Environmental Law Prof Blog

How this virus developed and why it may be a killer

The Mexican swine flu virus is a swine influenza A/H1N1 virus hybridized (mixed) with human and bird viruses.  We have some immunity to human flu and to some strains of swine influenza A/H1N1;  We don't have immunity to bird flu, which is why that virus is so virulent - with a kill ratio of almost 50% -- and why so much pandemic planning and preparedness focused on bird flu.

New Scientist reports:

This type of virus emerged in the US in 1998 and has since become endemic on hog farms across North America. Equipped with a suite of pig, bird and human genes, it was also evolving rapidly.  Flu infects many animals, including waterfowl, pigs and humans. Birds and people rarely catch flu viruses adapted to another host, but they can pass flu to pigs, which also have their own strains.If a pig catches two kinds of flu at once it can act as a mixing vessel, and hybrids can emerge with genes from both viruses. This is what happened in the US in 1998. Until then, American pigs had regular winter flu, much like people, caused by a mutated virus from the great human pandemic of 1918, which killed pigs as well as at least 50 million people worldwide. This virus was a member of the H1N1 family - with H and N being the virus's surface proteins haemagglutinin and neuraminidase.  Over decades, H1N1 evolved in pigs into a mild, purely swine flu, and became genetically fairly stable. In 1976, there was an outbreak of swine H1N1 in people at a military camp [Fort Dix] in New Jersey, with one death. The virus did not spread efficiently, though, and soon fizzled out.

But in 1998, says Richard Webby of St Jude's Children's Research Hospital in Memphis, Tennessee, swine H1N1 hybridised with human and bird viruses, resulting in "triple reassortants" that surfaced in Minnesota, Iowa and Texas. The viruses initially had human surface proteins and swine internal proteins, with the exception of three genes that make RNA polymerase, the crucial enzyme the virus uses to replicate in its host. Two were from bird flu and one from human flu. Researchers believe that the bird polymerase allows the virus to replicate faster than those with the human or swine versions, making it more virulent.

By 1999, these viruses comprised the dominant flu strain in North American pigs and, unlike the swine virus they replaced, they were actively evolving. There are many versions with different pig or human surface proteins, including one, like the Mexican flu spreading now, with H1 and N1 from the original swine virus. All these viruses still contained the same "cassette" of internal genes, including the avian and human polymerase genes, reports Amy Vincent of the US Department of Agriculture (USDA) in Ames, Iowa (Advances in Virus Research, vol 72, p 127). "They are why the swine versions of this virus easily outcompete those that don't have them," says Webby.

But the viruses have been actively switching surface proteins to evade the pigs' immunity. There are now so many kinds of pig flu that it is no longer seasonal. One in five US pig producers actually makes their own vaccines, says Vincent, as the vaccine industry cannot keep up with the changes. This rapid evolution posed the "potential for pandemic influenza emergence in North America", Vincent said last year. Webby, too, warned in 2004 that pigs in the US are "an increasingly important reservoir of viruses with human pandemic potential". One in five US pig workers has been found to have antibodies to swine flu, showing they have been infected, but most people have no immunity to these viruses.

The virus's rapid evolution created the potential for a pandemic to emerge in North America.  Our immune response to flu, which makes the difference between mild and potentially lethal disease, is mainly to the H surface protein. The Mexican virus carries the swine version, so the antibodies we carry to human H1N1 viruses will not recognise it. That's why the CDC warned last year that swine H1N1 would "represent a pandemic threat" if it started circulating in humans. The avian polymerase genes are especially worrying, as similar genes are what make H5N1 bird flu lethal in mammals and what made the 1918 human pandemic virus so lethal in people. "We can't yet tell what impact they will have on pathogenicity in humans," says Webby. It appears the threat has now resulted in the Mexican flu. "The triple reassortant in pigs seems to be the precursor," Robert Webster, also at St Jude's, told New Scientist.

While researchers focused on livestock problems could see the threat developing, it is not one that medical researchers focused on human flu viruses seemed to have been aware of. "It was confusing when we looked up the gene sequences in the database," says Wendy Barclay of Imperial College London, who has been studying swine flu from the recent US cases. "The polymerase gene sequences are bird and human, yet they were reported in viruses from pigs."

So where did the Mexican virus originate? The Veratect Corporation based in Kirkland, Washington, monitors world press and government reports to provide early disease warnings for clients, including the CDC. Their first inkling of the disease was a 2 April report of a surge in respiratory disease in a town called La Gloria, east of Mexico City, which resulted in the deaths of three young children. Only on 16 April - after Easter week, when millions of Mexicans travel to visit relatives - reports surfaced elsewhere in the country.

Local reports in La Gloria blamed pig farms in nearby Perote owned by Granjas Carroll, a subsidiary of US hog giant Smithfield Foods. The farms produce nearly a million pigs a year. Smithfield Foods, in a statement, insists there are "no clinical signs or symptoms" of swine flu in its pigs or workers in Mexico. That is unsurprising, as the company says it "routinely administers influenza virus vaccination to swine herds and conducts monthly tests for the presence of swine influenza." The company would not tell New Scientist any more about recent tests. USDA researchers say that while vaccination keeps pigs from getting sick, it does not block infection or shedding of the virus.

All the evidence suggests that swine flu was a disaster waiting to happen. But it got little research attention, perhaps because it caused mild infections in people which didn't spread. Now one swine flu virus has stopped being so well-behaved.

This leads us to the policy question: why should humans keep pigs?  Like other meat, pigs consume an extraordinary amount of resources to provide nutrition.  Maybe the ancient Israelites had an insight that we have lacked -- there may be more wisdom in the Torah and its laws than we knew.  Perhaps it is time, or past time, for our eating habits to evolve lest an even more virulent strain of swine flu develop.  Assuming that this pandemic passes without too many deaths, we may need to rethink whether it is good to keep large quantities of pigs.  For now, the virulent bird flu does not seem easily communicable.  Let's keep it that way. 

Bush Administration Midnight ESA Consultation Rule Revoked

  FWS Press Release:

Salazar and Locke Restore Scientific Consultations under the Endangered
             Species Act to Protect Species and their Habitats

WASHINGTON, D.C. – Secretary of Commerce Gary Locke and Secretary of the Interior Ken Salazar today announced that the two departments are revoking an eleventh-hour Bush administration rule that undermined Endangered Species Act (ESA) protections. Their decision requires federal agencies to once again consult with federal wildlife experts at the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration – the two agencies that administer the ESA – before taking any action that
may affect threatened or endangered species.

“By rolling back this 11th hour regulation, we are ensuring that threatened and endangered species continue to receive the full protection of the law,” Salazar said. “Because science must serve as the foundation for decisions we make, federal agencies proposing to take actions that might affect threatened and endangered species will once again have to consult with biologists at the two departments.”

“For decades, the Endangered Species Act has protected threatened species and their habitats,” said Commerce Secretary Gary Locke. “Our decision affirms the Administration’s commitment to using sound science to promote conservation and protect the environment.”

Findlaw environmental case summaries - March 30 - April 3

Table of Contents

ENVIRONMENTAL LAW CASES

• Entergy Corp. v. Riverkeeper, Inc.
• New Jersey Dept. of Envtl. Prot. v. US Nuclear Regulatory Comm'n
• Columbia Venture LLC v. S.C. Wildlife Fed.
• Center for Biological Diversity v. Marina Pt. Dev. Co.

FindLaw's case summaries are copyrighted material and are not intended for republication without prior approval. You may, however, freely redistribute this e-mail in its entirety.
To view the full-text of cases you must sign in to FindLaw.com. [Findlaw registration is free]

U.S. Supreme Court, April 01, 2009
Entergy Corp. v. Riverkeeper, Inc., No. 07-588
In a petition for review of EPA national performance standards for cooling water intake structures, the grant of the petition is reversed, where the EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards. Read more...

U.S. 3rd Circuit Court of Appeals, March 31, 2009
New Jersey Dept. of Envtl. Prot. v. US Nuclear Regulatory Comm'n, No. 07-2271
Petition for review of an Nuclear Regulatory Commission decision denying NJ Dept. of Environmental Protection request to intervene in relicensing proceedings for the Oyster Creek Nuclear Generating Station is denied where in reviewing the application to relicense the nuclear power facility, the Commission is not required to make an environmental impact analysis of a hypothetical terrorist attack on the facility as the relicensing of Oyster Creek does not have a reasonably close causal relationship with the environmental effects that would be caused by a terrorist attack. The NRC also already addressed the environmental impact of such an attack in its Generic Environmental Impact Statement and site-specific Supplemental Environmental Impact Statement. Read more...

U.S. 4th Circuit Court of Appeals, April 03, 2009
Columbia Venture LLC v. S.C. Wildlife Fed., No. 05-2398
In a challenge to a FEMA decision regarding certain base flood elevation determinations, the District Court's order vacating those determinations is reversed, where Plaintiffs failed to show that they were prejudiced by FEMA's failure to timely publish notice of the decision in the Federal Register. Read more.

U.S. 9th Circuit Court of Appeals, March 30, 2009
Center for Biological Diversity v. Marina Pt. Dev. Co., No. 06-56193
In an action under the Clean Water Act (CWA) and Endangered Species Act (ESA), judgment for Plaintiffs is reversed, where: 1) Plaintiffs did not give sufficiently specific notice of intent to sue under the CWA; and 2) the ESA action was moot because the species at issue had been delisted during the pendency of the appeal. Award of attorney's fees to Plaintiffs is affirmed, where the mootness of the ESA action did not affect the fee award. Read more...

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Call for Entries - 4th International Water Film Festival

If you're traveling this summer, you might want to film something about water and submit your masterpiece to the 4th International Water Film Festival.  Entries are due July 31st.  For more info, visit  Drink Water for Life blog - water film festival.

E.O. Wilson seeks to create networked encyclopedia of life

E.O. Wilson's TED talk pleads for a networked encyclopedia of life, because of the dimensions of the unknown regarding life on earth. E.O. Wilson is, of course, the sage advocate for biodiversity protection and the most famous voice associated with conservation ecology -- although Jane Lubchenko may have surpassed him with her rise to power.  Here's his bio.  EO Wilson bio.  Here's his talk:

Refuge regulations limiting commercial fishing operations are not a taking

Palmyra Pacific Seafoods, L.L.C. v. U.S., No. 08-5058 (Fed. Cir. April 09, 2009) PDF

Yesterday, the Federal Circuit decided a takings case where the U.S. created a wildlife refuge around an island on which the plaintiff had acquired contractual rights to operate a base and pier for its commercial fishing operation. The refuge regulations prohibited commercial fishing within the refuge and allowed limited sports fishing to facilitate operation of a camp owned by the Nature Conservancy.  The Federal Circuit affirmed the Court of Federal Claims' dismissal for failure to state a claim.  The Federal Circuit reasoned that the government's regulation of activities in the waters surrounding Palmyra may have adversely affected the value of plaintiff's contract rights, but did not take the contract rights themselves.  The plaintiff is left with an ability to fish beyond the 12 mile limit of the refuge.  Even if the government regulation targeted plaintiff's contract rights in order to promote the interests of another party, creation of the refuge and its regulations  still did not constitute a compensable taking as those actions regulated conduct in which plaintiff had no protected property interest.

Spotted Owl Taking a Dive

The Justice Department has signaled that the US Fish and Wildlife Service plans to revisit the northern spotted owl recovery plan and the reduced critical habitat designation issued last year at the end of the Bush administration. The Bush administration's plan opened 23 percent of 1.6 million acres designated as critical habitat in Oregon to increased logging.

The recovery plan may be too little, too late.  Even as the Fish and Wildlife Service revisits last year's controversial plan, there is scientific concern about whether the owls can recover in light of continued loss of habitat from logging, a shrinking gene pool in some areas, increasing risk of catastrophic wildfires due to climate change, and competition from barred owls invading spotted owl habitat. 

U.S. Geological Survey.

Oil Spill along Australia's Sunshine Coast

Reuter's reported tomorrow -- the joys of the international dateline -- that Queensland premier Anna Bligh declared Moreton Island, Bribie Island and southern parts of the Sunshine Coast to be disaster zones after an oil spill from a cargo ship spread over 60 kilometers of beach.  The cargo ship carries 100 tons of oil and the spill from the ship is far larger than initial reports indicated.  The cargo ship's hull was pierced by a container swept overboard in heavy seas caused by a cyclone near the area.  The clean-up of the spill will be difficult due to the heavy seas and high tides from the cyclone and the spill is being carried into rivers in the area.  The Queensland EPA reports that the spill has already affected seabirds and turtles.

By the standards of major oil spills, the Australian spill is unremarkable.  The Exxon Valdez spill involved nearly 11 million gallons or 5500 tons of crude oil.  But, like the Exxon Valdez, this spill occurred in an ecologically sensitive area and an area dependent in part on a large tourist industry.  When we weigh the small probabilities of large spills associated with various activities, such as offshore oil drilling, with the possible benefits of that activity, we need to carefully examine how close any spill might be to ecologically sensitive areas and areas dependent on tourism.  The lesson of the Exxon Valdez is that even the most expensive cleanups cannot fully recover many of the living resources that are destroyed by oil spills close to shore.

For those of you who were not alive or may have forgotten, the Exxon Valdez spill was one of the most destructive oil spills in history.  Here's an account of that spill that I recently wrote:

EXXON VALDEZ OIL SPILL

On March 24, 1989, the Exxon Valdez, an oil tanker owned by Exxon Corporation, went aground on Bligh Reef in Prince William Sound, Alaska.  The oil tanker had just departed the Valdez terminal with over 53 million gallons of crude oil, transported from Prudhoe Bay Oilfields through the Alaskan pipeline bound for Exxon’s West Coast refineries.  The vessel spilled 10.8 million gallons of crude oil into Prince William Sound, and the oil eventually covered 11,000 square miles of ocean and 1300 miles of shoreline.  The oil spill immediately killed between 250,000 to 500,000 seabirds, more than 1,000 sea otters, 300 harbor seals, 250 bald eagles, 22 orca whales, and billions of herring and salmon eggs. 

Today, twenty years after the spill, 26,000 gallons of oil remain contaminating roughly six kilometers of shoreline.  Of the thirty-one natural resources identified by the Natural Resources Trustee as affected by the spill, ten have recovered during the last 20 years, fourteen are still recovering, two have made no progress toward recovery (herring and pigeon guillemot), and five lack sufficient data to determine the extent of recovery. 

The Exxon Valdez oil spill is still considered the most environmentally damaging oil spill to date, even though it is no longer in the top 50 oil spills in terms of the size of the spill.  As the Exxon Valdez Oil Spill Trustee Council has indicated, “[t]he timing of the spill, the remote and spectacular location, the thousands of miles of rugged and wild shoreline, and the abundance of wildlife in the region combined to make it an environmental disaster well beyond the scope of other spills.”

The Accident

After a harbor pilot successfully navigated the Exxon Valdez through the Valdez Narrows, he returned control of the ship to Captain Joseph Hazelwood.  To avoid icebergs in the outbound shipping lane, Hazelwood maneuvered the ship into the inbound shipping lane.  Hazelwood then put the ship on autopilot and left a third mate in charge of the wheelhouse and an able seaman at the helm.  The crew failed to reenter the outbound shipping lane.  While Hazelwood was relaxing in his stateroom, the Exxon Valdez went aground on Bligh Reef, rupturing eight of her eleven cargo holds. 

Hazelwood, who Exxon knew was an alcohol abuser who had not completed treatment and had stopped attending Alcoholics Anonymous meetings, had drunk five double shots of vodka, amounting to 15 ounces of 80 proof alcohol, shortly before leaving Valdez.  In addition, neither of the crewmen Hazelwood placed in charge of the tanker had their mandatory rest period before beginning duty.  The National Transportation Safety Board’s investigation of the accident identified five factors that contributed to the grounding of the Exxon Valdez: the third mate failed to properly maneuver the vessel, possibly due to fatigue and an excessive workload; the captain failed to provide navigation watch, possibly due to impairment from alcohol; Exxon failed to supervise the captain and provide a rested and sufficient crew for the vessel; the U.S. Coast Guard failed to provide an effective vessel traffic system; and lack of effective pilot and escort services from the Valdez terminal through Prince William Sound.

Litigation

Five separate sets of lawsuits arose out of the Exxon Valdez Oil Spill. 

First, Exxon Shipping pled guilty to negligent discharge of pollutants under Clean Water Act (CWA) section 309 as well as criminal violations of the Refuse Act and the Migratory Bird Treaty Act (MBTA).  Exxon pled guilty to criminal violations of the MBTA. Exxon was fined $150 million, the largest fine ever imposed for an environmental crime. The court forgave $125 million of that fine in recognition of Exxon’s cooperation in cleaning up the spill and paying certain private claims. Of the remaining $25 million, $12 million went to the North American Wetlands Conservation Fund and $13 million went to the national Victims of Crime Fund.   As criminal restitution for the injuries caused to the fish, wildlife, and lands of the spill region, Exxon agreed to pay $100 million, evenly divided between the federal and state governments.

Second, the federal and state governments sue Exxon Shipping and Exxon under CWA section 311 and the Comprehensive Environmental Response Compensation and Liability Act section 107, to recover damages to natural resources for which the governments are trustees.  In settlement of those civil claims, Exxon agreed to pay $900 million with annual payments stretched over a 10-year period. The settlement also contained a $100 million reopener for funds to restore resources that suffered a substantial loss or decline as a result of the oil spill, the injuries to which could not have been known or anticipated by the trustees at the time of the settlement.  The United States demanded the full $100 million under the reopener provision in 2006.

Third, within two or three years of the accident, Exxon settled the claims of various fishermen and property owners for $ 303 million. 

Fourth, a class action involving tort claims against Exxon, Hazelwood, and others by commercial fishermen, Native Americans, and property owners resulted in a $ 5 billion jury verdict against Exxon.  That jury verdict was reduced by the 9th Circuit to $ 2.5 billion and the U.S. Supreme Court in Exxon Shipping Co. v. Baker vacated the 9th Circuit award, limiting punitive damages against Exxon to $ 507.5 million, the same amount of compensatory damages, in addition to the compensatory damages due to plaintiffs. 

Finally, Captain Hazelwood was prosecuted by the State of Alaska for operating a vessel while under the influence of alcohol and negligent discharge of oil.  Despite evidence that Hazelwood had consumed numerous alcoholic beverages before departing Valdez and still had alcohol in his blood many hours after the accident, an Alaskan jury found him not guilty of the operating under the influence charge. The jury did find him guilty of negligent discharge of oil.  Hazelwood was fined $50,000 and sentenced to 1,000 hours of community service in Alaska. 

Resulting Legislation

Frequently environmental legislation is the result of a dramatic event or environmental accident.  In the case of the Exxon Valdez oil spill, Congress reacted by enacting the Oil Pollution Act of 1990, which created a fund to finance oil spill cleanup when parties do not voluntarily clean up oil spills for which they are responsible, set up a broad liability scheme to provide a federal cause of action for cleanup and other damages arising out of oil spills, set standards for oil tankers and oil storage facilities to avoid future spills and improve spill response, and sought to improve emergency responses to oil spills through regional contingency planning. 

For more information about the environmental impacts of the spill and the clean-up that was undertaken under the auspices of the Exxon Valdez Oil Spill Trustee Council, visit the Council's website.   http://www.evostc.state.ak.us/

 

Columbia Basin Bulletin e-book on Columbia River salmon lititation

I'm not a big fan of paying for PDFs, but here's a resource that students of the Columbia River salmon litigation should be aware of. CBB link If you're not familiar with CBB, go take a look.  You can sign up for their free weekly newsletter and you can subscribe to their archives.

Salmon and Hydro

An Account of Litigation over Federal Columbia River Power System Biological Opinions for Salmon and Steelhead, 1991-2009

First Edition, February 2009

A NOAA Fisheries "biological opinion" is the federal government's primary guide for recovering13 species of Columbia River Basin salmon and steelhead listed under the Endangered Species Act . A "BiOp" must insure that these ESA-listed fish survive and thrive in the Columbia/Snake River Basin hydropower system . Yet, since the first salmon ESA-listings in 1991, these biological opinions have been the subject of continual litigation. It is in federal court where one sees most clearly the divisions and difficulties of Columbia Basin salmon recovery. This issue summary offers a historical account of this continual litigation since the first ESA listings and summarizes the major issues that have dominated Columbia Basin Salmon recovery since 1991.

Salmon and Hydro: An Account of Litigation over Federal Columbia River Power System Biological Opinions for Salmon and Steelhead, 1991-2009, a 77-page document in an easy-to-read Adobe PDF format, is available for digital download through our secure payment system. Price: $19.95

 

 

TABLE OF CONTENTS

For Excerpts Click These Links:

INTRODUCTION

 

I. 1991-1995: Three ESA Listings, Four Biological Opinions, Five Court Challenges

II. 1995-1998: Reasonable And Prudent Alternatives, Spread The Risk, Long-Term Configuration, Adaptive Management; River Governance; Regional Parties Stake Their Positions; A BiOp Finally Passes Legal Muster

 

III. 1998-1999: More ESA Listings; A Supplemental Steelhead BiOp Guiding River Operations; Independent Science Advisory Board Weighs In On Smolt Transportation; Appeals Court Upholds 1995 BiOp; Supplemental BiOps On New Listings, Snake Water

IV. 1999-2004: Not Just Hydro, But All The ‘Hs’; Recovery In 48 years?; Mitigation Must Be Certain To Occur; Another BiOp Bites The Dust; A Remand; Corps Rules On Snake River Dam Removal

V. 2004-2008: A New BiOp Says No Jeopardy From Hydro Operations; A New ‘Environmental Baseline’; Redden Says No Again; Discretionary Actions vs. Non-Discretionary (Dams’ Existence); Court Runs The River; Upper Snake River Gets Own BiOp

VI. 2008-2009: A ‘Collaborative’ BiOp; New Fish Funding Agreements, New BiOp Support; Montana Finally Likes The Reservoir Plan; Earthjustice Says New Approach Inadequate; Oregon Left As Only State Opposed To BiOp; Should Independent Scientists Evaluate BiOp?; Parties To Litigation Grows; Clean Water Act Now An Issue; A New Round Of Briefings

VII. Conclusion: Rushing To Redden’s Finish Line

Obama Directs Agencies to Consult with FWS and NMFS on Endangered Species

President Obama today told federal agencies to consult with the expert fish and wildlife agencies concerning whether a decision may affect threatened or endangered species.  The memorandum effectively suspends a December 2008 rule issued by the Bush administration, which waived requirements that agencies like the Army Corps of Engineers consult with experts at the Fish and Wildlife Service or the National Marine Fisheries Service when deciding whether projects like building dams affect threatened or endangered species.  Today’s decision did not throw out the Bush administration rule, which had prompted lawsuits from California and a number of environmental groups. Instead, Mr. Obama asked that the secretaries of commerce and the interior “review” the Bush regulation and determine whether new rules are needed.  “Until such a review is completed,” Mr. Obama wrote, “I request the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices” involving the Fish and Wildlife Services and the National Marine Fisheries Service. 

The text of the memorandum appears below:

THE WHITE HOUSE

Office of the Press Secretary
________________________________________________________________
For Immediate Release                  March 3, 2009

March 3, 2009

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: The Endangered Species Act

The Endangered Species Act (ESA), 16U.S.C. 1531 et seq., reflects one of the Nation's profound commitments. Pursuant to that Act, the Federal Government has long required a process of broad interagency consultation to ensure the application of scientific and technical expertise to decisions that may affect threatened or endangered species. Under that interagency process, executive departments and agencies (agencies) contemplating an action that may affect endangered or threatened species have long been required, except in certain limited circumstances, to consult with, and in some circumstances obtain the prior written concurrence of, the Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS)-- the expert agencies that have the primary responsibility to ensure that the ESA is implemented in accordance with the law.

On December16, 2008, the Departments of the Interior and Commerce issued a joint regulation that modified these longstanding requirements. See 73Fed. Reg. 76272. This new regulation expands the circumstances in which an agency may determine not to consult with, or obtain the written concurrence of, the FWS or NMFS prior to undertaking an action that may affect threatened or endangered species. But under the new regulation, agencies may continue the previous practice of consulting with, and obtaining the written concurrence of, the FWS and NMFS as a matter of discretion.

I hereby request the Secretaries of the Interior and Commerce to review the regulation issued on December16, 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA.

Until such review is completed, I request the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with statutory authorities.

The Secretary of the Interior is hereby authorized and directed to publish this memorandum in the Federal Register.

 

                  BARACK OBAMA

The New Subsistence Society

Sometimes its a good idea to stand back and contemplate the universe.  Today's early news that the Dow Jones Industrial Index took another header because of AIG's $60+ billion loss prompts me to do that. 

What is the vector of our society?  What will it look like after all the dust has settled?  It is not just the financial crisis that prompts me to contemplate this.  Although the phrase is over-used, we are in the midst of a perfect storm -- a global economy that creates and distributes goods and services through the internet, computerized machines and cheap labor virtual collapse of the financial system, the advent of peak oil, and the climate crisis.  How will all of these things cumulatively affect our future?

We've lived with the first problem for decades now -- what do people do as they  become less and less important to production of goods and services.  The science fiction of our times: what happens when people and their primary asset, labor, becomes virtually superfluous.  Certainly countries with high labor costs relative to Asia and South America already are beginning to experience the problem.  Computerized machines can plant, water, and harvest the fields; robots can make the cars and prefabricated housing; department stores, bank branches, car dealers, even retail grocery stores can be replaced by internet marketing; 100 law professors lecturing to law students and 1000 college professors lecturing to college students is more than enough -- creating the prospect of a British or continental education system, with those professors raised to unseemly heights and the remainder left to do the grunge work of tutors; even more radically, 100 K-12 teachers can teach a nation of students with computer graded exams, if we believe that convergent answers are the goal of education; priests and ministers can be replaced by TV showmen and megachurch performers. 

So what do the other 6.95 billion of us do?  Now, we consume.  Voraciously.  If we don't, then the basics can be provided by a very few and the rest of us become unwanted baggage.  A non-consumer is a drag on the system.  We depend on the velocity of money, excess consumption, and inefficiency to provide each of us with a job and to maintain the current economy.

And what happens when money moves at a crawl, when people stop consuming, when production becomes life-threatening to the planet, and when a key resource for production, oil, reaches the point of no return???  The answer is a new subsistence economy.  A new world where a few are need to produce, a few more can consume, and the remainder have no economic role and are left to subsist as best they can.

Admittedly, it will be subsistence at a higher level -- through the internet, computerization, and technology, each of us will have the capacity to do things for ourselves that are beyond the imagination of today's impoverished subsistence farmers.  But, relative to those who own all of the means of production, a few entertainers (be they basketball players, lecturers, moviestars, or mega-church leaders), and a few laborers (building the machines, computers, the information infrastructure and doing basic and applied research), we will all be poor.  Perhaps only relatively and perhaps only in material terms.  But poor, living at a subsistence level, consuming food from our own gardens, building our own houses, wearing clothes for function not fashion, educating our own children through the internet, capturing essential power through distributed energy, and buying very little of goods that are bound to be too expensive for most -- probably just computers.  It won't necessarily be bad.  Perhaps we can refocus on relationships, family, community, art, music, literature, and life, rather than define ourselves in terms of our job and our things.  Perhaps we can refocus on spirituality instead of materialism. Who knows?  Maybe the new society won't be such a bad thing after all -- at least if we insist that the few who have the privilege of production have a responsibility to share the wealth with the many.

The Saga of Snowbasin - Book Review

Here's a book review I published in American Scientist about Stephen Trimble's recent book.  AmSci link

BARGAINING FOR EDEN: The Fight for the Last Open Spaces in America. Stephen Trimble. xiv + 319 pp. University of California Press, 2008. $29.95.

The strikingly beautiful Utah landscapes Stephen Trimble writes about in Bargaining for Eden—the craggy Wasatch mountain range, the desolate desert mesas—change subtly in appearance with each passing moment, as light and shadow dance over them. The same could be said of the book’s evolving perspective—every time I thought I understood Trimble’s position regarding the battles being waged over the precious wild lands that remain in the western United States, his point of view subtly shifted.

The first part of the book, aptly named “Bedrock,” sets the stage and sketches the main characters. The citizens of Ogden, Utah, are fighting billionaire oil magnate Earl Holding, who wants to transform Snowbasin, a community ski area on Mount Ogden, into a posh resort in time for the 2004 Winter Olympics. Trimble avoids the temptation to make this starkly partisan struggle into a morality play, perhaps because the story doesn’t end happily. Although the local environmentalists win a few battles, they lose the war, and the majesty of Mount Ogden is marred by development.

Rather than framing the Snowbasin saga as a tragedy, Trimble deftly uses it as a device for exploring a far more complicated theme, addressing himself directly to those who treasure wild land out West. They yearn for the romance, simplicity, community and connection they draw from open space and wilderness. Yet they also benefit from the roads, rural retreat homes and high-tech ski lifts that development provides. The poles of maximum development and maximum preservation are extremes at the ends of a continuum. Attaching oneself unthinkingly to either extreme creates destructive antagonism that severs ties to people and values on “the other side of the moral mountain.” A better, more sustainable approach to managing the lands of the West is needed.

Trimble’s openness to other people and their values makes Bargaining for Eden a compelling read. He colorfully traces the Snowbasin story, beginning with Holding’s purchase of the bankrupt ski area in 1984. To turn it into a megaresort, Holding wanted not only to gain control of the ski area base and the ski runs themselves, but also to develop land that was part of Wasatch-Cache National Forest. So he sought to have the Forest Service trade him a prime portion of the National Forest in exchange for other land that he would buy and add to the National Forest. Families in the area and environmentalists resisted him at every turn.

Initially, the local Forest Service decided to limit the land exchange to 220 acres. Administrative appeals were followed by mediation efforts and backroom negotiations, and the Forest Service increased the size of the exchange to 695 acres. Holding strategically delayed the land exchange to first secure a Forest Service permit allowing construction of new ski runs. A lawsuit filed by Save Our Canyons, a local environment group, successfully halted construction until adequate environmental assessment had been completed.

But in a climactic endgame, Holding exploited commodity-oriented Forest Service officials in Washington, D.C., found an eager ally in Republican congressman James V. Hansen of Utah, and took advantage of political pressure on the Clinton White House in the wake of the president’s designation of Grand Staircase-Escalante as a national monument. Through legislation sponsored by Hansen, promoted by Forest Service leadership and acquiesced to by the White House, Holding obtained 1,320 acres of choice National Forest land. To avoid delays from further administrative appeals and lawsuits, the legislation exempted Forest Service actions implementing the Snowbasin land exchange from the National Environmental Policy Act, other environmental laws and judicial review. Additional special-interest legislation provided $15 million of federal funds to build a road connecting the Snowbasin resort to the interstate highway after Holding reneged on his promise to finance the road. The only glimmer of victory for the public interest in the whole saga came in 2000 when the Clinton administration finally held firm in refusing to allow Holding to build a tourist tram on lands transferred to the Forest Service as part of the Snowbasin land exchange.

Trimble concludes the Snowbasin story with a meditation expressing hope that Americans “are poised to enter a new New West—a twenty-first-century West, where the watchwords are ecology, ethics, relationships, collaboration, community.” Those words foreshadow the final section of Bargaining for Eden, which explains how Trimble’s personal experiences of the last few years have led him to embrace a new credo for managing Western lands. His reflections touch on such diverse topics as the role of the Mormon church in development, eco-spirituality, successful community resistance to Holding’s attempt to finance a $200 million hotel with public funds, the value of private land trusts, the difficulty of planning resource management given distrust between old-timers and newcomers, and the bittersweet victory of Clinton’s proclamation of the Grand Staircase-Escalante National Monument. Most of all, Trimble reflects on his own decision to build a retreat home on remote wild land in rural Utah. From all these experiences he distills a personal credo urging that local citizens use inclusive, respectful, collaborative processes to create a place-based vision and plan for sustainable land use management.

Although the stories of conflicts over resources that Trimble reports are intriguing and worthy of reflection, Bargaining for Eden suffers from defects that wear on the reader. The most serious is that Trimble’s uneven, impressionistic writing style and his decision to include many voices and perspectives combine to make it difficult to follow the progression and time line of the events he describes. Another problem is the intrusion of details of his personal journey into the material he has so conscientiously researched. His self-absorption is at times jarring and distracting.

Nevertheless, readers who persevere will be rewarded. The controversies Trimble describes are fascinating, his candid confessions of his own bargains with the devil of excessive resource consumption are engaging, and his distillation of the dilemmas confronted by those seeking to manage the West’s natural resources sustainably are insightful.

President Obama's "State of the Union" Speech

The White House has published the "Remarks of President Barack Obama -- Address to Joint Session of Congress" as prepared for delivery on Tuesday, February 24th, 2009. White House link   The President called for Congress to send him a cap and trade bill to address climate change and stressed investments in clean energy as the path to America's future.  What a difference from last year!

As the President says about the long term investments that are absolutely critical to our economic future:

It begins with energy.

We know the country that harnesses the power of clean, renewable energy will lead the 21st century.  And yet, it is China that has launched the largest effort in history to make their economy energy efficient.  We invented solar technology, but we’ve fallen behind countries like Germany and Japan in producing it.  New plug-in hybrids roll off our assembly lines, but they will run on batteries made in Korea.

Well I do not accept a future where the jobs and industries of tomorrow take root beyond our borders – and I know you don’t either. It is time for America to lead again.

Thanks to our recovery plan, we will double this nation’s supply of renewable energy in the next three years.  We have also made the largest investment in basic research funding in American history – an investment that will spur not only new discoveries in energy, but breakthroughs in medicine, science, and technology.

We will soon lay down thousands of miles of power lines that can carry new energy to cities and towns across this country.  And we will put Americans to work making our homes and buildings more efficient so that we can save billions of dollars on our energy bills.

But to truly transform our economy, protect our security, and save our planet from the ravages of climate change, we need to ultimately make clean, renewable energy the profitable kind of energy.  So I ask this Congress to send me legislation that places a market-based cap on carbon pollution and drives the production of more renewable energy in America.  And to support that innovation, we will invest fifteen billion dollars a year to develop technologies like wind power and solar power; advanced biofuels, clean coal, and more fuel-efficient cars and trucks built right here in America.

As for our auto industry, everyone recognizes that years of bad decision-making and a global recession have pushed our automakers to the brink.  We should not, and will not, protect them from their own bad practices.  But we are committed to the goal of a re-tooled, re-imagined auto industry that can compete and win.  Millions of jobs depend on it.  Scores of communities depend on it.  And I believe the nation that invented the automobile cannot walk away from it.

None of this will come without cost, nor will it be easy.  But this is America.  We don’t do what’s easy.  We do what is necessary to move this country forward.

Remarks of President Barack Obama – As Prepared for Delivery
Address to Joint Session of Congress
Tuesday, February 24th, 2009

(en español)

Madame Speaker, Mr. Vice President, Members of Congress, and the First Lady of the United States:

I’ve come here tonight not only to address the distinguished men and women in this great chamber, but to speak frankly and directly to the men and women who sent us here.

I know that for many Americans watching right now, the state of our economy is a concern that rises above all others.  And rightly so.  If you haven’t been personally affected by this recession, you probably know someone who has – a friend; a neighbor; a member of your family. You don’t need to hear another list of statistics to know that our economy is in crisis, because you live it every day.  It’s the worry you wake up with and the source of sleepless nights.  It’s the job you thought you’d retire from but now have lost; the business you built your dreams upon that’s now hanging by a thread; the college acceptance letter your child had to put back in the envelope.  The impact of this recession is real, and it is everywhere.   

But while our economy may be weakened and our confidence shaken; though we are living through difficult and uncertain times, tonight I want every American to know this:

We will rebuild, we will recover, and the United States of America will emerge stronger than before.

The weight of this crisis will not determine the destiny of this nation.  The answers to our problems don’t lie beyond our reach.  They exist in our laboratories and universities; in our fields and our factories; in the imaginations of our entrepreneurs and the pride of the hardest-working people on Earth.  Those qualities that have made America the greatest force of progress and prosperity in human history we still possess in ample measure.  What is required now is for this country to pull together, confront boldly the challenges we face, and take responsibility for our future once more.

Now, if we’re honest with ourselves, we’ll admit that for too long, we have not always met these responsibilities – as a government or as a people.  I say this not to lay blame or look backwards, but because it is only by understanding how we arrived at this moment that we’ll be able to lift ourselves out of this predicament.

The fact is, our economy did not fall into decline overnight.  Nor did all of our problems begin when the housing market collapsed or the stock market sank.  We have known for decades that our survival depends on finding new sources of energy.  Yet we import more oil today than ever before.  The cost of health care eats up more and more of our savings each year, yet we keep delaying reform.  Our children will compete for jobs in a global economy that too many of our schools do not prepare them for.  And though all these challenges went unsolved, we still managed to spend more money and pile up more debt, both as individuals and through our government, than ever before.

In other words, we have lived through an era where too often, short-term gains were prized over long-term prosperity; where we failed to look beyond the next payment, the next quarter, or the next election.  A surplus became an excuse to transfer wealth to the wealthy instead of an opportunity to invest in our future.  Regulations were gutted for the sake of a quick profit at the expense of a healthy market.  People bought homes they knew they couldn’t afford from banks and lenders who pushed those bad loans anyway.  And all the while, critical debates and difficult decisions were put off for some other time on some other day.

Well that day of reckoning has arrived, and the time to take charge of our future is here.

Now is the time to act boldly and wisely – to not only revive this economy, but to build a new foundation for lasting prosperity.  Now is the time to jumpstart job creation, re-start lending, and invest in areas like energy, health care, and education that will grow our economy, even as we make hard choices to bring our deficit down.  That is what my economic agenda is designed to do, and that’s what I’d like to talk to you about tonight.

It’s an agenda that begins with jobs.

As soon as I took office, I asked this Congress to send me a recovery plan by President’s Day that would put people back to work and put money in their pockets.  Not because I believe in bigger government – I don’t.  Not because I’m not mindful of the massive debt we’ve inherited – I am.  I called for action because the failure to do so would have cost more jobs and caused more hardships.  In fact, a failure to act would have worsened our long-term deficit by assuring weak economic growth for years.  That’s why I pushed for quick action. And tonight, I am grateful that this Congress delivered, and pleased to say that the American Recovery and Reinvestment Act is now law.   

Over the next two years, this plan will save or create 3.5 million jobs.  More than 90% of these jobs will be in the private sector – jobs rebuilding our roads and bridges; constructing wind turbines and solar panels; laying broadband and expanding mass transit.

Because of this plan, there are teachers who can now keep their jobs and educate our kids.  Health care professionals can continue caring for our sick.  There are 57 police officers who are still on the streets of Minneapolis tonight because this plan prevented the layoffs their department was about to make.

Because of this plan, 95% of the working households in America will receive a tax cut – a tax cut that you will see in your paychecks beginning on April 1st.

Because of this plan, families who are struggling to pay tuition costs will receive a $2,500 tax credit for all four years of college. And Americans who have lost their jobs in this recession will be able to receive extended unemployment benefits and continued health care coverage to help them weather this storm.

I know there are some in this chamber and watching at home who are skeptical of whether this plan will work.  I understand that skepticism.  Here in Washington, we’ve all seen how quickly good intentions can turn into broken promises and wasteful spending.  And with a plan of this scale comes enormous responsibility to get it right.

That is why I have asked Vice President Biden to lead a tough, unprecedented oversight effort – because nobody messes with Joe.  I have told each member of my Cabinet as well as mayors and governors across the country that they will be held accountable by me and the American people for every dollar they spend.  I have appointed a proven and aggressive Inspector General to ferret out any and all cases of waste and fraud.  And we have created a new website called recovery.gov so that every American can find out how and where their money is being spent.

So the recovery plan we passed is the first step in getting our economy back on track.  But it is just the first step.  Because even if we manage this plan flawlessly, there will be no real recovery unless we clean up the credit crisis that has severely weakened our financial system.

I want to speak plainly and candidly about this issue tonight, because every American should know that it directly affects you and your family’s well-being.  You should also know that the money you’ve deposited in banks across the country is safe; your insurance is secure; and you can rely on the continued operation of our financial system.  That is not the source of concern.

The concern is that if we do not re-start lending in this country, our recovery will be choked off before it even begins.

You see, the flow of credit is the lifeblood of our economy.  The ability to get a loan is how you finance the purchase of everything from a home to a car to a college education; how stores stock their shelves, farms buy equipment, and businesses make payroll.

But credit has stopped flowing the way it should.  Too many bad loans from the housing crisis have made their way onto the books of too many banks.  With so much debt and so little confidence, these banks are now fearful of lending out any more money to households, to businesses, or to each other.  When there is no lending, families can’t afford to buy homes or cars.  So businesses are forced to make layoffs.  Our economy suffers even more, and credit dries up even further.

That is why this administration is moving swiftly and aggressively to break this destructive cycle, restore confidence, and re-start lending.

We will do so in several ways.  First, we are creating a new lending fund that represents the largest effort ever to help provide auto loans, college loans, and small business loans to the consumers and entrepreneurs who keep this economy running.   

Second, we have launched a housing plan that will help responsible families facing the threat of foreclosure lower their monthly payments and re-finance their mortgages.  It’s a plan that won’t help speculators or that neighbor down the street who bought a house he could never hope to afford, but it will help millions of Americans who are struggling with declining home values – Americans who will now be able to take advantage of the lower interest rates that this plan has already helped bring about.  In fact, the average family who re-finances today can save nearly $2000 per year on their mortgage.   

Third, we will act with the full force of the federal government to ensure that the major banks that Americans depend on have enough confidence and enough money to lend even in more difficult times.  And when we learn that a major bank has serious problems, we will hold accountable those responsible, force the necessary adjustments, provide the support to clean up their balance sheets, and assure the continuity of a strong, viable institution that can serve our people and our economy.

I understand that on any given day, Wall Street may be more comforted by an approach that gives banks bailouts with no strings attached, and that holds nobody accountable for their reckless decisions.  But such an approach won’t solve the problem.  And our goal is to quicken the day when we re-start lending to the American people and American business and end this crisis once and for all.

I intend to hold these banks fully accountable for the assistance they receive, and this time, they will have to clearly demonstrate how taxpayer dollars result in more lending for the American taxpayer. This time, CEOs won’t be able to use taxpayer money to pad their paychecks or buy fancy drapes or disappear on a private jet.  Those days are over.

Still, this plan will require significant resources from the federal government – and yes, probably more than we’ve already set aside.  But while the cost of action will be great, I can assure you that the cost of inaction will be far greater, for it could result in an economy that sputters along for not months or years, but perhaps a decade.  That would be worse for our deficit, worse for business, worse for you, and worse for the next generation.  And I refuse to let that happen.    

I understand that when the last administration asked this Congress to provide assistance for struggling banks, Democrats and Republicans alike were infuriated by the mismanagement and results that followed. So were the American taxpayers.  So was I.

So I know how unpopular it is to be seen as helping banks right now, especially when everyone is suffering in part from their bad decisions.  I promise you – I get it.

But I also know that in a time of crisis, we cannot afford to govern out of anger, or yield to the politics of the moment.  My job – our job – is to solve the problem.  Our job is to govern with a sense of responsibility.  I will not spend a single penny for the purpose of rewarding a single Wall Street executive, but I will do whatever it takes to help the small business that can’t pay its workers or the family that has saved and still can’t get a mortgage.

That’s what this is about.  It’s not about helping banks – it’s about helping people.  Because when credit is available again, that young family can finally buy a new home.  And then some company will hire workers to build it.  And then those workers will have money to spend, and if they can get a loan too, maybe they’ll finally buy that car, or open their own business.  Investors will return to the market, and American families will see their retirement secured once more. Slowly, but surely, confidence will return, and our economy will recover.    

So I ask this Congress to join me in doing whatever proves necessary.  Because we cannot consign our nation to an open-ended recession.  And to ensure that a crisis of this magnitude never happens again, I ask Congress to move quickly on legislation that will finally reform our outdated regulatory system.  It is time to put in place tough, new common-sense rules of the road so that our financial market rewards drive and innovation, and punishes short-cuts and abuse.

The recovery plan and the financial stability plan are the immediate steps we’re taking to revive our economy in the short-term.  But the only way to fully restore America’s economic strength is to make the long-term investments that will lead to new jobs, new industries, and a renewed ability to compete with the rest of the world. The only way this century will be another American century is if we confront at last the price of our dependence on oil and the high cost of health care; the schools that aren’t preparing our children and the mountain of debt they stand to inherit.  That is our responsibility.

In the next few days, I will submit a budget to Congress.  So often, we have come to view these documents as simply numbers on a page or laundry lists of programs.  I see this document differently.  I see it as a vision for America – as a blueprint for our future.

My budget does not attempt to solve every problem or address every issue.  It reflects the stark reality of what we’ve inherited – a trillion dollar deficit, a financial crisis, and a costly recession.

Given these realities, everyone in this chamber – Democrats and Republicans – will have to sacrifice some worthy priorities for which there are no dollars.  And that includes me. 

But that does not mean we can afford to ignore our long-term challenges.  I reject the view that says our problems will simply take care of themselves; that says government has no role in laying the foundation for our common prosperity.

For history tells a different story.  History reminds us that at every moment of economic upheaval and transformation, this nation has responded with bold action and big ideas.  In the midst of civil war, we laid railroad tracks from one coast to another that spurred commerce and industry.  From the turmoil of the Industrial Revolution came a system of public high schools that prepared our citizens for a new age.  In the wake of war and depression, the GI Bill sent a generation to college and created the largest middle-class in history.  And a twilight struggle for freedom led to a nation of highways, an American on the moon, and an explosion of technology that still shapes our world.

In each case, government didn’t supplant private enterprise; it catalyzed private enterprise.  It created the conditions for thousands of entrepreneurs and new businesses to adapt and to thrive.

We are a nation that has seen promise amid peril, and claimed opportunity from ordeal.  Now we must be that nation again.  That is why, even as it cuts back on the programs we don’t need, the budget I submit will invest in the three areas that are absolutely critical to our economic future:  energy, health care, and education.

It begins with energy.

We know the country that harnesses the power of clean, renewable energy will lead the 21st century.  And yet, it is China that has launched the largest effort in history to make their economy energy efficient.  We invented solar technology, but we’ve fallen behind countries like Germany and Japan in producing it.  New plug-in hybrids roll off our assembly lines, but they will run on batteries made in Korea.

Well I do not accept a future where the jobs and industries of tomorrow take root beyond our borders – and I know you don’t either. It is time for America to lead again.

Thanks to our recovery plan, we will double this nation’s supply of renewable energy in the next three years.  We have also made the largest investment in basic research funding in American history – an investment that will spur not only new discoveries in energy, but breakthroughs in medicine, science, and technology.

We will soon lay down thousands of miles of power lines that can carry new energy to cities and towns across this country.  And we will put Americans to work making our homes and buildings more efficient so that we can save billions of dollars on our energy bills.

But to truly transform our economy, protect our security, and save our planet from the ravages of climate change, we need to ultimately make clean, renewable energy the profitable kind of energy.  So I ask this Congress to send me legislation that places a market-based cap on carbon pollution and drives the production of more renewable energy in America.  And to support that innovation, we will invest fifteen billion dollars a year to develop technologies like wind power and solar power; advanced biofuels, clean coal, and more fuel-efficient cars and trucks built right here in America.

As for our auto industry, everyone recognizes that years of bad decision-making and a global recession have pushed our automakers to the brink.  We should not, and will not, protect them from their own bad practices.  But we are committed to the goal of a re-tooled, re-imagined auto industry that can compete and win.  Millions of jobs depend on it.  Scores of communities depend on it.  And I believe the nation that invented the automobile cannot walk away from it.

None of this will come without cost, nor will it be easy.  But this is America.  We don’t do what’s easy.  We do what is necessary to move this country forward.

For that same reason, we must also address the crushing cost of health care.   

This is a cost that now causes a bankruptcy in America every thirty seconds.  By the end of the year, it could cause 1.5 million Americans to lose their homes.  In the last eight years, premiums have grown four times faster than wages.  And in each of these years, one million more Americans have lost their health insurance.  It is one of the major reasons why small businesses close their doors and corporations ship jobs overseas.  And it’s one of the largest and fastest-growing parts of our budget.

Given these facts, we can no longer afford to put health care reform on hold.

Already, we have done more to advance the cause of health care reform in the last thirty days than we have in the last decade.  When it was days old, this Congress passed a law to provide and protect health insurance for eleven million American children whose parents work full-time.  Our recovery plan will invest in electronic health records and new technology that will reduce errors, bring down costs, ensure privacy, and save lives.  It will launch a new effort to conquer a disease that has touched the life of nearly every American by seeking a cure for cancer in our time.  And it makes the largest investment ever in preventive care, because that is one of the best ways to keep our people healthy and our costs under control.

This budget builds on these reforms.  It includes an historic commitment to comprehensive health care reform – a down-payment on the principle that we must have quality, affordable health care for every American.  It’s a commitment that’s paid for in part by efficiencies in our system that are long overdue.  And it’s a step we must take if we hope to bring down our deficit in the years to come.

Now, there will be many different opinions and ideas about how to achieve reform, and that is why I’m bringing together businesses and workers, doctors and health care providers, Democrats and Republicans to begin work on this issue next week.

I suffer no illusions that this will be an easy process.  It will be hard.  But I also know that nearly a century after Teddy Roosevelt first called for reform, the cost of our health care has weighed down our economy and the conscience of our nation long enough.  So let there be no doubt: health care reform cannot wait, it must not wait, and it will not wait another year.    

The third challenge we must address is the urgent need to expand the promise of education in America.   

In a global economy where the most valuable skill you can sell is your knowledge, a good education is no longer just a pathway to opportunity – it is a pre-requisite.   

Right now, three-quarters of the fastest-growing occupations require more than a high school diploma.  And yet, just over half of our citizens have that level of education.  We have one of the highest high school dropout rates of any industrialized nation.  And half of the students who begin college never finish.

This is a prescription for economic decline, because we know the countries that out-teach us today will out-compete us tomorrow.  That is why it will be the goal of this administration to ensure that every child has access to a complete and competitive education – from the day they are born to the day they begin a career.

Already, we have made an historic investment in education through the economic recovery plan.  We have dramatically expanded early childhood education and will continue to improve its quality, because we know that the most formative learning comes in those first years of life.  We have made college affordable for nearly seven million more students.  And we have provided the resources necessary to prevent painful cuts and teacher layoffs that would set back our children’s progress.

But we know that our schools don’t just need more resources.  They need more reform.  That is why this budget creates new incentives for teacher performance; pathways for advancement, and rewards for success.  We’ll invest in innovative programs that are already helping schools meet high standards and close achievement gaps.  And we will expand our commitment to charter schools. 

It is our responsibility as lawmakers and educators to make this system work.  But it is the responsibility of every citizen to participate in it.  And so tonight, I ask every American to commit to at least one year or more of higher education or career training.  This can be community college or a four-year school; vocational training or an apprenticeship.  But whatever the training may be, every American will need to get more than a high school diploma.  And dropping out of high school is no longer an option.  It’s not just quitting on yourself, it’s quitting on your country – and this country needs and values the talents of every American.  That is why we will provide the support necessary for you to complete college and meet a new goal:  by 2020, America will once again have the highest proportion of college graduates in the world. 

I know that the price of tuition is higher than ever, which is why if you are willing to volunteer in your neighborhood or give back to your community or serve your country, we will make sure that you can afford a higher education.  And to encourage a renewed spirit of national service for this and future generations, I ask this Congress to send me the bipartisan legislation that bears the name of Senator Orrin Hatch as well as an American who has never stopped asking what he can do for his country – Senator Edward Kennedy.

These education policies will open the doors of opportunity for our children.  But it is up to us to ensure they walk through them.  In the end, there is no program or policy that can substitute for a mother or father who will attend those parent/teacher conferences, or help with homework after dinner, or turn off the TV, put away the video games, and read to their child.  I speak to you not just as a President, but as a father when I say that responsibility for our children's education must begin at home.

There is, of course, another responsibility we have to our children.  And that is the responsibility to ensure that we do not pass on to them a debt they cannot pay.  With the deficit we inherited, the cost of the crisis we face, and the long-term challenges we must meet, it has never been more important to ensure that as our economy recovers, we do what it takes to bring this deficit down. 

I’m proud that we passed the recovery plan free of earmarks, and I want to pass a budget next year that ensures that each dollar we spend reflects only our most important national priorities.

Yesterday, I held a fiscal summit where I pledged to cut the deficit in half by the end of my first term in office.  My administration has also begun to go line by line through the federal budget in order to eliminate wasteful and ineffective programs.  As you can imagine, this is a process that will take some time.  But we’re starting with the biggest lines.  We have already identified two trillion dollars in savings over the next decade.

In this budget, we will end education programs that don’t work and end direct payments to large agribusinesses that don’t need them. We’ll eliminate the no-bid contracts that have wasted billions in Iraq, and reform our defense budget so that we’re not paying for Cold War-era weapons systems we don’t use.  We will root out the waste, fraud, and abuse in our Medicare program that doesn’t make our seniors any healthier, and we will restore a sense of fairness and balance to our tax code by finally ending the tax breaks for corporations that ship our jobs overseas.

In order to save our children from a future of debt, we will also end the tax breaks for the wealthiest 2% of Americans.  But let me perfectly clear, because I know you’ll hear the same old claims that rolling back these tax breaks means a massive tax increase on the American people:  if your family earns less than $250,000 a year, you will not see your taxes increased a single dime.  I repeat: not one single dime.  In fact, the recovery plan provides a tax cut – that’s right, a tax cut – for 95% of working families.  And these checks are on the way.   

To preserve our long-term fiscal health, we must also address the growing costs in Medicare and Social Security.  Comprehensive health care reform is the best way to strengthen Medicare for years to come. And we must also begin a conversation on how to do the same for Social Security, while creating tax-free universal savings accounts for all Americans.

Finally, because we’re also suffering from a deficit of trust, I am committed to restoring a sense of honesty and accountability to our budget.  That is why this budget looks ahead ten years and accounts for spending that was left out under the old rules – and for the first time, that includes the full cost of fighting in Iraq and Afghanistan. For seven years, we have been a nation at war.  No longer will we hide its price.

We are now carefully reviewing our policies in both wars, and I will soon announce a way forward in Iraq that leaves Iraq to its people and responsibly ends this war.

And with our friends and allies, we will forge a new and comprehensive strategy for Afghanistan and Pakistan to defeat al Qaeda and combat extremism.  Because I will not allow terrorists to plot against the American people from safe havens half a world away.

As we meet here tonight, our men and women in uniform stand watch abroad and more are readying to deploy. To each and every one of them, and to the families who bear the quiet burden of their absence, Americans are united in sending one message: we honor your service, we are inspired by your sacrifice, and you have our unyielding support. To relieve the strain on our forces, my budget increases the number of our soldiers and Marines. And to keep our sacred trust with those who serve, we will raise their pay, and give our veterans the expanded health care and benefits that they have earned.

To overcome extremism, we must also be vigilant in upholding the values our troops defend – because there is no force in the world more powerful than the example of America. That is why I have ordered the closing of the detention center at Guantanamo Bay, and will seek swift and certain justice for captured terrorists – because living our values doesn’t make us weaker, it makes us safer and it makes us stronger. And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture.

In words and deeds, we are showing the world that a new era of engagement has begun.  For we know that America cannot meet the threats of this century alone, but the world cannot meet them without America. We cannot shun the negotiating table, nor ignore the foes or forces that could do us harm.  We are instead called to move forward with the sense of confidence and candor that serious times demand.

To seek progress toward a secure and lasting peace between Israel and her neighbors, we have appointed an envoy to sustain our effort. To meet the challenges of the 21st century – from terrorism to nuclear proliferation; from pandemic disease to cyber threats to crushing poverty – we will strengthen old alliances, forge new ones, and use all elements of our national power.

And to respond to an economic crisis that is global in scope, we are working with the nations of the G-20 to restore confidence in our financial system, avoid the possibility of escalating protectionism, and spur demand for American goods in markets across the globe.  For the world depends on us to have a strong economy, just as our economy depends on the strength of the world’s.

As we stand at this crossroads of history, the eyes of all people in all nations are once again upon us – watching to see what we do with this moment; waiting for us to lead.    

Those of us gathered here tonight have been called to govern in extraordinary times.  It is a tremendous burden, but also a great privilege – one that has been entrusted to few generations of Americans.  For in our hands lies the ability to shape our world for good or for ill.

I know that it is easy to lose sight of this truth – to become cynical and doubtful; consumed with the petty and the trivial.

But in my life, I have also learned that hope is found in unlikely places; that inspiration often comes not from those with the most power or celebrity, but from the dreams and aspirations of Americans who are anything but ordinary.

I think about Leonard Abess, the bank president from Miami who reportedly cashed out of his company, took a $60 million bonus, and gave it out to all 399 people who worked for him, plus another 72 who used to work for him.  He didn’t tell anyone, but when the local newspaper found out, he simply said, ''I knew some of these people since I was 7 years old.  I didn't feel right getting the money myself."

I think about Greensburg, Kansas, a town that was completely destroyed by a tornado, but is being rebuilt by its residents as a global example of how clean energy can power an entire community – how it can bring jobs and businesses to a place where piles of bricks and rubble once lay.  "The tragedy was terrible," said one of the men who helped them rebuild.  "But the folks here know that it also provided an incredible opportunity."    

And I think about Ty’Sheoma Bethea, the young girl from that school I visited in Dillon, South Carolina – a place where the ceilings leak, the paint peels off the walls, and they have to stop teaching six times a day because the train barrels by their classroom.  She has been told that her school is hopeless, but the other day after class she went to the public library and typed up a letter to the people sitting in this room.  She even asked her principal for the money to buy a stamp.  The letter asks us for help, and says, "We are just students trying to become lawyers, doctors, congressmen like yourself and one day president, so we can make a change to not just the state of South Carolina but also the world.  We are not quitters."

We are not quitters.

These words and these stories tell us something about the spirit of the people who sent us here.  They tell us that even in the most trying times, amid the most difficult circumstances, there is a generosity, a resilience, a decency, and a determination that perseveres; a willingness to take responsibility for our future and for posterity.

Their resolve must be our inspiration.  Their concerns must be our cause.  And we must show them and all our people that we are equal to the task before us.

I know that we haven’t agreed on every issue thus far, and there are surely times in the future when we will part ways.  But I also know that every American who is sitting here tonight loves this country and wants it to succeed.  That must be the starting point for every debate we have in the coming months, and where we return after those debates are done.  That is the foundation on which the American people expect us to build common ground.

And if we do – if we come together and lift this nation from the depths of this crisis; if we put our people back to work and restart the engine of our prosperity; if we confront without fear the challenges of our time and summon that enduring spirit of an America that does not quit, then someday years from now our children can tell their children that this was the time when we performed, in the words that are carved into this very chamber, "something worthy to be remembered."  Thank you, God Bless you, and may God Bless the United States of America.

Creating a Sustainable Society - the Role of Social Entrepreneurs and Volunteers

Today, the House Committee on Education and Labor had a Congressional hearing on volunteerism. Both Van Jones and Cheryl Dorsey testified to the value of volunteerism for the future of the green movement and social entrepreneurship.  Cheryl Dorsey’s video testimony can be found here Dorsey video link  and her written testimony is here. Dorsey written link  Van Jones’ video testimony is here Jones video link  and his written testimony is here.Jones' written link   Although we frequently focus on using regulation to control traditional profit-oriented business endeavors, it's good to remind ourselves that social entrepreneurs and volunteers can make a real difference in the quality of life in our communities as well as the quality of the environment.

National Environmental Law Moot Court Competition

Congratulations to all of the participants in the National Environmental Law Moot Court Competition held at Pace University during the last few days.  Roughly 70 law schools participated in the competition, which featured a difficult and oft-times confusing problem about salvage of a Spanish shipwreck.  The law covered by the problem included admiralty law, administrative law, international law such as the UNESCO treaty and the Law of the Sea, the National Marine Sanctuaries Act, the Endangered Species Act, the Clean Water Act, the Rivers and Harbors Act, the Outer Continental Shelf Lands Act, and for good measure, the Submerged Military Craft Act.  Just typing that list makes me tired!

The learning is in participating, but the honors for Best Briefs go to University of Houston, Georgetown, and University of California at Davis, with Houston winning overall Best Brief.  The Best Oralist Honor goes to Louisiana State University.  The final round of the competition featured Lewis & Clark law school, University of Utah, and Louisiana State. Lewis & Clark prevailed, winning the overall competition for the 2d time in a row.  If I recall correctly, that may be the first back to back win.  Congratulations to everyone!

The students of Pace University deserve special mention for sacrificing their ability to compete and for running a flawless competition.  More details can be found at the NELMCC site.

Red Queens or Court Jesters: How Species Evolve

A review in this month's science by Michael Benton discusses two prominent models of evolution.Science article  The abstract and some snippets of the article are below:

Evolution may be dominated by biotic factors, as in the Red Queen model, or abiotic factors, as in the Court Jester model, or a mixture of both. The two models appear to operate predominantly over different geographic and temporal scales: Competition, predation, and other biotic factors shape ecosystems locally and over short time spans, but extrinsic factors such as climate and oceanographic and tectonic events shape larger-scale patterns regionally and globally, and through thousands and millions of years. Paleobiological studies suggest that species diversity is driven largely by abiotic factors such as climate, landscape, or food supply, and comparative phylogenetic approaches offer new insights into clade dynamics. 

According to Benton, abiotic factors play a more prominent role when the geographic and temporal scale is large:

Much of the divergence between the Red Queen and Court Jester world views may depend on scale (2) (Fig. 1): Biotic interactions drive much of the local-scale success or failure of individuals, populations, and species (Red Queen), but perhaps these processes are overwhelmed by substantial tectonic and climatic processes at time scales above 10⁵ years (Court Jester). It is important not to export organism-level processes to regional or global scales, and it is likely that evolution operates in a pluralistic way (3).

Fig. 1. Operation of Red Queen (biotic causation) and Court Jester (abiotic causation) models at different geographic and temporal scales (A). The Red Queen may prevail at organismic and species level on short time scales, whereas the Court Jester holds his own on larger scales. The stippled green shape shows an area where Red Queen effects might be identified erroneously, but these are likely the result of spatial averaging of regional responses to climate change and other complex physical perturbations that may be in opposite directions, and so cancel each other, suggesting no controlling effect of the physical environment on evolution. Physical-environmental disruptions may elicit biotic responses along the red line separating Red Queen and Court Jester outcomes (B). The usage here is the microevolutionary Red Queen, as opposed to the macroevolutionary Red Queen that posits constant extinction risk, a view that has been largely rejected (31). Illustration based on (2). [View Larger Version of this Image (69K GIF file)]

Large-Scale Controls on Species Diversity

... Biotic factors, such as body size, diet, colonizing ability or ecological specialization, appear to have little effect on the diversity of modern organisms, although abundance and...life-history characteristics (short gestation period, large litter size, and short interbirth intervals) sometimes correlate with high species richness (16).

 

Geographic and tectonic history has generated patterns of species diversity through time. The slow dance of the continents as Pangaea broke up during the past 200 My has affected modern distribution patterns. Unique terrestrial faunas and floras, notably those of Australia and South America, arose because those continents were islands for much of the past 100 My. Further, major geologic events such as the formation of the Isthmus of Panama have permitted the dispersal of terrestrial organisms and have split the distributions of marine organisms. A classic example of vicariance is the fundamental division of placental mammals into three clades, Edentata in South America, Afrotheria in Africa, and Boreoeutheria in the northern hemisphere, presumably triggered by the split of those continents 100 Ma (17). Other splits in species trees may relate to dispersal events, or there may be no geographic component at all. 

Species richness through time may correlate with energy. The species richness–energy relationship (18) posits correlations with evapo-transpiration, temperature, or productivity, and studies of terrestrial and marine ecosystems have shown that these factors may explain as much as 90% of current diversity, although relationships between species diversity and productivity change with spatial scale (19). Over long time spans, there are strong correlations between plankton morphology and diversity and water temperature: Cooling sea temperatures through the past 70 My, and consequent increasing ocean stratification, drove a major radiation of Foraminifera, associated with increasing body size (20). More widely, there is close tracking between temperature and biodiversity on the global scale for both marine and terrestrial organisms (21), where generic and familial richness were relatively low during warm "greenhouse" phases of Earth history, coinciding with relatively high origination and extinction rates. 

A much-studied manifestation of energy and temperature gradients is the latitudinal diversity gradient (LDG), namely the greater diversity of life in the tropics than in temperate or polar regions, both on land and in the sea. There are two explanations (22): (i) the time and area hypothesis, that the tropical belt is older and larger than temperate and polar zones, and so tropical clades have had longer to speciate, or (ii) the diversification rate hypothesis, that there are higher rates of speciation and lower rates of extinction in the tropics than elsewhere. There is geological and paleontological evidence for a mixture of both hypotheses (23, 24). 

Species diversity may increase by the occupation of new ecospace. The number of occupied guilds, that is, broad ecological groupings of organisms with shared habits, has increased in several steps through time...(25). Further, marine animals have shown several step increases in tiering, the ability to occupy and exploit different levels in the habitat: At times, burrowers have burrowed deeper, and reef-builders have built taller and more complex reefs. Analogous, if even more dramatic, expansions of ecospace have occurred on land, with numerous stepwise additions of new habitats, from the water-margin plants and arthropods of the early Paleozoic to the forests and upland habitats of the later Paleozoic when land animals first burrowed, climbed, and flew, through the introduction of herbivory, giant size, endothermy, and intelligence among vertebrates, and the great blossoming of flowering plants (with associated vast expansions in diversity of plant-eating and social insects and modern vertebrates)...(26). 

The other mode of species increase globally or regionally is by niche subdivision, or increasing specialization. This is hard to document because of the number of other factors that vary between ecosystems through time. However, mean species number in communities (alpha diversity) has increased through time in both marine (15, 25) and terrestrial (10) systems, even though niche subdivision may be less important than occupation of new ecospace in increasing biodiversity. Further, morphological complexity may be quantified, and a comparative study of crustaceans shows, for example, that complexity has increased many times in parallel in separate lineages (27).

Chartering Sustainable Transnational Corporations

This link connects to a paper I just posted on SSRN.  I presented the paper at the 6th Colloquium of the IUCN International Academy of Environmental Law in Mexico City in November 2008.  I am submitting a short version of the paper for possible publication in a book incorporating papers presented at the conference on the theme of Alleviating Poverty and Environmental Protection.  And I am preparing a more complete and elaborate version for possible law review publication.  I would deeply appreciate your comments on the subject of how we ensure that transnational corporations act in a sustainable manner and the obstacles or concerns with the approach I suggest.  SSRN link

Abstract:    
Using a recent innovative Oregon sustainable corporation law as a springboard, this article argues for requiring all transnational corporations to be chartered as sustainable corporations. Given the far-reaching effects of their operations and their uniquely powerful role, the global wealth that has been accumulated in these organizations must be fundamentally redirected toward creating a sustainable world. As a privilege of doing transnational business, transnational corporations should be required to incorporate environmental and social responsibility into their corporate charters-the document that sets forth the prime mission of the corporation and its directors, essentially baking sustainability into the corporate DNA of transnational corporations.

To be both effective and to harness the entrepreneurial creativity of these organizations, the sustainable corporation charter must be implemented per provisions that require transnational corporations to develop corporate sustainability strategies in accordance with the guidance provided by the implementing provisions. The implementing provisions should also require that the transnational corporations monitor and report in a standardized manner compliance with the corporate sustainability strategy, with sustainability-related laws, and with nonbinding environmental, labor, human rights, corruption, and other sustainability-related standards.

The sustainable corporation charter requirement should be imposed as a matter of international law, through an international convention and administered by an international commission. The requirements should be directly applicable to transnational corporations as a condition of doing transnational business. The commission should be authorized to take enforcement action directly against the corporation. In addition, both home and host nations to transnational corporations should agree to compel the corporations - either incorporated in that nation or doing business in that nation-to comply with the sustainable corporation charter requirement as a condition of doing any business. Nations that fail to join the international convention, or that fail to enforce the international convention, should be subject to mandatory trade and other economic sanctions by all signatories to the international agreement.

We can no longer allow transnational corporations to aggregate the bulk of societal wealth and then operate in an environmentally and socially irresponsible manner. The proposals in this article are one step toward turning transnational corporations into sustainable corporations.

Keywords: transnational corporations, corporate charters, multi-national corporations, sustainability, environmental, international convention, environmental assessment, voluntary compliance, environmental standards, alien tort, corporate social responsibility, human rights, international law, enforcement

Let Clean Water Flow

Here's my church's video to launch our 2009 Drink Water for Life lenten challenge.  If you benefit from the work I do on this blog, please, please, please......take the challenge or find another way to contribute to organizations that do community-based water projects.  Church World Service or Global Ministries are great faith-based organizations.  Water for Life and Water for People are great secular groups. Every 15 seconds, a child dies from a water borne disease like cholera or dysentery from lack of clean water and sanitation.  Together, we can change this.  Village by village. 

Let Clean Water Flow 

Final Action on All Proposed Rules Suspended Pending Legal and Policy Review

Earthjustice reported:

White House Chief of Staff Rahm Emanuel Tuesday sent a memo to the heads of all executive departments and agencies, ordering a stop to all pending regulations until a legal and policy review can be conducted by the Obama administration.

A rule that would eliminate Endangered Species Act protections for wolves in the northern Rocky Mountains except for those in Wyoming was scheduled to be published on January 27. Now it will fall under review with the new administration. 

Among others, the Bush administration recently finalized rules that significantly weaken the Endangered Species Act, allow for mining deposits to be dumped within 100 feet of flowing streams and exempts large-scale factory farms from notifying government officials when they release unsafe levels of toxic emissions into the community. Earthjustice, a public interest law firm, filed suit against all of these rules.

The following statement is from Patti Goldman, Vice President of Program for Earthjustice:

"While we are pleased that the new administration has put a stop to these hasty actions, there are some rules we continue to monitor.

"Under the Emanuel memo, the wolf delisting rule will be withdrawn. This rule was extremely controversial and was rushed through even though a federal district court had declared the wolf delisting illegal in July. It defied the law which prohibits a state by state listing when the wolves do not respect state boundaries. 

"For the vast majority of the midnight regulations, the Bush administration got them published in time to evade the Emanuel memo's freeze.  Earthjustice has brought dozens of legal challenges to Bush rollbacks, which provides the ultimate pathway to reining in the excesses of the Bush administration."