June 2, 2006
Environmental Law Hit Parade
Link: SSRN Top Downloads.
RANK HITS TITLE
1 207 The Green Costs of Kelo: Economic Development Takings and Environmental Protection
Ilya Somin, Jonathan H. Adler
2 172 The Tragedy of the Commons and the Myth of a Private Property Solution
3 69 The Case Against Smoking Bans
Thomas Andrew Lambert
4 64 Much Ado About Nothing: Kelo v. City of New London, Sweet Home v. Babbitt, and other Tales from the Supreme Court
Marcilynn A. Burke
5 60 The City as an Ecological Space: Social Capital and Urban Land Use
6 55 Cultural Evaluations of Risk: 'Values' or 'Blunders'?
Dan M. Kahan, Paul Slovic
7 45 Advancing the Rebirth of Environmental Common Law Jason J. Czarnezki, Mark Thomsen
8 42 The United States' Experience with Energy-Based Tax Incentives: The Evidence Supporting Tax Incentives for Renewable Energy
Mona L. Hymel
9 35 Inside the Administrative State: A Critical Look at the Practice of Presidential Control
Lisa Schultz Bressman, Michael P. Vandenbergh,
10 31 Electricity Market Liberalization in Europe - Who's Got the Power?
Lise Wietze, Vincent Linderhof
Hot and Hotter
So much for last month's optimism based on reanalysis.
If Earth's past climate cycles are any indication, temperatures could be significantly hotter by the end of the century than current climate models predict. New research suggests that current atmospheric models underestimate future global warming. Scientists say the estimates don't account for soil decomposition and other natural processes that are expected to escalate in response to ongoing warming, thus amplifying greenhouse gas production.
Currently, the Intergovernmental Panel on Climate Change estimates that the global average temperature could increase as much as 5.8 degrees Celsius by the end of the 21st century. But these estimates don't factor in some feedback mechanisms that may be triggered by rising temperatures. For instance, accelerated decomposition in soils and changes in ocean chemistry may add considerably to greenhouse gases and further intensify warming. Two studies published 26 May in Geophysical Research Letters attempt to translate these potential impacts into hard numbers.
In the first study, biogeochemists Margaret Torn of Lawrence Berkeley National Laboratory in California and John Harte of the University of California, Berkeley, used Antarctic ice cores to estimate the amount of greenhouse gases released into the atmosphere over the past 420,000 years, allowing them to predict the impact of future climate-CO2 feedbacks. Combining these estimates with standard assumptions from climate models, they calculated the amplification in global temperatures attributable to greenhouse gas feedback. They found that a doubling of current CO2 levels would boost temperatures by 1.6 to 6 degrees Celsius, and by 2100 the gain could be as much as 7.7 degrees C.
Torn notes that many feedback mechanisms remain poorly understood, and uncertainties abound in trying to predict their effects on climate. But she believes the findings indicate "that we will experience more severe, not less severe, climate change than is currently forecast."
In the second study, climatologist Marten Scheffer of Wageningen University in the Netherlands and colleagues also examined data from polar ice cores and reconstructed temperatures during the ice age that lasted from about 1550 to 1850. Using somewhat different methods from Torn and Harte, they found that warming due to human activities could heighten temperatures by 1.7 to 8.0 degrees Celsius over the coming century.
Caspar Ammann, a climate modeler with the University Corporation for Atmospheric Research in Boulder, Colorado, however, notes that climate models don’t predict greenhouse gases per se, but rather they predict the outcome of different climate scenarios: How high will temperatures rise if CO2 doubles, for instance. These scenarios do incorporate different types of feedbacks, including advances in technology and public policy, he says. As climate feedbacks from warming soils and oceans--both huge carbon reservoirs--become better understood, the models will become more precise, says Ammann.
ABA SEER Teleconference on S.D. Warren and The Scope of CWA § 401
| Link:ABA SEER site |
On Wednesday, June 7, 2006, the American Bar
12:30 p.m. – 1:30 p.m. Eastern Time / 11:30 a.m. – 12:30 p.m. Central Time
NRC Refusal to Consider Environmental Impact of Terrorist Attack Violates NEPA
Today, in San Louis Obispo Mothers for Peace v. NRC, the 9th Circuit concluded that the NRC erred in refusing to consider the environmental consequences of a terrorist attack upon nuclear waste storage facility seeking a license. Terrorist Attack and NEPA - 9th Circuit Opinion
While the 9th Circuit rejected several procedural arguments, it reviewed the reasonableness of NRC's decision to exclude impacts from a possible terrorist attack in an EIS. The court dismissed the government's argument that the possibility of a terrorist attack was too remote, speculative, and removed from the actual effects of the agency action -- largely based on NRCs statements about security planning. It rejected the argument that the risk of terrorist attack could not be quantified -- outlining the qualitative discussion that NRC could include in an EIS. It scoffed at the government's argument that conducting such an analysis amounted to a worst case analysis --noting that the CEQ regulations identify the appropriate form of analysis for low probability, high impact events. And it assured the NRC that it could deal appropriately with the sensitive security issues that might be raised by such an analysis.
HT Ross Runkel for spotting the case.
Global Warming Stock Tip: Buy Johnson & Johnson
A paper published recently in PNAS describes the proliferation of poison ivy and its mates that global warming brings. Poison
When Will They Ever Learn: The Stormy Aftermath Affects Hurricane Insurance
Planet Ark reports that this season's hurricanes may cause US$100 billion of property losses, and wipe out 20 to 40 insurers. Planet Ark Hurricane Insurance link The human cost of these hurricanes is greater than the thousands of lives lost each year. US$100 billion is five times more than the amount that it would take to assure that every person on the planet had safe, clean drinking water, adequate sanitation, and hygiene education.
The money comes from our pockets whether in the form of increased insurance premiums or government aid. IMHO, global warming and the intensifying hurricanes that it may be unleashing a tremendous economic drain and on many levels a moral disaster.
June 1, 2006
Artic Ocean Sediment Core Reveals Previous Melt
Science reports that:
... an international team has given geologists their best glimpse yet of the Arctic's climate history. Using ice-breaker ships and a floating drill rig during a 2004 expedition, the researchers extracted sediments down to 400 meters beneath the Arctic seafloor, deep enough to track the Arctic climate back 56 million years. Three papers detailing the analysis of the cores appear this week in Nature.
The biggest shock: There wasn't any ice in the Arctic about 55 million years ago. At that time, the planet heated up dramatically--possibly because of changes in the atmosphere caused by volcanic eruptions or deep sea methane release--and researchers have assumed that the melting Arctic ice contributed to the warming. But by analyzing oil molecules in fossilized plankton, a team led by Appy Sluijs, a paleoceanographer at Utrecht University in the Netherlands, calculates that the Arctic ocean was already an ice-free, 18 degrees Celsius before the warming started and then warmed up to 23 degrees Celsius. That will send climate modelers back to the drawing board, says Sluijs, because some other mechanism is now needed to explain the additional temperature increase. Ferocious hurricanes may have contributed by pushing hot water around the globe, the authors suggest.
The findings pose "quite a challenge" to climate science, says Gabe Bowen, an earth scientist at Purdue University in West Lafayette, Indiana. "Amplification of hurricane intensity as a mechanism for warming the poles is a really interesting and provocative hypothesis," he says, "and what remains now is for scientists to scour the geological record for evidence of super-hurricanes during these ancient warm climate intervals."
Alaska and US Exercise Exxon Valdez Reopener Provision
The United States and the State of Alaska today submitted to ExxonMobil Corporation a detailed plan for a proposed restoration project to restore habitat in the area affected by the 1989 Exxon Valdez oil spill. The restoration plan was submitted in accord with the "Reopener for Unknown Injury" in the consent decree which settled the governments' civil claims against Exxon Corporation (now ExxonMobil), the Exxon Shipping Company and the Exxon Pipeline Company arising from the spill. Today's submission of a plan to ExxonMobil is the first step in exercising the Reopener provision of the consent decree. The Reopener allows ExxonMobil 90 days after submission of the proposed restoration plan before it is required to pay or respond -- this provision allows negotiations to settle a Reopener claim without litigation.
The proposed restoration project focuses on removing much of the oil that remains in the environment in a form that is potentially harmful to natural resources and disruptive of human activities. The proposed project has two major objectives: (1) to determine the locations, approximate amounts, and chemical states of all significant residual deposits of oil from the spill in the spill area; (2) to accelerate the natural processes of degradation and dispersal of the lingering oil, or otherwise restore the oiled sites, to the greatest extent scientifically appropriate taking into account such factors as the size and distribution of lingering oil patches, conditions at the oiled sites, affected natural resources or human uses, and the relative benefits and costs (including potential adverse effects) of active remediation.The ultimate cost of the project depends upon such factors as how many oiled sites require remediation and the remediation approach selected. It is currently estimated to cost approximately $92 million.
At the time of the settlement, Exxon agreed to pay the governments $900 million in installments for costs and for natural resource damages known or reasonably anticipated at the time of the settlement. The settlement also included a unique provision allowing the federal and state
trustees to seek up to $100 million in additional monies for damages where a substantial loss or decline in one or more populations, habitats, or species in the area of the spill, (1) resulted from the spill; (2) the loss or decline was unknown and could not reasonably have
been anticipated by the governments; (3) one or more projects that would help restore the injured
population, habitat or species; and (4) the project costs are not grossly disproportionate to benefits.
From Exxon Valdez Reopener Factsheet
The Exxon Valdez oil tanker ran aground on Bligh Reef in Prince William Sound, Alaska in the early morning hours of March 24, 1989. An estimated eleven million gallons of crude oil were spilled and ultimately oiled approximately 1,750 kilometers of shoreline within the Gulf of Alaska. The oil had devastating effects on marine wildlife and other natural resources in the spill area and disrupted the lives of residents of the spill area for many years.
The harm caused by the spill was extensive. According to government scientist estimates, approximately 250,000 marine birds died from direct exposure to the oil, along with approximately 2,800 sea otters and numerous harbor seals. Shellfish such as clams and mussels and the other animals and plants that make up intertidal communities suffered heavily both from the spill and from some of the cleanup measures. Two pods of killer whales had extraordinarily high losses in the two years after the Spill, with oil exposure a strongly suspect factor. Studies regarding the effects of the spill on many of these species have been and continue to be conducted under the original agreement.
On Oct. 8, 1991, the U.S. District Court in Anchorage accepted guilty pleas by Exxon Corporation and Exxon Shipping Company to federal environmental crimes and also approved a civil settlement resolving claims for past cleanup costs and natural resources damages with the federal
government and Alaska. The criminal plea agreement called for a $150 million fine, of which $125 million was remitted, and the payment of $100 million in restitution, divided equally between the United States and the State. The civil settlement required Exxon to pay $900 million to both
governments over ten years. That money has been and continues to be used for both short-term and long-term restoration projects in Prince William Sound and the Gulf of Alaska, as well as extensive research on the resources. The purpose of those monies is to rehabilitate and restore the
resources known at the time of the settlements to have been injured.
The Trustee Council (formed by the Departments of the Interior, Agriculture, the National Oceanic and Atmospheric Administration and the state of Alaska) adopted a formal Restoration Plan for the civil settlement proceeds in 1994, after an extensive public process. As of 2004, the Trustee Council has remaining $145 million after expenditures for a wide variety of restoration activities, research and monitoring of injured resources, and acquisition and protection of habitat, and damage assessment activities. Fact Sheet
In accordance with the "Reopener" provision of the 1991
civil settlement with the Exxon Corporation, the U.S. Department of Justice
and the Alaska Department of Law today presented the company with a
proposed plan to restore shorelines in Prince William Sound and the Gulf of
Alaska that still contain oil from the 1989 Exxon Valdez oil spill. The
State of Alaska and three federal agencies whose trust resources were
injured by the spill-the U.S. Departments of Agriculture, Commerce, and the
Interior-have estimated the project to cost approximately $92 million over
the course of several years. The additional funding is being sought under
the "Reopener for Unknown Injury" provision of the 1991 civil settlement
which required Exxon to pay $900 million in damages at the time.
The need for this project arises from a series of studies undertaken since
2001 that document the presence of residual oil from the 1989 spill within
the intertidal zone of beaches in the oil spill area. At the time of the
settlement, it was not anticipated that this oil would remain toxic and
continue to impact natural resources in the oil spill area. The proposed
project includes identifying all locations with significant amounts of
lingering oil and using advanced bioremediation techniques and other
technologies to remove the larger patches. The governments are inviting
ExxonMobil to work with them cooperatively to develop and implement this
comprehensive project to remove the oil.
"By sending our plan in accordance with the Reopener provision, we are
aggressively seeking to restore natural resource damages unforeseen at the
time of the 1991 settlement," said Sue Ellen Wooldridge, Assistant Attorney
General for the Justice Department's Environment and Natural Resources
Division. "Our goal throughout this process has been to pursue all
scientifically and legally appropriate means of restoration. Our proposed
plan is grounded in the best and most current science available, while
steadfastly adhering to the requirements of the consent decree."
Alaska Attorney General David Marquez said, "The State of Alaska has been
engaged in a thorough analysis of potential claims under the Reopener
provision for the last seven years. In exercising the Reopener we have
been bound by the terms of the consent decree and the
application of sound science. After extensive review it is clear that
populations and habitat within the oil spill area have suffered substantial
and unanticipated injuries that are attributable to the Exxon Valdez oil
spill." Attorney General Marquez added, "A couple of months ago we held a
series of public meetings in oil spill area communities to talk to the
public about the Reopener and ask for their ideas on unanticipated injuries
and how to address them. We received many thoughtful responses. To the
extent those ideas do not appear in the restoration plan presented to
ExxonMobil today, it is my intention to be guided by this information in
making decisions in my capacity as a trustee on the Exxon Valdez Oil Spill
"The historic 1991 settlement provided much-needed funding to Alaska and to
the federal government for restoration, and we have made significant
progress in that effort," said Lynn Scarlett, Deputy Secretary of the
Department of the Interior. "But we have also discovered additional
injuries caused by the spill that were not apparent at the time the case
was first settled, and these problems must be addressed. The Department of
the Interior strongly supports today's efforts so that we can restore
injured resources in Prince William Sound and the Gulf of Alaska."
"Natural resources of Prince William Sound, located within the Chugach
National Forest, sustained heavy impacts from the Exxon Valdez spill. An
ongoing commitment to restore these injured lands and resources will
greatly benefit the ecosystem and marine life they support,"
said Mark Rey, Undersecretary of the Department of Agriculture. "Both
Alaska residents and nonresidents use this area extensively for
subsistence, recreation, sport hunting and fishing activities. Removal of
lingering subsurface oil, which remains bioavailable and toxic seventeen
years after the spill, is a necessary step in the effort to restore this
"NOAA is particularly concerned with the quantity and toxicity of the
residual oil, its impact upon intertidal communities, and its significance
for future spill response actions in sub-arctic environments," said Jim
Walpole, NOAA General Counsel.
The proposed project focuses on determining the locations, approximate
amounts, and chemical states of all significant residual deposits of oil
from the spill in the spill area, and upon seeking to accelerate the
natural processes of degradation and dispersal of the lingering oil.
The governments are asserting that there is a substantial loss of habitat
from relatively fresh oil that has persisted in the subsurface of certain
intertidal areas since the spill. This loss manifests itself in two
principal ways: (1) Predators that feed in the intertidal, primarily
harlequin ducks and sea otters, show reduced survival rates in oiled versus
unoiled areas or appear to be avoiding certain locations with relatively
extensive lingering oil; (2) Subsistence users reasonably avoid harvesting
in oiled areas (and in areas they believe may be oiled) because of concerns
over contamination of shellfish or gear. The governments assert that the
current science supports the position that the continuing bioavailability
and toxicity of the lingering oil could not reasonably have been
In further developing and implementing the restoration plan, the
governments will continue to be committed to providing public review and
allowing participation to ensure that the public is fully informed and that
its concerns are taken into account.
Hurricane Season Looms Large
William Gray and Colorado State University predicted yesterday that the Atlantic season will see nine hurricanes and an 82% probability that the US coast would be hit by a major hurricane. This is far above the average 50-50% chance of a major hurricane making landfall in the US. Planet Ark story
As usual, Gray totally discounted the impact of anthropogenic global warming. However, John Schwartz of the NY Times reported today that climate researchers at Purdue and MIT separately reported new evidence supporting the idea that global warming is causing stronger hurricanes. Schwartz report The Purdue paper by Huber and Sriver, appearing in a forthcoming issues of Geophysical Research Letters, calculates total damage caused by storms worldwide, using data normally applied to reconciling weather forecast models with observed weather events. The Huber and Sriver results were consistent with earlier work by Kerry Emanuel of MIT. Emanuel has argued that global warming, specifically the warming of the tropical oceans, is increasing the power expended by hurricanes.
Another new study by Emanuel and Mann published in EOS compared global sea surface temperatures data with tropical Atlantic data and attributed recent strengthening of hurricanes to the rise in ocean surface temperature. Using increasingly sophisticated climate models that account for the impact of aerosols, Emanuel and Mann question the theory that hurricane activity fluctuates over a natural decadenal climate cycle. Their analysis estimated human influences on climate compared to possible natural cyclical influences, finding "anthropogenic factors are likely responsible for long-term trends in tropical Atlantic warmth and tropical cyclones." They question the theory of the Atlantic multi-decadal signal, a natural climate cycle, as an explanation of the surges and declines over decades of hurricane activity. Instead, more sophisticated climate models and more precise global temperature data suggest that there is a linear increase in hurricanes related to the increase in Atlantic sea surface temperatures, rather than a natural cycle.
Meanwhile, Jeb Bush met with Peter Webster and Judith Curry of the Georgia Institute of Technology, who published research last year showing an increase in global hurricane intensity, with a doubling of the number of Category 4 or 5 hurricanes since 1970. That increase coincides with a rise of nearly 1 degree Fahrenheit in ocean surface temperatures. Webster and Curry agree with the cyclical theory and accept that the Atlantic basin is experiencing a natural cyclical increase in hurricanes. However, Webster and Curry argue that cycle does not explain such a dramatic increase in strong storms. Increasing global surface temperatures cause warmer water, fueling more intense hurricanes. AP report
May 31, 2006
Bird Flu Blues: Time to Tune Up Our Pandemic Preparedness Plans
A news analysis by Declan Butler published today in Nature panned the WHO response to the recently reported Indonesian cases of human to human transfer of bird flu. It appears that the response took considerably more time than the target of three weeks that WHO must meet for rapid intervention to prevent a pandemic. The first person fell ill on 24 April and the full WHO team did not even arrive until more than three weeks later. I guess its time to review those pandemic response plans and stock up on Tamiflu.
A cluster of avian flu cases in Indonesia last month is being seen by many experts as a dry run for the handling of an emerging pandemic virus. But although the World Health Organization (WHO) says that all went well, some critics allege that the response to the virus — thought to have been moving between humans — shows how ill-prepared the international community and affected nations still are.
"Any chance of containment was absolutely hopeless," says Andrew Jeremijenko, who until March was head of influenza surveillance at the US Naval Medical Research Unit 2 in Jakarta. "If this was a test to see whether Indonesia could contain a virus, then they just failed miserably."
If this was a test to see whether Indonesia could contain a virus, they failed miserably.
The difficulties encountered also raise questions as to the practicality of a plan to try to stop an emerging pandemic in its tracks by rapid intervention. Modelling studies predict that if a pandemic virus emerges, the WHO would have at most three weeks to help the affected country to quarantine all carriers and treat those infected with antivirals (N. M. Ferguson et al. Nature 436, 614–615; 2005).
The first case in the cluster fell ill on 24 April and died on 4 May. Samples were not taken, however, and alarm bells only rang when her relatives started going to hospitals in the days that followed. In total, eight members of an extended family in the village of Kubu Sembelang in north Sumatra became infected with H5N1. Six more of them have since died.
Jeremijenko says the response was slow and disorganized. The first WHO official and a team of local officials didn't reach the village until 12 May. Other international experts did not reach the village until the following week, at least in one case because of difficulties getting an invitation from Indonesia's ministry of health, according to Jeremijenko. Villagers also refused to cooperate with the team initially. Several of the H5N1 patients fled hospitals, returning coughing to the community.
Spreading the news
The WHO made the outbreak public on 18May. Health officials — and stock markets — worldwide trembled five days later when the WHO budged from its previous standard line that "the most plausible source" of the cluster was infected poultry, and acknowledged for the first time since the emergence of H5N1 that an extended chain of human transmission was the most likely explanation.
Steven Bjorge, a WHO official in Jakarta, disputes the allegation of unnecessary delays and bungling, arguing that the WHO and the Indonesian government reacted promptly. "The team was in the field early, and the Indonesians are doing a good job," he says. The abscondments from hospital were "an unusual experience", he adds.
Concerns over the cluster itself have eased as no new cases have since been reported nearby, and the WHO says the virus's sequence shows "no evidence of significant mutations". The sequences have not been made public yet. The all-clear will not be given for another two weeks or so, however, and the pharmaceutical company Roche has been put on standby to send antiviral drugs to the region.
Teams on the ground are trying to monitor fresh cases. But thousands of Indonesians die every day from tuberculosis, dengue and other infectious diseases, and almost all go untested for H5N1. On 29 May, the WHO announced six more cases in other areas of Indonesia, two of which were also a family cluster.
"There have been a number of family clusters where only one person was tested," says Jeremijenko, adding that there is "only limited testing, in large cities such as Surabaya, Medan, Bandung and Jakarta. We know we are missing cases, especially in rural areas."
What caused the suspected human-to-human transmission at Kubu Sembelang is still a mystery. Nature has learned that the cases differed from past Indonesia cases, in that they had much higher viral loads in the throat and nose. Human-to-human transmission is more likely through droplets coughed from the nose and throat than from infections further down the respiratory tract.
Mutations in cases in Turkey earlier this year showed a substitution of glutamic acid with lycine at position 627 in the PB2 component of the polymerase gene. The mutation is thought to allow the virus to survive in the cooler nasal regions. This mutation has not been publicly reported in Indonesia previously, but Nature has learned that it occurred in at least one case in August 2005.
Another explanation is that the first case in last month's cluster had a particular genetic susceptibility to the virus, making her a 'superspreader'. But it is too soon and the data are too sparse to know for sure, says Bjorge.
Malik Peiris, a virologist at the University of Hong Kong who sequenced the virus, declined to comment on any mutations, saying that making sequences public is not his call. "Our job as a WHO reference lab is to report back to the originating country and the WHO," he says. The WHO also declined to give any details. "We will leave that to the government of Indonesia, the owner of the data," says Bjorge.
Article brought to you by: Nature
Sustainble Forest Management: A Long Way from Tipperary
|The International Tropical Timber Organization (ITTO) survey indicates only 5% of tropical forest is managed sustainably. The trend over the last two decades, however, is in the right direction. Sustainably managed forest has increased from 1 million hectares to 36 million hectares since 1988. ITTO experts are meeting in Mérida, Mexico this week to discuss how countries can make sustainable forest management a reality.|