Saturday, April 7, 2012

China Environmental Experiences #3: Breathing Air with Heft

This is the third in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see my introductory post and last month’s reflections on China and the Rocky Mountain Arsenal.) It has been a busy month since my last post, during which I’ve had the pleasure of traveling the country widely. Today I actually write from Japan, where I am visiting Nagoya University to discuss the role of the common law public trust doctrine in balancing economic development and environmental protection.

It is a lecture that I have given frequently in both the U.S. and China, and before arriving, I had carefully considered the differences I could expect in sharing the same ideas with a Japanese audience. In the U.S., law students are fascinated by the role of legal institutions in mediating the conflict, especially demonstrated in the Mono Lake litigation around which I build the presentation. In China, students are more interested the factual content of the story—and dumbstruck by the idea that protecting birds, fish, and wilderness could possibly compete with the water needs of a large metropolis. What would I find here in Japan, a nation with relatively thorough pollution controls but comparatively scarce natural resources?

As it turned out, I needed no academic encounter to see where the Shintoist-inflected Japanese approach would differ from China’s. All the evidence I needed—evidence that nearly knocked me off my feet from the moment I first stepped outside—was in the air. The clean, fresh, sweet-smelling, healthy-feeling air. After eight months of breathing in China, the air was so beautiful that I almost cried. There was no haze, no taste, no grit. You could see the world crisply and clearly ahead of you for miles—even better than I could recall from home in the U.S. Japan - L. Ashi, Temple, Old Stone Road, Mtn Train, Hakone Vents 059I realized in that moment how much I had forced myself to forget what this could be like, in order to just get on with daily life in China. But like an elephant, the lungs never forget. So I guess it’s time to confront the great elephant in the room of Chinese environmental issues and talk about the experience of living with China’s notorious air quality problems.

Everyone knows that air pollution is a serious problem in China. The World Health Organization reports that some 700,000 Chinese people die each year from air-pollution related respiratory diseases. Many of the world’s most polluted cities are in China, and we took serious account of this reality in contemplating our Fulbright voyage. In Beijing, particulate pollution levels regularly exceed the scale that the U.S. government normally uses to monitor it (such that air quality problems are quite literally “off the scale”). Shanghai air is a little better, but still far worse than the worst air quality days in the worst air quality years of Los Angeles’ experience. A friend at the U.S. Embassy in Beijing reports the common wisdom there that a bad day in Los Angeles can get as high as 90 on the PM 2.5 particulate pollution scale, while a bad day in Beijing can exceed 400 (and occasionally even tops 500). He says "if it's less than 150, I'm usually happy, because then I can see the sun." (For full comparison's sake, in 2009, the average PM 2.5 particulate pollution level for the entire U.S. was just under 10, and the average in Los Angeles was just under 15.) The State Department actually pays the American embassy staff in Beijing “hardship compensation”—extra pay for enduring hazardous working conditions, just by virtue of breathing there.  [For a good-day/bad day photo comparison, see this follow-up post.]

China Sept 2011 195And foreigners aren’t the only ones concerned. In recent months, the people of Beijing witnessed an important demonstration of their own political power when public unrest ultimately persuaded the Chinese government to change its air quality monitoring norms. For years, China had monitored only airborne particulates measuring at least 10 microns across, even though it is the much smaller particles that can do the most damage—passing through the alveoli in the lungs directly into the blood stream. The U.S. embassy in Beijing monitors particulate matter as small as 2.5 microns (PM 2.5) on an hourly basis, and had been making the data available to the public over the Internet. So the Chinese air quality reports made air quality problems look a lot less serious than the American reports.

But this winter was worse than usual—much worse. The U.S. Embassy data showed sustained levels of seriously hazardous pollution—the kind that could harm any healthy person, not just the especially sensitive young, old, or sick. Air filter sales surged in Beijing, and residents donned surgical masks in (mostly futile) efforts to reduce their inhalation of choking auto exhaust, coal-fired power plant and manufacturing emissions, and dust from the ubiquitous construction projects and nearby Gobi desert. A New York Times report that managed to jump the Great Firewall told of some Party officials who had retrofitted their homes with equipment to cleanse the toxic air, infuriating the 99% who had to breathe it without recourse.

As public agitation mounted, the Chinese government reportedly requested that the U.S. Embassy stop publishing its PM 2.5 monitoring data (likening it to inappropriate meddling in domestic affairs). Beijing residents were enraged by these purported efforts to keep them in the dark about genuine threats to public health. In the Twitter-like microblogs that dominate the Chinese blogosphere, one after another vented their outrage—mothers wanting to keep young children inside when the air was most hazardous, sons wanting to keep aging mothers at home on the days of elevated stroke risk. In a stunning victory for transparency in Chinese governance—and an important signal of how seriously average Chinese people are taking air quality—the government reversed itself and finally began monitoring at the PM 2.5 level.

In fact, I had been graciously offered connections to some of the nation’s leading universities in Beijing when my Fulbright placement was being set. But given Beijing’s air problems (and with memories of my son’s respiratory complications from swine flu still fresh in mind), we pursued a placement in the coastal city of Qingdao instead, as much for the city’s famously clean air as for Ocean University’s vibrant environmental law program. And indeed, when we arrived in August, the wisdom of our choice seemed confirmed. Our introductory week in Beijing—while culturally thrilling—was environmentally chilling. None of my ample armchair research into Beijing’s air quality problems prepared me for the experience of actually breathing air with physical heft. Air with taste and texture. Air that we knew—our bodies as physically as our minds did intellectually—would eventually make us sick. We were elated to finally get to Qingdao, where indeed, the summer air was comparatively pristine. ELPB 2 RMA - Fushan on Good Air Day

But even in Qingdao, everything changed in late November, when the heat went on in northern China. In China, the heat (like most else!) is centrally coordinated. So the heat for the entire northern part of the country goes online around November 15th, bringing to life the countless coal-fired power plants that freckle every city landscape, some large but many quite small. One such sleeper turned out to be directly across from my son’s preschool. Its curiously squat smokestack was coupled with a more slender companion, both raised just above the higher floors of the surrounding residential apartments. They seemed old and apparently unused in the fall, so we had assumed it was an old factory abandoned after residential infill. Once we realized that it was really an eye-level conduit for mercury-laden, throat-choking coal dust, we panicked considered our alternatives. But the truth is that these little generators are everywhere. So many, so little, that installing appropriate scrubbers would require the kind of massive financial commitment currently beyond reach for most developing economies.

ELPB 2 RMA - Fushan on Bad Air DayIt’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it. There is a kind of low-level panic that sets in when the air begins to go bad. You hope against hope that this time will not last as long as the last time, and you unconcsciously start to breathe more shallowly. Then you assume a bunker mentality and try to keep the bad air out of your home as much as possible. You close all the windows and become extremely careful about closing the doors as fast as possible when you come and go from the apartment. You have to give up the charade when you leave for work, but eventually it doesn't matter because the bad air eventually finds a way into every room. In large enclosed spaces like airports, the haze can even obstruct your view of the far interior wall. At this point, you just have to submit to the situation and try not to think about what's actually in the air. There is nowhere to go, nothing you can do to avoid it. But you still try not to breathe too deeply.

After the winter heat went on, the blue skies of Qingdao disappeared behind a grainy haze of automobile fumes and coal plant smoke. On the worst days the weather report is simply “smoke,” and breathing is like inhaling in the wake of buffed chalkboard erasers that have been tainted with some kind of chemical. We use packing tape to try and seal the faulty window frames and the gaps around our doors. Surfaces in our home are perpetually coated with once airborne dust and particulates. We are no longer so keen to take walks to the lovely mountain behind the university (which we very often can’t even see, as in the prior photo). We avoid strenuous exercise—even running to catch the bus—because deep breathing hurts. On days when we can only hazily see the building fifteen meters from our own (and the others beyond disappear fully into the smoke, as in the photo below), we try to not even leave the apartment.

Winter at Ocean University 031 In the early days of winter, the stress of adjusting to the air pollution was oppressive. We felt sick most of the time, and were always anxious. Eventually, we adapted to the circumstances and we were once again able to find joy and fascination in our new world. But even now, we finish most days by lying down in bed to cough the day's residue out of our lungs. And on many mornings, I wrestle with the decision to send my son to preschool, which requires both him and my mother to troop a half-mile up a steep hill directly toward the belching power plant.

In fact, when the EPA announced the new mercury rule that it finally promulgated in late 2011 after twenty years of trying, I metaphorically jumped for joy and then literally wept with grief when it forced me to connect the primary source of U.S. mercury—coal-fired power plant emissions—with our own experience here. I thought of all the environmental risks to which we are subjecting my little boy, who turned four here this winter. So ironic, after all our fastidious caretaking in his first three years (organic milk, physician-approved sunscreen, no cigarette or pesticide exposure, etc.)! What was the point, when we are now subjecting him to more hazard than he may experience for the rest of his life? Almost every day in January, I questioned whether I did the right thing bringing him here. About every other day, I was pretty sure that I didn’t.

China Sept 2011 376 Then again, we take the objectives of our cultural diplomacy here very seriously. Raising a child here has enabled us to access a depth of Chinese culture that most visitors never come close to understanding. We understand China in a way we never could have imagined before now, and we have shared our American ideals just as profoundly. At the moment, my son is a living bridge between our cultures, in a way that fills our neighborhood with joy and hope for the future of our nations’ friendship. So I tell myself that the air pollution is really very temporary for us, and that we will come home in just a few more months. (And then I wrestle with the guilt of knowing that all the people I’ve come to love here will not have the same luxury.)

Seriously folks—I’ve said it before, and I’ll say it again—every American bellyaching about the costs of environmental regulation in the United States really needs to spend a year living in China. Especially from this vantage point, the proposition that Americans no longer need so much environmental law because our environment is so clean (thanks, of course, to environmental law…) makes me want to break something. I try to muster some empathy for those making this argument, because they obviously have no perspective on what the lack of meaningful environmental regulation would actually mean for their daily lives. Which is why they should come to China for a while—preferably with their small children and aging parents. (Then we’ll see how much they miss the EPA!)

Here in Qingdao, without the benefit of enforced environmental regulations, we have learned simply to pray for cold weather. The northerly winds from Siberia blow the smoke out to sea and provide a day or two of respite, so bitter cold is our new favorite forecast. In fact, Qingdao’s famously clean air is probably a result of this standard winter weather pattern—but the weather patterns here shifted this year, as they have been doing all over the globe. Whether for reasons of climate change or unknown factors, the winds that once regularly purged Qingdao’s smog barely blew this winter, and air quality plummeted accordingly. In just the first three months, bad air quality days already exceeded the previous year’s by 400%. Qingdao residents have complained bitterly about the problem, even prompting some new local regulations. But as one of my students wryly observed, “would they rather their homes have no heat?”

Qingdao February 040 In fact, northern Chinese winters get very cold, and most of our Chinese friends easily prefer the heat with all of its downsides. But we should also give credit where it is due for the many ways that Chinese people avoid making the problem even worse—by not living the way that most Americans do. For example, the roofs of all Chinese buildings are barnacled with rows and rows of solar water heaters, avoiding the need for yet more coal-fired electricity. The taxi fleets all run exclusively on natural gas, and city public transportation is exceptional—cheap, easy to use, and everywhere. Almost nobody here has an electric clothes dryer, among the most notorious energy hogs in the American household. Some fear this may change for the environmentally worse as 1.4 billion Chinese get richer and more interested in exotic appliances—but Japan has a fully developed economy, and line-drying remains the norm there as well. Finally, China appears to have made a serious national commitment to reducing greenhouse gas production in its Twelfth Five Year Plan, now beginning implementation in the seven largest metropolitan areas. (Perhaps in the meanwhile, they can work on small coal-plant scrubbers.)

Anyway, we are now counting down the days until the heat finally goes off on April 15th. What seemed unendurable in the first few months eventually became routine, such that the days we once barricaded ourselves inside are now days that I will (if reluctantly) take my son outside to play. We say things like, “the air is bad today, but at least the chalk dust doesn’t have too much chemical in it.” For better or worse, we have adjusted to our new environment—fully appreciating that it is still better than most Chinese enjoy. After November 15th, I alternated between horrified, angry, and desperate that I had submerged my family in the very sort of environment that I had pledged my professional career to avoid. I still have all of these feelings at times, but the desperation has mostly given way to determination. Qingdao Brewery 070What environmentalists do is important. (Indeed, even the Tsingtao Beer Museum includes a display about environmental protection efforts tracing to Rachel Carson's Silent Spring.) What environmental scientists and lawyers do is important. What environmental law professors do is important. Keep doing it, everyone.

--Erin Ryan

April 7, 2012 in Air Quality, Asia, Cases, Climate Change, Current Affairs, Energy, Governance/Management, International, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, April 6, 2012

Energy Fun in the . . . Wind

While much of the legal news this week has been devoted to revisiting the early 19th Century debate about the various roles of our branches of government, I thought it might be time for a bit of levity.  To that end, below are several fun / cool / interesting resources related to energy and energy law and policy I've recently come across.  Check them out:

  • A gorgeous, real-time map of wind in the continental U.S.

  • Green Button, an effort backed by the Obama administration to give consumers access to detailed information about energy consumption in their own homes

  • Elizabeth Wilson's very cool Energy and Environmental Policy page on Facebook - definitely worth watching

  • A great visualization of load pockets, and how they drive prices up due to transmission constraints

  • Pecan Street, which, among other things, is developing a fascinating data set of household consumption use throughout the day and by appliance type (spoiler: "It's all about the A/C," as Pecan Street's Brewster McCracken says)

-Lincoln Davies

April 6, 2012 | Permalink | Comments (1) | TrackBack (0)

Thursday, April 5, 2012

A Hectic Week on the Takings Front

For Takings Clause enthusiasts, the past week has proven a busy one.  Two state court decisions out of Texas and New Jersey, coupled with a grant of certiorari at the U.S. Supreme Court, threaten to constrain governmental decision-making at the complex intersection of land and water.

The Texas Supreme Court issued its long-awaited decision on rehearing in Severance v. Patterson.  While the support of dozens of amici curiae managed to peel one Justice away from the original 6-2 majority, the Court, by a 5-3 vote, adhered to its original holding that state law does not recognize an independent public beachfront easement that “rolls” landward as avulsive events shape and re-shape the state’s shoreline.  Meanwhile, a New Jersey appellate panel issued its opinion in Borough of Harvey Cedars v. Karan.  The court affirmed a trial court ruling that a sand dune constructed on condemned property in conjunction with a public beach replenishment project did not confer a special benefit on the oceanfront landowner; therefore, the court upheld a jury verdict of $375,000 in takings compensation given that the dune reduced the landowner’s view of the water. 

These decisions may bring beach replenishment projects to a halt in Texas and New Jersey.  Texas Land Commissioner Jerry Patterson already has announced that the state is abandoning a plan to spend state taxpayer money on rebuilding what are now considered private beaches along Galveston Island’s West End.  While New Jersey has engaged in beach replenishment for decades by acquiring voluntary easements from private beachfront landowners who overwhelmingly welcomed shore protection, the decision in Karan provides oceanfront landowners with an incentive to hold out for what could be viewed as a dual windfall: shore protection and takings compensation.  Some may welcome the demise of beach renourishment in light of the environmental degradation that can result from mechanized manipulation of the ocean floor and upland coastal areas; however, that likely is only the case if a more ecologically sensible approach that would allow for the natural inland migration of the sea takes its place as a response to the effects of coastal storms and sea-level rise.

As if these two state courts opinions were not enough for takings scholars to chew on this week, the U.S. Supreme Court agreed to review the matter of Arkansas Game & Fish Commission v. U.S. in its next term.  The alleged taking occurred in the course of the U.S. Army Corps of Engineers’ management of the Clearwater Dam on Arkansas’s Black River.  Arkansas’s Fish & Game Commission alleges that the Army Corps deviated from its original management plan detailing how and when water would be released from the dam.  In doing so, the Commission and its amici (including the Pacific Legal Foundation and the Cato Institute) assert that the Army Corps unconstitutionally “took” a property interest—a flowage easement—by temporarily flooding part of the Commission’s wildlife and hunting reserve for more days per year than conceived of in the original plan, which, in the process, damaged state-owned bottomland hardwood timber. 

Reversing a $5.8 million takings award issued by the Court of Federal Claims, a 2-1 panel of the U.S. Court of Appeals for the Federal Circuit held that U.S. Supreme Court precedent asserts that only an “actual, permanent invasion of land” rises to the level of a taking.   The Court of Appeals concluded that temporary injuries are more appropriately addressed under tort law, not takings, precepts.  The U.S. Supreme Court’s review of Arkansas Game & Fish Commission conceivably could touch on a host of takings issues, including the distinction between government torts and government takings, the reach of the categorical rule applicable to physical invasions set forth in Loretto, the uncertainties surrounding the “temporary” regulatory takings doctrine introduced in First English and refined in Tahoe-Sierra, and the question of whether the government’s intent—here, whether the government intended the water release to be a continually recurring event or a temporary measure—is relevant to determining whether a taking has occurred.  It is not altogether common to see a state petitioner challenging federal action as an unconstitutional taking in this type of situation.  With the possibility of the Court expanding takings liability for all levels of government, one might say that Arkansas and the three states that supported its cert petition—Louisiana, Mississippi, and South Dakota—should be careful what they wish for.

Stay tuned to the Environmental Law Professor’s Blog for updates and analysis on these important takings cases.

-Tim Mulvaney

April 5, 2012 | Permalink | TrackBack (0)

Wednesday, April 4, 2012

Hunger Games, Environmental Ethics, and Climate Change

Anyone who has spent time around me knows well that I decompress from the intensity of academic life--and of trying to make a difference on issues like climate change, energy, and environmental justice that lack any easy answers--in part through my love of not-so-intellectual popular culture.  I don't know too many other law professors who will openly admit to subscribing to Us Weekly, though many thumb through it while visiting my home.

So even though the Hunger Games trilogy was a little darker than the books that I typically enjoy, I was drawn in through the brilliant marketing campaign that an interesting New York Times article dissected.  Once I began book one, I--like so many people I know--was sucked in until the very end of book three.  Then, I hosted a neighborhood book club night focused around the book, complete with Nightlock (well, ok, they were really blueberries), Prim’s Goat Cheese, Burnt Nutty Bread from Peeta’s Bakery, Capitol Hors D'oeuvres, Cookies from Peeta’s Bakery, and Seaweed from District 4.  Hunger Games Party March 2012
I also went opening weekend to see the movie with a group of colleagues and other friends, followed by some tasty margaritas and Mexican food.

However much I enjoyed all this play, though, I never could quite escape the nagging feeling that this book actually had something to do with my day job.  There have been quite a few articles about the way in which climate change is portrayed in the book as setting the stage for the dystopian world, including an interesting one on Slate.  Moreover, the notions of the value of nature and environmental balance ran much deeper throughout the book.  The central character Katniss has a deep connection to the woods and its creatures, expressed through both her hunting and singing.  The book seems to urge the value of a simpler life, connected to the rhythms of the natural world, over the ostentatious consumption of the Capitol.

At the very same time as a hugely successful book and movie seem to acknowledge the importance of avoiding major climate change and achieving more balance with nature, however, the popular discourse over these issues remains disfunctionally fractured.  The warring Wall Street Journal op-eds and John Stewart's criticism Fox News for not publicizing that a study partly funded by Koch Industries reinforced the validity of findings by climate scientists are just two of the latest reminders of the divide in this country.  While I watch us continue to gear up for the 2012 elections and the partisan discourse that accompany them, with more money flowing in from Super PACs, I try to find some hope in the fact that maybe our basic values are not so far apart as we root for Katniss to find peace in her woods.

Hari Osofsky

April 4, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 3, 2012

Jiro Dreams of Sushi: Food for Thought

While there was no legal aspect to this movie, this documentary about a Japanese restaurant in a Tokyo subway station left an impression on me. Briefly, it is really about the 85 year old founder of the restaurant, which has three Michelin stars. What shines through is the commitment of Jiro. But, here are a few things about the movie that struck a chord:

1. Jiro and his son noted that it was getting harder to find good fish. That while in the "olden days" finding fine tuna was not difficult, it was now very hard to do so.

2. That since Jiro had opened his restaurant--some fish species had "disappeared." In about 50 years or so. Jiro notes that soon tuna may also disappear. But, while he has managed to find substitutes for the other species, there may simply be no substitute for tuna.

3. Jiro and his son attributed the loss of species implicitly to over comsumption and indiscriminate fishing. They noted that unlike in the "olden days" when sushi was a delicacy and a treat in Japan, and little known abroad, it was now sold as fast food in restaurants on food carousels. That a taste for sushi has now captured the world.

They noted that in light of the high demand fishermen caught very young tuna. This practice produced low quality fish (for sushi purposes) and also did not give fishstock time to rejuvenate.

Why were they so concerned? Because, without sustainable fishing, there would be no sushi. No restaurant.Their solution, which resonated throughout the movie, was one of modesty and commitment. It is worth watching.

The documentary also brought to mind the Southern Bluefin Tuna dispute, in which the Japanese government claimed the right to conduct experimental fishing and which resulted in the matter being submitted to the International Tribunal on Law of the Seas. The details of that dispute can be found here. What has happened since? I am not entirely sure, except that the Parties decided to resolve it through diplomatic channels. I am still looking into this issue and will report back if I come across any new information. Do let me know if you have any thoughts or leads on the matter.



April 3, 2012 | Permalink | TrackBack (0)

Age of Abundance?

The April issue of Discover magazine provides some positive perspective on the state of the world's environment, something to which I all too often do not pay enough attention. The article, "Age of Abundance," details that "thanks to the exponential growth rate of technology combined with three powerful emerging trends, we are teetering on the edge of a much better tomorrow." These three forces are "the new-found power of the do-it-yourself (DIY) innovator," the creation of wealth at much faster rates than in the past, and the dramatic increase in worldwide access to the internet over the next decade (the number of people accessing the web is expected to grow from 2 billion in 2010 to 5 billion by 2020). Consider the below infographics for perspective on the hope for our global future. 

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Photo (1)

- Blake Hudson 

April 3, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 1, 2012

In Case You Missed It - Week of March 25 - April 1

* EPA proposed greenhouse gas emission rules for new power plants

* The Chinese firm PetroChina became the world's largest oil producer, passing ExxonMobil

* The Supreme Court has asked the Solicitor General to offer his opinion on four 9th Circuit environmental cases

* John Rowe, former CEO of Exelon, argued that new nuclear plants are uneconomic under current conditions and argued that they will remain so for some time

* Tokyo Electric Power, the operator of the Fukushima Daiichi plant, has asked the Japanese government for a $12 billion bailout

* Germany decided to deeply cut subsidies for solar power

* A Gallup poll showed that Americans favor economic development over environmental protection for the first time

* A new film, Coal Rush, that highlights "the progress of a multi-million dollar case against the coal company Massey Energy" premiered in Atlanta

April 1, 2012 | Permalink | TrackBack (0)