Environmental Law Prof Blog

What is environmental law?

    Fred Cheever and Celia Campbell-Mohn have provided Encyclopaedia Brittanica's cut at that question.  Link: environmental law  See their article below.

environmental law Encyclopædia Britannica Article

environmental law

 

A river in Sichuan province, China, polluted by a paper mill.
David and Peter Turnley/Corbis

principles, policies, directives, and regulations enacted and enforced by local, national, or international entities to regulate human treatment of the nonhuman world. The vast field covers a broad range of topics in diverse legal settings, such as state bottle-return laws in the United States, regulatory standards for emissions from coal-fired power plants in Germany, initiatives in China to create a “Green Great Wall”—a shelter belt of trees—to protect Beijing from sandstorms, and international treaties for the protection of biological diversity and the ozonosphere. During the late 20th century environmental law developed from a modest adjunct of the law of public health regulations into an almost universally recognized independent field protecting both human health and nonhuman nature.

Historical development

Throughout history national governments have passed occasional laws to protect human health from environmental contamination. About AD 80 the Senate of Rome passed legislation to protect the city's supply of clean water for drinking and bathing. In the 14th century England prohibited both the burning of coal in London and the disposal of waste into waterways. In 1681 the Quaker leader of the English colony of Pennsylvania, William Penn, ordered that one acre of forest be preserved for every five acres cleared for settlement, and in the following century Benjamin Franklin led various campaigns to curtail the dumping of waste. In the 19th century, in the midst of the Industrial Revolution, the British government passed regulations to reduce the deleterious effects of coal burning and chemical manufacture on public health and the environment.

Prior to the 20th century there were few international environmental agreements. The accords that were reached focused primarily on boundary waters, navigation, and fishing rights along shared waterways and ignored pollution and other ecological issues. In the early 20th century, conventions to protect commercially valuable species were reached, including the Convention for the Protection of Birds Useful to Agriculture (1902), signed by 12 European governments; the Convention for the Preservation and Protection of Fur Seals (1911), concluded by the United States, Japan, Russia, and the United Kingdom; and the Convention for the Protection of Migratory Birds (1916), adopted by the United States and the United Kingdom (on behalf of Canada) and later extended to Mexico in 1936. In the 1930s Belgium, Egypt, Italy, Portugal, South Africa, Sudan, and the United Kingdom adopted the Convention Relative to the Preservation of Fauna and Flora in their Natural State, which committed those countries to preserve natural fauna and flora in Africa by means of national parks and reserves. Spain and France signed the convention but never ratified it, and Tanzania formally adopted it in 1962. India, which acceded to the agreement in 1939, was subject to the sections of the document prohibiting “trophies” made from any animal mentioned in the annex.

Beginning in the 1960s, environmentalism became an important political and intellectual movement in the West. In the United States the publication of biologist Rachel Carson's Silent Spring (1962), a passionate and persuasive examination of chlorinated hydrocarbon pesticides and the environmental damage caused by their use, led to a reconsideration of a much broader range of actual and potential environmental hazards. In subsequent decades the U.S. government passed an extraordinary number of environmental laws—including acts addressing solid-waste disposal, air and water pollution, and the protection of endangered species—and created an Environmental Protection Agency to monitor compliance with them. These new environmental laws dramatically increased the national government's role in an area previously left primarily to state and local regulation.

In Japan rapid reindustrialization after World War II was accompanied by the indiscriminate release of industrial chemicals into the human food chain in certain areas. In the city of Minamata, for example, large numbers of people suffered mercury poisoning after eating fish that had been contaminated with industrial wastes. By the early 1960s the Japanese government had begun to consider a comprehensive pollution-control policy, and in 1967 Japan enacted the world's first such overarching law, the Basic Law for Environmental Pollution Control. Not until the end of the 20th century was Minamata declared mercury-free.

Thirty-four countries in 1971 adopted the Convention on Wetlands of International Importance Especially as Waterfowl Habitat, generally known as the Ramsar Convention for the city in Iran in which it was signed. The agreement, which entered into force in 1975, now has nearly 100 parties. It required all countries to designate at least one protected wetland area, and it recognized the important role of wetlands in maintaining the ecological equilibrium.

Following the United Nations Conference on the Human Environment, held in Stockholm in 1972, the UN established the United Nations Environment Programme (UNEP) as the world's principal international environmental organization. Although UNEP oversees many modern-day agreements, it has little power to impose or enforce sanctions on noncomplying parties. Nevertheless, a series of important conventions arose directly from the conference, including the London Convention on the Prevention of Pollution by Dumping of Wastes or Other Matter (1972) and the Convention on International Trade in Endangered Species (1973).

Branches from a tree in Germany's Black Forest show needle loss and yellowed boughs caused by acid …
Ted Spiegel/Corbis

Until the Stockholm conference, European countries generally had been slow to enact legal standards for environmental protection—though there had been some exceptions, such as the passage of the conservationist Countryside Act in the United Kingdom in 1968. In October 1972, only a few months after the UN conference, the leaders of the European Community (EC) declared that the goal of economic expansion had to be balanced with the need to protect the environment. In the following year the European Commission, the EC's executive branch, produced its first Environmental Action Programme, and since that time European countries have been at the forefront of environmental policy making. In Germany, for example, public attitudes toward environmental protection changed dramatically in the early 1980s, when it became known that many German forests were being destroyed by acid rain. The environmentalist German Green Party, founded in 1980, won representation in the Bundestag (national parliament) for the first time in 1983 and since then has campaigned for stricter environmental regulations. By the end of the 20th century, the party had joined a coalition government and was responsible for developing and implementing Germany's extensive environmental policies. As a group, Germany, The Netherlands, and Denmark—the so-called “green troika”—established themselves as leading innovators in environmental law.

Belarusian soldiers checking for radiation in tomatoes brought from Ukraine, near the Chernobyl …
AFP/Corbis

During the 1980s the “transboundary effects” of environmental pollution in individual countries spurred negotiations on several international environmental conventions. The effects of the 1986 accident at the nuclear power plant at Chernobyl in Ukraine (then part of the Soviet Union) were especially significant. European countries in the pollution's downwind path were forced to adopt measures to restrict their populations' consumption of water, milk, meat, and vegetables. In Austria traces of radiation were found in cow's milk as well as in human breast milk. As a direct result of the Chernobyl disaster, two international agreements—the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of Nuclear Accident or Radiological Emergency, both adopted in 1986—were rapidly drafted to ensure notification and assistance in the event of a nuclear accident. In the following decade a Convention on Nuclear Safety (1994) established incentives for countries to adopt basic standards for the safe operation of land-based nuclear power plants.

There are often conflicting data about the environmental impact of human activities, and scientific uncertainty often has complicated the drafting and implementation of environmental laws and regulations, particularly for international conferences attempting to develop universal standards. Consequently, such laws and regulations usually are designed to be flexible enough to accommodate changes in scientific understanding and technological capacity. The Vienna Convention for the Protection of the Ozone Layer (1985), for example, did not specify the measures that signatory states were required to adopt to protect human health and the environment from the effects of ozone depletion, nor did it mention any of the substances that were thought to damage the ozone layer. Similarly, the Framework Convention on Climate Change, or Global Warming Convention, adopted by 178 countries meeting in Rio de Janeiro at the 1992 United Nations Conference on Environment and Development (popularly known as the “Earth Summit”), did not set binding targets for reducing the emission of the “greenhouse” gases thought to cause global warming.

In 1995 the Intergovernmental Panel on Climate Change, which was established by the World Meteorological Organization and UNEP to study changes in the Earth's temperature, concluded that “the balance of evidence suggests a discernible human influence on global climate.” Although cited by environmentalists as final proof of the reality of global warming, the report was faulted by some critics for relying on insufficient data, for overstating the environmental impact of global warming, and for using unrealistic models of climate change. Two years later in Kyoto, Japan, a conference of signatories to the Framework Convention on Climate Change adopted the Kyoto Protocol, which featured binding emission targets for developed countries. The protocol authorized developed countries to engage in emissions trading in order to meet their emissions targets. Its market mechanisms included the sale of “emission reduction units,” which are earned when a developed country reduces its emissions below its commitment level, to developed countries that have failed to achieve their emission targets. Developed countries could earn additional emission reduction units by financing energy-efficient projects (e.g., clean-development mechanisms) in developing countries. Since its adoption, the protocol has encountered stiff opposition from some countries, particularly the United States, which has failed to ratify it.

Levels of environmental law

Environmental law exists at many levels and is only partly constituted by international declarations, conventions, and treaties. The bulk of environmental law is statutory—i.e., encompassed in the enactments of legislative bodies—and regulatory—i.e., generated by agencies charged by governments with protection of the environment.

In addition, many countries have included some right to environmental quality in their national constitutions. Since 1994, for example, environmental protection has been enshrined in the German Grundgesetz (“Basic Law”), which now states that the government must protect for “future generations the natural foundations of life.” Similarly, the Chinese constitution declares that the state “ensures the rational use of natural resources and protects rare animals and plants”; the South African constitution recognizes a right to “an environment that is not harmful to health or well-being; and to have the environment protected, for the benefit of present and future generations”; the Bulgarian constitution provides for a “right to a healthy and favourable environment, consistent with stipulated standards and regulations”; and the Chilean constitution contains a “right to live in an environment free from contamination.”

Much environmental law also is embodied in the decisions of international, national, and local courts. Some of it is manifested in arbitrated decisions, such as the Trail Smelter arbitration (1941), which enjoined the operation of a smelter located in British Columbia, Canada, near the international border with the U.S. state of Washington and held that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein.” Some environmental law also appears in the decisions of national courts. For example, in Scenic Hudson Preservation Conference v. Federal Power Commission (1965), a U.S. federal appeals court voided a license granted by the Federal Power Commission for the construction of an environmentally damaging pumped-storage hydroelectric plant (i.e., a plant that would pump water from a lower to an upper reservoir) in an area of stunning natural beauty, demonstrating that the decisions of federal agencies could be successfully challenged in the courts. Significant local decisions included National Audubon Society v. Superior Court (1976), in which the California Supreme Court dramatically limited the ability of the Los Angeles to divert water that might otherwise fill Mono Lake in California's eastern desert.

Types of environmental law

Command-and-control legislation

Most environmental law falls into a general category of laws known as “command and control.” Such laws typically involve three elements: (1) identification of a type of environmentally harmful activity, (2) imposition of specific conditions or standards on that activity, and (3) prohibition of forms of the activity that fail to comply with the imposed conditions or standards. The United States Federal Water Pollution Control Act (1972), for example, regulates “discharges” of “pollutants” into “navigable waters of the United States.” All three terms are defined in the statute and agency regulations and together identify the type of environmentally harmful activity subject to regulation. In 1983 Germany passed a national emission-control law that set specific air emission thresholds by power plant age and type. Almost all environmental laws prohibit regulated activities that do not comply with stated conditions or standards. Many make a “knowing” (intentional) violation of such standards a crime.

The most obvious forms of regulated activity involve actual discharges of pollutants into the environment (e.g., air, water, and groundwater pollution). However, environmental laws also regulate activities that entail a significant risk of discharging harmful pollutants (e.g., the transportation of hazardous waste, the sale of pesticides, and logging). For actual discharges, environmental laws generally prescribe specific thresholds of allowable pollution; for activities that create a risk of discharge, environmental laws generally establish management practices to reduce that risk.

The standards imposed on actual discharges generally come in two forms: (1) environmental-quality, or ambient, standards, which fix the maximum amount of the regulated pollutant or pollutants tolerated in the receiving body of air or water, and (2) emission, or discharge, standards, which regulate the amount of the pollutant or pollutants that any “source” may discharge into the environment. Most comprehensive environmental laws impose both environmental-quality and discharge standards and endeavour to coordinate their use to achieve a stated environmental-quality goal. Environmental-quality goals can be either numerical or narrative. Numerical targets set a specific allowable quantity of a pollutant (e.g., 10 micrograms of carbon monoxide per cubic metre of air measured over an eight-hour period). Narrative standards require that the receiving body of air or water be suitable for a specific use (e.g., swimming).

The management practices prescribed for activities that create a risk of discharge are diverse and context-specific. The United States Resource Conservation and Recovery Act (1991), for example, requires drip pads for containers in which hazardous waste is accumulated or stored, and the United States Oil Pollution Act (1990) mandates that all oil tankers of a certain size and age operating in U.S. waters be double-hulled.

Another type of activity regulated by command-and-control legislation is environmentally harmful trade. Among the most-developed regulations are those on trade in wildlife. The Convention on International Trade in Endangered Species (CITES, 1973), for example, authorizes signatories to the convention to designate species “threatened with extinction which are or may be affected by trade.” Once a plant or animal species has been designated as endangered, countries generally are bound to prohibit import or export of that species except in specific limited circumstances. In 1989 listing of the African elephant as a protected species effectively prohibited most trade in African ivory, which was subsequently banned by Kenya and the EC. By this time the United States already had banned trade in African ivory, listing the African elephant as a threatened species under its Federal Endangered Species Act (1978). Despite these measures, some countries either failed to prohibit ivory imports (e.g., Japan) or refused to prohibit ivory exports (e.g., Botswana, Namibia, South Africa, and Zimbabwe), and elephants continued to face danger from poachers and smugglers.

Environmental assessment mandates

Environmental assessment mandates are another significant form of environmental law. Such mandates generally perform three functions: (1) identification of a level or threshold of potential environmental impact at which a contemplated action is significant enough to require the preparation of an assessment, (2) establishment of specific goals for the assessment mandated, and (3) setting of requirements to ensure that the assessment will be considered in determining whether to proceed with the action as originally contemplated or to pursue an alternative action. Unlike command-and-control regulations, which may directly limit discharges into the environment, mandated environmental assessments protect the environment indirectly by increasing the quantity and quality of publicly available information on the environmental consequences of contemplated actions. This information potentially improves the decision making of government officials and increases the public's involvement in the creation of environmental policy.

The United States National Environmental Policy Act (1969) requires the preparation of an environmental impact statement for any “major federal action significantly affecting the quality of the human environment.” The statement must analyze the environmental impact of the proposed action and consider a range of alternatives, including a so-called “no-action alternative.” The statute and regulations imposed by the Council on Environmental Quality, which was established under the 1969 act to coordinate federal environmental initiatives, require federal agencies to wait until environmental impact statements have been completed before taking actions that would preclude alternatives. Similarly, the European Union (EU) requires an environmental impact assessment for two types of projects. So-called “annex-I Projects” (e.g., oil refineries, toxic waste landfills, and thermal power stations with heat output of 300 or more megawatts) are generally subject to the requirement, and “annex-II Projects” (e.g., activities in chemical, food, textile, leather, wood, and paper industries) are subject to an environmental impact assessment only where “member states consider that their characteristics so require.” Such assessments must describe and evaluate the direct and indirect effects of the project on humans, fauna, flora, soil, water, air, climate, and landscape and the interaction between them.

Economic incentives

The use of economic instruments to create incentives for environmental protection is a popular form of environmental law. Such incentives include pollution taxes, subsidies for clean technologies and practices, and the creation of markets in either environmental protection or pollution. Denmark, The Netherlands, and Sweden, for example, impose taxes on carbon dioxide emissions, and the EU has debated whether to implement such a tax at the supranational level to combat climate change. In the United States, water pollution legislation passed in 1972 provided subsidies to local governments to upgrade publicly owned sewage treatment plants. In 1980 the U.S. government, prompted in part by the national concern inspired by industrial pollution in the Love Canal neighbourhood in Niagara Falls, New York, created a federal “superfund” that used general revenues and revenue from taxes on petrochemical feedstocks, crude oil, and general corporate income to finance the cleanup of more than 1,000 sites polluted by hazardous substances.

By the 1990s, “tradable allowance schemes”, which permit companies to buy and sell “pollution credits,” or legal rights to produce specified amounts of pollution, had been implemented in the United States. The most comprehensive and complex such program, created as part of the 1990 Clean Air Act, was designed to reduce overall sulfur dioxide emissions by fossil-fuel-fired power plants. According to proponents, the program would provide financial rewards to cleaner plants, which could sell their unneeded credits on the market, and allow dirtier plants to stay in business while they converted to cleaner technologies.

Set-aside schemes

A final method of environmental protection is the setting aside of lands and waters in their natural state. In the United States, for example, the vast majority of the land owned by the federal government (about one-third of the total land area of the country) can be developed only with the approval of a federal agency. Europe has an extensive network of national parks and preserves on both public and private land, and there are extensive national parks in southern and eastern Africa in which wildlife is protected. Arguably, the large body of law that regulates use of public lands and publicly held resources is “environmental law.” Some, however, maintain that it is not.

Many areas of law can be characterized as both “set aside” and regulatory. For example, international efforts to preserve wetlands have focused on setting aside areas of ecological value, including wetlands, and on regulating their use. The Ramsar Convention provides that wetlands are a significant “economic, cultural, scientific and recreational” resource, and a section of the Clean Water Act, the primary U.S. law for the protection of wetlands, contains a prohibition against unpermitted discharges of “dredge and fill material” into any “waters of the United States.”

Principles of environmental law

The design and application of modern environmental law have been shaped by a set of principles and concepts outlined in publications such as Our Common Future (1987), published by the World Commission on Environment and Development, and the Earth Summit's Rio Declaration (1992).

The precautionary principle

As discussed above, environmental law regularly operates in areas complicated by high levels of scientific uncertainty. In the case of many activities that entail some change to the environment, it is impossible to determine precisely what effects the activity will have on the quality of the environment or on human health. It is generally impossible to know, for example, whether a certain level of air pollution will result in an increase in mortality from respiratory disease, whether a certain level of water pollution will reduce a healthy fish population, or whether oil development in an environmentally sensitive area will significantly disturb the native wildlife. The precautionary principle requires that, if there is a strong suspicion that a certain activity may have environmentally harmful consequences, it is better to control that activity now rather than to wait for incontrovertible scientific evidence. This principle is expressed in the Rio Declaration, which stipulates that, where there are “threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” In the United States the precautionary principle was incorporated into the design of habitat-conservation plans required under the aegis of the Endangered Species Act. In 1989 the EC invoked the precautionary principle when it banned the importation of U.S. hormone-fed beef, and in 2000 the organization adopted the principle as a “full-fledged and general principle of international law.” In 1999 Australia and New Zealand invoked the precautionary principle in their suit against Japan for its alleged overfishing of southern bluefin tuna.

The prevention principle

Although much environmental legislation is drafted in response to catastrophes, preventing environmental harm is cheaper, easier, and less environmentally dangerous than reacting to environmental harm that already has taken place. The prevention principle is the fundamental notion behind laws regulating the generation, transportation, treatment, storage, and disposal of hazardous waste and laws regulating the use of pesticides. The principle was the foundation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), which sought to minimize the production of hazardous waste and to combat illegal dumping. The prevention principle also was an important element of the EC's Third Environmental Action Programme, which was adopted in 1983.

The “polluter pays” principle

Worker cleaning a rock on the beach of Green Island, Alaska, after the Exxon …
Natalie Forbes/Corbis

Since the early 1970s the “polluter pays” principle has been a dominant concept in environmental law. Many economists claim that much environmental harm is caused by producers who “externalize” the costs of their activities. For example, factories that emit unfiltered exhaust into the atmosphere or discharge untreated chemicals into a river pay little to dispose of their waste. Instead, the cost of waste disposal in the form of pollution is borne by the entire community. Similarly, the driver of an automobile bears the costs of fuel and maintenance but externalizes the costs associated with the gases emitted from the tailpipe. Accordingly, the purpose of many environmental regulations is to force polluters to bear the real costs of their pollution, though such costs often are difficult to calculate precisely. In theory, such measures encourage producers of pollution to make cleaner products or to use cleaner technologies. The “polluter pays” principle underlies U.S. laws requiring the cleanup of releases of hazardous substances, including oil. One such law, the Oil Pollution Act (1990), was passed in reaction to the spillage of some 11 million gallons (41 million litres) of oil into Prince William Sound in Alaska in 1989. The “polluter pays” principle also guides the policies of the EU and other governments throughout the world. A 1991 ordinance in Germany, for example, held businesses responsible for the costs of recycling or disposing of their products' packaging, up to the end of the product's life cycle; however, the German Federal Constitutional Court struck down the regulation as unconstitutional. Such policies also have been adopted at the regional or state level; in 1996 the U.S. state of Florida, in order to protect its environmentally sensitive Everglades region, incorporated a limited “polluter pays” provision into its constitution.

The integration principle

Environmental protection requires that due consideration be given to the potential consequences of environmentally fateful decisions. Various jurisdictions (e.g., the United States and the EU) and business organizations (e.g., the U.S. Chamber of Commerce) have integrated environmental considerations into their decision-making processes through environmental-impact-assessment mandates and other provisions.

The public participation principle

Decisions about environmental protection often formally integrate the views of the public. Generally, government decisions to set environmental standards for specific types of pollution, to permit significant environmentally damaging activities, or to preserve significant resources are made only after the impending decision has been formally and publicly announced and the public has been given the opportunity to influence the decision through written comments or hearings. In many countries citizens may challenge in court or before administrative bodies government decisions affecting the environment. These citizen lawsuits have become an important component of environmental decision making at both the national and the international level.

Public participation in environmental decision making has been facilitated in Europe and North America by laws that mandate extensive public access to government information on the environment. Similar measures at the international level include the Rio Declaration and the 1998 Århus Convention, which committed the 40 European signatory states to increase the environmental information available to the public and to enhance the public's ability to participate in government decisions that affect the environment. During the 1990s the Internet became a primary vehicle for disseminating environmental information to the public.

Sustainable development

Sustainable development is an approach to economic planning that attempts to foster economic growth while preserving the quality of the environment for future generations. Despite its enormous popularity in the last two decades of the 20th century, the concept of sustainable development proved difficult to apply in many cases, primarily because the results of long-term sustainability analyses depend on the particular resources focused upon. For example, a forest that will provide a sustained yield of timber in perpetuity may not support native bird populations, and a mineral deposit that will eventually be exhausted may nevertheless support more or less sustainable communities. Sustainability was the focus of the 1992 Earth Summit and later was central to a multitude of environmental studies.

One of the most important areas of the law of sustainable development is ecotourism. Although tourism poses the threat of environmental harm from pollution and the overuse of natural resources, it also can create economic incentives for the preservation of the environment in developing countries and increase awareness of unique and fragile ecosystems throughout the world. In 1995 the World Conference on Sustainable Tourism, held on the island of Lanzarote in the Canary Islands, adopted a charter that encouraged the development of laws that would promote the dual goals of economic development through tourism and protection of the environment. Two years later, in the Malé Declaration on Sustainable Tourism, 27 Asian-Pacific countries pledged themselves to a set of principles that included fostering awareness of environmental ethics in tourism, reducing waste, promoting natural and cultural diversity, and supporting local economies and local community involvement. Highlighting the growing importance of sustainable tourism, the World Tourism Organization declared 2002 the International Year of Ecotourism.

Current trends and prospects

Although numerous international environmental treaties have been concluded, effective agreements remain difficult to achieve for a variety of reasons. Because environmental problems ignore political boundaries, they can be adequately addressed only with the cooperation of numerous governments, among which there may be serious disagreements on important points of environmental policy. Furthermore, because the measures necessary to address environmental problems typically result in social and economic hardships in the countries that adopt them, many countries, particularly in the developing world, have been reluctant to enter into environmental treaties. Since the 1970s a growing number of environmental treaties have incorporated provisions designed to encourage their adoption by developing countries. Such measures include financial cooperation, technology transfer, and differential implementation schedules and obligations.

The greatest challenge to the effectiveness of environmental treaties is compliance. Although treaties can attempt to enforce compliance through mechanisms such as sanctions, such measures usually are of limited usefulness, in part because countries in compliance with a treaty may be unwilling or unable to impose the sanctions called for by the treaty. In general, the threat of sanctions is less important to most countries than the possibility that by violating their international obligations they risk losing their good standing in the international community. Enforcement mechanisms other than sanctions have been difficult to establish, usually because they would require countries to cede significant aspects of their national sovereignty to foreign or international organizations. In most agreements, therefore, enforcement is treated as a domestic issue, an approach that effectively allows each country to define compliance in whatever way best serves its national interest. Despite this difficulty, international environmental treaties and agreements are likely to grow in importance as international environmental problems become more acute.

Many areas of international environmental law remain underdeveloped. Although international agreements have helped to make the laws and regulations applicable to some types of environmentally harmful activity more or less consistent in different countries, those applicable to other such activities can differ in dramatic ways. Because in most cases the damage caused by environmentally harmful activities cannot be contained within national boundaries, the lack of consistency in the law has led to situations in which activities that are legal in some countries result in illegal or otherwise unacceptable levels of environmental damage in neighbouring countries.

This problem became particularly acute with the adoption of free trade agreements beginning in the early 1990s. The North American Free Trade Agreement (NAFTA), for example, resulted in the creation of large numbers of maquiladoras—factories jointly owned by U.S. and Mexican corporations and operated in Mexico—inside a 60-mile- (100-km) wide free trade zone along the U.S.-Mexican border. Because Mexico's government lacked both the resources and the political will to enforce the country's environmental laws, the maquiladoras were able to pollute surrounding areas with relative impunity, often dumping hazardous wastes on the ground or directly into waterways, where they were carried into U.S. territory. Prior to NAFTA's adoption in 1992, the prospect of problems such as these led negotiators to append a so-called “side agreement” to the treaty, which pledged environmental cooperation between the signatory states. Meanwhile, in Europe concerns about the apparent connection between free trade agreements and environmental degradation fueled opposition to the Maastricht Treaty, which created the EU and expanded its jurisdiction.

Federico Cheever

Celia I. Campbell-Mohn

Additional Reading

International environmental law is the subject of Alain Verbeke (ed.), Property and Trust Law (2000– ), in the series International Encyclopedia of Laws; and William H. Rodgers, Jr., Environmental Law, 2nd ed. (1994). Environmental laws are explored from a comparative perspective in Alexander J. Bolla and Ted L. McDorman (eds.), Comparative Asian Environmental Law Anthology (1999); Dorothy Gillies, A Guide to EC Environmental Law (1999); and Gerd Winter (ed.), European Environmental Law: A Comparative Perspective (1996). Environmental statutes are discussed in Roger W. Findley and Daniel A. Farber, Environmental Law in a Nutshell, 5th ed. (2000); and Sheldon M. Novick, Donald W. Stever, and Margaret G. Mellon (eds.), Law of Environmental Protection, 3 vol. (1987– ). Discussions of important international issues can be found in Robert L. Fischman, Maxine I. Lipeles, and Mark S. Squillace (eds.), An Environmental Law Anthology (1996); Richard L. Revesz (ed.), Foundations of Environmental Law and Policy (1997); and Dale D. Goble and Eric T. Freyfogle, Wildlife Law (2002). A treatise on environmental law reform is Celia Campbell-Mohn (ed.), Sustainable Environmental Law: Integrating Natural Resource and Pollution Abatement Law from Resources to Recovery (1993).

Real Climate commentary on arctic sea ice

Real Climate published a guest commentary today by Cecilia Bitz, one of the authors on the paper suggesting that the Arctic sea ice may disappear by 2040. 1-12-07 Real Climate Post  Arctic Sea Ice in the 21st Century  Bitz answers a number of the questions that she was asked by the media in greater detail than the media was able to report.  She offers hope that we haven't reached the point of no return -- especially if we can stabilize emissions at 2000 levels by 2020.

Here is a part of the post -- but be sure to review the full post and comments:

Last month a paper I co-authored receive considerable media attention. Headlines read "Experts warn North Pole will be 'ice free' by 2040", "The Big Melt: Loss of Sea Ice Snowballs", and "Arctic Clear for Summer Sailing by 2040: Models Predict Rapid Decline of Sea Ice''. The story also reached NPR, BBC, CBC, the Discovery channel, and Fox News, among others. Dr. Marika Holland, the first author of the paper, was inundated with media attention. About a dozen journalists contacted me too. I was impressed by the questions they posed -- questions that probably reflect what the public most wants to know. However, after giving lengthy interviews, I would read the resulting article and see my explanations boiled down to a few lines. In this essay, I'd like to explain the science in the paper and give my answers to the most often asked questions.

In our paper, we examined the September Arctic sea ice cover in the 20th and 21st centuries in climate models, and found occasional decades of very rapid retreat. The most extreme case was a decrease from 6 to 2 million square kilometers in a decade (see Fig 1). This is about 4 times faster than the decline that has been observed in the past decade.

Figure 1: (a) Northern Hemisphere sea ice extent in September from one integration of the Community Climate System Model version 3 (CCSM3) with observations from satellite era shown in red. The light blue line is a 5-yr running mean. The three lower panels show the September ice concentration (ice floes are separated by open water) in three select decades.

It is common practice to run climate models multiple times with slight variations to the initial conditions. Because the system is chaotic, the natural variability in each run is random and uncorrelated from one run to the next. When an ensemble of runs is averaged, the natural variability is reduced in the ensemble mean, and it is easier to detect a significant trend.

An ensemble of runs offers an opportunity to evaluate rare events too, such as extreme sea ice decay. We were in search of evidence for "tipping points", which several authors have speculated might exist in sea ice. RealClimate places sea ice in the category of systems with "known unknowns" with regard to tipping points. This means we know there are thresholds involving sea ice (e.g., it can cease to exist), but we don't know when or if the climate will arrive at one.

Only one of seven ensemble members had an event as extreme as quoted above, and it resulted in near ice-free conditions for September by 2040 (see Fig 1d). (The sea ice grows back at least for some portion of winter for the duration of the 21st century.) However, every ensemble member had an event 5 years or longer at some time in the 21st century when the sea ice retreat was about 3 times faster than the observed retreat since 2001 (see Fig 2). These ensemble members took about 5--10 years longer to become nearly ice-free in September than the most extreme case.

As illustrated in Fig 1, the sea ice retreat accelerates during the 21st century as the ice decays and more sunlight is absorbed by the ocean (the positive ice-albedo feedback). Increasing ocean heat transport under the sea ice adds to the melt back. The retreat appears abrupt when natural variability in the ocean heat transport into the Arctic Ocean is anomalously high. We did not find clear evidence of a threshold, which can be difficult to identify given the variability and complexity of the climate system. Therefore we can neither verify or rule-out the existence of a tipping point. Regardless, the rapid declines seen in our runs are a serious concern.

Figure 2: Northern Hemisphere sea ice extent in September for all seven integration of the CCSM3 with observations from satellite era shown in black.

Most common questions asked by journalists

1) How does our model compare with the trend in the observed record?

The trends in the seven ensemble members for 1979-2006 span the trend in the observations: Some members retreat a little faster and some a little slower, as expected from the random natural variability in the runs (see Fig 2). The model also reproduces the mean and variance of the observations with good fidelity.

2) Other scientists are predicting an ice-free Arctic in September by the year 2060-2080, why is this model predicting it 20-40 years sooner?

First consider estimates based on extrapolation from the observational record. I've heard these numbers quoted in the media, but I have not seen a reference to a scientific paper that discusses the analysis in any detail. Figures 2 and 3 illustrate the danger of making an estimate of the future from the observational period. The future trend is not linear, the observational record is too short and the ice-free time is too far in the future to trust extrapolation. If one carries out such an exercise anyway, extrapolation from a linear fit to 1979--2006 gives a zero intersect (indicating the first ice-free year in the future) at about 2110 (see Fig 3). If instead one uses just the last decade, the extrapolation gives 2060. Both estimates are questionable, and so instead we turn to climate models.

Figure 3: Extrapolating into the future from the observational record.

3) Is sea ice in our model retreating faster than in other models?

Figure 4 shows September ice retreat in 16 models that were archived for the IPCC AR4. The most extreme predictions are from models that have too much or too little sea ice extent compared to observations, so it is important for a model to produce the correct sea ice coverage in the past. Some of the spread is expected from natural variability, but much depends on differing model sensitivity relating to the representation of sea ice, heat transport by the ocean, and cloud cover. It is not possible to identify the most accurate model prediction, although I think it is safe to rule out some of the outliers owing to their poor match to the observations.

About half of the models become ice-free in September during the 21st century. I included one ensemble member from our model, CCSM3, which is in the middle of the pack until about 2020. Our model run retreats faster than most after about 2020, but it isn't radically different.

There is considerable uncertainty in future model projections, and Figs 2 and 4 illustrate why it would be better not to focus too much on the year 2040, which to our dismay was highly publicized. The more important message from models is that all but a few outliers predict enourmous sea ice retreat this century. At least a few respectable models predict a nearly ice-free Arctic by midcentury, with a retreat that may be punctuated by rapid events.

Figure 4: Northern Hemisphere sea ice extent in September from model integrations submitted to the IPCC AR4 with observations from satellite era shown in black.

4) Is it too late to save the sea ice?

The future emissions scenario discussed here is one that assumes modest increases in emissions. If humans can reduce the rise in emissions compared to this, then sea ice retreat would be slower and rapid events would be rarer, according to the IPCC AR4 models.

5) Have we crossed a tipping point?

I don't think we have yet. If we fix the greenhouse gas and aerosol levels at year 2000 values and run the model into the 21st century, the sea ice retreats for only another decade or two and then levels off (some of the ensemble members even recover a little bit). So according to our model, the sea ice does not appear to have passed a threshold yet. We have not done an exhaustive study of any years beyond today, so unfortunately we cannot say with certainty that no tipping points exist. The bottom-line: The retreat can be surprisingly rapid even without clear evidence of a tipping point.

25th Annual ABA SEER Water Law Conference

<> American Bar Association Section of Environment, Energy, and Resources 25th Annual Water Law Conference: Changing Values, Changing Conflicts February 22-23, 2007   San Diego, CA   Hotel del Coronado The 25th Anniversary Water Law Conference will focus on the changing values for water use and the resulting changes in legal conflicts over water. The conference includes speakers and panels reflecting the broad diversity of issues and perspectives on the most challenging issues now facing the water law community. Speakers will discuss past, present and anticipated future changes and trends in water law, and how those changes will affect your practice. The conference will open with perspectives on the changing nature of water conflicts and the most significant trends over the last 25 years, from water law luminaries of the last quarter century. After a rousing debate about changes in how courts defer to agency determinations, particularly in light of the 2006 Rapanos decision, panels will examine more closely certain critical issues now facing the water law community – from instream use and conflicting sovereigns to international conflicts and conservation. Friday morning will address emerging issues that will change the nature of water law practice in the next quarter century, including water quality issues arising out of inter-basin transfers, resolution of water rights conflicts, and the dynamic relationship between water law and science. The conference will close with a special “Hot Topics” lunch on climate change and how it may affect water law practice, including a presentation on California’s recent efforts to assess how its water policy may need to change to address global warming. This year’s conference also offers two early morning panels – one on water law fundamentals to help those new to the water law field, and one on the ethics of ex parte contacts in a world where water conflicts are now often resolved outside formal adjudications. Click here to Register

ABA SEER Quick Teleconference on 9th Circuit Cases Revisiting Mobile-Sierra Public Interest Review of Unilateral Modifications of Power Contracts

Energy Contracts in Context: The Ninth Circuit Revisits Mobile-Sierra Review in Light of the Western Energy Crisis   Wednesday, January 24, 2007     12:30 p.m. – 2:00 p.m. Eastern Time / 11:30 a.m. – 1:00 p.m. Central Time / 10:30 a.m. – 12:00 p.m. Mountain Time / 9:30 a.m. – 11:00 a.m. Pacific Time

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Program Overview:
The Federal Power Act requires FERC to ensure that all rates, terms and conditions for the sale of power are “just and reasonable.” Since 1956, the Supreme Court has recognized a stringent standard of review, known as the Mobile-Sierra doctrine, which under certain circumstances forbad attempts to modify contracts unilaterally unless such modifications are required by the “public interest.” For decades, this standard has been regarded by many as “practically insurmountable.” That era may now have come to a close.

On December 19, 2006, the Ninth Circuit published a pair of decisions arising from the Western Energy Crisis of 2000-2001 that revisit the application of Mobile-Standard review in the modern context of market-based rates. In Public Utility District No. 1 of Snohomish County Washington v. FERC, and its companion case, Public Utilities Commission of the State of California v. FERC, the Ninth Circuit determined that the Mobile-Sierra public interest standard of review should apply only when: “ (1) the contract by its own terms must not preclude the limited Mobile-Sierra review; (2) the regulatory scheme in which the contracts are formed must provide FERC with an opportunity for effective, timely review of the contracted rates; and (3) where . . . FERC is relying on a market-based rate-setting system to produce just and reasonable rates, this review must permit consideration of all factors relevant to the propriety of the contract’s formation.”

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Moderator and Panelist:
                Russ Campbell, Balch & Bingham LLP, Birmingham, AL Panelists:
    Jared des Rosiers, Pierce Atwood LLP, Portland, ME
    John Estes, Skadden, Arps, Slate, Meagher & Flom, Washington, DC
    Melissa Lauderdale, Director, Industry Legal Affairs, Edison Electric Institute, Washington, DC

Click Here to Register

NYT names NOAA's attempt to gag Dr. James Hansen as a top Ten story

The NY Times published its list of the top Ten stories of 2006.  One of them had been featured prominantly on this blog -- the attempt of NOAA's political management to gag Dr. James Hansen, whose public discussions of global warming deeply embarrassed the Bush Administration.  That story, written by Andrew Rivkin, in some ways was a shot heard round the world.  For a full color version of the story, visit the Times.  The printer-friendly version is quoted below.

January 29, 2006

Climate Expert Says NASA Tried to Silence Him

 

By ANDREW C. REVKIN

   

The top climate scientist at NASA says the Bush administration has tried to stop him from speaking out since he gave a lecture last month calling for prompt reductions in emissions of greenhouse gases linked to global warming.

The scientist, James E. Hansen, longtime director of the agency's Goddard Institute for Space Studies, said in an interview that officials at NASA headquarters had ordered the public affairs staff to review his coming lectures, papers, postings on the Goddard Web site and requests for interviews from journalists.

Dr. Hansen said he would ignore the restrictions. "They feel their job is to be this censor of information going out to the public," he said.

Dean Acosta, deputy assistant administrator for public affairs at the space agency, said there was no effort to silence Dr. Hansen. "That's not the way we operate here at NASA," Mr. Acosta said. "We promote openness and we speak with the facts."

He said the restrictions on Dr. Hansen applied to all National Aeronautics and Space Administration personnel. He added that government scientists were free to discuss scientific findings, but that policy statements should be left to policy makers and appointed spokesmen.

Mr. Acosta said other reasons for requiring press officers to review interview requests were to have an orderly flow of information out of a sprawling agency and to avoid surprises. "This is not about any individual or any issue like global warming," he said. "It's about coordination."

Dr. Hansen strongly disagreed with this characterization, saying such procedures had already prevented the public from fully grasping recent findings about climate change that point to risks ahead.

"Communicating with the public seems to be essential," he said, "because public concern is probably the only thing capable of overcoming the special interests that have obfuscated the topic."

Dr. Hansen, 63, a physicist who joined the space agency in 1967, directs efforts to simulate the global climate on computers at the Goddard Institute in Morningside Heights in Manhattan.

Since 1988, he has been issuing public warnings about the long-term threat from heat-trapping emissions, dominated by carbon dioxide, that are an unavoidable byproduct of burning coal, oil and other fossil fuels. He has had run-ins with politicians or their appointees in various administrations, including budget watchers in the first Bush administration and Vice President Al Gore.

In 2001, Dr. Hansen was invited twice to brief Vice President Dick Cheney and other cabinet members on climate change. White House officials were interested in his findings showing that cleaning up soot, which also warms the atmosphere, was an effective and far easier first step than curbing carbon dioxide.

He fell out of favor with the White House in 2004 after giving a speech at the University of Iowa before the presidential election, in which he complained that government climate scientists were being muzzled and said he planned to vote for Senator John Kerry.

But Dr. Hansen said that nothing in 30 years equaled the push made since early December to keep him from publicly discussing what he says are clear-cut dangers from further delay in curbing carbon dioxide.

In several interviews with The New York Times in recent days, Dr. Hansen said it would be irresponsible not to speak out, particularly because NASA's mission statement includes the phrase "to understand and protect our home planet."

He said he was particularly incensed that the directives had come through telephone conversations and not through formal channels, leaving no significant trails of documents.

Dr. Hansen's supervisor, Franco Einaudi, said there had been no official "order or pressure to say shut Jim up." But Dr. Einaudi added, "That doesn't mean I like this kind of pressure being applied."

The fresh efforts to quiet him, Dr. Hansen said, began in a series of calls after a lecture he gave on Dec. 6 at the annual meeting of the American Geophysical Union in San Francisco. In the talk, he said that significant emission cuts could be achieved with existing technologies, particularly in the case of motor vehicles, and that without leadership by the United States, climate change would eventually leave the earth "a different planet."

The administration's policy is to use voluntary measures to slow, but not reverse, the growth of emissions.

After that speech and the release of data by Dr. Hansen on Dec. 15 showing that 2005 was probably the warmest year in at least a century, officials at the headquarters of the space agency repeatedly phoned public affairs officers, who relayed the warning to Dr. Hansen that there would be "dire consequences" if such statements continued, those officers and Dr. Hansen said in interviews.

Among the restrictions, according to Dr. Hansen and an internal draft memorandum he provided to The Times, was that his supervisors could stand in for him in any news media interviews.

Mr. Acosta said the calls and meetings with Goddard press officers were not to introduce restrictions, but to review existing rules. He said Dr. Hansen had continued to speak frequently with the news media.

But Dr. Hansen and some of his colleagues said interviews were canceled as a result.

In one call, George Deutsch, a recently appointed public affairs officer at NASA headquarters, rejected a request from a producer at National Public Radio to interview Dr. Hansen, said Leslie McCarthy, a public affairs officer responsible for the Goddard Institute.

Citing handwritten notes taken during the conversation, Ms. McCarthy said Mr. Deutsch called N.P.R. "the most liberal" media outlet in the country. She said that in that call and others, Mr. Deutsch said his job was "to make the president look good" and that as a White House appointee that might be Mr. Deutsch's priority.

But she added: "I'm a career civil servant and Jim Hansen is a scientist. That's not our job. That's not our mission. The inference was that Hansen was disloyal."

Normally, Ms. McCarthy would not be free to describe such conversations to the news media, but she agreed to an interview after Mr. Acosta, at NASA headquarters, told The Times that she would not face any retribution for doing so.

Mr. Acosta, Mr. Deutsch's supervisor, said that when Mr. Deutsch was asked about the conversations, he flatly denied saying anything of the sort. Mr. Deutsch referred all interview requests to Mr. Acosta.

Ms. McCarthy, when told of the response, said: "Why am I going to go out of my way to make this up and back up Jim Hansen? I don't have a dog in this race. And what does Hansen have to gain?"

Mr. Acosta said that for the moment he had no way of judging who was telling the truth. Several colleagues of both Ms. McCarthy and Dr. Hansen said Ms. McCarthy's statements were consistent with what she told them when the conversations occurred.

"He's not trying to create a war over this," said Larry D. Travis, an astronomer who is Dr. Hansen's deputy at Goddard, "but really feels very strongly that this is an obligation we have as federal scientists, to inform the public."

Dr. Travis said he walked into Ms. McCarthy's office in mid-December at the end of one of the calls from Mr. Deutsch demanding that Dr. Hansen be better controlled.

In an interview on Friday, Ralph J. Cicerone, an atmospheric chemist and the president of the National Academy of Sciences, the nation's leading independent scientific body, praised Dr. Hansen's scientific contributions and said he had always seemed to describe his public statements clearly as his personal views.

"He really is one of the most productive and creative scientists in the world," Dr. Cicerone said. "I've heard Hansen speak many times and I've read many of his papers, starting in the late 70's. Every single time, in writing or when I've heard him speak, he's always clear that he's speaking for himself, not for NASA or the administration, whichever administration it's been."

The fight between Dr. Hansen and administration officials echoes other recent disputes. At climate laboratories of the National Oceanic and Atmospheric Administration, for example, many scientists who routinely took calls from reporters five years ago can now do so only if the interview is approved by administration officials in Washington, and then only if a public affairs officer is present or on the phone.

Where scientists' points of view on climate policy align with those of the administration, however, there are few signs of restrictions on extracurricular lectures or writing.

One example is Indur M. Goklany, assistant director of science and technology policy in the policy office of the Interior Department. For years, Dr. Goklany, an electrical engineer by training, has written in papers and books that it may be better not to force cuts in greenhouse gases because the added prosperity from unfettered economic activity would allow countries to exploit benefits of warming and adapt to problems.

In an e-mail exchange on Friday, Dr. Goklany said that in the Clinton administration he was shifted to nonclimate-related work, but added that he had never had to stop his outside writing, as long as he identified the views as his own.

"One reason why I still continue to do the extracurricular stuff," he wrote, "is because one doesn't have to get clearance for what I plan on saying or writing."

NRC Trashes OMB's January 2006 Risk Assessment Guidelines

The Bush Administration will rework OMB's controversial risk assessment proposal after the National Research Council expert panel reviewing the proposal called the approach "fundamentally flawed." NRC Report on OMB Risk Assessment Guidelines.  The January 2006 proposed risk assessment technical guidelines  were developed by former OIRA director John Graham to improve federal risk assessments, which OMB criticized in the cases of dioxin, mercury, perchlorate, and mad cow disease.

The proposal generated substantial public comment over the last year.  Industry supported the proposal.  Public health experts and  environmental groups contended that the guidelines would prevent government agencies from regulating health hazards by setting technical risk assessment standards that were difficult -- or even impossible -- to meet. 

OMB submitted the proposal to the National Research Council for review.  According John Ahearne, chair of the NRC review committee, the committee decided that the proposal was broken beyond repair.  It contained a confusing, overly broad definition of risk assessment, omitted crucial aspects of risk assessment such as how to handle absence of adequate information and assumed sufficient data would be readily available.  And, more fundamentally, OMB failed to demonstrate that costly changes in the federal risk assessment process were necessary.  The 18-person NRC committee unanimously agreed that OMB should withdraw the January 2006 proposed guidelines. NRC Executive Summary

RegWatch, rejoiced yesterday, with the following post:

Nation's Top Scientists Strongly Reject OMB's Regulatory Guidance

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This morning, the National Academy of Sciences rejected the White House Office of Management and Budget's (OMB) Proposed Risk Assessment Bulletin. OMB charged NAS with the task of peer-reviewing the bulletin, and NAS issued a stinging rebuke.
The Bulletin calls for an overly standardized method across all agencies of assessing the potential risks of regulatory action. No matter if the issue is the environment, consumer products, or massive buildings and infrastructure, the framework would be the same.

NAS cites concerns that OMB is overstepping its bounds in suggesting this restrictive framework, and that micromanaging the ways in which agencies go about their business stymies the expertise within those agencies. Ultimately, NAS smartly concludes that this one-size-fits-all approach is unrealistic and would not jibe well with scientific and technological findings:

We began our review of the draft bulletin thinking we would only be recommending changes, but the more we dug into it, the more we realized that from a scientific and technical standpoint, it should be withdrawn altogether.

OMB has called off the Bulletin for now. Reg Watch revels in sound science trumping politics this time around.

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Read the NAS news release and report
Read OMB Watch's comments on the Proposed Risk Assessment Bulletin.

  Read more about how the Bulletin would lead to dangerous deregulations.

Posted by Matt Madia

Generation Next: our incoming crop of students

We are or will soon be teaching students from Generation Next.  Generation Next is made up of 18-25 year-olds (born between 1981 and 1988). Generation X was born between 1966 and 1980 and ranges in age from 26-40. The Baby Boom generation, born between 1946 and 1964, ranges in age from 41-60. Finally, those over age 60 (born before 1946) are called the Seniors.  Take a look at the Pew Research Center for the People & the Press, A Portrait of "Generation Next:" How Young People View Their Lives, Futures, and Politics, January 9, 2007. Generation Next full report

As Pew Research Center summarizes its findings:

A new generation has come of age, shaped by an unprecedented revolution in technology and dramatic events both at home and abroad. They are Generation Next, the cohort of young adults who have grown up with personal computers, cell phones and the internet and are now taking their place in a world where the only constant is rapid change.

In reassuring ways, the generation that came of age in the shadow of Sept. 11 shares the characteristics of other generations of young adults. They are generally happy with their lives and optimistic about their futures. Moreover, Gen Nexters feel that educational and job opportunities are better for them today than for the previous generation. At the same time, many of their attitudes and priorities reflect a limited set of life experiences. Marriage, children and an established career remain in the future for most of those in Generation Next.

More than two-thirds see their generation as unique and distinct, yet not all self-evaluations are positive. A majority says that "getting rich" is the main goal of most people in their age group, and large majorities believe that casual sex, binge drinking, illegal drug use and violence are more prevalent among young people today than was the case 20 years ago.

In their political outlook, they are the most tolerant of any generation on social issues such as immigration, race and homosexuality. They are also much more likely to identify with the Democratic Party than was the preceding generation of young people, which could reshape politics in the years ahead. Yet the evidence is mixed as to whether the current generation of young Americans will be any more engaged in the nation's civic life than were young people in the past, potentially blunting their political impact.

Meet Generation Next:

• They use technology and the internet to connect with people in new and distinctive ways. Text messaging, instant messaging and email keep them in constant contact with friends. About half say they sent or received a text message over the phone in the past day, approximately double the proportion of those ages 26-40.
• They are the "Look at Me" generation. Social networking sites like Facebook, MySpace and MyYearbook allow individuals to post a personal profile complete with photos and descriptions of interests and hobbies. A majority of Gen Nexters have used one of these social networking sites, and more than four-in-ten have created a personal profile.
• Their embrace of new technology has made them uniquely aware of its advantages and disadvantages. They are more likely than older adults to say these cyber-tools make it easier for them to make new friends and help them to stay close to old friends and family. But more than eight-in-ten also acknowledge that these tools "make people lazier."
• About half of Gen Nexters say the growing number of immigrants to the U.S. strengthens the country ­ more than any generation. And they also lead the way in their support for gay marriage and acceptance of interracial dating.
• Beyond these social issues, their views defy easy categorization. For example, Generation Next is less critical of government regulation of business but also less critical of business itself. And they are the most likely of any generation to support privatization of the Social Security system.
• They maintain close contact with parents and family. Roughly eight-in-ten say they talked to their parents in the past day. Nearly three-in-four see their parents at least once a week, and half say they see their parents daily. One reason: money. About three-quarters of Gen Nexters say their parents have helped them financially in the past year.

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Their parents may not always be pleased by what they see on those visits home: About half of Gen Nexters say they have either gotten a tattoo, dyed their hair an untraditional color, or had a body piercing in a place other than their ear lobe. The most popular are tattoos, which decorate the bodies of more than a third of these young adults.



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  One-in-five members of Generation Next say they have no religious affiliation or are atheist or agnostic, nearly double the proportion of young people who said that in the late 1980s. And just 4% of Gen Nexters say people in their generation view becoming more spiritual as their most important goal in life.

• They are somewhat more interested in keeping up with politics and national affairs than were young people a generation ago. Still, only a third say they follow what's going on in government and public affairs "most of the time."
• In Pew surveys in 2006, nearly half of young people (48%) identified more with the Democratic Party, while just 35% affiliated more with the GOP. This makes Generation Next the least Republican generation.
• Voter turnout among young people increased significantly between 2000 and 2004, interrupting a decades-long decline in turnout among the young. Nonetheless, most members of Generation Next feel removed from the political process. Only about four-in-ten agree with the statement: "It's my duty as a citizen to always vote."
• They are significantly less cynical about government and political leaders than are other Americans or the previous generation of young people. A majority of Americans agree with the statement: "When something is run by the government, it is usually inefficient and wasteful," but most Generation Nexters reject this idea.
• Their heroes are close and familiar. When asked to name someone they admire, they are twice as likely as older Americans to name a family member, teacher, or mentor. Moreover, roughly twice as many young people say they most admire an entertainer rather than a political leader.
• They are more comfortable with globalization and new ways of doing work. They are the most likely of any age group to say that automation, the outsourcing of jobs, and the growing number of immigrants have helped and not hurt American workers.
• Asked about the life goals of those in their age group, most Gen Nexters say their generation's top goals are fortune and fame. Roughly eight-in-ten say people in their generation think getting rich is either the most important, or second most important, goal in their lives. About half say that becoming famous also is valued highly by fellow Gen Nexters.

Woods Hole Marine Aquaculture Taskforce Recommends Strict Regulation

The Marine Aquaculture Taskforce advocates imposition of strict environmental standards on farming fish in U.S. ocean waters.  The stakeholder panel, formed by Woods Hole Oceanographic Institution with financial support from the Pew Trust, predicts rapid expansion of offshore aquaculture operations. Marine Aquaculture Taskforce report  Current aquaculture operations are not ecologically sustainable because farmed fish are fed fishmeal, using 6.6 kg of wild-caught fish to grow 1 kg of farmed fish and fishmeal supply fisheries are fully or overexploited.

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The panel recommends that Congress should put the National Oceanic and Atmospheric Administration (NOAA) in charge and mandate it to evaluate the risks of offshore aquaculture before granting any permits. Major hazards include pollution from excess waste and feed and the risk that escaped fish will harm wild populations.  The panel recommends that non-native fish should not be allowed in coastal or open waters, unless they have been shown to pose no risk. In addition to strict regulations, the panel also suggests market-based incentives to encourage investment in sustainable aquaculture operations.

As the Woods Hole press release indicated:

“There is a growing need for seafood to feed a   hungry world, but the world’s fisheries can no longer meet the demand,” said task force chairman Rear Adm. (ret.) Richard F. Pittenger, former WHOI vice president for Marine Facilities and Operations and a former Oceanographer of the Navy. “Half of our seafood comes from aquaculture, and that share is only going to grow. The federal government has proposed a fivefold increase in U.S. aquaculture production, and while we certainly agree with an increase, we believe it must be done in an environmentally responsible way.”

Noting that marine aquaculture would benefit from clear federal leadership, the task force recommended that Congress should assign a leading role to the National Oceanic and Atmospheric Administration for planning and regulating the industry. On one hand, the permitting and application processes should be streamlined and simplified, and there should be market-based incentives for businesses to invest in sustainable, ecologically sound fish-farming projects. At the same time, environmental risks should be evaluated and best practices should be in place before permits are granted.

In sum, the federal marine aquaculture program should be “precautionary, science-based, socially and economically compatible with affected coastal communities, transparent in decision making,” the Marine Aquaculture Task Force wrote in its final report.

Offshore aquaculture has some natural advantages over coastal fish-farming operations because open-ocean winds, waves, and currents can naturally remove excess feed and wastes. Moving operations offshore also reduces conflict with recreational and real estate interests.

But there are environmental and ecological questions, such as which species should be farmed and where, and what level of discharges from aquaculture facilities can be safely absorbed by the ocean. Some researchers are concerned that domesticated fish—and the medicines and disease outbreaks sometimes associated with high-density fish farms—could threaten natural stocks of fish.

Bird Flu Blues: Tamiflu Rebound Antiviral Resistance???

Martin Enserink, ScienceNOW Daily News reported yesterday on the conceivable hazards of "pandemic Tamiflu use," which might create antiviral resistance or other unknown hazards.  We don't know how quickly Tamiflu will break down in the environment, but it may be very persistent.   Singer, et al built a model to predict likely concentrations in rivers.  While the levels vary widely by river basin, the model predicted levels that could trigger resistance in influenza-infected birds, leading to a second wave pandemic from  a slightly different pandemic strain. In addition, it could inhibit enzymes in other species, causing broader, more difficult to predict, ecological effects. 

Surprise, surprise: 2006 warmest year in the US since 1895

National Oceanic and Atmospheric Administration's (NOAA) preliminary forecast released in mid-December forecast 2006 as the third warmest year on record. See December 16 post  However, NOAA reported today that last year was the warmest in the contiguous United States since record keeping began 112 years ago in 1895. The record was set in part because of extremely warm December weather:  no state was colder than average and five states had record warm weather -- Minnesota, New York, Connecticut, Vermont and New Hampshire.  The average temperature was about 55 degrees Fahrenheit, or 2.2 degrees above the average temperature recorded from 1901 to the end of 2000.  NOAA attributed the record warmth to El Nino and overall global warming, but said "It is unclear how much of the recent anomalous warmth was due to greenhouse-gas-induced warming and how much was due to the El Nino-related circulation pattern."  NOAA preliminary annual report 

How tactful!

ABA SEER Quick Teleconference on Oil and Gas

American Bar Association Section of Environment, Energy, and Resources   Public Lands and Resources and Global Oil and Gas Committees Present a “Quick Teleconference” program New and Upcoming Developments in Offshore Oil and Gas Policy and Law Thursday, January 25, 2007 12:00 p.m. – 1:30 p.m. Eastern Time / 11:00 a.m. – 12:30 p.m. Central Time 10:00 a.m. – 11:30 a.m. Mountain Time / 9:00 a.m. – 10:30 a.m. Pacific Time Program Overview: Panel will describe new agency actions and legislation affecting offshore oil and gas policy, including the new legislation that passed in the final days of the 109th Congress’ lame duck session that opened up over 8 million acres of new lands to oil and gas leasing, lifted leasing moratoria, and set up a system to share royalties with the adjacent states. The panel will also discuss proposed new legislation for the 110th Congress, and the new proposed leasing program for the entire Outer Continental Shelf. (more) Faculty:         Moderator and Panelist:         Kim Harb, National Ocean Industries Association, Washington, DC Panelists:         Renee Orr, Minerals Management Service, Herndon, VA         Peter Schaumberg, Beveridge & Diamond, P.C., Washington, DC Click Here to Register

Another Supreme Court Foray into the ESA

Timothy Sullivan of the ABA SEER Endangered Species Act committee reported on the grant of cert regarding the 9th Circuit ESA case:

On Friday, January 5, 2007, the United States Supreme Court granted petitions for certiorari by the National Association of Home Builders (NAHB) and the United States Environmental Protection Agency in the consolidated cases of National Ass'n of Home Builders v. Defenders of Wildlife and United States Environmental Protection Agency v. Defenders of Wildlife (collectively, "Defenders"), 420 F.3d 946 (9th Cir. 2005).

In Defenders, the Ninth Circuit vacated EPA's decision to approve the transfer of permitting authority under Clean Water Act section 402(b), 33 U.S.C. 1342(b), to the State of Arizona.  Defenders, 420 F.3d at 979.  Although EPA's approval may have complied with the agency's obligations under the Clean Water Act, according to the Ninth Circuit, "compliance with a 'complementary' statute cannot relieve relieve the EPA of its independent obligations under [ESA] section 7(a)(2)." Id. at 971.  The Ninth Circuit thus held that ESA section 7 requires EPA to consider the impact on endangered and threatened species and their habitat when the agency decides to transfer this authority to a state.  Id. at 949.  Because EPA did not consider these impacts when it approved EPA's transfer of Clean Water Act permitting authority to Arizona, the Ninth Circuit held that EPA's approval was erroneous and remanded the matter to EPA.  Id. at 979.

In September 2006, NAHB filed a petition for certiorari in the United States Supreme Court in which it asked the Court to determine

 

Whether a court can append additional criteria to   Section 402(b) of the Clean Water Act that require state NPDES programs to   include protections for endangered species;

Whether Section 7(a)(2) of   the Endangered Species Act constitutes an independent source of authority,   requiring federal agencies to take affirmative action to benefit endangered   species even when an agency's enabling statutes preclude such action; and  

Whether the Ninth Circuit incorrectly applied the holding of Dep't   of Transp. v. Public Citizen, 541 U.S. 752 (2004), in concluding that   EPA's approval of Arizona's NPDES permitting program was the legally relevant   cause of impacts to endangered species resulting from private land use   activities.

In October 2006, EPA filed a petition that asked the Court to determine

 

Whether Section 7(a)(2) of the Endangered Species Act   of 1973, 16 U.S.C. 1536(a)(2), which requires each federal agency to insure   that its actions do not jeopardize the continued existence of a listed   species or modify its critical habitat, overrides statutory mandates   or constraints placed on an agency's discretion by other Acts of   Congress.

The Supreme Court accepted all of these questions and stated that it will consider the following additional question:

 

Whether the court of appeals correctly held that the   Environmental Protection Agency's decision to transfer pollution permitting   authority to Arizona under the Clean Water Act, see 33 U.S.C. §1342(b), was   arbitrary and capricious because it was based on inconsistent   interpretations of Section 7(a)(2) of the Endangered Species Act of 1973, 16   U.S.C. §1536(a)(2); and, if so, whether the court of appeals should have   remanded to the Environmental Protection Agency for further proceedings   without ruling on the interpretation of Section 7(a)(2).

The Court has not yet set a date for oral argument, but it is expected that oral argument will take place in April 2007. 

The cases are Nat. Assn. of Home Builders v. Defenders of Wildlife, et al. (06-340), and EPA v. Defenders of Wildlife, et al. (06-549).