Interesting New Book on the Transatlantic GMO Divide

Oxford University Press just published an interesting new book: When Cooperation Fails: The International Law and Politics of Genetically Modified Foods by Gregory Schaffer and Mark Pollack.

I will review the book after I have read it. For now, I will just whet your appetite with OUP's description of the book:

The transatlantic dispute over genetically modified organisms (GMOs) has brought into conflict the United States and the European Union, two long-time allies and economically interdependent democracies with a long record of successful cooperation. Yet the dispute - pitting a largely acceptant US against an EU deeply suspicious of GMOs - has developed into one of the most bitter and intractable transatlantic and global conflicts, resisting efforts at negotiated resolution and resulting in a bitterly contested legal battle before the World Trade Organization. Professors Pollack and Shaffer investigate the obstacles to reconciling regulatory differences among nations through international cooperation, through the lens of the GMO dispute. The book addresses the dynamic interactions of domestic law and politics, transnational networks, international regimes, and global markets, through a theoretically grounded and empirically comprehensive analysis of the governance of GM foods and crops. They demonstrate that the deeply politicized, entrenched and path-dependent nature of the regulation of GMOs in the US and the EU has fundamentally shaped negotiations and decision-making at the international level, limiting the prospects for deliberation and providing incentives for both sides to engage in hard bargaining and to "shop" for favorable international forums. They then assess the impacts, and the limits, of international pressures on domestic US and European law, politics and business practice, which have remained strikingly resistant to change. International cooperation in areas like GMO regulation, the authors conclude, must overcome multiple obstacles, legal and political, domestic and international. Any effective response to this persistent dispute, they argue, must recognize both the obstacles to successful cooperation, and the options that remain for each side when cooperation fails.

Mighty Sweet

There are many things that make life worth living, but two of the greatest have to be time outdoors working with nature (such as gardening) and time with one's children. The two of these intersect for me everytime my kids help me plant, maintain or harvest a garden -- a great way to build their familiarity and comfort with the outdoors, and to teach them about where food comes from.

In the tradition of Jim Chen's many musical posts, here is the lyric that evokes this intersection for me (from Greg Brown's "Mighty Sweet Watermelon"):

Sunflowers dancing like my daughters do.

Life gets old, love makes it new.

Come on down and meet us in the garden.

The full song is available free here:
http://new.music.yahoo.com/greg-brown/tracks/mighty-sweet-watermelon--42166999

Continued Life for the ESA

I share Andrew Torrence's concern that climate change may be taking priority over biodiversity conservation. (However, as I've expressed previously, I think the attention garnered by climate change can be harnessed to more effectively address some of the most challenging and critical issues of biodiversity conservation). Nonethless, I think that the polar bear is a long way from the snail darter and the role of the ESA in its conservation presents a fundementally new question of the ESA's scope and intent.

Polar bears, of course, remain listed under the ESA (see posts here, here, here, and here). Further, federal agencies are still required to consult with FWS where their activities may affect the polar bear because FWS recently revoked a Bush-era midnight regulation that, among other things, essentially eliminated the consultation requirement for GHG emissions. The 4(d) rule that FWS recently decided to retain intersects with consultation by eliminating the need for incidental take permits for certain activities that may cause a take -- most significantly, GHG emissions.

The broader effect of the 4(d) rule, in my view, is to firmly establish that FWS will not attempt to set climate change policy for the nation. The rule also avoids the potentially unmangeable issues that would be created if FWS had to approve all federally-authorized GHG emissions through the consultation process. While I support a strong reading of the ESA, as embraced in TVA v Hill, expanding FWS' authority to include a final say on all GHG authorizations takes us into uncharted territory.

FWS should be consulted on GHG issues, and biodiversity conservation must be a major consideration in the creation of national GHG policy. However, this policy will be more socially and politically tenable, I think, if it arises through a process that is more organic than FWS consultation. Ultimately, it seems impossible that FWS authority over GHG emissions would craft a lasting climate change policy. It would, instead, pressure Congress to create such a lasting policy. That pressure is already building, and the ESA faces a greater risk of being weakened if FWS asserts authority over power plants to protect the polar bear because Congress would be forced to address that question in crafting a new regime.

The ESA has a role at the intersection of climate change and biodiversity. It is a role that is not likely to be filled by any other statute or policy, and it is critical. The ESA is the strongest bit of ecocentric legislation in the U.S., and perhaps the strongest biodiversity legislation in the world. Its role during a phase of climate change is to ensure that other species are not left out of the adaption equation as we humans scramble to change our behavior. In other words, the ESA can call attention to the impacts of climate change through lisitings (as FWS may well do with the pika) and should preserve or create every available option for the polar bear and other climate-threatened species to survive the impacts of climate change. This is an important function that the ESA can fill, and perhaps serve as a model for the international level where a similar problem must be addressed.

The Day The Endangered Species Act Died

The Obama Administration announced today, through Secretary of the Interior, Ken Salazar, that it would not break with the Bush II Administration's policy of abandoning the Polar Bear to its fate. Despite both the clear intent and letter of the Endangered Species Act to contrary, Secretary Salazar stated that "The Endangered Species Act is not the appropriate tool for us to deal with what is a global issue, and that is the issue of global warming".

Faced with a similar issue in TVA v. Hill (1978), 437 U.S. 153, 172-173, the United States Supreme Court surprised everyone by explaining that

It may seem curious to some that the survival of a relatively small number of three-inch fish [the Snail Darter] among all the countless millions of species extant would require the permanent halting of a virtually completed dam [that is, the Tellico Dam] for which Congress has expended more than $100 million. The paradox is not minimized by the fact that Congress continued to appropriate large sums of public money for the project, even after congressional Appropriations Committees were apprised of its apparent impact upon the survival of the snail darter. We conclude, however, that the explicit provisions of the Endangered Species Act require precisely that result.

The Court went on to emphasize the intentional strictness of the Endangered Species Act:

One would be hard pressed to find a statutory provision whose terms were any plainer than those in [Section] 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or modification of habitat of such species . . . ." 16 U.S.C. 1536 (1976 ed.). This language admits of no exception.

Although the Obama Administration has announced its intention to face the climate change crisis with, as yet unannounced, comprehensive measures, the decision to set the Polar Bear adrift, both figuratively and literally, hints at an emerging hierarchy of environmental priorities: climate change comes before biodiversity conservation. This decision - to conduct biodiversity conservation a la carte - was not what Congress had in mind when it passed the Endangered Species Act; in fact, it represents exactly what Congress feared would happen unless it legislated clearly and strongly.

For those who hope for bipartisan cooperation in D.C., perhaps this represents progress: Democratic and Republican administrations have now co-signed the death warrant of the Polar Bear, and have begun the process of exsanguinating the Endangered Species Act.