ELI Has Always Been a Thought Leader
Author
John Pendergrass - Environmental Law Institute
Environmental Law Institute
Current Issue
July-August 2023
Issue
4

The conference at Airlie House in September 1969 produced the Environmental Law Institute and Law and the Environment, a book of the papers presented at the meeting. Though published by one of ELI’s fiscal sponsors it demonstrates that from its very beginning ELI was at the forefront of environmental law. ELI and the American Law Institute began their collaboration educating attorneys about environmental law in 1970. The first issue of the Environmental Law Reporter (January 1971) included a primer on environmental law by one of ELI’s founders, James Moorman, that in just 33 pages provides a comprehensive guide to environmental law that would serve well today as an outline of the subject. In 1974, ELI produced, with West Publishing, Federal Environmental Law, the first legal treatise on the subject. These early efforts established two hallmarks of ELI: working with partners and leading development of environmental law.

ELI’s first research report, “NEPA and the Courts: A Legal Analysis of the National Environmental Policy Act,” both established ELI’s leadership on the law of NEPA, but also its penchant for long titles with subtitles. One of ELI’s other early research projects was on wetlands, establishing its role as a leading authority on wetlands law that continues to this day.

I joined ELI 35 years ago, so have experienced two thirds of its existence, and thus have had the honor of working with the majority of the universally amazing people who have worked here. In the late 1980s, when I started to analyze how institutional controls were being used at contaminated sites, Elissa Parker, long-time head of Research & Policy, pointed me to a report ELI had done in the 1970s on how institutional controls worked and didn’t. The research I did along with James McElfish and others illustrated how and why institutional controls function and why redundant systems are needed. EPA, the departments of Defense and Energy, and many states have since adopted the measures ELI and a few others recommended. A similar process occurred with ELI’s work analyzing state cleanup and brownfields programs, which led to improvements in EPA’s policies and state rules. The District of Columbia environment division then asked Linda Breggin and me to draft a brownfields law, which it succeeded in convincing the D.C. council to enact.

In the late 1990s, as Kuwait was recovering from the Iraqi invasion, it asked its U.S. attorneys who might be able to convene a conference to analyze the legal issues related to environmental damage caused by the war. Those attorneys recommended ELI. Attorneys Jay Austin and Carl Bruch, with the assistance of many others, convened the first conference on the environmental consequences of war, headlined by two Nobel Peace Prize laureates, Mikhail Gorbachev and Oscar Arias. The papers presented there became a treatise of that name.

Carl has continued in related work, editing six books on post-conflict natural resource management, along with now Vice President Sandra Thiam and Senior Attorney Jessica Troell and others. Carl followed that by creating the field of environmental peacebuilding and a separate organization devoted to that work. Carl is now being consulted about how to plan for dealing with the environmental consequences of Russia’s invasion of Ukraine.

Jessica has similarly been a leader in establishing the new field of water tenure and women’s rights to water. In conjunction with that effort, Jessica began work with a woman then at the Swedish International Water Institute who was leading a program to build the capacity of female leaders in water diplomacy. Elizabeth Koch has since joined ELI and is now leading a global network of women in water diplomacy.

Another story has been told many times: in his acceptance speech for ELI’s 1989 Annual Award, Judge James L. Oakes challenged ELI and the environmental bar to educate judges about environmental law. ELI’s president, J. Willliam Futrell, started that process before the dishes were cleared. We gave our first lectures to federal judges in 1990 and held our first course for judges from the New England states in 1991. The program expanded to become global in scope. ELI is currently partnering with the Federal Judicial Center, the National Judicial College, and others to educate judges about the science of climate change.

As I write this Closing Statement, the Supreme Court’s decision in Sackett v. EPA, has brought attention to ELI’s long-standing expertise in wetlands law. The decision raised the question in many minds of what protections might exist in state laws. Of course, ELI has that information already compiled in a September 2022 ELR article authored by Jim McElfish and a just-released Research Report, “Filling the Gaps,” by Wetlands Program Director Rebecca Kihslinger and Heather Luedke.

ELI began its existence as a thought leader in environmental law, has been one through half a century, and due to its incredibly talented staff continues to demonstrate what that means on an ongoing basis.

­—John Pendergrass
Senior Vice President (1988-2023)

On ELI as a policy thought leader.

A Down Payment on Climate Change
Author
Jordan Diamond - Environmental Law Institute
Environmental Law Institute
Current Issue
November-December 2022
Issue
6
drawing of Jordan Diamond, a woman with long dark hair in a blazer

When I last sat down to write this column, the Supreme Court had just issued its 6-3 decision in West Virginia v. EPA. As I said at the time, it was disheartening, and many in the environmental law field were assessing how to bounce back from its potential effects limiting agency action. Fast-forward two months, and while the concerns raised by that case aren’t gone, we’ve spun in the other direction. Now, I’m sitting at my computer pondering how to succinctly capture the largely climate-focused initiatives newly enshrined in the Inflation Reduction Act—which, together with last year’s bipartisan Infrastructure Investment and Jobs Act, constitutes the most important environmental legislation in years.

The IRA has created buzz, as the core of its provisions are programs to support climate and energy action. Does it cover everything? Of course not. Does it have less than desirable provisions? Of course. Is it enough funding? I’ve yet to encounter a circumstance where the answer to that question is “yes,” and here is no different. But it is the largest influx of climate spending seen to date, and, especially in tandem with the dollars flowing from the Infrastructure Law, that is exciting. Not only because of the dedicated spending they provide, but also the effect it will have across industries.

The IRA passed as a budget reconciliation bill designed to generate over $700 billion in revenue, primarily through a 15 percent corporate minimum tax, prescription drug pricing reform, a 1 percent fee on stock buybacks, and IRS tax enforcement support. In the vicinity of $300 billion of this revenue will go to deficit reduction. And $369 billion will go toward addressing energy security, climate change, and the like.

The majority of the IRA’s energy and climate provisions come in the form of subsidies and direct payments. Various aspects complement or build upon funding provided under the Infrastructure Law and are focused on supporting climate change mitigation, resilience, and adaptation efforts. Examples range from increasing renewable energy production to greater support for lower-income household efficiency and resilience improvements, and from funding for fenceline air quality monitoring to electric vehicle tax credits.

In short, the IRA takes an all-of-the-above approach to spurring climate action. Forecasts say the package puts the United States on a path toward reducing emissions 40 percent below 2005 levels by 2030. And in sight is the goal of a 50-52 percent reduction—which is our Nationally Determined Contribution under the Paris Agreement. Key to its success, though, will be the way agencies structure and distribute these funds to maximize environmental and social impacts.

One of the most meaningful aspects of this spending is that, just as with the Infrastructure Law, the IRA’s climate and energy spending falls within the ambit of Justice40—the goal, set by President Biden’s Executive Order 14008, that 40 percent of the overall benefits of certain federal investments (including in climate, clean energy, and water infrastructure) go to communities that have been marginalized, underserved, and overburdened by pollution.

Agencies are currently working under interim guidance and developing strategies for implementing Justice40. This is by no means simple to effectively and efficiently execute, especially given the complexity of much federal funding that goes through an additional layer of state disbursement. Nonetheless, it is critically important that we realize Justice40’s promise, if society is going to make progress in repairing the imbalance and injustice seen in the distribution of environmental harms and benefits.

Part of the discussion of the “major questions doctrine” raised in the West Virginia v. EPA majority opinion focused on the idea that issues of massive economic significance should be addressed in the first instance by Congress, not by agencies—see the Debate on the doctrine starting on page 50.

On the one hand, in the wake of that decision, a litany of questions remain about where the weight of decisionmaking lies, and what authorities governments at all levels have to address climate change on needed timelines. On the other hand, when you look at the IRA and the Infrastructure Law cumulatively, over the last year Congress has directed close to a trillion dollars that supports climate, energy, and environmental action.

We know more will be needed, because addressing the challenges before us requires transformative change across virtually every aspect of our daily lives. But this is a powerful step forward. So we take it.

On New Laws' Climate Change Funding.

Cut the Red Tape
Author
Mario Loyola - Florida International University Law School
Florida International University Law School
Current Issue
November-December 2022
Issue
6
Cut the Red Tape

The United States has the world’s most costly, time-consuming, and unpredictable system for authorizing big infrastructure projects. It puts America at a grave competitive disadvantage compared with other industrial powers, including China. The social costs are enormous and are passed on to consumers, who must ultimately pay a premium for elevated risk and constricted supply. It deprives Americans of affordable energy, adequate roadways, and even safe drinking water.

And if you think the climate crisis is “code red for humanity,” as President Biden has said, the hard truth is this: Until Congress reforms the entire permitting system, the goal of a clean energy transition is almost certainly unachievable.

Consider the staggering amount of infrastructure that would be required to meet the administration’s goal of a zero-carbon electricity grid by 2035: scores of new nuclear plants, hundreds or thousands of new utility-scale solar plants, tens of thousands of windmills, hundreds of thousands of miles of transmission lines. Under current law and given agency workforce constraints, securing permits for all those projects in time to finish, or in some cases even to start, construction before 2035 is simply a fantasy.

Congress has appropriated nearly $2 trillion for “green” infrastructure. But money is not the limiting factor in America’s ability to deploy major infrastructure projects. The crucial limiting factor today—and the main obstacle to a clean energy transition going forward—is the massive amount of federal agency resources consumed by the struggle to comply with the National Environmental Policy Act in a context of inordinate litigation risk.

Section 102(2)(C) of NEPA requires agencies to prepare an environmental impact statement for any “major federal actions significantly affecting the quality of the human environment.” Any federal permit required for a major infrastructure project usually triggers the requirement of an EIS.

According to a recent survey by the White House Council on Environmental Quality, which was created by NEPA to oversee its implementation, the preparation of a typical EIS takes on average 4.5 years, consumes tens of thousands of agency person-hours, and costs millions of dollars in taxpayer resources. That’s on the top of the tens of millions an EIS can cost project proponents. So even with the most lavishly funded bureaucracy on Earth, the entire federal government produces at most 75 or 80 final EISs every year. That pace is woefully short of what is needed to reach the 2035 zero-carbon goal.

To give some sense of what this looks like on the ground, the Bureau of Land Management’s Nevada State Office, where dozens of solar projects would have to be evaluated, is totally overwhelmed by the effort to complete one EIS every year or two. The Nevada office has issued a “Prioritization Guidance” to help it select the small handful of applications its staff can handle over the next couple of years from among the flood of solar permit applications.

By the time Senators Joe Manchin (D-WV) and Chuck Schumer (D-NY) agreed to streamline permitting as a side-deal to the Inflation Reduction Act, the 117th Congress had not done much of anything to lay the political groundwork for sweeping reform. Not surprisingly, what emerged from the deal was a potpourri of disconnected measures responding in most cases to the demands of narrow special interest groups and falling far short of what would be required for a clean energy transition by 2035. Even with the most dire stakes imaginable, the most that policymakers have been able to accomplish is tinkering at the margins.

Any serious effort to undertake a clean energy transition must start with a close look at the staggering amount of clean energy infrastructure that would be required. The next step is to wrap one’s head around the frightful tangle of red tape that turns the federal permitting process for most such projects into a years-long odyssey. That exercise sheds light on some of what Congress will have to do if it ever gets serious about the obstacles to a clean energy transition.

There are many estimates of the power capacity additions that would be required for a net-zero energy sector, most of them in the same general ballpark. For example, the Electric Power Research Institute estimates that to achieve a zero-carbon electrical system by 2035, the grid would need to add 900 gigawatts of new wind and solar, 80 GW of new nuclear capacity (doubling current nuclear capacity nationwide), and 200 GW of hydrogen-fueled turbines.

Many estimates don’t mention nuclear at all. That’s because powerful environmental advocacy groups remain adamantly opposed to it, which may also explain why Democrats have put virtually no effort into advancing nuclear power. That is a major obstacle to the clean energy transition in itself, because most scenarios aim to replace the “dispatchable” baseload generation of coal and natural gas plants with intermittent wind and solar, creating significant challenges for reliability and capacity. Utility-scale batteries, smart grids, and similar technologies have come a long way but the challenge of intermittency is why prominent international authorities call for a doubling and even tripling of nuclear power around the world for any chance of meeting the Paris Agreement’s goal of limiting warming to no more than 1.5 degrees Celsius.

The American nuclear fleet is dwindling and there are no plans to build any new nuclear plants in the United States. But even if there were, they couldn’t be part of the clean electricity mix in EPRI’s estimate. The permitting timeline for nuclear is the longest of any infrastructure sector. A nuclear reactor due to open in Georgia in the next couple of years started its odyssey through the federal permitting process in 2006, after many years of project design and development. Nuclear regulatory reform is urgently needed, but Congress has done virtually nothing about it.

One notably optimistic review of 11 studies of non-nuclear pathways to clean electricity by 2030 and 2035, by Energy Innovation LLC, shows a consistent estimate across studies of about one terawatt of solar and wind, plus 100 GW of battery storage. That review notes that this would require an average annual deployment of new renewable energy capacity at double or triple the record rate of 31 GW of wind and solar additions in 2020, “a challenging but feasible pace of development.”

The authors don’t elaborate on why they think that would be “feasible,” perhaps because they have been spared the trials and tribulations of going through the NEPA process. But it isn’t feasible—not remotely. Since the early Obama administration, federal agencies have strained to streamline their permitting processes and increase throughput. They are virtually at the limit of the streamlining that current law will allow without leaving their permits and NEPA reviews vulnerable to court challenge.

As many experts have noted, the fear of litigation risk is the main source of cost, delay, and uncertainty in the NEPA process. It is also the crucial limiting factor in the clean energy transition. Litigation risk has the entire federal bureaucracy backed up against a wall, struggling to produce permits and EISs that are perfect in every last detail, whether relevant to the agency decisionmaker or not. (The statutory purpose of NEPA, incidentally, is to inform the agency decisionmaker.) This means that without changes in the law, the only way to double or triple the pace of permitting at federal agencies is by doubling or tripling the size of the federal workforce involved in project reviews.

Reliable estimates are hard to come by, but a reasonable guess is that on the order of 10,000 federal agency staff spend most of their time involved in processing permit applications for infrastructure projects. To get a sense of how much the federal permitting bureaucracy would have to grow, let’s take a look at the most significant increase in that workforce produced in the entire 117th Congress, namely the Inflation Reduction Act’s provision of nearly $1 billion to increase permitting staff over five years, including $350 million for an Environmental Review Improvement Fund at the Federal Permitting Improvement Steering Council, which was created under the 2015 Fixing America’s Surface Transportation Act to coordinate the permitting of major infrastructure projects. This massive boost in funding would add perhaps five or six hundred full-time equivalents to that workforce. That’s an increase of maybe five percent, assuming agencies can find and train qualified personnel in this highly technical field quickly enough. The added staff would significantly help with the current backlog of applications, but the total would fall woefully short of the needed doubling of personnel.

As unrealistic as it is to think that we could double the size of the federal permitting workforce quickly enough to make a difference, there is yet another problem with Energy Innovation’s hopeful estimates. Its calculation of the required increase in average permitting pace presupposes a time horizon of 10 or 15 years, depending on whether we’re looking at 2030 or 2035. But that doesn’t take any account of the actual timeline for deploying infrastructure projects, which entails several years of preapplication and has to be followed by several years of actual construction.

Between the bookends of preapplication and construction, permitting time for solar projects, according to the Solar Energy Industry Association, can be between three and five years. That means that to achieve net-zero by 2030 is already impossible: Projects that begin pre-application in this coming year generally won’t be coming online until 2030 at the earliest. And even for a clean electricity transition to occur by 2035, all the projects necessary for a roughly one terawatt addition of renewable electricity would have to finish pre-application and file their permits by 2027 at the latest. Then all those permits would have to be processed and the environmental reviews completed within three or four years. Hence the effective permitting window for a clean energy transition by 2035 is 2025-2032, a period of just seven years, not 15 as in the Energy Innovation’s estimates.

So during that main wave of permit processing and environmental review, the processing rate would have to be at least four times the rate of the record year of 2020, and perhaps significantly faster than that. In other words, Congress would have to at least quadruple or quintuple the size of the federal permitting workforce.

Now consider the hurdles facing the actual projects. Taking solar as an example, most studies suggest that the United States would have to add on the order of 500 GW of utility solar capacity. Suppose that each solar project in that total is very large, with a nameplate capacity of 500 MW. Adding 500 GW of solar capacity would require 1,000 such projects. Judging by the largest currently in operation, each such solar project would cover perhaps 5,000 acres, for a total of 5,000,000 acres. That’s the entire state of New Jersey—covered in solar panels.

Many of those solar projects won’t require federal permits at all, particularly if they aren’t built on federal land. But where the sun shines for 365 days a year is in the deserts and high plains of the western states—where the federal government owns virtually all the land. And every solar project built on federal land requires its own permit and its own EIS.

The NEPA process is tailor made for NIMBY-ism. “Scoping” allows local opponents to lodge issues that agencies must explore at length, and which can later be litigated. Each solar project application entails political trauma for regional agency staff and often for the agency headquarters as well. Worse still, covering an area the size of New Jersey with solar panels will have a myriad of environmental consequences, each of which must be studied in detail and avoided, minimized, or mitigated if possible—and many of which might impel the reasonable conservationist to ask, “Is this really worth it?” Anyone who has seen the leach fields for disposal of lithium batteries, where birds die within seconds of alighting, should wonder.

Then those solar and wind projects need to be connected to the grid by a network of new transmission lines. Linear projects such as transmission towers and pipelines are among the most resource-intensive permits for agencies to process. That’s because linear projects trigger permit requirements—and fierce local opposition—all along their route. All of this slows the already slow permitting process to a crawl. To give one example, the Transwest Express Transmission Line, running for 700 miles and with a capacity of 3 GW, was designed to transmit wind power from Wyoming to Nevada and California. It took 15 years to get the permits required for construction to begin.

The clean energy transition will entail transmission lines on a scale that most Americans can’t imagine. Wind and solar must be built where the wind blows and the sun shines, not where consumers are. Hence each megawatt of renewable capacity will require orders of magnitude more transmission line miles than each megawatt requires currently, and average length will grow exponentially as developers go looking further and further afield from their target markets for suitable sites. According to a National Academies report, the net-zero 2050 goals would require construction of one million miles of transmission lines by 2050.

Given the much longer lead times on transmission lines compared to renewable energy power plants, it’s easy to see another looming problem: solar plants sitting idle in the middle of nowhere for years on end, waiting for transmission lines to arrive. Indeed this is already happening, as in the case of the Cardinal-Hickory Creek transmission project in Iowa and Wisconsin.

A series of interrelated structural problems combine to create inordinate delays, costs, and uncertainties for infrastructure projects. Of those impacts the worst by far is uncertainty, the major source of risk to capital formation and hence a principal source of the significant social losses caused by the NEPA process.

Unfortunately, that uncertainty has many sources, most important of which is litigation risk, which maximizes the amount of time and resources agencies devote to processing permit applications out of all proportion to the environmental costs and benefits at stake.

The uncertainty begins with the inordinate litigation risk that hangs like a cloud over every EIS from the start. The problem has been years in the making. It started in the 1970s, with the invention of Court-ordered “hard look” NEPA review, which along with Chevron deference—another decision, requiring courts to favor agency positions where statutes are unclear—a few years later turned the standards of review spelled out in Section 706 of the Administrative Procedure Act upside down. (Where Section 706 specifies that courts are to review questions of law de novo and set aside agency actions only if they are “arbitrary and capricious,” courts now defer to agencies on questions of law and second guess agency findings on technical matters that judges struggle to understand at all.)

A related problem is that there is no doctrine of substantial performance or materiality: An agency may get an EIS 99.9 percent perfect, but if it forgot to study the habitat needs of the butterfly that one person casually mentioned in a town hall meeting during scoping—boom, permit vacated. Agencies have to think of literally everything, because the omission of one paragraph in a 1,000-page document could be “arbitrary and capricious.” The purpose of NEPA is to inform the decisionmaker, which creates an implied standard of materiality for every impact and alternative under consideration. Alas, federal courts have combined with the CEQ regulation of NEPA to require agencies to study impacts well upstream and downstream of the project—even if those impacts are entirely in the control of other governments, in much greater detail than is remotely relevant to the permitting decision. And because of the loose wording of the NEPA regulations, agencies devote hundreds of pages in EISs to studying alternatives to the proposed project when what the statute requires is consideration of alternatives to the proposed action, which in the case of an infrastructure project is just the up-or-down permitting decision.

It’s no surprise that agencies only win about 70 percent of cases in court. Defenders of NEPA tout this as evidence that agencies prevail “most of the time” so litigation isn’t that big a deal, but in reality it’s an atrocious figure, considering the endless time and resources agencies devote to complying with every last detail that the law might require. District courts face a similar rate of reversal on appeal, but of course only a tiny fraction of judgments get appealed, whereas the litigation risk for a final EIS is virtually 100 percent. And district courts don’t spend 4.5 years, tens of thousands of hours, and millions of dollars trying to make absolutely certain that they get everything right, and thankfully so because if they did you’d have a complete breakdown in the administration of justice—an apt description of NEPA litigation.

Many judges appear to be operating on an unstated and perhaps unconscious premise that environmental advocacy groups represent the public interest but agencies do not. This manifests in a damaging relaxation of procedural protections that defendants normally enjoy. Courts have bent over backwards to confer standing on virtually anyone who wants to oppose a project. NEPA creates no right of action, so courts had to find one in the stopgap enforcement provision of the APA. That requires “legal harm” for standing, but courts look past that for environmental advocacy groups, by resort to the “zone of interest” theory of “procedural standing,” piling one ancillary stopgap on another. So if you go boating on a lake you have standing to sue FERC over a transmission line that will be partly visible from the lake, despite that the transmission line is urgently needed to connect a small city to a renewable power source that is sitting idle after $100 million of investment.

Once in court, the red carpet treatment continues. When asking for a preliminary injunction, a plaintiff must normally post a bond to protect the defendant against losses resulting from the injunction should the plaintiff ultimately lose. Courts waive that for environmental litigants, because of the “public interest.” And when it comes time to balance the equities in granting the injunction, courts give short shrift to the public interest in effective agency action, or ignore it entirely. Indeed, in the 9th Circuit, stopping a project is considered to cause no harm to the agency because ipso facto stopping a project won’t harm the environment—as if environmental losses are the only losses we need to worry about when deciding to stop an infrastructure project of urgent national importance, where developers have invested tens or hundreds of millions of dollars.

Another major problem is the very existence of the CEQ regulation of NEPA, which dramatically increases the litigation target area of every project review. This is a fascinating issue, because CEQ has no rulemaking authority. The regulation is arguably nothing more than an executive order, like E.O. 12866, which establishes the Office of Management and Budget rulemaking process for federal agencies. Teleporting the “legal harm” and “procedural standing” doctrines into a document that creates no private rights or obligations, courts have transformed the CEQ regulation into a compendium of legally enforceable requirements. Hundreds of federal permits have been vacated by courts because of agencies’ failures to comply with supposed NEPA requirements that are not in the statute and that were invented by CEQ out of thin air. But without foundation in delegated rulemaking authority, the regulation of NEPA is just a set of directives to agency heads. Presidential directives such as executive orders have never been considered enforceable de jure and draw the entirety of their compelling force from the president’s removal power, which does not extend to independent agencies like FERC. In the key NEPA case of Public Citizen v. Department of Transportation, Justice Clarence Thomas wrote that “CEQ was established by NEPA with authority to issue regulations interpreting it,” but the statute doesn’t say that anywhere, and it’s simply not true. Plus, even if courts defer to the council’s statutory interpretations, it’s another thing entirely for CEQ to use purely presidential directive authority to instruct an agency to discuss “cumulative impacts” (a concept nowhere to be found in the statute) and then have courts treat that directive as if it were legally enforceable in a lawsuit brought by a private party. It’s the exact equivalent of the president instructing federal staff to observe a business dress code and a private citizen suing because some agencies have casual Friday.

Another major problem with the permitting process is the hydra-headed nature of agency permitting authorities. The description is not totally apt because the hydra at least had a single body, whereas the permitting processes of federal agencies are almost completely disconnected—despite manifold interdependencies. Efforts by multiple administrations to establish a coordinated process quickly run up against the reality of statutory structure, a problem that only Congress can fix. The CEQ regulation’s provisions on a “lead agency” to prepare a single NEPA document in coordination with “cooperating agencies” doesn’t relieve the project developer of basically having to create an interagency process from scratch among a bunch of agencies that often couldn’t care less what the developer has to say on any subject.

A related problem is the fact that agencies take it on themselves to prepare environmental documents that the developer could prepare instead, much faster and just as well, subject to agency verification and approval, as is done in Australia for example. That is one of the most important changes in the 2020 Trump revisions to NEPA, which were partly pulled back by the Biden administration to placate environmental advocacy groups, despite the fact that renewable energy companies were the disproportionate beneficiaries of the Trump reform.

The problems I’ve described create a mountain of obstacles to any clean energy transition, and only Congress can remove them. Although polls show significant public concern with the effects of climate change, the issue is not the most important for most Americans, who are primarily worried about inflation and other issues. Perhaps that explains why Congress has failed thus far to enact comprehensive reforms of the sort that would be needed for a successful clean energy transition. TEF

COVER STORY I The federal project review process is a daunting obstacle to any clean energy transition. Until Congress reforms the entire permitting system, the goal of a renewable energy economy is almost certainly beyond reach.

What We Can Learn From Joe Manchin and the Climate Law
Author
Bob Sussman - Sussman and Associates
Sussman and Associates
Current Issue
November-December 2022
Issue
6
Bob Sussman

After prolonged gridlock in Congress, most observers had written off President Biden’s ambitious climate agenda as a lost cause. However, in late July an improbable agreement between Democratic Senators Chuck Schumer of New York and Joe Manchin of West Virginia gave it a new lease on life—just three weeks later, the historic Inflation Reduction Act was signed into law.

Manchin had kept the country off balance for months, wavering between support for the proposed reconciliation bill that became the IRA and strong denunciations that left his colleagues exasperated and increasingly pessimistic that he would make a deal. During the months of tortured negotiations, the West Virginian was reviled as an opportunist, a master of double-speak and traitor to his own party. But in the end, he provided the decisive vote that put the biggest climate legislation in history over the top.

Manchin’s agonized deliberations mirror the fault lines and contradictions that have made a national consensus on climate policy so elusive. A Democrat from a conservative coal state, he had a life-long allegiance to fossil fuels, a distrust of mandates, and deep concern about runaway government spending. His stubbornness forced a radical downsizing of the $3 trillion legislative behemoth initially proposed by Democrats and substitution of a much smaller package that would pay for itself and reduce the deficit.

Manchin also blocked a centerpiece of that bill’s climate provisions, the Clean Electricity Performance Program, which would have imposed a system of penalties and payments to force the power sector to achieve 80 percent clean electricity by 2030. And he fought for and obtained benefits for fossil fuels, including a guarantee of continued leasing of federal lands and offshore waters for natural gas and oil production and a commitment to permitting reform. Ultimately, however, Manchin embraced the core of the climate package—$369 billion in tax credits, loans, and grants for solar and wind energy, electric vehicles, nuclear power, carbon capture and storage, and clean manufacturing.

We don’t know exactly why Manchin supported these sizable incentives for clean energy. But he may have understood that the fossil fuel economy that had long sustained his state is on life support, and beleaguered communities need investments in clean industries that government programs can deliver. At the same time, the senator drew the line at the forced curtailment of fossil fuel production, recognizing that premature reductions in supply could both hurt consumers and punish communities where oil and gas remain a source of good jobs. Following Manchin’s lead, the IRA as enacted provides a strong boost for renewables and electric vehicles without directly curbing oil and gas production.

This reliance on financial incentives to drive the clean energy transition reflects a steady drift in climate policy away from command-and-control. Despite continuing support for regulatory action, options have grown more limited at the national level in the face of political pushback and constraints on agency authority from the Supreme Court’s recent West Virginia v. EPA decision. The implicit premise of the IRA is that clean energy will succeed in the marketplace through technological and economic advantages gained from strong government support, not by eliminating competing fuel sources. There is both political and economic logic to this approach. Squeezing fossil fuel producers at a time of worldwide energy shortages and high prices will give more fodder to right-wing critics of “radical environmentalism” and further polarize the electorate. But if clean energy succeeds in creating jobs and spurring growth without directly threatening fossil fuel interests, confidence will grow across the political spectrum.

Manchin was also an architect of the IRA’s strong financial inducements for investing in our domestic manufacturing infrastructure and supply chain for the production of clean products. Along with others, Manchin understands that increased sales of electric vehicles and solar power to American consumers will not strengthen job growth and domestic investment if the core components of these products are sourced from China and other unfriendly foreign suppliers. As he commented, “I don’t believe that we should be building a transportation mode on the backs of foreign supply chains.” Thus, the IRA’s tax credits for purchases of electric vehicles are designed to reward auto companies who assemble them in the United States using batteries containing metals and other components produced in this country or by our major trading partners.

This approach links the climate agenda with the revival of the U.S. manufacturing base and growing bipartisan support for industrial policy initiatives for semiconductors and other critical sectors. Here too, the IRA provides a strong rejoinder to naysayers who portray climate policies as leading to economic decline.

What We Can Learn From Joe Manchin and the Climate Law.

Work to Do as Inflation Reduction Act Now Pivots to Implementation
Author
Ethan Shenkman - Arnold & Porter
Arnold & Porter
Current Issue
November-December 2022
Issue
6
Ethan Shenkman

As the White House celebrated passage of the Inflation Reduction Act last summer, President Biden was effusive. “We are going to take the most aggressive action ever, ever, ever to confront the climate crisis and increase our energy security. . . . And that’s not hyperbole.” With $369 billion in spending and incentives for a vast array of clean energy technologies—from wind, solar, and hydrogen, to electric vehicles, sustainable aviation fuel, and carbon storage—the administration claims the IRA will “reduce greenhouse gas emissions by about 1 gigaton in 2030.” That amount is “10 times more climate impact than any other single piece of legislation ever enacted.”

But it’s one thing to pass legislation designed to turbo-charge the energy transition. It’s another to make it a reality. To that end, Biden recently established a new White House Office on Clean Energy Innovation and Implementation, to be headed by former Obama climate adviser John Podesta.

Legal practitioners will play a critical role as the federal government and its clients pivot to implementation of the sprawling new law. Specialists in environmental, regulatory, permitting, tax, energy, and corporate law will be needed in an “all of the above” effort, to borrow a phrase.

Federal agencies—including Treasury, Energy, Transportation, Interior, and EPA—will be busy promulgating regulations, issuing guidance, and awarding funding. With sparse legislative history, novel issues of statutory interpretation will need to be resolved. As one example, the IRA amends the Internal Revenue Code to create a new Section 45V, which introduces a production tax credit for “qualified clean hydrogen.” A process must result in four kilograms of CO2-equivalent or less per kilogram of hydrogen produced, but the devil will be in the details in terms of how the life-cycle GHG emissions of various hydrogen processes will be measured. Treasury will be looking to expert agencies like DOE and other stakeholders for input on many such issues.

As another example, the IRA revamps the existing system of renewable energy tax credits, providing higher-level credits for companies that meet “prevailing wage” and “apprenticeship” requirements for their workers; satisfy “domestic content” standards; and/or agree to locate a project in a specially defined “energy community” (including those that are transitioning from fossil fuel-related industries) or other low-income or tribal areas. These concepts, which also appear in other provisions of the IRA, will need to be further defined.

EPA’s air office will be gearing up to spend over $40 billion, while seeking to harmonize new IRA programs with EPA’s forthcoming climate regulations. “We are convinced that part of our job is to create synergies” between the IRA and regulatory actions, said Joe Goffman, acting head of the air office. One area in particular that practitioners will be watching is how EPA will reconcile its forthcoming regulations to control methane emissions from the oil-and-gas industry with the IRA’s creation of a new methane emissions fee.

Senator Joe Manchin (D-WV), key to the IRA’s passage, has made clear that the new law “invests in the technologies needed for all fuel types—from hydrogen, nuclear, renewables, fossil fuels, and energy storage.” It “does not arbitrarily shut off our abundant fossil fuels,” he explained, but rather “invests heavily in technologies to help us reduce our domestic methane and carbon emissions and . . . displace dirtier products” around the world. Indeed, the law expressly requires the government to move forward with a certain amount of oil-and-gas lease sales as a condition for the use of federal lands and waters for new wind and solar projects. Expect legal battles over how this compromise is construed, along with ongoing disputes over analysis of NEPA oil-and-gas leasing decisions.

Meanwhile, practitioners eagerly await whether Congress will enact permitting-reform legislation—also at the insistence of Manchin. The administration, for example, predicts the IRA will spur construction of 950 million solar panels, 120,000 wind turbines, 2,300 grid-scale battery plants, and this is only the tip of the iceberg—vast new networks of CO2 and hydrogen pipelines, electricity transmission lines for renewables, underground carbon dioxide sequestration facilities, and charging stations for electric vehicles will also be needed. But what if this massive new energy infrastructure cannot be sited and permitted in a timely fashion?

The Washington Post recently called for legislation to “ease the seemingly endless permitting delays that energy projects face.” Noting, for example, that “environmentalists have opposed efforts to deliver clean electricity to American homes because they would require new wires run through forests, ” the paper cautioned that “some of those calling loudest for addressing climate change could become enemies of that very effort.”

Work to Do as Inflation Reduction Act Now Pivots to Implementation.

Loss of Institutional Structures for Science to Inform Policymaking
Author
Craig M. Pease - Former Law School Professor
Former Law School Professor
Current Issue
November-December 2022
Issue
6
Craig M. Pease

What is striking about the Infrastructure Investment and Jobs Act and the Inflation Reduction Act is not their genuflects toward (or away from) climate. Rather, consider the deep structural changes in how science informs environmental decisionmaking in this recent legislation, as compared to the 1970s statutes.

These key environmental laws, and the regulatory regimes that have grown up around them, contain explicit procedures that to a considerable extent isolate the scientific analysis of environmental problems. Sometimes this is accomplished via specific statutory language, for example the Clean Air Act’s Scientific Advisory Committee, and the Federal Insecticide, Fungicide, and Rodenticide Act’s Scientific Advisory Panel. Other times, a statute explicitly provides for strong use of science in making environmental decisions; for example the Endangered Species Act’s requirement that listing decisions be made using the “best available science.” And in other circumstances, EPA has created a comprehensive and searching internal agency process that institutionalizes independent scientific analysis; for example, the agency’s dioxin risk assessment, done to support its regulation under Superfund.

By contrast, the two statutes signed by President Biden lack specific procedures to evaluate the relevant science, isolate the science in decisionmaking, or have criteria detailing how Congress intends protective regulation and environmental improvement to flow from the science. They provide no real structure for science to enter political or regulatory environmental decisions. Science is now just another political constituent, logrolled with all the rest.

This trend goes well beyond these two recent statutes. The Clean Power Plan rule is grounded in the stationary source provisions of Section 111 of the CAA, whose “best system of emissions reductions” approach entails consideration of costs, feasibility, non-health environmental impacts, and energy supply. Carbon dioxide gets regulated based on a little of everything. Contrast this with the strong institutionalization of science in the regulation of criteria air pollutants and hazardous air pollutants, where the CAA and EPA set standards using scientific committees, risk assessments, and technology evaluation.

In part, the muddled and reduced role of science in regulating carbon dioxide is because the CAA does not provide an explicit regulatory framework for CO2, a point central to the court’s analysis in West Virginia v. EPA. In part it is because fossil fuels still account for the major part of our energy supply, so regulating carbon dioxide is tantamount to regulating energy itself. From the viewpoint of physics, energy is pretty much everything; it thus makes a certain amount of sense that energy regulation would entail everybody, everywhere, and everything.

The crisp, delineated, and highly structured role of science in the 1970s environmental statutes is analogous to a cell phone, with its multitude of components (a screen, camera, battery, several ports, different kinds of memory, and multiple microprocessors). By contrast, the Inflation Reduction Act is like a large bowl of oatmeal.

Even worse, these trends are not restricted to environmental law and policy; witness the immense growth in the number of healthcare and higher education administrators since the 1970s, with comparatively minuscule change in the number of physicians and tenured faculty. The last half-century has seen both huge growth in the complexity and pervasiveness of the technology underlying our society, and also widespread loss of institutional structures that previously provided technical experts with independent agency.

I am not sanguine about reform. There is a key tradeoff between institutional efficiency and robustness. Scientific studies and advisory committees, technical education, risk assessments, and the cacophony of scientific debate are uneconomical. Much more efficient to just concentrate political, corporate, non-profit, and academic decisionmaking in a few individuals, eliminate studies and committees, and remove any internal institutional structure whose very purpose is to provide a haven for disagreement and alternative perspectives. Of course, today’s more authoritarian institutions are also more prone to making poor decisions.

As the human population has grown, and nature has become more scarce, our institutions have shed internal structure, becoming more economically efficient—that is, more able to persist with fewer resources, at least in the short term. Yet now, even more so than in the 1970s, we need to create robust institutions and develop effective strategies to address civilization-threatening environmental degradation and resource depletion—the very ultimate cause of our institutions becoming less robust, and less able to make good decisions.

Loss of Institutional Structures for Science to Inform Policymaking.

Acting on the Future We Want
Author
Jordan Diamond - Environmental Law Institute
Environmental Law Institute
Current Issue
March-April 2022
Issue
2

As I write this, it has been four weeks since I was welcomed as ELI’s new president. I’m extraordinarily excited and deeply honored to lead this remarkable organization. It is special for me because I began my legal career at the Institute many years ago, an experience that shaped some of my core values around integrity and impact. I continue to be inspired by ELI’s mission and I’m delighted to be back, working with this wonderful group of people and our partners.

For the past twenty years, I’ve focused on developing environmental law and policy that is grounded in science and knowledge. I’ve worked to foster open dialogue and ensure that these processes adequately represent the voices of all stakeholders. I’m deeply committed to using the best available information to make the most targeted policies, draft the most effective laws, and achieve the most equitable implementation.

This focus on evidence-based decisionmaking is something that has always been central to ELI—and it resonated with me long before I entered the field of law. Until the tail end of college, I was planning to be an environmental scientist. I envisioned a life in a lab, plastic goggles in tow, surrounded by pipettes and filtration devices and a mass spectrometer or two. My focus was still on environmental protection, but back then I thought I would approach it by collecting data that would lead to groundbreaking findings and trigger decisions that could change the world.

Just before graduation, however, experiences outside the lab spurred the realization that while good information is needed to make good decisions, it does not guarantee them. The right information might never make it to the right people—and even if it does, you need the right system in place to ensure its use. That perspective led me to shift from science to law, and ultimately to the Institute and back again.

Since its founding, ELI has helped shape our environmental governance systems through its research, publishing, education, and convening functions. And it has done that by emphasizing impartiality over angle, truth-telling over spin, and long-term commitment over short-term sensationalism. This integrity resonated deeply with a science major trained to follow the data, and still does today. And in an era when we are wrestling with a dangerous tide of misinformation that fundamentally threatens the rule of law, it makes ELI’s voice more compelling and vital than ever.

This has been particularly evident to me over the past two years, spending the pandemic at home with my toddlers. Two takeaways have stood out to me. First, as does every parent, I adore my children, even when they are dancing on my last nerve—they inspire me to work harder, smarter, and better, because what I’m working for is their world. From the places I want them to see to the conditions I want them to live in, from the disasters I want to protect them from to the growing inequality we must fix. When my first child was born, a student asked if my outlook on the world had changed. I responded honestly that no, I still thought the same things and was working toward the same goals; someone had just cranked up the urgency dial.

Second, the world needs credible, reliable sources of information. We’ve seen this time and again in recent years. I believe the use of partial truths to be one of the most insidious and difficult challenges to address, whether in the form of biased selection of statistics or de-contextualized information. But when you read something from ELI, you know the staff looked openly at an issue and conducted an honest, unbiased assessment. You know that they’re telling the whole story, including all relevant information and all affected voices. Not because they say so, but because they have done so for decades.

We face enormously complex environmental challenges, that require equally complex solutions. They defy simple answers, and the stakes are too high not to act. I’m deeply grateful to return to an organization known for bypassing superficial fixes in order to support meaningful long-term progress. For facilitating open conversation that will unlock new approaches. For following the evidence, wherever it leads, and standing by it. I look forward to continuing that mission and partnering with you to forge a path to the future we all want.

Jordan Diamond on Complex Challenges and Solutions

The "Land Ethic" Resonates Today
Author
Stephen R. Dujack - Environmental Law Institute
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Environmental Law Institute
Current Issue
March-April 2022
Issue
2

When was environmental law first recognized as a field worthy of endeavor? Legal academies began teaching courses in the new laws as they were propounded a half century ago, but the field existed earlier. It could be found, if only in fragments, in some law schools and engineering schools and colleges of agriculture, mining, and forestry. And there were repositories of environmental professionals in the government’s land bureaus and extension services.

I would argue that the foundational text is one that synthesizes these pieces into a whole and gives a central ethic advancing environmental protection: Aldo Leopold’s A Sand County Almanac, published in 1949, a year after his death. Leopold knew the field lacked an animating principle. “As far as I can detect,” he writes, “no ethical obligation toward land is taught in these institutions,” he says of the academies.

It is worth reading again today, as I did when a snowstorm cut off power for four days and I could not use my computer. That is a perfect time for reading the month-by-month almanac of essays that Leopold wrote in “the shack,” the wood-heated farmhouse on a worn-out 80 acres that he worked to restore in harmony with the local ecology. Once again I was impressed how Leopold deals with the same issues that confront environmental policy today—and he does so with lucidity and insight that still serve as an inspirational bequest to the present time. It is a practical guide for environmental protection.

He was an alumnus of the Forest Service and taught at University of Wisconsin, where he became known as the nation’s expert on wildlife management. He recognized the economic and ecological conflicts embodied in resource ownership and use, as well as in instruments of governance both public and private. It all came together in the final chapter, titled “The Land Ethic.”

His guiding star is expressed in a simple couplet: “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.” Can anyone not see the principle of environmental assessment that would not become required for another twenty years? Or the Clean Water Act’s central mandate to “preserve the biological integrity”
of the nation’s waters?

But the ethic has a logical implication for resource ownership and use that is equally important: “In short, a land ethic changes the role of Homo sapiens from conqueror of the land-community to plain member and citizen of it. It implies respect for his fellow-members, and also respect for the community as such.” Here again, we hear early seeds of environmental justice’s emphasis on the community. “The individual is a member of a community of interdependent parts. . . . The land ethic simply enlarges the boundaries of the community” to include the larger ecosystem.

To Leopold, conservation is something more than a Muir-esque or Thoreau-like paean to primal nature. His approach is sternly practical. “Health is the capacity of the land for self-renewal. Conservation is our effort to understand and preserve this capacity.” In that epigram, he recognizes the role of “individual responsibility” to nature. Leopold, who spent his life in part in getting government into the act, nonetheless says that isn’t enough. He places on all people an obligation to observe the land ethic in their lives.

Private landowners must enhance the health of their lands regardless of government subsidy or commercial incentive. “One basic weakness in a conservation system based wholly on economic motives is that most members of the land community have no economic value.” Further, “Lack of economic value is sometimes a character not only of species or groups, but of entire biotic communities: marshes, bogs, dunes, and ‘deserts’ are examples.” Leopold feels that “a system of conservation based solely on economic self-interest is hopelessly lopsided” because it doesn’t value species critical to self-renewal. Today’s infatuation with charismatic megafauna cannot even touch the emotion unleashed by “the fierce green fire” a young Leopold saw die in the eyes of a wolf he had been paid to shoot as vermin. He recognized a top predator whose removal ultimately harmed the land community. He would never again kill a wolf.

Leopold reflects on the fact that the common person has no recognition of from where comes winter heat and is missing a key driver in a personal land ethic. He notices a dead oak on his property. It had done its service to the local ecology. He decides to saw it into firewood, the oak’s last contribution of “good wood” to the community.

This page in his Almanac may be the earliest comprehensive summary of law and environmental protection. As he cuts through the annual growth rings, he gives a detailed accounting of ecological calamity and resource legislation, but in the opposite order. The first few rings are narrow because of the Dust Bowl era. Then the stock markets plunge. “If the oak heard them fall, its wood gives no sign. Nor did it heed the Legislature’s several protestations of love for trees: a National Forest and a forest-crop law in 1927 . . . a new forest policy in 1921.” All the way to the center, and then forward in time to the other side.

I would have loved to see Leopold’s description of the law’s future rings, but he only tells us that we too possess the saw to view across the years, the wedge and the axe for other perspectives. Thus he does give today’s environmental professional a guiding lodestar and tools of analysis and decisionmaking. And he charges us of the present to keep laying down “good wood” in response to today’s environmental challenges. 

—Stephen R. Dujack

Notice & Comment is the editors’ column and represents the signatory’s views.

Clean Air Moves for 2008 Olympics Saved 196,000 Lives

With less than two weeks to go until the Opening Ceremonies of the Beijing Winter Olympics, the Chinese government said it is battling “extremely unfavorable” weather to clear the city’s skies of hazardous smog. . . .

A relapse into Beijing’s hazier days during the Olympics would be especially embarrassing for a city that went to great lengths to deliver blue skies during the 2008 Summer Games. Then, the cleanup effort required hundreds of factories to be shuttered or relocated. Thousands of home coal-burning boilers were converted to natural gas.

Air quality in the city improved by 50 percent over that summer, according to official numbers. The drastic change meant more than just a welcome respite for Beijingers, underscoring the pressing health concerns of pollution. By comparing mortality rates in Beijing that summer to other cities in China, economists estimated that a 10 percent decrease in the particulate matter known as PM10 prevented about 196,000 premature deaths.

—Washington Post

Dreaming in Sci-Fi

This past year’s UN summit at Glasgow proved once again that the international community is doing something about climate change—just not enough. Many, but especially those from younger generations, have grown exasperated with world leaders and global institutions.

So it seems almost radical to imagine a world where a UN agency is the one to lead massive economic and social reforms that result in an eventual drop in atmospheric carbon dioxide levels. Yet that’s exactly the plot of The Ministry for the Future, science fiction writer Kim Stanley Robinson’s latest novel.

In his 576-page tome, Robinson envisions a society that overcomes climate change through a million and one solutions, both inside and outside of traditional institutions. Nations, central banks, and legislators are crucial actors, but so are activists, rioters, and eco-terrorists. In the end, climate change becomes a catalyst for creating a future where all human beings live in a more just and peaceful world. The optimistic ending was enough for the New Yorker’s Joshua Rothman to pronounce Robinson as “the only writer who had offered me some hope about our collective future.”

I also felt particularly moved by this novel. It was one of several sci-fi books I started reading during the pandemic as an escape—though I ended up getting boomeranged right back to reality, probably because I didn’t understand what sci-fi really is. As the writer Octavia Butler, whose own novels Parable of the Sower and Parable of the Talents present a cautionary tale on climate change and social inequality, put it in a 2000 interview: “A lot of people think science fiction is Star Wars, and you have to be 14 to enjoy it.”

Those people used to include me—someone who wrote off sci-fi and fantasy as soon as I had gotten over my Harry Potter phase. But getting older, and facing realities that can sometimes feel like works of fiction themselves, has reawakened a desire to read neat conclusions about heroes saving the day.

Sadly even in sci-fi, there’s no such thing. But speculative fiction can provide an avenue for reflecting on our present and processing the future that’s more valuable than pure escapism. Robinson’s book is only one of many examples of how sci-fi grapples with the questions and issues of our time. In an interview with Papercuts magazine, writer Ted Chiang describes the genre as stories “about accepting that change is going to happen and that we will have to deal with the consequences, positive and negative.”

Science presents us with a sea of potential climate scenarios, but cognitively understanding this future is different from experiencing it. How then, can we overcome our limited understanding?

One way (and I’m not kidding!) could be to read more sci-fi. Reading lets us digest what we’re up against through stories and the characters that live through them. As Chiang says, “We live in a world undergoing constant change, and science fiction helps us prepare for that, cognitively.”

It may even help us take action in our (real-life) present. On the power of making predictions through storytelling and in life, Butler says it best. In a 2000 essay in Essence magazine, she writes: “So why try to predict the future at all if it’s so difficult, so nearly impossible? Because making predictions is one way to give warning when we see ourselves drifting in dangerous directions. Because prediction is a useful way of pointing out safer, wiser courses. Because, most of all, our tomorrow is the child of our today.” —Akielly Hu

 

 

 

 

Bird Poop and Sovereignty at Bay: The Strange Fate of Navassa Island
Author
Bruce Rich - Environmental Law Institute
Environmental Law Institute
Current Issue
September-October 2021
Issue
5
Bruce Rich

Imagine a tiny uninhabited islet in the Caribbean — smaller than Manhattan’s Central Park — where over two decades ago researchers were astonished to identify more than 650 species, discovering some 500 new insects and spiders, of which nearly a third are endemic. They found new lizard and fish species, and large colonies of seabirds. Navassa Island, 40 miles off the western coast of Haiti, is the longest continually claimed U.S. foreign possession.

But has Navassa ever legitimately belonged to the United States?

Christopher Columbus described it in his journals, joining Navassa to the Spanish Empire until 1697, when Spain conveyed to France the western third of Hispaniola with its adjacent islands. By the late 18th century the French colony St. Dominique exported nearly half the world’s sugar and coffee, produced by 500,000 slaves under such brutal conditions that average life expectancy for landed Africans was six years. The only successful slave revolt in history ensued, entailing the defeat of 50,000 of Napoleon’s troops in 1804.

The liberated Africans called the new nation Haiti, honoring the indigenous Taino Indian name meaning “mountainous land.” The Tainos numbered hundreds of thousands in 1492. They were totally exterminated by 1540 and replaced by black slaves. Every Haitian constitution in history but one (written under a U.S. Marine Corps occupation from 1915 to 1934) claims the adjacent offshore islands. Starting in 1825, France, Britain, and several other European countries officially recognized Haiti — but not the United States until Abraham Lincoln acted in 1862.

U.S. overseas expansion began with the seizure of Navassa under the 1856 Guano Islands Act. The law asserted the United States could occupy uninhabited, unclaimed islands with guano deposits anywhere in the world. Guano, the nitrogen-rich feces of seabirds, was then a prized fertilizer commodity. The act was ambiguous: guano islands would “appertain” to the United States, and claims could terminate when guano mining ended.

In 1857 an American sea captain arrogated Navassa under the act, working with a Baltimore company to extract the guano. Haitians had fished around the island for decades, and even built a small chapel there. The Haitian government sent two small vessels to stop the American activities, and the company appealed to President James Buchanan for help. Buchanan forcefully rushed to defend U.S. rights to bird excrement, sending a warship to threaten the Haitians.

Haiti’s commercial agent in the United States, a Boston merchant, wrote to Buchanan’s secretary of state, arguing the “perfect legal title” of Haiti’s sovereignty over Navassa, noting the 1825 French recognition of the new country and “all of its dependencies.” The State Department rebuffed him.

The Baltimore-based Navassa Phosphate Company hired former slave overseers to manage the guano workers. In 1889 abuse bordering on torture of 140 African American contract laborers led to a revolt and the killing of five hated overseers. A U.S. circuit court condemned three to death, and 57 others to prison. On appeal the Supreme Court in Jones vs. U.S. (1890) ruled against the defense argument that the United States had no jurisdiction over Navassa. The Court declared “it is not material to inquire, nor is it the province of the Court to determine, whether the executive be right or wrong [in denying Haitian sovereignty]; it is enough to know that in the exercise of his constitutional functions he has decided the question.”

The company went bankrupt in 1901. The island’s administration passed to the U.S. Navy, and later to the Coast Guard until 1996, when the Interior Department took over, designating Navassa in 1999 as a National Wildlife Refuge. Haiti’s claim gained Cuba’s support in 1958, followed later by Nicaragua, Venezuela, and Ecuador. In 1989 Haitian amateur radio operators briefly occupied the island, setting up a Radio Free Navassa transmitter, and in 1998 a Haitian oceanographer established the Navassa Island Defense Group.

Interior and the National Oceanic and Atmospheric Administration conduct valuable research on Navassa, and have on occasion invited Haitian scientists to participate. So is legal sovereignty a distraction with no real consequence? It’s not an edifying sight to behold the world’s richest country, wrote historian Ted Widmer in 2007 on the sesquicentennial of the United States’ Navassa claim, disputing with the Western Hemisphere’s poorest nation ownership of an uninhabitable rock covered with bird droppings. An international trust for research and conservation administered as a condominium by the United States and Haiti might be a solution. In practice, not much would change, but in a world rift by authoritarian rulers aggressively asserting contested territorial claims it would be an important gesture of soft power for the United States.

Bird Poop and Sovereignty at Bay: The Strange Fate of Navassa Island.

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