land Rights Human Rights? Online debate on
Human Rights Day (Dec. 10 2011, available at http://landportal.info/content/
are-land-rights-human-rights-online-debate-human-rights-day-10th-decem-
ber-2011 (identifying the protection of land rights as governing the idea and
the institutions of property); see also, Universal Declaration of Human Rights,
supra note 55.
57 Elizabeth Wickeri and Anil Kalhan, Land Rights Issues in International
Law, INSTITUTE FOR BUSINESS AND HUMAN RIGHTS, available at http://www.ihrb.
ENVIRONMENTAL JUSTICE, ENERGY JUSTICE NETWORK (1996), http://www.ejnet.org/
ej/principles.html (last visited Oct. 28, 2012).
10 Kristen Zimmerman & Vera Miao, Fertile Ground: Women Organizing at
the Intersection of Environmental Justice and Reproductive Justice, MOVEMENT
STRATEGY CTR. 6 (2009), available at http://funderservices.movementstrategy.
org/a/wp-content/uploads/FertileGround.pdf.
11 Id.
12 MOVEMENT STRATEGY CENTER SUPRA NOTE 2, AT 8.
13 Karen Hu et al., Removing the Topcoat: Understanding Federal Oversight
of Nail Salons, THE NATIONAL ASIAN PAC. AM. WOMENS FORUM 4 (2011), http://
nailsalonalliance.org/storage/Removing%20the%20Topcoat%20May2011.pdf.
14 Toxic Chemicals Safety Act of 2010, H.R. Res. 5820, 111th Cong. (2010).
15 Safe Chemicals Act of 2011, S. Res. 84, 112th Cong. (2011).
16 REPRODUCTIVE HEALTH TECHNOLOGIES PROJECT, SUPRA NOTE 4 AT 1.
17 Id.
18 Integrate Strategies to Improve Environmental and Reproductive Justice,
NATL INST. FOR REPRODUCTIVE HEALTH 2 (2009), available at http://www.urbani-
nitiative.org/SiteContent/Static/Docs/AgendaCh9Environment.pdf.
612012–2013
org/pdf/Land_Rights_Issues_in_International_HRL.pdf; see also, De Schutter,
supra note 6 (and accompanying text).
58 See infra Part III (outlining the legal standard for land reform that best
captures the norms established by universal agreements with near global con-
sensus, as well as the jurisprudence of regional human rights courts).
59 See DEBRA L. DELAET, THE GLOBAL STRUGGLE FOR HUMAN RIGHTS: UNIVERSAL
PRINCIPLES IN WORLD POLITICS 14 (2006) (tracking the notion of dignity back
to the political documents that first articulated fundamental human rights, the
U.S. Declaration of Independence, which claimed “all Men . . . are endowed by
their Creator with certain inalienable rights” and the French Declaration of the
Rights of Man and Citizens, which claimed that certain “natural, inalienable,
and sacred rights of man” are enjoyed “under the auspices of the Supreme
Being” and finding that both were shaped by religious overtones and justi-
fied human rights under a basis for a universal notion of morality); see also,
American Declaration of the Rights and Duties of Man, OEA/Ser.L./V.II.23,
doc. 21, rev. 6 (1948), at preamble, reprinted in Basic Documents Pertaining to
Human Rights in the Inter-American System, OEA/Ser.L.V./II.82, doc. 6, rev. 1
at 17 (stating that “the essential rights of man are not derived from the fact that
he is a national of a certain State, but are based upon attributes of his human
personality”).
60 See CHIGARA, supra note 2, at 206 (stating that “there is nothing more
universal than human dignity” and describing the related “humanity” as the
common denominator among people of all races and faiths).
61 Sovereignty is an overarching and constantly lurking principle of interna-
tional law. The Treaty of Westphalia in 1648 created a world of independent,
individual States each governing a fixed territory, having jurisdiction over the
people and things within its boundary, and providing the basic infrastructure for
the benefit of its citizens. Since the 1400s, geopolitics have shifted the effects
of sovereignty, but its core idea of self-determination remains undisturbed
and is the basis of the rules governing international relations. See Treaty of
Westphalia, Oct. 24, 1648, available at http://avalon.law.yale.edu/17th_century/
westphal.asp.
62 DELAET, supra note 59, at 14.
63 Id.
64 Id.
65 THEO VAN BOVEN, Distinguishing Criteria of Human Rights, in THE INTERNA-
TIONAL DIMENSIONS OF HUMAN RIGHTS, VOL. 1, (Kare et al., eds., 43rd ed. 1982).
66 Id. (contending the existence of very fundamental human rights, described,
for example in international humanitarian law as that part of human rights law
which does not permit any derogation even in time of armed conflict).
67 See International Covenant on Civil and Political Rights, Dec. 16, 1966,
S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171 [hereinafter
ICCPR] (Out of 196 countries in the world, 167 are party to the ICCPR, includ-
ing Zimbabwe (ratification 1991)); International Covenant on Economic, Social
and Cultural Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-19, 6 I.L.M. 360
(1967), 993 U.N.T.S. 3 [hereinafter ICESCR].
68 These first generation rights are negative “freedoms from” rather than more
positive “rights to.” See ICESCR, supra note 57, at 317-318; ICCPR, supra note
67, Preamble (recognizing that all humans have “equal and inalienable rights”
and articulating that the rights conferred by the ICCPR “derive from the inher-
ent dignity of the human person”). See also, Prudence Taylor, From Environ-
mental to Ecological Human Rights: A New Dynamic in International Law? 10
GEO. INTL ENVTL. L. REV. 317, 317–18 (1998) (explaining that these civil and
political rights derived from seventeenth and eighteenth century reformism and
the political philosophy of liberal individualism and economic laissez-faire);
ROBERT H. KAPP, SOME PRELIMINARY VIEWS ON THE RELATIONSHIP BETWEEN CIVIL
AND POLITICAL RIGHTS AND ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE CON-
TEXT OF DEVELOPMENT AND ON THE RIGHT TO DEVELOPMENT 3 (1978) (Mimeo, The
International Commission of Jurists, Geneva) (stating that “Civil and political
rights are rooted in traditional Western source[s] . . . have been associated with
the eighteenth century and the French and American Revolutions” and “can be
traced back to the Magna Carta of 1215 and the thoughts of traditional Western
philosophers”).
69 ICCPR, supra note 67, art. 6–27.
70 Id.
71 HENRY J. STEINER, PHILIP ASTON & RYAN GOODMAN, INTERNATIONAL HUMAN
RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 152 (2007).
72 Id.
73 See, e.g., ICCPR, supra note 67, art. 8(1) (“[n]o one shall be held in
slavery”).
74 Article 2 identifies, not to the exclusion of other possibilities, the follow-
ing distinctions: race, color, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. See id., art. 2(1), 25.
75 See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 539 (2003)
(suggesting that the attainment of the standards set by the Economic, Social,
and Cultural Covenant involves effort over time); see also, General Comment
No. 3 of the Committee on Economic, Social, & Cultural Rights, U.N. Doc.
HRI/GEN/1/Rev.6 (May 12, 2003) (stating that while the ICESCR provides for
progressive realization and acknowledges the constraints due to the limits of
available resources, it imposes various obligations that which are of immediate
effect); The Committee specifically points to the following State obligations
under the covenant: the “undertaking to guarantee” that relevant rights “will
be exercised without discrimination” and the article 2(1) undertaking “to take
steps,” which itself is not qualified or limited by other considerations. Id.
76 MATTHEW CRAVEN, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND
CULTURAL RIGHTS: A PERSPECTIVE ON ITS DEVELOPMENT 8 (1998) (attributing this
perceptual inferiority of economic, social and cultural (“ESC”) rights on two
assertions: (1) that human rights come from a natural law pedigree rooted in the
concern for individual autonomy and freedom, interests already protected by CP
rights and not promoted by ESC rights, and (2) that ESC rights “lack the essen-
tial characteristics of universality and absoluteness which are the hallmarks of
human rights” such that this category of rights only debilitates, muddies and
obscures the true essence of human rights).
77 The right to work.
78 The right of everyone to the enjoyment of just and favorable conditions of
work.
79 The right to form trade unions and to strike.
80 The right of everyone to social security.
81 Family-type rights (right to marry, assistance to families, paid maternity
leave).
82 The right of everyone to an “adequate standard of living for himself and his
family, including adequate food, clothing and housing, and to the continuous
improvement of living conditions.”
83 The “fundamental right of everyone to be free from hunger.
84 The right to the “enjoyment of the highest attainable standard of physical
and mental health.”
85 The right to education.
86 See MALCOLM NATHAN SHAW, INTERNATIONAL LAW 178 (2003) (stating that
Article 1 of the Montevideo Convention on Rights and Duties of States, 1933
lays down the most widely accepted formulation of the criteria of statehood in
international law). It notes that the state as an international person should pos-
sess the following qualifications: (a) a permanent population; (b) a defined ter-
ritory; (c) government; and (d) capacity to enter into relations with other states.
See also, PERSPECTIVES ON INTERNATIONAL LAW 20 (Nandasiri Jasentuliyana ed.
1995) (stating that the traditional definitions provided for in the Montevideo
Convention remain generally accepted as applied to states).
87 See JOHN W. BRUCE ET AL., LAND LAW REFORM: ACHIEVING DEVELOPMENT
POLICY OBJECTIVES, THE WORLD BANK 15 (2006) (stating that property rights in
land are, under international law, largely the business of nation states and that
a state has the right to establish its own property system so long as it is not
repugnant to international law).
88 See ICCPR, supra note 67, art. 2.3(a)–(b) and ICESCR, supra note 72, art.
11 (protecting the right to “an adequate standard of living for himself and his
family, including adequate food, clothing and housing, and to the continuous
improvement of living conditions”).
89 See ICCPR, supra note 67, art. 4 (“In time of public emergency which
threatens the life of the nation and the existence” States Parties “may take
measures derogating from their obligations . . . provided that such measures
are not inconsistent with their other obligations under international law and do
not involve discrimination solely on the ground of race, color, sex, language,
religion or social origin.”); VAN BOVEN, supra note 65 (and accompanying text);
infra note 113 (and accompanying text).
90 Land rights have been more fully developed in the sphere of indigenous
rights. Women’s rights are recognized by several international documents,
primarily the Universal Declaration of Human Rights (Articles 17 and 25);
International Covenant on Civil and Political Rights (Article 17); International
Covenant on Economic, Social and Cultural Rights (Article 11); CEDAW
(Articles 13–16).
91 International Labour Organization, Convention 169, Indig-
enous and Tribal Peoples Convention, opened for signature
Jun. 27, 1989, available at http://www.ilo.org/dyn/normlex/
62 SUSTAINABLE DEVELOPMENT LAW & POLICY
en/f?p=1000:12100:0::NO::P12100_INSTRUMENT_ID:312314 [hereinafter
Convention 169]. To date, Convention 169 has only been ratified by 20 States,
most of them in Latin America.
92 Id. art 1.
93 See id. art. 14.
94 Id.
95 Id.
96 Despite their lack of legal force, the species of agreements termed Declara-
tions under the UN framework create an important source of international law
that scholars have classified as “soft law.” Soft law, as the term suggests, is not
legally enforceable but is important for its potential to develop into international
norms and generate consensus around binding agreements.
97 United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res.
61/295, U.N. Doc. A/RES/61/295, art. 26(1) (Sept. 13, 2007), 46 I.L.M. 1013
(2007). A Declaration is adopted by the UN General Assembly but is not legally
binding on state parties. It is the main component of “soft law,” a nonetheless
important source of international law for its potential to morph into legally
binding agreements.
98 See id. art. 26(2), 28.
99 See id. art. 10, 28, 29, 32; Convention 169, supra note 91, art. 6 (requiring
governments to consult the peoples concerned, through appropriate procedures
and in particular through their representative institutions, whenever consider-
ation is being given to legislative or administrative measures which may affect
them directly).
100 See Decision Regarding Communication 155/96 (Social and Economic
Rights Action Center/Center for Economic and Social Rights v. Nigeria). Case
No. ACHPR/COMM/A044/1, available at http://www.umn.edu/humanrts/
africa/comcases/allcases.html [hereinafter SERAC v. Nigeria] (holding that the
Nigerian government had violated several provisions of the African Charter, a
human rights treaty to which most African states are party).
101 African [Banjul] Char ter on Human and Peoples’ Rights, adopted June 27,
1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force
Oct. 21, 1986 [hereinafter Banjul Charter]. The African Charter on Human
and People’s Rights is the regional human rights treaty for Africa. Article 24
provides: “All peoples shall have the right to a general satisfactory environment
favorable to their development.Id. art. 24. See SERAC v. Nigeria, supra note
100.
102 See Ber nard Oxman and Dinah Shelton, International Decision, 96 AM. J.
INTL L. 941 (Oct. 2002).
103 Id. at 942.
104 Banjul Char ter, supra note 101, art. 14 (“The right to property shall be
guaranteed. It may only be encroached upon in the interest of public need or in
the general interest of the community and in accordance with the provisions of
appropriate laws.”).
105 See generally SERAC v. Nigeria, supra note 100; Endorois, supra note 9.
106 See Endorois, supra note 9 ¶ 60.
107 Id. ¶ 1-2.
108 Id. ¶ 2. (noting that the Endorois’ argued that they have always been the
bona fide owners of the land around Lake Bogoria, contending that as a pasto-
ralist community, their concept of “ownership” has not been one of paper, but
one where the Endorois land belongs to the entire community as a whole and
nothing that the Kenyan government argued against giving the Endorois title
to their ancestral lands, preferring instead to give them “access” to ceremonial
sites for their religious practices).
109 Ar ticle 8 of the African Charter guarantees the right to practice religion.
Banjul Charter, supra note 101, art. 8 (guaranteeing the right to practice reli-
gion), art. 14 (guaranteeing the right to property), art. 17(2) (guaranteeing the
right to “freely take part in the cultural life” of one’s community), art. 21 (pro-
tecting the right to free disposition of natural resources, stating that “All peoples
shall freely dispose of their wealth and natural resources. This right shall be
exercised in the exclusive interest of the people. In no case shall a people be
deprived of it.”).
110 Endorois, supra note 9, ¶ 22.
111 Id. ¶ 175.
112 Id. ¶ 175-176.
113 Id. ¶ 186 (looking to Malawi African Association and Others v. Mauritania
to guide its analysis).
114 Id. ¶ 206.
115 Id. ¶ 207, (citing The Mayagna (Sumo) Awas Tingni v. Nicaragua, IACtHR
(2001), ¶¶ 140(b) and 151) (stating that possession of the land should suffice for
indigenous communities lacking real title to obtain official recognition of that
property).
116 Id. ¶ 209 (holding that those Endorois who were forced to leave against
their will did not lose title to those lands by virtue of leaving, unless those lands
were transferred to innocent third parties).
117 Id. ¶ 191, 267.
118 See infra note 127 (and accompanying text) (explaining the distinction
between individual and “peoples” rights under the Banjul Charter). Banjul
Charter, supra note 101, art. 14.
119 Even though the traditional inter national trajectory of human rights law
has focused on the individual, the African Charter is divided into two broad
categories of rights: individual human rights, and rights that can be claimed
collectively, or “peoples’ rights.” Articles 20, 21, 22, 23, and 14 provide that
peoples retain the rights collectively. See SERAC v. Nigeria, supra note 100, ¶
40 (“the importance of community and collective identity in African culture is
recognized throughout the African Charter”); Banjul Charter, supra note 101,
art. 21.
120 Endorois, supra note 9, ¶ 211.
121 Id. ¶ 191.
122 Id.
123 Id.
124 Case of the Saramaka People v. Suriname, IACtHR, Judgment of August
12, 2008 (upholding the right of the Saramaka people to refuse access to log-
ging operations on their native lands).
125 Id. ¶ 211.
126 Id. ¶ 215.
127 Id. ¶ 212 (“the [public interest] test is more stringent when applied to ances-
tral land rights of indigenous peoples”); see also, Nazila Ghanea and Alexandra
Xanthaki Indigenous Peoples’ Right to Land and Natural Resources in MINORI-
TIES, PEOPLES AND SELF-DETERMINATION (Erica-Irene Daes ed., 2005) (“Limita-
tions, if any, on the right to indigenous peoples to their natural resources must
flow only from the most urgent and compelling interest of the state”).
128 Id. ¶ 200. See also Committee on Economic, Social and Cultural Rights,
General Comment 4, The Right to Adequate Housing (Sixth Session, 1991) ¶
18, U.N. Doc. E/1992/23, annex III at 114 (1991), reprinted in Compilation
of General Comments and General Recommendations Adopted by the Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 18 (2003).
129 See ICCPR, supra note 67, art. 4 (“In time of public emergency which
threatens the life of the nation and the existence of which is officially pro-
claimed, the States Parties to the present Covenant may take measures derogat-
ing from their obligations under the present Covenant.).”
130 See supra notes 16-17 (and accompanying text) (describing the salient
purposes of land reform in modern-day post-colonial nations to reduce poverty
and decrease economic disparities).
131 See CHIGARA, supra note 2, at 213 (2004) (arguing that land reform poli-
cies that ignore the requirement of the principle of the rule of law cannot be
regarded as legitimate and efficient strategies for the resolution of the issue of
inequitable land distribution in the SADC).
132 Endorois, supra note 9, ¶ 219 (stating that the Kenyan government bore
the burden of demonstrating that the removal satisfied both international and
Kenyan law).
133 Id.
134 See Endorois, supra note 9; Saramaka, supra note 124. The compensation
requirement is the only one of the three that is probably directly applicable only
in the case of expropriation of land from indigenous peoples. In the case of land
redistribution to transfer land concentrated in a relatively few hands to previ-
ously disenfranchised groups, the right to compensation under this land reform
standard is only triggered where the expropriation is not carried out consistently
with (1) a legitimate public purpose; (2) in accordance with domestic and
applicable international norms; (3) proportionality; and (4) non-discriminatory
design. See infra Part IV. E.
135 See id. (explaining the more nuanced right to compensation under the land
reform standard proposed here, unlike the right to compensation derived from
the human right to property by both the Inter-American Court and the African
Commission in Saramaka and Endorois respectively).
136 See Endorois v. Kenya, supra note 9, ¶ 213.
137 Endorois, supra note 9, ¶ 214 (finding that in pursuit of creating a Game
Reserve, the Republic of Kenya had unlawfully evicted the Endorois, an act
disproportionate to any public need served by the Game Reserve.)
138 Id. ¶ 213, citing The Constitutional Rights Project Case 1999, African Com-
mission on Human and Peoples’ Rights, Comm. Nos. 140/94, 141/94, 145/95 ¶
42 (1999).
139 Id. ¶ 215.
140 Handyside v. U.K. (No. 5493/72), Eur. Ct. H.R., ¶ 49 (1976).
632012–2013
141 See, e.g., Protocol Additional to the Geneva Conventions of Aug. 12, 1949
and Relating to the Protection of Victims of International Armed Conflicts
(Protocol I), Dec. 12, 1977, U.N. Doc.A/32/144, Annex I, reprinted in 16 I.L.M.
1391 (1978).
142 See ICCPR, Van Boven, supra note 89 (and accompanying text).
143 ICCPR, supra note 67, art. 4, 24, and 26. See, e.g. Convention on the Elimi-
nation of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249
U.N.T.S. 13.
144 See supra note 54 (and accompanying text) (explaining the root of the
human rights concept back to founding texts which unanimously uphold the
idea of protecting human dignity and preserving personhood).
145 According to Human Rights Watch, the Lake Bogoria region over which
the Endorois v. Kenya judicial battle centered is considered to have great
tourism potential due to its hot springs and abundant wildlife, including one
of Africa’s largest populations of flamingos. Kenya: Landmark Ruling on
Indigenous Rights, HUMAN RIGHTS WATCH (Feb. 4, 2010), http://www.hrw.org/
news/2010/02/04/kenya-landmark-ruling-indigenous-land-rights.
146 See American Convention on Human Rights, Nov. 21, 1969, 1144 U.N.T.S.
143, art. 63(1) (“[If] the Court finds that there has been a violation of a right
or freedom protected by the Convention, the Court shall rule that the injured
party be ensured the enjoyment of his right or freedom that was violated. It
shall also rule, if appropriate that the consequences of the measure or situation
that constituted the breach of such right or freedom be remedied and that fair
compensation be paid to the injured party.”).
147 Banjul Char ter, supra note 101, art. 21.
148 This is equivalent to the notion of specific performance, as it would require
the Kenyan government to bring the Endorois back onto their land, with full
legal title to it. Endorois, supra note 9, ¶ 209.
149 See ICCPR, Van Boven, supra note 89 (and accompanying text).
Endnotes: ISLAMIC FINANCE AS A MECHANISM FOR BOLSTERING FOOD SECURITY IN THE MIDDLE EAST: FOOD SECURITY
WAQF continued from page 35
36 THE WORD BANK, FOOD SECURITY IN THE MIDDLE EAST AND NORTH AFRICA,
INTERVIEW WITH JULIAN LAMPIETTI, LEAD RURAL DEVELOPMENT SECTOR, April 2009,
available at http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/
MENAEXT/0,,contentMDK:22148641~pagePK:146736~piPK:146830~theSit
ePK:256299,00.html.
37 See Brisinger et al., supra note 7, at 1.
38 Unmanageable (or ill managed) rises in food prices in countries like Egypt
have long been a key cause of public disaffection. In the case of Egypt, progres-
sively decreasing food purchasing power—a stark reminder to any consumer of
economic hardship—contributed to the uprisings of January 2011. The adverse
impacts of rising food prices and the reliance on government subsidies for
basic food staples by the poor in Egypt was illustrated most tragically in 2008,
when at least 11 people died while standing in line for government-subsidized
bread. The level of frustration with government subsidies and food prices was
powerfully described by an Egyptian man who said of the subsidized bread
system (and unemployment) in Egypt: “This is a rotten system . . . I come
here every day. I have no work, so this is my job. Waiting for bread.” Cynthia
Johnson, In Egypt, Long Queues for Bread That’s Almost Free, REUTERS,
(Apr. 6, 2008), available at http://www.reuters.com/article/2008/04/06/
us-agflation-subsidies-idUSL0404033220080406.
39 GCC member states, which rely heavily on expatriate labor, have a clear
interest in ensuring food affordability and balance of overall cost-of-living
among expatriate residents, who, with the exception of Saudi Arabia, Oman,
Bahrain, significantly outnumber, or in the case of Kuwait, are nearly equal in
number to, native residents. Michael Strum & Nikolaus Siegfried, Regional
Monetary Integration in the Member States of the Gulf Cooperation Council,
EUROPEAN CENTRAL BANK OCCASIONAL PAPER SERIES No. 31, June 2005, at 20.
40 Von Braun & Meinzen-Dick, supra note 20.
41 See Spieldoch & Murphy, supra note 19, at 42.
42 For example, in Egypt and Morocco, farmers account for 60% of the poor,
but earn only 40% of their income through farming. Yemstov, supra note 7.
43 For an introductory discussion of Islamic Finance and the economic
principles and objectives of Shari’ah, see Muhammad Ayub, UNDERSTANDING
ISLAMIC FINANCE 21 (2007).
44 See, e.g., Camilla Hall, Islamic banking: Impressive Growth Underscores
Success, FINANCIAL TIMES, (March 27, 2012), available at http://www.ft.com/
cms/s/0/09a99422-7291-11e1-9be9-00144feab49a.html#axzz2JljKEfCH.
45 See Salman Syed Ali & Ausaf Ahmad, An Overview, in ISLAMIC BANKING
AND FINANCE: FUNDAMENTALS AND CONTEMPORARY ISSUES, 1, 2 (Salman Syed Ali
& Ausaf Ahmad eds., 2007).
46 KUWAIT FINANCE HOUSE, About KFH, Growth of Islamic Finance http://
www.kfh.com/en/about/index.aspx (last visited February 4, 2013).
47 See Ali & Ahmad, supra note 45, at 2-3.
48 See GOLDEN OPPORTUNITY: THE SHARIA-COMPLIANT FINANCE
INDUSTRY IS POISED FOR A SEA CHANGE, OXFORD BUSINESS GROUP,
(2011) available at www.oxfordbusinessgroup.com/news/
golden-opportunity-sharia-compliant-finance-industry-poised-sea-change.
49 Robert B Gray, Islamic Finance: Is the Time Ripe for a Private Sector Trade
Association?, THE WORLD FINANCIAL REVIEW (2012), available at www.worldfi-
nancialreview.com/?p=238.
50 Mit Ghamr Savings Bank, established in Egypt in 1963, was the first
twentieth century Islamic financial institution. Notably, the Islamic Develop-
ment Bank was born of an Egyptian study presented to the Organisation of the
Islamic Conference (OIC). See, e.g., NAZIH N. AYUBI, POLITICAL ISLAM: RELIGION
AND POLITICS IN THE ARAB WORLD 136-37 (Routledge 1991).
51 See, e.g. Massoud Hayoun, Who’s Afraid of Islamic Finance?, THE ATLAN-
TIC, Mar. 30, 2012, available at www.theatlantic.com/business/archive/2012/03/
whos-afraid-of-islamic-finance/255265/.
52 This is not to say, and should not be construed to suggest, that Islamic
economic principles prohibit or discourage profit-making. Indeed, lawful (e.g.,
non –usurious, transparent) trade and investment for profit are encouraged by
Islam. See, e.g., Abu Umar Faruq Ahmad & M. Kabir Hassan, The Time Value
Concept of Money in Islamic Finance, 23 THE AMERICAN JOURNAL OF ISLAMIC
SOCIAL SCIENCES 66, 67-68 (2011). The Prophet Mohammed, who was himself
a businessman, is reported to have said: “There is no harm in riches for the one
who has piety.” Abdul-Azeem Badawi, infra note 74, at 456.
53 See, e.g., U.N. FOOD AND AGRICULTURE ORGANIZATION, supra note 15, at
27-28 (Pointing out the drawbacks of conventional economic thought in solving
the food crisis). The waqf-based and other frameworks under development by
the author address the ethics deficit in various ways, including with positive and
negative incentives, such as: (1) including farmers as financial stakeholders in
agricultural investment structures; (2) enhancing investment value (by favorable
regulation, transactional incentives, or other means) for investors who commit
to supporting auxiliary benefits for impacted communities (e.g., infrastructure
development, etc.); (3) incorporating mechanisms to directly and indirectly
raise transaction costs to investors and host governments where investments
displace or disenfranchise local farmers or other parties without compensation;
and, (4) where feasible, encouraging relevant entities (e.g., development banks)
to incorporate into development assistance eligibility and terms criteria, factors
that discourage host governments from conducting transactions that displace or
undermine the land interests of local populations, or are inconsistent with key
agricultural investment principles, such as The Principles for Responsible Agri-
cultural Investment (PRAI) developed jointly by the UNCTAD, FAO, IFAD and
the World Bank.
54 See generally Ahmad Al-Raysuni, IMAM AL-SHATIBIS THEORY OF THE HIGHER
OBJECTIVES AND INTENTS OF ISLAMIC LAW 421 (Nancy Roberts trans., The Interna-
tional Institute of Islamic Thought 2005) (defining maqid al-Shari’ah).
55 In this article, the terms “Islamic Law” and “Shari’ah” are used inter-
changeably. And the following definitions are used herein: Fiqh is the “study
and application of Islamic legal rulings as based upon detailed evidence; the
corpus of practical legal rulings in Islam”; Faqh (pl. fuqah) is “a scholar of
Islamic jurisprudence who concerns himself with the details of Islamic legal
rulings and their legal bases”; Maqid or Maqid al-Shari’ah is the “higher
objectives of Islamic law in general”; ul al-Fiqh is “the principles or funda-
mentals of Islamic jurisprudence”; and, Ul (pl. ulliyyn) is a “scholar who
devotes himself to the study of the principles of Islamic Jurisprudence (ul
al-Fiqh).” See id. at 421-25.
56 Id. at 22-25.
57 Id. at 22-23. According to some sources, there was some disagreement
amongst influential classical scholars as to the ordering of the third and fourth
categories of “essentials”, specifically whether the preservation of the faculty
64 SUSTAINABLE DEVELOPMENT LAW & POLICY
of reason should trump the preservation of progeny. Id. at 26. It should be noted
further that with respect to the preservation of “progeny”, Hanafi school think-
ers used the often referred to the preservation of “family lineage” or nasab,
rather than “progeny”—but the terms appear to have been used interchangeably.
Id.
58 Id. at 31 (discussing commentaries on a book written by Izz al-Din ibn Abd
al-Salam and attributing to him the statement that all Islamic legal rulings are
“contained within” the quoted Qur’anic verse (aya)). A reference, such as the
foregoing, to specific Qur’anic text (i.e., QURAN 16:90) corresponds with a
numbered chapter (sura) and verse(s) (within chapters) of the Qur’an.
59 Id. (discussing service of mankind as a component of preserving the
religion).
60 Id.
61 Id. at 23 (discussing the contribution of ul Sayf al-Din al-Amidi to the
development and refinement of the five “essentials” of Maqid).
62 Id. at 32.
63 LAW OF WAQF IN ISLAM 78 (Tauqir Mohammad Khan et al. eds., Pentagon
Press 2007) (discussing the religious significance of a charitable or waqf con-
tribution as an act of religious worship because such a contribution constitutes
a service to humankind. “A dedication ‘solely to the worship of God’ is . . . [not
a meaningful] phrase in Islam . . . Everything which is dedicated to God is in
reality for the good of mankind; and everything which is dedicated for the good
of human beings, individually or collectively, . . . [is] for the service of God.”
Al-Raysuni, supra note 54, at 32.
64 In this article, the waqf structure is considered an instrument of Islamic
Finance. Islamic Financial Institutions are required to contribute a portion of
their profits to zakat (charity). Beyond that, profits obtained by Islamic Finance
Institutions in violation of Shari’ah (e.g., through interest) are also donated to
charity. Public awqaf are among the parties eligible to receive zakat, and in a
coordinated environment, a food security or other waqf could benefit from the
zakat contributions of Islamic Financial Institutions, companies, individuals,
and other parties.
65 As noted below, the waqf is a kind of trust or endowment through which
assets are allocated and preserved for a designated period of time or in perpetu-
ity in the service of specified beneficiaries for charitable, social welfare, devel-
opment, or intra-family wealth distribution purposes. The author has developed
tailored waqf-based and equity-based financing and investment frameworks
designed to advance food security and other public objectives. The use of other,
commercial and capital markets, Islamic finance forms for agriculture invest-
ment and food security will be discussed in a separate writing.
66 A high ranking Arab diplomat in Washington, D.C. recently reminded me of
the deterrent power of political and legal risk associated with sovereign and pri-
vate agriculture and food security investment across borders in the Middle East.
In no uncertain terms, the official described the skepticism with which some
Arab governments and officials view agriculture and food security cooperation
among Arab governments. The official informed me that agriculture and food
security investment in non-Middle East jurisdictions (such as in Asia), while
financially and geographically less advantageous, is viewed as a politically
and legally stable alternative to Middle East investment risk, which the official
believed had intensified in the wake of the “Arab Spring.
67 It is important to note that while instances of government interference with
waqf assets are relatively infrequent (when compared with interference with
purely commercial vehicles), the administration of awqaf by government is
widely practiced; and in some cases, the administration of private awqaf have
been overtaken by government authorities, often after decades or more since
initial waqf establishment. The supplanting of private administration with
government administration has more often occurred in connection with pubic
or general-purpose awqaf (e.g., general purpose waqf for the poor), usually
through the transfer of waqf administration from originally designated trustees
to the state, through its ministries or departments of awqaf. But in the case
of awqaf (as opposed to non-waqf structures), awqaf properties and purposes
typically are preserved—only the administration of the waqf is nationalized or
rendered a government function. In the case of nationalization of commercial
or other assets held, for example, by a corporation, the assets themselves are
appropriated.
68 The Arabic term Hadith (pl. ahadith) refers in this context to the collective
authenticated accounts of the deeds and utterances of the Prophet Mohammed.
The deeds and utterances of the Prophet, collectively, are Sunnah.
69 Dr. Muhammad Muhsin Khan, Summarized Sahih Al-Bukhari (Arabic-
English) 505 (1st ed. 1996).
70 Id.
71 Id. at 508.
72 Id. at 507.
73 Id.
74 Abdul-Azeem Badawi, THE CONCISE PRESENTATION OF THE FIQH OF THE SUN-
NAH AND THE NOBLE BOOK 476-78 (Jamaal al-Din M. Zarabozo trans., Interna-
tional Islamic Publishing House 2007).
75 See generally Gharar – Explained, ISLAMICBANKER.COM, http://www.
islamicbanker.com/educationarticles/gharar (last visited Jan. 11, 2012) (discuss-
ing the various definitions of Gharar, including uncertainty, risk, hazard and
deceit).
76 Badawi, supra note 74, at 478-79 (The Prophet Mohammed encouraged
the cultivation of “dead lands”, where the land was not being cultivated and the
previous owner was unknown. On this subject the Prophet is reported to have
stated: “Whoever cultivates the land that does not belong to anyone has the most
right to it.” (emphasis added). The preference for the productive use of land,
rather than its waste, is well established in Islamic law and custom, and under-
pins the doctrine of ihya’ al mawat (literally, “revival of the dead”, referring to
land). This encouragement of land cultivation and its association with prefer-
ential rights seems compatible with common law legal doctrines like adverse
possession, which also encourages the development of land and property).
77 THE HANS WEHR DICTIONARY OF MODERN WRITTEN ARABIC, 1278-80, 81 (JM
Cowan, ed., Spoken Language Services, Inc. (1994) (1961). (The Arabic term
waqf means to stop or to halt, and in the case of the Islamic endowment, the
term waqf (pl. awqaf) refers to sequestration of assets for charitable purposes by
donation, bequest, grant, or the establishment of a religious endowment. Waqif
(pl. waqifah) is the donor or grantor of waqf assets (or the waqf corpus) and is
analogous to the donor or grantor of a trust. A waqf is administered by a waqf
nazir (one or more natural or juridical persons (pl. nuzzar)). The term waqf is
interchangeable with the term “habs”, which means to actively hold (as in hold
in custody), apprehend, block, or confine. In the case of property or other assets,
habs means to “tie up [or] invest inalienably”, “to devote entirely to” or to “tie
up in inalienably” particularly for “a pious purpose.” The writing in which the
waqf terms are set forth is typically referred to as a waqiffiya.)
78 E.g., Summarized Sahih Al-Bukhari, supra note 69, at 51-52. (There is
debate as to whether it is permissible to fix the lifetime of a waqf. Historically,
awqaf have been perpetual (unless extinguished by circumstances, such as the
demise of the waqf assets) and many scholars and commentators contend that
waqf must be perpetual, as a matter of Shari’ah. Some scholars have stated that
it is permissible to establish a temporary waqf, but only in the case of familial
(ahli) waqf. Others, particularly in the Maliki School, believe it is permissible to
fix the duration of waqf, if the duration is specified by the waqif in a valid waqf
establishment declaration.)
79 Ahmad Al-Raysuni, Islamic Waqf Endowment Scope and Implications,
(2012), available at www.isesco.org.ma [hereinafter “AL-RAYSUNI ON WAQF”]
(quoting the definition of waqf by Hanbali scholar Muwaffiq Addin bin
Qudama). This source is not paginated and therefore page references to this
source are not provided herein.
80 Henry Hansmann and Ugo Mattei, The Functions of Trust Law: A Com-
parative Legal and Economic Analysis, 73 N.Y.U. L. Rev. 434, 435 (1998).
81 Dr. Eisa Al-Enizy, The Environmental Protection in the Islamic Waqf 14
(Selected Works, Sept. 2009).
82 Al-Raysuni on Waqf, supra note 79 (Some scholars and commentators have
suggested that only immovable assets (real estate, buildings) are waqf-eligible,
due to their long life and fixed nature. But it appears that a consensus, if not a
majority, of scholars and commentators are of the view that immovable assets
are waqf-eligible. As explained by one contemporary scholar, “[T]he most
comprehensive analysis in this matter is that of Ibn Qudama. . . [who] states
[that] ‘in sum, what is permissible for waqf endowment is what can be sold and
benefited from while it is a capital asset remains linked with its stock such as
real estate, animals, arms, furniture and the like. This means what cannot be
benefited from while it is a capital asset remains such as dinars, dirhams, food
and drink, candles and the like, cannot be waqf endowed for most canonists and
scholars.’”); LAW OF WAQF IN ISLAM, supra note 63, at 3. (A broader and more
clearly policy-driven formulation of this view is: “[E]very kind of property,
immovable as well as moveable, every object in fact which is capable of being
possessed or being reduced to possession actually or constructively, equally
with interest in trade, commerce, or investments—is a fit and lawful subject of
Waqf.”).
83 LAW OF WAQF IN ISLAM, supra note 63, at 3.
84 LAW OF WAQF IN ISLAM, supra note 63, at 3.
85 Where the waqf declaration does not designate successor beneficiaries, the
waqf proceeds will be distributed to appropriate beneficiaries, such as the poor
or other classes of beneficiaries consistent with the purposes of the waqf.
652012–2013
86 THE HANS WEHR DICTIONARY OF MODERN WRITTEN ARABIC, supra note 77, at
1288 (The waqf nazir is also referred to as a mutawalli, an Arabic term derived
from the root “waliya”, which among other meanings, includes to “manage,
run, administer” and to “be entrusted.”); SIRAJ SAIT & HILARY LIM, supra note
16, at 155 (Vis-à-vis the waqf, its assets, and its beneficiaries, the waqf nazir
is a fiduciary and is required to administer a waqf, maintain its assets, serve
its beneficiaries, and discharge her duties in accordance with the waqf terms,
Shari’ah, and other applicable law. Researchers of awqaf have described cases
in which, for example, a waqf nazir was sued by “respectable citizens, invari-
ably headed by ulama [religious scholars]”, for failure to administer a waqf in
accordance with its terms, Shari’ah, other law, or Islamic principles generally.
Specific allegations in such instances, include “failure to provide food measur-
ing up to the traditional standard in the kitchen”, in a case from Turkey, and
from the records of twentieth century Shari’ah courts in Jerusalem, “neglect,
mismanagement, and embezzlement, sometimes leading to the dismissal of the
mutawallli.”) (discussing Gerber, H., The Public Sphere and Civil Society, in
THE PUBLIC SPHERE IN MUSLIM SOCIETIES (M. Hoexter, S.N. Eisenstadt and N.
Levtzion eds., Albany: State University of New York Press 2002) and Reiter, Y.
The Administration and Supervision of Waqf Properties in Twentieth Century
Jerusalem, in LE WAQF DANS LE MONDE MUSULMAN CONTEMPORIAN (XIXE-XXE
SIÈCLES) (F. Bilici ed., Istanbul: Institut Francais d ’Etudes Anatoliennes 1994)).
87 SIRAJ SAIT & HILARY LIM, supra note 14, at 151 (quoting Benthall, J.,
Organized Charity in the Arab-Islamic World: A View from the NGO’s, at 153, in
H. Donnan (ed.) Interpreting Islam, London: Sage). The verbal declaration of
waqf terms is acceptable according to some scholars and in some jurisdictions,
so long as the declaration is made by a person having the requisite legal and
mental capacity. For example, it has been reported that in Oman, “‘almost all
waqf property is held on trust by word of mouth tradition…and this tradition
continues even in the modern state, though gradually the legal status of waqf
property is being formalized.’”).
88 E.g., LAW OF WAQF IN ISLAM, supra note 63, at 50.
89 See, e.g., SIRAJ SAIT & HILARY LIM, supra note 14, at 168-69; See also
Ahmed Hamad, The New Waqf (Islamic Trust) Law in the Emirate of Sharjah
Law Update, (Al Tamimi & Co. June 2011) (The Emirate of Sharjah, United
Arab Emirates, recently passed a law that confirms the independent legal status
of awqaf and expressly permits awqaf to hold moveable assets and sue and
be sued); News Release, Ernst & Young, Islamic Endowments to Accelerate
Growth of Islamic Finance (Dec. 19, 2010). (Laws such as that adopted by the
Emirate of Sharjah appear to recognize not only the modern potential of awqaf
as vehicles for the transfer and management of assets for familial and public
purposes, but also the growing interest in awqaf among asset managers and
other financial services providers. In 2010, Ernst & Young estimated the value
of the global “Waqf sector” at $105 billion, with an estimated $35 billion of that
total comprised of cash waqf and the remainder in the form of real estate. The
firm’s Head of Islamic Financial Services stated: “The opportunity cost in terms
of foregone [waqf] wealth is staggering. The Cash Waqf sector would potentially
generate an incremental $2-3 billion annually, simply by aligning with profes-
sional investment managers.”).
90 SIRAJ SAIT & HILARY LIM, supra note 14, at 155 (citing Yediyildiz, B.,
Maessese-Toplum Minisebetleri Cercevesinde XVIII, Asir Turk Tomplumu ve
Vakif Mu essesesi, Vaka, flar Dergisi at 15 (1982)) (This article is concerned
with the social and developmental objectives of waqf. Therefore, the family
(ahli) waqf will not be discussed herein. According to a study of eighteenth
century Ottoman awqaf records, no more than seven percent of awqaf were
family only waqf. Without more information about this study, such as the
extent to which waqf instruments were written, recorded, accurate, the specific
time period(s) covered by the records, the representativeness of the records of
broader waqf practice, etc., it is difficult to know whether, and to what extent,
this data reflects waqf practice more broadly.); SIRAJ SAIT & HILARY LIM, supra
note 14, at 150. (Context might explain why, in the eighteenth century Ottoman
Empire, public awqaf might have so significantly outnumbered family awqaf.
Ottoman rulers’ viewed the role of government, according to one source, as
primarily to provide security, defense, and tax collection. This, perhaps, left a
void in public services and social welfare that may have been filled partially by
awqaf (which Ottoman rulers also actively established)).
91 See, e.g., Randi Deguilhem, The Waqf in the City, THE CITY IN THE ISLAMIC
WORLD 926 (Salma K. Jayussi et. al. eds., Brill 2008) (describing the lending
of waqf-owned funds for profit); Al-Raysuni on Waqf, supra note 79; See also
SIRAJ SAIT & HILARY LIM, supra note 14, at 154 (explaining that cash waqf “were
an important source of credit, with the endowed capital lent to borrowers [for
profit].” And profit earned was used for “charitable purposes, after any deduc-
tions for expenses incurred by the . . . [waqf] nazir and any taxes. Money earned
through provision of credit that was not distributed according to the terms of
the waqf in any particular year was added to the endowed capital.” According
to a survey, “about 10 per cent of the total eighteenth-century population of
Bursa [in modern Turkey], which averaged about 60,000 inhabitants during that
period, borrowed from cash awqaf.”)
92 Al-Raysuni on Waqf, supra note 79.
93 Al-Raysuni on Waqf, supra note 79.
94 Al-Raysuni on Waqf, supra note 79.
95 Al-Raysuni on Waqf, supra note 79.
96 Al-Raysuni on Waqf, supra note 79.
97 See, e.g. Deguilhem, supra note 91, at 930; Al-Raysuni on Waqf, supra note 79.
98 See Deguilhem, supra note 91, at 930.
99 Id. at 928.
100 Id.
101 SIRAJ SAIT & HILARY LIM, supra note 14, at 147.
102 Deguilhem, supra note 91, at 930. See also Al-Raysuni, supra note 54.
103 Deguilhem, supra note 91, at 932 (discussing a mid-17th century waqf
established in Aleppo by its governor Ipshir pasha, which consisted of various
types of revenue-generating commercial properties, the earnings from which
were used to fund Islamic religious sites).
104 Deguilhem, supra note 91, at 933-34 (discussing the endowment of agri-
cultural land in Central Asia and in Iran, where the endowment of agricultural
land is “traditional” and also discussing the endowment of agricultural land in
India).
105 Deguilhem, supra note 91, at 934-35 (discussing the construction in Aleppo
of commercial buildings over five hectares of land with the rent proceeds going
to waqf to fund the construction of the architecturally formidable al-Khusrawi-
yya mosque).
106 Deguilhem, supra note 91, at 935 (discussing “the intertwined nature and
large networks of waqf assets dispersed over large areas”).
107 Deguilhem, supra note 91, at 939.
108 Deguilhem, supra note 91, at 940-41 (discussing the establishment of waqf
by a husband and wife for the benefit of themselves and their children and the
establishment of “guild waqf” in the Ottoman empire for the benefit of needy
guild members and their family members).
109 Id. at 942 (discussing various examples including, most notably, various
awqaf established for the benefit of the Two Holy Mosques, al-Aqsa Mosque,
Al-Azhar, and the Great Umayyad Mosque).
110 SIRAJ SAIT & HILARY LIM, supra note 14, at 147. “Even a lighthouse on the
Romanian coast was established under the waqf system.” Id. at 150 (quoting
Kuran, T., The Provision of Public Goods under Islamic Law: Origins, Impact,
and Limitations of the Waqf System, Law and Society Review, 35, 4, 2001).
111 Deguilhem, supra note 91, at 934.
112 Schaffnit-Chatterjee, supra note 1, at 9.
113 Schaffnit-Chatterjee, supra note 1, at 10, 16.
114 Schaffnit-Chatterjee, supra note 1, at 15.
115 Schaffnit-Chatterjee, supra note 1, at 28-30.
116 Schaffnit-Chatterjee, supra note 1, at 18-21.
117 That said, the historical treatment and usage of the waqf structure has not
been without flaws. In contemporary practice, waqf assets under state admin-
istration have suffered from mismanagement or interference. These realities
should be acknowledged and addressed when the waqf structure is employed,
particularly for public purposes. On balance, however, the benefits of waqf
practice over time (which remain today) outweigh the burdens of waqf misuse.
118 Dr. Eissa Zaki, A Summary of Waqf Regulations, 11 (Kuwait Pub. Found.,
2006).
119 See, e.g., Hansmann and Mattei, supra note 80, at 446-66 (discussing the
relatively low transaction costs associated with the trust structure – the same is
true of the common law trust).
66 SUSTAINABLE DEVELOPMENT LAW & POLICY
Endnotes: EDIBLE COMMUNITIES: INSTITUTIONALIZING THE LAWN-TO-GARDEN MOVEMENT TO PROMOTE FOOD
INDEPENDENCE FOR LOW-INCOME FAMILIES continued from page 36
1 Steve Martinez et al., Local Food Systems: Concepts, Impacts, and Issues,
U.S. DEPT OF AGRIC. (USDA) 2, 39-41 (2010), http://www.ers.usda.gov/
media/122868/err97_1_.pdf (highlighting the 2009 launch of the USDA’s
“Know your Farmer, Know Your Food” initiative that includes funding and
various programs that connect consumers with local producers); see also
The People’s Garden Grant Program, USDA.GOV, http://www.usda.gov/
wps/portal/usda/usdahome?navid=GARDEN_RT5&parentnav=PEOPLES_
GARDEN&navtype=RT (summarizing various federally-funded local garden
initiatives targeting low income groups) (last visited Nov. 13, 2012).
2 See, e.g., Megan Galey and A. Bryan Endres, Locating the Boundaries of
Sustainable Agriculture, 17 NEXUS: CHAP. J. L. & POLY 3, 10-11 (2012); but see
Access to Affordable and Nutritious Food: Measuring and Understanding Food
Deserts and Their Consequences, U.S. DEPT OF AGRIC., 57 (2009) (stating that a
review of relevant empirical literature shows that “I[i]ncreased access to healthy
foods alone, without decreased consumption of all other foods, will likely have
little impact on obesity among subpopulations of concern.”). The 2008 Farm
Bill defined the term “food desert” as “area in the United States with limited
access to affordable and nutritious food, particularly such an area composed
of predominantly lower income neighborhoods and communities.” Food,
Conservation, and Energy Act, Pub. L. No. 110-234 § 7527, 122 Stat. 923, 1277
(2008).
3 See, e.g. The People’s Garden Grant Program, supra note 1; Clare Trapasso,
Bringing Farmers’ Markets and CSAs into Low-Income Neighborhoods,
CITYSPOONFUL.COM (May 11, 2011), http://www.cityspoonful.com/csas/; see
also Community Food Projects Competitive Grants Program, NATL INST. OF
FOOD & AGRIC., http://www.csrees.usda.gov/fo/fundview.cfm?fonum=1080 (last
updated Oct. 24, 2012); 2011 Health Food Financing Initiatives Grantee List,
U.S. DEPT. OF HEALTH & HUMAN SERV., http://www.acf.hhs.gov/programs/ocs/
resource/2011-ced-hffi-grantees (last visited Nov. 19, 2012).
4 See NYC Expands Health Bucks Program to Make Produce More Afford-
able, MIKEBLOOMBERG.COM (July 2, 2012), http://www.mikebloomberg.com/
index.cfm?objectid=48D7CFEF-C29C-7CA2-F65154EBA1C1C971.
5 See generally Daniel Bowman Simon, Food Stamps Grow Urban Gardens,
5 CITIES AND ENVT VOL. 1, 1 (2012); See also Snap Gardens History, SNAP-
GARDENS.ORG, http://www.snapgardens.org/ (last visited Nov. 12, 2012).
6 Robert Hoppe & David Banker, Structure and Finances of U.S. Farms, U.S.
DEPT. OF AGRIC. iv (2010), http://www.ers.usda.gov/media/184479/eib66_1_.
pdf (noting that “[l]arge-scale farms made up only 12 % of U.S. farms in 2007
but accounted for 84 % of the value of U.S. production.”); see also John Antle,
Agriculture and the Food System: Adaptation to Climate Change, RES. FOR THE
FUTURE 2-3 (2009), http://www.rff.org/rff/documents/rff-rpt-adaptation-antle.
pdf.
7 Nina Mukherji & Alfonso Morales, Zoning for Urban Agriculture, AMER.
PLANNING ASSN, 3 Practice Urban Agric. 1, 7 (2010), http://www.planning.org/
zoningpractice/2010/pdf/mar.pdf.
8 Alisha Coleman-Jensen et al., Household Food Security in the United
States in 2011, U.S. DEPT. OF AGRIC. 4 (Sept. 2012), http://www.ers.usda.gov/
media/884525/err141.pdf (defining “food security as “all household members
ha[ve] at all times to enough food for an active, healthy life.”).
9 JULIAN CONRAD JUERGENSMEYER & THOMAS E. ROBERTS, LAND USE PLANNING
AND DEVELOPMENT REGULATION LAW § 13:16 1 (3d ed. 2012).
10 A figure that equals the commercial production of fresh vegetables at that
time. Id.
11 MARTINEZ ET AL., supra note 1; see also Anne B. W. Effland, U.S. Farm
Policy: The First 200 Years, ECON. RES. SERV./U.S. DEPT. OF AGRIC. 24-25 (Mar.
2000), http://www.ucema.edu.ar/u/dm/CAPITULO_1/POLITICA_EE.UU./
US_Farm_Policy_the_First_200_Years.pdf.
12 Michael Pollan, Why Mow? The Case Against Lawns, N.Y. TIMES MAGAZINE
(May 28, 1989), http://michaelpollan.com/articles-archive/why-mow-the-case-
against-lawns/ (hereinafter Why Mow?).
13 Jane Black, Vegetable Garden Will Be Installed on White House Grounds,
WASHINGTONPOST.COM (Mar. 20, 2009), http://www.washingtonpost.com/wp-
dyn/content/article/2009/03/19/AR2009031902886.html.
14 Michael Pollan, Wendell Berry’s Wisdom, THE NATION
(Sept. 2, 2009), http://michaelpollan.com/articles-archive/
the-nation-magazine-wendell-berrys-wisdom/.
15 Since lawn-to-garden initiatives operate on a concept very similar to com-
munity gardens, they arguably also bring very similar benefits. See Kathryn A.
Peters, Creating a Sustainable Urban Agriculture Revolution, 25 J. ENVTL. L.
& LITIG. 203, 221-230 (2010), http://www.law.uoregon.edu/org/jell/docs/251/
peters.pdf (explaining the benefits of community gardens).
16 Mukherji & Morales, supra note 7, at 6.
17 Heather A. Okvat & Alex J. Zautra, Comty. Gardening: A Parsimonious
Path to Individual, Cmty. and Envt’l Resilience, 47 AM. J. COMTY. PSYCHOLOGY
374, 378-381 (2011).
18 See, e.g., Fifty-two Schools Win “Farm-to-School” Grants to Plant On-site
Fruit and Vegetable Gardens, SOUTH CAROLINA STATE DEPT. EDUCATION (May 31,
2011), http://ed.sc.gov/agency/news/?nid=1759.
19 Laurel Kallenbach, Cultivating Community: Community-Supported Agricul-
ture, MOTHEREARTHLIVING.COM (Apr. 2009), http://www.motherearthliving.com/
vegetable-gardening/cultivating-community-supported-agriculture.aspx.
20 For instance, West Virginia Sustainable Agriculture Entrepreneurs (WV
SAGE) recently began in 2012 on a one-eight acre donated apartment complex
backyard in West Charleston, one of the poorest neighborhoods in the city and
will be teaching farming and marketing skills to twenty individuals from West
Charleston who were selected based on low-income, minority, or single-par-
enthood statuses. Phone Interview with Cullen Naumoff, Vision 2030 Project
Manager, CHARLESTON AREA ALLIANCE (Dec. 8, 2012).
21 Mukherji & Morales, supra note 7, at 6.
22 JUERGENSMEYER & ROBERTS, supra note 9, at 1.
23 Id.
24 Seattle’s 2010 zoning amendments allow produce to be grown and sold
either on-site or off-site in commercial zones. Additionally, the new code also
allows urban farms and community gardens in all zones (with limitations in
industrial zones), and residents can sell food grown on their properties. See
Seattle City Council Approves Urban Farm and Community Garden Legislation
Improving Access to Locally Grown Food, SEATTLE CITY COUNCIL (Aug. 16,
2010), http://www.seattle.gov/council/newsdetail.asp?ID=10996&Dept=28; see
generally Mukherji & Morales, supra note 7, for examples of other municipal
codes that have expanded zoning allowance for urban agriculture.
25 For instance, edible communities could be incorporated into the Sustainable
DC initiative, which is underway as of the writing of this article and includes
a food desert reduction program. See Sustainable DC: Food Working Group,
DC.GOV, http://sustainable.dc.gov/page/food-working-group-background-
documents (last visited Dec. 10, 2012).
26 See Kirk Johnson, Small Farmers Creating a New Business Model as
Agriculture Goes Local, N.Y. TIMES (July 1, 2012), http://www.nytimes.
com/2012/07/02/us/small-scale-farmers-creating-a-new-profit-model.html?_
r=0; see also Slow Money, SLOWMONEY.ORG (last visited Nov. 29, 2012).
27 Low-income residents could, for instance, participate in USDA’s local food
initiatives and the SNAP Gardens program that provide monetary and garden-
ing support to establish and maintain viable gardens. See The People’s Garden
Grant Program, supra note 1; see also other local and federal urban agriculture
finance and education programs, supra notes 2 and 3.
28 Michael Pollan, How Change is Going to Come in the Food System, THE
NATION (Sept. 11, 2011), http://michaelpollan.com/articles-archive/how-change-
is-going-to-come-in-the-food-system/ (hereinafter How Change is Going to
Come in the Food System).
29 Kirk Johnson, Small Farmers Creating a New Business Model as
Agriculture Goes Local, N.Y. TIMES (July 1st, 2012), http://www.nytimes.
com/2012/07/02/us/small-scale-farmers-creating-a-new-profit-model.
html?_r=1&.
30 See Kallenbach, supra note 19.
31 Pollan, Why Mow?, supra note 12.
32 Phone Interview with Elise Golan, Director, SUSTAINABLE DEV. PROGRAM,
OFFICE OF THE CHIEF ECONOMIST, U.S. DEPT OF AGRIC. (Nov. 29, 2012).
33 See Pollan, How Change is Going to Come in the Food System, supra note
28; See also Simon, supra note 5.
34 Peters, supra note 15, at 227; see also Heather A. Okvat & Alex J. Zautra,
supra note 17.
672012–2013
Endnotes: FREE, PRIOR, AND INFORMED CONSENT: IMPLICATIONS FOR TRANSNATIONAL ENTERPRISES continued from page 40
10 United Nations Declaration on the Rights of Indigenous Peoples voting
record http://unbisnet.un.org:8080/ipac20/ipac.jsp?profile=voting&index=.
VM&term=ares61295.
11 United Nations Declaration on the Rights of Indigenous Peoples Adopted by
the General Assembly 13 September 2007. http://www.un.org/esa/socdev/unpfii/
en/declaration.html.
12 LEHR & SMITH, supra note 9, at 14.
13 United Nations Declaration on the Rights of Indigenous Peoples, article 32
sec. 2 http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
14 Id.
15 LEHR & SMITH, supra note 9, at 16.
16 Id.
17 Id.
18 Id. at 15.
19 Goodland, supra note 3, at 67.
20 Id.
21 Id.
22 Lehr & Smith, supra note 9, at 7.
23 Id.
24 Goodland, supra note 3, at 67.
25 Id.
26 Id.
27 Id. at 68.
28 Id.
29 Id. at 72.
30 DIR. FOR FIN., FISCAL, & ENTER. AFFAIRS, OECD, Multinational Enterprise
in Situations of Violent Conflict and Widespread Human Rights Abuses 4 (May
2002), http://www.oecd.org/dataoecd/46/31/2757771.pdf.
31 See Preamble, Norms on the Responsibilities of Transnational Corporations and Other
Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/
Rev.2 (2003), http://www1.umn.edu/humanrts/links/norms-Aug2003.html.
32 Carolin Hillemanns, UN Norms on the Responsibilities of Transnational
Corporations and Other Business Enterprises with Regard to Human Rights,
GER. L.J. Vol. 4, 10 1065(2003), http://www.germanlawjournal.com/pdfs/
Vol04No10/PDF_Vol_04_No_10_1065-1080_European_Hillemanns.pdf.
33 Id.
34 Id.
35 See Preamble, supra note 31.
36 Hillemanns, supra note 32, at 1075.
37 LEHR & SMITH, supra note 9, at 21.
38 Elias Courson, NORDISKA AFRIKAINSTUTET, Movement for the Emancipation of
the Niger Delta (MEND) 7 (2009), nai.diva-portal.org/smash/get/diva2:280470/
FULLTEXT01.
39 Stephanie Hanson, COUNCIL ON FOREIGN RELATIONS MEND: The Niger
Delta’s Umbrella Group, (March 22, 2007), http://www.cfr.org/nigeria/
mend-niger-deltas-umbrella-militant-group/p12920.
40 Courson, supra note 38, at 7.
41 Id. at 8.
42 Id.
43 Hanson, supra note 39.
44 Id.
45 Id.
46 Id.
47 Id.
48 Ed Pilkington, Shell Pays Out $15.5 Million over Saro-Wiwa Killing, THE
UK GUARDIAN (June 8, 2009), http://www.guardian.co.uk/world/2009/jun/08/
nigeria-usa.
49 Hanson, supra note 39.
50 Id.
51 Id.
52 Ed Pilkington, supra note 48.
53 Antoanella-Iulia Motoc & Tebtebba Found, Legal Commentary on the Con-
cept of Free, Prior Informed Consent, SUB-COMM. ON THE PROMOTION AND PROT.
OF HUMAN RIGHTS 6 (July 2005), www2.ohchr.org/english/issues/indigenous/
docs/wgip23/WP1.doc.
54 Id. at 6.
55 Id.
56 LEHR & SMITH, supra note 9.
57 Id. at 6-7.
58 Id. at 7.
59 International Labour Organization, Indigenous and Tribal
Peoples Convention No. 169, art. 1(b), June 27, 1989, 28
I.L.M. 1382 , available at http://www.ilo.org/dyn/normlex/
en/f?p=1000:12100:0::NO::P12100_INSTRUMENT_ID:312314.
60 Indigenous Peoples and Sustainable Development, Int’l Fund for Agric. Dev.
5 (Feb. 2003), http://www.ifad.org/gbdocs/gc/26/e/ip.pdf.
61 Id. at 5.
62 Id. at 5.
63 Id. at 5.
64 Jennifer Tobin, Political Investments and Property Rights in Developing
Countries, YALE UNIVERSITY AND BROOKINGS INSTITUTION 2 (Oct. 3, 2005), http://
www.people.fas.harvard.edu/~ces/conferences/cpeworkshop/tobin_CPE.pdf.
65 Indigenous Peoples and Sustainable Development, supra note 61.
66 Id. at 15.
67 Id.
68 Id. at 8.
69 Ctr. for Minority Rights Dev. ex rel. Endorois Welfare Council v. Kenya,
A.C.H.P.R. 276/2003 (2009), available at http://www.hrw.org/sites/default/files/
related_material/2010_africa_comm ission_ruling_0.pdf.
70 Fergus MacKay, Suriname: Chinese Logging Companies and Tribal Rights,
FOREST PEOPLES PROGRAMME (Sept. 2002), http://www.wrm.org.uy/bulletin/62/
Suriname.html.
71 Id. at 76.
72 Tobin, supra note 64, at 3.
73 Id.
74 LEHR & SMITH, supra note 9, at 22.
75 Id.
76 Id.
77 Id. at 21.
78 Id.
79 Id.
80 Id. at 71.
81 SEN, supra note 7, at 3.
82 John M. Kline & Ludger Odenthal, The Social Responsibility of Transna-
tional Corporations, U.N. CONFERENCE ON TRADE AND DEV. 44 (1999), available
at http://www.unctad.org/en/docs/poiteiitm21.en.pdf.
Endnotes: SEVEN PRINCIPLES FOR EQUITABLE ADAPTATION continued from page 46
22 JONATHAN SAMET, PUBLIC HEALTH: ADAPTING TO CLIMATE CHANGE 4-5
(Resources for the Future, 2010), available at http://www.rff.org/RFF/Docu-
ments/RFF-IB-10-06.pdf.
23 Robert K. Whelan & Denise Strong, Rebuilding Lives Post-Katrina:
Choices and Challenges in New Orleans’ Economic Development, in RACE,
PLACE, AND ENVIRONMENTAL JUSTICE AFTER HURRICANE KATRINA: STRUGGLES TO
RECLAIM, REBUILD, AND REVITALIZE NEW ORLEANS AND THE GULF COAST 183, 183
(Robert D. Bullard & Beverly Wright, eds., 2009) [hereinafter RACE, PLACE,
AND ENVIRONMENTAL JUSTICE]. In the month following Hurricane Sandy, the New
York area lost approximately 30,000 jobs due to the storm. See Patrick McGee-
han, Nearly 30,000 Jobs Lost Because of Hurricane Sandy, THE NEW YORK
TIMES (Dec. 20, 2012).
24 See Seth B. Shonkoff et al., The Climate Gap: Environmental Health and
Equity Implications of Climate Change and Mitigation Policies in California –
a Review of the Literature, 109 CLIMATIC CHANGE S485, S491 (2011).
25 See USGCRP REPORT, supra note 4, at 54-55 (explaining that warmer temper-
atures are projected to lead to a slight net increase in energy use because increases
in air conditioning are likely to outpace decreases in energy use for heating).
26 See, e.g., NATL RESEARCH COUNCIL, supra note 7, at 49 (describing increasing
energy costs resulting from increasing focus on expensive renewable energy sources).
27 See id. (assessing the cost of providing protection from three feet of sea
level rise at roughly $100 billion).
68 SUSTAINABLE DEVELOPMENT LAW & POLICY
28 For example, relocating a single 400-person Alaskan tribal village, the Vil-
lage of Kivalina, is projected to cost from 95 to 400 million dollars. See Abate,
supra note 17, at 207.
29 See M. L. PARRY, ET AL., ASSESSING THE COSTS OF ADAPTATION TO CLIMATE
CHANGE: A REVIEW OF THE UNFCCC AND OTHER RECENT ESTIMATES 31 (2009).
Hurricane Katrina reportedly caused 146 billion dollars in damage. See Hur-
ricane Sandy’s Rising Costs, NEW YORK TIMES A32 (Nov. 28, 2012). After
Hurricane Sandy, New York estimates $42 billion in damage, while New Jersey
estimates almost $30 billion. Id.
30 See generally, MATTHIAS RUTH ET AL., THE US ECONOMIC IMPACTS OF CLIMATE
CHANGE AND THE COSTS OF INACTION (2007), available at: http://www.cier.
umd.edu/documents/US%20Economic%20Impacts%20of%20Climate%20
Change%20and%20the%20Costs%20of%20Inaction.pdf. Climate mitigation
efforts, like a cap-and-trade program or carbon tax, could conceivably generate
revenue that would finance climate adaptation efforts. See RACHEL MORELLO-
FROSCH ET AL., THE CLIMATE GAP: INEQUALITIES IN HOW CLIMATE CHANGE HURTS
AMERICANS & HOW TO CLOSE THE GAP 19 (2010), available at: http://dornsife.
usc.edu/pere/documents/ClimateGapReport_full_report_web.pdf.
31 These challenges are described in more detail in the longer version of this
article. See Alice Kaswan, Domestic Climate Change Adaptation and Equity,
42 ENVIRONMENTAL LAW REPORTER 11125 (2012). Equity concerns are even more
dramatic internationally. Many poor developing countries, like small-island
states, Bangladesh, and African nations, are simultaneously the least responsible
for, but the most at risk from, global climate change. See, e.g., IPCC, Summary
for Policymakers, supra note 4, at 12 (describing high risks from sea level rise
for low-lying African and Asian deltas and for small island states). The impor-
tance of international adaptation and equity concerns does not, however, erase
the significance of addressing equity in U.S. adaptation measures.
32 See VERCHICK, supra note 6, at 106.
33 See NATL RESEARCH COUNCIL, supra note 7, at 29; Chen, supra note 6, at 3-5.
34 See IPCC, MANAGING THE RISKS, supra note 9, at 7, 10; USGCRP REPORT,
supra note 4, at 100-101; Verchick, supra note 6, at 38-41 (observing that the
degree of hazard a community faces is “a combination of a community’s physi-
cal vulnerability and its social vulnerability”) (emphasis in original). See gener-
ally PASTOR ET AL., supra note 13, at 2 (observing that environmental equity
focuses on both cumulative exposure and social vulnerability).
35 See DANIEL A. FARBER ET AL., DISASTER LAW AND POLICY 217 (2d ed. 2010)
(quoting PIERS BLAIKIE ET AL., AT RISK: NATURAL HAZARDS, PEOPLES VULNER-
ABILITY AND DISASTERS 9 (1994)).
36 See U.S. CLIMATE CHANGE SCIENCE PROGRAM, ANALYSES OF THE EFFECTS OF
GLOBAL CHANGE ON HUMAN HEALTH AND WELFARE AND HUMAN SYSTEMS 64 (2008)
(listing socioeconomic factors affecting vulnerability), available at: http://www.
climatescience.gov/Library/sap/sap4-6/final-report/; id. at 64 (noting greater
impacts on those with lower socioeconomic status); id. at 123 (listing factors
affecting vulnerability to disasters); VERCHICK, supra note 6, at 106; BULLARD
& WRIGHT, supra note 2, at 52-54 (describing disparities in climate impacts for
disadvantaged populations). Large-scale aggregate analyses have isolated the
important role of social vulnerability as a determinant of disaster impacts. A
study of 832 floods in 74 Texas counties found a statistically significant correla-
tion between social vulnerability, as measured by racial minority or low-income
status, and flood deaths or injuries. Sammy Zahran et al., Social Vulnerability
and the Natural and Built Environment: A Model of Flood Casualties in Texas,
32 DISASTERS 552-553, 555 (2008).
37 See Alice Kaswan, Environmental Justice and Domestic Climate Change
Policy, 38 ENVTL. L. REP. 10,287, 10,289 (2008) (describing the environmental
justice movement’s distributive, participatory, and social justice goals and their
influence on the movement for climate justice); see generally LUKE W. COLE &
SHEILA FOSTER, FROM THE GROUND UP: ENVIRONMENTAL RACISM AND THE RISE OF
THE ENVIRONMENTAL JUSTICE MOVEMENT (2001) (describing the environmental
justice movement’s focus on distributional outcomes, participatory processes,
and institutional structures).
38 See M. L. PARRY ET AL., supra note 29, at 102-113; RUTH ET AL., supra note
30. In addition to economic considerations, avoiding harm has important social,
cultural, and psychological benefits.
39 PASTOR ET AL., supra note 13, at 30-31; VERCHICK, supra note 6, at 165.
40 See, e.g., VERCHICK, supra note 6; Craig, supra note 18.
41 See James K. Boyce, Let Them Eat Risk? Wealth, Rights and Disaster
Vulnerability, 24 DISASTERS 254, 257 (2000) (stating that “the wealth-based
approach holds that … those individuals who are willing (and, perforce, able) to
pay more, deserve to get more [disaster vulnerability reduction]”).
42 See PASTOR ET AL., supra note 13, at 7 (arguing that a market-based
approach to disaster preparedness “is a recipe for targeting those with the least
power in the social calculus”); VERCHICK, supra note 6, at 149; See Debra Lyn
Bassett, Place, Disasters, and Disability, in LAW AND RECOVERY FROM DISASTER,
supra note 6, at 51, 68.
43 See Debra Lyn Bassett, The Overlooked Significance of Place in Law and
Policy: Lessons from Hurricane Katrina, in RACE, PLACE, AND ENVIRONMENT,
supra note 23, at 49, 57; Boyce, supra note 41, at 257 (observing that relying on
individual willingness-to-pay for disaster reduction would distribute reductions
in a manner “strongly correlated with wealth”).
44 See generally PASTOR ET AL., supra note 13, at 25-27 (describing how recon-
struction programs have not been sufficient to fully address the needs of low-
income disaster victims). For example, in post-Katrina New Orleans, the Mayor
proposed that the city should decide where to invest in new infrastructure and
support rebuilding by evaluating where rebuilding was already occurring. That
approach would privilege areas where residents had sufficient resources to rebuild
and disadvantage areas where residents did not have sufficient resources. John R.
Logan, Unnatural Disaster: Social Impacts and Policy Choices After Katrina, in
RACE, PLACE, AND ENVIRONMENTAL JUSTICE, supra note 23, at 249, 257.
45 See PASTOR, ET AL., supra note 13, at 11 (observing, in the environmental
justice context, that “lower-income residents may be willing to trade off health
risks for cheaper housing”).
46 See HEATHER COOLEY ET AL., SOCIAL VULNERABILITY TO CLIMATE CHANGE IN
CALIFORNIA 1 (2012); NATL RESEARCH COUNCIL, supra note 7, at 55; MORELLO-
FROSCH ET AL., supra note 30, at 22. The California Energy Commission
commissioned a study that not only identified 19 discrete physical and social
vulnerability factors, but evaluated their cumulative impact by creating an
overarching climate vulnerability index to score different areas of the state, and
then indicated where high social vulnerability “intersects with the most severe
projected climate change impacts.” COOLEY, supra at ii.
47 Statistical Abstract of the United States, Table 711, People Below Poverty
Level and Below 125 % of Poverty Level by Race and Hispanic Origin:
1980-2009, available at http://www.census.gov/compendia/statab/2012/
tables/12s0711.pdf (indicating that, as of 2009, African-Americans and Hispan-
ics were twice as likely as whites to be below the poverty level: over 25 percent,
in comparison with the white population’s 12.3 percent poverty rate).
48 See, e.g., PASTOR ET AL., supra note 13, at 19-21; CALIFORNIA CLIMATE
CHANGE CENTER, THE IMPACTS OF SEA-LEVEL RISE ON THE CALIFORNIA COAST 46
(2009) [hereinafter THE IMPACTS OF SEA-LEVEL RISE], available at: http://www.
energy.ca.gov/2009publications/CEC-500-2009-024/CEC-500-2009-024-F.PDF
(describing income- and race-based disparities in disaster preparation).
49 The Federal Emergency Management Agency has several programs that pro-
vide some resources for hazard mitigation both pre- and post-disaster, resources
that could be targeted toward the most vulnerable populations. See FEMA,
HAZARD MITIGATION GRANT PROGRAM, http://www.fema.gov/hazard-mitigation-
grant-program (describing). See also USGCRP REPORT, supra note 4, at 91
(describing Philadelphia’s “Cool Home Program,” which provides low-income
elderly residents with roof retrofits to cool their homes and save energy).
50 See Robert D. Bullard, Glenn S. Johnson, and Angel O. Torres, Transporta-
tion Matters: Stranded on the Side of the Road Before and After Disasters
Strike, in RACE, PLACE, AND ENVIRONMENTAL JUSTICE, supra note 23, at 63, 66-67
(noting racial disparities in automobile ownership). In Hurricane Katrina, 55
percent of those who failed to evacuate did not own cars. See THE IMPACTS OF
SEA-LEVEL RISE, supra note 48, at 49.
51 See PASTOR, ET AL, supra note 13, at 23 (describing disaster studies indicat-
ing that poor and minority populations are more likely to resort to tent cities
and mass shelters); Scott Gold, Trapped in the Superdome: Refuge Becomes a
Hellhole, SEATTLE TIMES (Sept. 1, 2005) (describing horrific shelter conditions,
conditions that could deter residents from evacuating).
52 See Shonkoff, supra note 24, at S488 (observing that low-income and
of-color residents are less likely to have air conditioning); COOLEY ET AL., supra
note 46, at 6 (citing study that poor people are less likely to use air condition-
ing, even if they have it, due to financial concerns).
53 See Bullard, et al., supra note 23, at 70. Recent data suggests that, despite
some recent improvements, many states and local governments have not
adequately addressed evacuation needs for carless and special-needs popula-
tions. See Bullard et al, supra note 23, at 69, 76, and 77-78 (describing studies).
54 See BULLARD & WRIGHT, supra note 2, at 75, 98 (noting that green building
“that fails to address issues of affordability, access, and equity may open the
floodgates for permanent displacement of low-income and minority homeown-
ers and business owners”).
55 See PASTOR ET AL., supra note 13, at 11.
56 See Craig, supra note 18, at 55 (discussing possibility of mass migrations in
response to climate impacts).
692012–2013
57 See Bassett, supra note 42, at 64-65.
58 See COOLEY ET AL., supra note 46, at 5 (noting the role of age in vulnerabil-
ity to heat). In the 2003 European heat wave, many of the deaths were among
the elderly. See “Over 11,000” Dead in French Heat, BBC News, Aug. 29,
2003, http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/
europe/3190585.stm.
59 See Bassett, supra note 42 and 43; Janet E. Lord, Michael E. Waterstone, &
Michael Ashely Stein, Natural Disasters and Persons with Disabilities, in LAW
AND RECOVERY FROM DISASTER, supra note 6, at 71.
60 See THE IMPACTS OF SEA-LEVEL RISE, supra note 48, at 48.
61 See PASTOR ET AL., supra note 13, at 24; THE IMPACTS OF SEA-LEVEL RISE,
supra note 48, at 50.
62 Although property owners, unlike renters, have lost an asset, renters none-
theless encounter severe post-disaster conditions. Post-disaster, the demand for
rental housing skyrockets, leading to significant increases in rents and serious
shortages of affordable rentals. See PASTOR ET AL., supra note 13, at 24; see also
Lisa K. Bates & Rebekah A. Green, Housing Recovery in the Ninth Ward: Dis-
parities in Policy, Process, and Prospects, in RACE, PLACE, AND ENVIRONMENTAL
JUSTICE, supra note 23, at 229, 231 (describing renters post-Katrina challenges).
63 See, e.g., VERCHICK, supra note 5, at 138-39 (describing insufficient develop-
ment of rental housing in post-Katrina New Orleans); Robbie Whelan, A Texas-
Size Housing Fight, THE WALL STREET JOURNAL, Aug. 3, 2012, at A3 (describing
local resistance to re-building affordable public housing in Galveston, Texas).
64 See Shonkoff, supra note 24, at S489-90; COOLEY ET AL., supra note 46, at 6.
65 See, e.g., NATL RESEARCH COUNCIL, supra note 7, at 70, 71 (observing
importance of “early warning systems” and “public outreach” to adapting to
extreme events and disease risks from contaminated water and disease out-
breaks) and 71. See also Sari Kovats & Shakoor Hajat, Heat Stress and Public
Health: A Critical Review, 29 ANN. REV. PUB. HEALTH 41, 49 (2008) (observing
importance of health education to reducing impacts from heat waves).
66 See NATL RESEARCH COUNCIL, supra note 7, at 70.
67 See TED WANG & LUNA YASUI, INTEGRATING IMMIGRANT FAMILIES IN EMER-
GENCY RESPONSE, RELIEF AND REBUILDING EFFORTS 1-3 (2008), available at http://
www.aecf.org/~/media/PublicationFiles/IR3622H122.pdf.
68 See id. at 9-11.
69 See PASTOR, supra note 13, at 25. As states begin to enact laws requiring
police officers to check and report on immigration status, a practice upheld by
the Supreme Court in Arizona v. United States,132 S.Ct. 2492, 183 L.Ed.2d
351 (2012), immigrants are likely to become increasingly reluctant, rather than
more willing, to interface with government officials. See ‘Copycat Immigration
Laws,’ THE WASHINGTON POST, Sept. 29, 2011, http://www.washingtonpost.com/
politics/copycat-immigration-laws/2011/09/29/gIQA993Y7K_graphic.html.
70 See WANG & YASUI, supra note 67, at 4.
71 See id. at 1 and 6-7 (describing important role that community organiza-
tions could play in enhancing emergency response for “limited-English profi-
cient (LEP) residents and immigrants”).
72 See Bates & Green, supra note 62, at 243 (observing that post-Katrina
recovery would have better served African-American neighborhoods if commu-
nity-based organizations had been involved in planning and outreach early in
the recovery process); BULLARD & WRIGHT, supra note 2, at 215-16 (describing
the importance of cultural awareness in disaster communications and detailing
several techniques for developing effective communication).
73 As the Department of Health and Human Services has recognized, as
a result of experiences of racial discrimination, “racial and ethnic minority
groups may distrust offers of outside assistance . . . even following a disaster . .
. . They may be unfamiliar with the social and cultural mechanisms of receiving
assistance and remain outside the network of aid.” DEPT OF HEALTH AND HUMAN
SERVICES, supra note 56; BULLARD & WRIGHT, supra note 2, at 216-17 (discuss-
ing studies showing blacks’ mistrust of white relief agencies).
74 Recognizing the importance of personal outreach, Philadelphia instituted a
“buddy system” run by block captains to check on elderly residents during heat
waves. See USGCRP REPORT, supra note 4, at 91.
75 See THE IMPACTS OF SEA-LEVEL RISE, supra note 48, at 89; PASTOR, ET AL.,
supra note 13, at 35; MORELLO-FROSCH ET AL., supra note 30, at 24.
76 See Verchick, supra note 6, at 61-62, 67 (identifying the fundamental
importance of democratic participation in mechanisms to reduce vulnerability).
77 See Luke W. Cole, Empowerment as the Key to Environmental Protection:
The Need for Environmental Poverty Law, 19 ECOLOGY L. QUARTERLY 619
(1992) (describing the environmental justice movement’s community empower-
ment goals); Sheila Foster, Justice from the Ground Up: Distributive Inequities,
Grassroots Resistance, and the Transformative Politics of the Environmental
Justice Movement, 86 CAL. L. REV. 775 (1998).
78 See PASTOR ET AL., supra note 13, at 21; WANG & YASUI, supra note 67, at 7.
79 See WANG & YASUI, supra note 67, at 5.
80 See Foster, supra note 77, at 834-36.
81 See Craig, supra note 13, at 536-37 (discussing contamination from
inundated sewage treatment facilities); see also PASTOR ET AL., supra note 13,
at 30; VERCHICK, supra note 5, at 133 (discussing risks of inundated industries,
landfills, or hazardous waste sites).
82 Craig, supra note 18, at 43-45 (articulating climate change adaptation prin-
ciple #2: “Eliminate or Reduce Non-climate Stresses and Otherwise Promote
Resilience,” and sub-principle: “Decontaminate Land, Water, and Air, and
Reduce New Pollution as Much as Possible”).
83 See, e.g., COLE & FOSTER, supra note 37, at 167-83 (Appendix: “An Anno-
tated Bibliography of Studies and Articles that Document and Describe the
Disproportionate Impact of Environmental Hazards by Race and Income”); see
also VERCHICK, supra note 6, at 167-70 (suggesting that policymakers should
prioritize addressing existing hazards, like landfills and contaminated sites, in
at-risk areas).
84 See EPA, OFFICE OF WATER, NATIONAL WATER PROGRAM STRATEGY: RESPONSE
TO CLIMATE CHANGE 45-47 (2008), available at http://water.epa.gov/scitech/
climatechange/upload/2008-National-Water-Program-Strategy-Response-to-
Climate-Change.pdf (discussing need to manage storm water and infrastructure
to reduce contamination).
85 See Craig, supra note 13, at 538 (suggested expedited cleanup of contami-
nated sites in coastal areas). Disaster considerations could also significantly
impact the choice of remedy, reducing the desirability of “institutional con-
trols,” like land use restrictions, that leave contamination in place and at risk of
flooding.
86 See USGCRP REPORT, supra note 4, at 92-94 (describing how increasing
temperatures could worsen air quality).
87 See NATL RESEARCH COUNCIL, supra note 7, at 71. The IPCC has noted that
many initiatives to address projected increases in extreme events have multiple
co-benefits that render them “low regrets” policies. IPCC, MANAGING THE RISKS,
supra note 9, at 16, 17.
88 This Essay addresses mitigation measures that create equity issues, a subset of
the larger issue of maladaptation. Non-equity related maladaptive mitigation mea-
sures, like thermal solar power plants that consume large volumes of water in areas
expecting future shortages, are important but beyond the scope of this Essay.
89 See Alice Kaswan, Climate Change, Consumption, and Cities, FORDHAM
URB. L.J. 253, 280-81 (2009).
90 See BRIAN STONE, JR., THE CITY AND THE COMING CLIMATE: CLIMATE CHANGE
IN THE PLACES WE LIVE 75-76 (2012).
91 See USGCRP REPORT, supra note 4, at 92 (noting that poor air quality is an
especially serious concern in cities); EPA, supra note 21, at 19 (noting that toxic
air pollution levels are higher in urban areas).
92 See Lisa Grow Sun, Smart Growth in Dumb Places: Sustainability, Disaster,
and the Future of the American City, 2011-6 BYU L. REV. 2157, 2168-69.
93 See id. Increased development is inconsistent with a sustainable long-term
land use strategy in many of these high-risk areas. Id. at 2160-61. See also id. at
2166-68 (describing disaster risks associated with increasing density in urban areas).
94 See NATL RESEARCH COUNCIL, supra note 7, at 70 (noting that, in the long
term, reducing heath risks could require “urban design to minimize the urban
heat island effect through greater use of trees and green spaces”).
95 See Sun, supra note 92, at 2199-200 (describing urban design patterns that
facilitate long-term strategic retreat if it proves necessary).
96 See NATL RESEARCH COUNCIL, supra note 7, at 49 (regarding potential
increases in energy costs from a switch to renewable energy).
97 See USGCRP REPORT, supra note 4, at 54-55; ENVIRONMENTAL HEALTH
PERSPECTIVES & THE NATIONAL INSTITUTE OF ENVIRONMENTAL HEALTH SCIENCES,
A HUMAN HEALTH PERSPECTIVE ON CLIMATE CHANGE: A REPORT OUTLINING THE
RESEARCH NEEDS ON THE HUMAN HEALTH EFFECTS OF CLIMATE CHANGE 30-31
(2010), available at: http://www.cdc.gov/climateandhealth/pubs/HHCC_
Final_508.pdf.
98 See NATL RESEARCH COUNCIL, supra note 7, at 50.
99 IPCC REPORT, MANAGING THE RISKS, supra note 9, at 20.
100 IPCC REPORT, MANAGING THE RISKS, supra note 9, at 11.
101 See Susan L. Cutter, The Geography of Social Vulnerability: Race, Class,
and Catastrophe, in Understanding Katrina: Perspectives from the Social Sci-
ences, Jun. 11, 2006, available at http://forums.ssrc.org/understandingkatrina/
the-geography-of-social-vulnerability-race-class-and-catastrophe/ (stating that
“[s]ocial vulnerability involves the basic provision of health care, the livability of
places, overall indicators of quality of life, and accessibility to lifelines (goods,
services, emergency response personnel), capital, and political representation”).
70 SUSTAINABLE DEVELOPMENT LAW & POLICY
Endnotes: DANGEROUS SEPARATION: AN ECOSYSTEM AND WAY OF LIFE IN THE WEST BANK AT THE BRINK OF
DESTRUCTION continued from page 47
1 The Green Line marks the boundary between Israel and Palestine, the
pre-1967 border, drawn in the 1949 Armistice Agreement. IAN S. LUSTICK, THE
FETISH OF JERUSALEM, in ISRAEL IN COMPARATIVE PERSPECTIVE: CHALLENGING THE
CONVENTIONAL WISDOM, 152 (MICHAEL N. BARNETT ed., SUNY Press, 1996).
2 The terraces are so unique that they were awarded the 2011 Melina Mer-
couri International Prize for the Safeguarding and Management of Cultural
Landscapes. Israel’s Separation Barrier Threatens Ancient Palestinian Farm-
ing Practice, N.Y. DAILY NEWS, May 11, 2012, http://articles.nydailynews.
com/2012-05-11/news/31672583_1_separation-barrier-west-bank-battir; Cross-
Border “Priority Initiatives” of the Good Water Neighbors Project, Friends of
the Earth Middle East, 7 (Sept. 2012), available at http://foeme.org/uploads/
13470236580~%5E$%5E~Community_Based_Problem_Solving_on_Water_
Issues_2012.pdf.
3 Friends of the Earth Middle East, supra note 2, at 7.
4 Zafrir Rinat, Ministry of Defense: Minimal Damage, A First: A Government
Ministry Against the Separation Wall, HAARETZ, Sept. 13, 2012, available at
http://www.haaretz.co.il/news/politics/1.1823483.
5 The destruction and abandonment of terrace agriculture in other areas has
caused natural springs to dry up, while other springs have become polluted by
agricultural runoff and sewage. DUACH RASHUT HATEVA VEHAGANIM LSHNAT
2010 [ISRAEL NATURE AND PARKS
AUTHORITY REPORT] http://www.parks.org.il/publicparticipation/publichearing/
publishing images/%20%20%20%20%202010.pdf.
6 Nir Chason, The Israeli Supreme Court Ordered the State to Reexamine the
Construction of the Separation Wall in the Village of Battir, HAARETZ, Dec. 13,
2012, available at http://www.haaretz.co.il/news/politics/1.1885682.
7 See Yisha Blank, Legalizing the Barrier: The Legality and Materiality of the
Israel/Palestine Separation Barrier, 46 TEX. INTL L.J. 309, 310 (2010-11); See
also, Susan Akram & Michael Lynk, The Wall and the Law: A Tale of Two Judg-
ments, 24 NETH. Q. H.R. 61, 85 (2006) (“In June 2002, when the Israeli Govern-
ment announced its formal decision to build an integrated system of walls,
trenches, barriers and fences throughout the West Bank, it stated that the Wall
was initiated solely as a response to the series of Palestinian suicide bombings
that had killed approximately 450 Israelis since the start of the second Intifada
in September 2000.”).
8 Blank, supra note 7, at 317. (“[T]he barrier is erected on the basis of autho-
rized government decisions, administrative regulations, and military orders…
done in a highly legalized fashion according to legal chains of authorizations…
some of the actions taken with regard to the barrier were in violation of Israeli
administrative and constitutional law…[y]et, the state of Israel behaved as if it
were bound by law. Every action was done in accordance with administrative
procedures, under explicit authorization, and often received the approval of the
Israel courts which reviewed them.”); HCJ 2056/04 Beit Sourik Village Council
v. The Government of Israel 58(5) PD 807 [2004] (Isr.), available at http://
www.icrc.org/ihl-nat.nsf/39a82e2ca 42b52974125673e00508144/09d47365bd0
07706c12575c20046ec2a!OpenDocument.
9 Beit Sourik Village Council v. Israel, supra note 8.
10 The court found that the laws of belligerent occupation in the 1907 Hague
Regulations and 1949 Fourth Geneva Convention applied in this case, and
in Israel’s interpretation supported Israel’s effort to secure the rights of the
Jewish-Israeli population against Palestinian terror attacks. See Beit Sourik
Village Council v. Israel, supra note 8 (basing the opinion on the laws of bel-
ligerent occupation and Jewish Israeli security); See also, Hague Convention IV
respecting the Laws and Customs of War on Land and its annex: Regulations
concerning the Laws and Customs of War on Land, arts. 23(g) and 46, 18 Oct.
1907 (stating the laws of belligerent occupation).
11 Legal Consequences of the Construction of a Wall in the Occupied Palestin-
ian Territory, Advisory Opinion, 2004 I.C.J. 28 (July 9), available at http://
www.icj-cij.org/docket/index.php? pr=71&code=mwp&p1=3&p2=4&p3=6&c
a.
12 Id.
13 These decisions were reached by a 14-1 majority within the court. Id.
14 Notably in Mara’abeh v. The Prime Minister of Israel where the court
rejected the ICJ advisory opinion. See Blank, supra note 7, at 330.
15 N.Y. DAILY NEWS, supra note 2, 2.
16 Zafrir Rinat, Separation Fence Threatens to Destroy Farming, Ecosystem
Around Jerusalem: According to the Nature and Parks Authority, Establishment
of the Wall Will Change Not Only the Landscape, But Also the Special Pace of
Life of Traditional Farmers, HAARETZ, Oct. 18, 2012, available at http://www.
haaretz.com/news/features/separation-fence-threatens-to-destroy-farming-
ecosystem-around-jerusalem.premium-1.470656
17 N.Y. DAILY NEWS, supra note 2 at 2 (allowing for the lands to remain with
Battir residents).
18 Id.
19 Id.; Nir Chason, Atirah Neged Geder HaHefradah SheMeskenet et HaTara-
sot BeBatir [Appeal Against the Separation Wall, Which Endangers the Terraces
in Battir], HAARETZ, October 23, 2012, http://www.haaretz.co.il/news/politics/
1.1848525
20 A recent example of failure is in the village of Walajah, close to Battir.
21 Isabel Kershner, With a Bit of Land Restored, Villagers End Campaign,
N.Y. TIMES, June 24, 2011, http://www.nytimes.com/2011/06/25/world/
middleeast/25palestinians.html; Friends of Freedom and Justice-Bilin
(last visited Dec. 18, 2012).
22 Id. at 3.
23 Id.
24 Id.
25 Zafrir Rinat, Construction Plans Clog Palestinian Village’s Water Supply:
A Blueprint to Expand Both Betar Illit and the Separation Fence Encroaches
on Wadi Fuqin, HAARETZ, Jan. 16, 2006, http://www.haaretz.com/print-edition/
features/construction-plans-clog-palestinian-village-s-water-supply-1.62345;
USAID, BREAKING THE CYCLE OF DESPAIR: IN THE HORN OF AFRICA, 2 GLOBAL
WATERS 5, 21 (Oct. 2011), available at http://issuu.com/sixhalfdozen/docs/
gw_redesign_22 _issuu.
26 GWN Communities: Wadi Fuqin and Tzur Hadassah Join to Oppose
Separation Barrier, EcoPeace—Friends of the Earth Middle East (Mar. 8,
2010), http://foeme.wordpress.com/2010/03/08/wf-th-separation-wall-meeting/.
27 Scott Wilson, Bonded in Resistance to the Barrier, WASHINGTON POST,
June 8, 2007, available at http://www.washingtonpost.com/wp-dyn/content/
article/2007/06/07/AR2007060702588.html; Julien Katchinoff, Green
Objections to the Green Line: A Struggle For a Shared Environment in the
Middle East, NEW SECURITY BEAT, March 4, 2010, http://www.newsecuritybeat.
org/2010/03/green-objections-to-the-green-line-a-struggle-for-a-shared-
environment-in-the-middle-east/.
28 Sue Fishkoff, Palestinian Village and Israeli Town
Build Rare Partnership Across Line, JTA, April 16, 2010,
http://www.jta.org/news/article/2010/04/19/1011655/
palestinian-village-and-israeli-town-build-rare-partnership-across-line.
29 See generally, Blank, supra note 7; Aeyal M. Gross, Human Proportions:
Are Human Rights the Emperor’s New Clothes of the International Law of
Occupation? 18 EUR. J. INTL L. (2007). (giving examples of cases Mara’abeh
v. Prime Minster of Israel, Ma’arab v. The IDF Commander in Judea and
Samaria, Hass v. Commander of the IDF Forces in the West Bank).
30 Aminadav, 2 km away, is Battir’s best option for a neighboring Israeli
participant. Har Gilo, which is very close by is a settlement and is unlikely to
aid Battir in its struggle.
31 Zev HaCohen, Michshol Kav Hatefer—Keta Batir-Machsom Ha Lamed
Heh: Emdat Rashut Hateva VeHaGanim [The Seamline Obstacle—the
segment of Battir to the Lamed Heh Checkpoint: The Position of Israel Nature
and Parks Authority], 12 (Aug. 2012), available at http://www.k-etzion.
co.il/_Uploads/735ratag.pdf (suggesting that the wall will adversely affect plant
growth and animal migration).
32 Zafrir Rinat, supra note 4.
33 Water is imperative for human survival and in the water scarce environment
of Israel and Palestine, there is intense competition for water resources. Israel’s
determination of water resources as a national security issue rightly prioritizes
the necessity of water for its citizens, agriculture, and economy. See Peter H.
Gleick, Water and Conflict: Fresh Water Resources and International Security,
18 INTL SEC. 79, 79 (1993) (discussing the competition for scarce water
resources leading to viewing water as a national security matter).
34 Nir Chason, supra note 6.
35 Nir Chason, Representative of The Israel Nature and Parks Authority to the
Israeli Supreme Court: The Separation Wall in Batir Harms Nature, HAARETZ,
Dec. 12, 2012, available at http://www.haaretz.co.il/news/politics/1.1884670
36 Nir Chason, supra note 6.
712012–2013
Endnotes: THE GROWTH OF ENVIRONMENTAL JUSTICE AND ENVIRONMENTAL PROTECTION IN INTERNATIONAL LAW: IN THE
CONTEXT OF REGULATION OF THE ARCTICS OFFSHORE OIL INDUSTRY continued from page 54
20 Nordquist et al., supra note 1; Koivurova & Molenaar, supra note 18.
21 See J.L. Pagnan, Arctic Marine Protection 53(4) Arctic 469 (December
2000); see also F. Cava, D. Monsma & O.R. Young, Workshop on Arctic Gover-
nance: Drawing Lessons from the Antarctic Experience (2009).
22 A permanent secretariat is currently being set up and will begin work by May
2013–Nuuk Declaration – On the Occasion of the Seventh Ministerial Meeting of
the Arctic Council, 12 May 2011. D. Rothwell, The Arctic in International Affairs:
Time for a New Regime?, 15 BROWN J. WORLD AFF. 241 (2008-9).
23 H. Hillgenberg, A Fresh Look at Soft Law, 10 EJIL 499 (1999). See also
A. Boyle, Soft Law in International Law Making in M.D. Evans, International
Law, 140-156 (Oxford University Press 2006).
24 The Rio Declaration and Agenda 21 identify this wide inclusion as an
important feature of international environmental law.
25 K. KABBOT & D. SNIDAL, HARD AND SOFT LAW IN INTERNATIONAL GOVERNANCE
(MIT Press 2000); SALE & E. POTAPOV, SCRAMBLE FOR THE ARCTIC, 141 (Francis
Lincoln Publishers 2010).
26 M. Fitzmaurice, RECUEIL DES COURS132 (Hauge Academy of International
law 2001).
27 See generally A. Boyle, INTERNATIONAL LAW AND THE ENVIRONMENT (Clar-
endon Press 1992); see also Bell & McGillivray, ENVIRONMENTAL LAW, 52-54
(Oxford University Press 2008).
28 This article utilizes three of these international environmental law prin-
ciples/concepts as an example, other relevant ones include: the polluter pays
principle, the principle of prevention and the concept of ecobased management.
29 The Convention on Biological Diversity 1992, http://www.cbd.int/conven-
tion/, last accessed Feb. 9, 2013.
30 United Nations Agenda 21 1992, available at http://www.un.org/esa/dsd/
agenda21/res_agenda21_00.shtml.
31 Rio Declaration on Environment and Development 1992, Principle 15,
available at http://www.unep.org/Documents.Multilingual/Default.asp?documen
tid=78&articleid=1163.
32 Convention for the Protection of the Marine Environment of the North-East
Atlantic (the OSPAR Convention) 1992 [hereinafter OSPAR].
33 Environmental Impact Assessment Guidelines, 9 (Finnish Ministry of the
Environment 1997) available at http://ceq.hss.doe.gov/nepa/eiaguide.pdf.
34 Arctic Offshore Oil and Gas Guidelines 2009, PAME, 6 available at http://
www.pame.is/images/stories/FrontPage/Arctic-Guidelines-2009-13th-Mar2009.pdf.
35 T. O’RIORDAN ET AL., REINTERPRETING THE PRECAUTIONARY PRINCIPLE (Cam-
eron & May 2002); K. BASTMEIJER, THE ANTARCTIC ENVIRONMENTAL PROTOCOL
AND ITS DOMESTIC LEGAL IMPLEMENTATION, (Kluwer Law International 2003); R.
Cooney, The Precautionary Principle in Biodiversity Conservation and Natural
Resource Management, IUCN Policy & Global Change Series No. 2 (2004).
36 See supra notes 7-15.
37 See Koivurova, Maine Environment, supra note 11 (explaining that a
response gap is the time when climatological or cryosphere extremes preclude,
or severely restrict, the ability to carry out a response to any oil spillages).
38 Greenpeace, Arctic Oil: A Very Crude Idea, available at http://www.
greenpeace.org/international/en/news/Blogs/makingwaves/arctic-oil-a-very-
crude-idea/blog/12544/ (2010) (advocating that in adherence to a strictly pre-
cautionary approach offshore oil activities in the Arctic should have far greater
control or entirely cease); see also Friends of the Earth, Act for the Arctic, (May
2011), available at http://www.foe.co.uk/news/act_for_arctic_30746.html.
39 The Arctic Offshore Oil and Gas Guidelines 2009, Paragraph 1.3. (adopting
the definition of the precautionary principle found in the Rio Declaration on
Environment and Development, Principle 15).
40 T. Koivurova in N. Craik, THE INTERNATIONAL LAW OF ENVIRONMENTAL IMPACT
ASSESSMENT: PROCESS SUBSTANCE, 107 (Cambridge University Press 2008); see
generally NATALIA LOUKACHEVA, POLAR LAW (National Council of Ministers
2010) [hereinafter POLAR LAW].
41 Cava et al., supra note 21; D. VIDAS, PROTECTING THE POLAR MARINE ENVI-
RONMENT: LAW AND POLICY FOR POLLUTION PREVENTION 111 (Cambridge Univer-
sity Press, 2000).
42 Rothwell, supra note 22; C. de Roo et al., (Arctic Transform), Environmen-
tal Governance in the Marine Arctic (2008).
43 Environmental Impact Assessment Guidelines 1997, supra note 33.
44 Id. at 5.1.
45 Koivurova in Craik, supra note 40, at 107; LOUKACHEVA, supra note 40, at 39.
46 See generally OSPAR, supra note 32.
47 OSPAR, supra note 32, Article 2(2)(a).9
48 OSPAR, supra note 32, Article 2(2)(a).
49 OSPAR, supra note 32, Annex V.
50 Koivurova & Molenaar, supra note 18; E. Hey, The International Regime
for the Protection of the North Sea: From Functional Approaches to a More
Integrated Approach, 17 Int’l J. Marine & Coastal L 325 (2002). See also Fay-
ette, supra note 18, at 557-8; De Roo et al., supra note 41, at 26.
51 Greenland is party to OSPAR via Denmark’s ratification.
52 OSPAR Commission, Quality Status Report, Geography, Hydrography and
Climate (2000).
53 OSPAR, supra note 32, Articles 25, 27(2).
54 OSPAR, supra note 32, Article 1(a) (defining the Maritime Area).
55 OSPAR, supra note 32, Annex V, Article 2 (providing the example of
OSPAR, which specifically refers to CBD).
56 Although this is non-binding as it’s within the preamble the contents should
be interpreted in keeping with this approach.
57 Conservation and Sustainable Use of Marine and Coastal Biological Diver-
sity, COP 2, Decision II/10, Part xi, available at http://www.cbd.int/decision/
cop/?id=7 083.
58 See supra notes 37-38 (environmentalists, scientists and the offshore indus-
try debate whether or not in application of the precautionary principle offshore
drilling should cease).
59 R. SONI, CONTROL OF MARINE POLLUTION IN INTERNATIONAL LAW 39 (Juta &
Co.1985).
60 B. STONEHOUSE, ANIMALS OF THE ARCTIC 52-54 (Ward Lock Ltd. 1971);
PAME, supra note 10.
61 An Introduction to the Arctic Climate Impact Assessment, supra note 1.
62 Identified by the CBD Conference of the Parties (2004).
63 B. Lausche, Guidelines for protected areas legislation, IUCN (June 2011)
(highlighting that areas with hydrothermal vents or polar bear habitats are
considered vulnerable areas). S. GUBBAY, MARINE PROTECTED AREAS – PRINCIPLES
AND TECHNIQUES FOR MANAGEMENT (Chapman & Hall, 1995).
64 Conservation of Arctic Flora and Fauna, CPAN (Feb 2012), www.caff.is/
about_cpan [hereinafter CAFF]; UNEP, National and Regional Networks of
Marine Protected Areas: A Review of Progress (2008).
65 Lausche, supra note 63.
66 The Convention on Biological Diversity 1992, http://www.cbd.int/conven-
tion/, last accessed Feb. 9, 2013.
67 Id.
68 ANTHONY AUST, HANDBOOK OF INTERNATIONAL LAW 338 (Cambridge University
Press 2005).
69 CAFF is one of the Arctic Council’s six working groups.
70 CAFF, CPAN, supra note 64.
71 CAFF, CPAN, supra note 64; UNEP, National and Regional Networks of
Marine Protected Areas: A Review of Progress (2008).
72 A. Hidyarad, ENDANGERED WILDLIFE AND PLANTS OF THE WORLD 1636 (Mar-
shall Cavendish Corporation 2001). See also Greenpeace, Black on White: The
Threat of Arctic Oil to Whales (July 2011).
73 S.D. Rice, Persistence, Toxicity and long-term environmental impact of the
Exxon Valdez Oil Spill, 7 U. St. Thomas L.J 55, 57 (2009-10); see The Exxon
Valdez Oil Spill Trustee Council (Rodgers et al.), supra note 12 (the estimated
ranges are large as there is debate over how many species actually died as
carcasses sink uncounted but this is the general range, with over 35,000 seabird
and 1,000 sea otters carcasses actually retrieved).
74 STONEHOUSE, supra note 60.
75 Koivurova and K. Hossain, Offshore Hydrocarbon: Current Policy Context in the
Marine Arctic, Arctic Transform, 18/19; W.N. ROM, ENVIRONMENTAL POLICY AND PUBLIC
HEALTH: AIR POLLUTION, GLOBAL CLIMATE CHANGE (John Wiley & Sons Inc. 2012).
76 The Wilderness Society, Broken Promises, The Reality of Oil Development
in America’s Arctic, 10 and 2 (September 2009).
77 Hamilton, supra note 7.
78 Alaska Center for Climate Assessment Policy, Arctic Marine Shipping
Assessment, 2; WWF, Polar Bears at Risk (2002), available at http://www.
oilspillcommission.gov/sites/default/files/documents/Updated%20Arctic%20
Working%20Paper.pdf.
79 Greenpeace, Black on White: The Threat of Arctic Oil to Whales (July
2011); Koivurova, supra note 9, at 55. The International Agreement for the
Conservation of Polar Bears 1973,
72 SUSTAINABLE DEVELOPMENT LAW & POLICY
80 Art. II, Nov. 15, 1973, 27 U.S.T. 3918, 13 ILM 13(1974), available at http://
sedac.ciesin.org/entri /texts/polar.bears.1973.html.
81 Id. at Art.II.
82 Matt Irwin, Note, Polar Bears, Oil and the Chukchi Sea: The Federal
Government Sells Mineral Rights in Polar Bear Habitat, 8 SUSTAINABLE DEV.
L. & POLY 40, 40 (2008) (noting that in the U.S. sector of the Chukchi Sea, oil
exploration has been allowed within polar bear habitats. There was an ominous
delay in considering the status of polar bears with regards to the US endangered
Species Act meaning the US MMS Department could auction off these licenses
with relatively few encumbrances. This area is home to 10% of the polar bear
population). See also LOUKACHEVA, supra note 40.
83 De Roo et al., supra note 42 at 20-22; WWF, POLAR BEARS AT RISK (2002),
available at http://www.oilspillcommission.gov/sites/default/files/documents/
Updated%20Arctic%20Working%20Paper.pdf.
84 Thurston, Offshore Oil and Gas Activities in the Arctic (PAME October
2003); National Commission on the BP Deepwater Horizon Oil Spill and
Offshore Drilling, The Challenges of Oil Spill Response in the Arctic (Staff
Working Paper Number 5, January 11 2011). http://www.oilspillcommission.
gov/sites/default/files/documents/Updated%20Arctic%20Working%20Paper.pdf.
85 K. Casper, Oil & Gas Development in the Arctic: Softening of Ice Demands
Hardening of International Law 49 Nat. Resources J. 825, 839 (2009); Fayette,
supra note 19 at 543; Smith, WWF, Environmental Impacts of Offshore Oil and
Gas Development in the Arctic (2003).
86 United States Geographical Soc’y, Circum-Arctic Resource Appraisal: Esti-
mates of Undiscovered Oil and Gas North of the Arctic Circle (2008), available
at http://pubs.usgs.gov/fs/2008/3049/fs2008-3049.pdf. (noting that 84% of this
is predicted to be offshore oil, within states Exclusive Economic Zones (EEZs).
This figure although reduced from the prior USGS pronouncement, has led to
scientific queries about the level of accuracy).
87 Experts generally accept that sustainable development is now an established
principle of environmental law. Although some academics dispute this— for
purposes of this article, sustainable development is an accepted opinion.
Unfortunately there is no scope for a further discussion in this paper. See gener-
ally R.R. CHURCHILL & A.V. LOWE, THE LAW OF THE SEA (1988); DIRE TLADI,
SUSTAINABLE DEVELOPMENT IN INTERNATIONAL LAW (PULP 2007).
88 M. Jacobs, Sustainable Development as a Contested Concept in FAIRNESS
AND FUTURITY: ESSAYS ON ENVIRONMENTAL SUSTAINABILITY AND SOCIAL JUSTICE,
218 (Oxford University Press 1999).
89 Our Common Future: Report of the World Commission on Environment and
Development, Towards Sustainable Development (The Bruntdland Report)–
Chapter 2 U.N. A/42/427 (1987), available at http://www.un-documents.net/
wced-ocf.htm.
90 See UN Environment Program (“UNEP”), Nairobi Declaration on the
State of the Worldwide Environment from the UN Conference on the Human
Environment in Stockholm (1972), UNEP/GC.10/ INF.S of May 19, 1982 UNEP
Regional Seas Programme, IUCN World Conservation Congress (resulting in
many of recommendations and resolutions including many on sustainable devel-
opment). See also United Nations Conference on Environment and Develop-
ment, Rio de Janiero, Braz., June 13-14, 1992, Rio Declaration on Environment
and Development, A/CONF. 151/26 (Vol. 1), Principle 22 (Aug. 12, 1992); UN
World Summit on Sustainable Development (Earth Summit), Johannesburg, S.
Afr. (Aug. 26-Sept. 4, 2002); OSPAR, supra note 31.
91 MIKKELSEN, supra note 4 at 5; Preamble, Guidelines for Environmental
Impact Assessment (EIA) in the Arctic, Preamble (2007).
92 Arctic Council, U.S. DEPARTMENT OF STATE, available at http://www.state.
gov/e/oes/ocns/opa/arc/ac/index.htm, last accessed Jan.15, 2013.
93 L. Nowlan, IUCN Environmental Law Programme, Arctic Legal Regime for
Environmental Protection, 12 (2001); Timo Koivurova & David L Vanderzwaag,
The Arctic Council at 10 Years: Retrospective and Prospects 40 UBCL Rev.
121, 150 (2007); see also MIKKELSEN, supra note 4 at 30.
94 Focusing on issues such as sustainable reindeer husbandry and telemedi-
cine. MIKKELSEN, supra note 4; David Vanderzwaag, The Arctic Environmental
Protection Strategy, Arctic Council and Multilateral Environmental Initiatives:
Tinkering while the Arctic Marine Environment Totters, 30 Denv. J. Int’l L. &
Pol’y 131, 152-4 (2001-2); Paula Kaankaanpää and Oran R Young, The Effec-
tiveness of the Arctic Council, Polar Research 31, 17176 (2012) (noting that
until 2006 there was little focus on the offshore oil industry). For a full list of
projects/activities relating to SDWG see: www.sdwg.org/content.php?doc=86.
95 International Polar Year Project, Arctic Energy Summit – The Arctic as an
Emerging Energy Province (February 2010) (including coal, gas and many
renewables and rural energy sources).
96 See Koivurova & Vanderzwaag, supra note 93 at 160 (discussing the alter-
ing visions that the change in chair has upon the Arctic Council. See also www.
sdwg.org/content.php?doc=75 for details of the Best Practices in Ecosystem-
based Ocean Management report.
97 Sustainable Development Working Group, Report on Arctic Energy (2006).
98 Guidelines for EIA, supra note 33, at Preamble (1997).
99 Guidelines for EIA, supra note 33, at Preamble, Part 1 (Pages 6,7, 8 and 9),
Table 1, Part 4, Part 7, Part 8, Part 9 and Part 10.
100 Arctic Council, Arctic Offshore Oil and Gas Guidelines, ¶ 1.3 (2009),
http://www.pame.is/images/PAME_NEW/Oil%20and%20Gas/Arctic-Guide-
lines-2009-13th-Mar2009.pdf.
101 Arctic Offshore Oil and Gas Guidelines, supra note 34.
102 See text relating to notes 135-161 regarding public participation in EIAs.
103 OSPAR Convention 1992, Preamble, Sept. 22, 1992. Positive examples of
OSPAR’s regulation of the offshore industry include: OSPARCOM Decision
2000/3 prohibited oil-based muds and allowed discharge of synthetic fluids only in
‘exceptional circumstances’ and subsequent OSPARCOM monitoring and reporting
requirements. OSPAR Recommendation 2001/1 regulates the management of pro-
duced water discharge and again provides for monitoring and follow-up procedures.
104 OSPAR Commission, The North-East Atlantic Environment Strategy –
OSPAR Agreement (2010-3).
105 See text relating to notes 18-22.
106 Casper, supra note 85, at 839; Koivurova, Molenaar, & Vanderzwaag, supra
note 17 at 260. Huebert, in NORDQUIST ET AL., supra note 1; SALE & POTAPOV,
supra note 25, at 141-2.
107 STONEHOUSE, supra note 60 at 55; Snyder, International Legal Regimes to
Manage Indigenous Rights & Arctic Dispute from Climate Change, 22 COLO.
J. INTL ENVTL L. & POLY, 6 (2011) (providing a detailed discussion of use of
different flora fauna and cultural importance of marine environment in which he
acknowledges that most Arctic indigenous people live by and rely on the coast);
S.J. Dresser, Safeguarding the Arctic from Accidental Oil Pollution 16 SW. J.
INTL LAW 507, 512 (2010) (utilizing a large number of marine mammals: fish,
whales, seals, polar bears and walruses).
108 See supra note 8 and see section on sustainable development.
109 JOHN BYRNE, LEIGH GLOVER & CECILIA MARTINEZ, ENVIRONMENTAL JUSTICE:
DISCOURSES IN INTERNATIONAL POLITICAL ECONOMY, 3 (2002); BRYANT, ENVIRON-
MENTAL JUSTICE ISSUES, POLITICS AND SOLUTIONS 6-7 (1995).
110 WESTRA, supra note 7, at 208-9; S. JAMES ANAYA, INDIGENOUS PEOPLES IN
INTERNATIONAL LAW (2004).
111 Dalee Sambo Dorough, Inuit of Alaska: Current Issues in POLAR LAW,
supra, note 40 at 200.
112 O.W. Pedersen, Environmental Principles and Environmental Justice, 12
Envtl. L. Rev. 26, 27-8 (2010); RONALD SANDLER, ENVIRONMENTAL JUSTICE AND
ENVIRONMENTALISM: THE SOCIAL JUSTICE CHALLENGE TO THE ENVIRONMENTAL
MOVEMENT 88-9 (2007) (acknowledging that distributive justice was recognized
by Aristotle as key part of justice).
113 Pedersen, supra note 112; SANDLER, supra note 112; BYRNE, GLOVER &
MARTINEZ, supra note 109.
114 Pedersen, supra note 112; SANDLER, supra note 112; BRYANT, supra note 109.
115 Pedersen, supra note 112; BYRNE, GLOVER & MARTINEZ, supra note 109.
116 Pedersen, supra note 112 at 28; NICHOLAS LOW & BRENDAN GLEESON, JUS-
TICE, SOCIETY AND NATUREAN EXPLORATION OF POLITICAL ECOLOGY (1998).
117 Int’l Labor Org. (“ILO”), The Indigenous and Tribal Peoples Conven-
tion, ILO169 (June 27, 1989), available at http://www.unhcr.org/refworld/
pdfid/3ddb6d514.pdf
118 United Nations Declaration on the Rights of Indigenous Peoples 2007 A/
RES/61/295(Sept. 13, 2007). Despite initial opposition Canada and USA in
2010 showed their support for UNDRIP. Leaving Russia as the sole Arctic state
opposing UNDRIP.
119 The Arctic Council, Member States, http://www.arctic-council.org/index.
php/e n/about-us/members.
120 Indigenous and Tribal Peoples Convention, supra note 117.
121 Id. at Preamble.
122 Id. at Art. 2(2)(a).
123 Id. at Art.6 and 15(2).
124 Lillian Aponte Miranda, Indigenous Peoples as International Lawmakers,
32 U. PA. J. INTL. L. 203, 236 (2010-11).
125 Greenland and the Faroe Isles are also parties to this Convention via Denmark.
126 John B. Henriksen, Oil & Gas Operations In Indigenous Peoples Lands
And Territories In The Arctic: A Human Perspective, 4 Galdu Cala – Journal of
Indigenous Peoples Rights 24, 30 (2005).
732012–2013
127 United Nations Declaration on the Rights of Indigenous Peoples, supra 117
at Art. 32(2).
128 Erica-Irene A. Daes, The Contribution of the Working Group on Indigenous
Populations to the Genesis and Evolution of the UN Declaration on the Rights of
Indigenous Peoples in Making the Declaration Work: The United Nations Decla-
ration on the Rights of Indigenous Peoples 87-8 (IWGA, Copenhagen 2009).
129 Aponte Miranda, supra note 124.
130 Snyder, supra note 107, at 15; Dorough in POLAR LAW, supra note 40;
Bratspies, supra note 8, at 276-7.
131 United Nations Conference on Environmental and Development (UNCED,
June 3-14, 1992) Agenda 21, Chapter 26 (June 14, 1992).
132 Id.
133 United Nations Convention on Biological Diversity, June 5, 1992, 1760
U.N.T.S. 79.
134 United Nations Convention on the Law of the Sea (UNCLOS), Dec. 10,
1982, 1833 U.N.T.S. 3.
135 Bratspies, supra note 8, at 269.
136 Id.
137 Koivurova, Shifting Seascape supra note 18; see also Koivurova & Mole-
naar, supra note 19.
138 MIKKELSEN & LANGHELLE, supra note 4.
139 Denmark’s 1996 ratification of ILO169, and 2007 voting in favor of the UN
Declaration on Rights of Indigenous Peoples applies to Greenland and the Faroe Isles.
140 See RAIPON’s submission to the Human Rights Council Universal Periodic
Review Mechanism, 9 October 2012 at <http://www.raipon.info/en/component/
content/article/8-news/91-ngo-submission-to-the-human-rights-council-universal-
periodic-review-mechanism>; <htmlwww.nunatsiaqonline.ca/stories/article/65674
russian_indigenous_org_calls_for_arctic_council_support_to_fight_shut-/>
141 See text relating to notes 18-26 for a discussion of the criticisms of the soft
law created by the Arctic Council.
142 IUCN and E&P Forum, Oil And Gas Exploration And Production In Arctic
And Subarctic Onshore Regions: Guidelines For Environmental Protection
(1993); Koivurova, supra note 40; PHILIPPE SANDS & JACQUELINE PEEL, INTERNA-
TIONAL ENVIRONMENTAL LAW 141-3 (Cambridge University Press, 2012).
143 See Pedersen, supra note 112; WESTRA, supra note 7.
144 UN Convention on Environmental Impact Assessment in a Transboundary
Context (“the Espoo Convention”) art. 1 (vi), Feb. 25, 1991.
145 The Espoo Convention, supra note 144, at art. 1 (viii).
146 Along with other activities, the Espoo Convention, supra note 143, at
Appendix I (15).
147 See United Nations Treaty Collection (April 2012) http://treaties.
un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-4&chap-
ter=27&lang=en> (noting in 1997, Denmark declared that the ESPOO
Convention applies to Greenland and the Faroe Islands. In 1998 Canada made a
reservation for all proposed activities that fall outside the remit of the Canadian
federal jurisdiction. This reservation has been objected to by a number of States
(including Norway for its lack of clarity with regards to applicability)).
148 Arctic Offshore Oil and Gas Guidelines ¶ 2 and 3.1 (2007); 1 Arctic
Offshore Oil and Gas Guidelines supra note 34; Linda Nowlan, IUCN Envi-
ronmental Law Programme, Arctic Legal Regime for Environmental Protection
(2001); Koivurova, supra note 40, at 107.
149 Nowlan, supra note 148; Koivurova, supra note 41, at 107.
150 United Nations Convention on the Law of the Sea, supra note 134.
151 The Espoo Convention, supra note 144 at art. 5 and 2(6).
152 Koivurova, The Transnational Eia Procedure Of The Espoo Convention in
THE FINNISH YEARBOOK OF INTERNATIONAL LAW 173-4 (Brill 1997).
153 The ESPOO Convention is a Convention adopted by the United Nations
Economic Commission for Europe (UNECE) and has 45 parties to the Conven-
tion (see www.treaties.un.org).
154 The Espoo Convention, supra note 144 at art. 11.
155 United Nations Economic Commission for Europe, http://www.unece.org/
env/eia/meetings/mop_5, last viewed Jan. 13, 2013.
156 BASTMEIJER, supra note 35 at 347-389; SANDS, supra note 142 at 589-591.
157 KOIVUROVA, supra note 40 at 184.
158 A fur ther restriction on its effectiveness is in the reservation made by
Canada, see note 140.
159 The Arctic Offshore Oil and Gas Guidelines ¶¶1.3 and 2.4 (2009).
160 Guidelines for (EIA), ¶ 7, 15, 17 and 24-36 (1997) (stating that “one of the
most important features in Arctic assessment is the early and full involvement
of indigenous people and other local communities”).
161 Koivurova in CRAIK, supra note 40, at 107; Koivurova, Molenaar & Vander-
zwaag, supra note 18, at 157-8.
162 LOUKACHEVA, supra note 40.
163 MIKKELSEN & LANGHELLE, supra note 4, at 166.
164 Id. at 163-4.
165 Louie Porta and Nicholas Banks, Becoming Arctic Ready: Policy Recom-
mendations For Reforming Canada’s Approach To Licensing And Regulating
Offshore Oil And Gas In The Arctic at 15-16 (Sept. 2012).
166 Environmental Audit Comm., Protecting The Arctic, H.C. 7/24, at 7 note
376. (September 2012).
167 Id. at note 165.
168 Dorough, in POLAR LAW, supra note 40.
169 CONTESTED ARCTIC: INDIGENOUS PEOPLES, INDUSTRIAL STATES AND THE CIR-
CUMPOLAR ENVIRONMENT 15 (Eric Smith & Joan Mccarter Eds. 1997) [hereinafter
CONTESTED ARCTIC]; MILTON M.R. FREEMAN et al., INUIT, WHALING AND SUSTAIN-
ABILITY (Altamira Press 1998)
170 CONTESTED ARCTIC, supra note 167; FREEMAN, supra note 169.
171 CONTESTED ARCTIC, supra note 167; FREEMAN, supra note 169.
172 WESTRA, supra note 4; ANAYA, supra note 109.
173 Chief Joe Linklater, The Arctic and Energy: Exploration and Exploitation
Issues; Indigenous Peoples; Industry, 30 CAN-U.S. L.J. 301, 304 (2004).
174 See MIKKELSEN & LANGHELLE, supra note 4; see also Pedersen, supra note
112; M JACOBS in ANDREW DOBSON, JUSTICE AND THE ENVIRONMENT: CONCEPTIONS
OF ENVIRONMENTAL SUSTAINABILITY AND SOCIAL JUSTICE (Oxford Univ. Press
2004); D. PEARCE AND E.B. BARBIER, Blueprint for a Sustainable Economy in
HOLDER & LEE, supra note 4 (discussing the breadth of meanings. Early inclu-
sion of the concept is found in the Bruntdland Report, supra note 89).
175 MIKKELSEN & LANGHELLE, supra note 4; see also Shell in the Arctic (October
2012) www.shell.com/home/content/future_energy/meeting_demand/arctic/.
176 See MIKKELSEN & LANGHELLE, supra note 4 (noting that in many Arctic
coastal areas there are high levels of socio-economic deprivation and unemploy-
ment, and low education levels).
177 Id. at 323-5.
178 Id. at 147 (The revenue system is very different with near shore or onshore
sites); Nicholas E. Flanders and Rex V. Brown, Justifying Public Decisions in
Arctic Oil and Gas Development: American and Russian Approaches ARCTIC
Vol. 51, No. 3, 262, 264 (Sept. 1998).
179 Julie Porter, Regional Economic Resilience and the Deepwater Horizon Oil
Spill: The case of New Orleans Tourism on Fishing Clusters (November 2011),
available at www.cieo.ualg.pt/discussionpapers/8/article5.pdf; Hugo Pinto,
et al., Spatial and organization Dynamics – Discussion Papers Number 8, 72
(CIEO Nov. 2011), available at www.cieo.ualg.pt/discussionpapers/discussion-
papers8.pdf (scientists, environmentalists and politicians debate the level of
risk offshore oil development poses on accidental spills with many stating that
both the level of pollution and the ability to clean-up are severely curtailed by
conditions in the Arctic Ocean). See also text relating to notes 35-37.
180 S.D. Rice, Persistence, Toxicity and long-term environmental impact of the
Exxon Valdez Oil Spill, 7 U. ST. THOMAS L.J 55, 56 (2009-10).
181 Fayette, supra note 19, at 548.
182 Rice, supra note 180, at 57. (The Exxon Valdez Oil Spill Trustee Council
Questions and Answers, http://www.evostc.state.ak.us/facts/qanda.cfm
(accessed 6 February 2012) – The estimated ranges are rather large as there is
disagreement as to how many species actually died as carcasses sink uncounted
but this is the general range, with over 35,000 seabird and 1,000 sea otters
carcasses actually retrieved).
183 See James Anaya, Report of the Special Rapporteur on the Rights of Indigenous
Peoples – Extracting Industries Operating Within or Near Indigenous Territories, A/
HRC/18/35 (July 11, 2011); Pedersen, supra note 111; DOBSON, supra note 172.
184 HOLDER & LEE, supra note 4 at 217.
185 H.J. STEINER, P. ALSTON & R. GOODMAN, INTERNATIONAL HUMAN RIGHTS IN
CONTEXT (Oxford Univ. Press 2000) (quoting Mary Robinson, UN High Com-
mission Human Rights stated “we now recognise that respect for human rights
is at the core of sustainable development’ and acknowledged that the poor and
rich unbalance can be redressed”).
186 See MIKKELSEN & LANGHELLE, supra note 4 (developments that are carried
out in a way that is compatible with international environmental law principles
and concepts could not automatically be viewed as contrary to environmental
protection); Roel Slootweg et. al., Biodiversity in Environmental Assessment:
Enhancing Ecosystem Services for Human Well-being 2010.
187 Simon, supra note 8.
188 For example, UNCLOS with regards to the USA, ILO169 with regards to
Canada, Russia and USA, CBD with regards to the USA, USA and Russia with
regards to the Espoo Convention and OSPAR with regards to Canada, Russia
and the USA.