2018 Robert R. Merhige, Jr.

National Environmental Negotiation Competition

University of Richmond School of Law

General Facts

Isle Blue, Blueland, and Littoria

Blueland and Littoria are two countries that occupy a large main island called Isle Blue
that is approximately the size of India. Isle Blue is 1.5 million square miles in area and consists
of the main island and an small archipelago of uninhabited islands off the northern coast. Isle
Blue sits in the South Pacific Ocean nearly equidistant between New Zealand and Chile.
Blueland, at approximately 1.1 million square miles, sits to the west of Littoria, which is
approximately 400,000 square miles.
The western two thirds of Isle Blue, which is much of today’s Blueland, has an oceanic
and subtropical climate with river systems throughout. The eastern third of Isle Blue, which is
much of today’s Littoria, has a semi-arid climate. There is a small mountain range that divides
the island into the two main climate groups.
The Blue River watershed is the largest freshwater system on the island. It crosses
Blueland from the northwest to the southeast, enters central Littoria, and discharges to one of
the few large freshwater bodies in Littoria, Lake Anas.

The Bluers & The Littors

Isle Blue is home to two principal ethnic groups, the Bluers who have resided in most of
what today is Blueland and the archipelago, and the Littors who have resided in most of what
today is Littoria. For centuries there were on and off skirmishes between the Bluers and the
Littors. Especially violent interactions commenced in the first half of the 1800s and often
concerned the acquisition of more territory and control over important natural resources.
Blueland was especially interested in controlling Littoria’s coal reserves, as coal was becoming
an increasingly important part of Blueland’s burgeoning industrialization program. Meanwhile,
Lottoria was interested in acquiring some of Blueland’s arable land, as it never had sufficient
arable land itself.
After decades of feuding, in 1875 Blueland successfully occupied large parts of Littoria.
For the next century, Blueland treated Littoria as its colony. Numerous Bluers chose to live in
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Littoria to enjoy its natural beauty and to make money off its coal reserves. Numerous Littors
moved to Blueland to earn money given the weak Littor economy. Many moved to Blueland’s
capital, Seneca, to work in the factories, while others moved to the rural areas to work on the
farms.
To avoid civil strife, Blueland allowed Littoria to keep the Littor language and customs
and to exercise a certain amount of autonomy in areas like K-12 education and family law. In an
effort to strengthen the bonds between Bluers and Littors, the Blueland government worked
with Littor leaders to develop a large national park that straddled both countries. At 4,000
square miles, Viridi Park is the largest protected natural area in the region. The Blue River runs
through it and discharges to Lake Anas, the true jewel of the park.
Given the lack of arable land in Littoria, most food production traditionally occurred in
Blueland. Littoria and Littorian companies purchased most of their raw commodities from
Blueland, which included wheat, rice, corn, and various fruits & vegetables. Blueland made sure
that crops and foodstuffs made their way to the Littor population.
Nevertheless, significant numbers of Littors resisted occupation. In the late 19th century,
that resistance was mainly peaceful and took the form of civilian marches and large political
rallies. Blueland, worried that sufficient political mobilization would lead to calls for
independence, put down many of the rallies violently using its colonial police and sometimes its
military.
In the 1920s, a sizable group of Littor men and women, mostly from Littor’s former
capital city Hashka, formed an organized band of armed resistance. They called themselves the
Thunderclap. They imported weapons from abroad and, in 1924, began a campaign of killing
colonial police officers who had a reputation of abusing their authority. That sparked a period of
sustained violence between the two sides, punctuated every so often by extraordinary incidents
that left high numbers of dead. In all, over 20,000 thousand people were wounded and nearly
800 people died.
Both sides suffered in various ways during the war. Blueland made it illegal to export
certain foodstuffs to Littoria. As a result, Littors had to smuggle food from Blueland and abroad
since it lacked sufficient farmland to feed itself. Blueland revised its criminal code to harshen
the punishment for smuggling and jailed many Littors.
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Bluer companies located in Littoria were targeted. Thunderclap’s leadership focused

mostly on Bluer companies that ran the coal mines in Littoria. They caused millions of dollars in
property damage to company equipment. In retaliation, Blueland not only continued to mine
Littoria’s coal, but took much of its timber, including that from hundreds of acres of trees on
Littoria’s side of Viridi Park.
The war took a turning point in 1973. As Blueland continued expanding its intelligence
operations and its weapons interdictions, Thunderclap became more and more resource
deprived and desperate. In February of 1973, Thunderclap’s best fighters, most of whom had
trained abroad, ambushed a Bluer outpost, killed five soldiers, and stole a cache of explosives.
The plan was to explode them in an empty government building in Seneca. Instead, the
explosion occurred while the building contained a group of schoolchildren on a field trip.
Thirteen schoolchildren and two teachers died; twenty others were severely injured. Blueland
responded by blocking food imports and bombing what little productive farmland Littoria had
left.
The Treaty of 76
In late 1973, after the bombing incident and the retaliatory response, several countries
intervened to convince both sides to stop the violence. The countries promised to deliver
humanitarian aid and debt relief in exchange for both sides agreeing to a truce. The Littor
leadership and the Blueland government agreed to the intervening countries’ arrangement and
entered into a truce that would last three years.
During the truce, the Littor leadership and the Blueland government, aided by third-party
neutral foreign mediators, agreed to a process that would lead to Littoria becoming an
independent state. They also signed a peace agreement that, after Littoria’s independence,
became a treaty between the two countries called the Treaty of 76. The Treaty of 76 addressed
several areas:
● Littoria would disarm Thunderclap and any other resistance militias.
● Blueland would remove its military from Littoria and with the exception of
pre-existing bases, would only locate its military within 20 miles of the border if it
needed to adopt a self-defense posture.
● Blueland and Littoria would keep military spending to below 3% GDP.
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● For infrastructure that crossed the border, such as electric transmission lines, rail
tracks, and pipelines, the countries would work with an independent commission
to decide which cross-border services would be retained and how they would be
managed.
● Blueland and Littoria would preserve Viridi Park, with Blueland managing its
portion and Littoria managing its portion.
● Littoria would allow Bluer coal companies to continue to own mineral rights in
Littorian coal and to mine for it, but in exchange Blueland would pay $50 million
to Littoria to compensate them for coal taken during occupation.
● Blueland agreed to lift its food import blockade and to repeal its laws prohibiting
the export of certain foodstuffs to Littoria. Littoria agreed to not object to
Blueland’s deportation of Littor farm workers who entered Blueland during the
war to work on farms without appropriate work authorization.
Both countries have the exact same principles of treaty interpretation of the United States, and
they have applied those principles over time to the treaty.
The treaty successfully ended hostilities. Each side took advantage of the peace
opportunity and devoted itself to rebuilding. However, given the history of animosity and
distrust, the treaty mostly relied on unilateral implementation. Neither country wanted to give
the other an opportunity to formally enforce the treaty against the other. Therefore, while the
treaty contained good substantive principles, compliance heavily depended on the political will
of both sides.
After the Treaty of 76, Blueland’s population grew at a slightly higher rate than most
other countries, so in response it expanded its farmland significantly from 40% of its total area
to 55%. As it contained the most fertile land, most new farms were located inside the Blue River
watershed. Bluer farmers traditionally favored cattle over other livestock, and its main crops
were potatoes, sugar beets, rye, barley, and beans.
Littoria suffered major damage to buildings and infrastructure during the war. It invested
many of its resources in construction. It also worked to address the harm done to Viridi Park by
planting thousands of trees to replace those that Blueland had harvested.
Littoria developed as much farmland as it could, but given the paucity of arable land and
the high cost of importing food from other countries, it instead decided to rely on Blueland for
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most of its food imports. As a result, the countries entered into a series of trade and purchase
agreements related to raw and processed foods sold to Littoria by farmers in Blueland.
By and large, aside from a few isolated skirmishes, the countries managed to stay at
peace. However, starting about five years ago, a few serious disputes began to arise.

Shale gas drilling in Littoria and impacts to Blueland’s farms

The first dispute related to Littoria’s discovery of deep shale oil & gas in the north of the
country. The northern third of Littoria is where most of Blueland’s coal mines were located.
Through underground mining techniques, Bluer companies removed many of the coal reserves
located two to three thousand feet below the surface. They exported much of the coal by boat
to nearby countries, and transported the rest by rail for use in electricity production at its
coal-fired power plants located in the west and south.
Starting in late 2012, after a team of Littor geologists returned from a shale drilling
conference in Pittsburgh, Pennsylvania, Littoria allocated research funding to the University of
Hashka’s energy school to explore the possibility of shale oil & gas development in the north of
the country. The research team published a paper concluding that, based on the data that
existed, there likely was commercially viable shale oil worth hundreds of millions of dollars
located in the northern third of the country beneath the coal layers. The oil was located in a
geologic formation called the Petram Shale, located 7,000-10,000 feet below the surface
depending on location. The university partnered with Littoria’s recently created state-owned oil
company, Littoria Oil or Loil, and asked Loil to drill an exploratory well to test the team’s theory.
Loil drilled the well in 2012 and encountered a significant volume of oil at 8,000 feet below the
surface.
From 2014-2016, Littoria committed itself in various ways to developing its shale oil.
First, Loil began to acquire significant amounts of financing in order to conduct the drilling,
which costs approximately $5 million per well. Second, Littoria, which claimed that as a
sovereign nation it owned the shale oil, began to auction the mineral rights in the oil to Loil and
to private companies. Third, Littoria’s parliament and natural resource agencies developed the
legal scheme that would regulate all aspects of drilling, especially the management of
environmental risk.
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Finally, Littoria began to invest in an oil export terminal on its northern border. Given
Littoria’s size, and even assuming that Blueland would purchase some of the oil, Littoria would
be producing far more than it could consume or sell locally. Therefore, Littoria decided it would
export most of its oil through ocean-going tankers to major oil consumers in the hemisphere.
Littoria developed a single arterial pipeline, called the Victoria Line, that would get the oil to the
export terminal, and into which dozens of smaller pipelines would feed the oil from individual
wellfields.
Blueland was furious about how Littoria was addressing its shale oil discovery. First,
Blueland claimed that the coal companies run by Bluers, which used to be Blueland corporations
and then by necessity became Littorian companies after independence, owned the rights not
only to the coal, but to all the minerals, including the coal and any as yet undeveloped oil & gas.
Second, even if ownership of the oil was Littoria’s, Blueland accused Littoria of illegitimately
favoring Littor-owned private companies over Bluer-owned private companies in the oil
auctions.
Finally, Blueland was concerned about its farmland. Many of Blueland’s best farms were
located in the north, across the border from Littoria’s oil wells and pipeline. Numerous farms
carried organic certifications. In the summer and fall of 2015, nearly two dozen farms
complained of issues with crops and livestock. A few farms could afford to conduct their own
investigations into the issues. For the others, Blueland’s Agency for Environment conducted the
investigations at no cost to the farms. The conclusion of half the investigations was that, based
on timing, chemicals found in the groundwater and air, and the harm to the livestock and crops,
there was likely a link between the drilling or pipeline activities in Littoria.
In November 2015, Blueland became entirely convinced that Loil’s oil operations were
the cause of the recent northeastern farm issues. Earlier that year, Loil developed the Ladi Field,
a field with six high volume oil wells. Once they began to produce oil in the late summer, Loil
completed work on the gathering lines that would feed the oil into the Victoria Line. Within a
week of the connection work, a Blueland organically-certified livestock farm called Sunny Fields
reported an incident to Blueland’s Agency for Agriculture (BAA). The owner claimed that 19
cows had died and that 46 others were suffering from unknown health maladies that led to
them being removed from the farm. Those cows had all been drinking from a
groundwater-supplied trough before and after the drilling activity. He said the water had an oily
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sheen on top and a strong chemical flavor. He also said that he could smell a strong chemical
odor whenever the winds were above average.
This time, Blueland’s agencies combined resources and did a thorough study. First, as a
result of Blueland’s assistance to farmers in response to the initial complaints, Sunny Fields had
conducted an analysis of their groundwater before any drilling in the Ladi Field. Other than
higher than average levels of fecal coliform and other bacteria, the level of all other chemicals
was either low or undetectable. After learning about the Ladi Field, Sunny Fields had the water
analyzed once a week. The samples analyzed after drilling showed elevated levels of chloride
and certain organic chemicals indicative of petrochemistry (mostly benzene, toluene,
ethylbenzene, and xylene, or BTEX). Second, the Agency for Geography used monitoring wells
and other items to put together an expensive 3-D model of the aquifer to understand where and
how it flowed. Between the water analyses and the aquifer model, three distinct Blueland
agencies concluded that the pollution affecting Sunny Fields could not have come from a
source other than the Ladi wells or the pipelines. Blueland’s agencies also did an air quality
analysis and found elevated levels of particulate matter and some organic chemicals.
Littoria initially denied that Loil or any private Littorian oil company had caused any
damage, let alone the damage to Sunny Fields. After Blueland shared its scientific evaluation
with Littoria’s environmental protection agency, Littoria made the following statement:
“Littoria’s oil operations are conducted with the best possible materials and according to the
safest protocols. Even if Blueland’s conclusion is correct that Loil’s operations in the Ladi Field
caused oil to migrate to Blueland, it would have been at most the result of an unintentional error
for which no state should be punished.” Following the release of the statement, there were
massive street protests and numerous letters sent to Littorian government officials, which
Littoria blamed on reactionary Bluer protesters.
The main organic certification agency in Blueland, the Blueland Organic Certifiers
Association or BOCA, de-certified Sunny Fields and other farms that reported pollution. BOCA
also passed a resolution committing the Association to developing new certification criteria to
apply to certified and certification-seeking farms located near oil infrastructure. The resolution
recommended inclusion of a criterion that farms be further than 10 miles from any shale oil
activity, which would impact dozens of the farms in the northeastern corner of Blueland who
were all within that distance of the wells and pipelines.
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Farms in Blueland and impacts to Lake Anas

The second dispute related to Blueland’s farms and the pollution of Viridi Park’s Lake
Anas, which is entirely on the Littoria side. Lake Anas is one of the few significant freshwater
bodies in Littoria. Even before it was incorporated into Viridi Park, it was always a special place
for Littors. It supplied residents in and around Hashka with their drinking water. It was also a
site for mass congregation and celebration. Once incorporated into the park, Lake Anas also
began generating millions in revenues for the Littorian government from the sale of park passes
and related revenues such as increased property taxes from the now-higher valued nearby land
and concession fees for the many retail establishments that wanted to do business inside the
park. Hashka owned and operated the water supply plant located near the lake. Historically,
Hashka only needed to treat the water for basic, expected contaminants such as bacteria, and
so it was able to distribute high quality drinking water to its residents at a cost that was
manageable by most.
After the war, and in part to address its above average population growth, Blueland
began to incent the expansion of farmland in the Blue River watershed mostly through the use
of tax breaks. According to many Bluer agronomists from the Agency for Agriculture and
universities, farmland in that watershed was the most productive given the quality and
abundance of the freshwater as well as the area’s soil quality. For the tax breaks to apply, the
farms had to be large. As a result, there were differences in the farm composition in the
northeast and the Blue River watershed. Most of the farms in the northeast were small,
family-owned, and tended to produce food for higher end markets that valued organic status
and ethical animal treatment. The Blue River watershed farms were larger corporate operations
and catered to markets that wanted high volumes at low costs.
To meet customer need, the Blue River farms focused on being low cost and high yield.
Animal density was higher on those farms. Manure management was minimal. For crops that
responded well to fertilizer, the farms applied a large amount of it.
Over time, Littors began to notice a nasty green film on Lake Anas. University of Hashka
water quality specialists investigated. They concluded that the green film consisted of
cyanobacteria. Cyanobacteria, sometimes referred to as blue-green algae, thrive in nutrient-rich
lake environments. They are capable of doing various kinds of harm, including: restricting body
contact water activities, sullying boats, interfering with aquatic life, emitting a bad odor, and
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releasing toxins that if consumed are harmful to human health. University of Hashka
researchers published various papers on the topic and concluded that while more analysis was
necessary, the likely cause was the growth of farms in the watershed, which contributed
nutrients like nitrogen and phosphorous to the Blue River that ultimately reached Lake Anas.
Once in Lake Anas, the nutrients provided a perfect environment for the bacteria to grow.
Littoria’s main concern is the health of those using Hashka’s public water supply. In
2014, the city of Toledo, Ohio went through a terrible drinking water crisis related to
cyanobacteria. The bacteria released toxins called microcystins into the Lake Erie, which was
Toledo’s main source of drinking water. The microcystins made their way undetected into the
drinking water plant. Unaware that that was happening, the plant did not treat the microcystins
in the water and residents began to register serious health complaints. As a result, Toledo had
to order a tap water ban and the water system had to invest significantly in source water
evaluation and drinking water treatment, which increased consumer water rates. Littoria feared
that Hashka would go through a similar fate, or else would have to invest money it did not have
to proactively address the problem, and then pass those costs onto consumers that by and
large would have difficulty paying more for water.

Negotiations
From 2012 until early 2017, Blueland and Littoria exchanged their views on these
disputes through a variety of means. Each country’s diplomats relayed messages of disapproval
to their counterparts in the other country. At an international conference, in response to a
question about the pollution of Lake Anas, a prominent former Blueland government minister
accused the Littors of rank hypocrisy for complaining about the alleged nutrient pollution of the
lake while buying more and more food from Blueland that obviously needed to be grown on
Blueland’s farms. Editorial writers and TV pundits in each country blamed the other country for
misbehaving. Blueland’s intelligence officers informed the government that certain Littor
activists were considering a revival of Thunderclap.
Fearing a return to hostilities as a result of these disputes, both countries agreed that
the most appropriate way to address these issues was to build upon their treaty and enter into a
new binational agreement that could resolve these disputes. Each country put together a legal
team to negotiate the agreement.
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Both countries agreed that while they would need to resolve these disputes now through
ad hoc negotiations, a more permanent environmental dispute resolution mechanism was
necessary. The Treaty of 76 lacked such a mechanism, and neither country belonged to any
multinational treaty that would address these kinds of issues. In an effort to be proactive, both
countries decided that these negotiations should also address the need for an environmental
dispute resolution to apply to future potential disputes.

● Round 1: The impact on Blueland farms of Littoria’s Petram Shale drilling

● Round 2: The harm to the Sunny Fields farm
● Round 3: The impact on Lake Anas of Blueland farms
● Round 4: Environmental dispute resolution mechanism