George Washington Journal of Energy & Environmental

George Washington Journal of Energy & Environmental Law

Articles

Harry J. Wruck, T e Time Has Arrived for a Canadian Public Trust Doctrine Based Upon the Unwritten Constitution Nicholas A. Robinson, T e Public Trust Doctrine in the 21st Century Aja Espinosa, In the Eye of a Hurricane Tere Is Quiet: Puerto Rico’s Fight for Aid After Hurricane Maria Eashaa D. Parekh, Te Suniva Petition: Te Economic Efects of Section 201 Safeguards on Crystalline Silicon Photovoltaic Cells

Winter 2020 Volume 10 No. 2 The George Washington Journal of Energy and Environmental Law BOARD OF EDITORS 2019–2020

NEAL M. ANDERSON Editor-in-Chief

MATTHEW DEGIOIA Senior Managing Editor

MAGDALENA FILIPIUK MARGARET G. CZEPIEL HANNAH C. COLE Senior Production Editor Senior Notes Editor Senior Articles Editor ZUBIN CHADHA MALIE ERBERGER EVAN D. HUNT E G. H JOSEPH P. DIBELLA EDWARD E.A. MAHABIR Managing Editors NOA ERVIN JARRYD C. PAGE Articles Editors ANNE F. GARVIN Notes Editors Senior Projects Editor

ASSOCIATES LINDEN J. ABSTON ANDREA TERESA FERNANDEZ-BRAVO MIA POLO JAMES J. BARTHOLOMEW BLAKE E. GROW ALLAN H. SAKAUE DAVID Z. BEISS CARLEE HAINES MEG SCHUMM W. LYDELL BENSON, JR. HANNAH E. LEVINE MEILEN TEKLEMICHAEL STEVEN G. BOUGHTON KATHERINE M. LYNN EMMA TIMAN BIANCA C. BURNS AMANDA MCAREE WILLIAM A. WEITZEL OLIVIA S. CHAP L. PORTER MCHENRY III RONGWEI XIE AMARA M. CONTEH SEAN M. OSSI LIJUAN ZHANG REED A. EHRHARDT NICHOLAS PEARSON

MEMBERS TESS ANDREW HAYLEY F. HEATH MATTHEW OBEID MOLLY E. BEHAN SARAH A. HUSK DEVIN PATRICK O’CONNELL ALEXANDER BEYRENT LAUREN E. JOHNSTONE SEAN P. O’NEILL MICHAEL F. BILLOTTI MOLLY C. JONES BENJAMIN D. PASSEY AUDREY CARROLL MARLEY R. KIMELMAN REBECCA A. RINGLER MATTHEW CLINTON HELEN MITSUKO MARSH WILMA P. RODRIGUEZ ANDREW F. COSTELLO LAURA MARIE MARTIN KATHERINE E. SARGENT EMILY N. DONAHOE AINSLEY K. MCNERNEY TIMOTHY P. SCANLAN, JR. VIOLET N.D. EDELMAN GEORGE A. MENOLD DANNI L. SHANEL JAMES C. FRANCO LESLEY MORTON AUSTIN RAY KABBAZ SZABO JEREMY A. FREIMAN SAXON F. NELSON DINA N. TRUNCALI JOSEPH A. GROSSMAN ALAN NEUHAUSER ANNEMARIE E. WAMSTED GUOYAO HAN ELLIS TRUEMAN NOTTINGHAM BERNARD ZAMANINIA

DEAN LIN HARMON-WALKER, Faculty Advisor ACHINTHI VITHANAGE, Environmental Law Fellow George Washington Journal of Energy & Environmental Law

WINTER 2020 CONTENTS VOL. 10 NO. 2

Article Harry J. Wruck, Te Time Has Arrived for a Canadian Public Trust Doctrine Based Upon the Unwritten Constitution ...... 67

Perspective Piece Nicholas A. Robinson, Te Public Trust Doctrine in the 21st Century ...... 83

Notes Aja Espinosa, In the Eye of a Hurricane Tere Is Quiet: Puerto Rico’s Fight for Aid After Hurricane Maria ...... 91 Eashaa D. Parekh, Te Suniva Petition: Te Economic Efects of Section 201 Safeguards on Crystalline Silicon Photovoltaic Cells ...... 105

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ARTICLE The Time Has Arrived for a Canadian Public Trust Doctrine Based Upon the Unwritten Constitution

Harry J. Wruck, QC*

“Te welfare of the people is the supreme law of the land.”1 Tis Article sets out two approaches for developing a public trust argument in the context of a climate change case: (1) the public trust is grounded in the common law; and he specter of climate change and its catastrophic (2) the public trust is an underlying, unwritten constitu- impacts upon the environment is a cri de coeur tional principle. While recognition of a common-law public in Canada for recognition of a public trust doc- trust would be a signifcant step in climate change litigation, Ttrine and the securing of that doctrine by the unwritten recognition of a public trust as an underlying constitutional constitutional principles entrenching it. Accordingly, the principle would be much more signifcant. Tis is because unwritten constitution is critical in protecting the public a common-law public trust could be overridden by statute, trust doctrine, which, in Canada, arises from the social while a public trust that is recognized as part of the unwrit- contract between government and its people under the ten constitution would be extremely difcult, if not impos- inherent rights theory. sible, for the government to override. In Part I, below, the nature of the public trust, its his- Introduction1 torical origins and common-law development, and its current status in Canada are examined. In addition, American and international public trust jurisprudence is reviewed. Based Te public trust is a well-developed doctrine in various juris- upon this analysis, it is concluded that the public trust would dictions, including the United States, India, the Philippines, be a viable cause of action in climate change litigation. As and Pakistan. In Canada, however, its development has been a consequence, there is a reasonable chance of success in slow and unwieldy, and even today it is unclear whether and establishing the existence of a common-law public trust over to what extent the public trust exists. Having said that, there essential natural resources, including the atmosphere, and is no doubt that Canadian jurisprudence has been moving in the breach of the public trust by the actions and inactions of the direction of recognizing the existence of the public trust. the Canadian federal government. It may well be that litigation based upon climate change will In Part II, the jurisprudence establishing the existence in be the impetus for the courts to raise this unruly child into Canada of underlying, unwritten constitutional principles is a mature adult and allow an action based on the public trust examined. Tis analysis, in conjunction with social contract doctrine as an unwritten principle of the Constitution. and inherent rights theories, leads to the conclusion that the public trust is an underlying constitutional principle embed- * Harry J. Wruck, QC, is Counsel with Ecojustice and formerly Senior ded in the written constitution. General Counsel with the Canadian Federal Department of Justice. Te author would like to acknowledge the able research and editorial A Note on Jurisdiction Over Greenhouse Gas Emissions assistance provided by Alex Semple and Kate Gotziaman in the in Canada preparation of this article, without which he could not have completed this work. In Canada, jurisdiction over the environment is divided between the federal and provincial governments under the 1. Marcus Tullius Cicero, De Legibus bk. III, pt. III, subsec. VIII (1852). Canadian Constitution. As the Supreme Court of Canada

Winter 2020 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW 67 68 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 held in Friends of Oldman River Society v. Canada (Minis- I. The Common-Law Public Trust ter of Transport),2 jurisdiction over the environment is not the exclusive preserve of one level of government over the other.3 Having said that, it remains clear that the federal A. The Nature of the Public Trust government has primary jurisdiction over greenhouse gas (“GHG”) emissions.4 Te public trust doctrine is, in essence, a legal mechanism Te federal government has taken a number of actions that that can be used to require governments to hold and protect have facilitated GHG emissions. Tis includes creating fos- vital natural resources for the beneft of present and future sil fuel subsidies, fossil fuel extraction in the provinces with generations. It is a procedural safeguard for public rights federal approvals, GHG emissions from electricity genera- to natural resources: it requires that government take these tion, fossil fuel exports, extractions of fossil fuels on federal, public rights into account in decisionmaking and prohibits ofshore, or territorial lands, regulation of GHGs from fossil government from substantially impairing them. Te doctrine fuels in the transportation sector, import and export of elec- asserts that governments have an inherent fduciary obliga- tricity, the federal government’s consumption of fossil fuels, tion to ensure the continuous availability of resources that and the transportation of fossil fuels. As a consequence, the are essential to the well-being and survival of current and basis of any action against the federal government in Canada future citizens. would need to be framed in a manner similar to the Juliana Prof. Mary Wood of the University of Oregon School v. United States5 litigation where the plaintifs targeted the of Law defnes the doctrine as requiring “government[s] United States federal government for a broad suite of actions to hold vital natural resources in trust for public benef- causing and exacerbating climate change. ciaries, both present and future generations . . . .”10 In this Given that climate change is the most serious challenge way, as Wood notes, the “doctrine gives force to the plain facing the planet, it is time for climate change action to be expectation, central to the purpose of organized govern- brought in Canada. Tis is underscored by the fact that ment, that natural resources essential for survival and wel- Canada is responsible for a disproportionate share of global fare remain abundant, justly distributed, and bequeathed GHG emissions. Te Canadian government has accepted to future generations . . . .”11 the global scientifc consensus that the earth is warming It is worth noting that the concept of the public trust is because of anthropomorphic GHG emissions, and the need diferent from the conventional trust. In Waters’ Law of Trusts for taking strong action to address climate change is criti- in Canada, Prof. Donovan Waters explains that “the public cal and urgent.6 Canada is the ninth-largest GHG polluter trust doctrine is a sui generis concept that does not invoke in the world in terms of absolute annual production-based existing trust law such as the establishment of the three GHG emissions.7 In terms of per capita of global emis- certainties.”12 Te public trust doctrine articulates the trust- sions, Canada is ranked third in the world.8 Furthermore, like obligations a government has to its citizens to preserve between 1990 and 2018, Canada has established seven plans essential resources, but it is not a conventional trust. to reduce emissions. All of those plans have failed miserably and Canada’s GHG emissions have increased by 18 percent B. Historical Origins of the Public Trust during that time period.9 Te concept of public trust is a long-standing one. Te Supreme Court of Canada reviewed its origins in British Columbia v. Canadian Forest Products Ltd. (Canfor) fnding that “[t]he notion that there are public rights in the environment that reside in the Crown has deep roots in the common law.”13 2. Friends of Oldman River Soc’y v. Canada (Minister of Transp.), [1992] 1 Te most commonly referred to historical source is Te S.C.R. 3 (Can.). 3. See, e.g., id. at 63–64. Institutes of Justinian. In Canfor, the Court, noting that the 4. For a discussion of the federal government’s powers to legislate on environ- notion of “public rights” existed as far back as Roman civil mental matters, see Nathalie J. Chalifour, Canadian Climate Federalism: Par- law, quoted from Te Institutes of Justinian: “[b]y the law of liament’s Ample Constitutional Authority to Legislate GHG Emissions Trough Regulations, a National Cap and Trade Program, or a National Carbon Tax, 36 nature these things are common to mankind—the air, run- 14 Nat’l J. Const. L. 331, 368–69 (2016). ning water, the sea . . . .” Te Court in Canfor also rec- 5. Juliana v. United States, 217 F. Supp. 3d 1224, 46 ELR 20175 (D. Or. 2016). 6. Pan-Canadian Framework on Clean Growth and Climate Change, Gov’t of Can. 1–2 (2016), http://publications.gc.ca/collections/collec- tion_2017/eccc/En4-294-2016-eng.pdf [https://perma.cc/TQ8P-6ZX9]. 10. Mary C. Wood & Charles W. Woodward, Atmospheric Trust Litigation and the 7. Canadian Environmental Sustainability Indicators: Global Green- Constitutional Right to a Healthy Climate System: Judicial Recognition at Last, 6 house Gas Emissions, Env’t & Climate Change Can. 5 (2016), http:// Wash. J. Envtl. L. & Pol’y 633, 647 (2016). publications.gc.ca/collections/collection_2016/eccc/En4-144-63-2016-eng. 11. Id. at 648. pdf [https://perma.cc/6Z94-TVEK]. 12. Donovan Waters et al., Waters’ Law of Trusts in Canada 602–03 (4th 8. Nathalie Chalifour & Jessica Earle, Feeling the Heat: Climate Litigation Under ed. 2012). the Charter’s Right to Life, Liberty and Security of the Person 50 (Univ. of Otta- 13. British Columbia v. Can. Forest Prods., Ltd., [2004] 2 S.C.R. 74, para. 74 wa, Working Paper No. 2017-48, 2017), https://papers.ssrn.com/sol3/papers. (Can.) (Canfor). cfm?abstract_id=3080379##. 14. Id. at para. 75 (quoting Justinian I, The Institutes of Justinian 158 n.1 9. Id. at 13. (Tomas Sandars ed. & trans., 5th ed. 1876)). Winter 2020 THE TIME HAS ARRIVED FOR A CANADIAN PUBLIC TRUST DOCTRINE 69 ognized the work of Henry de Bracton, quoting from his Te Charter of the Forest applied to everyone and played a mid-13th-century treatise, Te Laws and Customs of England: key role in the protection and development of environmental rights and natural resources.21 By natural law these things are common to all: running Te Forest Charter guaranteed broad public rights, both water, air, the sea and the shores of the sea . . . No one there- substantive and procedural.22 It guaranteed the land rights of fore is forbidden to the seashore . . . All rivers and ports free men and unfettered uses of an individual’s holdings in are public so that the right to fsh therein is common to all the Royal Forest. Tis included access to water to operate a persons. Te use of river banks, as of the river itself, is also fshpond or a mill, to claim honey from wild beehives, and to public by the jus gentium . . . .15 reclaim arable land subject only to the common-law rule that The Court, again citing de Bracton, found “[s]ince an individual not create a nuisance.23 It also guaranteed pro- the time of de Bracton, it has been the case that public cedural rights by requiring rules providing for due process of rights and jurisdiction over these cannot be separated law for handling ofenses of forest law. Chapter 17 of the For- from the Crown.”16 est Charter acknowledges that humans have rights in nature Magna Carta is also frequently cited as an historical that the Crown is obliged to respect and sustain.24 In efect, source.17 Magna Carta established the King’s duty, based on the King entered into a social contract guaranteeing and pre- his capacity as sovereign, to protect public lands. It, in efect, serving the rights of his subjects. As Sir William Blackstone placed a restriction on the powers of the Crown in relation to pointed out, “[t]here is no transaction in the antient part of tidal waters and the shoreline. our English history more interesting and important than Te Although several of the provisions in Magna Carta were Great Charter and Charter of the Forest.”25 repealed from English statutes shortly before Confedera- Lord Justice Hale, in his 1667 treatise concerning Te Law tion, many of its infuences on the English common law were of the Sea and Its Arms, introduced the Roman concept of jus imported into Canadian common law. It has been described publicum into the common law. Te concept of jus publicum as “an inspirational document of considerable historical took the form of an inalienable public right, vested in the signifcance to the development of our system of govern- Crown, to have navigable rivers and ports free of nuisance.26 ment . . . ,”18 and in R. v. Gladstone, the Supreme Court of It is from these deep historical roots in the common law that Canada referenced Magna Carta in the context of the public the concepts of public rights and the public trust, insofar as right to fsh: “since the time of . . . Magna Carta, there has they are currently recognized in Canadian law, have arisen. been a common law right to fsh in tidal waters that can only be abrogated by the enactment of competent legislation.”19 C. The Common-Law Development of the Public Trust In 1217, a third version of Magna Carta was issued with two of the forest provisions removed and in its place the While the public trust is not formally recognized in Can- Charter of the Forest20 was issued, incorporating those provi- ada, Canadian courts accepted early on the need to protect sions with additional ones. Te Charter of the Forest restored public rights and interests in limited and vulnerable natu- public access to the Royal Forests and allowed for common ral resources. A number of authorities, reviewed below, have stewardship of shared resources, including gathering of fre- identifed some form of public trust or public right, some wood, grazing of cattle, pasturing pigs, and cutting of turf. of which have been used to protect the environment. Tese Te Charter of the Forest arose because of the abuse of power cases provide a basis from which to argue the existence of by the King of the Royal Forest. Forests were of signifcant the public trust writ large because they show that the courts importance to both the King and his subjects. Te King have recognized the existence of public environmental rights earned a major part of his income from the sale of forest priv- and have held the Crown responsible for holding in trust the ileges to raise money for wars and other royal matters. Te resources necessary for those rights. In efect, the Court’s Royal Forest also provided food and fuel for his military and recognition in these cases of the Crown’s responsibility to his court. As a consequence, the King kept expanding the protect vulnerable resources as public rights is a fnding that Royal Forest while allowing little or no access to his subjects. government must hold these vulnerable resources in a pub- Te barons, knights, entrepreneurs, clergy, and users of the forest engaged in negotiations with the King to avoid a Civil 21. Daniel Magraw & Natalie Tomure, Carta de Foresta: Te Charter of the Forest Turns 800, 47 ELR 10934, 10937 (2017). War that led to Magna Carta and the Charter of the Forest. 22. See generally Nicholas A. Robinson, Te Charter of the Forest: Evolving Hu- man Rights in Nature, Lincoln Charter of the Forest Conf. (Sept. 22–24, 15. Id. (quoting 2 Henry de Bracton, Bracton on the Laws and Customs of 2017). England 39–40 (George E. Woodbine ed., Samuel E. Torne trans., 1968) 23. Forest Charter, supra note 21, cl. 1, 9, 12, 13. (alteration in original)). 24. Id. at 11 (citing a reproduction of the Forest Charter in Daniel Barstow 16. Id. at para. 76. Magraw et al., Magna Carta and the Rule of Law 423 app. H (Am. Bar 17. See, e.g., William Blackstone, The Great Charter and Charter of the Ass’n ed., 2014) (“Tese liberties of the forest and free customs traditionally Forest, With Other Authentic Instruments: To Which Is Prefixed an had, both within and without the royal forests, are granted to ecclesiastics, Introductory Discourse, Containing the History of the Charters nobles, freeholders, and all in our realm, in short to everyone. Everyone is also (Oxford: Clarendon Press 1759). obliged to observe the liberties and customs granted in the Forest Charter.”)). 18. R. v. Ahmad, 2008 CanLII 54311, para. 31 (Can. Ont. Super. Ct.). 25. Geraldine Van Bueren, More Magna Tan Magna Carta, Times Literary Sup- 19. R. v. Gladstone, [1996] 2 S.C.R. 723, para. 67 (Can.). plement (Mar. 8, 2017), https://www.the-tls.co.uk/articles/private/carta-de- 20. Charter of the Forest, in 1 George Eyre & Andrew Strahan, London foresta [https://perma.cc/WP3R-R97Q]. Record Comm’n, Statutes of the Realm, cl. 10, 12 (1810) [hereinafter 26. Bradley Freedman & Emily Shirley, England and the Public Trust Doctrine, 8 J. Forest Charter]. Planning & Envtl. L. 839, 840 (2014). 70 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 lic trust for present and future generations of Canadians. In navigable waters in contravention of the public right unless practice, the end result is identical regardless of whether or the necessary legislation was enacted.32 not the Canadian government formally recognizes public Since that time, the courts have developed an extensive trust doctrine. body of jurisprudence on the management of Canadian fsheries as a common property resource to be managed for the 1. The Public Right to Navigation and Fishing public good.33 Tis approach is summarized and confrmed by the Supreme Court of Canada in Ward v. Canada,34 where Te earliest Canadian decisions protecting public rights arose the Court, citing Comeau’s Sea Foods, found that under the in the 19th and early 20th centuries in relation to navigation Fisheries Act, the Minister has a “duty to manage, conserve and fshing. During that time, access to water for transpor- and develop the fshery for the beneft of Canadians in the tation, commercial activity, and food was crucial to human public interest.”35 health and functioning economic and social structures. Also of note is the decision of the Superior Court of Te frst case to note is the 1853 decision in R v. Meyers Prince Edward Island in PEI v. Canada,36 where the Court (Meyers). In Meyers, the Upper Canada Court of Common dismissed a motion to strike the plaintif’s claim challeng- Pleas held that a Crown grant from the soil to a navigable ing government policy in relation to mismanagement of the river could not authorize the construction of a dam that fshery.37 One of the claims was that the Minister of Fish- would interfere with the public’s navigation rights.27 Justice eries and Oceans had breached his public trust obligations Archibald McLean identifed navigable lakes and streams as to manage the common property resource, the fshery, in a public trust assets, although he did not use that specifc term: prudent manner for all of its benefciaries.38 Te Court, in dismissing that part of the motion to strike, held that if the I have no hesitation in stating it as my opinion that the government can exert its right as guardian of the public inter- great lakes and the streams which are in fact navigable . . . est and claim against a party causing damage to that public must be regarded as vested in the Crown in trust for the pub- resource, it follows that a benefciary of the public resource lic uses for which nature intended them—that the Crown, ought to be able to claim against the government for a failure as guardian of public rights, is entitled to prosecute and to to properly protect the public interest.39 A right gives rise to cause the removal of any obstacles which obstruct the exer- a corresponding duty. Te Prince Edward Island Court of cise of the public right, and cannot by force of its prerogative Appeal overturned this decision, but not on that issue—it curtail or grant that which it is bound to protect and preserve 28 was overturned on the ground that the Federal Court had for public use. exclusive jurisdiction to entertain the claim.40 In this passage, Justice McLean identifes that certain natu- In each of these latter cases, the courts, in fnding that the ral resources are vested in the Crown as the guardian of pub- Minister has a duty to protect and preserve the fshery for lic rights, and that the Crown has the power, and is in fact present and future generations, harken back to the common bound, to protect those resources. In that same case, Justice property nature of the resource.41 Taken together, the above John MacAuley, also found that the Crown cannot grant cases demonstrate the essence of the public trust—certain away such public rights. public rights and resources are so important to the well-being Over the years since Meyers, several decisions have rec- of the population that they are vested in the Crown, in trust ognized public rights and the concept of the public trust for the public. Te Crown therefore has a right, and a duty, with respect to navigation and the common property fshery to protect those rights and resources. resource. In the 1913 case of British Columbia (Atty. Gen.) v. Canada (Atty. Gen.), the Judicial Committee of the Privy 2. The Public Trust Concept in the Context Council when considering the issue of the public right to of Municipalities fsh, held that “the subjects of the Crown are entitled as of right not only to navigate but to fsh in the high seas and Tere have also been a number of decisions from Canadian tidal waters alike.”29 Te Privy Council went on to fnd that courts applying the public trust concept to municipalities. As this was a right enjoyed from time immemorial, and that the Crown, as parens patriae, was bound to protect the subjects 32. Id. in the exercise of that right, and therefore it was a legal right 33. See, e.g., Comeau’s Sea Foods, Ltd. v. Canada (Minister of Fisheries & Oceans), enforceable in the Courts.30 One of the earliest decisions of [1997] 1 S.C.R. 12 (Can.). the Supreme Court of Canada on this issue arose in Wood v. 34. See Ward v. Canada (Att’y Gen.), [2002] 1 S.C.R. 569 (Can.). 31 35. Id. at para. 38. Esson. Te Court held that there was a public right of navi- 36. Prince Edward Island v. Canada (Minister of Fisheries & Oceans), 2005 gation and that the Crown could not grant a right to obstruct PESCTD 57 (Can. P.E.I.), rev’d on other grounds, 2006 PESCAD 27 (Can. P.E.I. C.A.). 37. Id. at para. 43. 38. Id. at para. 5. 27. R. v. Meyers, 1852 CarswellOnt 86, [1883] 3 U.C.C.P. 305, 322 (Can.). 39. Id. at para. 30. 28. Id. at 357 (emphasis added). 40. See Prince Edward Island v. Canada (Minister of Fisheries & Oceans), 2006 29. Att’y Gen. for British Columbia v. Att’y Gen. for Canada, (1913), 15 D.L.R. PESCAD 27 (Can. P.E.I. C.A.). 308, 315 (Can.). 41. See id.; see also Ward v. Canada (Att’y Gen.), [2002] 1 S.C.R. 569 (Can.); 30. Id. Comeau’s Sea Foods, Ltd. v. Canada (Minister of Fisheries & Oceans), [1997] 31. See Wood v. Esson, (1884) 9 S.C.R. 239, 1884 CanLII 44 (Can.). 1 S.C.R. 12 (Can.). Winter 2020 THE TIME HAS ARRIVED FOR A CANADIAN PUBLIC TRUST DOCTRINE 71 early as 1859, in Sarnia (Township) v. Great Western Railway, trust doctrine because individual members of the public often a municipality was found to be a trustee for the public in do not have sufcient power to care for their environment. relation to highway property, which was to be held and used Members of the public cannot control the actions of others— for the beneft of the public within that municipality.42 Te no individual is capable of maintaining the atmosphere or Supreme Court of Canada came to an identical conclusion in the cleanliness of water by themselves—and the future gen- Vancouver (City) v. Burchill.43 erations that the public trust protects certainly are incapable More recently, the Alberta Court of Appeal in SW Proper- of acting in their own best interests since they do not exist ties Inc. v. Calgary (City of)44 noted that “it is well established yet. As discussed below in Section II.F, environmental issues that municipalities hold title to streets in trust for the public are a limited case where it is possible to determine what is in . . . [and] the lands being encroached upon are impressed the best interests of future generations; every person needs a with a public trust.”45 Te Manitoba Court of Appeal in liveable environment. McDonald v. North Norfolk46 held that municipalities hold Te parens patriae jurisdiction is also capable of support- highways in trust for the public. In addition, the Ontario ing the public trust because “the categories under which the Court of Appeal in Scarborough v. REF Homes, Ltd.,47 noted jurisdiction can be exercised are never closed.”51 Because the the environmental trust responsibilities of municipalities parens patriae jurisdiction is founded on necessity, it must holding that “the municipality is, in a broad sense, a trustee be capable of expansion, when necessary, even if a particular of the environment for the beneft of the residents in the area category has not been recognized before. As stated by Jus- and for the citizens of the community at large.” tice La Forest in Eve: “and even where there is legislation in One fnal case to consider is Committee for the Common- the area, the courts will continue to use the parens patriae wealth of Canada v. Canada,48 which, though not a case jurisdiction to deal with uncontemplated situations where it involving a municipality, is nevertheless important. Here, the appears necessary to do so for the protection of those who Supreme Court of Canada considered whether the govern- fall within its ambit . . . .”52 ment could prohibit the dissemination of political materi- Te Court in Canfor emphasised this nature of the parens als in airports. In fnding that the prohibition violated the patriae jurisdiction by noting that it “is an important juris- Charter of the Forest’s guarantee of freedom of expression, the diction that should not be attenuated by a narrow judicial Court held that: construction.”53 Given that the necessity of protecting essential natural resources for the welfare of the public is becom- [T]he very nature of the relationship existing between citi- ing increasingly apparent, the parens patriae jurisdiction is zens and the elected government provides that the latter will well-suited to support the public trust. Te above cases and own places for the citizens’ beneft and use, unlike a private concepts can lay the groundwork for a common law public owner who benefts personally from the places he owns. Te trust argument. “quasi-fduciary” nature of the government’s right of owner- ship was indeed clearly set out by the U.S. Supreme Court in D. Where Is Canada Now? Hague v. Committee for Industrial Organization . . . “Where ever the title of streets and parks may rest, they have imme- While the foregoing decisions will be important in laying the morially been held in trust for the use of the public.”49 groundwork for advancing an argument that the public trust does exist in Canadian law, the leading Canadian decision 3. The Public Trust and the Crown’s Parens Patriae on the public trust is the Supreme Court of Canada decision Jurisdiction in Canfor.54 In Canfor, the Court, for the frst time, examined the roots of the public trust doctrine and considered As found by the courts in various decisions in the mid-19th whether it might apply in Canada. While the Court, due and early 20th centuries, the Crown has a duty to hold cer- to the lack of evidence and poor pleadings, was unable to tain public assets in trust for the public and is bound to reach any clear conclusions regarding the nature and scope protect those assets in the exercise of its parens patriae juris- of the public trust, the decision remains of importance pre- diction. Te parens patriae jurisdiction is “founded on neces- cisely because of the issues it raised and considered but left sity, namely, the need to act for the protection of those who unanswered. Te Court left no doubt that it is prepared to cannot care for themselves.”50 Tis is relevant to the public entertain these issues in a properly constituted case: there are clearly important and novel policy questions raised 42. See Sarnia v. Great W. Ry. Co., 1859 CarswellOnt 159, [1878] 17 U.C.Q.B. by such actions. Tese include the Crown’s potential liabil- 65, 67 (Can.). ity for inactivity in the face of threats to the environment, 43. Vancouver v. Burchill, [1932] S.C.R. 620, 625 (Can.). 44. S.W. Properties Inc. v. Calgary, 2003 ABCA 10 (Can. Alta. C.A.). the existence or non-existence of enforceable fduciary duties 45. Id. at para. 19. owed to the public by the Crown in that regard, the limits to 46. McDonald v. North Norfolk, 1992 CanLII 8570 (Can. Man. C.A.). the role and function and remedies available to governments 47. Scarborough v. R.E.F. Homes, Ltd., 1979 CarswellOnt 1588, para 5 (Can. Ont. C.A.). 48. Comm. for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139 51. Id. at para. 74. (Can.). 52. Id. at para. 42. 49. Id. at 154. 53. Canfor, [2004] 2 S.C.R. 74, para. 76 (Can.). 50. E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, para. 73 (Can.). 54. Id. at para. 74. 72 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2

taking action on account of activity harmful to public enjoy- v. REI Homes, supra, notes that “even municipalities have a ment of public resources, and the spectre of imposing on pri- role to play in defence of public rights.”58 vate interests an indeterminate liability for an indeterminate Given this attitude of the Court, it may well be open to a amount of money for ecological or environmental damage.55 public trust argument when presented with evidence of the drastic impacts of climate change facing the planet, along After setting out the above statement, the Court noted that with evidence of the actions and inactions of government this was not a proper appeal to embark on a consideration of that are exacerbating it. To help facilitate the Court’s con- these difcult issues. Tat is a clear indication that the Court sideration and adoption of the public trust in Canada, reli- is of the view that these are issues it is prepared to consider ance could be placed upon the Supreme Court decision in given proper pleadings and evidence. Guerin v. Te Queen (Guerin).59 In Guerin, the Court made It can be argued, therefore, that the Court in Canfor has it clear that whenever “one party has an obligation to act accepted, or at least acknowledged, the Crown is not sim- for the beneft of another, and that obligation carries with it ply a guardian of the public interest, but is a trustee holding a discretionary power, the party thus empowered becomes public resources on behalf of the public as benefciaries. Te a fduciary.”60 It is not the specifc category of actor that is Court, in reaching its decision, made several references to important, but rather the nature of the relationship that gives statements in previous cases that governments are, in a broad rise to the fduciary duty. sense, trustees for the environment. Drawing these threads together—namely, the current and In particular, reliance can be placed on the following pas- future threats to the environment, the many fndings of Par- sage where the Court, while not formally recognizing the liament’s solemn duty to protect public rights and resources, public trust doctrine, reviews and afrms a number of deci- the trust and fduciary duty language found in Canfor, and sions where the Supreme Court has recognized the interests the open-ended ability to expand fduciary relationships rec- underlying the doctrine: ognized in Guerin—it can be argued that the Court has the As the Court observed in R v. Hydro-Quebec . . . legal mea- necessary tools to develop and establish a public trust and sures to protect the environment ‘relate to a public purpose that the time to do so is now. Te argument against that line of reasoning is found in of superordinate importance.’ In Friends of the Oldman 61 River Society v. Canada (Minister of Transport) . . . the Court Burns Bog Society v. Canada (Attorney General), which sug- declared, at p. 16, that “[t]he protection of the environ- gests that the public trust is not alive and well in Canada. In ment has become one of the major challenges of our time.” that case, the Federal Court summarily dismissed an action In Ontario v. Canadian Pacifc Ltd. . . . “stewardship of brought to compel the federal government to protect Burns the natural environment” was described as a fundamental Bog, an environmentally sensitive area located in and owned value . . . . Still more recently, in 114957 Canada Ltée v. by the City of Delta and the Province of British Columbia. Hudson (Town), the Court reiterated, at para 1: Te plaintif argued, among other things, that the federal government “owed the Canadian public a trust” to pro- our common future, that of every Canadian com- tect Burns Bog but was unsuccessful because, as the Court munity, depends on a healthy environment . . . Tis found, Canada did not own the Bog. In this regard, the Court has recognized that “(e)very one is aware that Court applied conventional trust principles to the plaintif’s individually and collectively, we are responsible for public trust claims. As noted above, it can be argued that preserving the natural environment. . . . environmen- conventional trust principles do not apply to the concept of tal protection [has] emerged as a fundamental value in the public trust. Canadian society. . . .”56 More problematic is the Court’s fnding with respect to fduciary duty. T e plaintif argued that Canada owed a Here, the Court strongly afrms that “stewardship of fduciary duty to the Bog, to the Canadian public, and to the natural environment” is a fundamental Canadian value, the plaintif. Te Court cited Alberta v. Elder Advocates of underscoring the need for all levels of government to pro- 62 57 Alberta Society for the principle that the Crown does not tect the environment. Tis attitude is also apparent in R. v. owe a fduciary duty to the public-at-large. Te Court also Quebec-Hydro, where the Court, after referencing the “super- found that Canada could not owe a fduciary duty to the Bog ordinate” importance of protecting the environment, stated: itself because a fduciary duty can only be owed to persons “Te all-important duty of Parliament and the provincial or classes of persons. And fnally, the Court found that the legislatures to make full use of the legislative powers respec- plaintif had not established that its relationship fell into any tively assigned to them in protecting the environment has of the recognized categories of fduciary relationships. inevitably placed upon the courts the burden of progressively defning the extent to which these powers may be used to that end.” And the Court in Canfor, referencing Scarborough 58. Id. at para. 73. 59. Guerin v. Te Queen, [1984] 2 S.C.R. 335 (Can.). 55. Id. at para. 81. 60. Id. at 384. 56. Id. at para. 7 (quoting Canada Ltée v. Hudson, [2001] 2 S.C.R. 241, para. 1 61. Burns Bog Conservation Soc’y v. Canada (Att’y Gen.), 2012 F.C. 1024 (Can. (Can.)). F.C.). 57. Id. (quoting Ontario v. Canadian Pacifc, Ltd., [1995] 2 S.C.R. 1031, para. 55 62. Alberta v. Elder Advocates of Alberta Soc’y (Elder Advocates), [2011] 2 S.C.R. (Can.)). 261, para. 48 (Can.). 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Burns Bog is clearly distinguishable from a comprehensive Canadian Parliament has recognized its obligation to conserve climate change case, and it can be argued that Elder Advocates them for the beneft of future generations.73 is not conclusive with respect to the issue of owing a fduciary duty to the public-at-large. In fact, the Supreme Court in Justice Sedgewick notes that Parliament recognized its obli- Canfor, in the passage previously cited, raised the “important gation to conserve fsheries because of their importance and novel policy question” regarding “the existence or non- to humanity.74 Similarly, the atmosphere is so essential to existence of enforceable fduciary duties owed to the public humankind that the government must have an obligation to by the Crown” in the face of threats to the environment.63 protect it. Terefore, on the basis of Canfor, the issue of whether the Even if the atmosphere is not an independent public trust Crown can owe a fduciary duty to the public-at-large is still asset like navigable waters or the fsheries, it still must be pro- open. Tere is also helpful wording in Elder Advocates; in tected in order to preserve more well-established public rights that decision, the Court talks of the Crown’s “duty to act in and resources. For example, rises in sea level may impact the the best interests of society as a whole” and “[t]he Crown’s navigability of harbours if large ships are unable to clear broad responsibility to act in the public interest.”64 bridges, a doubling of the area consumed by wildfres by the end of the century in Canada would likely impact National E. The Public Trust Includes the Atmosphere and Provincial Parks, and ocean acidifcation threatens fsheries. Given that current scientifc knowledge shows the Once it is established that the public trust exists in Canada, interconnected nature of natural resources, it is impossible to the next step would be to have the court recognize that the preserve public rights to particular resources in isolation. Te public trust includes the right to a healthy atmosphere. Tis climate is an essential foundation that is interconnected with next step should not be a particularly challenging one. After other public trust resources; therefore, the atmosphere must all, the public trust doctrine traces back to Roman law, which be held in trust in order to protect other public environmen- recognized the air, running water, the sea and seashores as tal trust resources. common to humankind.65 Some American jurisprudence may be of assistance in Te decision of the Supreme Court of Canada in Friends of this regard, but care must be taken with these cases because the Oldman River Society v. Canada (Minister of Transport),66 in each instance the public trust duty was embodied in the also supports this notion, because as the Court held, the envi- various state constitutions and their relevance to Canada is ronment “is comprised of all that is around us”67 and is not somewhat debatable. One of these decisions, however, may “confned to the biophysical environment alone.”68 It encom- be more useful than the others after the Supreme Court’s passes the physical, economic and social environment.”69 reference in Canfor. Te Court quoted the following passage “[T]he environment is a difuse subject matter”70 and from Georgia v. Tennessee Copper Co.: “the State has an inter- includes “the potential consequences for a community’s live- est independent of and behind the titles of its citizens, in all lihood, health and other social matters from environmental the earth and air within its domain.”75 change.”71 It follows that the broad defnition given to the More recently, American courts have recognized the environment must include the atmosphere. atmosphere as a public trust resource. Te Arizona Court One can also look to the purpose of the public trust to of Appeals in Butler ex rel. Peshlakai v. Brewer held without understand that it must include the atmosphere. In Frederick deciding that the atmosphere is a part of the public trust.76 Gerring Jr. (Te Ship) v. R.,72 Justice Robert Sedgewick of the Te New Mexico Court of Appeals, in Sanders-Reed v. Mar- Supreme Court of Canada, in dissent, but not on this point, tinez held that a public trust, including the atmosphere, illuminated part of the purpose of the public trust doctrine: exists for the protection of New Mexico’s natural resources and for the beneft of the people of the state.77 In Kanuk We Canadians are in a sense the world’s trustees. Te North ex rel. Kanuk v. State Department of Natural Resources, the American fsheries have been committed to our guardian- Alaska Supreme Court, although ultimately dismissing the ship, not for Canada alone, but for humanity. Tey are the plaintifs’ claims, found that the plaintifs made a good argu- most prolifc in the world. One can only imagine, he cannot ment “that the atmosphere is an asset of the public trust, with measure, their potentiality of blessing to mankind, and the the State as the trustee and the public as benefciaries . . . .” 78 Finally, in Robinson Township v. Commonwealth, the Pennsyl- vania Supreme Court declared that a constitutional right to 63. Canfor, [2004] 2 S.C.R. 74, para. 81 (Can.). a healthy environment was embedded in the social contract 64. Elder Advocates, [2011] 2 S.C.R. 261, para. 44 (Can.). 65. Public Trust Doctrine, Water Educ. Found., https://www.watereducation. org/aquapedia/public-trust-doctrine [https://perma.cc/KQH2-69G4] (last visited Dec. 4, 2019). 66. Friends of Oldman River Soc’y v. Canada (Minister of Transp.), [1992] 1 S.C.R. 3 (Can.). 73. Id. (emphasis added). 67. Id. at 70. 74. Id. 68. Id. at 37. 75. Canfor, [2004] 2 S.C.R. 74, para. 78 (Can.). 69. Id. at 63. 76. Butler ex rel. Peshlakai v. Brewer, No. 1 CA-CV 12-0347, 2013 WL 1091209, 70. Id. at 37. at *6 (Ariz. Ct. App. Mar. 14, 2013). 71. Id. 77. Sanders-Reed v. Martinez, 350 P.3d 1221, 1225 (N.M. Ct. App. 2015). 72. Gering Jr. v. Te Queen (1897), 27 S.C.R. 271, 286 (Can.). 78. Kanuk v. State, 335 P.3d 1088, 1101–02 (Alaska 2014). 74 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 between the citizens and their government.79 It is important need to protect the environment and ecology.86 Te Court to note, however, that Pennsylvania’s Constitution expressly drew on American jurisprudence and academic writings to provides that all power is inherent in the people and founded hold that the public trust doctrine constitutes the best prac- on their authority and instituted for their peace, safety, and tical and philosophical legal tool for protecting the public happiness. In addition, the people have a right to clean air, rights, natural resources, and ecological values held in trust pure water, and the preservation of the environment. by a government for its people. Every person exercising their right to use the air, water, or land and associated natural eco- F. International Jurisprudence Outside of the systems has the obligation to secure for the rest of the public United States the right to live or otherwise use that same resource or property for the long-term enjoyment of future generations. A number of countries, including India, Pakistan, the Phil- ippines, Uganda, Kenya, Nigeria, and South Africa, have G. Conclusion Regarding the Common-Law incorporated the public trust doctrine into their respective Public Trust constitutions.80 While this makes the following cases, like the American jurisprudence, for the most part distinguish- Te common-law public trust could form the basis of a viable able, it is useful to examine the decisions from the Supreme cause of action in Canada. By drawing on the many fnd- Court of the Philippines and India. Tese courts go back ings of Parliament’s duty to protect the public’s rights and to frst principles, namely, that the sovereignty of the people resources, the trust and fduciary language in Canfor, the creates a restraint on legislative power. Te Courts make it raising of “important and novel” questions regarding threats clear that quite apart from the constitution, the public trust to the environment in Canfor, and the ability to expand fdu- doctrine has been drawn from the English common law, ciary relationships recognized in Guerin, it becomes clear Roman law, and American jurisprudence and, most impor- that the court has the necessary resources to establish the tantly, that there are basic rights that are inherent in all of public trust. humankind.81 Accordingly, these decisions could be helpful It is noted here, however, that while a fnding of a com- in demonstrating that the public trust doctrine is a vehicle mon-law public trust would be a signifcant step forward, it that could be adopted by Canadian courts. would be susceptible to government interference because it In Oposa v. Factoran,82 the Court, in certifying a class could be overridden by statute. Tis is a point that permeates action, relied upon the natural law force of the public trust many of the cases examined above. For example, in Wood v. doctrine.83 It held that the right to a healthy environment is Esson the Court held that the government could not grant the the most basic of all rights because it concerns the self-pres- right to place an obstruction in the harbour unless the neces- ervation and self-perpetuation of the human species, which sary legislation was enacted.87 In other words, if the govern- “need not even be written in the Constitution for they are ment chose to grant a right to obstruct the harbour by way of assumed to exist from the inception of humankind.”84 competent legislation, it could do so. In Metha v. Kamal Nath, the Indian Supreme Court held Tis is precisely the conclusion reached by the Supreme that a 99-year lease of government lands to a resort in a pro- Court of Canada in Oldman River Society v. Canada (Min- tected forest violated the public trust doctrine.85 Te Court ister of Transport).88 Tere, the Court, after quoting Wood v. held that the doctrine was part of Indian law because Indian Esson, held that while the public right of navigation is para- jurisprudence was inherited from English common law, mount to the rights of the owner of a bed of a navigable river, which prevented the public’s natural resources, the environ- these rights can be “modifed or extinguished by an authoriz- ment, and the ecosystems of the country from being eroded ing statute . . . .”89 by private interests for commercial purposes. Te Court also Tis does not necessarily render a common-law public adopted the entirety of the American public trust jurispru- trust useless of course. Recognition of a common-law public dence, including the Illinois Central Railway decision. trust over vital natural resources could still be very efective. In Fomento Resorts v. Minguel, the Court held that Indian Government may be hesitant to be seen passing legislation society has, since time immemorial, been conscious of the specifcally aimed at overriding or modifying court-ordered protections of such resources. Recognition of a public trust as an underlying constitutional principle, as argued below, would be more efective because it could not be overridden 79. Robinson Twp. Washington Cty. v. Commonwealth, 83 A.3d 901, 947–49, 43 ELR 20276 (Pa. 2013). by “legislative sanction.” 80. Michael C. Blumm & Rachel D. Guthrie, Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulflling the Saxion Vision, 45 U.C. Davis L. Rev. 741 (2012). 81. Melissa K. Scanlan, Te Role of the Courts in Guarding Against Privatization of Important Public Environmental Resources, 7 Mich. J. Envtl. & Admin. L. 237, 246 (2018). 86. Fomento Resorts and Hotels, Ltd. v. Mingue Martinsl, (2009) 3 SCC 571, 82. Minors Oposa v. Sec’y of the Dep’t of Env’t & Nat. Res., G.R. No. 101083 paras. 32, 36 (India). (S.C., July 30, 1993) (Phil.). 87. Wood v. Esson, (1884) 9 S.C.R. 239, 1884 CanLII 44 (Can.). 83. Id. 88. Friends of Old Man River Soc’y v. Canada, [1992] 1 S.C.R. 3, 55 (Can.); see 84. Id. also Wood v. Esson, (1884) 9 S.C.R. 239, 1884 CanLII 44 (Can.). 85. M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 (India). 89. Friends of Old Man River Soc’y v. Canada, [1992] 1 S.C.R. 3, 55 (Can.). Winter 2020 THE TIME HAS ARRIVED FOR A CANADIAN PUBLIC TRUST DOCTRINE 75

II. The Public Trust Is an Underlying B. Summary of Cases Establishing Underlying Unwritten Constitutional Principle Principles

In this part, the question of whether the public trust is an Underlying constitutional principles have a long history in underlying constitutional principle, and thus part of the Canada. Te following review of some key decisions dem- unwritten constitution, is addressed. Te frst issue to be onstrates that the importance and existence of unwrit- considered is how Canadian courts have, over the years, ten constitutional principles is well-established, and, very dealt with the issue of the “unwritten constitution” and importantly, that the recognition of particular principles is “underlying constitutional principles.” Ten, the issue of still developing. whether the public trust is an underlying constitutional As early as 1938, in Reference re Alberta Legislation (“Alberta principle on the basis of social contract theory and inherent Press”),98 Justices of the Supreme Court identifed unwrit- rights theory is examined. ten principles underlying the Constitution. In that case, the Court protected the core democratic value of free speech. Te A. The Constitution of Canada Includes Underlying Court was asked to determine the constitutional validity of Unwritten Constitutional Principles the Accurate News and Information Act and two other Acts of the Alberta Legislature. Te Court unanimously held that all Te general concept and existence of unwritten, underlying three statutes were ultra vires of the province, but three of the constitutional principles is now well-established in Canada. six Justices identifed, albeit in dicta, an unwritten constitu- Courts have recognized these principles as an important part tional principle in their analysis.99 of the Constitution of Canada. While the Constitution is Chief Justice Lyman Duf, with Justice Henry Davis con- “primarily a written one,”90 the texts enumerated in Subsec- curring, identifed that a right of “free public discussion of tion 52(2) of the Constitution Act, 1982 “are not exhaustive.”91 afairs” underlies the constitutional texts.100 Chief Justice Instead, the Constitution “embraces unwritten, as well as Duf frst considered what kind of parliamentary institu- written rules.”92 Tese unwritten rules are underlying prin- tions are created by the Constitution Act, 1867. He looked ciples that “inform and sustain the constitutional text: they to the Preamble which “shows plainly enough that the con- are the vital, unstated assumptions upon which the text is stitution of the Dominion is to be similar in principle to based.”93 Tese unstated assumptions may not always be that of the United Kingdom.”101 Tis meant “a parliament obvious, and yet “it would be impossible to conceive of our working under the infuence of public opinion and public constitutional structure without them.”94 discussion.”102 Te Chief Justice then considered the con- It is important to note that the Supreme Court has only ditions necessary for a parliament of that kind to exist and recognized underlying constitutional principles in very lim- found that “there can be no controversy that such institu- ited circumstances. It appears from the case law that the tions derive their efcacy from the free public discussion of issue before the Court must be so serious that it threatens afairs.”103 He therefore found that “this right of free public “the primary conditions of . . . community life within a legal discussion of public afairs . . . is the breath of life for parlia- order,”95 or that it is “inconsistent with human society,”96 or mentary institutions” and is a right that underlies the text of that it involves the “indispensable elements of civilized life,”97 the Constitution.104 or that it otherwise goes to the root of the proper functioning Justice Lawrence Cannon also found that freedom of dis- of the state, and that it cannot be resolved through recourse cussion is an underlying constitutional principle, stating: to the written constitutional texts. With that in mind, it “Democracy cannot be maintained without its foundation: must be reiterated that a plaintif must be able to establish, free public opinion and free public discussion . . . ,” he then on the evidence, that the spectre of climate change is so real referred to the “fundamental right” of Canadian citizens “to and so drastic that it fts within, or is similar to, one of the express freely his untrammelled opinion about government above categories and that it must be addressed immediately. and discuss matters of public concern.”105 Parenthetically, it should be noted that immediately after making the foregoing statement, Justice Cannon went on to say: “[t]he federal parliament is the sole authority to curtail, if deemed expedient and in the public interest, the freedom of the press in discussing public afairs and the equal rights 106 90. Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para. 49 (Can.) (Seces- in that respect of all citizens throughout the Dominion.” sion Reference). 91. Id. at para. 32. 92. Manitoba Provincial Court Judges Ass’n v. Manitoba (Minister of Justice), 98. Reference re Alberta Legislation, [1938] S.C.R. 100 (Can.). [1997] 3 S.C.R. 3, para. 92 (Can.). 99. Id. at 100–01. 93. Secession Reference, [1998] 2 S.C.R. 217, para. 49 (Can.). 100. Id. at 133. 94. Id. at para. 51. 101. Id. 95. Saumur v. Quebec, [1953] 2 S.C.R. 299, 329 (Can.). 102. Id. 96. Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, para. 60 (Can.) 103. Id. (quoting CarlZeiss-Stiftung v. Rayner and Keeler, Ltd., [1967] 1 AC 853 104. Reference re Alberta Legislation, [1938] S.C.R. 100, 133 (Can.). (HL)). 105. Id. at 146. 97. Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, para. 60 (Can.). 106. Id. 76 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2

Justice Cannon appears to be of the view that despite the fact sary to identify an unwritten principle in order to protect the that democracy is unsustainable without free public opinion fundamental democratic right of freedom of speech.115 and free discussion, the federal government has the authority Switzman is noteworthy because it is the frst decision in to shut it down. Tis statement belies his entire analysis on which a Supreme Court Justice suggests that underlying con- this point. Justice Douglas Abbott, in Switzman v. Ebbling, stitutional principles might limit the legislative jurisdiction was obviously troubled by this comment of Justice Cannon of Parliament. Justice Abbott raised the issue when he stated, and makes it clear that, in his view, Parliament does not have “[a]lthough it is not necessary, of course, to determine this such authority.107 In any event, while both Chief Justice Duf question for the purposes of the present appeal . . . I am and Justice Cannon ultimately found on division of powers also of the opinion that as our Constitutional Act now stands, grounds, they were nonetheless prepared, in the face of this Parliament itself could not abrogate this right of discussion draconian legislation, to recognize freedom of discussion as and debate.”116 an underlying constitutional principle. Two decades later, in Canada (Attorney General) v. Mon- Te Supreme Court dealt with underlying constitutional treal (City) (Dupond), the Supreme Court, for a time, moved principles again in Saumur v. Quebec (City) (Saumur).108 away from accepting underlying constitutional principles as Although the majority of the Court did not rely on underly- constraints on legislative actions.117 In response to an arguing principles, four Justices drew on the Preamble to establish ment, based on the Alberta Press case, that a Montreal bylaw that the provincial legislature did not have power to legislate was in confict with the fundamental freedoms of speech, for the purpose of restricting religious freedom. the press, and religion, Justice Jean Beetz, for the majority, Drawing on the Alberta Press case, Justice Ivan Rand wrote: “None of the freedoms referred to is so enshrined maintained that the Preamble suggests the Constitution in the Constitution as to be above the reach of competent requires parliamentary institutions with “government resting legislation.”118 At the time, Dupond indicated an end to the ultimately on public opinion reached by discussion and the potential for underlying constitutional principles to con- interplay of ideas. If that discussion is placed under license, strain legislative action. its basic condition is destroyed.”109 Importantly, Justice Rand However, Justice Beetz, some years later, had a change of notes that Chief Justice Duf “deduces authority” to protect heart in OPSEU v. Ontario (Attorney General), a constitu- the right of free public discussion “from the principle that tional challenge to a number of sections of the Public Service the powers requisite for the preservation of the Constitution Act that purported to restrain provincial civil servants and arise by a necessary implication of the Confederation Act as Crown employees from engaging in certain federal politi- a whole.”110 cal activity.119 Te appellants argued, in part, that Cana- Justice Rand described his understanding of underlying dian constitutional jurisprudence recognizes the existence principles stating: “Strictly speaking, civil rights arise from of certain fundamental political rights and freedoms in the positive law; but freedom of speech, religion and the invi- citizens of the country.120 Te appellants relied upon Alberta olability of the person, are original freedoms which are at Press and Switzman.121 Justice Beetz, citing those cases, iden- once the necessary attributes and modes of self-expression of tifed that the basic structure of the Constitution Act, 1867 human beings and the primary conditions of their commu- contemplates certain political institutions and held: “neither nity life within a legal order.”111 In essence, Justice Rand is Parliament nor the provincial legislatures may enact legisla- describing rights and freedoms—“original freedoms”—that tion the efect of which would be to substantially interfere are so fundamental that they are the very basis of a function- with the operation of this basic constitutional structure.” ing democracy and must underlie any democratic constitu- Tis was a reversal toward the role for underlying principles, tion, whether explicitly stated or not. which Dupond had denied. Another early example of the developing recognition of In Reference re Manitoba Language Rights (Manitoba Lan- underlying constitutional principles is Switzman v. Elbling guage Rights),122 the Supreme Court took a big step forward (Switzman).112 Switzman dealt with the constitutionality of when the Court explicitly stated “in the process of Constitu- the Padlock Act.113 Te Act in question declared it to be ille- tional adjudication, the Court may have regard to unwritten gal to use or occupy a dwelling to “propagate communism postulates which form the very foundation of the Constitu- or bolshevism by any means whatsoever” and also made tion of Canada.”123 it unlawful to print, publish, or distribute in the Province In Manitoba Language Rights, the Court, faced with any newspaper, periodical, pamphlet, circular, document, declaring that all unilingual enactments of the Manitoba or writing “propagating . . . communism or bolshevism.”114 Legislature were invalid and of no force or efect, identi- Once again, a situation arose where the Court found it neces- 115. Id. at 326–28. 116. Id. at 328. 107. Saumur v. Quebec, [1953] 2 S.C.R. 299, 331 (Can.). 117. Canada (Att’y Gen.) v. Montreal, [1978] 2 S.C.R. 770 (Can.). 108. Id. at 329. 118. Id. at 796. 109. Id. at 330. 119. Ontario Pub. Serv. Emps. Union v. Ontario (Att’y Gen.), [1987] 2 S.C.R. 2 110. Id. at 331. (Can.). 111. Id. at 329. 120. Id. at 6. 112. See generally Switzman v. Elbling, [1957] S.C.R. 285 (Can.). 121. Id. at 2. 113. Id. at 325. 122. Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, para. 60 (Can.). 114. Id. at 310. 123. Id. at para. 66. Winter 2020 THE TIME HAS ARRIVED FOR A CANADIAN PUBLIC TRUST DOCTRINE 77 fed an underlying constitutional principle, the rule of law, of Justice) (Provincial Judges’ Reference).133 Chief Justice Anto- to grant temporary validity to those enactments. In doing nio Lamer, writing for the majority, found that “judicial so, the Court used an underlying principle in a substantive, independence is at root an unwritten constitutional prin- rather than a merely interpretative way. ciple, in the sense that it is exterior to the particular sections To identify the rule of law as an underlying principle, the of the Constitution Acts.”134 Te majority also agreed with Court looked at two sources: the Preamble’s explicit recog- the general principle that the Constitution “embraces writ- nition of the rule of law124 and also to what is implicit in a ten as well as unwritten rules . . .” and noted that since “it constitution. Regarding the latter, the Court found that “the has emerged from a constitutional order whose fundamental principle [of the rule of law] is clearly implicit in the very rules are not authoritatively set down in a single document, nature of a constitution.”125 Te Court’s choice to write that it is of no surprise that our Constitution should retain some it is implicit in a constitution instead of the Constitution, aspect of this legacy.”135 suggests that the Court is making a statement about what Te Provincial Judges Reference also provides clarifca- is required by the very concept of a constitution generally, tion of the legal status of the Preamble. After noting that, rather than just Canada’s particular Constitution. strictly speaking, the Preamble is not a source of positive Te Court went on to state: “[t]he founders of this nation law, the Court explained that the Preamble articulates “the must have intended, as one of the basic principles of nation political theory which the Act embodies . . . . It recognizes building, that Canada be a society of legal order and nor- and afrms the basic principles which are the very source of mative structure: one governed by rule of law.”126 Leading the substantive provisions of the Constitution Act, 1867.”136 to this conclusion, the Court noted the principle’s connec- Tus, the Preamble has “important legal efects” due to its tion with basic democratic notions. According to Emlyn afrmation of already existing underlying principles.137 Tis Wade and George Phillips, “the rule of law is a philosophi- is an important conceptual distinction that reveals the Pre- cal view of society which in the Western tradition is linked amble is not the source of underlying principles, but rather with basic democratic notions.”127 Tis demonstrates that recognizes the already existing underlying principles that are the Western tradition informs the Court’s understanding a source of the Constitution. of what principles are implicit in the nature of constitutions Another important point arising from this case is in the and nation building. Court’s articulation of “the gap theory.” As the Chief Jus- Te Court also held: “[l]aw and order are indispensable tice states: elements of civilized life . . . . ‘A government without laws is As such, the Preamble is not only key to construing the . . . inconceivable to human capacity and inconsistent with express provisions of the Constitution Act, 1867, but also human society.’”128 Tis passage would be particularly help- invites the use of those organizing principles to fll out gaps ful in a climate change case where it could be argued that a in the express terms of the constitutional scheme. It is the healthy environment is an “indispensable element of civilized means by which the underlying logic of the Act can be given life” and that the ongoing deterioration of the atmosphere the force of law.138 is “inconceivable to human capacity and inconsistent with human society.”129 Tis case also shows that when a principle In Reference re Secession of Quebec (Secession Reference),139 is clearly implicit in the nature of a constitution, the Court the Court identifed four underlying constitutional princi- will conclude that the founders must have intended for it to ples: federalism, democracy, constitutionalism, and respect be part of the Canadian Constitution. for minority rights.140 Tese principles were chosen for their Te Supreme Court again dealt with underlying consti- relevance to consider whether unilateral secession by a prov- tutional principles in New Brunswick Broadcasting Co. v. ince would be constitutional, but the Court noted “this enu- Nova Scotia (Speaker of the House of Assembly).130 In this case, meration is by no means exhaustive.”141 Instead, those four the Court established parliamentary privilege as an under- principles are just some of the underlying principles that lying constitutional principle. Justice McLachlin,131 as she “infuse our Constitution and breathe life into it.”142 then was, highlighted the principle’s roots in both history Te Court also clarifed the relationship between the and necessity by asserting that “our legislative bodies possess various underlying principles by explaining: “[t]hese defning those historically recognized inherent constitutional powers principles function in symbiosis. No single principle can be as are necessary to their proper functioning.”132 Te Supreme Court established that judicial independence for judges is an underlying constitutional principle in Manitoba Provincial Court Judges Assn. v. Manitoba (Minister 133. Manitoba Provincial Court Judges Ass’n v. Man. (Minister of Justice), [1997] 3 S.C.R. 3 (Can.). 124. Id. at paras. 63, 66. 134. Id. at para. 83. 125. Id. at para. 64. 135. Id. at para. 92. 126. Id. at para. 64. 136. Id. at para. 95. 127. Id. at para. 60. 137. Id. 128. Id. 138. Id. 129. Id. 139. Secession Reference, [1998] 2 S.C.R. 217 (Can.). 130. New Brunswick Broad. Co. v. Nova Scotia, [1993] 1 SCR 319 (Can.). 140. Id. at para. 32. 131. Id. at 378 (McLachlin, J., concurring). 141. Id. at para. 87. 132. Id. 142. Id. at para. 50. 78 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 defned in isolation from the others, nor does any one prin- or freedoms that exist in Canada.”148 Because underlying ciple trump or exclude the operation of any other.”143 principles are the “very source of the substantive provisions Very importantly, the Court held that underlying prin- of the Constitution Act, 1867,”149 they have existed since at ciples can give rise to substantive legal obligations, which: least 1867 even if some have not been recognized. Accord- ingly, there is room to recognize previously unrecognized constitute substantive limitations upon government underlying constitutional principles even if they are rights action . . . . Tese principles may give rise to very abstract or freedoms, because they are rights and freedoms that and general obligations, or they may be more specifc and already “exist in Canada.”150 precise in nature. Te principles are not merely descriptive, In sum, where the Court perceives a serious threat to but are also invested with a powerful normative force, and the fundamental values and norms of democracy, human are binding upon both courts and government.144 capacity, and human society,151 or to the proper function- Te Supreme Court of Canada has unanimously con- ing of the state that cannot be resolved by recourse to the frmed that underlying constitutional principles may be the written Constitution, it will protect against those threats by source of substantive legal obligations which place limits on identifying underlying constitutional principles to fll the governmental actions. constitutional gap.152

C. Conclusion Regarding Underlying Principles D. Climate Change Reveals a Textual Gap

Te foregoing summary of cases makes clear that the exis- Te unprecedented reality of climate change exposes the tence of underlying constitutional principles is well-estab- lack of environmental protection in the constitutional texts. lished, and the recognition of those principles is a process Anthropogenic climate change poses an extreme threat to which is still unfolding. Te list is not closed and new prin- humankind. Te climate system is being seriously degraded ciples may be recognized. In essence, underlying constitu- by human activity and that degradation is already having a tional principles are not formally recognized until a situation drastic impact on the planet. Te degradation is only going or particular set of facts calls for recognition. to increase unless we change our ways, but governments Te well-established nature and binding force of underly- around the world are resistant to such change. In the Cana- ing principles is perhaps most apparent in the Secession Ref- dian context, the federal government’s actions and inactions erence. Te earlier decisions canvassed above, in addition to are contributing to this environmental degradation and thus providing support for the concept of underlying principles, directly harming segments of the population. If something is provide examples of how the Supreme Court, when faced not done to force the government to act, that harm will only with particular circumstances, is prepared to expand the list intensify and irreparable damage will be done to the environ- of such principles. For example: although the rule of law has ment and the population. always been a fundamental underlying principle, it was not But how can the government be forced to act? Tere are recognized as such until the possibility of a lawless Manitoba no express environmental protections in the written con- led the Court to illuminate and confrm it in Manitoba Lan- stitutional texts. Tere are no protections for the natural guage Rights. resources, which are the “indispensable elements of civilized It is important to note that since many of the above cases life” and are the foundation of “the primary conditions of were decided after the Canadian Bill of Rights145 and the community life in a legal order.”153 Tere are no mechanisms Charter of Rights and Freedoms (Charter)146 came into efect, in the Constitution to protect these very fundamentals of it is clear that those instruments have not ousted the courts’ life. Tere is a clear and serious gap in the written texts. authority to identify and afrm previously unrecognized As the cases we have reviewed demonstrate, where there underlying constitutional principles. Te alternative would is a gap in the constitutional texts on an issue fundamen- “negate the manifest intention expressed in the preamble of tal to the proper functioning of the nation, or where there our Constitution that Canada retain the fundamental con- is a threat to the fundamental values of human society, the stitutional tenets upon which British parliamentary democ- Court is prepared to recognize the underlying constitutional racy rested,”147 because it would mean that these tenets are principles necessary to support that proper functioning or not retained unless they are expressed in the written texts. to protect those fundamental values. In this context, it can Te existence of unwritten constitutional principles is be argued that the ongoing environmental degradation, and also consistent with Section 26 of the Charter: “[t]he guar- the serious risk of future harm, coupled with governmental antee in this Charter of certain rights and freedoms shall not actions and inactions causing or exacerbating the situation, be construed as denying the existence of any other rights

148. Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11 143. Id. at para. 49. (U.K.). 144. Id. at para. 54. 149. Manitoba Provincial Court Judges Ass’n. v. Man. (Minister of Justice), [1997] 145. Canadian Bill of Rights, S.C. 1960, c 44 (Can.). 3 S.C.R. 3, para. 95 (Can.). 146. Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11 150. Supra note 145. (U.K.). 151. Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, para. 60 (Can.). 147. New Brunswick Broad. Co. v. Nova Scotia, [1993] 1 S.C.R. 319, para. 377 152. Id. at para. 65. (Can.). 153. Id. at para. 60. Winter 2020 THE TIME HAS ARRIVED FOR A CANADIAN PUBLIC TRUST DOCTRINE 79 threaten “the primary conditions of the community of life the public trust could be used to require government to, for in a legal order,” go to the core of the proper functioning of example, bring GHG emissions into a target range in order the nation, and are “inconceivable to human capacity and to protect the atmosphere. inconsistent with human society.”154 Below are set out two possible bases for a court to recog- Tere is a lack of recognition and protection of the core nize a public trust over essential natural resources: the social environmental resources necessary for a healthy environment contract and the inherent right principle. in the written constitutional texts and hence no mechanism to force the government to protect those resources. Tis is a F. The Public Trust Arises From the Social Contract conspicuous gap in the written texts. It is a gap that must be flled with an underlying constitutional principle, because a Te frst argument is that the public trust arises from the healthy environment is critical to support our basic quality social contract. Te concept of the social contract is a long- of life and, ultimately, to a healthy, functioning democracy. standing theory that claims the source and legitimacy of Te right to a healthy environment is a right so fundamental democratic state power is an implicit contract between the to a functioning society that it must underlie any democratic state and its citizens. Te concept seeks to legitimize state constitution. It is an “original freedom”155 every bit as impor- power by claiming it is grounded in the implicit consent of tant as freedom of speech, religion, and the inviolability of citizens to be governed. On that basis, the state’s legitimate the person. powers must be limited to those that the citizens would con- It is here that we turn to the concept of the public trust ceivably grant it. Te concept provides a theoretical justif- as an underlying constitutional principle. Te public trust is cation for the legitimacy of the coercive power of the state a necessary constitutional mechanism that can be used by that is compatible with democracy. As former Chief Justice citizens to hold government accountable for its participa- Beverley McLachlin, writing extra-judicially, notes: “[i]f the tion in the degradation of the environment and to prevent state, as we believe, exists as an expression of its citizens, then further degradation. it follows that its legitimacy and power must be based on the citizens’ consent.”157 E. The Public Trust Is an Underlying Constitutional Te social contract is well-established in western political Principle That Can Fill the Gap thought. Its roots trace back to Plato’s depiction of Socrates, and it was expounded upon by Tomas Hobbes, John As noted above in the discussion of the public trust gener- Locke, Jean-Jacques Rousseau, John Rawls, and other theo- ally, the public trust doctrine is well-developed in the United rists. Given that “Western tradition” informs the Court’s States and other jurisdictions, but its development in Canada understanding of what principles are implicit in the nature has been slow and uncertain. Canadian courts have, however, of constitutions,158 it is not surprising that the Supreme made some progress to protect public rights and interests in Court would look to social contract theory in its constitu- limited natural resources. As Justice William Binnie noted tional analysis. in Canfor: “[t]he notion that there are public rights in the Te importance of the social contract was recognized environment that reside in the Crown has deep roots in the by the Court in Sauvé v. Canada (Chief Electoral Ofcer), common law . . . .”156 In Canfor, the Supreme Court reviewed (Sauve).159 In Sauve, the Court held that legislation prohibit- the roots of the public trust doctrine and left the door open ing prisoners from voting is unconstitutional. In doing so, to the possibility. It is time to walk through that door. the majority found that the social contract “stands at the Canadians have an underlying constitutional right to the heart of our system of constitutional democracy,”160 and the natural resources essential to a healthy environment. Tis minority held that: “[t]he social contract is the theoretical right to a healthy environment has been, and continues to basis upon which the exercise of rights and participation in be, abused by government, and therefore, a constitutional the democratic process rests.”161 mechanism of protection is required. Tat constitutional Te majority identifed that the source of the legitimacy mechanism is a public trust. Te Court must recognize of the law in a democratic state comes from its citizens; the that government holds the natural resources essential for a lawmakers act as the citizens’ proxies. Te Court recognized healthy environment in trust for the citizens. Te recogni- that “[t]he legitimacy of the law and the obligation to obey tion of such a trust will acknowledge that democratic govern- the law fow directly from the right of every citizen to vote”162 ments have an inherent obligation to ensure the continuous and that there is a “vital, symbolic, theoretical and practi- availability of resources that are essential to current and cal connection between having a voice in making the law future citizens. In the Canadian context, a public trust would and being obliged to obey it.”163 Te Court found that this require the Crown to take public rights and interests in natural resources into account in decisionmaking and would pro- 157. Beverley McLachlin, Unwritten Constitutional Principles: What Is Going On?, 4 hibit the Crown from seriously interfering with or degrading N.Z. J. Pub. & Int’l L. 147, 151 (2006). these rights. In the specifc context of a climate change case, 158. Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, para. 60 (Can.). 159. Sauvé v. Canada (Chief Electoral Ofcer), [2002] 3 S.C.R. 519 (Can.). 160. Id. at para. 31. 154. Id. 161. Id. at para. 115. 155. Saumur v. Quebec, [1953] 2 S.C.R. 299, 329 (Can.). 162. Id. at para. 31. 156. Canfor, [2004] 2 S.C.R. 74, para. 74 (Can.). 163. Id. 80 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 connection between the legitimacy of the law and the par- contract. In those circumstances, in order to maintain the ticipation of citizens through voting is “inherited from social legitimacy of the state, there must be some way for citizens to contract theory.”164 Te argument here is that the fundamen- enforce the social contract. Some mechanism is required to tal legitimacy of the state rests on the consent of its citizens force the state to protect the fundamental resources necessary expressed through the social contract. to the welfare and survival of its citizens. Te Supreme Court’s endorsement of social contract As noted above, in the Canadian context, where the threat theory can also be seen in the Court’s fnding in the Seces- of serious environmental damage is upon us, there are no sion Reference that: “[t]he Constitution is the expression of mechanisms in the written constitutional texts that can be the sovereignty of the people of Canada.”165 In other words, used to require the government to comply with its funda- the people are sovereign and, through the Constitution, have mental responsibility under the social contract. Tere is, expressed their consent to be governed, and how they choose then, a constitutional gap that potentially undermines the to be governed. legitimacy of government. Tis opens the door to recognition So, what does the social contract entail? What terms have of an underlying principle. Given the threat of catastrophic the people imposed upon the state in exchange for their con- damage to the environment, the actions and inactions of the sent to be governed? Te most fundamental term is the pro- federal government exacerbating that threat, and the require- tection of the “primary conditions” for the well-being of the ments of the social contract, the legitimacy of the Cana- citizens. What could be more fundamental to citizens than dian state rests upon recognition of a mechanism whereby their well-being? Among the primary conditions for the well- the social contract can be enforced and vital environmental being of the populace is the environment upon which they resources protected. Tat mechanism must be an underlying, depend. Clearly, a sovereign people would not grant to gov- unwritten constitutional principle because there is no such ernment the power or authority to degrade their environment mechanism in the written Constitution. Tat mechanism is to the point of serious harm to the people’s well-being. As the public trust. A public trust requires government to hold Professor Wood notes, citizens would “never confer to their the resources necessary for the well-being and survival of its government the power to substantially impair the resources citizens in trust for those citizens. It is as benefciaries under crucial to their survival and welfare . . . .”166 A healthy envi- the public trust that citizens could require government to ronment is just such a resource. protect those vital resources. It is through the public trust Te passage from Canfor, quoted supra, lends support to that citizens are able to hold government to its obligations the proposition that protection of the environment is a fun- under the social contract. damental aspect of the social contract in Canada: Te importance of the public trust to the social contract becomes particularly clear when considering harms, like cli- As the Court observed in R v. Hydro-Quebec . . . , legal mea- mate change, where the full negative impact of actions today sures to protect the environment “relate to a public purpose will not be fully experienced by Canadian citizens for decades of superordinate importance”. . . . In Ontario v. Canadian to come. To subject future citizens to a world without vital Pacifc Ltd. . . . , “stewardship of the natural environment” natural resources and a healthy environment would mean was described as a fundamental value . . . . Still more making them sufer as a result of laws (or the lack of laws) recently, in 114957 Canada Ltee v. Hudson . . . the Court and decisions they had no voice in making. Once again, this reiterated at para 1: would undermine the legitimacy of the state. As the Supreme Our common future, that of every Canadian commu- Court found in Suave, supra, there is a “vital, symbolic, theoretical and practical connection between having a voice in nity, depends on a healthy environment . . . . Tis Court 169 has recognized that “(e)veryone is aware that individu- making the law and being obliged to obey it.” ally and collectively, we are responsible for preserving the One could argue that this is just the nature of being a cit- natural environment . . . environmental protection has izen—citizenship in a political community requires taking emerged as a fundamental value in Canadian society.”167 responsibility for the past actions of that community. And it could be further argued that it is impossible to determine And in Ontario v. Canadian Pacifc Ltd., the majority of what actions future generations would voice approval of the Court adopted a passage from the Law Reform Com- since they, by defnition, only exist in the future. However, mission of Canada that described “a fundamental and in this narrow area, it is safe to presume what future genera- widely shared value . . . which we will refer to as the right tions would say if they had a voice in the matter. No one to a safe environment.”168 would agree to have the resources they depend on for sur- A democratic state not prepared to protect its citizens vival substantially impaired, especially when that impair- from threats to the environment upon which they depend for ment is likely irreversible. their well-being and survival, would be in breach of the social In the environmental context, the principle of “intergen- erational equity” imposes on “each generation . . . an obligation to future generations to pass on the natural and cultural 164. Id. resources of the planet in no worse condition than received 165. Secession Reference, [1998] 2 S.C.R. 217, para. 85 (Can.). 166. Wood & Woodward, supra note 10, at 648. 167. Canfor, [2004] 2 S.C.R. 74, para. 7 (Can.). 169. Sauvé v. Canada (Chief Electoral Ofcer), [2002] 3 S.C.R. 519, para. 31 168. Ontario v. Canadian Pac., Ltd., [1995] 2 S.C.R. 1031, para. 55 (Can.). (Can.). Winter 2020 THE TIME HAS ARRIVED FOR A CANADIAN PUBLIC TRUST DOCTRINE 81 and to provide reasonable access to the legacy for the present of humans. Inherent rights are rights that are so fundamen- generation.”170 It is also helpful to look to American juris- tal that they must, out of necessity, be implicit in “the very prudence to illuminate the connection between the social nature of a constitution.”174 Tey are the “vital, unstated contract and the public trust. Illinois Central Railway Co. v. assumptions . . . ” upon which the Constitution is based.175 In Illinois (Illinois Central),171 recognized as the foundational Saumur, supra, Justice Rand described these rights as “origi- authority on the public trust doctrine, the United States nal freedoms which are at once the necessary attributes and Supreme Court upheld legislation revoking a legislative grant modes of self-expression of human beings and the primary of land and water to the Illinois Central Railway on the basis conditions of their community life within a legal order.”176 of the public trust doctrine. Te Court found that the state, In a similar vein, in Switzman, supra, Justice Rand rec- through its sovereignty (sovereignty that arises, it is argued, ognized the right of freedom of discussion as an underlying through the social contract), held the navigable waters and constitutional principle because it is “the primary condition the lands under them in trust for the public because the own- of social life, thought and its communication by language ership of such property is a subject of public concern to the . . .” and is “little less vital to man’s mind and spirit than whole people of the state.172 While Illinois Central dealt with breathing is to his physical existence.”177 As such, he found, navigable waters and the lands beneath them, the Court rea- that the right is “an inherence in the individual . . .” and soned that the public character of the property requires the embodied in his status of citizenship.178 In other words, it is protection of the public trust. Illinois Central could therefore an inherent right embedded in the Constitution. be used to support the argument for a public trust that arises If freedom of discussion is a primary condition of social from the social contract. life and thought—and therefore an inherent right—then Te Supreme Court of Canada has recognized and the primary conditions for physical existence, including a afrmed the importance of the social contract to the legiti- healthy environment, must also be inherent rights since their macy of our democracy: the social contract “stands at the existence is obviously necessary for social life and thought. heart of our system of constitutional democracy . . . .”173 Justice Rand implies as much when he states that liberty of Te social contract legitimizes state power by claiming it is discussion “is little less vital to man’s mind and spirit than grounded in the implicit consent of citizens to be governed, breathing is to his physical existence.”179 Here, Justice Rand and therefore, the legitimate powers of the state must be lim- takes for granted that the primary conditions of physical ited to those powers that citizens would conceivably grant existence, such as air to breathe, are inherent rights. to it. In the Canadian context, it is clear that Canadians Te primary conditions of physical existence are such would not grant to government the power or authority to essential rights that they must precede everything. Tus, a substantially impair the resources necessary to their essen- healthy environment, it can be argued, is a primary human tial well-being and survival. Accordingly, given that the fed- right. Tis right is implicit in the very nature of the constitu- eral government’s actions and inactions are bringing about tion of a democratic state because the “biophysical reality is that impairment, the government is in breach of the social that all other rights, including the right to life itself, depend contract. Because a constitutional mechanism is required upon a viable environment.”180 What could be more funda- to force the government to comply with the social contract mental to the democratic state than the existence and well- and there is no such mechanism in the written Constitution, being of its sovereign people? we must turn to an underlying constitutional principle to Te Supreme Court of the Philippines, in Minors Oposa v. fll that gap. Tat underlying principle is the public trust. Secretary of the Department of the Environment and Natural Trough the public trust, government is required to uphold Resources (Minors Oposa), recognized the innate nature of the the social contract by protecting the fundamental resources right to a healthy environment.181 Te Court addressed the necessary to the well-being and survival of the citizens. A idea that the public trust protects these rights by preventing fnding that there is a public trust over vital resources is nec- the substantial impairment of these resources by making the essary to avoid contradicting the logic of the social contract compelling argument that: that is at the heart of our democracy. Te right to a balanced and healthful ecology . . . belongs to G. The Public Trust Is an Inherent Right Implicit in the a diferent category of rights altogether for it concerns noth- Nature of a Constitution ing less than self-preservation and self-perpetuation[,] the advancement of which may even be said to predate all gov- In addition to arising from the social contract, the public trust is also an expression of a pre-political, inherent right 174. Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, para 64 (Can.). 175. Secession Reference, [1998] 2 S.C.R. 217, para. 49 (Can.). 176. Saumur v. Quebec, [1953] 2 S.C.R. 299, 329 (Can.). 170. Jerry V. DeMarco, Law for Future Generations: Te Teory of Intergeneration- 177. Switzman v. Elbling, [1957] S.C.R. 285, 306 (Can.). al Equity in Canadian Environmental Law, 15 J. Envtl. L. & Prac. 1, 3–4 178. Id. at 306–07. (2004); see also Labrador Inuit Ass’n v. Newfoundland (Minister of Env’t and 179. Id. at 306. Labour), 1997 CanLII 14512, paras. 11–12 (Can. N.L. C.A.). 180. Lynda M. Collins, Safeguarding the Longue Durée: Environmental Rights in the 171. Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387 (1892). Canadian Constitution, 71 Sup. Ct. L. Rev.: Osgoode’s Ann. Const. Cases 172. Id. at 455–56. Conf. 519, 522 (2015). 173. Sauvé v. Canada (Chief Electoral Ofcer), [2002] 3 S.C.R. 519, para. 31 181. Minors Oposa v. Sec’y of the Dep’t of Env’t and Nat. Res., G.R. No. 101083, (Can.). 187 (S.C., July 30, 1993) (Phil.). ernments and constitutions. As a matter of fact, these basic democratic state is to promote the interests and well-being of rights need not even be written in the constitution for they its citizens, then the primary conditions of physical existence are assumed to exist from the inception of humankind.182 must be among those inherent rights implicit in the Consti- tution. If those rights are implicit in the Constitution, the Embedding this right in the Constitution is important mechanism to protect those rights must also be implicit in because constitutions are meant to endure through time. the Constitution. Tat mechanism is the public trust. Hence, As Lynda Collins writes in Safeguarding the Longue Duree: the public trust is an underlying constitutional principle. “[a] constitution not grounded in a healthy, sustainable environment is a paper temple—a mere recitation of rights 183 H. Conclusion Regarding the Public Trust as an with no real guarantee of their survival over time.” As Underlying Constitutional Principle the Supreme Court stated in Hunter v. Southam: “[a] statute defnes present rights and obligations. It is easily enacted Based on the foregoing, it is well established that there are and as easily repealed. A constitution, by contrast, is drafted unwritten constitutional principles underlying the written with an eye to the future. Its function is to provide a con- Constitution. Tese principles may be recognized by the tinuing framework.”184 Court where the Court perceives a serious threat—either to If these rights are implicit in the very nature of a constitu- the fundamental norms of democracy, to human capacity tion, a mechanism for protection of these rights must also be and society, or to the proper functioning of the state—that implicit in the Constitution. Tat protective mechanism can- recourse to the written texts cannot resolve. Te Supreme not be, like a statute, “easily enacted and as easily repealed.” Court has already recognized a number of such principles, It is here that we once again turn to the public trust. A public but it is clear that the list is not closed and new principles trust embedded in the Constitution can be used to safeguard may be recognized. the essential resources that are the primary conditions of the Climate change is an existential threat to human capacity well-being of the population. A public trust over essential and human society. It is a threat to the natural resources (e.g., natural resources is implicit in the Canadian Constitution the atmosphere) that are essential to the survival of human- because it ensures that government will, or will be required kind. On the basis of social contract theory and inherent to, protect the resources necessary for a viable environment rights theory, government must hold those essential resources and the well-being and survival of the population. Trough in trust for current and future generations. Protection of both the public trust, the fduciary obligations to the public must present and future citizens from existential threats is the most guide government authority in relation to those resources. fundamental responsibility of any democratic government. Justice McLachlin in her essay, Unwritten Constitutional In Canada, rather than protecting essential natural Principles, confrms this point when she states that govern- resources, the actions and inactions of the federal government should not be allowed to kill their citizens indirectly ment are contributing to the degradation of those natural through “degradation of the environment.”185 It is clear from resources and, thus, the government is in breach of the pub- her essay that she thinks that a sufciently catastrophic envi- lic trust. Tere is no recognized constitutional mechanism ronmental degradation would violate a fundamental demo- available to citizens to require government to protect those cratic right. essential resources or to hold government accountable for its In sum, there are rights—“original freedoms”—that are participation in the degradation of those resources. Tere is so fundamental that they are “implicit in the very nature of a a gap in the written constitutional texts, and the Canadian constitution.”186 Tese are inherent rights that are embedded Constitution should recognize the public trust as an underly- in an individual’s very status as a citizen. If the essence of the ing principle, thereby flling the gap.

182. Id. 183. Collins, supra note 180, at 539. 184. Hunter v. Southam, Inc., [1984] 2 S.C.R. 145, para. 16 (Can.). 185. Id. at 150. 186. Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, para. 64 (Can.).

82 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 PERSPECTIVE PIECE

The Public Trust Doctrine in the 21st Century

Nicholas A. Robinson* I. Introduction It behooves us today to explore the environmental rights that Magna Carta identifed, confrmed, and protected. Most If anyone doubts that the legal decisions of the 12th century of these were “place based,” involving the natural resources in England have relevance today, let them refect upon Magna of England. Although William Blackstone’s writing made all Carta. Tis great charter of liberties launched our concepts of Magna Carta known to the early bar in the Americas, our of limited and accountable government and the rule of law. Founding Fathers had no occasion to dwell on the Charter’s Chapter 39 declares that “[n]o free man is to be arrested, or environmental rights. America was a realm of vast natural imprisoned, or disseised, or outlawed, or exiled, or in any resources, carpets of forest, and easily accessible coastlines. other way ruined, nor will we go against him or send against Nonetheless, having embraced Magna Carta’s fundamen- him, except by the lawful judgment of his peers or by the law tal norms of justice, America’s legal systems are open to the of the land.”1 Our norms of due process of law emerge from rediscovery of how simple justice would mandate recogniz- this right. Chapter 40 declares “[w]e will not sell, or deny, ing environmental rights today, as occurred in 2015.5 or delay right or justice to anyone.”2 As prosecutors in New William Blackstone made his career by researching what York attack the “pay to play” corruption or bar associations he called the “two sacred charters,” using these works to criticize abusive bail practices, it is evident that rights granted publish an extraordinary book that included his own com- by Magna Carta in 1215 are central to the quest for justice mentaries.6 Te frst Charter was Magna Carta of 1215, and today. Magna Carta greatly advanced the rights of women, the second was Carta de Foresta of 1217 (Forest Charter). which the Sufragettes extended.3 Te American Bar Association published my detailed history Are we not still “seeking justice”4 after 800 years? Te of the Forest Charter in 2014.7 Blackstone’s scholarship on struggles to defne a more just society in the 12th and 13th Te Great Charter and Charter of the Forest (1759) and his centuries in England put us on the path we still struggle to Commentaries built upon the jurisprudence established by Sir defne today. Magna Carta sought to redress wrongs across Edward Coke. Coke had declared that these charters were a range of complex relationships. Some are bound up in the part of the “ancient constitution” of the realm, and made feudal relationships and are lost on us today. Others are time- ancient claims of right in the “Petition of Right.”8 Trough less, speaking to the human condition in any era. Blackstone’s work, the political and civil rights frst articu- lated in Magna Carta found their way into the United States Bill of Rights. * Nicholas A. Robinson is the Gilbert and Sarah Kerlin Distinguished Today, the environmental issues that have developed dur- Professor of Environmental Law Emeritus at the Pace University ing the Anthropocene epoch could be mitigated by exam- School of Law. ining the environmental rights that emerged from Magna 1. Magna Carta cl. 39 (1215), reprinted and translated in Magna Carta and the Rule of Law app. C, at 394 (Daniel Barstow Magraw et al. eds., 2014) [hereinafter Magraw]. 5. Nicholas A. Robinson, Te Most Fundamental Right, 36 Envtl. F. 46, 49 2. Magna Carta ch. 40 (1215), in Magraw app. C, at 394. (2019). 3 .See Magna Carta cls. 6, 7, 8, 11 (1215), in Magraw app. C, at 390-91. 6. Wilfred Prest, William Blackstone: Laws and Letters in the 18th 4. See, e.g., Pace Law Sch., Exhibit, Magna Carta: Enduring Legacy 1215-2015 Century 165 (2008). (Oct. 13-26, 2015). Te pursuit of justice was a theme of the exhibitions and 7. See Nicholas A. Robinson, Te Charter of the Forest: Evolving Human Rights in special programs (curated by Prof. Nicholas Robinson) at Pace University Nature, in Magraw, supra note 1, at 311-77. School of Law and the New York State Judicial Institute, and sponsored by 8. Online Library of Liberty, The Best of the OLL #42: Sir Edward Coke, the American Bar Association and Law Library of Congress. Te exhibition Petition of Right (1628), http://lf-oll.s3.amazonaws.com/titles/2545/ honored the 800th anniversary of Maga Carta. For more information, please Coke_PetitionRight1628.pdf [https://perma.cc/6Y5N-YESZ] (last visited visit https://law.pace.edu/magna-carta. Oct. 31, 2019).

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Carta. What can their history tell us about humans and or itinerant royal courts. Uses and entitlements to natural nature? When humans in Medieval England depended on resources were administered through the Forest Law, with nature, they posited in the Forest Charter a set of just rela- local courts of Swaimote, which governed usufructs for tionships. Tey had rights, “liberties of the forest.”9 As we domestic animals in Royal Forests, with agisters to inspect. humans today contemplate our dependence on stable ecolog- Courts of Attachment would adjudicate violations of For- ical conditions in Earth’s biosphere and agree on sustainable est Law, enforced by Foresters. Periodically, the King (or development goals, we are positing a right to the environment his Justiciar) dispatched a Justice Seat in Eyre—sometimes in more than 174 national constitutions.10 Does due process Eyre (from the French Ire, to go)—to hold a comprehensive of law today entail such an environmental right? Counterin- inquest, adjudicate all violations of Forest Law in a place, and tuitive as it may seem in the midst of today’s culture wars, it set new rules. Verderers, who were selected from among local is worth considering whether or not, through due process, barons and knights, provided oversight of these systems. American jurisprudence is already primed to acknowledge a Often the Foresters were arbitrary in applying laws that right to the environment? forbade taking venison and regulated the limits of usufructs. In this Symposium’s initial lecture, I will (a) provide a Tis led to grievances. Moreover, when the King needed glimpse into life in Medieval England to explain the con- additional monies for his wars with the Welsh, Scots, or text from which Magna Carta arose, (b) describe the evolu- kingdoms across the English Channel, he would by decree tion of environmental rights from Magna Carta to the Forest expand the borders of the Royal Forests into adjacent areas. Carter, (c) explore in a case study how “liberties of the forest” He would then declare all those within the new borders to be functioned for 800 years in England’s Royal Forest of Dean, trespassers, fne them, order them to pay rents to remain, and ultimately sustaining the ecological systems of Dean, (d) dis- extract other payments. Tis was called “aforestation,” and cuss the “liberties of the forest” in light of Elinor Ostom’s it was patently unjust. Such behavior is remembered today in common pool analyses, and (e) ofer some views on the ques- the stories of Robin Hood, in Sherwood Royal Forest. When tion just posed. I shall start by describing the English envi- a King needed major new taxes to pay for his mercenaries, ronment itself in the 13th century. the barons would accede only if the King decreed a return to the former boarders of the Royal Forest. Regarders, usually II. Governance and the Emergence of twelve knights selected locally, would then survey the bor- Magna Carta in 1217 ders and determine the proper metes and bounds. Tis was called “disaforestation.” Medieval England had been upended in 1066 when the King John was aggressive in his aforestations and par- Normans occupied this Anglo-Saxon country. King Wil- simonious in his disaforestations. His abusive taxation led liam “Te Conqueror” established his barons across the land, to a rebellion against him and civil war. On June 10, 1215, inventoried the realm in the Doomsday Book, and confrmed John agreed to the Barons’ demands in Magna Carta in a system of more than 150 “Royal Forests,” where he alone order to settle the civil war. Copies of Magna Carta were had authority to hunt deer and boar. But the Royal Forests at once made and sent to Sherifs across England to be read were more than a hunting ground. Teir timber became in churches and town squares. England was largely illiterate, ships and buildings. Tey held fsh ponds and provided and this oral tradition was important. water power for mills. Te Forests housed valuable tin mines Under Chapter 48, twelve knights were to investigate and and foundries. Teir pastures provided fodder for cattle and report on the “evil customs” relating to the Foresters in each horses and sheep. Teir mast fattened the pigs. Teir wood county. However, within the three months, John renounced fueled the energy demands of the Kingdom. Te oak trees Magna Carta and the civil war resumed, with King Louis of France in England against John.11 He died in October of Dean were used to build the Tower of London. While 12 the King did hold some personal land, demesne, in the Royal 1216, and his nine-year-old son, Henry III, became king. Forest, they were not his alone. His prerogatives co-existed in A renowned knight, William Marshall, became Henry’s Regent and sought to end the civil war by promulgating the Royal Forests with the rights of all others located there: 13 Barons and their manors and serfs, monasteries and other Magna Carta anew in 1216. Marshall also had compiled ecclesiastical places, villages, free men with their farms, and the reports of the twelve knights about the evils for the For- est, and in November of 1217, at a Curia Regis, the text of the travelers who crossed through. 14 Two legal systems also co-existed. Generally, civil and Forest Charter was agreed. In 1217, Henry III granted both a revised Magna Carta and the new Carta de Foresta.15 He criminal relations were adjudicated by the common law and 16 administered by the sherifs and judges in manorial courts would re-issue and confrm both Charters again in 1225. Tereafter, whenever the King needed taxes, disaforestations

9. Charter of the Forest, 1255, U.K. Nat’l Archives, http://www.nationalar- chives.gov.uk/education/resources/magna-carta/charter-forest-1225-westmin- ster [https://perma.cc/9QHF-WGME] (last visited Oct. 31, 2019). 11. Robinson, supra note 7, at 335-36. 10. Michael B. Gerrard & Edward McTiernan, Debate Over Environmental Rights 12. Id. at 336. Zand State Constitutional Convention, 258 N.Y. L. J. 1 (2017), https://www.ar- 13. Id. at 335-36. noldporter.com/-/media/fles/perspectives/publications/2017/10/debate-over- 14. Id. environmental-rights-and-state-constitutional-convention.pdf [https://perma. 15. Id. at 313. cc/G7DK-PSG2]. 16. Id. Winter 2020 THE PUBLIC TRUST DOCTRINE IN THE 21ST CENTURY 85 were ordered and the Charters were afrmed.17 In 1297, the work and attend the courts and be fned if they Crown granted the Confrmatio Cartorum and confrmed the did not).29 18 charters as statues of the realm, binding on the Crown. (7) Chapter 47: All Forests aforested during King John’s rule were “to be disaforested immediately, A. From Magna Carta to Forest Charter and the same [was] to be done with regard to rivers” that King John had fenced of.30 In the 13th century, the lands and rivers of England were (8) Chapter 48: “All evil customs relating to forests the sources of its wealth, appropriated through farming and and warrens, foresters and warreners, sherifs and fshing, harvesting wood or other plants, and artisanal min- their ofcers, rivers and their keepers, are to be ing.19 Access to natural resources was well understood in cus- immediately investigated . . . [and] are to be com- tomary law before the Norman Conquest.20 Te Normans pletely abolished by them, never to be revived, as confrmed most such practices.21 When Kings extended the long as we, or our justiciar if we are not in Eng- Royal Forests arbitrarily, this disrupted well-settled ecologi- land, know about it beforehand.”31 cal, economic, and social relations.22 It was not difcult for churchmen and barons alike to agree on King John’s evil (9) Chapter 53: Disaforestations need not be done 32 behavior about the environment.23 while the King is abroad on Crusade. (10) Chapter 55: Fines assessed unjustly and against 1. Magna Carta of 2015 Sought to Remedy the law of the land are to be remitted (this encom- Environmental Injustices passed many Forest Law fnes).33

Various clauses in Magna Carta of 2015 remedied environ- 2. Magna Carta of 2016 Was Issued With a mental injustices: Different Set of Environmental Rights (1) Chapter 4: Guardians of minors who are heirs are When the Regent William Marshal caused Henry III to re- barred from taking more than reasonable income issue Magna Carta in 1216, a diferent set of environmental from the heirs’ lands and “without destruction of rights was provided: either men or goods.”24 (2) Chapter 5: Te Guardian with “wardship of the (1) Chapter 5: Te duty to keep up the natural land is to maintain buildings, parks” (forests resources of wardships was extended also to under forest law), “fshponds, pools, mills, and wardships of ecclesiastical lands.34 other things appertaining to the land.”25 (2) Chapter 15: Rights of freemen to be fned fairly (3) Chapter 20: Penalties for free men or “villeins,” for violations, were extended.35 including forest law violations, are to be propor- (3) Chapter 38: All aforestations under King John tional to the ofense (many violations of forest were to be “disaforested; and so be it done with law saw excessive penalties).26 river-banks that were made preserves.”36 (4) Chapters 28, 30, 31: No Crown ofcials are to (4) Chapter 42: “[B]ecause there were certain chap- take corn, horses or carts, or another man’s wood, ters in the former charter which seemed impor- except by consent.27 tant yet doubtful, namely . . . On forests and (5) Chapter 33: “All fsh-weirs are in [the] future to foresters, warrens and warreners . . . On river be entirely removed from the Tames and the banks and their wardens, . . . these [chapters shall Medway and throughout the whole of England, be] deferred until we have fuller counsel.”37 except on the sea-coast.”28 (6) Chapter 44: Men outside the Forest do not need Te deliberations continued. Tis debating over environ- to attend Forest eyres (all before had to leave mental issues was not under any pressure of a civil war. It was a serious and conscientious struggle to defne the relative rights of all those who depended on the Royal Forests. Tere must have been a draft text for debate at the Curia Regis in November of 1217, but no record has been found. 17. Id. at 337. 18. Id. at 338. 19. Id. at 326. 20. Id. at 324. 29. Id. ch. 44, in Magraw app. C, at 394. 21. Id. at 325. 30. Id. ch. 47, in Magraw app. C, at 395. 22. Id. at 324, 325. 31. Id. ch. 48, in Magraw app. C, at 395. 23. Id. at 335. 32. Id. ch. 53, in Magraw app. C, at 395-96. 24. Magna Carta ch. 4 (1215), in Magraw app. C, at 390. 33. Id. ch. 40, in Magraw app. C, at 396. 25. Id. ch. 5, in Magraw app. C, at 390. 34. Magna Carta ch. 5 (1216), in Magraw app. F, at 406. 26. Id. ch. 20, in Magraw app. C, at 392. 35. Id. ch. 15, in Magraw app. F, at 408. 27. Id. chs. 28, 30, 31, in Magraw app. C, at 393. 36. Id. ch. 38, in Magraw app. F, at 410. 28. Id. ch. 33, in Magraw app. C, at 393. 37. Id. ch. 42, in Magraw app. F, at 411. 86 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2

3. Magna Carta of 2017 and the Forest Charter up to two deer.48 Te penalty for unlawfully tak- Replaced Magna Carta of 2016 ing a deer is a fne or one-year imprisonment.49 (3) Foresters are prohibited from confscating grains In less than a month thereafter, the Forest Charter was or sheep or pigs.50 issued, along with the 1217 version of Magna Carta. Many (4) “Every free man” can let his animals use the Royal copies were made, and orders were sent to the sherifs to Forests (right of pasturage) and let his pigs eat read the two charters aloud in churches and town squares. acorns in the Royal Forests (right of pannage).51 Most environmental references were placed in the Forest Tese become recognized as commoners’ rights Charter. Two remained in Magna Carta as they did not deal in future centuries. with Forests: (5) Chapter 12: “On his own land and with his own Chapter 20: “No river bank shall henceforth be made a pre- access to water within a Royal Forest, every free serve, except those which were preserves in the time of king man can make a mill, fshpond, dam, marsh pit Henry, our grandfather, in the same places and for the same or dike or reclaim arable ground, without [violat- periods as they used to be in his day.”38 ing] Forest Law, so long as [his acts are] not a nuisance to any of his neighbors.”52 Chapter 29: “Henceforth all fsh-weirs shall be cleared completely from the Tames and the Medway, and throughout Procedural rights include: all England, except along the sea coast.”39 Te rights set forth in the Forest Charter are all new. Tey (1) Chapter 8: “Foresters and Verderers are to meet are the result of a rigorous examination of how to establish every 40 days to deal with arrests for ofenses of just relations regarding uses and rights in the forests. Tis killing or hunting deer (trespass of venison) or harvesting [wood or] vegetation without author- is an extraordinary legislative event in which the reports of 53 the twelve knights in diferent English counties produced ity (trespasses of vert).” a litany of evil conduct, which the Forest Charter was to (2) Chapter 16: “Procedures for handling ofenses address.40 More importantly, the Forest Charter recognized are regularized. No warden of a castle may hold public rights in the forest, beyond what we today see as prop- a court to enforce Forest Law or to hear pleas erty rights. Tese public rights are recognized as being held of the Forest, and foresters who make arrests and enjoyed by everyone (omnes) and thus may be character- (attachments) must present [those arrested] to ized as human rights.41 the Verderers, who will make a record and pres- Te Forest Charter begins by recognizing a common ent them to the forest justices . . . to determine right for gathering herbs and berries.42 Tis right exists to be forest pleas.”54 exercised everywhere and is held by everyone in the Forest (3) Chapter 17: Emergent human environmental including in the king’s private demesne.43 rights;55 the most striking chapter of the For- Te Forest Charter provides both substantive and proce- est Charter. It reads like a savings clause, to dural rights. Substantive rights include: preserve all rights of the King or others that are not expressly addressed in the Charter.56 It (1) Aforestations and fnes made before King also directs that Crown and Subject have cor- Henry III are reversed, and Forest borders are rective duties; each is to respect the rights of the to be inspected every three years.44 Past viola- other. But it goes beyond this function, provid- tions are pardoned, so long as those pardoned ing a legal foundation for rights that are yet to fnd sureties to pledge that they shall not com- be recognized: mit new violations.45 (2) Royal rights to hunt deer are regulated.46 Te Tese liberties of the forest (libertates de forestis) and free cruel practice of “lawing” dogs (cutting the toes customs traditionally had (consuetudines predictas et lib- or paws) is curbed, and hunting or travelling ertates), both within and without the Royal Forests, are through the Royal Forests with dogs is banned.47 granted to ecclesiastics, nobles, freeholders, and all in our Ecclesiastic and barons crossing a forest may take realm (omnes de regno nostro), in short to everyone. Everyone

48. Id. 38. Magna Carta ch. 20 (1217), in Magraw app. G, at 417. 49. Id. 39. Id. ch. 29, in Magraw app. G, at 417. 50. Id. 40. Robinson, supra note 7, at 335. 51. Id. 41. Id. at 343. 52. Id. at 342-43. 42. Id. at 341. 53. Id. at 342. 43. Id. 54. Id. at 343. 44. Id. 55. Id. 45. Id. at 343. 56. See id. at 344 (“Te open-ended provision of chapter 17 in the Forest Charter 46. Id. at 342. . . . allowed future generations to elaborate and evolve new defnitions of these 47. Id. liberties and shared rights.”). Winter 2020 THE PUBLIC TRUST DOCTRINE IN THE 21ST CENTURY 87 is also obliged to observe the liberties and customs granted a legendary source of great oak timbers, which were used to in the Forest Charter.57 build the Tower of London and ships for Britain’s navy and Te Forest Charter concludes with this timeless grant merchant marine. Iron was mined there since Roman times. of “liberties of the forest” for all, forever. Tis guaran- Additionally, charcoal was produced, coal was mined,65 tee reads like a 20th century Universal Declaration of and tanneries were operated in the Forest of Dean.66 When Human Rights.58 the Stuart Kings sold Crown lands and timber,67 people in Te public in 1217 and the following centuries knew that neighboring parishes simply extended their customary prac- the liberties of the forest were as important as the rule of law. tices. If trees were felled, then locals would graze their sheep In 1217, most could not read. Scribes made copies of the For- and claim pasturage. In exchange for payments, the Crown est Charter by hand, which were distributed to every county granted free miners their own self-government in the For- in England and read aloud in town squares and churches. est of Dean in the 14th century, and those rights are still Tis happened repeatedly, roughly thirty-two times over two exercised.68 Anyone born in the hundred of St. Briavels (the centuries. All sectors of society came to revere this “sacred pre-Norman area which encompasses the Forest of Dean) charter,” the companion to Magna Carta. can still run sheep on the forest or become a free miner,69 Over the centuries since 1217, a public expectation, or although, for economic reasons, this is less common now.70 norm, has emerged. Laws could—and should—protect the In 1631, the government erected fences to close of what public’s interest in natural places. By the 19th century, Parlia- was once open land. In response, local people revolted by tear- ment enacted legislation to protect England’s remnant Royal ing down these fences. In 1640, the Crown sold the Forest of Forests for the people. Te metes and bounds of share land- Dean to make money and transfer troublesome Forest Law scapes are known and legally protected. Te evolution of this duties to a local lord of the new manor.71 Sir John Winter’s environmental norm, a right that governments must observe, clear-cutting of trees for timber and enclosures infuriated the is illustrated by the histories of most Royal Forests in Eng- public, prompting the Crown to repossess the Forest of Dean land. Parliament reconstituted the Verderers to defend public in 1640. Under Oliver Cromwell’s Parliamentary rule, the interests in the New Forest and Epping Forest. In Ashdown, replanting of oaks and beeches began for the frst time. After Parliament established comparable stewardship roles. In the Cromwell’s demise, Winter regained control and exploited Forest of Dean, Parliament elected to perpetuate the Verder- the timber to such an extent that in 1668, Parliament retook ers and the Court of Attachment, which has convened since the Forest of Dean and enacted an act for the increase and the 12th century. Te Verderers in Dean are elected for life. preservation of the timber in the Forest of Dean.72 Te Dean When one dies, the Crown directs the Sherif to hold a spe- Forest (Reaforestation) Act 1668 set up six districts of Forest cial election. Te Dean Verderers’ authority is derived from Keepers, authorizing construction of Speech House in the custom, as well as statute.59 middle of the Forest.73 Between 1616 and 1855, the Forest of Dean supplied tim- B. Royal Forests: The Forest of Dean ber to the Navy, supervised by the Crown’s Ofce of Woods, by shipping 100,000 tons of oak to naval shipyards. To Like all of England, people have shaped the landscape since sustain this demand, in 1808 the Ofce of Woods imple- 6,000 B.C. Te Roman and Saxon periods established land mented a plan to plant 3,000 acorns per acre with enclosures. uses, some of which persist to this day. Norman governance Because it takes 100 years to produce good timber for ship and Royal Forests are the foundation of modern land trust building and steel and steam replaced wood and sails, many doctrine.60 King William’s Domesday Book of 1086 records oaks thrived. However, the enclosures did not sit well with the Forest of Dean, which persists today among the frst local residents. In 1831, the anti-enclosure movement tore twenty-fve Royal Forests.61 Te Forest of Dean is the only down fences, and the Crown sent the Royal Monmouthshire place where the Forest Charter is still allowed to govern.62 Militia and Tird Dragoons to quell the riots. Yet, in 1898, Te Verderers Court still convenes four times a year, as it has riots over enclosures recurred. since the 12th century.63 Te Verderers have functioned to oversee Forest Law in Te Forest of Dean, located between the Severn River and the Forest of Dean since the 13th century. A “regard” was Estuary and Wales, encompasses the Wye River Valley.64 It is held in 1282 to sort out who held lawful uses. Verderers met at the Norman castle of St. Briavels. In 1338, the Verderers 57. Id. at 343. convened at Kensley House, near the center of the Forest on a 58. G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, Roman road. Because the Forest of Dean supplied timber for 1948). 59. Cyril Hart, The Verderers and Forest Laws of Dean (2d ed. 2005). 60. Judith A. Green, Forest Laws in England and Normandy in the Twelfth Century, 65. Stock, supra note 63. 86 Hist. Res. 416 (2013). 66. Baggs et al., supra note 64. 61. N.D.G. James, A History of English Forestry app. II (1981). 67. Id. 62. Robinson, supra note 7, at 354-55. 68. Mining, Forest of Dean Loc. Hist. Soc’y, https://www.forestofdeanhistory. 63. David Stock, Te Ancient Protectors of England’s Forests, BBC (Nov. 18, 2015), org.uk [https://perma.cc/4A6Q-XRZP] (last visited Oct. 31, 2019). http://www.bbc.com/travel/story/20151110-the-ancient-protectors-of-eng- 69. Stock, supra note 63. lands-forests [https://perma.cc/3SQ4-Z9F5]. 70. Forest of Dean Loc. Hist. Soc’y, supra note 68. 64. A.P. Baggs et al., Forest of Dean: Introduction, British History Online 71. See Robinson, supra note 7, at 350. (1996), http://www.british-history.ac.uk/vch/glos/vol5/pp285-294 [https:// 72. Dean Forest (Reaforestation) Act (1668), 20 Car. 2, ch. 3 (Eng.). perma.cc/85R7-686W]. 73. See id. 88 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 the navy, the Spanish Armada was ordered in 1588 to destroy government in the 1970s sought to sell of Crown lands for Dean to disrupt English ship building. In the Dean Forest revenues to balance the budget without new taxes, inhabit- (Reaforestation) Act of 1668, Parliament launched the pref- ants of the Forest of Dean organized and in the Forestry Act erence of sustaining timber resources, as did the Dean and 198182 won a remarkable victory in Parliament. Lord Clem- New Forests Act 1808.74 In 1669, inhabitants of the Forest of ent John McNair championed the interests of the inhabitants Dean petitioned the English Treasury “that the keeping and of the Forest of Dean. Parliament barred the government holding of forest courts pursuant to the Act 1668” required from disposing of any forest lands in the Forest of Dean. Te a proper court room “within the liberty of the forest.”75 Forestry Commission’s Byelaws of 1982 provide that “noth- “Speech House” was then built in 1675, where the Verderers ing in these byelaws shall prejudice or be in derogation of any Court still convene. Commoners repeatedly expanded their right, power, or duty vested in, or imposed on the Verderers uses in Royal Forests, and the Crown pressed back with the of the Forest of Dean.”83 Dean Forest (Encroachments) Acts 1838 and 1844. Te Ver- Contemporary stewardship in the Forest of Dean is not derers’ authority to oversee the Forest of Dean was reafrmed easy. Hoof and mouth disease wiped out the sheep popula- in the Dean Forest (Amendment) Act 1861,76 and again in tion, which makes a modest come-back under British agri- the Dean Forest Act 1906.77 cultural supervision. Without sheep or ponies to eat bracken, By the 1880s, with the convenience of rail travel from it expands. Feral boars roam the woods, preventing pannage anywhere in Britain to Gloucester, and thence to most parts and rooting up lands so much that they interfere with hiking. of the Forest of Dean, tourism became a prime “liberty of Te Forestry lands are well managed, with timber and recre- the forest.” John Bellow’s guidebook, A Week’s Holiday in ation sharing the woods. Te deer are fewer and automobiles the Forest of Dean, was popular in 1880 and in print con- increase with tourism. A dynamic, nestled, and polycentric tinuously thereafter.78 Te remnant Royal Forest fourished management system has become stable and shown that it has in the late Victorian period, as public aversion to the abuses capacity to evolve to meet new conditions. of industrialization gave rise to the romantic lake poets and Te foundation for public rights in former Royal Forests, naturalist and nature conservation movements in Great Brit- and the continuing vitality of Verderers, is in the legitimiza- ain. Bellows had toured Walden Pond with Senator George tion of the usufruct rights exercised in the Crown statutory F. Hoar of Massachusetts, who in turn toured the Forest of forest. When the King in the Forest Charter ceded rights Dean with Bellows in the late 1880s.79 Rambling and walk- to those who customarily held them, and in the future to ing in, touring, or studying nature and appreciating the natu- all others, the Crown had guaranteed these rights and was ral landscape became a “liberty of the forest.” It was one that bound to respect them. Te customary rights preceded the co-existed with tree farming and the timber industry,80 as establishment of the Royal Forests, evolving into new sys- well as with local agriculture. Multiple uses were the expec- tems enacted by Parliament. By vesting and recognizing tation in the Crown’s forest lands. Over time, the metes and fundamental rights in the public, successive governments bounds were set. In the Forest of Dean, iron border survey found themselves bound by these basic rights. Troughout marks today still mark the bounds, bearing the seal of Vic- the struggles to accommodate competing rights and inter- toria and Albert. ests, patterns of cooperation emerged, with institutions like In 1919, Parliament established the Forestry Commission the Verderers to advance cooperation. to replace the Ofce of Woods. Te Forest of Dean became a source of timber from conifers, and still is. However, rec- C. Interpretation of Elinor Ostrom reational uses of the Forest of Dean were also increasingly popular. In 1938, responding to popular interest in tourism, Te Forest Charter was both the frst environmental stat- public access, and landscape conservation, the Forestry Com- ute and the frst declaration of environmental rights; it pro- mission established the Forest of Dean as the frst National claimed the “liberties of the forest.” It also illustrated what Forest Park in England. Te Forest of Dean’s special status Elinor Ostrom identifed as systems governing the commons was confrmed when Parliament abolished the remnant For- through institutions for collective action. Te overlapping est Charter provisions and Forest Law in the Wild Creatures uses of the King’s “Royal Forests,” were competing as well as and Forest Laws Act of 1971.81 Parliament expressly provided complementary. Tey covered one-third of England’s land- that Verderes in the Forest of Dean shall continue and no scapes. By learning—often with great difculty—to accom- existing right of common or pannage operating in the Forest modate each other, these users of many of England’s Royal Law shall be afected. Verderers continue to be elected and Forests produced cooperative regimes for managing natural oversee liberties of the forest in the Forest of Dean. When the resources that are commonly shared. In Ostom’s terminology, the Royal Forests of medieval England are a “common 74. Dean and New Forests Act (1808), 48 Geo. 3, ch. 72 (Eng.). pool resource.” 75. Hart, supra note 59, at 110-17. 76. Dean Forest Act (1861), 24 & 25 Vict., c. 40 (Eng.). When resources were necessarily shared together, coop- 77. Dean Forest Act (1906), 6 Edw. 7, ch. cxix (Eng.). eration was encouraged. When the Crown sold of forest 78. John Bellows, A Week’s Holiday in the Forest of Dean (2013). 79. Ian Standing, Introduction to John Bellows, A Week’s Holiday in the For- est of Dean (2013). 82. Forestry Act 1981, c. 39 (Eng.). 80. H.L. Edlin, Forestry and Woodland Life (1947). 83. Forestry Commission Byelaws 1982, SI 1982/648, art. 3, ¶ 4 (Eng.) (promul- 81. Wild Creatures and Forest Laws Act 1971, c. 47 (Eng.). gated under authority granted by the §§ 46-48 of the Forestry Act of 1967). Winter 2020 THE PUBLIC TRUST DOCTRINE IN THE 21ST CENTURY 89 resources, allowing private property to supplant the common free-range cattle, sheep, and horses in these places, alongside lands, cooperation was diminished. When enclosures ousted new rights to ramble and recreate and the perils of the auto- access for continued exercise of usufructs, conficts arose. mobile. Te saga of the Forest of Dean illustrates Ostom’s Over 800 years, the extent of England’s shared resources theories about how humans manage and conserve common diminished in size, which continues to this day. While com- pool resources. mon pool farmlands are all but gone, common pool resources Te countryside in medieval England was the economic in once Royal Forests persist. foundation of society, the source of all sustenance, energy, Consider the farmlands: Te medieval farming regime and economic activity. Royal Forests were more than woods. of open felds, with plots rotating and allocated annually by In 1079, William the Conqueror had established Te New inspection of a Field Jury of thirteen men, still operates in the Forest, which thrives south of London, near Southampton. Midlands in Laxton. A charter granted in 1232 by the lord of He brought deer from France and raised them in enclosures, this manor conveyed authority to free and bond men to man- to be harvested as needed or hunted for royal pleasure. Deer age the open felds for farming. Te boundary allocations and boar were venison, which was exclusively the King’s. of the Field Jury are confrmed by the Court Leet, which Eventually more than 160 Royal Forests were designated, of in December convenes in the Dovecote Inn to swear in the which 143 remain, most still with commoners’ rights. Tey new jury, calls a roll of all local residents required to attend, encompass moors, wetlands, felds and associated fora and confrms fnes for any violations of the allocated lands, and fauna, along with roads, tin and iron mines, mills, fshponds, deliberates on other matters. In most manor lands, this pat- farms, and other uses. Tis swath of countryside, covering tern of cooperative management was supplanted in the 18th one-third of England, was distinct from other places because and 19th centuries by enclosures and sale of plots to indi- it was governed by both the Common Law and by the King’s vidual farmers to facilitate sale of lands and augment agricul- Forest Law.84 Forest Law was administered by a pervasive tural production. In most manors across England, the open regime of forest ofcers. Unjust demands for taxes from the felds commons disappeared. King and abusive behavior by forest ofcers led to the power- However, where the manors were established by the grant ful demands for the Forest Charter. of Royal Forests, as in Ashdown Forest in Sussex, open lands While a number of Royal Forests were converted to other persisted and commoners exercised their ancestral rights to land uses, others persist for several reasons: pasture cows and horses and harvest wood and plants. In the 19th century, these vast open spaces were prized for their (1) Tey are places with well-defned boundar- scenic and recreational values, as well as for their pastur- ies, whose delineation was fought over many ing animals and gathering wood. In Ashdown, Parliament times. Tose with customary rights repeatedly established Conservators to manage the open landscapes. demanded “perambulations” of forest borders. You know Ashdown today if you have seen the flm Goodbye (2) Tere were customary rules for how entitled per- Christopher Robin, because all the flm’s forest scenes are of sons were to exercise their right to use a natural Ashdown. By Milne’s day, the shared uses of Ashdown were resource in the forest, measured by what an indi- confrmed and Pooh Bear’s landscape could be celebrated. vidual personally could manage to do. For more than eight centuries, each Royal Forest has either produced a stable conservation regime for these natural areas, (3) Te Crown and commoners struggled to assert with various rights exercised over shared resources, or has their rights against each other, with Verderers not. Te Royal Forests are much diminished in size but many Courts for each forest mediating conficts. Par- persist. Te city of London saved the Forest of Waltham Abby liament fnally established modern stewardship in Essex from creeping enclosures and privatization in the regimes in the 19th and early 20th centuries, and 19th century. It is now conserved by London and is accessible has only formally registered commoners’ right by the Underground as Epping Forest. You know Sherwood since the 1970s. Forest from Howard Pyle’s Te Merry Adventures of Robin (4) Verderers, and periodic “regards” or inspections Hood (1883) and Dartmoor Forest from Sir Arthur Conan held to monitor exercise of rights, and “perambu- Doyle’s Te Hound of the Baskervilles (1901-02). Public rights lations” reset borders and rights of access. Con- of access and conservation management exist in some sixty temporary maps emerged, confrming the Royal Royal Forests across England. Forests’ boundaries. Te Forest of Dean follows the aforementioned on a paral- (5) Te King meted out forest justice in special lel pathway. Dean is familiar to contemporaries of J.K. Rowl- courts, or Eyres, which were separate from the ing’s novels. Te “Deathly Hallows, Part I” motion picture common law courts. Abuses of the King’s Forest flm features Coppett Hill, where Hermione tells Harry that Law led to protests and obliged the King to grant the snowy feld they traverse is in the Forest of Dean. Rowl- the Forest Charter. ing grew up as a child in the Forest of Dean. Among all these surviving forests, the Forest Charter 84. Elements of Forest Law existed before 1066 (e.g., Canute’s Law of the Royal played a role in legitimizing diverse customary claims to Forest of 1016). After King William I established Royal Forests, he, William II, forest liberties. Commoners with ancient claims still run Henry I and II elaborated the Norman Forest Laws and associated administrative regimes. (6) Patterns of accepted customary uses emerged, not III. Conclusion unlike the self-government of Laxton. For example, King John granted charters to tin miners in Tere is merit, then, in accepting Ostrom’s invitation to Dartmoor for self-governance. When customary examine concepts of fundamental rights, such as justice uses were arbitrarily curtailed, protests resulted and the rule of law, in analyzing stewardship of the com- and new compromises reached ad hoc. mons. Te history of the Forest Charter illustrates how rights (7) Commoners now have associations to assert their matter. Analysis of the Forest Charter and England’s Royal rights, but in an era before non-governmental Forests expand Ostrom’s fndings. She did not ask how fun- intrusion, they did so through Verderers Courts damental rights, as opposed to rules, operate. Fundamental and other means. rights, such as universal human rights, serve to legitimize an individual’s claims. (8) Te Royal Forests were nestled enterprises in Te United Nations General Assembly has recognized which customary local uses at the county level, the right to water as a basic human right. Holders of these or by adjacent manors, monasteries, and vil- rights have a superior moral claim, which is shared with oth- lages, were accommodated by the King in his ers. Since the 1992 Earth Summit in Rio de Janeiro, the role governance at the national level. Added to these or the right to the environment has become a global norm. English systems are acts of parliament for United Today, more than 174 nations provide this right in their Kingdom laws and international treaties. constitutions. More than 1,500 environmental courts now Tese eight aspects illustrate the Design Principles that Eli- enforce environmental laws in approximately 50 nations. nor Ostrom identifed for robust socio-ecological systems.85 Earth’s natural systems are shared in common by us all. If My study of England’s Royal Forests confrms Ostrom’s we can learn how the Right to the Environment can become research on governing commons,86 for which she was awarded as efective as Human Rights have become since 1948, then the Nobel Prize in economics. Ostrom called for the social we can manage to sustain our shared resources, even if we sciences to welcome studies by other disciplines about the add an additional two billion inhabitants to the planet. Te commons, including law.87 On accepting the Nobel Prize, ultimate shared resource is Earth’s atmosphere, and the Paris she said: “We need to ask how diverse polycentric institu- Agreement of 2015 is but one set of rules regarding its use. tions help or hinder the innovativeness, learning, adapting, In September 2017, France invited the UN General Assem- trustworthiness, levels of cooperation of participants, and bly to adopt a Global Pact for the Environment, which can recognize the Right to the Environment and several corollary the achievement of more efective, equitable, and sustainable 89 outcomes at multiple scales.”88 principles. If we can underpin these rules with the Right to the Environment, we can give them enhanced legitimacy and enforce them on a global scale.

85. Elinor Ostrom, Understanding Institutional Diversity 258-76 (2005). 86. See generally Elinor Ostrom, Governing the Commons (1990). 87. Id. at 216. 89. See G.A. Res. 72/277 (May 10, 2018); G.A. Res. 73/333 (Sept. 5, 2019). 88. Elinor Ostrom, Nobel Prize Lecture: Beyond Markets and States: Polycentric See generally Global Pact for the Environment, World Comm’n on Envtl. L., Governance of Complex Economic Systems (Dec. 8, 2009) (transcript avail- https://www.iucn.org/commissions/world-commission-environmental-law/ able at https://www.nobelprize.org/prizes/economic-sciences/2009/ostrom/ wcel-resources/global-pact-environment [https://perma.cc/XS6U-PU2P] (last lecture). visited Oct. 31, 2019).

90 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 NOTES In the Eye of a Hurricane There Is Quiet: Puerto Rico’s Fight for Aid After Hurricane Maria

Aja Espinosa*

I. Introduction power lines, contaminated water supplies, and damaged crops created environmental and medical crises.4 Two weeks Early morning on August 29, 2005, Hurricane Katrina after Maria, the United States Navy deployed the 894-foot (Katrina), a Category 3 hurricane and the worst natural disas- hospital ship, Comfort, to aid in the medical crisis.5 Tis ter in United States’ history, struck the Gulf Coast.1 With grandiose gesture was soon realized to be just that—a ges- winds of 100–140 miles per hour (mph), Katrina’s strength ture. Te Comfort was anchored in the harbor of San Juan destroyed the levees and fooded New Orleans causing resi- and the crew was unaware of the reality for Puerto Ricans.6 dents to evacuate, seek shelter in the Superdome or wait Hindered by complex referral procedures, bureaucracy, and stranded on rooftops praying for rescue. But more than the politics, the Comfort’s eforts to alleviate a medical crisis immediate damage, it was the federal government’s delayed were underwhelming, admitting only 290 patients during response to help overwhelmed local frst-responders and its deployment.7 On November 15, the Comfort left San displaced residents that caused a catastrophe.2 As the levees Juan to restock at sea.8 Ordered home without warning on broke, the federal government’s lack of preparedness was only November 17, 2017, the Comfort never returned, abandon- beginning to become apparent. Katrina’s devastation forced ing Puerto Ricans in their time of need.9 the United States to refect on its disaster aid programs. A Te story of the Comfort is a microcosm for the U.S. gov- few years later, faced with the threat of Hurricane Sandy, the ernment’s lack of preparation, urgency, and inability to con- Obama Administration leapt into action, leading the coun- sider the specifc needs of Puerto Rico in the wake of Maria. try to believe the federal government had learned from the For Katrina, the Achilles heel was the failed levees; for Puerto mistakes made after Katrina. However, in the wake of the Rico, it was the power lines. Six months after Maria, fve destruction left by Hurricane Maria (Maria) in Puerto Rico, percent of Puerto Ricans were still without power, whereas it is evident from the federal government’s lack of action and Floridians and Texans received immediate and extensive preparation, that it did not take heed of the lessons learned assistance from the federal government after Hurricane Irma from Katrina. (Irma) and Hurricane Harvey (Harvey), respectively.10 Failed Maria’s arrival on the island of Puerto Rico on Septem- emergency eforts and an improper response to the natural ber 20, 2017, was catastrophic.3 Crushed buildings, downed disaster in Puerto Rico demonstrate the unequal treatment of * J.D., Te George Washington University Law School; B.A., Temple Americans under the Robert T. Staford Disaster and Emer- University. Assistant District Attorney, Bronx County, NY. Te author would like to thank the editorial staf of the George Washington Journal what-happened-in-puerto-rico-a-timeline-of-hurricane-maria/541956/. of Energy & Environmental Law, the Environmental Law Institute, 4. Laignee Barron, U.S. Response Eforts in Puerto Rico Aren’t Good Enough, U.N. Experts Say, Time (Oct. 31, 2017), http://time.com/5003470/united-nations- and Jay Calhoun for their help in preparing this Note for publication. puerto-rico-hurricane-response [https://perma.cc/JW76-3YUP]. 5. See Frances Robles & Sheri Fink, On a Hospital Ship, Triage Ran Aground, N.Y. 1. Ross C. Paolino, Is It Safe to Chevron “Two-Step” in a Hurricane? A Critical Times, Dec. 12, 2017, at A16. Examination of How Expanding the Government’s Role in Disaster Will Only 6. See id. Exacerbate the Damage, 76 Geo. Wash. L. Rev. 1393, 1393 (2008); see Hurri- 7. See id. cane Katrina, History, http://www.history.com/topics/hurricane-katrina (last 8. See id. visited Mar. 9, 2018). 9. See id. 2. Hurricane Katrina, History, http://www.history.com/topics/hurricane-ka- 10. See Danny Vinik, How Trump Favored Texas Over Puerto Rico, Politico trina (last visited Mar. 9, 2018). (Mar. 27, 2018, 5:00 AM), https://www.politico.com/story/2018/03/27/ 3. Robinson Meyer, What’s Happening With the Relief Efort in Puerto Rico?, At- donald-trump-fema-hurricane-maria-response-480557 [https://perma.cc/ lantic (Oct. 4, 2017), https://www.theatlantic.com/science/archive/2017/10/ FKE2-TU7Z].

Winter 2020 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW 91 92 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 gency Assistance Act (Staford Act).11 Under the Staford allowing toxins to leach into soil and drinking water.18 In Act, action taken by the federal government in response to a addition to the ash pile in Guayama, coal ash is deposited natural disaster is at the discretion of the president.12 Due to throughout southern Puerto Rican landflls.19 Many of those the discretionary nature of granting disaster relief under the landflls are already overfowing and pose a serious risk of Staford Act, judicial review of agency action is limited.13 To toxics leaching from the coal ash due to the lack of chemi- eliminate disparate impact and allow for judicial review, the cal and biological lining.20 Additionally, Puerto Rico houses Staford Act should be amended to limit the Federal Emer- twenty-three Superfund sites that may lead to contamina- gency Management Agency’s (FEMA’s) discretion granting tion of the soil and ground water.21 In 2015, Puerto Rico had permanent relief to communities after the declaration of a the highest rate of drinking water violations in the United major disaster. States: 99.5 percent of Puerto Rico’s population was served Tis Note begins in Part II by examining Maria’s impact by community water systems in violation of the Safe Drink- on Puerto Rico’s preexisting environmental crisis. Part III ing Water Act and as a result 69.4 percent of the popula- will consider the Staford Act; it will explain the procedure of tion was served by water sources violating the Safe Drinking granting relief to U.S. jurisdictions, types of relief available, Water Act’s health standards.22 In addition to high levels of and the process of judicial review for agency actions grant- water contamination, Puerto Rico’s electric grid, powered by ing relief. Te primary focus of Part III will be on the Public expensive diesel, was in rapid decline prior to Maria.23 Tese Assistance Program and the permanent work relief provided are just some examples of the pre-Maria environmental and under the Staford Act. Next, Part IV will discuss the inad- energy crisises awaiting Maria as it made landfall. equacies of the Staford Act and judicial review to protect against disparate treatment after major disasters, specifcally B. Hurricane Maria’s Destructive Path aid discretion and review of agency action under Chevron U.S.A., Inc. v. Natural Resources Defense Council.14 Finally, On September 20, 2017, Maria, the ffth strongest storm in Part V will propose amending the Staford Act to provide history to strike the United States, devastated the small island more accountability and adequate judicial review when it of Puerto Rico, exacerbating an already dire situation.24 Des- comes to FEMA’s distribution of aid. ignated a Category 5 hurricane, winds reached up to 165 mph as it approached the island.25 Only a week earlier, Puerto II. Paradise Lost: Puerto Rico’s Rico was spared from the full wrath of Irma, which devas- Environmental Crisis Pre- and tated the Florida Keys and other Caribbean islands.26 It was Post-Maria immediately clear that Maria was diferent. Maria destroyed homes, roads, bridges, and left the majority of Puerto Ricans 27 Maria did not hit Puerto Rico in a vacuum. Prior to Maria, without electricity. Te storm destroyed eighty-fve percent of the island’s already failing electrical grid and electrical dis- Puerto Rico was already facing an environmental and energy 28 crisis.15 Tis section describes the environmental crisis faced tribution centers. Puerto Rico’s electrical grid would not be fully operational until August 14, 2018, eleven months after by Puerto Ricans before Maria, discusses Maria’s impact on 29 Puerto Rico, and compares the federal government’s response Maria made landfall. to hurricanes that made landfall in the continental United 18. See id. States within the same season. 19. See id. 20. See Kyle Plantz, Puerto Rico’s Environmental Crisis Tat No One Is Talking About, Inside Sources (Aug. 24, 2016), https://www.insidesources.com/puer- A. Hurricane Maria: One of Many Crises to-ricos-environmental-crisis-that-no-one-is-talking-about/ [https://perma.cc/ XX9J-532C]; Atkin, supra note 15. Before Maria made landfall, Puerto Rico was plagued with a 21. A Superfund site is land that has been contaminated by toxic waste, and poses 16 a risk to human health or the environment. TOXMAP FAQ, TOXMAP FAQ, massive environmental crisis. One example is a fve-stories- NIH U.S. Nat’l Libr. of Med. (Mar. 9, 2018), https://toxmap.nlm.nih.gov/ high pile of coal ash, which contains heavy metals like arsenic, toxmap/faq/2009/08/what-are-the-superfund-site-npl-statuses.html [https:// mercury, and chromium, sitting in the town of Guayama.17 perma.cc/36ZU-RXHA]; see Atkin, supra note 15. 22. See Nat. Res. Def. Council, Threats on Tap: Drinking Water Violations Te ash has long been a problem on windy days, but the in Puerto Rico (2017). coal ash creates an even greater human health risk when wet, 23. See Vann R. Newkirk II, Puerto Rico’s Environmental Catastrophe, Atlantic (Oct. 18, 2017), https://www.theatlantic.com/politics/archive/2017/10/ an-unsustainable-island/543207. 24. See Karl Vick, How the US Turned Its Back on Puerto Rico, Time (Sept. 28, 11. Robert T. Staford Disaster and Emergency Assistance Act, 42 U.S.C. 2017), http://time.com/4960647/us-turned-its-back-on-puerto-rico/ [https:// §§ 5121–5207 (2012). perma.cc/A6EG-HFYE]. 12. See id. 25. See Atkin, supra note 15. 13. See id. 26. See id. 14. 467 U.S. 837 (1984). 27. See Vick, supra note 24. 15. See Emily Atkin, Even Before Hurricane Maria, Puerto Rico Was Already in 28. See Richard Fausset & Frances Robles, Across Power-Starved Puerto Rico, Te Environmental Despair, Mother Jones (Sept. 20, 2017), http://www.moth- Groans of Generators Fill the Air, N.Y. Times, Oct. 8, 2017, at A21. erjones.com/environment/2017/09/climatedesk-now-hammered-by-hurri- 29. Alexia Fernández Campbell, It Took 11 Months to Restore Power to Puerto Rico cane-maria-puerto-rico-was-already-in-environmental-despair [https://perma. After Hurricane Maria. A Similar Crisis Could Happen Again, Vox (Aug. 15, cc/8YQD-2H7G]. 2018, 12:40 PM), https://www.vox.com/identities/2018/8/15/17692414/puer- 16. See id. to-rico-power-electricity-restored-hurricane-maria [https://perma.cc/V4HL- 17. See id. 78UK]. Winter 2020 IN THE EYE OF A HURRICANE THERE IS QUIET 93

Days after the storm hit Puerto Rico, Gov. Ricardo Ros- government’s failure to prepare for Maria’s landfall was just sello warned of the potentially imminent “humanitarian beginning to emerge. crisis.”30 A week after the hurricane, only eleven out of Puerto Rico’s sixty-nine hospitals had fuel or power.31 Puerto Ricans C. Puerto Ricans: The United States’ Second-Class waited for hours in lines not only for fuel, but also for food, Citizens48 supplies, and cash.32 Local ofcials struggled to acquire supplies proportionate to their populations in the aftermath of FEMA’s disparate treatment of Puerto Ricans after Maria is the storm.33 Lornna Soto, Mayor of Canovanns, received best illustrated by comparing Maria to Harvey in Texas and 10,000 meals for a population of 54,000.34 It took two weeks to Irma in Florida and South Carolina. Contempt for the for basic supplies to reach residents in San Juan and rural Puerto Rican recovery eforts was clear, evidenced through towns.35 On October 11, more than one-third of the Puerto President Donald Trump’s own words: “I hate to tell you, Rican population was still without drinking water.36 By Puerto Rico, but you’ve thrown our budget a little out of October 18, Puerto Ricans desperate for water were drinking whack, because we’ve spent a lot of money on Puerto Rico.”49 from contaminated Superfund sites.37 Instead of preparing the island with satellite phones, food, At this time, ofcials at FEMA reported supplying only water, and fuel and allowing ofcials to distribute supplies 200,000 meals per day to meet the needs of more than two before Maria destroyed Puerto Rico’s infrastructure, the million people.38 Te typical meal consisted of a hot dog, rice federal government did little to prepare.50 In the immediate and beans, and syrupy apricots.39 Families received only one aftermath President Trump went on a four-day golfng trip to two meal rations.40 Aida Nieves, a Puerto Rican resident, instead of organizing relief eforts,51 tweeting, “[Puerto Rico] received two meals to feed eight people in her household.41 want[s] everything to be done for them.”52 For many Puerto Ricans, the diference between having food Te Trump Administration’s disparate treatment of Puerto for their families and starvation was the eforts of Michelin- Ricans is best illustrated in the timing of the President’s visits starred Spanish chef, Jose Andres.42 Andres frst arrived on to impacted areas following Harvey, Irma, and Maria. After the island fve days after the storm and immediately began Harvey, President Trump made two visits on August 29 and cooking.43 Despite FEMA’s reminders that Andres lacked September 2—four and seven days, respectively, after the the experience to organize and distribute massive amounts of storm made landfall.53 After Irma, President Trump made food,44 Andres set up a network of kitchens, supply chains, one visit to Florida, four days after the storm landed.54 After and delivery services to supply more than 2.2 million warm Maria, President Trump made one visit to Puerto Rico, two meals between September 25, 2017, and October 30, 2017, weeks after the storm.55 amounting to roughly 130,000 meals a day.45 During that Congressmen from Florida, South Carolina, and Texas period, no other single organization, including government were able to exert political pressure in the U.S. Congress fol- agencies, had fed more people with fresh cooked food than lowing Harvey and Irma, demanding proper resources for Andres’ organization.46 Describing his motivation to help, each state.56 By contrast, Puerto Rico does not have voting Andres stated, “We only came here to try to help a few 47 48. Tis Note does not discuss the important political and social problems that thousand because nobody had a plan to feed Puerto Rico.” have plagued Puerto Rico for a century. From the time Puerto Rico became When Andres arrived on the island, the extent of the federal a territory, the U.S. Supreme Court’s decisions in the Insular Cases placed Puerto Ricans in a perpetual state of inferiority. See Pedro A. Malavet, Puerto Rico: Cultural Nation, American Colony, 6 Mich. J. Race & L. 1 (2000); see 30. See Vick, supra note 24. also Efren Rivera Ramos, Te Legal Construction of American Colonialism: Te 31. Christopher Flavelle, General Who Turned Around Katrina Response Criticizes Insular Cases (1901-1922), 65 Rev. Jur. U.P.R. 225 (1996). Although the Puerto Rico Eforts, Bloomberg (Sept. 28, 2017), https://www.bloomberg. 1917 Jones Act granted citizenship to Puerto Ricans, they remain second-class com/news/articles/2017-09-28/general-who-led-katrina-response-criticizes- citizens. See Merchant Marine Act of 1920, 46 U.S.C. §§ 861–889 (1920). puerto-rico-eforts [https://perma.cc/GY4V-VD9P]. Beginning in the 1950s, the U.S. government violently suppressed the Nation- 32. See Robles & Fink, supra note 5. alist Party of Puerto Rico’s movement for independence. See Nelson A. Denis, 33. See Jack Healy et al., In Puerto Rico, Aid Moves Slowly and Tenuously, N.Y. War Against All Puerto Ricans: Revolution and Terror in America’s Times, Oct. 4, 2017, at A17. Colony (2015); Oscar Lopez Rivera, Between Torture and Resistance 34. Id. (Luis Nieve Falcon ed., 2013). Although Commonwealth status was conferred 35. See id. at A1. on Puerto Rico in 1952, the U.S. Congress continues to unilaterally make 36. Richard Wolfe, Puerto Rico: US Ofcials Privately Acknowledge Serious decisions about the future of Puerto Rico based on the Territory Clause. See Food Shortage, Guardian (Oct. 11, 2017), https://www.theguardian.com/ Puerto Rico In Crisis: Timeline, Centro: Ctr. for Puerto Rican Stud- world/2017/oct/11/puerto-rico-food-shortage-hurricane-maria [https://per- ies, Hunter College 3 (2017); see also U.S. Const. art. IV, § 3, cl. 2. ma.cc/KNZ3-JL7B]. 49. See Tomas Kaplan & Mary Williams Walsh, Administration Asks Congress for 37. See Newkirk, supra note 23. $29 Billion for Hurricane Relief Eforts, N.Y. Times, Oct. 5, 2017, at A18. 38. See Wolfe, supra note 36. 50. Eric Levitz, Te White House’s Failure in Puerto Rico Was Even Worse Tan We 39. See Healy et al., supra note 33. Knew, N.Y. Mag. (Feb. 6, 2018), http://nymag.com/intelligencer/2018/02/ 40. See id. trumps-failure-in-puerto-rico-was-even-worse-than-we-knew.html. 41. See id. 51. See id. 42. See Kim Severson, Jose Andres Fed Puerto Rico, and May Change How Aid Is 52. See Vinik, supra note 10. Te President at no time stated that Texas or Florida Given, N.Y. Times (Oct. 30, 2017), https://www.nytimes.com/2017/10/30/ asked for “everything to be done for them.” dining/jose-andres-puerto-rico.html. 53. See Eric Levenson, 3 Storms, 3 Responses: Comparing Harvey, Irma, and Ma- 43. See id. ria, CNN (Sept. 27, 2017, 12:44 PM), http://www.cnn.com/2017/09/26/us/ 44. See id. response-harvey-irma-maria/index.html [https://perma.cc/7WSM-8GYN]. 45. See id. 54. See id. 46. See id. 55. See id. 47. See id. 56. See id. 94 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 representation in Congress, making presidential leadership thousands of technicians arrive to restore power lines, only and advocacy crucial to accessing swift and efective disas- a few hundred arrived in Puerto Rico. To the dismay of the ter relief.57 Without congressional power or substantial sup- Puerto Rican people, the small number of workers present port from the President, it was not surprising that eforts in on the island installed generators rather than fxing power Puerto Rico lagged behind recovery eforts and aid in Flor- lines.70 A month after Maria, the U.S. Army Corps of Engi- ida, Texas, and South Carolina. neers estimated that an additional 2,000 electric technicians On August 25, 2017, Harvey hit Texas.58 FEMA, along were needed.71 Comparing Maria to Katrina, many disas- with other agencies, had supplies and 31,000 personnel situ- ter response experts believe FEMA failed to utilize the full ated in Texas before the storm made landfall.59 Within days authority it gained after Katrina, namely the ability to send of the storm, three million meals and three million liters of supplies and help with the emergency response even before water were distributed to survivors.60 Texas received a major FEMA receives a request from the local ofcials.72 disaster declaration the same day Harvey made landfall.61 On October 13, 2017, seven U.S. senators73 wrote a let- Following the declaration, Texas was granted full public ter to FEMA Administrator Brock Long urging him to assistance—funding for emergency measures and perma- grant full public assistance aid to Puerto Rico by approv- nent rebuilding—on September 4, 2017, ten days after the ing permanent rebuilding funds.74 Te letter stated, “Te storm.62 On September 14, Texas Gov. Greg Abbot reported scale of the damage is clear, and Puerto Rico should not have that “the risk to lives has now been reduced, if not completely to wait any longer for this assistance to be granted so they eliminated,” because of FEMA’s efective response after the can begin the process of rebuilding their infrastructure and hurricane.63 As the situation calmed in Texas, preparations communities.”75 Despite the apparent need, Puerto Rico was for Irma were underway. not authorized to receive full public assistance until Novem- On September 10, 2017, Irma made landfall in Florida.64 ber 2, 2017, forty-three days after the storm.76 Similar to emergency response eforts after Harvey, there During that time, alarm from the federal government’s were more than 40,000 federal personnel in place by Septem- slow response was growing. Te world watched as the federal ber 14, 2017, at which time FEMA had supplied 6.6 million government failed to provide aid to Puerto Ricans. On Octo- meals and 4.7 million liters of water to states in the South- ber 30, 2017, the United Nations condemned the emergency east.65 Florida received a major disaster declaration the same response to Maria.77 Special Rapporteur on the Right to day Irma made landfall.66 Following the declaration, sixteen Housing, Leilani Farha stated, “We can’t fail to note the dis- counties in Florida, like Texas after Harvey, were granted full similar urgency and priority given to the emergency response public assistance on September 13, 2017, three days after the in Puerto Rico, compared to the U.S. states afected by hur- storm.67 Additional counties in Florida received full public ricanes in recent months.”78 Citing the economic and fnan- assistance on September 21, 2017, and October 6, 2017.68 As cial crisis and austerity policies already undermining Puerto the urgency in Florida subsided, the preparations for Maria Rico’s human rights, United Nations human rights experts were not as robust as they were for Harvey and Irma. called on the United States to remove regulatory and fnan- By contrast only 10,000 federal personnel had arrived on cial barriers to rebuilding Puerto Rico: September 25, 2017, fve days after Maria made landfall in All reconstruction eforts should be guided by interna- Puerto Rico.69 Distinct from Texas and Florida, which had tional human rights standards, ensuring that people can rebuild where they have lived and close to their communi- 57. See Vinik, supra note 10. ties. Reconstruction should aim to increase the resilience of 58. See Levenson, supra note 53. 59. See id. Puerto Rico’s infrastructure, housing and hospitals against 79 60. See id. future natural disasters. 61. See Fed. Emergency Mgmt. Agency, DR-4332, Texas Hurricane Harvey (2017), https://www.fema.gov/disaster/4332 [https://perma.cc/D3GU-8JRA]. 62. See Fed. Emergency Mgmt. Agency, FEMA-4332-DR, Amendment No. 5 (2017), https://www.fema.gov/disaster/notices/amendment-no-5 [https:// 70. See id. perma.cc/K2VD-4SQA]. 71. See Deborah Acosta & Frances Robles, Month After a Storm, Puerto Rico Awaits 63. See Vinik, supra note 10. Power, N.Y. Times, Oct. 20, 2017, at A1. 64. Levenson, supra note 53. 72. See Vinik, supra note 10. 65. Id. 73. Chuck Schumer, Bill Nelson, Maria Cantwell, Kristen Gillibrand, Christopher 66. See Fed. Emergency Mgmt. Agency, DR-4337, Florida Hurricane Irma Murphy, Robert Menendez, and Cory Booker. (2017), https://www.fema.gov/disaster/4337 [https://perma.cc/TSZ9-6JBK]. 74. See Letter from Chuck Schumer, U.S. Senator et al. to Brock Long, Admin- 67. See Fed. Emergency Mgmt. Agency, FEMA-4337-DR, Amendment No. istrator, Fed. Emergency Mgmt. Agency (Oct. 13, 2017), https://www.demo- 5 (2017), https://www.fema.gov/disaster/notices/amendment-no-5-0 [https:// crats.senate.gov/imo/media/doc/PR%20Categories%20C-G%20ltr%2010- perma.cc/294U-UTFG]. 13-17.pdf [https://perma.cc/9SUN-8XC9]. 68. See Fed. Emergency Mgmt. Agency, DR-4337-FL NR 017, 21 Addi- 75. Id. tional Counties Eligible for Public Assistance Funding in Florida 76. See Fed. Emergency Mgmt. Agency, FEMA-4339-DR, Amendment No. 5 (2017), https://www.fema.gov/news-release/2017/09/21/4337/21-addi- (2017), https://www.fema.gov/disaster/notices/amendment-no-5-4 [https:// tional-counties-eligible-public-assistance-funding-forida [https://perma. perma.cc/KJ8G-UAQK]. cc/7FJ2-ZREP]; Fed. emergency Mgmt. Agency, DR-4337-FL NR 042, 77. See Puerto Rico: Human Rights Concerns Mount in Absence of Adequate Emer- 26 Additional Counties Eligible for Public Assistance Funding in gency Response, United Nations Human Rights Office of High Comm’r Florida (2017), https://www.fema.gov/news-release/2017/10/06/4337/26- (Oct. 30, 2017), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews. additional-counties-eligible-public-assistance-funding-forida [https://perma. aspx?NewsID=22326&LangID=E [https://perma.cc/KKK5-7KAS]. cc/EBW8-EFCN]. 78. See id. 69. Levenson, supra note 53. 79. See id. Winter 2020 IN THE EYE OF A HURRICANE THERE IS QUIET 95

Evidence of the United States’ unequal treatment of Puerto ernment pays to rebuild damage in Florida and Texas caused Rico continued to grow. during the same hurricane season.93 In early October, Congress’ $36.5 billion hurricane and As time passes, the Trump Administration’s response wildlife relief package included a $4.9 billion loan to Puerto to Maria has been compared to the Bush Administration’s Rico, adding to its existing $74 billion debt.80 Te bill did response to Katrina in 2005.94 Katrina left 1,800 people not consider Puerto Rico’s debt crisis, but it did eliminate dead, 40,000 refugees and $100 billion in damage.95 Delayed the National Flood Insurance Program’s $16 billion debt.81 government response transformed Katrina from a natural On February 27, 2018, Governor Rossello announced that disaster into a man-made catastrophe.96 Time will tell if com- the U.S. Treasury Department cut Puerto Rico’s $4.7 billion parisons between Katrina and Maria will continue, but the disaster loan to $2 billion, continuing the disparate treat- similarities in inequitable preparations, aid, and treatment, ment observed by the United Nations.82 demand a renewed examination of the disaster relief frame- As of March 20, 2018, Texas was already receiving federal work in the United States. money from FEMA for a permanent rebuilding project.83 In contrast, Puerto Rico had not received a single dollar for sim- III. Disaster Framework in the ilar projects.84 Tis diference in federal funds from FEMA is United States a result of an amendment quietly published on November 2, 85 2017. Te amendment required the use of an experimental A comprehensive policy for disaster relief did not exist in the 86 funding formula for all projects in Puerto Rico. Such an United States until after World War II.97 It was not until amendment has never been included in a disaster declara- 1950, with the passage of the Disaster Relief Act 98 and the 87 tion before. Although this experimental formula gives sig- Civil Defense Act,99 that the federal government became nifcant fexibility to Puerto Rico to rebuild—including an involved in disaster assistance.100 Te Disaster Relief Act exemption from a requirement that cost estimation be based of 1950 and reiterations in 1970 and 1974 governed federal upon pre-disaster conditions—the formula requires the ter- disaster aid until the passage of the Staford Act in 1988.101 88 ritory to pay for any cost overruns. Te same burden does Te Staford Act provided for a comprehensive revision of not apply to repairing damages from Harvey in Texas, where the disaster relief acts and incorporated federal authoriza- 89 FEMA will pay for any excess costs. A Politico investigation tions granted in earlier disaster legislation.102 Te Staford found that: Act expanded the federal government’s role in disaster relief according to multiple congressional ofcials and people with as we know it today. direct knowledge of the arrangement, the island was forced to take [the] gamble . . . White House ofcials, led by Mulvaney A. Stafford Act and Homeland Security Advisor Tom Bossert, told Puerto Rico that in order to receive the money for permanent work Before examining the interplay between the government’s project, it had to adopt the experimental funding formula response to Maria and the law, it is important to provide a for all its projects.90 basic overview of key provisions of the Staford Act. Tose provisions include the process for disaster declarations, the Governor Rossello and other Puerto Rican ofcials fear the Public Assistance Program, scope of agency discretion, and experimental formula is a way to limit funding to Puerto amendments to the Act after Katrina. Rico.91 Unfortunately, they knew refusing the exemption to rebuild based on conditions prior to the hurricane would be 1. Disaster Declarations a mistake.92 In the end, debt-strapped Puerto Rico will pay to rebuild its essential infrastructure, while the federal gov- Te principal legal authority governing federal assistance to state and local governments after a major disaster in the United States is the Staford Act.103 Te Staford Act “autho- 80. See David Dayen, Puerto Rico Relief Bill Cancels $16 Billion in Debt—But Not for Puerto Rico, Intercept (Oct. 11, 2017, 12:01 PM), https://theintercept. 93. See id. com/2017/10/11/puerto-rico-relief-bill-cancels-16-billion-in-debt-but-not- 94. See Levitz, supra note 50. for-puerto-rico [https://perma.cc/E28Z-3AUV]. 95. Olivier Laurent & Marisa Schwartz Taylor, Hurricane Katrina, 10 Years Later: 81. See id. Te Photos Tat Moved Tem Most, Time, http://time.com/hurricane-katrina- 82. See Associated Press, Puerto Rico Says Treasury Abruptly Cutting $4.7 Billion 10-years-later [https://perma.cc/Q38Y-PNCP]. Relief Loan to $2 Billion, CBS News (Feb. 27, 2018, 4:29 PM), https://www. 96. See id. cbsnews.com/news/puerto-rico-says-treasury-abruptly-cutting-4-7-billion- 97. See Robert B. Olshansky & Laurie A. Johnson, Te Evolution of the Federal Role relief-loan-to-2-billion/ [https://perma.cc/QD2T-XEXL]. in Supporting Community Recovery After U.S. Disasters, 80 J. Am. Plan. Ass’n. 83. See Vinik, supra note 10. 293, 295 (2014). 84. See id. 98. Pub. L. No. 81-875. 85. See id. 99. Pub. L. No. 81-920. 86. See id. 100. See Olshansky & Johnson, supra note 97 (quoting Keith Bea, Te Formative 87. See id. Years: 1950-1978, in Emergency Management: The American Experience 88. See id. 1900-2005 81–109 (Claire B. Rubin ed., 2007)). 89. See id. 101. See id. at 295–96. 90. See id. [emphais added]. 102. See id. at 295, 297. 91. See id. 103. For purposes of the Staford Act, the “United States” is defned as “the ff- 92. “Puerto Rico is in hurricane alley. It’s going to come again.” Id. ty states, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, 96 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 rizes the President to issue major disaster declaration[s],” emergency plan.111 State and local ofcials conduct damage classifying an event as either an “emergency” or a “major reports as a part of the emergency plan.112 If the governor disaster.”104 An emergency is defned as: decides, based on the state’s early damage reports, that an efective response to the disaster may exceed the state’s capa- any occasion or instance for which, in the determination bilities, the governor then requests that FEMA regional of- of the President, Federal Assistance is needed to supple- cials join local and state ofcials to conduct a preliminary ment State and local eforts and capabilities to save lives damage assessment.113 After the preliminary data assessment and to protect property and public health and safety, or to is conducted, the governor determines whether or not to lessen or avert the threat of a catastrophe in any part of the 114 105 request federal assistance. United States. Te governor’s request must be “based on the fnding that Te President is authorized to declare an emergency with- the disaster is of such severity and magnitude that efective response is beyond the capabilities of the State and the afected out request from a governor and without any damage having 115 occurred, provided that the emergency involves a primary local governments, and that federal assistance is necessary.” federal responsibility.106 A primary federal responsibil- A request for a major disaster declaration must be submitted within thirty days of the disaster unless a request for exten- ity exists when the United States has exclusive or preemp- 116 tive responsibility under the U.S. Constitution or laws of sion is approved. In the request, the governor must include the United States.107 Examples of such include: “the Alfred the type and amount of aid requested as well as information concerning emergency assistance from other agencies.117 Te P. Murrah Federal Building bombing in Oklahoma City 118 (1995), the September 11 Pentagon attack (2001), and the more severe a disaster is, the less information required. Space Shuttle Columbia Disaster (2003)”—all of which were Although only the President has the authority to declare limited to federally-owned property.108 A major disaster is: disasters or emergencies, requests for declarations are pro- cessed by FEMA.119 Once FEMA acquires the necessary any natural catastrophe (including any hurricane, tornado, information from the state, FEMA provides a recommendation to the President based on the preliminary data assess- storm, high water, wind driven water, tidal wave, tsunami, 120 earthquake, volcanic eruption, landslide, mudslide, snow- ment. If the President makes a declaration, it will include the federal cost share, type of incident, incident period, des- storm, or drought), or, regardless of cause, any fre, food, 121 or explosion, in any part of the United States, which in the ignated areas, and types of assistance given. After a presidential declaration, FEMA administers major provisions of determination of the President causes damage of sufcient 122 severity and magnitude to warrant major disaster assis- the Staford Act. Once a state provides all the necessary tance under this Act to supplement the eforts and available information and FEMA determines that federal assistance is resources of States, local governments, and disaster relief needed, FEMA divides that assistance into three programs: (1) Public Assistance Program, (2) Individual Assistance organizations in alleviating the damage, loss, hardship, or 123 sufering caused thereby.109 Program, and (3) Hazard Mitigation Grant Program. Although the Individual Assistance Program and the Hazard For the President to declare a major disaster, the governor Mitigation Grant Program are major sources of disaster aid, of an afected state must request a declaration.110 Before neither will be discussed in greater detail. requesting assistance, the governor must activate the state’s 2. Public Assistance Program American Samoa, and the Commonwealth of the Northern Mariana Islands.” 42 U.S.C. § 5122(3). “State” is defned as “any State of the United States, Te Public Assistance Program (PA) has both a response the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American 124 Samoa, and the Commonwealth of the Northern Mariana Islands.” 42 U.S.C. component, Emergency Work, and a recovery component, § 5122(4). Tis defnition entitles Puerto Ricans to the same federal assistance given to other Americans, unlike other federal laws that create an exception, 111. 42 U.S.C. § 5170(a). See also Fed. Emergency Mgmt. Agency, A Citizen’s treating Puerto Rico as a foreign territory. See 42 U.S.C. § 5121; Puerto Rico v. Guide to Disaster Assistance, 3–7 (2010). Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938 (2016); Michael L. Torres, A Not 112. See A Citizen’s Guide to Disaster Assistance, supra note 111. So Special Rate: A Look at the Unequal Medicare Reimbursement Rates Between 113. 44 C.F.R. § 206.33. See also A Citizen’s Guide to Disaster Assistance, the United States and the Commonwealth of Puerto Rico, 29 Nova L. Rev. 311, supra note 111. 326–37 (2005); Pub. L. No. 115-97 (2017); Jennifer Bendery, Te GOP’s Tax 114. See A Citizen’s Guide to Disaster Assistance supra note 111, at 3–11. Bill Kicks Puerto Rico When It’s Down, Huffington Post (Dec. 19, 2017, 8:14 115. 42 U.S.C. § 5170(a); 44 C.F.R. § 206.36(b). PM), https://www.hufpost.com/entry/puerto-rico-tax-bill-nydia-velazquez_n 116. 44 C.F.R. § 206.36(a). See also Disaster Operations Legal Reference, su- _5a39938de4b06d1621b042f8 [https://perma.cc/Y82X-UW5T]. pra note 106, at 3-4. 104. See Keith Bea, Cong. Research Serv., RL33053, Fed. Stafford Act As- 117. See Disaster Operations Legal Reference, supra note 106, at 3-6. sistance: Presidential Declarations, Eligible Activities, and Funding 118. 44 C.F.R. § 206.36(d) (2009). See also A Citizen’s Guide to Disaster As- 1 (2005); Ernest B. Abbott, Representing Local Governments in Catastrophic sistance, supra note 111, at 3-9. Events: DHS/FEMA Response and Recovery Issues, 37 Urban Lawyer 467, 470 119. See Abbott, supra note 104, at 472. (2005). 120. FEMA regulations 44 C.F.R. §§ 206.35, 206.36 and 206.48 (listing the neces- 105. 42 U.S.C. § 5122(1). sary information a state must provide); 44 C.F.R §§ 206.33, 206.37; see also 106. See Fed. Emergency Mgmt. Agency, Disaster Operations Legal Refer- Abbott, supra note 104, at 472. ence 3-3, 3-11 (2d ed. 2013). 121. See Fed. Emergency Mgmt. Agency, FP 104-009-2, Public Assistance 107. See id. at 3-11. Program and Policy Guide 1–2 (2017). 108. See id. at 3-11–3-12. 122. See id. at 1. 109. 2 U.S.C. § 5122(2). 123. See A Citizen’s Guide to Disaster Assistance, supra note 111, at 3-10. 110. See id. 124. 44 C.F.R. § 206.201(b). Winter 2020 IN THE EYE OF A HURRICANE THERE IS QUIET 97

Permanent Work.125 FEMA designates Emergency Work ages hazard mitigation measures to prevent damages from as Categories A and B and Permanent Work as Categories future events.142 C–G.126 Emergency Work is a response to “an immediate An eligible project for PA must be a result of the declared threat of life and property and is essential to saving lives and event, located within the designated disaster area, and the protecting public health and safety.”127 Category A provides facility must be the legal responsibility of the eligible appli- for debris removal pursuant to sections 403 and 407 of the cant at the time of the disaster.143 Eligible applicants include Staford Act.128 Section 403 provides for debris removal that state, tribal, and local governments,144 as well as private is “essential to saving lives and protecting and preserving non-proft organizations that provide essential services to property or public health and safety,”129 whereas section 407 the general public.145 Eligible facilities include public facili- provides for debris removal in the “public interest.”130 Cat- ties and private nonproft facilities.146 Examples of public egory B is designated for Emergency Protective Measures.131 facilities include: Tese measures can be conducted before, during, and after [(1)] Any food control, navigation, irrigation, reclamation, the event.132 Such measures include search and rescue, emer- public power, sewage treatment and collection, water sup- gency evacuations, shelters, emergency care, food and water, ply and distribution, watershed development, or airport removal of health and safety hazards, among other measures facilities; [(2)] [a]ny non-federal aid street, road, or highway; to save lives and protect the safety and health of the public.133 [(3)] [a]ny other building, structure, or system, including Emergency Work must address an immediate need, defned those used for educational, recreational, or cultural pur- as “the threat of additional damage or destruction from an poses; and [(4)] [a]ny park.147 incident that can reasonably be expected to occur within 134 fve years of the declared incident.” All Emergency Work Private non-proft eligibility is based on the extent of a facili- granted must be completed within six months unless FEMA ties’ use for education, utilities, medical services, emergency 135 authorizes an extension. services, custodial care, and other essential government-type Permanent Work categories are authorized through sec- services for the public.148 In addition to real property, facili- tion 406 of the Staford Act to repair, restore, and replace ties can be personal property such as medical equipment, 136 damaged or destroyed facilities. After issuing Permanent motor vehicles, and medical supplies.149 Work grants, FEMA will restore design, function, and capac- FEMA considers six factors in evaluating the need for ity of the facilities to their pre-disaster state or to an appli- PA: (1) estimated cost of assistance; (2) localized impacts 137 cable standard or code. Te Staford Act allows for a broad at the county, city, and tribal government levels; (3) insur- interpretation of “pre-disaster” condition, especially when it ance coverage in force; (4) hazard mitigation measures that 138 comes to older buildings. For example, older buildings will contributed to the reduction of damages; (5) recent multiple be rebuilt in accordance with building codes and regulations disasters within the prior twelve months at the state and local in existence at the time of the disaster not at the time of origi- level; and (6) available assistance programs of other federal 139 nal construction. In addition, FEMA may require recon- agencies.150 FEMA may provide expedient assistance for Cat- struction of a building to include hazard mitigation for future egory A (Debris Removal) or Category B (Emergency Pro- 140 disasters. Categories C–G of Permanent Work break down tective Measures), but will withhold recommendation for by specifc “facilities” as follows: roads and bridges fall under Categories C–G until the Preliminary Damages Assessment Category C; water control under Category D; buildings and is complete.151 Despite extensive regulations governing disas- equipment under Category E; utilities under Category F; and ter relief, the Staford Act proved inadequate in responding parks, recreational areas, and other facilities under Category to Katrina in 2005 and Maria in 2017. G.141 Trough restoration of damaged facilities, PA encour- 3. Post-Katrina Emergency Management Reform Act

125. 44 C.F.R. § 206.201(j); see also Disaster Operations Legal Reference, su- In the aftermath of Katrina the Staford Act was amended pra note 106, at 5-1. 126. See Disaster Operations Legal Reference, supra note 106, at 5-37. by the Post-Katrina Emergency Management Reform Act of 127. See id. at 5-38. 128. See id. at 5-40. 142. See id. at 7. 129. See id. 143. See Disaster Operations Legal Reference, supra note 106, at 5-3, 5-37. 130. See id. 144. 44 C.F.R. § 206.222(a). See also Disaster Operations Legal Reference, 131. See id. at 5-52. supra note 106, at 5-4. 132. See Public Assistance Program and Policy Guide, supra note 121, at 58. 145. 44 C.F.R. § 206.221(f). See also Disaster Operations Legal Reference, 133. See Disaster Operations Legal Reference, supra note 106, at 5-52–5-53. supra note 106, at 5-6. 134. See Public Assistance Program and Policy Guide, supra note 121, at 42– 146. 44 C.F.R. § 206.221(h); 44 C.F.R. § 206.223(c). See also Disaster Opera- 44 (citing 44 C.F.R. § 206.221(c)). tions Legal Reference, supra note 106, at 5-7–5-8; 44 C.F.R. §§ 206.221(e)- 135. See id. at 44. (f), 206.222(b), 206.223(b). 136. See Disaster Operations Legal Reference, supra note 106, at 5-64. 147. See Disaster Operations Legal Reference, supra note 106, at 5-7. 137. See id. 148. 44 C.F.R. § 206.221(h). See also Public Assistance Program and Policy 138. See Abbott, supra note 104, at 478. Guide, supra note 121, at 16. 139. See 44 C.F.R. § 206.226(d); Abbott, supra note 104, at 478. 149. 44 C.F.R. § 206.221(e). See also Abbott, supra note 104, at 478. 140. 44 C.F.R § 206.226(e). 150. See Disaster Operations Legal Reference, supra note 106, at 3-18–3-19. 141. See Public Assistance Program and Policy Guide, supra note 121, at 20. 151. See id. at 3-10–3-11. 98 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2

2006 (PKEMRA).152 Te amendment provided for acceler- (A) arbitrary, capricious, an abuse of discretion, or ated assistance after public criticism and allegations that the otherwise not in accordance with law . . .162 federal government would not assist Louisiana until a formal request for a particular type of assistance was made.153 Agency action is “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial Accelerated assistance is provided where “necessary to save 163 lives, prevent human sufering or mitigate severe damage.”154 thereof, or failure to act.” Agency actions made review- Under the provisions of the act, the federal government can- able by statute or agency actions that are fnal are subject to judicial review.164 Tere are two requirements for an agency’s not “delay or impede the rapid deployment, use, and distri- 165 bution of critical resources to victims of a major disaster” action to be considered fnal. First, “the action must mark 155 the ‘consummation,’ of agency decision making,” barring once it decides to give accelerated assistance. By amending 166 the Staford Act, PKEMRA provided for accelerated assis- tentative or interlocutory decisions. Second, the action tance and directed the President and federal agencies to set must determine rights or obligations or produce legal consequences.167 Despite the prominence of the review of agency up a pilot program to expedite assistance under sections 403 168 (essential assistance), 406 (damaged facilities) and 407 (debris action, courts also review agency inaction. Tis section removal).156 PKEMRA allowed for continued presidential will discuss the judiciary’s ability to review agency inaction, discretion to grant general assistance and even to grant accel- the application of the contrary to law standard under the erated assistance (“the President ‘may’ provide accelerated Chevron Doctrine, and the arbitrary and capricious standard Federal assistance and Federal support,”) but it added a man- under the APA. datory provision to act where rapid response is critical.157 Te use of “shall” in the provision provides that once support is 1. Reviewability “necessary to save lives, prevent human sufering, or mitigate severe damage,” the President must coordinate with state Although courts can compel agency action unlawfully withheld or unreasonably delayed, the APA places limits upon ofcials and cannot “delay or impede the rapid deployment, 169 158 judicial review of agency inaction. Only actions an agency use, and distribution of critical resources.” Te changes in 170 PKEMRA give the President and FEMA unilateral authority is legally required to take may be compelled. An example to assist states without a governor’s request.159 Establishing of cases that address agency actions unlawfully withheld or these circumstantial perimeters provided a clearer framework unreasonably delayed include Public Citizen Health Research Group v. Chao171 (Chao) and Norton v. Southern Utah Wilder- for courts to analyze the government’s actions, but because of 172 the broad language, courts would likely give FEMA discre- ness Alliance (Southern Utah). In Chao, the Tird Circuit found the Occupational Safety and Health Administration’s tion to defne the exact terms of a critical situation. Before 173 discussing the interplay between aid to Puerto Rico, the Staf- (OSHA’s) actions were unreasonably delayed. Public Citi- ford Act, and judicial review, it is frst necessary to provide zen Health Research Group (Public Citizen) alleged that overview of judicial review of agency actions in general. OSHA’s nearly nine-year delay in increasing the permissible exposure limit for hexavalent chromium violated the agency’s duty to set standards for toxic exposure in the workplace B. Governing Disaster Aid: Administrative Procedure 174 Act and the Chevron Doctrine under the Occupation Safety and Health Act. Tough the Tird Circuit had found no unreasonable delay in a 1997 OSHA case because of scientifc uncertainty, the Chao court Te Administrative Procedure Act (APA) governs federal found an unreasonable delay where OSHA set a permissible administrative agency actions.160 Under the APA, a court exposure limit for hexavalent chromium in 2001 in response may review agency action unless the statute at issue precludes to Public Citizen’s 1993 request.175 Te court focused on judicial review or the agency action is committed to agency discretion by law.161 Te scope of review under section 706 162. 5 U.S.C. § 706. provides that the reviewing court shall: 163. 5 U.S.C. § 551(13). 164. 5 U.S.C. § 704. (1) compel agency action unlawfully withheld or 165. See Jared P. Cole, Cong. Research Serv., R44699, An Introduction to unreasonably delayed; and Judicial Review of Federal Agency Action 11 (2016). (2) hold unlawful and set aside agency action, fndings, 166. See Bennet v. Spear, 520 U.S. 154, 177–78 (1997) (quoting Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)); Cole, supra and conclusions found to be— note 165, at 11. 167. See Bennet, 520 U.S. at 178 (quoting Port of Boston Marine Terminal Ass’n 152. Pub. L. No. 109-295, 120 Stat. 1394 (2006). v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 (1970)); Cole, supra 153. See Disaster Operations Legal Reference, supra note 106, at 4-67. note 165, at 11. 154. 42 U.S.C. § 5170a(5). 168. See 5 U.S.C. § 706. 155. 42 U.S.C. § 5170a(5)(B). 169. See Norton v. S. Utah Wilderness All., 542 U.S. 55, 61 (2004) (Southern 156. Pub. L. No. 109-295, § 689(j), 120 Stat. 1394 (2006). Utah). 157. 42 U.S.C. § 5170a(5); Disaster Operations Legal Reference, supra note 106, at 170. See id. at 63. 4-67. 171. 314 F.3d 143 (3d Cir. 2002). 158. 42 U.S.C. § 5170a(5)(A)–(B) (2016). 172. 542 U.S. 55 (2004). 159. See Disaster Operations Legal Reference, supra note 106, at 4-67–4-68. 173. See Pub. Citizen Health Research Grp. v. Chao, 314 F.3d 143, 159 (3d Cir. 160. 5 U.S.C. §§ 551 et seq. 2002). 161. 5 U.S.C. § 701(a); See also Citizens to Preserve Overton Park, Inc. v. Volpe, 174. See id. at 145, 156. 401 U.S. 402, 410 (1971). 175. See id. at 151. Winter 2020 IN THE EYE OF A HURRICANE THERE IS QUIET 99

OSHA’s obligation to regulate hazardous substance after was permissible.189 As with discretionary actions, an agency’s concluding its danger.176 It reasoned that the act “forbids interpretation of a statute can be reviewed under the arbitrary delay in pursuit of certainty,” citing previous warnings to and capricious standard, even though agency interpretations OSHA about letting workers sufer while waiting for scien- are usually given deference by the court.190 Unless an agency tifc proof.177 action is clearly contrary to congressional intent, a court will In Southern Utah, the U.S. Supreme Court decided not disturb an agency’s choice if it represents a reasonable whether APA compulsion extends to the United States accommodation of conficting policies.191 Agency action can Bureau of Land Management’s (BLM’s) stewardship of pub- be set aside if the action is “in excess of statutory jurisdiction, lic lands under the Wilderness Act of 1964178 and the Fed- authority or limitations, or short of statutory right.”192 Chev- eral Land Policy and Management Act of 1976 (FLPMA).179 ron principles can be seen through three cases: Massachusetts FLPMA requires the Secretary of the Interior to manage v. EPA,193 Babbitt v. Sweet Home Chapter of Communities for public lands “in a manner so as not to impair the sustain- a Great Oregon,194 and Utility Air Regulatory Group v. EPA.195 ability of such areas for preservation as wilderness,” and “in In Massachusetts v. EPA, the Supreme Court found that the accordance with land use plans.”180 Southern Utah Wilder- EPA committed a clear violation of a statutory command.196 ness Alliance’s main challenge asserted BLM failed to act to Concerned about environmental changes from increased protect public lands from of-road vehicles, citing degrada- concentration of greenhouse gases (GHGs), a group of private tion in certain wilderness areas and failure to implement organizations petitioned the EPA to begin regulating GHGs, provisions in a land use plan relating to of-road vehicles.181 specifcally from new motor vehicles under section 202(a)(1) Te Court found FLPMA mandated BLM’s management to of the Clean Air Act (CAA).197 Te EPA denied the peti- preserve wilderness, but held the statute gave BLM great dis- tion, fnding that the CAA did not require the EPA to regu- cretion in deciding how to achieve that objective.182 Citing late GHGs.198 Focusing on the CAA’s sweeping defnition the APA’s primary purpose, “to protect agencies from undue of “air pollutant”199 and broad defnition of “public health judicial interference with their lawful discretion, and to avoid and welfare,”200 the Court found the EPA’s requirements judicial entanglement in abstract policy disagreements,” the under the CAA to be unambiguous.201 Te Court found that court held FLPMA did not mandate “with the clarity neces- the provision required the EPA to regulate emission of any sary to support judicial action under § 706(1).”183 Whether air pollutant from new motor vehicles “which in [the EPA considering agency action or inaction, the court must deter- Administrator’s] judgement cause[s], or contribute[s] to, air mine if the conduct complies with the statutory language. pollution . . . reasonably . . . anticipated to endangered public health or welfare.”202 2. Contrary to Law: Statutory Interpretation In Babbitt v. Sweet Home Chapter of Communities for a Under Chevron Great Oregon,203 the Court found the U.S. Department of the Interior’s defnition of “take” in the Endangered Species 204 In reviewing an agency action, the court looks to see if the Act (ESA) to be a permissible statutory interpretation. Sec- action complies with the statutory language or is contrary to tion 3(19) of the ESA defnes “take” as “to harass, harm, pur- law.184 Te Supreme Court has adopted the Chevron Doc- sue, hunt, shoot, wound, kill, trap, capture, or collect or to 205 trine for deferential review of an agency’s interpretation of an attempt to engage in any such conduct.” Small landowners enabling statute.185 Te court’s initial analysis under Chev- and logging companies challenged the Secretary’s regulation ron is whether Congress has “spoken to the precise question defning “harm” to include signifcant habitat modifcation 206 at issue.”186 If the intent of Congress is clear in the statute, or degradation. Finding no statutory language to further the inquiry is over—both the court and the agency must 187 give efect to congressional intent. On the other hand, if 189. See id. Congress has not spoken directly to the question at issue, the 190. See id. at 844. 191. See id. at 845. agency is authorized by Congress to promulgate a regulation 192. 5 U.S.C. § 706(2)(C). 188 to elucidate the specifc provision. If the statute is silent 193. 549 U.S. 497 (2007). or ambiguous with respect to the specifc issue the court 194. 515 U.S. 687 (1995). 195. 134 S. Ct. 2427 (2014). must determine if the agency’s interpretation of the statute 196. See generally Massachusetts v. EPA, 549 U.S. 497 (2007). 197. See id. 176. See id. at 147, 154. 198. See id. 177. See id. at 156 (citing United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 199. “Te term ‘air pollutant’ means any air pollution agent or combination of such 1266 (D.C. Cir. 1980)). agents, including any physical, chemical, biological radioactive . . . substance 178. 16 U.S.C. §§ 1131–1136. or matter which is emitted into or otherwise enters the ambient air.” 42 U.S.C. 179. 43 U.S.C. §§ 1701 et seq.; See also Southern Utah, 542 U.S. at 57–58. § 7602(g). 180. See id. at 59, 60. 200. Welfare is also defned broadly: among other things, it includes “efects on . . . 181. See id. at 65. weather . . . and climate.” 42 U.S.C. § 7602(h). 182. See id. at 66. 201. See Massachusetts v. EPA, 549 U.S. at 529. 183. See id. 202. See id. at 497. 184. See Cole, supra note 165, at 12–13. 203. 515 U.S. 687 (1995). 185. See generally Chevron, 467 U.S. 837 (1984). 204. See id. at 687. 186. See id. at 842. 205. See id. at 691 (quoting 16 U.S.C. § 1532(19)). 187. See id. at 842–43. 206. “Harm in the defnition of ‘take’ in the Act means an act which actually kills 188. See id. at 843–44. or injuries wildlife. Such act may include signifcant habitat modifcation or 100 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 defne “harm” in the ESA, the Court moved to Chevron step or is so implausible that it could not be ascribed to a difer- two. Considering Congress’ clear expression of the ESA’s ence in view or the product of agency expertise.218 broad purpose to protect endangered and threatened species, Agency decisions can also be deemed arbitrary and capri- the Court found the Secretary’s interpretation of harm per- cious if the agency failed to consider: missible and not arbitrary and capricious.207 Acknowledging the complex policy choice in the Secretary’s inclusion of indi- (1) an important factor relevant to its decision219; rect harm and impairment/injury to essential behavior pat- (2) a vital aspect of the problem220; or terns, the court reiterated its reluctance to substitute its own 208 (3) circumstances warranting diferent treatment view for the discretion granted to the agency by Congress. 221 In Utility Air Regulatory Group v. EPA,209 the Supreme from other parties. Court decided the EPA’s decision to allow stationary sources Actions found to be “arbitrary, capricious or manifestly con- was subject to Prevention of Signifcant Deterioration (PSD) trary to the statute” can be set aside and invalidated by the permitting requirements based on a source’s potential emis- court.222 Tough the arbitrary and capricious standard is sion of GHGs was an impermissible interpretation of the narrow, the agency must articulate a satisfactory connection CAA under Chevron step two.210 EPA’s interpretation was between the facts found and the agency’s choice of action.223 impermissible because applying the PSD to any class of “air- In Motor Vehicles Manufacturers Association of United States borne compounds” like in Massachusetts v. EPA, instead of v. State Farm Mutual Auto Insurance Co., the Supreme Court limiting to regulated air pollutants would produce an incon- held that the National Highway Trafc Safety Adminis- sistency within the design and structure of the CAA.211 Te tration’s (NHTSA’s) rescission of the passive-restraint rule Court reasoned that such a regulation would bring “an enor- under the National Trafc and Motor Vehicles Act (MVA) mous and transformative expansion to the EPA’s regulatory was arbitrary and capricious.224 Standard 208 of the MVA authority,” an expansion that requires clear congressional “sought to achieve automatic crash protection” by requiring intent.212 Although Chevron presumes Congress empowers the installation of either of two passive restraint devices: air- an agency to resolve any ambiguity in a statute it adminis- bags or automatic seatbelts.225 After allowing manufacturers ters, the agency must act reasonably and stay within its statu- to install detachable automatic seatbelts, the NHTSA quickly tory authority.213 abandoned the rule, asserting that detachable seatbelts did not increase safety.226 Te Court found no reasoned analysis 3. Arbitrary and Capricious Review for NHTSA’s abandonment of the rule, holding that lack of increased safety due to detachable seatbelts would only justify Despite a grant of broad discretion and deference, agency the disallowance of compliance based on that technology.227 actions can be reviewed under the arbitrary and capricious NHTSA’s decision was arbitrary and capricious because it standard.214 Review of agency action does not end with a failed to consider alternatives, namely non-detachable seat- determination that the agency acted within the scope of its belts and airbags, and could not ofer a rational connection authority.215 Section 706(2)(A) requires a fnding that the between the facts and its choice.228 agency choice of action was not “arbitrary, capricious or Looking back to Massachusetts v. EPA, in which the Court manifestly contrary to the statute.”216 Reviewing courts must found a clear step one congressional intent to regulate dan- consider “whether a decision was based on a consideration of gerous pollutants, the Court also held the EPA’s alternative the relevant factors and whether there has been a clear error basis for its action was arbitrary and capricious.229 Te EPA of judgment.”217 An agency rule is arbitrary and capricious if: argued two positions: (1) that even if there was statutory [T]he agency has relied on factors which Congress has not authority to regulate GHG, it would be unwise to do so intended it to consider, entirely failed to consider an impor- because the threat of global warming was addressed through tant aspect of the problem, ofered an explanation for its GHG regulation by other agencies and (2) GHG regulation decision that runs counter to the evidence before the agency, would impair the President’s ability to negotiate with “key developing nations” to reduce emissions and address climate

218. Motor Vehicles Mfrs. Ass’n of U.S. v. State Farm Mutual Auto Ins. Co. (Motor degradation where it actually kills or injures wildlife by signifcantly impairing Vehicles), 463 U.S. 29, 43 (1983). essential behavioral patterns, including breeding, feeding or sheltering.” Id. at 219. See Cole, supra note 165, at 20 (citing Ctr. for Biological Diversity v. U.S. 691–92. Bureau of Land Mgmt., 698 F.3d 1101, 1124 (9th Cir. 2012)). 207. See id. at 704. 220. See id. (citing Advocates for Highway & Auto Safety v. Fed. Motor Carrier 208. See id. Safety Admin., 429 F.3d 1136, 1147 (D.C. Cir. 2005)). 209. 134 S. Ct. 2427 (2014). 221. See id. (citing Petroleum Commc’ns, Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. 210. See Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2431–32 (2014). Cir. 1994)). 211. See id. at 2442. 222. See Chevron, 467 U.S. at 844. 212. See id. at 2444 (citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 223. See Motor Vehicles, 463 U.S. at 43. 120, 159 (2000)). 224. Id. at 45. 213. See id. at 2439. 225. See id. at 47. 214. 5 U.S.C. §§ 701, 706. 226. See id. 215. See Volpe, 401 U.S. at 416. 227. See id. at 48, 49. 216. See id. 228. See id. at 48, 50, 52. 217. See id. 229. Supra Part III(B)(2); Massachusetts v. EPA, 549 U.S. at 534. Winter 2020 IN THE EYE OF A HURRICANE THERE IS QUIET 101 change.230 Te Court found the EPA’s argument without delay involves administering aid instead of creating a regula- merit because despite statutory allowance for the EPA’s judg- tion, it would be unlikely for the court to fnd an unreason- ment on an air pollutant’s danger, that judgment must be able delay like in Chao. In Chao, the Tird Circuit focused based on whether an air pollutant causes or contributes to the on OHSA’s obligation to regulate hazardous substances; endangerment of public health or welfare.231 Te EPA’s refusal FEMA does not have an obligation under the Staford Act to regulate GHGs was found to be arbitrary and capricious to administer aid.240 Administration of permanent aid is because the EPA did not have a “reasoned explanation for discretionary: “the President may make contributions.”241 its refusal to decide whether GHGs causes or contributes to FEMA’s reason for delaying the grant of permanent aid and climate change.”232 Having discussed the facts of Maria, the release of funds to Puerto Rico, namely the island’s location legal framework of the Staford Act, and the legal process for and fnancial status, is likely to be seen as reasonable under judicial review of agency actions, the following section will the Staford Act. Te court would likely not hold FEMA’s analyze how the interaction of all three components created forty-three day delay in granting permanent work allowances a perfect storm. as an unreasonable delay, nor would the court likely hold FEMA’s withholding of fnancial support as an unreason- IV. Discretionary Action Makes Inequality able inaction. FEMA would likely prevail on a challenge of Unreviewable unreasonable delay based on the reasoning above and the fact that FEMA did provide some aid, despite the fact that Puerto Te stated purpose of the Staford Act is “to alleviate sufer- Rico received inadequate and less aid compared to Texas and ing and damage”233 resulting from disasters, but the Staford Florida. Since a court would likely not compel FEMA’s deci- Act provides FEMA considerable discretion in determining sion on distribution of aid and fnancial help, another chal- when to administer aid, resulting in unequal assistance. Tis lenge to FEMA’s authority would concern whether FEMA’s inequality is best illustrated through the comparison of Har- actions were contrary to law. vey, Irma, and Maria. As explained above, federal aid and personnel were disproportionately sent to Florida and Texas B. Chevron: Deference Over Protection of Disparate after the hurricanes.234 Although Florida, Texas, and Puerto Treatment Rico received emergency assistance within an equal time frame, Puerto Rico waited forty-two days to receive authori- Under APA § 706(2)(A), it is unlikely a court will fnd that zation for permanent work.235 Tis delay not only hindered disparate impact in administration of a statute qualifes as Puerto Rico’s ability to restore power to the island, but also agency action contrary to law. FEMA’s interpretation of the further threatened the lives of millions of American citizens. Staford Act would be governed by the Chevron Doctrine if Tis section will analyze how the combination of the Staf- disputed in court.242 Under the Chevron Doctrine, if there ford Act’s current language and the standards of judicial is no clear congressional intent, courts give deference to an review do not provide for adequate and equitable relief in a agency’s interpretation of its authorizing statute and the major disaster. resulting action, which creates an immense problem for chal- lengers of agency action.243 A. Judicial Reviewability Te court would likely review FEMA’s aid decisions under a Chevron step two analysis, because Congress has not spo- Analyzing FEMA’s actions under the Staford Act begins ken to the precise issue of how to determine aid, who will with the question of judicial review. Regarding Puerto Rico, receive aid, and when the aid will be given.244 Te court the court would review FEMA’s unreasonable delay in autho- would likely fnd FEMA’s interpretation of the Staford Act rizing permanent work and failure to fund a single perma- or its distribution of aid was permissible because the Staf- nent work project, as compared to other communities.236 ford Act is ambiguous and both Section 403 “Essential Because FEMA is not legally required to provide aid,237 the Assistance”245 and Section 406 “Repair, Restoration, and court would not compel FEMA’s actions based on unreason- Replacement of Damaged Facilities”246 state the President, able delay and inaction.238 Looking to Southern Utah, the through FEMA, “may provide essential assistance”247 or “may court would likely cite FEMA’s administration of aid as law- make contributions,”248 to help in disaster aid. Because this ful discretion and abstract policy. Like FLPMA, the Staford language gives the agency wide discretion to distribute aid, Act does not mandate action “with clarity necessary to sup- the court would likely fnd the programs are discretionary, port judicial action under § 706(1).”239 Even though FEMA’s not mandatory, and hold FEMA’s actions to be permissible

230. See id. at 532, 533. 231. Id. 240. Supra Part III(A)(1). 232. See id. at 534. 241. 42 U.S.C. § 5172(a)(1) (emphasis added); supra Part III(A)(1). 233. 42 U.S.C. § 5121(b). 242. Supra Part III(B)(2). 234. Supra Part II(C). 243. See Chevron, 467 U.S. 837 (1984). 235. See id. 244. Supra Part III(A)(3) & III(B)(2). 236. Supra Part II(C). 245. 42 U.S.C. § 5170b. 237. Supra Part III(A)(1). 246. 42 U.S.C. § 5172. 238. See Southern Utah, 542 U.S. at 66. 247. 42 U.S.C. § 5170b (emphasis added). 239. See id. 248. 42 U.S.C. § 5172 (emphasis added). 102 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 considering the gratuitous nature and complex policy choices ters both in numbers and strength, disaster aid should no involved, echoing the decision in Babbitt v. Sweet Home.249 longer be looked at as a discretionary program. Tough states Additionally, looking at the amended provision from and local municipalities know their regions best, the fed- PKEMRA,250 although the President is now compelled to eral government is best positioned to provide disaster relief. “provide accelerated Federal assistance . . . where necessary to Terefore, Congress should amend Section 403: “Essential save lives . . . ”251 and “cannot delay or impede rapid deploy- Assistance,”256 and Section 406: “Repair, Restoration, and ment of critical resources,”252 the language allows for a broad Replacement of Damaged Facilities”257 of the Staford Act. interpretation of important terminology. Te following terms Congress should adopt the following language to amend sec- are not specifcally defned in Section 5170a: “accelerated,” tion 403 to make essential assistance mandatory: “necessary,” “human sufering,” “delay,” “impede,” “rapid,” Federal agencies shall . . . provide assistance essential to and “critical resources.” Absent clear defnitions or illustra- meeting immediate threats to life and property resulting tive congressional intent, the court would likely defer to from a major disaster. FEMA’s interpretation given the agency’s superior expertise in the area.253 Terefore, under traditional Chevron deference, Congress should adopt the following language to amend sec- it would be difcult to hold FEMA accountable for unequal tion 406 to require repair, restoration, and replacement of distribution of aid. However, because natural disasters are damaged facilities under the PA Categories C–G: often matters of life and death, FEMA should be aforded Te President shall provide personnel, fnancial assistance less deference than agencies responsible for lower-stakes and supplies . . . for repair, restoration, reconstruction, or issues. Accordingly, the Staford Act should be amended as replacement of a public facility damaged or destroyed by a hereinafter described to reduce judicial deference to FEMA. major disaster that provides essential services, such as utilities, medical services, and food. Assistance shall be propor- V. Disaster Aid: Discretionary No More tional to damage sustained by the storm. Having discussed likely outcomes and inadequacies of judi- Under these amendments, the President would still have cial review in regulating FEMA’s actions, this section will the discretion to declare a major disaster or emergency under focus on two resolutions to FEMA’s failure to act appropri- section 401, but once a declaration is issued, FEMA would ately after Maria. Te frst resolution proposes to amend the be mandated to assist the disaster area.258 With the increasing Staford Act to address future distribution of aid. Te second number and severity of natural disasters, mandating assis- resolution focuses on challenging FEMA’s actions in Puerto tance after a declaration furthers Congress’ intent “to provide Rico as arbitrary and capricious under the current language an orderly and continuing means of assistance . . . to alleviate of the Staford Act. the sufering and damage which result from such disasters.”259 Although this amendment alone would not immediately stop A. Contrary to Law: Amending Stafford Act Language a Chevron analysis at step one, the change in language would begin the process of heightened judicial review. Judicial review of agency action under the Chevron Doctrine addresses an agency action that is considered contrary to 2. Establishing Aid Timeframe law.254 As explained above, because of the broad language in the Staford Act, it would be unlikely for a court to hold Second, Congress should establish a concrete timeframe FEMA’s action as contrary to the Staford Act.255 In order for when disaster aid should be administered. Without to aford less deference to FEMA in aid distribution deci- such a timeline, when assessing various disasters that have sions, the Staford Act should be amended to provide more occurred, it is evident that there is often a disparity between precise defnitions and timeframes to guide FEMA. In light how much aid diferent populations receive. While it is tax- of Maria, the amendment should focus on distribution of aid ing on aid-providing agencies when multiple disasters occur for permanent work. concurrently, this cannot be a viable justifcation for some communities to receive less aid than others. Congress should 1. Compelling Language adopt the following language: Upon a major disaster or emergency declaration, fed- First, the Staford Act should be amended to afrmatively eral agencies shall provide a comprehensive plan and aid, command disaster relief. Because of the rise in natural disas- including personnel, supplies, and fnancial assistance for catastrophic damage, within 14 days of the declaration or 14 249. “As we have repeated time and time again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its days of the disaster—whichever occurs frst. delegated responsibilities.” Massachusetts v. EPA, 549 U.S. at 527. 250. 42 U.S.C. § 5170a(5)(B). Supra Part III(A)(3). 251. 42 U.S.C. § 5170a(5)(A). 252. 42 U.S.C. § 5170a(5)(B). 253. See Babbitt v. Sweet Home Chapter of Cntys. for a Great Oregon, 515 U.S. 256. 42 U.S.C. § 5170(b). 687, 704 (1995). 257. 42 U.S.C. § 5172. 254. Supra Part III(B)(2). 258. 42 U.S.C. § 5170. 255. Id. 259. 42 U.S.C. § 5121(b). Winter 2020 IN THE EYE OF A HURRICANE THERE IS QUIET 103

“Catastrophic damage” should include the destruction of open, and clean water and food, especially nutritious food important infrastructures such as power lines, hospitals, capable of being prepared without power, are well supplied water, and sewage systems. When dealing with disasters in and consistently sent to the area; (4) impeding government remote areas, destruction of roads and bridges must likewise action would include citing fnances or location of the area as be considered, because roads and bridges are often the lifeline reasons for a delay in aid. for those living in the area. In cases of multiple storms within True recovery from a disaster cannot happen without the the same timeframe or multiple areas hit by one storm, the rebuilding of infrastructure. Had the Staford Act included following language should be adopted: similar language at the time of Maria, the rapid deployment of resources to fx powerlines and hospitals would have reduced Upon a major disaster or emergency declaration for mul- sufering on Puerto Ricans who could not go to work, make tiple locales impacted by the same storm or multiple locales money, or properly care for their families because of dam- impacted by diferent storms within the same timeframe— aged infrastructures. In the face of a natural disaster, what is up to 30 days apart—Federal agencies shall provide equi- important is reducing the number of lives lost, human suf- table aid, guidance, and personnel, in proportion to damage fering, and damage to the community. Terefore, to ensure sustained by the disaster. successful and speedy recovery, Congress should amend the Tis language would not only require federal action Staford Act. within a set time frame, but it would also provide guidance and specifcally mandate for judicial review. It is important B. Arbitrary and Capricious: As Applied Challenge to note, as emphasized in the second change, the aid provided in this time frame, whether FEMA is dealing with one Despite the need to amend the Staford Act, FEMA’s actions hurricane or many, must be proportional to the damage sus- in Puerto Rico should be considered arbitrary and capri- tained, geographic size of the area afected, and population cious with regard to the current language in the Staford Act. of Americans efected. Aid for a community with less dam- FEMA did not consider to the full extent the aspects of pro- age should not be greater than a community that sustained viding aid for Puerto Rico, nor Puerto Rico’s existing fnan- extreme damage. cial and environmental crisis. Te damage to power lines led to a complete power outage, which should have led FEMA 3. Permanent Relief: Accelerated Assistance to accelerate aid. Necessary to Save Lives FEMA’s actions in Puerto Rico are similar to EPA’s actions leading to Massachusetts v. EPA. In that case the regulation Tird, FEMA’s failures regarding Maria were many, but the had a potential to impair the President’s ability to negoti- most egregious failure, as represented by seven senators and ate, but that was not considered a determining factor for the United Nations,260 was FEMA’s unwillingness to provide the EPA’s decision to carry out the CAA’s mandate of pro- 261 permanent work aid to Puerto Rico to rebuild its infrastruc- tecting public health or welfare. Here, FEMA’s reason for 262 ture. Because of the importance of infrastructure in daily delay—Puerto Rico’s nature and location as an island —is lives the following language, adopted after Katrina should be not a rational explanation for the delay in achieving the Staf- added to section 406 of the Staford Act: ford Act’s mandate “to alleviate sufering and damage which result from” major disasters.263 Te fact that Puerto Rico is Te President— an island did not and does not prevent FEMA from analyzing the situation in Puerto Rico before the disaster. FEMA (A) shall, to the fullest extent, promptly coordinate with can adequately prepare and pre-emptively send aid to the ofcials in a State in which such assistance or support is pro- island prior to a disaster. Like Motor Vehicles v. State Farm,264 vided; and where NHTSA failed to consider alternatives to increase car (B) shall not, in coordinating with a State under subpara- safety, here, FEMA failed to consider alternative preparations graph (A), delay or impede the rapid deployment, use, and for Maria. Terefore, FEMA’s action should be held as arbi- distribution, of critical resources to victims of a major disaster. trary and capricious for failure to provide a reasoned explanation for delay and failure to consider alternative responses Tis language should be added to permanent work relief to Maria. To prevent future hurricanes from escalating into because basic infrastructure is necessary to save lives, prevent man-made catastrophes because of the government’s lack human sufering, and mitigate severe damage. Within this of urgency to provide aid, Congress must reckon with the amendment, the following defnitions should apply: (1) rapid Trump Administration’s disastrous response in Puerto Rico. deployment of resources would occur within the week of the storm, with potential for two weeks for extreme cases of damage; (2) a delay would be considered two weeks; (3) criti- 261. See Massachusetts v. EPA, 549 U.S. at 532–33. 262. Phillip Bump, Te “Very Big Ocean” Between Here and Puerto Rico Is Not cal resources in the context of infrastructure would include a Perfect Excuse for a Lack of Aid, Wash. Post (Sept. 26, 2017, 4:28 PM), resources (including people) needed to ensure permanent https://www.washingtonpost.com/news/politics/wp/2017/09/26/the-very- sources of power, roads, and bridges are fxed, hospitals are big-ocean-between-here-and-puerto-rico-is-not-a-perfect-excuse-for-a-lack- of-aid/?noredirect=on&utm_term=.67b6fdda6526. 263. See Massachusetts v. EPA, 549 U.S. at 532–33. 260. Supra Part I(C). 264. See Motor Vehicles, 463 at 48, 50, 52. Congress must address the inadequacies of the Staford Act FEMA’s discretion to administer aid, Puerto Rico did not to prevent another Katrina or Maria. receive adequate aid in a timely fashion. Te federal government’s failure to provide adequate aid resulted in 2,975 VI. Conclusion deaths after Maria.266 As was done after Katrina, Congress must commence a After the tragic response to Katrina, much of the country formal investigation and amend the Staford Act to address called for justice, Congress conducted an ofcial inves- agency discretion and implementation of relief, specif- tigation, and Congress amended the Staford Act to pre- cally permanent work. Limiting discretion would allow for vent a similar response in the future. Maria’s devastation more adequate judicial review to guarantee that populations in Puerto Rico exposed a critical faw in U.S. disaster relief afected by major disasters receive the relief they deserve. To similar to Katrina. Unlike Puerto Rico, there was no debate properly protect the American people, there must be a fun- about the federal government’s responsibility to the people damental change in U.S. disaster relief policy. Disaster aid of New Orleans. Te destruction in Puerto Rico not only can no longer be view as discretionary. Te failed responses debilitated the island, but also sparked controversy over the to Maria and the Puerto Rican people cannot be repeated. federal government’s responsibility to the territory, creat- Tis nation must learn from these failures and strive to better ing another hurdle to receiving adequate aid.265 Because of protect Americans who are victims of natural disasters.

266. Milken Inst. of Pub. Health, Ascertainment of the Estimated Excess 265. As of September 26, 2017, 50 percent of Americans did not know Puerto Ri- Mortality From Hurricane Maria in Puerto Rico 3 (2018), https://public cans are United States citizens. Kyle Dropp & Brendan Nyhan, Nearly Half of health.gwu.edu/sites/default/files/downloads/projects/PRstudy/Acertain Americans Don’t Know Puerto Ricans Are Fellow Citizens, N.Y. Times (Sept. 26, ment%20of%20the%20Estimated%20Excess%20Mortality%20from%20 2017), https://www.nytimes.com/2017/09/26/upshot/nearly-half-of-americans- Hurricane%20Maria%20in%20Puerto%20Rico.pdf [https://perma.cc/7BMK- dont-know-people-in-puerto-ricoans-are-fellow-citizens.html. PG6T].

104 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 The Suniva Petition: The Economic Effects of Section 201 Safeguards on Crystalline Silicon Photovoltaic Cells

Eashaa D. Parekh*

illions of Americans partially source their elec- allowing members to temporarily suspend their obligations tricity from solar panels that have rapidly spread while reassuring others of an eventual return to compliance.11 throughout the country since 2010.1 Tis surge Recently, solar panel and cell manufacturers have Min solar panels is attributable to several factors, including attempted to avail themselves of escape clauses by fling the their sharply declining cost.2 While many American con- Suniva Petition. Te Petition, fled by SolarWorld Ameri- sumers agree that solar power is a good thing, the infux cas, Inc.,12 a wholly owned subsidiary of the German com- of low-cost supplies from overseas has been problematic for pany SolarWorld, and Suniva, an equipment maker based American manufacturers, driving them into bankruptcy.3 in Georgia,13 required the Trump Administration to issue Manufacturers are fghting back with a trade case that puts one of its frst major trade decisions.14 Political scientists and the issue of government intervention and any possible rem- economists have argued that the outcome will signifcantly edy for American businesses in the hands of the Donald impact the competitiveness of the domestic solar industry.15 Trump Administration.4 Tis is especially true because Section 201 tarifs have not Section 201 of the U.S. Trade Act of 19745 was passed to been invoked by the U.S. International Trade Commission mitigate the economic and political disruption caused by glo- (ITC or Commission)16 since 2001, when they were used for balization and liberalized trade.6 It authorizes the President steel products.17 to impose temporary trade barriers, called safeguards, to pro- Opponents of the petition, primarily the Solar Energy tect domestic industries injured or threatened by imports.7 Industry Association (SEIA), have argued that increased Section 201 safeguards facilitate “positive adjustment[s] to tarifs threaten the labor market and the jobs of workers import competition,”8 which restore the competitiveness of employed in the fnancing and oversight of major solar proj- a domestic industry by allowing it to successfully compete 9 with imports from foreign manufacturers. However, such 11. See Krzysztof J. Pelc, Seeking Escape: Te Use of Escape Clauses in International safeguards must comply with the Global Agreement on Tar- Trade Agreements, 53 Int’l Stud. Q. 349, 349 (2009). ifs and Trade (GATT),10 which contains an “escape clause,” 12. SolarWorld Americas was a wholly owned subsidiary of SolarWorld, but was purchased by SunPower in 2018. See Lulia Gheorghiu, SunPower Becomes Biggest US Solar Panel Builder With SolarWorld Purchase, Utility Dive, Oct. 4, 2018, https://www.utilitydive.com/news/sunpower-becomes-biggest- us-solar-panel-builder-with-solarworld-purchase/538815/ [https://perma. * J.D., Class of 2019, Te George Washington University Law School. cc/6XLM-QX77]. Eashaa D. Parekh is originally from Mumbai, India. She is a corporate 13. See Suniva, http://www.suniva.com/about-us.php [https://perma.cc/XT2U- associate at O’Melveny and Myers in New York. K2CX]. Suniva’s majority owner is a Chinese company. See Cardwell, supra note 1. 1. Diane Cardwell, Solar Trade Case, With Trump as Arbiter, Could Upend Market, 14. See Cardwell, supra note 1. N.Y. Times (June 30, 2017), https://www.nytimes.com/2017/06/30/business/ 15. Id. energy-environment/solar-energy-trade-china-trump.html. 16. “Te United States International Trade Commission (USITC) is an indepen- 2. Id. dent, quasi-judicial Federal agency with broad investigative responsibilities on 3. Id. matters of trade.” About the USITC, U.S. Int’l Trade Comm’n, https://www. 4. Id. usitc.gov/press_room/about_usitc.htm [https://perma.cc/Z9MU-E7VW] 5. See 19 U.S.C. § 2251 (2012). (last visited Oct. 29, 2019). Te Commission is comprised of six Commis- 6. See David Ryan, Te Efects of Section 201 Safeguards on U.S. Industries, 44 sioners who are nominated by the President and confrmed by the U.S. Senate. Geo. J. Int’l L. 249, 251 (2012). See 19 U.S.C. § 1330(a)–(b) (2004); Commissioner Bios, U.S. Int’l Trade 7. See 19 U.S.C. § 2251; Ryan, supra note 6 (defning safeguards). Comm’n, https://usitc.gov/commissioner_bios (last visited Oct. 29, 2019). 8. 19 U.S.C. § 2251(a). 17. See Steel, Inv. No. TA-201-73, USITC Pub. 3479 (Dec. 2001); U.S. Int’l 9. Id. § 2251(b)(1)(A). Trade Comm’n, Import Injury Investigations Case Stat. (FY 1980–2008) 10. General Agreement on Tarifs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 tbl.14 (Feb. 2010), https://www.usitc.gov/trade_remedy/documents/histori- U.N.T.S. 194 [hereinafter GATT]. cal_case_stats.pdf; Ryan, supra note 6, at 264–65.

Winter 2020 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW 105 106 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 ects.18 As evidence, SEIA has conducted studies suggesting I. Solar Energy Trade in the United States increased tarifs would result in the loss of 88,000 jobs.19 Te losses, SEIA contends, would come from a variety of sectors: A. Introduction to Crystalline Silicon Photovoltaic Cells SEIA forecasts that solar jobs would be lost in all segments of the market. Te utility-scale market, which has paced the Solar energy is harnessed/captured by converting sunlight industry’s growth for years, would see jobs shrink by 60 per- into electric power.22 Tis process utilizes solar and fat pan- cent, while residential and commercial employment would 23 20 els comprised of several solar cells. Solar panels may com- fall by 44 percent and 46 percent, respectively. prise photovoltaic cells (PV cells),24 the production of which Tis Note examines the legal standards implemented by has increased by approximately forty percent in the last few 25 World Trade Organization (WTO) law, the Suniva Peti- years. Among PV cells, a majority are Crystalline Silicon 26 tion proceedings, and the impact they are likely to have on PV (CSPV) cells and modules. CSPV cells are preferred the U.S. market and international trade of solar panels. In because silicon is non-hazardous, and represents twenty-six 27 doing so, this Note argues that tarifs are unlikely to have percent of the earth’s crust. CSPV cells provide consumers the expected efects on solar cells because (1) they are likely with the highest energy conversion efciencies of all com- 28 to be held inconsistent with WTO21 law, (2) adverse rulings mercial solar cells and modules, converting sunlight into 29 by the WTO will undermine their efectiveness, and (3) even electricity for use and distribution through the electric grid. if they are consistent with WTO law, they are likely to have Tere are four markets for CSPV cells and modules: an negative economic consequences and create impediments to of-grid market segment and three on-grid markets compris- 30 international trade. ing residential, non-residential, and utility markets. Te Part I describes crystalline silicon photovoltaic cells, their fabrication cost for solar panels includes the cost of the sili- 31 value chain, and their signifcance in the renewables market con substrate, cell processing, and module processing. Tis in the United States. Part II provides a detailed analysis of the cost is signifcantly impacted by the market price for poly- 32 Section 201 regime and how proceedings under the statute silicon feedstock. Conclusively, a reduction in the cost of function. It also discusses international jurisprudence gov- the silicon substrate remains one of the signifcant goals in 33 erning Section 201 proceedings, assessing prior Section 201 the CSPV industry. determinations and their inconsistency with WTO law. Part II also analyzes the Suniva Petition, discussing the salient B. Solar Energy Trade and the Renewable Job Market issues purported by the case and the Commission’s fndings. in the United States Part III discusses the implications of the remedies proposed by the Commission, arguing that they are unlikely to have According to a 2011 SEIA report, the United States was one the intended efect of increasing domestic production. Part IV of the largest net exporters of solar energy products with proposes a three-prong solution, which includes: (1) feed-in exports amounting to $1.9 billion in 2010.34 Te Report tarifs, (2) increasing project fnancing through government stated that the imports of PV modules amounted to $2.4 loans, and (3) incorporating an “unforeseen developments” billion 2010.35 In 2010, the United States had achieved a standard into Section 201. positive trade balance with China ranging between $247 and $540 million.36

22. See Solar Power, AENews: Solar Power, http://www.alternative-energy-news. info/technology/solar-power [https://perma.cc/JRB4-ZUUC] (last visited Oct. 29, 2019). 23. Id. 24. Solar panels may also comprise of silicon solar cells, polycrystalline solar cells, and thin flm solar cells, among others. See Common Types of Solar Cells, Alt. Energy, http://www.altenergy.org/renewables/solar/common-types-of-solar- cells.html [https://perma.cc/T82G-J6HW] (last visited Oct. 29, 2019). 25. See Tatsuo Saga, Advances in Crystalline Silicon Solar Cell Technology for Indus- 18. Cardwell, supra note 1; see also Solar Energy Indus. Ass’n, Suniva’s So- trial Mass Production, 2 NPG Asia Materials 96, 96 (2010). lar Trade Case, the U.S. International Trade Commission, and the 26. Id. Solar Industry’s View (2017), https://www.seia.org/sites/default/fles/Suni- 27. Id. va-Trade-Case-Membership-Factsheet_SEIA_6-15-2017-fnal.pdf [https:// 28. Id. perma.cc/RE4C-6E9T]. 29. Crystalline Silicon Photovoltaic Cells and Modules From China, Inv. Nos. 19. Stephen Lacey, 88,000 American Solar Jobs Are Under Treat From Suniva’s 701-TA-481, 731-TA-1190, USITC Pub. 4295, 33 (Dec. 2011) (Preliminary). Trade Case, Says SEIA, Greentech Media (June 16, 2017), https://www. 30. Id. at 34. greentechmedia.com/articles/read/88000-solar-jobs-are-under-threat-from- 31. See Saga, supra note 25, at 5. sunivas-trade-case-says-sei#gs.vD9VJAY [https://perma.cc/9HH4-TJPT]. 32. Id. 20. Id. 33. Id. at 12. 21. Te World Trade Organization is the only global international organization 34. See Greentech Media, U.S. Solar Energy Trade Assessment 2011: Trade that deals with rules of trade between nations. It acts as a forum for negotiating Flows and Domestic Content for Solar Energy-Related Goods and trade agreements, it settles trade disputes between its members, and supports Services in the United States 1, 6 (2011), https://www.seia.org/sites/de- needs of developing countries. Te WTO, World Trade Org., https://www. fault/fles/GTM-SEIA_U.S._Solar_Energy_Trade_Balance_2011.pdf. wto.org/english/thewto_e/thewto_e.htm [https://perma.cc/X5X4-M723] (last 35. Id. visited Oct. 29, 2019). 36. Id. Winter 2020 THE SUNIVA PETITION 107

Te United States is a key player in the solar market and the competitiveness of the domestic industry engaged in the its domestic solar market has grown quickly in recent years.37 making of such articles.47 Unlike U.S. anti-dumping laws, According to Rhone Resch, SEIA’s former CEO, energy is which authorize duties to counter unfair trade practices, one of the key industries helping the United States regain Section 201 does not require a fnding of an unfair trade “manufacturing leadership.”38 In order to remain competi- practice.48 Tus, safeguards stemming from a Section 201 tive, the United States must be “innovative and proactive in investigation apply regardless of whether foreign producers fnding solutions and providing opportunities for develop- and exporters are engaging in unfair practices. However, the ment comparable to those opportunities provided to com- “serious injury” standard prescribed by Section 201 imposes petitors overseas.”39 heightened injury and causation requirements.49 Additionally, a national green jobs assessment by the Domestic industries that are seriously injured or threat- Brookings Institution stated that renewable energy employs ened by such increased imports may petition the ITC for approximately 2.7 million workers in industries such as solar import relief, although only the President may impose such photovoltaic, wind, fuel cell, and biofuel.40 Te solar thermal relief.50 Te ITC then determines whether an article “is being sector averaged 18.4% growth per year between 2003 and imported . . . in such increased quantities as to be a sub- 2010, creating 3,700 jobs, whereas the solar PV sector grew stantial cause of serious injury, or the threat thereof, to the at a rate of 10.7%, adding 12,286 jobs.41 Te Metropolitan domestic industry producing an article like or directly com- Policy Program has previously noted that one of the key fac- petitive with the imported article.”51 tors impacting this growth was the American Recovery and In making determinations about “serious injury,” the Reinvestment Act (ARRA),42 which provided subsidies for ITC considers (1) whether domestic producing facilities clean energy projects.43 have been signifcantly idled; (2) the inability of frms to conduct domestic production at a reasonable proftable rate; II. The Trade Act of 1974 and Other and (3) employment rates in the domestic industry.52 With Applicable Law respect to “the threat of serious injury,” the ITC evaluates (1) a decline in sales, inventory, wages, production, profts, and employment in the domestic industry; (2) capital genera- A. Section 201 of the Trade Act of 1974 tion to modernize and fnance domestic plants; and (3) the relative import to export ratio in the United States.53 To In U.S. law, safeguards on exports are determined under Sec- assess “substantial cause” the ITC considers (1) increases in tions 201 through 204 of the Trade Act of 1974.44 Section import (either actual or relative to domestic production) and 201 authorizes the President to implement safeguards when (2) a “decline in the proportion of the domestic market sup- 54 the ITC decides that imports are of “increased quantities” plied by domestic producers.” that threaten or seriously injure domestic producers of com- If the Commission makes an afrmative determination of parable or directly competitive articles.45 Tis means that serious injury, it recommends relief that prevents or remedies imports are of such quantities that they seriously injure or the injury and facilitates industry adjustment to import com- 55 impact the competitiveness of domestic producers engaged in petition. Such recommendations can range from quotas, the substantial production of comparable or “like” articles.46 tarifs, or tarif-rate modifcations on import quantities, to a A “serious injury” is “a signifcant overall impairment” to combination of those options with direct fnancial aid to the domestic industry.56 Te President of the United States has the sole discretion to implement such relief and may do so 37. Id. only if he determines that tarifs will positively adjust import 38. U.S. Solar Industry Was Net Global Exporter by $1.9B in 2010, According to 57 GTM Research and SEIA, Greentech Media (Aug. 29, 2011), https://www. competition and the benefts outweigh the costs. In mak- greentechmedia.com/articles/read/us-solar-industry-was-net-global-exporter- in-2010#gs.bETk4fA [https://perma.cc/4249-ZEN9]. 47. 19 U.S.C. § 2252(c)(6)(A)(i), (C) (2012). 39. Id. 48. Understanding Safeguard Investigations, U.S. Int’l Trade Comm’n, https:// 40. See Mark Muro et al., Brookings Inst., Sizing the Clean Economy: www.usitc.gov/press_room/us_safeguard.htm [https://perma.cc/AD6G- A National and Regional Green Jobs Assessment 1, 6 (2011), https:// BCVQ] (last visited Oct. 29, 2019); Kurland, supra note 45, at 613. www.brookings.edu/wp-content/uploads/2016/06/0713_clean_economy.pdf 49. Kurland, supra note 45, at 613. [https://perma.cc/6PGP-KNUG]. 50. 19 U.S.C. § 2251 (2012). 41. See id. at tbl.2. Whereas solar thermal technology concentrates and transforms 51. Id. § 2252(b)(1)(B). Tis “causation” standard has been a key point of con- sunlight into heat that is stored and later transformed into electricity, solar pan- tention in the successful WTO challenges to Section 201 determinations. See els use PV technology to convert sunlight directly into energy. Solar Panels vs Kurland, supra note 45. Solar Termal, GreenMatch, https://www.greenmatch.co.uk/blog/2015/04/ 52. 19 U.S.C. § 2252(c)(1)(A) (2012). solar-panels-vs-solar-thermal [https://perma.cc/U27D-A4SG]. 53. Id. § 2252(c)(1)(B). 42. American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 54. Id. § 2252(c)(1)(C). § 1705, 123 Stat. 115, 145 (2009). 55. Id. § 2252(e). 43. See Muro et al., supra note 40, at 60. 56. Id. 44. See Ryan, supra note 6, at 261. 57. 45. 19 U.S.C. § 2251(b)(1)(A), (e)(2), (4), (f)(1) (2012); Joshua E. Kurland, If the United States International Trade Commission . . . determines Dusting-Of Section 201: Re-Examining a Previously Dormant Trade Remedy, 49 under section 2252(b) of this title that an article is being imported Geo. J. Int’l L. 609, 612 (2018). into the United States in such increased quantities as to be a sub- 46. 19 U.S.C. § 2252(b)(1)(A) (2012). See also 19 U.S.C. § 2252(b)(1)(B) (2012) stantial cause of serious injury, or the threat thereof, to the domestic (defning “substantial cause” as one that is important and not less than any industry producing an article like or directly competitive with the im- other cause). ported article, the President, in accordance with this part, shall take all 108 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 ing this determination, the President must consider (1) the Safeguards, eliminating vague measures and enabling import Commission’s recommendation and report; (2) the beneft to relief in global trade.65 domestic workers and frms from such safeguards; (3) eforts Under the DSU, countries alleging violations of WTO by the domestic industry to make a “positive adjustment to Agreements may bring their complaints to a three-person import competition;” (4) the safeguards’ potential efects; investigation panel that submits opinions to a Dispute Set- (5) the safeguards’ economic and social costs; and (6) the tlement Body (DSB).66 Te DSB comprises representatives efect on taxpayers, industries, articles, consumers, and other from WTO member countries and is responsible for accept- players.58 Te President can impose such safeguards for up to ing or rejecting panel reports.67 Panel reports are generally four years and extend them for a maximum of eight years.59 accepted because a consensus is required for rejection.68 Each Te relief that the President proclaims applies globally on side can appeal panel reports to the seven-Member WTO imports from all countries, although countries with which Appellate Body.69 the United States has entered into a Free Trade Agreement In the past, the DSB and the WTO Appellate Body had (FTA) may be excluded.60 found every safeguard measure implemented by the United States since 1994 to be inconsistent with WTO law.70 Tis B. Applicable WTO and GATT Law is because of the textual diferences between the 1974 Trade Act and WTO law, which follows Article XIX discussed Safeguards were initially codifed in Article XIX of the 1947 above. First, while Article XIX and WTO law state that tar- GATT, which reads in pertinent part: ifs on imports should be levied “as a result of unforeseen developments,” the Trade Act of 1974 does not posit such a If, as a result of unforeseen developments and of the efect requirement, resulting in safeguards that do not meet these of the obligations incurred by a contracting party under requirements.71 Te WTO Appellate Body has consistently this Agreement, including tarif concessions, any product is pointed to the Article XIX “unforeseen developments” clause being imported into the territory of that contracting party as a basis for fnding Section 201 measures inconsistent with in such increased quantities and under such conditions as WTO law.72 Second, WTO law necessitates that injury and to cause or threaten serious injury to domestic producers in causation assessments include an evaluation of factors such that territory of like or directly competitive products, the as increase in imports, market share, sale trends, production, contracting party shall be free, in respect of such product, and productivity, which are excluded from the 1974 Trade and to the extent and for such time as may be necessary to Act.73 It also states that when factors other than increased prevent or remedy such injury, to suspend the obligation in imports are causing injury to a domestic industry at the same whole or in part or to withdraw or modify the concession.61 time as increased imports, the injury caused by such other factors “shall not be attributed to increased imports.”74 Tis However, the defciencies of Article XIX led GATT mem- language is lacking in Section 201, and has led to WTO tri- ber countries to negotiate further to establish an agreement bunals rejecting Section 201 measures. clarifying safeguards.62 Te result was the 1986 Uruguay Round of Multilateral Trade Negotiations, which concluded C. Impact of Tariffs on the Lamb Meat, Gluten, and in 1994 with the creation of the Marrakesh Agreement establishing the World Trade Organization (WTO Agreement), Line Pipe Industries which applies the rules of the GATT.63 Te WTO Agreement requires participating countries to accept all multilateral Past Section 201 cases in industries like lamb meat, gluten, trade agreements negotiated during the Uruguay Round.64 and line pipe have demonstrated that protective measures imposed under the ITC, especially tarifs, do not always It also requires the implementation of a Dispute Settlement 75 Understanding (DSU), which created the Agreement on restore competitiveness. Since the 1974 Trade Act was passed, domestic manufacturers have used Section 201 to

appropriate and feasible action within his power which the President 65. See Marrakesh Agreement Establishing the World Trade Organization, Annex determines will facilitate eforts by the domestic industry to make a 2, Apr. 15, 1994, 1869 U.N.T.S. 401, 33 I.L.M. 1226 [hereinafter DSU]. positive adjustment to import competition and provide greater eco- 66. See id. at arts. 4, 6, 7, 8, 11, 12. nomic and social benefts than costs. 67. See id. at art. 16. Id. § 2251(a). 68. See id. 58. 19 U.S.C. § 2253(a)(2) (2012). 69. See id. at art. 17. 59. See id. § 2253(e). 70. Ryan, supra note 6, at 263. 60. Stuart M. Rosen & Andrew Ryu, 11.02 General Safeguards, in International 71. Id. Trade Laws of the United States, ¶ 11.02 General Safeguards, 2013 WL 72. See, e.g., Panel Report, United States—Defnitive Safeguard Measures on Imports 5356710, at *1 (Mark A. Neville Jr. ed.) [hereinafter International Trade Laws of Certain Steel Products, 108, WTO Doc. WT/DS248/R (adopted July 11, of the United States]. 2003); Appellate Body Report, United States—Defnitive Safeguard Measures on 61. GATT, supra note 10, at art. XIX(1)(a). Imports of Certain Steel Products, WTO Doc. WT/DS248/AB/R (adopted Nov. 62. Ryan, supra note 6, at 250. 10, 2003). 63. Jeanne J. Grimmett, Cong. Research. Serv., RS22154, World Trade Or- 73. Ryan, supra note 6, at 263. ganization (WTO) Decisions and Their Effect in U.S. Law 1 (2011). 74. Agreement on Safeguards, supra note 63, at art. 4.2(b). See generally Agreement on Safeguards, Marrakesh Agreement Establishing 75. See Maggie Parkhurst & Joel Binstock, How the Suniva Trade Dispute Is Reshap- the World Trade Organization, Annex 1A, Apr. 15, 1994, 1869 U.N.T.S. 154 ing the Solar Industry, Sustainable Capital Fin. (Oct. 3, 2017), http://www. [hereinafter Agreement on Safeguards]. scf.com/blog/suniva-trade-dispute-reshaping-solar-industry [https://perma.cc/ 64. Ryan, supra note 6, at 250. D727-RTV4]. Winter 2020 THE SUNIVA PETITION 109 argue that cheap imports have caused injury in seventy-fve meat over a three-year period.86 He also developed a package cases.76 Te list of industries is vast: footwear, citizens band to provide fnancing to the domestic lamb meat industry.87 radios, mushrooms, lamb meat, clothespins, and steel.77 Out In the aftermath of the safeguards, the domestic lamb of the seventy-three cases between 1975 and 2001, the ITC meat industry declined in absolute production and price and found injury and recommended remedies in thirty-four of relative to imports.88 In 1998, the ITC ruled that the lamb those cases.78 Of these thirty-four, the President implemented meat industry was threatened with serious injury partially remedies in nineteen cases, ranging from tarifs to quotas to a because domestic production had decreased by twenty-three combination of the two.79 Since the WTO ruled against U.S. percent from 1993 to 1997.89 Te rate of domestic production steel safeguards in 2003, the ITC has not received petitions continued to decrease signifcantly during and following the to initiate a Section 201 investigation on safeguards until implementation of the safeguards.90 Nevertheless, imports recently.80 Te subsequent sections explore the economic continued to increase during the years of the safeguards,91 impact of Section 201 safeguards on three industries: lamb and though the price of lamb meat decreased during safe- meat, circular welded carbon quality line pipe (line pipe), guards, it increased signifcantly following the safeguards.92 and wheat gluten. While Section 201 safeguards have been Te case study in lamb meat therefore shows that tarifs did used in other industries, data and studies on post-safeguard not have the intended impact on the industry; rather it eco- industry performance is limited. Tus, this Note is limited nomically deteriorated over time. to examining the economic impact of safeguards on these three industries. 2. Economic Impact of Safeguards on Circular Welded Carbon Quality Line Pipes 1. Economic Impact of Safeguards on Lamb Meat Te second Section 201 safeguard action involved an investigation of imports of circular welded carbon quality line pipe Te U.S. lamb industry had been in decline for ffty years by (line pipe), which is widely used in the oil and gas industry.93 1999.81 Tis was the result of surging imports from compa- In the 1990s, ffteen frms dominated the domestic line pipe nies in Australia and New Zealand, which used new preser- industry.94 Line pipe sales in the 1990s comprised a few large vation technologies to cheaply export fresh lamb meat to the pipeline development projects.95 Tus, imports and domes- U.S. market.82 Domestic manufacturers petitioned the ITC tic production substantially fuctuated due to correspond- to implement safeguards,83 upon which the ITC initiated an ing changes in oil and gas prices.96 Te ITC investigated investigation of fresh, chilled, and frozen lamb meat imports the impact of imports in December 1999, and subsequently in 1998.84 concluded that increased quantities of imported line pipe Te ITC found that the imports of lamb meat were a sub- resulted in serious injuries to the domestic industry.97 stantial cause of threat or injury to the domestic industry, Te ITC recommended implementing safeguards that and recommended that the President of the United States amounted to a four-year tarif-rate quota, increasing tar- implement a tarif structure of forty percent in the frst year, ifs to thirty percent beyond 151,124 tons in the frst year thirty-two percent in the second year, and twenty-four per- and another ten percent in the subsequent years.98 President cent in the third year.85 President Bill Clinton accepted these Clinton adopted a three-year tarif at nineteen percent in the general terms, levying a tarif-rate quota on imports of lamb frst year, ffteen percent in the second, and eleven percent

76. See Stephen Lacey, Trade Protections Didn’t Work for Lamb Meat, Line Pipe or 86. See Proclamation No. 7208, 64 Fed. Reg. 37389 (July 9, 1999). Gluten. Will Tey Work for US Solar?, Greentech Media (Sept. 25, 2017), 87. Id. https://www.greentechmedia.com/articles/read/will-trade-protectionism- 88. See Ryan, supra note 6, at 275. work-for-solar [https://perma.cc/9P3E-4YPP]. 89. Lamb Meat Recommendation, supra note 85, at I-14, I-16. 77. Id. 90. For instance, in the second year after the safeguards were terminated, produc- 78. Shayle Kann (@ShayleKann), Twitter (Aug. 28, 2017, 7:18 AM), https:// tion decreased by eight percent. From 2001 to 2010, production decreased twitter.com/shaylekann/status/902173464575885313 [https://perma.cc/ by twenty-six percent. Rachel J. Johnson, U.S. Dep’t of Agric., Weather QRK2-DLGR]. Events Afect Cattle Markets, in Livestock, Dairy, and Poultry Outlook 1, 79. Id. 19 (2011); see Ryan, supra note 6, at 275. 80. U.S. Int’l Trade Comm’n, Import Injury Investigations Case Statistics 91. Id. (FY 1980-2008) 96-97 (2010), https://www.usitc.gov/trade_remedy/docu- 92. Ryan, supra note 6, at 276. ments/historical_case_stats.pdf [https://perma.cc/8YBD-KQGE]. Since 2003, 93. See Carbon Steel Pipe, ScienceDirect, https://www.sciencedirect.com/topics/ petitions have been brought specifcally against China, under Section 421, engineering/carbon-steel-pipe [https://perma.cc/6C2Y-WQTK] (last visited which is a separate law. It is codifed as 19 U.S.C. § 2451 (2012), and focuses Oct. 29, 2019). on U.S. obligations with China’s accession to the WTO. 94. Ryan, supra note 6, at 292. 81. Ryan, supra note 6, at 266-67. 95. Id. at 293. 82. Id. 96. See Circular Welded Carbon Quality Line Pipe, Inv. No. TA-201-70, USITC 83. Id. Pub. 3261, I-10 (Dec. 1999). Tree commissioners found a “serious injury” 84. See Christy Ledet, Causation of Injury in Safeguards Cases: Why the U.S. Can’t while two found “a threat of serious injury.” One commissioner made a nega- Win, 34 L. & Pol’y Int’l Bus. 713, 730 (2003). tive determination. Id. at I-5‒I-6. 85. See Lamb Meat, Inv. No. TA-201-68, USITC Pub. 3176, I-26–I-27 (Apr. 97. Id. 1999) [hereinafter Lamb Meat Recommendation]. 98. Id. at I-75. 110 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 in the third year, and set a quota at 9,000 tons per country the frst year with six percent increases in successive years.111 per year.99 Te ITC also suggested allocating specifc sub-quotas within Although domestic production increased in terms of abso- the total quota amount to the EU, Australia, and other non- lute production, it continued to decline relative to imports. excluded countries.112 Te ITC determination of injury to the domestic industry In response, President Clinton instituted a three-year relied in part on the twenty-four percent decrease in produc- quota set at 126 million pounds in the frst year, with six tion from 881,946 tons in 1997 to 669,876 tons in 1998.100 percent annual increases.113 However, the quota was improp- However, this decline continued after the implementation erly implemented.114 For instance, in the frst year, over 11.9 of safeguards, reaching 409,292 tons in 2002.101 After the million pounds of wheat gluten were improperly imported, termination of the safeguards, domestic production climbed resulting in the issuance of a second proclamation.115 Tis back to 769,609 tons in 2007.102 Additionally, although reduced the EU’s second year quota to 45.4 million pounds.116 imports increased in the years before safeguard implementa- A third proclamation was also issued, which re-allocated the tion and decreased during the safeguards, they surged by 121 quota on a quarterly basis.117 percent from the 1998 level in the frst fve years following In the aftermath of the safeguards, the domestic indus- the safeguards.103 Te case of carbon line pipes thus shows try held its lowest share of the domestic market and con- that tarifs failed to have the intended impact on the domes- tinued to face competition from cheaper imports, some sold tic industry. at prices below the domestic cost of production.118 Tis was because imports doubled in the fve years after safeguard ter- 3. Economic Impact of Safeguards on mination.119 Because the quota on imports was not efectively Wheat Gluten implemented in the frst year, imports increased to 214 million pounds in 1999.120 Although tightened quotas decreased Until the 1980s, wheat gluten producers were the predomi- imports to 201 million pounds and 171 million pounds in 121 nant producers of gluten consumed in the United States.104 2000 and 2001, respectively, when the safeguards termi- Wheat gluten is a good made from gluten, the main pro- nated, imports surged, reaching 295 million pounds in 2003, 122 tein of wheat.105 Te 1980s and 1990s saw a steady rise in and a high of 397 million pounds by 2004. Tus, the case the imports of wheat gluten from the European Union of the wheat gluten industry demonstrates that tarifs failed (EU), which increased its share in the domestic market to to have the intended impact on the industry. ffty percent by 1996.106 Te domestic industry, comprising four frms, struggled to compete with imports to supply the D. Dispute Between Suniva and SolarWorld increasing demand of wheat gluten in the United States.107 Te Wheat Gluten Industry Council, comprised of two of Recently, Section 201 has become a central issue in a dispute the four U.S. producers, petitioned the ITC to initiate safe- between domestic and foreign manufacturers of solar pan- 123 guards against imports.108 els. Te history of this dispute features a Section 201 trade Te ITC concluded that the increased imports were a war between the United States and China that began in 2011 substantial cause of the serious injury impacting domestic when SolarWorld, and six other domestic solar manufactur- 124 manufacturers of wheat gluten.109 Based on these fndings, ers, fled a complaint with the ITC. Te complaint alleged the Commission recommended imposing a quota on wheat that Chinese companies were using unfair government sub- 125 gluten.110 Te Commission recommended a four-year quota sidies to sell merchandise for cheaper prices. SolarWorld on imports at one hundred and twenty-six million pounds in emerged victorious in that matter, as well as in a similar dispute against Taiwan, where Chinese manufacturers had 126 99. See Proclamation No. 7274, 65 Fed. Reg. 9193 (Feb. 18, 2000). Te safeguards allegedly turned to circumvent tarifs. Despite the tarifs were efective on March 1, 2000. Id. at 9194. on Taiwanese and Chinese imports of solar panels instituted 100. See Ryan, supra note 6, at 296. See also Certain Circular Welded Carbon Qual- in those cases, Suniva and SolarWorld subsequently con- ity Line Pipe: Evaluation of the Efectiveness of Import Relief, Inv. No. TA- 204-10, USITC Pub. 3628, I-8 (Aug. 2003). 101. See Ryan, supra note 6, at 296; Circular Welded Carbon Quality Steel Line Pipe From China, Inv. No. 701-TA-455, USITC Pub. 4055, IV-4–IV-2 (Jan. 2009) [hereinafter Line Pipe From China]. 111. Id. at I-28‒I-29. 102. Ryan, supra note 6, at 297-98; Line Pipe From China, supra note 101, at IV-4. 112. Id. at I-21. 103. Ryan, supra note 6, at 297-98. 113. See Proclamation No. 7103, 63 Fed. Reg. 30359 (June 3, 1998). 104. Id. 114. See Ryan, supra note 6, at 283. 105. Wheat Gluten, Inv. No. TA-204-2, USITC Pub. 3258, v (Dec. 1999), https:// 115. Id. www.usitc.gov/publications/docs/pubs/204/pub3258.pdf [https://perma. 116. Id. cc/8Y85-TXZE]. 117. Id. at 285. 106. Ryan, supra note 6, at 297-98. 118. Id. 107. Id. at 280. 119. Id. 108. Id. 120. Ryan, supra note 6, at 285. 109. See Wheat Gluten, Inv. No. TA-201-67, USITC Pub. 3088, I-16–I-14 (Mar. 121. Id. 1998). 122. Id. 110. See id. at I-21, I-27. Pursuant to NAFTA, 19 U.S.C. § 3371 (2012), the ITC 123. See Cardwell, supra note 1. made a negative fnding with respect to imports from Canada and Mexico. Te 124. Id. ITC concluded that imports from those countries should be excluded from the 125. Id. quota. Id. at I-15. 126. Id. Winter 2020 THE SUNIVA PETITION 111 tested that foreign manufacturers continued to evade tarifs year.138 Te in-quota amount, in turn, would increase by 0.2 by importing from countries not covered under the tarifs.127 gigawatts per year.139 Te two companies sought blanket protections to curb Chairman Rhonda Schmidtlein suggested implementing a foreign manufacturers from evading such tarifs in 2017.128 tarif at thirty-fve percent for CSPV modules with a one per- Teir case relied on Section 201 of the Trade Act of 1974, cent reduction for four years.140 With respect to CSPV cells, which was last used in 2003 when President George W. Bush Schmidtlein recommended a tarif-rate quota of 0.5 giga- levied tarifs on steel.129 watts.141 Additionally, she suggested that imports within the quota be subject to a ten percent tarif.142 For those exceeding 1. Remedies Requested by Suniva and the 0.5-gigawatt threshold, she suggested an increase in the SolarWorld tarif to thirty percent over four years, with an incremental reduction in the quota and tarif rate.143 Suniva and SolarWorld sought Section 201 protections In comparison, Commissioner Meredith Broadbent pro- due to the alleged fnancial harm they have sufered due to posed an 8.9-gigawatt quota on CSPV modules and cell 144 imported CSPV cells.130 As a result of such harm, Suniva imports. She suggested increasing the quota by 1.4 giga- 145 fled for Chapter 11 bankruptcy protection in April 2017, watts each year over four years. She stated: and SolarWorld, following several layofs, raised six million dollars to sustain factory operations.131 My proposed quantitative restriction for the frst year is set at In seeking such protections, Suniva initially recom- a volume intended to stabilize imports at a lower level than mended tarifs of forty cents per watt, but later amended the volume that occurred in 2016. I have also recommended its request to twenty-fve cents per watt on CSPV cells, and increasing the annual quantitative restriction steadily in thirty-two cents per watt on modules.132 Suniva also initially each successive year to accommodate expected growth. indicated a foor price on all imported CSPV cells and mod- Tese remedies will help address the serious injury to the ules of seventy-eight cents per watt, later reducing it to sev- domestic industry by preventing further surges in imports in 133 response to changes in U.S. demand or in response to higher enty-four cents per watt. Similarly, SolarWorld requested 146 tarifs starting at twenty-fve cents and thirty-two cents per than expected global supply. watt on CSPV cells and modules, respectively.134 SolarWorld also requested an import quota of 0.22 gigawatts for CSPV On December 28, 2017, the ITC issued a ten-page report cells, and 5.7 gigawatts for CSPV modules.135 that argued that the solar panel trade situation was unforeseen, in compliance with the “unforeseen development” 147 2. ITC’s Proposed Remedies requirements prescribed by WTO law. Te ITC argued that the availability of cheap solar panels resulted in anti- 148 ITC Commissioners Irving Williamson and David Johan- dumping laws on Chinese manufacturers, because China incentivizes solar panel manufacturers by providing pref- son recommended a “thirty percent ad valorem tarif on 149 imported CSPV modules, to decline by fve percent over four erential loans and taxes. Te ITC argued that Chinese years.”136 Te Commissioners also suggested a four-year tar- manufacturers circumvented these countervailing duties by manufacturing in countries like Malaysia, Tailand, Korea, if-rate quota on CSPV cells, allowing for up to one gigawatt 150 of tarif-free cell imports,137 indicating that any imports of and Vietnam instead. CSPV cells exceeding one gigawatt should be subject to a Interpreting “unforeseen” as “unexpected,” the ITC thirty percent tarif, which would decrease by fve percent per determined that imports of CSPV were unexpected. Te ITC concluded151:

138. Id. 139. Id. 140. Id. at 2. 127. Id. 141. Id. 128. See Lacey, supra note 19. 142. Id. 129. See Cardwell, supra note 1. 143. Id. 130. See Julia Pyper, Suniva and SolarWorld Claim Teir Trade Case Will Create More 144. Id. at 3. Tan 114,800 Jobs, Greentech Media (Aug. 9, 2017), https://www.green- 145. Id. techmedia.com/articles/read/suniva-solarworld-claim-trade-case-will-create- 146. Id. at 128. more-than-114800-jobs#gs.bxKLZw4 [https://perma.cc/8YHF-VC3E]. 147. See Supplemental Report of the USITC Regarding Unforeseen Developments 131. Id. (Dec. 13, 2017), Inv. No. TA-201-75, USITC Pub. No. 4739 (Dec. 28, 2017) 132. See Julia Pyper & Julian Spector, Suniva, SolarWorld and Teir Opponents File [hereinafter Supplemental Report]. New Trade Remedy Proposals, Greentech Media (Sept. 29, 2017), https:// 148. Anti-dumping laws are those which prevent exports of goods at prices substan- www.greentechmedia.com/articles/read/suniva-solarworld-file-new-trade- tially lower than those charged in the home country. See Anti-Dumping, Sub- remedy-proposals#gs.Q3Cuptk [https://perma.cc/WE9L-2R8W]. sidies, Safeguards: Contingencies, etc., World Trade Org., https://www.wto. 133. Id. org/english/thewto_e/whatis_e/tif_e/agrm8_e.htm [https://perma.cc/PA4D- 134. Id. T6VR] (last visited Oct. 29, 2019). 135. Id. 149. See Supplemental Report, supra note 147. 136. Crystalline Silicon Photovoltaic Cells (Whether or Not Fully Assembled Into 150. Id. Other Products), Inv. No. TA-201-75, USITC Pub. No. 4739, 140 (Nov. 151. Id.; Kenneth Nunnenkamp, USITC Responds to Trade Representative’s Request 2017) [hereinafter CSPV Recommendations]. to Identify “Unforeseen Developments” Tat Led to Solar Cell Decision, JD- 137. Id. SUPRA (Jan. 17, 2018), https://www.jdsupra.com/post/documentViewer. 112 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2

Te Negotiators could not have foreseen that the U.S. gov- 1. Causation ernment’s use of authorized tools, such as anti-dumping and countervailing duty measures on imports from China, To implement safeguards under WTO law, a causal link would have limited efectiveness and instead lead to rapid must exist between increased imports and serious injury.159 changes in the global supply chains and manufacturing Employing a more stringent standard than that set by Sec- processes in order to facilitate U.S. imports of non-covered tion 201, which requires only that imports be no less impor- products from China and Taiwan and later U.S. imports tant any other source of industry,160 WTO law requires that from Chinese producers’ afliates in other countries.152 the efects caused by increased imports be “distinguished 161 Te Commission further concluded that the proposed from the injurious efects caused by other factors.” Rely- safeguard remedies are appropriate because the United States ing on Article 4.2(b) of the Safeguards Agreement in making presumed that China would abide by its trade obligations this determination, which required a “causal link” between and not engage in “unexpected” behavior of over-develop- serious injury and increased imports, the WTO Appellate ing CSPV cells and modules.153 On January 22, 2018, the Body (Appellate Body) held that “[w]hen factors other than Trump Administration imposed the recommended tarifs increased imports are causing injury to the domestic indus- 154 try at the same time, such injury shall not be attributed to on imported solar cells and modules —thirty percent in 162 the frst year declining to ffteen percent over four years.155 increased imports.” Te frst 2.5 gigawatts of CSPV cells will not be subject to Applying this principle to Section 201 cases, the Appellate the tarif.156 Body has previously rejected U.S. safeguards for inadequately explaining the key elements of injury determinations.163 For III. Section 201 Safeguards Are Unlikely instance, with line pipe, the Appellate Body concluded that the ITC’s determination of a correlation between imports and seri- to Have the Intended Effects on the ous injury could be explained by other factors.164 Te Appellate Solar Industry Body found the ITC failed to consider alternative causes and explain how the serious injury was not caused by the other fac- Te Trump Administration’s imposed tarifs are unlikely to tors.165 Similarly, with wheat gluten, the Appellate Body found have their intended efects of increasing the domestic indus- that the ITC’s methodology for fnding causation by examin- try’s competitiveness. Instead, the proposals are likely to ing profts and losses in the wheat gluten industry was insuf- result in economic losses for several solar industry players and fcient.166 With lamb meat, the Appellate Body rejected the are unlikely to improve market efciency because: (1) the tar- ITC’s report because it did not explain how other factors were ifs are likely inconsistent with WTO law, (2) adverse rul- not attributable to the injury the imports caused.167 ings by the WTO are likely to undermine the efectiveness However, this is unlikely to be an issue in this matter of safeguards, and (3) even if the tarifs are consistent with because the ITC, in its report, weighed the efects of imports WTO law, tarifs are detrimental to the U.S. economy and and arguments that the substantial injury was caused by fac- create impediments to international trade.157 tors such as declining government incentive programs, the cost of poly-silicon raw materials, and the need for CSPV A. The Tariffs Are Likely Inconsistent With WTO Law products to meet grid parity with other sources of electricity.168 In rejecting these arguments, the ITC found that gov- Te proposed tarifs are likely inconsistent with WTO law. ernment incentives were ofset by the cost of generating solar Pursuant to WTO law, in order to employ a safeguard mea- energy, and that such incentives were not directed to man- sure, there must be causation, parallelism, and unforeseen ufacturers of CSPV products.169 Te ITC also found that developments—factors that do not align with the require- although poly-silicon costs declined, the domestic industry ments prescribed by Section 201.158

127, 149 (2004). aspx?fd=410dfdb8-61ac-4575-aeb4-e8330c06df27 [https://perma.cc/MD2Y- 159. Id. 3BUM]. 160. 19 U.S.C. § 2252(b)(1)(B) (2012) (defning “substantial cause” of injury as “a 152. Supplemental Report, supra note 147; Megan Geuss, Imports Boom as Solar cause which is important and not less than any other cause”). Tarif Deadline Looms and ITC Reafrms Position, Ars Technica (Jan. 3, 2018, 161. Appellate Body Report, United States—Defnitive Safeguard Measures on 4:35 PM), https://arstechnica.com/tech-policy/2018/01/foreign-imports- Imports of Wheat Gluten From the European Communities, ¶¶ 69-70, WTO boom-as-solar-tarif-deadline-looms-itc-reafrms-position/ [https://perma.cc/ Doc. WT/DS166/AB/R (adopted Dec. 22, 2000) [hereinafter U.S.—Wheat H9TW-AL99]. Gluten]. 153. Supplemental Report, supra note 147. 162. Id. at ¶¶ 65-69. 154. See Supplemental Report, supra note 147; Ana Swanson & Brad Plumer, 163. Id. Trump Slaps Steep Tarifs on Foreign Washing Machines and Solar Products, 164. Appellate Body Report, United States—Defnitive Safeguard Measures on Im- N.Y. Times (Jan. 22, 2018), https://www.nytimes.com/2018/01/22/business/ ports of Circular Welded Carbon Quality Line Pipe From Korea, WTO Doc. trump-tarifs-washing-machines-solar-panels.html?mtrref=www.google.com. WT/DS202/R/27 (adopted Oct. 29, 2001). 155. Swanson & Plumer, supra note 154. 165. Id. 156. Id. 166. See U.S.—Wheat Gluten, supra note 161, at ¶¶ 65-69. 157. See Kevin Armonio, Securing California’s Solar Future: Strategies to Mitigate the 167. See Appellate Body Report, United States—Safeguard Measure on Imports of Efects of the U.S.-Chinese Solar Trade Dispute on California’s New Renewable Fresh, Chilled or Frozen Lamb Meat, WTO Doc. WT/DS177/AB/R/18 (ad- Energy Goals, 22 Hastings W.-N.W. J. Envtl. L. & Pol’y 109, 113 (2016). opted May 1, 2001) [hereinafter U.S.—Lamb Meat]. 158. See Morgan Frohman, Is Section 201 of the Trade Act of 1974 Consistent With 168. See CSPV Recommendations, supra note 136, at 61-65. the World Trade Organization Agreement on Safeguards?, 17 N.Y. Int’l L. Rev. 169. Id. Winter 2020 THE SUNIVA PETITION 113 maintained production volume.170 Tus, the ITC found that developments “must be demonstrated as a matter of fact” for the substantial injury was not caused by other factors but compliance with Article XIX.184 rather by increased imports.171 In this matter, the ITC issued a ten-page report fnding the solar panel trade situation was unforeseen, in compliance 2. Parallelism Requirement with Article XIX requirements.185 Because China incentivizes solar panel manufacturers by providing preferential loans Parallelism requires that imports in the injury determina- and taxes, the ITC found that the availability of cheap solar tion correspond to the imports covered by the safeguard panels resulted in anti-dumping laws on Chinese manufac- measures.172 In other words, a country may only apply a turers.186 Te ITC emphasized that Chinese manufacturers safeguard if the ITC determines that the increased imports circumvented these countervailing duties by manufacturing from that country are a substantial cause of injury to the in countries like Malaysia, Tailand, Korea, and Vietnam.187 domestic industry.173 Similar to the causation requirement, Interpreting “unforeseen” to suggest “unexpected,” the ITC this is unlikely to be at issue in this matter because the ITC determined that imports of CSPV were unexpected.188 has clarifed its determinations with respect to the North However, the ITC’s Report has been criticized for failing American Free Trade Agreement (NAFTA), concluding that to “adequately prove its own conclusion.”189 Key players such imports from Mexico accounted for a substantial share of as SEIA have argued that the current production and trade imports and caused serious injury to the domestic indus- patterns of the solar market were “both foreseeable and pre- try.174 Te ITC found that CSPV imports from Canada, dicted by experts across the globe.”190 In addition, because on the other hand, did not contribute signifcantly to the WTO law has not provided specifc guidance on interpreting injury caused by imports.175 Moreover, with respect to the “unforeseen,” the ITC’s interpretation may be subsequently Free Trade Agreement (FTA), the ITC concluded that the rejected by the Appellate Body.191 imports from Australia, Colombia, Jordan, Panama, Peru, Singapore, and CAFTA-DR countries176 were not a cause or B. Adverse Rulings by the WTO Undermine the threat of serious injury.177 Effectiveness of Safeguards

3. Unforeseen Developments Based on precedential Section 201 cases, U.S. trading part- ners are likely to challenge the tarifs before the Appellate According to Article XIX(1)(a) of the GATT,178 the demon- Body,192 undermining their efectiveness. Te Appellate Body stration of “unforeseen developments” is required prior to has consistently found U.S. tarifs inconsistent with WTO applying safeguard measures.179 However, Section 201 does law.193 For instance, when the United States imposed tarifs not have a similar requirement180 creating inconsistencies on wheat gluten, the Appellate Body concluded that such between WTO and U.S. law that led to the Appellate Body tarifs were inconsistent with WTO laws and the Agreement rejecting Section 201 fndings. For instance, in the lamb on Safeguards.194 In that case, the Appellate Body found that meat example above, the Appellate Body rejected the United the ITC had not sufciently demonstrated that increased States’ argument that this unforeseen development could imports of wheat gluten were the substantial cause of serious be inferred from the factual record.181 Although this was injury.195 Similarly, when the United States imposed tarifs supported by statistics, the ITC report did not address the on steel, the Appellate Body ruled that the ITC had failed to efects of the unforeseen development on the U.S. market.182 adequately satisfy a causal connection between substantial Tere, the Appellate Body stated that Article XIX and the cause and injury or provide a logical explanation as to why Safeguards Agreement should be treated cumulatively, and these increased imports were “unforeseen.”196 thus measures should comply with Article XIX’s “unforeseen developments” language.183 It further stated that unforeseen 184. Id. at ¶ 72. 185. Supplemental Report, supra note 147. 170. Id. at 64. 186. Id. 171. Id. at 65. 187. Id. 172. See Frohman, supra note 158, at 158-59. 188. Id.; Kenneth Nunnenkamp, USITC Responds to Trade Representative’s Request 173. Id. at 159. to Identify “Unforeseen Developments” Tat Led to Solar Cell Decision, JD- 174. See CSPV Recommendations, supra note 136, at 4. SUPRA (Jan. 17, 2018), https://www.jdsupra.com/post/documentViewer. 175. Id. aspx?fd=410dfdb8-61ac-4575-aeb4-e8330c06df27 [https://perma.cc/MD2Y- 176. Te CAFTA-DR is a free trade agreement between the United States and Costa 3BUM]. Rica, El Salvador, Guatemala, Honduras, Nicaragua, and the Dominican Re- 189. Geuss, supra note 152. public. See CAFTA-DR (Dominican Republic-Central America FTA), Office 190. Id. of the United States Trade Representative, https://ustr.gov/trade-agree- 191. Id. ments/free-trade-agreements/cafta-dr-dominican-republic-central-america-fta 192. See Julia Pyper, New Tarifs to Curb US Solar Installations by 11% Trough [https://perma.cc/RLZ7-NKWA] (last visited Oct. 29, 2019). 2012, Greentech Media (Jan. 23, 2018), https://www.greentechmedia. 177. Id. com/articles/read/tarifs-to-curb-solar-installations-by-11-through-2022#gs. 178. GATT, supra note 10, at art. XIX(1)(a). zbG0eU0 [https://perma.cc/L4CV-2X69]. 179. See Frohman, supra note 158, at 169. 193. See Ryan, supra note 6, at 284. 180. Id. 194. See U.S.—Wheat Gluten, supra note 161. 181. See U.S.—Lamb Meat, supra note 167, at 4. 195. Id. 182. See id. 196. See Appellate Body Report, United States—Defnitive Safeguard Measures on 183. Id. at ¶¶ 69-71. Imports of Certain Steel Products, WTO Doc. WT/DS248, R-WTDS249/R, 114 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2

Adverse rulings by the WTO are likely to undermine the protectionism.”206 China has previously accused the United efectiveness of safeguards. After the WTO ruled against States of “promoting green protectionism,” and it is impor- line pipe safeguards, the United States was forced to settle tant for the United States to avoid such criticism to maintain with South Korea, the largest source of U.S. imports of its status as a global leader in green technology.207 Tis is line pipe to raise their in-quota allotment from 9,000 tons especially signifcant because such investigations could set per year to 17,500 tons per quarter.197 Similarly, following bad examples of trade protectionism and escalate into a trade the WTO ruling against the wheat gluten safeguard, the war.208 Recently, China has commented, “China will work Bush Administration rejected the ITC’s recommendation with other WTO members to resolutely defend [their] legit- to extend safeguards.198 Despite the wheat gluten industry imate interests,” suggesting it will dispute these tarifs, or making a positive adjustment because of the safeguards, the take reciprocal measures.209 Te Chinese also called the tar- ITC wanted to “avoid trade retaliation against the United ifs “an abuse” of safeguards that will “aggravate the global States under WTO rules to support its decision to elimi- trade environment.”210 nate safeguards and instead provided direct fnancial aid to Imposing such tarifs may cause trade wars.211 Not only the domestic industry.”199 As in the previous cases, follow- are Chinese goods imported to the United States, but U.S. ing the WTO ruling against the lamb meat safeguard, the goods are also exported to China.212 China has previously Bush administration terminated the safeguards nearly eight limited exports of wind turbines and rare minerals, which months before they were scheduled to expire.200 Notably, are essential to the U.S. economy.213 Imposing higher tarifs adverse rulings by the WTO in similar matters could lead to on CSPV panels may further deter U.S.-Chinese relations abrupt changes or settlements with China and have a nega- and lead other countries to increase tarifs on U.S. imports, tive impact on the domestic market and international trade. which could be detrimental to the economy.214 Moreover, opponents of increased tarifs have concluded C. Even if the Tariffs Are Consistent With WTO Law, that higher tarifs are likely to have adverse impact on the Tariffs Are Detrimental to the U.S. Economy and market by resulting in job loss. According to a study con- Create Impediments to International Trade ducted by SEIA, higher tarifs are likely to result in the loss of 88,000 jobs.215 Studies have also indicated that Suniva’s proposed remedies would increase the cost of solar panels Even if the Section 201 tarifs are found to be consistent with 216 WTO law, studies have indicated that they are unlikely to making them as high as they were in 2015, potentially resulting in the loss of forty-seven gigawatts worth of solar have their desired impact. Liberalized trade and globaliza- 217 tion have spurred economic growth in the United States installations and a net reduction of installations amount- over the past few decades.201 Advocates of liberalized trade 206. Nan Sato, Red Dragon Gone Green: China’s Approach to Renewable Energy Tech- contend that globalized trade increases geopolitical stabil- nologies, Its Legal Implications, and Its Impact on U.S. Energy Policy, 2011 U. ity by creating interdependency between countries like the Ill. J.L. Tech. & Pol’y 463, 474 (2011). United States and China, promoting efciency in the use of 207. Id. at 476. 208. Id. non-renewable sources of energy, and inadvertently aiding in 209. Ana Swanson & Brad Plumer, Trump Slaps Steep Tarifs on Foreign Washing Ma- resolving armed confict.202 chines and Solar Products, N.Y. Times (Jan. 22, 2018), https://www.nytimes. Te potential tarifs on CSPV cells amount to thirty per- com/2018/01/22/business/trump-tarifs-washing-machines-solar-panels.html? mtrref=www.google.com. cent in the frst year and taper down, making them most 210. Jethro Mullen, China Blasts Trump’s New Trade Tarifs, CNN Business (Jan. analogous to those imposed on the lamb meat industry.203 23, 2018, 1:49 AM), http://money.cnn.com/2018/01/22/news/economy/ Tarifs on lamb meat did little to help the lamb meat indus- trump-trade-tarifs-china-reaction/index.html. 204 211. See Sato, supra note 206, at 476 [https://perma.cc/ACB9-JY8G]. try. Instead, domestic production declined, and imports 212. Tis is especially in the case of rare minerals. Studies have provided that China continued to increase.205 Similarly, proposed tarifs in this has a de facto monopoly over rare minerals. See id.; see also H. Sterling Burnett, case could lead to decreased demand of solar panels due to Te True Energy Treat to the United States National Security?, Inst. for Ener- gy Res. (Feb. 11, 2011), http://www.instituteforenergyresearch.org/analysis/ increased costs of manufacturing and installation, which the-true-energy-threat-to-the-united-states-national-security/ [https://perma. would subsequently lead to a decline in the domestic industry. cc/W82U-QR7Z]. Imposing tarifs would diminish the benefts of global 213. Rare minerals are essential to the U.S. economy because they are vital to the generation of batteries, especially those of hybrid and electric vehicles, as well trade because the tarifs may be characterized as “trade as magnets used in wind production. See Sato, supra note 206, at 474; see also Burnett, supra note 212. WT/DS251R-WT/DSA254/R, WT/DS258/R-WT/DS259/R (adopted Nov. 214. See Sato, supra note 206. Recently, China has announced that it shall impose 10, 2003). tarifs on one hundred and twenty-eight U.S. products worth ffty billion 197. Ryan, supra note 6, at 307. dollars on products like planes, cars, and soybeans. Some experts think this 198. Id. will adversely impact U.S. companies in China. See Daniel Shane, How Much 199. Id. Ammo Does China Have for a Trade War?, CNN Business (Apr. 6, 2018), 200. Id. http://money.cnn.com/2018/04/06/news/economy/china-options-trade-war- 201. See Armonio, supra note 157, at 113. us/index.html. 202. Id. at 113-14. 215. Lacey, supra note 19. 203. See Julia Horowitz & Patrick Gillespie, Trump Slaps Tarifs on Foreign Solar 216. Id. Panels and Washing Machines, CNN Business (Jan. 22, 2018, 11:04 PM), 217. See Cory Honeyman, Suniva and SolarWorld Trade Dispute Could Halt Two- https://money.cnn.com/2018/01/22/news/economy/us-tarif-washing-ma- Tirds of US Solar Installations Trough 2022, Greentech Media (June 26, chines-solar-cells/index.html [https://perma.cc/AG3D-UT8R]. 2017), https://www.greentechmedia.com/articles/read/suniva-dispute-could- 204. See Ryan, supra note 6, at 278. halt-two-thirds-of-us-solar-installations#gs.lNGc2cg [https://perma.cc/ST4P- 205. Id. at 273-76. 2XV7]. Winter 2020 THE SUNIVA PETITION 115 ing to eleven percent.218 Tis means a 7.6-gigawatt reduction hour for wind projects and $0.12-0.35 per kilowatt hour for in CSPV panels between 2018 and 2022.219 hydro projects.230 Lastly, Chinese solar panels greatly beneft the U.S. solar Among other countries, Germany has been successful in industry because they create lower prices for consumers.220 improving market efciency through feed-in tarifs.231 Ger- Demand for solar energy has been steadily increasing over many enacted the Renewable Sources Act in 2000, which the last four years, making the United States a leading mar- provides in pertinent part: ket for solar energy.221 Te annual installation of solar energy Te compensation rates . . . have been determined by means systems has leapt from 1.265 gigawatts in 2008 to 4.75 in of scientifc studies, subject to the provision that the rates 2013.222 With this increasing demand, it is vital that domes- identifed should make it possible for an installation—when tic installers have access to cheap panels to keep their rates managed efciently—to be operated cost-efectively, based low,223 especially in large states like California, which heavily on the use of state-of-the-art technology and depending on rely on solar energy as part of their renewable energy plan.224 the renewable energy sources naturally available in a given Besides California, other states that are likely to be adversely geographical environment.232 impacted by this decision include Texas, Florida, South Car- olina, and Oregon.225 Post enactment, German solar panel makers receive an estimated €0.43 per kilowatt-hour of power they generate; IV. Proposed Solutions on-shore wind turbines receive about €0.10 per kilowatt.233 In addition, feed-in tarifs have been used in the United While outright tarifs should not be imposed, there are States in Florida, which has enjoyed an increase in jobs since other mechanisms that will provide the desired efects. implementation in 2009.234 Te program is estimated to cre- Tese include (1) feed-in tarifs, (2) project-fnancing, and ate 170 new jobs.235 (3) changing the standard for imposing tarifs. Tese are dis- Despite these advantages, feed-in tarifs also pose some cussed in detail in the subsequent sections. limitations because they require utilities to pay more and are costlier for retail consumers.236 In Germany, for instance, A. Feed-In Tariffs electricity consumers pay approximately four times the rate paid in the United States to subsidize the German solar- Feed-in tarifs are monetary mechanisms that obligate utili- industry.237 Nevertheless, feed-in tarifs can guarantee the ties to buy renewable energy at high prices to ensure smooth continuous development of a wide array of renewable technol- production.226 Tey are advantageous because they facili- ogy while allowing investors to receive reasonable returns.238 tate the development of diverse renewable resources, provide investors with substantial returns, and make renewable B. Project Financing energy cheaper for consumers, resulting in the survival of green technologies.227 Under such mechanisms, utilities sign Existing federal law surrounding renewable energy sources is long-term wholesale contracts with generators of renewable governed by Section 1703 of Title XVII of the Energy Policy energy.228 Tey set rates at levels which “ensure the genera- Act of 2005 (EPAct 2005).239 Te EPAct 2005 allows the tors a reasonable rate of return.”229 For instance, a proposal Department of Energy (DOE) to “issue loan guarantees to by the National Rural Electric Cooperative Association eligible projects that avoid, reduce, or sequester air pollutants suggests a government payment of $0.15-0.25 per kilowatt- or anthropogenic emission of greenhouse gases” and “employ new or signifcantly improved technologies as compared to technologies in service in the United States at the same time the guarantee is issued.”240 218. See Pyper, supra note 130. 219. Id. 220. See Armonio, supra note 157, at 112. 230. Id. 221. Te United States has become the third largest market for solar energy. See id. 231. See Sanders, supra note 227, at 107; Sato, supra note 206, at 480. 222. Id. 232. Sanders, supra note 227, at 107; Sato, supra note 206, at 480. 223. Id. 233. Id. 224. Id. 234. See id. Tis is because this initiative has produced an average of eight jobs per 225. Pyper, supra note 130, at 2. MW, and due to eforts to have such solar projects locally owned. It has also 226. Sato, supra note 206, at 479. been reported that the feed-in tarifs have reduced the stress on the utility dis- 227. See Jordan Sanders, Dark Times Ahead for the U.S. Solar Industry: Anti- tribution system and reduced transmission losses. See John Farrell, Gainesville, Dumping Duties on Chinese Solar Panels, Teir Implications, and Alternatives Fla., Becomes a World Leader in Solar Power, Grist (Jan. 8, 2012), https://grist. to Strengthening the U.S. Solar Industry, 7 Envt’l & Energy L. & Pol’y J. org/solar-power/2012-01-06-gainesville-forida-becomes-a-world-leader-in- 99, 107-08 (2012); Sato, supra note 206, at 480; Feed-In Tarifs Are Good for solar/ [https://perma.cc/4F6W-K5EY]. Expensive Renewables, but Are Tey Good for Consumers?, Inst. for Energy 235. See Sanders, supra note 227, at 99. Res. (Sept. 10, 2010), https://www.instituteforenergyresearch.org/renewable/ 236. See Sato, supra note 206, at 463. wind/feed-in-tarifs-are-good-for-expensive-renewables-but-are-they-good- 237. Id.; Te Cold War in Clean Energy, Christian Sci. Monitor (Oct. 19, 2010), for-consumers-2/ [https://perma.cc/X5PG-YZGD]. http://www.csmonitor.com/Commentary/the-monitors-view/2010/1019/ 228. Sato, supra note 206, at 480; Feed-In Tarifs . . . Provide Certainty to All Par- Te-cold-war-in-clean-energy [https://perma.cc/9LF7-Y5E2]. ties, Sierra Club: Iowa Chapter, 1, 2, https://www.sierraclub.org/sites/www. 238. See Sanders, supra note 227. sierraclub.org/files/sce/iowa-chapter/energy-globalwarming/FITFlyer.pdf 239. Energy Policy Act of 2005, Pub. L. No. 109-58, § 1703, 119 Stat. 594, 1120 [https://perma.cc/X2FL-JPY4]. (2005). 229. Sato, supra note 206, at 480. 240. Id. 116 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2

Loan guarantees are also available under the American the implementation of safeguards only in the presence of Recovery and Reinvestment Act of 2009241 (ARRA), which injuries caused by unforeseen factors.255 Tis would be ben- allows the DOE to make loan guarantees to certain renew- efcial because it would align U.S. Trade laws more closely able energy systems.242 Te Loan Guarantee Program (LGP) with WTO laws, thus limiting adverse rulings and limit- enables the DOE to guarantee the debt of privately owned ing tarifs to circumstances that are more likely to increase energy developers.243 Te federal government helps devel- overall efciency.256 opers of green technologies pay back private lenders when Limiting the application of safeguards to industries that they are unable to fnance themselves.244 Despite these fea- have sufered only because of unforeseen import surges could tures, the LGP has had limited success.245 Specifcally, it has alleviate the inconsistences between U.S. and WTO laws.257 given approval to eighteen renewable energy loan guarantees, In the past, the WTO has found safeguards inconsistent with only four of which have turned into issued loans.246 Tis is WTO law because the ITC failed to demonstrate that they in part due to the constant decline of funds dedicated to were a result of unforeseen developments.258 Adverse rulings the program.247 In addition, there is strong competition in by the WTO reduce the efectiveness of safeguards and often the United States for funding among diferent federal pro- lead to obscure results, such as rescission of tarifs before the grams.248 Consequently, more funding for LGPs may result due date or settlements which are expensive for both coun- in less funding for critical programs in education and health tries.259 Imposing an unforeseen development requirement in care, thus increasing the challenges that come with LGPs.249 Trade Law would mitigate this issue, and is thus a strong An alternative means of aiding domestic manufacturers alternative to imposing tarifs on a simple fnding of substan- fnance renewable projects without imposing tarifs is by tial injury.260 increasing government funding.250 Doing so can incentiv- ize green technology, and help advanced technology com- V. Conclusion panies attract private investments by providing them capital to improve their products and programs.251 Direct monetary In sum, Section 201 is a vital trade remedy tool. However, funding can be benefcial to U.S. manufacturers because given that the WTO has struck down virtually every safe- of the high barriers to entry.252 It has proved benefcial in guard action taken by the United States, it is reasonable for places like Arizona where the DOE’s backing of a solar proj- the United States to consider alternative remedies to boost ect has become one of the largest in the world, powering domestic production. Tis is especially because adverse thousands of homes and jobs.253 However, an increase in WTO decisions may have adverse political consequences to funding for green technologies may intensify policy debates international trade and due to the inconsistencies between over limited fnancial resources, especially considering the U.S. and WTO law. To that end, tarifs seem like a tempo- pre-existing competition and demand for federal funding rary solution that are unlikely to have their intended efects. by a variety of sectors.254 Teir negative impact on industries may reduce the competitiveness of domestic manufacturers and increase prices C. Changing the Standard of solar cells for consumers. Tus, Congress should consider implementing solutions such as feed-in tarifs, project Alternatively, the U.S. Congress could impose a more fnancing, or changing Section 201 standard to align it more stringent standard for Section 201 of the 1974 Trade Act. closely with WTO law. Specifcally, Congress could devise a standard that permits

241. American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1705, 123 Stat. 115, 145 (2009). 242. Sato, supra note 206, at 477; Energy Policy Act of 2005, Pub. L. No. 109-58, § 1703, 119 Stat. 594, 1120 (2005). 243. See Sato, supra note 206, at 477. 244. Id. 245. See Sato, supra note 206. 246. Id. 247. Id. 248. Id. 249. Id. 250. Id. 255. See Ryan, supra note 6, at 307. 251. Id. 256. Id. 252. Id. 257. Id. 253. Id. 258. Id. 254. As mentioned earlier, these include sectors such as education and health care. 259. Id. See id. at 479. 260. Id.

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