Saturday, October 8, 2011
Prior to the recent birth of our son, my wife and I were discussing a need to use more green products, and especially in the context of household cleaning. We are, of course, interested not only because of health concerns (unsafe chemicals, etc.) but also because we want to support companies that incorporate environmental concerns into their business model. After researching for quite some time we decided that Method products were the best for us.
While I do not usually promote specific products, I thought I would at least highlight a few of the interesting aspects of Method's approach (disclaimer: I am receiving no product placement or other fees from Method :-) ). As highlighted here, though Method started with $300,000 of capital in 2003 they raked in $45 million in revenue by 2006. By 2008 they held 60% of the green cleaning market. Method takes a cradle to cradle approach and their bottles and packaging are almost entirely composed of recycled plastic. The company has made strides toward the goal of becoming carbon neutral and even operates out of a LEED certified facility.
Each year in my Ocean & Coastal Law and Policy class I show "Toxic: Garbage Island," a documentary about the plastic contamination in the Pacific Ocean's North Pacific Gyre, and Method is even taking a stab at addressing that problem. Method recently entered into a partnership with Envision Plastics to create bottles composed in part (25%) from plastic collected from the Gyre (2,000 miles off the west coast), some of which had been floating in the ocean for more than a decade. Though cleaning up the Gyre is a virtual impossibility, and prevention is the only real way to tackle the problem of future ocean contamination, Method's approach takes a step in the right direction - not only in finding alternative sources of plastic but it raising awareness of the plastic pollution problem.
In the end, we like their products not only because they are safer for our family, but because if more companies would take their approach we could secure a safer world for future families.
- Blake Hudson
Friday, October 7, 2011
Press reports released this week suggest that the Department of the Interior will soon issue rules that govern hydraulic fracturing for natural gas and oil on federal lands. This follows a DOI announcement last year that it would develop best management practices for fracturing. The pending issuance of fracturing rules is just one of a number of recent DOI actions that highlight Interior's expanding involvement in energy issues.
Although the DOI has long addressed a range of energy issues through its involvement in onshore and offshore oil and gas leases on federal lands, for example, the rise in proposals to develop alternative energy projects on these lands has pushed the DOI into new territory, and the Department seems to have gladly accepted this role. Its home page advertises in bright letters: "Our Mission: Protecting America’s Great Outdoors and Powering Our Future," and another DOI link boasts: "Under the leadership of Secretary Ken Salazar, we are creating a new energy frontier – one that responsibly develops not only conventional but also renewable resources on our nation’s public lands." The following are examples of recent DOI activities that reflect this growing energy focus, both on cleaning up conventional energy (perhaps I should say "cleaning up," depending on one's faith in revised drilling rules), and on supporting renewable energy:
--In May, the DOI and the U.S. Department of Agriculture published New Energy Frontiers, a report to Congress that described the agencies' approaches to "rais[ing] the bar for safety and environmental responsibility" in oil and gas production--which some have argued are inadequate--and to developing a "renewable energy strategy."
--The Department of Energy and the DOI have issued a "National Offshore Wind Strategy" aimed at "creating an offshore wind energy industry in the United States."
--In 2010, Secretary Salazar approved the Cape Wind offshore wind project, which will include some mitigation measures to respond to concerns voiced by the Advisory Council on Historic Preservation and Native American tribes.
--Secretary Salazar has approved solar projects and associated transmission for solar energy on federal lands, and the DOI has participated in preparing a Programmatic Environmental Impact Statement for utility-scale solar on federal lands.
--The Fish and Wildlife Service is continuing to work on its Revised Draft Voluntary Land-Based Wind Energy Guidelines.
No matter one's perspective on the adequacy of these measures--both in terms of moving us toward well-managed renewable energy and cleaning up nonrenewable sources--we can perhaps at least agree that DOI is trying.
Wednesday, October 5, 2011
On Monday, the Supreme Court caught environmental lawyers’ attention when it asked the Solicitor General to weigh in on three pending environmental cases (some discussion here). Less noticed, though still noteworthy , was the Court’s denial of cert in a case called National Association of Home Builders v. San Joaquin Valley Unified Air Pollution Control District.
The case involved the issuance by the San Joaquin Valley Air Pollution Control District (the acronym, which just rolls off the tongue, is SJVAPCD) of an “indirect source rule,” which would integrate regulation of development projects into the SJVUAPCD's portion of California’s state implementation plan (in California, regional air districts carry the laboring oar in building the state’s SIPs). The NAHB challenged that rule. First at the district court level and then at the Ninth Circuit, the SJVAPCD and its environmental group supporters prevailed. The Supreme Court’s cert denial brings the case to a close.
The Ninth Circuit opinions (Judge Betty Fletcher wrote for the court; Judge Norman Randy Smith concurred in part and dissented in part) are all about preemption. NAHB sought, unsuccessfully, to argue that the controls on development were really just controls on non-road vehicles, and therefore were preempted under sections 209(e)(1) and 209(e)(2) of the CAA. The SJVAPCD countered that its rule really was properly classified as an indirect source rule, and therefore was permissible under CAA section 110(a)(5). The analysis turns on the intricacies of the Clean Air Act; if you loved reading Engine Manufacturers Association v. South Coast Air Quality Management District, 541 U.S. 246 (2004) you’ll love this too. What I find more interesting about the case, and the rule subject to challenge, is its significance as a marker of the reintegration of air quality regulation and land use planning.
The challenged rule resurrected (and improved upon) an old idea. In the 1970s, EPA attempted to compel states to include development controls in their air quality regulatory programs. When the states refused to do so, EPA tried to impose those controls directly. The attempts (which, in hindsight, look somewhat ham-handed) were politically disastrous, and Congress quickly acted to limit EPA’s authority to compel states to address the connections between land use planning and development and air quality compliance (for discussion of these attempts, see Patrick Del Duca and Daniel Mansueto, Indirect Source Controls: An Intersection of Air Quality Management and Land Use Regulation, 24 Loy. L.A. L. Rev. 1131, 1149-55 (1991); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1203-07 (1977)). For decades since, land use planning and air quality planning have proceeded on largely separate tracks. Both are closely linked to transportation planning, but states generally did little to compel more direct connections. EPA eventually offered guidance on addressing land use planning in SIPs, but never did more than just make the option available.
For the San Joaquin Valley, those separate tracks eventually proved untenable. The valley’s climate and geography make it just as ideal for growing ozone as for almonds, and emission levels that might not pose problems in cooler, cloudier, and better-ventilated regions can quickly create intense smog. By the mid-1990s, the area had some of the worst air quality in the country, and attempts to improve that air quality brought disappointing results. Add in a growing population and a housing market that until recently was booming, and air quality regulators concluded that they had little choice but to address the development/air quality interface.
The approach they pioneered may soon have imitators. The Bay Area Air Quality Management District, which regulates air quality in the San Francisco Bay Area, already has indicated its interest in creating a similar rule. Many other areas of the country also seem like candidates to follow suit, particularly if the ozone NAAQS eventually is revised downward. Household energy consumption, vehicle miles traveled, and pollutant emissions are all linked, and air quality regulators in many other regions may have no option but to confront the connections. That confrontation will not come easily, for accepting greater environmental regulation of development—particularly regulation stemming from federal law—will not sit well in the current political climate. Nevertheless, with this case brought to a close, one potential obstacle to greater integration of air quality protection and land use planning has been removed.
- Dave Owen
Tuesday, October 4, 2011
Several days ago at Legal Planet, Dan Farber discussed a recent article in the American Economic Review that shows that coal-fired power plants in the US have air pollution damages larger than their value added. I have run across a couple other excellent sources recently that also give a great sense of just how dirty and harmful coal-fired power plants are. In 2010, the National Research Council published a study titled “Hidden Costs of Energy: Unpriced Consequences of Energy Production and Use.” The NRC found that the aggregate damages from SO2, NOx and particulate matter from coal-fired power plants in 2005 were about $62 billion, or $156 million on average per plant (a median cost of 3.2 cents/kWh). And this doesn’t even include the hidden costs of other parts of the coal lifecycle, such as pollution from coal mining. A 2011 study out of Harvard Medical School calculated the lifecycle costs of coal at 17.84 cents/kWh.
The NRC also discussed and made a very preliminary estimate of the climate-related damages of coal-fired power plants. Choosing $30/ton as the social cost of carbon, the NRC calculated climate-related damages at an additional 3 cents/kWh. But $30/ton is a pretty conservative estimate of the social cost of carbon. It’s a bit higher than the US government’s $21/metric ton estimate but lower than UK’s range of $41 – $124. Also, a recent analysis by Frank Ackerman and Elizabeth Stanton suggests the social cost of carbon could be as high as $900 in 2010 and $1,500 in 2050.
Based on the NRC's analysis, we are bearing a cost of 6 cents in pollution damages for every kWh of electricity produced with coal, which gets close to the difference in cost between what is often referred to as “cheap energy” from coal and “expensive energy” from solar. (Wind is in many cases cost-competitive with coal without considering the 6 cents/kWh in pollution costs - see a comparison of costs here). If we factor in the full lifecycle costs of coal and a more realistic social cost of carbon, renewable energy looks downright cheap.
- Lesley McAllister
Monday, October 3, 2011
I just spent the weekend in Oregon at a beautiful memorial event for Keith Aoki. The University of Oregon School of Law and Wayne Morse Center for Law and Politics, where he was to have been a visiting scholar this fall, hosted a wonderful symposium in which we reflected upon Keith’s intellectual legacy followed by a more personal remembrance of Keith and a Garden Weasel (Keith’s band) performance.
I found being there both good and hard. While it would be difficult to overstate the intellectual debt that I owe Keith and I appreciated the opportunity to reflect on the tremendous insights of his written work and on his scholarly legacy, what I value most about Keith and miss most about him was his capacity to be there for me and others when they are most vulnerable. He had this unique capacity to lift people up and make people find the best inside themselves, and a knack for knowing when they needed it most. Keith was there for me during my hardest moments over the last several years, as a friend and mentor, and I would not be where or who I am without him. People told story after story about that experience of Keith.
This summer and fall has been the first time that I have tried to help people in the academy in their moments of vulnerability (transitions into and within institutions, tenure and promotion, difficult situations, etc.) without Keith’s wisdom illuminating my path. It’s been sad and lonely, and what’s gotten me through is trying to find the place from which Keith was there for others and rehearing in my head what he would say. What helped me most this past weekend, surrounded by old and new friends who were better for having had Keith in their life, was feeling the way in which his loving kindness, embrace of hard reality, and unique artistic, intellectual capacity continues to touch the world through the way he changed those who were lucky enough to have had him be there for them.
In that vein, and knowing that our legal academic institutions are in the throes of hiring and tenure processes this fall, I want to share a thought from that Saturday night personal discussion about vulnerability. One of the things that makes people so vulnerable as they go through the legal academy is that there is a sense in which our colleagues are not just judging our work, but judging us. In each of our institutions, right now, there are students, staff, and faculty who feel vulnerable, who feel like they cannot be public about their vulnerability for fear of being judged, and who feel lonely and afraid. It is hard to reach out when you feel that way. And the world tends to surround us with support and affirmation more easily in our less vulnerable moments. Keith knew that and was always there to lend a hand.
Especially for those of us lucky enough to be in faculty positions with the security of tenure, I hope that we can honor Keith’s memory in part by channeling his capacity to support people in vulnerability. Sometimes in our rush to judge excellence, we forget to believe in people in ways that allow them to reach their potential and, in the process, leave deep scars. I know from Keith that we can simultaneously demand excellence and help people get there. For every tenure denial, there are countless people who are made unnecessarily to feel afraid and inadequate before they pass through that ring of fire upon which so much hinges. I hear new stories every week from many different institutions around the country and I have lived my own version of that vulnerability at several points in my pre-tenure career.
I am so grateful to have had Keith in those moments and for the efforts on personal, faculty, and national levels by so many who I won’t name out of respect for confidentiality—Keith playfully called that group “ninjas” with all of that word’s complex connotations—to create a culture and rules around decency and respect. I hope that over time we, in the broadest definition of our community, get better at nurturing the people around us and finding the best in them like Keith did, to pay forward that gift he gave so generously and freely.