Wednesday, February 26, 2014
In late January Royal Dutch Shell announced that the company was putting an end to its efforts to drill exploratory wells in the Arctic Ocean off Alaska’s north coast this summer, and intimated that it may never drill there, at all. The announcement was timed with other recent climate news. Just a day or two later the State Department released its Supplemental Environmental Impact Statement for the 2012 Presidential Permit application for the proposed Keystone XL pipeline. Two weeks after that it was revealed that the Arctic archipelago of Svalbard has been experiencing average temperatures 15 degrees C above normal. But I don’t think Shell made its decision because it worried what President Obama will do with Keystone XL, or because of the ever-mounting evidence of climate change impacts in the Arctic. Rather, the company probably made the decision because the Ninth Circuit held the week before, in Village of Point Hope v. Jewell, that the environmental impact statement prepared for the 2008 lease sale in the Chukchi Sea violated the National Environmental Policy Act.
The Ninth Circuit’s decision is important, of course, because of its immediate impact on oil and gas drilling in the U.S. Arctic. It is also notable, though, from a teaching perspective, for at least three reasons:
First, the decision affirms, in one of the most visible environmental battles of the day, that NEPA remains an important, even essential, tool in the environmentalist’s toolkit, capable of stopping major projects from moving forward, or at least stalling them for the time being. This remains as true as ever, even though NEPA is just a “procedural” statute.
Second, the decision provides a nice illustration of how courts treat the “missing information” requirement under Section 1502.22 of the Council on Environmental Quality’s NEPA regulations in the context of a tiered environmental review. Under this provision, an agency must either obtain information that is “essential to a reasoned choice among alternatives” or explain why such information was too costly or difficult to obtain. But the Outer Continental Shelf Lands Act explicitly provides for multiple levels of environmental review as an offshore lease moves from the original lease sale to actual production and development. Here, the court found that the Bureau of Ocean Energy Management’s analysis of the impacts of a major oil spill did not fail even though it lacked specific information about such things as species population numbers, migratory patterns and breeding habits. According to the court, that data would be relevant at a later stage. Increasingly, it seems that knowledge of programmatic EIS’s is essential to understanding how NEPA works today.
Finally, the decision illustrates how far afield an agency has to go in a technical analysis to run afoul of the statute, and what kinds of evidence attorneys use to demonstrate the “arbitrary and capricious” application of agency expertise. In this way, it stands as a contemporary comparable to the Westway litigation and the Second Circuit’s decision in Sierra Club v. U.S. Army Corps of Engineers, with its improperly timed studies and ignored population of winter bass among the piers on the Hudson River. Here, BOEM estimated the amount of recoverable oil in the Chukchi lease area by estimating production from a theoretical first offshore oil field, an amount that totaled the nice round number of one billion barrels. One apparent reason for focusing on the first field, rather than the entire lease area, was that the BOEM analyst wouldn’t have the relevant data for the larger analysis for two months. Not exactly the best reason to take a predictive approach to a five-year lease sale in a frontier region of the Arctic. And according to two of the judges on the panel, at least, an arbitrary one.
There is, of course, more: A series of emails that do not paint the agency staff in the best light, ultimately whittling down a range of options to a single number. Skeptical comments on the draft analysis from other BOEM staff. Highly critical comments from EPA and Fish and Wildlife. Public comments that make plain some of the more obvious flaws in the logic of BOEM’s decision. Courts will defer to agency expertise, and that deference reaches its height out here in the predictive realm, but get enough in-house experts, sister agency staff and clear-thinking citizens to disagree and you might just have a winning case.
At the end of the day, it was probably most damaging that BOEM chose a number that represented “the lowest possible amount of oil that was economical to produce as the basis for its analysis.” This number then factored into all of the environmental impact assessments, including seismic effects, habitat effects, and effects of the sale on global warming, as well as Fish and Wildlife’ determination that the lease sale would not jeopardize listed species. As it turns out, it was a close call on the spectacled and Stellar’s eiders. Even a slightly higher estimate may have resulted in a jeopardy finding.
That, students will see, is a bad fact for the defense, a good one for the plaintiffs.
- Michael Burger
Thursday, July 4, 2013
Happy Independence Day, everyone!
Unfortunately, I am spending my day with a health issue. By way of a silver lining, that gave me the perfect excuse to catch up on episodes of "Through the Wormhole." All of which has led me to conclude: If you're still a stranger to "Through the Wormhole," you shouldn't be. (And, by the way, the first two seasons are readily available through Netflix and probably a lot of other services.)
So, why make the effort to watch?
(1) If you like environmental law, the chances are good that you have at least a passing interest in science. This is cutting-edge science, presented in a very intelligent format.
(2) Okay, it's mostly physics (and mostly of the quantum/cosmological type) -- but how often do we get to go there?
(3) Morgan Freeman hosts. 'Nuf said.
(4) But none of that would be enough on its own for me to feature the show on this blog. The real reason that I think "Through the Wormhole" is worth the effort for environmental law professors is that the show provides EXCELLENT examples of how to teach complex scientific concepts. Each episode starts with a plain English, common-sense explanation of why what you're about to learn is important. You then get some normal-life analogy to explain what the scientists are doing -- for example, smashing a watch becomes analogous to smashing atoms. But the best part of the show are the visuals it treats you to -- pictures, animations, special effects (aliens morphing into scientists being my favorite so far), and all manner of scientific illustrations and data displays -- while the scientists and Mr. Freeman explain (with excellent senses of humor all around) what the heck the scientists are doing.
I can't say, after watching the episode on subatomic particles, that I can give you a physicist-quality explanation of what a Higgs boson is -- although, in my own defense, the physicists talking about it seemed a little blown away by the concept as well. On the other hand, the episode on the possibility of alien life certainly gave me some new perspectives on water and ecological principles that I plan to incorporate into class, and the discussions of alternate evolutions on Earth (with careful and understandable presentations of the scientific evidence) will have repercussions for how I teach students about deep-sea thermal vent ecologies in Ocean and Coastal Law. I recommend the episode to anyone who teaches biodiversity issues to students.
More importantly, the series as a whole is giving me some great new perspectives on how to blend lecture, video, and graphics into much more effective presentations of hard-core science than I've been doing to date. I think that the examples from the series will be especially instructuve for how I teach the basic science of climate change in Environmental Law and the basic human biochemical reactions to toxins in Toxic Torts. I'm really looking forward to experimenting next year!
Give the show a try!
-- Robin Kundis Craig
July 4, 2013 in Biodiversity, Climate Change, Physical Science, Science, Sustainability, Television, Toxic and Hazardous Substances, Water Resources, Web/Tech | Permalink | Comments (1) | TrackBack (0)
Sunday, June 2, 2013
World Oceans Day is June 8. It’s a relatively new holiday—the United Nations General Assembly decided in 2008 (United Nations Resolution 63/111, paragraph 171) that every June 8, starting with June 8, 2009, would bear the United Nation’s designation of World Oceans Day.
The purpose in designating World Oceans Day was to call attention to the many problems facing the ocean and to raise global awareness of the many challenges facing both marine ecosystems and the humans that depend upon them. In 2013, the theme for World Oceans Day is “Oceans & People.” The day even has its own 43-second video, care of “One World, One Ocean,” which you can view at http://worldoceansday.org.
The interesting thing about the video, however, is that it shows healthy, beautiful oceans teeming with life. The oceans themselves, however, are more often than not in much worse shape than that.
If you read the New York Times Magazine last week (May 26, 2013), you might have noticed that the cover story was about monk seal murders in Hawai'i. Hawaiian monk seals are among the most endangered marine mammals in the world. Most of their breeding grounds are in the Papahanamokuakea Marine National Monument, a limited-access marine reserve covering the Northwestern Hawaiian Islands. (Notably, the murders occurred in the Main Hawaiian Islands, the islands all of us visit on vacation.) And yet, somebody (or several somebodies) wants the monk seals dead.
From one perspective, the monk seal story is sad and disturbing. From another, however, it is a microcosmic example of a macrocosmic phenomenon: Humans are killing the oceans, largely because we don't think we can.
And law isn't doing a whole lot to stop that process, by the way.
The oceans occupy 139.4 million square miles of the Earth's surface, or about 71% of that visible surface. Of course, they also have significant depth--up to almost 36,000 feet at the Mariana Trench.
And we're changing them. If that doesn't scare you, it should.
We're changing the ocean's biodiversity. Even as the Census of Marine Life revealed in 2010 at least 20,000 new marine species after a decade of world-wide research, scientists are predicting that most fish species will be commercially extinct by 2050. In addition, large individuals of marine species are already down to about 10% of what is "natural."
We're changing the ocean's chemistry. As the concentrations of carbon dioxide in the atmosphere increase, the world's oceans are taking up a lot of the excess--about 40% of the anthropogenic carbon dioxide. Their capacity to do so may be decreasing, but even if it isn't, the oceans can't absorb that much carbon dioixide without impact. Through a complex chemical reaction, the absorbed carbon dioxide becomes, essentially, carbonic acid, a phenomenon that has already measurably reduced the ocean's pH. This "ocean acidification" is already interfering with mariculture in the states of Washington and Maine; it may be altering ocean acoustics; and it could interfere with the ocean's ability to produce oxygen for all of us.
We're changing the ocean's currents. As average atmospheric temperatures increase, they both change wind patterns and increase sea surface temperatures. Both of these alterations, in turn, change ocean currents, and the results have been as diverse as new "dead zones" (hypoxic zones) off several coasts and an ocean "hot spot" off the coast of Tasmania, Australia.
We're changing the ocean's temperatures and cycles. The most obvious example is the Arctic Ocean, which set records for the amount of sea ice melt in 2012 and may be entirely ice-free in the summers as soon as 2016. The Arctic nations (Canada, Russia, Denmark, Norway, and the Unites States) are already anticipating increased human use of the Arctic Ocean, including fishing, offshore drilling, and commercial marine traffic. The implications for the mixing of marine species traditionally considered purely "Pacific" or purely "Atlantic" are potentially mind-boggling.
Against this background, the Obama Administration released the National Ocean Policy Implementation Plan in April 2013, available at http://www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf. There's a lot in the National Ocean Policy, and there's a lot in the Implementation Plan. However, one thing notably dropped out between the Draft Implementation Plan and the final Implementation Plan: required marine spatial planning. Marine spatial planning is a demonstrated best practice for reconciling, coordinating, and rationalizing the multiple uses that humans make of the marine environment--including the needs of the marine ecosystems themselves. In the United States, marine spatial planning, implemented well, could also help to rationalize the radical fragmentation of authority that undermines comprehensive ocean governance.
This isn't a government taking the need for increased marine resilience seriously. As I've argued in multiple other fora, we need to transform our ocean law and policy.
Happy World Oceans Day!
-- Robin Kundis Craig
June 2, 2013 in Biodiversity, Climate Change, Economics, Food and Drink, Governance/Management, Law, North America, Science, Sustainability, US, Water Resources | Permalink | Comments (0) | TrackBack (0)
Saturday, April 20, 2013
Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China. A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays. That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):
New Series: Environmental Adventures in China. “This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”
China Environmental Experiences #2: Rocky Mountain Arsenal. “But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here….”
China Environmental Experiences #3: Breathing Air with Heft. “…It’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.…”
China Environmental Experiences #4: Wifi Without Potable Water. “This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power….”
China Environmental Experiences # 5: Milk, Pesticides, and Product Safety. “Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were.…”
CEE #6: Environmental Philosophy and Human Relationships with Nature. “In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy…."
CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity. “[Previously], 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….”
CEE #8: Environmental Protection as an Act of Cultural Change. “This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China….”
CEE #9: Post Script: Returning from China to the U.S. “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”
April 20, 2013 in Air Quality, Asia, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Environmental Assessment, Food and Drink, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)
Thursday, October 25, 2012
On November 14-15, 2012, the Marine Affairs Institute at Roger Williams University School of Law is putting on its 9th Bi-Annual Marine Law Symposium. This year's theme is...climate change! (Shocking, right?) But even with all the attention given to climate change at similar events, this symposium fills an important gap: The symposium will specifically address climate change's impacts on the oceans, and the ways in which coastal and ocean law and policy are (and are not) responding. We have scientists, policymakers, practitioners, and a good helping of legal scholars to talk about ocean acidification, rising sea levels, state and munipal adaptation efforts, the implications for the maritime industry, and emerging issues in the Arctic. You can find the agenda here. And here is the description:
This Symposium will examine the laws and policies that are implicated as climate change impacts coastal and ocean environments. The land-sea boundary is shifting, ocean water is warmer and more acidic, fluctuating weather conditions and storms increasingly impact coastal communities, and the melting Arctic ice cap raises new international boundary and resource exploitation issues. These changes trigger many corresponding legal considerations for natural resource managers, planners, attorneys, insurers and law enforcement entities. At this Symposium, experts and legal practitioners from governmental bodies as well as private industry, academia and non-profit organizations will explore the state of the law, how disputes have been handled to date, and what may be on the horizon. Attendees can expect to walk away with the law and policy tools necessary to engage in these rapidly changing issues, and an understanding of the natural and social science behind changing coastal and ocean conditions.
You can contact me if you have any questions. And I hope to see you in Bristol!
- Michael Burger
Friday, March 9, 2012
"Heeding the Signs of a Changing Ocean" -- Susan Avery, President and Director, Woods Hole Oceanographic Institution:
- "Every second breath you take is provided by the ocean."
- "We have entered a new geologic age -- the anthropocene era."
- "The Gulf and other coastal waters have long been a dumping ground for human activities."
- "One thing that I think Rachel would be pleased about is that science [is now] at the stage where you can predict the emergence of harmful algal blooms."
- NOAA "has begun now issuing seasonal red tide alerts in the Northeast."
- "I really think it's harder to get into the ocean than to space. We probably know more about the surface of the moon and Mars than we do the ocean."
- "It's not funded, but we have a national ocean policy."
- "If we think about where we are now with the oceans, and what Rachel Carson would think today, I think she we be partly despairing and partly hopeful."
- "The economic benefit of the ocean is huge, and it is just beginning to be documented."
- "Everyone has a stake in the oceans."
- "One of the keys" to ocean management "is the realization that best practices by an individual corporation is not enough . . . . Collaboration is needed . . . . The problem is that there has not been a structural process to" bring ocean industries together.
- "Thinking to the future . . . , these are the kind of cross-sectoral things that . . . businesses can get involved in and be part of the solution and not just part of the problem:" (1) ocean governance -- Convention on Biological Diversity, (2) marine spatial planning, (3) regional ocean business councils, (4) smart ocean / smart industries.
- "Marine mammal issues will increasingly affect marine activities, especially shipping."
- "We need to balance that growing need for resources and food and energy with those areas that already have resources."
- "Better data means better modeling and better forecasting," which fundamentally helps businesses, "let alone leading to better environmental management."
"Challenges for Ocean Governance in a Climate Change Era" -- Robin Kundis Craig, Attorneys' Title Professor of Law and Associate Dean for Environmental Programs, Florida State University College of Law
- "I think what we should really be thinking about is how to keep those ecosystems healthy, functioning, and resilient rather than collapsing."
- "The problem is we have one ocean but many governments."
- "As much as we'd like to treat the ocean as one place, there are serious problems for doing that under our current legal system."
- "Marine spatial planning was introduced, internationally at least, before governments were really thinking about climate change. . . . It is not a panacea. . . . It will not really help with climate change mitigation . . . ."
- "Marine spatial planning can help with climate change adaptation, and it" can become "more climate change adaptable."
- "Ocean acidification is the technical fix for anyone who wants to [address] climate change" in the oceans.
- Australia has a climate change adaptation plan for the Great Barrier Reef. In part, it seeks to "fill knowledge gaps," "identify critical ecosystem thresholds," and translate that into management practices.
- "Australia is also using the Reef as a reason to engage in climate change mitigation."
- An example of dynamic zoning possibilities is TurtleWatch, which predicts on a daily basis where sea turtles will be so that fishers can avoid them (and thus prevent closure of the fishery).
March 9, 2012 in Biodiversity, Books, Climate Change, Current Affairs, Economics, Environmental Assessment, Governance/Management, International, Law, North America, Science, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Monday, February 27, 2012
As I explained in a previous post, this year I am blogging about my environmental experiences in China, where I am spending the year as a Fulbright Scholar at Ocean University in Qingdao. In this series, I’ll describe what it’s like to live in a rapidly developing society without effective environmental regulation of air, water, and product safety—but also those environmental realms in which the Chinese surpass American efforts, including public transportation, overall consumption levels, and the national commitment to encouraging cultural change toward a “recycling economy” (while Americans argue about teaching climate science in schools). (For the full background on this series, see my introductory post.)
But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here. Teaching environmental law and policy here is, as you would imagine, endlessly enlightening. Environmental decision-making in the U.S. proceeds from very different underlying assumptions than those most prevalent in China. So it was fascinating to begin class the way I usually do, probing the conflicting assumptions about the goals of natural resources management that make the enterprise so challenging in any context.
As many of you probably do as well, I especially like to raise these issues through the Rocky Mountain Arsenal discussion problem posed by environmental historian Bill Cronon (in Uncommon Ground: Toward Reinventing Nature) and nicely excerpted in the Rasband, Salzman, and Squillace NRL textbook. (Attached photo by Oborseth, with Creative Commons license.) This compound outside of Denver was left so toxic after decades of manufacturing mustard gas, napalm, and other chemical weapons that it was completely sealed off from human contact for years after its closure in 1992—a respite from human intervention during which it evolved into the nation’s “most ironic” wildlife refuge. Wildlife driven out of the developing Colorado front-country was finally able to establish undisturbed habitat in the arsenal, notwithstanding its toxic soils and contaminated waters. If the frogs had five legs, at least those frogs had wetlands to live in.
After sharing the story with my Chinese students, we debated the questions posed by Cronon and the textbook authors—how would you best manage these lands in accordance with nature? Would you initiate the massive disruption required to decontaminate the very earth underfoot, even though it would likely displace (and kill) a lot of wildlife? Or should you leave the five-legged frogs alone to live out their happy if shunted lives, peacefully unaware of the toxic soup in which they live? This began a lively conversation with the class that continued pleasantly and provocatively for months.
But over those same months, several of these students also became involved in my family’s experience of navigating the environmental challenges of our new life in China.
A few were there on the day that we arrived in Qingdao, helping us move into our new apartment. There were huge flakes of paint peeling from every wall, window, and doorway, collecting in piles on the floor no matter how often swept, beckoning my three-year-old like so many giant, lightly-sweetened corn-flakes. My very first question to the student in charge, an environmental law major with impeccable English, was whether I should worry about lead in the paint. “Why?” he asked. But even translating the problem into Chinese (and noting the established problem of lead paint in some Chinese toys) didn’t quite convey my concern. He assured me that children all over China grow up without incident in identical apartments with the same kind of paint, whatever it was. (Between this and the fact that the bathroom drain piped dirty water directly into the kitchen tap, we did not last there long.)
Several students traveled with me on congested area highways on days when I was overcome with the fumes of auto-emissions to which they were so accustomed that they didn’t even notice. Many times, on days thick with foul-smelling cloudy air, they assured me that Qingdao is a coastal city, and that this was just fog. Having lived in coastal cities most of my life, I am quite familiar with the difference between fog and smog. Fog is wet, I would say, and it doesn’t sting your eyes or your throat. “You feel this in your eyes?” they would ask, incredulously. I would later discuss EPA’s new Mercury Rule with a group over lunch, touching on its significance for coal-fired power plants. None had ever heard of the relationship between coal-fired plants and mercury, even though we could see three belching furiously into the air just from where we were sitting. Chinese coal doesn’t have any mercury, one assured me.
Others were on hand when our (second) apartment became infested with insects that ravaged us at night until my son looked like a smallpox patient for all his sores. The bites were so intense that bitten fingers would swell and go numb for hours at a time, preventing us from sleeping at all. After two weeks, we were so obviously exhausted and haggard that even my students were anxiously trying to help resolve the problem. And the solution was so obvious to them: just douse the apartment with successive rounds of pesticides as hard and thoroughly as possible until whatever was preying on us was gone. They contacted the building manager to explore options for beginning the process immediately, and secured a promise to do so. The solution was so simple that they were astonished by our polite but strident refusal to allow it.
Although we were desperate to be rid of the pests, we were even more concerned about the potential poisons used to eradicate them. Indeed, one of the hazards of being an environmental law professor is knowing a little too much about the hazards environmental laws are designed to prevent—such as the neurological consequences of organophosphate exposure. We had already puzzled everyone by declining to use the standard pesticide aerators that most Chinese use to kill mosquitoes, opting for minor suffering over the unknown consequences of an inhaled pesticide that we couldn’t research in English. We knew about some very dangerous Chinese chalk pesticides that are especially harmful to children, but we couldn’t evaluate the safety of those being offered to us now. After my son experienced some unusual neurological symptoms as an infant, we had avoided even American pesticides regulated for consumer safety, and this just didn’t seem like the time to shed precautions. But how to explain this to our kind hosts, for whom pesticides are a regular, widespread, and unquestioned part of life?
I finally just had to acknowledge that our behavior probably seemed completely unreasonable to most Chinese people, who would easily opt to fumigate and forget. I said a little bit about my son’s special medical history and explained that we were probably even more cautious than the average Americans. But I also noted the concerns raised by public health advocates around the world about the negative consequences of introduced chemicals in the environment, especially on young children. I explained the care that many American parents increasingly take in limiting the early exposure of their children to potentially dangerous substances in pesticides, cleaning products, and even plastic baby bottles.
In the end, with a little creativity and help from our friends, we were able to find some non-toxic solutions to our pest problem. But a few days later, one of my favorite students came up to me before class to say that he had continued to ponder the pesticide situation—and the eye-stinging air, and the peeling paint. This was the same student who had assured me not to worry about lead paint in the first apartment, and one of the many who regularly assured me that the cloudy air was coastal fog. “I cannot stop thinking this,” he said. And then in hushed but earnest tones: “China is the Rocky Mountain Arsenal, isn’t it?”
My jaw slowly dropped as I tried and failed to form words. He looked at me steadily, with an intense but quiet pain behind his eyes. I hated the comparison between China and a toxic dump. I especially hated it from this brilliant student, so proud of his country’s accomplishments and protective of the many ways that it differs from mine. But he persisted: “Not perfect comparison, I know, but really, the same basic situation, right? Environment is fouled, and we are like those frogs. We don’t even know it, do we? That we live in a toxic world?”
Still speechless, I nodded gently, to acknowledge the part of the comparison that tragically held some truth. Then I mumbled something semi-coherent about the same problem happening worldwide, and I politely turned away to ready my notes for class (but mostly so that he would not see me brush away the wetness from the corners of my eyes).
The pain behind his broke my heart. He was right, of course (and to some extent, his observation holds true for all of us). But in that moment, the last thing I wanted was for my teaching to make him feel ashamed of his country, or betrayed by his government, or panicked about the future—or, really, anything other than just a little more educated than he had been the day before.
But he is that much more educated, and this I did come to do. I am here to teach American environmental law, and in so doing, I find myself surprisingly torn. In sharing with my students some of the ways that I see the world, I necessarily force them to see theirs a bit differently, and it is not always for the best. To be sure, our educational exchange works in both directions, and that student reminded me that all of us are living in the Rocky Mountain Arsenal in varying degrees. But the Chinese students with whom I spend the most time no longer believe that the cloudy air is fog, and I am sad for them that they will now worry for their children in a way that their neighbors won’t. They will worry about mercury poisoning and lung cancer, and worse—they will feel powerless to change it, at least for now. Without genuine levers of participation in governance, there really is some bliss to be had in ignorance.
Their lost environmental innocence is cause for grief, especially when it brings pain without obvious remedy. As midwife for this loss, I share in that grief. But I also cherish the hope that it will one day be a reason for celebration, when—thanks to their generation’s rising consciousness—the air no longer stings. If nothing else, I hope that my students will have that much more fire in their bellies, as their bellies are increasingly well-fed, to protect the next generation more effectively. And on that front, knowing even this small sample of Chinese young people fills me with confidence.
Wednesday, November 2, 2011
The Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah S.J. Quinney College of Law has posted a job opening for a new alternative dispute resolution program focused on environmental, natural resources, and energy issues. The position is for the director of the program.
Here is the announcement. Note the link at the end for online applications:
The Wallace Stegner Center for Land, Resources and the Environment at the University of Utah S.J. Quinney College of Law is establishing a new Alternative Dispute Resolution (ADR) program focused on environmental, public lands, and natural resource issues and is currently accepting applications for the ADR Program Director. The Director will play a major role in initiating, designing, and developing the new ADR program. Specific responsibilities include identifying issues of local, regional, and national importance and proactively investigating ADR opportunities; public education about the benefits of mediation, collaboration, and other ADR options; providing ADR services to government agencies, corporations, environmental organizations, and other entities; fundraising to support the program; and research on ADR processes and opportunities. Requirements include a Juris Doctor or equivalent degree, along with a minimum of five (5) years of experience in alternative dispute resolution. Experience with environmental, natural resources, or energy law and policy, and especially experience with these issues in the western United States, is strongly preferred. For additional information and to apply, please go to http://utah.peopleadmin.com/postings/11104.
November 2, 2011 in Air Quality, Biodiversity, Climate Change, Current Affairs, Energy, Forests/Timber, Governance/Management, Land Use, Law, Mining, North America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)
Tuesday, September 27, 2011
When in college (1997-2002) I was introduced to the Gopher Frog (Rana Capito). A biology professor of mine at the University of Montevallo, Dr. Malcolm Braid, performed research on the frog, including an innovative captive breeding and relocation program. The frog was rapidly disappearing from Alabama due to both urban sprawl in areas of critical habitat as well as the destruction of the longleaf pine ecosystem. The gopher frog has a cousin, the Dusky (Mississippi) Gopher Frog (Rana Sevosa), which had previously been considered a subspecies but was elevated to species status in 2001. Only one small population of the dusky gopher frog now survives in a small area in southern Mississippi (picture above) and the frog only numbers around 100 individuals in the wild (though 1500 live in captivity in a successful breeding program). For more information on the frogs see here and here.
The longleaf pine ecosystem upon which the gopher frogs depend once stretched over 90 million acres across the entire southeastern U.S., but now only around 3-4% of it remains. Fire suppression, urban development, and forestry practices that replaced longleaf with monoculture pine plantations are primarily to blame for the loss of the ecosystem. Not only does the longleaf ecosystem provide critical habitat for the dusky gopher frog, but it also supports a variety of other unique species also listed under the ESA, such as the Gopher Tortoise (about which I have previously written) and the Red-Cockaded Woodpecker, among others (in fact, my pioneering grandfather, in an early effort to engage in the complex task of scientific tracking of species on our forestland in Alabama, spray painted, in red, "Toby" on the back of one unsuspecting - or perhaps suspecting, but slow - gopher tortoise. He would see Toby from time to time and know that he was doing well - except perhaps for the lead potentially leaching into his shell. But that is neither here nor there). The gopher frogs actually get their name because they survive in the burrows of gopher tortoises, which act as a "keystone species" for a variety of other species.
So when I learned of the federal government's plans to triple the area proposed as critical habitat for the dusky gopher frog I was encouraged, even though the proposal only gives the frog "a shot at survival." But at the same time, the news was a bit troublesome - not actually the news, but the memories it dredged up of my lack of understanding of the value of biodiversity when first introduced to the frogs. The gopher frogs of Alabama were some of the first natural resources I ever thought about in a critical manner as I began my college education. To see their habitat continue to be imperiled and to know that other populations of frogs are hanging only by a thread, really hits close to home - in more ways than one. I have previously posted about how global society is not even doing a good job of protecting charismatic megafauna (see Lions, Tigers, and Bears...All Gone?). How much more difficult will it be to preserve these southern treasures reliant on an ecosystem - and a piece of southern history - that we have already almost entirely eradicated? Hopefully the federal government's efforts will be a step in the right direction, and can make a difference before the sun goes down on the dusky gopher frog's time in the south and on the earth.
- Blake Hudson
Sunday, September 4, 2011
* The Obama administration decided to abandon proposed ozone regulations, which the oil industry and other business interests had criticized as unnecessarily costly.
* Although most of the 9 million people who lost power due to Hurricane / Tropical Storm Irene have had their electricity restored, utilities have gone on the defensive, launching PR campaigns in the face of likely investigations from regulators.
* Tropical Storm Lee has forced evacuation of over a third of oil and gas production platforms and drilling rigs in the Gulf of Mexico.
* Japan has adopted a feed-in tariff that will take effect next year and seeks to incent 30,000 MW of new renewables installations in the next decade.
* A beetle called the goldspotted oak borer is threatening trees in southern California.
* President Obama is pushing for a transportation spending bill, to fund federal highway projects and keep fuel taxes in place.
Sunday, August 7, 2011
* The famine in Somalia continues to worsen.
* Shell received conditional approval from the U.S. Bureau of Ocean Energy Management, Enforcement and Regulation to drill in the arctic Beaufort Sea, off the coast of Alaska.
* EPA proposed a rule that would exempt carbon dioxide streams from hazardous waste regulations under certain conditions. The hope is to spur greater use of carbon capture and sequestration technology.
* A new PAC has formed to promote energy efficiency legislation.
* If you haven't seen it yet, Science has out an impressive set of materials on population trends, their environmental impacts, and prognostications about what it all means for the future of the planet.
* The leopards are not happy.
August 7, 2011 in Africa, Biodiversity, Climate Change, Current Affairs, Energy, Land Use, Law, Legislation, North America, Science, Sustainability, Toxic and Hazardous Substances, US, Water Resources | Permalink | TrackBack (0)
Sunday, July 17, 2011
Every summer, it seems, I am reminded of something I always think I will never forget.
For the past several years, I have made a point every summer of visiting a national park. Living in Utah, which is blessed with five of these most beautiful and amazing places, this is a relatively easy task.
Last year, I spent several days with my sons hiking and camping in what has become one of my favorite parks: Capitol Reef. Not only does Capitol Reef sport some of the most breathtaking canyons I have ever seen, but it is, at least from my perspective, a relatively less used park. Sometimes solitude is nice. In Capitol Reef, I have found myself on many hikes, for hours, with no one but those in my party. Add to this the chance to see ancient rock art, find desert creatures like snakes and lizards, and partake of a searing summer heat, and I can think of few places that make a nicer getaway for a few days from the city. (It also doesn't hurt that the nearby town of Torrey also features some amazing food.)
This past week, I camped with my sons as part of my wife's family reunion in Yellowstone. It has been almost two decades since I was there last, in a frigid winter to snowmobile. Two things immediately overtook me as we drove in through West Yellowstone in a misting rain turning to dusk. I was reminded of just how gorgeous the place is; there is a reason why it was the first national park. And I realized how each of these parks has their own personality, their own story to tell. Capitol Reef and Yellowstone could not be much more different, but I love them both.
Toward the end of the trip, as I looked into the brilliant turquoise and coral pools at Mammoth Hot Springs, I contemplated this. I recalled Prof. Daniels' comment from earlier this year about why he got into environmental law in the first place, and how each of us has our own back-story about why we did too. For me, I realized, much of it is bound up in my childhood, and part of that was a trip I took when I was about the age of one of my sons to this same park. I recall standing face to face with a bison; I remember hiking into the aspen with my father; I see clearly in my mind the awe I felt then, that I feel now.
As we drove out of the park, having just hiked Geyser Hill near Old Faithful, we came into a valley. We were on our way out, and on its way in was a lone gray wolf, undisturbed, traversing the greens, following the Gibbon River to the trees.
Once again, I was reminded. I was so glad I was.
Monday, June 13, 2011
In the spirit of my colleagues posting on environmental films, and following on the Evil Animals post from last week and Professor McAllister's May 24 post on consumption, I thought I would highlight one of the most profound environmental insights in cinema (sci-fi cinema at least!). The movie "The Matrix" came out in 1999. At that time, the thought of my being involved in legal academics had never even crossed my mind, and had it done so I wouldn't even have known what that meant. Yet one clip in the movie had a deep impact on how I viewed our place in the world - and provided a theoretical framework for pushing me further along the path of environmental concern. The clip involves an interrogation of Morpheus by Agent Smith....
...The day after watching "The Matrix" I went to the Galleria Mall in Birmingham, Alabama. I stood at the top of the escalators above the food court and watched the people swarm. Hundreds of people scurried across each others' paths. Shopping bags filled with plastic and metal goodies were draped across arms, backs, and strollers. Hundreds more people sat in the food court stuffing their faces with hamburgers, chicken, pizza, cotton candy, cookies, ice cream and every other American delight you can imagine (a time release camera from 1995-2000 would have demonstrated these people getting larger as well, as the number of obese people worldwide increased by 100 million during that five year period). I couldn't help but feel the pall of depression come over me as I thought "Agent Smith was right!" And worse still I am sure I had just washed down an endorphin rush to the frontal lobe from eating an over-sized burger with an endorphin rush from purchasing some copious quantity of plastic play-things.
If everyone on earth consumed as much per capita as Americans do, we would need at least 5 earths to sustain us. I say "at least" because the number of earths we would need is increasing as our consumption increases. Stating the obvious, something needs to change.
The great thing about humans though, as the robots found out at the end of the Matrix Trilogy, is that we can think and do not always perform according to expected and established protocol. We have the ability to adapt and change and learn from past mistakes and previous destructive behaviors. Though we certainly can operate like a virus, and currently are operating like one at the rate at which we are consuming the earth, we have a chance and ability to change course.
The World Wildlife Fund's Jason Clay, in his talk "How big brands can help save biodiversity," provides some interesting insights into how we can actually harness components of our consumptive culture to protect the environment. His thoughts can be seen here:
- Blake Hudson
Monday, May 30, 2011
When confronted with friends or students who may be skeptical of the human role in climate change, I say "forget the temperature, let's talk about ocean acidification." Ocean acidification has been described as "the other carbon problem," and only recently have the implications of increasingly acidic oceans garnered much attention. Can we measure the increased concentration of carbon in the atmosphere when compared to pre-industrial levels? Check. Do we know that as a result of higher concentrations of CO2 the oceans have absorbed an increasing amount of carbon over time? Check. Do we know the scientific process whereby this carbon causes ocean water to become more acidic, and can that increasing acidity be measured? Check and check. In short, the increased amount of carbon dioxide in the atmosphere reacts with ocean water to form carbonic acid, and surface waters today are 30% more acidic than they were at the beginning of the Industrial Revolution.
A recent article highlights that even conservative projections are that the oceans will be twice as acidic by the end of the century as they were in pre-industrial times. This increased acidity reduces the ability of a variety of important sea creatures to form and maintain shells or skeletons built from calcium carbonate - a result that would likely ripple all the way up the food chain. As these creatures are taken out of the food web, the negative impacts on fisheries and ocean life - and correspondingly the 1 billion humans that depend on those resources - will be profound. This is not to mention the damage that will continue to accrue to the ocean's dying coral reefs and other abundant biodiversity.
Researchers have recently set out to investigate the potential implications of rising ocean
acidity. These researchers have monitored a variety of viruses, bacteria, phytoplankton, and zooplankton, introducing varying levels of acidity into their local environment (mesocosms) to predict future impacts on these organisms.
It certainly seems clear that since we can measure the concentration of carbon in the atmosphere, we know it is humans who released (and continue to release) it, and we know the basic workings of the "greenhouse effect" when there are higher higher concentrations of CO2 and other gases in the atmosphere, then we should see the need to, at the least, proceed cautiously by reducing carbon emissions and attempting to mitigate against climate change. But until that exercise of logic becomes as mainstream among the populous as it currently is among scientists, the case of ocean acidification is a more tangible example of how increased levels of carbon dioxide damage our environment. My approach is to challenge people to go measure it themselves, rather than wallowing in uninformed denial.
For a compelling introduction to the issue of ocean acidification, see this documentary produced by NRDC:
- Blake Hudson
Monday, May 23, 2011
The U.S. Forest Service recently released a report detailing the projected impacts population growth and urbanization will have on southeastern forests over the next 50 years, reducing them by as much as 23 million acres (or 13%). The report provided four primary reasons for the decline: population, climate change, timber markets and invasive species.
Southern forests are among the most biodiverse forests in the United States, and a disproportionate number of endangered species are located in the southeast when compared to other regions of the U.S.
The report indicates that private individuals and companies will be crucial to the effort to curb the destruction, noting that nearly 90% of the forestland in the south is privately owned. Even so, regulation of land uses such as private forestry and urban development is seen as a role constitutionally reserved for state and local governments. In turn, the southeastern U.S. maintains some of the most lax forest regulatory standards (not to mention zoning standards) in the world, even less rigorous than many developing countries, according to a study performed by Cashore and McDermott and as seen in the below chart (a "9" denotes the most stringent forest regulatory standards and a "0" the least).
Most all southeastern U.S. states maintain "best management practices" that are completely voluntary on the part of the forest manager. These BMP's may suggest to a private forester that he or she leave a buffer zone of trees around watercourses in watersheds in order to prevent erosion, siltation and eutrophication of waterways, among other environmental and economic harms. But foresters can feel free to ignore those "standards" and clear timber to the edge of the stream if they so choose. The only claim an adjacent landowner might have against the offending party is a common law nuisance claim, if there was damage caused to their property by the erosion, etc., since no regulatory remedies are available.
A co-author of the Forest Service report stated "We're counting on policy-makers...to implement and act on some of the findings...That is our hope." Hopefully policy-makers at the state and local level will take heed of the report and make much needed changes to the approach and rigor of both southern forest management and urban growth control. As a southern forester myself, I really would prefer not to have 10% fewer trees gracing this beautiful, and environmentally rich, part of the country.
- Blake Hudson
Monday, May 16, 2011
A recent article highlights the controversial concept of "conservation triage," whereby limited conservation resources are directed toward the species with the "best prospects for long-term survival." While the list of endangered and threatened species is growing, the funding for such programs is increasingly tight, and always finite.
The article highlights the plight of the California condor, the population of which dropped to 22 individuals in 1987. Twenty five years later the condor numbers only 192 living in the wild, while 189 live in captivity. The program to monitor and maintain condor populations costs more than $4 million a year, while the typical minimum viable population size for long-term species survival is about 5,000 individuals. At least one group of conservationists have asserted that "it is time for the global rescue operation to adopt the mind-set of a battlefield medic: Some endangered species are far more likely to recover than others, so we should identify those and save as many as we can." These conservationists argue that "you could save hundreds of butterfly species with the same investment being put into the condor."
Others, on the other hand, argue that "focusing on the cheapest wins 'may increase the short term tally of species, but we would end up saving only the most convenient ones.'" These conservationists point to the white rhino, the population of which dropped to 20 individuals at one point, but that stands at over 17,000 today.
This controversy demonstrates yet another tough choice faced by those concerned about the environment. It also highlights how approaches to habitat conservation can provide economic efficiency gains that can save both the most species and provide better long-term survival opportunities for those, like the condor, that are in limited numbers in the wild.
Land development activities are appropriating increasing and copious amounts of habitat/natural capital every day. It would seem a shift in focus from the costly propping up of single species in quickly developing areas to the prevention of habitat destruction is in order. The internalization of these environmental harms into our economic development costs may seem like triage to development interests and consumers, as they forgo - in the short term - a slight decrease in profit (or developers pass that cost down to the consumer). But in the long run it will be a far less costly triage than that proposed by some conservationists.
- Blake Hudson
Monday, April 11, 2011
Wetlands expert Roy Gardner, Stetson University College of Law, has recently published a fascinating book on U.S. wetland law and policy. The book, Lawyers, Swamps, and Money, U.S. Wetland Law, Policy, and Politics has recently become available for purchase (Island Press), and you may purchase a copy here. You can read the press release for the book below.
Professor Gardner is one of the nation's leading experts on wetland law and policy. His book reflects not only his expertise, but also his special ability to make the details of wetland law and policy accessible to all - even despite the complex web of constitutional, administrative, and environmental questions raised. I recommend this book to anyone interested in wetlands, and think it would be great supplementary reading for Natural Resources Law and Policy or related courses.
Professor Gardner is the director of Stetson's Institute for Biodiversity Law and Policy, and was instrumental in Stetson University College of Law becoming the first school in the country to gain membership to the US National Ramsar Committee, which supports the Ramsar Convention on Wetlands in the United States. Stetson students worked with the site manager of Audubon’s Corkscrew Swamp Sanctuary to seek its designation as a Wetland of International Importance under the Ramsar Convention, and it was successfully designated as such in the spring of 2010.
Lawyers, Swamps, and Money
U.S. Wetland Law, Policy, and Politics
By Royal C. Gardner
Washington, D.C. (April 2011) — A leading expert on wetlands law and policy has written an engaging guide to the complex set of laws governing these critical natural areas.
Lawyers, Swamps, and Money explains the importance of America’s wetlands and the threats they face, and examines the evolution of federal law, principally the Clean Water Act, designed to protect them. Royal Gardner’s writing is simultaneously substantive and accessible to a wide audience — from policy makers to students to citizen activists.
Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:
• the geographic scope and activities covered by the Clean Water Act
• the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency
• the goal of no net loss of wetlands
• the role of entrepreneurial wetland mitigation banking
• the tension between wetland mitigation bankers and in-lieu fee mitigation programs
• wetland regulation and private property rights.The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.
The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.
- Blake Hudson
April 11, 2011 in Biodiversity, Constitutional Law, Environmental Assessment, Governance/Management, International, Land Use, Law, Physical Science, Science, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Thursday, March 10, 2011
Environmental law, by definition, looks forward. But it also pays to look back.
The first, "Lessons from Disasters: What We Are Learning from the BP Deepwater Blowout in the Gulf of Mexico That We Should Have Learned 21 Years Ago in Alaska," draws on Prof. Plater's experience as Chair of the Alaska Oil Spill Commission's Legal Task Force following the Exxon-Valdez disaster. Any examination of the Deepwater Horizon oil spill, of course, raises questions not just of environmental degradation but of energy planning, national security, the debate over peak oil, sustainable development, and the direction of our society itself.
The second talk will be delivered as the annual Wallace Stegner Lecture, sponsored by the Wallace Stegner Center for Land, Resources, and the Environment. As counsel for farmers, Cherokees, and environmentalists in the U.S. Supreme Court, Prof. Plater is perhaps better equipped than anyone to comment on what one of the most important cases in the field, TVA v. Hill, has to teach us about where environmental law -- and environmentalism -- is headed today. The title of the lecture is "Classic Lessons from a Little Fish in a Pork Barrel."
Prof. Plater's remarks on the Deepwater Horizon begin at 12:15 p.m. Mountain (2:15 p.m. Eastern; 11:15 a.m. Pacific).
His Wallace Stegner Lecture will begin at 6 p.m. Mountain (8 p.m. Eastern; 5 p.m. Pacific).
If you cannot join live in Salt Lake City, there will be simultaneous webcasts at www.ulaw.tv.
Monday, March 7, 2011
A recent CNN article described the plummeting population of big cats in Africa, noting that populations have dropped from 450,000 fifty years ago to as few as 20,000 today. Worldwide tiger populations have experienced similar drastic declines, with an estimated 95% drop in population over the past one hundred years - from 100,000 tigers at the turn of the 20th Century to as few as 3,200 today. Of course, scientists are similarly concerned about the implications of climate change for polar bear populations, not to mention numerous other bear populations around the world. These scenarios raise interesting questions about the significance of "charismatic megafauna" in either spurring environmental protection (cute and cuddly panda bears) or in exacerbating species decline due to the "prize value" of the animal (ivory elephant tusks, tiger meat in Asian markets).
Charismatic megafauna are often described as species that people "really care about," such as pandas, whales, and bald eagles, to name a few. So what does it say about the status of global biodiversity when we continue to witness precipitous declines in populations of charismatic megafauna? Perhaps the problem is jurisdictional: lions and tigers are distributed in developing countries with far less stringent environmental protections and where the animal's economic value is far higher when it is dead rather than alive. The case of mountain lions and wolves in the U.S. lends evidence in this regard, as each (the western mountain lion, at least) is recovering in population size and regaining portions of former habitat presumably due to the (relatively recent) focus on environmental protection throughout their habitat range. But as the polar bear and a variety of other species demonstrate, economic growth and habitat fragmentation also play a key role in the decline of these species. So, if lions, tigers, and bears are charismatic megafauna that people "really care about," what happens to global resources that people hold in far less regard?
- Blake Hudson
Wednesday, September 9, 2009
GAO on September 9th published a report "Wildland Fire Management: Federal Agencies Have Taken Important Steps Forward, but Additional, Strategic Action is Needed to Capitalize on Those Steps." GAO-09-877 . A summary, the GAO Highlights, is contained in this link.