As previously reported by my colleague Lynn Grayson, ExxonMobil has faced a recent onslaught of scrutiny over allegations that fossil fuel companies had committed fraud by downplaying the effect of climate change on their businesses. These matters include a subpoena issued by the U.S. Virgin Islands’ Attorney General’s office related to allegations of violating two state laws by obtaining money under false pretenses and conspiring to do so; and New York Attorney General Schneiderman’s investigation where documents have been subpoenaed to determine whether the company misled investors about the dangers climate change posed to its operations.
Two events last week suggest that this fight will not end anytime soon.
- ExxonMobil filed suit in the Northern District of Texas, seeking an injunction barring the enforcement of a civil investigative demand issued by the Massachusetts Attorney General to ExxonMobil, and a declaration that this demand violates ExxonMobil’s rights under state and federal law, including the First and Fourteenth Amendments to the Constitution, as well as the Dormant Commerce Clause.
- The Attorneys General of 13 states wrote a sharply-worded letter to their colleagues, noting that “this effort by our colleagues to police the global warming debate through the power of the subpoena is a grave mistake” and “not a question for the courts.” The letter outlines how this investigation is in fact “far from routine” because of its following three characteristics: “1) the investigation targets a particular type of market participant; 2) the Attorneys General identify themselves with the competitors of their investigative targets; and 3) the investigation implicates an ongoing public policy debate.”
We will continue to monitor developments on this heated situation.
Jenner & Block Partners E. Lynn Grayson and Gabrielle Sigel have been named “Energy & Environmental Trailblazers” by The National Law Journal. The list honors people who have “made their mark in various aspects of legal work in the areas of energy and environmental law.”
The profile of Ms. Grayson notes that she was appointed general counsel for the Illinois Emergency Services and Disaster Agency soon after the agency took over enforcement responsibility for the state’s Emergency Planning and Community Right-to-Know Act. When she moved into private practice in Chicago, she became involved in the first REIT case involving environmental issues; since moving to Jenner & Block, she has done a great deal of international due diligence. Ms. Grayson observes that the future of environmental law will involve international transactions as well as domestic work, particularly around energy and renewable energy.
The profile of Ms. Sigel notes that she focuses on the intersection of workplace health and the environment. The profile highlights one of her cases in which the water supply in retail and medical offices became contaminated, and a number of state agencies became involved. As for the future, Ms. Sigel observes that the lines between organizations will increasingly blur. “Whether it’s business, regulatory agencies, community groups or NGOs, you have to look at issues holistically, and not in a superficial way,” she says.
EPA’s woes over alleged mismanagement of the Gold King Mine spill in August 2015 continue with a new lawsuit recently filed by the State of New Mexico in federal district court in Albuquerque. The lawsuit names the EPA as a defendant, along with an EPA environmental contractor and mine owners contributing to the mismanagement of reclamation waters. New Mexico contends that the Agency has not done enough to remedy the toxic release of a flood of wastewater contaminated with an estimated 880,000 pounds of heavy metals into local rivers.
New Mexico’s suit seeks a declaratory judgment that the contractor and mine owners violated the Resource Conservation and Recovery Act, as well as compensatory and punitive damages for alleged negligence and gross negligence. New Mexico also is asking for a declaratory judgment against all defendants under the Comprehensive Environmental Response, Compensation and Liability Act.
Although the suit does not specify damages, attorneys for New Mexico said communities are owed at least $7 million for emergency response costs and third-party monitoring of water quality. They said the defendants should pay another $140 million in damages for estimated economic harm. This calculation estimated the harm done to rivers that are critical for agricultural and ranching use; to the Navajo Nation, which owns a tract of land the size of a small state that was affected; and to recreation that provides a significant amount of New Mexico’s income.
The New Mexico Attorney General is requesting full and just compensation for the environmental and economic damage caused by EPA’s spill. The lawsuit alleges that the effects of EPA’s spill were far worse than reported. New Mexico Environmental Department Cabinet Secretary Ryan Flynn has stated publicly that “from the very beginning, the EPA failed to hold itself accountable in the same way that it would a private business.”
While EPA declined to formally comment on the lawsuit, an Agency spokesperson advised that the EPA has taken responsibility for the spill and already paid the State of New Mexico $1.3 million.
The lawsuit is the first state litigation against the EPA over the spill. Other states impacted include Arizona, Colorado, Utah, and the Navajo Nation.
Actions launched by extreme anti-oil and gas activists claiming Exxon Mobil engaged in an alleged cover-up of climate change risks have taken another interesting turn. This week House Republicans initiated a probe into New York Attorney General Eric Schneiderman’s investigative efforts as well as those of his colleagues. The House Committee on Science, Space and Technology plans to investigate Attorney General Schneiderman and several other attorneys general alleged by House Republicans to be working at the behest of environmental activists to silence critics of global warming possibly resulting in an abuse of prosecutorial discretion.
Recent efforts by environmentalists and governmental authorities include: a notice from the Conservation Law Foundation in Massachusetts of its intent to sue Exxon for allegedly engaging in a deliberate, decades-long cover-up of climate change—it will be the first lawsuit by an environmental group against a petroleum company for climate change matters; a subpoena issued by the U.S. Virgin Islands’ Attorney General’s office related to allegations of violating two state laws by obtaining money under false pretenses and conspiring to do so; and New York Attorney General Schneiderman’s investigation where documents have been subpoenaed to determine whether the company misled investors about the dangers climate change posed to its operations.
Last week the Regional Body for the Great Lakes-St. Lawrence River Basin Water Resources Compact agreed that the City of Waukesha, WI met the compact exception criteria—moving one step closer to approval for a diversion of Great Lakes water outside of the boundaries of the river basin. Many are concerned that this move may establish a bad precedent for others seeking diversion of water from the Great Lakes to address growing water quality and quantity challenges.
The City of Waukesha, located in southeast Wisconsin 17 miles west of Lake Michigan, seeks an exception from the prohibition of diversions under the Great Lakes–St. Lawrence River Basin Water Resources Compact and Great Lakes–St. Lawrence River Basin Sustainable Water Resources Agreement. The Compact and Agreement prohibit diversions of Great Lakes water, with limited exceptions. One exception allows a “community within a straddling county,” such as Waukesha, to apply for a diversion of Great Lakes water.
On January 7, 2016, the Wisconsin Department of Natural Resources forwarded the City of Waukesha’s diversion application to the other Great Lakes states, and the Canadian provinces of Ontario and Quebec for regional review. On May 18, 2016 the Regional Body approved a Declaration of Finding concluding that, with conditions, the City of Waukesha’s diversion application meets the Compact exception criteria. Conditions included a reduced maximum diversion volume of 8.2 million gallons per day and a reduced area the diverted water can be served. The Compact Council will make the final decision with a vote on whether to approve, approve with conditions, or deny the City of Waukesha’s diversion application. The Compact Council is scheduled to meet June 21, 2016 in Chicago, IL.
The Compact was passed in 2008 to protect the Great Lakes from attempted water grabs. The Waukesha, WI proposal to pump water from Lake Michigan, 15 miles to the east, as a replacement water supply for its radium-contaminated wells is the first such application under the compact. The proposal has been the subject of critical review as environmental groups and others worry about setting an inappropriate precedent for access to water from the Great Lakes.
The underlying documentation is available from the Wisconsin Department of Natural Resources as well as more detail about the upcoming meeting of the Compact Council in Chicago.
Jenner & Block CLE Webinar: "Climate Change Law at the Close of the Obama Administration: Understanding the Past and Implications for the Future"
Jenner & Block Partner Gabrielle Sigel will discuss the development of climate change law under the Obama Administration and how that law may affect future efforts to regulate greenhouse gas emissions. She will provide a framework for understanding some of the most complex and dynamic legal decisions regarding administrative and environmental law since the Clean Air Act was enacted. Titled “Climate Change Law at the Close of the Obama Administration: Understanding the Past and Implications for the Future,” this CLE webinar will be held from 12:00 noon to 1:30 pm on May 12, 2016, at the firm’s Chicago office, 353 N. Clark Street.
Ms. Sigel is co-chair of the firm’s Climate and Clean Technology Law Practice and a founding member of the firm’s Environmental and Workplace Health & Safety Law Practice. She publishes extensively and is a frequent speaker on environmental law, climate change, and workplace health and safety issues.
Please click here to RSVP for attend the program in person or via a webinar.
On April 22, more than one billion people every year celebrate Earth Day in more than 190 countries. According to the Earth Day Network, it is the largest civic observance in the world. Here are some interesting insights about Earth Day this year:
- It’s going to be more important than ever because at last count 155 countries, including the U.S., have agreed to sign the Paris agreement on climate change during a special ceremony at the United Nations in New York.
- This year’s celebration is a lead up to the 50th anniversary of Earth Day in 2020, and the Earth Day Network has pledged to plant 7.8 billion trees worldwide to account for every single person living on Earth.
- Learn more about Earth Day by viewing Google’s latest Doodle with fascinating paintings and pictures from around the world.
In the U.S., water scarcity often seems a non-issue when you turn on a faucet and receive plentiful, clean, and sometimes even free water. Water is fundamental to business to heat, cool, clean, and manufacture goods. More so than oil, increasingly water is a limited natural resource with supplies adversely impacted by quality, pollution, insufficiency of infrastructure, drought, and flooding. PwC’s 17th Annual Global CEO Survey reveals interesting insights into the views and perceptions of business leaders regarding water.
- Water crisis was identified as the #1 global business risk in terms of impact in 2015.
- 46% of CEOs surveyed believed that resource scarcity and climate change will transform their business in the next five years.
- According to the World Resource Group, the world will face a 40% global shortfall between forecast demand and available water supply by 2030; moreover, in 2030, 47% of the world population will be living in areas of high water stress and a significant percentage of businesses will be operating there too.
- A 2014 survey of the FTSE 500 companies noted that 68% believed water was a substantive risk to business up from 59% in 2011.
- The Global Water Intelligence suggests that $84B has been spent by business around the world to conserve, manage, or obtain water.
Water-related risk poses differing challenges for business, and the World Business Council for Sustainable Business Development identifies the following broad categories of risks: financial, operational, market, reputational, and regulatory.
Does your business understand its water footprint, where water stresses exist, or have back up plans to address insufficient availability of water?
PwC’s recent publication Collaboration: Preserving Water Through Partnering That Works provides a good overview of water challenges as well as success stories focused on the water needs of business.
One of the most significant environmental and energy policy issues today is climate change. One of the biggest events of the past year in environmental and energy policy was the Paris COP21 talks. More countries than ever have pledged to significant carbon cuts, yet in many people’s views, those pledges fall short of what a lot of scientists say is necessary. A recent interview of United Nations Secretary-General Ban Ki-moon with Kimberly Strassel, a member of The Wall Street Journal (WSJ) editorial board, highlights some of the challenges.
The WSJ found that attitudes toward climate change differ markedly by region of the world and by political affiliation:
The U.S. has a plan to reduce emissions by 28% but the proposal is the subject of ongoing litigation. In his interview, Secretary-General Ban Ki-moon expressed concern over the impact internationally if the U.S. cannot obtain approval to meet its commitments to reduce GHG. President Obama has said that climate change is a bigger threat than terrorism and when asked if he agreed, the Secretary-General noted that “….longer term, it is a much, much more serious issue....concluding that climate change does not respect any borders. It affects a whole humanity, it affects our planet Earth.”
EPA recently took action under the Toxic Substances and Control Act (TSCA) to ensure no TCE containing consumer products enter the marketplace before the Agency has the opportunity to evaluate the intended use and take appropriate action. The new rule issued April 6, 2016, known as a Significant New Use Rule (SNUR), requires any company intending to make certain TCE containing consumer products provide EPA 90-day notice before making the product.
The final rule applies to TCE manufactured (including import) or processed for use in any consumer product, except for use in cleaners and solvent degreasers, film cleaners, hoof polishes, lubricants, mirror edge sealants, and pepper spray. A consumer product is defined at 40 CFR 721.3 as “a chemical substance that is directly, or as part of a mixture, sold or made available to consumers for their use in or around a permanent or temporary household or residence, in or around a school, or in recreation.”
EPA’s June 2014 Work Plan Chemical Risk Assessment for TCE identified health risks associated with several TCE uses, including the arts and craft spray fixative use, aerosol and vapor degreasing, and as a spotting agent in dry cleaning facilities. In 2015, EPA worked with the only U.S. manufacturer of the TCE spray fixative product, PLZ Aeroscience Corporation of Addison, Illinois, resulting in an agreement to stop production of the TCE containing product and to reformulate the product with an alternate chemical.
It is important to note that this regulatory action may affect certain entities with pre-existing import certifications and export notifications required under TSCA.
The rule becomes effective 60 days from its publication in the Federal Register.
It is difficult to envision a water scarcity issue when you turn on your tap in most places in the U.S. and immediately are provided with clean, fresh, and relatively low cost or even free water. Increasingly, this is not the case for many, and we only need to look at the recent water crisis in Flint to learn of the water quality and quantity concerns existing today. Understanding the water management needs and resources for your business is critical, as well as how this precious natural resource may be adversely impacted by climate change, population growth, and drought, among other considerations.
Summarized below are some important insights for business:
Today the White House is hosting a Water Summit to shine a spotlight on the importance of cross-cutting, creative solutions to solving current water problems as well as to highlight innovative strategies that will catalyze change in how we use, conserve, protect and think about water now and in the years to come. The Water Summit brings together public and private entities to consider some of the most significant water-related challenges. 150 external institutions are joining the Federal government in announcing new efforts and commitments to enhance the sustainability of water in the U.S. by managing our water resources and infrastructure for the long term.
Examples of these new developments include:
- Nearly $4B in private capital committed addressing water-related infrastructure;
- More than $1B from the private sector over the next decade to conduct R&D into new technologies;
- A Presidential Memorandum and supporting Action Plan on building national capabilities for long term drought resilience;
- Nearly $35M this year in Federal grants from EPA, NOAA, National Science Foundation and DOA supporting water science; and,
- The release of a new National Water Model to enhance river-forecasting capabilities.
Read the White House Fact Sheet for more breaking news about the Water Summit and new developments in recognition of World Water Day.
There is no life without water. Yet it is not often mentioned that the availability and sustainable management of water has a direct link with the creation of quality jobs. The theme of 2016 World Water Day — Better water, better jobs — aims to highlight how water can create paid and decent work while contributing to a greener economy and sustainable development.
Today, almost half of the world's workers, or about 1.5 billion people, work in water-related sectors. Around 650 million people (one in 10 of the world's population) do not have access to safe water, putting them at risk of infectious diseases and premature death. Dirty water and poor sanitation can cause severe diarrhoeal diseases in children, killing 900 under-fives a day across the world, according to United Nations estimates — or one child every two minutes. The availability and quality of water has a direct impact on workers' lives. Every year over 340,000 workers die because of inadequate water supply and sanitation. Fishermen depend on the quality of fresh water, while a farmer's job depends on the ability to manage the available freshwater. In factories, 38 workers die from water-related diseases every hour, which can be prevented with cleaner water and sanitation.
Women and often children have to trek for hours every day to bring home water for their families. However, if availability of water was guaranteed, they could be learning skills that would help them to find better work. This is why the 2016 World Water Day theme — water and jobs — is so important. It is focusing on how enough quantity and quality of water can change workers' lives and livelihoods — and even transform societies and economies.
Read the entire article and see compelling images that accompany it of the importance of water to the economy and better jobs.
On Wednesday, March 16, 2016, Jenner & Block partners E. Lynn Grayson and Allison Torrence will be speaking at a Chicago Bar Association CLE Seminar titled "Major Cases and Regulatory Changes in Environmental Law." Lynn Grayson will be presenting on proposed RCRA generator and pharmaceutical rules, and Allison Torrence, who is Chair of the CBA Environmental Law Committee, will be presenting on the U.S. v. Volkswagen Clean Air Act litigation.
The seminar is on Wednesday March 16, 2014 from 3–5 pm at the Chicago Bar Association, 321 S. Plymouth Court. A networking reception will be held at the CBA immediately following the seminar, from 5–6 pm.
For more information and to register for the seminar click here.
As required by the Hazardous Waste Electronic Establishment Act (Act), EPA’s efforts are ongoing to develop an e-manifest system. EPA issued its final rule in February 2014 (79 Fed. Reg. 7518, February 7, 2014) seeking to implement the Act’s requirement to create a national electronic manifest system and impose user fees as a means to fund its development and operation. Most recently, EPA has developed an e-manifest listserv to manage communications with the regulated community.
According to EPA, the listserv will: 1) provide stakeholders with program announcements and updates; and 2) facilitate e-manifest conversations among users and other stakeholders. There will be significant progress on the e-manifest program throughout 2016-2017, so participation in the listserv will be a good way to stay informed.
Interested parties may subscribe to EPA’s listserv at https://www3.epa.gov/epawaste/hazard/transportation/manifest/e-man.htm.
EPA conducted a webinar on developments with the e-manifest system in December 2015, and the presentation provides a good overview of the program and related schedule.
Along with the hazardous waste management changes for generators recently proposed by EPA, the e-manifest system will be another significant new development for thousands of companies regulated by RCRA and subject to hazardous waste manifest requirements.
EPA recently announced seven National Enforcement Initiatives (NEIs) for FY 2017-2019. Every three years, EPA identifies NEIs to focus resources on national environmental problems where there is significant non-compliance with laws, and where federal enforcement efforts can make a difference. According to EPA, the NEIs are selected with input from the public and other stakeholders across EPA’s state, local and tribal partners.
Starting October 1, 2016 and continuing for three fiscal years, the following are the NEIs:
- Reducing air pollution from the largest sources
- Cutting hazardous air pollutants*
- Ensuring energy extraction activities comply with environmental laws
- Reducing risks of accidental releases at industrial and chemical facilities*
- Keeping raw sewage and contaminated stormwater out of our nation’s waters
- Preventing animal waste from contaminating surface and groundwater
- Keeping industrial pollutants out of the nation’s waters*
*New for FY2017-2019 as of February 2016.
It is interesting to note that the newly identified NEIs appear to correspond to challenges that EPA recently confronted, including the Gold King Mine wastewater spill, the spill prevention litigation and settlement in New York, and the Flint, MI lead contaminated water matter, where recent government reports concluded EPA failed in its regulatory obligations to this community.
For more information, see EPA’s news release announcing these NEIs.
EPA has agreed to initiate rulemaking to better address industrial waste spills as part of a settlement with a coalition of environmental groups. The Environmental Justice Health Alliance for Chemical Policy Reform (EJHA), People Concerned About Chemical Safety (PCACS), and the Natural Resources Defense Council (NRDC), sued EPA last July alleging that the Agency had failed to prevent hazardous substance spills from industrial facilities, including above ground storage tanks. See Environmental Justice Health Alliance for Chemical Policy Reform et al. v. U.S. Environmental Protection Agency, et al., case number 1:15-cv-05705, in the U.S District Court for the Southern District of New York.
Jenner & Block Webinar: The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know
On Tuesday, February 23rd, from 12:00– 1:15 pm CT, Jenner & Block Partners Lynn Grayson and Steven Siros will present a CLE webinar on The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know. The webinar will provide an overview of key environmental, health and safety issues in 2016 including the following topics:
- Issues relating to the Corps’ jurisdiction under the Clean Water Act;
- Fallout under the Safe Drinking Water Act after Flint;
- U.S. EPA’s Clean Power Plan regulations, UNFCCC COP 21, and the potential regulation of aircraft GHG emissions;
- Status of TSCA reform efforts;
- Litigation relating to GMOs under FIFRA;
- RCRA waste regulation amendments;
- OSHA penalty updates;
- U.S. EPA challenges;
- Water scarcity and sustainability; and
- Technological innovation and its impact on environmental practitioners.
To register for this free Webinar click here.
The Chicago Bar Association (CBA) Environmental Law Committee invites you to its regularly scheduled committee meeting on Tuesday, February 2 beginning at 12:15 p.m. At this meeting, Exponent’s Linda Cook will present “Weaving Data Into Gold: Optimizing Your Environmental Data Assets.” Ms. Cook is a Managing Scientist in Exponent’s Environmental and Earth Sciences practice in Maryland, MA. She is an environmental chemist with more than 25 years of experience specializing in the chemical analysis of environmental samples and investigating the fate and transport of contaminants in the environment.
Jenner & Block Partner, Allison Torrence, chairs the CBA’s Environmental Law Committee. If you have any questions about the work of the committee, suggested topics for future programs or this upcoming program, please feel free to contact Allison.
The program will be held at the CBA Headquarters, 321 South Plymouth Court from 12:15 to 1:30. The meeting also is available via webcast.
Partner E. Lynn Grayson, chair of Jenner & Block’s Environmental and Workplace Health & Safety Law Practice, is prominently featured on the cover of the 2016 Illinois Super Lawyers Magazine and in a lengthy profile in the publication.
Titled “Product of Her Environment: Environmental Lawyer E. Lynn Grayson Saves Companies Green,” the profile discusses Lynn’s career, starting with being hired by the Illinois Attorney General’s office out of law school in 1986 at a time when the office needed more environmental attorneys to handle the rash of newly defined regulatory violations. “I fell into environmental law,” she says.
President Obama recently signed The Microbead-Free Waters Act of 2015, phasing out the use of microbeads in health and beauty products. This legislation moved swiftly through Congress and was passed by the House and Senate in December 2015 and signed by President Obama on December 28, 2015.
The new law requires the manufacturing of products containing microbeads to end by July 1, 2017 and the sale of them to cease by July 1, 2018. This legislation was supported by various health and beauty products trade and industry groups, many of whose members already had voluntarily committed to replacing microbeads with viable alternatives. The new law amends the Federal Food, Drug and Cosmetic Act in general banning cosmetics that contain synthetic plastic microbeads.
Microbeads have been the focus of growing environmental and health-related concerns since the very small particles are washed down the drain into waterways, lakes, streams, and rivers. Since the plastic beads do not break down, they are eaten by fish and animals, who often die because these materials cannot be digested.
As discussed a number of times in this blog, microbeads have been the subject of growing regulatory scrutiny. A number of states, as well as Canada, have passed laws working to ban the use, manufacture, and sale of microbeads over time.
The Microbead-Free Waters Act of 2015 is another example of consumer driven changes in products to safeguard and improve the environment.
The Hong Kong Stock Exchange announced this week it will require listed companies to strengthen reporting on environmental, social and governance (ESG) matters, responding to investor demand for greater transparency in these areas. Many changes will take effect January 1, 2016. A transition to mandatory reporting for key performance indicators such as greenhouse gas emissions will phase in by January 1, 2017.
HSBC Holdings PLC, the fourth largest bank by assets in the world, has issued its first green bonds this month. HSBC France raised $500M, offering instruments at an annual coupon rate of 0.625% for a period of five years. Proceeds of the green bond issue will be used to finance renewable energy, energy efficiency, energy conservation, and climate adaptation projects, among others. Green bonds and the financing of climate-related improvement projects have been a key topic during the ongoing COP21 discussions.
HSBC announced its own internal guidelines for green bonds earlier this year. Eligible projects also may include renewables, sustainable waste and water management, sustainable land use and clean buildings and transportation. The issue will prioritize activities in the Middle East and Africa as well as Europe, particularly France. The bank also has announced plans to invest $1B in a green bond portfolio and already has allocated $350M purchasing climate bonds from development banks.
Earlier this year, the World Bank sold $91 million in green bonds tied to an index of “ethical” companies—its largest offering of green bonds linked to an equity index and the first offered to individual investors. See Corporate Environmental Lawyer blog post dated January 16, 2015, "World Bank Sells Record $91M of Green Bonds Tied to 'Ethical' Companies."
CERES is urging world governments meeting now at the COP21 this week in Paris to produce a strong climate agreement. CERES believes that recent actions confirm that the business and financial communities support clean energy and a low-carbon transition. The actions cited by CERES include:
This week, Law360 published Lynn Grayson’s article titled "MBTA Unintended Consequences Of An Old Law." This article discusses the Migratory Bird Treaty Act (MBTA) and addresses whether the 1918 law is really effective today in safeguarding migratory birds from modern day threats. Ms. Grayson comments that “…the MBTA has changed very little but the world we live in has changed a great deal and the most significant threats to migratory birds today are vastly different than in the past.”
The article examines how modern day business and real life circumstances often expose companies and individuals to non-compliance and even potential criminal prosecution for incidental takings in the context of the MBTA. While U.S. Fish & Wildlife Service (FWS) traditionally manages incidental take matters through reliance upon voluntary guidelines, restricted permitting options and agency enforcement discretion, she questions whether that approach continues to work today.
Ms. Grayson concludes that “…Without legislative or possibly regulatory change, MBTA compliance for industry remains complicated, uncertain and costly. All industry sectors are entitled to a fair and just statute that delineates in a straightforward manner what is required to comply with the MBTA, as well as a clear understanding of the enforcement consequences of noncompliance. The new FWS proposal (discussed in the article) may be a step in the right direction. An even better development would be an MBTA amendment consistent with the recent Fight Circuit Citgo ruling that imposes strict liability only in cases of intentional and direct takes of migratory birds.”