Monday, November 3, 2014
Responding to the IPCC Fifth Assessment during the Month of November (from the Environmental Law Collaborative)
As a special post-Halloween treat for the month of November, a series of guest blogs will be appearing here examining the latest IPCC report. The essays are the latest production of the Environmental Law Collaborative, a group of environmental law scholars whose goal is to meet and work collaboratively to discuss and offer solutions for environmental law’s major issues of the day. ELC facilitates dialog among thought leaders on environmental policy priorities, practical implementation strategies, assessment mechanisms, and cooperative analysis of science, economics, and ethics. It has become increasingly apparent that, although environmental policy benefits from a robust drive for the dissemination of information, environmental policy is also influenced by strategic misinformation and effective use of persuasive communication. To advance society and secure welfare at local and global scales, our professional activities must contribute to resolution of the divisive issues that confront our environment.
November 3, 2014 in Biodiversity, Climate Change, Current Affairs, Energy, Forests/Timber, Governance/Management, International, Land Use, Law, Sustainability, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)
Saturday, April 20, 2013
Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China. A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays. That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):
New Series: Environmental Adventures in China. “This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”
China Environmental Experiences #2: Rocky Mountain Arsenal. “But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here….”
China Environmental Experiences #3: Breathing Air with Heft. “…It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it.…”
China Environmental Experiences #4: Wifi Without Potable Water. “This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power….”
China Environmental Experiences # 5: Milk, Pesticides, and Product Safety. “Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were.…”
CEE #6: Environmental Philosophy and Human Relationships with Nature. “In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy…."
CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity. “[Previously], I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development….”
CEE #8: Environmental Protection as an Act of Cultural Change. “This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China….”
CEE #9: Post Script: Returning from China to the U.S. “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”
April 20, 2013 in Air Quality, Asia, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Environmental Assessment, Food and Drink, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)
Wednesday, September 12, 2012
This is the sixth in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, May’s exploration of water quality issues, and June’s review of safety issues with Chinese food and consumer products. This more reflective essay, mostly written on my last day in China, grew so long that I have decided to publish it in several parts, beginning with today’s thoughts about the different relationships that average Americans and Chinese maintain with the natural world.
In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy. With the help of so many patient teachers here (most of them my own students), I’ve come to understand some deep cultural differences corresponding to many of the environmental experiences that I’ve been writing about in this series. At bottom, they reflect important underlying differences in environmental philosophy—differences, at least, between the average Chinese approach and that which underlies much environmental governance in the U.S. (and other like systems, but in drawing fraught comparisons, I’ll stick to what I know best).
These issues are hard to talk about, because they go to the heart of the cultural differences that one must be exquisitely careful about describing, let alone evaluating. Every culture has elements that are puzzling, even troubling to those outside it. (To test this, ask virtually any non-American what they think about our Second Amendment—or for that matter, our First!) Yet as dangerous as such discussions always threaten to be, I brave it because these cultural differences relate so directly to the challenges of international (and even domestic) environmental law that it seems critical to at least broach the subject.
Acknowledging these difficulties, I begin with the humble qualification that my observations are inevitably, hopelessly entangled with my own cultural vantage point. My Fulbright year did not make me an expert on the inner world of Chinese culture—nor, frankly, did my earlier Harvard degree in Chinese language, culture, and history. My observations qualify as neither empirical scholarship nor serious ethnography, based as they are on casual research, personal experiences, anecdotes, and generalizations.
But in hope that they may be useful in illuminating the philosophical roots of some gaps between Chinese and U.S. approaches to environmental governance, I share them here. They contrast environmental perspectives as revealed through our different relationships with nature, conservation and stewardship obligations, and scarcity—concluding with some thoughts about ancient Chinese philosophical traditions. This first essay addresses the surprisingly different qualities of our respective relationships with nature (conceding with William Cronon that the very concept is something of a cultural construct), and how that might impact our respective visions of environmental law.
The average Chinese environmental perspective contrasts with American counterparts in so many ways, and at seemingly every level—whether comparing Chinese undergraduates with American college students, farmers with farmers, bureaucrats with bureaucrats, or grandmothers with
grandmothers. So it’s only natural that we’re not going to see things exactly the same way when it comes to nature itself. We all like pandas, and we all agree that our children should not be poisoned by toxic chemicals carelessly released into the environment. But beyond that—what are the contours of our ethical relationships with that environment, and to what extent might it inform natural resource management choices?
From the modern U.S. perspective, American natural resources laws mostly attempt to balance competing demands for scarce resources, including public land and water resources that are simultaneously valuable for extractive, recreational, aesthetic, and intrinsic reasons. We came to this idea of balance after the first half of American history, during which our policies erred squarely on the side of extraction and reclamation. But today, this idea is the essence of our Multiple-Use-Sustained-Yield approaches in the National Forest and BLM lands, and it is even reflected in the tension between the occasionally competing mandates to provide for the enjoyment of our National Parks by both present recreationalists and future generations.
We seek balance, but that balance is constantly contested because Americans divide over when to err on the side of extraction or preservation, whether to proceed from an anthropocentric or biocentric management ethic, and when to prioritize present or future needs. Today’s debate features environmentalists who favor preservation and lower-impact recreation versus “wise-use” advocates who favor freer extraction and recreation policies. Yet the same conflicts have played out for at least the last 150 years of U.S. natural resources policy, since the early contests between John Muir, progenitor of the National Park Service’s preservation mandate, and Gifford Pinchot, architect of the U.S. Forest Service’s multiple use mandate.
Even so, while today’s John Muirs and Gifford Pinchots may disagree on the precise balance, most find common ground in the belief that we ought to protect at least some natural areas from as much human intervention as possible, in at least some circumstances. They may come to this shared value for very different reasons, and they will often choose different ways of enjoying that wilderness. But as a former U.S. Forest Service ranger east of Yosemite National Park, I never once met a Sierra Club hiker, four-wheeling rancher, Audubon Society birder, or Ducks Unlimited hunter who didn’t sing the praises of their respective pilgrimages to the backcountry, where they found communion with their respective ideal visions of the natural world.
This regard for (relatively) unmediated nature was the intuition behind the U.S. National Park system, by which we purposefully set aside remarkable natural areas like Yosemite and Yellowstone from further human modification. Here, American public policy proceeds from a generally shared conviction that the best in nature is somehow at its best when it is left alone. We admittedly transform nature for countless economic reasons elsewhere, but we value at least some left unchanged (a belief affirmed even more forcefully by the Wilderness Act of 1964). Flawed though this conviction may be in modern times—when even Arctic ice is contaminated with the chemical residues of industrial development—it runs so deep in American cultural consciousness that our National Parks remain a centerpiece of family recreation, a visual representation of pride in country, and a psychological trope exploited for selling things as ironic as sport utility vehicles.
To be sure, most Americans are proud of such public works accomplishments as Hoover Dam, the Erie Canal, and interstate highway system. They form the backbone of national infrastructure that enabled our own economic development to the point where many families can afford that iconic road-trip to visit the National Parks. But as proud (and utterly dependent) as we are on the national highway system, hopelessly romantic Americans are generally even prouder of those treasures in our National Park System that seem to tell us something about who we are as a nation. After all, there are roads all over the world! But there is only one Grand Canyon.
Most modern Chinese see the human relationship with nature very differently, and from the bottom up. Traditional Chinese landscape paintings (of stunning natural vistas with tiny people in the
periphery) seem to pay homage to a natural order in which in which human beings play a proportionately small role. There may have been a time in Chinese history where that reflected cultural ideals, and there may be parts of rural China where this still feels true. But today, in both government policy and popular consciousness, the balance appears reversed. By mechanisms cultural and political, the traditional Chinese reverence for the integrity of natural systems has waned, ironically just as Americans were “finding religion” in nature. Americans went from an early ethos of ruthlessly bending nature to our will—for example, taming mighty rivers and “reclaiming” the desert through massive dam and irrigation projects—to a modern turnaround in which we are now dismantling the very same dams to return ecological systems to a more natural state. The Chinese, perhaps, have been on an opposite trajectory.
Just as in the U.S., Chinese natural resources management policy seeks to balance many competing interests, and with perhaps even greater urgency, given the continuing crisis of rural poverty. After all, the Three Gorges Dam, though environmentally controversial, was designed to bring electricity and flood relief to tens of millions of people, many without other means. In contrast to U.S. policy, however, the consideration of John Muir-style preservation—whether for anthropocentric or biocentric reasons—ranks low, if at all, on the scales. In fact, my Chinese Natural Resources Law students were baffled by the very idea of biocentric environmental ethics, in which nature is considered to have value independent of direct human needs. To be sure, many Americans are equally utilitarian, but they tend to see the biocentric viewpoint as romantic or idealistic, even if wrongheaded. For my Chinese students, it is simply incomprehensible—as in, hard to even grasp what that could possibly mean. But even from the vantage point of anthropocentric, utilitarian values—the ideal that nature is valuable because people derive benefit from it—preservation ranks low in the national interest.
Again, part of the reason for this doubtlessly comes from the pressure of managing such an immense population on such a comparatively small chunk of land. After all, the vast majority of China’s 1.4 billion people live only on the eastern and central part of the nation’s overall land area, which is comparable to, say, the eastern half of the United States. The Sichuan Basin, comparable in size to the state of Michigan, is home to some 100 million people. The North China Plain, including the Shandong Peninsula where we have lived this past year, is about the size of Texas but home to more than the entire U.S. population. This kind of population density understandably changes the calculus in allocating all scarce natural resources, including physical space. Most Chinese would happily trade wild open space for new housing developments, and usually out of sheer necessity.
Still, China doesn’t exactly lack open space: the western mountains and deserts that constitute half of China’s territory are home to only 6% of the population. And though more of China is more densely populated than the U.S., the population density of New York City ranks up there with Beijing, and many native New Yorkers (myself among them) still crave wilderness. But by and large, most Chinese people don’t. Even though there is a burgeoning domestic tourist industry to serve China’s burgeoning middle class, ecotourism of the American family-camping and river-rafting variety isn’t really part of it. Development pressures aside, there’s something different in the human relationship with nature at the cultural level, reflected in recreational preferences as well as management policy.
Of course, the average American didn’t always love wilderness—for the first hundred or so years of American history, western settlers cursed the wilderness for threatening their very survival. New Yorkers like me only developed our taste for wilderness when our safety within well-developed cities had become so secure that civilization itself grew boring and it was the wilderness—an increasingly scarce resource—that seemed novel. Indigenous Americans have long enjoyed a very different relationship with nature, and later-comers have learned from their example over our last hundred years together. But Chinese civilization had made its peace with the natural world for thousands of years before American settlers cursed and then longed for their wilderness. It was just, in some regards, a different kind of peace.
Chinese culture has long celebrated the natural world in achingly beautiful paintings, poetry, and the placement of simple pagodas from which to contemplate the splendor of the natural world. But in contrast to modern American ideals, the Chinese have also long celebrated their extraordinary ability to manipulate nature as needed to suit human ends, both functional and aesthetic. They take great cultural pride in their proven ability to remake the natural world in ways that have offered tangible benefits to their people over the eons. The term for this pride that I learned while touring the mountains and deserts of the west roughly translates to “Man-Made China.” In many cases, the Chinese have remade nature to survive and even thrive within the most challenging of natural environments. As I described in an earlier installment, the native Xinjiangnese did this in creating thousands of kilometers of the Turpan Karez’s underground water channels over thousands of years, each dug by hand to keep mountain streams from evaporating before reaching cropland eeked out of the Takla Makan desert. The fifty-year North-South Water Project and the Three Gorges Dam, the largest hydroelectric project in the world (with power generating capacity some eleven times that of the Hoover Dam), reflect similar modern-day ambitions.
Another ancient example is the Dujiangyan Irrigation System west of Chengdu, one of the three great hydraulic engineering projects of ancient China. More than two thousand years ago, civic engineers there calculated how to seasonally split the Minjiang River just so—in a way that provides both flood relief to the lands annually inundated by spring meltwater on one side and irrigation to the lands on the other side that would then become the breadbasket of China. Now celebrated as a U.N. World Heritage Site, the project works flawlessly to this day, using “natural topographic and hydrological features to solve problems of diverting water for irrigation, draining sediment, flood control, and flow control without the use of dams,” leaving the channel open for commercially and strategically important navigation. Americans and others have also learned to alter nature as needed for the purposes of human safety and economic development—but in China, projects like Dujiangyan hold a place of pride in the Chinese heart that roughly corresponds with the place the Grand Canyon occupies in the American psyche.
Related to national pride in Man-Made China is the strong preference that most Chinese hold for managed nature over pristine wilderness. You can see it in the stunningly beautiful Chinese gardens of sculpted trees, flower beds, carefully placed rocks (often imported from great distances), usually permeated by a carefully designed creek leading to a pond improbably stocked with huge, crimson koi. These are the places where people go to enjoy nature, but like (a much better version of) an English Garden, they are enjoyed as a work of human-mediated art. Just as nature-enthusiasts in the U.S. might go for a day hike to watch birds in the wild, Chinese nature enthusiasts go to a managed garden to “shang hua,” or appreciate the carefully groomed flowers. Early American colonists and their Europeans forbearers shared a similar regard for pastoral version of nature, cultivated in farms and gardens. But together with Thoreau and the Transcendentalists, Aldo Leopold and the land ethicists, and even through the crossfire between John Muir and Gifford Pinchot, many Americans developed something of a “back to nature” idealism—reflected in our shared love of the National Parks—that most Chinese don’t share.
In fact, the Chinese preference for heavily mediated nature extends even to their own national parks. Even in magnificent natural areas that have been protected as parks, natural wonders are improved upon. I learned this most poignantly while visiting Tian Shan Tianchi, or “Heavenly Lake of the Celestial Mountains”—a high alpine lake nestled among the Tian Shan mountains in northwest China. I had first learned of the place on my first day teaching Natural Resources Law in Shandong, when I asked my students if there was a Chinese analog to the American Arctic National Wildlife Refuge—a famous but remote wilderness that all would know of but few would ever visit. They described this place in Xinjiang Province, and I was thrilled to be able to visit it while later lecturing at a university in nearby Urumqi.
Like an American National Park, the site was protected from development in a region rich with extractable resources, and you could enter only in an approved guided tour-bus that crept up the mountains alongside the river draining the lake. But unlike an American National Park, the once wild mountain river had been terraced into a series of flat concrete pools designed to spread the water out and slow it down as it comes down the mountainside. It was lovely, in that Chinese garden way, though it had nothing to do with the mountain stream hydrology that I had expected to see. (Though it is exactly what I should have expected, having seen similar things at many other Chinese parks.)
At the top, the lake itself was stunning—surrounded by snow-covered peaks and passes reminiscent of the Swiss Alps. That is, except for the crackling speakers—poorly camouflaged as tree stumps and boulders—that lined the paved trail every few feet, piping in music to complete the experience. And they were not playing a mountain flute, erhu, or some other kind of peaceful traditional Chinese music. As I live and breathe, what I heard as I summited the Heavenly Lake of the Celestial Mountains was Michael Jackson. “Bad,” I believe. Followed by Abba. (Which also shouldn’t have surprised me too much, as audio-enhancement is fairly common among nature parks here.)
To enjoy the area in the absence of Abba, I asked the park guide where to find a hiking trail around the lake that I had read about online—but she looked at me blankly. There is no trail around the lake, she insisted, and she’d been giving tours here for five years. I would later confirm that the trail really did exist, but she probably didn’t know about it because most Chinese visitors never use it. It’s just not part of what they want from their encounters with wilderness. Perhaps reflecting this sentiment is the adjacent photograph of an elaborate, wood-carved sign posted conspicuously along the lakeshore: "Civilization is the Most Beautiful Scenery."
Of course, this is a generalization from which there countless exceptions, and I've been the fortunate beneficiary of wisdom and company from many Qingdaonese who have introduced me to remarkable features of the Lao Shan landscape. But I've been surprised to discover the more general indifference to wilderness experiences again and again while traveling the country. Most of the time, the only information I can find about local trails comes from foreign tourists and the website instructions they leave behind. My family once roamed the southwestern-most part of the country bordering Myanmar (Burma) for days, despairing for a simple walk into the surrounding rainforest. We were repeatedly told by our professional Chinese guides—hired through local contacts by a Chinese student who accompanied us—that what we were asking for was impossible, that there simply were no trails. But on our last day, we met a young pair of traveling Germans who directed us to an expat coffeehouse run by a Frenchman, who showered us with maps of exquisite routes that it was now too late for us to attempt.
Learning from that mistake, I later used the Internet to research a spectacular trail alongside a majestic mountain pass in northern Yunnan Province, at around 9,000’ along the upper reaches of the Yangtze River near the border with Tibet. Although I downloaded a hand-penned map of the trail, our local Chinese guide (seemingly genuinely) knew nothing about it. I finally found a guesthouse whose operators knew of the nearby trail, though they warned that only sheepherders and Western tourists used it. They were right, even though the incredible trail lay at the foot of the Snow Dragon Jade Mountain and within the Leaping Tiger Gorge of the Yangtze, some of China’s most heavily domestically-touristed areas. As long as I live, I will never forget that hike. But as far as I can tell, most visiting Chinese will never take it.
I once took some environmental law students on a modest hike in a river canyon—the first time in their lives they had ever gone “hiking.” Managing unsecure footing down a dirt trail turned out to be a challengingly unfamiliar physical skill, and even the word was confusing to translate. The closest Chinese word would be “pa-shan,” which means to climb a mountain. But in China, most mountains are climbed on paved trails and stone staircases. In fact, it’s hard to find a mountain of repute that is not adorned with a stone staircase from base to summit. When I first arrived in Qingdao, I was delighted to discover that the small mountain behind my neighborhood didn’t have one. But in an effort to improve public enjoyment, local workers later began hauling concrete slabs up its steep flanks with tiny bulldozers, and by the time I left, it too could be summited in heels and flip-flops. This saddened a few Western language teachers in the area, but our Chinese neighbors were mostly happy to see the progress.
As an American in China, it’s been hard to separate myself from my own cultural bias in favor of unmediated wilderness. I long for earthen trails, and not for piped-in music. Still, it’s impossible to deny the accomplishment of the ancient parting of the Minjiang River at Dujiangyan, saving countless people from the misery of annual flooding while saving countless others from starvation. Mountain staircases enable young and old Chinese to climb them in good health, without fear of breaking an ankle or a hip on a rugged trail. And they often lead to spectacular temples and contemplative pagodas nestled among the hills, a classical and undeniably beautiful feature of traditional Chinese culture. Nevertheless, I wonder how this cultural difference may bear on environmental public policy choices in a way that may be confusing to westerners unfamiliar with it. For example, ambitious geo-engineering projects that might give pause to many Americans will seem like nothing more than the logical next step of civil engineering to most Chinese...
[To be continued in the next installment, in which I’ll engage further differences in our approaches to conservation, stewardship, and scarcity.]
Thursday, August 30, 2012
In its upcoming term, the Supreme Court will consider two Clean Water Act/stormwater cases, which I think is two more Clean Water Act/stormwater cases than the Court has heard in all of its previous terms, combined. A few weeks ago, I posted about NRDC v. County of Los Angeles, which arises out of urban runoff and stormwater infrastructure in Los Angeles County. The post, in a nutshell, expressed my befuddlement about why the Court took the case. The other case—Decker v. Northwest Environmental Defense Center—is an entirely different story. It contains thorny jurisdictional and statutory interpretation questions, and the stakes are high.
The case addressed stormwater runoff from two privately-operated logging roads in Oregon’s Tillamook State Forest. The logging companies had channelized the runoff though systems of culverts and ditches, and the runoff was conveying sediment—which meets the CWA’s definition of “pollutant”—into surface rivers and streams. The companies didn’t have National Pollutant Discharge Elimination System permits for these discharges. According to the environmental plaintiffs, those unpermitted discharges violated the law. The defendants moved to dismiss the case, and while the district court granted the motion, the Ninth Circuit reversed. Its opinion cast doubt upon—and, perhaps, invalidated, though that point is in dispute—EPA’s decades-old regulation exempting some silvicultural activities from point source permitting.
So why is this a case to watch? A few reasons:
1. The Stakes. The United States contains a lot of logging roads. Those roads may be relatively invisible to most urban dwellers, but their aggregate length is fairly mind-boggling; in Maine alone, for example, one of my colleagues estimates there are about 15,000 miles of logging roads. Not all of those roads have stormwater conveyance systems, but many do. You can’t have forests without rain, and, in many places, you can’t protect a road from erosion without channelizing the runoff. The number of discharge points potentially affected by the Court’s decision therefore is huge. And, as one might expect, the environmental and economic implications are substantial. Logging roads can be major sources of sediment, and the water quality benefits of improved sediment controls could be significant. On the other hand, with so many miles of roads, the costs of managing that sediment could add up, as would the administrative burdens associated with drafting and implementing new permitting approaches.
2. The Jurisdictional Issues. The case below involved a challenge to EPA’s longstanding approach to silvicultural stormwater runoff. With a few narrow exceptions, EPA has never sought to regulate stormwater runoff from forestry activities, and in 1976 it issued regulations that exempt some—perhaps most—forestry activities from the NPDES permitting program. The plaintiffs argued, and the Ninth Circuit agreed, that this exemption was inconsistent with the text of the Clean Water Act. But there’s a jurisdictional catch. Section 509(b) of the Clean Water Act compels petitioners to challenge EPA’s actions in the United States Courts of Appeals, and to do so within 120 days of the action, unless the cause of action could not be brought within that time period. The plaintiffs here brought their case in a federal district court, and they brought it decades after EPA issued its silvicultural rule.
The Ninth Circuit found this approach unproblematic. It concluded that because the plaintiffs could not have brought their action within 120 days (EPA’s broad interpretation of the silvicultural rule was never really clarified, according to the court, until the litigation commenced and the United States filed an amicus brief), section 509(b) didn’t apply. That was a mistake, according to the defendants and intervenors; they argue that even if the Ninth Circuit was correct that the 120-day period couldn’t have been met, the case still had to be brought in a court of appeals. But the environmental groups counter that they weren’t really challenging EPA’s silvicultural rule itself, but instead were challenging private actions, which the private entities then attempted to defend by relying on an impermissible interpretation of EPA’s stormwater rule. In those circumstances, they argue, section 509(b) doesn't apply at all. If it all sounds rather complicated, well, it is. But that jurisdictional argument will likely receive some significant attention from the court.
3. The Merits. On the merits, the case raises two major issues. First, do the ditches in question meet the Clean Water Act’s definition of a point source? That issue seems, to me at least, like an easy one. No matter what EPA's silvicultural rule purports to say, it seems impossible to credibly interpret the Clean Water Act’s definition of point source—a definition that includes “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel…”—to exclude discrete, discernible systems of roadside ditches, pipes and channels.
But in 1987, Congress amended the Clean Water Act in ways that complicated the matter and created the second key merits issue. The 1987 amendments struck a compromise between EPA’s longstanding resistance to regulating stormwater runoff and Congress’s (accurate) sense that stormwater runoff created significant water quality problems. In CWA section 402(p) Congress exempted stormwater runoff—even stormwater runoff that is discharged from a point source—from regulatory coverage. But it then designated several types of point source stormwater runoff that still would be covered by the NPDES program, effectively creating narrower exemptions from the broad exemption. One of those sub-exemptions was for “discharges associated with industrial activity,” which begs the question: are stormwater discharges from forestry “discharges associated with industrial activity?”
EPA’s answer to this question (given at 40 C.F.R. 122.26(b)) was muddled. It clearly considered forestry to be an industrial activity, but seemed to say that stormwater discharges associated with forestry were not “discharges associated with industrial activity,” unless those discharges derived from one of the activities the 1976 silvicultural rule said would be covered. The Ninth Circuit rejected EPA’s answer (or at least rejected an interpretation of EPA’s answer under which the 1987 amendments exempted silvicultural stormwater from regulatory coverage), and the defendants/petitioners now argue that the Ninth Circuit’s approach was in tension with Chevron v. NRDC. Not so, say the plaintiffs; in their view, the Ninth Circuit (which did cite Chevron as its standard of review) appropriately applied a clear statute. Those questions (to which I have not done full justice here; they’re much too complicated to fully explain in a few paragraphs) also will likely occupy much of the Court’s attentions.
4. The Federalism Questions: Lurking behind these statutory construction issues are some important implications for our federalist system. As co-blogger Blake Hudson has often pointed out, management of private and state forests remains an area of state primacy, with relatively little federal involvement. On the other hand, water quality protection is well established as a shared federal and state prerogative. This case puts those traditional approaches in tension. That tension shouldn’t be overstated; in some areas, new CWA-based permitting requirements would supplement, and might not significantly add to, existing state regulatory approaches. Much of the implementation of those new requirements would be done by the states, most of which have delegated authority to implement the NPDES program. Nevertheless, in areas where state and local regulation of forest practices is minimal—and there are many such areas—this case could ultimately lead to significant changes in the ways forest roads are built and maintained, and those changes would occur pursuant to federal law.
So stay tuned. The Court’s decision probably won’t be easy reading; complex statutory interpretation cases rarely are. But it should be interesting, and it will be important.
(image from wikimedia commons; M.O. Stevens, photographer)
Wednesday, May 30, 2012
This is the fourth in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, and April’s account of air quality issues in China.)
This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power. China is the world’s fastest-growing major economy—the second largest economy of all nations, the largest exporter, and the second-largest importer in the world. It is a nation with 500 million Internet users, 100 million cars, and the world’s largest standing army. It is the third nation on earth to independently launch a successful manned space mission, with plans to send astronauts to the moon in the coming years. At least in urban areas, China is a thoroughly modern, explosively developing place—with department stores selling Prada, goofy reality TV, and wifi at the local tea house... but you still can’t drink the water.
Visitors to China are carefully warned that the water is not potable and must be boiled thoroughly before consumption. Every hotel room has a small water boiler for this purpose, and the more expensive ones provide a nightly bottle of safe drinking water by the bedside. Water quality problems are traditionally associated with the continuing use of “night soil” (human and animal waste) to fertilize crops—an effective and inexpensive alternative with an inexhaustible supply. Yet the problem continues even as farmers embrace more modern chemical fertilizers (perhaps too heartily, at the alarming expense of soil health), and as other contaminants enter the water supply. While visiting the old city of Lijiang in Yunnan Province, for example, I rose for an early morning walk to find cooks cleaning the carcasses of recently killed animals, intestines and all, directly into the Venice-like canals from which others draw their drinking water.
Shortly before our arrival, we were warned by a vaccination nurse familiar with the most dangerous waterborne diseases to only sponge-bathe our 3-year-old, rather than risk his inadvertent exposure to waterborne parasites through his open eyes or mouth in a shower. Once here, we quickly decided that this level of precaution was unnecessary, at least in urban areas where the municipal water supply receives some level of filtration or disinfection before reaching the tap (especially true in Beijing). Still, we have learned well the rules of life here in China: drink only boiled or bottled water, no ice that can’t be sourced to boiled or bottled water, no fruits or vegetables that haven’t been cooked or peeled, and brush teeth with tap water at your own risk. (Some friends do; others, including me, don’t.) You should also ensure that bottled water is truly factory-sealed, as scandals have occasionally revealed empty bottles refilled with tap water being resold as new.
Without a doubt, adapting to life without potable water was the biggest cultural adjustments for us when we arrived last summer. The first consequence was minor physical dehydration: without easily accessible clean water to drink, we drank less, and soon found ourselves more easily exhausted, ornery, and sick. (Indeed, nothing confirms the critical nature of this life-sustaining resource more effectively than losing the taken-for-granted tap.) Every journey away from our apartment involves water planning, as we take careful stock of how many are traveling, what will be needed, and how best to transport it. I seem to drink more than my Chinese friends, but I still seem to be always thirsty.
And there were other puzzling features of our new world. For example, we struggled to understand at exactly what point our dishes were clean enough to eat off after washing them in tap water. Were the still damp chopsticks safe to use, or the recently-washed cup still bearing that fine sheen? And when dealing with my son’s inevitable scraped knees and elbows, was it better to wash with soap and water to disinfect, or was the water itself a source of potential harm? (For the record, we have decided that dishes must be completely dry to be safe, and that cuts should be washed with soap and water until the dirt is out, but subsequently sterilized with disinfectant whenever possible.)
Chinese culture adapted long ago to the perils of non-potable water. Chinese people boil all their water before drinking it, but it doesn’t seem like a burden, because they prefer to drink their water hot. They range from amused to amazed when foreigners request cold water, which to them is as distasteful as drinking plain hot water is those foreigners. When I invite my students to ask questions of cultural exchange—anything they want to know about American culture, politics, or lifestyle—the most frequent question is always “Why do Americans like to drink cold water? (Yuck!)” Perhaps as a result, there is no groundswell of popular sentiment to “do something” about the water situation. From the perspective of most Chinese, there is no problem with the water. Everything is as it should be.
Yet China is suffering from increasingly serious water pollution problems that can’t just be boiled away. Chemical pollutants entering the water supply from industry and agriculture are getting worse, involving toxins oblivious to disinfectants. The World Health Organization has identified 2221 different pollutants in waters worldwide, and 765 of them in drinking water—but current drinking water standards test for only 35 indicators, and new criteria that will go into effect on July 1st will regulate only 106 pollutants. (Source: Dr. Yu Ming, water pollution researcher at Ocean University of China.) Chinese lawmakers and the Ministry of the Environment are struggling to cope with these problems through the PRC Law to Prevent and Control Water Pollution, but the even greater hurdle for environmental law is that of implementation.
Even where China’s environmental laws are comprehensive, their goals are imperiled by under-enforcement. Illegal discharging is reportedly very common, because there simply aren’t enough agency personnel to monitor them. And even when violations are discovered, they may or may not be prosecuted by the relevant government agency—depending, perhaps, on the economic importance of the violators, or their political influence. When the government fails to act, it can be hard for citizens and NGOs to take up the slack, because most Chinese courts don’t recognize standing for public-interest citizen suits. And even if traditional standing were established by a directly injured party, the court may or may not decide to hear the case (for my money, one of the most surprising features of the Chinese legal system). For these reasons and others, enforcement is usually seen as the major weakness in China’s environmental law regime. Perhaps China’s new experimentation with a handful of specialty environmental courts will help redress these important problems.
In the meanwhile, water quality problems intersect with and exacerbate other environmental problems. For example, one unfortunate consequence of unreliable tap water is the resulting prevalence of disposables: single-use bottled water, disposable plates and bowls, even the single-use toothbrushes that hotels at every level routinely provide. I spent the last year spearheading a university sustainability initiative that sought personal pledges to avoid bottled water and other disposables as much as possible, so it was particularly jarring for me to adjust to this new norm—where we are happy to eat at a restaurant that provides disposable bowls, plates, and chopsticks, because we know they won’t make us sick that evening. (And I was happy to note that, at least at our favorite local restaurant, the plasticware is marked as biodegradable.) By contrast, at restaurants that provide the reusables I normally seek out at home, we nervously try to sterilize them with hot tea before using them, because they have likely been rinsed in the too-thoroughly recycled dirty dishwater that compounds the problems already coming out of the tap.
So, after religiously toting my reusable aluminum bottle to my every American class last year, I now carry plastic bottles of water everywhere. And though I reuse the small bottles as long as possible rather than discarding them after a single use, they are usually filled with water that I get at home from the water-cooler bottle that many Chinese families use. On any given day, you can spot a handful of strong men riding motor-scooters with an improbably number of these strapped to the back, exchanging filled ones for empties at private homes and businesses. I’m happy to report that at least these large bottles are faithfully recycled. But I’m unhappy to say that smaller plastic bottles litter the streets, parks, mountains, landfills, beaches, and accordingly, rivers and oceans.
Neither is the important relationship between water quality and water quantity lost on China, which has one of the lowest per capita rates of fresh water in the world. Northern China is arid and especially lacking sufficient water, marked by some of the world’s great deserts, like the Gobi and the Taklimakan. But it rains plentifully in the south and along much of the coasts. As a result, China has erected the most massive water-delivery infrastructure in world history to shift enormous quantities from south to north, a project already underway for fifty years and scheduled for completion in another forty. Linking China’s four main rivers together in a network of diversions, it will eventually move almost 50 billion cubic meters of water annually. Although the project has already caused its fair share of negative environmental consequences and human displacement, most of the Chinese I have spoken to—even those from regions in which water is taken—are comfortable with the need for extreme inter-basin transfers to support northern population centers like Beijing. And they are proud of the ingenuity and engineering that underwites this aspect of "man-made China."
Like nearly everything else in China, its history of mind-boggling human interventions with water began thousands of years ago. I had the opportunity to explore a classic example last week while visiting the Turpan Depression near Urumqi in Xinjiang. Turpan is the lowest and hottest place in China, at 150 meters below sea level and in the middle of China’s most arid province. And yet there in the desert was a blooming oasis of vineyards, agriculture, and Uighur community. How was it possible? It is because 2,000 years earlier, the people who still live there dug 5,272 kilometers of underground canals with 172,367 vertical well shafts to collect and redistribute the groundwater accumulating from melting snow on the nearby mountains. At its height, the “Turpan Karez” channeled 858 million cubic meters of water into 1,784 lines to distribute it to all parts of the region. (You can’t even imagine what this looks like—best to see it, so try this aerial photo and this diagram). It is a staggering feat of civilization—a celebration of creativity, environmentally sustainable terrascaping, and the human ability to thrive against all odds.
Modern-day Urumqi, the capital city of Xinjiang, relies on similarly creative water technology. During my visit, I saw acres of recently planted, spindly young trees in the desert outskirts of the city, lined up like toothpicks piercing the mostly barren earth. I would often ask my hosts, “How will these trees take root? With what water?”, and I was always told, “Oh, there is enough water here in Urumqi.” I knew that the trees had been planted for environmentally sound reasons—to help stabilize the soil, moderate ground temperature, and trap airborne dust—but I still couldn’t understand how they would survive in such arid ground, only occasionally studded with dwarflike sagebrush scrub. In my broken Chinese, I would persist, “but if there were really enough water to grow trees, wouldn’t there already be trees here?” And they would quietly insist, “no, no—there will be enough water,” though I could never understand from them why.
Then on my last day, I visited a popular public park in the middle of the city, where the temperature was ten degrees cooler thanks to the canopy of the many mature trees that ringed its central hill and the banks of the creek flowing around it. I followed my idle curiosity to the crown of the hill, where I was astonished to find a complex terrascaping system for just this park. There was a small, swimming-pool like reservoir at the top, supplied by a large pipe snaking up the hill (it wasn’t clear to me from where), and a network of canals extending radially outward down the hill in all directions. Indeed, the park’s oasis was created in the same manner as the Turpan Karez: decades earlier, the now lush trees had been planted in rings around the hill, and the reservoir fed them a steady supply of water through the canals at their base. I was awed by the success of the project, and the clear joy it gave the city residents who collected there en masse to enjoy its peace and beauty. And I suddenly understood what mechanisms were likely helping those new trees take root in the desert surrounding the city.
With such scarcity at hand, China is trying harder and harder to avoid squandering its precious water resources with regulatory efforts targeting both quantity and quality. Wherever there are flush-toilets, they are almost always low-flush toilets, with separate levers for the two types of waste they will encounter (one of which needs a stronger flush than the other). Solar-powered water heaters effectively reduce consumption by limiting hot water to what can be stored on the roof at any given time (although the more expensive ones have a gas or electric backup). Greater efforts are being made to reduce use and recycle water wherever possible. Hopefully, China will find a way to enact and enforce more effective water pollution laws to avoid further industrial and agricultural degradation of its water resources.
But for what it’s worth, I’m told there are no great plans on the horizon to achieve potability from the tap, because potability is just not a cultural priority in China. So the mantra will continue: boiled or bottled, cooked or peeled, rinse at your own risk…
Wednesday, November 2, 2011
The Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah S.J. Quinney College of Law has posted a job opening for a new alternative dispute resolution program focused on environmental, natural resources, and energy issues. The position is for the director of the program.
Here is the announcement. Note the link at the end for online applications:
The Wallace Stegner Center for Land, Resources and the Environment at the University of Utah S.J. Quinney College of Law is establishing a new Alternative Dispute Resolution (ADR) program focused on environmental, public lands, and natural resource issues and is currently accepting applications for the ADR Program Director. The Director will play a major role in initiating, designing, and developing the new ADR program. Specific responsibilities include identifying issues of local, regional, and national importance and proactively investigating ADR opportunities; public education about the benefits of mediation, collaboration, and other ADR options; providing ADR services to government agencies, corporations, environmental organizations, and other entities; fundraising to support the program; and research on ADR processes and opportunities. Requirements include a Juris Doctor or equivalent degree, along with a minimum of five (5) years of experience in alternative dispute resolution. Experience with environmental, natural resources, or energy law and policy, and especially experience with these issues in the western United States, is strongly preferred. For additional information and to apply, please go to http://utah.peopleadmin.com/postings/11104.
November 2, 2011 in Air Quality, Biodiversity, Climate Change, Current Affairs, Energy, Forests/Timber, Governance/Management, Land Use, Law, Mining, North America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)
Sunday, October 23, 2011
Climate change regulation is dead? Not in California, which this week adopted the nation's first economy-wide cap-and-trade program.
The Tenth Circuit, in a 120-page decision, upheld a Clinton-era rule protecting 50 million acres of forestland from logging and roads.
The Council for an Energy-Efficient Economy released its first annual rankings of states; Massachusetts was first, with California second.
An advocacy study observed that FCC standards for cell phones "grossly underestimate the amount" of radiation that "smaller adults and children retain," as reported by Greenwire.
BP received approval for a plan to explore for oil in the Gulf of Mexico, its first such approval since the Deepwater Horizon disaster.
There is a fascinating article this week in The New Yorker about the aftermath of the Fukushima-Daiichi nuclear accident in Japan. (hat tip: Joe Tomain)
October 23, 2011 in Asia, Cases, Climate Change, Current Affairs, Energy, Environmental Assessment, Forests/Timber, Governance/Management, Law, Legislation, Science, Sustainability, US | Permalink | TrackBack (0)
Tuesday, September 27, 2011
When in college (1997-2002) I was introduced to the Gopher Frog (Rana Capito). A biology professor of mine at the University of Montevallo, Dr. Malcolm Braid, performed research on the frog, including an innovative captive breeding and relocation program. The frog was rapidly disappearing from Alabama due to both urban sprawl in areas of critical habitat as well as the destruction of the longleaf pine ecosystem. The gopher frog has a cousin, the Dusky (Mississippi) Gopher Frog (Rana Sevosa), which had previously been considered a subspecies but was elevated to species status in 2001. Only one small population of the dusky gopher frog now survives in a small area in southern Mississippi (picture above) and the frog only numbers around 100 individuals in the wild (though 1500 live in captivity in a successful breeding program). For more information on the frogs see here and here.
The longleaf pine ecosystem upon which the gopher frogs depend once stretched over 90 million acres across the entire southeastern U.S., but now only around 3-4% of it remains. Fire suppression, urban development, and forestry practices that replaced longleaf with monoculture pine plantations are primarily to blame for the loss of the ecosystem. Not only does the longleaf ecosystem provide critical habitat for the dusky gopher frog, but it also supports a variety of other unique species also listed under the ESA, such as the Gopher Tortoise (about which I have previously written) and the Red-Cockaded Woodpecker, among others (in fact, my pioneering grandfather, in an early effort to engage in the complex task of scientific tracking of species on our forestland in Alabama, spray painted, in red, "Toby" on the back of one unsuspecting - or perhaps suspecting, but slow - gopher tortoise. He would see Toby from time to time and know that he was doing well - except perhaps for the lead potentially leaching into his shell. But that is neither here nor there). The gopher frogs actually get their name because they survive in the burrows of gopher tortoises, which act as a "keystone species" for a variety of other species.
So when I learned of the federal government's plans to triple the area proposed as critical habitat for the dusky gopher frog I was encouraged, even though the proposal only gives the frog "a shot at survival." But at the same time, the news was a bit troublesome - not actually the news, but the memories it dredged up of my lack of understanding of the value of biodiversity when first introduced to the frogs. The gopher frogs of Alabama were some of the first natural resources I ever thought about in a critical manner as I began my college education. To see their habitat continue to be imperiled and to know that other populations of frogs are hanging only by a thread, really hits close to home - in more ways than one. I have previously posted about how global society is not even doing a good job of protecting charismatic megafauna (see Lions, Tigers, and Bears...All Gone?). How much more difficult will it be to preserve these southern treasures reliant on an ecosystem - and a piece of southern history - that we have already almost entirely eradicated? Hopefully the federal government's efforts will be a step in the right direction, and can make a difference before the sun goes down on the dusky gopher frog's time in the south and on the earth.
- Blake Hudson
Monday, May 23, 2011
The U.S. Forest Service recently released a report detailing the projected impacts population growth and urbanization will have on southeastern forests over the next 50 years, reducing them by as much as 23 million acres (or 13%). The report provided four primary reasons for the decline: population, climate change, timber markets and invasive species.
Southern forests are among the most biodiverse forests in the United States, and a disproportionate number of endangered species are located in the southeast when compared to other regions of the U.S.
The report indicates that private individuals and companies will be crucial to the effort to curb the destruction, noting that nearly 90% of the forestland in the south is privately owned. Even so, regulation of land uses such as private forestry and urban development is seen as a role constitutionally reserved for state and local governments. In turn, the southeastern U.S. maintains some of the most lax forest regulatory standards (not to mention zoning standards) in the world, even less rigorous than many developing countries, according to a study performed by Cashore and McDermott and as seen in the below chart (a "9" denotes the most stringent forest regulatory standards and a "0" the least).
Most all southeastern U.S. states maintain "best management practices" that are completely voluntary on the part of the forest manager. These BMP's may suggest to a private forester that he or she leave a buffer zone of trees around watercourses in watersheds in order to prevent erosion, siltation and eutrophication of waterways, among other environmental and economic harms. But foresters can feel free to ignore those "standards" and clear timber to the edge of the stream if they so choose. The only claim an adjacent landowner might have against the offending party is a common law nuisance claim, if there was damage caused to their property by the erosion, etc., since no regulatory remedies are available.
A co-author of the Forest Service report stated "We're counting on policy-makers...to implement and act on some of the findings...That is our hope." Hopefully policy-makers at the state and local level will take heed of the report and make much needed changes to the approach and rigor of both southern forest management and urban growth control. As a southern forester myself, I really would prefer not to have 10% fewer trees gracing this beautiful, and environmentally rich, part of the country.
- Blake Hudson
Wednesday, September 9, 2009
GAO on September 9th published a report "Wildland Fire Management: Federal Agencies Have Taken Important Steps Forward, but Additional, Strategic Action is Needed to Capitalize on Those Steps." GAO-09-877 . A summary, the GAO Highlights, is contained in this link.
Thursday, September 3, 2009
Many of us attempt to bring ethical perspectives to bear on issues raised by our classes in addition to ecological and economic perspectives. Although it may be a bit late for those of you who have already started class, here is the most recent statement by the World Council of Churches on eco-justice and ecological debt. In a related, but fascinating, note, the WCC as part of its current programme work on poverty, wealth and ecology is attempting to articulate a consumption and greed line -- in addition to the more typical poverty line. This would provide practical spiritual guidance on when, in Christian terms, too much is too much. Check it out!!!
WCC Statement on eco-justice and ecological debt
The World Council of Churches (WCC) Central Committee adopted a "Statement on eco-justice and ecological debt" on Wednesday, 2 Sept. The statement proposes that Christians have a deep moral obligation to promote ecological justice by addressing our debts to peoples most affected by ecological destruction and to the earth itself. The statement addresses ecological debt and includes hard economic calculations as well as biblical, spiritual, cultural and social dimensions of indebtedness.
The statement identifies the current unprecedented ecological crises as being created by humans, caused especially by the agro-industrial-economic complex and the culture of the North, characterized by the consumerist lifestyle and the view of development as commensurate with exploitation of the earth's so-called "natural resources". Churches are being called upon to oppose with their prophetic voices such labeling of the holy creation as mere "natural resources".
The statement points out that it is a debt owed primarily by industrialized countries in the North to countries of the South on account of historical and current resource-plundering, environmental degradation and the dumping of greenhouse gases and toxic wastes.
In its call for action the statement urges WCC member churches to intervene with their governments to drastically reduce greenhouse gas emissions and to adopt a fair and binding deal at the UN climate conference in Copenhagen in December 2009, in order to bring the CO2 levels down to less than 350 parts per million (ppm).
Additionally the statement calls upon the international community to ensure the transfer of financial resources to countries of the south to refrain from oil drilling in fragile environments. Further on, the statement demands the cancellation of the illegitimate financial debts of the southern countries, especially for the poorest nations as part of social and ecological compensation.
In a 31 August hearing on "ecological debt" during the WCC Central Committee meeting in Geneva, Dr Maria Sumire Conde from the Quechua community of Peru shared some ways that the global South has been victimized by greed und unfair use of its resources. In the case of Peru, Sumire said mining has had particularly devastating effects, such as relocation, illness, polluted water,and decreasing biodiversity.
The concept of ecological debt has been shaped to measure the real cost that policies of expansion and globalization have had on developing nations, a debt that some say industrialized nations should repay. Dr Joan Martinez Alier, a professor at the Universidad Autònoma de Barcelona in Spain, said climate change, unequal trade, "bio-piracy", exports of toxic waste and other factors have added to the imbalance, which he called "a kind of war against people around the world, a kind of aggression."
Martinez went on saying: "I know these are strong words, but this is true." He beseeched those present, at the very least not to increase the existing ecological debt any further.
The WCC president from Latin America, Rev. Dr Ofelia Ortega of Cuba, said ecological debt was a spiritual issue, not just a moral one. "The Bible is an ecological treatise" from beginning to end, Ortega said. She described care for creation as an "axis" that runs through the word of God. "Our pastoral work in our churches must be radically ecological," she said.
September 3, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Climate Change, Current Affairs, Economics, Energy, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Religion, South America, Sustainability, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Tuesday, April 28, 2009
Table of Contents - March 16-29th
ENVIRONMENTAL LAW CASES
• Trout Unlimited v. Lohn
• Natural Resources Def. Coun. v. EPA
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U.S. 9th Circuit Court of Appeals, March 16, 2009
Trout Unlimited v. Lohn, No. 07-35623
In a challenge to a National Marine Fisheries Service (NMFS) regulation distinguishing between natural and hatchery-spawned salmon and steelhead when determining the level of protection each species should receive under the Endangered Species Act, the majority of District Court's rulings are affirmed where NMFS decisions were not arbitrary, but reversed where summary judgment to Plaintiff was erroneous. Read more...
U.S. D.C. Circuit Court of Appeals, March 20, 2009
Natural Resources Def. Coun. v. EPA, No. 07-1151
Petitioner's petition for review of EPA air quality regulations is denied, where: 1) Petitioner failed to object to the EPA's definition of "natural event" during the rulemaking process; and 2) the preamble to the regulations was not a final agency action, and thus was not reviewable under the Clean Air Act. Read more...
Table of Contents - March 9 - 15th
ENVIRONMENTAL LAW CASES
• Am. Bird Conservancy v. Kempthorne
• Dallas v. Hall
• Hempstead County Hunting Club v. Southwestern Electric Power
• Washington v. Chu
• Delaware Dept. of Natural Res. & Envt'l. Ctrl. v. FERC
• Eastern Niagara Pub. Pwr. Alliance & Pub. Pwr. Coal. v. FERC
• State of California v. Allstate Ins. Co.
• People v. Tri-Union Seafoods, LLC
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U.S. 3rd Circuit Court of Appeals, March 11, 2009
Am. Bird Conservancy v. Kempthorne, No. 07-4609
In an action involving environmental rulemaking, dismissal of plaintiff's complaint for lack of subject matter jurisdiction is affirmed where the challenge to the denial by the Fish and Wildlife Service to undertake an emergency rulemaking listing the red knot species of bird endangered, is rendered moot by the publication of the warranted but precluded by higher priority listing in the periodic Candidate Notice of Review. Read more...
U.S. 5th Circuit Court of Appeals, March 12, 2009
Dallas v. Hall, No. 08-10890
In an action by a city against the Fish & Wildlife Service based on the agency's establishment of a conservation easement on the city's land, summary judgment for Defendant is affirmed, where the FWS considered a reasonable range of alternatives before creating the easement, and was not required to consider the impact on a potential water source. Read more...
U.S. 8th Circuit Court of Appeals, March 12, 2009
Hempstead County Hunting Club v. Southwestern Electric Power , No. 08-2613
In an environmental action, appeal of a denial of a preliminary injunction to halt preconstruction activities for defendant's failure to obtain the permit required by the Clean Air Act is dismissed as moot where defendant has since received the Clean Air Act permit and lawfully begun construction at the site. Read more...
U.S. 9th Circuit Court of Appeals, March 10, 2009
Washington v. Chu, No. 06-35227
In an action by the state of Washington against the Department of Energy for violation of hazardous waste management regulations, summary judgment for Plaintiff is affirmed, where the Washington Hazardous Waste Management Act plainly exempts designated nuclear waste from the storage and land-disposal prohibitions "with respect to WIPP" only. Read more...
U.S. D.C. Circuit Court of Appeals, March 13, 2009
Delaware Dept. of Natural Res. & Envt'l. Ctrl. v. FERC, No. 07-1007
Petitioner state agency's petition for review of FERC's approval of an application to operate a natural gas site is dismissed, where Petitioner lacked standing to challenge the order because it was expressly conditioned on Petitioner's approval. Read more...
U.S. D.C. Circuit Court of Appeals, March 13, 2009
Eastern Niagara Pub. Pwr. Alliance & Pub. Pwr. Coal. v. FERC, No. 07-1472
Petitioner's petition for review of the Federal Energy Regulatory Commission's (FERC) approval of a state agency's license to operate a power project is denied, where FERC's decision to issue the license was reasonable and reasonably explained. Read more...
Supreme Court of California, March 09, 2009
State of California v. Allstate Ins. Co. , No. S149988
In an action arising from efforts to obtain insurance coverage for property damage liability imposed in a federal lawsuit as a result of discharges from a hazardous waste disposal facility, grant of defendant's motion for summary judgment is reversed where: 1) triable issues of fact exist as to whether the 1969 overflow fell within the meaning of the absolute pollution exclusion for watercourses contained in the insurance policy; 2) evidence the State should have known flooding was likely is insufficient to prove as an undisputed fact that the waste discharge in 1978 due to flooding was expected and therefore nonaccidental; and 3) there is a triable issue as to whether the cost of repairing the property damage from the 1969 and 1978 discharges can be quantitatively divided among the various causes of contamination. Read more...
California Appellate Districts, March 11, 2009
People v. Tri-Union Seafoods, LLC, No. A116792
In an action involving food warnings, trial court's ruling for the defendant is affirmed where substantial evidence supports the trial courts finding that methylmercury is naturally occurring in canned tuna and thus defendants and other tuna companies are exempt from the warning requirements of Proposition 65. Read more...
Table of Contents - March 2 - 8th
ENVIRONMENTAL LAW CASES
• Summers v. Earth Island Inst.
• Martex Farms, S.E. v. US EPA
• Izaak Walton League of Am., Inc. v. Kimball
• Latino Issues Forum v. EPA
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Summers v. Earth Island Inst., No. 07-463
In an action challenging Forest Service regulations exempting certain land management activities from the agency's review process, an injunction against the regulations is reversed where Plaintiffs lacked standing to challenge the regulations absent a live dispute over a concrete application of those regulations. Read more...
U.S. 1st Circuit Court of Appeals, March 05, 2009
Martex Farms, S.E. v. US EPA, No. 08-1311
Final decision and order of the Environmental Appeals Board holding plaintiff liable for violations of the Federal Insecticide, Fungicide, and Rodenticide Act is affirmed where: 1) there is no legal basis for plaintiff's argument that the EPA's enforcement action amounted to selective prosecution; 2) plaintiff's claim that it was deprived of a full and fair opportunity to present its case fails as the denial of its motion to depose four witnesses was justified; and 3) there is no evidence that there is any basis for reversal as to the substantive violations committed by plaintiff. Read more...
U.S. 8th Circuit Court of Appeals, March 06, 2009
Izaak Walton League of Am., Inc. v. Kimball , No. 07-3689
In an action involving the Boundary Waters Canoe Area Wilderness Act, district court's grant of defendant's motion for summary judgment is affirmed where: 1) plaintiff's claims that the Forest Service violated the Act are time barred by the six year statute of limitations in the Act; and 2) there is no appellate jurisdiction over the appeal of the district court's order remanding the matter to the Forest Service to prepare an environmental impact statement assessing the sound impact of the proposed snowmobile trail. Read more...
U.S. 9th Circuit Court of Appeals, March 05, 2009
Latino Issues Forum v. EPA, No. 06-71907
In a petition for review of the EPA's approval of a state air-pollutant reduction program, the petition is denied where the EPA acted lawfully under 42 U.S.C. section 7509(d)(2) by not requiring implementation of "all feasible measures" into the program. Read more...
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April 28, 2009 in Air Quality, Cases, Energy, Environmental Assessment, Forests/Timber, Governance/Management, Land Use, Law, Science, Sustainability, Toxic and Hazardous Substances, US | Permalink | TrackBack (0)
Monday, March 2, 2009
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.
March 2, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)
Wednesday, February 25, 2009
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.
February 25, 2009 in Biodiversity, Economics, Environmental Assessment, Forests/Timber, Governance/Management, Land Use, Law, Legislation, North America, Sustainability, US | Permalink | TrackBack (0)
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.
February 25, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)
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.
February 25, 2009 in Africa, Asia, Australia, Biodiversity, Forests/Timber, Governance/Management, International, Legislation, North America, South America, Sustainability, US, Water Quality, Water Resources | Permalink | TrackBack (0)
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.
February 25, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)
Sunday, February 1, 2009
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
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
February 1, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Climate Change, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (2) | TrackBack (0)
Tuesday, January 27, 2009
One of my students just published an article on Oregon's battle with takings legislation: David Boulanger, The Battle over Property Rights in Oregon: Measures 37 and 49 and the Need for Sustainable Land Use Planning, 45 Willamette L Rev 313 (2008).
If you have any interest in land use law, how takings law affects the environment or in takings legislation, this article is worth a read.
Friday, January 23, 2009
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.
January 23, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)