UCLA Journal of Environmental Law and Policy

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The Migratory Bird Treaty Act (MBTA) protects 1,027 bird species—the vast majority of native birds in the United States and its territories—by criminalizing the taking, killing, or selling of any migratory bird or bird part.3 Beginning in the 1960s, the Fish and Wildlife Service (FWS) began prosecuting industrial firms for “incidental take,” the unintentional taking or killing of migratory birds. Incidental take is a negative externality of industry: firms kill birds—a natural resource shared by all—and do not compensate for their loss. A split in authority consequently arose on whether the strict liability misdemeanor of the MBTA criminalizes such unintentional killings. In response to concerns of incidental take, the FWS is now in a rulemaking process, by which it hopes to establish an incidental-take permit program, allowing firms to purchase take permits, compensate the FWS for estimated bird take, and evade or at least minimize the risk of prosecution.

While the incidental-take circuit split has already received scholarly attention elsewhere, this Article tackles a larger conservation question, drawing on scholarship in the fields of emissions trading and conservation banking. This Article proposes two alternative market-based solutions to the menace of incidental take. First, the Bird Tax: a Pigouvian tax that seeks to correct the inefficient market outcome that results in uncompensated industrial and nonindustrial incidental take. Second, the North American Bird Market: a trilateral initiative building upon decades of successful environmental cooperation between Canada, the United States, and Mexico. By incentivizing clean energy, requiring industry to internalize its bird take, and promoting habitat restoration, the Bird Market is an efficient and clean theoretical solution to the menace of incidental take and the looming threat to our continent’s shared birdscape.

In contrast to a comprehensive, upstream Bird Tax that targets both industrial and nonindustrial incidental take, the Bird Market would entail potentially restrictive financial and logistical costs due to its limited focus on the regulation of industrial take. As such, it is possible that the Bird Market is a mere flight of fancy—a thought experiment whose doom radiates from its very core—and nothing more. Despite these challenges, this Article’s presentation of the Market serves three other purposes. First, the Market serves as a vehicle to expose the sobering truth that the MBTA and incidental-take prosecutions are an expressive, but ultimately fruitless conservation mechanism. Second, the Market is an investigation of how to quantify and trade death with the goal of conserving life. Finally, the exposition of the Market and the critique of the MBTA is an attempt to tightrope walk the seemingly unbridgeable legal-analytical rift between the ritualized law and economics of Ronald Coase,4 and the touchy-feelythrow-your-hands-up-in-the-air neorealism of Arthur Allan Leff. Ultimately, because incidental industrial take is only a minor anthropogenic stressor, the Market will fail to achieve meaningful conservation goals for the same reasons that incidental-take prosecutions under the MBTA fail to achieve these goals. August 2016 marked the centennial of the first migratory bird treaty with Canada. One hundred years have passed, and this Article calls upon Congress to abandon its ancient conservation precepts and supplement our treaties and the MBTA with a meaningful international habitat-restoration program.

Scholars of democratic experimentalism and new governance rightly criticize the static allocations of authority found in the American traditional federalism framework for its rigidity and potential to stifle innovation at the state and local levels. Nevertheless, this critique underappreciates the level of experimentation harbored by this framework, as witnessed in the dynamic interaction between the various levels of government. This dynamic interplay, which is very much on exhibit with respect to climate change regulation, is far from being devoid of new policy innovation. It also exhibits something that, in the long run, may be just as important—the adoption, at local and regional levels, of policy innovations developed at other levels, often on a national or international scale. Hence not only do we see policy innovation arising out of traditional American federalism, but also “scale innovation.”

This backdrop is important when exploring the best governance models for emerging environmental issues, the full scope of which are still poorly understood. Where does climate change adaptation fit? Does it illustrate the market failures and potential gamesmanship that have justified traditional federalism models, complete with a strong policymaking role for the federal government, or is it best addressed as a problem ripe for the multilevel governance solutions offered by collaborative models? Any attempt to answer this question must match up the problems presented by adaption to the tools and processes offered by more traditional environmental federalism and that offered by collaborative governance regimes.

I argue that, as understood so far, adaptation calls for a hybrid between traditional federalism models and models suggested by democratic experimentalism and collaborative governance. Commentators uniformly predict that climate change will bring with it dynamic, complex and potentially abrupt, eco-systemic change at varying scales. Thus, for some, regulations in the service of adaptation should seek to reduce the vulnerability of ecosystems to abrupt and uncertain change and to reinforce the resiliency of such systems. This process would seem ideally suited to democratic experimentalism—a problem in need of a regulatory system that is constantly monitoring its effects and updating its requirements. But for others, adaptation will necessitate national (and possibly international) infrastructure and regulations, which, together with needed minimum standards applicable to intrastate issues, will call for federal, state and local regulation similar to traditional federalism. I conclude that a model for a hybrid of the two—experimentalism and federalism—might be found in the cooperative federalism structure of EPA’s recent Clean Power Plan. Here, states are held accountable by the federal government to regulatory goals of their own making. Thus the Plan incorporates flexibility of experimentalism but also the minimum standards and backstop of federal regulation.

Brazil’s Ministério Público (“MP”), or prosecuting agency, is a unique institution. Unlike public prosecution entities in other countries, such as federal prosecutors in the United States, the MP is the primary enforcer of Brazil’s environmental laws and initiates the vast majority of environmental public civil actions. In the United States, most environmental suits are citizen suits filed by private actors, but in Brazil, the MP files almost 96 percent of those same cases. These actions have improved compliance with environmental laws and helped contribute to the MP’s reputation as an independent body, separate from the corruption known to plague other governmental bodies in Brazil. While the MP’s lawsuits have proven effective, they are adversarial in nature and preclude more cooperative means of regulation. Additionally, prosecutors within the MP feel as if they must respond to every complaint they receive, which keeps them from prioritizing the largest environmental harms. As scholars like Robert Kagan, John Scholz, and John Braithwaite have noted: a rigid, punitive style of enforcement may not be appropriate in all situations with all regulated actors. This legalistic manner of enforcement creates tension between the MP, the regulated actors, and environmental agencies; slows the enforcement process; and strains the MP’s limited resources.

This paper proposes creating a second branch of the MP’s offices: a more mediative style of enforcement for less culpable actors, in line with actions that certain members of the MP’s office have already begun to take. Prosecutors within this mediative branch would go beyond judicial remedies and would collaborate with environmental agencies, government bodies, and community members to solve challenging environmental problems. This plan is already within the range of autonomy given to the MP and would allow the MP to retain its reputation as an independent, un-corruptible enforcer, while also remedying some of the problems and inefficiencies that result from the current rigid, legalistic enforcement style.

This paper takes international climate change law norms as a given, and instead turns to their implementation in domestic courts as one of the possible enforcement strategies for advancing the protection of the climate. The enforcement of climate change law is overviewed at the international law level and portrayed in the context of domestic courts. In order to flesh out such a proposal as the latter, the viability of procedural rights, as embodied in Principle 10 of the Rio Declaration, is assessed and compared with substantive rights as a possible leverage of enforcement in the sphere of climate change law. Such leverage is pictured out within the first two judicial decisions applying international law for the protection of the climate in domestic courts, namely the Urgenda decision from the Netherlands, and the Leghari decision from Pakistan. The legacy of each of those is evaluated under the prong of judicial globalization and international climate policy.

The paper argues that the interpretive techniques deployed in this strand of cases are poised to further advance international climate change law, not only on a substantive plane, but also on a procedural plane, especially with regard to the standing of individuals and NGOs. Indeed, the paper holds such a judicial turn to be a viable enforcement mechanism in the field of climate change law and policy, especially in the aftermath of the 2015 Paris Agreement.