Thursday, November 29, 2012
As noted here on this blog several months ago, the New Jersey Supreme Court granted certiorari in the important takings dispute of Borough of Harvey Cedars v. Karan. It appears that Hurricane Sandy may prove to play a role in the case’s resolution.
The decision on appeal upheld a $375,000 takings award to an oceanfront homeowner who had refused to convey an easement to allow beach and dune replenishment at the Borough’s offered condemnation price of $300. A jury had fashioned this award based on the claim that the replenishment increased the height of the dune and thereby reduced the value of the claimant’s property by impairing the claimant's view of the water.
In a simultaneously ironic and eerily predictable twist, the Asbury Park Press reported this week that the replenished dune appears to have saved the claimant’s $1.7 million home from Hurricane Sandy’s wrath. Dunes do not repel storm surge but rather generally serve as sacrificial lambs. Here, the surge from Sandy washed away much of the replenished dune seaward of the claimant's home, but left the home itself intact.
That the Borough’s replenished dunes provided the shore protection experts had predicted has only served to increase the tensions surrounding this controversial property rights case. According to the Press, the Borough’s Mayor, Jonathan Oldham, stated that “50 percent of the dune is gone in the northern part of the township, while in the southern section of the borough there is only 15 percent left. All of this fighting about the easements is short-sighted, when you realize what could have happened.” Yet attorney Kenneth Porro, who represents several oceanfront landowners on Long Beach Island, is reported as asserting, “The oceanfront property owners are not villains. The real villains here are the government officials who blatantly disregard our inherent constitutional and civil rights and are attempting to use the devastation of the storm to cover up their unconstitutional acts.”
The case presents an important opportunity for the New Jersey Supreme Court to consider the range of direct and indirect—and short and long term—benefits that the government’s use of condemned land imparts on condemnees as an offset to condemnation awards. The Court has not yet scheduled oral argument. Stay tuned to the Environmental Law Prof Blog for updates on this important takings case.
Tuesday, November 27, 2012
The European Union has decided to place a hold on its directive requiring all commercial airlines, including non-EU airlines, to participate in its emissions trading scheme. Per the “Proposal for a Decision of the European Parliament and of the Council derogating temporarily from Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community,” the EU has agreed to withhold the implementation of its Aviation Directive for non-EU airlines. The decision is based on developments at a recent meeting of the International Civil Aviation Organization (ICAO), where members agreed to work towards a framework for regulating emissions from the aviation sector by the Fall 2013 General Assembly meeting.
The EU decision is conditional on ICAO establishing a market-based mechanism that would reduce emissions by at least as much as projected under the EU ETS; that is non-discriminatory; and that sets reduction targets for all ICAO member countries. Absent such a result, the EU has indicated that it will begin to implement its directive on non-EU airlines. In effect, the EU appears to be demanding a measure that is comparable to its own directive.
The question is whether the ICAO can succeed in bartering a new agreement that is based on global consensus. ICAO has been engaged in identifying climate change impacts from airline emissions for nearly a decade now and has encouraged its 190 members to take and report voluntary measures to reduce airline emissions, by 2050. The EU’s expectation appears to go beyond voluntary action.
Thus far, ICAO’s Committee on Aviation Environmental Protection (CAEP) has agreed on a CO2 metric system to measure emissions from aircrafts operating with different technologies. Members have now agreed to consider a regulatory framework establishing CO2 standards. It must be approved by other members before it can be adopted by the Council. Much depends on the ability of nations to arrive at a consensus. The report is available here.
If members do broker such a deal, it may be a signal to approach the problem of climate change differently—by negotiating measures through existing organizations. Such a move in any case may not be undesirable, considering the fact that early reports suggest lack of adequate leadership at the Doha climate meeting, particularly with the EU facing some setbacks because of the EU debt crisis.
Sunday, November 25, 2012
* Activists have taken to the trees to protest the Keystone XL Pipeline
* EPA proposed revisions to its Mercury and Air Toxics Standards ("MATS") rules for new power plants
* General Electric announced that it will purchase 2,000 of Ford Motor Co.'s C-Max Energi plug-in hybrid vehicle
* Nissan announced that it will decrease the price of its Leaf electric car
* The American Association of State Highway and Transportation Officials named Michael Lewis as its new president
Wednesday, November 21, 2012
Last week, Holly Doremus and Dan Tarlock posted Can the Clean Water Act Succeed as an Ecosystem Protection Law? on SSRN. The article, which is forthcoming in the George Washington Journal of Energy and Environmental Law, examines the efficacy of the Clean Water Act's water quality standards (as opposed to its technology-based controls) as legal mechanisms to support ecosystem protection. The authors use California's Bay-Delta ecosystem as a case study. Their conclusion, based largely on the failures of Bay-Delta restoration efforts, is that the Clean Water Act will not reach its potential without significant reform.
There's lots of good stuff in the article, including, at the end, an ambitious vision for comprehensive Clean Water Act reform, but one passage in particular raises some intriguing questions. Here's the passage:
In legal and institutional terms, we view the Bay-Delta as a "best-case" scnario for the CWA. California, unlike some other states, is a willing partner in ecosystem protection. EPA has historically been more willing to push its authority in the Bay-Delta than elsewhere, and recently announced that, in concert with state partner agencies, it is considering what steps it can take to better protect Bay-Delta water quality. State law fills some of the most important gaps in the CWA. Furthermore, the state agency which implements the CWA and the state's analogous water quality law also implements the state's appropriative water rights system, providing institutional opportunities to integrate management of water quality and water quantity. The state's courts have pushed the agency in that direction, ruling decades ago that water rights can, and indeed must, be adjusted if necessary to protect water use.
That's all quite true, and it's all unquestionably important. But I wonder if the geography of water use also plays a crucial role in determining what counts as a best-case scenario for CWA implementation. Here, it seems to me, the Bay-Delta restoration efforts may face two huge challenges that aren't always present.
The first is that very few of the people who rely upon Bay-Delta water have any real contact with the Bay-Delta as an ecosystem. That means they may not perceive any direct benefit from environmental restoration, or even find the alleged problems readily cognizable. While it's a hard point to prove, I think that geographic separation does matter. In a recent study of a much smaller-scale ecosystem restoration project in Maine, I found that many business leaders were receptive to a CWA-driven restoration project in part because they lived in (and, in many cases, tried to draw customers or employees to) the larger ecosystem affected by the project. That attitude had legal significance: the willingness of the business leaders to support restoration efforts allowed regulators to craft an innovative permitting regime, and the absence of lawsuits from regulated entities allowed that regime to quickly go into effect.
The second potential challenge is scale. We sometimes tend to assume (at least I used to assume) that in larger, higher-profile projects like the Bay-Delta restoration effort, the influence of environmental advocates will be at its peak, and that, as a direct consequence of that advocacy, the government agencies responsible for environmental protection will be most likely to assume an aggressive posture. Certainly there has been quite a lot of environmental group advocacy focused on the Bay-Delta. But it's quite possible--some of my recent research has me wondering if it's likely--that environmental protection measures are often stronger in smaller, lower-profile controversies. There, the influence of environmental groups may be reduced, but the influence of resource users may also be significantly reduced, leaving government regulators as the most powerful influence. And if those government regulators have an internal commitment to environmental protection--in other words, if they're not just the external pressure-driven automatons posited by some more extreme versions of public choice theory--the reduction of outside pressures might lead to more protective outcomes.
All of this is rather hard to put to the test. But at the very least, we have more case studies unfolding. Most notably, EPA is now seriously attempting, on a scale as grand as that in the Bay-Delta, to use the Clean Water Act's water quality provisions to drive Chesapeake Bay restoration. Similarly, across the country, a smattering of smaller-scale water quality-based initiatives continue to unfold. Perhaps in another ten years, those efforts will give us more insight into what makes a best-case scenario for CWA-based ecosystem restoration.
Yesterday, the U.S. Supreme Court granted cert in its third takings case of the term, Horne v. U.S. Department of Agriculture. This one involves the procedural issue of whether the federal government is subject to suit in a regular federal district court over its involvement in the annual raisin crop market or, as the Ninth Circuit Court concluded below, only in the Court of Federal Claims. Lyle Denniston summarized the case on SCOTUSblog here.
Monday, November 19, 2012
I recently had the pleasure of participating in the Aldo Leopold Foundation's Land Ethic Leader Program here in Baton Rouge. The program "is rooted in Leopold's own method of engaging his family and students in developing a personal land ethic - observing the natural world through scientific inquiry, participating in purposeful work on the land, and reflecting on their experiences. Together, these activities can bring prople to a new understanding and respect for the landscape around them."
First of all, I was thrilled that LSU was selected to participate in the program, as only a few sites were selected nationally for this first round of workshops. Being from the deep south, I have a lifelong perspective on the peculiar relationship of the people with the land. Hunters, fishers and other outdoorsmen and women abound, providing a strong cultural connection to the beautiful natural landscapes of the south and its stunning biodiversity relative to other parts of the country. Yet these values often clash with cultural perspectives on the need for arguably unassailable private property rights and as little government regulation as possible. One only has to witness the rapid urban sprawl consuming southern landscapes to see this. The south has long been hungry to catch up with the rest of the country on the economic development front, dating all the way back to reconstruction. Yet the lack of adequate land use planning - due in large part to resistance to even local government planning restrictions - has exacerbated major threats to southern landscapes. Comparisons with land use planning in other parts of the country, such as the Pacific Northwest and the Northeast, bear this out.
Nonetheless, there is a strong core upon which to build a land ethic. Louisiana has particularly beautiful landscapes: upland forests and wetlands, ridgelands, coastal estuaries and wetlands, and a major deltaic riverine ecosystem. Though there are large trucks aplenty on the highways, many of them are carrying ATVs, boats, and other "facilitators" of outdoor activities. You need to protect the land to be able to play on it, which people here understand. In addition, Louisiana has been forced to grapple more directly with the consequences of land degradation earlier than many other regions, as its land is being lost at astonishing rates each year due to subsidence and sea level rise, and with each and every hurricane or other storm event. Louisiana's 2012 Coastal Master Plan implicitly highlights the consequences of failing to maintain a strong land ethic in the past, and how this has directly placed the people of Louisiana in harm's way - whether it be due to increased storm surge in New Orleans due to rapid development and filling of wetlands or otherwise.
The Land Ethic Leader program began with a showing of Greenfire, the compelling documentary on the life of Aldo Leopold - one of the preeminent conservationists of the last century. Leopold himself was an ardent hunter and fisher. Yet his transcendent moment in his undertstanding of humankind's relationship to land came as he shot a wolf and watched a "fierce green fire dying in her eyes." The next day, we met at the LSU Burden Center, which is a beautiful 440 acre tract of land upon which a number of research activities take place. We started the day with an outdoor observation activity, then participated in a series of discussions on land-related literature, such as "Learning the Trees" by Howard Nemerov and "Lines in the Mind" by Donella Meadows. These discussions were designed to help us learn how to facilitate land ethic discussions in the classroom or elsewhere. Day two took us to the Bluebonnet Swamp Nature Center, which I am thrilled to say is only a couple of miles from my home. The Center is "a 103-acre facility dedicated to conservation, education, recreation and tourism. It houses an award-winning, 9500-square-foot building filled with live animal exhibits; photographic presentations of the site's flora and fauna; natural artifact and mineral displays . . . Over a mile of gravel paths and boardwalks link varied habitats such as the cypress-tupelo swamp, beech-magnolia and hardwood forests. Wildlife is plentiful at Bluebonnet Swamp, including hundreds of bird species utilizing the site throughout the year . . . While snakes and turtles are commonly seen from the trails, raccoons, rabbits, opossums, armadillos, squirrels, foxes, coyotes, deer and otter are also known to inhabit the site." We began the day by pulling invasive species out of the swamp, and continued discussions of such works as "Street Trees" by Melody Chavis and "Thinking Like a Mountain," by Aldo Leopold. Finally, we brainstormed about projects that we could take back to our respective departments on campus (or in our respective organizations). Overall it was a fantastic learning experience, and I feel far more equipped to lead discussions on land ethic issues going forward. I am even contemplating a course on "Land Ethics and the Law," whereby we discuss various aspects of land use, environmental, natural resources, and other areas of law and policy, and their intersection with our use and conservation of precious and finite land resources.
In my own life I can look back and see that a simple lack of knowledge and information prevented me from having an appreciation of land ethics and a responsible relationship with the land - not political ideology. I believe that it is the same for many others in the south, who simply have not had an opportunity to be exposed to the kind of information that shapes one's perspective on our relationship with the land. Given, however, that many people in the south already experience this through their outdoor activities - though they may not describe it in an academic sense - if information on better land ethics can be adequately transmitted to the people, no ethic will have ever spread farther and more quickly.
Thursday, November 15, 2012
Following the immense challenges of providing emergency assistance in the immediate aftermath of a natural disaster, government officials face a new set of challenges in the subsequent weeks and months: they must respond to the difficult questions regarding whether, where, and how to rebuild. In the wake of Hurricane Sandy, the New Jersey Department of Environmental Protection (NJDEP) thus far effectively has answered "yes," "everywhere," and "immune from existing permitting requirements," all to the chagrin of many professional planning experts and environmental advocates. New York, however, appears to be taking a decidedly different, more precautionary approach.
Last week, with the backing of New Jersey’s Governor Chris Christie, NJDEP Commissioner Bob Martin signed an administrative order authorizing local governments to replace public infrastructure, such as roads, bridges, and bulkheads, for up to six months in the same vulnerable areas in which they were destroyed without having to secure environmental permits aimed at protecting flood zones, coastal areas, and freshwater wetlands. In issuing the order, Commissioner Martin stated that “for emergency repairs, we cannot let bureaucracy get in the way,” emphasizing that “red tape should not and will not hold up this vital work.’’
The Commissioner’s order has generated harsh criticism. According to Bill Wolfe, the director of the New Jersey chapter of Public Employees for Environmental Responsibility, “The order amounts to a total abdication of DEP’s responsibility to supervise responsible planning and environmentally sound permitting of critical public infrastructure.” Chad Berginnis, executive director of the Association of State Floodplain Managers, has suggested that the order “sends a message of rebuilding quickly and rebuilding like it was previously ... when there are programs and processes that can be brought to bear on all of those kinds of infrastructure to make them more safe and resilient.” Jeffrey Tittel, director of the New Jersey Chapter of the Sierra Club, lamented that “the definition of insanity is doing the same thing over and over again and expecting different outcomes.”
In New York, Governor Andrew Cuomo has offered a starkly different vision. In an op-ed published in the Daily News, Governor Cuomo wrote that “Extreme weather is the new normal….We need to act, not simply react…. [W]e must begin by thinking about where and how we rebuild. The next generation’s infrastructure must be able to withstand another storm.”
It remains to be seen what role state environmental agencies ultimately will play as the larger recovery plans take shape in New Jersey and New York moving forward.
Wednesday, November 14, 2012
Cross-posted from CPRBlog.
Last weekend my son took part in a set of Boy Scout activities with his local Delhi scout troop. On the grounds of the former residence of the U.S. ambassador, the boys prepared a kabob lunch, practiced fire making, and even built a Medieval-style trebuchet. But all I could think about were the little striped mosquitoes that seemed to follow the kids everywhere—Asian Tiger mosquitoes, to be exact, the kind that carry dengue fever.
In New Delhi, dengue (DEN-gay) has reached epidemic proportions. The scouts, I’m happy to say, completed their tour without infection, thanks to lots of lotion, spray, and smoky coils. But not everyone was so lucky. I know at least five people who have been confined to bed for two weeks of fever, headaches, and joint pain. (My medical traveler’s guide says it feels as if “knitting needles have been driven into every joint of [your] body.”) The New York Times reported last week that Delhi hospitals “are overrun and feverish patients are sharing beds and languishing in hallways.” The illness, which in extreme forms can require blood transfusions and even kill, is breaking out all over the country. Official reports say that this year 30,002 people in India have fallen ill with dengue through October. But experts believe the real number is around 37 million.
And last week, we had what I call the “Monster Smog,” a week-long haze of smoke and diesel fumes that the Financial Times described as “the worst occurrence of air pollution in a city long accustomed to dirty air, with the density of dust particles in some places reaching 30 times the guidelines set by the World Health Organisation.” City hospitals were once again overrun. Three Supreme Court Justices pledged to investigate the affair. The cause of the Monster Smog apparently involved some mix of tailpipe emissions, field burning in neighboring states, a lack of wind, and an unusual amount of moisture in the air.
Now with events like these, my “climate” radar goes up. I think of the mounting concern among health experts that warmer temperatures could broaden the reach and lengthen the season of mosquito-borne illnesses in some parts of India. Or the possibility that changes in air temperature and wind patterns will thicken India’s urban smog. (For examples of both, see this report.) And I think of how cities like New Delhi must begin to adapt to a changing climate.
I know such thinking just adds to the moral and logistical complexity of modern life. In this way, I am only slightly less annoying than that guy at the seafood restaurant who consults his “Seafood Watch” phone app at the table and warns his guests about the Chilean Seabass. (O.K., I did that once, but never again.)
Causing annoyance is one thing. But in my conversations on climate policy in India, I have sometimes felt that climate adaptation strikes people as tedious and boring. For instance, at a recent gathering of development experts here in New Delhi, I asked one of the speakers how global development strategies in Asia might change as interest in climate adaptation grows.
After expressing skepticism toward the international adaptation agenda (“code,” he said, for relieving rich nations of their duty to curb emissions), he explained that in developing countries increasing climate resilience was not that different from ordinary development. It was important, yes, but not conceptually challenging. As a policy, adaption was “just not that interesting.”
I can appreciate the point. Development has always been about insulating society from the vagaries of nature. That’s what air conditioning and insurance polices are for. Why burden basic development efforts with extra tweaking? It’s one thing for New York City to wonder how to protect its subways from higher seas in 2050. But many cities in India don’t even have public transportation. Or sewage treatment plants, or sufficient air quality monitoring, or available hospital beds, or any number of basic services Americans taken for granted. Isn’t any improvement in water management or air quality or health care also, at this stage in the game, a step toward climate resilience?
Yes, but it’s not nearly enough. In order to cope with climatic change, developing nations need to some idea of what the vulnerabilities are and what regions are more at risk. That requires huge investments in regional climate modeling, ecosystem evaluation, and public health monitoring. Few countries in the developing world have adequate resources in these areas. Understanding the possible effects of climate change on the spread of dengue in India, to take one example, would require regionalized information about trends in temperature, humidity, rain patterns, land surface hydrology, insect life-cycles, and human behavior. Experts now studying the issue are still in only the beginning stages.
In addition to assessing vulnerability, developing countries will also require decision-making tools that allow citizens and their representatives to manage climate-based risk in the face of uncertainty. They will need strategies, appropriate to their regions and cultures, for evaluating performance and revising their plans when new information arises.
My fear is that many in the halls of power and finance will see fancy computer models and special decision-making tools as “luxuries” that only cities like New York and London can afford. That would be a shame. Remember the motto: Be Prepared.
Robert Verchick is the author of Facing Catastrophe: Environmental Action for a Post-Katrina World
Tuesday, November 13, 2012
IEA has released its annual World Enery Outlook. Where are we heading? Here are some highlights:
1. The United States is projected to overtake Saudi Arabia as major oil producer by 2020 and become a net exporter of oil by 2030, because of measures to increase fuel efficiency in the transportation sector. Net fossil fuel production will increase because of increase in production of unconventional oil such as tight oil, oil sands and natural gas.
2. Oil consumption is projected to increase in emerging nations such as China and India, as well as in the Middle East. Iraq is projected to become a major supplier.
3. Global price fluctuations will continue to influence the energy mix of countries. E.g. cheap U.S. natural gas has translated into higher coal imports into Europe, where natural gas is expensive.
4. Energy efficiency measures in place are not optimal; the WEO provides some strategies for increasing energy efficiency.
5. Natural gas will continue to grow, even though it is fuelling environmental concerns. Coal use is projected to grow in India, and to level off in China by 2020. The predictions, however, are limited because of uncertainties in the growth of unconventional fuels.
6. Nuclear power is slated to decline in all countries except China, India, Korea and Russia. In other places, renewable energy are projected to emerge as major sources for power production, even though they will trail behind coal.
7. Energy production and consumption is projected to grow considerably and to put a strain on water, since several of the resources will require water for their production.
From a climate perspective, is this business as usual or thriving business of emissions?
An executive summary of the IEA report is available here.
Sunday, November 11, 2012
In addition to re-electing President Obama, enlarging the Democrats’ majority in the Senate, narrowing the Republicans’ majority in the House, and determining the make-up of state governments, voters decided 174 ballot initiatives across 38 states on November 6. Several of these initiatives directly involved environmental issues, including these select examples (for a state-by-state list, click here):
• Voters approved bond issues for land conservation in Maine and water projects in Maine, Rhode Island, and Oklahoma.
• In Oregon, voters rejected an initiative that would have banned gill nets in inland waters.
• In Arizona, voters passed a proposition that allows the state to exchange public lands to manage development, while they rejected one that would have declared state sovereignty over the natural resources within the state’s borders.
• In California, voters rejected a proposition that would have required mandatory labeling of genetically modified foods.
While recovery from Hurricane Sandy in New Jersey, New York and other northeastern states continued (and original damage estimates appeared to significantly underestimate conditions on the ground), U.N. Secretary General Ban Ki-moon joined a mounting chorus renewing the push for international action on climate change.
Thursday, November 8, 2012
On Tuesday, my home state elected Angus King, a political independent and former governor, to the Senate. Stealing a theme from Dan Farber, who has been profiling the environmental implications of Senate races across the country, I thought I’d venture a few observations on King’s election.
In general, King’s positions on environmental issues are similar to those of a mainstream Democrat. While his campaign wasn't long on discussion of environmental issues, his website does state his strong support for the Clean Water Act and Clean Air Act. He recently put out a short energy policy paper that touts his support for natural gas as a bridge fuel and, in the long-term, for renewable sources and increased efficiency. Those positions reflect more energy policy experience than the average senator has, for King has been in the energy industry for decades, with much of his time spent working on conservation and renewable energy. His website also emphasizes the importance of minimizing regulatory burdens, but I don’t see that rhetoric as necessarily anti-environmental. Most elected politicians, including some who I’d count as strong environmental advocates, today say pretty much the same things.
In the past, environmentalists have had some differences with King. As governor, he opposed a citizens’ initiative to limit clearcutting, despite widespread support from environmental groups. He also actively, though ultimately unsuccessfully, opposed the listing of Maine’s Atlantic salmon runs under the Endangered Species Act. And King’s wind industry ties have raised hackles among some environmentalists (while earning him support from others). In Maine, most wind development occurs on mountaintops, where the environmental impacts are somewhat greater than they might be on Minnesota farmland or Texas ranches. While most of the larger Maine environmental organizations support on-land wind energy development, some groups do have reservations. Nevertheless, these disagreements weren’t enough to stop the Sierra Club from endorsing him, and advertising on his behalf, in the recent campaign.
So what will King do once he reaches the Senate? He’ll be a vote for renewable energy, a potential supporter of climate legislation, and, probably, a supporter of EPA in its battles over Clean Air Act implementation. None of that involves going too far out on a limb; those positions reflect the interests of a state on the downwind side of the fossil fuel industry as well as King’s own personal leanings. But he also seems proud of his independence and his pro-business leanings, and, having proclaimed himself independent, will probably want to put occasional daylight between himself and the Democrats. Where that daylight will emerge is hard to say, and it might not emerge on environmental issues at all. But he could be a less reliable supporter of the Endangered Species Act than the Clean Air Act or the Clean Water Act.
Perhaps the biggest questions about King involve his likely role in the Senate. Legislative trench warfare doesn't seem like his comfort zone; he presents himself as a visionary leader more than a specialist in political dealmaking (or political hand-to-hand combat). But it’s hard to know how much a freshman senator can transcend or defuse the partisan politics of our present era and still get things done. Ultimately, if King is going to be a leader, not just a vote, on environmental and energy issues, he’ll probably need to become an enthusiastic and effective practitioner of the legislative process. Whether he’ll do that remains to be seen.
China Environmental Experiences #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity
This essay, the seventh in my series about the environmental experiences of an environmental law professor in China, continues the discussion I began last time about how different underlying environmental philosophies held by American and Chinese people can lead to different approaches in environmental governance. (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, May’s exploration of water quality issues, and June’s review of safety issues with Chinese food and consumer products.) The previous essay addressed differences in the human relationship to nature, and this one addresses differing approaches to conservation, stewardship, and scarcity. The final installation will conclude with thoughts about some ancient philosophical roots of these differences.
I began the previous essay by acknowledging the delicacy of exploring underlying cultural differences that correspond to some the environmental experiences I’ve written about in this series. I noted how exquisitely careful one must be in discussing cultural differences, given the inherent shortfalls of any individual’s limited perspective and experience. Yet these differences relate so directly to the challenges of international environmental governance and intercultural understanding generally that I thought it important to discuss them, notwithstanding the hazards. So I offered the important qualification, which I share here once again, that:
My observations are inevitably, hopelessly entangled with my own cultural vantage point. My Fulbright year did not make me an expert on the inner world of Chinese culture—nor, frankly, did my earlier Harvard degree in Chinese language, culture, and history. My observations qualify as neither empirical scholarship nor serious ethnography, based as they are on casual research, personal experiences, anecdotes, and generalizations. But in hope that they may be useful in illuminating the philosophical roots of some gaps between Chinese and U.S. approaches to environmental governance, I share them here.
From there, I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development.
Conservation. Take our shared goal of conserving natural resources. Both countries are developing policies to discourage the waste of scarce natural resources, and on many fronts—such as its first steps toward nationally pricing carbon—China is outperforming the U.S. (Then again, China also built a coal-fired power plant a week in recent years, or more.) But behind good goal-setting, both countries face cultural-philosophical challenges at the level of policymaking and implementation.
On the example of climate policy, the American challenge has been achieving a consensus for rational policy. Part of the failure reflects an ideologically divided nation, but other parts reflect more widely shared American ideologies. For example, American economists have long argued that a national carbon tax would be more economically efficient than the cap-and-trade proposals that have had more political traction (to the extent that any GHG regulation had traction in Congress).
Yet even when climate policy was a hot topic in Washington, the carbon tax was considered a dead-letter given the popular resistance to taxes that reflects a libertarian streak in the American cultural consciousness. The (relative) enthusiasm for emissions-trading schemes, wetland mitigation banking, and other market-based environmental reforms reflect widespread cultural regard for free market ideals—even when these ideals are more poetry than reality in operation. (There hasn’t been enough consensus to have translated those ideals into actionable climate policy, nor are they universally shared in the U.S.—but they were circulating widely when Waxman-Markey passed the House in 2009. [Photo courtesy of The Chicago Dope blog.]) Yet another cultural-philosophical hurdle for American climate policymaking—and one pointedly not shared in China—is the scientifically unexplainable skepticism with which increasing numbers of Americans seem to regard science itself (or, perhaps, scientists).
In China, where policymaking isn't usually the obstacle, challenges will likely have more to do with ground-level implementation. In addition to ongoing competition with economic development priorities and the problem of translating centrally formulated mandates into locally implemented policies, there is also the problem of widespread public indifference--and not specifically to climate issues. In present-day urban China (as was equally true in the U.S. a few decades earlier), you don’t see a lot of conservation-oriented behavior by average citizens—at least not without an immediate economic incentive or legal requirement. Solar water heaters are popular, but mostly because they are relatively inexpensive (and in some cases, mandatory). Buses, taxis and other municipal fleets increasingly run on publicly incentivized natural gas. Public transportation is very well-developed in comparison to American cities, but mostly because people are only just beginning to afford cars (and unprecedented levels of traffic are developing as China’s emerging middle class gets behind their own wheels).
Yet where the immediate incentives for conservation end, so in general does public compliance—and at least for now, without regard to the kinds of generational or educational dividing-lines that often accompany diverging conservation habits among Americans. China does have a nascent recycling program for deposit bottles and cans, but it appears nearly entirely staffed by those on the poorest margin, who sort through others’ trash looking for recyclables on which there is a deposit. Goodness knows we see the same phenomenon in American cities, but in addition to our homeless entrepreneurs, many Americans participate in curbside collection of non-deposit recyclables without sanctions or incentives. From kindergarten forward, most American children are inculcated with recycling values as a societal good until it becomes part of their social conscience (whether or not they always follow it).
In China, the government is attempting to do something similar, with an all-out public information campaign to usher China toward the "Circular" or “Recycling Economy”—the Chinese version of “reduce, re-use, and recycle” writ large. The effort encourages all citizens to see the relationship between their everyday behaviors and environmental well-being, buttressed by a national law that exhorts sustainable practices by local government and the businesses community (though with few enforcement provisions). In public places, the government frequently places signs reminding people that “environmental protection is everyone’s responsibility” (the accompanying one is from May Fourth Square in downtown Qingdao). Even the Tsingtao (“Qingdao”) Beer Brewery & Museum includes a full exhibit on sustainability (including a full exposition of Rachel Carson's Silent Spring), notwithstanding its weak connection with the general subject-matter of the museum.
It’s good that Chinese leaders are beginning to take sustainability seriously, because there is much work to be done at the level of consciousness-raising. Sustainability certainly goes beyond the simple act of recycling, but it is a good index of public attitudes. And despite valiant attempts at public recycling cans conjoined to trash cans, most Chinese make no effort to differentiate between them, and both are routinely filled to capacity with identical mixes of trash. There was no recycling program in my neighborhood or at my university, and no paper recycling of any kind (my students were completely baffled by my repeated efforts to find a place to recycle news and copy paper). And as in the U.S., homes are often over-heated and under-insulated, engines are over-polluting and smokestacks are under-scrubbed, fertilizers and pesticides overused, products over-packaged, etc. There are many miles before Americans should soundly sleep on these matters either, but on the whole, fewer Chinese consider them a problem. The sustainability movement has not yet taken hold among public attitudes--though it is beginning to with rising consciousness of the direct human health effects of egregiously widespread air and water pollution.
Stewardship. Of course, it is perfectly understandable that many Chinese are still more pre-occupied with survival than sustainability, and that other development priorities still preclude advanced sustainability initiatives. A lack of sophisticated curbside recycling should not be surprising in a country still wracked with abject rural poverty, and the government deserves praise for its efforts to promote the Recycling Economy alongside other development initiatives. But here is where the effects of underlying, environmentally-relevant philosophies add a special challenge to the task of Chinese environmental governance. It appears that there is a less entrenched cultural tradition of environmental stewardship here as there is in other crowded nations, like Japan or many in Europe. Indeed, one feature of Chinese culture that often stands out to foreign visitors is the striking way that most Chinese differentiate between the care they take of the environment inside their own homes and the care they take of the environment beyond their front doors. The contrast is stark, and suggests potentially significant implications for the challenges of environmental governance in general.
Inside the home, Chinese people take immaculate care to maintain cleanliness and beauty. Shoes are often left at the front door. Walls and shelves are adorned with enchanting art and objects reflecting the majestic culmination of thousands of years of traditional Chinese culture: calligraphy, porcelain, paper cuttings, shadow puppets, poetry, landscape paintings, and the like. But outside that front door, the duty of care appears to end. Common doors, hallways, and stairwells in Chinese apartment buildings receive little attention from residents; empty walls are often cracked with peeling paint and crumbling cement in seemingly abandoned hallways that open surprisingly into those beautifully maintained dwellings once you cross the inner threshold. This may reflect other collective action problems relating to commonly-owned property, but it also reflects a widespread sense that what happens beyond the inner threshold is someone else’s responsibility.
Crossing the outer threshold onto the street reveals an even more dramatic difference. In many cities, trash can be found everywhere—heaped on the sides of buildings, and littering not only streets but mountain trails and otherwise beautiful beaches. Problems with consumer-product and water quality that I have previously written about feed into the overall trash problem. Easily-breakable products and legitimate fears of unclean re-usables compound the prevailing urban culture of disposability, leading to a stream of waste that is often unceremonially piled up around neighborhoods. A broken toilet and shards of glass have been piled outside our building for months, and it is only one of many such piles.
Here in Qingdao, our neighborhood market area is hosed down by a street cleaning truck every morning. I was surprised to hear this, because I would not have guessed this daily cleaning from looking at them in the afternoon—until I saw what they looked like in the morning beforehand: strewn with fish guts, corn husks, banana peels, discarded vegetable parts, used cooking oil, and every other kind of refuse that you can imagine left behind after the daily rush of morning street vendors. People discard these things on the street, knowing that the city will clean it up—and the city does a faithful job. But the hose can’t get to everything, and a fair amount of refuse accumulates in gutters and potholes. And there is no street-cleaner for the narrower village streets, forest parks, or beaches.
Just as in the U.S., some Chinese individuals admirably take it upon themselves to clean up after their fellow citizens. Even as I am dismayed to see so much trash along the mountain trails behind my neighborhood, I am heartened to see the small signs left by members of private groups who occasionally clear the area of litter. The China Daily reported movingly over the winter on the efforts of an elderly woman in Beijing who makes it her personal task to comb trash out of Tiananmen Square every day.
Nevertheless, while some conscientiously pick up their own trash and even that of others, many others routinely drop trash without thinking much about it. In many places, it’s a culturally permissible thing to do. We ourselves are trying to re-educate our four year-old to do otherwise after we watched him proudly demonstrate that he had learned at school how to peel his own banana—and then dropped the peel on the ground, as though it had always belonged there. Perhaps it came naturally to him to just drop it on the ground without thinking about it, because he sees this happening around him so often. Some leave water bottles and other garbage behind in buses and taxis, too—which is also common in the U.S. But what I haven’t seen outside China are the taxi drivers who clean up what passengers have left behind by simply scooping the trash out of their car and into the gutter of the street where they are parked.
Littering is a human cultural problem throughout the U.S. and the rest of the world, demonstrated by American smokers who continue to discard cigarette butts indiscriminately, long since cultural tolerance for this waned after the 1970s environmental movement. But in China, cultural permission to discard waste in public places extends beyond water bottles and cigarette butts, complicating the environmentalist message. Consider the entrenched Chinese tradition of encouraging children to use public streets while toilet-training. Chinese toddlers are weaned from diapers early—a great environmental good, given the obvious environmental problems associated with disposable diapers. In the U.S., for example, where the average baby goes through about 8,000 diapers, parents buy as many as 40 million disposable diapers a day (or more), most of which end up in landfills where they will hold their mummified loads for the next 500 years. But in China, toddlers wear pants with a split bottom, enabling children to squat to poo or pee wherever they happen to be when the urge hits. Which leads to different kinds of environmental problems.
I should be used to it after nearly a year, but I am always still surprised to emerge from our apartment to find a parent helping a squatting child unload beside the front gate. Small piles of poo on the sidewalk are commonplace, so we walk carefully, eyes cast down. I’ve seen parents allow their children to relieve themselves into large potted plants at airports. I once saw a child have an accident in the aisles of a big-box store, and while the child was immediately whisked away to be cleaned, the resulting pile was left behind for others to avoid. It’s not uncommon to see men urinating along streets and sidewalks, notwithstanding nearby public toilets erected to accommodate neighborhoods without indoor plumbing. A related tradition engaged in by both men and women is that of spitting on the streets and sidewalks, after expelling the product from deep within troubled-sounding lungs.
With so much Chinese ground thus anointed, the outside environment is generally (and correctly) viewed as a terribly unclean place. The American “five-second-rule” is humorously gross in the U.S., but unimaginable in China—because even indoor floors are trod upon by shoes that have walked through countless stages of decomposing goodness-knows-what. A Chinese student, eyes wide with horror, once asked me whether it was true that American students sit or even recline on campus lawns between classes. I laughed at the time, but months later would find myself cringing as a group of visiting American students sat to rest on the gracious exterior stairs of a provincial museum, and nothing I could say would dislodge them. Similarly, Chinese friends would gasp when I instructed my toddler to hold stair handrails, worried about what hands had been there before him, and what those hands might have touched. Their view—which I ultimately adopted—was that it was better for him to fall down the stairs than to allow whatever was on those railing onto his thumb, which inevitably drifts toward his mouth. By necessity, Chinese parents wean thumb-suckers incredibly early (and by whatever means necessary).
Here’s the thing. If you see the world outside your own home as a legitimate place to offload waste—even E. coli-laden human waste—how can this not extend to greater environmental management? If it’s culturally permissible to drop litter (and worse) on the street or the beach, why wouldn’t it be okay to release manufacturing waste into the river, or pipe it into the air?
The potential implications for environmental law are obvious. Because it’s not just an economic challenge for the government to convince industrialists not to pollute; in some important way, it’s also a cultural challenge. Professional polluters aren’t just doing it because it’s cheaper than the alternative. They are doing it because—at some level—it’s what they have always done, and without any moral misgivings.
Scarcity. The legacy of scarcity in an era of rapid economic development also factors in to environmental philosophy. Indeed, a discussion of scarcity provides an especially poignant point of contrast between Chinese and American approaches that reflect their different stages of economic development.
Let’s start by acknowledging the obvious: Americans are fortunate to have lived through a period in which most have not endured the scarcity regularly experienced by people in the developing world, and they should do better to remember that. My family and I are often ashamed by the patterns of conspicuous consumption in the United States, where ever bigger cars, houses, and other forms of cultural bling are marketed to consumers who enjoy far more than their fair share of world resources. Yet this year, we have also been perplexed by the contrasting patterns of consumption and waste that we have witnessed in China—from the trash piles of used disposables to the missing efforts to maintain buildings against the effects of weather and time. Especially in a developing country, where resources are comparatively scarce, why not conserve and maintain? Why not fix old things, rather than just tossing them aside for a new ones?
In puzzling over this question with some environmental faculty at Wuhan University, I learned how a nation’s developing status can also push in the opposite direction. One spoke of an experience decades earlier, in the pre-PowerPoint era, when he was using an overhead projector with transparencies to accompany his lecture. Something like a filament in the ancient projector blew, so everyone waited while the university repairman was called in. Using tweezers and tiny metallic wire, he got it working again. The man knew how to fix virtually anything—because he had to. At the time, there was no alternative but to fix things, over and over again. But now, in this age of emerging wealth, perhaps there is national pride in not having to fix things this way. For some, he suggested, it is a sign of growing status to be able to toss out the old rather than fix and maintain it indefinitely.
Similarly, several students once explained to me that their parents absolutely forbid them from licking their fingers when they ate—a good habit that they adhered to even at the local Kentucky Fried Chicken, a popular foreign restaurant chain in China. At first, I assumed this was a matter of good hygiene, and I regretted the manners my own child displayed (after all, KFC’s American slogan is “finger-lickin’ good!”). But I later learned the back-story: that these parents had come of age at a time where they sucked every last drop of grease from their fingers because there simply wasn’t enough food, and not a calorie could go to waste. Now, when their own children licked a tasty finger over a full plate of food, these parents would passionately bat the sticky fingers away from little mouths, proudly reminding them that they would never have to lick their own fingers for nourishment. They were not to do it, because doing it symbolized a desperation that the nation had triumphed over (at least in these urban areas) through economic development.
The cultural memory of extreme scarcity runs deep in China, and it is reflected in other curious cultural differences between China and the West. One possible example that often confuses foreign visitors is the way that Chinese tend not to queue. There is not a strong tradition of waiting in line for goods or services—so, for example, when the bus arrives, the crowd simply surges the door and people gradually push their way through, one by one. There are something like lines at street food stalls, but rules are relaxed and there is no hard order to them; if someone wants it badly enough, they can just insert themselves close to the counter. Even at the airport, as people wait to board the plane at the gate, many will queue, but others force their way through to the front as the group moves toward the plane. My Western sensibilities were often jarred by this behavior, but my Chinese friends mostly tolerated this with either patience or indifference. (Though I discovered how fully I had crossed over while escorting that delegation of American students through Beijing, frustrated by their halting efforts to politely advance through crowds while I soared through cracks and openings like a native…)
Why no tradition of lining up? One Chinese lawyer explained to me that this is just another response to the nation’s long history of extreme scarcity: in a world where there is never enough to go around, people long ago learned to grab for what they need. This tradition is changing with new cultural developments and as problems of scarcity ease in China, but I have occasionally wondered whether it could lead to intercultural confusion in international affairs, such as negotiations over hotly contested resources in the Arctic or South and East China Seas. That said, I am very self-consciously making these observation as an indirect beneficiary of the former American tradition of “manifest destiny”—our most spectacular example of not respecting a first-come, first-served ethic of access to natural resources. So I suppose that both of our cultures—like all of them really—are on an ongoing path of philosophical development…
[To be continued in the final installment, in which I’ll conclude with some thoughts about the relevance of ancient philosophical traditions.]
November 8, 2012 in Asia, Climate Change, Current Affairs, Governance/Management, International, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, US | Permalink | Comments (2)
Tuesday, November 6, 2012
This Friday, the University of San Diego hosts its 4th Annual Climate & Energy Law Symposium with the teriffic lineup of scholars and policy experts below. The topic of the symposium is "Law in a Distributed Energy Future," the near-term development of which could certainly vary depending on today's election outcome!
- Lesley McAllister
|9:00 – 10:00 a.m.||Morning Keynote
Commissioner, California Energy Commission
|10:00 – 10:15 a.m.||Coffee Break|
10:15 a.m. – Noon
Noon – 1:00 p.m.
|1:00 – 2:45 p.m.||Panel Two
2:45 – 3:00 p.m.
|3:00 – 4:45 p.m.||Panel Three
Legal Innovation and Diffusion
|4:45 - 5:30 p.m.||Keynote
Senior Policy Advisor to California Governor Jerry Brown and Director of the Office of Planning and Research
Monday, November 5, 2012
Gotham Gets It: Mayor Bloomberg Calls for Government Action on Climate Change
Cross-posted from CPRBlog.
The most solemn commitment borne by an elected official is to promote the public welfare and keep the citizenry safe. As New York City struggles to rebound from one of the fiercest storms in memory, Mayor Michael R. Bloomberg rose to that occasion with an urgent call for government at all levels to forcefully address climate change.
Yes, folks, Gotham gets it.
In an editorial for Bloomberg View, the mayor wrote:
The devastation that Hurricane Sandy brought to New York City and much of the Northeast -- in lost lives, lost homes and lost business -- brought the stakes of Tuesday’s presidential election into sharp relief.
The floods and fires that swept through our city left a path of destruction that will require years of recovery and rebuilding work. . . . In just 14 months, two hurricanes have forced us to evacuate neighborhoods -- something our city government had never done before. If this is a trend, it is simply not sustainable.
Our climate is changing. And while the increase in extreme weather we have experienced in New York City and around the world may or may not be the result of it, the risk that it might be -- given this week’s devastation -- should compel all elected leaders to take immediate action.
He described New York City’s own efforts to fight climate change by reducing carbon emissions “by 16 percent in just five years.” He could also have noted his city’s impressive planning efforts to adapt to those climate effects that can no longer be avoided.
Then comes the kicker, which you’ve probably already heard about: the mayor called for the reelection of President Obama. Local governments “can’t do it alone,” he said.
We need leadership from the White House -- and over the past four years, President Barack Obama has taken major steps to reduce our carbon consumption, including setting higher fuel-efficiency standards for cars and trucks. His administration also has adopted tighter controls on mercury emissions, which will help to close the dirtiest coal power plants (an effort I have supported through my philanthropy), which are estimated to kill 13,000 Americans a year.
Is this the beginning of a tipping point? History shows that extreme events have the potential to focus people’s attention and energy in ways previously thought impossible. In the eighteenth century, the Lisbon Earthquake forced a dramatic rethinking across of Europe of the government’s role in hazard management. Portugal’s prime minister launched one of the first scientific inquiries into earthquake mechanics. The government imposed stricter zoning laws and Europe’s first seismic building codes.
Northeast governors whose states are receiving federal assistance after Hurricane Sandy have Herbert Hoover to thank. After the Great Mississippi River Flood of 1927, Hoover, then the Secretary of Commerce, helped establish the national role for disaster recovery in the United States. Less than a decade later, the federal government boosted hazard protection across the nation by taking charge of all flood control projects on all federal waterways.
Even Hurricane Katrina, for all the dysfunction that ensued, can be credited with impelling the federal government to strengthen and re-energize FEMA and forcing the city of New Orleans to seriously confront long-standing problems with crime, education, and political accountability.
For a brief moment Hurricane Sandy has seized the attention of citizens across the nation and around the globe. In a twist unimaginable even a few days ago, it’s possible that global warming could even influence next week’s knife-edge presidential election.
As followers of this blog know, I’m living in New Delhi this semester. On Halloween morning I awoke to an article in the India Times, titled, “Frankenstorms Can Get Worse as Global Warming Intensifies” (it’s not a subtle publication). “Hurricane Sandy,” the writer speculated, “could be an answer to many who've wondered when America would smell the climate change.” Global warming is a bitter brew. But it must be acknowledged, planned for, and minimized. Mayor Bloomberg, a successful businessman and an effective politician, has announced he’s ready to face the day as it really is. Who’s next?
Robert Verchick is the author of Facing Catastrophe: Environmental Action for a Post-Katrina World.
Friday, November 2, 2012
In trying to provide an understanding of why getting an agreement on climate change mitigation is proving to be so very difficult, some scholars have presented the "winners and losers" theory. This thought-provoking theory posits that since the effects of climate change are disparate, i.e. some nations will benefit and others will lose from climate change, the winners are unlikely to expend money on climate mitigation action for reasons of corrective justice. [Eric Posner and Cass Sunstein, Climate Change Justice, available here]. Another theory posits that winners are more likely to support beneficial adaptation action, instead of mitigation action, and that climate change policy must therefore focus on investments in adaptation. [J.B. Ruhl, What should we do about climate winners?, available here]. A few have argued that in a global economy, that alleged winners such United States will also lose out in a global economy and must therefore participate in climate change mitigation efforts. [Jody Freeman and Andrew Guzman, Climate change and U.S. Interests, available at 109 Columbia L. Rev. 1531 (2009)].
While Hurricane Sandy has not been explicitly linked to climate change by scientists, it represents the very type of risk that scientists predict will increase with global warming and climate change. The fact that climate change has not occured in some other nation, but in the financial capital of the country (the world, indeed), weakens the claim that winners can be identified with accuracy and render their failure to address corrective justice claim understandable. It also highlights the limits of the theory that winners may be convinced to invest in beneficial adaptation rather than mitigation efforts [J.B. Ruhl has himself highlighted some of these limits and admits his theory serves a limited function]. It confirms the theory that even winners may be losers, because of the interconnected nature of our economy and the problem. More importantly, Huricane Sandy raises the question whether the winners should be allowed to take it all?
To support the above claims, I have listed the winners and losers of Hurricane Sandy and leave it to you to agree or disagree with or modify my preliminary list of winners and losers and how possibly they can be motivated to do to address climate change. Let me add that when it comes to individuals, it is hard to classify them as winners or losers clearly.
1. Sandbag companies
2. Construction companies (in the long term)
3. Construction workers?
4. Hotels in other locations having to charge strander passengers etc.
1. People--citizens, residents, visitors, business owners, employers, employees, etc.
2. Businesses in NYC and other locations--coffee shops, delis, shoe shops, clothing stores, electronic stores, law firms, banks, energy companies, airlines, restaurants, hotels, insurance companies etc.
3. Taxpayers in the form of lost infrastructure, services, tourism, and increased expenses to manage the hurricane and the problems in its aftermath.
Please feel free to suggest changes to the list.
Thursday, November 1, 2012
Last spring, the Texas Wesleyan Journal of Real Property Law hosted its inaugural symposium, entitled Wildfire Law: Private Property & Public Interests, to rave reviews. In the coming weeks, the journal is slated to publish the articles emanating from that event, authored by the likes of Jamison Colburn (Penn State), Robert Keiter (Utah), Will Rice (St. Mary’s), and Rachael Salcido (McGeorge). These articles will be available here.
Though the wildfire symposium will be a difficult act to follow, the journal is pleased to host another exciting symposium, entitled Securing Water Supplies for the Future: Risks, Challenges, and Opportunities, next Friday, November 9. The one-day event will focus on legal and policy issues related to local, regional, and national water scarcity challenges. The list of presenters is noted below. Essays and papers presented at the symposium will be published in the Journal’s spring 2013 issue. For more information about this symposium, click here.