November 19, 2011
In Case You Missed It: Week of November 13-19
The IPCC released a Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation finding that extreme weather will increase with climate change. (The 29-page Summary for Policymakers is here; the full report will be available in February.) (Washington Post)
The BBC will air a seven-episode Frozen Planet mini-series in Britain focusing on arctic wildlife, the last of which deals with climate change. Viewers in other countries, including the US, will reportedly only see the first six episodes because the BBC has made purchase of the seventh episode optional to increase sales. (telegraph.co.uk)
The Obama administration proposed fuel economy standards that would almost double the average gas mileage for each automaker's passenger vehicle fleet to 54.5 miles per gallon by 2025 (LA Times)
The Atlantic State Marine Fisheries Commission (ASMFC) reduced the allowable catch of menhaden (used to make fish meal) by 37 percent by 2013. Due to overfishing, the menhaden fish population has fallen 92 percent from historical levels. (mongabay.com)
The NY Times analyzed how the Obama Administration’s September decision not to strengthen the ozone standard was influenced by re-election campaign strategy.
November 17, 2011
The Penobscot River Restoration Project
Dam removals have featured prominently in the news of late, with the Condit and Elwha Dams both coming down (cool footage here; notice the uncanny resemblance between the first rush of water and the smoke monster from Lost) and with Klamath dam removal legislation now introduced in Congress. That makes this as good a time as any to highlight another major dam removal project in my home state of Maine.
The project involves the Penobscot River, which begins near Mount Katahdin (the northern terminus of the Appalachian Trail) and discharges west of Acadia National Park. In between, the river drains a lot of high quality habitat (such as the tributary shown at left; the photo is from the Penobscot River Restoration Trust's website) but also flows through a series of dams. Many of the dams are quite old and lack fish passage facilities. While the river still supports some fisheries, including a run of endangered Atlantic salmon, its diadromous fish runs are a small fraction of their historical scale.
For years, the Penobscot River Restoration Trust, a partnership between several environmental groups and the Penobscot Indian Nation, has worked with PPL Corporation, which owns several of the dams, on a restoration project. The details are described on the Trust's website, and in several articles written by some of the project participants (examples here, here, and here), and I'll just give a quick summary. The river's two lowermost dams will be removed. A third dam will be decommissioned, and will be left in place with improved fish passage facilities. Four other dams will also receive fish passage improvements while continuing to operate. Normally dam removal projects involve trading habitat gain for the loss of a non-polluting energy source, but here, PPL Corporation will be allowed to boost hydropower capacity at six remaining dams, effectively offsetting the capacity lost through dam removals and decommissioning (PPL also will receive a large amount of money, which the trust members obtained through a major fundraising effort). The net effect will be dramatic: by planning at a basin-wide scale, rather than one dam at a time, the participants will achieve a huge increase in habitat accessibility with little or no loss of power production capacity.
Image from Jeffrey J. Opperman et al., The Penobscot River, Maine, USA: A Basin-Scale Approach to Balancing Power Generation and Ecosystem Restoration, 16 Ecology and Society 7 (2011). Thanks to Colin Apse for sending me the image.
There's much, much more to be said about the project, and it will likely be the subject of much more academic analysis (teams already are working on before-and-after studies of the project's effects; one example already is documented here). I'd encourage anyone interested in renewable energy generation, endangered species protection, large-scale ecosystem restoration, or collaborative environmental decision-making to check the Penobscot project out. It's a really exciting effort.
What Perry's Oops Moment Might Mean for the Nation and EPA
Over the past week or so, there has been much talk about what Governor Rick Perry's oops moment might mean for his campaign. For those unfamiliar with the situation--such as those who have just come out of a deep comma--let me briefly recap.
In a debate a week ago Wednesday, Perry could only remember two of the three government agencies that he had proposed to eliminate. After stumbling and fumbling to buy time, he had to admit he could not remember the third agency he would eliminate. He ended his answer by slightly shrugging and saying "oops." For those of you who have not seen it or for those who have the stomach to watch it again, here it is:
Many have speculated that his oops moment effectively ended Perry's chances of becoming the Republican nominee. That probably is the case, but so what? Perry did not have much of a chance even before this slip up. Why? Three reasons. First, he was already tanking in the polls. Second, he was unable to keep up with the other candidates in the debates. And, third... um... I can't remember... (Oops.) But, regardless, I thought his chances were slim at best.
So to me, the most important part of this moment was not seeing Perry implode but rather seeing the other candidates respond to it. In particularly, I wondered how Governor Mitt Romney would respond, after all he is largely considered the front runner for the nomination.
So, what was Romney's response? In the moment, Romney tried to throw Perry a lifeline by suggesting that perhaps Perry meant EPA. Perry tried to fake for a second that EPA was the agency he was trying to remember before admitting he could not come up with it.
My question is, what does Romney's suggestion of EPA tell us about how Romney perceives EPA? Maybe it says nothing, but maybe it says a lot. Up to this point, Romney has not taken as an extreme line as some of the other candidates in opposing EPA's policies, programs, or even its existence. While his suggestion that Perry may have meant EPA is a far cry from Romney calling for the elimination of EPA, the fact that this was the agency that came to Romney's mind is worrying to me. As someone who cares a lot about the work EPA does, I want to avoid the situation where the nation has its own oops moment and elects a president who might support the elimination of one of its most popular agencies.
-- Brigham Daniels
November 16, 2011
Call for Articles - Fordham Environmental Law Review
In celebration of the 40th Anniversary of the Clean Water Act, the Fordham Environmental Law Review plans to publish an issue devoted to water. They have issued a call for papers, with a deadline of December 15, 2011. The details follow:
CALL FOR ARTICLE PROPOSALS
The Fordham Environmental Law Review will devote its Spring 2012 issue (Vol. 23.2) to articles on Water, in recognition of the 40th anniversary of the Clean Water Act.
The editors of the ELR are looking for articles discussing a range of environmental, natural resource, energy law, and policy topics associated with issues of water and riparian rights. Articles may address state, national, or international issues. Suggested topics include:
- Clean Water Act
- Waste water treatment and disposal
- Citizen suits
- Invasive Species
- Conflicts between federal and state rights
- Congressional activism on environmental/ energy/resource issues
- Environmental enforcement at the federal, state and local level
- EPA and Surface Mining Act
- Agency issues
- Congress v. Agencies
- Role of science
- Cross-jurisdictional consistency/standards
ARTICLE PROPOSALS ARE DUE BY December 15, 2011.
Authors will work with an editor from the ELR Board throughout the publication process. Articles should be between 8,000 and 25,000 words and should be written in standard legal journal style (footnotes conform to The Bluebook: A Uniform System of Citation). ELR article guidelines can be found on the ELR website at: http://law.fordham.edu/fordham-environmental-law-review/5518.htm.
Contact: Lee Van Put, Senior Notes & Articles Editor, Fordham Environmental Law Review
Fifth Circuit Mulls Katrina Flood Ruling
Today’s question: When are flood waters not “flood waters”? We New Orleanians have become fluent in all things subaqueous; last week three Texans sitting on the Fifth Circuit Court of Appeals took their turn.
Yes, we’re talking about Katrina. Or, more specifically, its flood waters, which busted federal levees in fifty places, swamped 80% of New Orleans, and caused 800 deaths in the urban area. It is beyond argument that federal malfeasance played a key role. But sovereign immunity under the 1928 Flood Control Act (FCA) seemed sure to prevent residents from pursuing any flood-based claims against their government.
Yet as recent developments suggest, the case for immunity may not be nearly so open and shut.
Back in the 1920s, when the federal government assumed responsibility for levees on the Lower Mississippi, Congress worried that such a mammoth endeavor could expose the country to overwhelming liability. So they wrote into the FCA an immunity provision: “[no] liability of any kind shall attach to . . . the United States for any damage from or by floods or flood waters at any place.” This sweeping language has proved remarkably steadfast, if not occasionally abhorrent. Take, for instance, the time when federal operators idiotically opened floodgates of a recreational reservoir without first warning a group of waterskiers, one of whom was summarily sucked down the vortex and killed. In James v. United States(1986)a majority of the Supreme Court found government immunity too clear to avoid, leaving a trio of dissenting justices wailing about an outcome they called both “perverse” and “barbaric.”
But I digress.
The point is that after Katrina many assumed FCA immunity would shield the Corps from any responsibility for its wrongdoing. That changed in 2009 when federal trial judge Stanwood Duval held that the government’s broad immunity had limits. The case involved claims by residents in the New Orleans area for damages resulting from storm surge allegedly funneled through the Mississippi River Gulf Outlet, a now de-authorized navigation channel that locals called, “Mr. Go.” Plaintiffs assert that the Corps' negligence in design, construction, and maintenance of Mr. Go increased Katrina’s surge and made the levees more vulnerable than they otherwise would have been.
After an endless trial, Judge Duval found that the most important facts alleged by plaintiffs were all essentially true and that the Corps had been serially negligent. On the government’s assertion of FCA immunity, Duval wasn’t buying. Such immunity, the judge explained, did not cover harm caused by negligence unrelated to flood control management. Put another way, flood waters in everyday language are not “flood waters” in FCA language, unless their damage flows from a mishandled flood control project. And because Mr. Go was a navigation project, not a flood control project, the Corps’s immunity was gone.
Judge Duval awarded a total of $720,000 in damages to five plaintiffs, and the government appealed.
And so, last Wednesday a thoughtful Fifth Circuit panel (Judges Jerry Smith, Edward Prado and Jennifer Walker Elrod) pondered once again the fluid meaning of the term, “flood waters.” (Judge Duval had also rejected a second theory of immunity based on agency discretion, but that holding did not seem to interest the panel much.) (You can listen to the panel’s argument here.)
Now, as you have probably already figured out, this case is about way more than $720,000. The Army Corps has already received around half a million administrative claims from flood victims alleging similar facts. If the Fifth Circuit sides with the plaintiffs (and is not reversed on appeal) the precedent could leave the government on the hook for billions of dollars in future damages.
Plaintiffs’ lawyer Pierce O’Donnell reminded the court that FCA immunity has not always proved immovable. The Supreme Court, in Central Green Co. v. United States (2001), distinguished between irrigation water and flood-control water to hold the government liable for flood damage arising from negligent operation of an irrigation project. If you call Mr. Go’s surge “navigation water,” Mr. O’Donnell suggested, the plaintiffs win. Besides, he noted, there’s Graci v. United States(1969), a trial court decision the Fifth Circuit had itself affirmed years ago, that specifically holds that flood damage from the mishandling of a navigation project does not bring immunity.
Justice Department lawyer Mark Stern insisted instead that the statute’s plain meaning must control. But from the bench, hypotheticals came flying. What if federal construction workers accidently weaken a nearby levee and it breaks, does immunity accompany that kind of flood water? What about a naval ship that smashes through a levee? Or an Air Force jet that crashes through a levee? Or a scrap of the Hubble Telescope that sails out of orbit, screams through the atmosphere, and vaporizes a levee? (O.K., I made the last one up, but you see where this is going.)
And, by the way, what does the court do with Graci, that child of the ‘60s, which seems, after all, so directly on point? The court really doesn’t know what to do with Graci. No one even knows how to pronounce it. At one point an exasperated judge asked for a show of hands on whether one should say “GRAY-see” or “GRAS-ee.” Even after that, the parties couldn’t keep it straight.
Guest post written by Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans (bio). His recent book, "Facing Catastrophe: Environmental Action for a Post-Katrina World," will soon be available in paperback. This post was cross-posted on the Center for Progressive Reform blog.
November 15, 2011
Strategies for Dialogue Across Disciplines: University of Minnesota's Institute on the Environment's "Outburst!"
I am currently sitting and learning at the University of Minnesota's Institute on the Environment's "Outburst!" event. If you'd like to come join in, you can link into the live stream. It's a very interesting model for encouraging interdisciplinary interchange through which many of the Institute's residential fellows present for 3 to 5 minutes about their projects. Presenters are from a wide range of departments and entities, including: Applied Economics; Agronomy & Plant Genomics; Bioproducts/Biosystems Engineering; the Center for Sustainable Building Research; Chemistry; Computer Science and Engineering; Civil Engineering; Ecology, Evolution & Behavior; Epidemiology and Community Health; Environmental Health Sciences; Fisheries, Wildlife, and Conservation Biology; Geography; Law; Plant Biology; the Science Museum of Minnesota; Science, Technology & Public Policy; and Soil, Water, and Climate. The presentations allow people to quickly get a sense of each other's research, which then can seed future connections. I'd welcome your comments and strategies for creating dialogue across disciplines and will highlight some others in future posts.
Duke Society of American Foresters Fall 2011 Forestry Symposium
The Duke Society of American Foresters Fall 2011 Forestry Symposium will be taking place Friday, November 18, 2011. See the announcement here.
"Get Ready for our Fall symposium!! Please join us on Friday, November 18, 2011 for 'From Research to Reality: Exploring how Biomass, Climate Change and Forest Technology are affecting the forests of the Southeast,' featuring keynote speaker, Dr. David Wear, lead author of the Southern Forest Futures Project."
- Blake Hudson
November 14, 2011
Participate in The Economist’s Debate about Subsidies for Renewables
Beginning last week and extending through this week, The Economist is hosting on online Debate on the following assertion, "This house believes that subsidising renewable energy is a good way to wean the world off fossil fuels." Here’s how an Economist Debate works:
"Economist Debates adapt the Oxford style of debating to an online forum. The format was made famous by the 186-year-old Oxford Union and has been practised by heads of state, prominent intellectuals and galvanising figures from across the cultural spectrum. It revolves around an assertion that is defended on one side (the "proposer") and assailed on another (the "opposition") in a contest hosted and overseen by a moderator. … Those attending an Oxford-style debate participate in two ways: by voting to determine the debate’s winner and by addressing comments to the moderator. The same holds here. As a reader, you are encouraged to vote. As long as the debate is open, you may change your vote as many times as you change your mind. And you are encouraged to air your own views by sending comments to the moderator… who will single out the most compelling for discussion by the speakers."
Opening statements were last Tuesday, and closing statements are tomorrow. Currently, the opposition is winning: only 47% of voters have agreed with the assertion. I encourage you to check it out and vote by Friday (GMT) when the votes will determine the final outcome.
And if you like participating in such debates, you will be glad to learn that the assertion to be debated next (from Nov. 22 to Dec. 2) is also very relevant: "This house believes that climate control policies cannot rely on carbon capture and storage."
- Lesley McAllister
Chopsticks Destroy Forests, While Toymakers Save Them
I couldn't help but link up these two items within the same post. Chopsticks and toys - who would think that these common items would implicate forest resources to a great degree?
How many trees does it take to produce China's chopstick demand for one year? 3.8 million trees. It takes 3.8 million trees to manufacture 57 billion pair of disposable chopsticks. And this is only half of the chopstick demand worldwide, according to an article in the New York Times. The article goes on to state that: "Chopsticks add to a plague of regional deforestation. According to a 2008 United Nations report, 10,800 square miles of Asian forest are disappearing each year, a trend that must be arrested to fight climate change, given the vital role trees play in absorbing carbon dioxide." Not only do chopsticks threaten the forests, but also may lead to human health risks as "industrial-grade sulfur, paraffin, hydrogen peroxide and insect repellent are among the harmful chemicals that Chinese media investigations have exposed during production. . . Paraffin is a known carcinogen, and hydrogen peroxide can harm the digestive system. Chopsticks irresponsibly disposed of can contaminate water and soil quality." Of course, the alternative to disposable wooden chopsticks are plastic reusable ones. I have opined about the sometimes greater, sometimes lesser of evils plastic products seem to present here, here, here, and here. Yet again, plastic usage vs. consumption of other natural resources provides a trade-off. All of the problems that go with the chemicals and petroleum products used to make plastics may be worth a trade for leaving 10,800 square miles of Asian forest intact each year - especially considering the role of forests in combating climate change. Furthermore, plastic chopsticks sequester carbon and store it away (virtually) forever, given how long plastic persists in our environment. But who knew my frequent trips to Pei Wei were fraught with such a choice of evils: use plastic forks that persist in the environment forever, contribute to land waste issues, and contain harmful chemicals, or use disposable chopsticks that destroy important forest resources. And all I wanted to do was enjoy my Honey Seared Chicken.
Meanwhile, toymaker Hasbro has taken steps to fight deforestation. Hasbro is the second largest toy company in the U.S. and has recently introduced a new packaging policy that no longer uses forest products from deforested rainforest. Mongabay reports that Hasbro made the policy shift in response to a Greenpeace campaign that targeted toy companies who use packaging manufactured from deforested rainforest. Mattel and Lego have undertaken similar measures. The campaign specifically targeted Asia Pulp & Paper, a company blamed for leading to rainforest destruction in the Indonesian island of Sumatra, home of the Sumatran tiger - the last Indonesian tiger.
So when you eat Asian food, consider your choice of utensil carefully. And when you consider which toy to buy as a birthday gift, consider the company that produces it. Each of these choices can impact forest resources across the globe - forests that provide innumerable benefits, not the least of which is perhaps the easiest means of combating climate change through carbon sequestration (forest destruction and degradation, after all, account for 20 percent of carbon emissions worldwide each year - more than is emitted by the transportation sector).
- Blake Hudson
November 13, 2011
In Case You Missed It - Week of November 6-12
* The White House's Office of Management and Budget began reviewing greenhouse gas and toxics rules for power plants.
*The REINS Act, which would have fundamentally changed federal rulemaking processes, died as the Senate declined to approve the larger infrastructure bill in which the REINS Act was included.
*Electricite de France, one of the world's largest utilities, was found guilty of illegally spying on Greenpeace.
*The Obama Administration postponed its decision on the Keystone XL Pipeline until after the 2012 election.