What can the Dakota Pipeline protests tell us about existing tribal consultation requirements?

Sacred Stone Camp, North Dakota.  Photo: Joe Brusky

Sacred Stone Camp, North Dakota.  Photo: Joe Brusky

When the federal government announced in September that it would be withdrawing permits issued for the Dakota Access Pipeline, it was a huge win for Indian tribes and environmentalists who were protesting the construction of the pipeline across sacred sites and sensitive ecosystems.  But the government's announcement also called for a revision to federal policy as it concerns tribal consultation.  Specifically, the government requested feedback and dialogue on two questions:

(1) Within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights?  
(2) Should new legislation be proposed to Congress to alter that statutory framework and promote those goals?

These are fairly open-ended questions, and its fair to wonder if the administration will have enough time to consider responses, formulate a policy response, and implement it in time for this process to have a meaningful impact before the administration change-over in January.  Nonetheless, both questions merit some thought.  I'll tackle the first question in this post.  

Before thinking about how consultation can be improved within the existing framework, we need to know what the existing framework is. There are several statutes that require consultation before proceeding with certain government actions. Here are the most prominent:

The National Historic Preservation Act (which was the consultation statute at issue when the Standing Rock Sioux sued to block the Dakota pipeline from moving forward) requires consultation with tribes that attach religious and cultural significance with certain lands and properties.

The Archaeological Resources Protection Act requires consultation before the government can permit archaeological excavation on tribal lands.

The American Indian Religious Freedom Act provides tribes with access to sacred sites and objects, and allows them to conduct traditional rites.  

The Native American Graves Protection and Repatriation Act requires consultation with tribes regarding the treatment and disposition of human remains and sacred objects.

In addition to these statutes, federal agencies are bound by Executive Order 13175, "Consultation and Coordination with Indian Tribal Governments."  The Executive Order was established in 2000 "in order to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications."  In 2009, President Obama directed federal agencies to develop a plan of action to implement the directives of EO 13175.  The Department of the Interior's plan can be seen here, for example.  

Many of these consultation statutes, regulations, and policies are fairly open-minded and receptive to consultation best practices.  The Department of the Interior's policy, for example, calls for consultation reporting and training, regular meetings with tribes, the appointment of tribal officers within the agency and sub-agencies, and opportunities for tribal consultations and dialogue throughout the administrative rule-making process.  Other agencies have similar policies and procedures (see the Department of Transportation's policy here).  

So it seems there are numerous avenues for tribal consultation on federal agency actions.  There are a number of statutory directives, as well as tailored tribal consultation plans for each agency.  Why then, is tribal consultation still challenging?  

One reason is that there is ambiguity with respect to which actions "trigger" consultation.  It is obvious that the US Army Corps of Engineers will consult with a tribe if a dam the Corps is operating will be modified in a way that will flood tribal land.  But what if water levels in a reservoir operated by the Corps are modified in a way that may negatively impact salmon, a species fished by a local tribe?  Would that type of activity trigger consultation?  It's not always clear.  And because agency rule-making or government operations often require multiple layers of bureaucracy and approvals, agencies may be tempted to err on the side of expediency rather than consultation. 

An additional challenge is that there are no uniform standards for what constitutes satisfactory consultation.  Often consultation may consist of an invitation to submit comments on a proposed agency action.  Hardly the round-table dialogue many envision when they think of consultation.  The agencies have to balance their duty to consult with the demands on their time and resources; they seek to satisfy their obligations while moving the ball forward.  

Finally, the requirement to consult typically does not carry with it any obligations to undertake any particular final decision or agency action.  For example, while the National Historic Preservation Act requires extensive consultation, ultimately it does not mandate that the permitting agency in question take any particular measures to protect historic resources.  

When the Standing Rock Sioux Tribe sued to block construction of the Dakota Access Pipeline, it claimed that the Army Corps of Engineers had not fulfilled its National Historic Preservation Act obligations because the Corps had not executed a "programmatic agreement" with tribal representatives.  A programmatic agreement is an agreement negotiated with the tribes that governs an agency's actions over a particular activity, so as to reduce impacts on sensitive resources.  The District Court's opinion noted that the Corps had executed such agreements in the past, but its failure to execute one for the Dakota Access Pipeline was not a problem because programmatic agreements are not mandatory.

These issues are not easily remedied, but lessons learned from the Dakota Access Pipeline and other cases, as well as similar provisions and procedural requirements of other statutes, can shed light on some potential fixes to federal-tribal consultation requirements.  My thoughts on those fixes are forthcoming.  


Flint Water Crisis: The Aftermath

At the beginning of this year I started blogging about the Flint water crisis, which was spiraling out of control and making national headlines (see my posts here and here). The headlines have moved on, but problems with water infrastructure and services linger.  Cara Cunningham Warren (University of Detroit Mercy School of Law) just released a new paper looking at the broader ramifications of Flint and cooperative federalism of water management, and reports some startling statistics: 

In 2015, at least 3.9 million Americans were exposed to lead in their drinking water at legally unacceptable levels. An additional 18 million Americans are at risk because their water systems are not in compliance with federal rules designed to detect the presence and to ameliorate the impact of lead contamination. What’s more, in 82% of the cases where the violation related to a health standard, no formal state or federal enforcement action was taken.

 The University of Southern California’s Suzanne Dworak-Peck School of Social Work has been doing some great work raising awareness of water issues.  Their online program, Nursing@USC, has offered to post an excellent visual aid explaining the evolution of the Flint water crisis on this blog.  Their infographic, and introduction to it, are below:

One year after the official announcement of elevated lead toxicity in Flint’s water supply, the city’s water is still not safe to drink. While Congress has yet to pass a bill to allocate funds, criminal charges have been filed against state officials and thousands of children have tested positive for toxic levels of lead exposure.

The impact on residents’ wellbeing is devastating—according to the World Health Organization, “the neurological and behavioral effects of lead are believed to be irreversible.” Interim solutions included drinking bottled water, purchasing filters and testing water at home, all of which required families to designate income toward fixing a crisis they could not afford. Roughly 40 percent of the city’s residents live under the poverty level, making it one of the poorest cities in the United States, struggling to pay for a resource that is considered by the U.N. to be a human right.

The crisis has yet to be resolved, just as other incidents of water toxicity have appeared in the District of Columbia, Indiana and Ohio. Clearly Flint is not the only vulnerable city, but the course of action exhibited the dangerous combination of environmental racism and lack of government oversight. The illustration below depicts the series of events that took place, which resulted in a catastrophic event from which lawmakers could learn.

This visual timeline was created by Nursing@USC, the online family nurse practitioner program at the University of Southern California’s Suzanne Dworak-Peck School of Social Work. The program prepares family nurse practitioners to treat physical and behavioral health, address social and environmental factors, and lead positive social change.

Image produced by Nursing@USC

Image produced by Nursing@USC

Federal Pipeline Policy pivots toward tribal and environmental interests

Sacred Stone Camp in North Dakota and the Standing Rock Sioux Reservation have become the staging area for protests along the proposed Dakota Access Pipeline route.  Photo: Joe Brusky.

Sacred Stone Camp in North Dakota and the Standing Rock Sioux Reservation have become the staging area for protests along the proposed Dakota Access Pipeline route.  Photo: Joe Brusky.

Last November, the Obama Administration denied federal approval of the Keystone XL pipeline, finding that approval of the pipeline was not in the US' interests.  It largely did so because Keystone XL had become THE symbol of environmental resistance.  Previously, energy infrastructure projects had not been particularly controversial.  Even Keystone XL's impacts (both environmental and economic) were overblown by vehement opponents and supporters of the project.  I wrote then that the federal government's rejection signaled a pivot toward environmental protection, especially as the timing of the rejection came just before world leaders met in Paris to negotiate a major climate agreement.  It also represented a major victory for environmentalists, and the power of environmental protests.

The history of Keystone XL has become more salient in recent weeks, as protests over the proposed Dakota Access Pipeline (DAPL) intensified.  DAPL would carry oil from western North Dakota oil fields to an existing pipeline network in Illinois.  Along the way, however, the proposed route crosses federally controlled waterways, as well as sacred tribal lands and burial sites.  The Standing Rock Sioux Tribe, in particular, is also concerned that an oil spill might contaminate their water supplies.  But protests over the pipeline have evolved into a larger battle regarding tribal and environmental interests, on the one hand, and energy security on the other hand.  Other tribes are standing in support of the Standing Rock Sioux, as are scores of celebrities, politicians, environmentalists, and other activists.  Protests have taken place all over the country.  It is possible that these protests and shows of support for blocking the pipeline would have taken place regardless, but it seems more likely that the anti-Keystone XL movement has provided a model for citizens to use political pressure to block pipeline construction.

The legal process took an interesting turn this week, as the D.C. District Court rejected the Standing Rock Sioux Tribe's request for an injunction.  The tribe claimed that, because it was not consulted about the DAPL (as is required by the National Historic Preservation Act), construction of the pipeline would lead the tribe to suffer irreparable harm worthy of a preliminary injunction.  The court appeared sympathetic to the tribe's concerns, opening its decision thusly: "Since the founding of this nation, the United States’ relationship with the Indian tribes has been contentious and tragic."  But ultimately the standard one must meet to be granted a preliminary injunction is a very high one.  As the court noted, "'[I]njunctive relief' is 'an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief'" [citing Winter v. Nat. Res. Def. Advisory Council].  The tribe didn't meet that standard, according to the court, and the injunction was denied.

The legal defeat notwithstanding, pipeline protesters received a significant victory immediately after the court's decision was released.  The US Department of the Interior, Department of Justice, and Army Corps of Engineers issued a joint statement that federal approval of the DAPL would be suspended pending further review.  In addition, the federal government invited tribes and the general public to participate in consultations regarding tribal lands and resources, and the potential need for new legislation.  The joint statement calls into question the viability of the DAPL moving forward - without federal approval, the pipeline will not be able to cross major waterways blocking its path.  The statement represents a remarkable victory for tribes, environmentalists, and pipeline protestors.

This is, therefore, the second major pipeline protest breakthrough in less than one year.  One of three developments is likely true: either the federal administration is pivoting toward tribal and environmental interests, or the political pressure mounted by pipeline protestors is increasingly influential, or both.  The administration's support for tribal and environmental interests can be measured in other ways over the past few years, and that support is likely a factor in this case as well.  But the influence of protest movements in shaping energy politics is undoubtedly a major factor as well.  As mentioned, these types of infrastructure projects rarely took center stage in the past.  Now, they are doing so with regularity.  It will be interesting to see how the DAPL legal and political processes play out.  It will also be interesting to see if more pipeline protests emerge in the near future.  If the Keystone XL and Dakota Access Pipelines are any indication, high-profile pipeline protests may become the new normal.  

Listen to my interview on News Talk 770

Screenshot taken from The New Republic.

Screenshot taken from The New Republic.

Last week I wrote a piece in The New Republic (originally published in The Conversation) on the subject of Big Marijuana and the promise of the appellation model as a mechanism to regulate marijuana agriculture.   Long-time readers of this blog will be familiar with my arguments, but it's always a pleasure to see them published, posted, tweeted, and commented on in the broader media.  Thanks to all who wrote personal messages (even if some were, let's say, skeptical of my ideas).  

Dan Riendeau is the host of @Night on News Talk 770, a Calgary-based news radio station.  He interviewed me last week to flesh out some of the ideas I wrote about in the New Republic.  We talked about the trade-offs of legalization, the rise of Big Marijuana (and whether or not it is truly inevitable), and the wine industry's appellation model.  You can listen to the full interview (about 15 minutes) below.  An alternate link is available here.

"Great things are done when men and mountains meet"

10 mile creek road south of Boise, Idaho.  Photo by Charles Knowles.

10 mile creek road south of Boise, Idaho.  Photo by Charles Knowles.

Great things are done when men and mountains meet;
This is not done by jostling in the street
~William Blake, 1808-1811

August 5, 2011 was my first day at Florida International University.  It was sweltering hot, and I was sweating hard in my ill-fitting second-hand blazer.  I was a project manager for USAID international development programs at the time, helping field operations focus on water management and sustainable development initiatives in countries like Tanzania, Burkina Faso, and the Republic of Georgia.  I started teaching at the FIU College of Law that year, and met some great students along the way.  Eventually I transitioned to a fuller-time faculty position, developing courses in Water Resources Law, Ocean and Coastal Law, and Natural Resources Law.  Over the past five years I've traveled all over the world representing FIU, from Paris to Port-au-Prince.  Suffice it to say, it's been a great ride.  But all good things must come to an end.

At the end of this month I'll be in a new position as an Associate Professor of Law at Concordia University's School of Law in Boise, Idaho.  It's a new job and a new challenge.  The American West is home to some of the most contentious and dynamic natural resource conflicts, in part because the region is one of the country's most beautiful.  I have mixed emotions leaving Miami, but, as John Muir said, the mountains are calling and I must go.  

Solar Energy Politics: Texas and Florida are on Divergent Paths

Solar panels near San Antonio, Texas form one of the largest solar farms in the United States. Photo: BlueWing.

Solar panels near San Antonio, Texas form one of the largest solar farms in the United States. Photo: BlueWing.

This November, Floridians will vote to approve an amendment to the constitution called the "Rights of Electricity Consumers Regarding Solar Energy Choice."  It was one of two solar-related ballot initiatives vying to make it onto the ballot.  The other initiative would have made it easier for third parties to finance solar panel installations, paving the way for Florida to tap into its considerable solar energy potential.  Unfortunately, the initiative didn't receive enough signatures.  The initiative that did make it onto the ballot makes it harder to finance solar installations, a fact that didn't get past Florida Supreme Court Justice Barbara Pariente.  She wrote:

"Masquerading as a pro-solar energy initiative, this proposed constitutional amendment, supported by some of Florida's major investor-owned electric utility companies, actually seeks to constitutionalize the status quo," Pariente wrote. "This ballot initiative is the proverbial 'wolf in sheep's clothing.'"

I wrote about these competing ballot initiatives in November 2015, noting that third-party financing receives political support from both liberal and conservative organizations:

"It is very frustrating to see how special interests affect politics," he said. "I'm a Republican solar contractor and I'm frustrated with my party in this state for taking donations that do not allow for competition and free market."

So it seems unlikely that Florida will tap into its solar potential (third in the country) anytime soon.  Contrast that with Texas, another state with enormous solar potential.  As John Hall points out, Texas is rapidly expanding its solar energy production:

  • Texas solar is growing very quickly: The new Solar Market Insight report declares Texas to be the fastest growing utility-scale solar market in the country. In fact, by the end of 2016, SEIA predicts the state’s total installed solar capacity will more than double. And within the next five years, Texas’ solar market will be second only to California’s (although, considering California has one-fourth of the solar power potential of Texas, we could eclipse the Golden State in coming years).
  • Solar will make up nearly all of Texas’ new power capacity: The Electric Reliability Council of Texas (ERCOT), the grid operator for nearly 90 percent of the state, evaluated the state’s 2031 electricity needs in eight potential scenarios based on trends and forecasts. For example, one scenario is the continuation of low natural gas prices and another reflects high economic growth. Solar was the common denominator in all eight of the scenarios: This clean energy resource represented nearly all of the new capacity in each one. In other words, the grid operator predicts that – in all foreseeable future circumstances — a lot more solar is coming online in the state. 
  • Texans agree on solar: A recent poll from the Texas Clean Energy Coalition found an overwhelming majority — 85 percent — of the state’s voters want to increase the use of clean energy (including solar) to generate electricity. Even better, both sides of the aisle are on board: That group included 78 percent of Republican respondents.

More and more states (partisanship aside) are embracing solar energy and tapping into their potential.  At the moment, solar energy cannot be relied on to provide the entirety of a state's electricity needs, of course, but solar is a worthy component of any state's energy portfolio.  Texas appears to recognize that.  Florida - the Sunshine State - has work to do to catch up.  

Introducing "Marijuana Appellations: The Case for Cannabicultural Designations of Origin"

A hemp farm at the University of Kentucky was shown to the public in 2015.  Appellations for the cannabis industry may be effective in organizing agricultural regions according to plant type.  Photo: UK College of Agriculture.

A hemp farm at the University of Kentucky was shown to the public in 2015.  Appellations for the cannabis industry may be effective in organizing agricultural regions according to plant type.  Photo: UK College of Agriculture.

Back in April, I posted my second law review article on marijuana regulation, "Marijuana Agriculture Law," forthcoming in the Florida Law Review.  I also previewed a section of the article that addressed the novel concept of applying appellations (or designations or origin) to the marijuana industry.  The thoughtful editors at the Harvard Law and Policy Review enjoyed the article, and I agreed to expand my research on marijuana appellations into an article for their forthcoming issue on the war on drugs.  

The article, "Marijuana Appellations: The Case for Cannabicultural Designations of Origin," is now available for download.  The introduction is provided below:

When California Governor Jerry Brown signed the Medical Marijuana Regulation and Safety Act (MMRSA) into law in October of 2015, the bill was hailed as the first step towards putting into place a regulatory framework for marijuana agriculture.  Although the state had legalized medical marijuana in 1996, there had been little to no effort to regulate the industry in any way, particularly its many farmers.  The MMRSA was a step in the right direction in many ways, not least of which was to prepare for the prospect of full-blown recreational use legalization in 2016.  The MMRSA comprehensively tasked state agencies with creating regulatory frameworks for a number of key issues facing the marijuana industry, including licensing, product tracking, labeling, pesticide use, and environmental impacts.

Buried deep in the text of the MMRSA is a provision that would allow the newly-established Bureau of Medical Marijuana Regulation to profoundly shape the nature and direction of the marijuana industry: “the bureau may establish appellations of origin for marijuana grown in California.”  Even if the bureau does not establish marijuana appellations, the MMRSA prohibits the use of California county names in the marketing, labelling, or sale of marijuana products unless the marijuana was grown in that county.    

An appellation is a certified designation of origin that may also require that certain quality or stylistic standards be met.  Appellations are most commonly associated with the wine industry, but they can be applied to any agricultural product in which the geographic origin carries importance.  The MMRSA provision, although seemingly innocuous, may have far-ranging effects on the marijuana industry in the United States.  As the most populous state in the Union and most prolific marijuana producer, California’s approach to marijuana agriculture regulation is likely to dictate, or at least influence, how, where, and by whom marijuana is grown. Already there is evidence in California that grassroots efforts are underway to establish local designations of origin for marijuana agriculture.  

If the marijuana industry (or even California) were to adopt the appellation model, it would throw cold water on prevailing assumptions that marijuana will become an agricultural commodity in a post-prohibition world.  The demise of the small-scale marijuana farmer is a common narrative of marijuana legalization discourse.  States across the country are legalizing the medicinal or recreational use of marijuana, and with rapid legalization is sure to come an increase in demand.  According to this narrative, it is inevitable that the marijuana industry will consolidate into a handful of agricultural conglomerates producing vast quantities of indistinct marijuana.  As it becomes an agricultural commodity the market will be flooded with cheap marijuana, driving down prices and driving out small-scale farmers.

The narrative is compelling, but misguided.  This Article argues that commoditization and consolidation of the marijuana industry is not inevitable (or even likely), and that marijuana appellations, or American Cannabicultural Areas (ACAs), offer a more promising alternative.  The early history of marijuana legalization suggests that the potential for marijuana farming to remain a small-scale vocation is strong.  To begin with, the market is already dominated by small-scale farms – there are an estimated 50,000 marijuana farms in California alone.  While legalization will no doubt disrupt the industry and create new market participants, it is unlikely that these farms will submit to the ‘Big Marijuana’ narrative.  On the contrary, many of the earliest states to legalize marijuana cultivation have placed severe restrictions on cultivation areas.  In addition, the market for marijuana products is subdivided into an incredible number of marijuana strains, each of which produce their own effects and flavor profile.  As the industry continues to create unique and differentiated strains, it will be difficult to envision marijuana as an agricultural commodity.

Some regions are already experimenting with marijuana appellations, and while challenges to widespread adoption are significant, a marijuana appellation model has promise.  On the other hand, there may be a role for large-scale cultivation and distribution of hemp, a derivative of cannabis plants that is used for industrial products instead of direct human consumption.  Whether or not this duality becomes the norm, commoditization and consolidation is not inevitable.  Marijuana appellations have a bright future, and represent a more local and sustainable agricultural model for the marijuana industry.

Access the full article here.


Law of the Sea Tribunal Ruling: Loss for China, Win for Environmental Principles?

The Law of the Sea Tribunal released its much anticipated ruling on the Philippines v. China arbitration today.  My previous thoughts on the environmental implications of territorial and maritime disputes in the South China Sea are here.  Today's ruling is a sweeping victory for the Philippines, and a resounding defeat for China.  As many observers have noted, China lost on almost every point.  Its infamous nine-dash line, long used to create an ambiguous legal claim to nearly the entirety of the South China Sea, was invalidated as a result of its incompatibility with the Law of the Sea Convention's exclusive economic zones.  China's claims to certain islands/rocks (and the maritime rights surrounding them) were rejected, as the Tribunal noted that those islands were only habitable as a result of human modification ("reclamation").  And China's aggressive interference with foreign vessels was deemed an violation of sovereign rights.  

Given the resounding nature of the defeat, some are concerned about the long-term ramifications or retaliatory actions that may be forthcoming.  Of existential concern for the Law of the Sea Convention, its Tribunal, and international law in general is China's flat-out rejection of the Tribunal's ruling.  It goes without saying that if one the world's superpowers refuses to play ball with the Tribunal, others are unlikely to do so.  The Tribunal's ruling makes clear that its members don't share this concern, or where content to let the consequences of their ruling play out how they may.

Another aspect of the ruling may have more subtle long-term consequences.  The Convention on the Law of the Sea is comprehensive, with sections and provisions addressing a number of maritime issues.  One of these is the marine environment, and the Convention contains many provisions you might find in other international environmental agreements.  Take Article 192, for example: "States have the obligation to protect and preserve the marine environment."  When negotiating these treaties, states often include similar statements without controversy.  Provisions like Article 192 are broad and difficult to enforce, and therefore not a matter of great substantive debate.

The Law of the Sea Tribunal's ruling may change perceptions that those environmental provisions lack teeth. The Tribunal ruled, without equivocation, that China's actions in the South China Sea were in violation of the Law of the Sea Convention's environmental protection standards:

The Tribunal found that China’s recent large scale land reclamation and construction of artificial islands at seven features in the Spratly Islands has caused severe harm to the coral reef environment and that China has violated its obligation under Articles 192 and 194 of the Convention to preserve and protect the marine environment with respect to fragile ecosystems and the habitat of depleted, threatened, or endangered species. The Tribunal also found that Chinese fishermen have engaged in the harvesting of endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea, using methods that inflict severe damage on the coral reef environment. The Tribunal found that Chinese authorities were aware of these activities and failed to fulfill their due diligence obligations under the Convention to stop them.  

Most likely, the Tribunal could have invalidated China's maritime claims without invoking these environmental provisions, but by doing so the Tribunal makes clear that broad, relatively ambiguous provisions about environmental protection are not meaningless.  They do, in fact, have teeth, and they can be used to invalidate state practices.  

As with the rest of the Tribunal's opinion, China (and the rest of the international community's) reaction to the ruling will be consequential; if the ruling is soundly rejected then environmental protection standards found in many international agreements will remain somewhat obscure.  And it remains to be seen how the Tribunal's ruling will be enforced.  

But so far states appear to be rallying behind the Law of the Sea Convention and the Tribunal, as rejecting those institutions would create uncertainty over maritime rights and responsibilities most states probably don't want to deal with.  The ruling is a win for the Philippines, but long-term, the Tribunal's invocation of environmental protection provisions may prove to be an even bigger win for the marine environment.

Incremental environmental peacebuilding between the US and Cuba

The Malecon in Havana.  Photo: Guillaume Baviere.

The Malecon in Havana.  Photo: Guillaume Baviere.

It's been a while since I wrote about Cuba's natural resources, and their importance in thawing US-Cuba tensions.  Two posts last year highlighted the need for more cooperation between the US and Cuba with respect to offshore resources, particularly oil and gas development.  I wrote this in May 2015:

An oil spill off the northwestern coast of Cuba would hit Florida within 6 to 8 days.  And yet, Cuba and the United States don't have a bilateral agreement in place to deal with that scenario.  The US and Mexico have a bilateral agreement that regulates oil and gas development in the Gulf of Mexico, establishing safety standards, emergency protocols, and inspection procedures.  A similar agreement is needed to protect the Florida straits.

Late last year there was some noise about opening offshore exploration, and further calls for cooperation.  That led to a "joint statement" between the US and Cuba in November, calling for more cooperation on environmental issues, including objectives such as:

  • protection of coastal and marine ecosystems
  • protection of biodiversity
  • climate change mitigation and adaptation
  • regulation of energy development and oil spill preparedness
  • academic exchange and information sharing

There's been little evidence of breakthrough progress on these points, but slow and steady advancements are to be expected given the many issues (environmental and otherwise) to be worked out for the first time.  In early July of this year US and Cuban officials met to discuss marine protection and biodiversity. The outcome of the talks was rather vague, and appeared not to focus on oil spill prevention and preparedness, a major area of need.  Still, the talks signal an intent to move forward with bilateral agreements and initiatives, a positive sign that environmental challenges remain high on the peacebuilding agenda.  

How those talks will move forward under a new Presidential administration remains to be seen, but at least one other objective from the joint statement - academic exchange - does appear to be moving forward.  Universities are increasingly in contact with one another, and US federal agencies are sponsoring high-level meetings of scientific and policy experts on environmental issues.  Some of these meetings may take place at or with the participation of my FIU colleagues, something that wasn't possible for us (or other Florida state university academics) until last year.  

3 perspectives on South China Sea island-building

China's 9-Dash Line.  Image: Asia Maritime Transparency Initiative.

China's 9-Dash Line.  Image: Asia Maritime Transparency Initiative.

Ever since China released their 9-dash-line interpretation of territorial and maritime claims in the South China Sea, it has appeared to many outside observers that the legal ambiguity of the claims has been a deliberate strategy.  Instead of providing a detailed legal claim to the South China Sea's many islands, reefs, and atolls (which would be very hard to pull off), China has preferred to make incremental progress "reclaiming" reefs.  This way, China can negotiate each individual conflict one-on-one with another claimant, a situation that gives China considerably more leverage.  A recent investigation of internal divisions in China offers a fresh take on this strategy of ambiguity.  Here's Feng Zhang:

[I]n reality, it’s not at all clear that China itself really knows what it wants to achieve in the South China Sea. Broadly speaking, there are three schools of thought among Chinese analysts about optimal policies toward the region: let’s call them realists, hardliners, and moderates [...]
China’s realists believe that the fundamentals of China’s current South China Sea policy are sound, with no adjustment needed. They recognize the diplomatic and reputational costs incurred, but tend to slight them because they value China’s physical presence and material capability much more highly than its image abroad [...] But they are uncertain about what to do with the newly constructed islands. Should Beijing push for a new round of military installations including placing offensive weapons systems, or are defensive equipments really sufficient for the status quo?
A second school of thought — the hardliners — provides alarming answers to the questions realists haven’t yet answered. Not only do they think China should present the seven new islands —constructed out of existing features, including Fiery Cross Reef, Subi Reef, and Mischief Reef — as faits accompli to the outside world, but China should further expand its territorial and military reach in the South China Sea [...]
Moderates argue that China needs to gradually clarify the Nine-Dash Line. Maintaining deliberate ambiguity would simply make the map a historical burden and an unnecessary obstacle to reaching diplomatic compromise. In their view, it is counterproductive to interpret the map as a territorial demarcation line, because doing so would make China an adversary of most Southeast Asian states as well as the United States. 

If this more nuanced understanding of Chinese territorial and maritime strategy provides some hope to the environmental community that destructive island building will cease if moderates succeed in scaling back reef reclamation, Zhang throws cold water on the idea:

The moderates differ much from the realists and the hardliners. But the three share an extremely important area of agreement: the necessity of island-building. During my extensive conversations with leading Chinese scholars and government officials since last year, I have not come across a single person who would say island building is a mistake. 

Needless to say, that is an unfortunate point of agreement for the South China Sea's marine ecosystem.  China is not the only country engaging in reef reclamation, of course, but if China doesn't scale back, others are unlikely to do so on their own.  All of this places even more scrutiny on the Law of the Sea Tribunal's forthcoming decision, expected this fall. The Philippines v. China case has the potential to affirmatively reject the 9-dash line.  That may not in itself prevent continued island building, but it would help build a case that the region's sensitive ecosystems should be a point of cooperation, not conflict.

Big Cypress: Oil and Gas Rights and Multiple Use in the National Park System

Big Cypress.  Photo: Franco Tobias.

Big Cypress.  Photo: Franco Tobias.

Last semester I taught Natural Resources Law for the first time.  Some of the themes we encountered throughout the course included: the federal government's constitutional authority over public lands, the National Park Service's dual mandate to promote conservation and enjoyment of NPS lands, "multiple use" principles, tribal natural resources, wilderness designation, federal energy policy, oil and gas exploration and development, environmental review requirements, and designation of critical habitat for endangered species.  As if tailor made as a law school exam hypothetical, controversial management of the Big Cypress national preserve in South Florida invokes each of these themes.

National Parks Traveler has an excellent rundown of the preserve's troubled past.  A recent decision from the NPS to forego an Environmental Impact Statement in favor of an Environmental Assessment (or more simply, to forego more rigorous environmental impacts review) will allow Collier Resources (owner of oil and gas rights in the preserve) to study the preserve area to determine if oil and gas development is feasible.  The decision is reigniting concerns over many dormant ambiguities in the preserve's enabling legislation and management history.   Consider just a few of these ambiguities:

  • the Big Cypress National Preserve is part of the National Park System and thus its ecological integrity must be maintained, but its enabling legislation provides for some oil and gas development;
  • NPS management of the preserve has, at times, appeared to promote the principle of "multiple use" of public lands (allowing for extensive Off-Road Vehicle use for example), even though the principle does not apply to NPS lands;
  • when the federal government acquired the lands that now make up the preserve, subsurface mineral values may have been taken into account when Collier Resources was paid for surface lands; 
  • Assuming Collier's mineral rights are secure, it is unclear if meaningful energy deposits are located in the preserve, making it difficult to valuate Collier's property interests in advance of a potential buy-out;
  • there are several endangered species living in the preserve - such as the Florida panther - but critical habitat has never been designated
  • federally recognized tribes retain certain use rights in the natural resources of the preserve
  • as a vast wilderness expanse, the preserve is an obvious candidate for designation as a federally protected wilderness area, but park officials disagree on which lands should be designated as wilderness and which lands should not;

If the seismic testing and exploration moves forward as anticipated, at least one of these issues will be cleared up, as Collier and the NPS will have a better sense of how much oil and gas is located in the preserve.  Historically Florida has not been an oil-rich state, so there's a good chance the exploration phase comes up empty.  If that's the case, a buy-out of the mineral rights would be more feasible.  If, on the other hand, Collier finds extraction worthwhile, the company will still face a difficult road.  Collier will have to submit an oil and gas development plan to the NPS for approval.  At that point, a full-blown Environmental Impact Statement is likely, and the fragility of the preserve's ecological resources might limit the extent of development.  The low cost of oil might make such a complex extraction scheme financially impracticable even if the plan is approved and survives third-party litigation.  In any case, potential oil and gas development in a national preserve (and potential wilderness area) is something to keep an eye on.  If nothing else, it makes for a great case study for students of natural resources law.

Federalism and Reform of the Toxic Substances Control Act

Photo: Joey Gannon.

Photo: Joey Gannon.

Last month, in a bit of symbolic bipartisanship, Congress passed the National Bison Legacy Act, making the bison America's national mammal.  Last week Congress passed a significantly more ambitious (if less charismatic) legislative initiative: major reform of the Toxic Substances Control Act of 1976.  The TSCA tasks the federal Environmental Protection Agency with regulating chemicals that pose unreasonable risks to human health or the environment.  It is an admirable statute, but the TSCA hasn't stood up to close scrutiny in recent years.  For one thing, it hasn't been meaningfully updated since 1976.  It requires little from manufacturers in terms of data disclosures or modern technology adoption, and the EPA's regulatory powers are relatively weak.

As a result, regulation of toxic substances has taken place predominantly at the state level, if at all.  States like California, Oregon, Washington, Michigan, and Connecticut have passed comprehensive regulatory programs to address toxic chemicals.  Many of these state programs have been successful, and toxic chemicals regulation is a great example of state leadership filling a federal government void when it comes to environmental governance (climate change is another).  But the state-led approach has its critics, too.  For every state that has passed aggressive chemicals regulation programs, there is another state that has taken little or no action, leaving many populations vulnerable (minority, low-income, elderly, and infant populations bear the highest risk from exposure).  Chemical manufacturers themselves have called for reform as well, preferring a single, uniform regulatory program on the federal level to the patchwork of state programs that must presently be navigated.

Congress responded by passing the Frank R. Lautenberg Chemical Safety for the 21st Century Act, possibly the most sweeping environmental legislation enacted in years:

The bill allows the EPA to evaluate the safety of tens of thousands of older chemicals that were impossible to regulate under existing law and strengthens the agency’s hand in reviewing new chemicals. It requires the agency to consider only safety and health – and not costs – when deciding whether a chemical presents “unreasonable risk.” It charges companies up to $25 million to pay for the reviews, and provides new protections for vulnerable groups such as children, the elderly and people with compromised immune systems.

The bill passed with bipartisan support.  If there was any debate at all, it centered around the bill's preemption of state regulations.  Typically federal law trumpts conflicting state laws, unless Congress otherwise specifies.  Here, some states wanted to maintain their authority to regulate toxic chemicals.  Those states were, unsurprisingly, many of the states with strong existing regulations.  Representatives from California and Washington, for example, expressed concern that weak federal regulations might trump their stronger state regulations.  Or, from a more procedural point of view, if the federal government wants to regulate a new chemical, their lengthy regulatory review process would preclude a more rapid state response.  

All things considered, though, TSCA reform is a win.  A cynical EPA could hamper stronger state regulation in the future, but the more immediate outcome is that a national regulatory program for toxic chemicals is now more firmly in place.

The Florida Record examines my commentary on the Flint water crisis

The Faka Union Canal in Florida drains water from the Big Cypress Swamp.  Photo by JaxStrong.

The Faka Union Canal in Florida drains water from the Big Cypress Swamp.  Photo by JaxStrong.

It's always nice when media outlets find, appreciate, and profile your research.  In the wake of the Flint water crisis I wrote about the ways in which the crisis was being used as a proxy for the age-old water privatization vs. human right to water debate.  Journalist Mark Powell of the Florida Record digs into that research in his latest piece, "Infrastructure Lacking in Wake of Flint Water Crisis, says Florida Law Professor."  Article copied below:

With the recent water crisis in Flint, Michigan, an environmental law professor at Florida International University (FIU) took the opportunity to publish a paper on the ethics, law and regulations of our greatest resource.

Ryan Stoa, a law professor at FIU who teaches water resources law, is also the co-director of the International Water Group of the Institute for Water and the Environment. In late February, he published a piece inJuristwhich provides academic commentary on prevalent legal issues by law professors and academic experts. In his piece, he highlights both sides of an argument spurred by the Flint water crisis.

The mismanagement of the water supply in Flint had many calling for local government resignations and a law requiring water to be declared a human right. Digging a bit deeper, the debacle has re-invigorated the classic public versus private water supply debate.

Those in favor of water as a government-controlled resource believe it will do away with the corruption of private companies that they believe doomed Flint. In contrast, those in favor of privatization often point to the lack of proper funding in government-controlled programs, and believe Flint’s situation could have been prevented with more oversight.

“I think it is inaccurate to suggest that only one approach can work, when there are many examples of successful public water service providers and private water service providers,” Stoa told the Florida Record. “Along these lines, there are misleading assumptions on both sides.”

Stoa believes that the issue is more complicated than the amount of government involvement, stating that the public and private sectors can–and often do–collaborate to provide the resource.

“Investments in the water sector aren't always invested wisely,” Stoa said. “If funds are available to bolster existing expenditures that usually helps, but re-thinking existing policies may provide some opportunities to improve water systems as well.”

An example of this is the state of Florida, which has a complicated water law system. While Florida does not necessarily privatize its water distribution system, it does give a surprising amount of control to districts, whose parameters are drawn out along hydrologic boundaries.

These districts are often exempt from local or state government overreach unless absolutely necessary. While they are often effective when solving issues within their own districts, they struggle when dealing with problems that occur outside their boundaries.

Despite Florida’s model, it’s easy to see how this model could fail and prove just as ineffective as other systems across the United States. As Stoa points out in his article, the American Society of Civil Engineers gives the country's water infrastructure a D+ rating, yet Congress continues to defund water maintenance.

“Much of our water infrastructure was built to tame and control the natural environment; some of that infrastructure has been effective,” Stoa said. “But re-thinking existing policies may provide some opportunities to improve water systems.”


Was the President's Keystone XL rejection constitutional?

An oil pipeline near the Copper River in Alaska.  Photo: Luke Jones.

An oil pipeline near the Copper River in Alaska.  Photo: Luke Jones.

In the run-up to the COP 21 Climate Conference, US energy politics was dominated by President Obama's rejection of TransCanada's proposed Keystone XL pipeline.  The pipeline would have extended and modified the route of the existing Keystone pipeline, facilitating the extraction of Canadian tar sands oil and helping bring it to market.  Before the decision was made, I wrote about the impact a rejection of the pipeline might have on COP 21 negotiations:

If the pipeline were rejected before the COP 21 negotiations, it would further cement the feeling (shared by myself and others) that the Keystone XL fight is largely a symbolic one [...] Admittedly it's hard to quantify the extent to which a rejection of Keystone XL would bolster the US position on climate change during COP 21 negotiations, but if the administration is looking to maximize its leverage with other countries, a decision on the pipeline would be a bold move.  

As it turned out, the perception that Keystone XL would contribute to global climate change was a major factor in rejecting the project.  The State Department had already concluded that other environmental impacts would be minimal (a disputed claim), and even questioned the idea that Keystone XL would have a meaningful impact on GHG emissions.  Still, it would have been difficult to push the international community towards climate action if the US President didn't appear to be taking action himself.

It's now clear that TransCanada intends to use that reasoning against the President.  In a brief filed in January in a federal district court in Houston, Texas, TransCanada alleges that the President's rejection of the pipeline was unconstitutional.  This week several states (Oklahoma, Kansas, Montana, Nebraska, South Dakota, and Texas) filed a brief in support of TransCanada's claims.  The most interesting claim is that the President lacks the constitutional authority to reject a pipeline project.  Here is the gist of the argument:

Essentially, the argument boils down to this: Congress has constitutional authority to regulate foreign and domestic commerce; Congress has not delegated that authority to the President; and to the extent that Presidents have traditionally exercised approval power in the past, none have rejected an international pipeline on the basis that it would undercut the President's bargaining power in unrelated international negotiations.

There is some merit to the claim, but of course, the issue is not as clear-cut as the brief suggests.  While Congress has not expressly delegated approval powers to the President, it has not established a statutory scheme for regulating international pipelines either.  So there is an absence of regulation, within which several Presidents have stepped in to make approvals and regulate international pipelines to some extent.  Here is Prof. James Coleman on the federal government's likely response:

President Obama’s administration will raise several counterarguments. First, it will argue that the President has inherent and unilateral constitutional authority to control the nation’s borders, so he must have some kind of ability to control international border crossings. Second, if Congress has not established any criteria for the President to use in this decision, then he is free to create his own criteria. Third, President Johnson established this process almost fifty years ago and it has been frequently used to approve pipelines so Congress has, with the passage of time, acquiesced to this process. Fourth, federal district courts have upheld the President’s unilateral decision to approve international pipelines.

The process President Johnson established was Executive Order 11423 in 1968, which allowed the President to approve international pipelines as long as they serve the national interest.  Presidents have long followed this process, and until the Keystone XL rejection, it was largely uncontroversial.  What TransCanada is arguing, however, is not just that the President doesn't have constitutional authority to approve or reject international pipeline proposals; even if they lose that point, they can argue that in this specific case, the rejection was based on the project's perceived impacts, not its actual impacts.  

A comprehensive energy policy framework does not exist, and for the most part, has never existed.  That absence results in some constitutional ambiguities, such as the one in this case.  I think it likely that the President's authority to review and approve/reject international pipelines will be upheld in federal court; cross-border pipelines are sufficiently related to foreign affairs, even if foreign and domestic commerce is implicated as well.  However, the government should expect to receive some flack for its reasoning.  In the future, pipeline decisions may be more closely based on the substantive review of the project and its direct impact on the national interest as a result of this challenge.  

National Bison Legacy Act makes the bison America's national mammal

Photo: Kabsik Park.

Photo: Kabsik Park.

There hasn't been a lot of bipartisanship in Congress this year, but a broad coalition of support from conservationists, ranchers, and Native Americans led to passage of the National Bison Legacy Act.  The Act makes bison the official national mammal of the United States.  Most people are familiar with one phase of the bison's North American history.  Massive bison herds used to roam freely across the great plains and American West (with a peak population estimated at 60 million), but due to human settlement, disease, and most significantly, market hunting, the bison nearly went extinct by 1900.  

A combination of conservation and private bison ranching help bring the bison population back.  Today there are an estimated 500,000.  That number is somewhat misleading, however, as many of those are now domesticated livestock bison, cross-bred with cattle.  As few as 30,000 are on conservation lands, with only 5,000 un-fenced and healthy.  And even the wild bison are subject to annual "culls" conducted by the federal government in Yellowstone National Park:

In 1995, the state of Montana sued the park service to control bison that roam outside of Yellowstone’s boundary. Montana stockmen feared that bison could infect local cattle populations with the disease brucellosis, which can cause cows to abort their calves. For years, the Montana Department of Livestock had killed bison that left the park.
In 2000, a court- mediated settlement resulted in the Interagency Bison Management Plan, which remains in effect today. It basically requires the park service to do the bidding of Montana stockmen. The park service, in cooperation with the state livestock department, captures bison inside the park and ships them to slaughterhouses. This effort has cost an estimated $50 million since it began 15 years ago. Ninety-five percent of that funding has come from the federal government.

There is very little science to back up the brucellosis fear, however.  Some believe brucellosis to be a cover for ranchers' concerns that wild bison will compete with other livestock for prime grasslands.  In any case, the bison, despite a promising recovery, faces many challenges to a return to historic habitats and grazing freedoms.  So, does the fact that the bison is now America's national mammal provide some hope?  Here are the two operative clauses of the National Bison Legacy Act:

  In other words, the first clause adopts bison as the national mammal; the second clause clarifies that the designation changes nothing.  The Interagency Bison Management Plan, for example, is not affected by this law, nor is any other statute or federal management activity. Unlike state legislatures, however, Congress has not been in the habit of designating official animal species.  The only other animal to receive this distinction is the bald eagle, the national bird, which has enjoyed a successful rehabilitation success story.  The bald eagle's recovery can be attributed to other federal laws and management actions (such as the Endangered Species Act), but the bird's status as a national icon surely help garner support for conservation efforts.  Similarly, while merely designating the bison as America's national mammal is unlikely to make a difference on its own, it can't hurt to raise the profile of the bison and its plight.  If nothing else, the bison lives on as a reminder of our predecessors' unbalanced approach to natural resources management.

Introducing 'Marijuana Agriculture Law'

Photo: Brittney

Photo: Brittney

If you've been following this blog for the past few weeks, you've noticed that I've been teasing out my forthcoming article entitled "Marijuana Agriculture Law: Regulation at the Root of an Industry."  I wrote about marijuana appellations, as well as the potential for counties across the country to start adopting a marijuana ordinance.  I've been working on the article for the past few months, and I'm pleased to finally post a full draft online.  See here for access to the article.  The article will be published in the Florida Law Review sometime next year, but this draft is available immediately.  Major themes covered include the potential commoditization/consolidation of the marijuana industry, the environmental regulation of marijuana agriculture, and the administrative challenges of regulating this new industry.  Below is the introduction to the article:  

Across the United States, voters are weighing the costs and benefits of marijuana legalization.  As many as sixty marijuana legalization initiatives may appear on election ballots in 2016, legalizing the recreational or medicinal use of marijuana in as many as 17 states and adding to the growing number of states that have already legalized marijuana.  As states move toward legalization, governments will need to address a broad range of regulatory issues, including the distribution, sale, and consumption phases of the supply chain.  But legal marijuana’s track record so far suggests that the agricultural component of the marijuana industry is being ignored.  Whether states are failing to appreciate marijuana’s agricultural roots or choosing to disregard them, the industry’s direction will be out of state control until regulatory frameworks are in place.  

Nowhere has this been more apparent than in California.  In 1996, California voters passed Proposition 215, the Compassionate Use Act (CUA).  With the CUA California became the first state to legalize the medicinal use of marijuana, exempting patients and prescribing physicians from criminal prosecution.  The text of the act was short, and did not address how the state or local governments were intended to regulate the marijuana industry.  It did not, for example, assign regulatory authority to an administrative agency, articulate limits on possession or cultivation, or propose a broad regulatory framework from which the state or local governments could operate. 

In the wake of the CUA a legal medical marijuana industry was created in California, and the industry experienced tremendous growth, notwithstanding the absence of any meaningful state regulations.  But the CUA’s omissions prompted the state legislature to enact the Medical Marijuana Program Act (MMPA) in 2003, which, among other measures, restricted the number of plants medical marijuana patients or designated caregivers could cultivate, and assigned further regulatory authority to the Attorney General.  Even these limits, however, became legally ambiguous guidelines after the California Supreme Court ruled that the rights established by constitutional amendment Proposition 215 could not be limited by legislative act.  The upshot of these early experiments with marijuana legalization is that California’s burgeoning marijuana industry has been more or less unregulated for twenty years.

In the absence of regulation, marijuana cultivation in California has exploded, with approximately 50,000 marijuana farms accounting for 60% of all marijuana grown in the United States.  There are as many marijuana farms in Humboldt County, California, as there are wineries statewide.  And this un-checked growth in marijuana agriculture has consequences for the sustainability and potential growth of the industry.  Marijuana farming has been blamed for sucking rivers dry, poisoning soil and water resources with pesticides and rodenticides, and clearing mature forests.  Much of these criticisms are flawed, as research on the environmental impacts of marijuana farming is nascent and rarely acknowledges that farmers can grow responsibly and sustainably on private lands. 

Many farmers would welcome the security of being in compliance with state and local laws, while being distinguished from cartel operations or destructive “trespass grows” on public lands.  As it stands, farms on private property remain vulnerable to police raids and asset forfeiture laws, and are unable to take advantage of typical agricultural government services, such as crop insurance programs or pesticide-free certifications.  Because marijuana agriculture’s regulatory contours have remained ambiguous for so long, the marijuana agriculture industry has been poorly understood by states and the public.  This disconnect presents a threat to responsible management of legal marijuana markets. 

Fortunately, change is on the horizon in California.  In January 2016, the Medical Marijuana Regulation and Safety Act (MMRSA) came into effect, with ambitious proposals to create comprehensive regulations for marijuana agriculture.  The MMRSA assigns authority for various regulatory responsibilities to a variety of state agencies, including the Department of Food and Agriculture, Department of Fish and Wildlife, Department of Public Health, and the State Water Resources Control Board.  Said the author of the bill, “cultivators are going to have to comply with the same kinds of regulations that typical farmers do…it's going to be treated like an agriculture product.”  It took twenty years to get there, but marijuana cultivation has finally been recognized as an agricultural activity in California, and may now be regulated as such.

The same cannot be said for every state that has legalized, or is considering legalizing, medicinal or recreational marijuana.  In many states the immediate regulatory priority is the distribution, sale, and consumption of marijuana.  Colorado legalized recreational marijuana by passing Amendment 64: The Regulate Marijuana Like Alcohol Act of 2012.  For political and public health reasons the analogy makes sense, but it also reveals a regulatory blind spot.  States may be using alcohol as a model for regulating the distribution, retail, and consumption of marijuana, but marijuana is much more than a retail product.  It is also an agricultural product, and by some measures, the largest cash crop in the United States.  Since marijuana prohibition laws were passed long before any regulations for cultivation were developed, states are facing an unprecedented challenge: regulate, for the first time ever, one of the country’s largest agricultural industries.  

Early indications suggest that states are making little effort to regulate marijuana cultivation, or fail to appreciate the disruptive potential of marijuana agriculture.  21 states may have marijuana legalization initiatives on their ballots for the 2016 elections.  Colorado, Washington, Oregon, Alaska, and Washington DC have already legalized the medicinal and recreational use of marijuana.  But few of these states are anticipating the unique regulatory challenges that marijuana agriculture presents.  Even fewer are prepared to tackle them.

This Article argues that marijuana is a burgeoning agricultural industry, and calls for regulations that recognize it as such.  As the field of marijuana agriculture law is incipient, this article provides a roadmap for the major regulatory issues states and the industry are likely to encounter.  Many agricultural policies and programs are created or supported by the federal government, and would not apply to marijuana agricultural activities that run afoul of federal marijuana prohibition laws.  Therefore, states and the marijuana industry will need to be creative in providing analogous regulatory functions.

The most immediate choice regulators will be forced to make is between an approach that incorporates the marijuana industry into the existing regulatory framework for agriculture (essentially treating marijuana like any other agricultural product), or an approach that creates a separate regulatory framework for marijuana cultivation.  While the former has its benefits, and may be achievable long-term, marijuana’s transition from the black market may call for a targeted regulatory scheme in the interim. 

Another fundamental issue facing the marijuana agriculture industry has not yet been conclusively resolved: is marijuana an agricultural commodity?  Commodities are fungible goods with no qualitative differentiation, such as wheat or soybeans.  Many existing farmers fear that marijuana markets will be flooded with cheap, indistinct marijuana grown by “Big Ag” conglomerates.  To counteract these concerns, some industry groups are advocating for states to adopt an appellation model of marijuana cultivation that would preserve markets for regional marijuana products and maintain quality standards.  States and counties can play a large role in this existential question by adopting or rejecting the appellation model, or by enacting other regulations that facilitate or preclude the consolidation of marijuana agriculture.

There is an environmental component to marijuana agriculture that will also require regulatory attention.  Pesticides and fertilizers facilitate plant growth, but may reduce soil and water quality.  There is a market for organic or pesticide-free marijuana that states and the marijuana industry may wish to cultivate.  Marijuana agriculture also requires appropriate quantities of water for irrigation and, when grown indoors, energy resources.  Regulators must balance an interest in providing resources to a growing industry with the need to manage those resources sustainably.  

When the environment does not cooperate, the federal government has been instrumental in providing stability to the agricultural industry by regulating crop insurance and providing disaster relief.  As marijuana farmers would not be eligible for these programs, states may want to provide their own support structures.  However, it may be difficult to avoid the federal government’s institutional and legal reach, presenting federal preemption concerns.

Another question concerns power sharing: where can/should regulatory authority be placed?  Local governments may play a large role in the direction of marijuana agriculture, as states with marijuana regulations have so far been broadly permissive of counties and municipalities creating their own (often more restrictive) marijuana agriculture regulations.  Local governments can utilize their lawmaking powers to shape agricultural policy for the marijuana industry, but this decentralized nature of policy-making may come at the expense of regulatory clarity for the state as a whole.

Keeping the regulatory framework centralized on the state level provides more consistency, but may be difficult to apply in states where political support for marijuana cultivation changes drastically by jurisdiction.  In addition, states will need to decide whether to consolidate regulatory authority for marijuana into one state agency, or to assign different roles and responsibilities to several agencies and regulate cooperatively.  Colorado has adopted the former model, while California the latter.  

In February 2016, Humboldt County passed a comprehensive commercial marijuana cultivation ordinance, one of the first of its kind.  As the heart and soul of California’s marijuana agriculture sector, Humboldt County has consistently played a leadership role in the development of the marijuana industry, and this ordinance may prove instrumental in shaping marijuana agriculture policies around the country.  The ordinance addresses many of the issues identified in this article, placing limits on farm size, water, and energy use, while developing an artisanal labelling program.  The Humboldt County ordinance is an ideal case study for the nascent field of marijuana agriculture law, and underscores the need for state and local governments across the nation to start developing their own regulatory framework.   

Never before has a major agricultural product entered legal markets with the pace and scale that marijuana is entering them today.  States face an unprecedented regulatory challenge, and ignoring the agricultural dimension of the marijuana industry is not a sound long-term approach.  This article will present and analyze the most significant legal and regulatory challenges states will face when legalizing marijuana.  Responsible and sustainable marijuana agriculture can be fostered at the state level, but only if regulations are responsive to the unique and unprecedented challenges that marijuana agriculture presents.


The Klamath River Dam Removal Agreement: Lessons for Negotiation

The Klamath River.  Photo: Linda Tanner.

The Klamath River.  Photo: Linda Tanner.

An agreement to implement the largest river restoration project in the United States was signed last week on a fish cleaning table at the mouth of the Klamath River in northern California.  The agreement hasn't garnered much national attention, but serves as a model for negotiating a complex stakeholder agreement over water resources.  This week I've been running negotiation simulations in my Natural Resources Law and Ocean and Coastal Law classes to drive home the significance of multi-party conflicts over natural resources, and the challenges of coming to a mutually beneficial agreement when so many parties have an interest in the resource.  The Klamath River is a textbook example of a multiple use resource conflict.  

The river and its network of dams provide irrigation to farmers in Oregon's upper basin and California's lower basin, hydropower to energy markets, instream flows to federal public lands, domestic water and aquatic species for several tribes, and sustain a diverse ecosystem that includes three species listed under the federal Endangered Species Act (including the Coho Salmon).  The operator of the dams is owned by Berkshire Hathaway, the river provides recreation and tourism opportunities to local communities, and its path crosses the state boundary between Oregon and California.  In other words, stakeholders include large-scale farmers, small-scale farmers, federal agencies, endangered species, tribal governments, conservationists, corporate interests, two western states, and watershed communities.  For many years the dynamic of the conflict pitted the dam operator and farmers benefiting from the irrigated water dams provide against the downstream tribes and conservationists who were critical of the cumulative impacts dams were having on the watercourse as a whole.  There has been extensive litigation and political wrangling in the last several decades, intensifying the conflict.  Compounding these issues is a decline in the absolute quantity of water resources available in recent years.  

It seems remarkable, then, that this diverse group of stakeholders could have come to an agreement.  Upon closer inspection, it seems that ancient doctrines of water law and the judicial system may have played a necessary role in getting the parties to the negotiating table.  The United States federal government holds a reserved water right to sustain federal public lands, from which it must also protect and preserve the water rights of the several tribes.  In this case, the Klamath Tribes (established by the Klamath Treaty of 1864), had priority water rights.  In the western water law system of prior appropriation, senior water users have priority over junior water users, but it can take many years of legal battles to validate senior water rights.  In 2013, an arbitration court finally validated the tribes senior water rights over upstream farmers using the dams.  In a previous case, United States v. Adair, the judge concluded:

"Although the reservation has now been terminated, members of the Klamath Tribe and the tribe itself have the right to sufficient water to protect their hunting and fishing rights on lands of the former reservation and for agricultural purposes on those lands. Protection of these rights, the court notes, will require maintenance of a natural stream flow through both an existing marsh and forest land on the former reservation."

That court decision prompted the stakeholders to negotiate an agreement that would operationalize the tribes' legal victory.  And it didn't hurt, I suppose, that the dam operator's financial projections were ambivalent: it might have been more expensive to continue maintaining and licensing the dams than removing them.  These new legal and financial developments gave the parties the mutual reality needed to get the deal done, which included a second agreement designed to compensate farmers and ranchers who stand to lose from dam removal. 

The Klamath River restoration agreement is remarkable in its scope, representing the largest river restoration project in the country.  It is remarkable in its promise, providing hope to tribes, conservationists, and local communities dependent on the health of the river's ecosystems.  But it might be most remarkable in its resolution, providing a fascinating example of a multi-party stakeholder negotiation that will likely result in a ground-breaking restoration agreement.  While centuries-old water laws are much maligned, it is clear they still have a powerful role to play in twenty-first century water management.  

The Marijuana Ordinance

Arcata Plaza, Humboldt County, California.  Photo: Terrence McNally.

Arcata Plaza, Humboldt County, California.  Photo: Terrence McNally.

One of the early trends in marijuana regulation is to include a heavy dose of local governance.  States that have legalized marijuana cultivation, sale, and consumption are being broadly permissive of local governments that want to enact their own marijuana regulations.  Local regulations can be more or less permissive of marijuana activities (often they outright prohibit the cultivation or sale of marijuana), and for states the advantages of local governance are numerous.  Because marijuana regulation is so new, states often have little experience or expertise on the subject, so getting local governments involved helps develop institutional capacities.  It also encourages experimentation with diverse regulatory approaches that might lead to innovative or create policies that can be replicated in other localities or on the state level.  And, since many legalization statutes are created by ballot initiative, allowing local governments to create their own rules makes marijuana regulation a less divisive issue on the state level, where politicians might retain some discomfort with the industry.

Local governments can use their power to enact ordinances to regulate marijuana agriculture, and that power has been utilized in states like California, Colorado, and Washington.  In most cases, though, ordinances make small changes or adopt broad positions.  There are few ordinances that comprehensively address marijuana agriculture.  Humboldt County, however, is an exception, having recently passed the Commercial Medical Marijuana Land Use Ordinance. Humboldt County officials had been working on the Marijuana Ordinance for several years, in collaboration with marijuana industry groups and farming representatives.  The close collaboration between local officials and industry representatives enabled the ordinance drafting process to move forward quickly and with political support, a dynamic that may prove to be equally helpful in other jurisdictions.  

My forthcoming article on marijuana agriculture goes into detail on the Humboldt County Marijuana Ordinance.  Part of that analysis is reproduced below:

The Marijuana Ordinance itself is relatively comprehensive in scope, addressing farming styles (indoor, outdoor, and mixed), historical use protections and benefits for existing farms, tiered permitting requirements based on zoning classifications, total farm acreage and marijuana cultivation area, water quantity and quality protections, energy use, and farm labor standards.  The ordinance addresses many of the issues explored in this article, and the choices those issues present to local governments.  The ordinance represents a clear attempt to regulate marijuana agriculture in a tailored fashion; marijuana cultivation limits (no more than one acre) indicate a preference for small scale farming and a rejection of large-scale consolidation models, demonstration of sufficient water rights and water quality compliance permits are required, and energy used in indoor farms must come from renewable sources or be offset with carbon credits.  The ordinance even attempts to create a ‘Humboldt Artisanal Branding’ certification program for small-scale, organic marijuana farms.  The Marijuana Ordinance does not address crop insurance or disaster relief, but local governments are not well-suited to provide financial services of this nature.

The central tension local governments face when regulating marijuana agriculture, particularly in jurisdictions where marijuana is already a primary crop, is between the need to bring farmers out of the shadows and into the regulatory system, on the one hand, and the need to create and enforce regulations that have a meaningful impact on cultivation and the direction and impact of the industry, on the other hand.  The Marijuana Ordinance addresses this tension by incentivizing existing farmers to register and participate with the county by providing benefits to those farmers who step forward within 180 days following passage of the Ordinance.  Those benefits include a larger maximum cultivation area (43,560 square feet, as opposed to a maximum 10,000 square feet for new farms), as well as a certificate of good standing for purposes of priority processing of state permits.  In addition, the ordinance incentivizes the retirement and relocation of existing farms located in environmentally sensitive areas by allowing farmers to cultivate an area four times larger in environmentally resilient areas.

It remains to be seen if the certificate of good standing will have meaningful value, but the cultivation area restrictions on new farms (which would include existing farms that chose not to register by the deadline) are significant, and may ultimately provide a pronounced advantage to existing farmers, who can cultivate an area over four times larger than new farmers.  In my conversations with farmers in the county, “to legalize or not to legalize” has been a frequent topic of debate.  Considering the isolationist nature of the marijuana farming industry in northern California, that debate is a promising sign for the county.

In other aspects, the Marijuana Ordinance is less well thought out.  It is logical to require that marijuana farmers have water rights (either riparian or by appropriation) sufficient to meet their agricultural needs, as well as water use plans and other documents certifying water use, but the ordinance may require water rights holders to agree to forego any water diversions from May 15th to October 31st.  Instead, marijuana farmers would be required to collect and store water during the rainy season in quantities sufficient for the dry season.  While there is some evidence that water used for purposes of marijuana cultivation may have adverse effects on water resources during periods of low flow, the ordinance’s prohibition on dry season water use as a general rule is unprecedented.  

The environmental impacts of this rule are unclear, as well.  While wet season flows are high and waterways can likely support an increase in diversions, ecological processes may depend on these traditionally high flows, and widespread wet season diversions and water storage may disrupt the wet season environment.  In addition, since irrigation demands are substantial during the dry season, the environmental impact of building large storage tanks on every marijuana farm, necessitating building materials, construction waste, and a storage footprint, may outweigh the benefits intended by the rule.  Moreover, if this rule is perceived to be unreasonable and infeasible by marijuana farmers, they may reject the ordinance and regulatory process as a whole.

Cognizant of its shortcomings and the hurried nature of its drafting, the Marijuana Ordinance contains a flexibility provision that may reassure skeptical farmers that compliance is attainable.  If, upon inspection, a marijuana farm does not comply with the requirements of the ordinance, a farmer may nonetheless be granted a provisional license, as well as a two-year window within which to cure the violation.  The provision is not only generous with respect to the compliance grace period, it also may provide enough time for county officials and marijuana farming representatives to address problematic aspects of the ordinance and make amendments prior to enforcement of violations.  It will take time for farmers to adjust to the dry season water use ban, if they adjust at all, but two years may be sufficient to devise wet season storage infrastructure or develop an alternative water use plan with the county and state officials. 

It is clear that marijuana ordinances are in their infancy.  So far most local governments have only superficially addressed marijuana agriculture.  Humboldt County, however, has capitalized on its economic and political ties with the marijuana farming community to develop a first-of-its-kind marijuana agriculture ordinance.  It remains to be seen if the county’s marijuana farmers buy into the regulatory framework, but initial signs are promising.  As marijuana legalization and regulation moves forward, the Humboldt County Marijuana Ordinance may prove to be a model for local governments.


Marijuana Appellations: the future of the marijuana industry?

Photo: Gavin White

Photo: Gavin White

For the past few months I've been working on another article about marijuana regulation.  This time I'm looking at the ways in which the marijuana industry will interact with state agricultural laws and policies.  One of the issues I address in the article is the perceived inevitability of the marijuana industry becoming consolidated into a small number of large-scale farms producing vast quantities of marijuana.  This would have the effect of turning marijuana into an agricultural commodity, indistinct, cheap, and widely available.  For understandable reasons many in the marijuana industry, as well as other stakeholders, bemoan this inevitable future.  

I don't believe that consolidation and commoditization is inevitable.  In fact, there are a number of ways in which the marijuana industry can evolve and continue providing a role for small-scale farmers producing unique products.  One approach is to follow the wine industry's lead and adopt appellations for marijuana.  As a preview of my article, I'm posting below my discussion of marijuana appellations and their viability going forward:

In response to fears that legalization will lead to commoditization of the marijuana industry and a consequent influx of generic marijuana that runs small-scale farmers out of business, some jurisdictions have proposed adopting appellations for marijuana cultivation.  An appellation is a certified designation of origin, that may also require certain quality or stylistic standards be met.  Appellations are most commonly associated with the wine industry, but they can be applied to any agricultural product in which the geographic origin carries importance.  The wine industry’s model rests on the assumption that environmental conditions (soil, aridity, temperature, etc., collectively known as the “terroir”) influence grape quality, and there is general agreement that assumption has merit.  Designation requirements that have quality standards also tend to increase the quality of grapes grown in the appellation, improving wine quality and the region’s reputation.

As the reputation of a region’s agricultural product grows, the appellation designation creates a unique market for the product, increasing prices while precluding other producers from associating their products with the region.  Appellations therefore create mandatory differentiation in the market, frustrating efforts to commoditize the industry.  Protectionism of local industries and their brands (e.g., Champagne, France) has a secondary benefit: by certifying that products with geographic indicators are accurately designated, consumers are assured of authenticity.  These twin goals of providing economic benefits and consumer protection underlie the basic motivations of most appellation systems.

There are several reasons the appellation model may be well-suited for the marijuana industry.  First, there is some merit to the claim that environmental conditions influence marijuana quality, and would therefore provide a basis for place of origin designations.  Marijuana farming has become so widespread in northern California in part because growing conditions there are ideal.  While California is known for being an infamously arid state, in reality the problem is distributional: while almost all of its population is located to the south, most of the state’s water resources were historically located north of Sacramento.  That is a problematic dynamic for population centers and the agricultural Central Valley, but it provides ample water resources for marijuana farming.  As a double bonus, California’s northern counties are dry during the summer growing season, when excess precipitation and humidity might dampen and spoil marijuana crops.  

In Jamaica, by contrast, marijuana farmers traditionally used genetic strains that were accustomed to tropical humidity and temperatures, cultivating marijuana with unique characteristics.  Seed companies regularly market their strains to match a diversity of outdoor conditions.   Instead of competing with each other to produce the most popular generic strains, appellations allow regions to embrace the strains that grow well in their environment.  For example, France’s Burgundy and Rhône regions are well-known for growing pinot noir and syrah grape varietals, respectively.  Neither region is threatened by outside producers or forced to adopt ill-suited varietals because they have created individual markets for their own well-respected grapes.  The same could be true of marijuana producing regions.

The economic incentive to provide monopolistic protections and marketing power to appellation regions is, without doubt, relevant to the marijuana industry.  Counties that have developed robust marijuana farming industries may feel that the influx of mass-produced generic marijuana that would come from national legalization may wipe out their existing small-scale farmers. Appellations can protect the brand-name associated with a region.  An appellation system could ensure that only marijuana grown in Humboldt County, California carries with it the Humboldt County designation.  In addition, marijuana appellations can adopt specific standards that collectively enhance the quality and reputation of their region.  In France, for example, wine appellations can require that vineyards only use certain varietals, limit irrigation practices that increase yields at the cost of grape quality, or attain a predetermined alcohol content.  While these requirements make production more challenging, they collectively increase the region’s overall product. Many of these practices could be applied to marijuana cultivation as well.

Of course, this model would require a broadly inclusive (i.e., transboundary) regulatory framework in order to be effective.  The United States wine industry’s appellations are regulated by the Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau (TTB), but for obvious reasons the TTB is unlikely to establish a national appellation system for marijuana if cultivation remains illegal under federal law.  States can develop their own appellation frameworks, however, and as long as states maintain import/export bans (likely in the short-term given federal interstate commerce enforcement concerns) those state regulations may prove effective.  State appellation regulations may even prove resilient if the federal prohibition is lifted and a federal agency regulates the industry.  

It would be difficult for individual counties or local government bodies to enforce their own appellation designations if other jurisdictions do not follow suit.   Enforcement of geographic indicators outside of the regulatory body’s jurisdiction is notoriously difficult.  In one infamous case, it took fourteen years and a trade mission for the Napa Valley Vintners Association to convince the Chinese government to grant protected status to the term “Napa.”   While the marijuana industry is increasingly mobilized and represented through interest groups, it will be difficult to force jurisdictions to recognize geographic indicators without the assistance of a broader regulatory framework.  Still, local attempts to create appellations can generate momentum and set precedent for other jurisdictions to replicate the model.  It is not a given that the TTB will establish marijuana appellation regulations upon legalization, but state and local governments can make that more likely by creating the foundations for regulation.

The second incentive to create appellations – providing consumer protection – is equally compelling in the marijuana industry.  Because marijuana has been (and in many jurisdictions continues to be) cultivated on the black market for so long, consumers have traditionally had little to no information regarding where or how their marijuana was grown.  It is notoriously difficult to determine the origin of marijuana even in the aggregate, but by one estimate two-thirds of marijuana consumed in the United States came from Mexico in 2008.  Given the well-publicized violence and corruption associated with Mexican drug cartels, it is not unreasonable to believe consumer behavior would reflect a preference for domestically grown marijuana if geographic designations were reliable.  Given marijuana’s illicit dimensions in many jurisdictions where it remains prohibited, marijuana appellations can provide some assurance of authenticity and ethical cultivation.  There is evidence that legal marijuana cultivation in the United States is driving “cartel grows” out of business; appellations can assist the market in providing consumers with choices that meet their standards in similar fashion.

Appellations can provide consumers with more information than place of origin as well.  The requirements common in French wine appellations mentioned above (e.g., restricting supply, eligible varietals, or alcohol content) are not only collectively beneficial to the region’s producers, they can provide more information to the consumer as well.  Considering how many strains of marijuana are in existence, there is value in a regulatory framework that easily and reliably communicates important characteristics to consumers, such as the strain and its THC or CBD levels.

There is reason to doubt that the marijuana industry can or should adopt appellations, however.  Perhaps the most significant obstacle is the fact that a significant percentage of marijuana is grown indoors.  Since outdoor cultivation was risky during prohibition, the marijuana industry has a long-track record of, and experience with, indoor cultivation.  Growing indoors now offers advantages beyond privacy, allowing farmers to manipulate growing conditions such as soil content, air temperature, and light energy to maximize yields.  As one might expect, however, growing indoors makes the “terroir,” or geographic elements, irrelevant. 

However, appellations can still be useful in creating unique localized markets if regions adopt certain growing standards.  The marijuana industry has come under intense scrutiny on account of the energy demands of indoor agriculture (see below), and appellations could require indoor operations to meet clean energy standards.  One county has already required indoor farms to use exclusively renewable energy sources.  Appellations could also provide incentives for the industry to transition to, and embrace, outdoor cultivation by providing the geographic indicator protection (and its economic benefits) solely to outdoor marijuana farms.

Of course, while appellations would frustrate efforts to commoditize marijuana, an appellation system would not preclude consolidation.  The U.S. wine industry has been experiencing rapid consolidation despite a robust origin-focused appellation system.  Nonetheless, the number ofsmall-scale vineyards has remained stable, indicating a strong market for unique wines.  And it may be that consolidation is facilitated by the fact that U.S. appellation designations are only concerned with geographic origin, and do not impose quality or cultivation standards on producers.  In any case, the benefits of a marijuana appellation system are sufficient to justify consideration.  Especially in regions concerned that mass-produced generic marijuana will have devastating economic consequences for small-scale farmers, finding ways to differentiate products and generate market value will be an important policymaking objective.  A marijuana appellation system may provide the regulatory framework needed to achieve it.

Coral Gables' aggressive sea level rise agenda

While climate change and sea level rise are a decidedly political and partisan issue on the national level, here in Florida I have only encountered local governments that are trying to be as proactive as possible.  So far I have worked with Miami Beach, Miami, Hialeah, and Coral Gables city officials (for the most part I have no idea what their political affiliations are), and they are all keenly aware of the threats sea level rise present to South Florida communities.  Last week Politico published just the latest story on sea level rise in Miami Beach (read it here).  And several Florida mayors, many of whom have endorsed Republican presidential candidates, sent a letter to those candidates urging them to acknowledge climate change, sea level rise, and the actions needed to address our vulnerabilities.  Their plea became a point of contention in the most recent Republican presidential debate.

Coral Gables has been aggressively addressing sea level rise, with mitigation policies that incentivize energy efficiency and education programs that raise awareness of infrastructural threats.  They are hosting an ongoing speaker series on sea level rise, and it was a pleasure for me to participate last week.  The full video of my talk can be viewed here: