Columbia Journal of Environmental Law
Perpetuating the Cycle: The Failure of APHIS and EPA to Consider the Cumulative Impact of Pairing Herbicides with Herbicide-Resistant Crops
Under the existing statutory framework, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (“APHIS”) has the authority to regulate certain genetically engineered crops, while the Environmental Protection Agency (“EPA”) regulates all herbicide products sold in the United States. Although the development of a crop engineered to be resistant to a certain herbicide contemplates the future widespread use of that herbicide, EPA and APHIS fail to account for this cumulative impact. Specifically, when performing a National Environmental Policy Act (“NEPA”) analysis for the deregulation of crops designed to be herbicide-resistant, APHIS violates NEPA and its implementing regulations by failing to analyze the environmental effects of the increased herbicide use that the deregulation presupposes. Meanwhile, the courts have determined that EPA need not comply with NEPA when registering herbicides, finding the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) analysis sufficient even though it does not evaluate the environmental effects of registering the herbicide. Consequently, APHIS, EPA, and the courts have perpetuated a cycle of herbicide registration and herbicide-resistant crop deregulation in which neither EPA nor APHIS fully contemplates the cumulative impact of their respective actions.
Private climate governance can achieve major greenhouse gas (“GHG”) emissions reductions while governments are in gridlock. Despite the optimism that emerged from the Earth Summit in Rio de Janeiro, Brazil in 1992, almost a quarter century later the federal legislative process and international climate negotiations are years from a comprehensive response. Yet Microsoft, Google and many other companies have committed to become carbon neutral. Wal-Mart has partnered with the Environmental Defense Fund to secure 20 million tons of GHG emissions reductions from its suppliers around the world, an amount equal to almost half the emissions from the US iron and steel industry. Investors holding roughly $90 trillion in assets have pressured large corporations to disclose and reduce their carbon footprints, and participating companies report having reduced emissions by an amount equal to a major emitting nation. Private forest certification programs have taken steps to reduce the GHG emissions from deforestation. Household carbon regulation is off the table in many countries, but private advocacy groups and corporations have reduced household emissions through home energy disclosure, eco-driving campaigns, employee programs, voluntary carbon offsets, and other initiatives.
In its divided 2014 decision in Sierra Club v. Jewell, the U.S. Court of Appeals for the District of Columbia Circuit held that plaintiffs who observe landscape have Article III standing to sue in federal court to protect those views even if they have no legal right to physically enter the private property that they view. Two earlier decisions had reached similar conclusions, but have had little impact. The D.C. Circuit’s decision could significantly enlarge the ability for plaintiffs to sue federal agencies or private parties over changes to private lands that the plaintiffs have no right to enter. Because the Supreme Court has inconsistently applied both strict and liberal approaches to standing, it is difficult to predict how it would decide this issue. If it addresses whether plaintiffs must have a legal interest in any property they seek standing to protect, the Supreme Court might be forced to resolve the contradictions in its standing doctrine.
In 2013, the Supreme Court decided Clapper v. Amnesty International, denying standing to a group of human rights, labor, legal, and media organizations to challenge the constitutionality of a provision of the Foreign Intelligence Surveillance Act (“FISA”). Justice Alito, writing for a 5-4 majority, held that the respondents lacked standing because the alleged injury was not “certainly impending,” the injury was not fairly traceable to the FISA provision, nor were the costs incurred by the respondents fairly traceable to the FISA provision. Naturally, the four dissenters proposed an alternate view of the facts: Justice Breyer compared the likelihood of the respondents’ injury not occurring as similar to the chance that “despite pouring rain, the streets will remain dry (due to the presence of a special chemical).” He then criticized the majority, arguing that “certainty is not, and never has been, the touchstone of standing.”
The Fifth Amendment to the United States Constitution provides, in part, that private property shall not “be taken for public use, without just compensation.” Known as the Takings Clause, this provision limiting the government’s sovereign power of eminent domain may appear to be straightforward, but in practice is not. Several categorical exceptions to this requirement have developed over time. One such categorical exception is the navigational servitude, which allows the federal government to exercise its power to regulate and control the nation’s navigable waterways without paying compensation for the resulting economic loss.