Environmental Law

Hunting the Hunters: The Recent Saga of Gray Wolf Hunting and Protection

March 5, 2022
Agriculture, Animal Law, Environmental Law

Mason Medeiros, MJLST Staffer

Hunting is a common activity throughout the United States. Whether for sport or sustenance, it is commonly practiced in every state across the country. States, to protect animals from overhunting and extinction, have enacted laws detailing which animals can be hunted and the period of time in which the hunt can occur. Furthermore, the Endangered Species Act has made it illegal to hunt, harm, or damage the habitat of any species on the endangered species list. But what happens when the government removes a species from the endangered species list? And particularly, what happens when a state has a statutory hunting period for such species? This question was brought to light in Wisconsin, and across the nation, when the federal government the gray wolf from the endangered species list on January 4, 2021. The resulting hunts and legal disputes have created a thrilling saga about the future of the gray wolf and the protections available to them. This post will discuss (1) the Wisconsin wolf hunt litigation and aftermath, (2) what a recent Ninth Circuit opinion means for the future of the gray wolf, and (3) what this saga shows about the weakness of endangered species protections in the United States.

The Wisconsin Wolf Hunt Litigation

Soon after the gray wolf was delisted, the Wisconsin Department of Natural Resources (W-DNR) began receiving requests for a wolf hunt. The first of such requests came from Republican lawmakers on January 15—less than 20 days after the delisting. They based their argument based on two statutes: Wisconsin Statute 29.185(1m) and Wisconsin Statute 29.185(5)(a). Statute 29.185(1m) states that “[i]f the wolf is not listed on the federal endangered list and is not listed on the state endangered list, the [W-DNR] shall allow the hunting and trapping of wolves” as regulated by this section. This provision is further developed by Statute 29.185(5)(a), which requires the W-DNR to “establish a single annual open season for both hunting and trapping wolves that begins on the first Saturday in November of each year and ends on the last day of February of the following year.” The lawmakers argued that, when taken together, these statutes require the W-DNR to immediately allow a wolf hunt for the remainder of the 2021 season because the wolves were no longer under federal protection.

On January 22, in a 4-3 vote, the W-DNR Board voted against allowing a wolf hunt for the remainder of the 2021 season. Rather than starting a hunt right away, they claimed that they needed additional time “to develop a science-based harvest quota, gather input from tribes and update its wolf management plan.” This decision, however, was short-lived.

On February 3, Hunter Nation, Inc., a Kansas-based organization, filed a lawsuit challenging the W-DNR’s decision. The court ruled that, because of the state’s statutes mandating the hunting season, the W-DNR must allow it to occur during the remainder of the season. Complying, the W-DNR set a quota of 200 wolves, 81 of which were reserved for native Ojibwe tribes. In only three days, hunters unaffiliated with the tribes exceeded this quota by killing 218 wolves.

The Ninth Circuit Returns Protections for the Gray Wolf

Luckily, protections for the gray wolf are beginning to return. On February 10, 2022, a Federal District Court in the Ninth Circuit returned federal protections for wolves in Defenders of Wildlife v. U.S. Fish & Wildlife Services, 2022 U.S. Dist. LEXIS 30123 (N.D. Cal. 2022). The court found that, when the U.S. Fish and Wildlife Service delisted the gray wolves, they failed to consider threats to gray wolf populations outside of the Great Lakes and Northern Rocky Mountains and “didn’t rely on the best available science.”

This decision returned federal protections to gray wolves in the contiguous United States outside of Wyoming, Idaho, and Montana, which remain under state control. Many pro-hunting groups oppose the decision, claiming that the wolf populations have recovered enough and should be managed by the state. Conservation organizations, on the other hand, believe that the decision is a step in the right direction but that more government intervention is needed to protect wolf populations in the remaining states from overhunting. While this decision is a major step in wolf protection, it does not address the issue of what happened to the wolves when they were initially delisted.

Better Policies are Needed to Protect Animals Coming Off of the Endangered Species List

This saga has highlighted some of the weaknesses in the endangered species program. Even though the animals are protected while on the list, they can immediately be hunted once the government removes them. This is particularly the case in states with statutorily mandated hunting seasons for certain species. Once one of these species is removed from the endangered species list, the statutes act as a trigger, forcing the hunt to begin. These “trigger laws” have major impacts on the species and need to be addressed.

One of the major issues with the trigger laws is that they do not provide a chance for the state to ensure that the quotas they set are scientifically accurate. Rather, the hunt needs to start during a statutorily required period.

Additionally, the hunters may not follow the quotas set by the state. This situation occurred in the 2021 Wisconsin hunt when hunters unassociated with tribes killed over 200 wolves, nearly doubling their quota in only three days. This hunt had potentially devastating effects on the wolf population. Wisconsin’s Green Fire, a conservation group, estimates that the wolves’ reproduction rate will be depleted by 24–40% because of the loss of females and alpha males in the hunt. If these rates remained, it would lead to a rapid decrease in wolf populations.

To address this concern, the government need to implement further protections for animals that they delist. Even though the species’ population is reportedly stable at the time they are delisted, the sudden hunting can quickly return them to critical levels. One potential solution is to mandate a protection period between the delisting and when hunting can actually begin. This period will allow states to develop scientifically accurate quotas and ensure that their protocols for the hunt are up to date while negating the applicability of potential trigger laws hidden in a state’s statutes.

Zombie Deer: Slowing the Spread of CWD

February 18, 2022
Administrative Law, Agriculture, Animal Law, Environmental Law

Warren Sexson, MJLST Staffer

Minnesota is one of the premier states in the Union for chasing whitetails. In 2020, over 470,000 licenses were purchased to harvest deer. As a hunter myself, I understand the importance of protecting Minnesota’s deer herd and habitat. The most concerning threat to whitetail deer in the state is Chronic Wasting Disease (CWD). CWD alters the central nervous system, similar to “mad cow disease,” causing deer to lose weight, stumble, drool, and behave similarly to an extra on The Walking Dead. It was first discovered in 1967 in Colorado mule deer and is transmissible to other ungulates such as moose, elk, red deer, black-tail deer, Sitka deer, and reindeer. It is 100% fatal in animals it infects and there is no known treatment or vaccine. While it currently poses no threat to humans, Canadian researchers have shown eating the meat from infected animals can infect hungry macaques, prompting the CDC and the World Health Organization to recommend against consumption of CWD positive animals. Luckily, in Minnesota there were only a handful of cases last season. Challenges still remain, however, and the Minnesota Department of Natural Resources (DNR) and the state legislature have tools at their disposal to combat the spread.

The DNR currently has a comprehensive response plan. In order to get a deer hunting license, the hunter has to pick what “zone” he or she will be hunting in. Minnesota is divided up into zones based off of the deer population and geography. Each zone has different guidelines for how many licenses will sell to the public. Some are “limited draw,” meaning a lottery system where only a certain number of applicants are selected, others are “over-the-counter,” meaning anyone who wants a license in that unit may buy one. Within the zoning system, the DNR has three “CWD Zone” classifications that restrict harvesting deer depending on the risks of the disease—surveillance, control, and management zones. Surveillance zones are where CWD has been found in captive deer or in wild deer in an adjacent zone. Control zones border the management zones, and management zones take up most of the south-eastern portion of the state, where CWD is highly concentrated. The restrictions in each type of zone vary, with surveillance zones being the least restricted and management zones being the most. Hunters have a key role in slowing the spread of CWD. Reducing deer populations in CWD ridden areas helps to reduce contact among deer and lower infection rates. However, there are other ways to further Minnesota’s commitment to slowing the spread of CWD.

The DNR can use emergency actions; it has done so recently. In October of 2021, the DNR temporarily banned moving farmed deer into and within the state through emergency action. Farmed deer (deer raised in captivity for use in trophy hunting) are a main vector of transmission for CWD. The ban was lifted in December but could have lasted longer. The DNR has emergency authority under Minn. Stat. § 84.027 Subd. 13(b) and (g). By enacting emergency declarations, the DNR can continue to use proven measures to slow the spread: requiring testing in high risk areas, banning movement between deer farms, increasing legal limits, and requiring hunters who desire a big buck to first harvest does in so called “Earn-a-Buck” programs. But, such emergency authority can only be 18 months at the longest. While limited in time, emergency orders provide the DNR the flexibility it needs to combat the disease’s spread.

The agency could also attempt to regulate by standard rulemaking authority as laid out in Chapter 14 of Minnesota’s statutes. The agency likely has authority to regulate deer hunting rules relating to CWD and recently has gained concurrent authority over deer farms along with the Board of Animal Health. However, if the DNR attempted to ban deer farming or imposed severe regulatory requirements, industry and interest groups would likely respond with legal challenges to the rulemaking process. In previous attempts to severely restrict deer farms, the Minnesota Deer Farmers Association has filed lawsuits attempting to block restrictions.

While the DNR likely can regulate deer hunting to slow the spread, the legislature is the best option for stopping deer farming as a whole. It is not necessarily a one-sided issue; a bi-partisan coalition of hunters and environmentalistswish to see the practice banned. State Rep. Rick Hansen (DFL) who chairs the House Environment and Natural Resources Finances and Policy Committee has discussed ending the practice and buying out all existing operators. Craig Engwall, head of the Minnesota Deer Hunters Association has additionally called for such a ban. State legislation would be the most comprehensive way to slow the spread of CWD.

State legislators should also consider funding more research for potential vaccines and treatments for CWD. Funding is beginning to pick up; Canadian researchers have begun working on potential vaccines. Additionally, Rep. Ron Kind’s (D-WI) bill, the Chronic Wasting Disease Research and Management Act passed the House of Representatives with Bipartisan support and awaits a vote in the Senate. While this is encouraging, more can be done to support scientific research and protect deer herds. If Minnesota wants to lead the United States in solving such a global issue, the bipartisan support exists to help tackle the largest threat to deer hunting in the U.S. and the state.

CWD threatens the state’s large and historic deer hunting tradition. The DNR and the state legislature have the tools at their disposal to impose meaningful reform to combat the spread of “zombie-deer,” so the population can thrive for generations to come.

Legal Personhood and Cocaine Hippos: Animals as “Interested Persons” and Their Rights in Court

February 16, 2022
Animal Law, Litigation

Douglas Harman, MJLST Staffer

On October 15, 2021, a federal magistrate judge ruled that a group of hippos in Colombia can be recognized as “interested persons” per federal statute for the purposes of deposing two Ohio Wildlife experts. These hippos are the descendants of hippos illegally imported to Colombia by drug kingpin Pablo Escobar. When Escobar was killed, the hippos were not relocated and were left to their own devices in Colombia. Since then, the hippos have multiplied and present significant environmental challenges. The issue in the US arose from litigation in Colombia concerning the fate of the hippos, which resulted in a request to depose the two Ohio experts. These hippos will be referred to as the “cocaine hippos” because that seems to be the term most commonly associated with them (and, quite frankly, it’s amusing).

This decision, though hailed by animal rights groups as groundbreaking, is likely more a technicality than a guiding precedent. Specifically, the ruling comes because Colombia treats animals as “sentient beings” with certain rights. Because the suit by the hippos is permitted in Colombia, US law treats the hippos as “interested persons” for the purposes of deposing US experts on ethical sterilization methods. Regardless of the breadth or technicality of the decision in question, it nonetheless represents a significant step to affix the title of “person” to a non-homosapien, and it has not happened in a US court before, despite repeated efforts by animal rights organizations. However, other countries do recognize various degrees of animal sentience.

The Legal Concept of Non-Human “Personhood”

The issue of whether animals should be considered “persons” has a variety of scientific, psychological, and philosophical elements. This blog post is not here to debate whether animals should be considered persons in terms of political theory or philosophy; plenty of ink has been spent in that pursuit elsewhere. This discussion focuses on how non-persons may receive limited rights to sue in court and perform certain legal functions as if they were persons, like the deposition of experts in the matter of the cocaine hippos.

The implications of animal consciousness are relevant because growing understanding of animal cognition and consciousness has informed a discussion of whether animals, and other non-humans like trees or natural areas, should be allowed to have their own rights vindicated in court. That is to say, there are a number of ongoing legal discussions about obligations owed to non-humans that governments are obligated to respect, and how those rights are allowed to be vindicated in court. It is this narrower, legal version of non-human “personhood” that was granted to Colombia’s cocaine hippos in the present action.

History of Non-Human “Personhood” Debate in the US

Although the court ruling in the cocaine hippos matter is the first time a US court has attached “person” status to an animal, it is not the first time the issue has been discussed. Attempts to give animals legal status and treat them as “persons” in certain legal areas developed from the animal rights movement, which has a long history in the US and Great Britain. In the last several years, several courts have referred to animal legal rights in the context of personhood, albeit rather obliquely at times. One of the biggest ongoing debates concerns the rights of Happy the Elephant; animal rights activists are pursuing a writ of habeas corpus for Happy, arguing she deserves to be treated as a person in the eyes of the law.

Non-human personhood is not without precedent. Courts have allowed corporations to be considered “artificial persons” in limited circumstances in court since the 1600s. Jurisprudence has since developed in the United States towards increasing “personhood” of corporations, referring to a railroad as a person for the purposes of the 14th amendment in 1886. Today corporations have near-total personhood, including the right to make religious objections to laws and practice free speech.

There is also some precedent for inanimate objects holding “personhood” status under the law. Every law student (and a great many other Americans, it is to be imagined) have discussed or at least heard of the Tree that Owns Itself (while it almost certainly does not own itself as a technical matter, it certainly does in the public mind and in the official statements of the local government). Additionally, Justice William O. Douglas in his dissent in Sierra Club v. Morton argued that standing doctrine should be amended to allow organizations to sue on behalf of inanimate things, including land, rivers, trees, etc. This opinion essentially lays out an idea of legal personhood for inanimate objects, and would presumably also extend with relative ease to animals.

As a factual matter, the reality of non-human personhood, while remarkably developed for corporations in the United States, has relatively little real applications to animals today. This is one of the main reasons that the attachment of the “interested persons” label to the Colombian hippos felt significant to many in the animal rights movement.

Recognition of Non-Human “Personhood” in Other Countries

While animals have not commonly been granted legal rights in the United States, they do in many other countries. Spain recognized animals as “sentient beings” and have greater standing than inanimate objects. In doing so, it joined about 32 other countries that do the same, including France, the U.K., the Netherlands, Sweden, New Zealand, and Tanzania. South Korea is doing something similar in granting animals legal status.

South America is also moving on the front on non-human rights. In 2014, a court in Argentina recognized the basic rights of Sandra the Orangutan, and agreed that she was being detained illegally in the Buenos Aires Zoo. Additionally, Colombia, the state in which the cocaine hippos case originates, has vested portions of the Amazon Rainforest with legal rights, and, as mentioned, recognizes animal sentience and limited legal rights.

What This Means for Colombia’s Cocaine Hippos (and Other Animals)

In the immediate term, the magistrate judge’s recognition of the cocaine hippos as “interested persons” has allowed for the expert deposition sought by the Colombian lawyers advocating on the hippos’ behalf. Effort is now under way to chemically sterilize the hippos, rather than cull or surgically castrate them.

More broadly, there appears to be more references to the inherent rights of animals in American jurisprudence, rather than simply their function as property. The act of classifying the hippos as “interested persons” did not rock the legal boat (in fact, the magistrate judge remains quite well regarded by her colleagues). Those interested in animal rights will doubtless be heartened by increased use of personhood and rights language used with respect to animals. Hopefully, the treatment of Pablo Escobar’s rogue cocaine hippos in US court is indicative of progressive trend in the law’s treatment of animals.

Holy Crap: The First Amendment, Septic Systems, and the Strict Scrutiny Standard in Land Use Law

December 22, 2021
Administrative Law, Constitutional Law, Discrimination, Environmental Law, First Amendment

Sarah Bauer, MJLST Staffer

In the Summer of 2021, the U.S. Supreme Court released a bevy of decisions favoring religious freedom. Among these was Mast v. City of Fillmore, a case about, well, septic systems and the First Amendment. But Mast is about so much more than that: it showcases the Court’s commitment to free exercise in a variety of contexts and Justice Gorsuch as a champion of Western sensibilities. It also demonstrates that moving forward, the government is going to need work harder to support that its compelling interest in land use regulation trumps an individual’s free exercise rights.

The Facts of Mast

To understand how septic systems and the First Amendment can even exist in the same sentence, it’s important to know the facts of Mast. In the state of Minnesota, the Pollution Control Agency (MPCA) is responsible for maintaining water quality. It promulgates regulations accordingly, then local governments adopt those regulations into ordinances. Among those are prescriptive regulations about wastewater treatment. At issue is one such ordinance adopted by Fillmore County, Minnesota, that requires most homes to have a modern septic system for the disposal of gray water.

The plaintiffs in the case are Swartzentruber Amish. They sought a religious exemption from the ordinance, saying that their religion forbade the use of that technology. The MPCA instead demanded the installation of the modern system under threat of criminal penalty, civil fines, and eviction from their farms. When the MPCA rejected a low-tech alternative offered by the plaintiffs, a mulch basin system not uncommon in other states, the Amish sought relief on grounds that the ordinance violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). After losing the battle in state courts, the Mast plaintiffs took it to the Supreme Court, where the case was decided in their favor last summer.

The First Amendment and Strict Scrutiny

Mast’s issue is a land use remix of Fulton v. City of Philadelphia, another free exercise case from the same docket. Fulton, the more controversial and well-known of the two, involved the City of Philadelphia’s decision to discontinue contracts with Catholic Social Services (CSS) for placement of children in foster homes. The City said that CSS’s refusal to place children with same-sex couples violated a non-discrimination provision in both the contract and the non-discrimination requirements of the citywide Fair Practices Ordinance. The Supreme Court didn’t buy it, holding instead that the City’s policy impermissibly burdened CSS’s free exercise of religion.

The Fulton decision was important for refining the legal analysis and standards when a law burdens free exercise of religion. First, if a law incidentally burdens religion but is both 1) neutral and 2) generally applicable, then courts will not ordinarily apply a strict scrutiny standard on review. If one of those elements is not met, courts will apply strict scrutiny, and the government will need to show that the law 1) advances a compelling interest and 2) is narrowly tailored to achieve those interests. The trick to strict scrutiny is this: the government’s compelling interest in denying an exception needs to apply specifically to those requesting the religious exception. A law examined under strict scrutiny will not survive if the State only asserts that it has a compelling interest in enforcing its laws generally.

Strict Scrutiny, RLUIPA, and Mast

The Mast Plaintiffs sought relief under RLUIPA. RLUIPA isn’t just a contender for Congress’s “Most Difficult to Pronounce Acronym” Award. It’s a choice legal weapon for those claiming that a land use regulation restricts free exercise of religion. The strict scrutiny standard is built into RLUIPA, meaning that courts skip straight to the question of whether 1) the government had a compelling government interest, and 2) whether the rule was the least restrictive means of furthering that compelling government interest. And now, post-Fulton, that first inquiry involves looking at whether the government had a compelling interest in denying an exception specifically as it applies to plaintiffs.

So that is how we end up with septic systems and the First Amendment in the same case. The Amish sued under RLUIPA, the Court applied strict scrutiny, and the government failed to show that it had a compelling interest in denying the Amish an exception to the rule that they needed to install a septic system for their gray water. Particularly convincing at least from Coloradan Justice Gorsuch’s perspective, were the facts that 1) Minnesota law allowed exemptions to campers and outdoorsman, 2) other jurisdictions allowed for gray water disposal in the same alternative manner suggested by the plaintiffs, and 3) the government couldn’t show that the alternative method wouldn’t effectively filter the water.

So what does this ultimately mean for land use regulation? It means that in the niche area of RLUIPA litigation, religious groups have a stronger strict scrutiny standard to lean on, forcing governments to present more evidence justifying a refusal to extend religious exemptions. And government can’t bypass the standard by making regulations more “generally applicable,” for example by removing exemptions for campers. Strict scrutiny still applies under RLUIPA, and governments are stuck with it, resulting in a possible windfall of exceptions for the religious.

How the Biden Administration Has Made Offshore Wind a Priority

December 22, 2021
Climate Change, Energy Law

Max Meyer, MJLST Staffer

Since coming into office in January of 2021, the Biden Administration has made fighting climate change and reducing domestic greenhouse gas (GHG) emissions a priority. In particular, the Biden Administration set a goal of doubling the nation’s offshore wind capacity in Executive Order 14008. Reaching this goal would result in 30 Gigawatts (GW) of offshore wind capacity. Developing offshore wind energy will help states reach their clean and renewable energy goals as many sates on the coast do not have large wind energy resources on land. Since the issuance of Executive Order 14008, the Department of the Interior (DOI) has taken several steps towards reaching that goal.

Statutory Authority

Under the Outer Continental Shelf Lands Act (OCSLA) (codified at 43 U.S.C. ch. 29), passed in 1953, the Secretary of the Interior is charged with the administration of mineral exploration and development of the Outer Continental Shelf (OCS). The OCS is defined as “all submerged lands lying seaward of state coastal waters (3 miles offshore) which are under U.S. jurisdiction.”

In the Energy Policy Act of 2005 (EPAct), Congress created the OCS Renewable Energy Program to be administered by the DOI. Under this authority, the DOI in 2009 promulgated regulations for leases, easements, and rights-of-way for renewable energy development in the OCS. The Bureau of Ocean Energy Management (BOEM), under the DOI, is the agency tasked with overseeing the renewable energy development program.

Regulatory Authority

The BOEM renewable energy development program is broken into four steps: (1) planning, (2) leasing, (3), site assessment, and (4) construction and operations. During the first step, BOEM identifies Wind Energy Areas (WEAs) which are “locations that appear most suitable for wind energy development.” After WEAs have been identified, BOEM issues a public notice to gauge the interest in leasing land in the WEA. Depending on the interest received from BOEM, leasing is done through either a competitive or noncompetitive leasing process.

After leasing is completed, the lessee must submit a Site Assessment Plan (SAP) to BOEM. The purpose of the SAP is for the lessee to provide documentation so that BOEM can evaluate whether the project will comply with applicable regulations. The agency can either approve, approve with modification, or disapprove the SAP. Finally, the lessee must produce a Construction and Operations Plan (COP). As the name suggests, this submission includes a “detailed plan for the construction and operation of a wind energy project on the lease.” BOEM reviews the COP, including environmental review, and can either approve, approve with modification, or disapprove the COP.

Recent Offshore Wind Developments

In May 2021, the DOI approved the COP for the Vineyard Wind project located near Martha’s Vineyard and Nantucket. This is the first large-scale, offshore wind project in the United States. The project will have 800 Megawatt (MW) of energy capacity which is enough to power 400,000 homes and businesses. Construction of the project began in November 2021. One of the first steps in the construction process will be placing two transmission cables to transmit electricity from the Vineyard Wind project to the mainland.

Also in November 2021, the DOI approved the COP for the South Fork Wind making it the second large-scale, offshore wind project in the United States. This project off the coasts of New York and Rhode Island will have a capacity of 130 MW which is enough to power approximately 70,000 homes.

In addition to granting final approval of several projects, BOEM has also taken action in the earlier steps of the OCS renewable energy process. For the Carolina Long Bay WEA, located off the coast of the Carolinas, the BOEM began taking public comments on a proposed lease. In October, BOEM received the COP for the Mayflower Wind project. This project would also be located near Martha’s Vineyard and Nantucket and would have an energy capacity of more than 2 GW. If approved, the Mayflower Wind project would be one of the largest offshore wind projects in the United States. BOEM also published a Call for Information and Nominations to gauge commercial interest in wind energy development in the Gulf of Mexico.

BOEM has also taken steps to advance offshore wind in the Pacific Ocean in 2021. In July, BOEM published a Call for Information and Nominations to determine commercial interest in the Morro Bay Call Area East and West Extensions, a portion of the Morro Bay WEA. This WEA is located off the coast of Central California. Finally, BOEM designated the Humboldt WEA off the northern coast of California moving closer to the leasing process in this area.

Despite heavy support from the Biden Administration, offshore wind does face opposition. The commercial fishing industry has emerged as a strong opponent of these projects. The industry is concerned that the turbines will impact fish and hinder access to fishing grounds. The Biden Administration could face legal challenges to offshore wind development, particularly under the National Environmental Policy Act (NEPA), from the fishing industry. One such challenge in Fisheries Survival Fund v. Haaland, 858 F. App’x 371 (D.C. Cir. 2021) has proven unsuccessful for the fishing industry.

While the DOI and BOEM have taken many actions to further develop offshore wind in the United States, much more will have to be done to reach the Biden Administration’s goal of 30 MW of offshore wind capacity by 2030. Nonetheless, offshore wind is an important resource for coastal states looking to decarbonize their energy generation and for reaching the Biden Administration’s decarbonization goals.

Monumental Tug-of-War: America’s National Monuments May Be the Latest Targets in the Partisan Policy Back-and-Forth

October 19, 2021
Administrative Law, Agriculture, Environmental Law, Social Welfare

Douglas Harman, MJLST Staffer

On October 7, 2021, the Biden Administration moved to restore the size and protections of two national monuments in the state of Utah: Bears Ears National Monument and Grand Staircase-Escalante National Monument. This latest action culminates a back-and-forth of the last three presidencies that has drawn national attention. It suggests an emerging pattern of using national monuments as part of a broader legal and political debate over the use of federal lands.

There is a cultural and political split with liberals broadly favoring conservation/preservation of wilderness and Native American heritage sites and conservatives broadly favoring resource extraction and land development. It now seems likely that national monuments, and the underlying law dealing with their creation, will be subject to the same intense partisan tug-of-war as are other federal land use policies.

The Antiquities Act of 1906 and National Monuments

In the early 20th century, Congress passed the Antiquities Act, delegating to the President the power to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest [situated on federal lands]…to be national monuments.” Once a monument is established, the antiquities act also provides for its protection, and penalizes anyone who detrimentally interferes with it. Such a grant of power is quite significant, as it allows a President to designate areas for protection without the requirement for an act of Congress, as is needed for national parks. It is also important to note that, although the statute expressly authorizes the creation of national monuments, the statute is silent about the reduction or dissolution of the same. For this reason, there is general consensus that the President lacks granted or implied authority to completely abolish a national monument without congressional approval (though, as discussed below, some Presidents have reduced the sizes of monuments).

Because it allows Presidents a relatively free hand in preserving lands and does not require congressional approval (with some exceptions added later for Wyoming and Alaska), Presidents have used the Antiquities Act quite frequently to designate lands as monuments. As an additional incentive, the Supreme Court has generally held that Presidents have extremely broad discretion when creating national monuments, and that a designation as a monument protects incidental resources needed to maintain the monument. See Cameron v. United States, 252 U.S. 450 (1920); Cappaert v. United States, 426 U.S. 128 (1976). There are currently 129 National Monuments ranging widely in area and character. Though there has been some controversy over creation of monuments in the past, there had been no record of a President unmaking or effectively undercutting a monument made by a predecessor prior to 2017.

Debate remains around whether and to what extent a President can diminish a national monument. Despite Presidents reducing the size of existing monuments in the past (the last President to do so before Trump was Eisenhower), courts have never squarely addressed the issue of whether and how much a President may reduce an already-created National Monument. Additionally courts have not addressed the companion issue of what level of reduction would constitute an effective abolition of the monument, and might therefore exceed a President’s authority under the Antiquities Act.

Clinton/Obama, then Trump, then Biden

President Clinton established Grand Staircase as a National Monument by proclamation in 1996, a move that sparked controversy in Utah, but received relatively little attention overall and was hardly a national issue of concern. Clinton’s Republican successor, George W. Bush, took no action against Grand Staircase in the eight years he was President. Years later, in December of 2016, as negotiations between Native American Nations and Utah fell apart, and with an eye on both his legacy and his successor, President Obama signed a declaration creating Bears Ears National Monument. Environmentalists, Native American Nations, and academic groups hailed Bears Ears as protecting unique habitats, historical areas, and indigenous sacred sites. However, Utah locals and politicians, as well as various resource-extraction industries, derided the creation of Bears Ears as federal government overreach and a denial of resources to the state.

When the Trump Administration took office in 2017, it had a different set of goals for federal lands. In addition to environmental deregulation and increased oil and gas extraction, Trump signed a proclamation in late 2017 to shrink Bears Ears and Grand Staircase. The actions sparked public interest for two reasons. First, because no President since Eisenhower had reduced a national monument, and previous reductions and revisions of boundaries appear to have been relatively non-controversial. Second, because the reduction proclaimed by Trump amounted to the largest reduction of national monument land in US history, reducing Bears Ears by 85% and Grand Staircase by 50%. The action was promptly challenged in court, with plaintiffs arguing that the reduction effectively abolished the monuments, thereby intruding on congressional powers. Wilderness Society v. Trump, 2019 WL 7902967 (Nov. 2019) (trial pleading). There was an additional legal issue regarding Grand Staircase, as Congress statutorily recognized and modified the monument in 1998, raising the question of whether a President could unilaterally further alter a monument with borders designated by Congress. The case dragged on in DC courts and has not yielded a clear resolution as of this writing (and is unlikely to do so, as Trump is no longer President and the proclamation reducing the size of the monuments has now been superseded).

President Trump was defeated in the 2020 election, and Joe Biden became President. One of his myriad goals was to restore environmental protections undone during his predecessor’s term. This included restoring Bears Ears and Grand Staircase to their pre-Trump sizes (in the same proclamation, Biden restored protections to the marine Northeast Canyons and Seamounts National Monument, which Trump had opened to commercial fishing). This has meant that, just like many other land use and environmental priorities, the pendulum has swung on national monuments based solely on the party affiliation of the occupant of the White House.

The Future of National Monuments

In the proclamations restoring the monuments, the Biden Administration took no legal issue with the actions of the Trump Administration. There was no claim that the diminishment had been illegal or unconstitutional; there have been no circulated legal memos denouncing the Trump White House’s legal logic as flawed; and there has been no argument that the reduction exceeded the scope of Presidential power by effectively abolishing the monuments. The reversal of policy has also essentially rendered any court decision of the cases against the Trump administration moot. This means that, although the Biden administration undid Trump’s actions, it appears to have tacitly accepted and affirmed their validity. This means the pattern of the last several years can (and probably will) be repeated.

It does not take a huge logical jump, then, to imagine the national monuments pulled into a perpetual seesaw. Perhaps a Republican takes the White House in 2024 or 2028 and moves to slash the size of national monuments as Trump did, only for them to be re-expanded by a future Democrat. Perpetual change of federal land designation, and, therefore, use, is not good for anyone. Industry will be disincentivized from making investments in development on lands that could be incorporated or re-incorporated into a protected National Monument, while environmental and Native American groups will have to be constantly on the alert for actions from a hostile President unilaterally undoing everything they’ve worked extremely hard to protect on national monument land.

Such a policy seesaw hurts everyone. It seems evident that the unilateral and unlimited Presidential power to create and diminish National Monuments will lead to significant instability as long as the major parties have such diametrically opposed land use goals. One possible solution is for Congress to amend the law, but that seems unlikely given Congress’s declining productivity in the last several years and the political divisions in an evenly split Congress. Without Congressional action, further guidance from the courts about the extent of a President’s legal ability under the Antiquities Act to diminish national monuments may be the only way to stabilize the process. The question is when, and if, the courts will have their chance to weigh in.

One Person’s Trash Is Another’s Energy

April 18, 2021
Climate Change, Energy Law, Environmental Law

Carlton Hemphill, MJLST Staffer

It comes to many as a literal and metaphorical breath of fresh air to see the new administration’s interest in reducing the effect we have on the environment, but achieving a goal of net-zero emissions by 2050 is no small feat for such a large country and requires leaving no stone unturned. Much of the recent focus in the media has been on increasing the prevalence of electric cars and switching to renewable energy sources that do not emit carbon dioxide or other greenhouse gases, such as wind and solar. That being said, there is another often overlooked process that, while not the end all solution, can still help us achieve this goal of reducing greenhouse gases, and in my opinion should be getting more attention than it is currently receiving. I am referring to the use of anaerobic digesters.

The Dirty Details:

Let’s face it, people generate a lot of waste, both food waste and excrement. Everybody eats and everybody poops. Moreover, the animals we raise for food also generate an enormous amount of waste. Methane, a byproduct from the decomposition of organic matter such as excrement, acts as a greenhouse gas if released into the atmosphere before being burned. Compared to CO2, methane is 25 times as powerful as a greenhouse gas. Anaerobic digesters use microbes to break down organic waste to produce methane (referred to as biogas) which is then burned to generate electricity.

This is not a novel concept either. Some cities and farms have already taken steps to implement anaerobic digesters for harnessing biogas from sewage and manure. States like Connecticut and New York already implement biogas programs, and many dairy farms across the nation have anaerobic digesters that produce methane from manure. A town in Colorado even powers vehicles using poop . . . yes, you read that correctly.

However, across the country the potential of biogas has not yet been fully realized, meaning there is still a large amount of methane escaping into the atmosphere as a greenhouse gas that could instead be captured and transformed into electricity. The American Biogas Council states that there are currently over 2,200 biogas production sites across the U.S. with the potential for an estimated 14,958 additional sites “ripe for development.”

The biggest barriers to widespread implementation of biogas production stem from a combination of economic feasibility, infrastructure, and lack of political support. Biodigesters can require a large capital investment to setup with financial benefits not being immediately realized. Additionally, while wastewater treatment plants and landfills have existing infrastructure better suited for conversion to biogas production and utilization, rural farms would need either pipes to move the gas or connection to the electrical grid to sell back the generated electricity. Without the necessary political support, in the form of government programs financially incentivizing anaerobic digestion, these issues will continue to act as a deterrent.

Federal eye on Biogas:

While the recent executive orders dealing with the climate crisis do mention mitigating methane emissions, the focus is instead on mining in the oil and gas sectors and not repurposing existing organic matter. It seems then that in our nation’s quest to go green we are overlooking the potential to transform the very waste we create. With food waste constituting the second largest category of solid waste sent to landfills, and cities producing millions of tons of sewage annually, implementing anaerobic digesters would provide numerous environmental advantages. They save landfill space, prevent methane from leaking into the atmosphere, and generate electricity reducing our reliance on other forms of electrical generation.

Fortunately, the EPA recognizes the value in biogas production and, if Biden’s proposed $14 billion in spending towards climate change materializes, the EPA may be able to allocate some of that funding towards developing new sites. When creating new laws and policies aimed at climate change perhaps it is best to always keep in mind the universal law of conservation of energy. Energy is neither created nor destroyed, but rather transformed; what we flush down the drain or discard as trash still has energy and it is up to us to utilize it.

It’s Not Always Greener on the Other Side: Challenges to Environmental Marketing Claims

March 28, 2021
Administrative Law, Environmental Law, Telecommunication

Ben Cooper, MJLST Staffer

On March 16, 2021 a trio of environmental groups filed an FTC complaint against Chevron alleging that Chevron violated the FTC’s Green Guides by falsely claiming “investment in renewable energy and [Chevron’s] commitment to reducing fossil fuel pollution.” The groups claim that this complaint is the first to use the Green Guides to prevent companies from making misleading environmental claims. Public attention has supported companies that minimize their environmental impact, but this FTC complaint suggests that a critical regulatory eye might be in the future. If the environmental groups convince the FTC to enforce the Green Guides against Chevron, other companies should review the claims they make about their products and operations.

A Morning Consult poll released in early December 2020 showed that nearly half of U.S. adults supported expanding the use of carbon removal practices and technologies. Only six percent of survey respondents opposed carbon removal practices. In response to the overwhelming public support for carbon reduction, hundreds of major companies are making some type of commitment to reduce their carbon footprint and curb climate change. One popular program, the Science Based Targets initiative, has over 1,200 participants who made various pledges to decarbonize (or offset the carbon within) their operations.

International and non-governmental organizations took the reins of climate change policy, especially once the Trump Administration withdrew the United States from the Paris Agreement in 2017. “Climate change seems to be the leading fashion statement for business in 2019,” declared a Marketplace story in October of 2019. Yet, as with fashion, style only gets one so far. Substance is key—and often lacking. One of the founders of the Science Based Targets initiative criticized fashionable but flimsy voluntary corporate commitments: “[T]here is not a lot of substance behind those [voluntary corporate] commitments or the commitments are not comprehensive enough.”

The voluntary commitments placated environmental groups when the alternative was the Trump Administration’s silence—but the Biden Administration presents an eager environmental partner: the FTC complaint “is the first test to see if [the Biden Administration] will follow through with their commitment to hold big polluters accountable,” said an environmental group spokesperson according to a Reuters report. The consensus of environmental groups, industry commentators, and regulatory observers appears to be that government oversight is imminent to encourage consistency and accountability—and to avoid “greenwashing.”

Should organizations that make environmental claims be concerned about enforcement action? It is too early to tell if the Chevron FTC complaint portends future complaints. In the Green Guides, the FTC declared that it seeks to avoid placing “the FTC in the inappropriate role of setting environmental policy,” which might suggest that it will stick to questions of misrepresentation and avoid wading into questions of evaluating environmental claims. It is also worth noting that the FTC is missing one of its five commissioners and Commissioner Rohit Chopra is expected to resign in anticipation of his nomination to head the Consumer Financial Protection Bureau. While the FTC might not be in a position at the moment to enforce the Green Guides, organizations that make environmental claims in marketing materials should monitor this complaint and ensure their compliance with FTC guidance as well as any policy changes from the Biden Administration.

No, Dolphins Did Not Reappear in Venice Canals: The Effects of COVID-19 on the Environment

March 14, 2021
COVID-19, Environmental Law, Public Health

Drew Miller, MJLST Staffer

2020 was a strange, difficult year for billions of people as the COVID-19 pandemic wreaked havoc across the globe. The virus has claimed the lives of over 2,500,000 people, but the effects of the pandemic extend well beyond the loss of life. In an effort to slow the spread of the virus, governments at every level around the world began to implement protective measures such as stay-at-home orders and travel bans as early as March 2020 in the United States—nearly a full year ago. The mass quarantine forced over 100,000 businesses to close their doors in the first two months—some temporarily, some permanently— which in turn led to a rise in unemployment and massive drops in stock markets such as the Dow Jones and the FTSE. These economic effects and their potential remedies have been debated endlessly by news organizations, politicians, and regular citizens alike. However, the environmental effects of the pandemic have not been covered as extensively. Reduced travel tendencies have provided the climate and environment a reprieve, but it will not last; if we are to continue down the road towards environmental sustainability, we must continue to push for reform despite the unique challenges presented by COVID-19.

Environmental Effects

In mid-March, 2020, scattered among an unremitting flood of bad news, some happy stories emerged. Swans and dolphins had returned to formerly desolate Venice canals. A group of elephants had sauntered through a village in Yunnan, China, gotten drunk off corn wine, and passed out in a tea garden. Wild boars were wandering through towns. The stories continued. These reports of the Earth healing and wildlife reclaiming space in a world without people went viral, and understandably so: they offered a spark of light in a dark and uncertain time. One tweet (since deleted) about fish, swans, and clear water in Venice canals amassed over 1,000,000 likes.

Unfortunately, the stories weren’t real. “The swans … regularly appear in the canals of Burano.” “The ‘Venetian’ dolphins were filmed at a port in Sardinia, in the Mediterranean Sea, hundreds of miles away.” The water was clearer because fewer boats were disturbing the sediment at the bottom. The elephants are a regular presence in the depicted village. If anything, allow these stories to serve as a reminder not to believe everything on the internet.

Moreover, the pandemic may have hurt wildlife more than it helped. Many governments pay for environmental conservation and enforcement initiatives with tourism revenue. As that revenue dried up and budgets were cut, those protections weakened. Financial distress caused by widespread unemployment further exacerbated the situation. In April, there were reports of increased falcon smuggling in Pakistan; in June, poaching of leopards and tigers in India; and in October, trafficking of rhino horns in South Africa and Botswana. The chaos of the pandemic also provided cover for illegal logging in the Brazilian Amazon rainforest, which rose more than 50% in the first three months of 2020 compared to the same period in 2019.

Nevertheless, despite the absence of Venetian dolphins, the pandemic looked “okay” from an environmental perspective in 2020. Although there was an uptick in reliance on single-use plastics during lockdowns and increased generation of biomedical waste, pollution levels improved. Transportation, the most significant source of greenhouse gases in the United States, saw a 14.7% decline in emissions, and America’s greenhouse gas emissions from energy and industry plummeted more than 10 percent in 2020, reaching their lowest levels in at least three decades. According to a research group, the fall in emissions nationwide was the largest one-year decline since at least World War II. There were also reduced levels of water and noise pollution.

Policy Implications

Unfortunately, the pollution-related benefits of COVID-19 are likely only temporary. Emissions reductions and air quality improvements primarily resulted from reduced transportation. Consequently, as more people return to their typical travel habits, emissions and air quality are likely to bounce back to their pre-pandemic levels. As Corinne Le Quere, professor of climate change at the University of East Anglia in Britain, stated, “We still have the same cars, the same roads, the same industries, same houses. So as soon as the restrictions are released, we go right back to where we were.”

In fact, emissions may bounce back to levels even higher than they were prior to the pandemic due to the dismantling of numerous climate and environmental policies worldwide. In the United States, nearly 100 environmental protection policies and regulations were reversed or rolled back during the Trump presidency. Citing economic concerns due to COVID, the Czech Prime Minister urged the European Union to abandon the Green New Deal and the European Automobile Manufacturers Association lobbied the European Commission to weaken vehicle emission standards.

COVID-19 has impacted just about every industry in the world, and its economic ramifications continue to present significant difficulties. However, the pandemic is, ultimately, temporary; rebuilding will be challenging, but just as the economy rebounded after the 2008 recession, so it will do again. The Earth may not be so resilient. If we are to achieve a healthier and more sustainable world, businesses and policymakers alike must not recoil from that effort even in the face of unexpected bumps in the road—instead, they must forge ahead.

Carbon Copy Critters: Cloned Species and the Endangered Species Act

February 28, 2021
Animal Law, Environmental Law

Emily Kennedy, MJLST Staffer

The United States is home to over 1,600 species listed as threatened or endangered. These species face a number of challenges arising from human activity, such as habitat loss from encroaching human populations, pollution, climate change, and excessive hunting. While species such as the Houston toad or the Government Canyon bat cave Spider may seem insignificant, and perhaps a bit frightening, each species is an important part of an intricately connected biotic community. Losing a few species could trigger an “extinction domino effect” that results in ecosystem fragility and the loss of more and more species. The Endangered Species Act was designed to protect species and their ecosystems. While the Act did not contemplate cloning of endangered species, cloned animals are also protected.

The black-footed ferret (Mustela nigripes), a small mammal that historically inhabited the United States’ western mountain prairie region, is among the species listed as endangered. Black-footed ferrets were nearly wiped out entirely as a result of human efforts to kill them to ensure that prairie ranges were better suited for cattle. In fact, they were thought to be extinct until they were rediscovered and scientists captured the remaining animals for a captive breeding program.

Scientists recently announced the birth of Elizabeth Ann, a black-footed ferret who is the first clone of an endangered species indigenous to the United States. Born to a domestic ferret surrogate, she was cloned from a wild black-footed ferret named Willa who died and was frozen in 1988. After her death, Willa’s tissues were sent to a “frozen zoo” that retains genetic materials for over 1,000 species. Viagen, the company that cloned Elizabeth, also recently cloned an endangered Mongolian horse and will clone pet cats and dogs for a hefty fee of $35,000 to $50,000. Elizabeth and any future clone siblings will remain in the possession of scientists for study, with no plans for release into the wild.

The Endangered Species Act was signed into law in 1973 to protect the plant and animal species threatened with extinction in the United States. One commentator has argued that an “aggressive federal governmental policy of cloning endangered animal species would be consistent with the language and spirit of the Endangered Species Act as interpreted by the courts.” Additionally, “lack of genetic diversity in species revived in the laboratory should not preclude [Endangered Species Act] listing.” This was the case with the listing of a plant known as the Franciscan manzanita. Much like the black-footed ferret, the Franciscan manzanita was thought to be extinct until a single plant was discovered. Genetically identical clones were then propagated from cuttings from that plant.

Cloning is a cutting-edge and high-tech practice, but that does not mean that it is a panacea for species extinction concerns. Firstly, the process of cloning wild animals is successful only around 1% of the time. But the primary problem is that many species succumb to extinction due to habitat loss or fragmentation. Cloning does nothing to solve this issue, since cloned animals will still lack the habitat they need to thrive.

Further, genetic diversity is already a concern for many endangered and threatened species. Because they were nearly wiped out as a species before they rebounded in a captive breeding program, black-footed ferrets, like the one Elizabeth was cloned from, descend from seven closely related individuals. Such genetic homogeneity results in increased susceptibility to some diseases. Currently, cloning does not address this concern and may even exacerbate it, by relying on genetic material from even fewer individuals. However, some hope that manipulating the genome to improve genetic resistance is a “possibility in the future.”

While cloning may not be a complete solution to increasing species extinction, some think that it is a useful tool to address the complex problem of extinction in conjunction with other measures. Perhaps in the future, cloning can offer a high-tech option that works in concert with more established methods such as habitat restoration and conservation, captive breeding programs, and measures to address climate change.

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