Environmental Law Prof Blog

Zg Plater, Pat Parenteau and others to appear at 30th Anniversary Symposium of TVA v. Hill

Here is the announcement:

“A Symposium on TVA v. Hill:
A 30-Year Retrospective on the Legendary Snail Darter Case”

at The University of Tennessee College of Law, Knoxville, Friday, April 18.
The Symposium will start at noon EDST, and you are welcome to join via Webcast.  The Symposium website has a variety of intersting materials.Symposium Website link   The WEBCAST itself can be accessed at Webcast Link   The different sections of the webcast (which will have to be individually cued, starting at noon), are

Welcome
The Little T Valley:  Home of the Snail Darter
The Saga of How a Citizen Suit Goes National
The TVA History of the Darter Case
The Snail Darter Case in a National Perspective
Overview Wrap-Up Panel

Exactly 30 years before this coming Friday the Supreme Court heard the oral arguments in Tennessee Valley Authority v. Hiram Hill, et al., perhaps the most dramatic national legal story to come out of Tennessee in the past 75 years. Developing over the course of most of a decade, the Tennessee lawsuit— the little endangered snail darter fish versus TVA’s Tellico Dam — became a cultural icon, famous or infamous around the world.

The University of Tennessee College of Law’s thirty-year darter-versus-dam symposium offers a beneficial opportunity finally to put the case into an academic forum and accurate perspective, free of the spins, disinformation, and politicking that graced its years of notoriety, 1973-1980. Thirty years later the elements of the controversy have become broadly clear — the dam project was never a hydro project, but a recreational and land development scheme that was found to be economically dysfunctional from the start, in a unanimous decision  by the world’s first “God Committee” session under the ESA. Within a year, however, an appropriations rider nevertheless ended the case and the river. The merits of this saga will be addressed objectively in an academic forum, and lessons drawn.

Presenters include Dr. David Etnier who discovered the endangered species, several farmers who were displaced by Kelo-like condemnations, Zygmunt Plater who spent six years on the judicial, agency, and congressional battles in the case, Hank Hill & Peter Alliman who shaped the litigation effort as students at UT College of Law, Patrick Parenteau who provided sage support for the citizens’ efforts in Washington D.C. over three years of the case, Prof. Bruce Wheeler who co-authored an intensive internal history of TVA’s campaign to build the dam, and LSU Prof. Ken Murchison who wrote a recent book on the legal history of the case.

A bar journal cover story on the case can be accessed at Tennesee Bar Assn

Please join us electronically if you cannot be with us in person!

Drink Water for Life

This article is written by Denise Olivera, Columbia School of Journalism, about the Drink Water for Life Challenge originated by 1st Congregational Church, U.C.C. of Salem, Oregon.  The article was covered by the Great Reporter newsservice link The congregation pledges to give up some of its lattes, sodas, etc. during Lent and give the money to our Pure Water Fund.  In celebration of Lent, spring, or World Water Day, please chose to follow this lead.

DOT Downplays Transportation Report on Climate Change Impacts and Prevents Press from Interviewing the Author

HT to Lance Olson Climate Change Yahoo group:

The Government Accountability Project reported today on a major study on climate change impacts released on Wednesday by U.S. Department of Transportation (DOT) and the U.S. Climate Change Science Program.Gulf Coast Transportation study   This study reported on the likely impacts of global climate disruption on transportation infrastructure in the Gulf Coast region.  GAP indicates that the  report release was buried by the DOT, and officials have been blocking journalists from speaking with the report's lead author.

Specifically the report, Impacts of Climate Change and Variability on Transportation Systems and Infrastructure: Gulf Coast Study, analyzes how Gulf Coast roads and highways, transit services, oil and gas pipelines, freight handling ports, transcontinental railroad networks, waterway systems, and airports are likely to be harmed by heat waves, extreme precipitation events, sea level rise, increased hurricane intensity, and storm surge damage associated with climate change. The report outlines why changes must be incorporated in transportation planning now in order to avoid serious future problems.

Three hours after the report was posted online Wednesday, DOT issued an uninformative and misleading press release on a separate Web site. The press release lists only one contact - a DOT press official. Reporters who have tried to interview the report's lead author, Federal Highway Administration official Michael Savonis, have been explicitly told by DOT officials that the author and the press cannot communicate with each other. As lead author, Savonis should be allowed to brief and respond to press inquiries.

Plug in to NRDC's Blog

There's a little something for everyone here -- but some of the most prominent environmental lawyers in the world are blogging here.  NRDC Blog

Pulitzer Prize Anyone??? Only if you write by March 12th

Well, no prize, but...You can become a Pulitzer Center Citizen Journalist!!! 

• Pick an issue. Issues list   "Should US environmental standards apply when multinational companies develop the petroleum resources of fragile ecosystems such as Peru's Amazon forest?" should be of particular interest. Extraterritorial application of US environmental standards

 

• Read the corresponding coverage at Pulitzer’s website. Your article should draw on information from the Pulitzer Center articles; but you may also include include original reporting of your own or firsthand experiences. The goal is to provide fresh insight in a compellingly written article.

• Share your perspective on the issue and write your best article at Helium by March 12th.

Petition Filed Seeking CEQ Guidance on Climate Change Analyses Under NEPA

On Thursday, the International Center for Technology Assessment (ICTA), Natural Resources Defense Council (NRDC), and Sierra Club filed a formal legal petition with the Council on Environmental Quality (CEQ) seeking to assure that climate change analyses are included in all federal environmental review documents.  Petition The petition builds on the success of environmental groups in recent cases where federal courts found that climate change issues need to be considered during environmental impact review.  Rather than continue to address this on a piecemeal case by case basis, the petition seeks to create systematic review of climate change in NEPA documents.

 

Specifically, the petition requests CEQ:

• Amend the definitions of "significantly" and "effects" as well as the provision on environmental consequences to assure NEPA implementing regulations require climate change effects be addressed in environmental assessments and environmental impact statements; and

• Issue guidance to assure that climate change effects be addressed at each stage of the NEPA from categorical exclusions to the ROD.

• Issue a handbook to guide agencies in this process

 

Election 2008 -- The Candidates Speak in Their Own Words -- Part II:Hillary Clinton

During the last year, Foreign Affairs published a series of pieces on the 2008 presidential election, allowing candidates to frame their foreign policy in their own words. Foreign Affairs Election 2008 I am reviewing those pieces for discussions of global environmental issues, including climate change.  I find this a particularly useful approach because it allows candidates to move beyond sound bites and into the substance of what they believe. 

I expect to look at all of the current candidates: Democratic and Republican. The first candidate I am reviewed was Barack Obama. Today's post is Hillary Clinton.

Here's the foreign policy of Hillary Clinton with respect to the environment (especially global warming) in her own words:

The tragedy of the last six years is that the Bush administration has squandered the respect, trust, and confidence of even our closest allies and friends. At the dawn of the twenty-first century, the United States enjoyed a unique position. Our world leadership was widely accepted and respected, as we strengthened old alliances and built new ones, worked for peace across the globe, advanced nonproliferation, and modernized our military....At the same time, we embarked on an unprecedented course of unilateralism:..Our withdrawal from the Kyoto Protocol and refusal to participate in any international effort to deal with the tremendous challenges of climate change further damaged our international standing....At a moment in history when the world's most pressing problems require unprecedented cooperation, this administration has unilaterally pursued policies that are widely disliked and distrusted....

We need more than vision, however, to achieve the world we want. We must face up to an unprecedented array of challenges in the twenty-first century, threats from states, nonstate actors, and nature itself...Finally, the next president will have to address the looming long-term threats of climate change and a new wave of global health epidemics....

But China's rise is also creating new challenges. The Chinese have finally begun to realize that their rapid economic growth is coming at a tremendous environmental price. The United States should undertake a joint program with China and Japan to develop new clean-energy sources, promote greater energy efficiency, and combat climate change. This program would be part of an overall energy policy that would require a dramatic reduction in U.S. dependence on foreign oil....

We must find additional ways for Australia, India, Japan, and the United States to cooperate on issues of mutual concern, including combating terrorism, cooperating on global climate control, protecting global energy supplies, and deepening global economic development...

As president, I will make the fight against global warming a priority. We cannot solve the climate crisis alone, and the rest of the world cannot solve it without us. The United States must reengage in international climate change negotiations and provide the leadership needed to reach a binding global climate agreement. But we must first restore our own credibility on the issue. Rapidly emerging countries, such as China, will not curb their own carbon emissions until the United States has demonstrated a serious commitment to reducing its own through a market-based cap-and-trade approach.

We must also help developing nations build efficient and environmentally sustainable domestic energy infrastructures. Two-thirds of the growth in energy demand over the next 25 years will come from countries with little existing infrastructure. Many opportunities exist here as well: Mali is electrifying rural communities with solar power, Malawi is developing a biomass energy strategy, and all of Africa can provide carbon credits to the West.

Finally, we must create formal links between the International Energy Agency and China and India and create an "E-8" international forum modeled on the G-8. This group would be comprised of the world's major carbon-emitting nations and hold an annual summit devoted to international ecological and resource issues.

ExxonMobil Deliberately Misled Blogosphere About Funding Global Warming Denialists

Yesterday's post on ExxonMobil (2/17/08)  highlighted that it had funded the Frontiers of Freedom and its Center for Science and Public Policy (CSPP link ) during 2006, contrary to its claim that it was not funding global warming denialists.  You may wonder about the context in which ExxonMobil made this claim.

Remember last year when the IPCC 4th Assessment report came out – the Guardian wrote a story about American Enterprise Institute soliciting result-oriented denialist analyses of the IPCC report and that report included information about ExxonMobil’s funding of AEI. Guardian 2/2/07 Report.  During conversations in late January and early February, 2007 with me and other bloggers, Maria Surma Manka from Green Options [Giant Part I Post; Giant Part II Post], Jesse Jenkins from Watthead [ExxonMobil Posts], Tom Yulsman from Prometheus [Post on earlier conversations -- I can't recall whether Tom participated in the February call, but I believe he did], Stuart Staniford from The Oil Drum [ExxonMobil AEI Post], Ken Cohen, ExxonMobil’s Vice President for Public Affairs had assured us that ExxonMobil was no longer funding controversial denialist groups like Competitive Enterprise Institute and it did not fund AEI with the intent that they engage in denialist analyses.  The first conference call occurred in late January and the second on the same day that the Guardian story and the IPCC report came out.

 

Cohen spent considerable time before the IPCC report came out in January 2007 trying to convince us that ExxonMobil was changing its Neanderthal stripes, truly accepted that anthropogenic global warming was a serious problem, and was ready to take a responsible role in the future discussions of how to reduce GHG emissions. Admittedly Cohen did that in the truly diplomatic way of saying that ExxonMobil had not effectively communicated its position that anthropogenic global warming is real and that GHG emissions need to be reduced.

 

During the February call, Cohen knew that the Guardian’s report about ExxonMobil’s funding of AEI and AEI’s alleged solicitation of result-oriented denialist analyses threatened to undercut public perception of ExxonMobil as a responsible actor. Indeed, those reports ended up on CNN. So, Cohen went out of his way to schedule this call about the Guardian’s allegations.

 

As Maria recounted that discussion:

“We had no knowledge that this was going on,” insisted Cohen. He explained that Exxon funds a lot of different groups, and “when we fund them, we want good analysis." Exxon does not condone what AEI did, but Cohen confirmed that it does continues to fund AEI, although other groups like the Competitive Enterprise Institute are not funded by them anymore.

Cohen assured us that Exxon is “trying to be a constructive player in the policy discussion and not associate [themselves] with those that are marginalized and are not welcome in that discussion.” The IPCC report “is what it is,” and Exxon does not believe in engaging in scientific research that preordains an answer. Cohen:

…that's the issue with AEI: Are they preordaining an answer?…I can understand taking a market approach or a government interventionist approach, but this is not a question of trying to find who’s right or who’s wrong. Let’s let the process work.

But, I asked, how can you grant AEI nearly two million dollars (n.b. slsmith -over the entirety of AEI operations, not annually) and not know what they’re doing with the money? Turns out that Exxon conveniently funds the “general operations” of AEI, not specific programs that would allow them to track how the money is being used. Perhaps Exxon needs to think hard next time before it funds an organization so clearly disinterested in constructive solutions.

Cohen was consistently explicit in Exxon's position that global warming is happening and mainly caused by human activities. If that is true, then how will Exxon fight the huge misperception that it’s still the planet's largest naysayer? Cohen conceded that the company needed to do a better job of communicating its position on global warming, rather than allowing a fact sheet or news release on their website to do the work.

 

Cohen kept telling us that the 2006 contribution report was coming out, but declined to give us any specifics about ExxonMobil’s contributions to AEI or other groups, but he said Competitive Enterprise Institute was no longer funded.  Cohen continued to defend AEI as a responsible, albeit very conservative, think tank doing legitimate policy research. And frankly, I supported him on that score during the calls because at least some of the work done by AEI is just that. And I was not nearly as skeptical as others about ExxonMobil's protestations of innocence.  See my post on the AEI matter ELP Blog Post on AEI

 

Here’s why yesterday I called ExxonMobil’s behavior in early 2007 deliberately misleading. Initial Post on 2006 Funding Report  

 

As the quoted material above indicates, Cohen in early February 2007 led us to believe that ExxonMobil was no longer in the denialist camp and did not condone AEI soliciting denialist analysis (if indeed that’s what they had done). He claimed that ExxonMobil no longer associated with marginalized denialist groups. He suggested that the 2006 report would indicate that ExxonMobily had disassociated itself from the Competitive Enterprise Institute, which brought us the classic, sadly humorous “Carbon dioxide: they call it pollution, we call it life!” TV commercials. You tube link to CEI Energy commercial.

 

From this discussion, it seems clear that Cohen knew precisely which “public information and policy research” organizations that were funded by ExxonMobil during 2006. Yet, while he perhaps sat with the 2006 report in front of him and refused to release its contents, the 2006 contribution report later showed that in 2006 ExxonMobil provided $ 180,000 to Frontiers of Freedom and the CSPP, the policy center it created with ExxonMobil's funding several years ago. P.S. Cohen denied funding CSPP in an e-mail today, but unless my sight is failing: CSPP is reported as the Science and Policy Center under Frontiers of Freedom Download 2006 ExxonMobil's "public information and policy research" contributions If that’s not supporting denialists and associating with marginalized denialist groups, I don’t know what is!

Take a good look at the high quality analysis of global warming that CSPP provides:

 

(1) the amicus curiae brief filed in Mass. v. EPA by lawyers from the Competitive Enterprise Institute

(2) Dr. Ball's The Science Isn't Settled powerpoint presentation - Dr. Ball is the Chairman of the Natural Resources Stewardship Project which describes its first project on understanding climate change as "a proactive grassroots campaign to counter the Kyoto Protocol and other greenhouse gas reduction schemes." NRSP describes Dr. Ball as the "lead participant in a number of recent made-for-TV climate change videos, The Great Global Warming Swindle."

(3) Joe Daleo's Congressional Seminar on global warming in March 2007 devoted to disputing the IPCC's report and arguing that anthropogenic global warming from greenhouse gas emissions are not a real problem.

(4) CSPP's May 2007 rebuttal of Al Gore's testimony, which suggests there is no scientific consensus that CO2 emissions are causing global warming

(5) a nonsensical piece on "Gore's Guru," positing that because Dr. Revelle, who died in 1991, had cautioned in 1988 and 1991 against drawing rash conclusions about global warming might still take that position.  I call it nonsensical because Dr. Revelle suggested that we wait 10-20 years to see if the trends continued.  We've waited and now we've answered that question: between 1998 and 2008 we witnessed incredibly dramatic global warming and the scientific community has spent the last 10-20 years studying whether indeed human-caused GHG emissions are responsible for much of that warming.  We and ExxonMobil know its answer to that question.

Obviously, the blogosphere is not the only group worried about ExxonMobil's funding choices.  Britain's national academy of scientists, The Royal Society,  in September 2006 took ExxonMobil to task about its funding of denialist groups.  Royal Society letter

Well, maybe ExxonMobil finally pulled the plug on FF and its “Science and Policy” center in 2007 (and so Cohen was just tap-dancing around the embarrassing, but not on-going, reality of funding denialists). Although, FF's CSPP might survive: it apparently does have funding from two major tobacco companies!

Maybe ExxonMobil has rethought its policy on funding organizations whose primary contribution to the climate change discussion is to distribute continued attacks on those who conclude that the current state of climate science supports an effective policy to reduce GHG emissions.  I’d like to think so – but we won’t know until ExxonMobil releases its 2007 contributions report. I requested that Cohen release it to me; he declined.

However, even if it had defunded FF and CSPP (and other denialist groups), I’m not sure I’d believe that ExxonMobil hadn’t found new denialist outlets to fund.

 

If the Guardian and other media or the blogosphere produce a big enough stir on this story, perhaps it will. But I am astonished that, just as it was selling itself as a responsible player on global warming, ExxonMobil would act so irresponsibly and so deceptively. And I am deeply embarrassed at my naievete in believing what Ken Cohen and ExxonMobil were selling about ExxonMobil’s born again conversion to a responsible position on anthropogenic global warming.

 

Watch out, though, ExxonMobil knows that the question is no longer whether global warming is real, but what to do about it. You can bet it is smart enough and devious enough to fund a lot of “public information and policy research” that will muddle policy discussions about global warming legislation and may assure that not much is done to regulate GHG emissions from oil and gas and that what is done doesn’t cut hardly at all into ExxonMobil’s astounding profits: $41 billion for 2007 and almost $ 12 billion in the 4th quarter of 2007 alone. ExxonMobil profits post

I have a modest suggestion for ExxonMobil: do not fund organizations whose published information, analysis, and research on global warming or climate change has primarily sought to undercut the conclusions reached by the joint statement published in 2005 by 11 national academies of science, including the United States, Canada, Great Britain, France, Germany, Italy, Japan, Russia, India, Brazil and China .  That statement is linked here:   Joint Science Academies' Statement: Global Response to Climate Change

Unless and until ExxonMobil stops funding the sort of stuff that Center for Science and Public Policy is peddling, I hope that the new President and Congress will not believe a single word that is said about global warming policy by ExxonMobil or any of denialist and anti-regulatory "public information and policy research" organizations it funds.

 

 

 

Foreign Affairs - The Candidates in Their Own Words --

During the last year, Foreign Affairs published a series of pieces on the 2008 presidential election, allowing candidates to frame their foreign policy in their own words. Foreign Affairs Election 2008  I am reviewing those pieces for discussions of global environmental issues, including climate change.  I find this a particularly useful approach because it allows candidates to move beyond sound bites and into the substance of what they believe. 

I expect to look at all of the current candidates: Democratic and Republican. The first candidate I am reviewing is Barack Obama.  I chose Obama first in part because I am torn between Clinton and Obama.  Although I respect John McCain's leadership on climate change, I could not vote for a Republican after the 1994 - 2006 Republican congressional legacy and the debacle of Bush's presidency for virtually every freedom and human need.  I also disagree with McCain's position on Iraq.

In his own words, Barack Obama primarily addresses climate change as a matter of global policy.  He ties the US response to global warming to his overall foreign policy in this way:

Strengthened institutions and invigorated alliances and partnerships are especially crucial if we are to defeat the epochal, man-made threat to the planet: climate change. Without dramatic changes, rising sea levels will flood coastal regions around the world, including much of the eastern seaboard. Warmer temperatures and declining rainfall will reduce crop yields, increasing conflict, famine, disease, and poverty. By 2050, famine could displace more than 250 million people worldwide. That means increased instability in some of the most volatile parts of the world.

As the world's largest producer of greenhouse gases, America has the responsibility to lead. While many of our industrial partners are working hard to reduce their emissions, we are increasing ours at a steady clip -- by more than ten percent per decade. As president, I intend to enact a cap-and-trade system that will dramatically reduce our carbon emissions. And I will work to finally free America of its dependence on foreign oil -- by using energy more efficiently in our cars, factories, and homes, relying more on renewable sources of electricity, and harnessing the potential of biofuels.

Getting our own house in order is only a first step. China will soon replace America as the world's largest emitter of greenhouse gases. Clean energy development must be a central focus in our relationships with major countries in Europe and Asia. I will invest in efficient and clean technologies at home while using our assistance policies and export promotions to help developing countries leapfrog the carbon-energy-intensive stage of development. We need a global response to climate change that includes binding and enforceable commitments to reducing emissions, especially for those that pollute the most: the United States, China, India, the European Union, and Russia. This challenge is massive, but rising to it will also bring new benefits to America. By 2050, global demand for low-carbon energy could create an annual market worth $500 billion. Meeting that demand would open new frontiers for American entrepreneurs and workers.

Candidates Compete for Green Title

After the Bush administration legacy, it is refreshing to see both Democratic and some Republican candidates competing for the title of Mr. or Ms. Green. See the comparison in Grist.

Ninth Circuit snuffs U.S. Forest Service's "Healthy Forest Initiative" rule

A three-judge panel of the Ninth Circuit Court of Appeals ruled in Sierra Club v. Bosworth that the U.S. Forest Service erred by engaging in certain fuel reduction and prescribed burn projects without analyzing the resulting environmental impacts as required by federal law.

The Sierra Club challenged a Forest Service rule (the "fuels exclusion") that exempted fuel reduction projects of limited acreage from environmental analysis. Under the National Environmental Policy Act (NEPA), federal agencies are required to analyze the environmental impacts of "major federal actions significantly affecting the quality of the human environment." 42 U.S.C.A. § 4332(2)(C).

In response to the Bush Administration's "Healthy Forests Initiative" announced in 2002, the Forest Service promulgated the fuels exclusion to exempt certain projects designed to reduce hazardous fuel conditions from NEPA procedures. The stated purpose of the Healthy Forests Initiative was to streamline the environmental analysis process for projects necessary to reduce the risk of catastrophic wildfire and "restore forest health." Under limited circumstances, a federal agency may avoid NEPA compliance by establishing a "categorical exclusion" for "actions which do not individually or cumulatively have a significant effect on the human environment..." 40 C.F.R. § 1508.4. 

The Ninth Circuit Court of Appeals ruled that the Forest Service acted arbitrarily and capriciously by enacting the fuels exclusion, and remanded the case the district court with instructions that the court issue an appropriate injunction. Specifically, the Ninth Circuit held that the Forest Service failed to comply with NEPA and improperly relied on post-hoc reasoning to justify the fuels exclusion. The appellate court further held that the Forest Service failed to consider the cumulative impacts and the highly controversial and uncertain risks posed by the fuels reduction projects.

Ruth Norton Smith (Nov 27, 1921 - Oct 14, 2007)

Ruth Norton Smith died peacefully in Boulder, Colorado  on Sunday, October 14, 2007 after enjoying her full measure of life. 

Ruth was born in Oklahoma on November 27, 1921 in a tent in Oklahoma.  She was raised during the Depression years, moving frequently as her family farmed and followed the tunneling, mining, and other work available to her father.  Ultimately, her family settled in southern California.  There Ruth met the love of her life, Herbert Frank Smith, a carpenter and union organizer, whom she married on June 4, 1941. 

In WW II, while her husband served in the Navy in the South Pacific, Ruth became a Rosie the Riveter, building bombers, and then joined the Women’s Army Corps, serving as a nurse.  After the war, they settled in the Los Angeles area, where she became a real estate broker and the mom of two children, Greg in 1948 and Susan in 1953.

In 1955, her family moved to Colorado where she worked side by side with her husband to build two of the largest home-building companies in Colorado, Happy Homes and Fireside Homes, and a prominent real estate firm.  When she left real estate and home-building in the late 1960s, Ruth became a political and market researcher for Research Services, Inc. and later became a researcher for the U.S. Census Bureau, from which she retired in 1989.

Ruth was a life-long Democratic political activist with a passion for peace, civil rights, and all aspects of social justice.  She served in every capacity: running political campaigns, serving as a precinct committee woman, county, congressional district, and state delegate, pollwatcher, and election judge.  She worked with Metro Denver Fair Housing center as a realtor, helping the first African-American families in Jefferson County to find housing.  She volunteered with youth mentoring programs in Four Points and with Metro Denver Urban Coalition, Another Mother for Peace, Meals on Wheels, and countless other organizations. 

Ruth was too busy with her family, volunteer work and career for many hobbies.  She thrived on the stimulating conversations born by inviting friends and guests from all over the world and from every walk of life to dinner.  She also found great pleasure in reading, traveling and attending theatre and opera performances.

Ruth was a warm, intelligent, extroverted vibrant woman who loved and was loved by virtually everyone she met.   Her loss will be sorely missed by the many friends and family she has left behind, including her sister Lorene, her brother Fred, her son Greg, her daughter Susan, and her grandchildren Clint Smith, Brent Smith, Nathanial Smith-Tripp and Sarah Smith-Tripp.  Her family and friends will gather at Mt. Vernon Country Club on Sunday, October 21, 2007 at 10:30 am for a celebration of her life.  The family requests that no flowers be sent and suggests donations to Meals on Wheel or a charity of your choice.

Thank you to Read/Write Web

Read/Write Web has listed Environmental Law Prof Blog prominently in its list of the 35 best environmental blogs. [35 best environmental blogs]  Thanks!

Who Owns the Arctic?

With the Russian flag planting last monthn and Canada promising to build military bases, the race for the Arctic has begun in earnest.  Some of the better news articles can be found below.  A most intriguing suggestion by my Energy Law students is that the Arctic Circle indigenous peoples, who currently have six non-voting participants in the Arctic Council, could seek recognition as a sovereign nation -- and assert claims against all of the current claimants.  That would certainly change the terms of debate!

       

Chicago Tribute link

Arctic claims are poles apart
Russian flag-planting a signal of global race for vast oil, gas deposits                                                                    <>

By Tom Hundley
Tribune foreign correspondent

August 24, 2007                   

TROMSO, Norway

           

       

       

       

Not since 1925, when local hero Roald Amundsen set off from here on his first attempt to fly over the North Pole, has there been so much excitement in Tromso, a picturesque port that has long been used as a staging area for Arctic exploration.

The buzz began early this month when an expedition led by Russian lawmakers used a miniature submarine to plant a Russian flag on the seabed 2 miles under the North Pole, symbolically staking a claim to the vast mineral and energy wealth that lies under the ice cap.

That ruffled feathers in Canada, another country with Arctic ambitions.

"This isn't the 15th Century," scoffed Foreign Minister Peter McKay, referring to a time when explorers claimed whole continents for God and king.

But a week later, Prime Minister Stephen Harper visited Canada's far north and announced plans to build two military bases in its polar regions. And now two more claimants to the Arctic seas, the U.S. and Denmark, have launched their own polar mapping expeditions. The Danish team set sail from Tromso Aug. 12, while the American icebreaker Healy departed from Barrow, Alaska, last week.

The flurry of activity recalls the heyday of polar expeditions a century ago when Robert Peary, Richard Byrd, Robert Scott, Amundsen and others raced to be the first to the Arctic and then the Antarctic.

But as the latter-day scramble for strategic resources beneath the ice begins to heat up, Norway, a country with deep Arctic roots both physical and psychological, takes the long view. The Norwegian government has emphasized the need to structure a long-term system of international governance for the polar regions; its scientists and researchers are calling for cooperation rather than competition.

Here in Tromso, 220 miles north of the Arctic Circle, Russia's  flag-planting produced wry smiles.

'A kind of showbiz act'

"Most people here saw it as a kind of showbiz act, more for internal political purposes than for international science or research," said Geir Gotaas head of administration at Tromso University's Roald Amundsen Center for Arctic Research.

"It doesn't mean a thing," said university President Jarle Aarbakke. "All it does is confirm what we knew in advance -- that the Russians are very interested in the polar region."

The reason is no secret. The U.S. Geological Survey estimates that about a quarter of the world's undiscovered oil and gas lies beneath the Arctic's waters.

Until recently, these deposits were thought inaccessible. But as the polar ice cap succumbs to global warming more quickly than expected and with new subsurface pumping technologies coming online, some experts believe the Arctic could go into production in a generation.

While there is some uncertainty about the causes of climate change, the fact that it is occurring is not in dispute, especially in the polar regions, where temperatures are rising at double the rate of those in more temperate latitudes, and the ice cap is melting three times faster than anticipated.

What this means, according to a UN climate survey published earlier this year, is that the polar ice cap will no longer be a year-round phenomenon, and the world is likely to have a new navigable ocean in about 2030-2050.

Going "over the top" would shorten the sea route between the Far East and Western Europe by a third. A major realignment of the world's shipping lanes would result. Fish stocks also would migrate north, bringing fishing fleets.

All of this would bring profound change to Norway, a small nation of 4.5 million people that tends to think of itself as an isolated country on the northern periphery of Europe. Suddenly, it would find itself thrust into the thick of things.

For Norwegians, the Arctic has always been an important part of their  national identity and patrimony.

"We don't have a culture of heroes in Norway, but Amundsen is a hero," said Gunn Sissel Jaklin, communications director at the Norwegian Polar Institute, a research organization in Tromso.

"Exploring the Arctic is part of Norwegian history; it was part of establishing ourselves as a nation and forming a national identity," she said.

On his recent tour of Canada's Arctic region, Prime Minister Harper declared that "Canada's new government understands that the first principle of Arctic sovereignty is: Use it or lose it." Canada's claims include sovereignty over the Northwest Passage sea lanes, a potential source of disagreement with the United States.

The "use it or lose it" philosophy is something Norwegian governments have  always understood.

"Norway's strategy to protect its claim is, No. 1, to be present. Presence is used to research, develop and harvest the Arctic," said Tromso University's Aarbakke.

"You have to be there on the sea, with the coast guard. You have to take pirate fishing very seriously. And when it comes to oil and gas, you have to be there at the negotiating table, with the scientific proofs," he said.

For Norway, the elephant in the room is actually a bear. Norway shares a 120-mile Arctic border with Russia, and the Norwegians learned long ago that you don't poke the Russian bear in the eye.

Which explains, in part, Norway's studied non-reaction to Russia's  underwater flag-waving.

"The Russians are doing what the UN asked them to do -- they are substantiating their claim. It's in compliance with international law ... and the commission will decide if they are right or wrong," said Liv Monica Stubholt, Norway's deputy minister for foreign affairs, referring to the UN's Commission on the Limitations of the Continental Shelf, a body of scientists that reviews claims to territory beneath the sea.

In the Arctic, the key dispute is whether the Lomonosov Ridge, a vast underwater mountain range stretching across the North Pole, is an extension of Russia's continental shelf, or a part of Greenland, which belongs to Denmark.

Rather than point fingers at Russia, Stubholt said Norway would prefer to see the U.S. Senate ratify the 13-year-old UN Convention on the Law of the Sea, which would give the U.S. a seat on the commission and a stake in a non-belligerent resolution of the competing claims.

Ratification has been blocked by a line of conservative lawmakers going back to former Sen. Jesse Helms, (R.-N.C.) and today led Sen. James Inhofe (R.-Okla.). They fear that signing the treaty would cede too much control to the UN.

Administration backs treaty

But the Bush administration now favors signing the treaty, and Sen. Richard Lugar (R.-Ind.), the ranking Republican on the Foreign Relations Committee, will try to muster support for its ratification when Congress reconvenes.

"If the U.S. doesn't sign the treaty soon, they will be put aside when the decisions are taken," said Johan Petter Barlindhaug, a Tromso businessman who specializes in Arctic construction projects.

Toronto Star  Link
The Arctic Cold War                  TheStar.com - Ideas - The Arctic Cold War             

                               

                       Expectations are that rule of international law will prevail in coming battles over Arctic sovereignty. Okay — but what about that other law, with something about nine-tenths in it?
               

                                                   

                 August 12, 2007     

                                    

            Andrew Chung
                                                                                                                                                                                                             

                                         With precious little ability to enforce its claims in the Arctic, Canada may be falling behind in asserting itself not in law, but in real life.Others think cases where conflicts are already apparent – Canada and Denmark have claims to the same continental shelf as Russia, even if we don't precisely know where those claims lie – render the commission irrelevant. "The commission can't deal with information presented where there is a conflict," explains University of Victoria's Ted McDorman, an expert in the Law of the Sea. "It has no power to decide ... so like other ocean boundary disputes, it will ultimately come down to some level of negotiation. Political negotiation."In these cases, power may, in the end, trump international law in determining who gets what in the Arctic, he says. "Power means the ability to keep other people out."He doesn't think there would be war, but the concern is "Russia has a head start," Posner argues. "It's got a lot of ships that can operate in the Arctic. Canada has very few."Byers has said Canada needs heavy-duty icebreakers, not the smaller vessels the government has promised to the navy, to properly assert its sovereignty in the Passage, but also to properly research its claim to the Arctic seabed.<>

  Foreign minister Peter MacKay was indeed correct when he said of Russia’s provocative flag planting in the North Pole’s sea bed that, “This isn’t the 15th Century.”  He was suggesting that in our modern, more civilized world, codified international law, and not antediluvian games of finders-keepers, will decide claims of geographic ownership. And Russia, a sophisticated player in global diplomacy, has made statements in the past that it couldn’t agree more.  But then MacKay's Russian counterpart, Sergei Lavrov, said he was amazed by Canada's response. "We're not throwing flags around," he told the Russian media. "We just do what other discoverers did."

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Most experts believe that international law, in the form of the United Nations' Convention on the Law of the Sea, will play an integral role in figuring out the unfolding conflict in the Arctic. But don't count out the intrepid explorers of yesteryear and the kind of de facto international law they practised. In spite of the convention, some believe it's possible for countries to operate in a manner predating international law – or to ignore whatever decisions may flow from it.

The story of the Arctic is still one of the future. Currently, it's a frozen hinterland, but with the polar ice caps melting, some predictions have it opening up to serious exploration and economic exploitation within 30 years. And the U.S. Geological Survey estimates that 25 per cent of the world's undiscovered oil and gas remains locked up deep beneath the frigid waters.

"It's striking that the confluence of high energy prices and melting has created a vast new area that countries are going to have to fight over," says international law specialist Eric Posner. "Not necessarily in a military sense, but they will struggle over this area, and we haven't had a situation like this for quite a long time."

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One of the main struggles will be over the 1,800-kilometre-long Lomonosov Ridge between Siberia and Canada's Ellesmere Island. Russia believes the ridge belongs to it, and therefore so does the North Pole. Its dramatic submarine dive in the Arctic this month, the first to reach the polar sea bottom and carried out by Russian scientists, was to "prove" that fact. The next step is for Russia to submit its scientific findings to a UN commission of geological experts struck to review any country's claim to the sea bed far beyond its borders – a "continental shelf." These procedures were set out in the 1982 Law of the Sea Convention, regarded as one of the most important pieces of international law, governing the use of our vast oceans and their rich resources.

For many centuries, the seas belonged to no one. Except for a narrow band around a nation's coastline, the high seas were a free-for- all. But growing concerns over foreign fishing vessels and pollution, and knowledge of the rich mineral and oil wealth under the sea floor, changed everything.

In 1945, U.S. President Harry Truman unilaterally tossed aside the freedom-of-the-seas doctrine and proclaimed exclusive ownership of its huge continental shelf. Other countries, including Canada, soon followed, asserting control over waters sometimes hundreds of kilometres beyond their borders. By the 1950s, oil drilling on the ocean floor was rapidly expanding.

The Law of the Sea eventually gave legal status to navigational rights, resources, marine protection and territorial sea limits, as well as a way to settle disputes. It established a generous "exclusive economic zone" for coastal states, extending 320 kilometres from their shorelines. But potential riches, from gas and oil to diamonds and gold, didn't always stop there. States realized continental shelves would need to be accounted for.

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A process to submit claims to these extensions and a commission to evaluate them and make recommendations was set up. Russia made the first claim, in 2001, followed by Brazil and six other countries. The most recent was France earlier this year. Canada has yet to make its claim. How that process will play out remains anyone's guess, because no claim has yet been resolved.

For this country, says Michael Byers, Canada Research Chair in global politics and international law at UBC, the Law of the Sea is "a good news story in terms of the rule of law and of multilateral cooperation in a situation where one of the alternatives is a military contest over resources, which is the last thing any sane person from a less powerful country would want. International law is what protects our interests most of the time."

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Byers says the conflict over the Arctic involves only those areas where nations' continental shelves may "overlap," perhaps less than 10 per cent of any claims made or yet to come. He maintains that the fact the treaty is steeped in science, along with the expertise of the commission, will lend the whole process legitimacy and compel countries to accept the commission's recommendations. But even if it's all about science, this won't be an exact science. Countries will, for instance, try to justify ownership over the same seabed. "The Russians are going to make the most extensive claim possible," Byers predicts. "It will be based on an interpretation of the scientific evidence that is as favourable to them as possible."

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International law allows for disputes to be adjudicated through a special Law of the Sea Tribunal. But Canada and Russia, in ratifying the treaty, both declared they would opt out of being compelled to send a dispute over maritime boundaries to the tribunal. It could be years before nations reach that stage. Canada is still gathering details for its submissions to the UN. Countries have just 10 years after ratifying the Law of the Sea to submit claims. For Canada, this means 2013.

Meanwhile, Russia isn't wasting a moment. It has capitalized on its stable of useful vessels, nuclear-powered icebreakers for instance, to show that it's serious about the north. "The Arctic always was Russian, and it will remain Russian," expedition leader Artur Chilingarov said last week.

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"Why drop their flag" at the North Pole? asks Posner of the University of Chicago. "I take it as a signal they're going to claim this regardless of what the UN commission is going to say sometime in the future." In other words, states could ignore the UN commission or simply not comply with their international legal obligations. "Usually they make a legalistic argument, which may be implausible, but they make it anyway and go ahead and do whatever they want to do." 

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Posner considers Russia's flag caper less benign than most, reflective of a more "aggressive" Russia, seeking to reclaim through energy dominance the global stature once held by the Soviet Union.
He has a hunch that, if the ice cap continues to melt and energy prices keep rising, Russia will send more and more ships into the Arctic. Eventually, "they'll define an area, maybe what they've claimed already, maybe less, and say, `This is our water,' and come up with an excuse, such as the Eurasian continent extends below this, `and we'd be happy to sell licences to extract oil and gas,' and so on." 

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Planting a flag could be more important than we think, says Robert Miller, an expert in the "Doctrine of Discovery," which started with Pope Nicholas V in 1455 and was used by New World explorers to lay divine right over land for European Christian societies.

"There are definitions in the treaty, and Russia is trying to prove that the ridge runs to the North Pole. That's outside the parameters of the Doctrine of Discovery," says Miller, who teaches at the Lewis & Clark Law School in Portland, Ore. "But look at how Russia is dotting its i's and crossing its t's by planting a flag. If they can't win this, they're doing what lawyers do all the time: try to prove it in a different way. They could say, `We were the first to have planted a flag on the seabed.'

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"The treaty supplemented the Doctrine of Discovery," Miller argues. "It didn't replace it."  The idea of planting flags and showing up every now and then – say at a deserted island – to show you exert control is called "effective occupation." Byers says Canada has done this with Hans Island in the Arctic, whose ownership it disputes with Denmark.

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Some experts suggest that while control of an area used to occur before sovereignty was established, today sovereignty over an area must be established by international law before taking control. Law may be supreme on paper, but there's something to be said for the old behaviours. That's why there are growing calls for the government to do more to assert Canadian sovereignty in the Arctic.

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Aside from continental-shelf claims, the Northwest Passage, which links the Atlantic and Pacific, is of primary importance for this country. As the climate warms, the ice pack preventing shipping could open up a much quicker route from Europe to China.  Canada considers the Passage to be inland waters. Other nations, including the U.S., say it's part of the high seas, and want free access.

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Byers has said Canada needs heavy-duty icebreakers, not the smaller vessels the government has promised to the navy, to properly assert its sovereignty in the Passage, but also to properly research its claim to the Arctic seabed.

One solution, Posner says, may be for Canada and the U.S. to work together to counterbalance Russian designs on the area – Canada with its knowledge, the U.S. with its money and military power.

"The only question for Canada and the U.S. is, how much effort (do they) want to start making in order to limit what Russia can get away with?"

  link

  Russia ahead in Arctic 'gold rush'

                                                                                                                           

By Paul Reynolds                                                                                   World Affairs correspondent, BBC News website

                  

 

                             

              

                   The Russians are leading a new "gold rush" in the high north, with a bold attempt to assert a claim to oil, gas and mineral rights over large parts of the Arctic Ocean up to the North Pole.                   

 

                               

              

Russia's most famous explorer, Artur Chilingarov, complete with nautical beard, led the expedition to plant the Russian flag in a capsule on the ocean seabed under the pole itself.

 

                   "The Arctic is Russian," Chilingarov said earlier. "We must prove the North Pole is an extension of the Russian coastal shelf."                   

                   Russia is claiming that an underwater mountain known as the Lomonosov Ridge is actually an extension of the Russian landmass.                   

This, it argues, justifies its claim to a triangular area up to the pole, giving it rights under the United Nations Law of the Sea Convention.

Under Article 76 of the convention, a state can claim a 200 nautical mile exclusive zone and beyond that up to 150 nautical miles of rights on the seabed. The baseline from which these distances are measured depends on where the continental shelf ends.

 

                            

                                             

                                 

Russia lodged a formal claim in 2001 but the UN's Commission on the Limits of the Continental Shelf told it to resubmit the claim. The flag-planting can be seen as a symbolic gesture in support.

 

 

At the same time, other states are acting to protect their interests in the Arctic. Canada is planning to build up to eight new patrol ships and the US Congress is considering a proposal to build two new heavy polar ships.

 

The rush for the Arctic has become more frenzied because of the melting of parts of the polar ice cap, which will allow easier exploration, and by the urgent need for new sources of oil and gas. A new sense of nationalism is also evident in Russia.

 

                               

              

 

The ice thaw is predicted by a team of international researchers whose Arctic Climate Impact Assessment suggested in 2004 that the summer ice cap could melt completely before the end of this century because of global warming.

                   If the ice retreats, it could open up new shipping routes and new areas where natural resource