January 5, 2012
As a practitioner, and even in my first years as a professor, I never paid much attention to the Endangered Species Act’s prohibition on adverse modification of critical habitat. The ESA was important to my work in practice and then to my teaching, but, like most environmental lawyers, I just thought of ESA section 7 as the section about jeopardy. The prohibition on adverse modification was something of an afterthought.
Several years ago, however, I finally noticed that the adverse modification prohibition was, on paper at least, really, really powerful—perhaps even more powerful than the jeopardy prohibition, which more than anything else is responsible for the ESA’s “pit bull” reputation. That realization made me wonder what the Fish and Wildlife Service, the National Marine Fisheries Service, and the courts were actually doing, or not doing, with the adverse modification prohibition, and why. Wondering is dangerous, and soon I was wading endlessly through biological opinions and somewhat less endlessly through court cases. The results of that inquiry, published in a special climate change issue of the Florida Law Review, are now available here.
The article has lots of detail, but I’ll give just a few tidbits:
- The services have largely collapsed the jeopardy and adverse modification inquiries into a single inquiry, even after a series of court cases essentially nullified the regulations that supported that approach. Out of a pool of over 4,000 opinions, I did not find a single one that found adverse modification without also finding jeopardy.
- The services have construed the critical habitat prohibition as exempting small instances of habitat degradation or destruction, without ever really defining how small is too small, or how this approach will protect species threatened primarily by the incremental destruction of their habitat.
- Notwithstanding these findings, the services are doing a lot to protect habitat, even if the adverse modification is playing a fairly minor role in that protection. What particularly surprised me was how much they work to change relatively routine, low-profile projects. After my time in practice, I had suspected that on these smaller projects, where environmental groups are rarely paying close attention, habitat protection would be more lax than for the larger, high-stakes controversies. That’s consistent with a common view that the services implement the ESA only to the extent compelled by threatened or actual litigation. But after looking at lots of biological opinions and interviewing many FWS and NMFS biologists, I think my suspicion was wrong.
- The continuity of implementing approaches between the W. Bush Administration and year one of the Obama Administration is striking.
- There’s a range of opinions among FWS and NMFS staff about how much critical habitat matters, and in what ways. I consistently heard that it does make a difference, usually by subtly shifting negotiations with project proponents. Multiple interviewees expressly rejected the notion, often repeated in official FWS proclamations, that critical habitat designations are a redundant waste of time. Several also told me they thought that critical habitat designations could and should play a more significant role. But beyond that basic consensus, agreement over how critical habitat influences decisions breaks down.
- In practice, the different provisions of the ESA are deeply intertwined. Most casebooks address the act sequentially, starting with section four and moving through sections seven, nine, and ten. That works well in the classroom, but it can convey the mistaken impression that the different provisions are implemented separately. In fact, section seven consultation is an important part of habitat conservation planning under sections nine and ten, and, as I found while researching this article, section nine plays a central role in most consultations.
- Over the life of the ESA, there hasn’t been much litigation on the adverse modification provision, but in recent years the number of cases has grown rapidly.
For more, please have a look at the article (and the issue as a whole; it contains several other articles and essays that look quite interesting). I found this a fascinating topic to research, and hope readers will find it interesting as well.
January 3, 2012
Good news from the Brazilian Amazon
Judging from recently released data, Brazil seems to be gaining a foothold in reducing deforestation in the Amazon (see chart below). Forest loss in the year-long period from August 2010 through July 2011 was the lowest since annual recordkeeping began in 1988. In the 2003-04 period, 27,772 sq. kilometers (10,722 sq. miles) were deforested. That’s an area about the size of Maryland. In the 2010-11 period, 6,238 sq. kilometers (2,409 sq. miles) were deforested. That’s an area closer to the size of Delaware. And if you were wondering just how big Brazil’s Amazon forest is overall, I can tell you: 3.4 million sq km (1.3 million sq mi), or roughly the size of five Texases, or two Alaskas and a California.
Last year’s relatively low rate of deforestation continues a trend that began in 2008. As reported by mongabay.com, “Analysts attribute the decline to macroeconomic factors — including interest rates and a strengthening Brazilian real — as well as private sector initiatives like the soy and cattle moratoriums and government action, including better enforcement of environmental laws and establishment of protected areas in key frontier regions.” If you'd like to read more, I discuss several of these factors in my article, Sustainable Consumption Governance in the Amazon, 38 Envtl. L. Rep. News & Analysis 10873 (2008).
Area of the Brazilian Amazon Deforested by Year, 1995-2011 (August 1 to July 31), sq. km. per year
- Lesley McAllister
January 2, 2012
Some Post-Holiday Thoughts on Packaging Waste
During this holiday season I took on the usual role of family garbage person. Perhaps you too have been that designated party at one time or another - standing there, holding a bag...waiting...until the very second a present is opened...then knocking your nieces and nephews over to catch the torn paper from their recently opened presents before it can even hit the floor. Well, as usual I am always shocked at the amount of paper used to hide gifts from one another until the big day of exchange. Below are a few of many great stats from Mother Jones on the subject [and as for clam-shell packaging sending people to the ER? Been there, done that - sliced my finger open and needed 8 stitches a few years ago. So changing course on packaging is not only about protecting the environment, but also about health and safety - at least for me ;-)]:
- Nearly 10% of a typical product's price is for packaging.
- The global packaging market is worth $429 billion.
- Nearly 1/3 of Americans' waste is packaging. Just 43% is recycled after use.
- In 2007, Americans threw away 78.5 million tons of packaging—520 pounds per person. That's a 71% increase from 1960.
- A 2008 bill written by Rep. Anthony Weiner (D-N.Y.) would have required the EPA to find ways to reduce packaging waste by 30% in a decade. It died with no cosponsors.
- Last summer, Sam's Club began selling milk in a stackable plastic jug with a smaller energy footprint. It cut the price of a gallon by as much as 20 cents, but consumers complained that it spilled too easily.
- Between Thanksgiving and New Year's, Americans produce more than 1 million tons of additional garbage per week.
- If every family reused the wrapping from 3 gifts, it would save enough paper to cover 50,000 football fields.
- To fight shoplifting, which costs retailers more than $11 billion a year, clamshell packages are designed so that "human hands have great difficulty separating the backing and cover," according to a 2003 patent.
- Even armed with scissors and a box cutter, it took Consumer Reports testers more than 3 minutes to cut open the Oral-B Sonic Complete Toothbrush Kit.
- Last year, clamshell-type packages sent more than 5,700 Americans to the ER.
- In May 2008, Sony announced "Death to the Clamshell" with a video of a man getting impaled by a package of headphones.
- Sony's Memory Stick Pro Duo comes in a package that's 50 times larger than the product itself.
- Pentagon researchers say that by converting packaging waste into fuel, military units could become energy self-sufficient.
- More than 80% of kids surveyed said they preferred plastic milk bottles to paper cartons. They saw milk in plastic as "cool" and "fun to drink." Paper was "old-fashioned."
- Americans annually buy enough plastic wrap to cover Texas.
- The USDA has developed edible food wrap. Says a researcher, "Imagine apple-film-wrapped pork chops that go from the refrigerator to the stove, where the film melts into an apple glaze."
- Presliced and wrapped fruits and vegetables cost up to 45% more than whole, unwrapped ones.
- Sales of Patagonia underwear jumped 30% after it removed the packaging.
- Blake Hudson
January 1, 2012
In Case You Missed it: The Week of December 25 - December 31
An exotic jumbo tiger prawn species is increasingly common in the Gulf, potentially threatening native species.
After declining for four consecutive years, pesticide use in California grew in 2010.
Due to greater rainfall in its basin, Devils Lake in North Dakota has risen almost a foot per year on average over the last 45 years, and it has flooded homes, farms, major highways, state parks and tribal lands.
The Philippine flood toll nears 1500; more than 60,000 are homeless. Deforestation and soil erosion contributed to the problem.
Read about and watch an hour-long defense of climate change science on the Senate floor by Senators Sheldon Whitehouse (Democrat, Rhode Island) and Al Franken (Democrat, Minnesota) that took place on December 12, here.
Organic agriculture is not necessarily sustainable agriculture, as profiled by the New York Times.