Volume 18 • Issue 3vjel.vermontlaw.edu/files/2017/05/Book-3-Done-1.pdfPamir Hazem ... permit new O&G development after conducting an Environmental Impact Statement (EIS) or Environmental

Volume 18 • Issue 3

VERMONT JOURNAL OF ENVIRONMENTAL LAW VERMONT LAW SCHOOL

Volume 18, Issue 3 Spring 2017

ARTICLES NEPA and the Energy Policy Act of 2005 Statutory Categorical Exclusions: What Are the Environmental Costs of Expedited Oil and Gas Development? Mark K. Capone & John C. Ruple……………………………………….371 Water, Conflict, and Cooperation in Central Asia: The Role of International Law and Diplomacy Sharmila L. Murthy & Fatima Mendikulova………………..…………...400 Getting Ahead of Greenhouse-Gas Emissions in Afghanistan: The Case for Shifting from a Command-and-Control to a Cap-and-Trade Regime Pamir Hazem…………………………………………………………….455

NOTE The New Crop Growing on the Hillsides: Retaining Land in Agricultural Use Through the OPAV Alexis Peters……………………………………………………..……….485

BOOK REVIEW Review: Environmental Law for Biologists by Tristan Kimbrell Stacy Shelton…………………………………………………...….517

VERMONT JOURNAL OF ENVIRONMENTAL LAW VERMONT LAW SCHOOL

Volume 18, Issue 3 Spring 2017

EDITORIAL BOARD 2016–2017

EDITOR-IN-CHIEF Rebecca Blackmon

ADMINISTRATIVE EDITOR SENIOR MANAGING EDITOR SENIOR ARTICLES EDITOR Sara Barnowski Elizabeth Bootz John Pritchard

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Elizabeth Smith

SOCIAL MEDIA EDITOR MANAGING EDITORS EVENTS EDITOR Koral Skeen Matthew Carlisle

Breanna Hayes Patrick Kenney

Morgan Slovin

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Hannah Solomon

ARTICLES EDITORS Natalie Donis

William Johnson Charlotte Rand

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Mary Mason Kirsten Morgan Carly Moss Sarah Munger FACULTY ADVISOR John Echeverria

Brianna Tibett Daniel Wilcox

Sera Yoon

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NEPA AND THE ENERGY POLICY ACT OF 2005 STATUTORY CATEGORICAL EXCLUSIONS: WHAT ARE THE

ENVIRONMENTAL COSTS OF EXPEDITED OIL AND GAS DEVELOPMENT?

Mark K. Capone* & John C. Ruple+

A. The Bureau of Land Management and Oil and Gas Development . 375The BLM in Wyoming .................................................................... 377

B. The National Environmental Policy Act (NEPA) ........................... 378C. Section 390 of the Energy Policy Act of 2005 ................................ 380

The BLM’s Failed Attempt to Adopt New Section 390 Guidance .. 381

A. Geographic Scope and Data Acquisition ........................................ 383B. Variables for Analysis ..................................................................... 384

Initial Surface Disturbance as an Indicator of Environmental Impact ..................................................................................................... 385

C. Dataset ............................................................................................. 386D. Data Analysis .................................................................................. 386

* Attorney Advisor, Office of the General Counsel, National Oceanic and Atmospheric Administration, U.S. Department of Commerce. + Associate Professor of Law (Research) & Wallace Stegner Center Fellow, S.J. Quinney College of Law at the University of Utah. The authors would like to thank Professor Robert Keiter for his careful review of and thoughtful comments on drafts of this paper. The authors, however, are solely responsible for the opinions, recommendations, and any errors or omissions contained herein. Furthermore, the views and opinions expressed herein do not reflect those of the National Oceanic and Atmospheric Administration or the Department of Commerce.

Introduction .............................................................................................. 372I. Background ........................................................................................... 375

II. Methods ............................................................................................... 383

372 VERMONT JOURNAL OF ENVIRONMENTAL LAW [Vol. 18

Comparison of Surface Disturbance for CEs, EAs, and EISs .............. 3891. ANOVA Results .......................................................................... 3892. Components of Initial Surface Disturbance ................................. 390

A. Comparison of Environmental Effects for Different Levels of NEPA Compliance ..................................................................................... 391

B. Specific Problems in Section 390 CE Implementation ................... 3931. Sundry Notices ............................................................................. 3932. Type 3 CEs Tiered to RMPs ........................................................ 3953. Type 3 CEs Tiered to Master Leasing Plans ................................ 396

C. Recommendation to the BLM ......................................................... 396

INTRODUCTION

More than a decade ago, concerned that National Environmental Policy Act (NEPA)1 compliance caused delays in permitting oil and gas (O&G) development on federal land, Congress enacted Section 390 of the Energy Policy Act (EPAct) of 2005.2 Section 390 is intended to expedite the environmental review of O&G development projects on federal lands.3 To effectuate that end, Congress created several statutory categorical exclusions (CEs) to NEPA that apply to O&G development.4

Prior to the EPAct, the Bureau of Land Management (BLM) would permit new O&G development after conducting an Environmental Impact Statement (EIS) or Environmental Assessment (EA).5 EISs and EAs were

1. National Environmental Policy Act, 42 U.S.C. §§ 4321–47 (2012). 2. Energy Policy Act, 42 U.S.C. § 15942 (2012). 3. Id.; see also W. Energy All. v. Salazar, No. 10-CV-237F, 2011 WL 3938240, at *2 (D.

Wyo. Aug. 12, 2011) (noting that the EPAct was passed to address long-term energy challenges, including to expedite oil and gas development in the United States).

4. 42 U.S.C. § 15942. 5. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-09-872, ENERGY POLICY ACT OF 2005:

GREATER CLARITY NEEDED TO ADDRESS CONCERNS WITH CATEGORICAL EXCLUSIONS FOR OIL AND GAS DEVELOPMENT UNDER SECTION 390 OF THE ACT 8 (2009),

III. Results ................................................................................................ 387

IV. Discussion .......................................................................................... 391

Conclusion ................................................................................................ 399

2017] Environmental Costs of Expedited O&G Development 373

the only NEPA compliance option available to the BLM because the agency had not promulgated regulations creating CEs for O&G projects.6 After the EPAct was passed, the BLM began permitting a substantial number of O&G wells using the less rigorous CEs provided in Section 390. In fiscal years 2006 through 2008, the BLM used Section 390 CEs to permit approximately 28% of all wells nationally.7 States, members of Congress, and environmental groups have expressed concerns that the Section 390 CEs would lead to otherwise avoidable environmental impacts by circumventing conventional NEPA review.8 This article reviews 189 NEPA decisions and assesses whether the EPAct’s CEs result in environmental harm that could have been avoided had the projects undergone EA or EIS review.

O&G development on federal lands must comply with NEPA.9 An EIS is required for “major Federal actions significantly affecting the quality of the human environment.”10 An EA may be completed in circumstances where the project will not have significant impacts or if the agency is unsure whether the project will have a significant impact.11 Alternatively, an administrative CE may be completed where, pursuant to its rulemaking authority, an agency identifies types of actions that “do not individually or cumulatively have a significant effect on the human environment.”12 In the

http://www.gao.gov/new.items/d09872.pdf [https://perma.cc/3TQM-XYUQ] [hereinafter GAO EPACT REPORT].

6. See BUREAU OF LAND MGMT., DEP’T. OF THE INTERIOR, H-1790-1, NATIONAL ENVIRONMENTAL POLICY ACT HANDBOOK 13–20 (2008) [hereinafter NEPA HANDBOOK] (listing department and bureau CEs); W. GOVERNORS’ ASS’N, PROTECTING WILDLIFE MIGRATION CORRIDORS AND CRUCIAL WILDLIFE HABITAT IN THE WEST 1 (2007), https://www.westgov.org/images/dmdocuments/wildlife08.pdf [https://perma.cc/Y6ME-FVMG].

7. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-11-941T, ENERGY POLICY ACT OF 2005, BLM’S USE OF SECTION 390 CATEGORICAL EXCLUSIONS FOR OIL AND GAS DEVELOPMENT 6 (2011), http://www.gao.gov/assets/130/126915.pdf [https://perma.cc/WR44-5727] [hereinafter GAO SECTION 390 REPORT].

8. Impacts to Onshore Jobs, Revenue, and Energy: Review and Status of Sec. 390 Categorical Exclusions of the Energy Policy Act of 2005: Oversight Hearing Before the Subcomm. on Energy & Mineral Res. of the H. Comm. on Nat. Res., 112th Cong. 7 (2011) (statement of Rush D. Holt, Ranking Member, Subcomm. on Energy & Mineral Res.) (“The categorical exclusions established in Section 390 to expedite the approval of oil and gas drilling permits were unnecessary and unwise . . . . [Section 390 exclusions] cause environmental impacts, such as ozone levels that have reached or exceeded allowable levels and habitat fragmentation that has harmed . . . wildlife in the West.”) [hereinafter Holt Statement]; W. GOVERNORS’ ASS’N, POLICY RESOLUTION 07-01: PROTECTING WILDLIFE MIGRATION CORRIDORS AND CRUCIAL WILDLIFE HABITAT IN THE WEST 14 (2007) (calling for the amendment of the EPAct’s Section 390 “to remove the categorical exclusion for NEPA reviews for exploration or development of oil and gas in wildlife corridors and crucial wildlife habitat”).

9. 42 U.S.C. § 4332. 10. Id. § 4332(2)(C). 11. 40 C.F.R. §§ 1501.3, 1501.4(a)–(c) (2016). 12. Id. § 1508.4.


context of O&G development, the BLM may also use one of the EPAct’s statutory CEs.13

The BLM’s use of the EPAct CEs raises numerous questions. First, the BLM initially took the position that these statutory CEs “differ substantively from administrative categorical exclusions: whereas administrative categorical exclusion[s] must have no significant environmental impact, there is no specific requirement that [S]ection 390 [CEs] have no such impact.”14 This means that Section 390 CEs could be used to expedite well permitting even when the wells would have a significant impact on the human environment. In practice, however, BLM field offices often elect to do an EA “in cases where projects seem politically controversial or may have a significant effect on wildlife.”15 Field office hesitance to use Section 390 CEs for certain projects may be “because [the] BLM fears litigation from environmental groups.” 16 Apparently, many field office employees view completion of an EA or EIS as “more expedient than using a potentially controversial [S]ection 390 [CE] that may be litigated.”17

Second, Section 390 of the EPAct does not require public notice of proposed projects for decisions authorized under a CE.18 This has led to differing approaches by BLM field offices, with some offices providing public notice and opportunity for comment and others “not publicly disclos[ing] their decisions . . . and, in fact, requir[ing] the public to file Freedom of Information Act requests to identify which projects BLM approved using [S]ection 390 categorical exclusions and to obtain copies of approved [S]ection 390 [CE] decision documents.”19

Third, Section 390 CEs encourage a piecemeal approach to O&G development.20 Because Section 390 CEs offer a relatively quick method

13. 42 U.S.C. § 15942. 14. GAO EPACT REPORT, supra note 5, at 35. In a guidance memo, the BLM explained

that 390 CEs were established by statute and not under the Council on Environmental Quality procedures set out in 40 C.F.R. § 1507.2 and § 1508.2. BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, NO. 2005-247, NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) COMPLIANCE FOR OIL, GAS, AND GEOTHERMAL DEVELOPMENT 2-1 (2005) [hereinafter BLM 2005 GUIDANCE]. Because the 390 CEs were not established pursuant to § 1508.4, they are not subject to the requirement that actions “do not individually or cumulatively have a significant effect on the human environment.” 40 C.F.R. § 1508.4.

15. GAO EPACT REPORT, supra note 5, at 39. However, the GAO noted that some field offices use 390 CEs even when the proposed O&G wells are located in areas of critical environmental concern. Id.

16. See id. at 21 (describing the concerns of industry officials). 17. W. Energy All., 2011 WL 3738240, at *5. 18. GAO EPACT REPORT, supra note 5, at 41. 19. Id. at 41–42. 20. Id. at 47.


for permitting individual wells, there is an incentive to use Section 390 whenever possible, and to avoid larger-scale development plans (and larger-scale NEPA analysis). In avoiding an EIS or EA in favor of a CE, however, the BLM may miss an opportunity to minimize environmental impacts by grouping wells or sharing roads, pipelines, and infrastructure among wells.21 Consequently, the use of Section 390 CEs “has led to a spider-web pattern of development,” where well sites are haphazardly spread across the landscape with little regard for optimal well, road, and infrastructure placement.22

In sum, because of Section 390, some O&G projects may be being permitted more rapidly than before “without careful analysis”23 or the opportunity for robust public involvement. The critical question addressed in this paper is: Does the expedited Section 390 CE permitting process—lacking the careful agency analysis, transparency, and public participation found in both EAs and EISs—result in more environmentally impactful decisions than those made after EA or EIS review? This study addresses the question by comparing the environmental impacts of O&G projects that have undergone different levels of NEPA review: Section 390 CE, EA, or EIS.

I. BACKGROUND

A. The Bureau of Land Management and Oil and Gas Development

The BLM is “The Nation’s Largest Landlord,”24 administering 246.4 million surface acres of federal lands.25 Additionally, the BLM administers a 700 million acre federal subsurface mineral estate.26 The Mineral Leasing Act of 1920, as amended by the Federal Onshore Oil and Gas Leasing Reform Act of 1987, authorizes the BLM to grant leases for the “economically sound and stable” development of oil and gas on federal

21. See Del. River Keeper Network v. Fed. Energy Regulatory Comm’n, 753 F.3d 1304,

1313 (D.C. Cir. 2014) (“An agency impermissibly ‘segments’ NEPA review when it divides connected, cumulative, or similar federal actions into separate projects and thereby fails to address the true scope and impact of the activities that should be under consideration.”).

22. GAO EPACT REPORT, supra note 5, at 36. 23. Robert B. Keiter, Breaking Faith with Nature: The Bush Administration and Public

Land Policy, 27 J. LAND, RESOURCES, & ENVTL. L. 195, 202 (2007). 24. See generally JAMES R. SKILLEN, THE NATION’S LARGEST LANDLORD: THE BUREAU

OF LAND MANAGEMENT IN THE AMERICAN WEST (2009) (referring to the Bureau of Land Management as the “nation’s largest landlord”).

25. Bureau of Land Mgmt., Public Land Statistics 2014, PUBLIC LAND STATISTICS, May 2015, at 7 [Public Land Statistics 2014].

26. Id.


lands and private lands where the federal government owns the subsurface mineral estates.27

Pursuant to the Federal Land Policy and Management Act of 1976, the BLM uses a multi-step process when permitting oil and gas development.28 The first step involves the BLM drafting a Resource Management Plan (RMP).29 RMPs are regional land use plans intended to be broad guides for the long-term management of public lands.30 RMPs inventory resources and establish allowable uses, constraints, and goals for the region. 31 Relevant to O&G development, the RMP designates areas as open or closed to development and determines general stipulations and mitigation requirements.32 The RMP does not approve site-specific decisions, but merely determines what areas are appropriate for certain uses. 33 All subsequent O&G permitting must conform to the RMP governing the lands at issue, or the RMP must be amended to accommodate the use.34

After adopting an RMP, the BLM may lease areas for O&G development.35 Before offering areas for leasing, the BLM reviews whether leasing conforms to the governing RMP and any NEPA documents applicable to the project or project area.36 The pre-leasing review is known as a determination of NEPA adequacy and is used to determine whether additional NEPA documentation is required.37 If the potential leases are consistent with the RMP and other NEPA documentation, then additional NEPA analysis may not be necessary at this stage,38 and the BLM can offer lands for competitive bids and lease those lands to the highest bidder.39

27. Mineral Leasing Act, 30 U.S.C. §§ 181–226 (2012); Federal Onshore Oil and Gas

Leasing Reform Act, Pub. L. No. 100-203, 101 Stat. 1330–256, 1330–257 to –258 (1987). 28. 43 U.S.C. § 1701.

29. BLM’s Competitive Oil and Gas Leasing & Drilling Process, WILDERNESS SOC’Y 1, http://wilderness.org/sites/default/files/OG-Process-Fact-Sheet-Full.pdf [https://perma.cc/4S6S-5CL8] (last visited May 8, 2017).

30. 43 C.F.R. § 1601.0-5(n) (2014). 31. 43 U.S.C. § 1712; 43 C.F.R. § 1601.0-5(n)(4). 32. BUREAU OF LAND MGMT., U.S. DEP’T OF THE INTERIOR, H-1601-1, LAND USE

PLANNING HANDBOOK 23 (2005). 33. 43 C.F.R. § 1601.0-5(n)(8) (“[The RMP] is not a final implementation decision on

actions which require further specific plans, process steps, or decisions under specific provisions of law and regulations.”).

34. 43 C.F.R. § 1610.5-3(a). 35. 30 U.S.C. § 226(a). 36. Pennaco Energy, Inc. v. U.S. Dep’t of the Interior, 377 F.3d 1147, 1162 (10th Cir.

2004). 37. Id.

38. See N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 717–18 (10th Cir. 2009) (holding that the decision to conduct NEPA at the leasing stage is a fact specific determination and there is “no bright line rule that site-specific analysis may wait until the APD stage”).

39. 30 U.S.C. § 226(b)(1)(A).


After leasing, the operator must submit an Application for Permit to Drill (APD) for each well. 40 “No drilling operations, nor surface disturbance . . . may be commenced prior to . . . approval of the permit.”41 The permit to drill on a lease is only granted after “analysis and approval . . . of a plan of operations covering proposed surface-disturbing activities within the lease area.” 42 APD permitting requires NEPA compliance.43 NEPA analysis conducted at the APD stage generally ties to, and incorporates by reference, the existing RMP.44

The BLM in Wyoming

In 2014, Wyoming led the nation in natural gas, coal, uranium, trona, and bentonite production and was second in the nation in oil production.45 The BLM administers 18.3 million surface acres and 41.6 million subsurface acres in Wyoming.46 In 2015, there were 14,747 O&G leases extending across 9.9 million acres of these BLM lands.47 In 2014, these leases produced 44 million barrels of oil and 1.2 trillion cubic feet of natural gas.48

The Buffalo Field Office, located in north-central Wyoming, is one of ten BLM field offices in the state.49 The Buffalo Field Office administers 780,291 acres of surface lands and 4.7 million acres of subsurface mineral lands encompassing three counties.50 These lands contain “vast deposits of oil, gas, and coal and provide[] a variety of resources such as wildlife habitat and rangelands for livestock grazing.”51 In 2007, the Buffalo Field Office’s administered lands produced approximately 18% of Wyoming’s

40. 43 C.F.R. § 3162.3-1(c) (2014). 41. Id. 42. 30 U.S.C. § 226(g). 43. 43 C.F.R. § 3160.0-3. 44. See 40 C.F.R. § 1508.28 (2014) (referencing the incorporation of the general impact

discussion with narrower, site-specific statements). 45. BUREAU OF LAND MGMT., U.S. DEP’T OF THE INTERIOR, WYOMING 2015 ANNUAL

REPORT 2 (2015). 46. Id. 47. Public Land Statistics 2014, supra note 25. 48. Id.

49. See Wyoming State Office, BUREAU LAND MGMT., https://www.blm.gov/contact/wyoming [https://perma.cc/R3GB-PK22] (last visited May 8, 2017) (listing contact information for all the field offices in Wyoming).

50. Buffalo Field Office, BUREAU LAND MGMT., https://www.blm.gov/wy/st/en/field_offices/Buffalo.html [https://web.archive.org/web/20170202033920/https://www.blm.gov/wy/st/en/field_offices/Buffalo.html] (last visited Jan. 21, 2017).

51. BUREAU OF LAND MGMT., U.S. DEP’T OF INTERIOR, YEAR TWO REPORT FOR THE PILOT PROJECT TO IMPROVE FEDERAL PERMIT COORDINATION, at xiv (2008).


total oil production. 52 As of 2008, federal O&G leases covered approximately 2.5 million acres or approximately 55% of the subsurface mineral acres administered by the Buffalo Field Office.53 The 2001 Buffalo Field Office RMP and subsequent amendments guided the office’s O&G permitting until approval of a new RMP in 2015.54 These RMPs and their amendments provide broad management objectives as well as identify lands that are opened, closed, or subject to restrictions for O&G development over the period of time addressed in this analysis.55

B. The National Environmental Policy Act (NEPA)

NEPA is a procedural statute that requires federal “agencies to take a hard look at the consequences of a proposed action” before authorizing that action.56 NEPA “does not mandate particular results, but simply prescribes the necessary process.”57 Even though NEPA is primarily a procedural statute, the EIS process can, in the context of O&G development, reduce environmental impacts with relatively minor economic consequences.58

NEPA requires all federal agencies to prepare an EIS for “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human

52. BUREAU OF LAND MGMT., DRAFT RESOURCE MANAGEMENT PLAN AND

ENVIRONMENTAL IMPACT STATEMENT FOR THE BUFFALO FIELD OFFICE PLANNING AREA, at xlix (2013).

53. Id. at xxxvii. 54. BUREAU OF LAND MGMT., APPROVED RESOURCE MANAGEMENT PLAN FOR PUBLIC

LANDS ADMINISTERED BY THE BUFFALO FIELD OFFICE 2 (2001). The 2003 Powder River Basin RMP and the 2011 Fortification Creek RMP amend portions of the 2001 Buffalo Field Office RMP relating to O&G development. See generally BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, FINAL RESOURCE MANAGEMENT PLAN AND ENVIRONMENTAL IMPACT STATEMENT FOR THE POWDER RIVER BASIN OIL AND GAS PROJECT 1–5 (2003) (describing consultation and coordination efforts) [hereinafter POWDER RIVER EIS]; see generally BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, FORTIFICATION CREEK PLANNING AREA RESOURCE MANAGEMENT PLAN AMENDMENT 1-3 (Aug. 2011) (one of the subsequent amendments); BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, RECORD OF DECISION AND APPROVED RESOURCE MANAGEMENT PLAN AMENDMENTS FOR THE ROCKY MOUNTAIN REGION, INCLUDING THE GREATER SAGE-GROUSE SUB-REGIONS OF LEWISTOWN NORTH DAKOTA NORTHWEST COLORADO WYOMING AND THE APPROVED RESOURCE MANAGEMENT PLANS FOR BILLINGS, BUFFALO, CODY, HILINE, MILES CITY, POMPEYS PILLAR NATIONAL MONUMENT, SOUTH DAKOTA, [AND] WORLAND (2015) [hereinafter BUFFALO 2015 RMP].

55. POWDER RIVER EIS, supra note 54, at 5–1. 56. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 356 (1989). 57. Id. at 350; Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S.

519, 558 (1978) (“NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural.”).

58. John Ruple & Mark Capone, NEPA—Substantive Effectiveness Under a Procedural Mandate: Assessment of Oil and Gas EISs in the Mountain West, 7 GEO. WASH. J. ENERGY & ENVTL. L. 39, 46–47 (2016).


environment.”59 Federal agencies may, as an initial step, prepare an EA to determine whether the environmental impact of the proposed action is significant enough to warrant an EIS.60 The EA is a “concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].”61 If the proposed action is found to have no significant effect, the agency completes the NEPA review by issuing a finding of no significant impact.62 However, if the proposed action is determined to have a significant effect, then an EIS is required.63 Additionally, an agency may forego an EA and proceed directly to an EIS if the consequences of the action are clearly significant.64

An EIS must evaluate the proposed action, reasonable alternative actions, and a “no action” alternative, comparing each alternative’s direct, indirect, and cumulative environmental impacts. 65 The “no action” alternative reflects the scenario where the proposed activity does not take place and provides a baseline against which to compare a project’s alternative impacts.66 Consideration of alternatives is “the heart of the environmental impact statement,”67 and consideration of fewer alternatives may result in decisions with more environmental effects.68

As a first step in completing an EIS, the agency publishes a notice of intent to prepare an EIS in the Federal Register, describing the proposed action.69 Next, after receiving and considering public comment, the agency prepares and circulates a draft EIS for public review and comment.70 After reviewing and responding to comments and making any appropriate changes to the EIS, the agency then circulates the final EIS.71 Finally, the agency selects an approved alternative and issues a record of decision.72

If the action falls within a category of actions that can be authorized under a CE, then the agency need not prepare an EIS or an EA.73 CEs are

59. 42 U.S.C. § 4332(2)(C) (2012). 60. See 40 C.F.R. § 1508.9 (2014) (indicating that an environmental impact statement does

not have to be done if the environmental assessment suggests no significant impact). 61. Id. 62. Id. § 1501.4. 63. Id. 64. Id. § 1501.3(a). 65. Id. § 1502.14. 66. Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act

Regulations, 46 Fed. Reg. 18,026, 18,027 (Mar. 23, 1981). 67. 40 C.F.R. § 1502.14. 68. Ruple & Capone, supra note 58, at 50. 69. 40 C.F.R. §§ 1501.7, 1508.22. 70. Id. §§ 1502.19, 1503.1. 71. Id. § 1503.4. 72. Id. § 1505.2. 73. Id. § 1508.4.


specific types of actions identified by the agency through rulemaking, which do not individually or cumulatively have a significant effect on the human environment.74 Federal agencies are required to design procedures for establishing CEs.75 The agencies’ CE procedures “shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect,” in which case an EA or EIS will be required.76 The BLM has not established CEs that apply specifically to O&G development.77

C. Section 390 of the Energy Policy Act of 2005

In Section 390 of the EPAct, Congress identified five categories of action subject to a “rebuttable presumption” that they are categorically excluded from NEPA.78 Three of the CEs apply directly to the permitting of new O&G wells.79 Shortly after Congress enacted the EPAct, the BLM adopted guidance that directs Section 390 CE use.80

Under Section 390, Type 1 CEs are available when the proposed well site results in less than five acres of disturbance and when site-specific analysis has been previously completed in another NEPA document “so long as the total surface disturbance on the lease is not greater than 150 acres.”81 If more than one well is proposed for the project, each well is counted separately and each may disturb up to five acres, but all contribute to the 150-acre disturbance cap.82 Type 2 CEs are available when the operator proposes to drill an oil or gas well from an existing well pad where

74. Id. §§ 1508.4, 1507.3(b)(1)–(2)(ii). 75. Id. § 1508.4. 76. Id. The BLM has identified twelve extraordinary circumstances, including actions that:

(1) have significant impacts on threatened or endangered species or species proposed for listing, (2) contribute to the spread of noxious weeds or invasive species, and (3) have a “direct relationship to other actions with individually insignificant but cumulatively significant environmental effects.” NEPA HANDBOOK, supra note 6, at 155.

77. See NEPA HANDBOOK, supra note 6, at apps. 3, 4 (listing department and bureau CEs).

78. 42 U.S.C. § 15942(a) (2012); GAO EPACT REPORT, supra note 5, at 34. The EPAct “does not specify what the ‘rebuttable presumption’ provision in Section 390 means or how BLM is supposed to implement it.” Id. The BLM interprets the “rebuttable presumption” to mean that a Section 390 CE “will comply with NEPA unless this presumption is rebutted by showing that one or more of the [Section 390] required conditions is not present.” Id. at 40–41. For example, one may rebut the presumption that a Type 1 CE applies by showing that the project will result in more than five acres of surface disturbance per well. Under this interpretation, the existence of extraordinary circumstances alone, however, is insufficient to rebut the presumption of CE applicability.

79. 42 U.S.C. § 15942. 80. BLM 2005 GUIDANCE, supra note 14. 81. 42 U.S.C. § 15942(b)(1). 82. BLM 2005 GUIDANCE, supra note 14, at 2-2.


drilling has occurred within the past five years.83 Type 3 CEs are available when the project proposes to drill a “well within a developed field for which an approved land use plan or any environmental document prepared pursuant to NEPA analyzed such drilling as a reasonably foreseeable activity” and was completed within five years of drilling.84 The BLM guidance defines a developed field as any field in which a confirmation well has been completed.85 A confirmation well is one that demonstrates that “oil and gas resource[s] exist in paying quantities” for the field.86 The BLM guidance also states that RMPs, encompassing the proposed well, will satisfy the NEPA requirement for Type 3 CEs so long as the RMP “contains a reasonably foreseeable development scenario broad enough to encompass this action.”87

The BLM’s 2005 guidance provided that Section 390 CEs would not be subject to extraordinary circumstances. 88 This represents an important difference from administrative CEs, which cannot be used when extraordinary circumstances exist.89 The 2005 BLM guidance states that field offices “should apply [a Section 390 CE] unless the activity does not meet the standard prescribed in the law to qualify for the exclusion . . . [and field offices are] advised not to prepare a NEPA document in lieu of appropriately applying the statutory [CE].”90 The use of CEs must be documented, and the document “must include a brief narrative in the well file stating the rationale for making the determination that the categorical exclusion applies.”91

The BLM’s Failed Attempt to Adopt New Section 390 Guidance

Early application of Section 390 CEs and the BLM guidance led to “disagreements and litigation,” prompting Congress to direct the Governmental Accountability Office (GAO) to report on the use and benefits of Section 390 CEs.92 The GAO’s main finding was that “[a] lack

83. 42 U.S.C. § 15942(b)(2). 84. Id. 85. BLM 2005 GUIDANCE, supra note 14, at 2-1. 86. BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, CATEGORICAL EXCLUSIONS

UNDER SECTION 390 OF THE ENERGY POLICY ACT OF 2005 (2006). 87. BLM 2005 GUIDANCE, supra note 14, 2-2. 88. Id.; see also Megan J. Anderson, The Energy Policy Act and Its Categorical

Exclusions: What Happened to the Extraordinary Circumstance Exception?, 28 J. LAND, RESOURCES, & ENVTL. L. 119, 128 (2008) (“This means, for example, when an oil and gas development project that falls under § 390 [CE] is in sensitive habitat area, there is no exception to the [CE] application.”).

89. 40 C.F.R. §§ 1508.4, 1507.3(b)(1)–(2)(ii) (2014). 90. BLM 2005 GUIDANCE, supra note 14, at 2-2. 91. Id. 92. W. Energy All., 2011 WL 3738240, at *3.


of clarity in Section 390 and BLM’s guidance has raised serious concerns about the use of [S]ection 390 [CEs].”93 In 2010, in response to the GAO report and a court settlement, the BLM adopted new guidance that made “substantial” changes to its Section 390 CE procedures.94

The 2010 guidance directed field offices “to conduct a review of extraordinary circumstances when considering use of any of the Section 390 [CEs].”95 Further, under the 2010 guidance, field offices should permit the action only after an EA or EIS when extraordinary circumstances are present.96 Specific to Type 3 CEs, the 2010 guidance stated that CEs could not rely “solely on an approved land use plan and associated EIS.”97 Instead, the proposed wells in a Type 3 CE must have been “adequately analyzed in an existing activity-level or project-specific EIS or EA.”98 The guidance also required that Type 2 CEs only be used if the proposed drilling site was adequately analyzed in a project-specific EA or EIS.99

In 2011, the Western Energy Alliance, an O&G trade association, sued the BLM, alleging that the BLM’s 2010 guidance document violated the Administrative Procedure Act (APA)100 and Section 390 of the EPAct.101 Noting that the BLM’s 2010 guidance was a “complete ‘about-face’” from their prior guidance, the court held that the 2010 guidance constituted “legislative rules adopted contrary to public notice and procedures required by [the APA].”102 The court vacated and enjoined the 2010 guidance nationwide on APA grounds.103 The court did not reach the issue of the guidance violating Section 390 of the EPAct.104

Following the decision in Western Energy Alliance, the BLM instructed all field offices that the 2010 guidance was no longer valid and

93. GAO EPACT REPORT, supra note 5, at 34. 94. W. Energy All., 2011 WL 3738240, at *3. In addition to the GAO report, litigation in

Nine Mile Canyon Coal. v. Stiewig prompted the new guidance. Id. at *8 n.3. The BLM settled Nine Mile Canyon Coal. by “agreeing . . . to issue a new Instruction Memorandum . . . stating that future Section 390 [CEs] will not be invoked absent a determination that there are no ‘extraordinary circumstances.’” Id.

95. BUREAU OF LAND MGMT., DEP’T OF INTERIOR, NO. 2010-118, ENERGY POLICY ACT SECTION 390 CATEGORICAL EXCLUSION POLICY REVISION 2 (2010), https://www.ntc.blm.gov/krc/uploads/454/IM_2010-118_390CXPolicyRevision.pdf [https://perma.cc/J654-D8RN].

96. Id. 97. Id. 98. Id. 99. Id. 100. See generally 5 U.S.C. §§ 551–59 (2012) (discussing the Administrative Procedure

Act that governs agency rulemaking). 101. W. Energy All., 2011 WL 3738240, at *1.

102. Id. at *7. 103. Id. 104. Id.


to follow the 2005 guidance instead.105 However, the BLM indicated its intent to initiate rulemaking to establish new guidelines for the use of Section 390 CEs.106 At the time of writing this article, the BLM has not published a proposed rule to this effect.

II. METHODS

A. Geographic Scope and Data Acquisition

The BLM tracks NEPA compliance at three different levels: national, state, and field office. A brief survey revealed irregular and incomplete tracking across the three levels. In general, field offices maintained the most complete records, but even then, some field offices did not track all EAs and CEs. Our initial survey is consistent with the GAO’s finding that national BLM data regarding the number of CEs issued “varied considerably from . . . data supplied . . . directly by the field offices.”107

At the national level, the BLM recently launched a nationwide register for NEPA planning.108 This site allows the public to “review and comment online on BLM NEPA and planning projects . . . [and] makes finding documents easier.” 109 At present, the national register is not fully implemented and provides only a fraction of NEPA decisions from a limited number of BLM field offices.110

At the state level, the BLM maintains state NEPA compliance websites in the four states addressed in our earlier work: Colorado, Montana, Utah, and Wyoming.111 However, the state offices across these four states vary in terms of their approach to CE and EA dissemination. For example, the Utah BLM office has a central online database that attempts to track NEPA compliance for all field offices in the state,112 but cross-referencing the data

105. Impacts to Onshore Jobs, Revenue, and Energy: Review and Status of Sec. 290

Categorical Exclusions of the Energy Policy Act of 2005: Oversight Hearing Before the Subcomm. on Energy & Mineral Res. of the H. Comm. on Nat. Res., 112th Cong. 52–55 (2011) (testimony of Mike Pool, Deputy Director Bureau of Land Mgmt.).

106. Id. 107. GAO EPACT REPORT, supra note 5, at 14. 108. National Register for Land Use Planning and National Environmental Policy Act

Documents, BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, https://eplanning.blm.gov/epl-front-office/eplanning/nepa/nepa_register.do [hereinafter BLM National Register] (last visited Jan. 12, 2017).

109. Id. 110. Id.

111. Regions, BUREAU LAND MGMT., https://www.blm.gov/locations [HTTPS://PERMA.CC/48CJ-UL49] (last visited Jan. 20, 2017).

112. Utah Planning and NEPA, BUREAU LAND MGMT., https://www.blm.gov/programs/planning-and-nepa/plans-in-development/utah [https://perma.cc/J668-VSUD] (last visited Jan. 20, 2017).


available through this state database with information from field office websites revealed that the state database was missing numerous EAs and CEs. Montana provided a seemingly complete record of EAs and CEs organized by field office, but the actual NEPA documents are not available for download and must be requested from the issuing field office.113 Wyoming organized NEPA documents by field office; however, not all field offices tracked CEs.114

In many cases, a separate field office website also provides access to NEPA documents specific to that field office. Information obtained from individual field offices, however, was highly inconsistent, with some field offices displaying and making available only EISs and EAs and others providing a list of all NEPA decisions without providing downloadable documents.

At the time of writing, the Buffalo Field Office in Wyoming had the most complete online NEPA record of any field office surveyed. Consequently, the Buffalo Field Office was selected for this study. It is also within the geographic scope of our previous analysis of O&G NEPA decisions,115 allowing for comparison with EIS data from the previous study.

B. Variables for Analysis

All Buffalo Field Office EAs and CEs quantified the number of wells and well pads proposed and permitted. However, initial surface disturbance was the only environmental variable reported consistently throughout the EAs and CEs.116 Initial surface disturbance reflects the amount of ground and vegetation disturbance that occurs with initial well-site development and includes well-pad construction, road construction and improvement of existing roads, utility and pipeline construction, and construction of other

113. Public Participation and NEPA Compliance on Public Lands in Montana and the

Dakotas, BUREAU LAND MGMT., http://www.blm.gov/mt/st/en/info/nepa.html [https://web.archive.org/web/20160929013744/http://www.blm.gov/mt/st/en/info/nepa.html] (last visited Jan. 19, 2017).

114. Wyoming Planning and NEPA, BUREAU LAND MGMT., https://www.blm.gov/programs/planning-and-nepa/plans-in-development/wyoming [https://perma.cc/6LFR-BLGM] (last visited Jan. 25, 2017).

115. Ruple & Capone, supra note 58, at 41. 116. Long-term or life-of-project disturbance was reported in many documents, however,

the methods for determining this variable varied. Because the methods for calculating long-term disturbance varied and because the temporal scope of long-term disturbance depended on several factors—including reclamation efforts by the operator and construction schedules as well as site specific environmental conditions—this variable was not included in the analysis.


facilities associated with the production of O&G. 117 Many documents separated the total initial surface disturbance by the activity, resulting in disturbance acreage for well pads, roads, and other facilities.

Initial Surface Disturbance as an Indicator of Environmental Impact

This analysis focuses on initial surface disturbance because it was recorded consistently and because initial surface disturbance also has broad implications for plants and wildlife, water quality, and air quality.118 Initial surface disturbance can result in loss of wildlife habitat, habitat fragmentation, and behavioral disruption in some species.119 It can cause the spread of nonnative species through the clearing of native vegetation combined with the use of contaminated machinery.120 Further, it exposes soils to wind and water erosion.121 Wind eroded soils can be major contributors to air pollution.122 Water eroded soils can impair water quality through increased sediment and nutrient levels.123

In the study area, the BLM recognizes that approximately 82% of initial surface disturbance will last the life of the project.124 Long-lasting impacts include roads, well pads, and other facilities that will remain in place until the O&G is depleted and the lands are completely reclaimed. The remaining 18% of the initial disturbance is temporary in nature and typically involves areas surrounding the actual facilities that are necessarily

117. BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, SURFACE OPERATING STANDARDS

AND GUIDELINES FOR OIL AND GAS EXPLORATION AND DEVELOPMENT 15–16, 19, 36 (2007). 118. BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, PROPOSED RESOURCE

MANAGEMENT PLAN AND FINAL ENVIRONMENTAL IMPACT STATEMENT FOR THE BUFFALO FIELD OFFICE PLANNING AREA 845 (2015) (“Surface disturbance associated with oil and gas development activity is the primary indicator of effects on other resources.”).

119. Alison G. Lyon & Stanley H. Anderson, Potential Gas Development Impacts on Sage Grouse Nest Initiation and Movement, 31 WILDLIFE SOC’Y BULL. 486, 490 (2003); Joseph M. Northrup & George Wittemyer, Characterising the Impacts of Emerging Energy Development on Wildlife, with an Eye Towards Mitigation, 16 ECOLOGY LETTERS 112, 116 (2013).

120. See Jonathan L. Gelbard & Jayne Belnap, Roads as Conduits for Exotic Plant Invasions in a Semiarid Landscape, 17 CONSERVATION BIOLOGY 420, 421 (2003) (discussing roadside herbicide treatments as a proposed explanation for native and nonnative vegetation disturbances). 121. J. Belnap & D.A. Gillette, Disturbance of Biological Soil Crusts: Impacts on Potential Wind Erodibility of Sand Desert Soils in Southeastern Utah, 8 LAND DEGRADATION & DEV. 355, 361 (1997). 122. Christopher Houser & William G. Nickling, The Emission and Vertical Flux of Particulate Matter <10µm from a Disturbed Clay-Crusted Surface, 48 SEDIMENTOLOGY 255, 255–56 (2001). 123. David N. Wear et al., Land Cover Along an Urban-Rural Gradient: Implications for Water Quality, 8 ECOLOGICAL APPLICATIONS 619, 627–28 (1998). 124. POWDER RIVER EIS, supra note 54, at 2–41.


disturbed during construction and which are reclaimed shortly after construction.125

C. Dataset

We obtained and reviewed all 176 O&G well permitting CE (n=94) and EA (n=82) documents completed by the Buffalo Field Office between January 1, 2011, and December 31, 2014. Notably, the Buffalo Field Office did not complete a single O&G EIS during this period.

We reviewed every CE and EA and recorded the following indicators, if available: (1) number of proposed and permitted wells; (2) number of proposed and permitted well pads; (3) acreage of proposed and permitted initial surface disturbance; (4) acreage of permitted initial surface disturbance caused by well-pad construction; (5) acreage of permitted initial surface disturbance caused by road construction and improvement; and (6) acreage of permitted initial surface disturbance caused by other facilities.

To allow for comparison of CEs and EAs to EISs, we used an EIS dataset compiled for a previous study.126 That EIS dataset includes EISs completed for large O&G development projects by the BLM or United States Forest Service in Colorado, Montana, Utah, or Wyoming.127 The dataset includes 13 EISs completed between 2004 and October of 2014.128

D. Data Analysis

We sought to compare project impacts between CEs, EAs, and EISs. Two types of CEs, Type 1 (n=15) and Type 2 (n=2) CEs are used less frequently. These CEs allow for permitting of very small projects or projects that drill from an existing well pad.129 Because of their specialized nature and low sample size in the dataset, we did not statistically compare Type 1 and 2 CEs to EAs and EISs. In contrast, Type 3 CEs (n=77) are the most commonly used Section 390 CEs nationally and were the most commonly used CE in this study.130 Type 3 CEs allow permitting within

125. BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, WY-070-02-065, DRAFT ENVIRONMENTAL IMPACT STATEMENT AND DRAFT PLANNING AMENDMENT FOR THE POWDER RIVER BASIN OIL AND GAS PROJECT 240–41 (2002). 126. Ruple & Capone, supra note 58, at 41. 127. Id. 128. Id. 129. 42 U.S.C. § 15942(b).

130. GAO SECTION 390 REPORT, supra note 7, at 6 (“Section 390 [Type 3 CEs] account for more than 60 percent of the section 390 categorical exclusions used to approve APDs [between 2006 and 2008].”).


developed fields; they are not bound by the surface disturbance limitations of a Type 1 CE or the Type 2 CE’s requirement that wells be drilled from an existing well pad.131 Consequently, we describe impacts from all three types of CEs but statistically compare only Type 3 CEs with EAs and EISs.

We reviewed initial surface disturbance per well for Type 3 CEs, EAs, and EISs with an Analysis of Variance test (ANOVA) using JMP Pro 11.2 statistical software. If the ANOVA indicated a statistically significant effect, we then used a post-hoc Each Pair, Student’s t-Test to locate the source of the significant effect. We consider a value of P < 0.05 as statistically significant and a value of P < 0.10 as trending toward statistical significance.

We used a weighted mean for our analysis.132 A weighted mean allows for consideration of grouped data when those groups are different in size.133 This was necessary in our study because the sampling unit is the individual NEPA decision. Each NEPA decision permitted a different number of wells that could vary considerably from project to project. For example, a CE may permit a single well, while an EIS may authorize several thousand wells. Consequently, an arithmetic mean calculation would inaccurately represent the data because each NEPA decision would be weighted equally regardless of the number of wells it permitted.134 To capture the true mean value for surface disturbance per well, we needed to weigh each decision by the number of wells it permitted. Thus, NEPA decisions that permitted more wells were given more weight than those that permitted less based on the total number of wells permitted by the decision.

To better understand the components of surface disturbance, we used the same methods as described for initial surface disturbance to compare per well surface disturbance caused by well pads, road construction, and other facilities for EIS, EA, and Type 3 CE decisions.

III. RESULTS

Between January 1, 2011, and December 31, 2014, the Buffalo Field Office issued 176 O&G NEPA decisions.135 These decisions permitted

131. Id. at 5.

132. See BRIAN P. MACFIE & PHILIP M. NUFRIO, APPLIED STATISTICS FOR PUBLIC POLICY 73 (2006) (explaining the significance and application of a weighted mean). 133. See LISA F. SMITH ET AL., THE ART AND PRACTICE OF STATISTICS 58 (2008). 134. Id.

135. BLM National Register, supra note 108 (under “ePlanning Project Search,” select “NEPA.” Then put “Wyoming” into the “State(s)” column, and select “All” offices, “All” document types, and “All” fiscal years. Finally, select “Fluid Minerals” under “Program(s)” and hit “search”).


1,268 wells through 82 EAs, 94 CEs, and no EISs. The vast majority of CEs were Type 3.

The 94 CEs permitted 310 wells on 224 well pads and allowed for a total of 2,415.2 acres of initial surface disturbance. Of the 94 CEs, 15 were Type 1 CEs, 2 were Type 2 CEs, and 77 were Type 3 CEs. Type 1 CEs permitted an average of 1.87 wells (range=1 to 6) from an average of 1.6 well pads (range=0 to 6).136 Initial surface disturbance for Type 1 CEs averaged 5.9 acres (range=0.4 to 20.5). Each of the two Type 2 CEs permitted a single well from an already existing well pad and caused no new initial surface disturbance. Type 3 CEs permitted an average of 3.6 wells (range=1 to 22) from 2.6 well pads (range=0 to 15). On average, Type 3 CE projects caused 30.2 acres of initial surface disturbance (range=0.82 to 165).

Forty-three of the 94 CEs did not include gathering pipelines, electrical utilities, other production facilities, or some combination of these ancillary facilities in the analysis. If these facilities became necessary, the operator agreed to notify the BLM through a sundry notice.137 Sixty-six percent of the Type 1 CEs (10 of 15) and 43% of the Type 3 CEs (33 of 77) did not include these associated facilities. Consequently, initial surface disturbance values for Type 1 and 3 CEs may underestimate total development impacts because wells are likely to require additional infrastructure.

The 82 EAs permitted 958 wells on 697 well pads, allowing for a total of 4,260.2 acres of initial surface disturbance. On average, each EA permitted 11.7 wells (range=0 to 84) drilled from 8.5 well pads (range=0 to 80). The average initial surface disturbance permitted per EA was 53.2 acres (range=0 to 417.9). Only one EA denied all proposed well applications. 138 Several EAs deferred judgment on individual wells contained in the larger proposal until additional information could be obtained or further analysis was completed.139

136. Several Type 1 and Type 3 CEs permitted the drilling of new wells from existing well pads. 137. See infra Part IV.B.1 and associated text.

138. See generally BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, NO. WY-070-EA-13-3, ENVIRONMENTAL ASSESSMENT: YATES PETROLEUM CORP. 3 (2012) (stating denial of all proposed wells).

139. See, e.g., BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, NO. WY-070-EA14-203, RECORD OF DECISION: PEAK POWDER RIVER RESOURCES 1–2 (2014) (approving one well site and deferring decision on several others).


Comparison of Surface Disturbance for CEs, EAs, and EISs

The EISs analyzed in our earlier work were prepared for larger proposals than those considered in the EAs or CEs.140 EIS decisions permitted, on average, 3,618.85 wells (range=138 to 28,200). 141 The proposed surface disturbance for EIS projects was, on average, 1,802.28 acres (range=788 to 55,150). 142 In comparison, the proposed surface disturbance for EA and CE projects was, on average, 55.20 acres (range=0 to 417.9) and 30.22 acres (range=0.82 to 165), respectively. The number of wells per well pad were similar across the three NEPA types with Type 3 CEs averaging 1.41 wells per pad, EAs averaging 1.37 wells per pad, and EISs averaging 1.22 wells per pad.

Type 3

CE EA EIS

N 77 82 13 Total Wells 277 958 47,045 Total Well Pads

200 697 38,562

Total Disturbance

2,325.40 4,260.20 23,429.64

Avg. Wells 3.6 11.7 3,618.85 Avg. Pads 2.6 8.5 2,966.30 Avg. Disturbance

30.2 53.2 1,802.28

Avg. Disturbance per Well

8.31 4.45 2.70

Table 1: Summary of Impacts Permitted

1. ANOVA Results

EIS projects resulted in the lowest amount of surface disturbance per well (M=2.70 acres, SE=1.69). 143 EA projects had the second lowest surface disturbance per well (M=4.45 acres, SE=0.92). Type 3 CE projects resulted in the most surface disturbance per well (M=8.31 acres, SE=1.69). 140. Ruple & Capone, supra note 58. 141. Id. at 44. 142. Id. at 45. 143. “M” represents weighted mean and “SE” represents standard error.


EIS surface disturbance per well was significantly lower than that of EAs (p=0.046) and Type 3 CEs (p=0.012). The difference between EA and Type 3 CE surface disturbance per well was trending toward statistical significance (p=0.055).

2. Components of Initial Surface Disturbance

The differences in surface disturbances per well are largely controlled by road and well-pad-construction disturbances. Not all NEPA decisions separated overall surface disturbance into categories of disturbance, so we only reported on those decisions that did (n=169). Because we reported on a subset of our data, the sum of the weighted means for the three categories of disturbance does not equal the weighted mean total initial surface disturbance reported above in Comparison of Surface Disturbance for CEs, EAs, and EISs.144

Type 3 CE EA EIS Mean SE Mean SE Mean SE

Road Construction Disturbance

3.34 0.76 1.71 0.45 0.7 0.09

Well-Pad Construction Disturbance

4.03 0.53 1.7 0.32 1.9 0.07

Other Construction Disturbance

1.34 0.39 0.66 0.24 0.86 0.05

Table 2: Disturbance (per Well) by Activity and Level of NEPA Documentation

Type 3 CE projects resulted in the greatest amount of road-construction

disturbance per well (M=3.34 acres, SE=0.76). EA projects had slightly less road-construction disturbance (M=1.71 acres, SE=0.45). EIS projects resulted in the least amount of road-construction disturbance (M=0.70 acres, SE=0.09). The difference between EISs and both CEs (p=0.0007) and EAs (p=0.032) was statistically significant. The difference between EAs and CEs was trending toward statistical significance (p=0.065).

144. See supra notes 140–42 and accompanying text.


Similarly, Type 3 CE projects resulted in the greatest amount of well-pad-construction disturbance per well (M=4.03 acres, SE=0.53). EA projects had slightly less well-pad-construction disturbance (M=1.70 acres, SE=0.32). EIS projects resulted in the least amount of well-pad-construction disturbance (M=1.90 acres, SE=0.07). The difference between EISs and CEs was statistically significant (p=0.0002). The difference between EAs and CEs was also statistically significant (p=0.0001). There was no significant difference between EISs and EAs (p=0.52).

The catchall category, other facilities, accounts for all other well-associated disturbances that occur outside the well-pad or road footprint. Other facilities may include pipelines and utility lines not within road corridors, compressor sites, evaporation pits, production facilities, and storage tanks. Other facilities caused similar levels of disturbance per well for EIS (M=0.86 acres, SE=0.05) and EA projects (M=0.66 acres, SE=0.24). Type 3 CEs had slightly more other-facility disturbance per well (M=1.34 acres, SE=0.39). None of these differences are statistically significant.

IV. DISCUSSION

A. Comparison of Environmental Effects for Different Levels of NEPA Compliance

Even though 43% of Section 390 Type 3 CEs likely underestimated actual project impacts by omitting certain facilities,145 projects permitted through Type 3 CEs still had greater environmental effects per well than those that underwent EA or EIS review. Type 3 CE wells disturb, on average, 3.86 acres more per well than EA wells, and, on average, 5.61 acres more per well than EIS wells. The difference between Type 3 CE projects and EA and EIS projects is largely driven by greater road- and well-pad-construction disturbance in Type 3 CE projects.

The increased road surface disturbance we observed for Type 3 CEs may reflect insufficient and piecemeal planning caused by numerous operators acting independently.146 This explanation is consistent with the GAO’s observation that Section 390 CE use has caused a haphazard “spider-web pattern of development” as operators and the BLM take a “piecemeal approach to [field] development.” 147 Under a more

145 See infra Part IV.B.1 and accompanying text. 146. BUREAU OF LAND MGMT, DEP’T OF THE INTERIOR, PROPOSED CASPER RESOURCE MANAGEMENT PLAN AND FINAL ENVIRONMENTAL IMPACT STATEMENT D-11 (2007). 147. GAO EPACT REPORT, supra note 5, at 36, 47.


comprehensive approach to development, like that analyzed in EAs and EISs, road location can be optimized so that less road area is necessary to access wells.148 Optimization occurs when operators consider existing and future O&G development within the field. The operator can then locate their facilities to utilize existing roads or align roads to minimize redundancies.

Likewise, piecemeal planning and development may also explain the increased well-pad disturbance we observed in Type 3 CE projects.149 Many projects that underwent EA or EIS review minimized well-pad footprints by using centralized facilities.150 A centralized facility is one that is located so that it may provide service to numerous well pads. By centralizing production, storage, or compression-station facilities, operators can reduce the size of well pads as the well pads no longer need to accommodate these facilities. In the current study, Type 3 CE projects seldom incorporate centralized facilities.

Centralized facilities can also reduce road-construction surface disturbance, as centralized facilities often reduce or eliminate the need for heavy truck traffic to individual well pads.151 By reducing heavy truck volume to individual well pads, the operators can use “lower road standards which may result in less [surface disturbance].” 152 Roads with lower standards tend be narrower and require less surface disturbance per mile than roads constructed for high volumes of trucking.153

148. See BUREAU OF LAND MGMT., SURFACE OPERATING STANDARDS AND GUIDELINES FOR OIL AND GAS EXPLORATION AND DEVELOPMENT 41 (2007) [hereinafter THE GOLD BOOK] (recommending that a well-sited all-weather road negates the need for other roads). “Transportation planning can . . . prevent unnecessary surface disturbance . . . . Proper road location can significantly reduce or eliminate impacts to . . . environmental resources.” Id. at 21. Consideration of existing and future O&G development in the project area can result in more efficient road location by eliminating redundant roads. Id. at 23. 149. RICHARD CHAMPION, ROCKY MOUNTAIN MINERAL LAW FOUND., FORMING THE UNIT – WHY UNITIZE? THE INDUSTRY PERSPECTIVE 7 (2006) (explaining that piecemeal development can “result in each separate lease being drilled without regard to optimum operating practices. Separate storage facilities might be constructed for each lease. Separate gathering lines, roads, rights of way and trucking activity . . . result[ing] in inefficiencies and increased costs”). 150. See BUREAU OF LAND MGMT., U.S. DEP’T OF THE INTERIOR, INTERIOR DECISION: WEST TAVAPUTS PLATEAU DEVELOPMENT PLAN 21 (2010) (requiring the operator to “centrally locate production equipment” and storage tank batteries and thereby reducing overall surface disturbance by reducing the size of individual well pads); BUREAU OF LAND MGMT., U.S. DEP’T OF THE INTERIOR, NO. BLM/WY/PL-06/006+1310, FINAL ENVIRONMENTAL IMPACT STATEMENT JONAH INFILL DRILLING PROJECT 2-22 (2006) (“All new development and production facilities . . . would be placed at centralized locations to accommodate multiple wells, unless [it is] proven . . . not [to] be technically or economically feasible, or that another method would create less environmental impact.”). 151. Presentation, Bureau of Land Mgmt., Wildlife Management: Best Management Practices for Fluid Minerals (Nov. 2006) (on file with journal). 152. Id. 153. THE GOLD BOOK, supra note 148, at 23–24.


Public participation may also explain the difference in surface disturbance per well observed in this study. The external reform theory postulates that increased transparency and public involvement associated with the NEPA process may result in more sustainable decision-making.154 Public comment during the EIS process can influence the creation of alternatives and final agency decisions.155 However, public comment and disclosure are not required for CE decisions.156 It is unclear whether operators would voluntarily deploy environmentally beneficial technologies or use central facilities absent the public participation engendered by the EA and EIS process. 157 Thus, the increased surface disturbance we observed for Type 3 CE projects may, in part, be due to insufficient external pressure on both the BLM and operators.

In sum, Type 3 CE projects are likely to cause greater environmental impact per well than projects that undergo EA or EIS review. These differences are likely the result of piecemeal planning and reduced external pressure on the operators and the BLM. The 3.86 acres of difference in surface disturbance per well between Type 3 CE projects and EA projects may seem minor; however, if our results hold at the national level, the use of Type 3 CEs may be permitting tens of thousands of acres of avoidable surface disturbance per year.

B. Specific Problems in Section 390 CE Implementation

1. Sundry Notices

Sundry notices are requests from the operator to the BLM for modification of an approved APD.158 Sundry notices can be used for a “wide range of activities,” such as expanding or moving a well site or adding pipelines.159 The BLM commonly uses a separate Section 390 CE to

154. Robert V. Bartlett, The Rationality and Logic of NEPA Revisited, in ENVIRONMENTAL POLICY AND NEPA 55–56 (Ray Clark & Larry Canter eds., 1997). 155. Ruple & Capone, supra note 58, at 50 (“[S]everal EISs included alternatives emphasizing directional drilling and consolidated well pads that were developed in response to public comments.”). 156. GAO EPACT REPORT, supra note 5, at 41–42. 157. See BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, FINAL ENVIRONMENTAL IMPACT STATEMENT FOR THE FINAL SAN JUAN NATIONAL FOREST AND PROPOSED TRES RIOS FIELD OFFICE LAND AND RESOURCE MANAGEMENT PLAN 491 (2013) (explaining that directional drilling can be more costly for operators than conventional vertical wells, and that without some external driver, there is little incentive for operators to deploy the technology). 158. 43 C.F.R. § 3162.3-2 (2014). 159. GAO EPACT REPORT, supra note 5, at 13.


permit sundry-notice requests.160 However, BLM guidance documents are silent about the proper use of Section 390 CEs for sundry-notice approval.161 The

BLM’s failure to provide information on when and if it is appropriate to use [S]ection 390 [CEs] to approve sundry notices has raised concerns for some that BLM field offices are using the exclusions inappropriately and that [the] BLM is not being transparent about how the [S]ection 390 [CEs] are used.162 Forty-six percent of all CEs we reviewed (n=43) did not include

potentially necessary surface-disturbing facilities (e.g., gathering pipelines, electrical utilities, other production facilities, or some combination of these ancillary facilities) in the analysis. In these cases, the operators agreed to provide the BLM with a sundry notice if the wells became producers and additional facilities were necessary. Forty-three percent of Type 3 CEs (n=33) omitted potentially necessary facilities. Type 3 CEs can only be used for new “well[s] within a developed field.”163 Within a developed field, the BLM should expect that the well will produce in paying quantities, and the BLM should disclose all potentially necessary facilities in the CE to avoid underestimation of environmental impacts.

Sixty-six percent of the Type 1 CEs (n=10) omitted potentially necessary facilities. Type 1 CEs are limited to five acres of surface disturbance, so omission of surface-disturbing facilities from the analysis may result in the application of this CE for activities that would otherwise require potentially more complicated forms of NEPA review.164 While we are not accusing operators of intentional misrepresentations, operators do have a clear incentive to omit gathering pipelines and production facilities whenever possible in order to remain below the five-acre threshold, thereby meeting the criteria of the CE and avoiding the delays of an EA or EIS. Notably, half of the Type 1 CE decisions that omitted facilities had surface impacts greater than four acres. In these cases, additional facilities may have pushed the project’s total surface disturbance over the five-acre threshold.

160. See, e.g., 42 U.S.C. § 15942(b)(5) (2012) (serving as the catch-all CE); GAO EPACT REPORT, supra note 5, at 13. 161. GAO EPACT REPORT, supra note 5, at 32. 162. Id. at 33. 163. 42 U.S.C. § 15942(b)(3). 164. Id. § 15942(b)(1).


The BLM should consider providing guidance for the omission of facilities and use of sundry notices in the context of Section 390 CEs. Specifically, the BLM should require operators to disclose and account for all facilities that will likely become necessary.

2. Type 3 CEs Tiered to RMPs

Type 3 CEs require that “an approved land use plan or any environmental document prepared pursuant to NEPA analyzed such drilling as a reasonably foreseeable activity” and was completed within five years of drilling.165 RMPs encompassing the proposed well satisfy the NEPA requirement, so long as the RMP “contains a reasonably foreseeable development scenario broad enough to encompass this action.”166 This may be problematic, as “RMPs typically cover several million acres[] [and] may [simply] lack the resolution needed to adequately assess the resources and environmental impacts that will result from subsequent development.”167 Consequently, RMPs are poorly suited to address impacts occurring at the smaller geographic scale of an APD.168

The Type 3 CEs in the current study all incorporated the Buffalo Field Office RMP and subsequent amendments into their analysis. The RMP was amended most recently in 2015, 169 incorporating new, reasonably foreseeable development scenarios for each alternative considered and projecting between 7,630 and 12,892 total productive wells.170 The 2015 RMP appears sufficient to satisfy the Type 3 CE criteria. The RMP is “an approved land use plan” that “analyzed such drilling as a reasonably foreseeable activity” and was completed within five years of drilling.171 However, all the Buffalo Field Office Type 3 CEs considered here predate

165. Id. § 15942(b)(3). 166. BLM 2005 GUIDANCE, supra note 14, at 2-4. 167. John Ruple & Mark Capone, NEPA, FLPMA, and Impact Reduction: An Empirical Assessment of BLM Resource Management Planning and NEPA in the Mountain West, 64 ENVTL. L. 953, 956–57 (2017) 168. Id.; see also Land-Use Issues Associated with Onshore Oil and Gas Development: Joint Oversight Hearing Before the Subcomm. on Nat’l Parks, Forests & Pub. Lands & the Subcomm. on Energy & Mineral Res. of the H. Comm. on Nat. Res., 110th Cong. 3–4 (2007) (testimony of John Emmerich, Deputy Director of the Wyoming Game & Fish Department) (“The level of analysis, disclosure and recommended mitigation that is appropriate for sensitive wildlife corridors and crucial habitat is not provided in programmatic land use plans such as RMPs . . . [it], can only be achieved through a more in depth analysis provided by an EA or in most cases an EIS.”). 169. BUFFALO 2015 RMP, supra note 54. 170 BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, PROPOSED RESOURCE MANAGEMENT PLAN AND FINAL ENVIRONMENTAL IMPACT STATEMENT FOR THE BUFFALO FIELD OFFICE PLANNING AREA apps 1941 (2015). 171. 42 U.S.C. § 15942 (b)(3) (2012).


the 2015 RMP and incorporated one or more previously completed site-specific EAs into their analysis. Although the Buffalo Field Office went beyond the requirements of Section 390, our surface-disturbance results indicate that incorporating a previously completed RMP or EA without any additional analysis may not provide the same level of environmental benefits as conducting an EA or EIS for the project.

3. Type 3 CEs Tiered to Master Leasing Plans

Many RMPs are more than five years old and, therefore, cannot be used to support either Type 1 or Type 3 CE issuance. Furthermore, new information or changed conditions may require reconsideration of decisions contained in existing RMPs. Recognizing these issues and that wholesale RMP revision could be an unwieldy tool in adapting to such changes, the BLM in 2010 introduced a series of leasing reforms affecting O&G development on public lands. 172 These reforms required the BLM to conduct a more in-depth review for areas that are or may be opened to leasing and where additional planning and analysis is needed prior to new O&G leasing because of changing circumstances, updated policies, and new information.173 The additional planning and analysis is contained in a Master Leasing Plan (MLP) and accompanying NEPA documentation. The MLP is ordinarily initiated as a land-use-plan amendment and reconsiders RMP decisions pertaining to leasing.174

As an RMP amendment prepared pursuant to NEPA that specifically addresses O&G development as a reasonably foreseeable activity, MLPs are a predicate decision upon which either a Type 1 or a Type 3 CE can be based. MLPs may, therefore, prove to be an important tool in expediting O&G development because many RMPs are more than five years old and could not be tiered to support a section 390 CE but for an MLP. Thus, MLPs may breathe new life into older RMPs, at least as they integrate with Section 390 for O&G permitting purposes.

C. Recommendation to the BLM

The BLM should consider, through notice-and-comment rulemaking, establishing regulations that require review for extraordinary circumstances

172. BUREAU OF LAND MGMT., OIL AND GAS LEASING REFORM LAND USE PLANNING AND LEASE PARCEL REVIEWS 1 (2010).

173. BUREAU OF LAND MGMT., COMPARISON OF PROCESS CHANGES RESULTING FROM BLM LEASING REFORM POLICY (2010). 174. BUREAU OF LAND MGMT., DEP’T. OF THE INTERIOR, NO. 2010-117, OIL AND GAS LEASING REFORM – LAND USE PLANNING AND LEASE PARCEL REVIEWS (2010).


prior to Section 390 CE use. This would ensure that O&G projects involving sensitive resources undergo EA or EIS review. For projects with moderate impacts, operators may be more willing to voluntarily reduce impacts to ensure the applicability of a Section 390 CE. Projects with minor environmental impacts would likely be unaffected by extraordinary-circumstance regulation and receive Section 390 CE review. Such a regulation would be consistent with the EPAct for three reasons.

First, the EPAct does not expressly preclude extraordinary-circumstances review.175 According to the GAO, whether the language of Section 390 subjects CEs to extraordinary-circumstances review is a question “open to differing interpretations.”176 In 2005, the BLM “chose to interpret the interaction of NEPA and the EPAct as excluding [extraordinary-circumstances review].” 177 Five years later, the BLM changed course and attempted to require extraordinary-circumstances review by adopting new guidance.178 However, the BLM’s new guidance was vacated because it failed to follow APA procedures.179 The federal court did not reach the issue of whether extraordinary-circumstances review was consistent with the EPAct.180 Thus, the plain language of Section 390 is ambiguous with regard to the applicability of extraordinary circumstances.

Second, the language Congress used in Section 390 indicates an intent that extraordinary-circumstances review would apply.181 If Congress had intended for the Section 390 CEs to entirely circumvent the Council on Environmental Quality’s (CEQ) regulations requiring extraordinary-circumstances review, they could have done so expressly. By using the term “categorical exclusions,” Congress borrowed a term of art that was created and defined by CEQ regulations.182 “It is a cardinal rule of statutory construction that, when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.”183 “In such case, absence of contrary direction may be taken as satisfaction with widely

175. Anderson, supra note 88, at 129. 176. GAO EPACT REPORT, supra note 5, at 34. 177. Anderson, supra note 88, at 129.

178. Holt Statement, supra note 8. 179. W. Energy All., 2011 WL 3837240, at *3. 180. Id.

181. Anderson, supra note 88, at 129. 182. Kevin H. Moriarty, Circumventing the National Environmental Policy Act: Agency

Abuse of the Categorical Exclusion, 79 N.Y.U. L. REV. 2312, 2313 (2004) (stating that NEPA, as enacted, had “no clear limits on its application”). 183. Fed. Aviation Admin. v. Cooper, 566 U.S. 284, 292 (2012) (internal quotations omitted).


accepted definitions, not as a departure from them.”184 Under this rule of statutory interpretation, Section 390 “adopted the cluster of ideas” surrounding the term “categorical exclusion,” including the requirement of extraordinary-circumstances review.

Third, the language Congress chose not to use in Section 390 indicates an intent that the CEs be subject to CEQ regulations, such as the extraordinary-circumstances requirement. Congress knows how to exempt Section 390 CEs from the CEQ regulations if it wants to do so. Congress has exempted several types of action from both NEPA and the CEQ regulation.185 To do so, Congress has proclaimed, as it did in the Stafford Act, that the action “shall not be deemed a major federal action significantly affecting the quality of the human environment within the meaning of [NEPA].”186 In the Regional Rail Reorganization Act of 1973, Congress used slightly different language: “[T]he provisions of [NEPA] shall not apply with respect to any action taken under authority of this chapter.”187 Because Congress knows how to expressly exempt activities from NEPA and the CEQ regulations, its decision not to include similar express language in the EPAct suggests that the omission was deliberate.188 It follows that Section 390 CEs should be subject to the same regulations as administrative CEs because to do otherwise would treat Section 390 as creating a complete exemption to NEPA, not merely a categorical exclusion to it.

184. Morissette v. United States, 342 U.S. 246, 263 (1952); GAO EPACT REPORT, supra note 5, at 40. The “rebuttable presumption” language in Section 390 does not constitute contrary direction from Congress. Id. “Rebuttable presumption” is not defined by the EPAct or the NEPA case law. Id. There is no reason to assume that the “rebuttable presumption” is meant to exempt the Section 390 CEs from the CEQ regulations if a project meets the Section 390 CE criteria. Id. The “rebuttable presumption” could mean that projects are presumed not to have significant effects on the human environment. Id. at 41. This presumption can be rebutted by showing extraordinary circumstances exist. Id. 185. See, e.g., Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251–1388 (2012) (exempting actions under the CWA from NEPA 33 U.S.C. § 1371(c)(1)); Energy Supply and Environmental Coordination Act of 1974, 15 U.S.C. § 793(c)(1) (2012) (stating that no action taken shall be deemed a major Federal action under NEPA); Regional Rail Reorganization Act of 1973, 45 U.S.C. § 791 (2012) (excluding NEPA and CEQ regulations); Stafford Act, 42 U.S.C. § 5159 (2012) (exempting the Stafford Act from apply to NEPA). 186. 42 U.S.C. § 5159. 187. 45 U.S.C. § 791(c). 188. See NLRB v. Bildisco & Bildisco, 465 U.S. 513, 522–23 (1984) (“Obviously, Congress knew how to draft an exclusion for collective-bargaining agreements when it wanted to; its failure to do so in this instance indicates that Congress intended that § 365(a) apply to all collective-bargaining agreements covered by the NLRA.”); see N. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 51.02, at 199 (6th ed. 2000) (“[I]f words used in a prior statute to express a certain meaning are omitted, it will be presumed that a change of meaning was intended.”).


CONCLUSION

In 2005, Congress created several statutory CEs to expedite environmental review of O&G development projects on federal lands.189 Since that time, the BLM has permitted as much as 28% of all wells using the statutory CEs instead of conducting NEPA analysis through an EA or EIS.190 This has led to “disagreements and litigation” over the appropriate application and environmental consequences of Section 390 CEs.191

Our results show that Section 390 Type 3 CEs, the most commonly used CE, result in projects with greater surface area disturbance per well than projects that have undergone EA or EIS review. Increased surface disturbance in Type 3 CE projects appears to be a result of piecemeal road planning and failure to utilize centralized facilities. It is also likely that reduced public participation in the Section 390 process removes an external-pressure component that can influence both operator and BLM decision-making.

We recognize the limited geographic scope of the current study; however, if our results are representative of national trends, then the use of Type 3 CEs may be permitting tens of thousands of acres of avoidable surface disturbance every year. This is environmental harm that may have been avoided if projects underwent EA or EIS review.

In light of these findings, we urge caution when considering proposals to expedite the NEPA process because expedited review may come at the cost of increased environmental harm. We hope this study will help inform the BLM as it prepares to propose new Section 390 CE regulations. We recommend that the BLM considers incorporating extraordinary-circumstances review into its Section 390 CE process. This action could ameliorate some of the environmental harms we observed while still allowing expedited permitting for projects with truly minor impacts.

189. Energy Policy Act of 2005, Pub. L. No. 109-58, § 390, 119 Stat. 594, 748 (2005). 190. GAO SECTION 390 REPORT, supra note 7. 191. W. Energy All., 2011 WL 3738240, at *3.

WATER, CONFLICT, AND COOPERATION IN CENTRAL ASIA: THE ROLE OF INTERNATIONAL LAW AND

DIPLOMACY

Sharmila L. Murthy∗ & Fatima Mendikulova+

In the volatile region of Central Asia located between Russia and China and home to the environmentally devastated Aral Sea, water conflict remains an ever-present threat. Although actual war between nations is unlikely, conflict over water often manifests as local skirmishes between different ethnic groups, especially in the densely populated region of Ferghana Valley straddling the borders of Kyrgyzstan, Tajikistan and Uzbekistan. In this analysis, the underlying causes of this conflict and the potential for cooperation are analyzed using the Water Diplomacy Framework and the United Nations Watercourses Convention, which codifies the key principles of international water law.

In the Syr Darya river basin, the key treaties that govern water management do not provide the flexibility needed to promote a mutually beneficial approach to water management. One treaty effectively locks in Soviet-era allocations and is no longer perceived as equitable and reasonable by all riparian countries. Another treaty attempts to recreate a once beneficial water-energy exchange, but its success has been hindered by the treaty language. Although a structure for transnational water cooperation exists in theory, mistrust among the riparian nations prevents

∗ Assistant Professor, Suffolk University Law School; JD/MPA, Harvard Law School and Harvard Kennedy School of Government. + Former founder/director of Initiatives for Development Public Fund (NGO) in Bishkek, Kyrgyzstan, and of Center for Support of Women’s Initiatives in Osh, Kyrgyzstan; MA in Law, Kyrgyz State National University. The authors sincerely appreciate the support of Charlie Clements and the former Human Rights to Water and Sanitation Program at the Carr Center for Human Rights Program, Harvard Kennedy School, with which both authors were previously affiliated. We also thank all of the individuals who helped with our field research, including but not limited to Otabek Bozarboev, Talant and Gulzad Kurmanov, Zura Mendikulova, Tynar Musabaev, Erali Paiziev, Evgeniia Postnova, Manav, Nigora Sachdeva, Medet Sultambaev, and Dinara Ziganshina. The ideas in this article benefitted from feedback at events hosted at Harvard University, MIT, and Yale Law School, as well as a conference jointly hosted by Lewis and Clark Law School and the National Law University of Delhi. In addition, we would like to thank Bakyt Beshimov, Gabriel Eckstein, Rhett Larson, Stephen McCaffrey, and A. Dan Tarlock for valuable comments.

2017] Water, Conflict, and Cooperation in Central Asia 401

them from implementing an effective collaborative adaptive management strategy. This mistrust is fueled by local conflict over water between farmers in Ferghana Valley because the tributaries and irrigation channels of the Syr Darya that were once part of a unified Soviet system now cross national borders. Poorly demarcated boundaries, challenges of maintaining cross-border infrastructure, increased pressure on the land, and the limited authority of local officials are among the key underlying causes.

Central Asia is not a water-scarce region but poor governance and a lack of cooperation have created a situation of scarcity. The path forward requires that the riparian nations on the Syr Darya learn to trust one another and embrace a mutually beneficial approach to water management.

Introduction ............................................................................................... 401I. Analytical Framework ........................................................................... 407

A. United Nations Watercourses Convention ....................................... 407B. Water Diplomacy Framework .......................................................... 414

II. Key Barriers to Transboundary Water Cooperation on the Syr Darya River ................................................................................................... 417

A. The Legacy of “White Gold” ........................................................... 421B. Transnational Water-Energy Exchange ........................................... 427

1. 1992 Almaty Agreement .............................................................. 4282. 1998 Syr Darya Agreement .......................................................... 433

C. Local Water Conflicts in the Ferghana Valley ................................ 441Conclusion ................................................................................................ 453

INTRODUCTION

While some commentators perceive Central Asia as a site of future water wars,1 global history suggests that countries are much more likely to cooperate over water than go to war, despite popular statements to the

1. Louise Arbour, Next Year’s Wars, FOREIGN POLICY (Dec. 30, 2013), https://foreignpolicy.com/2013/12/30/next-years-wars/ [https://perma.cc/JR9F-WXLP].


contrary.2 However, a lack of access to sufficient resources can exacerbate local tensions and create instability in the region.3 This theory holds true for Central Asia. Although there is a fair amount of “saber-rattling” by Central Asian leaders over water,4 actual conflict in the region generally manifests as small-scale skirmishes, especially in the densely populated region of the Ferghana Valley located between Uzbekistan, Kyrgyzstan, and Tajikistan.5 Historically called the “pearl of Central Asia” because of its rich, lush, and diverse landscape, the Ferghana Valley has more recently been known as the “powder keg” of Central Asia,6 as illustrated by the violent and bloody clashes between Uzbek and Kyrgyz people in southern Kyrgyzstan in 2010.7

With the collapse of the Soviet Union in 1991 and the emergence of independent nations, a once-unified system for managing water in Central Asia fragmented. Massive water infrastructure built in upstream countries to irrigate cotton fields in downstream countries, such as the Toktogul

2. JEROME DELLI PRISCOLI & AARON T. WOLF, MANAGING AND TRANSFORMING WATER CONFLICTS 4 (2009); Aaron T. Wolf, Conflict and Cooperation Along International Waterways, 1 WATER POL’Y 251, 255 (1998); U.S. INTELLIGENCE CMTY., ICA 2012-08, GLOBAL WATER SECURITY 4 (2012); Mark Zeitoun & Naho Mirumachi, Transboundary Water Interaction I: Reconsidering Conflict and Cooperation, 8 INT’L. ENVTL. AGREEMENTS 297, 300 (2008). 3. U.S. INTELLIGENCE CMTY., supra note 2, at iii; see also Gabriel Eckstein, Water Scarcity, Conflict, and Security in a Climate Change World: Challenges & Opportunities for International Law and Policy, 27 WIS. INT’L L.J. 409, 430 (2009) (“Conventional wisdom suggests that all peoples and nations have breaking points and may resort to violence when faced with significant water depletion and scarcity.”). 4. Water Wars in Central Asia: Dammed If They Do, ECONOMIST (Sept. 29, 2012), http://www.economist.com/node/21563764 [https://perma.cc/3ZYB-WLEX]; Joanna Lillis, Uzbekistan Leader Warns of Water Wars in Central Asia, EURASIANET (Sept. 7, 2012, 7:25 AM), http://www.eurasianet.org/node/65877 [https://perma.cc/JCJ9-SUKP]. 5. See generally Christine Bichsel et al., Land, Water, and Ecology, in FERGHANA VALLEY: THE HEART OF CENTRAL ASIA 253–77 (S. Frederick Starr et al. eds., 2011) (noting that approximately 20% of the total population of formerly Soviet Central Asia lives in the Ferghana Valley); LUIGI DE MARTINO ET AL., ENVIRONMENT AND SECURITY: TRANSFORMING RISKS INTO COOPERATION 16 (2005), http://enrin.grida.no/environment-and-security/ferghana-report-eng.pdf [https://perma.cc/ZU32-LYZS] (stating that approximately 6 million Uzbeks, 2 million Kyrgyz, and 1.5 million Tajiks inhabit the Ferghana Valley); S. Frederick Starr, Introducing the Ferghana Valley, in FERGHANA VALLEY: THE HEART OF CENTRAL ASIA, at ix, xii (S. Frederick Starr et al. eds., 2011). In official documents, Kyrgyzstan is usually known as the Kyrgyz Republic. 6. Александр Шустов [Alexander Shustov], Центральная Азия: будет ли передел границ? [Central Asia: Revising the Borders?], STOLETIE (Jan. 25, 2010), http://www.stoletie.ru/geopolitika/centralnaja_azija_budet_li_peredel_granic_2010-01-25.htm [https://perma.cc/EF7Q-8Y72]. 7. Luke Harding, Death Toll Grows as Kyrgyzstan Ethnic Violence Escalates, GUARDIAN (June 13, 2010), https://www.theguardian.com/world/2010/jun/13/kyrgyzstan-shoot-to-kill-ethnic-violence [https://perma.cc/6GJY-D6RN]; Michael Schwirtz, Ethnic Rioting Ravages Kyrgyzstan, N.Y. TIMES (June 13, 2010), http://www.nytimes.com/2010/06/14/world/asia/14kyrgyz.html [https://perma.cc/Y9D3-VZR4].


Reservoir in Kyrgyzstan, are now the subject of contestation.8 The upstream countries stored water during winter months instead of using it to generate hydroelectricity, and in exchange, the downstream republics provided them with hydrocarbons.9 The Soviet-era water allocations between the Central Asian nations were codified into transboundary agreements, but the corresponding water-energy exchange that had previously existed between upstream and downstream countries no longer exists. The poor management of water in the region has also led to an environmental catastrophe: the Aral Sea has now shrunk to 10% of its original size, with deserts replacing fishing villages.10

Geopolitical tensions at the national level manifest as local skirmishes in the Ferghana Valley, with water access increasingly becoming a factor for tensions between different ethnic communities.11 Tributaries of the Syr Darya River and related irrigation channels in the Ferghana Valley now traverse complex national borders, which makes coordination and maintenance difficult and leads to disputes between cross-border communities. These conflicts, which can turn violent, have a severe destabilizing impact within the nations, and they exacerbate tensions between countries.12 As one expert observed, “[W]ater conflicts in the Syr [D]arya Basin present the highest likelihood of sparking the kind of

8. Eric W. Sievers, Water, Conflict, and Regional Security in Central Asia, 10 N.Y.U.

ENVTL. L.J. 356, 374 (2002). 9. Id.

10. JAKOB GRANIT ET AL., STOCKHOLM INT’L WATER INST., REGIONAL WATER INTELLIGENCE REPORT CENTRAL ASIA 6 (2010); DE MARTINO ET AL., supra note 5, at 8. 11. ANNA MATVEEVA, CENTRAL ASIA: A STRATEGIC FRAMEWORK FOR PEACEBUILDING 26–27 (2006) (noting that rivalry over the water could exacerbate ethnic relations); M. Randa Slim, Central Asia: The Ferghana Valley: In the Midst of a Host of Crises, in SEARCHING FOR PEACE IN CENTRAL AND SOUTH ASIA : AN OVERVIEW OF CONFLICT PREVENTION AND PEACEBUILDING ACTIVITIES 147 (2002) (“[W]ater is a cause of many of the small-scale conflicts that are currently unfolding in the valley, especially between northern Tajikistan and southern Kyrgyzstan.”); Sievers, supra note 8, at 374 (assuming that water scarcity and strained inter-ethnic relations could lead to violent conflict in the Valley); HUMAN RIGHTS WATCH, “WHERE IS THE JUSTICE?”: INTERETHNIC VIOLENCE IN SOUTHERN KYRGYZSTAN AND ITS AFTERMATH 3 (2010) (noting that, although Kyrgyz and Uzbeks have lived together for generations in Kyrgyzstan, “disputes over land distribution and grievances about unequal access to economic and political power have simmered below the surface”). 12. Skandar Abdullayev et al., Water and Geopolitics in Central Asia, in WATER, ENVIRONMENTAL SECURITY AND SUSTAINABLE DEVELOPMENT: CONFLICT AND COOPERATION IN CENTRAL EURASIA 125 (Murat Arsel & Max Spoor eds., 2010); Алишер Хамидов [Alisher Khamidov], ФЕРГАНСКАЯ ДОЛИНА: УЖЕСТОЧЕНИЕ МЕР ПОГРАНИЧНОГО КОНТРОЛЯ СПОСОБСТВУЕТ НАГНЕТАНИЮ НАПРЯЖЕННОСТИ В АНКЛАВАХ ИНОСМИ [The Ferghana Valley: Tighter Border Controls Contributes to Heighten Tensions in the Enclaves] (Aug. 17, 2009), http://inosmi.ru/sngbaltia/20090817/251650.html [https://perma.cc/LVC2-7F47] (noting that there have been over a dozen border clashes with enclave’s residents over the past decade); INT’L CRISIS GRP., CENTRAL ASIA: WATER AND CONFLICT 4−5 (2002).


spontaneous non-state violence in Central Asia that degrades the fundamental capacity of all states party to such a conflict.”13

This article analyzes the key challenges to promoting greater cooperation over water in the Syr Darya Basin in the Ferghana Valley. Part I describes the theoretical framework by providing concise overviews of the United Nations Convention on the Non-Navigational Uses of Water (UN Watercourses Convention), which codifies many key principles of international water law,14 and the Water Diplomacy Framework, which sets forth a negotiated approach to water management based on mutual gains theory. 15 The Water Diplomacy Framework complements international water law by providing a set of tools that can help promote a mutually beneficial, non-zero-sum approach to negotiations over water. 16 Water allocations between two riparian states are often seen as zero-sum, i.e., whatever one state gains, the other loses. Indeed, “international water law principles may be viewed more appropriately as tools of the political process between states negotiating over transboundary waters rather than tools of an adjudicatory process” because “they are designed to encourage cooperation and prevent discord among the states.” 17 As scholars increasingly recognize, international water law can be interpreted to promote the equitable and reasonable sharing of benefits by riparian states, which is consistent with a mutual-gains theory such as the WDF.18 13. Sievers, supra note 8, at 374–75; see Slim, supra note 11, at 147 (identifying water as a key security issue); see also Humanitarian Bulletin: South Caucasus and Central Asia, U.N. OFFICE FOR COORDINATION HUMANITARIAN AFF., Jan–June 2013, at 2, http://reliefweb.int/sites/reliefweb.int/files/resources/HB_ROCCA_20130709%20EN.pdf [https://perma.cc/35WH-CAYX] (noting that in the Ferghana Valley in 2013, an estimated 80,000 people were affected by conflicts caused by lack of access to water and pasture and a difficult cross-border situation). 14. See generally ALISTAIR RIEU-CLARKE ET AL., U.N. WATERCOURSES CONVENTION USER’S GUIDE (2012) (for an overview of the UN Watercourses Convention); see generally The Convention: What Does the Convention Say?, U.N. WATERCOURSES CONVENTION, http://www.unwatercoursesconvention.org/the-convention/ [https://perma.cc/Z3JM-V4B2] (last visited Jan. 19, 2017) (for an overview of the UN Watercourses Convention). 15. SHAFIQUL ISLAM & LAWRENCE SUSSKIND, WATER DIPLOMACY: A NEGOTIATED APPROACH TO MANAGING COMPLEX WATER NETWORKS 14 (2013). 16. See generally Sharmila Murthy, Can International Water Law Be a Tool for Water Diplomacy?, 27 J. INT’L L. PEACE & ARMED CONFLICT 17, 19 (2014) (explaining how the Water Diplomacy Framework can help resolve transboundary water disputes). 17. Gabriel Eckstein, Examples of the Political Character of International Water Law, 102 AM. SOC’Y INT’L L. PROC. 353, 364 (2008). 18. Eckstein, supra note 3, at 432–33; see Alex Gryzbowski et al., Beyond International Water Law: Successfully Negotiating Mutual Gains Agreements for International Watercourses, 22 PAC. MCGEORGE GLOBAL BUS. & DEV. L.J. 139, 141 (2010) (arguing that the fundamental nature of international water law promotes equitable and reasonable sharing of watercourses); A. Dan Tarlock & Patricia Wouters, Are Shared Benefits of International Waters an Equitable Apportionment?, 18 COLO. J. INT’L. ENVTL. L. & POL’Y 523, 523 (2007); Patricia Wouters & Ruby Moynihan, Benefit Sharing in the UNWC and Under International Law, in THE UN WATERCOURSES CONVENTION IN FORCE:


Part II uses the UN Watercourses Convention and the Water Diplomacy Framework to analyze the key drivers of conflict and cooperation in the Syr Darya Basin. The UN Watercourses Convention outlines a series of factors that must be part of an equitable and reasonable utilization analysis, while the Water Diplomacy Framework stresses the importance of understanding the social, political, and natural context of the geographic area in which the waterbody is located. The history of cotton production under the Russian and Soviet rule in Central Asia, which is critical to understanding the current water-management dynamics in the region, is discussed in Part II.A. Two key agreements on the main stem of the Syr Darya river—one essentially codifies the Soviet-era allocations and the other attempts to reintroduce the water-energy exchange between the upstream and downstream countries—are then analyzed and critiqued in Part II.B. These agreements are examples of “paper cooperation” that have not produced the kind of benefits that are possible with a collaborative arrangement. 19 Regional dynamics exacerbate, and are exacerbated by, poor management of smaller tributaries of the Syr Darya that traverse ethnically diverse areas in the Ferghana Valley. The causes and consequences of the resulting conflict over water at the local scale are analyzed in Part II.C.

This article benefits from over 40 interviews conducted with key stakeholders in Kyrgyzstan and Uzbekistan during the summer of 2014, including national- and local-government officials, regional water organizations, international-aid agencies, local NGOs, farmers, academics, water-user-association leaders, and community leaders.20

The analysis reveals that the failure to implement effective international water agreements exacerbates problems at the local level, and in turn, those local tensions reinforce mistrust at the national level. This cycle of mistrust inhibits effective cooperation over water at all levels. At the macro-level, the meta-narrative of the Syr Darya focuses on the timing of water releases because upstream Kyrgyzstan needs to discharge water in the winter for

STRENGTHENING INTERNATIONAL LAW FOR TRANSBOUNDARY WATER MANAGEMENT 321, 332–33 (Alistair Rieu-Clarke & Flavia Rocha Loures eds., 2013). 19. DAN TARLOCK, PROMOTING EFFECTIVE WATER MANAGEMENT COOPERATION AMONG RIPARIAN NATIONS 10 (2015), http://www.gwp.org/Global/ToolBox/Publications/Background%20papers/GWP_TEC21_web.pdf [https://perma.cc/K239-ZUBN]. 20. The interviews were conducted using a semi-structured format. Interviewees were initially identified by reviewing publications and websites and subsequently via a snowball sampling methodology. Due to difficulties in securing a visa to Uzbekistan for the lead author, interviews with international and regional organizations and with NGOs in Uzbekistan were conducted via Skype. The interviewees are not quoted; rather, this empirical research informed our overall analysis.


hydropower production, which floods fields in downstream Uzbekistan.21 However, at the local level, all communities in the Ferghana Valley, including those in Kyrgyzstan, need more water for agriculture and basic household needs because more people have turned to farming in the post-Soviet era.22 Tributaries of the Syr Darya and irrigation canals that were once part of a unified system now traverse national boundaries, which makes upkeep challenging and causes strife where borders are not well-demarcated. The increased pressure on water and land resources has created local upstream-downstream dynamics and exacerbated ethnic tensions between communities in the Ferghana Valley.23

Reducing actual and potential conflict over water on the Syr Darya in Central Asia requires that the countries re-examine their existing legal agreements and embrace a cooperative structure that promotes a mutually beneficial approach to water management. The agreements between the nations currently do not have the flexibility needed to promote effective, cooperative water management. A framework for joint and collaborative management exists in the form of the Interstate Coordinating Water Commission (ICWC), under the auspices of International Fund for Saving the Aral Sea (IFAS).24 However, disagreements over Soviet-era allocations and schedules, as well as mistrust between the parties, hamper its effectiveness. Some scholars have suggested that the plethora of agreements and structures in Central Asia can be attributed more to the active role played by donor agencies in the region than to a real desire to cooperate.25

Part of the challenge is that real cooperation, as opposed to paper cooperation, may only be able to take place if the existing agreements are renegotiated to provide a framework that all riparian states on the Syr Darya, especially upstream Kyrgyzstan, believe is equitable and reasonable. This is not likely to occur given the current geopolitical situation. Moreover, to the extent that the existing agreements essentially codify the Soviet-era water allocations, it is questionable why the downstream countries would have any incentive to renegotiate the treaties. One possible motivation could be the reduction of costs associated with uncertainty and noncompliance with existing treaties, such as flooding of downstream fields. In addition, the current agreements do not address the potential

21. CHRISTINE BICHSEL, CONFLICT TRANSFORMATION IN CENTRAL ASIA: IRRIGATION

DISPUTES IN THE FERGHANA VALLEY 22−25 (2009) (referring to the Pulgon, Khalmion, and Alga case where villages in the regions are a mix of Uzbeks and Kyrgyz residents).

22. Id. at 16, 21. 23. Id. at 21. 24. See infra Part II. 25. Sievers, supra note 8, at 388.


building of dams further upstream on the Naryn River, which flows into the Syr Darya, causing another source of tension.

The lack of cooperation at the national level translates down to the local level and leads to tensions over water access. These tensions cannot be resolved effectively unless there is also a cooperative structure in place to manage irrigation infrastructure and schedules on the tributaries of the Syr Darya. While there are many other factors that contribute to ethnic tensions, as illustrated by the Osh riots in 2010,26 alleviating tensions over water could help to provide a pathway to cooperation instead of conflict in the Ferghana Valley.

I. ANALYTICAL FRAMEWORK

A. United Nations Watercourses Convention

The UN Watercourses Convention, which entered into force in 2014, is generally recognized as codifying many aspects of customary international water law and clarifying the scope and content of specific rules and principles.27 It sets forth a framework for cooperation because the process-oriented rules can encourage parties to meaningfully engage over planned measures.28 It is not meant to supplant existing bilateral and multilateral treaties but to aid in their negotiation and interpretation. Shortly after the adoption of the UN Watercourses Convention in 1997, the International Court of Justice (ICJ) cited the treaty as a relevant source of international water law in the case concerning the Gabcíkovo-Nagymaros Project, a treaty dispute between Hungary and Slovakia.29

Equitable and reasonable utilization of a transboundary watercourse is the foundational principle of international water law. 30 The UN Watercourses Convention enumerates a series of factors that should be considered in determining what is “equitable and reasonable,” such as

26. See, e.g., Schwirtz, supra note 7 (noting that the clashes over land and water in the Fergana Valley are the source of the ethnic tension). 27. Salman M.A. Salman, The United Nations Watercourses Convention Ten Years Later: Why Has Its Entry into Force Proven Difficult?, 32 WATER INT’L 1, 4 (2007); RIEU-CLARKE ET AL., supra note 14, at 97; see generally STEPHEN C. MCCAFFREY, THE LAW OF INTERNATIONAL WATERCOURSES (2d ed. 2007) (for an overview of the UN Watercourses Convention). 28. Ryan Stoa, The United Nations Watercourses Convention on the Dawn of Entry into Force, 47 VAND. J. TRANSNAT’L L. 1321, 1367 (2014). 29. Gabc’ıkovo–Nagymaros Project (Hung./Slovk.), Judgment, 1997 I.C.J. 7, ¶ 85 (Sept. 25). 30. Convention on the Law of the Non-Navigational Uses of International Watercourses art. 5, May 21, 1997, 27 U.N.T.S. 12 [hereinafter UNWC]; Gryzbowski et al., supra note 18, at 141; MCCAFFREY, supra note 27, at 404.


geographic and hydrographic features; social and economic needs; dependent populations; effects on other states; existing and potential uses; conservation and development of water resources; and availability of alternative measures.31 Under the Convention, no single use enjoys priority over another, but in the event of a conflict, special regard shall be given to “vital human needs.”32

Dan Tarlock and Patricia Wouters observe that the concept of equitable and reasonable utilization has two competing interpretations.33 The first is “classic apportionment” whereby riparian states allocate the actual water in a transboundary river between them.34 The second is a “shared benefits” model of equitable and reasonable utilization, which is derived from welfare economics and is premised on the idea of water being put to its highest use and on the sharing of benefits across boundaries.35 This means that a state may forego “wet” water in exchange for another benefit (i.e., energy or agricultural products) or the equivalent monetary value.36 As discussed below, the Water Diplomacy Framework promotes this shared-benefits approach to transboundary water management.

Although in practice many transboundary water treaties endorse a classic-apportionment approach, the text of the UN Watercourses Convention suggests a close alignment with the mutual-benefits approach, as urged by an increasing number of international water law scholars.37 Article 5 of the Convention instructs states to use a watercourse in a way that prioritizes “optimal and sustainable utilization and benefits” for all concerned states.38 In other words, the principle arguably refers to the equitable and reasonable sharing of benefits that can be derived from a particular transboundary watercourse. However, the sovereign equality of each state to participate in the equitable and reasonable sharing of benefits does not mean that each riparian has a right to an equal amount of water,

31. UNWC, supra note 30, at art. 6; A. Dan Tarlock, Four Challenges for International Water Law, 23 TUL. ENVTL. L.J. 369, 375–78 (2010) (suggesting that the vague nature of these factors contributes to conflict over water). 32. UNWC, supra note 30, at art. 10; but see Stephen C. McCaffrey, A Human Right to Water: Domestic and International Implications, 5 GEO. INT’L ENVTL. L. REV. 1, 2 (1992) (“[T]he mere suggestion that one state might have a right to receive water from another may be quite controversial.”); see generally CHRISTINA LEB, COOPERATION IN THE LAW OF TRANSBOUNDARY WATER RESOURCES 200–02 (2013) (explaining how international water law can protect vital human water needs). 33. Tarlock & Wouters, supra note 18, at 526–27. 34. Id. at 526. 35. Id. at 527. 36. Id. 37. Eckstein, supra note 3, at 432–33; Gryzbowski et al., supra note 18, at 143; Tarlock & Wouters, supra note 18, at 532; Wouters & Moynihan, supra note 18, at 335. 38. UNWC, supra note 30, at art. 5.


nor an equal amount of benefits. 39 Some scholars further argue that “optimal utilisation” and “benefits” should not be interpreted as requiring “the ‘maximum,’ the most efficient, or even the most (economically) valuable use.”40 Instead, the terms suggest a careful balancing: “attaining maximum possible benefits for all riparians and achieving the greatest possible satisfaction of all their needs, while minimizing potential detrimental impact.”41

A few celebrated examples of treaties embracing mutual benefits exist.42 For example, under the Columbia River Treaty, Canada and the United States agreed that the United States could develop several hydropower-production and irrigation water management projects on the Columbia River. 43 In exchange for foregone opportunities upstream, Canada receives financial compensation and power from dam projects built on the United States side of the river.44 The Senegal River is another well-known example of a treaty premised on the concept of benefits sharing. The countries of Mali, Mauritania, and Senegal jointly fund and maintain several water-resource development projects designed to expand hydropower production and enhance water regulation. 45 As will be discussed below, the nations on the Syr Darya in Central Asia have attempted to create a mutually beneficial arrangement by compensating upstream Kyrgyzstan for water releases that benefit downstream irrigation; however, the treaty has not been very effective because it neglects key issues.

The principle of equitable and reasonable utilization is not static but should be understood as a process that changes over time. As Stephen McCaffrey observes, “It is a dynamic process, which depends heavily upon

39. RIEU-CLARKE ET AL., supra note 14, at 106 (noting that the principle of sovereign equality “must not be mistaken for the right to an equal share of the uses and benefits of the watercourse; nor does it imply that the water resource itself has to be divided into equal shares”).

40. Id. at 107. 41. Id. 42. Wouters & Moynihan, supra note 18, at 328–33. 43. Treaty Between Canada and the United States of America Relating to Cooperative Development of the Water Resources of the Columbia River Basin, Can.-U.S., Annex, Jan. 17, 1961, 592 U.N.T.S. 272 (entered into force Oct. 4, 1965). 44. U.S. ARMY CORPS OF ENG'RS & BONNEVILLE POWER ADMIN., COLUMBIA RIVER TREATY: HISTORY AND 2014/2024 REVIEW 4 (2014), https://www.crt2014-2024review.gov/Files/Columbia%20River%20Treaty%20Review%20_revisedJune2014.pdf [https://perma.cc/Z5NV-B8WA]. 45. Claudia W. Sadoff & David Grey, Beyond the River: The Benefits of Cooperation on International Rivers, 4 WATER POL’Y 389, 396 (2002); WINSTON YU, WORLD BANK, BENEFIT SHARING IN INTERNATIONAL RIVERS: FINDINGS FROM THE SENEGAL RIVER BASIN, THE COLUMBIA RIVER BASIN, AND THE LESOTHO HIGHLANDS WATER PROJECT 14, 14–17 (2008), http://documents.worldbank.org/curated/en/159191468193140438/pdf/464560NWP0P1121g0AFTWR0YU301PUBLIC1.pdf [https://perma.cc/9UCY-E2KB].


active cooperation between states sharing fresh water resources. A state’s regime of utilization that is equitable vis-à-vis its co-riparian states today may not be next year.” 46 In the Gabcíkovo-Nagymaros case, the ICJ underscored this point by focusing on paragraph 2 of Article 5: “Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.”47

In other words, achieving an equitable and reasonable outcome requires ongoing cooperation over the development, use, and protection of a waterway. In this sense, the procedural and substantive duties under international water law overlap. As Christina Leb argues, the general duty to cooperate is not merely a procedural obligation, but is intertwined with the substantive aspects of international water law.48 Yet, not all forms of cooperation are the same. Tarlock recognizes that basin states have an emerging customary duty to cooperate to achieve the objectives of a basin-related treaty but observes that not all forms of cooperation lead to measurable benefits.49 He posits that “[t]oo often, the extensive cooperation literature accepts almost all interaction among basin states as cooperation, regardless of whether the interactions produce measurable benefits.”50 As will be discussed below, the regional instruments relevant to the Syr Darya could be seen as a classic example of “paper cooperation.”51

The second key principle of the UN Watercourses Convention is the obligation of riparian states to take “all appropriate measures” to prevent causing “significant harm” to co-riparian states.52 This concept is generally consistent with a general obligation under international law not to cause harm to other state actors (sic utere tuo), 53 which is perhaps better understood as the good neighborliness principle.54 Although often described as the “no harm” principle, in fact, the text of Article 7 of the UN Watercourses Convention does not prohibit all harm. Rather, “significant”

46. MCCAFFREY, supra note 27, at 404–05.

47 . Id. at 405. 48. LEB, supra note 32, at 114. 49. TARLOCK, supra note 19, at 9. 50. Id.

51. Id. 52. UNWC, supra note 30, at art. 7. 53. MCCAFFREY, supra note 27, at 416; U.S. v. Can., 3 R.I.A.A. 1905, 1965 (1941); Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 14, ¶ 193 (Apr. 20); see Corfu Channel (Alb. v. U.K.), Judgment, 1949 I.C.J. 244, 245 (Dec. 19) (providing an example of damages awarded when Albania harmed the United Kingdom in Albanian waters). 54. MCCAFFREY, supra note 27, at 419.


harm should be avoided, which means that a small amount of harm could be tolerated.55 Moreover, as long as a riparian state has taken “all appropriate measures” to prevent that significant harm, then it is not a per se violation of the treaty if significant harm nevertheless occurs.56 Rather, the UN Watercourses Convention contemplates that if significant harm occurs, then the responsible state must eliminate or mitigate it, and if appropriate, discuss possible compensation.57

While these two concepts are the seminal principles of international water law, many experts view the no-harm obligation as subordinate to the idea of equitable and reasonable utilization. For example, McCaffrey argues that the no-harm principle should be viewed as a factor within the equitable and reasonable utilization analysis.58 Moreover, in 2004, the International Law Association promulgated the Berlin Rules on Water Resources, which further updated and codified international water law.59 The Berlin Rules state in part that “[b]asin States shall in their respective territories manage the waters of an international drainage basin in an equitable and reasonable manner having due regard for the obligation not to cause significant harm to other basin States.”60

In practice, however, many treaties codify existing uses and thereby give priority to no significant harm.61 Historically dominant riparian nations (i.e., hydro-hegemons) usually perceive any deviation from the existing status quo as creating significant, short-term harm.62 The challenge for nations negotiating over international rivers is that the obligation not to cause significant harm can sometimes be used by regional hegemons to prevent any change to the use of a river—and this runs counter to the goal of generating mutually beneficial solutions. Prioritizing the status quo can effectively preclude future uses by riparian states that have not yet productively used the watercourses. It is common for downstream nations to champion the no-significant-harm principle because they historically used the watercourses, while upstream nations prioritize the concept of

55. See UNWC, supra note 30, at art. 7 (stating only that a State should not cause significant harm).

56. Id. 57. Id. 58. MCCAFFREY, supra note 27, at 436.

59. See generally INT’L LAW ASS’N, BERLIN CONFERENCE: WATER RESOURCES LAW FOURTH REPORT (2004), http://internationalwaterlaw.org/documents/intldocs/ILA_Berlin_Rules-2004.pdf [https://perma.cc/9NH5-8NW2] [hereinafter BERLIN RULES ON WATER RESOURCES] (providing the international rules on managing water resources). 60. Id. at 12. 61. PRISCOLI & WOLF, supra note 2, at 64 tbl. 42 (finding that transboundary watercourse treaties generally do not relinquish prior uses). 62. Mark Zeitoun & J.A. Allan, Applying Hegemony and Power Theory to Transboundary Water Analysis, 10 WATER POL’Y 3, 4 (Supp. 2008).


equitable and reasonable use as a means to ensure that their future uses will be protected.63

Effectively solving transboundary water problems in a mutually beneficial way requires nations to cooperate. The UN Watercourses Convention imposes a general duty to cooperate on all state parties,64 which is a foundational principle of international law and is increasingly understood as a cornerstone principle of substantive international water law.65 The UN Watercourses Convention requires that nations consult one another and exchange information over proposed projects,66 and provide prior, timely notification if a measure could have a “significant adverse effect” on co-riparian states.67 It further requires that “[s]uch notification shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified States to evaluate the possible effects of the planned measures.”68 In other words, the text of the UNWC does not per se mandate an environmental impact assessment (EIA), but rather, suggests that if any is performed, the results must be shared.69

In the Pulp Mills case, the ICJ underscored that where there is a likelihood of transboundary harm, international law requires that an EIA be undertaken.70 However, the content of the EIA is determined by the laws of that nation, not by international law.71 63. RIEU-CLARKE ET AL., supra note 14, at 101, 117. 64. UNWC, supra note 30, at art. 8 (“Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse.”). 65. LEB, supra note 32, at 105 (describing “equitable utilization,” “good neighborliness,” and the “duty to cooperate” as the “triangle of cornerstone principles” of international water law). 66. UNWC, supra note 30, at art. 9 (noting that states have an obligation to exchange “readily available date and information” and use their “best efforts” to supply information that is not readily available). 67. UNWC, supra note 30, at arts. 11–12; see also Murthy, supra note 16, at 23 (“The threshold for notification under Article 12 is lower than in Article 7: notification should take place if an action may have significant adverse effects, which Article 7 focuses on significant harm.”); Stoa, supra note 28, at 1352 (“Part III on Planned Measures creates several process-oriented rules on information exchange, notification, and consultation.”). 68. UNWC, supra note 30, at art. 12. 69. MCCAFFREY, supra note 27, at 474–76. 70. Pulp Mills, 2010 I.C.J. at ¶ 204 (finding that the treaty had “to be interpreted in accordance with a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource”); see also Owen McIntyre & Mara Tignino, Reconciling the UN Watercourses Convention with Recent Developments in Customary International Law, in THE UN WATERCOURSES CONVENTION IN FORCE: STRENGTHENING INTERNATIONAL LAW FOR TRANSBOUNDARY WATER MANAGEMENT 286, 292 (Flavia Rocha Loures & Alistair Rieu-Clarke eds., 2013) (“The most significant aspect of the judgment in the Pulp Mills case for the development of international water law, and of international environmental law generally, is its


Under the UN Watercourses Convention, states have obligations to protect ecosystems and the marine environment and to prevent pollution and the introduction of alien species.72 Although the Convention is largely seen as codifying customary international water law, these provisions related to environmental protection have arguably not attained this status.73

The UN Watercourses Convention also contains a series of back-and-forth notification and reply articles,74 along with suggested mechanisms for dispute resolution.75 To more meaningfully promote cooperation, however, states may establish joint mechanisms or commissions, 76 which are generally perceived to be effective means for fulfilling substantive obligations.77 The creation of expert bodies as part of such joint institutions can also facilitate resolution of certain disagreements at the technical level before resorting to more formal dispute-resolution procedures, which are ultimately more political.78

Under the UN Watercourses Convention, a nation can withhold information for national security purposes.79 States can use this as an excuse not to share information that would support a collaborative approach to transboundary water management.80 Many states perceive information about their watercourses to be state secrets, and the ability to withhold data about flows and usage can create barriers to trust.81

finding that EIA is absolutely essential for effective notification of neighboring states in respect of planned activities or projects which might cause transboundary harm.”). 71. Pulp Mills, 2010 I.C.J. at ¶ 205 (“The Court observes that . . . general international law [does not] specify the scope and content of an environmental impact assessment.”). 72. UNWC, supra note 30, at arts. 20–23. 73. Gryzbowski et al., supra note 18, at 141. 74. UNWC, supra note 30, at arts. 11–19. 75. Id. at art. 33 (noting that if negotiation is ineffective, the states may jointly request mediation, use a joint watercourse institution, or agree to submit the dispute to arbitration or to the ICJ; additionally, a party can also request that an impartial Fact-Finding Commission be established). 76. Id. at art. 8; see also MCCAFFREY, supra note 27, at 403. 77. See Pulp Mills, 2010 I.C.J. at ¶ 281 (finding that the effective functioning of CARU, a joint institution established between Uruguay and Argentina, related to substantive implementation of the treat between the countries). 78. MCCAFFREY, supra note 27, at 511. 79. UNWC, supra note 30, at art. 31 (noting that a state is not obligated to provide data or information that it considers “vital to its national defense or security”). 80. NAHID ISLAM, THE LAW OF NON-NAVIGATIONAL USES OF INTERNATIONAL WATERCOURSES: OPTIONS FOR REGIONAL REGIME-BUILDING IN ASIA 372 (2010). 81. See Murthy, supra note 16, at 23 (explaining how distrust stems from this provision and can “encourage parties to withhold information”); see also Lawrence Susskind & Shafiqul Islam, Water Diplomacy: Creating Value and Building Trust in Transboundary Water Negotiations, SCI. & DIPL., Sept. 2010 (explaining how cooperation among policy makers and water planners could build trust in each other and in the process).


B. Water Diplomacy Framework

Although international water law does not mandate a mutually beneficial approach to dispute resolution, the key tenets of the UN Watercourses Convention are consistent with the Water Diplomacy Framework.82 The Water Diplomacy Framework posits that parties can develop mutually beneficial solutions to overcome the historically zero-sum orientation toward transboundary water disputes. 83 Gains to one transboundary party should not necessarily mean losses to others. Instead, like other mutual-gains theories, 84 the Water Diplomacy Framework encourages parties to consider how to maximize the value of the water and urges each country to share the benefits that might otherwise accrue to it exclusively.85 Because parties generally have different priorities, they can create more value with the water by developing joint solutions that meet their distinct needs.

Water is a flexible and fungible resource.86 Solutions require thinking not simply about the amount of water in a transboundary river, but also about the uses of that water, such as its role in creating food and energy (i.e., the water-energy-food nexus).87 Such cooperation can enable the parties to develop solutions that maximize the geographical landscape because some topographies may be better adapted to agriculture, while others may be better suited to hydropower. In addition, the parties can share the costs of infrastructure and develop integrated ecosystem-management plans. 88 This is consistent with the UN Watercourses Convention’s

82. Murthy, supra note 16, at 22; see also A. Dan Tarlock, Toward a More Robust International Water Law of Cooperation to Address Droughts and Ecosystem Conservation, 28 GEO. ENVTL. L. REV. 261, 267 (2015) (“The legal system alone cannot compel successful cooperation, but it can be used to help states overcome geopolitical barriers to greater cooperative efforts.”). 83. ISLAM & SUSSKIND, supra note 15, at 128; see Murthy, supra note 16, at 19 (discussing how the UN Watercourses Convention relates to the Water Diplomacy Framework). 84. Gryzbowski et al., supra note 18, at 143; see, e.g., Sadoff & Grey, supra note 45, at 393. 85. Murthy, supra note 16; Rebecca L. Teasley & Daene C. McKinney, Calculating the Benefits of Transboundary River Basin Cooperation: Syr Darya Basin, 137 J. WATER RESOURCES PLAN. & MGMT. 481, 489 (2011) (providing an example of how potential shared benefits can be modeled and quantified, which was illustrated in this paper using parameters in a new draft agreement on the allocation of water and energy resources in the Syr Darya Basin). 86. ISLAM & SUSSKIND, supra note 15, at 200, 225 (describing how parties can “create” additional water through conservation, wastewater recycling, technological advances such as desalination, and by imagining new agricultural or industrial processes that use water more efficiently, thereby freeing up more water for other purposes). 87. Water, Food and Energy Nexus, U.N. WATER, http://www.unwater.org/topics/water-food-and-energy-nexus/en/ [https://perma.cc/PSG9-NBCX] (last updated Oct. 7, 2014); Rhett B. Larson, Reconciling Energy and Food Security, 48 U. RICH. L. REV. 929, 932 (2013). 88. Tarlock, supra note 31, at 397.


requirement that states use watercourses in a way that attains their “optimal and sustainable” value, which accounts for broader “benefits” associated with water use.89 As discussed earlier, the Convention is often interpreted as encouraging riparian states to embrace a mutually beneficial approach that maximizes the flexible nature of water.

Legal agreements and institutional arrangements can be structured in a way that promotes this mutually beneficial approach and balances the desire for certainty with the need for flexibility.90 Agreements can provide a flexible framework that facilitates collaborative adaptive management and joint fact finding, which are two key components of the Water Diplomacy Framework.91 Collaborative adaptive management means that the parties have a structure in place that allows them to change their water-management strategy according to evolving circumstances. They are then better equipped to respond to the dynamic natural, societal, and political forces that influence transboundary water management.92 This approach is increasingly important in the face of climate change, which increases uncertainty.93

The Water Diplomacy Framework recognizes that there is no single, perfect solution to water management; strategies that are initially developed—and may be codified in a legal agreement—will not be perfect on the first try.94 Rather, initial efforts are like experiments that the parties can learn from and adjust. It is important to have a platform that enables the parties to engage in scenario planning, so that they can plan for alternate futures. For example, a legal agreement could urge the parties to do X if Y occurs and W if Z occurs. These kinds of decisions allow the parties to avoid having to predict the future precisely. The key is to ensure that treaties do not create static plans that prevent the parties from adapting to their changing needs and environment. Moreover, if the scenarios are planned before a crisis occurs, the parties should be better prepared to handle them.

Collaborative adaptive management works hand-in-hand with the idea of joint fact finding and scenario planning. Cooperation requires trust.95 However, differing stakeholders have different views on what is best. As a result, even seemingly unbiased scientific and technical information is subject to multiple interpretations. If the parties work together to gather and 89. UNWC, supra note 30, at art. 5. 90. See generally Murthy, supra note 16, at 17. 91. ISLAM & SUSSKIND, supra note 15, at 199, 202. 92. Id. at 10. 93. Eckstein, supra note 3, at 432–33. 94. ISLAM & SUSSKIND, supra note 15. 95. Tarlock, supra note 82, at 270.


analyze scientific information in a cooperative fashion, they are much more likely to trust the information.96 With respect to making water-management decisions, this can enhance trust between the parties.97 Neutral mediators and jointly selected experts can assist parties in seeking mutually beneficial solutions.98

The Water Diplomacy Framework’s emphases on flexibility, collaborative adaptive management, joint fact finding, and scenario planning are consistent with the concept of equitable and reasonable utilization. The numerous factors that go into the equitable-and-reasonable-utilization determination are an invitation for reassessment. 99 The UN Watercourses Convention requires states to “participate in the use, development and protection of an international watercourse,” which includes not only the “right to utilize it” but also the “duty to cooperate in [its] protection and development.” 100 It also depends on the regular exchange of “readily available data and information” by riparian states.101 Thus, while equitable and reasonable utilization is a substantive obligation, it is intricately intertwined with the fulfillment of procedural obligations.102 These obligations are consistent with the goals of collaborative adaptive management, joint fact finding, and scenario planning, which require a great deal of cooperation and transparency. Moreover, as discussed earlier, the UN Watercourses Convention also contemplates that parties will create joint mechanisms for managing watercourses effectively.103

The Water Diplomacy Framework encourages the parties to consider all the stakeholders in a problem and understand their different perspectives. There is no single, perfect solution, but negotiating an outcome that accounts for these diverse perspectives can lead to a better solution that has more legitimacy. With few exceptions, the key actors under international law are states.104 However, non-state actors are increasingly playing a role

96. ISLAM & SUSSKIND, supra note 15, at 224. 97. Id. at 258. 98. See PRISCOLI & WOLF, supra note 2, at 44 (stating that “third- or neutral-party assistance is often needed” for increasingly complex water resource allocation issues). 99. MCCAFFREY, supra note 27, at 402. 100. UNWC, supra note 30, at art. 2.

101. Id. at art. 9. 102. See LEB, supra note 32, at 81 (discussing the evolution of the duty to cooperate in the context of international water law). 103. UNWC, supra note 30, at art. 8 (allowing states to “consider the establishment of joint mechanisms or commissions, as deemed necessary by them, to facilitate cooperation on relevant measures”). 104. Human rights law and international investment law are two such examples. Non-state actors are increasingly playing a role in international law, but international water law only applies to watercourse states. See DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 1325, 1439 (5th ed. 2015) (discussing human rights law and investment law, respectively).


in international law.105 There is nothing that prevents a state from creating forums where other stakeholders to a watercourse have the opportunity to provide input and develop solutions.

Ultimately, as noted earlier, creating a mutually beneficial solution in line with the UN Watercourses Convention and the Water Diplomacy Framework requires trust.106 As the analysis below will show, this lack of trust is a fundamental challenge to addressing water conflict in the Syr Darya Basin in the Ferghana Valley region of Central Asia.

II. KEY BARRIERS TO TRANSBOUNDARY WATER COOPERATION ON THE SYR DARYA RIVER

Numerous obstacles exist to treating water as a flexible and mutually beneficial resource in Central Asia as encouraged by the Water Diplomacy Framework and the UN Watercourses Convention. Since independence in 1991, the Central Asian countries have entered into many agreements pertaining to the major rivers that comprise the Aral Sea Basin.107 For many of the hundreds of small rivers that crisscross the countries, the Soviet-era agreements have been maintained. Yet in many respects, the current institutional framework for developing and allocating water resources in Central Asia has become obsolete.108 As evidence from around the world suggests, the existence of transboundary water agreements does not necessarily mean that a strong level of cooperation exists, nor does it indicate a lack of conflict.109 The problem can be attributed in part to the “normative quality” of the treaties, which neglect central elements of the Water Diplomacy Framework and international water law that are generally recognized as guideposts for cooperation.110 The existing treaties in Central

105. Id. at 254–58. 106. Tarlock, supra note 82, at 270 (“Cooperation is ultimately achieved when basin nations sufficiently trust each other to make meaningful allocation and management decisions.”). 107. Dinara Ziganshina, Specially Invited Opinions and Research Report of the International Water Law Project: Global Perspectives on the Entry into the UN Watercourses Convention 2014: Part One: The Current State and Future Outlook, 16 WATER POL’Y 1206, 1207 (Gabriel Eckstein ed., 2014). 108. Sergei Vinogradov & Vance Langford, Managing Transboundary Water Resources in the Aral Sea Basin: In Search of a Solution, 1 INT'L. J. GLOBAL ENVTL. ISSUES 345, 351 (2001). 109. Suvi Sojamo, Illustrating Co-Existing Conflict and Cooperation in the Aral Sea Basin with TWINS Approach, in CENTRAL ASIAN WATERS: SOCIAL, ECONOMIC, ENVIRONMENTAL AND GOVERNANCE PUZZLE 75, 77 (Muhammad Mizanur Rahaman & Olli Varis eds., 2008). 110. LEB, supra note 32, at 30 (noting that while law is not essential to cooperation, it can be a useful means of circumscribing the ways water conflicts are managed, if only providing predictability and stability); Zeitoun & Mirumachi, supra note 2, at 303.


Asia do not reflect the dynamic nature of transboundary water management that is essential for effective cooperation.111

The Central Asian nations also have a structure in place that could, in theory, promote a mutual-gains approach to water management. The ICWC oversees the regulation, use, and protection of interstate water in the region.112 The heads of water management authorities in each of the five countries comprise the ICWC, which meets several times a year to allocate water and address disputes.113 The ICWC makes unanimous decisions that are binding on all countries. 114 The ICWC provides a platform for coordinating research, building capacity, and exchanging information among the countries.115 The ICWC is now part of the IFAS,116 along with

111. DINARA ZIGANSHINA, THE ROLE AND RELEVANCE OF THE UN WATERCOURSES CONVENTION TO THE COUNTRIES OF CENTRAL ASIA AND AFGHANISTAN IN THE ARAL SEA BASIN 56 (2011). 112. INTERSTATE COMMISSION FOR WATER COORDINATION CENT. ASIA, http://www.icwc-aral.uz/index.htm [https://perma.cc/8KQL-2NJC] (last visited Jan. 25, 2017); DINARA ZIGANSHINA, PROMOTING TRANSBOUNDARY WATER SECURITY IN THE ARAL SEA BASIN THROUGH INTERNATIONAL LAW 115 (2014); GRANIT ET AL., supra note 10, at 19; Laurence Boisson de Chazournes, Elements of a Legal Strategy for Managing International Water-Courses: The Aral Sea Basin, in WORLD BANK TECHNICAL PAPER 414 (Salman M.A. Salman & Laurence Boisson de Chazournes eds., 1998), http://elibrary.worldbank.org/doi/pdf/10.1596/0-8213-4298-3 [https://perma.cc/Y2ZF-2YF3]. 113. INTERSTATE COMMISSION FOR WATER COORDINATION CENT. ASIA, supra note 112. 114. Agreement on Cooperation in the Field of Joint Water Resources Management and Conservation of Interstate Sources, Kaz.-Kyrg.-Taj.-Turkm.-Uzb., Feb. 18, 1992, http://www.ce.utexas.edu/prof/mckinney/papers/aral/agreements/ICWC-Feb18-1992.pdf [https://perma.cc/ZJ9V-3R8N] [hereinafter 1992 Almaty Agreement] (stating that disputes would be solved by “the heads of water management agencies of the Republics, and, if needed, with participation of a representative of the party concerned”); Christine Bichsel, Liquid Challenges: Contested Water in Central Asia, 12 SUSTAINABLE DEV. L. & POL’Y 24, 25 (2011); Ziganshina, supra note 111, at 32; Boisson de Chazournes, supra note 112. 115. Statute of the Interstate Commission for Water Coordination of Central Asia art. 2.7–2.10, Kaz.-Kyrg.-Taj.-Turkm.-Uzb., Sept. 16, 2008, http://www.icwc-aral.uz/statute4.htm [https://perma.cc/LEB9-4DWC] (noting that one key objective of the ICWC is to develop and operate a “unified regional, basin and national information systems on water use” and to disseminate and exchange information related to water resources); Ziganshina, supra note 111, at 32. 116. See Agreement on Joint Activities in Addressing the Aral Sea art. II, Kaz.-Kyrg.-Taj.-Turkm.-Uzb., Mar. 26, 1993, http://www.internationalwaterlaw.org/documents/regionaldocs/aral-sea.html [https://perma.cc/GN8B-DRNZ] (creating the Interstate Council for the Aral Sea); Agreement About the Status of IFAS and Its Organizations, Kaz.-Kyrg.-Taj.-Turkm.-Uzb., Apr. 1, 1999, http://www.cawater-info.net/library/eng/ifas_e_1.pdf [https://perma.cc/3HT3-K749]; GRANIT ET AL., supra note 10, at 19 (noting that the 1993 Kzyl-Orda treaty placed the ICWC under the newly-established Interstate Council on the Aral Sea (ICAS), which was then transformed into the International Fund for Saving the Aral Sea (IFAS) in 1997); Gregory Heltzer, Note, Stalemate in the Aral Sea Basin: Will Kyrgyzstan’s New Water Law Bring the Downstream Nations Back to the Multilateral Bargaining Table?, 15 GEO. INT’L ENVTL. L. REV. 291, 302 (2003) (noting that IFAS is led by the head of state of one of the Central Asian nations, that the leadership rotates every two years, and that it is otherwise comprised of the Deputy Prime Ministers of the Central Asian nations that oversee agriculture, water, and the environment).


the Interstate Commission for Sustainable Development (ICSD).117 IFAS is responsible for collecting contributions and financing program activities.118 The ICWC structure also incorporated two water basin valley organizations (BVOs)119 for the Amu Darya and the Syr Darya rivers, which were created in 1986, during Soviet times.120 Responsibility for water withdrawal limits and for returning a specified volume of water to the Aral Sea lies with the ICWC and the BVOs.121

The ICWC has the potential to promote the kind of joint fact finding and collaborative adaptive management needed for a mutual-gains approach to water management. However, due to lack of trust between the parties and dissatisfaction with the existing water allocation amounts, the ICWC does not serve this purpose. For example, in May of 2016, Kyrgyzstan decided to freeze its participation in IFAS because the reforms it proposed had not been implemented.122 The interstate BVOs are supposed to be responsible for basin allocation; however, they are not recognized by the national legislatures and have no real authority.123 The BVOs, as well as national

117. ICSD, IFAS, http://ec-ifas.waterunites-ca.org/aral_basin/institutions/mkur/index.html (last visited Jan. 18, 2017); see Boisson de Chazournes, supra note 112, at 51 (stating that ICSD’s role is to “ensure that economic, social and environmental factors are given equal weight in planning decisions”); Sievers, supra note 8, at 386–87 (“[The] initial decision to retain the Soviet status-quo was followed by a number of proclamations by the states about water reform, including the 1993 Tashkent Heads of State Decision (creating the International Fund for the Aral Sea), the 1993 Kzyl-Orda Agreement (creating the Interstate Council for the Aral Sea), the 1995 Nukus Declaration (pledging the states to fulfill all water agreements existing between them), the 1997 Almaty Declaration (pledging the states to create an International Convention for the Sustainable Development of the Aral Sea Basin), and the 1999 Ashgabad Declaration (urging more international attention to the region).”). 118. Boisson de Chazournes, supra note 112, at 51 (explaining that IFAS replaced ICAS, and that the original institutional structure had been modified to improve the allocation of responsibilities, streamlining the decision-making process, “notably for ensuring effective donor grants management”). 119. Yuldash Khudayberganov, Security and Water Resources Management Problems and Experience in the Amudarya River Basin, in WATER AND FOOD SECURITY IN CENTRAL ASIA 59 (Chandra Alastair Madramootoo & Victor Dukhovny eds., 2011) (noting that while they are generally referred to as BVOs [an acronym for their Russian name, БВО/ Basseinovoe Vodokhozyaistvennoe Ob'edinenie], they are also sometimes translated as Basin Water Organizations, or BWOs). 120. Sievers, supra note 8, at 386 (“In 1986, Minvodkhoz [the Soviet water ministry] created basin water use associations (BVOs) for the Amudarya and Syrdarya, and these have survived into the independence period as joint institutions, although both are, as in the Soviet period, headquartered in Uzbekistan.”); A. Sorg et al., Coping with Changing Water Resources: The Case of the Syr Darya River Basin in Central Asia, 43 ENVTL. SCI & POL’Y 68, 72 (2014). 121. Boisson de Chazournes, supra note 112, at 50. 122. Аскат ТУРУСБЕКОВ [Askat Turusbekov], Кыргызстан приостанавливает свое участие в фонде спасения Аральского моря [Kyrgyzstan Suspends Its Participation in the Fund of Aral Sea] (May 20, 2016, 5:07 PM), http://bnews.kz/ru/news/v_mire/kirgizstan_priostanavlivaet_svoe_uchastie_v_fonde_spaseniya_aralskogo_morya-2016_05_20-1272353 [https://perma.cc/XE3P-XNWN]. 123. Sarah L. O’Hara, Central Asia’s Water Resources: Contemporary and Future Management Issues, 16 WATER RESOURCES DEV., 423–41, 431 (2000); Stephen Hodgson, Strategic


water management agencies, are also chronically underfunded because member states are often unwilling to contribute funds to an external agency.124

Several efforts to promote regional economic integration exist, which in theory could provide an additional platform for cooperation. For example, in 2001, the Shanghai Cooperation Organization was created with six members: China, Kazakhstan, Kyrgyz Republic, Russia, Tajikistan, and Uzbekistan.125 However, it has not delivered on its promise, in part, because Russia and China do not see eye to eye.126 As discussed below, Russia and China have financed some of the dam-building projects in upstream Kyrgyzstan and Tajikistan, which has exacerbated geopolitics. According to the International Crisis Group, Uzbekistan often perceives Russia as promoting an agenda that aggravates tensions over water.127

Different political economies and frameworks for water governance in each of the Syr Darya riparian countries have also made coordinated management difficult.128 The economies of Uzbekistan and Kazakhstan largely depend on the export of fossil fuels and cotton.129 Tajikistan and Kyrgyzstan heavily rely on hydro-energy production and the remittances of labor migrants working in Russia and Kazakhstan.130 They define the role of water in their economies differently.131 If water is vital for upstream Kyrgyzstan and Tajikistan as the source of energy production, then downstream Uzbekistan and Kazakhstan need water for irrigation. At the same time in the Ferghana Valley, communities in all these countries depend on water for agriculture and basic needs.132 Because of the way that the Syr Darya snakes through the region, there are local upstream-

Water Resources in Central Asia: In Search of a New International Order, E.U. CENT. ASIA MONITORING, May 2010, at 1, 2. 124. O’Hara, supra note 123, at 431; Bichsel, supra note 114, at 25. 125. Johannes F. Linn, Central Asian Regional Integration and Cooperation: Reality or Mirage, in EURASIAN INTEGRATION YEARBOOK 103 (Evgeny Vinokurov ed., 2012). 126. Id. at 96–117, 104. 127. INT’L. CRISIS GRP., WATER PRESSURES IN CENTRAL ASIA 6 (2014), https://www.crisisgroup.org/europe-central-asia/central-asia/water-pressures-central-asia [https://perma.cc/99DR-CJCW]. 128. Id. at 9; GRANIT ET AL., supra note 10, at 6. 129. INT’L CRISIS GRP., supra note 127, at 3–4. 130. Id. at 3; David Trilling, Remittances to Central Asia Fall Sharply, as Expected, EURASIANET.ORG (Apr. 21, 2015, 5:59 AM), http://www.eurasianet.org/node/73061 [https://perma.cc/RA68-V5FR]. 131. See, e.g., Catherine Putz, New Hydropower Project Partners Needed in Kyrgyzstan, THE DIPLOMAT (Dec. 28, 2015), http://thediplomat.com/2015/12/new-hyrdropower-project-partners-needed-in-kyrgyzstan/ [https://perma.cc/VS98-FPCQ] (noting that Krygyzstan is building new dams with the goal of exporting electricity to South Asia).

132. Akira Ueda, How Did the Nomads Act During the 1916 Revolution Russian Turkistan?, 1 J. ASIAN NETWORK FOR GIS-BASED HIST. STUD. 33, 37–38 (2013).


downstream dynamics as well.133 While these differing needs may seem conflicting, in fact, they present an opportunity to realize mutual gains through the exchange of benefits, as was true to an extent during the Soviet-era.

An effective transboundary solution requires coordination beyond the water sector, but in each country, separate decision-makers exist for water, agriculture, and energy.134 Because these functions are not integrated at the national level, they are unlikely to be completed at the regional level, which makes achieving a mutually beneficial transboundary water-energy-food nexus solution difficult. Moreover, decisions tend to be centralized at the national level, which impedes cooperation over water access at the local level.

A. The Legacy of “White Gold”

An understanding of the Russian and Soviet history of water management in Central Asia helps to reveal the current barriers to managing water in a cooperative, mutually beneficial manner. This history helps to identify the geographic, social, economic, and environmental factors that should be considered in determining what is “equitable and reasonable.”135

The fall of the Soviet Union in 1991 and the unexpected independence of the five Central Asian republics of Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan 136 changed the management of water resources. Administrative boundaries suddenly turned into national borders, and the two rivers that flowed into the Aral Sea became international watercourses.137 Concerned by the desiccation of the Aral Sea and with ensuring stability in the region, the donor community actively engaged with the Central Asian republics to form agreements and build regional capacity to address the crisis.138 As a result, in 1992, all five Central Asian nations entered into an agreement at a meeting in Almaty, Kazakhstan, that led to

133. Beatrice Mosello, Water in Central Asia: A Prospect of Conflict or Cooperation?, 19 J.

PUB. INT’L AFF. 151, 156–57 (1964). 134. Sorg et al., supra note 120, at 72. 135. UNWC, supra note 30, at art. 6. As noted earlier, these include: (1) geographic and hydrographic features; (2) social and economic needs; (3) dependent populations; (4) effects on other states; (5) existing and potential uses; (6) conservation and development of water resources; and (7) availability of alternative measures. Id. 136. See The Collapse of the Soviet Union, OFF. HISTORIAN,https://history.state.gov/milestones/1989-1992/collapse-soviet-union [https://perma.cc/25XK-QRLH] (last visited May 3, 2017) (for an overview of the history of the collapse of the Soviet Union).

137. Tarlock, supra note 31, at 400. 138. Boisson de Chazournes, supra note 112, at 55.


the Agreement on Cooperation in the Field of Joint Water Resources Management and Conservation of Interstate Sources (the Almaty Agreement).139 The Almaty Agreement applied to the two main rivers feeding into the Aral Sea: the Amu Darya and the Syr Darya.140 The Almaty Agreement essentially left in place the Soviet-era water allocation and schedules, which some Central Asian countries no longer perceive as equitable.141 Understanding why these allocations were initially adopted and why they are an underlying source of strife requires a review of history.

The story of water management in the Ferghana Valley, and more broadly in Central Asia, centers on cotton, which is otherwise known as “white gold.”142 The desire of the Russian Empire, and later the Soviet Union, to produce cotton for export drove the Aral Sea Basin’s development.143 During the 1800s, the vast majority of cotton was imported from the United States, but this supply was interrupted by the United States Civil War.144 Russian textile factory owners who were interested in new sources of raw cotton, urged the colonial administration to expand cotton plantations in Central Asia to reduce dependence on imported, expensive cotton from the United States.145 Having recently conquered Central Asia, Russia saw tremendous potential for cotton production in an area with a favorable climate and access to water from great rivers.146 Cotton soon became a strategic priority for the Russian Empire, which strongly promoted its cultivation in the lowlands of Uzbek and Tajik territories within the Ferghana Valley.147 About 60% of the Valley’s territory lies in Uzbekistan (4.3% of Uzbek territory), another 25% is in Tajikistan (18.2% of Tajik territory), and the remaining 15% is in Kyrgyzstan (42.2% of Kyrgyz territory).148

139. GRANIT ET AL., supra note 10, at 111; Sievers, supra note 8, at 386. 140. 1992 Almaty Agreement, supra note 114, at art. 9. 141. ZIGANSHINA, supra note 108, at 24 (“[The Almaty Agreement] validates the Soviet Schemes for Complex [Integrated] Water Resources Use and Protection, which provide for detailed regulations on water allocation and use between the Central Asian countries. However, the ‘equity’ of these norms has been questioned . . . [because of] concerns that the agreement favours a status quo.”); INT’L CRISIS GRP., supra note 12, at 3. 142. O’Hara, supra note 123, at 423. 143. Id. 144. Bichsel et al., supra note 5, at 255. 145. Ravshan Abdullaev et al., Colonial Rule and Indigenous Responses, 1816-1917, in FERGHANA VALLEY: THE HEART OF CENTRAL ASIA 69, 80 (S. Frederick Starr et al. eds., 2011) (“[H]aving found its way into Turkestan and taken full political and economic control there, Russia quickly turned the region into an agrarian and raw materials-producing appendage of the metropolis.”). 146. FRED PEARCE, WHEN THE RIVERS RUN DRY: WATER—THE DEFINING CRISIS OF THE TWENTY-FIRST CENTURY 203 (2006). 147. Bichsel et al., supra note 5, at 255. 148. Central Asia: The Complexities of the Fergana Valley, STRATFOR (Oct. 7, 2013), https://www.stratfor.com/analysis/central-asia-complexities-fergana-valley [https://perma.cc/29XZ-


Under Russian rule, the production of cotton in Central Asia rose dramatically. In the 1860s, Central Asia supplied only 4% to 7% of raw cotton to the Russian Empire, but between 1914 and 1915, that figure rose to 70%.149 In particular, the unique topography of the Ferghana Valley made it attractive for cotton production.150 Traditional agriculture was rapidly transformed with food crops taking a backseat to cotton production.151 In the words of a senior official in the region, by the start of the twentieth century, “cotton was ‘the central nerve and main point of interest and concern of the local population. At the same time it [was] also the link connecting Turkestan [the old name for Central Asia] with Moscow and the rest of Russia.’” 152 By 1913, cotton was being grown on approximately 80% to 90% of all irrigated land in the Ferghana Valley.153 Approximately 60% of all cotton grown in Central Asia came from the Ferghana Valley, even though the area comprises less than 5% of the region’s total area.154

The Russian conquest in the middle of the nineteenth century dramatically altered the dynamics in the Ferghana Valley. The conquest resulted in negative social and economic repercussions for the local population.155 It redefined Central Asia as an agricultural periphery of the

ZMS8] (explaining that the valley is an area of about 22,000 kilometers, making it approximately the size of New Hampshire). There are seven administrative provinces in the valley: three are Uzbek (Andijan, Ferghana, and Namangan), three are Kyrgyz (Batken, Osh, and Jalal Abad), and one is Tajik (Sughd, formerly Leninabad). Id. 149. Abdullaev et al., supra note 145, at 81. 150. Background, INTERSTATE COMMISSION FOR WATER COORDINATION CENT. ASIA, http://iwrm.icwc-aral.uz/history_en.htm [https://perma.cc/EDX7-4BSR] (last visited Jan. 19, 2017) (noting that during the tsarist Russia rule, the region’s irrigation represented “a set of radial irrigation systems located on tributaries of the alluvial fans of the Syr Darya, the largest of which were Soh, Isfara, Isfayram-Shahimardan, Andijan, lower Naryn, and Akbura Aravansaysky with nutrition from these rivers, between which there is massive amounts of untapped lands of Central Fergana”); Bichsel, supra note 114, at 24–25; Max Spoor, Cotton in Central Asia: “Curse” or “Foundation for Development,” in THE COTTON SECTOR IN CENTRAL ASIA: ECONOMIC POLICY AND DEVELOPMENT CHALLENGES 54, 56–57 (2007), http://www.soas.ac.uk/cccac/events/cotton-sector-in-central-asia-2005/file41585.pdf [https://perma.cc/AS8C-4FNN]. 151. Abdullaev et al., supra note 145, at 80–81. 152. Id. at 81. 153. U.N. EDUC. SCI. & CULTURAL ORG., HISTORY OF CIVILIZATIONS OF CENTRAL ASIA: TOWARDS THE CONTEMPORARY PERIOD: FROM THE MID-NINETEENTH TO THE END OF THE TWENTIETH CENTURY, VI, at 59 (Madhavan K Palat & Anara Tabyshalieva eds., 2005), http://unesdoc.unesco.org/images/0014/001412/141275e.pdf [https://perma.cc/3Z65-H2P3] [hereinafter HISTORY OF CIVILIZATIONS]. 154. Sayidfozil Zokirov & Khojamahmad Umarov, Economic Development in the Ferghana Valley Since 1991, in FERGHANA VALLEY: THE HEART OF CENTRAL ASIA 232–52, 241 (S. Frederick Starr et al. eds., 2011). 155. Abdullaev et al., supra note 145, at 80 (noting that it increased the divide between resettled colonial landowners and indigenous population, which became landless as a result).


Russian Empire and weakened the region’s traditional patterns of life.156 However, while the cropping patterns in the Ferghana Valley changed under Russian rule, the new technological approach to water management coexisted with long-standing water-management traditions.157 Since the Middle Ages, water was managed in the region by local experts who were in charge of withdrawing water from major water sources, cleaning the canals, distributing water among users, and distributing irrigation water among the water users.158 In addition, the local water users assisted with the construction, repair, and cleaning of irrigation canals and structures in an amount proportional to the area of their land.159 Many of these traditions continue today.

The Soviet Union, which came to power after the 1917 Russian Revolution, sought to expand cotton production dramatically and exploit the region’s natural resources to their maximum potential.160 Following the Soviet policy of collectivization, all peasants’ households were liquidated and incorporated into collective farms for cotton production.161 Land and water, like almost everything else, became communal property. By the end of 1932, 81% of farming households had been collectivized, and they accounted for 79% of all production.162 The development of monoculture cotton dramatically reduced the production of vegetables, melons, and berry crops.163 Because most of the arable land was used for cotton, the size of each villager’s plot shrank, which negatively impacted the families who depended on these crops for subsistence.164

To enhance cotton production, the Soviet Union also created a new system of irrigated agriculture, consisting of a network of canals and

156. Id. 157. Background, supra note 150 (noting that in 1908 Russian economist V. Shahnazarov averred that “customary water law in Turkestan was based on the community as a more solid foundation of water use than the state owned district agriculture”). 158. ASIAN DEV. BANK, PAST EXPERIENCE AND FUTURE CHALLENGES: COOPERATION IN SHARED WATER RESOURCES MANAGEMENT IN CENTRAL ASIA 180 (T. Bayarsaihan & D. McKinney eds., 2004); HISTORY OF CIVILIZATIONS supra note 153, at 97 (noting that the experts on the major water channels were known as mirobs, while those on the tributaries were known as aryk-aksakalov).

159. Compare U.N. EDUC. SCI, & CULTURAL ORG., supra note 153, at 97 (describing the collective effort required to maintain water systems), with Bichsel et al., supra note 5, at 260 (explaining the development of increased rights and responsibilities of local water users in Central Asia). 160. HISTORY OF CIVILIZATIONS, supra note 153, at 314.

161. Id. at 221. 162. Kamoludin Abdullaev & Ravshan Nazarov, The Ferghana Valley Under Stalin, 1929–1953, in FERGHANA VALLEY: THE HEART OF CENTRAL ASIA 119–39, 122 (S. Frederick Starr et al. eds., 2011).

163. HISTORY OF CIVILIZATIONS, supra note 153, at 222. 164. WORLD FOOD PROGRAMME, POVERTY AND FOOD INSECURITY IN UZBEKISTAN 5, 9 (2008), http://documents.wfp.org/stellent/groups/public/documents/ena/wfp179011.pdf [https://perma.cc/K4WE-YZQM].


reservoirs that connected the various tributaries of the Syr Darya surrounding the Ferghana Valley. 165 The presence of abundant water resources and local geography has historically enabled the creation of a diverse network of water channels without the need for dams.166 The Soviet Union undertook large-scale engineering and construction projects to link geographically separate irrigation areas to reduce local dependence on the flows of any river.167

The Soviet Union saw the intensive irrigation in Central Asia as part of “the great transformation of nature,”168 but the result was environmentally catastrophic.169 As a result of poor water management meant to stimulate cotton production during the Soviet-era, the Aral Sea shrunk dramatically and is now only 10% of its original size. 170 Inappropriate irrigation practices led farmers to apply too much water to the fields, which in turn, increased its salinity.171 The salinity of the remaining water in the Aral Sea is now three times that of normal sea water.172 Pesticides that fell to the seafloor have turned to poisonous dust that blows from the old seabed.173 Although there have been significant efforts to rehabilitate the Aral Sea, efforts have had mixed success. Water from the two main rivers that feed into the sea continues to be used primarily for irrigating cotton crops.174 However, at the time of Soviet rule, the focus was on growing cotton regardless of the environmental impact.

The Soviet irrigation complex crisscrossed the administrative republics in Central Asia that Joseph Stalin created in the 1920s to facilitate political administration and create tensions between majority and minority groups,

165. Bichsel et al., supra note 5, at 254; Mariya Pak et al., Re-Examining Conflict and Cooperation in Central Asia: A Case Study from the Isfara River, Ferghana Valley, 30 INT’L J. WATER RESOURCES DEV. 230, 235 (2014). 166. Background, supra note 150. 167. Bichsel et al., supra note 5, at 254. 168. Alla Bolotova, Colonization of Nature in the Soviet Union State Ideology, Public Discourse, and the Experience of Geologists, 29 HIST. SOC. RES. 104, 107 (2004) (“The idea of human dominance over nature, and the call for human beings to subdue, modify, and reconstruct a chaotic and meaningless nature in order to regulate natural processes supplemented the overarching goal of a total reconstruction of the social order, thus creating an intrinsic link between state policy and the ideology of conquering nature in the USSR.”). 169. Bichsel et al., supra note 5, at 259. 170. GRANIT ET AL., supra note 10, at 6.

171. The Aral Sea Crisis: Environmental Impacts, COLUM., http://www.columbia.edu/~tmt2120/introduction.htm [https://perma.cc/AM5J-7T62] (last visited Apr. 26, 2017). 172. Id. 173. Id.

174. The Aral Sea Crisis: Introduction, COLUM., http://www.columbia.edu/~tmt2120/introduction.htm [https://perma.cc/38UR-LTZE] (last visited Apr. 26, 2017).


which in turn, enhanced central control over the region.175 Although the creation of these borders fueled trends toward nationalization and contributed to ethnic tensions today,176 communities generally cooperated because they were part of one centrally administered area; transportation and irrigation lines crossed borders, and natural and economic resources were shared and cross-subsidized. 177 Moreover, for centuries in the Ferghana Valley, Uzbek, Kyrgyz, and Tajik communities lived in close proximity, and it was not uncommon for inter-ethnic marriages to take place. 178 The region was treated as a single economic entity, and disagreements over water or land resources were resolved in Moscow.179 When considering how water allocations were made between the republics, it has been suggested that Stalin deliberately created “water-rich” republics like Uzbekistan and Kazakhstan and “water-poor” republics like Kyrgyzstan and Tajikistan to create competition and reduce the potential for regional cooperation in the absence of Soviet intervention.180

175. E. Wayne Merry, The Politics of Central Asia: National in Form, Soviet in Content, in IN THE TRACKS OF TAMERLANE: CENTRAL ASIA’S PATH TO THE 21ST CENTURY 27 (Dan Burghart & Theresa Sabonis-Helf eds., 2004) (“Stalin deliberately drew republic borders in Central Asia . . . for political administration and to create majority-minority tensions to facilitate Soviet rule. The states which emerged from the failure of Soviet power in late 1991 . . . should be seen first and foremost as political systems, rather than as reflecting national identities.”); WILLIAM A. TART, AIR COMMAND & STAFF COLL., ETHNIC CONFLICT AND US CENTRAL COMMAND POLICY FOR THE CENTRAL ASIAN REPUBLICS 4 (2001) (“The Soviets used immigration and ethnic resettlement as tools to maintain the balance of power within the region in much the same way as many dictators, which limited the power of any one ethnic group while dampening ethnic tensions within the now interdependent groups.”). 176. Zamira Eshanova, Central Asia: Border Issues an 80-Year-Old Headache for Region, RADIO FREE EUROPE RADIO LIBERTY (Oct. 18, 2002, 12:00 AM), http://www.rferl.org/content/article/1101120.html [https://perma.cc/XMX4-QEYP] (noting that tension in the Ferghana Valley “is not a problem between ethnicities. They have been living together for centuries. It is a state problem that has been artificially created”); but see KATHLEEN KUEHNAST & NORA DUDWICK, WHOSE RULES RULE? EVERYDAY BORDER AND WATER CONFLICTS IN CENTRAL ASIA 7–8 (2008), http://documents.worldbank.org/curated/en/526091468012314222/pdf/448580WP0Box321IC10Whose0Rules0Rule.pdf [https://perma.cc/FY5T-J59Z] (noting that despite all the concern about conflict, however, the Central Asian region experienced only one civil war in Tajikistan and did not erupt into the ethnic nationalism and violence seen in the Balkans). 177. INT’L CRISIS GRP., CENTRAL ASIA: BORDER DISPUTES AND CONFLICT POTENTIAL, at i (2002). 178. “WHERE IS THE JUSTICE?” INTERETHNIC VIOLENCE IN SOUTHERN KYRGYZSTAN AND ITS AFTERMATH, supra note 11 (“Ethnic Kyrgyz and Uzbeks have generally lived peacefully together in southern Kyrgyzstan, in many cases inter-marrying and living in ethnically mixed areas.”); Nick Megoran, For Ethnography in Political Geography: Experiencing and Re-imagining Ferghana Valley Boundary Closures, 25 POL. GEOGRAPHY 622, 630 (2006) (noting that in some parts of the Ferghana Valley, “nationality was even harder to delineate than territory” because inter-marriage was common between Uzbeks and Kyrgyz).

179. KLAUS ABBINK ET AL., THE SYR DARYA RIVER CONFLICT: AN EXPERIMENTAL CASE STUDY 1 (2005). 180. Id.


The Soviet Union constructed a massive reservoir and hydroelectric facility on the Naryn River, which feeds into the Syr Darya, in Kyrgyzstan.181 The Toktogul Dam is the largest artificial reservoir in the Aral Sea Basin, and the water flowing through it feeds into a series of smaller reservoirs and dams.182 The water then flows into the Ferghana Valley, traversing through Tajikistan and Uzbekistan and eventually reaching Kazakhstan.183 During the Soviet-era, the primary purpose of Toktogul was to store water so that it could be released during the spring for cotton production in downstream nations.184 Although Toktogul also had the capacity to generate hydroelectric power, the vast majority of Kyrgyzstan’s energy needs were met by importing energy from downstream countries that were rich in natural resources, like Uzbekistan.185

B. Transnational Water-Energy Exchange

When the Soviet Union collapsed, the newly independent Central Asian nations essentially codified the Soviet-era water allocations in the Almaty Agreement in 1992, but not the corresponding energy exchange.186 A subsequent agreement in 1998 attempted to recreate this water-energy exchange with limited success.187 However, the current legal agreements do not provide sufficient flexibility to achieve that goal, nor do they account for the changing dynamics of irrigation in the Ferghana Valley.

The UN Watercourses Convention and the Water Diplomacy Framework serve as analytical tools for assessing the effectiveness of these treaties. The ICJ has also made clear that the provisions of the Convention are relevant to interpreting bilateral and multilateral treaties.188 In reality, however, the Central Asian nations have a mixed relationship with the treaty. When the UN Watercourses Convention was adopted at the United Nations General Assembly in 1997, Kazakhstan voted in favor, Uzbekistan abstained, and the other three nations—Kyrgyzstan, Tajikistan, and Turkmenistan—were absent. 189 Since then, Uzbekistan acceded to the

181. Id. at 3; Bichsel, supra note 114, at 26.

182. Sievers, supra note 8, at 371–72. 183. Id. at 371. 184. Id. at 371–72; Bichsel, supra note 114, at 24–25. 185. Sievers, supra note 8 at, 371–72.

186. GRANIT ET AL., supra note 10, at 19. 187. Mosello, supra note 133, at 164–67. 188. Gabc’ıkovo–Nagymaros, 1997 I.C.J. 7, supra note 29. 189. Ziganshina, supra note 107, at 1208.


Convention, but the others have not.190 As discussed below, upstream riparian states on the Syr Darya, like Kyrgyzstan, are skeptical of the Convention—in part because downstream Uzbekistan is in favor.

1. 1992 Almaty Agreement

The 1992 Almaty Agreement recognizes “the community and unity of the region’s water resources” and states that the parties “have equal rights for their use and responsibility for ensuring [the] rational use and protection” of the region’s water resources.191 It requires each state “to prevent actions on its territory which can infringe on the interests of the other Parties and cause damage to them, lead to deviation from agreed values of water discharges and pollution of water sources.”192 It also commits the parties to “solving problems of joint use of water resources on the basis of common regional principles for the whole region and equitable regulation of their consumption.”193 To achieve this goal, the Almaty Agreement created the ICWC to determine water policy and set annual water-consumption quotas and schedules for reservoir operation regimes.194

The Almaty Agreement does not per se codify the Soviet-era water allocations and schedules. Rather, it charges the ICWC with making yearly allocations.195 However, the preamble to the Almaty Agreement states that the parties agree to the terms in the treaty while also “respecting the existing patterns and principles of water allocation.”196 As a result, the ICWC has largely made allocations based on the existing Soviet-era allocations, though the BVOs maintain some discretion.197 During the Soviet-era, the Syr Darya allocations pursuant to Protocol No. 413 of 1984 were: 46% of total surface flow to Uzbekistan, 44% to Kazakhstan, 8% to Tajikistan, and 2% to Kyrgyzstan.198 In April of 1992, two months after its

190. Id. (noting, however, that Kazakhstan and Turkmenistan have already acceded to the UN Watercourses Convention, which has stricter regulations). 191. 1992 Almaty Agreement, supra note 114, at art. 1. 192. Id. at art. 3; Jeremy Allouche, The Governances of Central Asian Waters: National Interests Versus Regional Cooperation, DISARMAMENT F., Nov. 2007, at 1, 47. 193. 1992 Almaty Agreement, supra note 114, at pmbl.; see also Ziganshina, supra note 111, at 24. 194. 1992 Almaty Agreement, supra note 114, at arts. 7–8. 195. Id.

196. 1992 Almaty Agreement, supra note 114, at pmbl. 197. INT’L. CRISIS GRP., supra note 127, at 3 (“The ICWC sets quotas, and the BVOs monitor their implementation. The [Almaty] agreement maintained Soviet-era levels but gave the BVOs the ability to adjust allocations up or down by 15 per cent.”).

198. THE WORLD BANK, WATER ENERGY NEXUS IN CENTRAL ASIA: IMPROVING REGIONAL COOPERATION IN THE SYR DARYA BASIN 8 (2004),


signing, the Almaty Agreement allocated 51.7% of the river’s water to Uzbekistan, 38.1% to Kazakhstan, 9.2% to Tajikistan, and 1% to Kyrgyzstan.199 According to Dinara Ziganshina, a legal expert on the region, the Almaty Agreement validates the Soviet Schemes for Complex [Integrated] Water Resources Use and Protection, and the agreement generally codifies the Soviet-era allocations.200

The Almaty Agreement incorporates elements of international water law, but in a way that inhibits a mutual-gains approach to water management. The phrases “rational use and protection” and “equitable regulation” in the Almaty Agreement appear similar to the concept of “equitable and reasonable utilization” in the UN Watercourses Convention.201 However, to meaningfully promote a mutual-gains approach to water management, the concept cannot be static. Rather, the treaty needs to provide a mechanism for allowing the concept of “equitable regulation” to change with time, just as the concept of “equitable and reasonable utilization” under the UN Watercourses Convention refers to factors such as: geographic and hydrographic features; social and economic needs; dependent populations; effects on other states; existing and potential uses; conservation and development of water resources; and availability of alternative measures.202 In contrast, the Almaty Agreement provides no mechanism for adjustments when those allocations no longer seem equitable. 203 The ICWC could theoretically adjust the allocations and schedules to be consistent with the idea of “equitable and reasonable utilization.” However, the ICWC has not made such adjustments because the “no harm” principle in the Almaty Agreement has been interpreted to codify the Soviet-era allocations.

http://siteresources.worldbank.org/INTUZBEKISTAN/Resources/Water_Energy_Nexus_final.pdf [https://perma.cc/T4D6-JSUP]. 199. D.P. Bedford, International Water Management in the Aral Sea Basin, 21 WATER INTERNATIONAL 63–69, 67 (1996). 200. ZIGANSHINA, supra note 112, at 91; see also Urs Luterbacher & Ellen Wiegandt, Cooperation or Confrontation: Sustainable Water Use in an International Context, in FRESH WATER AND INTERNATIONAL ECONOMIC LAW 11–34, 26 (Edith Brown Weiss et al. eds., 2005).

201. 1992 Almaty Agreement, supra note 114, at pmbl.; UNWC, supra note 30, at art. 5. 202. See UNWC, supra note 30, at art. 6 (setting forth factors to be considered in an equitable and reasonable determination); 1992 Almaty Agreement, supra note 114. 203. Ziganshina, supra note 111, at 24 (“[T]he 1992 Almaty Agreement validates the Soviet Schemes for Complex Water Resources Use and Protections that provide for detailed regulations on water allocation (percentage) and use between the CARs. However, neither the 1992 Agreement nor the Schemes navigate cases when the ‘equity’ of these norms is questioned.”); Sorg et al., supra note 120, at 73 (“The agreements currently framing water governance and management in the Syr Darya basin do not address the question of equitable water allocation at the basin level, which still favours irrigation according to past Soviet priorities.”); but see Sievers, supra note 8, at 392 (noting that most water professionals in the region consider the Soviet-era regime of water allocations and energy swaps to have been equitable).


The Almaty Agreement codifies a more stringent version of the no-significant-harm principle than the UN Watercourses Convention, which further inhibits a mutual-gains approach to water management. Article 3 states that parties are “to prevent actions on its territory which can infringe on the interests of the other Parties and cause damage to them, lead to deviation from agreed values of water discharges and pollution of water sources.”204 The UN Watercourses Convention only requires parties to “take appropriate measures” to prevent “significant harm,” a concept that is in line with the “good neighborliness” principle.205 In contrast, the Almaty Agreement does not provide any minimum threshold and suggests that any amount of harm, however minimal, would be a violation of the treaty unless the action was taken in concert with all the parties (and with the consent of the affected state).206 Moreover, by explicitly tying harm to “deviation from agreed values of water discharges,” this provision also acts as a roadblock to discussions of whether such allocations continue to be equitable and reasonable for all the parties. 207 In other words, the 1992 Almaty Agreement has stricter and less flexible requirements than the UN Watercourses Convention.208 This helps to explain why the ICWC has effectively allocated water in accordance with the former Soviet-era regime.

The 1992 Almaty Agreement also does not contain adequate provisions addressing the need to notify other states concerning planned measures209 because it does not contemplate any measures that might infringe on another state’s interests or cause them harm.210 It also does not discuss the need for an environmental impact statement, as suggested by the UN Watercourses Convention and required by customary international law.211

Managing water in a mutually beneficial way requires building flexibility into a treaty so that the parties can collaboratively adapt to changing circumstances. The notion of equitable and reasonable utilization is not static but adapts with time. Circumstances have changed in the

204. 1992 Almaty Agreement, supra note 114, at art 3.

205. G.A. Res. 51/229, annex, art. 7 (July 8, 1997). 206. 1992 Almaty Agreement, supra note 114, at art 3; see also Ziganshina, supra note 111, at 26–27 (finding that Article 3 of the Almaty Agreement “does not touch the threshold of harm that must be prevented, such as ‘significant’, ‘appreciable’, ‘substantial’ or ‘serious’”).

207. 1992 Almaty Agreement, supra note 114, at art. 3. 208. Ziganshina, supra note 111, at 28. 209. But see Convention on Environmental Impact Assessment in a Transboundary Context art. 5, Feb. 25, 1991, 1989 U.N.T.S. 309 (providing more detailed provisions regarding notification and consultation for planned projects). Kazakhstan and Kyrgyzstan are parties to this Convention. Id. 210. 1992 Almaty Agreement, supra note 114, at art 3. 211. UNWC, supra note 30, at art. 12; see Pulp Mills, 2010 I.C.J. 14, at ¶ 204 (“[I]t may now be considered a requirement under general international law to undertake an environmental impact assessment . . . .”).


region, but as the treaty essentially adopts a scheme from a different era, it is difficult to alter the terms.

The relationship between Uzbekistan and Kyrgyzstan mirrors that of the classic upstream-downstream relationship. As the downstream riparian, Uzbekistan favors the no-significant-harm principle because the 1992 Almaty Agreement promoted the Soviet-era allocation. In contrast, Kyrgyzstan no longer views the de facto Soviet-era water scheme as equitable because of changing needs and pressures in its country.212 A growing body of literature also explores the way regional power dynamics influence control over water, as illustrated by terms such as “hydro-hegemony”213 or “hydro-egoism.”214 In Central Asia, many commentators perceive the downstream countries, especially Uzbekistan, as the regional hydro-hegemons. 215 However, there are others who believe that Kyrgyzstan’s position as an upstream riparian gives it crucial leverage over the downstream countries.216

The Almaty Agreement only addresses water, but not the corresponding energy exchange. After achieving independence from the Soviet Union, the hydrocarbon-rich downstream countries raised the price of gas sold to the hydrocarbon-poor upstream countries. 217 As a result, Kyrgyzstan experienced chronic electrical and heating shortages in the winter and began to release more water from the Toktogul reservoir to generate hydropower in the early 1990s. 218 Releasing water from the reservoir 212. See ERIKA WEINTHAL, WATER CONFLICT AND COOPERATION IN CENTRAL ASIA 6 (2006) (noting that “with independence, as each country began to redefine its own economic priorities, it became evident that their respective goals conflicted regarding for what purposes water should be used”), http://hdr.undp.org/sites/default/files/weinthal_erika.pdf [https://perma.cc/C9CM-8PZQ]. 213. Mark Zeitoun & Jeroen Warner, Hydro-Hegemony – A Framework for Analysis of Trans-Boundary Water Conflicts, 8 WATER POL’Y 435, 436 (2006); Zeitoun & Allan, supra note 62, at 9; Zeitoun & Mirumachi, supra note 2, at 300. 214. Andrea K. Gerlak et al., Hydrosolidarity and International Water Governance, 14 INT’L NEGOT. 311, 312 (2009). 215. Sorg et al., supra note 120, at 72 (noting that “downstream countries are seen to have greater material and non-material power than upstream countries, thus producing asymmetrical power relationships”); Tarlock, supra note 31, at 374 (finding that “conflicts among the central Asian nations over the Amu Darya and Syr Darya rivers are examples of how upstream states can be victimized by powerful downstream ones”); Heltzer, supra note 116, at 301 (describing the 1992 Agreement as creating an “economic windfall for the downstream nations. The new downstream nations’ coffers were being filled with money made from cotton, and they no longer had to provide their fossil fuel resources for free”). 216. Teasley & McKinney, supra note 85, at 482 (“Geographic asymmetry (i.e., upstream location) provides Kyrgyzstan with influence over the downstream countries, albeit, at the cost of angering those countries because of winter flooding and summer irrigation deficits.”). 217. Bichsel, supra note 114, at 25. 218. Teasley & McKinney, supra note 85, at 481–82 (“The transition to market-based pricing for fuels and other resources and a struggling economy caused Kyrgyzstan to increase winter releases from Toktogul to generate electricity over the ensuing years, decreasing water availability for summer irrigation downstream during drought years.”).


flooded the downstream countries in winter and made less water available for irrigation in the spring.219 This is still at the heart of the problem.220

Kyrgyzstan has been trying to expand its hydropower production capacity.221 Despite great potential, only 8% of the region’s hydropower prospective capacity has been developed.222 Building on Soviet-era plans, Kyrgyzstan is planning two large dams (known as Kambar-Ata I and Kambar-Ata II) upstream of the Toktogul reservoir on the Naryn river, which feeds into the Syr Darya.223 The dams would enable Kyrgyzstan to produce electricity in the winter, while allowing the water in Toktogul to be reserved for summer irrigation downstream.224 Excess electricity could be sold because the required grid already exists.225 However, the price for these dams is steep: approximately $3 billion.226

Until recently, Russian financing enabled Kyrgyzstan to move forward with the Kambar-Ata dam projects, which provided Russia with an opportunity to influence the larger and more powerful downstream countries of Uzbekistan and Kazakhstan.227 It also helped Russia keep China’s growing role in check.228 The geopolitical balance of power in the region, however, is now shifting as Russia’s economy has faltered. As of early 2016, the Kyrgyzstan-Russian hydropower deal fell through, leading

219. Bichsel, supra note 114, at 25–26 (noting that the flooding results because “only a limited quantity of water can be retained in facilities such as the Kairakkum reservoir”). 220. See Bichsel, supra note 114, at 26 (explaining the issues stemming from the control and value of water); THE WORLD BANK, supra note 198, at 10–11. 221. Putz, supra note 131; Bruce Pannier, BOO: It’s Scarier Than You Think, RADIO FREE EUROPE RADIO LIBERTY (Feb. 3, 2014), http://www.rferl.org/content/tajikistan-kyrgyzstan-hydropower-russia/25251952.html [https://perma.cc/H3KZ-N77A]. 222. GRANIT ET AL., supra note 10, at 6. 223. Bichsel, supra note 114, at 26; Heltzer, supra note 116, at 304 n.123. 224. Bichsel, supra note 114, at 26. 225. Id.; Putz, supra note 131. 226. Bichsel, supra note 114, at 26. 227. Baktybek Beshimov & Ryskeldi Satke, The Struggle for Central Asia: Russia vs China, AL JAZEERA (Mar. 12, 2014, 11:25 AM), http://www.aljazeera.com/indepth/opinion/2014/02/struggle-central-asia-russia-vs-201422585652677510.html%20 [https://perma.cc/T4QE-YKSK]; Pannier, supra note 221; but see Putz, supra note 131 (suggesting that Russia may no longer have the funds to continue financing construction). 228. ANDREW SCOBELL ET AL., CHINA’S STRATEGY TOWARD SOUTH AND CENTRAL ASIA 9 (2014), http://www.rand.org/content/dam/rand/pubs/research_reports/RR500/RR525/RAND_RR525.pdf [https://perma.cc/52YR-NGF4] (noting that Central Asia is vital to China’s interests for security, economic and geopolitical reasons); see also Beshimov & Satke, supra note 227 (noting that China is already a dominant trading partner and investor in the region).


to questions about the future of these projects.229 China has emerged as a possible funder, which would enhance its strategic position in the region.230

Uzbekistan objected to the upstream dam-building projects on grounds that it would give Kyrgyzstan even greater control over the flow of the Syr Darya. 231 Uzbekistan insists that smaller hydropower plants should be constructed.232 In addition to concerns about financial viability, there are also environmental impacts to consider, especially because climate-change-induced glacial melt could ultimately reduce flows and make the projects obsolete in a generation.233 Customary international law requires that an environmental impact assessment be conducted, but no such requirement exists within the Almaty Agreement or the regional agreement on the Syr Darya discussed in the next section. 234 Kyrgyzstan has undertaken a feasibility study;235 but, even if it accounted for the true environmental impacts, it is not clear that Uzbekistan would trust those results. This is an example where the Water Diplomacy Framework’s emphasis on joint fact finding and scenario planning would be helpful as a means of overcoming mistrust.

The shifting balance of power in Central Asia reduces the trust among the states as well as their ability to collaboratively adapt to changing circumstances. This leaves the entire region with uncertain prospects for harnessing its abundant hydropower potential.

2. 1998 Syr Darya Agreement

While the Almaty Agreement essentially maintained the status quo with respect to Soviet-era water allocations, it also excluded the other key

229. Bruce Pannier, Kyrgyzstan Revokes Hydropower Deal with Russia, RADIO FREE EUROPE RADIO LIBERTY (Jan. 20, 2016), http://www.rferl.org/content/qishloq-ovozi-kyrgyzstan-energy-dreams/27499926.html [https://perma.cc/TXM5-84V9]. 230. Anna Lelik, Kyrgyzstan: China Replaces Russia as Hydropower Investor, EURASIANET (Apr. 7, 2016, 11:26 AM), http://www.eurasianet.org/node/78201 [https://perma.cc/XY9X-S9N3]. 231. INT’L. CRISIS GRP., supra note 127, at 20. 232. Julia Kostenko, Uzbekistan Insists on Construction of Small Hydropower Plants on Trans-Border Rivers, 24. KG/NEWS AGENCY (July 11, 2016, 10:04 AM), https://24.kg/archive/en/news-stall/181133-news24.html/ [https://perma.cc/NPZ7-7A9A]. 233. Bichsel, supra note 114, at 26.

234. See Agreement on the Use of Water and Energy Resources of the Syr Darya Basin, Kaz.-Kyrg.-Uzb., Mar. 17, 1998, http://iea.uoregon.edu/treaty-text/1998-WaterEnergyResourcesSyrDaryaBasinENtxt [https://perma.cc/JS34-23DU] (noting that there is no provision requiring an Environmental Impact Assessment); see Agreement on Cooperation in the Field of Joint Management on Utilization and Protection of Water Resources from Interstate Sources, Kaz.-Kyrg.-Taj.-Turkm.-Uzb., Feb. 18, 1992, http://www.icwc-aral.uz/statute1.htm [https://perma.cc/KTS2-9QNH] (noting that there is no provision requiring an Environmental Impact Assessment). 235. INT’L. CRISIS GRP., supra note 127, at 6.


elements of the old barter system, namely, the transfer of energy to downstream countries and the costs of maintaining water-storage infrastructure. With support from the United States Agency for International Development in 1998, Kyrgyzstan, Kazakhstan, and Uzbekistan entered into the Agreement on the Use of Water and Energy Resources of the Syr Darya Basin (the 1998 Syr Darya Agreement), which Tajikistan later joined in 1999.236 The 1998 Syr Darya Agreement states that the parties are seeking a “precise and fair solution to use the water and energy resources of the Syr Darya basin in accordance with the precedents of international law.”237

The 1998 Syr Darya Agreement, in some ways, attempted to return to the Soviet-era water-energy arrangements, where the downstream countries provided coal, gas, electricity, fuel oil, or other goods or services in exchange for upstream water storage by Kyrgyzstan.238 The Agreement requires the parties to negotiate an annual release schedule from Toktogul, and provides that any surplus energy generated as a result of the irrigation period releases and not needed by Kyrgyzstan be delivered to Uzbekistan and Kazakhstan.239 It further dictates that the downstream countries should compensate upstream countries in the form of “energy resources, such as coal, gas, electricity and fuel oil, and the rendering of other types of products (labor, services), or in monetary terms as agreed upon, for annual and multi-year water irrigation storage in the reservoirs.”240

The 1998 Syr Darya Agreement had the potential to promote a mutually beneficial, cooperative approach to water management. The agreement 236. Bichsel, supra note 114, at 26; Boisson de Chazournes, supra note 112, at 53; see also Sievers, supra note 8 at, 387 n.68 (referring to the agreement as 1998–2003 Framework Agreement because under Article 12, the “Agreement is valid for a period of five years and will be automatically renewed for additional five-year periods, if no written notice on the termination of the Agreement is given six months in advance from any Party”); Agreement on the Use of Water and Energy Resources of the Syr Darya Basin, supra note 234. 237. Id.; see also Ziganshina, supra note 111, at 24 (translating the same clause as the parties seek an “equitable solution in utilization of water and energy resources . . . in accordance with norms of international law”). 238. Sievers, supra note 8, at 385 (finding that “to the extent that token regional cooperation does exist, this cooperation is largely a remnant of the days when Minvodkhoz, the Soviet water ministry, claimed jurisdiction over all of Central Asia, rather than an example of the newly independent states of Central Asia building new post-Soviet bridges to create legal and technical solutions”). 239. Agreement on the Use of Water and Energy Resources of the Syr Darya Basin, supra note 234, at art. IV; Teasley & McKinney, supra note 85, at 482; Hodgson, supra note 123, at 3; see Bichsel, supra note 114, at 29 (“Yearly barter agreements remain the central mechanism to determine water and energy transfers between upstream and downstream countries.”). 240. Agreement on the Use of Water and Energy Resources of the Syr Darya Basin, supra note 234, at art. IV; Teasley & McKinney, supra note 85, at 482; Heltzer, supra note 116, at 312 (“The 1998 Framework Agreement, therefore, explicitly provides that downstream nations must compensate Kyrgyzstan for two things: (1) water storage – curbing of non-growing season water release; and (2) potential energy supplies lost because of water storing.”).


attempted to address the differing needs of the downstream countries, which prefer water discharges in summer to irrigate cotton fields, and of upstream Kyrgyzstan, which otherwise prefers to release water in the winter to generate electricity.241 It has been recognized as an effort to promote a mutually beneficial arrangement because of the differing needs of riparian states.242

However, the 1998 Syr Darya Agreement has not been effective.243 It instructs the parties to make coordinated decisions on an annual basis, instead of a multi-year basis. 244 The agreements take a long time to negotiate, resulting in uncertainties. As a result, there is inadequate guidance on different scenarios, such as what might happen in a wet year versus a dry year. 245 Although the idea of “equitable and reasonable utilization” might be implicit in the exchange, this is not expressly stated. In addition, like the Almaty Agreement, the 1998 Syr Darya Agreement codifies a stringent version of the no-harm rule, stating that “parties will take no actions which will violate the agreed-upon water use regimes and energy deliveries.”246 Moreover, the parties agreed that “the operation, maintenance and reconstruction of water and energy facilities shall be covered in accordance with the ownership of the property referred to in the balance sheet and the legal right of ownership.”247 This has since been a source of contention for Kyrgyzstan because it is solely responsible for the costs of upkeep. In 2002, for example, maintenance of the Toktogul dam and reservoir cost between $15 million and $27 million per year.248

The 1998 Syr Darya Agreement has not removed conflict and tensions in the region,249 in part, because both sides violated the provisions.250 The

241. Sorg et al., supra note 120, at 71–72 (“Toktogul is the main valve to the entire river system and accounts for 91% of electricity production in Kyrgyzstan.”). 242. See, e.g., LEB, supra note 32, at 19 (“The conflicting demands eventually became a catalyst for a cooperation agreement among the three riparian States of the Syr-Darya Basin.”). 243. WORLD BANK, supra note 198, at 10–11. 244. Id. 245. For example, in 2014 and 2015, Kyrgyzstan experienced low rainfall and wound up importing electricity from Tajikistan in order to save water in Toktogul reservoir for winter, when demand for electricity increases greatly. Кыргызстан может начать импорт электроэнергии из Таджикистана Июль [Kyrgyzstan May Start Importing Electricity from Tajikistan], KYRGYS AGENCY RADIO SVOBODNAIA EVROPA [RADIO FREE EUROPE RADIO LIBERTY] (July 7, 2016), http://rus.azattyk.org/a/27842890.html [https://perma.cc/M2XP-83JY]. 246. Agreement on the Use of Water and Energy Resources of the Syr Darya Basin, supra note 234, at art. III. 247. Id. at art. VII; see also Heltzer, supra note 111 at, 311–12. 248. INT’L CRISIS GRP., supra note 12, at 16; but see Sievers, supra note 8, at 372 (“Kyrgyzstan has unilaterally footed the annual $25 million bill for maintenance of Toktogul, the largest artificial reservoir in the Aral Sea Basin, and the related infrastructure.”). 249. Sorg et al., supra note 120, at 71–72 (“A fundamental driver of tensions in the Syr Darya basin derives from the operating regime of the basin’s largest reservoir, the Toktogul.”); Sievers,


agreement requires the riparian countries to agree to the water allocations on an annual basis, which often leads to heated arguments or failure to reach or maintain agreements.251 Moreover, because the agreement only provided for energy compensation by countries that use upstream water storage, less fuel and fewer supplies were often delivered in wet years than had been negotiated.252 As a result, Kyrgyzstan increased its winter releases of water from Toktogul in wet years to meet its own energy needs, leading to flooding downstream and less irrigation water in the summer months.253 These problems arose because the Agreement did not account for yearly hydrological fluctuations, nor did it compensate Kyrgyzstan for reservoir storage and infrastructure costs; rather, only releases were valued.254 The parties have been negotiating a new agreement,255 but the prospects for a new solution are slim.256

The shortcomings of the Syr Darya Agreement become clear when examined from the perspective of the Water Diplomacy Framework and the UN Watercourses Convention. The legal agreement focuses only on the actual storage, rather than considering the entire costs of water infrastructure upkeep, which impedes the parties from developing a mutually beneficial solution. The parties have not developed an appropriate joint-management plan that takes into account variations in weather patterns. As seasonal variations are predictable to a certain degree, they could determine in advance what would happen during a wet versus a dry supra note 8, at 388 (“Public allegations of breached duties are now among the most common of disputes between the Syrdarya states.”). 250. INT’L CRISIS GRP., supra note 12, at 13. 251. Agreement on the Use of Water and Energy Resources of the Syr Darya Basin, supra note 233, at art. II; Sievers, supra note 8, at 372–74. 252. Teasley & McKinney, supra note 85, at 482; INT’L CRISIS GRP., supra note 177, at 13; Sorg et al., supra note 120, at 71–72. 253. Teasley & McKinney, supra note 85 at 482; INT’L CRISIS GRP., supra note 12, at 14 (noting that Uzbekistan has had problems with its gas routes and that it produces a “wet” form of gas that can freeze in the pipes in the winter); MCCAFFREY, supra note 27, at 416. 254. Sorg et al., supra note 120, at 71–72 (“The abstention of Uzbekistan from recent agreements has, however, greatly undermined this approach.”); Teasley & McKinney, supra note 85, at 482. 255. ASIAN DEV. BANK, FACILITATING REGIONAL WATER POLICY DISCUSSION AND BUILDING REGIONAL WATER MANAGEMENT CAPACITY: FINAL REP. VOLUME II, at 78 (2007), http://www.adb.org/sites/default/files/project-document/65377/36516-reg-tacr.pdf [https://perma.cc/P8N4-JSAS] (discussing the “Draft Agreement on the Use of Water and Energy Resources in the Syrdarya basin”); Teasley & McKinney, supra note 85, at 482 (“The proposed revisions follow a water- and energy-sharing framework similar to the 1998 agreement, but they also consider storage (not just releases) in Toktogul Reservoir along with hydropower production and transfer from Tajikistan’s midstream Kayrakum Reservoir.”). 256. Sorg et al., supra note 120, at 73 (“The rights claimed by upstream countries to be compensated for storage and supply of irrigation water as well as for the operation and maintenance of the water infrastructure have been persistently opposed by down-stream governments stating their entitlement to the free use of naturally flowing water.”).


year and what the compensation should be. As McCaffrey has stressed, equitable and reasonable utilization is best understood as a process that changes over time. 257 Thus, the concept of equitable and reasonable utilization requires that the parties reevaluate the changing circumstances—not that they lock into one situation that cannot be changed.

Although Kyrgyzstan entered into the 1998 Syr Darya Agreement, it subsequently passed a law that expressly conflicted with its treaty obligations.258 Because the Syr Darya originates in Kyrgyz mountains, lawmakers in Kyrgyzstan sought to capitalize on the value that “their” water provides to downstream countries in the form of irrigated agriculture.259 As a result, in 2001, Kyrgyzstan adopted a new law entitled “On the Interstate Use of Water Installations, Water Resources and Hydro Facilities in the Kyrgyz Republic,”260 which sought to impose charges on downstream countries using water originating in Kyrgyzstan from the Syr Darya.261 The goal was to replace the barter arrangements with cash compensation.262 The law declares that water originating within its borders is the property of Kyrgyzstan that should be sold at world prices.263 Moreover, other countries in the region should compensate Kyrgyzstan for costs associated with operating its water facilities.264 The new law also entitled Kyrgyzstan to cut off water supplies to downstream countries if they do not provide payment.265

The Kyrgyz position has heightened tensions with downstream countries, which have contested this idea and argued that Kyrgyzstan adds no value to the water.266 At so-called “world prices,” Kyrgyzstan has argued

257. MCCAFFREY, supra note 27, at 404–05.

258. See generally Закон Кыргызской Республики О Межгосударственном использовании водных объектов, водных ресурсов и водохозяйственных сооружений Кыргызской Республики [Law of the Kyrgyz Republic: On the Interstate Use of Water Bodies, Water Resources and Water Management Facilities of the Kyrgyz Republic] July 23, 2001, Нормативные правовые акты [Normative Legal Acts] 2001, No. 76 (Kyrg.) (dictating the requirements of the 2001 law that contradicts the Syr Darya agreement). 259. Bichsel, supra note 114, at 26. 260. Закон Кыргызской Республики О Межгосударственном использовании водных объектов, водных ресурсов и водохозяйственных сооружений Кыргызской Республики [On the Interstate Use of Water Installations, Water Resources and Hydro Facilities in the Kyrgyz Republic], Нормативные правовые акты [Normative Legal Acts] 2001, No. 76 (Kyrg.). 261. Slim, supra note 11, at 147; Tarlock, supra note 31, at 400 (“In an attempt to recoup lost revenue, Kyrgyzstan passed a law in 2001 requiring downstream states to pay for water issuing from within Kyrgyzstan’s boundaries.”); see also Tarlock & Wouters, supra note 18, at 532. 262. Heltzer, supra note 116, at 295. 263. Sievers, supra note 8, at 389–90. 264. Id. 265. Id. at 392. 266. Sorg et al., supra note 120, at 72 (“Tensions started surfacing particularly from 2001 onwards, when the Kyrgyz government made an attempt to introduce water-pricing by supplying water


that it exports $350 million in water annually to China and the Central Asian states. 267 In response, Uzbekistan has alleged that downstream countries experience $770 to $800 million in damages as a result of infrastructure damage, flooding, and salinization. 268 Moreover, the President of Uzbekistan has argued that “water belongs to God,” while leaders of Kazakhstan have claimed that the law “does not have any legal foundation . . . it is impossible to set a price for irrigation water . . . it contradicts international standards . . . it is unacceptable for Kazakhstan.”269 While the law has never been implemented by Kyrgyzstan’s Ministry of Foreign Affairs, the idea remains alive in Kyrgyzstan and continues to be a source of tension.270

The 2001 law builds on the idea of water as an economic good. Within water-management circles, it is often said that water is not properly managed because it is not valued as an economic commodity; however, this idea is not without controversy given the many social dimensions of water.271 Kyrgyzstan has embraced the idea of water as an economic commodity272 by adopting water user associations and other reforms that are promoted by international agencies.273 Kyrgyzstan has sought to apply the concept of water as an economic good to international waters. Arguably, if pricing water improves efficiency within a national context, it could also have the same result across boundaries.274 The seminal idea from the Dublin Principles of treating water as both an economic and social to downstream countries only on a ‘paid’ basis and operation and maintenance costs of the water infrastructure should be shared.”); Teasley & McKinney, supra note 85, at 482. 267. Sievers, supra note 8, at 390; GRANIT ET AL., supra note 10, at 10 (“The upstream countries have argued that water should be treated as a commodity and paid for by the downstream countries. The downstream countries have, in turn, adopted the international legal foundation that water in an international river is a common good to be shared by all riparians.”); but see Heltzer, supra note 116, at 296 (noting that Kyrgyzstan needs to spend $25 million yearly to maintain infrastructure). 268. Sievers, supra note 8, at 373, 390 (also finding that the Syr Darya agreements “did not prevent Kazakhstan’s most important southern agricultural district from losing more than twenty percent of its 2000 cotton crop because of lack of water”). 269. Sorg et al., supra note 120, at 73. 270. Id. 271. See Dublin Statement on Water and Sustainable Development, International Conference on Water and the Environment, princ. 4 (1992) (stating that water should have an economic value); Sharmila L. Murthy, The Human Right(s) to Water and Sanitation: History, Meaning and the Controversy over Privatization, 31 BERKELEY J. INT’L L. 89, 93 (2013); see generally FARHANA SULTANA & ALEX LOFTUS, THE RIGHT TO WATER: POLITICS, GOVERNANCE AND SOCIAL STRUGGLES (2012) (for an overview of water rights); see generally KAREN BAKKER, PRIVATIZING WATER: GOVERNANCE FAILURE AND THE WORLD’S URBAN WATER CRISIS (2010) (for an overview of the privatization of water). 272. Sorg et al., supra note 120, at 73; Heltzer, supra note 116, at 309. 273. JENNIVER SEHRING, WATER USER ASSOCIATIONS (WUAS) IN KYRGYZSTAN: A CASE STUDY ON INSTITUTIONAL REFORM IN LOCAL IRRIGATION MANAGEMENT 7 (2005). 274. Heltzer, supra note 116, at 296 (“By charging a fee for water rather than bartering for water, Kyrgyzstan encourages efficiency from its downstream users.”).


good275 contradicts the statement of the Kazakh leader that it is “impossible to set a price for irrigation water.”276

International law increasingly recognizes the economic value of water. Water pricing and water transfers are now perceived as a way to use water more efficiently, even across state borders.277 Manufactured products that contain water, like bottled drinks, and agricultural products made with water are clearly subject to international-trade regimes, but the status of bulk transfers of water across state boundaries, as contemplated by Kyrgyzstan, is less clear. 278 Nevertheless, several examples exist. For example, the Kingdom of Lesotho sells water to the Republic of South Africa pursuant to a treaty, Israel has agreed to purchase water from Turkey, and Bolivia permits the government to export water to foreign users.279 With growing emphasis on the promotion of efficient and equitable uses of water, water transfers are likely to increase in the future.280 Yet, as urged by Edith Brown Weiss, a more cautious approach to bulk transfers is needed than can be provided by the international trade system because water is critical for human life and ecosystems.281

In light of this precedent, is Kyrgyzstan’s position that it is entitled to sell “its” water contrary to international water law? Kyrgyzstan is not entitled to charge for water from the Syr Darya simply because the headwaters of this river arise within its territory. International law rejects this extreme position of territorial sovereignty, just as it rejects the opposite principle of territorial integrity.282 Instead, international water law embraces the concept of limited territorial sovereignty, as reflected in the principle of equitable and reasonable utilization of a shared watercourse.283

A riparian state, however, should be entitled to sell its equitable and reasonable share of water. In other words, if Kyrgyzstan’s yearly allocation of water from the Syr Darya, as set by the ICWC pursuant to the Almaty Agreement, is equitable and reasonable, then it could theoretically sell its 275. See generally PETER ROGERS, RAMESH BHATIA & ANNETTE HUBER, WATER AS A SOCIAL AND ECONOMIC GOOD: HOW TO PUT THE PRINCIPLE INTO PRACTICE (1998) (providing an in-depth economic analysis of water as a good). 276. Sorg et al., supra note 120, at 73. 277. A. Dan Tarlock, Water Transfers: A Means to Achieve Sustainable Water Use, in FRESH WATER AND INTERNATIONAL ECONOMIC LAW 35, 38 (Edith Brown Weiss et al. eds., 2005); Edith Brown Weiss, Water Transfers and International Trade Law, in FRESH WATER AND INTERNATIONAL ECONOMIC LAW 61, 63 (Edith Brown Weiss et al. eds., 2005). 278. Weiss, supra note 277, at 62. 279. Id. at 74–75. 280. Tarlock, supra note 277, at 58.

281. Id. at 62. 282. MCCAFFREY, supra note 27, at 416. 283. This concept is often seen as deriving from the Lac Lanoux arbitration. Lac Lanoux (Spain v. Fr.), 12 R.I.A.A. 281 (Perm. Ct. Arb. 1956).


share of water to downstream nations or store it for future use.284 For example, Arizona has taken steps akin to this idea when it created the Arizona Water Bank to store the state’s unused share of Colorado River water that had been allocated to it by agreement.285 The practical challenge on the Syr Darya is that the countries would need to agree on what equitable and reasonable means; Uzbekistan would no doubt point to the existing allocations, while Kyrgyzstan would argue it is entitled to more.

At the heart of the Kyrgyz law was a desire to demand a greater share of the costs of reservoir and dam infrastructure maintenance, which is consistent with international law.286 Increasingly, it is widely regarded as a key method for sharing benefits of a watercourse. Yet, the 2001 Kyrgyz law clearly contradicts the 1998 Syr Darya Agreement, where Kyrgyzstan agreed to bear the costs of infrastructure maintenance and acknowledged that energy has a cost.287 This has created a legal and political conundrum.

Several experts on the region offer insightful views on the politics surrounding these international agreements, specifically the role of international donors. Eric Sievers observes that after the fall of the Soviet Union, the states within the Central Asian region were generally enamored with the idea of international law because they saw it as consistent with the Western values they were now trying to embrace.288 However, as they learned more about the United States’s relationship with international law, for example, they became more skeptical. Moreover, Sievers argues that “the Syr [D]arya agreements also suggest that mobilization of Central Asian political will in water issues, on closer inspection, turns out more often than not to be a gesture intended for the donor community.”289 Along this point, Erica Weinthal describes how some Central Asian nations received side payments from donors and other transnational actors to incentivize their 284. Sievers, supra note 8, at 392; Heltzer, supra note 116, at 295–96 (“[C]harging downstream nations cash for water is unprecedented in the international community.”). 285. Background, ARIZ. WATER BANKING AUTHORITY, http://www.azwaterbank.gov/Background/ [https://perma.cc/N4G9-KA5X] (last visited Jan. 20, 2017); Margaret Bushman LaBianca, Note, The Arizona Water Bank and the Law of the River, 40 ARIZ. L. REV. 659, 659 (1998) (noting that California and Nevada needed more water than they were entitled to, while Arizona had not yet exercise its full entitlement, and due to uncertainty about water transfers between states, Arizona created the Water Bank as a way to protect its entitlement and future uses). 286. Heltzer, supra note 116, at 310 (arguing that by passing the 2001 law, “Kyrgyzstan [was] attempting to change the form of payment for its water storage, infrastructure upkeep, and loss of hydropower generation during the winter months from the barter arrangements already in place to a fee structure”). 287. Sievers, supra note 8, at 372.

288. Eric Sievers & Oleg Tsaruk, The Convention to Combat Desertification: An NGO Perspective from Central Asia, ARIDLANDS NEWSL., Spring–Summer 1997. 289. Id. at 388; see also Bichsel, supra note 114, at 28 (“Many of the international funders and agencies were not organized enough to assure substantial outcomes, while the local actors with whom they interacted lacked commitment to the projects and offered only hollow promises.”).


cooperation shortly after independence.290 Laurence Boisson de Chazournes also suggests that the international community provided significant support toward cooperation, but “the proliferation of international legal instruments without a clear relationship among each other could put at risk the sustainability required for an effective water management system.”291

While the macro-politics between the upstream and downstream riparian states center on the water-energy nexus, the local politics in the Ferghana Valley revolve around water management for agriculture. Christine Bichsel argues that “nearly all the inter-state negotiations sponsored by international agencies focused on the nexus of water and energy, but devoted insufficient attention to agriculture. As a result, parties ignored environmental issues in the Syr Darya Basin that were caused by water-intensive production and other critical agricultural policies.” 292 Bichsel’s comments also point to another gap in the existing transboundary water treaties between riparian states on the Syr Darya: they overlook the role of water for agriculture at the local level in the Ferghana Valley.293

The need for cooperative management over transboundary water extends beyond the mainstream of the Syr Darya to the many tributaries and thousands of irrigation canals that traverse the Ferghana Valley region.294 When analyzed from the perspective of the Water Diplomacy Framework, it becomes clear that there are stakeholders beyond the state—namely local farmers who emerged after the collapse of the collective farms—who are struggling for access to water locally in the Ferghana Valley. In turn, this exacerbates relations between the countries and complicates transboundary water cooperation at the national level.

C. Local Water Conflicts in the Ferghana Valley

The inability to develop an effective cooperative management structure for the tributaries and irrigation canals flowing from the Syr Darya through

290. ERIKA WEINTHAL, STATE MAKING AND ENVIRONMENTAL COOPERATION: LINKING DOMESTIC AND INTERNATIONAL POLITICS IN CENTRAL ASIA 10 (2002). 291. Boisson de Chazournes, supra note 112, at 55. 292. Bichsel, supra note 114, at 28.

293. Id. at 27. 294. For example, in the Batken region of Kygyzstan, the Syr Darya river network is comprised of 190 rivers totaling over 2,500 kilometers. See Ferghanskaia Dolina, Vodnye resursi Batkenskoi oblasti [The Ferghana Valley. Water Resources of Batken Oblast] http://enrin.grida.no/htmls/ferghana_valley/ferghana_valley_soe/html/water2.htm [https://perma.cc/2NHF-ZSTW] (last updated Nov. 11, 2006). In this region, the primary rivers are the Cox, Isfairam-Sai, Ak-Suu, Kara-Suu, Isfara and the Shahimardan. Id.


the Ferghana Valley contributes to ethnic tensions and border skirmishes.295 The local-level conflict in the Ferghana Valley reinforces a lack of trust among the nations that prevents effective cooperation.296 Moreover, when the local perspective in the Ferghana Valley is considered, it becomes clear that there are actors other than the state that influence the outcome of water management and irrigation.

During the Soviet-era, the water ministries of the Kyrgyz, Uzbek, and Tajik republics met regularly to fix allocations, but the same level of cooperative management does not exist today.297 In some instances, new agreements have been reached, but in many cases, Soviet-era small river allocations remain.298 These older agreements are not necessarily honored today, which leads to conflicts.299 Downstream farmers often complain that

295. KUEHNAST & DUDWICK, supra note 176, at 8 (“When ethnicity does play a role in local conflicts, it is usually secondary to a more basic struggle over access to resources in which perceived inequities become expressed in terms of ‘ethnic’ or other social group identities.”); INT’L. CRISIS GRP., supra note 127, at 10 (“Water is nearly always an element in such conflicts, whether as prime cause or conflict multiplier.”). 296. SERGEJ MAHNOVSKI ET AL., RAND CORP., ECONOMIC DIMENSIONS OF SECURITY IN CENTRAL ASIA 32 (2006) (“[I]nequitable water distribution has created social tensions and resentment of local officials who control water access within the agricultural sectors of virtually all the states of Central Asia.”); Аждар Куртов [Ajdar Kurtov], Водные Конфликты В Центральной Азии, Интеграция в Центральной Азии [Water Conflicts in Central Asia: Integration in Central Asia], OBSERVER, http://www.observer.materik.ru/observer/N7_2004/7_03.htm [https://perma.cc/3PZ2-BAF4] (last visited Jan. 19, 2017) (“[O]utwardly, many of the conflicts in Central Asia are ethnic in nature, which is seen as clash divergent interests of different ethnic communities. But in most situations the deep foundation of these conflicts is the struggle for resources.).” 297. See, e.g., Протокол совещания представителей Министерства водного хозяйства Таджикской и Киргизской республик. г. Ленинабад, 17–18 мая 1962 года Об орошении части массива “Арка” Киргизской ССР из-Ходжа Багирганского машинного канала и вододеления по системе реки Бакирган-Ходжа ана 1962 год [Minutes of the Meeting of Kyrgyzstan and Tajikistan Republics Water Resources Ministries on Irrigation of “Arka” Array of Land in Kyrgyzstan from the Hodzha-Bakirgan Canal and Water Distribution System on the River Hodzha-Bakirgan, May 17–18, 1962] (on file with author); Протокол совещания представителей Министерства водного хозяйства Узбекской ССР, Министерства водного хозяйства Киргизской ССР, Госстроя Киргизской ССР, проектных институтов “Средазгипроводхлопок” и “Киргизгипроводхоз” по вопросу использования водных ресурсов, реки “Кара-Дарья” с учетом Андижанского (Кампыр-Раватского водохранилища) г. Фрунзе, Кирг. ССР, 23 сентября 1965 [Minutes of the Meeting of Kyrgyzstan and Uzbekistan Republics Water Resources Ministries, Ministry of Construction of Kyrgyzstan, Hydrodesign Institute “Sredazgidrovodxlopok,” “Kyrgyzgiprovodxoz” on Utilization of the Water Resources of the Rivers Kara Darya and Andijan (Kampar-Ravat Water Reservoir, September 23, 1965)] (on file with author); Протокол совещания по декадному делению стока рек Падша-Ата и Кассан-Сай между Узбекской ССР и Киргизской ССР. 20 июня 1981 года, г. Ош, Кирг. ССР [Annex to the Minutes of the Meeting of Kyrgyz SSR and Uzbek SSR Water Resources Ministries on Distribution of the Water Resources of the Small Rivers of the Ferghana Valley Between Uzbekistan and Kyrgyzstan, April 10, 1980] (on file with author). 298. Bichsel, supra note 114, at 27 (“For example, during the Soviet period sixty-nine percent of the Shakhimardan Sai River’s flow was allocated to the Uzbek Socialist Soviet Republic SSR, as compared with twenty-one percent for the Kyrgyz SSR (plus ten percent ‘water losses’)”). 299. ACTED, CONFLICTS ON IRRIGATION WATER IN THE SOUTH OF THE KYRGYZ REPUBLIC 20 (2013).


upstream farmers are violating pre-existing agreements and “stealing” their water.300 In addition to disputes over water allocation, concerns exist over water quality, waterlogging, soil salinization, and land degradation.301

Once part of a unified system across three Soviet republics, Syr Darya tributaries and associated irrigation channels now traverse a complicated set of national borders. The national borders largely reflect the “titular” ethnicity, but each country is also home to large communities of other ethnic groups. For example, Kyrgyzstan is largely—but not exclusively—populated by ethnic Kyrgyz people.302 The Ferghana Valley region is home to many people who are ethnic Uzbeks but who are citizens of Kyrgyzstan; the reverse is also true.303

State borders in the Ferghana Valley look like a checkerboard because of the presence of enclaves—sovereign parts of a country that are physically separated from the “mother” country.304 Southern Kyrgyzstan has four Uzbek enclaves (Shakhimardan, Sokh, Qalacha, and Jangail) and two Tajik enclaves (Vorukh and Western Qalacha).305 Uzbekistan has one Tajik enclave (Sarvak) and one small Kyrgyz enclave (Barak).306 Yet, even these enclaves are not ethnically homogeneous; for example, the Uzbek enclave of Sokh, which is located in Kyrgyzstan, has a large Tajik population.307 The presence of ethnic groups living on the border of “their” titular state has become a powerful factor for conflict.308

Gravity-fed irrigation systems in the Ferghana Valley cause conflict between upstream and downstream communities, especially during the

300. KUEHNAST & DUDWICK, supra note 176, at 21(“Farmers, particularly members of local elites with land on upstream portions of irrigation canals, take control of water flow during the irrigation season, leaving less water for downstream farmers. The latter often respond with verbal or even physical violence toward their upstream neighbors. Large cotton farms and orchards also tend to monopolize irrigation water, provoking protests from small farmers.”). 301. Abdullayev et al., supra note 12, at 125; KUEHNAST & DUDWICK, supra note 176, at 21. 302. VICTOR DUKHOVNY & VADIM SOKOLOV, LESSONS ON COOPERATION BUILDING TO MANAGE WATER CONFLICTS IN THE ARAL SEA BASIN 6 (2003) (“In the Kyrgyz Republic the majority of the population belongs to the Kyrgyzes (64.9 percent); then come the Russians, Uzbeks, Ukrainians, and Tatars (12.5, 13.8, 1.0, and 0.9 percent respectively).”). 303. Веналий Амелин [Venaliy Amelin], Конфликты Через Призму Местных Сообществ:научно публицистические очерки [Conflicts Through the Prism of Local Communities: Scientific Public Sketches] (2010), http://www.osu.ru/sites/niisu/docs/e02_2010.pdf [https://perma.cc/GS3D-36MF]. 304. Shustov, supra note 6. 305. Alisher Khamidov, Stringent Border Measures Fueling Tensions in Enclaves, TRANSITIONS ONLINE (Aug. 14, 2009), http://www.tol.org/client/article/20794-stringent-border-measures-fueling-tensions-in-enclaves.html [https://perma.cc/G4ML-4A6Y]. 306. Id. 307. Id. 308. Shustov, supra note 6 (providing statistics of the number of non-titular minorities in several of the countries).


spring growing season.309 Although much of Kyrgyzstan is mountainous, in the Ferghana Valley, its territory is increasingly irrigated for agriculture.310 Water-intensive crops, like potatoes in Tajikistan and rice in Kyrgyzstan, reduce water availability. Poor irrigation practices also lead to waterlogging and salinization, which are further compounded by inappropriate fertilizer use.311

The source of the conflict is usually related to territory, which tends to overlap with ethnicity. 312 For example, the Sikh River flows from Uzbekistan to the Kyrgyz Republic and then back to Uzbekistan. Uzbek farmers have accused their Kyrgyz neighbors of storing water to irrigate rice fields, and in turn, this reduced water availability for Uzbek fruit trees and cotton. 313 The irrigation methods for rice have also raised the groundwater on the geographically lower Uzbek side, which has destroyed walls and flooded cellars.314 Due to less water availability, people rely increasingly on irrigation water for drinking and bathing, which is causing serious health hazards.315

The dissatisfaction with transnational agreements and the corresponding inability to enforce them result in people taking matters into their own hands at a local level.316 In dry years, conflict over water can turn violent,317 especially on the Kyrgyzstan-Tajikistan border.318 For example, in August of 2015, Kyrgyz residents stopped the flow of a transboundary water canal going to a Tajik village.319 According to the Kyrgyz residents, the Tajik farmers had closed a cross-border road that prevented the Kyrgyz residents from visiting a cemetery; according to the Tajik residents, the

309. Bichsel, supra note 114, at 27. 310. Id. at 26 (“The Kyrgyz claim is that this arrangement effectively barred them from developing irrigated agriculture during the Soviet period and denied them the economic benefit that would have come from development. Kyrgyzstan, therefore, now seeks to correct what it sees as a historical injustice by claiming enough water to develop self-sustaining and market-based irrigated agriculture.”). 311. KUEHNAST & DUDWICK, supra note 176, at 19–24. 312. Bichsel, supra note 114, at 27; Paul Goble, Central Asia: Analysis from Washington—A Watershed in Central Asia, RADIO FREE EUROPE RADIO LIBERTY (July 9, 1997), http://www.rferl.org/content/article/1085712.html [https://perma.cc/FU2D-TSNL]. 313. KUEHNAST & DUDWICK, supra note 176, at 22.

314. Id. at 21. 315. Id. at 19–24. 316. Id. 317. Id. at 23. 318. WEINTHAL, supra note 212, at 22–23. 319. Six Reportedly Wounded by Gunfire in Kyrgyz-Tajik Border Violence, RADIO FREE EUROPE RADIO LIBERTY, http://www.rferl.org/content/kyrgyz-tajik-border-incident-injuries/27168736.html [https://perma.cc/W9XJ-L3BX] (last updated Aug. 4, 2015).


canal closure occurred first.320 Regardless of who started the fight, injuries occurred because crowds on both sides of the border threw stones at each other.321

Similarly, in 2011, a scuffle broke out between Tajik farmers residing in Vorukh, a sovereign Tajik enclave wholly located within Kyrgyzstan, and Kyrgyz farmers residing in Kyrgyzstan.322 Because the Tajik residents did not have water for several days, they crossed the border of the Tajikistan enclave into Kyrgyzstan to open the canal.323 Seeking to protect their water access, Kyrgyzstan farmers then beat the Tajik farmers who had crossed the border. 324 The violence did not escalate further due to intervention by the local police and authorities, but tensions remained high.325 Other similar events have occurred over the years.326

The border between Kyrgyzstan and Uzbekistan is another area of frequent water-related conflict. 327 For example, the Pydyshata River originates in Kyrgyzstan and then passes through Uzbekistan before returning to the Jalalabad Oblast of Kyrgyzstan.328 A Soviet-era agreement from 1980 allocates 64% of the water to Uzbekistan, frustrating Kyrgyz farmers in Jalalabad who, in reality, receive less than their legally entitled 36% share.329 In another area, in May of 2008, Kyrgyz farmers near the border town of Aravan organized a demonstration, demanding that the local

320. Catherine Putz, Kyrgyz and Tajiks Clash Along Disputed Border, DIPLOMAT (Aug. 4, 2015), http://thediplomat.com/2015/08/kyrgyz-and-tajiks-clash-along-disputed-border/ [https://perma.cc/JF6Q-FE8X]. 321. На Кыргызской-Таджикской границе с двух сторон скопилось более 100 человек. Радио Свободa [On the Kyrgyz-Tajik Border on Both Sides Have Accumulated More Than 100 People], РАДИО АЗАТТЫК [RADIO FREE EUROPE RADIO LIBERTY] (Aug. 3, 2015), http://rus.azattyk.org/a/27167202.html [https://perma.cc/H7L8-R6LY]. 322. U.N. Office for the Coordination of Humanitarian Aff., supra note 13, at 1. 323. David Trilling, Kyrgyzstan: New Security Chief De-Radicalizing Ethnic Tensions?, EURASIANET (Jan. 19, 2012), http://www.eurasianet.org/node/64862 [https://perma.cc/ZVK9-YDNE]; Natalia Yefimova-Trilling & David Trilling, Kyrgyzstan & Tajikistan: Disputed Border Heightens Risk of Conflict, EURASIANET (Aug. 2, 2012), http://www.eurasianet.org/node/65744 [https://perma.cc/J7QA-ZAXA]. 324. JAMOAT RES. CTR. OF VORUKH, POTENTIAL FOR PEACE AND THREATS OF CONFLICT: DEVELOPMENT ANALYSIS OF CROSS-BORDER COMMUNITIES IN ISFARA DISTRICT OF THE REPUBLIC OF TAJIKISTAN AND BATKEN DISTRICT OF THE KYRGYZ REPUBLIC 38 (2011). 325. Id. 326. Alisher Khamidov, Ferghana Valley: Harsh Winter’s Legacy Stokes Ethnic Tension, EURASIANET (June 1, 2008), http://www.eurasianet.org/departments/insight/articles/eav060208.shtml [https://perma.cc/GT49-AAQT]. 327. WEINTHAL, supra note 212, at 22–23. 328. KUEHNAST & DUDWICK, supra note 176, at 23. 329. Id. at 23 (quoting Kyrgyz villagers as asking “why is 64 percent of the water from the river, which originated in our mountains, given to Uzbekistan for free and we sell water to our citizens and suffer shortages of both drinking and irrigation water?”).


authorities release more water into their irrigation channels.330 Water was eventually provided; however, it was less than the Kyrgyz farmers hoped for, and as a result, Uzbek farmers felt more insecure about their future water needs.331

These conflicts have erupted, in part, because there is now greater pressure on the existing land and water resources. Although Central Asia is not considered a water-scarce region, the people living in the Ferghana Valley have become increasingly dependent on the land after the closure of Soviet collective farms and factories.332 The population has grown333 while economic opportunities have diminished, so more people have turned to farming.334 Over the past ten years, the Ferghana Valley’s population has grown 32%, but less arable land and water is available for this expanding population. 335 Although home to over a quarter of Central Asia’s population, the Valley is less than 5% of the total land area.336 Many families have had trouble making ends meet simply from farming, resulting in high underemployment and unemployment in rural areas.337

330. Khamidov, supra note 305 (reporting a local Kyrgyz farmer as stating that “[i]f we do not get enough water, we will not be able to cultivate land and grow crops. We will go hungry”). 331. Id. 332. Bichsel et al., supra note 5; Ravshan Nazarov & Pulat Shozimov, The Ferghana Valley in the Eras of Khrushchev and Brezhnev, in FERGHANA VALLEY: THE HEART OF CENTRAL ASIA 140, 141 (S. Frederick Starr et al. eds., 2011). 333. DE MARTINO ET AL., supra note 5, at 16 (noting that population density is extremely high in the Uzbek part of the valley [200–500 persons per square km] compared to the Tajik [70 per square km] or Kyrgyz parts [20–40 per square km], if compared to an average 14 people per square km in Central Asia); Bichsel, supra note 114, at 27. 334. See DE MARTINO ET AL., supra note 5, at 19 (“[A]ll available land is used for agricultural purposes, including areas rich in endemic and endangered species.”); see also Shustov, supra note 6 (“Even compared to other disadvantaged areas of Central Asia, the Ferghana Valley has a high level of agrarian overpopulation and a large number of unresolved social and economic problems.”). 335. KUEHNAST & DUDWICK, supra note 176, at 3 (“Agriculture is the lynchpin of survival for many people in the region, and in some areas competition for land and water is intense. At the same time, the water supply and available arable land have diminished due to poor water management and growing populations.”); Первая всеобщая перепись населения Российской Империи 1897г. Распределение населения по родному языку, губерниям и областям [The First National Census of the Russian Empire in 1897 Distribution of the Population by Mother Tongue, Provinces and Regions], DEMOSCOPE WKLY., http://demoscope.ru/weekly/ssp/rus_lan_97.php?reg=126;%20Charles%20Recknagel,%20Ferghana%20Valley:%20A%20Tinderbox%20For%20Violence,%20RADIOFREEEUROPE/RADIOLIBERTY,%20June%2017,%202010 [https://perma.cc/JA2Y-LRN9] (last visited Aug. 7, 2016); Charles Recknagel, Ferghana Valley: A Tinderbox for Violence, RADIO FREE EUROPE RADIO LIBERTY (June 17, 2010), http://www.rferl.org/content/Why_Is_The_Ferghana_Valley_A_Tinderbox_For_Violence/2074849.html [https://perma.cc/EP9V-4HLV]; STRATFOR, supra note 148 (noting that the population density is 1,600 people per square mile in the Ferghana Valley compared to 40.8 in other parts of Central Asia). 336. STRATFOR, supra note 148. 337. Neil Melvin, Promoting a Stable and Multiethnic Kyrgyzstan: Overcoming the Causes and Legacies of Violence, 3 OPEN SOC’Y. FOUND. 1, 20 (2011),


Water flowing through the tributaries and channels of the Syr Darya does not meet the demand of any community, so the existing transboundary agreements and schedules—many of which contain outdated, Soviet-era allocations—are routinely violated. 338 Residents blame the neighboring country for the lack of water.339 The shortage of land and water resources, as well as the changing socio-economic environment, lead to territorial conflicts, often between different ethnic communities.340

State borders make the upkeep and maintenance of water infrastructure difficult.341 The inability to repair canals and effectively manage water resources has created a situation of artificial scarcity because the existing infrastructure does not reliably deliver water.342 Ill-maintained since before the Soviet Union’s collapse, water infrastructure has deteriorated further and requires significant funds and cooperation to repair.343

Heightened border control leads to cross-border disputes between farmers over access to water infrastructure.344 Many borders remained porous after the dissolution of the Soviet Union, which allowed travel and trade. However, an increasing number of fences and official border crossings have been erected, in part, to prevent attacks by the Islamic Movement of Uzbekistan (IMU)345 and other radical Islamic organizations, armed incursions by opposition groups from neighboring countries, and the

https://www.opensocietyfoundations.org/sites/default/files/OPS-No-3-20110305.pdf [https://perma.cc/H8XG-WEFW]. 338. KUEHNAST & DUDWICK, supra note 176, at 22. 339. Id. 340. Id. at 8–9 (noting that other factors that are causing strife include the growing disparity between the rich and poor after the Soviet Union’s collapse; the downsizing of industrial and agricultural production; greater health care costs for individuals; an educational system under distress; growing domestic violence, theft, and vandalism by young males; and the infusion of religious and/or nationalistic notions); Melvin, supra note 337, at 20–21. 341. DE MARTINO ET AL., supra note 5, at 11 (“[A]ll available land is used for agricultural purposes, including areas rich in endemic and endangered species.”). 342. INT’L. CRISIS GRP., supra note 127, at 14 (“Water conflicts appear not because we don’t have enough water but because it is not effectively regulated. All the canals are old. I understand the water ministry does not have enough money, and their technology is old. But the canals have to be renovated. Otherwise we will continue to lose too much water, and we will create conflict situations because of that.”); ACTED, supra note 299, at 20 (noting that the water conflict in the Tort Kul region of southern Kyrgyzstan shows that “the roots of the water conflicts are also due to inefficient and deteriorated irrigation infrastructure, which is not capable to deliver sufficient, timely and good quality water”). 343. Bichsel, supra note 114, at 29 (“Estimates from scholars Dukhovny and Sokolov show the cost of such repairs throughout the Aral Sea basin would reach $16 billion.”); Sorg et al., supra note 120, at 73. 344. ACTED, supra note 299, at 20 (noting that, in the Tort Kul region of Kyrgyzstan, “[t]here have been frequent conflicts between water users (WUs) in the Kyrgyz Republic and Uzbekistan over amount of water received and access to infrastructure located on the territory of Uzbekistan for repair and cleaning”). 345. Khamidov, supra note 305.


trafficking of drugs, arms, and people.346 The borders, which sometimes pass right through villages,347 restrict the free movement of travel and goods that people in the Ferghana Valley previously enjoyed.348 At the same time, there is evidence of “meso-level” cooperation, where local water officials informally work together to maintain and repair water infrastructure across borders.349

Effective control and management of land and water resources has also been hampered by disputes between the nations over where the border actually exists,350 resulting in a situation that has been described as a “low level border war.”351 For instance, roughly 58% of the border between Kyrgyzstan and Tajikistan has been delineated, and large tracts remain unmarked and disputed, especially in the mountainous regions.352 Although approximately 75% of the border between Uzbekistan and Kyrgyzstan has been demarcated,353 the Kyrgyzstan government has accused Uzbekistan of fencing off tens of thousands of hectares of Kyrgyzstani land.354 The primary intergovernmental commission on delineation and demarcation of state borders between the two countries has not met since 2009.355

The “creeping migration” phenomenon has further exacerbated border delineation contentions between Kyrgyzstan and Tajikistan and created a volatile situation on the ground. Many Kyrgyz have departed for work in Russia or Kazakhstan and rented or sold their homes to farmers from Tajikistan.356 Because the border has not yet been demarcated, these newly

346. DE MARTINO ET AL., supra note 5, at 11. 347. Nick Megoran, For Ethnography in Political Geography: Experiencing and Re-Imagining Ferghana Valley Boundary Closures, 25 POL. GEOGRAPHY 622, 629 (2006). 348. Id. 349. Kai Wegerich et al., Meso-Level Cooperation on Transboundary Tributaries and Infrastructure in the Ferghana Valley, 28 INT’L J. WATER RESOURCES DEV. 525, 540 (2012). 350. Trilling, supra note 323; Екатерина Иващенко [Ekaterina Ivashenko], Национальная политика в Кыргызстане: От братских народов к враждующим племенам [National Policy in Kyrgyzstan: From Brotherly Peoples to Warring Tribes], FERGANANEWS (Jan. 27, 2012), http://www.fergananews.com/article.php?id=7255 [https://perma.cc/GC6D-JSXX]. 351. Nick Megoran, The Critical Geopolitics of the Uzbekistan–Kyrgyzstan Ferghana Valley Boundary Dispute, 1999–2000, 23 POL. GEOGRAPHY 731, 734 (2004). 352. Tajik-Kyrgyz State Border, MINISTRY FOREIGN AFF. TAJ., http://mfa.tj/ru/pogranichnie-voprosi/tadzhikistan-kyrgyzstan-granitsa.html (last visited Jan. 19, 2017) (noting more than 500 km of the more than 987 km state border have been delineated). 353. Khamidov, supra note 305 (noting that 1,050 km of the 1,395 km Uzbek-Kyrgyz border has been delineated). 354. Id. 355. Элеонора Бейшенбек кызы [Eleanor Beishenbek], Возобновит ли Кыргызстан сотрудничество с Узбекистаном? [Will Kyrgyzstan Resume Cooperation with Uzbekistan?], RADIO FREE EUROPE RADIO LIBERTY (July 8, 2016), http://rus.azattyk.org/a/27845848.html [https://perma.cc/75F6-Y4Q9]. 356. KUEHNAST & DUDWICK, supra note 176, at 14.


Tajik-populated areas are then claimed to be part of Tajikistan.357 Our fieldwork in Kyrgyzstan confirmed what anthropologists Kathleen Kuehnast and Nora Dudwich found, which is that many Kyrgyz “perceived the situation as one in which the Tajik government was intentionally delaying the border delineation to expand their territory through the creeping migration.” 358 Small-scale, violent clashes have broken out between Kyrgyz and Tajiks living in these border communities. 359 In addition, local conflicts are more frequent, more intense, and frequently characterized by corruption and smuggling where state boundaries are contested or simply unmarked.360

Border delineation alone would not solve water-management problems. There would still need to be a system in place for water allocation and sharing and for joint infrastructure management and maintenance. However, border demarcation would ameliorate some uncertainty that contributes to ethnic tensions and conflict over water use. Yet, border delineation cannot be resolved by local communities.361

In 2008, the presidents of Kyrgyzstan and Tajikistan established an interstate council to improve coordination and accelerate the process of border demarcation.362 They also agreed to ban agriculture and construction in disputed areas.363 But, these talks have not resolved the “creeping migration” problem. Moreover, proposals to redraw borders so that enclaves are not physically separated from the “mother” country have gone nowhere. For example, Kyrgyzstan rejected Uzbekistan’s proposal to transfer part of the enclave of Sox, which has 19 villages inhabited mostly by Tajiks, in exchange for land on the border of Uzbekistan.364 Kyrgyzstan claimed that the proposed land did not have the same agricultural value and that it would cut off the southern regions from the rest of the country.365 357. Id. 358. Id. 359. Slim, supra note 11. 360. Hodgson, supra note 123, at 4; Ivashenko, supra note 350; Visualising the Corruption Perceptions Index 2014, TRANSPARENCY INT’L, https://www.transparency.org/cpi2014/infographic [https://perma.cc/8TRB-K4V9] (last visited Jan. 25, 2017); Кыргызстан по уровню коррупции занимает 164 место из 182 стран [Kyrgyzstan in Terms of Corruption Takes 164th Place out of 182 Countries] KYRGYZ COMMITTEE FOR HUMAN RIGHTS, http://www.kchr.org/modules.php?name=News&file=article&sid=3035 [https://perma.cc/Z9FV-ADGU] (last visited Apr. 27, 2017). 361. Ivashenko, supra note 350.

362. Khamidov, supra note 305. 363. See Khamidov, supra note 305 (explaining Tajikistan’s belief that Kyrgyzstan has “violated a bilateral agreement that prohibited the cultivation of and construction on disputed land”).

364. RASHID GABDULHAKOV, CENT. ASIA POLICY BRIEFS, GEOGRAPHICAL ENCLAVES OF THE FERGANA VALLEY: DO GOOD FENCES MAKE GOOD NEIGHBORS? 3 (n.d.), http://osce-academy.net/upload/Policy_briefs/Policy_Brief_14.pdf [https://perma.cc/3P9G-GRDR]. 365. Id. at 1, 3.


Tensions over borders in the Ferghana Valley have caused the relations between the countries to deteriorate. Proper resolution necessitates national resolution, but an expeditious solution has been hampered by the fact that the region is politically disconnected from the capitals. The Ferghana Valley historically had many nomadic and sedentary groups of different ethnicities that were conquered and dissolved by the Soviet Union.366 However, clan and regional loyalties predominated in the region, and the Soviet system continued to rely on customary systems of governance, such as village or kinship relationships.367 Clans and regionalism continue to play a large role in the national politics of each country.368

Politicians in the capitals of each country—Tashkent in Uzbekistan, Bishkek in Kyrgyzstan, and Dushanbe in Tajikistan—generally perceive the Ferghana Valley as the home of their rivals. This, in turn, reduces their incentive to help the region and creates a political disconnect between the center and periphery. 369 For example, in Uzbekistan, the first serious challenge to its power came from the Ferghana Valley, when the Islamic Movement of Uzbekistan formed there in 1998370 and an uprising against authorities erupted in Andijan in 2005.371 The main goal of IMU was to overthrow the late President Islam Karimov and to create an Islamic state under Sharia law.372 The Kyrgyz part of the Ferghana Valley was a platform for the opposition that overthrew President Askar Akaev in 2005373 and this southern region continues to harbor and support political opposition groups.374 Until President Emomali Rahmon came to power in 1994 in Tajikistan, the country had been dominated by Tajik elite from the

366. KUEHNAST & DUDWICK, supra note 176, at 14. 367. Id. at 7.

368. Id. at 7–8. 369. See Sievers, supra note 8, at 374 (“[I]n the Ferghana Valley, the states involved cannot as handily manipulate the reactions of their citizens, nor do their citizens act primarily out of loyalty to, or reflect the concerns of, their titular national states.”). 370. Jacob Zenn, On the Eve of 2014: Islamism in Central Asia, HUDSON INST. (June 24, 2013), http://www.hudson.org/research/9824-on-the-eve-of-2014-islamism-in-central-asia [https://perma.cc/8KVV-CF8C]. 371. How the Andijan Killings Unfolded, BBC NEWS (May 17, 2005, 11:40 AM), http://news.bbc.co.uk/2/hi/asia-pacific/4550845.stm [https://perma.cc/M3HY-ZJQT]. 372. Pakistan’s “Fanatical” Uzbek Militants, BBC NEWS (June 11, 2014), http://www.bbc.com/news/world-asia-27801257 [https://perma.cc/6QAP-UB98]. 373. Baktybek Beshimov et al., A New Phase in the History of the Ferghana Valley, 1992–2008, in FERGHANA VALLEY: THE HEART OF CENTRAL ASIA 205, 211 (S. Frederick Starr et al. eds., 2011). 374. Valentinas Mite, Kyrgyzstan: North-South Divide Is a Factor in Politics, RADIO FREE EUROPE RADIO LIBERTY (Mar. 24, 2005), http://www.rferl.org/content/article/1058107.html [https://perma.cc/P5LK-J95L]; Baktybek Beshimov & Ryskeldi Satke, Kyrgyzstan: The Next Ukraine?, DIPLOMAT (Mar. 3, 2014), http://thediplomat.com/2014/03/kyrgyzstan-the-next-ukraine/ [https://perma.cc/F772-UHPE].


Ferghana Valley.375 Since then, the region has been “almost entirely shut out of political decision-making,” which has “led to yet deeper political isolation of the Tajik Ferghana Valley from the rest of Tajikistan.”376 The distrust between the center and periphery reduces motivation to resolve border issues and address local conflicts over water and land, which in turn, contributes to destabilization in the region.

Applying the Water Diplomacy Framework lens to the situation in the Ferghana Valley reveals that there are stakeholders beyond the state who are influencing events. According to one narrative on the Syr Darya, upstream mountainous Kyrgyzstan needs water simply for hydropower, while its downstream neighbors seek water for irrigating cotton;377 thus, the dispute centers on the timing of water releases from Toktogul.378 However, in the Ferghana Valley, including in the lowlands part of Kyrgyzstan, many families rely on irrigated water to grow crops for sustenance and money.379 Because of the way that the small tributaries snake back and forth across the various ethnic communities, an upstream-downstream dynamic plays out at the local level. This is the second narrative of the Syr Darya. In an area with heightened ethnic tensions, as illustrated by the 2010 bloody clashes between ethnic Uzbeks and Kyrgyz in southern Kyrgyzstan, disputes over water access can turn violent.380 These clashes, in turn, exacerbate relations between the countries by fostering mistrust. Yet, greater cooperation is exactly what is needed to address the underlying causes of the conflict, such as poor border demarcation and infrastructure management.

Local disputes over water arise because each community believes that the community across the border is stealing water. This is the perfect scenario for joint fact finding because information about water flows and usage could be shared and analyzed. Technological advances in measuring techniques could make the collection of unbiased data easy. Such jointly collected information could then inform a management plan that is

375. Beshimov et al., supra note 373, at 215. 376. Id.

377. NICHOLAS BAKER, THE FERGHANA VALLEY: A SOVIET LEGACY FACED WITH CLIMATE CHANGE 7 (2011).

378. Fyodor Savintsev et al., Conflicts in Kyrgyzstan Foreshadow Water Wars to Come, CREATIVETIME.ORG (Jun. 17, 2014), http://creativetimereports.org/2014/06/17/kyrgyzstan-conflicts-foreshadow-water-wars/ [https://perma.cc/8HRG-F8VP].

379. BAKER, supra note 377, at 17. 380. Grief Not Justice for Uzbeks in Kyrgyzstan, IRIN (May 26, 2015),

http://www.irinnews.org/report/101541/grief-not-justice-uzbeks-kyrgyzstan [https://perma.cc/84EX-Z6FH].


collaboratively implemented and could be adapted to the changing circumstances. The parties could also jointly address water waste from broken infrastructure and land degradation from obsolete irrigation methods that heighten salinity. Greater financial and technical assistance to local farmers and water-user associations could help improve the irrigation system within each country. Yet, because the irrigation channels and tributaries of the Syr Darya cross national borders, neither farmers nor water-user associations can do this alone. Local authorities and water-user associations need to be empowered by their national governments to engage in collaborative adaptive management on these smaller rivers and irrigation channels. Such cooperation, in turn, could build trust at the national level and help resolve some of the broader transboundary management challenges in the region.

Given that a mutually beneficial solution on the Syr Darya is relatively apparent, it is worth asking what the countries will really gain from cooperation. For Kyrgyzstan, an upstream riparian country, the benefits are clear because the country does not perceive the existing treaties as equitable and reasonable. It could be better compensated for water storage and infrastructure upkeep on the main stem of the Syr Darya. If Kyrgyzstan was legally entitled to a greater share of the Syr Darya, it could sell any surplus it did not need, if that amount was ever quantified. While much of Kyrgyzstan is mountainous, local farmers in the Ferghana Valley region would also benefit from greater water allocations in the small tributaries that connect to the Syr Darya.

At first glance, downstream riparian states on the Syr Darya would not necessarily benefit from greater cooperation because the existing treaties provide them with favorable terms—at least on paper. For example, pursuant to the Almaty Agreement, the ICWC generally still allocates the vast majority of water from the Syr Darya to Uzbekistan, as was the case in Soviet times. Moreover, pursuant to the 1998 Syr Darya Agreement, downstream countries only compensate Kyrgyzstan for storing water that is actually released, and they do not need to pay for infrastructure maintenance. However, in reality, those favorable “paper” terms have unfavorable consequences because the agreements are not respected. For example, when Kyrgyzstan releases water in the winter for hydropower, farmers in Uzbekistan must contend with flooding. Additionally, skirmishes erupt over irrigation water access in the Ferghana Valley, exacerbating tensions in an already volatile region. These have spillover effects on the rest of the country and compound feelings of suspicion and mistrust. In other words, “real” cooperation could reduce the hidden costs of noncompliance with existing treaties. A mutually beneficial solution would help to translate “paper” cooperation into “real” cooperation.


Greater cooperation at the national level could potentially improve the overall quality of life at the local level, if partnered with information transparency and devolution of authority to resolve cross-border disputes. Currently, neither respected elders nor local authorities have the authority to enforce water-sharing decisions across borders. 381 Greater decentralization of power down to the local level to resolve water and boundary disputes could help to ameliorate tensions and improve water management generally.

CONCLUSION

Applying the lenses of the UN Watercourses Convention and the Water Diplomacy Framework to the situation on the Syr Darya river highlights why water cooperation remains elusive. The two primary agreements on the Syr Darya inhibit the kind of flexibility needed to develop a mutually beneficial solution. The first agreement, the 1992 Almaty Agreement, essentially locked in Soviet-era water allocations, which are no longer perceived as equitable and reasonable by all interested parties. In contrast, the UN Watercourses Convention invites parties to reassess the concept of “equitable and reasonable utilization.” In addition, because of the Almaty Agreement’s strict no-harm provisions, Kyrgyzstan’s efforts to expand its hydropower production have met with resistance, especially from Uzbekistan. Although the parties attempted to recreate a water-energy exchange through the second agreement in 1998, its narrow provisions failed to address core concerns, especially those of upstream Kyrgyzstan.

Although a cooperative structure exists for managing water in the Aral Sea Basin, it has not been effective due to these fundamental disagreements. The need for cooperative transboundary management extends down to the local level because a once-unified irrigation system now zigzags across a complicated set of national borders that are not always clearly marked. Disputes among different ethnic groups over access to irrigation water in the Ferghana Valley exacerbate an already volatile situation and further reduce trust between the nations.

The parties should reexamine the existing legal agreements on the Syr Darya river and its tributaries and embrace a more mutually beneficial approach to water management. Given that the water-energy exchange represents an important opportunity for flexibly managing water, greater coordination is needed across countries and across the agencies responsible for water, energy, and agriculture within each country. The Water

381. KUEHNAST & DUDWICK, supra note 176, at 19–24.


Diplomacy Framework also stresses the need to enlarge the metaphorical pie and consider how cooperation with respect to other issues can influence joint management of water. Although the Syr Darya riparian nations have distinct political economies, if the states better coordinated their economic and trade policies, they could define mutually beneficial agricultural, energy, and water goals for the region and allocate their resources accordingly. Such a coordinated management plan could also ensure that there are sufficient flows returning to the Aral Sea to help promote its rehabilitation. Instead, each country focuses only on its own goals and water needs, leading to a zero-sum situation.

The need for greater cooperation extends down to the local level, where third-party stakeholders influence events but have no official role. In the conflict-prone and densely populated Ferghana Valley, disputes occur between farmers over water from the tributaries and irrigation channels extending from the Syr Darya. These cross-border conflicts could be mitigated if the borders were better demarcated, if the irrigation channels were in better condition, and if there was a better management structure in place that upstream and downstream communities trusted. Indeed, the water-management system could also build on the traditional system of resolving disputes by looking to community elders.

Central Asia is not a water-scarce region, but poor governance and a lack of cooperation have created a situation of scarcity. The path forward requires that the riparian nations on the Syr Darya embrace a mutually beneficial approach to water management. Yet, at the heart of the problem is a lack of trust between nations, especially because each country has sought to define its own identity after becoming independent from the Soviet Union. Although water can be a source of conflict, it can also be a source of cooperation—and that is the challenge for Central Asia.

GETTING AHEAD OF GREENHOUSE-GAS EMISSIONS IN AFGHANISTAN: THE CASE FOR SHIFTING FROM A

COMMAND-AND-CONTROL TO A CAP-AND-TRADE REGIME

Pamir Hazem∗

Introduction ............................................................................................... 456I. The Global View of the Climate Change Issue ..................................... 457

A. Science of Climate Change .............................................................. 457B. Global Perspectives on Climate Change .......................................... 458C. Intergovernmental Panel on Climate Change (IPCC) and Paris

Agreement COP 21 ......................................................................... 460II. Legal, Administrative, and Social Responses to Climate Change in

Afghanistan ........................................................................................ 462A. Afghanistan’s Legal System and Climate-Change Governance ...... 464B. Administrative Apparatus of Environmental Functions in Afghanistan

......................................................................................................... 466C. Command-and-Control Regimes and Their Disadvantages ............ 467

III. Modern Approach to Governance of Greenhouse-Gas Emissions ..... 470A. Cap and Trade: Theoretical Roots ................................................... 471B. The Mechanics of Emissions Trading .............................................. 472C. Tradeable Instruments of Cap and Trade ......................................... 474D. Emissions Trading System Under International Law ...................... 475

1. The Kyoto Protocol ...................................................................... 4762. The European Union .................................................................... 479

IV. Suggestions for Afghan Law Reform ................................................. 480A. Benefits of Shifting to Cap and Trade ............................................. 480

∗ Lecturer, Law School of Herat University, University of Washington School of Law, L.L.M., Herat University School of Law, B.A.


B. Possible Drawbacks and Barriers ..................................................... 481Conclusion ................................................................................................ 483

INTRODUCTION

As a developing country that is relatively new to environmental regulation, Afghanistan’s law on carbon emissions does not currently do enough to prevent the carbon emissions that contribute to global warming. If Afghanistan continues to use its current emissions control approach, the problem will only grow worse as the country builds industry and participates more fully in the global economy. However, these increases would be inconsistent with Afghanistan’s obligations under the United Nations Framework Convention on Climate Change (UNFCCC). Under this convention, Afghanistan is required to mitigate, if not eradicate, its greenhouse-gas (GHG) emissions.1 For this reason alone, Afghanistan must begin to reform its approach to regulating these emissions.

The current regulatory framework in Afghanistan is housed in the Afghan Anti-Air Pollution Act, which establishes a command-and-control system aimed at curbing air pollution;2 however, the language is broad and it does not specifically target GHG emissions. Therefore, it is unclear whether this law will be able to curb carbon emissions or whether a new piece of legislation specifically for GHG emissions is necessary to further mitigate emissions. Furthermore, studies show that this command-and-control system is costly, discourages innovation, and does not incentivize shifting toward less polluting practices.

This article suggests that Afghanistan consider replacing the command-and-control approach with a cap-and-trade system. The cap-and-trade approach has proven to be very effective among European Union (EU) countries, making the EU a world leader in the area of carbon emissions control using a cap-and-trade system.3 The cap-and-trade system not only creates a market for carbon emissions control, which will eventually benefit the country financially, but it also rewards efforts to replace old polluting practices with clean, environmentally sound practices.

1. See Kyoto Protocol to the United Nations Framework Convention on Climate Change art. 10, Dec 10, 1997, 37 I.L.M. 32, 36–37 [hereinafter Kyoto Protocol] (requiring all parties to implement national measures to mitigate and adapt to climate change, recognizing their common but differentiated responsibilities). 2. Moqarerae Kaahesh Wa Jelogiri Az Aloodagi Hawa [Regulation on Decrease and Prevention of Air Pollution] Official Gazette 991, 1388 (2009) (Afg.). 3. THOMAS J. SCHOENBAUM & MICHAEL K. YOUNG, INTERNATIONAL ENVIRONMENTAL LAW: CASES, MATERIALS, AND PROBLEMS 347 (2d ed. 2014).

2017] Getting Ahead of Greenhouse-Gas Emissions in Afghanistan 457

Part I of this article discusses the science of climate change to underscore the need for all countries to do their part in curbing GHG emissions, even in developing nations like Afghanistan that may not currently host industries that contribute greatly to global warming but that may swiftly develop those industries in the years to come. Part II discusses the background of Afghan Law concerning the command-and-control policy, emphasizing the lack of control that actually results. Part III then discusses the policy and system that is being implemented for carbon emissions control in the EU. Finally, in Part IV, this article suggests implementing a cap-and-trade system in Afghanistan, while acknowledging the possible barriers to implementing this kind of change, including: the challenge of finding consensus among the members of the executive branch and the members of the legislature; the problems associated with implementation and enforcement; and possible resistance from the nation’s developing industries. Ultimately, this article argues that cap and trade would be the best solution for Afghanistan because it would (1) encourage innovation by rewarding industry practices that produce fewer emissions, (2) balance the market through trade, and (3) potentially increase the government’s financial revenue.

I. THE GLOBAL VIEW OF THE CLIMATE CHANGE ISSUE

Because science is now confirming that excessive concentration of GHGs in the atmosphere is causing climate change, the global community has begun to respond and treat climate change as a serious problem around the world.4 This section sheds light on the global perspective on global warming, ultimately showing that while there is some disagreement over the implications of the science, the prevailing view is that global warming poses an imminent threat to the health of the planet and even developing nations need to work to stop it.

A. Science of Climate Change

Despite ongoing alleged uncertainties and denials, the science of global warming and its causes has become stronger and more universally accepted in recent years.5 The Intergovernmental Panel on Climate Change (IPCC) in 4. BRUCE STOKES ET AL., PEW RESEARCH CTR., GLOBAL CONCERN ABOUT CLIMATE CHANGE, BROAD SUPPORT FOR LIMITING EMISSIONS 4 (Nov. 5, 2015), http://www.pewglobal.org/files/2015/11/Pew-Research-Center-Climate-Change-Report-FINAL-November-5-2015.pdf [https://perma.cc/2EVC-2YN8]. 5. See generally id. (reporting statistics that the majority of countries consider global warming a serious problem).


its assessment reports found that GHGs affect climate change, and the existence of GHGs has been causing the earth’s average temperature to rise from -0.19 degree Celsius to +0.87 degree Celsius since the industrial revolution.6 These studies show that GHG acts as a “blanket” around the earth, preventing solar power from reflecting back out of the earth’s atmosphere and causing the atmosphere to heat up.7

The main sources of GHGs are manufacturing power (34%, mainly carbon dioxide from fossil fuel combustion), transportation, agriculture, forestry, and land-use and development practices (AFOLU) (24%, mainly methane and nitrous oxide).8 Among these, the production and use of electricity contributes the most to GHG emissions, especially when compounded by electricity use in other sectors that cause additional emissions of GHGs.9

There are many different types of GHGs;10 however, the following five types of GHGs are the most prominent: (1) carbon dioxide, (2) hydrochlorofluorocarbons, (3) methane, (4) perfluorocarbons, and (5) sulfur hexafluoride. 11 The most detrimental gas is carbon dioxide, which is directly produced by human activity, especially through the burning of fossil fuels.12 Scientists have been measuring temperature in the atmosphere for a few decades.13 Upon observing patterns in the climate’s temperature, scientists have concluded that climate change is in fact happening and that it is mostly caused by human activities.14

B. Global Perspectives on Climate Change

The Pew Research Center researches global perspectives on the significance of climate change and its adverse effects on the planet.15 This 6. Global Temperature, NAT’L AERONAUTICS & SPACE ADMIN., https://climate.nasa.gov/vital-signs/global-temperature/ [https://perma.cc/M94F-FWRR] (last visited Feb. 19, 2017). 7. A Greenhouse Effect Analogy, AM. CHEMICAL SOC’Y, https://www.acs.org/content/acs/en/climatescience/climatesciencenarratives/a-greenhouse-effect-analogy.html (last visited Apr. 23, 2017). 8. OTTMAR EDENHOFER ET AL., INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2014 MITIGATION OF CLIMATE CHANGE: WORKING GROUP III CONTRIBUTION TO THE FIFTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 125 (2014), http://www.ipcc.ch/pdf/assessment-report/ar5/wg3/ipcc_wg3_ar5_full.pdf [https://perma.cc/E6SN-FXWQ] [hereinafter IPCC FIFTH ASSESSMENT REPORT]. 9. Id. 10. Id. 11. SCHOENBAUM & YOUNG, supra note 3. 12. IPCC FIFTH ASSESSMENT REPORT, supra note 8. 13. SCOTT DEATHERAGE, CARBON TRADING LAW AND PRACTICE 5 (2011). 14. Id. 15. STOKES ET AL., supra note 4.


research, which was conducted among 40 countries, indicated that a median of 54% of the globe considers climate change a very serious problem.16 For example, the study found that concern over climate change is significant in Latin American countries, where an average of 74% of interviewees considered climate change a very serious problem.17 In Brazil, home of the largest carbon sink,18 86% of interviewees expressed the belief that climate change is a very serious problem.19 In Chile and Peru, 77% and 75% respectively, expressed concerns about climate change.20 Notably, China and United States showed the most skeptical perspectives, with concern expressed in only 18% and 45% respectively.21 Overall, around the globe, a median of 54% of people consider climate change to be a serious problem; 51% of people believe that climate change is harming people today; and a median of 40% of people are very concerned that climate change will harm them personally.22 Finally, a median of 78% of people around the world are in favor of limiting GHG emissions through an international agreement.23

The consequences of climate change are also of significant concern. The same report found that “droughts or water shortage” were the most prominent concern, with a median of 41% of people fearing it.24 Other consequences that the survey covered are severe weather like floods or intense storms (with a median of 25%), long periods of unusually hot weather (with a median of 14%), and rising sea levels (with a median of 6%).25

These numbers indicate that concerns over climate change and its seriousness are prominent among a majority of people around the world. In an effort to improve international practices, many of these countries have come together to influence and establish international standards and rules through conventions.26

16. Id. 17. Id. at 12. 18. Becky Oskin, Amazon Rainforest Breaths in More Than It Breaths Out, LIVE SCI. (Mar. 20, 2014, 12:53 PM), http://www.livescience.com/44235-amazon-rainforest-carbon-cycle-measured.html [https://perma.cc/GQL2-R79F]. 19. STOKES ET AL., supra note 4. 20. Id. 21. Id. 22. Id. at 4, 5. 23. Id. at 23. 24. Id. at 22. 25. Id. at 7. 26. Kyoto Protocol, supra note 1, at 1.


C. Intergovernmental Panel on Climate Change (IPCC) and Paris Agreement COP 21

The IPCC is a leading international body for the assessment of climate change.27 It was established in 1988 under the auspices of the United Nations Environment Program (UNEP) and the World Meteorological Organization (WMO) to provide a clear scientific view on the current status of climate change and its possible impacts.28

In its assessment reports, the IPCC concluded that the main cause of climate change is due to human activities emitting GHGs.29 There are two different and extremely complicated carbon cycles on earth: slow and fast.30 The fast carbon cycle is when plants absorb carbon dioxide.31 Through a scientific process within the plants, they put oxygen back into the air.32 The slow carbon cycle takes 100 to 200 million years to evaporate in the atmosphere and can be found mostly as fossil fuels and natural gas.33 Since the industrial revolution, human exploitation of fossil fuels and natural gases caused carbon to evaporate into the atmosphere, causing excessive amounts of carbon dioxide to build up in the atmosphere. 34 The concentration of carbon dioxide in the atmosphere has increased from 280 parts per million (ppm) from the beginning of the industrial revolution to 403.19 ppm in February of 2016.35

The IPCC further predicted the future adverse effects of climate change if the current rate of GHG emissions continues.36 In its report, the IPCC stated that by 2050, the availability of freshwater in central, south, east, and southeast Asia—particularly in the large river basin—is projected to decrease.37 In addition, the report predicted that coastal areas in south, east,

27. Organization, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, http://www.ipcc.ch/-organization/organization.shtml [https://perma.cc/SUS8-K3WW] (last visited Jan. 12, 2017). 28. Id. 29. IPCC FIFTH ASSESSMENT REPORT, supra note 8. 30. SCHOENBAUM & YOUNG, supra note 3. 31. Id. at 348. 32. Id. 33. Id. 34. Id. 35. Carbon Dioxide, NAT’L AERONAUTICS & SPACE ADMIN., http://climate.nasa.gov/vital-signs/carbon-dioxide/ [https://perma.cc/DR3J-RTFT] (last updated Jan. 12, 2017). 36. LENNY BERNSTEIN ET AL., INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: SYNTHESIS REPORT 26, 50–51 (2007), https://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf [https://perma.cc/4NSW-HNPB]. 37. Id.


and southeast Asia will be at the greatest risk due to excessive flooding from the seas and rivers.38

Key to global responses to climate change was the 21st meeting of the Conference of the Parties to the UNFCCC in Paris, France (COP21). At this conference, 196 parties signed the Paris Agreement in November of 2015, including Afghanistan, creating a pact to mitigate carbon emissions and build resilience, prosperity, and a fair future.39 President Ashraf Ghani also participated at COP21 as the President of Afghanistan.40 He stated that Afghanistan was willing to undertake any measure within its capacity to curb the emission of GHGs; however, the budgets to fund the infrastructure for these measures have not been specified yet.41 President Ghani also added that Afghanistan has the capacity to generate 316,000 megawatts of energy using water, solar, and wind and that Afghanistan is planning to bridge the Middle East with South Asia to improve transference of natural gas and electricity. 42 With this statement, President Ghani confirmed Afghanistan’s commitment to generate electricity using methods that do not contribute to GHG emissions.

While the Paris Agreement alone is not adequate to effect serious change, it did carve a path for the international community to work on mitigation and adaptation methods that deal with carbon emissions.43 This Conference maintained the momentum of the global community and offered clear directions, including:

• long-term goals and signals, • a commitment to return regularly to make climate action

stronger, • a response to the impact of extreme climate events on the most

vulnerable, • the transparency needed to ensure action takes place, and

38. Id. 39. David Waskow & Jennifer Morgan, The Paris Agreement: Turning Point for a Climate Solution, WORLD RESOURCES INST. (Dec. 12, 2015), http://www.wri.org/blog/2015/12/paris-agreement-turning-point-climate-solution?utm_campaign=socialmedia&utm_source=facebook.com&-utm_medium=wri-page [https://perma.cc/38FB-E6SP]. 40. President Ghani Spoke in COP 21, GOV’T AFG. (Nov. 30, 2015), http://president.gov.af/fa/news/56688 [https://perma.cc/LH35-6DXM]. 41. Id. 42. President Ghani Speaks in the International Conference on Climate Change, ISLAMIC REPUBLIC AFG. (Dec. 1, 2015), http://aop.gov.af/english/1437/President+Ghani+Speaks+in+the+International+Conference+on+Climate+Change [https://perma.cc/5BSJ-JSVJ]. 43. Waskow & Morgan, supra note 39.


• finance, capacity building and technology to enable real change.44

The agreement further provides a new mechanism of collaboration and

unity among developed and developing countries.45 And, it involves all nations, civil societies, companies, and nongovernmental organizations (NGOs) for the purpose of mitigation and adaptation to GHGs.46

II. LEGAL, ADMINISTRATIVE, AND SOCIAL RESPONSES TO CLIMATE CHANGE IN AFGHANISTAN

As in most developing countries, Afghanistan’s current environmental regime is in an undesired condition. As explained above, many developing nations have come to view global warming as an important issue; however, in Afghanistan, it is not currently a prevalent concern. Lack of education has impeded awareness about the consequences of environmental degradation, and other immediate threats, like lack of security and rule of law, have dominated the focus of the government; as a result, environmental problems have not been a priority, contrary to the global perspective about the phenomena of GHGs’ adverse effects. In fact, environmental issues are generally ignored by Afghan politicians and other decision-makers in Afghanistan.47

At the same time, Afghanistan has been ranked among the most vulnerable countries to the adverse effects of climate change.48 Even though Afghanistan is landlocked, the consequences of drought, desertification, air pollution, extreme floods, and earthquakes are a major threat.49 Afghanistan emits 30.7 metric tons of carbon dioxide equivalent, which constitutes 0.1% of GHG emissions globally.50 Afghanistan is highly susceptible to natural 44. Id. 45. Id. 46. Id. 47. Afghanistan and Environmental Challenges, DAILY OUTLOOK AFG. (Nov. 28, 2015), http://outlookafghanistan.net/national_detail.php?post_id=13732 [https://perma.cc/R8MA-583S]. 48. SÖNKE KREFT ET AL., GERMANWATCH, GLOBAL CLIMATE RISK INDEX 2016, at 7 (2015), https://germanwatch.org/fr/download/13503.pdf [https://perma.cc/B674-3MKE]. 49. ISLAMIC REPUBLIC OF AFG., INTENDED NATIONALLY DETERMINED CONTRIBUTION: SUBMISSION TO THE UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE 2 (2015), http://www4.unfccc.int/ndcregistry/PublishedDocuments/Afghanistan%20First/INDC_AFG_20150927_FINAL.pdf [https://perma.cc/4Y6W-GTQC] [hereinafter AFG. INDC]. 50. Afghanistan, CAIT CLIMATE DATA EXPLORER, http://cait.wri.org/profile/Afghanistan (last visited Jan. 19, 2017) (listing Afghanistan’s annual metric ton carbon dioxide equivalent); see Johannes Friedrich & Thomas Damassa, The History of Carbon Dioxide Emissions, WORLD RESOURCES INST. (May 21, 2014), http://www.wri.org/blog/2014/05/history-carbon-dioxide-emissions [https://perma.cc/87B3-7TDR] (giving the global annual metric ton carbon dioxide equivalent).


disasters throughout its 34 provinces.51 As a result of climate change, it is anticipated that the incidences of extreme weather events, including heat waves, floods, and droughts, will likely increase as will climate-change-related disasters, such as glacial lake outflows. 52 More than 80% of Afghanistan’s population relies directly or indirectly on the available natural resources for their livelihoods,53 so with these climatic changes, the foundation of the country’s economy, stability, and food security is under threat.54

The people of Afghanistan are not well aware of the adverse effects of GHGs, and yet, they contribute to these emissions. According to the World Bank Databank for the years 2009, 2010, and 2011, GHG emissions have been increasing in Afghanistan, rising from 0.2, to 0.3, and finally to 0.4 metric tons per capita respectively.55 While Afghanistan is not one of the major polluters today, with the likely increase in industry and productivity that may result from globalization and rule-of-law efforts, it has the opportunity to act preemptively to ensure that its law and policy represents a higher standard of global consciousness and environmental stewardship.56 In a sense, Afghanistan is in a position to ensure that it never pollutes on the level of some of the world’s major polluters.

With that goal in mind, this section undertakes a critical examination of the current approach to carbon emission control in Afghanistan. In particular, this section first explains how command-and-control regimes work and the prevailing scholarly critiques of that regulatory approach. Next, this section describes Afghanistan’s current practices and concludes with a short critique of the current system. Ultimately, this section argues that command and control discourages more progressive approaches to eliminating carbon emissions. Furthermore, it posits that a command-and-control regime is difficult to administer in countries like Afghanistan, where people struggle against the effects of corruption on the rule of law, especially law enforcement.

51. AFG. INDC, supra note 49, at 2. 52. Id. 53. Shamim Niazi, Natural Resources and Peacebuilding: Challenges and Opportunities in Afghanistan, URGENCE RÉHABILITATION DÉVELOPPEMENT, http://www.urd.org/natural-resources-and [https://perma.cc/662S-6ULJ] (last visited Jan. 17, 2017). 54. AFG. INDC, supra note 49, at 2. 55. CO2 Emissions (Metric Tons per Capita), WORLD BANK, http://data.worldbank.org/indicator/EN.ATM.CO2E.PC?locations=AF [https://perma.cc/Z5UG-DLKL] (last visited Jan. 21, 2017). 56. World Development Indicators: CO2 Emissions per Capita, WORLD BANK, http://databank.worldbank.org/data/reports.aspx?source=2&series=EN.ATM.CO2E.PC&country= [https://perma.cc/DD6J-GYXS] (last visited Jan. 21, 2017).


A. Afghanistan’s Legal System and Climate-Change Governance

Because Afghanistan is best described as a mixed legal system, implementing any statutory scheme or policy requires attention to multiple, complex moving parts. Specifically, its legal system stems from a combination of Sharia law, civil law, and customary law; however, Article 3 in the Constitution clarifies that no Afghan law may contradict the beliefs and provisions of Islam.57 Afghanistan’s Constitution was adopted in June of 2004 with the consensus of the Grand Council (Loya Jirga) and signed by former President Karzai accordingly.58 The Constitution provides the legal, political, and administrative framework for the country. With respect to the environmental legal regime, Article 15 of the Constitution of Afghanistan states the following: “The state shall be obligated to adopt necessary measures to protect and improve forests as well as the living environment.”59 This article formed the basis for establishing Afghanistan’s National Environmental Protection Agency (AF NEPA) and adopting Afghanistan’s first environmental act.60

In 2006, Afghanistan adopted the Environment Law.61 This legislation had the support of the majority in both the Senate and House of Representatives.62 The Environment Law provided a framework legislation for environmental law in Afghanistan, covering most of the aspects of environmental law in 82 articles and nine chapters.63 The Environment Law describes the basic principles, obligations, responsibilities, and procedures associated with the environmental law command-and-control regime. It did not, however, provide a detailed provision regarding air pollution in Afghanistan.

Afghanistan’s Environment Law further describes a mechanism for betterment of the environmental conditions in Afghanistan.64 One of the

57. QANOONE ASASI JAMHURI ISLAMI AFGHANISTAN [Constitution of the Islamic Republic of Afghanistan] Jan. 26, 2004, ch. 1, art. 3 (“No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.”). 58. Id. at pmbl. 59. Id. at art. 15. 60. Brief Overview of Administration, ISLAMIC REPUBLIC AFG. NAT’L ENVTL. PROTECTION AGENCY, http://nepa.gov.af/fa/page/first-page (last visited Jan 17, 2017). 61. Qanoone Mohet Zist Afghanistan [The Environment Law] art. 82, Official Gazette 873, 1384 (2006), translated in Islamic Republic of Afghanistan Environmental Act, CONVENTION ON BIOLOGICAL DIVERSITY, https://www.cbd.int/doc/measures/abs/msr-abs-af-en.pdf [https://perma.cc/Q2L8-8K2D] (last visited Jan. 17, 2017). 62. Id. 63. Id. 64. Id.


interesting mechanisms in this legislation is the establishment of a coordination committee on both a local and national level.65

As a result, and because of the importance of prevention of air pollution overall, this piece of legislation resulted in adoption of the Anti-Air Pollution Act (AAPA). The AAPA was adopted in compliance with Articles 22 and 70(3) of the Environment Law and includes details of air pollution regulations.66 The AAPA was adopted to regulate air pollution to prevent any harm to the environment or human health as well as regulate the emission of chemicals that harm the global environment.67 The AAPA addresses air pollution from two different sources: (1) vehicular sources and (2) industrial sources.68

This regulation imposed restrictions on the excess amount of air pollution by the sources of air pollution.69 AAPA functions under the High Commission, head of NEPA as the president of High Commission, and the deputy ministers, as members to this Commission.70 The mechanism that it prescribes is prevention of excess air-pollution emissions.71 The regulation functions as the “stick” in the classic “carrot/stick” paradigm, aimed at deterring emitters.72 Different sanctions are incorporated in Chapter 5 of the AAPA.73 For instance, in Article 37, it states that if the owner of an industry failed to acquire the permit from AF NEPA and other related entities, the owner shall be fined 200,000 AFN—equivalent to $3,000 USD at the current currency rate.74 Furthermore, in Article 38, it states that if a firm fails to comply with the permit it obtained for polluting the air or pollutes the air more than allowed under the permit, it shall be fined 150,000 AFN—equivalent to $2,200 USD.75

65. Id. 66. Regulation on Decrease and Prevention of Air Pollution art.1, Official Gazette 991, 1388 (Afg.). 67. Id. at art. 2. 68. Id. at art. 4. 69. Id. at art. 5. 70. Id. at art. 24 (describing the responsibilities and methods of the High Commission under the AAPA). 71. Id. at ch. V (explaining the possible sanctions if the emission is exceeded). 72. Id. at ch. 5; see also Peter May, Social Regulation, in THE TOOLS OF GOVERNMENT: A GUIDE TO THE NEW GOVERNANCE 156, 157 (Lester M. Salamon ed., 2002) (analogizing government oversight as a “stick” used to ensure compliance with social regulations). 73. Regulation on Decrease and Prevention of Air Pollution ch. 5, Official Gazette 991, 1388 (Afg.). 74. Id. at art. 37(2); see also XE Currency Converter: AFN to USD, XE, http://www.xe.com/currencyconverter/convert/?Amount=200%2C000&From=AFN&To=USD (last visited Apr. 23, 2017) (converting the Afghan Afghani to the U.S. Dollar). 75. Regulation on Decrease and Prevention of Air Pollution art. 37(2), Official Gazette 991, 1388 (Afg.); see also XE Currency Converter: AFN to USD, XE,


The sanctions provided in the AAPA are inadequate when a firm contributes only to the emission of pollutants in the air. The costs of not complying are too small, and as a result, it is highly unlikely that a firm will find the necessary incentive to reduce emission of GHGs.

Against this backdrop of domestic law, Afghanistan signed the UNFCCC on June 12, 1992, as a Non-Annex I party.76 However, due to civil war and other internal issues, Afghanistan did not ratify the UNFCCC until September 19, 2002, during the establishment of the new political regime in Afghanistan.77 Afghanistan also participated in the meetings of the IPCC and undertook to adopt and implement a system to prevent the emission of GHGs.78 Recently, prior to the adoption of the Paris Agreement at COP21, Afghanistan submitted its GHG reduction contribution report and undertook to reduce the emission of GHGs to 13.6% by 2030 compared to the Business as Usual Index.79

B. Administrative Apparatus of Environmental Functions in Afghanistan

The AF NEPA was established in 2004 for the purpose of management, structure, supervision, and enforcement of environmentally related functions.80 AF NEPA was established to fulfill needs of the Ministry of Water Resources of Afghanistan.81 Article 3 of the Environment Law identifies AF NEPA as the appropriate apparatus for enforcing the rules and regulations that protect the environment.82 AF NEPA functions under the concept of chain and command with a different hierarchy of offices under its structure.83 AF NEPA has 24 divisions in 24 provinces of Afghanistan http://www.xe.com/currencyconverter/convert/?Amount=150%2C000&From=AFN&To=USD (last visited Apr. 23, 2017) (converting the Afghan Afghani to the U.S. Dollar). 76. Status of Ratification of the Convention, U.N. FRAMEWORK CONVENTION ON CLIMATE CHANGE, http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php [https://perma.cc/QD94-2ZDL] (last visited Feb. 19, 2017). 77. See Afghanistan, U.N. FRAMEWORK CONVENTION ON CLIMATE CHANGE, http://unfccc.int/tools_xml/country_AF.html [https://perma.cc/63AF-F32T] (last visited Jan. 21, 2017) (detailing Convention ratification in September of 2002); cf. Afghanistan Profile - Timeline, BBC NEWS (Nov. 21, 2016), http://www.bbc.com/news/world-south-asia-12024253 [https://perma.cc/D56D-KTZY] (chronicling the political climate in Afghanistan). 78. United Nations Framework Convention on Climate Change art. 3, May 9, 1992, 1771 U.N.T.S. 107 [hereinafter UNFCCC]. 79. AFG. INDC, supra note 49, at 1. 80. The Environment Law art. 9, Official Gazette 873, 1384 (Afg.). 81. David A. Taylor, Policy: New Environment Law for Afghanistan, NAT’L CTR. FOR BIOTECHNOLOGY INFO. (Mar. 2006), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1392251/ [https://perma.cc/9EP3-76DU]. 82. The Environment Law art. 3, Official Gazette 873, 1384 (Afg.). 83. See Divisions, ISLAMIC REPUBLIC AFG. NAT’L ENVTL. PROTECTION AGENCY, http://nepa.gov.af/fa/page/divissions [https://perma.cc/9LKH-Q7CV] (last visited Jan. 24, 2017) (listing AF NEPA’s divisions).


that function under the same mandate as AF NEPA, but in local jurisdictions only.84

In 2010, AF NEPA established the division of climate change and adaptation.85 The Climate Change and Adaptation Division employs 16 experts who are divided into four different sub-committees. 86 The committees are as follows: (1) the committee to reduce the adverse effects of climate change; (2) the adaptation committee to climate change; (3) the committee of GHG emission reduction; and (4) the committee to report the climate-change situation to UNFCCC.87 The purpose of this division is to provide drafts, strategies, and methods to combat the effects of climate change in Afghanistan and to promote compliance with the UNFCCC, Kyoto Protocol, and other related protocols to which Afghanistan is a party.88

C. Command-and-Control Regimes and Their Disadvantages

Command and control describes a system based on rules and regulations; therefore, some have favored it for the sake of simplicity and realism.89 From the beginning of the environmental protection movement in the 1970s until recently, this system was the first point of focus for the international community because of familiarity.90

In typical command-and-control systems, the functions of entities and organs are decided by rules and regulations.91 This system of governance is also called the traditional method, which again, gives a stick to the government to compel the people to obey the rules adopted by the

84. Brussels UNEP, UNEP Helped to Establish Afghanistan’s National Environmental Protection Agency (NEPA), EUR. COMMISSION (Jan. 16, 2015, 4:46 PM), http://capacity4dev.ec.europa.eu/unep/blog/unep-helped-establish-afghanistans-national-environmental-protection-agency-nepa [https://perma.cc/QQU7-THHR]. 85. Head of Climate Change Adaptation, ISLAMIC REPUBLIC AFG. NAT’L ENVTL. PROTECTION AGENCY, http://nepa.gov.af/fa/page/divissions/division-of-natural-heritage-protection# [https://perma.cc/U9MS-S3UL] (last visited Jan. 17, 2017). 86. Id. 87. Id. 88. Id. 89. See generally Daniel Cole & Peter Grossman, When Is Command-and-Control Efficient? Institutions, Technology, and the Comparative Efficiency of Alternative Regulatory Regimes for Environmental Protection, 1999 WIS. L. REV. 887–903, 935–38 (1999) (demonstrating the advantages of command-and-control systems). 90. Command-and-Control Regulation, KHAN ACAD., https://www.khanacademy.org/economics-finance-domain/microeconomics/consumer-producer-surplus/environmental-regulation/a/command-and-control-regulation-cnx (last visited Apr. 23, 2017); see also May, supra note 72, at 157 (explaining how this type of regulation is typically used in to regulate the environment). 91. Command-and-Control Regulation, supra note 90.


authority.92 The purpose of social regulations is to restrict the behavior that threatens public health, safety, welfare, or wellbeing—for example, behavior that produces environmental pollution or affects the safety of a working environment.93

As a system of governance, command and control is common around the world, and it is little wonder that several of Afghanistan’s environmental laws have adopted this structure.94 Still, the regulations vary considerably in what they require or prohibit.95 Some regulations merely require individuals or firms to supply information to other sectors or concerned entities.96 For example, the newly adopted Nuclear Energy Law requires that, in emergency situations, Afghanistan is responsible for informing the International Atomic Energy Agency about an emergency.97 This includes the place that might be at risk of being exposed to adverse effects of a nuclear incident.98

Some regulations require the governed to follow specific processes. For example, to obtain a permit for recycling, an applicant must apply to AF NEPA. 99 Finally, some regulations might prohibit engaging in certain activities. For instance, polluting the air is prohibited under the AAPA.100

Command-and-control regimes typically share the following characteristics: (1) they have rules that govern expected behaviors; (2) they promulgate standards that serve as benchmarks for compliance; (3) they apply sanctions for noncompliance with the rules; and (4) they have an administrative apparatus that enforces the rules and administers sanctions.101 The rules generally specify certain actions that are allowed to take place or prohibited from being implemented. 102 These rules set standards for compliance, which is assessed with respect to date and process: acknowledging which actions were completed, to what extent they adhered to the imposed standards, or both. 103 In his book, Social Regulation, Tools of Government: A Guide to the New Governance, Peter May notes that in order to ensure compliance, the threat of consequences 92. May, supra note 72, at 157. 93. Id. 94. Id. 95. Id. at 159. 96. Command-and-Control, supra note 90. 97. Qanoone Energy Hastawi [Nuclear Energy Law] art. 32, Official Gazette 1182, 1394 (2015) (Afg.). 98. Id. 99. The Environment Law art. 34–36, Official Gazette 873, 1384 (Afg.). 100. Regulation on Decrease and Prevention of Air Pollution art. 5, Official Gazette 991, 1388 (Afg.). 101. May, supra note 72, at 158. 102. Id. 103. Id.


for noncompliance must be adopted, including sanctions imposed through the regulations themselves.104 He also explains that in order to achieve the purpose of the regulation, an administrative apparatus must control and monitor compliance and carry out enforcement.105

Despite the popularity of command-and-control legislation, many scholars and experts have criticized command-and-control systems, finding that they discourage innovation or changes to the way industry approaches the problem of pollution.106 Further, assuming that the regulations are efficient, command-and-control systems might draw accusations of unfairness from polluting firms.107 This is because if a firm unfairly emits GHGs and is charged fines or sanctioned by the government, there is no way for the shareholders to know that the firm is a major emitter of GHGs.108 The command-and-control system does not provide a mechanism to inform the current shareholders or other people who are willing to invest in such firms of the firm’s violations regarding GHG emission.

In addition to the aforementioned criticisms, there are additional barriers to the effectiveness of command-and-control regimes in Afghanistan. This includes the lack of rule of law, corruption, failure in both capacity and will by law enforcement entities, and lack of compliance by industries. The Afghan rule-of-law index indicates the gap in effectiveness as an important concept in the country. If the country does not have efficient rule of law, it is very hard to achieve the target for emission reduction. In addition, Afghanistan is currently in a situation where, even with rules, the enforcement of the rules is a very big concern. In the current era, with the enforcement apparatus, the enforcement of rules is seriously impaired by corruption, among other problems.109 Hypothetically, if a firm produces an excess amount of GHGs, it could bypass the laws by bribing the authorities and cleaning its name off the violators list. Furthermore, firms and individuals have generally lost their faith in the effectiveness of government; they think non-compliance is easier to manage.110

104. Id. 105. Id. 106. See, e.g., Robert N. Stavins, Experience with Market-Based Environmental Policy Instruments 1–2 (Res. for the Future, Discussion Paper No. 01-58, 2001) (critiquing command-and-control regulation). 107. May, supra note 72, at 159. 108. Id. at 160.

109. U.N. OFFICE ON DRUGS & CRIME, CORRUPTION IN AFGHANISTAN: RECENT PATTERNS AND TRENDS 5 (2012), https://www.unodc.org/documents/frontpage/Corruption_in_Afghanistan_FINAL.pdf [https://perma.cc/Z6LC-WYPU]. 110. Id. at 23.


Afghanistan is one of the poorest countries in the world, lacking adequate revenue to not only compensate government workers in such a way that prevents them from being susceptible to bribes, but also to pay for the governmental systems that the law creates.111 Afghanistan’s economy relies heavily on the foreign aid revenue for its domestic development funds.112 Almost 70% of Afghanistan’s budget is funded by international aid.113 This reliance is mostly because Afghanistan lacks sufficient revenue to fund its developmental projects.114 Command-and-control systems do not sell emissions permits to the regulated entities; thus, the companies emit without compensating the government. In other words, the price of carbon in Afghanistan is free at the moment. Considering all of the above, it is safe to say that command and control is not working well in Afghanistan.

III. MODERN APPROACH TO GOVERNANCE OF GREENHOUSE-GAS EMISSIONS

For reducing GHGs, there are different systems of governance that have been promulgated that appear to be more helpful than command and control. Among these, cap and trade stands out as the one that the international community has begun to favor. The cap-and-trade system is widely practiced in the EU, and the Kyoto Protocol also recommends this system.

This section addresses the promise of and likely challenges that would arise by implementing a cap-and-trade system for controlling GHG emissions in Afghanistan. First, it explores the theoretical roots of emissions-trading regimes. Next, it explores the implementation of emissions-trading systems (ETS) in other countries, with a particular emphasis on the EU’s Emissions-Trading Scheme (EU ETS) for GHGs. Finally, it analyzes whether an ETS could be a viable approach for Afghanistan.

111. The World Fact Book: Afghanistan, CENT. INTELLIGENCE AGENCY, https://www.cia.gov/library/publications/the-world-factbook/geos/af.html [https://perma.cc/CMA4-QWND] (last visited Mar. 11, 2017); Jessica Donati & Hamid Shalizi, UN Investigation Finds Corruption in Afghan Police Oversight Division, REUTERS (Apr. 19, 2015, 2:56 AM), http://www.reuters.com/article/us-afghanistan-corruption-idUSKBN0NA06C20150419 [https://perma.cc/F956-4V55]. 112. World Donors Pledge $15 Billion for Afghanistan, AL JAZEERA (Oct. 5, 2016), http://www.aljazeera.com/news/2016/10/afghanistan-aid-donors-pledge-billions-brussels-161005130723718.html [https://perma.cc/X96C-TN9P]. 113. Id. 114. Id.


A. Cap and Trade: Theoretical Roots

Under the emission-trading or cap-and-trade approach, governments set overall emission caps and distribute permits to firms based on those cap; the firms that emit less or more have the ability to sell or buy permits in the market.115 This approach is driven by market incentives, where the firms will try to buy or innovate new technologies to emit less because economically this approach helps the firm perform better in the long term.116 Under this approach, the cap should be decreased each year to achieve the GHG reduction goals for a government.117

Theories that promulgated the idea of emissions trading harken back to academics from the 1960s,118 stemming from the principle that the polluter pays. This reflects the economic rule of cost allocation, with externalities being the source of this principle.119 Externalities are described as the cost of a transaction to a third party, a party that has no control over the transaction.120 A negative externality can be described as a cost to the external environment.121

An example of such externalities can be the release of anthropogenic GHGs into the atmosphere, causing the atmospheric concentration of GHGs to increase, ultimately resulting in climate change.122 The theory states that the cost of this externality should be allocated to these emissions and borne by its producers.123 Pigou was the first scholar that recommended a tax system for these externalities.124 Pigouvian theory suggested adopting a corrective tax because such taxes correct the inequities created when

115. See Stavins, supra note 106, at 26–27 (discussing the operation of a cap-and-trade program in the EU for ozone-depleting substances). 116. How Cap and Trade Works, ENVTL. DEF. FUND, https://www.edf.org/climate/how-cap-and-trade-works [https://perma.cc/Y7KJ-RTQ3] (last visited Jan. 12, 2017). 117. Id. 118. SANJA BOGOJEVIĆ, EMISSIONS TRADING SCHEMES: MARKETS, STATES AND LAW 5 (2013). 119. Brian J. Preston, Sustainable Development Law in the Courts: The Polluter Pays Principle, N.S.W. LAND & ENV’T COURT 2 (2009), http://www.lec.justice.nsw.gov.au/Documents/preston_the%20polluter%20pays%20principle.pdf [https://perma.cc/PG4P-MHL3].

120. Environment: Assessing the Real Costs of “Externalities,” EARTHTALK (Dec. 8, 2010), http://business-ethics.com/2010/12/08/environment-assessing-the-real-cost-of-externalities/ [https://perma.cc/ZBV7-JHTT]. 121. Id. 122. Id. 123. FELICITY DEANE, EMISSIONS TRADING AND WTO LAW: A GLOBAL ANALYSIS 12 (2015). 124. Arthur Cecil Pigou, LIBR. ECON. & LIBERTY, http://www.econlib.org/library/Enc/bios/Pigou.html [https://perma.cc/J469-K48Y] (last visited Jan. 18, 2017).


industry uses resources for free and cause the price of production to be closer to the social cost of production.125

As Ronald Coase has observed, pollution is the byproduct of production, and the market, rather than the government, can regulate it accordingly. 126 Sanja Bogojevic describes three different models of emissions-control schemes: (1) economic efficiency; (2) private property rights; and (3) command-and-control models.127 Economic efficiency is related to internalizing the external costs of environmental degradation.128 The private-property-rights model stems from the idea that resources belong to no one, thus everyone is exploiting them; hence, property should be assigned to private actors, and those actors should let the market decide how to control the resources.129 Finally, the command-and-control model puts restrictions on resource users.130 As noted above, the trading scheme is envisioned as an innovative model of regulatory strategy by making it administratively flexible.131 One other benefit of a trading scheme is that a firm can add to its units by buying them or using other methods.132

B. The Mechanics of Emissions Trading

To create a trading market, the key step is to create the object that can be traded within that market.133 When assigning value to carbon emissions within a market, governments should consider setting higher prices in order to encourage the regulated parties to reduce carbon emissions rather than pay the higher prices because abatement is less expensive than emitting.134 In order to achieve this goal, an ETS influences market forces by enabling the price of GHG emissions to be traded on an open market. Emissions are represented by a prescribed unit.135

125. RICHARD A. IPPOLITO, ECONOMICS FOR LAWYERS 240 (2005). 126. See R. H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960) (arguing that high transaction costs then make nuisance issues more likely and that if there were lower transaction costs, nuisance issues would resolve naturally, indicating that the role of government is to reduce transaction costs). 127. BOGOJEVIĆ, supra note 118, at 20. 128. Id. 129. See Garrett Hardin, The Tragedy of the Commons, 162 SCI. 1243, 1243 (1968) (discussing the causes of resource overexploitation). 130. BOGOJEVIĆ, supra note 118, at 20. 131. Id. 132. DEANE, supra note 123, at 14. 133. Id. 134. Rosemary Lyster, Chasing Down the Climate Change Footprint of the Public and Private Sectors: Forces Converge - Part II, 24 ENVTL. & PLAN. L.J. 450, 452 (2008). 135. MICHAEL BOTHE & ECKARD REHBINDER, CLIMATE CHANGE POLICY 104 (2005).


The concept of ETS was initially developed for the purpose of trading units and credits in the open market, which is associated with the right to emit GHGs. 136 An ETS generally requires a target (cap) and units (tradable), and an authority assigns units to the regulated parties through allocation or through an auction run by that authority.137 The effectiveness of these allowances depends on the price for allocation of the permits, meaning that when the price of mitigation is less than the price of buying units, it is more effective than the other way around.138

A shared feature of a cap-and-trade ETS is the mechanism to create a market for trading the credits or units.139 This mechanism creates the market to buy and sell the permits distributed by a regulatory body or generated by a GHG emissions-reduction project.140 The market created by the cap and trade can be categorized into two different types: (1) regulated markets and (2) voluntary markets. 141 Regulated markets result from mandatory reductions of emissions.142 Voluntary markets are not regulated by any legal framework, meaning that participation is not mandatory through any governmental agency.143

In voluntary markets, the participants are similar to those of regulated markets. 144 The participants in voluntary markets are companies, governments, organizations, organizers of international events, and individuals.145 As opposed to regulated markets, participants in voluntary markets have the desire to take responsibility and act to mitigate the adverse effects of climate change by voluntarily purchasing the carbon offsets.146 These offsets are mostly purchased from entities that invest in an offset project and earn credit to sell it to bigger companies.147 Both regulated markets and voluntary markets form the platform to trade carbon units or credits.148 This article focuses on regulated markets over voluntary markets because Afghanistan currently has no platform for trading carbon, and it will be vital to institutionalize the market. After the institution is established and tested, voluntary markets would have a better chance of success. 136. Id. 137. Id. 138. Id. at 105. 139. DEANE, supra note 123, at 14. 140. RICARDO BAYON ET AL., VOLUNTARY CARBON MARKETS: AN INTERNATIONAL BUSINESS GUIDE TO WHAT THEY ARE AND HOW THEY WORK 3 (Ricardo Bayon et al. eds., 2007). 141. DEANE, supra note 123, at 15. 142. Id. 143. Id. 144. Id. 145. Id. 146. BAYON ET AL., supra note 140, at 5. 147. Id. 148. Id.


C. Tradeable Instruments of Cap and Trade

Markets exist for the purpose of trade.149 The “object” of the trade enables the trade; without the object of the trade, the market will not exist.150 However, the object can exist independently of markets.151 The central object of an ETS is a tradable instrument that represents a set of quantities of GHG emissions.152 The instruments are the core features of any ETS.153 Thus, carefully designing the instrument is critical to the overall legal and financial architecture of these schemes.

There are different labels used for tradable instruments, such as emission units, emission credits, and emission permits. 154 The most common of these are emission units.155 Emission units are the core feature of the cap-and-trade system designed to allocate a specific quantity of GHGs from the government or other related authorities to mitigate climate-change affects.156 Emission units are distributed either by free allocation or by auction. 157 By tracking these units, the government can monitor emissions of GHGs from a specific firm.158 Furthermore, it is through this restriction that the target of mitigation is set by governments. 159 Additionally, it is essential that these units have legal features to ensure their participation in the market.160 The reason for this approach is to enable these units to be transferable between entities.161

Another tradable instrument is emission credits.162 With credits, if the entity funds a project, the amount of reduced emissions can be turned into

149. See id. at 3 (describing the theory behind carbon markets). 150. See id. (stating the purpose of turning units of pollution into units of property). 151. Id. at 4. 152. Id. 153. See generally id. (describing the structure of emissions trading). 154. Id. at 4–7. 155. Id. at 7. 156. Carbon Pricing Watch 2016, WORLD BANK GRP. 1, 8–10 (2016), https://openknowledge.worldbank.org/bitstream/handle/10986/24288/CarbonPricingWatch2016.pdf?sequence=4&isAllowed=y [https://perma.cc/2LCD-4GNF]. The Australian Carbon Pricing Mechanism refers to the unit of trade as carbon units, and the European Union Emission Trading Scheme refers to unit as allowances. Id. 157. James P. Barrett, Arguments for Auctioning Carbon Permits, ECON. FOR EQUITY & ENV’T (Apr. 2009), http://e3network.org/wp-content/uploads/2015/04/Barrett_Arguments_for_Auctioning_Carbon_Permits.pdf [https://perma.cc/26FD-5L5K]. 158. DEANE, supra note 123, at 17. 159. Id. 160. Id. 161. Id. 162. Id.


credits, and the entity would be entitled to sell those earned credits.163 Through this mechanism, the credit holder takes those credits to the validators, then the verifiers, and finally the new entity owns the credits.164 Carbon credits have created a billion-dollar business around the world.165 However, the process of obtaining these credits is not as easy as it sounds because the procedure to obtain approval for the newly generated credits is so complex.166 The generation of emission credits requires specificity in the legal framework for a particular methodology of a project.167 In addition, these units require approval from certifiers and verifiers.168

The third tradable instrument is emission permits. A permit is defined by the Oxford English Dictionary as “an official document giving permission to do something.”169 A permit is necessary when an act is normally prohibited, but permission can be acquired through a permit process. Within the EU ETS, the emission of GHGs is prohibited, and a permit is required to expel any emissions.170

D. Emissions Trading System Under International Law

International law is a permissive system, such that unless something is strictly prohibited, states are permitted to behave in a manner that satisfies them.171 International law imposes duties on the international community to respect the res communis.172 Res communis is defined as the area beyond the national jurisdiction of countries, such as high seas and outer space.173 Over the past decade, numerous ETSs have been adopted.174

163. Jeff Coelho, Global Carbon Market Value Rises to Record $176 Billion, REUTERS (May 30, 2012, 11:36 AM), http://www.reuters.com/article/us-world-bank-carbon-idUSBRE84T08720120530 [https://perma.cc/K6J4-3428]. 164. DEATHERAGE, supra note 13, at 23 165. Id. 166. Id. 167. About the Mechanism, CLEAN ENERGY REGULATOR (May 11, 2015), http://www.cleanenergyregulator.gov.au/Infohub/CPM/About-the-mechanism [https://perma.cc/43ZB-8SVP]. For example, Australian Carbon Pricing Mechanism has some limitation to surrender carbon credit units during the fixed price of carbon. Id.

168. Tüv Nord Cert – Validation, Verification and Certification of JI/CDM Projects, TÜV NORD CERTIFICATION, https://www.tuev-nord.de/fileadmin/Content/Global/TUEV_NORD_Archiv/pdf/pdb-jicdm-0509.pdf [https://perma.cc/43ZB-8SVP] (last visited Feb. 19, 2017). 169. Permit, OXFORD DICTIONARY (2d ed. 1991). 170. SCHOENBAUM & YOUNG, supra note 3. 171. The Case of the S.S. Lotus (Fr. v. Turk.), Judgement, 1927 P.C.I.J. (ser. A) No. 10, at 18-19 (Sept. 7). 172. DEANE, supra note 123, at 18. 173. Id. 174. Id.


In the 1960s, the United States was the first country to introduce an ETS with its sulfur dioxide reduction plan.175 The sulfur dioxide plan was introduced to reverse the effects of acid deposition through an emission allocation and transfer program. 176 This plan started by capping the emission of sulfur dioxide from coal-fired power plants and expanded to incorporate more corporations and areas. 177 This plan influenced the international community and shaped the international climate-change regime under international law.178

1. The Kyoto Protocol

Under international law, emission control through cap and trade began with the adoption of the Kyoto Protocol (KP).179 The primary purpose of the KP was to prevent the anthropogenic emissions of GHGs.180 With this regulatory scheme, the KP established different methods of credits and units for developed countries to meet their targets of GHG emissions.181 Each unit and credit has a distinguished characteristic in their nature.182 There are different types of emission units and credits created by the KP.183 It is important to understand the difference between each unit and credit to continue with a trade scheme.

a. Assigned Amount Units

The KP emission limitations and regulations have led to the creation of Assigned Amount Units (AAUs). 184 All Annex I states, or developed nations, received a certain amount of AAUs in compliance with their legal obligations under the KP.185 Each AAU corresponded to the emission of the equivalent of one ton of carbon dioxide.186 Carbon dioxide equivalent is a measure used to compare the emissions from various GHGs based on their

175. Id. 176. Id. 177. Id. 178. Id. 179. Kyoto Protocol, supra note 1, at 33. 180. Id. 181. Id. at 33, 35, 38, 40. 182. DEANE, supra note 123, at 20. 183. Kyoto Protocol, supra note 1, at 33, 35, 38, 40. 184. Id. at 33. 185. Id. 186. Glossary of Climate Change Acronyms and Terms, U.N. FRAMEWORK CONVENTION ON CLIMATE CHANGE, http://unfccc.int/essential_background/glossary/items/3666.php [https://perma.cc/YDX4-FLQG] (last visited Jan. 18, 2017).


global-warming potential.187 For example, the global-warming potential for methane is measured as 21 over 100 years.188 This means that emissions of one million metric tons of methane is equivalent to the emission of 21 million metric tons of carbon dioxide. These allowances do not mean that the country has gained a right over the atmosphere, but it is merely a permit to emit a specific amount.189

b. Certified Emission Reductions

The tradable instrument created by the flexibility mechanisms of the KP includes Certified Emission Reductions (CERs).190 CERs are those GHG credits that are issued by the Clean Development Mechanism (CDM) of the KP.191 Under the CDM, Annex I states implement a reduction project in a developing country to receive a credit.192 The purpose of CER projects is to promote sustainability within developing countries; at the same time, it is intended to enable developed nations to achieve their emission target under the KP.193 Under the KP, there are a number of requirements that must be satisfied in order to earn CER credit through the CDM. 194 Certification from the CDM requires a showing that emission reductions exceed what would have resulted if the project were not implemented.195 Other restrictions are imposed on CERs, depending on the type of CERs. For instance, any CDM project that comes out of afforestation and reforestation activities, receive either temporary CERs (tCERs) or long-term CERs (lCERs). 196 These credits do not have the same legal characteristics as general CERs.197

187. Dolf Gielen & Tom Kram, The Role of Non-CO2 Greenhouse Gases in Meeting Kyoto Targets (1998) (unpublished paper), https://www.oecd.org/dev/1923119.pdf [https://perma.cc/YHH5-5TXW]. 188. DEATHERAGE, supra note 13, at 23. 189. DEANE, supra note 123, at 21. 190. Kyoto Protocol, supra note 1, 38 (agreeing not to buy AAUs from the first commitment period of Kyoto, such as Australian, the EU, Japan, Liechtenstein, Monaco, Norway, and Switzerland). 191. Id. 192. Id. 193. NICOLA DURRANT, LEGAL RESPONSES TO CLIMATE CHANGE 50 (2010). 194. Kyoto Protocol, supra note 1, at 38. 195. DURRANT, supra note 193, at 52. 196. DEANE, supra note 123, at 22. 197. Id.


c. Emission Reduction Units

Reduction units result from joint implementation projects that generate Emission Reduction Units (ERUs).198 This instrument features a reduction project implemented by one Annex I country with another Annex I country.199 The party that implements this kind of project is the owner of the emission reductions generated.200 ERUs are also carbon credits, but unlike CERs, they are not additional credits.201 In order to generate ERUs, the host country of a joint-implementation project must cancel either an AAU or a Removal Unit.202 The host country shall subsequently transfer the generated ERU to the country that implemented the project.203 Similar to CDM projects, joint-implementation projects have regulatory barriers.204 However, developed nations typically do not accept such projects because they want the AAUs for themselves rather than transferring them to another developed nation.205

d. Removal Units

A Removal Unit (RMU) instrument is issued by developed countries when they engage in land-use, land-use-change, and forestry (LULUCF) activities.206 RMUs can be issued in addition to their AAUs, which will further assist the developed nations in meeting their targets.207 The KP requires developed nations to create a scientific entity to evaluate the 1990 base line of GHG emissions.208 If there is a LULUCF project implemented by the country, the committee needs to verify the project and should be transparent.209 This process will create new types of units for the country, and developed nations can trade them like other types of units.210

198. Kyoto Protocol, supra note 1, at 35. 199. Id. 200. Id. 201. DURRANT, supra note 193, at 56. 202. Kyoto Protocol, supra note 1, at 35. 203. Id. 204. Id. 205. DURRANT, supra note 193, at 58. 206. Kyoto Protocol, supra note 1, at 33. 207. Id. 208. Id. 209. Id. 210. DEATHERAGE, supra note 13, at 45.


2. The European Union

The EU provides a good example of how an ETS works in practice. While this article does not attempt to provide the intricate details of each country’s experience with ETS nor does it detail all aspects of the EU cap-and-trade system, a basic discussion of the EU system gives some context to discussions about how to develop cap-and-trade programs.

First, the EU operates the most ambitious GHG ETS in the world.211 The EU ETS was adopted in 2005, and it includes all 28 EU countries as well as Iceland, Liechtenstein, and Norway.212 As mentioned, the EU ETS was initially established by an EU Directive in 2005.213 This directive was subsequently amended by other directives.214 This scheme was designed to allocate the allowances by the obligations undertaken through the KP.

Each member of the EU implements the EU ETS through National Allocation Plans (NAPs) under EU law;215 however, NAPs have not been implemented since 2013.216 The EU ETS has been proceeding in three different phases; the third phase began in 2013 and is set to continue through 2020. 217 Initially, the EU ETS covered only carbon dioxide; however, in 2013, several nitrous oxide emissions were added to the list.218

The regulated parties are stationary installations, including combustion plants, oil refineries, coke ovens, iron and steel factories, and factories making cement, glass, lime, brick, ceramics, pulp, and paper.219 There are approximately 13,000 installations under the EU ETS, and a cap is set for carbon dioxide and nitrous oxide.220 In addition, EU ETS has a linear decrease of 1.74% in emissions per year.221 The installations covered by the EU ETS comprises approximately 43% of the GHG emissions in the EU because economic centers are not covered under this system, such as 211. SCHOENBAUM & YOUNG, supra note 3. 212. Id. 213. Directive 2003/87/EC, of the European Parliament and of the Council of 13 October 2003 Establishing a Scheme for Greenhouse Gas Emission Allowance Trading Within the Community and Amending Council Directive 96/61/EC, 2003 O.J. (L 275) 32, 32. 214. See Directive 2004/101/EC, of the European Parliament and of the Council of 27 October 2004 Amending Directive 2003/87/EC Establishing a Scheme for Greenhouse Gas Emission Allowance Trading Within the Community, in Respect of the Kyoto Protocol’s Project Mechanisms, 2004 O.J. (L 338) 18, 18 (amending a previous directive establishing a GHG ETS). 215. SCHOENBAUM & YOUNG, supra note 3. 216. Directive 2009/29/EC, of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to Improve and Extend the Greenhouse Gas Emission Allowance Trading Scheme of the Community, 2009 O.J. (L 140) 64, 63. 217. SHOENBAUM & YOUNG, supra note 3. 218. Id. 219. DEANE, supra note 123, at 22. 220. SHOENBAUM & YOUNG, supra note 3. 221. Id.


transportation.222 Releasing emissions is prohibited under EU law, meaning that the member states must acquire permits in order to emit.223 EU ETS permits have a reporting and monitoring requirement and is reviewed every five years.224 In addition to holding a permit, the firm is required to surrender at least some amount of its permits at the end of year.225 Emission units under EU ETS are called EU Allowances (EUAs).226

In a recent amendment to the directives, all the tradable instruments were categorized as financial instruments. 227 These allowances were deemed transferable, and as such, they create market incentives to minimize emissions by reducing emission control costs.228 Regulated firms have the discretion to abate their emissions.229 Article 12 of the directive also states that the allowances would be cancelled once surrendered.230 With respect to EUAs, there is no different qualification than the ordinary units previously stated, which is generally standard in other ETSs.231

IV. SUGGESTIONS FOR AFGHAN LAW REFORM

A. Benefits of Shifting to Cap and Trade

With its gross domestic product (GDP) per capita of $633 purchasing power parity (ppp) in 2014, Afghanistan is categorized as a lower income country.232 As such, under the current regime in Afghanistan, increasing revenue for development should be a priority. Since 2001, 70% of Afghanistan’s budget is being funded by foreign aid,233 but creating new, independent revenue streams is becoming increasingly feasible. Afghanistan’s government recently began collecting new taxes, for

222. Id. 223. Directive 2003/87/EC, supra note 213, at 33. 224. Directive 2009/29/EC, supra note 216, at 70, 63. 225. Directive 2003/87/EC, supra note 213, at 35. 226. Id. at 32 (describing the role of allowances in an ETS). 227. Directive 2014/65, of the European Parliament and of the Council of 15 May 2014 on Markets in Financial Instruments Amending Directive 2002/92/EC and Directive 2011/91/EU Text with EEA Relevance, 2014 O.J. (L 173) 349, 349–50. 228. SHOENBAUM & YOUNG, supra note 3. 229. Id. 230. Directive 2003/87/EC, supra note 213, at 36. 231. DEANE, supra note 123, at 27. 232. World Development Indicators, WORLD BANK, http://databank.worldbank.org/data/reports.aspx?Code=NY.GDP.PCAP.CD&id=af3ce82b&report_name=Popular_indicators&populartype=series&ispopular=y [https://perma.cc/ZC37-95BA] (last visited Jan. 12, 2016). 233. World Donors Pledge $15 Billion for Afghanistan, supra note 112.


example, 10% of top up balance is deducted as tax.234 This suggests that the system is eager to generate different fiscal revenues to continue the existence of the government.

Consistent with this effort, shifting to a cap-and-trade regime would create a new stream of revenue for the government. With cap and trade, the government could auction the units to the industries and spend the income to address other issues in Afghanistan. At first, because the units would be adequate for all the industries and other sources, it would generate less revenue; however, with each year, Afghanistan could decrease the cap, and the price of the units would rise, which would enable the country to create substantial revenue for income.

A cap-and-trade system would also help with enforcement because it is essentially self-executing. Under the current regime, Afghanistan lacks sufficient enforcement mechanisms, and what mechanisms exist are compromised by corruption, especially bribing authorities to overlook the rules. Under cap and trade, when the units are auctioned to the market, the market itself will reduce emissions over time because of the market’s drive to maximize economic benefit. The principle of supply and demand would balance the market, and individuals will be the overseers or the enforcers of this policy in the country.

Afghanistan’s markets are not well developed; however, the nature of competition in business is similar to other international markets. In the author’s personal experience, people are eager to innovate to save costs in business procedures. Cap-and-trade systems are famous for encouraging innovations and new technologies that mitigate or reduce emissions. This encouragement comports with the purpose of business, and people will likely innovate for the sake of economic benefit and market competition. Through these methods, Afghanistan’s industries can acquire new technology to produce the least amount of GHG emissions into the atmosphere. As such, adopting cap and trade would benefit the economy, the people, and the government, and at the same time, cap and trade would bring Afghanistan into compliance with its obligations to the international community by reducing GHG emissions.

B. Possible Drawbacks and Barriers

Introducing any change to a system of governance can be challenging. With cap-and-trade programs, an adopting government needs to find

234. Collection of 10 Percent Telecom Service Fees is Secure and Transparent, MINISTRY COMM. & INFO. TECH. (Oct. 4, 2015), http://mcit.gov.af/en/news/53507.


consensus on implementation, and because this system requires political will to commit to the new program and political leadership to lead and enforce it, it increases the scope of challenges across the country.

In the context of Afghanistan, the decision-makers might not be willing to go through the difficulty of finding that consensus because the government believes it has other, more pressing priorities associated with immediate security and economic growth. However, in the long term, cap and trade could help Afghanistan’s economy and could contribute to stability of the government. If the decision-makers had more information about the potential benefits of cap and trade, consensus could be possible. By creating a cap and reducing it each year, the important goal of emission reduction will be easier to achieve. The author does not claim that reducing GHG emissions is more important than security or economic growth; however, the reduction of GHGs through a cap-and-trade system will secure long-term security and generate economic revenue to contribute to the economic growth of Afghanistan. For instance, most of the people who join the insurgents’ groups in Afghanistan do so because of the weak economy and the salary that the Taliban pays their members. If the economy of Afghanistan grew, the possibility of joining insurgent groups would decrease dramatically.

Afghan businesses will likely resist a shift to cap and trade because under the current regime, firms are accustomed to functioning in a corrupt system—a system where they do not have to pay the government for their emissions—whereas a cap-and-trade system will require them to spend money to acquire units for their emissions. This drawback could be mitigated by the fact that most of the costs of production and taxes associated with the products are passed on to the consumers. For instance, Darakhshan Plaster Company produces plaster to the market. If the initial cost of the plaster is $75 a pack, an added $7 a pack would be the value-added tax for the carbon emissions charged by the firm. Firms will be willing to pass the cost to the consumers, as long as it does not affect the purchasing power of buyers; and, if the cost increases are high, it will compel industries to innovate new technology to reduce emissions. In the plaster production example, people would be willing to buy the plaster for up to $85; however, if the price of carbon increases more, then the buyers would substitute Darakhshan Plaster with some imported plaster for less. In this case, the companies would be forced to find new methods to emit less carbon dioxide to make their product buyable. This barrier can be overcome through nationwide media coverage, showing that the companies can use this method to make everything work in Afghanistan. The media coverage will foster the public’s opinion to stop buying products from the companies unless they agree to the new policy for the betterment of Afghanistan.


Because the current Environment Law sets up a command-and-control system, the change to the governance regime will also require legislative action. And, because environmental issues are currently not a priority for the legislative branch of Afghanistan, there may be resistance to the arduous process of adopting new legislation—legislation that would have a large impact on how firms manufacture and do business. In addition, the legislative branch lacks subject-matter expertise with respect to climate-change problems. Experts could be recruited to help educate the legislature on the important environmental issues and how adopting a cap-and-trade approach could position Afghanistan as a world leader in fighting climate change. Recently, after a private meeting with four members of Parliament, during which this author discussed the current policy regarding climate change and suggested the change, it seemed that the members became very interested in this policy system and asked for more details. After this discussion, it was clear that persuading the Members of Parliament (MPs) would not be a hard task if the system is being explained properly to them. Furthermore, if the MPs are invited to the international conferences where the policy and system is properly explained to them, it would make it easier to overcome this barrier.

CONCLUSION

Even though Afghanistan is landlocked, it is prone to adverse effects of climate change because almost 80% of Afghans are dependent on natural resources—resources that will be severely endangered because of climate change in the region.235 While Afghanistan emitted only 0.1% of GHGs worldwide, this is actually a high percentage given its size and stage of development; with slight improvements to the development process, Afghanistan is positioned to become one of the major emitters of GHGs.

Currently, Afghanistan’s emissions-governance regime is based on a command-and-control design, an approach that does not encourage innovation and that has problems with enforcement and effectiveness. Environmental issues are not the current focus in Afghanistan even with the risk assessment index findings because decision-makers are inadequately informed about the risks of climate change. This governance regime might not be able to contribute to the reduction of GHG emissions.

Recently, a favored governance regime in the international community with regard to emissions control is the cap-and-trade system, such as the

235. INT’L MONETARY FUND, ISLAMIC REPUBLIC OF AFGHANISTAN: INTERIM POVERTY REDUCTION STRATEGY PAPER 26 (2006).


legal regimes in the EU and under the KP. This system would fit well into the context of Afghanistan because it will be a self-executing system through the market mechanism of supply and demand. A cap-and-trade system would encourage innovation in Afghanistan—encouragement that the people and industries in Afghanistan need right now. On balance, the challenges associated with such a dramatic shift in the governance regime seem to pale in comparison to the benefits that the people of Afghanistan, and the planet’s climate, have to gain.

THE NEW CROP GROWING ON THE HILLSIDES:1 RETAINING LAND IN AGRICULTURAL USE THROUGH THE

OPAV

Alexis Peters∗

Introduction ............................................................................................... 486 I. The Importance of Preserving Vermont Farmland ................................ 489 II. The OPAV’s Place in Vermont ............................................................ 492

A. Laws Protecting Agricultural Land and Where They Leave Room for OPAVs ............................................................................................ 492

1. Act 250 and Local Planning ......................................................... 492 2. Traditional Conservation Easements and the Right of First Refusal

..................................................................................................... 495 B. OPAVs as a Legal Mechanism ........................................................ 498

1. The Easement and OPAV’s Legal Bases ..................................... 499 2. The OPAV Language of VLT’s Easements ................................. 501

C. How OPAVs Practically Operate ..................................................... 504 1. Funding an OPAV Easement Purchase ........................................ 504 2. VLT’s OPAV Experience ............................................................ 505

III. Expanding OPAVs Within and Beyond Vermont .............................. 508 A. Improving OPAVs in Vermont ........................................................ 508

1. Affirmative Farming Requirements ............................................. 509 2. Foreseeable Issues with Partial Conservation Easements ............ 510 3. Increased Training Sessions ......................................................... 511

1. Hayden Carruth, Vermont, 29 HUDSON REV. 173, 179 (1976). ∗ J.D. 2017, Vermont Law School; MPhil 2017, University of Cambridge. Alexis would like to thank Professor Ian Hodge of the University of Cambridge’s Department of Land Economy for his insight and feedback and Jon Ramsay, Director of Vermont Land Trust’s Farmland Access Program, for sharing his time and expertise.


B. Tailoring Vermont’s OPAV to Other States .................................... 513 Conclusion ................................................................................................ 516

INTRODUCTION

Thinking of Vermont evokes images of rolling hills dotted with red barns and grazing cattle, winding dirt mountain roads lined with tapped maple trees, or silos popping up along either side of Route 100, the scenic byway that weaves along nearly the length of the state. Nestled in northern New England,2 this working landscape is recognized by Vermonters and tourists alike as a fundamental part of the state’s identity.3 As of the United States Department of Agriculture’s (USDA) most recent census, the state’s farmland is comprised of nearly 1.252 million acres,4 about 20% of the state’s total acreage. 5 Available and accessible farmland is central to ensuring that farmers can continue to generate this landscape and its products.6 However, “Vermont’s pastoral landscape and strong agricultural brand obscure the fact that the state continues to lose active farms.”7

Across New England generally, farmland acreage has been dwindling.8 Over the past century, the region has lost about four million acres of active agricultural land, almost 300,000 of which was converted from crop and

2. New England USA Quick Facts, DISCOVER NEW ENG., http://www.discovernewengland.org/about-new-england/new-england-usa-quick-facts-0 [https://perma.cc/GAT9-95CK] (last visited Feb. 23, 2017). 3. Matt Hongoltz-Hetling, Fate of a Farm, Part 3: Young Farmer Invests in the Future of Farms, VALLEY NEWS (July 3, 2016), http://www.vnews.com/Fate-of-a-Farm-Part-3-Dairy-industry-subsidies-2917095; Todd W. Daloz, Farm Preservation: A Vermont Land-Use Perspective, 12 VT. J. ENVTL. L. 427, 430 (2011); C. Clare Hinrichs, Consuming Images: Making and Marketing Vermont as Distinctive Rural Place, in CREATING THE COUNTRYSIDE 259, 259 (E. Melanie DuPuis & Peter Vandergeest eds., 1996) (“Vermont rurality is especially distinctive.”). 4. U.S. DEP’T OF AGRIC., AC-12-A-51, 2012 CENSUS OF AGRICULTURE: UNITED STATES SUMMARY AND STATE DATA 252 (2014), https://www.agcensus.usda.gov/Publications/2012/Full_Report/Volume_1,_Chapter_1_US/usv1.pdf [https://perma.cc/2R53-DNVH] [hereinafter 2012 CENSUS OF AGRICULTURE]. The USDA’s report defines “farm” as “any place from which $1,000 or more of agricultural products were produced and sold, or normally would have been sold, during the census year.” Id. 5. Vermont Statistics, FARMLAND INFO. CTR., http://www.farmlandinfo.org/statistics/vermont [https://perma.cc/AJ65-D986] (last visited Jan. 13, 2017). 6. See Daloz, supra note 3, at 431–33 (describing how agricultural land is being lost due to development); Michael Hamm, Farmland, Farms, Farming, and Farmers: The Four F’s of Food Production, 1 GASTRONIMICA 27, 27–28 (2001). 7. Katie Hannon Michel, Landless: Legal & Policy Tools for Transferring Vermont Farmland to the Next Generation of Stewards and Food Producers, 39 VT. L. REV. 461, 469 (2014). 8. AM. FARMLAND TR. ET AL., NEW ENGLAND FOOD POLICY: BUILDING A SUSTAINABLE FOOD SYSTEM 1 (2014), http://www.clf.org/wp-content/uploads/2014/03/1.New_England_Food_Policy_FULL.pdf [https://perma.cc/DQN5-H4Z2].

2017] The New Crop Growing on the Hillsides 487

pastureland to developed property within the past 30 years.9 This trend can be attributed to “the demand for good farmland that can be easily converted into residential development . . . often [exceeding] the demand for the land in its current use.”10 While this “suburban sprawl” is the general trend in southern New England, northern New England faces pressure from “rural sprawl”: new landowners converting active farmland into residential or lifestyle farms, country estates, or vacation homes. 11 As these pressures increase, the market value, and therefore the price, of farmland has been increasing.12 However, because farming has not become significantly more profitable, the farmland’s agricultural value often falls short of this price.13 Thus, farmers are facing greater difficulty purchasing farmland. 14 States have responded by adopting a variety of tools to help ensure that farmland remains available or accessible for farmers.15

Most states have legislation enabling conservation easements to protect land from development. 16 Usually, the landowner grants “development rights” to an easement holder, such as her rights to build residential, commercial, or industrial structures; grant rights-of-way; or subdivide the parcel.17 Although some states authorize these easements to impose both negative and affirmative obligations on the landowner, most conservation easements only impose negative obligations. 18 A “negative obligation” creates the duty to refrain from certain activities whereas an “affirmative obligation” creates the duty to undertake certain activities. Consequently, 9. Id. 10. Daloz, supra note 3, at 434. 11. Michel, supra note 7, at 487; Kendra Johnson, Conserving Farmland in California: For What and For Whom? How Agricultural Conservation Easements Can Keep Farmland Farmed, 9 SUSTAINABLE DEV. L. & POL’Y 45, 46 (2008). 12. U.S. DEP’T OF AGRIC., NAT’L AGRIC. STATISTICS SERV., LAND VALUES: 2015 SUMMARY 8 (2015), http://usda.mannlib.cornell.edu/usda/nass/AgriLandVa//2010s/2015/AgriLandVa-08-05-2015.pdf [https://perma.cc/6BW6-PP9M] (noting a slight increase in the region’s average value per acre of farm real estate from 2011 to 2015); AM. FARMLAND TR. ET AL., supra note 8. 13. Johnson, supra note 11, at 46–47 (suggesting that California could use OPAVs to avoid situations where an easement only reduces a farm’s price from its hypothetical $1 million development value to its $700,000 rural value, still $200,000 above the land’s agricultural value). 14. Id.; Daloz, supra note 3, at 435. 15. Michel, supra note 7, at 467, 480; see AM. FARMLAND TR. ET AL., supra note 8, at 7 (noting that all states implement smart growth goals or strategies differently). 16. See Nancy A. McLaughlin, Perpetual Conservation Easements in the 21st Century: What Have We Learned and Where Should We Go from Here?, 2013 UTAH L. REV. 687, 696 (2013) (explaining that because most states’ common law disfavors easements held in gross, “state conservation easement ‘enabling’ statutes” are necessary to provide a legal basis for conservation easements). 17. See, e.g., Privately Funded Easement Template, Vt. Land Tr., Grant of Dev. Rights, Conservation Restrictions, and Option to Purchase at Agric. Value 2 (Oct. 7, 2014) (on file with Vermont Land Trust) [hereinafter Privately Funded Easement Template]. 18. Jessica Owley, Changing Property in a Changing World: A Call for the End of Perpetual Conservation Easements, 30 STAN. ENVTL. L.J. 121, 136 (2011); Johnson, supra note 11, at 47.


while a traditional conservation easement protects farmland from development, it “does not specify that it must be sold to a farmer or kept as a farm.” 19 Therefore, non-farmers may purchase agricultural land and convert it from working farms into non-working rural estates. 20 This conversion may alter the visual landscape and decrease the property’s contribution to the town’s rural economy because the property no longer requires the town’s agricultural support services.21 Further, the conversion potential often raises the market value of the land beyond what many farmers can afford or are willing to pay based on the land’s expected returns.22

To increase the likelihood of farmland remaining in active agricultural use, in 2003, Vermont became the second of two states to include an “option to purchase . . . at . . . agricultural value” (OPAV) clause in many of its agricultural conservation easements.23 The Vermont Land Trust (VLT), a private, nonprofit organization, is the easement holder of all Vermont easements containing the OPAV clause. 24 Often VLT co-holds these easements with at least one of two public state entities, the Vermont Housing and Conservation Board (VHCB) and the Vermont Agency of Agriculture, Food, and Markets (Vermont Agency of Agriculture).25 If a Vermont farm is subject to an easement containing this clause and the farmer seeks to sell her farmland to someone other than a family member or “qualified farmer,” the OPAV allows any easement holder to exercise the option to purchase the farm at its agricultural value and then resell it to

19. HOLLY RIPPON-BUTLER ET AL., NAT’L YOUNG FARMERS COAL., FINDING FARMLAND: A FARMER’S GUIDE TO WORKING WITH LAND TRUSTS 1, 6 (2015), http://www.youngfarmers.org/wp-content/uploads/2015/01/NYFC-Finding-Affordable-Farmland.pdf [https://perma.cc/A8Y7-XMGX]. 20. Id.; BOB WAGNER ET AL., LAND FOR GOOD, U.S. DEP’T OF AGRIC., DOES THE OPTION AT AGRICULTURAL VALUE PROTECT FARMLAND FOR BEGINNING FARMERS?: A POLICY ANALYSIS 3 (2013), http://landforgood.org/wp-content/uploads/LFG-Does-The-Option-At-Agricultural-Value.pdf [https://perma.cc/Z482-5CYN]. 21. Interview with Jon Ramsay, Dir., Vt. Land Tr. Farmland Access Program (May 18, 2016) [hereinafter Ramsay Interview]. 22. Johnson, supra note 11, at 46; RIPPON-BUTLER ET AL., supra note 19, at 6–7. 23. RIPPON-BUTLER ET AL., supra note 19, at 6–7; AM. FARMLAND TR. ET AL., supra note 8, at 14; The Affordability Option: Keeping Farms Affordable for Farmers, VT. LAND TR., http://www.vlt.org/opav [https://perma.cc/2JV4-NC7H] (last visited Jan. 15, 2017) [hereinafter The Affordability Option]; see WAGNER ET AL., supra note 20, at 3 (highlighting that in 1994 Massachusetts was the first state to begin using OPAVs). 24. KELSEY WICKEL, VT. LAND TR., GREENER PASTURES FOR NEW FARMERS 2 (2016), http://www.dvrpc.org/food/pdf/GP_VermontLandTrust.pdf [https://perma.cc/3S7T-ZMVG]; Ramsay Interview, supra note 21. 25. Michel, supra note 7, at 480; Publicly Funded Easement Template, Vt. Land Tr., Grant of Dev. Rights, Conservation Restrictions, Option to Purchase, and Right of Enf’t of the U.S. (Apr. 5, 2016) (on file with Vermont Land Trust) [hereinafter Publicly Funded Easement Template].


another farmer.26 The standard OPAV clause VLT inserts into its easements defines a “qualified farmer” based on the proportion of the potential buyer’s income that comes from farming.27 However, even if the potential buyer satisfies this definition, because the easement does not assert an affirmative obligation to farm, VLT cannot guarantee that the property will not fall out of active agricultural use. 28 OPAVs strive to keep conserved farmland active by keeping farmland prices affordable for farmers. 29 They focus solely on the farmland’s transfer, aiming “to promote, but not require, farmer-to-farmer sales and avoid the unintended consequence of protected farms selling to non-farmers at inflated prices.”30

This dissertation primarily answers the question: what is the OPAV’s role as a legal mechanism in ensuring that Vermont’s farmland remains in active agricultural use? It focuses on how OPAVs strive to keep agricultural land affordable for farmers by targeting the land’s price rather than the farm’s financial viability. First, this dissertation provides background on agriculture’s importance in Vermont and draws attention to the significance of access to land by farmers for allowing continued farming. Then, it interprets existing Vermont land-use law to establish the OPAV’s place in the state’s legal regime and how an OPAV legally, and therefore practically, functions. Finally, it critiques Vermont’s OPAV and examines how the OPAV could expand within and beyond Vermont.

I. THE IMPORTANCE OF PRESERVING VERMONT FARMLAND

Farmland is central to Vermont’s identity and economy because of the landscape and agricultural products that it creates. 31 Since the late nineteenth century, Vermont has invested in promoting the state’s rural identity.32 Nearby New York, New Hampshire, and Maine had already been marketing their “daunting wilderness,” leaving Vermont to compete as a charmingly pastoral destination.33 As one 1970s poet reproached,

26. RIPPON-BUTLER ET AL., supra note 19, at 8; WAGNER ET AL., supra note 20, at 3; Farmland Access: Connecting Farmers with Affordable Farmland, VT. LAND TR., http://www.vlt.org/initiatives/affordable-farmland [https://perma.cc/J8EZ-G83L] (last visited Jan. 18, 2017). 27. Privately Funded Easement Template, supra note 17, at 13; Publicly Funded Easement Template, supra note 25, at 13. 28. Ramsay Interview, supra note 21. 29. Id. 30. WAGNER ET AL., supra note 20, at 4. 31. Daloz, supra note 3, at 430. 32. Hinrichs, supra note 3, at 264. 33. Id.


Down in Montpelier the state development commission spends a hundred grand a year— which is not hay, by God—in advertising our sleepy farmlands and our quaint[,] red barns, but not one cent to keep our farmers eating or those barns

standing.34 However, “keep[ing] those farmers eating and those barns standing”

relies in large part on the farmers being able to compete with the, often larger scale, agricultural producers of other regions. 35 Thus, while marketing Vermont’s rural image started as a method to attract property buyers and eventually tourists to the state, it has since shifted to attracting out-of-state consumers to buy Vermont-made products.36

Vermont’s marketing has been so successful that consumer research discovered that by the late 1980s, consumers were “associat[ing] the name ‘Vermont’ with ‘purity, wholesomeness, rural values, tradition, self-reliance[,] . . . hard work, environmental awareness[,] and closeness to nature.’” 37 In the early 1990s, “a Vermont-made product [could] easily retail for 15 to 20 percent more than a comparable product that [was] mass produced.”38 In more recent years, protecting Vermont’s reputation has led to Vermont producers and consumers seeking government enforcement of branding and consumer deception laws.39 Protecting Vermont’s rural image is important for marketing Vermont goods within Vermont as well. As consumers have become increasingly interested in eating locally produced food, Vermont has realized the need to ensure that its farms stay active.40

34. Carruth, supra note 1. 35. Daloz, supra note 3, at 428; see Michel, supra note 7, at 468 (“Vermont farms are small as measured by both sales and acreage.”). 36. Hinrichs, supra note 3, at 268. 37. Id. at 269 (quoting Marialisa Calta, Made in Vermont: Myths You Can Eat, N.Y. TIMES, Dec. 4, 1991, at C1). 38. Marialisa Calta, Made in Vermont: Myths You Can Eat, N.Y. TIMES, Dec. 4, 1991, at C1. 39. Letter from Vt. Maple Sugar Makers’ Ass’n to Lynn Syzbist, Office of Nutrition, Labeling, & Dietary Supplements (Feb. 15, 2016), https://www.consumerproductmatters.com/wp-content/uploads/sites/13/2016/04/FDA-Letter.pdf [https://perma.cc/VUF7-VAWL] (“This unchecked misbranding has an adverse impact on manufacturers of products containing real maple syrup, as it allows cheaper products not containing premium ingredients to compete with those actually containing maple syrup.”); see Second Amended Complaint at 7, McNaught v. Pinnacle Food Grp., L.L.C., No. 5:12-cv-168, (D. Vt. Feb. 14, 2013), 2013 WL 2303195 (arguing that mislabeling and incorrectly bottling imitation maple syrup “deceives customers into believing that Log Cabin Syrup is actually pure maple syrup, undercutting prices of its honest competitors”). 40. Matt Hongoltz-Hetling, Fate of a Farm, Part 1: Thinning the Herd, VALLEY NEWS (July 1, 2016), http://www.vnews.com/Fate-of-a-Farm-Part-1-Joan-Wortman-Dairy-2916319 [https://perma.cc/NEF4-X4E6]; Ramsay Interview, supra note 21.

http://www.vnews.com/Fate-of-a-Farm-Part-1-Joan-Wortman-Dairy-2916319


“To the extent that a particular rural image of Vermont remains critical to attract tourism and differentiate goods and services, there will be significant pressure to maintain Vermont as a kind of living rural museum.”41

Agriculture’s contribution to Vermont’s identity, in turn, contributes to the state’s economy. 42 Although agriculture consistently and directly contributes to less than 2% of the state’s gross domestic product, it nevertheless “remains an important component of the state’s economy and cultural image.”43 At over $776 million in 2012, agriculture’s contribution to Vermont’s gross domestic product far exceeds that of agriculture in all other New England states.44 In addition to the sale of goods, agriculture plays an indirect role in Vermont towns’ local economies through the goods and services each town provides to support its farms. 45 Jon Ramsay, Director of VLT’s Farmland Access Program, describes farmland access’s importance as such: making land affordable for farmers to purchase provides farmers with secure land tenure; when a farmer has secure land tenure, he is more likely to invest in infrastructure, such as farm buildings or equipment, to make his farm a viable agricultural business. 46 Infrastructure investment allows the farmer to expand his operations, subsequently spending more on farm inputs, such as cattle feed or farm labor; these infrastructure and input expenditures fund the local rural economy and service providers, which in turn support other farmers’ businesses.47 This “circle” relies on farmland not only being conserved but also being affordable so that farming remains profitable for farmers who purchase land. 48 While Vermont’s other legal instruments relieve development pressures on farmland, alone, they fail to keep land sufficiently affordable for farmers for it to remain in active agricultural use.

41. Hinrichs, supra note 3, at 274. 42. Vermont Farmland Conservation Program, VT. HOUSING & CONSERVATION BOARD, http://www.vhcb.org/farmland-conservation.html [https://perma.cc/4FCC-P64L] (last visited July 1, 2016). 43. VICKI THOMPSON ET AL., VT. DEP’T OF LABOR, ECONOMIC-DEMOGRAPHIC PROFILE SERIES: VERMONT 2015, at 1, 5 (2015), http://www.vtlmi.info/profile2015.pdf [https://perma.cc/ZGS6-AEDP]. 44. 2012 CENSUS OF AGRICULTURE, supra note 4, at 252; JAMES M. JEFFORDS, VT. LEGISLATIVE RESEARCH SERV., ECONOMIC IMPACT OF AGRICULTURE IN VERMONT 3–4 (2010), https://www.uvm.edu/~vlrs/Agriculture/agric%20econ%20impact.pdf [https://perma.cc/L6U2-9A54]. 45. Ramsay Interview, supra note 21. 46. Id. 47. Id. 48. Id.; AM. FARMLAND TR. ET AL., supra note 8, at 14.


II. THE OPAV’S PLACE IN VERMONT

A. Laws Protecting Agricultural Land and Where They Leave Room for OPAVs

Farmers seeking to start or expand a farm may face two typical land-based obstacles: receiving permission to build farm infrastructure on farmland and finding available and affordable farmland.49 Thus, Vermont implements a number of legal instruments to protect agricultural land from development so that it is available for active farming. Some of Vermont’s instruments, such as Act 250 and municipal zoning, specify where and how development can happen, often creating special permitting exemptions or specified areas for agricultural operations. Other instruments, such as traditional conservation easements and the Right of First Refusal (RFR), protect land from development so that it is available for farmers to access. However, while these instruments increase farmland’s availability and ease a farmer’s ability to build a farm once he owns the land, alone, they do not ensure that farmland is affordable, and consequentially accessible, to farmers. OPAVs aim to bridge this gap.

1. Act 250 and Local Planning

Vermont’s land-use law affects whether and how a farmer can use her land.50 Whereas the statewide Act 250 may require landowners to receive a permit before developing or subdividing a particular piece of land, 51 municipal zoning bylaws specify the types of development allowed in certain areas.52 Requiring farmers to receive a permit before building farm infrastructure could be another barrier to starting or expanding a farm, which may decrease farming’s viability. Likewise, allowing any development to take place likely increases the demand for, and consequentially the price of, the land. Therefore, these laws’ special provisions for agriculture may increase farmland affordability by lessening permitting burdens on farmers and the demand from non-farmers for land in agricultural zones.53 However, because these laws seek to achieve a variety

49. Daloz, supra note 3, at 435. 50. See id. at 444–52 (summarizing how Vermont’s Act 250 and municipal zoning protects agricultural lands). 51. VT. STAT. ANN. tit. 10, § 6081(a) (2016). 52. See generally VT. STAT. ANN. tit. 24, § 4414 (outlining Vermont’s zoning laws). 53. See VT. STAT. ANN. tit. 10, § 6081(s)(1) (stating that no “permit amendment is required for farming that: will occur on primary agricultural soils preserved in accordance with section 6093 of this title; or will not conflict with any permit condition issued pursuant to this chapter”).


of land-use goals, rather than solely targeting farmland’s value, they do not go as far in ensuring farmland affordability as does the OPAV.

Unique to Vermont, Act 250 is a statewide statute requiring most landowners to receive a permit from one of the state’s District Environmental Commissions before developing or subdividing their land.54 The Act defines “development” to include such activities as commercial or industrial construction on particular land acreage 55 and residential construction of ten or more units.56 The Act explicitly excludes farming that takes place below an elevation of 2,500 feet from this definition.57 To grant a permit, the relevant commission must find that the applicant has satisfied ten statutory criteria.58 Among other things, these criteria require that the project will not unduly pollute the air or water, unreasonably congest traffic or burden the municipality’s educational services, or adversely affect the area’s scenic or natural beauty.59 Further, development or subdivision that will reduce the agricultural potential of “primary agricultural soils” may receive a permit only if the applicant suitably mitigates the development.60 The applicant may satisfy this mitigation requirement with onsite mitigation, protected by conservation easements, or offsite mitigation in the form of money given to the Vermont Agency of Agriculture.61 While this mitigation increases the availability of farmland, it does not necessarily increase farmland’s affordability because it does not focus on farming’s viability or the farmland’s value.

Conversely, exempting farmers from most Act 250 permit requirements may increase farming’s viability. Certain projects require hearings before the District Commission, 62 sometimes followed by appeals to the Environmental Division of the Superior Court and then the Vermont Supreme Court. 63 If Act 250 required farmers to receive permits, this permitting process could have been prohibitively expensive and lengthy for

54. VT. STAT. ANN. tit. 10, §§ 6026, 6081(g); see AM. FARMLAND TR. ET AL., supra note 8, at 7 (noting that Act 250 makes Vermont the only New England state to have “comprehensive land use planning at the state level”). 55. VT. STAT. ANN. tit. 10, § 6001(3)(A)(i). 56. Id. § 6001(3)(A)(iv). 57. Id. § 6001(3)(D)(i). 58. Id. § 6086. 59. Id. 60. Id. § 6086(a)(9)(B). 61. Id. § 6093(a)(3)(A)–(B); Ramsay Interview, supra note 21; see discussion infra p. 505 (noting that the Vermont Agency of Agriculture sometimes puts this mitigation money into a trust fund for VHCB, which occasionally ends up funding one of VLT’s farmland programs, including the OPAV). 62. VT. STAT. ANN. tit. 10, § 6084(b). 63. Id. §§ 6086(f), 6089.


farmers seeking to build infrastructure. 64 Requiring permits could have dissuaded farmers from improving the land in ways required to make the farm economically viable, such as constructing new maple-syrup-production or livestock-feeding facilities. 65 This could have forced established farmers out of business and into selling their farmland, possibly to non-farmers. Similarly, a permitting requirement could have discouraged new and beginning farmers from purchasing farmland in need of improvements. Thus, these exemptions help farmland remain active by reducing the burdens on expanding or beginning farmers who otherwise have access to farmland.66

In addition to Act 250, Vermont legislation also allows regional plans and local zoning bylaws, which determine where certain types of development can happen.67 Regional plans must include a land-use map indicating areas for certain uses, including “agriculture, . . . residence, commerce, industry, . . . and open spaces.”68 Municipalities may implement these plans with zoning bylaws that regulate the types and sizes of structures allowed within each designated area.69 Municipalities may create agricultural zones that “permit[] all types of agricultural uses and prohibit[] all other land development except low density residential development.”70 Further, municipal bylaws “shall not regulate required agricultural practices, including the construction of farm structures.” 71 Because landowners may not develop their land without complying with these bylaws and receiving a zoning permit, 72 the agricultural zone and this exemption are other examples of Vermont legislation easing farmers’ ability to build or expand farming infrastructure on their land.73 Similar to Act 250’s agricultural exemptions, exempting farmers from zoning regulations reduces barriers to building new farmland infrastructure. Further, zoning limits the types of development that can happen in agricultural zones, which may reduce farmland’s development value. However, because agricultural zones still allow residential development and

64. Daloz, supra note 3, at 445. 65. See VT. STAT. ANN. tit. 10, § 6001(22) (defining “farming” and listing its possible activities or forms). 66. Daloz, supra note 3, at 446. 67. VT. STAT. ANN. tit. 24, §§ 4345a(3)(5), 4411.

68. Id. §§ 4348a(a)(2)(A), 4382(a)(2)(A). 69. Id. § 4411(a). 70. Id. § 4414(1)(B)(i). 71. Id. § 4413(d)(1)(A). 72. Id. §§ 4446, 4449(a)(1). 73. See Daloz, supra note 3, at 444, 449 (“[T]he limiting features of agricultural zones mean that property owners, at a minimum, are restricted in the size and scale of development they can pursue.”).


not all farmland falls within an agricultural zone, zoning does not in itself ensure that farmland is available or affordable for farmers. Where Vermont’s public laws fail to protect farmland, the private conservation easement may step in and prevent certain activities from taking place on legally conserved land.

2. Traditional Conservation Easements and the Right of First Refusal

Across the United States, conservation easements have become a widespread, private legal instrument used to protect land from development.74 Through these voluntary agreements, the current landowner binds herself and all future owners to avoid using the land in certain ways so as to protect the land’s conservation values.75 Typically, the landowner sells or donates the easement through a deed conveyed to an easement holder.76 The easement holder, “usually a land trust or government entity,” then agrees to enforce the easement’s terms in perpetuity.77 A landowner can protect any type of land with a conservation easement, provided that the easement has “a conservation purpose or yield[s] a conservation benefit” to the public.78 While conservation easements often successfully protect land from development, using a traditional conservation easement to protect agricultural land may pose a number of issues.79

Conservation easements’ voluntary and perpetual natures may create two such issues. 80 Because the parties voluntarily create a conservation easement, it may not necessarily protect prime agricultural soils or contiguous parcels of land.81 In fact, conservation easements protect only about 10% of Vermont’s “highest-rated agricultural soils.” 82 This may result in conserving farmland that is not the “best” to be conserved, 74. Jessica E. Jay, When Perpetual Is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, 36 HARV. ENVTL. L. REV. 1, 1, 3 (2012). 75. Owley, supra note 18, at 137; see discussion supra p. 487 (noting that while conservation easements’ enabling legislation sometimes authorizes conservation easements to impose affirmative obligations, they usually only impose negative obligations). 76. Owley, supra note 18, at 136; Jay, supra note 74, at 3. 77. Jay, supra note 74, at 3; VT. STAT. ANN. tit. 10, § 822 (enabling easement holders and their successors and assigns, to enforce easement terms against the property owner and her heirs, successors, and assigns); see I.R.C. § 170(f), (h) (2016) (requiring that conservation easements be donated in perpetuity for the donor to be eligible for a tax deduction from the United States Internal Revenue Service (IRS)). 78. Owley, supra note 18, at 136 (citing I.R.C. § 170(h) (2010)). The formulation of this requirement may vary depending on the state enabling legislation. Id. 79. Daloz, supra note 3, at 437. 80. Id. at 437–38. 81. Id.; Michel, supra note 7, at 481. 82. Michel, supra note 7, at 470.


promising future farmers the availability of only less agriculturally valuable farmland.83 Moreover, although created voluntarily, conservation easements run with the land from landowner to landowner in perpetuity, often without termination or modification.84 This may hinder current farmers’ ability to adapt to changing circumstances.85 For instance, as agricultural technology or surrounding land uses change, a farmer may wish to change development.86

If the easement forbids this type of change, the farm may cease to be economically viable, thereby reducing the farmland’s affordability.87 As a clause within a conservation easement, the OPAV does not directly cure this inherent weakness of conservation easements. Because Vermont does not currently have legislation or case law expressly addressing easement termination or modification, the law is uncertain on whether parties to a conservation easement can agree to a change.88 Therefore, this issue may only be reduced or avoided if the easement donor and holder carefully draft the easement’s language at the time of the easement’s creation so as to allow subsequent farmers to react to changed circumstances.89

A third issue may arise regarding the easement’s negative impact on the land’s property value.90 Farmland has roughly three potential values: (1) a development value, where any development is possible; (2) a rural value, where only rural uses are permitted; and (3) an agricultural value, where the land will only be used for farming.91 The development rights transferred through a conservation easement reduce the property’s value from its development value to its rural value. Thus, a landowner usually receives a tax deduction or direct compensation for donating or selling a conservation easement. 92 However, his lost development rights may still financially burden him by reducing his collateral and limiting his “future ability to 83. Id. at 482; Daloz, supra note 3, at 438. Vermont has somewhat dealt with this issue through such laws as Act 250 and municipal zoning. Id. at 445–46, 449. 84. Jay, supra note 74, at 4–5 (introducing the four conflicting legal regimes that address easement termination and modification). 85. Daloz, supra note 3, at 438. 86. Id.; Alexis Peters, The Long and Winding Road: Easement Modification and the Future of Long Distance Hiking Trails, 40 VT. L. REV. 107, 112–13 (2015). 87. Peters, supra note 86. 88. See id. at 109, 119 (exploring the debate that has been running in Vermont and its General Assembly since 2012 on whether to enact legislation allowing easement termination or modification). 89. Id. at 119. 90. Daloz, supra note 3, at 438. 91. Id. at 437, 438. Act 250 is an example of a law that allows farmland to maintain its development value, even if the permitting burdens reduce that value. Id. at 445. A municipal agricultural zone is an example of a law reducing the property’s value to its rural value by only allowing agricultural and residential uses. Id. at 450. 92. Daloz, supra note 3, at 437, 438.


qualify for a loan to purchase further land or needed equipment.” 93 Consequently, some conservation-minded landowners are hesitant to encumber their land with a conservation easement “that may reduce [the land’s] value and make it harder to sell.”94 In the past, states have sought to circumvent this issue by using the first of two forms of RFR.95

In states using the RFR’s first form, instead of encumbering the property with an easement, the landowner receives a property tax deduction for granting the government the RFR, should she seek to sell her land.96 The government transfers the RFR to a nonprofit organization, such as a land trust, that can place a conservation easement on the land, should it exercise its right to purchase the property. 97 From the land trust’s perspective, this form of RFR’s drawbacks include failing to prevent the current landowner from developing her land and driving the land trust to purchase the property at its development value. However, this form of RFR may encourage a hesitant conservation-minded landowner to plan for her land’s future, increasing the likelihood that it will someday be protected from development. This form of RFR differs from the OPAV in that the OPAV is always a clause within a conservation easement and this RFR is a step to later securing an easement, after having bought the property at its development value. This form is used less frequently than the RFR’s second form.

Through the RFR’s second form, the land trust protects the land with an easement from the start, including an RFR clause in the deed. 98 If the landowner seeks to sell her property, the land trust has the RFR to purchase it at its rural value. From 1988 to 2004, VLT included such an RFR clause in its agricultural easements.99 This RFR differs from Vermont’s OPAV in two notable ways. First, the RFR grants the land trust the first right to purchase the property at its rural value, while the OPAV provides the first right to purchase the property at its agricultural value.100 Because the land trust may be unable to purchase the land at its rural value or to resell it at its agricultural value after having purchased it at its rural value, an RFR property is more likely to land in the hands of non-farmers than an OPAV property.101 Second, and relatedly, the OPAV shifts the financial burden

93. Id. at 438. 94. Id. 95. Id. 96. Id. 97. Id.; Michel, supra note 7, at 482; Ramsay Interview, supra note 21. 98. Michel, supra note 7, at 482. 99. Ramsay Interview, supra note 21. 100. Michel, supra note 7, at 482. 101. WICKEL, supra note 24.


from the land trust to the landowner. Because the OPAV forces the landowner to sell his property to the land trust at a lower price, the landowner experiences a greater loss if his property has an OPAV rather than an RFR. Therefore, the land trust often pays the landowner more at the outset to secure an easement with an OPAV rather than one with an RFR.102 Nevertheless, since 2004, the OPAV has replaced the RFR in easements created by VLT.103

The land trust likely prefers an OPAV over an RFR for three main reasons. First, the OPAV is more likely to deter non-farmers from offering to purchase the property. 104 A non-farmer is less likely to purchase an OPAV property because regardless of the price she pays for it, she risks only being able to resell it at its agricultural value should the land trust exercise its perpetual right. Second, because the land trust’s OPAV is triggered by the landowner accepting certain offers on the property, the land trust has the opportunity to assess the potential buyer’s plans before deciding whether to purchase the property. 105 This means that fewer instances will arise where the land trust feels the need to exercise its option to purchase, thereby keeping the land trust out of the property’s title chain and reducing the administrative costs associated with purchasing land.106 Third, assuming the RFR or OPAV is a clause in a perpetual conservation easement, the land trust has the option to purchase the land during each successive land conveyance.107 Whereas an RFR would force the land trust to pay the land’s rural value, the OPAV would only force it to pay the land’s agricultural value. Over time, the land trust would spend less purchasing the property and thus be better equipped to resell the land to a farmer at its agricultural value. Therefore, the OPAV better ensures that farmers can buy farmland at affordable prices.108

B. OPAVs as a Legal Mechanism

VLT’s OPAV is a carefully constructed clause embedded in all new agricultural conservation easements that the land trust purchases through its Easement Purchase Program.109 VLT has drafted two template easements

102. Johnson, supra note 11, at 49. 103. Ramsay Interview, supra note 21. 104. Johnson, supra note 11, at 49. 105. See discussion infra pp. 501–02 (explaining what circumstances will trigger an OPAV). 106. Ramsay Interview, supra note 21. 107. Johnson, supra note 11, at 49. 108. Ramsay Interview, supra note 21. 109. Id.


on which it usually bases new easements:110 (1) the Grant of Development Rights, Conservation Restrictions and Option to Purchase at Agricultural Value for privately funded easements111 and; (2) the Grant of Development Rights, Conservation Restrictions, Option to Purchase, and Right of Enforcement of the United States for publicly funded easements.112 About one-third of the OPAV easements are entirely privately funded, the remaining two-thirds being funded by government grants, sometimes mixed with private donations.113 When the easement is entirely privately funded, the easement language makes VLT the sole easement holder.114 When the easement has been publicly funded, VLT, VHCB, and the Vermont Agency of Agriculture have traditionally been equal co-holders of the easement.115 However, over the past couple years, the Vermont Agency of Agriculture has begun to move away from being included in the easement as one of its holders. 116 Easement holders receive, “forever, the development rights, option to purchase at agricultural value . . . [,] and a perpetual conservation easement and restrictions.”117 For publicly funded easements, the federal government, through the USDA Natural Resources Conservation Service (NRCS), does not become a holder but receives the right to enforce the easement if, but only if, the easement holders fail to do so.118 Regardless of which entities hold the easement, the easements share the same enabling legislation and many of the same general clauses.

1. The Easement and OPAV’s Legal Bases

Separate chapters of Vermont’s legislation authorize conservation easements and the OPAV clause.119 To overcome any common-law rules against perpetuities, Chapter 34 permits these agricultural conservation easements as “[c]onservation and preservation rights and interests” that are “deemed interests in real property [that] run with the land.”120 The statute

110. Id. 111. Privately Funded Easement Template, supra note 17, at 1. 112. Publicly Funded Easement Template, supra note 25, at 1. 113. Ramsay Interview, supra note 21; Michel, supra note 7, at 480. 114. Id.; Privately Funded Easement Template, supra note 17, at 1. 115. Ramsay Interview, supra note 21; Publicly Funded Easement Template, supra note 25, at 1. 116. Ramsay Interview, supra note 21; Publicly Funded Easement Template, supra note 25, at 1. 117. Privately Funded Easement Template, supra note 17, at 1; Publicly Funded Easement Template, supra note 25, at 1. 118. Publicly Funded Easement Template, supra note 25, at 15. 119. VT. STAT. ANN. tit. 10, §§ 821–23 (2016); VT. STAT. ANN. tit. 10, § 6324(a)(3). 120. VT. STAT. ANN. tit. 10, § 823. The enabling legislation also applies to conservation easements more broadly. Id.


deems the easement document “to be a conveyance of real property” and requires that it be recorded by the county clerk. 121 “Any subsequent transfer, mortgage, lease, or other conveyance of the real property or an interest in the real property shall reference the grant of conservation rights and interests in the real property.” 122 However, even if the subsequent transfer fails to refer to the easement, the easement remains valid and enforceable in law or in equity by the easement holders and their successors and assigns.123 The statute authorizes VLT, VHCB, the Vermont Agency of Agriculture, and even the federal government to be easement holders.124

Vermont law required additional enabling legislation for the OPAV clause to be enforceable. Historically, Vermont’s common law Rule against Perpetuities could have invalidated an OPAV or RFR clause contained in a valid easement as an “improper restraint[] on alienation.”125 However, since a 1987 amendment to Chapter 155 of Vermont’s statutes, easement holders may enforce an OPAV clause.126 This chapter provides that “[t]he rights and interests in real property which may be acquired, used, encumbered, and conveyed by a municipality, State agency, or qualified organization shall include . . . [t]he acquisition of preemptive rights such as a right of first refusal or an option to purchase land or rights and interests therein.”127 For purposes of exercising the OPAV, VLT falls within the statute’s definition of “qualified organization,” and VHCB and the Vermont Agency of Agriculture both constitute state agencies.128 Notably, this chapter does not authorize the federal government to acquire preemptive rights.129 This indicates that if VLT, VHCB, or the Vermont Agency of Agriculture failed to enforce the easement, the NRCS would acquire the right to enforce all of the publicly funded easement’s clauses except the OPAV clause. Only VLT and, when party to the easement, the VHCB and Vermont Agency of Agriculture can exercise the publicly funded easement’s option to purchase the property.

121. Id.; VT. STAT. ANN. tit. 27, § 402. 122. VT. STAT. ANN. tit. 10, § 823. 123. Id. §§ 822–23. 124. Id. § 821(c). 125. Burgess v. Howe, 359 A.2d 652, 653 (Vt. 1976). 126. VT. STAT. ANN. tit. 10, § 6303(a)(7) (1987). 127. Id. 128. Id. § 6301a. 129. Id. §§ 6301(a), 6303(a)(7); contra id. § 821(c) (including the United States in its definition of “qualified holder” for purposes of holding a conservation easement).


2. The OPAV Language of VLT’s Easements

The privately and publicly funded easement templates share many characteristics, particularly how they describe the OPAV. Both start with sections that lay out the easement’s purposes, which, among other more general conservation purposes, such as maintaining “the essential characteristics of the Vermont countryside,” include an OPAV-related purpose. 130 The privately funded easement words this purpose as “conserv[ing] productive agricultural and forestry lands in order to facilitate active and economically viable farm use of the Protected Property now and in the future.”131 The publicly funded easement expresses the purpose as “ensuring that working and productive agricultural lands remain available for production agriculture, affordable and owned by individuals actively engaged in farming” and states that the OPAV will be the vehicle for achieving such purpose.132 Both templates next list restricted and permitted uses of the property, then specify when and how the easement holder may seek court enforcement of the easement’s covenants and restrictions before finally detailing the OPAV.133

The OPAV is “perpetual in duration,” 134 meaning that every sale, transfer, or conveyance of the property could potentially trigger the easement holders’ right to exercise the OPAV regardless of whether the current landowner is the original landowner who granted the easement.135 “Triggering the OPAV” means that the potential conveyance’s facts have given the easement holder the right to decide whether to purchase the property at its agricultural value. 136 A conveyance will not trigger the OPAV in two narrow circumstances: The landowner seeks to convey the property to a family member, “by gift, inheritance, sale or other transfer” or to a qualified farmer.137 The OPAV defines a qualified farmer as

130. Publicly Funded Easement Template, supra note 25, at 2; Privately Funded Easement Template, supra note 17, at 1. 131. Privately Funded Easement Template, supra note 17, at 1. 132. Publicly Funded Easement Template, supra note 25, at 2. 133. Id. at 3–23; Privately Funded Easement Template, supra note 17, at 11–18. Because both easements use nearly identical language in the OPAV clause, for ease of reference, except where otherwise noted, this section will hereinafter refer to the Privately Funded Easement Template’s language. 134. Privately Funded Easement Template, supra note 17, at 12. 135. Id. at 13. The easement exempts leases that have a term of 15 years or less, provided that the lease terminates if the easement holder exercises the OPAV. Id. 136. Id. at 12–13. 137. Id.


a person who presently earns at least one-half of his or her annual gross income from the ‘business of farming’ . . . and who, in connection with the farming operations on the Protected Property, will continue to earn at least one-half of his or her annual gross income from the ‘business of farming.’138

To be in the “business of farming,” the person must “cultivate[], operate[], or manage[] a farm for . . . profit,” not “for recreation or pleasure.” 139 “Farm” includes such operations as dairy, poultry, or fruit farms and plantations, ranches, and orchards, but explicitly excludes forestry and timber growing.140 The OPAV’s two exemptions’ purposes differ. Transfers to a qualified farmer do not trigger the OPAV because these transfers directly further the OPAV’s goal of keeping farmland active. Contradictorily, the OPAV exempts family members regardless of whether they currently farm or will farm in the future. This exemption’s purpose is to maintain the OPAV’s support within the farm community.141 Yet, in all instances when the landowner accepts an offer from any potential buyer, even if the potential buyer is a family member or qualified farmer, the landowner must deliver a Notice of Intent to Sell to the easement holders.142

The Notice of Intent to Sell triggers a set of strict deadlines that, if missed, waive the easement holders’ right to purchase the property, but only for this transaction.143 Upon receiving the landowner’s Notice of Intent to Sell, the easement holders have 30 days to review the notice and decide whether to exercise the option.144 This notice must include: (1) a duplicate of the potential buyer’s offer; (2) either (a) a written description of the buyer’s training and experience as an agricultural producer and an agricultural business plan for the Protected Property, including a description of the agricultural activities to be conducted or facilitated by the buyer, proposed improvements to the Protected Property, and a statement of anticipated agricultural income and expenses for the three-year period following buyer’s acquisition of the Protected Property, or (b) a written statement that the potential buyer does not have “such training and experience or intention of” farming on the property; and (3) if relevant, “the

138. Id. 139. Treas. Reg. § 1.175-3 (1986); see Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995) (applying noscitur a sociis to interpret an ambiguous statutory word consistently with the statute’s other text). 140. Treas. Reg. § 1.175-3. 141. Ramsay Interview, supra note 21. 142. Privately Funded Easement Template, supra note 17, at 13–14. 143. Id. at 13. 144. Id. at 14.


documents necessary to establish the Buyer as” a qualified farmer or family member.145 If the easement holders decide to exercise the OPAV, they must deliver a written notice of intent to exercise to the landowner within this first thirty-day period.146 The easement holders and landowners must then establish the property’s purchase price, either through mutual agreement or based on an independent appraisal.147 Because the OPAV does not freeze farmlands’ value, its agricultural value may have appreciated since the appraisal completed when it was conserved.148 Depending on the property, determining the property’s current agricultural value could take several months.149

Once the parties reach a price agreement, the easement holders will follow one of four courses of action. First, within 30 days the easement holders provide a written notice of intent to purchase to the landowner, then close on the sale within another 30 days.150 Second, the easement holders do not deliver this notice, thereby waiving their right to purchase the property. 151 Third, the easement holders withdraw their agreement to exercise the option because the landowner cannot deliver marketable title to the easement holder, the easement holder discovers hazardous waste on the property, or any structure on the property “is substantially destroyed by fire or other casualty.”152 Or fourth, the easement holders assign their right to exercise the option to a third party who, in the easement holders’ reasonable opinion, “will use or will facilitate the use of the Protected Property for commercial agricultural production.” 153 In practice, the OPAV has been triggered roughly 55 to 60 times; however, VLT has only ended up purchasing the property twice.154 VLT considers the fact that it has felt the need to exercise the option in so few instances to be an indicator of the OPAV’s success as a tool to keep farmland actively farmed.155

145. Id. at 13–14. 146. Id. at 14. 147. Id. at 14–15. 148. WAGNER ET AL., supra note 20, at 54; Ramsay Interview, supra note 21. 149. See Resource Guide: Vermont New Farmer Network Member Organization, Vermont Housing and Conservation Board, U. VT. (last visited Feb. 6, 2016), http://www.uvm.edu/newfarmer/?Page=resource_guide/VHCB.html&SM=resource_guide/sub-menu.html [https://perma.cc/YT3H-TNF6] (discussing how appraisal determines value of the land, which can take 12–18 months to complete). 150. Privately Funded Easement Template, supra note 17, at 14, 16. 151. Id. at 14. 152. Id. at 16–17. 153. Id. at 17–18. 154. Ramsay Interview, supra note 21; see discussion infra pp. 506–07 (explaining three alternatives to VLT purchasing the property). 155. Id.

http://www.uvm.edu/newfarmer/?Page=resource_guide/VHCB.html&SM=resource_guide/sub-menu.html

http://www.uvm.edu/newfarmer/?Page=resource_guide/VHCB.html&SM=resource_guide/sub-menu.html


C. How OPAVs Practically Operate

1. Funding an OPAV Easement Purchase

In practice, VLT works closest with OPAVs. However, of the approximately 375 easements containing an OPAV clause, about two-thirds were at least partially publicly funded and therefore are co-held with VHCB and, increasingly less frequently, the Vermont Agency of Agriculture.156 Despite these entities’ potentially heavy involvement in securing these easements, the standard easement language provides VLT with priority over VHCB and the Vermont Agency of Agriculture in such functions as negotiating the purchase price with the landowner and determining the closing details. 157 Additionally, although all easement holders have the equal right to exercise the OPAV, VLT often is the only one with the capacity to actually purchase and accept the risk of owning land. 158 Nevertheless, VLT always tries to reach a consensus amongst the easement holders before deciding how to proceed once the OPAV has been triggered.159 Still, VHCB and the Vermont Agency of Agriculture primarily interact with OPAVs by funding the original easement purchase.

An intricate web of sources fund VLT’s purchase of an OPAV easement from a landowner. VLT usually must pay a landowner more for an easement with an OPAV clause than for one without. 160 From the landowner’s perspective, the OPAV not only legally limits the property’s value and type of potential buyer, but also its procedural requirements may further shrink the pool of interested buyers and hence the property’s market value.161 Private funding for OPAV easements often comes from individual donations to VLT as a nonprofit organization.162 Public funds may come from state or federal sources, channeled through VHCB, as manager of the state’s Farmland Conservation Program.163 This program receives federal

156. Id.; see supra p. 499 (noting that the Agency of Agriculture has recently begun transitioning away from being an easement holder). 157. Publicly Funded Easement Template, supra note 25, at 19. 158. Ramsay Interview, supra note 21. 159. Id. 160. Johnson, supra note 11, at 49 (“[A]n OPAV increases the original easement cost expended by the land trust.”). 161. BOB WAGNER & KATHY RUHF, FARMLAND ACCESS AND TENURE INNOVATIONS 1 (2013), http://landforgood.org/wp-content/uploads/LFG-Farmland-Access-And-Tenure-Innovations.pdf [https://perma.cc/93NW-PHQ7]. 162. See generally Funders and Partners, VT. LAND TR., http://www.vlt.org/about-vlt/vlt-funders [https://perma.cc/3AVY-KBA7] (last visited Feb. 6, 2016) (showing a list of funders from both public and private organizations). 163. FARMLAND CONSERVATION, VT. AGENCY OF AGRIC., FOOD & MKTS. (last visited Feb. 6, 2017), http://agriculture.vermont.gov/land-use/farmland_conservation [https://perma.cc/VB4X-


funds from the USDA NRCS through the Farm Bill164 and state funds from the Housing and Conservation Board Trust Fund.165 By statute, half this trust fund is comprised of the state’s property transfer tax,166 while the other half comes from sources like the payments that the Vermont Agency of Agriculture receives for Act 250’s offsite mitigation.167 In determining how to disburse these funds, VHCB seeks to “maintain land in active agricultural use and make reasonable efforts to assure that conserved farmland is accessible and affordable to future generations of farmers.”168 The OPAV is VHCB’s “standard tool” for promoting this goal.169 However, all VHCB grants for conservation easements, regardless of whether they contain an OPAV, are capped at $3,500 per acre or $500,000 for the total project. 170 This cap applies only to VHCB’s contribution; if VLT finds additional funding elsewhere, its expenditure on the project could exceed these caps. Nevertheless, this level of state support is sufficiently high to encourage VLT to ensure that the grants are fulfilling their purpose: keeping farmland active.171

2. VLT’s OPAV Experience

VLT’s nearly 13 years of experience with OPAVs have provided it with practical insight into how an OPAV can best operate. Vermont’s farming community leans toward owner-operated farms because it views land ownership—the strongest type of secure land tenure—as the best way to encourage farmers to steward their land and invest in infrastructure. 172 Stewardship helps protect farmland for future farmers while infrastructure investment and farm expenditures contribute to the local rural economy.173 Through the OPAV, VLT does not seek to provide access to a certain type VYX3]; see generally, VHCB Conservation Programs, VT. HOUSING & CONSERVATION BD., http://www.vhcb.org/conservation.html [https://perma.cc/N4AH-DRQX] (last visited Feb. 6, 2017) (discussing the VHCB Conservation Program). 164. VHCB Conservation Programs, supra note 163. 165. Id.; VT. HOUSING & CONSERVATION BD., POLICY: FUNDING CONSERVATION OF AGRICULTURAL LAND 3 (2016), http://www.vhcb.org/pdfs/conspolicy/agriculture.pdf [https://perma.cc/JXU9-2QER] [hereinafter FUNDING CONSERVATION OF AGRICULTURAL LAND]. 166. VT. STAT. ANN. tit. 10, § 312 (effective June 11, 1987). 167. Ramsay Interview, supra note 21; VT. STAT. ANN. tit. 10, § 6093(b) (noting that Act 250 offsite mitigation fees may be paid to the Vermont Agency of Agriculture); FARMLAND CONSERVATION, supra note 163; AM. FARMLAND TR. ET AL., supra note 8, at 12 (noting that through 2010, VHCB “had used approximately $3 million in [offsite] mitigation funds to protect farmland”). 168. FUNDING CONSERVATION OF AGRICULTURAL LAND, supra note 165, at 1. 169. Id. at 6. 170. Id. at 7. 171. Ramsay Interview, supra note 21. 172. Id. 173. Id.


of farmer.174 “All forms and scales of agriculture have a place” in a rural economy.175 Thus, VLT supports all farmers, from the small-scale organic vegetable farmer to the large-scale conventional dairy farmer.176 However, while the OPAV gives farmers the ability to purchase farmland at agricultural value, this price may still not be affordable for all farmers.177 Often, the farmer expecting to receive the highest return from the land will outbid a farmer who proposes to enter a less profitable agricultural business. Similarly, a well-established farmer usually has sufficient resources and capital to outbid a new and beginning farmer on a particular piece of land.178 An established farmer may be better qualified to receive a loan to purchase the land179 and can spread fixed costs across a larger land area. Further, VLT has found that transferring land protected by a federally-funded easement is procedurally less complex when the buyer is a well-established farmer because of federal law’s additional requirements.180 To overcome these and other obstacles to new and beginning farmers, VLT manages a separate program specifically aimed at facilitating their access to farmland: the Farmland Access Program.181 Through this program, VLT connects new and beginning farmers to farmland, expands their leasing opportunities, and provides them with technical assistance. 182 While the OPAV is entirely separate from this program, they can work together to broaden the range of farmers able to access farmland.183

VLT seldom exercises its right to purchase a property and instead seeks to encourage direct farmer-to-farmer sales. 184 Because exercising the OPAV can be as costly as purchasing an entire new conservation easement,185 buying a property could sacrifice VLT’s ability to conserve unprotected farmland elsewhere. Over time, VLT has experienced three scenarios that allow it to avoid the expenses and risks associated with purchasing land. First, VLT may act as a matchmaker between farm-seekers and those seeking to sell their farmland without an identified buyer.186 VLT uses the Farmland Access Program’s lists of new and beginning farmers to 174. Id. 175. Id. 176. Id. 177. Id. 178. Id. 179. See Michel, supra note 7, at 474. 180. Ramsay Interview, supra note 21 (noting such additional requirements as having a succession plan, which a young, beginning farmer may not yet have thought about). 181. Id.; Farmland Access: Connecting Farmers with Affordable Farmland, supra note 26. 182. Farmland Access: Connecting Farmers with Affordable Farmland, supra note 26. 183. Ramsay Interview, supra note 21. 184. Id. 185. Id. 186. Id.


match buyers and sellers.187 Once VLT and the landowner reach a price agreement, VLT assigns the right to purchase the property to the new and beginning farmer who then purchases the farm directly from the landowner rather than VLT purchasing and reselling the land.188 A second way that VLT has avoided purchasing OPAV farmland is by waiving its right to purchase.189 VLT intentionally defined “qualified farmer” to depend on an objective measure: agriculture’s contribution to the potential buyer’s income.190

When VLT reviews a notice of intent to sell and is satisfied that a potential buyer meets the definition, the OPAV is not triggered and the landowner can go ahead with the transaction absent further VLT involvement.191 However, this narrow definition may exclude a potential buyer that the OPAV was not designed to exclude. 192 For instance, a potential buyer may fall short of the income threshold because he had been an employee on another farmer’s land.193 However, he may have gained training and experience and demonstrate a sufficient business plan to satisfy VLT that he is a farmer. 194 In these instances, VLT will deem the landowner’s buyer to be a farmer and allow the transaction to proceed.195 A third scenario that may arise where VLT does not end up exercising the OPAV is where the landowner accepts an offer from a non-farmer, VLT delivers the notice of intent to purchase to the landowner, and the landowner rescinds its contract with its non-farmer buyer and begins her own search for a farmer buyer.196 However, VLT has found that an OPAV’s existence on a property dissuades landowners from accepting offers from non-farmers and non-farmers from placing offers on the property.197

Over time, VLT has slightly altered its OPAV. For instance, VLT and a landowner originally executed the OPAV separate from the conservation easement. 198 However, VLT has since merged the OPAV clause and conservation easement into one document, which allows landowners to more readily identify their property rights.199 VLT has also increased the 187. Id. 188. Id. 189. Id. 190. Id. 191. Id. 192. Id. 193. Id. 194. Id.; see discussion supra p. 502 (explaining that the easement template’s definition of “qualified farmer” depends on the IRS’s definition of the “business of farming”). 195. Ramsay Interview, supra note 21. 196. Id. 197. Id. 198. Id. 199. Id.


“qualified farmer” definition’s objectivity to avoid confusion over what transactions trigger the OPAV. 200 Formerly, the definition allowed a potential buyer to be a qualified buyer if she met the income threshold or had a business plan and farming experience. 201 VLT has found that narrowing the “qualified farmer” definition to rely solely on the potential buyer’s income sources, provides VLT greater leeway to determine which proposed sales pose a greater risk to keeping farmland active.202 Finally, in practice, VLT has extended its role as matchmaker to increase farmer-to-farmer transactions and thereby limit its involvement in the property. 203 VLT’s experiences can help it continue to adjust the OPAV and guide other states as they begin to create their own OPAV programs.

III. EXPANDING OPAVS WITHIN AND BEYOND VERMONT

Although Vermont has been using OPAVs for nearly two decades, OPAVs have been slow to spread more widely across the United States. Yet, Massachusetts has incorporated OPAVs into its conservation easements since 1994,204 and within the past year the Mount Grace Land Trust purchased its first OPAV in New Hampshire. 205 Other states, including California,206 New Jersey,207 Connecticut, and New York, have begun to examine Vermont’s experience to determine whether to begin implementing OPAVs. 208 VLT has identified areas in which it could improve OPAVs’ implementation within Vermont, which may provide insight to other states looking to start using OPAVs.

A. Improving OPAVs in Vermont

OPAVs do not aim to put agricultural land into the hands of an easement holder, but rather aim to ease the transfer from one farmer to another.209 VLT has purchased an OPAV property only twice over the past 200. Id. 201. The Affordability Option, supra note 23. 202. Ramsay Interview, supra note 21. 203. Id. 204. WAGNER ET AL., supra note 20, at 3. 205. Wingate Farm: New Hampshire’s First Affordable Farm, MOUNT GRACE LAND CONSERVATION TR., http://www.mountgrace.org/wingate-farm-new-hampshires-first-affordable-farm [https://perma.cc/2M2S-KM26] (last visited June 27, 2016). 206. Johnson, supra note 11. 207. Appendix – Topic 5: Programs and Models from Other States, N.J. DEP’T AGRIC., http://www.nj.gov/agriculture/sadc/news/hottopics/farmavailabilityopav.pdf [https://perma.cc/F35N-ZKKJ] (last visited Jan. 18, 2017) [hereinafter Programs and Models from Other States]. 208. Ramsay Interview, supra note 21. 209. Id.


thirteen years, 210 demonstrating that OPAVs have been achieving this goal.211 Farmland has been either staying in the original farmer’s hands or transferring to new farmers or family members without VLT entering the property’s title chain. Yet, OPAVs may receive criticism for failing to ensure that farmers or family members continue to farm after the transfer. Unforeseen forces, such as “consumer trends, domestic supply, weather and regional patterns, government regulations, and foreign markets” or even the farmer’s personal condition, may pressure a farmer to stop farming, but not necessarily sell, her land. 212 However, the OPAV’s strength lies in its narrow focus on farmland transfer’s role in keeping farmland active rather than attempting to combat the multitude of potential challenges to farming. Through VLT’s strict definition of “qualified farmer” and careful vetting of potential farmers’ business plans, VLT maximizes the extent to which it can ensure that farmland remains active without broadening the OPAV’s focus beyond the land transfer. As of 2016, all but three OPAV farms remained active.213 Of these three farms, one had been subdivided in such a way that one portion lay idle and the other became hay land; the other two farms became classified as low use. 214 While Vermont could increase the likelihood of farmland remaining active by incorporating affirmative farming requirements into its conservation easements, affirmative farming requirements may pose additional issues to the landowner and land trust.215 Thus, while VLT could explore expanding OPAV easements beyond the land transfer, it should only improve the OPAV as it pertains to the transfer itself.

1. Affirmative Farming Requirements

VLT could accompany the OPAV clause with an affirmative farming requirement clause in its OPAV easement to further protect transferred farmland from falling out of active use. These clauses, as used outside of Vermont, usually define required agricultural uses and then establish

210. Id. 211. See Programs and Models from Other States, supra note 207, at 2 (highlighting that Massachusetts has never exercised its option to purchase, signifying that the program has been self-regulating and thus, successful). 212. Matt Hongoltz-Hetling, Fate of a Farm, Part 2: Out to Pasture, VALLEY NEWS (July 3, 2016), http://www.vnews.com/Fate-of-a-Farm-Part-2-New-Dairy-Farmer-Enters-Randolph-Ranks-2916837 [https://perma.cc/FT5U-F5AS]. 213. E-mail from Suzanne Leiter, Fee Lands Portfolio Manager, Vt. Land Tr., to author (Nov. 15, 2016, 09:44 AM) (on file with author). 214. Id. 215. Johnson, supra note 11, at 48.


remedies and consequences for failing to fulfill those uses.216 Vermont’s legislation allows conservation easements to grant an easement holder the right to “require the performance of specified activities.” 217 However, VLT’s standard easement does not—and likely should not—include such a right. 218 Including affirmative obligations in a conservation easement further encumbers the land.219 This may decrease landowners’ willingness to enter these agreements, raising the price that a land trust must pay to buy the easement.220 An even greater problem is that an affirmative obligation may make conservation easements unfavorable in the farming community by forcing a landowner off her land. If a farmer can no longer farm her land, an affirmative obligation to farm may force her to choose between facing the clause’s penalties and renting or selling her property. Additionally, VLT must steward everything included in its easements.221 Therefore, including additional rights to enforce would likely raise the cost to administer an easement. Instead of incorporating affirmative obligations, VLT could increase the interaction between the OPAV properties and the Farmland Access Program. VLT could use the list of farmers seeking farmland to match farmers who no longer farm but do not wish to sell their land with new and beginning farmers who would like to start farming but can currently only afford to rent rather than purchase land. While VLT should not change its easement language to include affirmative farming requirements, it could change its language to ease transfers in particular circumstances.

2. Foreseeable Issues with Partial Conservation Easements

VLT could adjust the OPAV clause for situations where the landowner only agrees to granting an easement encumbering part of her property.222 The landowner may prefer such an arrangement so that she retains the ability to later sell an unencumbered parcel. VLT may agree to a partial conservation easement because it may impose less stewardship burdens than an easement to the entire property. However, conservation easements covering only part of a property may pose issues if the easement contains an OPAV. For example, assume a conservation easement only covers 190 acres of a 200-acre farm, and a potential sale of the entire 200 acres triggers 216. Id. at 48–49. 217. VT. STAT. ANN. tit. 10, § 821(a). 218. Privately Funded Easement Template, supra note 17. 219. Johnson, supra note 11, at 47. 220. Id. 221. Ramsay Interview, supra note 21. 222. Id.


the OPAV.223 The OPAV only gives the easement holder the option to purchase the 190 acres covered by the easement.224 This leaves VLT with the choice between: (a) purchasing the entire tract, with the 190 acres valued at their agricultural value and the remaining ten acres valued at their development value; and (b) waiting for the landowner to receive subdivision approval from the appropriate authorities so that it can purchase only the 190 acres. VLT usually follows the second route, leaving it and the landowner scrambling to receive the proper approval within the OPAV clause’s strict time limits. 225 However, such a scenario is reasonably foreseeable at the time VLT receives any partial easement. Therefore, if VLT and the landowner would prefer to apply the easement to only part, rather than all, of the property, the parties could subdivide the property prior to executing the easement or tailor the original easement to deal with the situation.

The more preferable solution depends in part on whether the particular farm can continue as a viable business absent the land omitted from the easement. In some cases, subdividing the parcel may be unfavorable because the portion of the tract not covered by the easement may contain land or structures necessary for practicable farming. 226 Likewise, subdividing the parcel before receiving an offer on the property forecloses the possibility of a qualified farmer offering to purchase the entire 200-acre tract. The longer the tract stays intact, the longer it will likely remain in active use. Thus, VLT could alternatively insist on including the entire hypothetical 200 acres in the easement, potentially exempting the remaining ten acres from all easement restrictions except the OPAV. While this would increase the costs of securing an easement on the property, it would better prevent the potential loss of agricultural land and reduce the costs associated with receiving subdivision approval. Finally, increased outreach to the agricultural community and other land-use professionals could ease VLT’s ability to match uniquely encumbered farmland with the appropriate buyer.

3. Increased Training Sessions

VLT has been increasing OPAV training sessions with professionals who may become involved in the property’s valuation or future transfers,

223. Id. 224. Id. 225. Id. 226. See Daloz, supra note 3, at 450 (explaining the effects of having “lots [that] are ‘too large to mow, but too small to plow’”).


such as town appraisers and real estate agents, so that they understand the OPAV’s implications on property values.227 Town appraisers determine a property’s value for such purposes as property taxation. 228 Traditional conservation easements, the RFR, and the OPAV all affect a property’s value differently, an OPAV usually decreasing the value most.229 If a town appraiser does not understand the difference between these three mechanisms and taxes a landowner as if the property had a traditional conservation easement or RFR, the town will likely overtax the landowner. If a landowner knows that by including an OPAV clause in her conservation easement she runs the risk of decreasing her property’s future purchase price while still paying higher taxes in the meantime, she may be less willing to encumber her land with an OPAV. By better educating town appraisers, VLT could increase landowners’ receptiveness toward the OPAV, thereby potentially decreasing the amount of remuneration that it must pay a landowner for including an OPAV in her conservation easement.

Another valuation issue may arise if the landowner employs a real estate agent to sell her property. When listing an OPAV property, some real estate agents do not currently understand the OPAV’s implication on the property’s potential purchase price and, subsequently, their commissions.230 Increased training would inform the real estate agent that he cannot sell the OPAV property for a price greater than its agricultural value and that his commission will be based on that lower value.231 If the real estate agent knows this from the outset, he may divert his energy and resources from trying to find the highest bidding buyer for his client’s property to trying to find the highest bidding qualified farmer. While this may decrease the likelihood of a new and beginning farmer buying the property, by encouraging the landowner to only accept offers from potential buyers who are likely to fulfill the qualified-farmer requirements, the real estate agent could reduce VLT’s involvement in finding buyers for OPAV properties. While VLT should focus only on improving how OPAVs legally operate in identified trouble areas and how they practically operate, other states could modify the OPAV’s legal technicalities to better suit their situations by increasing the information available on OPAVs.

227. Ramsay Interview, supra note 21. 228. Assessor’s Office, DOVER VT., www.doververmont.com/message-assessors-office [https://perma.cc/8H8B-TWLU] (last visited Apr. 3, 2017). 229. Id. 230. Id. 231. Id.


B. Tailoring Vermont’s OPAV to Other States

Other states seeking to introduce OPAVs will have to consider the local land trusts’ capabilities, farming communities’ culture, and legal requirements.232 Depending on a particular land trust’s staff capabilities and funding available for farmland protection, it may want to modify the types of buyers that trigger an OPAV or the time restrictions included in the clause.233 Similarly, while Vermont favors owner-operated farms and thus seeks to keep farmland active by increasing farmers’ ability to purchase land, other states may be more receptive toward leasing private or public lands to farmers and could adjust the OPAV to achieve that outcome.234 Above all else, the land trust and farming community can only use the OPAV within the confines of the state law.

Land trusts can tweak the OPAV clause’s language to suit their needs and abilities.235 For instance, Massachusetts only exempts sales to family members from triggering the OPAV “and reviews all other transfers,” including those to farmers “for price and plans of the buyers.”236 Although Massachusetts has never exercised its option to purchase, because it may purchase the property even if the landowner had accepted an offer from a farmer, Massachusetts’s potential oversight of its OPAV exceeds Vermont’s. 237 Conversely, when Mount Grace Land Trust created its OPAV in New Hampshire, it reduced the potential OPAV triggers by expanding the definition of “qualified farmer” to include those who have experience and a business plan.238 In this way, Mount Grace aims to make farmland more accessible to new and beginning farmers.239 However, VLT has found that it can achieve the same level of accessibility to this category of potential buyers with its objective definition.240 In cases where Mount Grace’s OPAV would not be triggered, VLT would have the opportunity to review the potential buyer’s plans and likely waive its right to purchase the property.241 VLT prefers its definition because it provides the land trust with greater oversight over the property’s transactions. 242 Further, VLT found that a similarly subjective definition left too much room for potential 232. Id. 233. Id. 234. Id. 235. Id. 236. WAGNER ET AL., supra note 20, at 3. 237. Programs and Models from Other States, supra note 207, at 2–3. 238. Ramsay Interview, supra note 21. 239. Id. 240. Id. 241. Id. 242. Id.


buyers to argue that their business plan was sufficient to qualify them as a farmer.243 However, land trusts that are first beginning to experiment with OPAVs may prefer Mount Grace’s definition. Newer or smaller trusts may not yet have VLT’s capacity to purchase and steward property and would rather not be as involved in the OPAV’s implementation. Trusts that cannot or do not want to own land could also expand the time periods in their OPAVs.244 Assuming that their OPAVs would still provide them with the right to assign the option, this expanded timeframe would give the land trust more time to find an alternative buyer, thus reducing pressure to purchase the land.245 In addition to the land trust’s circumstances, the local community will determine what type of OPAV will be most effective.

Different states may have different farming cultures and development pressures. For instance, not all states prefer owner-operated farms and accordingly, could change the OPAV language to encourage the type of tenure most common to the local community. In mid-Atlantic Maryland, with its history of farmers leasing land from private landowners,246 the land trust could exempt potential buyers from triggering the OPAV if they demonstrate that they would lease the land to a qualified farmer. In states where the land trust prefers to own the land and lease it to a farmer,247 the land trust may find that it can provide land at more affordable rents by purchasing farmland through an OPAV. To do so, these states likely would not need to change the OPAV’s language, but only how they implement the OPAV. The land trust would likely purchase and keep the land instead of waiving the option to purchase or resell the land. Alternatively, although rare in the United States, particularly in the eastern states, the government could consider purchasing land to lease to farmers.248 However, because the government likely is not interested in pursuing this alternative, it likely would not be interested in using the OPAV in this way. States may also tailor the OPAV to the types of pressures facing their farmland. For instance, Connecticut’s land is already much more developed than Vermont’s.249 Therefore, Connecticut’s farmland faces greater development pressure from urban sprawl, leaving a greater difference between Connecticut farmland’s development and agricultural values. 250 Thus,

243. Id. 244. Id. 245. Id. 246. Id. 247. Id. 248. Owley, supra note 18, at 127 (“Federal land ownership accounts for nearly one-third of the nation's land, with most of it concentrated in the western United States.”). 249. Ramsay Interview, supra note 21. 250. Id.


landowners may require more compensation for encumbering their land with an OPAV, which may reduce Connecticut land trusts’ abilities to purchase easements or the property itself. Further, because states like Connecticut do not rely on agriculture as part of the state’s identity, keeping farmland active for the sake of its image may not be as important to its landowners. If these states would, nevertheless, like to use OPAVs, they could create smaller scale programs targeted toward particularly valuable agricultural soils or areas with an established farming community, provided that the state’s law allows, or can be amended to allow, this type of interest in land.

While most states have legislation allowing conservation easements, they do not all have legislation enabling easement holders or the state to have rights and interests like the OPAV. Therefore, these states would have to adopt OPAVs in a way that fits within the existing law or enact new legislation. For instance, New York has begun examining OPAVs but does not have explicit legislation allowing such an interest. 251 Further, New York’s common law only clearly allows preemptive rights, rather than options, to purchase land.252 Therefore, if New York would like to begin using OPAVs without waiting for new legislation, it may need to rename the option, which may have legal implications on how it functions. Some states’ legislation allows affirmative farming covenants.253 An affirmative requirement likely reduces the land’s value so that it is closer to its agricultural value by eliminating other land uses.254 However, the law of some states, such as California, is unclear as to whether such requirements are legally enforceable.255 Therefore, without clear authorizing legislation, if a state were to rely on this approach rather than the OPAV, an OPAV could be a useful backup mechanism should the courts void the affirmative language.256 Although OPAVs have been slow to spread to other states, their success within Vermont demonstrates that they could be useful for helping farmland remain active where that is a priority of the state.

251. See generally N.Y. ENVTL. CONSERV. LAW §§ 49-0301 to 49-0311 (McKinney 2011) (lacking an express authorization of interests similar to the OPAV). 252. See, e.g., Metro. Transp. Auth. v. Bruken Realty Corp., 492 N.E.2d 379, 383 (1986) (stating that the common law allows preemptive rights instead of options). 253. Johnson, supra note 11, at 47. 254. Id. 255. Id. 256. Id.


CONCLUSION

Because Vermont’s identity and economy rely on agriculture and its consequent pastoral landscapes, Vermont uses the OPAV to increase the likelihood that farmland will remain in active agricultural use. A variety of factors determine whether farmland remains active, ranging from farmland’s availability and consumer preferences to weather patterns and the farmer’s personal circumstances. Other mechanisms, such as the traditional conservation easement, focus on keeping farmland available for farmers by protecting it from development. However, farmers may not be able to access available farmland because its price exceeds the land’s expected agricultural returns, rendering the land unaffordable.

OPAVs increase the affordability of farmland for farmers by allowing the easement holder to purchase and resell farmland to farmers at its agricultural value. In practice, VLT, as Vermont’s primary OPAV easement holder, rarely exercises its option to purchase the OPAV properties. Nevertheless, the OPAV increases a farmer’s ability to purchase farmland by ensuring that it is available at its agricultural, rather than rural, value. While the OPAV does not ensure that farmland remains active or farmed in environmentally sound ways after the land has been transferred to a farmer, its strength lies in its narrow focus on land transfer’s role in keeping farmland active. OPAVs target only one of the many factors that determine whether a farmer can continue or begin farming. Nevertheless, OPAVs have helped Vermont farmland remain active by improving farmers’ access to farmland.

REVIEW: ENVIRONMENTAL LAW FOR BIOLOGISTS BY TRISTAN KIMBRELL

Stacy Shelton

A law student or lawyer who picks up Environmental Law for Biologists by Tristan Kimbrell hoping for a quick, digestible way to understand the national and international laws that govern environmental impacts will be disappointed. This in-depth, well-researched book is no shortcut. Instead, it analyzes many of the environmental concerns and controversies of our time and carefully dissects the substantive laws regulating species, land, water, and air. The end result is a handy reference book for any environmental lawyer, biologist, and perhaps especially, a policymaker.

The book’s premise is that ecology and wildlife biology students are not taught environmental laws, despite the fact that those laws determine which species are protected, which pollutants are prohibited, and where development is encouraged. But, the book is also meant for law students who are interested in understanding how environmental laws influence species and ecosystems. In bringing these two disciplines together, Kimbrell explores their fundamental conflict: ecologists attempt to understand the interconnectedness of species, lawyers focus on discrete problems. Thus, the Endangered Species Act protects individual species rather than the ecosystems that support multiple species.1 An ecologist would rewrite the Act to take a more holistic approach. However, Kimbrell, who is both an ecologist and a lawyer, cautions that a “fuzzy definition” of ecosystems in the law would give politicians room to avoid protecting them at all.2

One of the book’s most valuable contributions is Kimbrell’s attempt to explain the state of the ecological research related to specific laws and regulations and highlight areas where additional research is needed. The impetus, according to Kimbrell, is for scientists to identify areas in which environmental laws fail to protect the environment and suggest improvements. 3 The insights are equally valuable for lawyers and policymakers. For example, in the Species section of the four-part book, 1. Endangered Species Act, 16 U.S.C. §§ 1531–1544 (2012). 2. TRISTAN KIMBRELL, ENVIRONMENTAL LAW FOR BIOLOGISTS 77 (2016). 3. Id. at 21.


Kimbrell explains that a state’s hunting laws can determine how a species evolves.4 More research into the correlation between hunting and selection pressures could lead to changes in the law. But, the author then adds a dose of reality, opining that states are generally more concerned with the economic value of hunting than its ecological and evolutionary effects.5

Perhaps, because Environmental Law for Biologists is geared more toward the biologist than the lawyer, it is exceedingly light on case law. In the Water section, Kimbrell details how the Clean Water Act (CWA) and federal regulations treat concentrated animal feeding operations, or CAFOs.6 But, there is no mention of the seminal cases that have interpreted those laws. Any lawyer writing a brief about the same subject would be compelled to mention Concerned Area Residents for the Environment v. Southview Farm, a Second Circuit case that stands for the notion that poor farming practices do not qualify for the agricultural discharge exemption under the CWA.7 The exemption is available only if rain causes the discharge.8

But, Kimbrell does delve into the case law when required, as in his description of the United States Supreme Court’s evolving interpretation of which water bodies fall under the CWA.9 A split decision in Rapanos v. United States has left the United States Environmental Protection Agency with two standards under which a wetland may be regulated.10 The first is a continuous surface connection to a traditionally navigable waterway, which clearly falls under the CWA; the second is a “significant nexus” that affects the “chemical, physical and biological integrity” of the navigable waterway.11 Kimbrell’s write-up includes a research opportunity for a biologist to find ways in which traditionally non-navigable waters influence navigable waters. Finding those connections “will hopefully influence regulators in deciding when a significant nexus to a traditionally navigable water exists, and thus in determining which water bodies fall under the CWA.”12

Whether you are a biologist, a lawyer, or a Congressperson, this is a book worthy of your library. 4. Id. at 52. 5. Id. at 54. 6. Id. at 183–85. 7. See Concerned Area Residents for the Env’t v. Southview Farm, 34 F.3d 114, 120, 122 (2d Cir. 1994). 8. Id. at 120–21. 9. KIMBRELL, supra note 2, at 212–16. 10. Rapanos v. United States, 547 U.S. 715, 715–18 (2006); KIMBRELL, supra note 2, at 216. 11. Rapanos, 547 U.S. at 742, 780; KIMBRELL, supra note 2, at 214–15. 12. KIMBRELL, supra note 2, at 216.