You have been asked by the Indonesian Minister of Trade a question relating to the problem of genetically modified organism (“GMO”) products. Indonesia is a major palm oil producer and exporter. LIPI (the Indonesian equivalent of the NSF) has developed certain strains of GMO palm oil trees adapted to the increasingly hot Indonesian climate (as a result of climate change). There are two strains of these GMO palm oil trees. The first patented strain simply increases productivity in producing 20% more palm oil than existing “ordinary” (meaning non-GMO) trees. The second patented GMO strain produces the so-called “good cardio CPO” which is a healthier kind of crude palm oil with beneficial effects at the whole population level on the incidence of heart disease on those who consume the good cardio CPO as part of their diet.

The Minister is well aware of the very vocal opposition to GMO technology that exists particularly in Europe, but also elsewhere in the world. He is also aware how difficult it would be to sell either the more productive oil palm seed, or the good cardio oil palm seed to tropical agricultural exporters like Brazil, Malaysia, or African countries if simply using the seeds might disqualify their exports to wealthy, industrialized Europe, or most recently to China. They are also aware of the fact that once the oil palm seeds are planted, the trees do not yield any appreciable amount of CPO for three years (and the trees have to be replaced after 25 years, because thereafter their oil production decreases markedly).

Please counsel the Minister in writing an advisory letter first explaining the applicable trade and environmental law framework for GMO products in the export trade, then suggest how best to approach the problem of successfully introducing the more productive GMO palm oil tree seeds, good cardio seeds and CPO into international commerce, and ultimately selling more productive tree and good cardio CPO and related products into the European Union, China and other international markets.

Should you wonder, as indicated by the geography this is another one of those questions originally written for Indonesian law students. I want to see if you and they understand the law, and the advisability of the proposal the same way.

Copyright 2020–21 © David Linnan.

Trade/Scientific Risk NTBs & Non-State Aspects (GMOs Plus)

1/3 Read:

a. EC Measures Concerning Meat and Meat Products (Hormones) (aka Beef Hormone Case, WT/DS26/AB/R & WT/DS48/AB/R, January 16, 1998 WTO Appellate Body edited), if you are confused by some of the references you could refer as necessary to the SPS (Sanitary and Phyto-Sanitary) Agreement

b. Addition to the Convention on Biological Diversity, 2000 Cartagena Biosafety Protocol

c. Dolly the Sheep GMO Case Study

Copyright 2020–21 © David Linnan.

Trade/Scientific Risk NTBs & Non-State Aspects (GMOs Plus)

1/3 First read the Beef Hormone case, then do the readings and work individually the separate case study on Dolly the Sheep and GMOs, which follows up on the Cartegena Biosafety Protocol.

2/3 Again individually, how could you apply the Beef Hormones decision to GMOs? Is it consistent with the view of GMOs contained in the Cartagena Biosafety Protocol? What accounts for the different perspectives? How does the Beef Hormones decision approach the question of risk and the ability of countries to set domestic food safety (phylosanitary) standards that would tend to exclude GMOs or other products essentially on a health claim? Can governments set health standards to exclude the import of rotten beef? If so, why not allow the exclusion non-organic beef? How should the Cartagena Protocol as multilateral environmental agreement be reconciled with GATT/WTO obligations?

3/3 Everyone should read and think about it it, but we shall appoint a group of students to work on and present in class the Good Cardio Palm Oil Problem.

Copyright 2020–21 © David Linnan.

Trade/Scientific Risk NTBs & Non-State Aspects (GMOs Plus)

We now edge into the overlap between international trade law and international environmental law, to be embraced more directly in Unit 9. The risk assessment area constituting our initial foray emerged in practice from two different directions, namely on the one hand through pressure from the life sciences (the 1990s emergence of cloning and genetic modification technology), and on the other hand through a regulatory focus on how to handle the resulting genetically modified organisms (GMOs) in ordinary commerce. Remember those more expensive food products labelled as non-GMO that you see every day in the grocery store? Presumably there is a market for non-GMO goods as a matter of consumer preference, but what is the basis of that preference?

1/5 By way of background, we should acknowledge differences in terms of the mindset behind international trade law, or at least the multilateral international trading system, compared to international environmental law. Trade law is treaty-based and enjoys the relative luxury for legal purposes of the centralized World Trade Organization or WTO. It traditionally enjoys strong support from the private sector, so Chamber of Commerce-types lines up on a different side. There is basically a very different orientation towards domestic regulation in trade law resulting from its bias against protectionism. Lawyers are always concerned close to the surface in trade law discussions that normal regulatory jurisdiction not be perverted as a means to avoid import competition, as opposed to a relatively more open-minded search in making international environmental law for something approaching any quasi-regulatory, parts per million-style solution to environmental issues (although the Chamber of Commerce-types may complain about the additional costs imposed by environmental regulation). International trade law’s current travails belong in another course (LAWS 665), but the overlap of trade and the environment is also a legal question for us, since they call upon sometimes different, but overlapping treaties and law.

2/5 We are implicitly focused here on the overlap between the WTO’s legal structures for defining permissible regulation chiefly of food safety concerns under Article 20(b) of the 1994 GATT/WTO Agreement and the question of risk in dealing with genetically modified organisms (GMOs) also governed by the 1992 Convention on Biological Diversity (CBD), or more specifically the amendment to the CBD as framework convention known as the 2000 Cartagena Protocol on Biosafety (Cartagena Protocol). The shared issue is how to deal with risk and regulation, but the answers are very different.

In the 1998 WTO Beef Hormone Appellate Panel Proceeding, the body rejected the action and arguments of the European Union to exclude importation of feedlot-raised or industrially produced livestock (beef) because of the related use of veterinary hormones to accelerate the livestock’s growth (meanwhile, growing livestock faster and heavier makes it a more competitive product in meat industry terms). The formal trade law agreements applied included Article 20(b) of the 1994 GATT/WTO Agreement, and its subsidiary Sanitary and Phytosanitary Agreement (the SPS Agreement, basically governing regulation of food safety in detail). The SPS Agreement required a risk assessment supported by science before EU regulations excluding such “hormone beef” from ordinary consumption would be accepted as a legal matter. Think of this as a dispute about whether only (expensive) “Whole Foods-grade organic beef” could be exported to Europe, as opposed to allowing also (much cheaper) “Food Lion-grade conventional beef” could be labelled as such, and also sold into Europe.

3/5 There were diverse candidates regarding the EU’s motives for the challenged regulation rejecting the importation of hormone beef. There were firstly suspicions concerning a desire to support the EU’s Common Agricultural Policy as a necessary political pillar for the EU to function (because the hormone beef might undercut the price of European livestock, which as a general matter were not produced via feedlots or industrial scale farms, and so were less competitive in terms of meat prices). There were also political considerations given that Green parties were in, or verging on entering, governing coalitions in different parts of the EU, but particularly in Germany (and the Greens placed a high political priority in their party platforms on the exclusion of GMO products, essentially for ideological reasons). There were also relatively close in the rearview mirror a series of so-called “mad cow disease” political scandals which undercut ordinary Europeans’ confidence in domestic food safety regulation. The problem was that allegedly for political reasons, various European ministers of agriculture or similar officials denied the existence of infected cattle in the European food supply chain in the 1980s-90s, with the result of a highly publicized series of pitiful deaths of consumers in Europe due to mad cow disease (Creutzfeld Jakobs disease) allegedly caused by their consumption of “mad cow” meat slaughtered in Europe. So European voters doubted whatever their domestic politicians said about food safety (because they thought the politicians’ statements were driven more by their concern for the farm vote). There were numerous politically valid concerns in the EU militating towards exclusion of hormone-treated beef, but the problem was the lack of a scientific basis for its exclusion as required by the WTO’s SPS Agreement.

Meanwhile the WTO dispute resolution body also opined in the Beef Hormones proceeding that as a matter of law, the EU’s position that the Precautionary Principle argued for by some in international environmental law circles as proper approach to risk (reaching outside the SPS Agreement) had not become customary law. So the Europeans were formally required to permit the importation of hormone beef, although they chose instead non-compliance and are still incurring trade sanctions in lieu of compliance, presumably because of the initial domestic political rationales for their exclusionary decision. When challenges to GMO food importation reached the WTO, the Beef Hormones decision and coverage of the SPS Agreement seemingly dictated the outcome. In fact, the EU as a tactical matter refused to process food safety certifications for GMO foods for a number of years, until eventually the “non-processing” was itself challenged as administrative trade decision, and the EU was formally required to admit non-GMO foods. The latest development includes a European challenge to applicability of the SPS Agreement (with its requirement that food regulations have a basis in science) to the regulation of GMO foods, in favor of the Technical Barriers to Trade (TBT) Agreement, which coincidentally does not contemplate the application of science. The long-running trade dispute over GMO foods continues.

4/5 Meanwhile, the CBD emerged alongside the UN Framework Convention on Climate Change (Greenhouse Gas Convention) as the other important international environmental law convention to come out of the1992 Rio UN Convention meeting. Unlike the Greenhouse Gas Convention, however, the US never signed the CBD. The reason the US failed to embrace the CBD largely involves ideological opposition– as with LOS– to the convention’s recognition of an inchoate interest of a member country in any genetic material from said country commercialized in any product (targeting Big Pharma theoretically for royalties or similar fees when marketing a killer drug for the treatment of HIV, derived from a fungus initially gathered by bio-prospectors in the Amazon river basin). (We shall talk in greater detail about the CBD in Unit 14 as the chief treaty to address biodiversity in the modern setting, but for now are more interested in the Cartagena Protocol.) The Cartagena Protocol as amendment to the CBD as framework convention specifically addressed the issue of GMOs, in a practical sense treating them as inherently dangerous and so subject to regulation and exclusion upon notice from any member country, due to a perceived risk that the genetic material might escape into that country’s ordinary environment and wreak havoc by propagating itself through its environment. The easy to understand analogy is that GMOs were subjected by the Cartagena Protocol to the standards for cross-border trafficking in hazardous waste applicable under the Basel Convention, which we study in Unit 12.

5/5 Ask yourself a resulting legal question in the following terms. The US is a member country of the WTO (thus far, and we presumably continue as such as a matter of self-interest). Meanwhile, the US is not a member country of the CBD or Cartagena Protocol, despite the obvious international environmental law interests at stake. However, the US may follow the development of GMO treatment and other concerns as a non-member observer in CBD meetings of the parties to further develop the framework convention (although as a non-member, its opinions may not count for much in CBD member state deliberations). What is the legal treatment the US and its nationals would be subject to or enjoy concerning GMOs? Under the WTO the US and its nationals interested in GMOs are effectively protected by the Beef Hormones case jurisprudence. Meanwhile, under the CBD or Cartagena Protocol GMOs are subject to aggressive regulation as though they constituted hazardous waste. Remember those Vienna Convention treaty rules we studied in Unit 6?

Copyright 2020–21 © David Linnan.

General Resources

Intergovernmental Panel on Climate Change: Created in 1988 by the World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP), the objective of the IPCC is to provide governments at all levels with scientific information that they can use to develop climate policies.

The IPCC’s Fifth Assessment (2013-2014) is the most recent.
The IPCC’s Sixth Assessment is in process now.

United Nations: Treaties, international agreements, and associated documents. Search template for the UN’s Official Documents System (ODS) accessed through Documents page. ODS contains conference of the parties (COP) documents.

U.S. 4th National Climate Assessment (U.S.), Volume I (2017)
U.S. 4th National Climate Assessment (U.S.), Volume II (2018) – Chapter 19 addresses issues in the Southeastern U.S., including a case study of Charleston’s sea level rise.

Flood Factor: Site enables searching of individual addresses to get an assessment of flood risk. Sponsored by First Street Foundation. First Street Foundation is a non-profit research and technology group defining America’s flood risk. (Get a data set for Charleston by entering Charleston, South Carolina in the search box on the home page.)

World Trade Organization’s Environmental Database: contains all environment-related notifications submitted by WTO members as well as environmental measures and policies mentioned in the Trade Policy Reviews of WTO members.

Thomas Cooper Databases: Access from Thomas Cooper’s database page.

GreenFILE: The Thomas Cooper Library does not have a database specifically dedicated to international environmental law, but GreenFILE recognizes “international environmental law” as a subject term. Best research strategy: Select the GreenFILE database from Cooper’s database page. When you get the search template, choose “subject terms” from the “Select a Field” dropdown menu and type “international environmental law” into the accompanying search box. Use other Boolean fields if needed. Use options in left-hand sidebar to filter results.

Agricultural and Environmental Sciences Collection: Best search strategy: Access database and type in the search box (example: international climate). The search engine’s auto-complete feature will populate a number of choices, so you can select one if you find one you like, but you can also run a keyword search without selecting any of the suggested choices. Use options in left-hand sidebar to filter results. Note that the results in this database contain dissertations. Warning: this database is not guaranteed to offer a full-text format for every result discovered.

ASFA: Aquatic Sciences and Fisheries Abstracts: includes environmental law on water environments. Note that this database primarily contains abstracts, but the records frequently lead to pdfs of original documents.

Jstor: archive of scholarly articles from numerous fields of study. Access through the law library’s electronic resource link or from Thomas Cooper’s database page.

Research Guide: Environmental issues frequently overlap with business and economic issues. Thomas Cooper Library offers a research guide to international business & statistics – free web resources, Cooper databases for international business, brief instructions on navigating the databases

Bibliographies

Bibliographies, although they become outdated fairly quickly, are good starting points to use in finding resources. Bibliographies will give you listings of resources on a given topic. If they have become outdated, you can check the catalog for more current editions of the resources listed. You can search for bibliographies in the USC Libraries catalog. In the search bar at the top of the page, type: bibliography climate change. Restrict the date if you only want current entries.

Many of these resources are online, and most of the physical volumes will be located outside of the law library. We share our new catalog system with the entire borrowing consortium of SC academic libraries, so to filter results by library use the “Library” filter on the left-hand sidebar of your catalog results.

Examples:

Global climate change pathfinder: a guide to information sources
Print resource available at Thomas Cooper Library, Call Number QC981.8 .C5 P54 1992

VULNERABILITY ASSESSMENT METHODOLOGIES: AN ANNOTATED BIBLIOGRAPHY FOR CLIMATE CHANGE AND THE FISHERIES AND AQUACULTURE SECTOR
William Barsley ; Cassandra De Young ; Cécile Brugère
FAO fisheries and aquaculture circular, 2013-01-01 (1083), p.I
… PREPARATION OF THIS DOCUMENT This circular contains a comprehensive annotated bibliography of vulnerability methodologies specific to climate change…(online resource)

Global sea level rise scenarios for the United States National Climate Assessment
Parris, Adam, author.; United States. National Oceanic and Atmospheric Administration. Climate Program Office, issuing body.
2012 (online resource – pdf)

If you don’t find anything you like in the catalog, a Google search will also turn up bibliographies. Publishers, government agencies, and academic institutions might be the providers. Suggested search: bibliography climate change

Examples:

Penn State: https://sites.psu.edu/helpclimatechange/bibliography/

NOAA: https://repository.library.noaa.gov/view/noaa/1369

NYU: https://www.nyulawglobal.org/globalex/Climate_Change_Bibliography1.html

Law-Related Resources

Hein Online: Scholarly archive of pdf documents; contains databases for international treaties and agreements, as well as UN documents collection. Also contains documents related to international environmental law. Best search strategy: conduct a catalog search within Hein for international environmental.

Access through the law library’s electronic resource link or from Thomas Cooper’s database page.

American Society of International Law (ASIL): Good collection of general information; some access restricted to members. Topics section offers pages on International Law and Climate Change (currently under development) and Environment, Health, Science, & Technology, and International Economics; contains links to agreements and reports.

Lexis: Practice Area on International Law (no practice area specifically for international environmental law).

Congressional Research Service (CRS): Search for “climate change” in the search box on the homepage. Results filtered on the left-hand sidebar

House of Representatives: Get hearings on climate change. From search bar in upper right of homepage, type: hearing climate change (works on any other keyword, such as sustainability)

ProQuest Congressional: Research tool accessed through the law library’s electronic resources page. Access to congressional documents and activity, including bills, committee reports, transcripts of testimony from congressional hearings, and debates and statements from members of Congress. Full-text information can be retrieved using search terms or document numbers. Most productive search strategy to get hearings on the Fourth National Climate Assessment: The ProQuest Congressional homepage will likely default to “Congressional Publications.” Accept this default and use the link for the “Advanced” search. In the “Content Types” on the left-hand sidebar, uncheck everything but Hearings, CRS Reports, and House and Senate Documents/Reports. In the search box in the upper middle of the screen, type “Fourth National Climate Assessment” (typing 4th doesn’t work as well). Using the dropdown for “in” change the location to Anywhere. You won’t need to set the date because the Fourth National Climate Assessment was done in 2018, so won’t come up in other time frames.

State or Municipal Climate Change Lawsuits

On September 9, 2020, the City of Charleston filed a lawsuit against 24 fossil fuel corporations over issues related to climate change.  Other municipalities and states have filed their own climate change suits. The Sabin Center for Climate Change Law at Columbia Law maintains a page that tracks these cases.  The site also offers a portal to non-US climate litigation.  Information on the recent US state/city lawsuits can be found in the link for “Common Law Claims” in the portal for U.S. Climate Change Litigation.

Michael Burger, Executive Director of the Sabin Center, writes extensively on climate change law.  You can find a list of his selected publications here.  If you can’t link directly to an article from this list, use the citation information to search in the online database service of your choice.  If that doesn’t get you access to the article, contact a member of the reference team in your law library for help.

Sher Edling LLP is the law firm that represents the plaintiffs in several of these climate change actions by states or municipalities.  The firm has posted a collection of documents related to this litigation.

The US Energy Information Administration has created a profile for South Carolina (and the other states).  This profile provides data on energy use, resources, and industry in the state.

The EPA provides data on greenhouse gas emissions from the transportation sector, and has created a portal containing information about greenhouse gases and emissions in the U.S.

Surging Seas Risk Finder:  maintained by the non-profit Climate Central, this site offers data and mapping tools that visualize an area’s flood risk, social vulnerability, population, income, and other variables.  Get data and map indicators for Charleston by entering the city’s name in the search box on the landing page.

City-data.com:  The site includes interactive data tools that let you mix and match numerous variables and generate online reports, as well as provides pre-made data sets if you enter a location (City of Charleston, Charleston County).

Research Guide:  Thomas Cooper offers a guide on geospacial and climate data. Geospatial means relating to or denoting data that is associated with a particular location (like Charleston, SC).

Journal Article:  Shana Jones, Thomas Ruppert, Erin L. Deady, Heather Payne, J. Scott Pippin, & Ling-Yee Huang, Jason M. Evans, Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise, 44 Colum. J. Envtl. L. 67, 70 (2019)

This Article uses roads as a case study to explore how sea-level rise is altering planning, maintenance, and funding for public infrastructure.  South Carolina is one of the four states that were studied for the article.  Article is available on Westlaw, Lexis, and Hein Online.

Think Tanks: Websites and Resources: offer research data, blogs, articles, videos, commentary, and analysis. These are largely economically oriented research operations, engaged more in popularization rather than basic research, so make your own decisions about word-searching the environment versus climate change, etc.

Brookings Institute: “The Brookings Institution is a nonprofit public policy organization based in Washington, DC. Our mission is to conduct in-depth research that leads to new ideas for solving problems facing society at the local, national and global level.” Website offers links for global development and international affairs.

Center for Strategic and International Studies: “The Center for Strategic and International Studies (CSIS) is a bipartisan, nonprofit policy research organization dedicated to advancing practical ideas to address the world’s greatest challenges.”

American Enterprise Institute: “The American Enterprise Institute is a public policy think tank dedicated to defending human dignity, expanding human potential, and building a freer and safer world.”

The Cato Institute: “The Cato Institute is a public policy research organization — a think tank — dedicated to the principles of individual liberty, limited government, free markets, and peace. Its scholars and analysts conduct independent, nonpartisan research on a wide range of policy issues.”

Peterson Institute for International Economics: “The Peterson Institute for International Economics (PIIE) is an independent nonprofit, nonpartisan research organization dedicated to strengthening prosperity and human welfare in the global economy through expert analysis and practical policy solutions.” Offers research, blogs, news

Copyright 2020–21 © David Linnan.

Issues with Markets, Distributive Justice & Agency Problems in International Environmental Law (Hidden Economics & Environmental Justice)

1/3 Read

a. The Distributive Effects of Economic Instruments for Environmental Policy. Pp. 39-62 (OECD 1994)

b. Eskimo Whaling Problem

c. Japan Whaling Association website cultural arguments on the permissibility of whale catching by modern cultures

2/3 For those with no prior familiarity with Charleston’s recent US Army Corps of Engineers Surge Barrier Study, take a look at the Corps’ website summarizing the recently completed Charleston Coastal Flood Risk Management Study.

3/3 Read as counterpoint Robinson, “Commentary: Army Corp’s plan for Charleston is worse than doing nothing at all” (Post & Courier 08/12/20).

Copyright 2020–21 © David Linnan.

Issues with Markets, Distributive Justice & Agency Problems in International Environmental Law (Hidden Economics & Environmental Justice)

1/4 Regarding the OECD excerpted publication on the distributive effects of policy instruments, how do you understand the explanation that economic policy instruments commonly considered to be neutral in effect do have distributive consequences within a single country or location? How do the distributive consequences work, and why worry about the effects anyway, as long as overall efficiency is served? Is there any difference here between purely domestic versus international schemes employing economic policy instruments? For example, consider the various carbon offset arrangements in which developed countries may fund projects reducing net carbon emissions, etc. in developing countries, as a way to satisfy their own, higher obligations to reduce carbon emissions.

2/4 If you look closely at the Eskimo Whale Hunting case and the Japan Whaling Association website, you notice that both implicitly make cultural arguments concerning the environment (remember the Freeport McMoran complaint and the cultural genocide count), but are not entirely able to pull them off. The former tries to make the argument that modern Inuit oil workers are engaged in cultural activities pursuing endangered species of whales as the exercise of indigenous rights following in their grandfathers’ footsteps, but they come off more like Civil War reenactors because they have entered the modern economy already. In the name of Japanese culture, the later seemingly condones commercial whaling dressed up as scientific research, which argument other countries think does not even pass the straight face test. What is the cautionary lesson there for broad application of environmental or distributive justice argumentation based upon claims about present or past practices carried forward to the present?

3/4 Agency problems are something law students typically have already encountered no later than courses like business corporations law, presenting problem of an agent formally acting on behalf of a principal (theoretically with the principal’s best interests at heart), but in the meantime agents more often serve their own personal interests (think of CEOs effectively setting their salaries). The classic problem is that agents often have superior knowledge of facts on the ground compared to a principal, and so their performance is very difficult to monitor. But if the principal improves his knowledge and monitors the agent ever more closely, the whole process simply becomes too time-consuming. Such problems are endemic in the context of recent international environmental law with heavy involvement of non-governmental organizations or NGOs over governments. Who represents the ordinary citizen better, and why, a single-issue, specialized non-governmental organization, or ordinary government responsible generally for public welfare? Nonetheless, agency issues are typically ignored with NGOs, perhaps as a result of their customary non-profit status. And particularly in areas like climate change, where there may be a variety of competing interests and parties, and pressures to change very basic economic arrangements (for example, decarbonization of the economy), it is difficult to make informed choices even without interposing potentially conflicted agents. Thus, this is as much as anything else a sensitization exercise, to engender consciousness of the conflicts.  So please work through on an individual basis the John Q Public Problem.

4/4 Meanwhile, distributive justice concerns are not solely the province of international environmental law, but they are unavoidable as soon as challenges like climate change are recognized as requiring broad evolution in economic structures themselves (e.g., decarbonization of the economy), at the same time as the lasting conflict is recognized between different groups of states who may place more emphasis on improving or guarding their economic and social circumstances in the midst of change.  The descriptives of developing and industrialized states captures the tension, which also accounts for the idea that certain areas of law like international trade law and international environmental law are as much growing together as conflicting in certain areas.  We borrow border adjustment tariffs or taxes as one current area of technical concern from international trade law, and overlapping concerns it raises in international environmental law, by having a student group work on the Border Adjustment Taxes (Environmental Tariffs) Problem as well as students groups working over the balance of the semester generally on (not very simple) current domestic Charleston sea level rise issues, to get a sense for how hard it is to make a variety of decisions implicating distributive justice even in the purely domestic setting via the Charleston Problem.

Copyright 2020–21 © David Linnan.

This problem addresses the differing perspectives and motivations of non-governmental organizations (“NGOs”) and governments (“Governments”) as they strive formally to represent the public in international environmental matters. The method of approach is borrowed from economics (mostly public choice or game theory, but unless you are eager to bone up on your mathematics we shall spare you a more formal introduction to the methodologies). You might want to look at the article Hazard & Kunreuther, Protecting the Environment: Finding the Balance Between Delaney and Free Play, 18 University of Pennsylvania Journal of International Economic Law 487 (1997). This article employs a bit of agency and informational analysis in an institutional setting to look at environmental risks under different institutional arrangements. The point in looking at the article is simply to inform yourself about how a non-mathematical treatment of these kind of issues might look.

We cast the problem in the following terms. The average member of the public (“John Q. Public”) may be concerned about the environment in a general sense, but is not well informed and has a variety of competing concerns. John Q. Public works in an industry “threatened” by international trade (meaning the foreigners are so much more efficient producers of his industry’s products that they can supply them more cheaply to Cascadia’s consumers). In economist’s terms, John Q. Public is a “principal” suffering from a lack of information. We stipulate that there will be permanent assymetries of information concerning the environment because of a lack of time, education, or inclination, so John Q. Public will never be able to match the access to information of “agents” representing him as the principal on environmental matters.

We envision three “agents” competing to represent John Q. Public in the environmental area. In economist’s terms, the problem with agents is that they formally represent principals but in fact have their own motivations. Thus, there is always a risk that agents will take actions formally on a principal’s behalf which in fact serve the agent’s own personal ends. In theory principals may monitor agents to ensure their faithful representation of principal interests. There are two problems with the monitoring idea. First, monitoring is a relatively high cost proposition in terms of John Q. Public’s time and effort. Ultimately, you might spend so much time monitoring that it would be cheaper to do something yourself in lieu of appointing an agent. Second, monitoring assumes development of information. We start with the assumption that, because of assymetries of information, John Q. Public’s agent for the environment will always be better informed on the pros and cons of environmental matters than he. Thus, monitoring is ultimately ineffective in this case.

We now turn to which agents might represent John Q. Public. The first agent is an environmental NGO entitled “Orangesegment.” Orangesegment is an organization of dedicated political activists, scientists and economists nobly and single-mindedly pursuing preservation of the environment. Orangesegment is well-informed about the environment, but suffers as an agent from the motivational conflict that the environment is all it cares about. Orangesegment (or at least its more vocal members) seems to lie just this side of deep ecology on the spectrum of environmental organizations. John Q. Public is not a member of Orangesegment, but he listens to their message on environmental matters like any other member of his media-cocooned society.

The second agent is Government, which we stipulate controls the country (“Cascadia”) where John Q. Public lives. Government is well-informed about the environment given expertise in its environmental regulatory agency, but presumably suffers as an agent from the motivational conflict that it wishes to continue to represent John Q. Public (the incumbent effect) at the same time that it must satisfy competing demands (unlike Orangesegment, Government is not singleminded in its pursuit of the environment). As a loyal citizen of Cascadia, John Q. Public thinks that Government sometimes does stupid things but normally has his best interests at heart.

The third agent is Cascadia’s society for the prevention of cruelty to animals (“CSPCA”). CSPCA is an organization of dedicated animal lovers, veterinarians and little old lady voters nobly and single-mindedly pursuing the humane treatment of animals. CSPCA is well-informed about pets and, to a lesser extent, about the whole animal kingdom from a conservationist point of view. However, its main concern is for domestic animals. In environmental terms, CSPCA is probably best understood as a sentimentalist’s more traditional conservation organization (at least for land mammals). Incidentally, John Q. Public owns a cat named Minette and is a member of CSPCA.

A question has arisen concerning a new draft international convention to save the whales (“Cetacean II”). The original international convention to save the whales (“Cetacean I”) entered international law years ago and represented the standard mish-mash environmental treaty under which nations undertook a obligation to study the alarming decline in the worldwide whale population without really agreeing to any binding obligations. Cascadia was a member to Cetacean I despite the fact that it lost its whaling industry with the demise of the sailing ship.

The country of Asiana is also a signatory to Cetacean I, but has both an active whaling fleet and a population with a taste for whale meat as a traditional delicacy of Asiana cuisine (so highly thought of that consuming whale meat is the culturally significant high point of traditional Asiana wedding banquets). Asiana, which enjoys mutually beneficial trade and security arrangements with Cascadia, is hesitant about Cetacean II precisely because it goes beyond Cetacean I to propose a ban on the taking of whales. Traditionalists decry Cetacean II’s absolute ban on whale hunting as anti-family values, reasoning that disturbing Asiana’s traditional wedding customs strikes yet another blow against a crucial social institution under pressure. Incidentally, Asiana is one of the countries exporting to Cascadia goods in competition with the industry in which John Q. Public works.

Orangesegment is engaged in an all-out lobbying and protest campaign in support of Cetacean II, which is in an advanced stage of negotiations. Cascadia’s Government might favor Cetacean II in the abstract, but is hesitant to push Asiana too hard (because of concerns how that might affect the trade and security arrangements). CSPCA as a conservationist organization is ambivalent about Cetacean II, both because its true focus is on land animal pets and because whale meat is a major component of catfood. In fact, its little-old-lady board of directors is launching a letter-writing campaign for CSPCA’s members to support “save the kittie[s’ food]” by keeping Cascadia out of Cetacean II. Thus, the three potential agents represent three levels of engagement pro and con in the adoption fight for Cetacean II.

Analyze the dynamics of Orangesegment, Government and CSPCA competing as agent to represent John Q. Public as principal to resolve the issue whether Cascadia should become, or pressure other countries to become, a party to Cetacean II (i.e., abandon the taking of whales). Is the resolution really driven by information assymetries or by the competing agents’ own “motives” even when they agitate to act for John Q. Public? What is the position of NGOs versus Governments, which traditionally enjoy a legal monoploy representing their citizens in international legal affairs (i.e., deciding whether or not to enter into a treaty)? Should a Governments’ position invariably take precedence over an NGOs’ position and, if so, why?

Is the right approach in general terms to think about all of these actors as John Q. Public’s agents, or is Cascadia as state the true principal rather than John Q. Public as individual? How would you relate the distinction in structural terms to the international law system to distinguish the traditional view of international law as law between states as opposed to current views of individuals with direct human rights or similar claims? How do you apply substantive international law like views of legal personality on top of the agency/informational access analysis to the three actors? What are the underlying assumptions of the three actors about the international law system, in terms of legal, governmental and democratic elements? We shall approach these questions via role-playing exercise in class.

Copyright 2020–21 © David Linnan.

Issues with Markets, Distributive Justice & Agency Problems in International Environmental Law (Hidden Economics & Environmental Justice)

1/5 In Unit 7 we shall cover some hidden economics you might otherwise encounter in the condensed version of an undergraduate environmental and natural resource economics course. But to be clear, there are essentially three technical take-aways. The first technical take-away is that most environmental economics exercises cast outputs as services rather than goods in neo-classical economics terms. For example, domestic farmers often criticize regulations that require wetlands on their farms be left in place (because they would prefer to fill them in and grow crops on the filled-in land). Meanwhile, environmental engineers might view the wetland itself as a filtering system for fertilizer run-off and the like, which cleanses the polluted water (too many nitrates) before it seeps down into the water table from which the local community draws its water via wells. It is also possible that there might be recreational uses, such as transit points for migratory waterfowl (so Ducks Unlimited hunters would be excited too). So the insight is that you are more often dealing with environmental assets in terms of services drawn from them, rather than goods or assets per se. And jumping ahead, at the borderline between economics and the environment on a systems engineering basis scientists are working on links between biodiversity and “ecosystem services” as essential for human life and well-being.

At least two out of the three competing uses above are better conceptualized as “services” rather than “goods,” and ecosystem services would encompass all three. The environmental engineers and Ducks Unlimited members would derive filtering of fertilizer run-off and recreation from the wetlands as environmental asset, respectively, while even the farmer using any filled-in wetlands as factor of production employs the land more to enable the growth of crops. In parallel, there is typically not a ready market to determine the value of environmental filtering (e.g., “clean” groundwater), or for that matter local recreational services (e.g., duck hunting). Economists might ask correspondingly whether these constitute public goods, beyond traditional neoclassical economics keyed off of property rights and efficiency concerns? More often than not, valuation in large-scale environmental litigation is contingent. For example, in the Exxon Valdez litigation, the chief question ultimately lay in contingently valuing the environment degraded by the massive oil tanker spill, since liability was quickly conceded. The difficulty was figuring out how much are numerous seals, penguins, and pristine arctic ice cathedral glacier visages really worth on the basis that citizens as “lower 48” residents might want to visit them in the future, as opposed to calculating some subsistence value to local Inuit hunters and interference with catches of commercial fishing interests in the famously dangerous Bering Sea fishing industry. Is this treating damages as being more to a public good, and what and whose rights might be entailed in asking “lower 48” residents how much they might consider paying as theoretical tourists? So, after all, what is a beautiful Himalayan mountain landscape worth, distinguishing it from constituent properties as too rocky and cold to be arable?

Is it more realistic to rely on hypothetical values reaching for outsider tourism, or is it more insightful to value based upon ecosystem services provided to locals?  If treated as an ecosystem services problem, said services are typically conceptualized as including provisioning services (provision of food, fresh water, fuel, fiber and similar goods), regulating services (encompassing climate, water and disease regulation as well as pollination–  so filtering ground water would fit), supporting services (such as soil formation and nutrient cycling) and cultural services (reaching from educational, aesthetical, cultural heritage values as well as recreation and tourism–  so Ducks Unlimited and glacier cruises both would fit here).

And is restraining the farmer from filling in the wetlands a taking of his property? Reaching back to Unit 3 (Sagasti & Colby), it depends in part on whether your frame of reference may be “frontier economics” versus perhaps “environmental protection” or “resource management.” But as a legal matter, unless all zoning law is unconstitutional, regulating to preserve community resources like groundwater should be permissible.

2/5 The second technical take-away is to realize that economists, also environmental economists, typically target a unitary setting that, in the alternative, assumes a single market and no subdivisions (so no differing countries, rich and poor), and as a result “international environmental economics” for the longest time was more about positive modelling currently applied to international environmental issues like climate change. This differed from international economic law being coextensive with well-established monetary and trade law topics in international economics. So international environmental economics is relatively underdeveloped, and typically relies on a variety of hidden assumptions, whether you contemplate neoclassical economic or ecosystem services approaches. They tend to assume perfect markets, meanwhile the core of modern environmental economics in the context of climate change employs concepts like free riders (for example, which countries might pay what carbon costs, contemplating differential prices), externalities presupposing market failure (for example carbon taxes generally embodying social costs of fossil fuels) and a general lack of cost internalization (to be countered generally by “polluter pays” principles).

The practical cross-over problem visible already in Dr Mahatir’s speech in Unit 1 is that climate change in particular tends to be cast as an “us” vs “them” issue between rich industrialized countries seeking to freeze GHG parts per million to preserve a comfortably attractive world, and poorer developing countries desiring to become richer and so wanting to increase GHG emissions as part of their industrialization strategy to achieve at least what they believe to be an acceptable minimum standard of economic development. This eventually raises distributive justice issues, of the type referred to traditionally under the rubric of environmental or climate justice. Environmental Justice (what it means when polluting industries are always sited on the wrong side of the railroad tracks) recently moved to the fore domestically, see Kelley, “Harris, Ocasio-Cortez introduce environmental justice bill: The new Climate Equity Act of 2020 would hold Congress accountable for the effects of its environmental policies” (The Hill, 08/06/20; providing for scoring of bills’ effects on minority and poorer communities), at https://thehill.com/changing-america/sustainability/climate-change/510924-harris-ocasio-cortez-introduce-environmental. So it might become more prominent theoretically in international environmental law affairs like treaty negotiations, but has not found too much resonance thus far with the governments of developed countries, as witnessed by resistance like the US ultimately rejecting LOS and CBD obligations implementing distributive justice claims.

3/5 The third technical take-away was that it called to the fore that traditional neoclassical (environmental) economics focused primarily on “efficiency” initially. (It downplayed the dual problems of market failure and delineating property rights, particularly due to externalities.) More recently, “sustainability” is understood normally as an intergenerational problem, namely what do we owe our children’s children, not whether we owe anything to our poorer neighbors in our own generation. So even focusing on “sustainability” does not automatically answer questions about a “fair” distribution, instead advantaging “efficiency” or aggregate welfare over time. Here efficiency refers to the idea that the resolution produces in utilitarian terms the greatest aggregate net benefit, without asking questions about how that benefit may be distributed in a population. Meanwhile, an environmentalist “maxi” position might reject the very idea of traditional welfare maximization strategies in the environmental policy toolbox like tradeable emissions permits to lower aggregate costs of compliance in lowering emissions to a specific level (essentially based on the claim that it is immoral, not to mention self-defeating, to create property rights in the emission of pollutants). But, from a technical viewpoint, those “property rights” are precisely the technical mechanism employed to create the viable trading market upon which the efficiency strategy rests. Absent the trading market, you are probably thrown back on more speculative strategies like contingent valuation, or more expensive strategies like command and control regulation again.

Even traditional economists, however, would freely admit that there is a difference between employing positive economic analysis analytically to describe the actions of people and the impact of those actions on the environment understood as an asset, versus normative economics providing guidance on how optimal service flows can be defined and achieved (which seems closer to the ecosystems services approach). However, normative economics is traditionally described for environmental economics in terms of involving concerns about efficiency, on the one hand, versus sustainability, on the other hand (except sustainability here is interpreted as intergenerational, rather than intragenerational). But just excluding something from your definitions does not necessarily make it go away, as witnessed by the essentially political claim to environmental justice raised by Mahatir in the early 1990s, and Harris and Ocasio-Cortez most recently. (We designate such a claim as political because of who raised the issue, but you could equally refer to it as a moral claim, no value judgment intended. …)

4/5 The theoretical problem is whether we traditionally defined distributive justice out of normative environmental economics (economists might say, oh, it is political economy, and we economists only do economics, so by definition “distributive justice” cannot be part of “technical economics”). Distributive justice is typically viewed as more of a philosophical discussion, meanwhile in law we presumably are looking for a way to achieve governance, rather than simply debating issues (like we train you in law school). Without thereby launching ourselves on an entire law and philosophy course, let us admit that different class members probably see things different ways. To sketch out a few initial possibilities, however, the egalitarian strain of distributive justice traditionally might seek “equality.” But equality can equally be defined in terms of equality of opportunity versus equality of outcome. There are many conservatives, mostly libertarians (adhering to ideas about it conflicting with liberty and property), who would reject much environmental regulation, but believe strongly in equality of opportunity.

The problem in that sense is how do you define equality of opportunity? Is it countries putting the same amount of carbon out your smokestacks now (after the industrialized countries have already substantially raised carbon levels since the Industrial Revolution, which was Dr. Mahatir’s viewpoint)? Or do you calculate emissions in terms of responsibility reaching back to the Industrial Revolution to account for the historical past? Or is it defined as countries being entitled to some kind of per capita allocation which would benefit densely populated states (per capita energy consumption and so carbon generation by inhabitants of most industrialized countries in markedly higher than that of the much more numerous inhabitants of major developing countries (remember the map of the world by 1995 GDP?)? Or what? There might be a tendency to reach for contractual explanations by analogy to Rawls, except there has been little movement in the world of treaties thus far, and raw self-interest does not work much better to the extent the ultimate result of no deal if everyone is put off by the exercise would presumably lead to every country being worse off.

5/5 Beyond distributive justice issues, the agency problem and analysis in international environmental law is prominent based upon the observation of the heavy involvement of environmental NGOs in attempts to make law reaching back to its earliest beginnings. The implicit claim is that the environmental NGOs presumably know better than governments what the environmental interests of their citizens demand, except governments claim both that their state character and representative democracy is on their side. But the weakness of constraints on self-interested agents is a common theme in economic analysis that you may remember from courses like business corporations.

Pursuing environmental economics as analytical tool, is the world as we know it invariably coming to an end, or is the world just full of Chicken Littles telling us that the sky is falling? Focusing on a little narrative history may provide some perspective of environmental economics and dominant narratives reaching back, putting us back into the timeline represented by the 1972 Stockholm Declaration, 1992 Rio Declaration and 2002 Johannesburg Declaration (followed by the Kyoto Protocol effective in 2005, and the 2015 Paris Agreement). Looking back, the chief concern in the 1970s-80s involved actually two competing environmental narratives drawn more out of the natural than social sciences. Their frame of reference was not GHGs, although atmospheric chemistry was already on the CFC ozone-depletion agenda that would yield the Montreal Protocol in 1987. The chief concern involved modelling depletion of non-renewable natural resources and population pressure tied to the emergence of the modern developing world as economic powerhouse(s).

The juxtaposition involved the limits to growth discussion associated on the one hand with Jay Forrester of MIT and computer modelling in a 1972 study entitled The Limits to Growth. Forrester argued on the basis of systems dynamics and feedback loops that within 100 years society would run out of the non-renewable resources on which its industrial base depended (so there was, figuratively speaking, no place at the inn for the developing countries effectively to grow economically). The counterpoint was provided in a 1976 book by Herman Kahn entitled The Next 200 Years: A Scenario for America and the World. It essentially argued that continuing technological progress would push back the natural limits indefinitely (so there would be, figuratively speaking, a new world for developing and developed countries both to grow into). In a nutshell, the whole discussion seemingly boiled down to the pessimists versus the optimists, in modelling terms. For today’s environmental discussions invariably focused on issues like climate change and carbon generation, the humorous insight was that the older 1970s-80s arguments were focused on non-renewables, and the chief concern was that we might run out of resources like … fossil fuels.

It obviously did not happen that way, and the new natural science modelling approach now assumes based upon various prognostications that we are rapidly moving from a world of mitigating climate change (meaning examining choices to cut back on GHG emissions to limit climate change), to a world of adapting to climate change (meaning locally all those expensive adaptations like a minimum $2 billion infrastructure spend to address increasing flooding in Charleston tied to sea level rise, as well as the increasing danger of storm surges, etc.). Accepting the natural science consensus does not infer the end of the world. Instead, it simply points to the difficult nature of choices to be made, where environmental economics is another analytical tool. To that extent environmental economics as the study of allocating limited resources is simply another tool in the governance exercise of trying to make appropriate international environmental law. But you need to comprehend equally that the details of environmental economics (and regulation) are often not value-neutral, even understood from a technical perspective.  So please remind yourself in passing of the current spectrum of possibilities, by revisiting again in our Unit 3 materials the table at pages 186-89 of the Sagasti & Colby ecodevelopment piece.

Copyright 2020–21 © David Linnan.

Treaty Interpretation and Treaty Process Approaches to International Environmental Law: Package Deal vs. Framework Convention

1/2 Read the Vienna Convention on the Law of Treaties for the technical interpretive rules (the US has not joined in the treaty, but maintains that it simply states the customary law rules), particularly its broader interpretive provisions including Articles 31-32 on plain meaning versus going behind the text, Article 30 (effect of states being party to different treaties, or treaty versions; for example, the Kyoto Protocol which has come into force, but which the US declined to adopt as amendment to the 1992 UN Convention on Climate Change) and Article 38 (treaties can create customary law to bind non-signatory states).

2/2 Compare :

a. Caminos, Hugo and Michael R. Molitor. “Progressive Development of International Law and the Package Deal”. The American Journal of International Law. October 1985, Vol. 79 No.4, pp 871-90

with

b. “Global and Regional Approaches to the Protection and Preservation of the Marine Environment” Boczek, Boleslaw Adam. Case W. Res. J. Int’l L. vol. 16 (1984) pp 39-70.

with

c. “Crafting a Winning Coalition: Negotiating a Regime to Control Global Warming”. By James K. Sebenius. From Greenhouse Warming: Negotiating a Global Regime. Washington D.C., World Resources Institute, 1991. pp. 69-98.

Copyright 2020–21 © David Linnan.