December 9, 2011
Congress's New...eh...Compostable Clothes?
Here is one to keep some of us from wearing the same "lucky" shirt over and over without end: compostable clothing. That is the new direction in which Puma hopes to take their clothing line. Puma has already committed to phasing out hazardous chemicals from it's supply chain and has replaced its energy and resource intensive shoe-box manufacturing with a reusable bag model. Puma's leader Franz Koch states that "in the near future we will be able to bring the first shoes, T-shirts and bags, that are either compostable or recyclable, to the market."
Puma, of course, is not the first to experiment with compostable clothing. As noted here:
"A Japanese microbiologist has come up with a Spud Coat, a raincoat made of bioplastic
derived from potato starch - it is 100 percent biodegradable and compostable. It even comes with a seed-bomb integrated into its fabric that will sprout a vegetable garden once the coat breaks down. At Miami Swim Week this year, Linda Loudermilk debuted a completely compostable swimsuit made from plant starch."
In the tale of "The Emperor's New Clothes," tailors design clothes that they declare are invisible to those who are unfit for their positions, hopelessly stupid, or incompetent. The Emperor "puts them on," pretending that he can see them out of fear that he will be perceived as incompetent. Dare I say we might see some members of the current Congress sporting compostable (or rapidly composting) Puma gear before too long?
- Blake Hudson
December 8, 2011
For water law geeks, this week brought some big news. On Monday, the Judge Wiese of the Court of Federal Claims dismissed Casitas Municipal Water District v. United States. The case was arguably the highest profile water rights/takings case working its way through state or federal courts. Now it’s over, at least until the next appeal.
Saying the case was factually and legally complex is a bit like describing War and Peace as a long book, so I’ll spare you most the details. In essence, the Casitas was arguing that the Endangered Species Act caused a taking of its water rights. The federal government’s first line of defense was an argument that the taking should be analyzed as a regulatory taking under the Penn Central framework. Judge Wiese (who previously had authored Tulare Lake Water Basin Storage District v. United States, 49 Fed. Cl. 313 (2001)) accepted that argument, albeit rather grudgingly, but the Federal Circuit reversed. That forced the United States and its allies to use several backup arguments.
One of those arguments, which ultimately carried the day, was that Casitas had suffered no taking because the restrictions had never limited Casitas’s ability to put water to beneficial use. Casitas’s ability to divert water had been limited, and Casitas argued that the extent of the taking should be measured by subtracting the amount of water it actually did divert from the amount it claimed it could have diverted had there been no restriction, and then multiplying that total by the value of the water. By that method, Casitas produced a $87,300,000 takings claim, which even in the world of western water is no small sum. The government, however, pointed out that Casitas operates a large reservoir, which had allowed it to weather the restrictions without ever limiting service to anyone. Casitas, in other words, was asking for compensation for water its customers hadn’t even tried to put to use. Because putting water to beneficial use is an essential element of an appropriative water right, the court held that Casitas had not yet suffered a taking, and that its claim therefore was unripe.
The government also tried a background principles/public trust defense, and that didn’t fare so well. Without getting too far into the details (the opinion contains a more detailed discussion of California’s public trust doctrine than any published decision in decades), here’s the summary: the court held that while Casitas’ water use did adversely affect public trust resources, and while the feds had acted to protect those public trust resources, the public trust doctrine did not provide the federal government with a defense, because it wasn’t clear that the federal government’s actions were in the public interest. Yet, interestingly, the court also stated (in an extended advisory section explaining exactly how the court would go about deciding a ripe future claim) that the California State Water Resources Control Board can invoke the public trust doctrine and change Casitas’s water rights if it pleases.
That’s intriguing. What the court seems to be saying is that even though courts and the California State Water Resources Control Board have concurrent jurisdiction to implement the public trust doctrine, the Board has broader discretion to invoke the doctrine as a basis for environmental protection, and could even overrule the court’s application of the doctrine to this set of facts. In a strange sense, it’s almost like Chevron or Brand X for the public trust doctrine, with the court granting an agency much broader latitude in interpreting and applying legal doctrine than the court claims for itself (at least if that excercise of discretion involves tinkering with existing water use practices). To administrative lawyers, that may seem rather unsurprising, for most environmental law works that way. But the public trust doctrine has traditionally been thought of as a judicially-defined doctrine, and an opportunity, as Joe Sax long ago put it, for “effective judicial intervention.” The Court of Claims seems to have been rather uncomfortable with that approach.
If you’re interested in knowing more, I highly recommend reading the decision. I do not agree with all of it, but I found it well written, carefully reasoned, and thorough, and I think water lawyers will be discussing it for a long time. Also, keep an eye out for an upcoming UC Davis Law Review symposium issue on the public trust doctrine. Several articles, including one that I’m now scrambling to update, will discuss these very issues.
December 6, 2011
The 1% and Environmental Protection
How does wealth inequality affect environmental protection? The environmental justice movement (and related scholarship) has done a good job of elaborating one way that wealth inequality matters for environmental protection. It has shown that environmental protection policy tends to favor wealthier and more powerful contingents of society. Environmental justice has, however, often missed another important dimension. As far as I know, it has not focused on whether environmental protection declines as wealth inequality increases. I suspect that this is the case, and it worries me in light of the growing inequality of the US.
First, let’s be reminded of the growing inequality. According to a great piece by Joseph Stiglitz last May in Vanity Fair, “Of the 1%, by the 1%, for the 1%”: "The upper 1 percent of Americans are now taking in nearly a quarter of the nation’s income every year. In terms of wealth rather than income, the top 1 percent control 40 percent… Twenty-five years ago, the corresponding figures were 12 percent and 33 percent.”
So what are the implications of the growing income and wealth inequality for the level of environmental protection? A couple possibilities occur to me:
• As the wealthy develop private substitutes for public goods (i.e. bottled water instead of clean drinking water; gated community parks instead of public parks), less political pressure is exerted to provide public goods.
• Inequality weakens social cohesion and effective democracy, both of which are likely to favor the passage of needed environmental protection laws.
Given this and the many connections between corporate power and environmental degradation, it seems to me that there's a lot for environmental advocates to like about the Occupy Wall Street movement.
- Lesley McAllister
December 5, 2011
Climate Change and College Football: Alabama vs. Louisiana State
This comic raises an important (ok, maybe just an interesting) question - what IF climate change threatened college football? If so, there is little doubt in my mind that folks, especially here in the South, would become very concerned very quickly about climate change. So, let's frame the debate in those terms, and use forests to do so. What is the most obvious college football match-up to use for this framing? Why, the 2012 BCS National Championship, of course, pitting the Alabama Crimson Tide (my favorite team and non-environment-related hobby) versus the Louisiana State University Tigers.
Take these facts from the Alabama Forestry Commission on the importance of forests to the state of Alabama:
- There are 22.7 million acres of timberland in Alabama, accounting for 68% of the total land area in the state.
- Alabama has the third most timberland acreage in the 48 contiguous states, behind only Georgia and Oregon.
- As far as private timberland acreage is concerned, Alabama ranks second behind Georgia.
- 82% of timberland acreage is owned by non-industrial private landowners.
- The forest industry is the state’s largest manufacturing industry, producing an estimated $15.39 billion worth of products in 2005.
- There are approximately 650 active forest products manufacturing operations in the state.
- Forests cover 14 million acres, or about 50% of Louisiana's land area, making it the greatest single land use in the state.
- Over 148,000 entities own Louisiana forests. Private non-industrial landowners own 81% of the state's forestland, forest products industries own 10% and the public owns 9%.
- In 2010, forestry accounted for 57% of the total value of all plant commodities grown in Louisiana and contributes 31% of the value of Louisiana's agricultural commodities.
- The impact of forestry and forest-products industries on the Louisiana economy in 2010 was $3.1 billion.
- Louisiana forest landowners received $396.8 million in 2010, while timber contractors and their employees earned $426.6 million.
- Forest industries are the second largest manufacturing employers in Louisiana, providing about 12,694 jobs.
So, what happens when these crucial forests are threatened? I've already posted about the value of forests in general, and about how climate change may result in shifting forest habitats across fairly rapid times scales (geologically speaking). I've also posted about a recent U.S. Forest Service report detailing the projected impacts that population growth and urbanization will have on southeastern forests over the next 50 years, reducing them by as much as 23 million acres (or 13%) - this is an amount equal to the entire forest acreage in the states of Alabama or Georgia. Given that forest destruction and degradation are responsible for 20% of annual global carbon emissions, while forests concomitantly sequester one-third of carbon emissions annually, the projected loss of southeastern forests could have profound impacts on carbon emissions in the U.S. While we typically think of the developing world as the location of most forest destruction, without a change in course we will see it occur literally in our own back yards.
The pride of states like Alabama and Louisiana has a far deeper history in the natural resources available in those states than it does in storied football programs. Forests have always been a crucial part of these states economic and ecological welfare, giving rise not only to a bustling industry in forest products, but also a diverse suite of recreational activities associated with the environment, from fishing and hunting to hiking and camping. Forests also happen to be a crucial resource needed to combat climate change, in addition to providing a variety of other values such as increased air quality, watershed protection, and biodiversity. It seems clear that planting a forest, or not cutting one down, is a far more cost-effective way of sequestering carbon than placing restrictions on industrial emissions (not that the latter should not be utilized - I am only asserting that preserving natural carbon sinks is more cost effective, a key point in the current political climate). So hopefully we can think more carefully and critically about all of the cultural aspects of our forested states that are worth preserving - both college football and preservation of crucial resources like Alabama and Louisiana forests.
- Blake Hudson