January 19, 2009
ELI Endangered Laws Writing Competition
FOURTH ANNUAL ENDANGERED ENVIRONMENTAL LAWS
STUDENT WRITING COMPETITION (2008-09)
The Environmental Law Institute
The American Bar Association Section of Environment, Energy, and Resources
The National Association of Environmental Law Societies
The Constitution has long been interpreted by the courts and understood by most Americans to
support comprehensive environmental protections. However, arguments targeting the
constitutional legitimacy of environmental laws continue to gain traction in the federal courts. To
inform the debate, we invite law students to submit papers exploring current issues of
constitutional environmental law.
AWARD: $2000 cash prize and an offer of publication in the Environmental Law Reporter.
TOPIC: Any topic addressing recent developments or trends in U.S. environmental law that
have a significant constitutional or “federalism” component. (See sample topics below.)
ELIGIBILITY: Students currently enrolled in law school (in the U.S. or abroad) are eligible,
including students who will graduate in the spring or summer of 2009. Any relevant article, case
comment, note, or essay may be submitted, including writing submitted for academic credit.
Jointly authored pieces are eligible only if all authors are students and consent to submit.
Previously published pieces, or pieces that are already slated for publication, are ineligible.
DEADLINE: Entries must be received no later than 5:00 PM ET on April 6, 2009. Email essays
(and questions) to Lisa Goldman at email@example.com. You will receive a confirmation by email.
Cover page. This page must include the following information:
• Author’s name, year in law school, and expected graduation date (to facilitate impartial
judging, the author’s name and law school must NOT appear anywhere in the essay, other
than on the cover page);
• Law school name and address;
• Author’s permanent and school mailing address, email address, and phone number
(IMPORTANT: indicate effective dates for all addresses);
• Abstract (limited to 100 words) describing the piece;
• Certification that the article has not been published and is not slated for future publication
(while authors may submit their articles to other competitions, publication elsewhere will
disqualify an entry from further consideration); and
• Statement as to where the author(s) learned about this competition
Format. Submissions may be of any length up to a maximum of 50 pages (including footnotes),
in a double-spaced, 8.5 x 11-inch page format with 12-point font (10-point for footnotes).
Citation style must conform to the Bluebook. Submissions must be made by email attachment in
Microsoft Word format, with the cover page as a separate attachment.
CRITERIA AND PUBLICATION: The prize will be awarded to the student work that, in the
judgment of ELI, ABA-SEER, and NAELS, best informs the debate on a current topic of
constitutional environmental law and advances the state of scholarship. ELI reserves the right to
determine that no submission will receive the prize. While only one cash prize is available, ELI
may decide to extend multiple offers of publication in the Environmental Law Reporter.
For more about ELI and its Endangered Environmental Laws Program, including past writing
competitions, please visit www.eli.org and www.endangeredlaws.org. Information about
ABA/SEER may be found at www.abanet.org/environ/. Information about NAELS may be found
SAMPLE TOPICS FOR THE 2008-09 ELI-ABA-NAELSWRITING COMPETITION
Students may choose a topic from below or develop their own constitutional environmental law topic.
1) Challenges to environmental plaintiffs’ standing to be heard in federal courts–
a) Standing to sue to enforce environmental laws. E.g., Earth Island Institute v. Ruthenbeck, 490
F.3d 687 (9th Cir. 2007), cert. granted, Summers v. Earth Island Institute, 128 S. Ct. 1118 (Jan.
18, 2008); implications of Massachusetts v. EPA, 549 U.S. 497 (2007), and progeny; Coalition
for a Sustainable Delta v. Carlson, 2008 WL 2899725 (E.D. Cal. July 24, 2008).
b) Standing to sue for “increased risk of harm.” E.g., implications for environmental protection
of an ever-higher bar in the D.C. Circuit for establishing standing in risk-based injury cases. See
Public Citizen v. NHTSA, 513 F.3d 234 (D.C. Cir. 2008) (Sentelle, C.J., concurring) and 489 F.3d
1279 (D.C. Cir. 2007); NRDC v. EPA, 440 F.3d 476 (D.C. Cir.), vacated, 464 F.3d 1 (D.C. Cir.
2) Application to climate-change cases of other constitutional theories, such as statutory and foreign
affairs preemption, political question doctrine, dormant Commerce Clause, and Compact
Clause. E.g., possible challenges to regional cap-and-trade schemes, such as RGGI and the WCI; the
impact of a future federal cap-and-trade law on state and regional climate frameworks; challenges to
California’s tailpipe emissions regulations, as adopted by 16 other states; and efforts by states and
local entities to recover damages from industry for contributions to global climate change.
See Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F.Supp.2d 295 (D. Vt. 2007),
appeal filed, No. 07-4342, -4360 (2d Cir.); Central Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F.
Supp. 2d 1151 (E.D. Cal. 2007), aff’d on reh’g, 563 F. Supp. 2d 1158 (E.D. Cal. 2008); Lincoln
Dodge, Inc. v. Sullivan, 2008 WL 5054863 (D.R.I. Nov. 21, 2008); California v. General Motors
Corp., 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007), appeal filed, No. 07-16908 (9th Cir.); Comer v.
Murphy Oil, No. 05-436 (S.D. Miss. Aug. 30, 2007) (granting motion to dismiss), appeal argued, No.
07-60756 (5th Cir. Nov. 3, 2008); Connecticut v. American Electric Power Co., 406 F.Supp.2d 265
(S.D.N.Y. 2005), appeal filed, No. 05-5104 (2d Cir.); and Kivalina v. Exxonmobil Corp., No. 08-
01138 (N.D. Cal. filed Feb. 26, 2008).
3) Legislative developments and potential court challenges to Congress’s authority under the
Commerce Clause and other constitutional provisions (e.g., Spending Power, Property Clause, and
Treaty Power) to afford comprehensive protection to the “waters of the United States.” E.g., Clean
Water Restoration Act (H.R. 2421, S. 1870). In the wake of SWANCC v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006), and the resulting
confusion for Clean Water Act administration and enforcement, much of the debate over the
constitutional reach of federal water protections has shifted from the federal courts to Congress.
4) Invocation of constitutional due process to cap punitive damages in environmental cases. See Exxon
Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), establishing as an upper limit in maritime cases a 1:1
ratio between compensatory and punitive damages. Justice Ginsburg, writing separately, wondered if
the Court intended to signal that this ratio would eventually become a ceiling imposed by due process.
5) Impact of preemption jurisprudence (including in non-environmental cases) on environmental
protection. See Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008); Levine v. Wyeth, 944 A.2d 179 (Vt.
2006), cert. granted, Wyeth v. Levine, 128 S. Ct. 1118 (Jan. 18, 2008); Pacific Merchant Shipping
Association v. Goldstene, 517 F.3d 1108 (9th Cir. 2008).
January 19, 2009 in 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
The Seas are Rising
EPA reports sea levels on the United States' mid-Atlantic coast are rising faster than the global average because of global warming, threatening the future of coastal communities. Coastal waters from New York to North Carolina have crept up by an average of 2.4 to 4.4 millimeters (0.09 to 0.17 inches) a year, compared with an average global increase of 1.7 millimeters (0.07 inches) a year. As a result, sea levels along the East Coast rose about a foot over the past century. EPA Sea Level Assessment and Adaptation Report
The IPCC's Fourth Assessment Report indicated that the rate of sea level rise has accelerated and, by the end of the century, global sea levels could be seven to 23 inches higher. Readers should remember that this IPCC estimate excludes the contribution of Antarctic and Greenland ice because of uncertainties about ice stability and dynamics at the time the Working Group I report was drafted. In the last two years, additional scientific research has begun to identify a more reliable range of sea level rise associated with those areas of ice, dramatically increasing the estimate of likely global sea level rise by 2100.
EPA had focused on the mid-Atlantic region because it "will likely see the greatest impacts due to rising waters, coastal storms, and a high concentration of population along the coastline." Higher sea levels erode beaches and drastically change the habitats of species, often at a pace too fast for species to adapt and survive. Communities in the area are at greater risk of flooding as a "higher sea level provides an elevated base for storm surges to build upon and diminishes the rate at which low-lying areas drain." Floods will probably cause more damage in the future as higher sea levels gradually erode and wash away dunes, beaches and wetlands that serve as a protective barrier. Consequently, homes and businesses would be closer to the water's edge and more likely to be damaged in extreme storm events that other scientists predict are increasing with global warming.
Rising sea levels have implications beyond the mid-Atlantic region. Ports challenged by rising waters could slow the transport of goods across the country, and disappearing beaches could hurt resorts and affect tourism revenue, damaging an already fragile U.S. economy.
EPA, NOAA, and USGS recommend:
- Federal, state and local governments should step in now to prepare for the rising seas
- Governments should protect residents through policies that preserve public beaches and coastal ecosystems and encourage retrofits of buildings to make them higher
- Engineering rules for coastal areas be revised because those used today are based on current sea levels
- Flood insurance rates also could be adjusted to accommodate risk from rising sea levels
January 19, 2009 in Biodiversity, Climate Change, Economics, Energy, Governance/Management, Land Use, Legislation, North America, Physical Science, Sustainability, US, Water Resources | Permalink | TrackBack
January 01, 2009
More on Ocean Acidification
OCEAN SCIENCE: Winter Carbonate Collapse
H. Jesse Smith
Anthropogenic fossil-fuel burning is increasing the concentration of CO2 in the atmosphere, which in turn is causing more CO2 to dissolve in the ocean, thereby lowering the water's pH. Such ocean acidification in turn decreases the concentration of carbonate ion (CO3)2-, which makes it more difficult for calcifying organisms such as foraminifera, pteropods, and corals to build their skeletons. So far, most of the attention paid to this process has focused on the time-averaged chemistry of the ocean, but organisms actually experience seasonal carbonate and pH variations. McNeil and Matear examine these variations and show that anthropogenic CO2 uptake is likely to induce winter aragonite undersaturation in some regions of the ocean when atmospheric CO2 levels reach 450 parts per million. These findings underscore the importance of understanding the seasonal dynamics of marine carbonate chemistry, as natural variability could hasten the deleterious impacts of future ocean acidification. -- HJS Proc. Natl. Acad. Sci. U.S.A. 105, 18860 (2008).
January 1, 2009 in Air Quality, Asia, Australia, Biodiversity, Climate Change, Energy, Governance/Management, International, North America, Physical Science, South America, Sustainability, US, Water Quality, Water Resources | Permalink | TrackBack
December 23, 2008
ExxonMobil pays $ 6 million for spilling 15,000 gallons of diesel into Mystic River
BOSTON, MASS. - DOJ filed a criminal information today in federal court charging a wholly owned subsidiary of ExxonMobil Corporation with violating the criminal provisions of the Clean Water
Act in connection with a spill of approximately 15,000 gallons of diesel oil and kerosene into the Mystic River from ExxonMobil's oil terminal in Everett, Mass. The information was filed in connection with a $6.1 million settlement.
According to the information, ExxonMobil Corporation and its corporate predecessors have owned a marine distribution terminal in Everett, Mass. (the "Everett Terminal") since 1929. Oil tankers deliver petroleum products that are distributed from the terminal throughout the region. ExxonMobil Pipeline Company, is a wholly owned subsidiary of, and operates the facility on behalf of, ExxonMobil Corporation. The Everett Terminal included an inland "tank farm," which was comprised of a tank loading rack and 29 large-scale oil storage tanks in which oil products were stored. Various above-ground pipes and valves connected those tanks to the Terminal's marine transfer area located at the confluence of the Mystic and Island End Rivers. ExxonMobil's failure to replace a leaking seal valve and a corroded coupling at the transfer station, known to be faulty, was the cause of the spill. ExxonMobil also negligently failed to conduct required inspections by which it would have detected the spill while it was still ongoing.
As part of its plea agreement, ExxonMobil has agreed to pay the maximum possible fine of $359,018 (twice the cost of the clean up), the clean up costs of $179,634, and a community service payment of $5,640,982 to the North American Wetlands Conservation Act fund to be
used to restore wetlands in Massachusetts. ExxonMobil further agreed that for the next three years, the Everett facility will be monitored by an court-appointed official and will be subject to a rigorous environmental compliance program.
The Island End River flows into the Mystic River, which flows into Boston Harbor. Both rivers are navigable waterways of the United States.
As depicted in the attached diagram, the Terminal's marine
transfer area was comprised of three berths (Berths 1, 3 and 4).
Barges and ships offload petroleum products that were piped to and
stored in the tanks within the tank farm. Those products were then
piped to the Terminal truck loading rack, where they were loaded onto
trucks for distribution. Berth 1 is an approximately 500-foot long
extended southwesterly from the Everett shoreline and ran parallel to the Island End River. Berths 3 and 4 were situated side-by-side on an approximately 1000 foot dock that ran from the outermost end of Berth 1 northwesterly to the Everett shoreline, parallel with the Mystic River, with Berth 3 being closer to Berth 1.
The product receipt lines at Berth 1 ran parallel to the Berth 1 dock to approximately the point where the Berth1 dock met the Berth 3 dock, and from that point those lines ran parallel to the Berth 3 dock, where they ultimately were connected to the Berth 3 product receipt lines. The Berth 1 product receipt lines were isolated from the Berth 3 product receipt lines by seal valves, which were designed to prevent product being offloaded at Berth 3 from flowing into the Berth 1 product receipt lines.
The Everett Terminal was operated and maintained by a staff of approximately 14 employees situated in an office building adjacent to the tank farm and just north of the marine transfer facility. The regular Terminal staff consisted of a terminal superintendent, terminal supervisor, nine terminal operators who covered the Terminal's 24-hour operations, electrician, mechanic and accountant. At any given time, at least two terminal operators were on duty. Additional Terminal support was provided by a field operations specialist, an area administrator and an area engineer.
ExxonMobil was responsible for the proper operation and
maintenance of the facility. These responsibilities entailed, among
other duties, monitoring the Terminal, and when necessary, cleaning,
repairing, and replacing, as appropriate, worn or damaged equipment, including pipes, valves, docks, and tanks. Likewise, ExxonMobil was responsible for monitoring the transfer of petroleum products at each point in the process: from delivery at the marine transfer area, through the receipt and storage of those products in the tank farm, and to the loading of the products onto trucks at the truck loading rack. It was therefore necessary that facility employees remain alert to pressure drops or spikes during transfer operations and to monitor the site visually for spills, hazards or other irregularities.
At approximately 4:30 A.M. on Jan. 9, 2006, the oil tanker M/V
Nara docked at Berth 3 to unload petroleum products, including
approximately 3.1 million gallons of low sulfur diesel (LSD) fuel, which
is blue-green in color and is used as fuel in various types of engines. Later that morning, hoses running from the Nara's tanks were attached to a product intake manifold on Berth 3. By mid-afternoon, pumps aboard the Nara began to pump LSD fuel from the vessel through the manifold into a product receipt line that was connected to storage tanks on the tank farm. As it was being pumped from the Nara, the LSD flowed past a 10-inch seal valve located on Berth 3, which closed off a product receipt line from Berth 1. As a result of wear and tear, the valve did not close completely and leaked oil into the Berth 1 product receipt line.
ExxonMobil was aware of this defect. In September 2005, a
contractor pressure-tested the value and informed ExxonMobil that it
leaked. Nevertheless, ExxonMobil had failed to replace the valve by the
time the Nara arrived in January 2006. As a result, LSD pumped from the Nara leaked by the defective valve into the Berth 1 product receipt line. The line was approximately 610 feet long and 10 inches in
diameter, and was filled with approximately 2,500 gallons of low sulfur kerosene. At the other end of the line was a pressure relief valve capped by a 3/4-inch coupling. The coupling had not been replaced in more than 30 years, was unpainted and was badly corroded.
As the Nara's delivery continued, the leakage by the seal valve
on Berth 3 built pressure in the Berth 1 product receipt line until the
coupling on Berth 1 burst. The rupture sent the kerosene in the pipe,
along with LSD from the Nara, pouring through the destroyed coupling into a rectangular containment pan on Berth 1, as depicted in the attached photograph. The fuel filled the containment pan and began to spill over its side and into the Mystic River below. The spill continued until approximately 5:00 A.M. on January 10, when pumping from the Nara ended.
A total of approximately 2,500 gallons of kerosene and 12,700
gallons of LSD poured into the Mystic River, causing a visible
blue-green sheen on the Mystic River that eventually spread up the
Island End River and down to Boston Harbor, and prompting several
reports to the Coast Guard. ExxonMobil personnel did not discover the
ruptured coupling and the full containment pan on Berth 1 until
approximately 11:00 A.M. on January 11, when the Coast Guard arrived at the facility to ask questions about the origin of the sheen.
ExxonMobil's negligent failure to provide adequate resources and oversight to the maintenance and operation of the Everett terminal was a direct cause of the spill. In particular, ExxonMobil negligently failed to replace the leaking seal valve on Berth 3, and to replace the unpainted and corroded coupling at Berth 1, which ruptured as a result of the leakage and pressure build-up in the product receipt line.
ExxonMobil also negligently allowed the spill to continue after it should have been discovered by failing adequately to monitor the transfer operations from the Nara. Although ExxonMobil's employees were required to perform regular walk-through inspections of the berths, they failed to do so while the containment pan was spilling LSD into the Mystic River. Because the segment of the walkway over the containment pan was partially submerged when the pan filled, a routine walk-through of the berth, had one been performed, inevitably would have resulted in the detection of the spill while it was still occurring.
December 21, 2008
EPA Overreaches Again on "Interpreting" the Clean Air Act
EPA lost again in the D.C. Circuit on its interpretation of the Clean Air Act in Sierra Club v. EPA, challenging EPA's exemption of facilities from MACT standards during startup, shutdown, or malfunction (SSM). Opinion The damage done in cases such as these where the Bush administration overreached will not be limited unfortunately just to the Bush administration. When the D.C. Circuit gets in the habit of looking at EPA decisions closely and with suspicion, and not crediting the assertions made in DOJ briefs because the arguments that DOJ is pushed to make are simply not credible, the ability of EPA to utilize its expertise to shape coherent regulatory systems out of sometimes less than coherent legislation and the ability of DOJ to command the judiciary's respect suffers. Both EPA and DOJ will need to rediscover that there are legal arguments that should not be made. The bar for the government is and should be higher than that for private parties.
In Sierra Club, the court agreed that, by stripping the protections of an enforceable SSM plan out of the 1994 exemption during recent rule-making, EPA constructively reopened the 1994 SSM exemption so that Sierra Club and others could challenge the legality of the 1994 exemption. Then, on the merits, the D.C. Circuit determined that the SSM exemption is inconsistent with section 112's requirement of continuous compliance with MACT standards and that the general duty not to endanger public health and the environment through emissions of hazardous pollutants does not satisfy the CAA's requirement:
Section 112(d) provides that “[e]missions standards” promulgated thereunder must require MACT standards. 42 U.S.C. § 7412(d)(2). Section 302(k) defines “emission standard” as “a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design,equipment, work practice or operational standard promulgated under this chapter.” Id. § 7602(k). Petitioners contend that,contrary to the plain text of this definition, “EPA’s SSM exemption automatically excuses sources from compliance with emission standards whenever they start up, shut down, or malfunction, and thus allows sources to comply with emission standards on a basis that is not ‘continuous.’” Petrs. Br. at 23.
EPA responds that the general duty that applies during SSM events “along with the limitations that apply during normal operating conditions, together form an uninterrupted, i.e., continuous, limitation because there is no period of time duringwhich one or the other standard does not apply,” Respt.’s Br. at 31. “Although Chevron step one analysis begins with the statute’s text,” the court must examine the meaning of certain words or phrases in context and also “exhaust the traditional tools of statutory construction, including examining the statute’s legislative history to shed new light on congressional intent, notwithstanding statutory language that appears superficially clear.” Am. Bankers Ass’n v. Nat’l Credit Union Admin., 271 F.3d 262, 267 (D.C. Cir. 2001) (citations and quotation marks omitted).
EPA suggests that the general duty is “part of the operation and maintenance requirements with which all sources subject to a section 112(d) standard must comply,” Respt.’s Br. at 33, pointing to section 302(k)’s statement that an “emission standard” includes “any requirement relating to the operation or maintenance of a source to assure continuous emission reduction,” 42 U.S.C. § 7602(k). Section 302(k)’s inclusion of this broad phrase in the definition of “emission standard” suggests that emissions reduction requirements “assure continuous emission reduction” without necessarily continuously applying a single standard. Indeed, this reading is supported by the legislative history of section 302(k):
By defining the terms ‘emission limitation,’ ‘emission standard,’ and ‘standard of performance,’ the committee has made clear that constant or continuous means of reducing emissions must be used to meet these requirements. By the same token, intermittent or supplemental controls or other temporary, periodic, or limited systems of control would not be permitted as a final means of compliance. H.R. Rep. 95-294, at 92 (1977), as reprinted in 1977 U.S.C.C.A.N. 1077, 1170.
“Congress’s primary purpose behind requiring regulation on a continuous basis” appears, as one circuit has suggested, to have been “to exclude intermittent control technologies from the definition of emission limitations,” Kamp v. Hernandez, 752 F.2d 1444, 1452 (9th Cir. 1985).
When sections 112 and 302(k) are read together, then, Congress has required that there must be continuous section 112-compliant standards. The general duty is not a section 112- compliant standard. Admitting as much, EPA states in its brief that the general duty is neither “a separate and independent standard under CAA section 112(d),” nor “a free-standing emission limitation that must independently be in compliance” with section 112(d), nor an alternate standard under section 112(h). Respt.’s Br. 32-34. Because the general duty is the only standard that applies during SSM events – and accordingly no section 112 standard governs these events – the SSM exemption violates the CAA’s requirement that some section 112 standard apply continuously. EPA has not purported to act under section 112(h), providing that a standard may be relaxed “if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a [HAP],” id. § 7412(h)(1), based on either a (1) design or (2) source specific basis, id. § 7412(h)(2)(A), (B).
EPA’s suggestion that it has “discretion to make reasonable distinctions concerning those particular activities to which the emission limitations in a MACT standard apply,” 68 Fed. Reg. at 32,590, belies the text, history and structure of section 112. “In 1990, concerned about the slow pace of EPA’s regulation of HAPs, Congress altered section 112 by eliminating much of EPA’s discretion in the process.” New Jersey, 517 F.3d at 578. In requiring that sources regulated under section 112 meet the strictest standards, Congress gave no indication that it intended the application of MACT standards to vary based on different time periods. To the contrary, Congress specifically permitted the Administrator to “distinguish among classes, types, and sizes of sources within a category or subcategory in establishing such standards,” CAA § 112(d)(1), 42 U.S.C. § 7412(d)(1). Additionally, while recognizing that in some instances it might not be feasible to prescribe or enforce an emission standard under § 112, Congress provided in section 112(h) for establishment of “work practice” or “operational” standards instead, but, as petitioners point out, “strictly limited this exception by defining ‘not feasible . . .’ to include only [two types of] situations,” Petrs. Br. 9, and did not authorize the Administrator to relax emission standards on a temporal basis. See NRDC, 489 F.3d at 1374. In sum, petitioners’ challenge to the exemption of major sources from normal emission standards during SSM is premised on a rejection of EPA’s claim of retained discretion in the face of the plain text of section 112. “Where Congress explicitly enumerates certain exceptions to a general prohibition,additional exceptions are not to be implied, in the absence of a contrary legislative intent”. NRDC, 489 F.3d at 1374 (quoting TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)). The 1990 Amendments confined the Administrator’s discretion, see New Jersey, 517 F.3d at 578, and Congress was explicit when and under what circumstances it wished to allow for such discretion, id. at 582. “EPA may not construe [a] statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.” New Jersey, 517 F.3d at 583 (quoting Whitman, 531 U.S. at 485).
Accordingly, we grant the petitions without reaching petitioners’ other contentions, and we vacate the SSM exemption. See New Jersey, 517 F.3d at 583 (citing Allied Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)).
December 18, 2008
Dear Readers and Friends:
It is so difficult this time of year to decide how to spend one's limited resources in a way consistent with our duty to reduce human suffering and make the world a better place. It is especially difficult now, when all of us are a bit uncertain about our financial future and have lost a considerable amount of our paper wealth. But, I am concentrating for now on Haiti, the most impoverished nation in the Western hemisphere. Below I post a letter from a friend in Haiti, in the hope that some of you may help in the resurrection of Haiti after this fall's hurricane season. Obviously, my friend is a Christian (as I am), but human need knows no religion. Be assured that any money sent him through the church will be used to meet profound human need, not the promotion of a creed. And, if you are reluctant to send money to a faith-based organization, just let me know and I'll be happy to find a secular route for your gift.
[We] are writing you all with a great mix of emotions – sadness and frustration, great doubts, fear, but also some sense of hope. Many of you already know that in the past five weeks, Haiti was affected by four hurricanes – Fay, Gustav, Hanna and Ike, resulting in profound destruction throughout the entire country. Chavannes Jean Baptiste, the director of MPP (Mouvman Peyizan Papay–Farmer’s Movement of Papay) noted this past Monday that the situation is without precedent. MPP along with other national and international organizations are beginning to get a grasp of the level of havoc and devastation, but it seems impossible that anyone will ever be able to make a full accounting of the loss of life and property.
Many of the root causes of the poverty in Haiti–weak government, inadequate communication, lack of roads and other infrastructure, virtually non-existent social services–have always kept Haitind other countries with similar conditions, open to the full effects of disasters such as this. These same conditions now make it difficult and in some cases impossible for a quick response to those who need help the most. It is even nearly impossible to know who needs the help the most. In the last two days, I have received reports via e-mail of whole communities without food and water, with no help in sight. Lack of real roads have always been part of the isolation of many of these communities. Now, the serious damage to bridges and other weak points along the roads that do exist has increased the number of people who are isolated from any easy access, as well as deepening the level of isolation for those who have always lived at the limits.
Given all this, [our] sense of sadness is easy to understand. We live along side people who carry on their daily lives with grace, great generosity and wonderful senses of humor, despite the profound limitations. Now, these same people, some of whom are close personal friends, have lost homes and possessions and we know they have no real resources, or hope, for recuperating their losses. We have a great need to help, but we ourselves do not have the ability to provide any help that seems significant, even at the local level. Not even for just the families who are part of MPP – at least 52 families whose homes were flooded last week. Multiply the needs of the folks in Hinche by all of communities in nearly every part of Haiti, you can easily understand our frustration. What can we do? Within the sadness and frustration I also feel some guilt, because we ourselves are safe and suffered no damage at all to our home or even to the project where I work.
We also wonder whether the kind of help that is starting to come could possibly be adequate, given the enormous need. And will the assistance that comes be directed to address some of the root causes of poverty in Haiti? Will the funds help rebuild roads and bridges so that they are better than they were, or will the be used to make the highways and byways merely passable, subject as always to rapid degradation by even normal use? And will the international lending agencies, such as the International Monetary Fund, encourage the Haitian government to create “safety nets” that can help families and communities recuperate losses? Or will they follow their standard policy, insisting on budgetary stringency, regardless of the needs of the most vulnerable–the poor in general, and women, children and the aged in particular?
It is impossible to write about the current catastrophe without mentioning as well the ongoing global wide crises of food prices which are spiraling out of US control. In the project that I help coordinate – the crew prepares and shares two meals a day. We produce all of the vegetables for these meals ourselves, but for the items we can’t produce (corn, rice, coffee, oil etc), we paid a total of around $100 in May. In August, we spent around $135 for the same supplies and in September we spent $175. In a country where over half the population earns less than $US 1.00 a day, the situation was devastating, before the flooding will now die from hunger, giving in at last to ongoing deprivation?
And the fear we feel, where does that come from? Haitians have a marvelous way of dealing with difficult situations that I have come to respect a great deal. They sing, they laugh, they joke and suddenly, the load lightens and the way forward opens up again. There is also a great deal of tolerance, or patience, with unjust conditions. But there are limits. The suffering from the food crisis was becoming nearly insufferable before the hurricanes. If there is not a rapid, reliable and comprehensive response to the current situation, especially by the Haitian government, there will almost surely be massive unrest, probably focused, as always, in Port au Prince, the capital of Haiti.
At the end of such a letter, what could we say about hope that could balance the discouragement I’m sure you can sense in what I write? First and foremost is faith – [our] faith as well as the profound faith of Haitians in general. We do believe in a God who makes a way where there is no way – our God who sent our savior, Jesus Christ, to die on the cross, not only to demonstrate God’s profound solidarity with his chosen people, but also to completely and finally put an end to despair. Because we are Christ followers, we hope, and there is nothing that can separate us from that hope, from the constant renewal of that hope. As [we] and several crew members were heading south, into Port au Prince,... we passed through an area just north of the city of Mirebelais (Mee be lay) where the farmers have access to irrigation. In field after field as we traveled down the road, farmers were out in those fields transplanting rice, hoeing rice, irrigating rice. Just one day after Hurricane Ike had passed through, the fields were already moving from devastation into abundance, farmers moving from being victims to being the agents of their own resurrection. What a miracle. What a God.
Please be part of Haiti’s resurrection. Contributions for the crisis in Haiti may be sent to Presbyterian Disaster Assistance (PDA). Please write on the check “DR-000064 Haiti Emergency.” Mail it to:
Presbyterian Church (USA)
Individual Remittance Processing
P.O. Box 643700
Pittsburgh PA 15264-3700
December 18, 2008 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
December 17, 2008
27th Annual Public Interest Environmental Law Conference
DON’T FORGET TO MARK PIELC IN YOUR 2009 CALENDARS!
The 27th Annual Public Interest Environmental Law Conference
Solidarity! United Action for the Greener Good
February 26th – March 1st
University of Oregon School of Law
Read on for planning updates and reminders . . .
- Last day to submit panel
suggestions is January 15th, but the sooner the better, as our timeslots are
already starting to fill up. Go to http://www.pielc.org/pages/
- Submit artwork for PIELC 2009 posters and t-shirts now! Email submissions to firstname.lastname@example.org, or mail them to 1221 University of Oregon School of Law, Eugene, OR 97403, attn: LAW
- Coming in mid-January, our website will be updated with more travel, lodging, and childcare options than ever at www.pielc.org.
- Our confirmed keynote speakers are:
Katherine Redford – Co-Founder and US Office Director of Earth Rights International, is a graduate of the University of Virginia School of Law, where she received the Robert F. Kennedy Award for Human Rights and Public Service. She is a member of the Massachusetts State Bar and served as counsel to plaintiffs in ERI's landmark case Doe v. Unocal. Katie received an Echoing Green Fellowship in 1995 to establish ERI, and since that time has split her time between ERI's Thailand and US offices. In addition to working on ERI's litigation and teaching at the EarthRights Schools, Katie currently serves as an adjunct professor of law at both UVA and the Washington College of Law at American University. She has published on various issues associated with human rights and corporate accountability, in addition to co-authoring ERI reports such as In Our Court, Shock and Law, and Total Denial Continues. In 2006, Katie was selected as an Ashoka Global Fellow.
Riki Ott – Experienced firsthand the devastating effects of the Exxon Valdez oil spill—and chose to do something about it. She retired from fishing, founded three nonprofit organizations to deal with lingering social, economic, and harm, and wrote two books about the spill. Sound Truth and Corporate Myths focuses on the hard science-ecotoxicology, and the new understanding (paradigm shift) that oil is more toxic than previously thought. Not One Drop describes the soft science--the sociology of disaster trauma, and the new understanding that our legal system does not work in cases involving wealthy corporations, complex science, and class-action. Ott draws on her academic training and experience to educate, empower, and motivate students and the general public to address the climate crisis and our energy future through local solutions. Ott lives Cordova, Alaska, the fishing community most affected by the disaster.
Stephen Stec – Adjunct Professor at Central European University (HU) and Associate Scholar at Leiden University (NL). As well as the former head of the Environmental Law Program of the Regional Environmental Center (REC), Stec is one of the authors of The Aarhus Convention Implementation Guide and main editor for the Access to Justice Handbook under the Aarhus Convention. The subject of the Aarhus Convention goes to the heart of the relationship between people and governments. The Convention is not only an environmental agreement; it is also a Convention about government accountability, transparency and responsiveness. The Aarhus Convention grants the public rights and imposes on parties and public authorities obligations regarding access to information and public participation and access to justice.
Fernando Ochoa – Legal Advisor for Pronatura Noroeste a Mexican non-profit organization and the Waterkeeper Program for the Baja California Peninsula, and founding member and Executive Director for Defensa Ambiental del Noroeste (DAN), an environmental advocacy organization. Mr. Ochoa has helped establish more than 60 conservation contracts to protect more than 150 thousand acres of land in Northwest Mexico. As the Executive Director of DAN, Mr. Ochoa has successfully opposed several development and industrial projects that threatened ecosystems in the Sea of Cortes and the Baja California Peninsula, having saved critical habitat for Gray Whales, Whale Sharks and other endangered species. His work has set important legal precedents on environmental law in order for local communities to gain participation in decision making processes, transparency and access to justice.
Claudia Polsky – Deputy Director of the Office of Pollution Prevention and Green Technology (P2 Office) in California’s Department of Toxic Substances Control (DTSC). The P2 Office is central to the implementation of new (2008) legal authority that gives California expansive ability to regulate toxic chemicals in consumer products. Instead of focusing on cleanup of past pollution -- the historic emphasis of DTSC -- the P2 Office looks to the future by preventing the use of toxic materials in consumer products and industrial operations. Ms. Polsky's duties include implementing California’s Green Chemistry Initiative, overseeing hazardous waste source-reduction programs, and working with staff engineers to evaluate and deploy new environmental technologies that reduce the need for toxic chemicals. The Office's work involves interaction with stakeholders as diverse as electronics manufacturers, breast cancer activists, analytical chemists, and venture capitalists. Before joining DTSC, Ms. Polsky worked for the California Department of Justice, Earthjustice, Public Citizen Litigation Group, and The Nature Conservancy. She holds an undergraduate degree from Harvard University, and a J.D. from Boalt Hall School of Law, where she was Editor in Chief of Ecology Law Quarterly. She is also a former Fulbright Scholar to New Zealand, receiving a Masters of Applied Science in Natural Resource Management.
Gail Small – The director of Native Action, an environmental justice organization in Lame Deer, Montana. Small's political engagement in energy issues began in the early 1970s, when she and other high school students were sent by the tribal government to visit coal extraction sites on the Navajo Reservation and in Wyoming, after the Bureau of Indian Affairs (BIA) signed leases opening the Northern Cheyenne Reservation to strip-mining. Small later served on a tribal committee that successfully fought for the cancellation of the BIA coal leases. She received her law degree from the University of Oregon and formed Native Action in 1984. Her work at Native Action includes litigation, drafting tribal statutes, and creating informational resources for tribal members.
Derrick Jenson – bio coming soon
SEE YOU THERE!
The Conference Co-Directors
Questions? Suggestions? Comments? email email@example.com
December 17, 2008 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
December 02, 2008
CGD Contribution to Development Index - Environment
Go check out the Center for Global Development's 2007 Commitment to Development Index page. Its got some great graphics that you have to see to appreciate. Unsurprisingly, EU countries lead the way on the Center for Global Development's index of commitment to environmentally sustainable development and the US trails the pack, scoring under 3 on a 10 point scale, while EU countries tend to score 6 or above with Norway near 9. Center for Global Development Commitment to Development Index
December 2, 2008 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
November 18, 2008
Bush Administration Land Mines the Interior Department, EPA, and Other Environmental Agencies
The Washington Post reports that the Solicitor of the Interior Department has shifted half a dozen key political appointees – including Robert Comer known for his opposition to the roadless rule and a questionable grazing agreement as well as Matthew McKeown, a mining industry darling – into senior civil service posts. These transfers, called "burrowing," allows political appointees to stay in the government and create obstacles to changing policy direction. Perhaps the practice should be called "land-mining," given its potential for derailing the peaceful transfer of power:
Between March 1 and Nov. 3, according to the federal Office of Personnel Management, the Bush administration allowed 20 political appointees to become career civil servants. Six political appointees to the Senior Executive Service, the government's most prestigious and highly paid employees, have received approval to take career jobs at the same level. Fourteen other political, or "Schedule C," appointees have also been approved to take career jobs. One candidate was turned down by OPM and two were withdrawn by the submitting agency. The personnel moves come as Bush administration officials are scrambling to cement in place policy and regulatory initiatives that touch on issues such as federal drinking-water standards, air quality at national parks, mountaintop mining and fisheries limits.
As the Washington Post goes on to report, the practice is not an invention of the Bush administration. However, there has seldom been so striking a change in public sentiment between the 2004 Bush re-election and the precipitous decline in public regard for Bush as manifest in the Obama "tsunami" -- and thus so much reason to jettison the flotsom and jetsom of the Bush years.
The practice of placing political appointees into permanent civil service posts before an administration ends is not new. In its last 12 months, the
administration approved 47 such moves, including seven at the senior executive level. Federal employees with civil service status receive job protections that make it very difficult for managers to remove them...In a report dated Oct. 13, 2004, Interior's inspector general singled out Comer in criticizing a grazing agreement that the Bureau of Land Management had struck with a Wyoming rancher, saying Comer used "pressure and intimidation" to produce the settlement and pushed it through "with total disregard for the concerns raised by career field personnel." McKeown -- who as
's deputy attorney general had sued to overturn a
administration rule barring road-building in certain national forests -- has been criticized by environmentalists for promoting the cause of private property owners over the public interest on issues such as grazing and logging....One career Interior official, who spoke on the condition of anonymity so as not to jeopardize his position, said McKeown will "have a huge impact on a broad swath of the West" in his new position, advising the Bureau of Land Management and the Fish and Wildlife Service on "all the programs they implement." Comer, the official added, will help shape mining policy in his new assignment. "It is an attempt by the outgoing administration to limit as much as possible [the incoming administration's] ability to put its policy imprint on the Department of Interior," the official said...But environmental advocates, and some rank-and-file Interior officials who spoke on the condition of anonymity for fear of hurting their careers, said the reassignments represent the Bush administration's effort to leave a lasting imprint on environmental policy...."What's clear is they could have done this during the eight years they were in office. Why are they doing it now?" said Robert Irvin, senior vice president for conservation programs at Defenders of Wildlife, an advocacy group. "It's pretty obvious they're trying to leave in place some of their loyal foot soldiers in their efforts to reduce environmental protection."
November 18, 2008 in Agriculture, Air Quality, Biodiversity, Climate Change, Economics, Energy, Environmental Assessment, Forests/Timber, Governance/Management, Law, Mining, North America, Sustainability, US, Water Quality, Water Resources | Permalink | TrackBack
November 04, 2008
Here are some predictions/picks on the Cabinet positions of most significance to environmental matters according to Politico's semi-official leaks. My picks and comments are in green.
Attorney general: Virginia Gov. Tim Kaine; Eric Holder, who was deputy AG under Clinton
and is now with Covington & Burling and led Obama’s vice presidential
search; Massachusetts Gov. Deval Patrick; Arizona Gov. Janet Napolitano. Odds on favorite is Holder
Supreme Court nominee: Washington superlawyer Robert Barnett; legal scholar Cass Sunstein; Massachusetts Gov. Deval Patrick; 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor of New York; Elena Kagan, dean of Harvard Law School. Consensus is it would most likely be a woman. First nominee has got to be a woman - Kagan is smart and has credibility, but this is a much shorter list than Obama will look at.
Secretary of State: New Mexico Gov. Bill Richardson; Sen. John F. Kerry (D-Mass.); Sen. Richard Lugar (R-Ind) State is too important to give to a Republican, Kerry's too valuable in the Senate, and Richardson was UN Ambassador so he knows international diplomacy
Environmental Protection Agency administrator: Former Sen. Lincoln Chafee (R-R.I.); Kathleen
McGinty, former head of the Pennsylvania Environmental Protection Agency Again, McGinty is an odds on favorite who knows her stuff
Commerce secretary: Penny Pritzker, Kansas Gov. Kathleen Sebelius, Sen. Olympia Snowe (R-Maine) Need some Republicans and Olympia Snowe is a liberal one; although she's more valuable in the Senate. So maybe one of the non-environmental positions will go to a Republican and Obama will stick with a Democrat. I'd take Sebelius -- she's articulate and mid-Western.
Secretary of the Interior: Rep. Jay Inslee (D-Wash.), Robert F. Kennedy Jr. This is the position most likely to go to someone who hasn't been in the running.
Secretary of Energy: California Gov. Arnold Schwarzenegger (R), Sen. Jeff Bingaman (D-N.M.); My pick would be Lincoln Chafee, a liberal Republican who understands environmental issues as well as energy issues. Again, Bingaman's too valuable in the Senate.
Secretary of Agriculture: Former Iowa Gov. Tom Vilsack, Rep. Collin Peterson (D-Minn.) Vilsack is odds on favorite.
November 4, 2008 in Agriculture, Air Quality, Biodiversity, Climate Change, Economics, Energy, Forests/Timber, Governance/Management, International, Mining, North America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack
November 03, 2008
If Bretton Woods is Dead, Now what?
Here's Kevin Gallagher's answer:
Bretton Woods is dead
World leaders must commit to forming new international organisations better suited to solving the economic crisis
Monday November 03 2008 12.00 GMT
President Bush has taken a welcome
step by inviting the G-20 to Washington
on November 15 to discuss the global financial crisis. This meeting should put in place a stability package that includes the developing countries and lays the groundwork for the creation of a new multilateral financial architecture.
Over the past five years, GDP per capita in the world's developing economies has been rising faster than in rich countries for the first time in history. According to statistics released by the World Bank last week, the developing world has pulled 232 million people over the global poverty line of $2.50 per day since 1999.
These gains in economic growth and
poverty alleviation are the result of an economic model that
significantly deviates from the Washington Consensus. Nations like China, India, South Africa and Brazil all have
recognised that markets and trade are important for development, but they have
also shown the world that markets must be guided by appropriate governmental
policy. In the World Trade Organisation, where each nation has an equal
vote, the developing world has worked hard to preserve the ability to deploy
the mix of state and market policies that have been working for them.
Until a week ago it was thought that poorer nations were "de-coupled" from the current economic crisis because they had piled up reserves and their banks weren't heavily involved in mortgage markets. Now it is clear that the crisis, which was not of their making, is at their doorstep.
Much of the economic boom in the developing world was fueled by commodities exports. Demand for exports has declined as prospects of a recession increase, causing a sharp decline in the prices of those exports. Global credit, which is crucial to exporters, has all but frozen. Banks in developing countries weren't heavily involved in the mortgage business, but they did swap with and borrow money from banks in developed countries, creating a credit squeeze for the local economy as well. If that wasn't enough, rising interest rates and credit tightening has strengthened the dollar, and currencies across the developing world are losing value.
World leaders should swiftly
coordinate interest rate cuts and provide massive liquidity to markets in
developing countries. New capital should also come from the larger developing
Developing countries can't do this on their own. Many of these nations simply don't have the capital. Some have reserves from the commodity boom but are draining them to save their currencies. What's more, when developing nations unilaterally mimic a rich country's methods of dealing with this crisis by nationalising private assets, such actions can instill even less confidence in a developing country's markets and provoke more capital flight.
New capital can be used in the short term to fend off runs on their currencies. Just as important, new credit and capital can be coupled with coordinating governmental policies to build the productive capacities of promising and strategic domestic enterprises and toward domestic consumers to stimulate demand. With jobs becoming scarce and food prices still high, small farmers are also among the strategic sectors worthy of government attention.
Non-OECD countries are now half the global economy and more than half the destination of OECD exports. Maintaining the growth in developing countries not only saves them from meltdown but can also help rich countries dig themselves out of a downturn with new demand.
Under no circumstances should a developing country's capital infusion have IMF-like conditionalities. Historically, the IMF often gave loans only if recipients deregulated markets, privatised industries, slashed government budgets and devalued currencies. A new book, “Development Redefined: How the Market Met Its Match” by Robin Broad and John Cavanagh, documents how IMF conditionality often caused irreversible social and environmental costs on recipient countries and created a global backlash against the IMF and other international institutions. There is simply no legitimate reason for these conditionalities today. Indeed, it was the deregulation in rich countries that helped get us into this economic mess in the first place.
Finally, the global summit should be the first step toward a "Bretton Woods II" that supports multilateralism and policy diversity as core principles. This summit must be dedicated to setting counter-cyclical capital standards, regulating all parts of financial markets (including the rating agencies) and creating a credible lender of last resort. Under the current system, Luxembourg, the Netherlands and Belgium have more votes in the IMF than China, India and Brazil. A truly multilateral organisation must have a one country-one vote system. Without a new infusion of capital and a multilateral approach to reform, the November meetings will be one step forward, two steps backward.
October 15, 2008
Strategic Trade - An Opening for Sustainability
Yesterday the Guardian published an opinion piece by Kevin Gallagher (Washington Consensus Dead?) on Nobel Laureate Paul Krugman's work on strategic trade policy, pointing out that his Nobel Prize is the nail in the coffin of the free trade "Washington consensus." Krugman explains why it is rational for governments to engage in strategic use of tariffs and subsidies in order to create a niche industry. The same sort of strategic trade policy makes it rational for governments to engage in strategic use of tariffs and subsidies to support ecological sustainability and social well-being. Perhaps the pendulum will swing against the free traders enough so that we can protect the global environment through trade and other economic sanctions against nations unwilling to act in a socially and environmentally responsible manner.
Last Friday the New York Times quoted the World Bank as saying "There's no question the Washington consensus is dead," indeed it "died at the time of the $700bn bail-out." If the bail-out is death, then awarding Paul Krugman the Nobel prize for economics is the nail in the coffin.
Paul Krugman did not win the Nobel for his popular critiques of Bush-era economic policy in his New York Times column, though the column no doubt helped raise his profile outside the economics profession. The Nobel committee cited Krugman's theoretical contributions to the economics of international trade, the policy implications of which fly in the face of the Washington consensus ( where the mantra is to free up trade every chance you get).
Among Krugman's achievements in the field of international trade is "strategic trade policy". In this work Krugman (and others) showed that tariffs and subsidies to domestic industries can divert profits away from highly concentrated foreign firms and increase a nation's income. Though Krugman himself shies away from prescribing such policy, the textbook example of strategic trade theory is the choice by the Brazilian government to subsidise and develop the aircraft company Embraer. The free-trade theories espoused by the Washington consensus would warn Brazil of the high cost of subsidisation. To free traders, Brazil should focus on its advantage in agricultural products and forget about climbing the manufacturing ladder. Strategic trade theory helps explain why Brazil was willing to gamble in the short term to become one of the finest aircraft manufactures over the long term. They squeezed foreign firms out of the market and carved out a global niche for themselves.
In another classic book, Development, Geography, and Economic Theory, Krugman argued that the government should also play a role in connecting beneficiaries of strategic trade policy to the overall economy. Evoking the work of economists such as Albert O Hirschman and Paul Rosenstein Rodan, Krugman argued that developing countries often needed a "big push" of coordinated government investments to help strategic industries get off the ground and to link the growth of such industry to the economy as a whole.
Problem is, today's trading system is out of whack with these frontier issues in economic thought. In a study published by Boston University's Pardee Centre for the Study of the Longer-Range Future, trade lawyer Rachel Denae Thrasher and I examined the extent to which the World Trade Organisation (WTO) agreements, European Union trade agreements, and United States trade agreements bit into a nation's ability to deploy strategic trade and other industrial policies to benefit from the globalisation process.
We find that in general the world's trading system makes it much more difficult for nations to craft strategic trade and industrial policies for growth and development. Indeed, enshrined in virtually all trade agreements is the "national treatment" idea that says a nation may not treat its domestic industries any differently than foreign ones. That may make sense when rich nations compete against each other, but in a world where 57.6% of the population lives on less than $2.50 per day, one size can't fit all. This restriction is accentuated in provisions for foreign investment, intellectual property, and subsidies.
Interestingly however, we find that there is more "policy space" for innovative growth strategies under the WTO than under most regional trade agreements – especially those pushed by the US. In fact, we find that US-style trade agreements are the most severe in constraining the ability of developing countries to deploy such policy. EU agreements, interestingly, tend to have the same policy space as the WTO.
It doesn't make sense that the World Bank and (implicitly) the Nobel committee are declaring the death of the Washington consensus when the US is choking the ability of nations to use policies that are gaining increasing legitimacy in theory and practice. Change is in the air. As we know in the aftermath of the financial crisis, the US has justified – like never before – a strong role for government in economic affairs. And, of the two presidential candidates, Obama has expressed concern over the direction of US trade policy and has pledged to rethink it. Perhaps these events will make strategic trade and industrial policy rise again.
October 15, 2008 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Climate Change, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Mining, North America, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack
September 17, 2008
Palin can't get her energy facts straight
The Washington Post Fact Checker Michael Dobbs has awarded Sarah Palin four Pinocchios (the worst lie possible) for continuing to claim that she oversees "nearly 20 percent of the U.S. domestic supply of oil and gas" as Governor of Alaska. Fact-checker Post on Palin The real figure is 7.4%. Besides which, the whole claim is complete campaign hyperbole because no Governor has substantial responsibility for managing production of oil and gas on federal, tribal, and private lands. The scary thing is that Palin has been touted by John McCain as the most knowledgable person in America on energy issues. That's a good measure of McCain's ability to assess and recruit 1st class talent if he became president.
As Dobbs observed Palin has been having trouble getting her basic energy statistics straight.
Last week, Sarah Palin told Charlie Gibson of ABC News that her state, Alaska, produced "nearly 20 percent of the U.S. domestic supply of energy." Yesterday, she told a campaign rally in Golden, Colorado, that she had been responsible for overseeing "nearly 20 percent of the U.S. domestic supply of oil and gas." Both claims are way off.
While Alaska is a leading producer of crude oil, it produces relatively little natural gas, hardly any coal, and no nuclear power. Its share of oil production has been declining sharply, and now ranks lower than Texas and Louisiana. As the following table shows, Alaska is the ninth largest energy supplier in the United States, accounting for a modest 3.5 percent share of the nation's total energy production.
|State||Total production||Percent of U.S. Total|
|Texas||10,829 Trillion Btu||15.6|
SOURCE: Energy Information Administration
After the non-partisan Factcheck.org pointed out Palin's error in her interview with Gibson, the Alaska governor revised her claim somewhat, limiting it to oil and gas. But data compiled by the Energy Information Administration contradict her claim that she oversees "nearly 20 percent" of oil and gas production in the country. According to authoritative EIA data, Alaska accounted for just 7.4 percent of total U.S. oil and gas production in 2005.
It is not even correct for Palin to claim that her state is responsible for "nearly 20 percent" of U.S. oil production. Oil production has fallen sharply in Alaska during her governorship. The state's share of total U.S. oil production fell from 18 percent in 2005 to 13 percent this year, according to the EIA.
Blog Action Day is October 15th: Blog on Global Poverty
Blog Action Day is October 15th. This year the topic is global poverty. On Blog Action Day, bloggers commit to discussing the topic from the special perspective that their blog brings to the issue. As it happens, Blog Action Day will coincide with my presentation at the 6th IUCN Academy of Environmental Law Colloquium in Mexico City on Alleviating Extreme Poverty. I will be speaking on Chartering Sustainable Corporations as a means to address extreme poverty.
For all of you bloggers out there, be sure to register and post your thoughts on global poverty on October 15th. For information and registration, visit Blog Action Day
September 15, 2008
Hurricanes Reach Higher Wind Speeds Due to Ocean Warming -- Another Climate Change Effect
A June 27 letter to Nature 455, 92-95 (4 September 2008) | doi:10.1038/nature07234 from James Eisner, James Kossin, and Thomas Jagger, suggests that Atlantic tropical hurricanes are getting stronger due to increased ocean temperatures. While the same phenomenon is observed throughout the world, the effects are strongest in the tropical Atlantic. Their study does not indicate necessarily that there are more hurricanes or stronger hurricanes in terms of average wind speed; instead, it is the maximum intensity of the hurricanes that is increasing -- in other words, their destructive potential.
Atlantic tropical cyclones are getting stronger on average, with a 30-year trend that has been related to an increase in ocean temperatures over the Atlantic Ocean and elsewhere1, 2, 3, 4. Over the rest of the tropics, however, possible trends in tropical cyclone intensity are less obvious, owing to the unreliability and incompleteness of the observational record and to a restricted focus, in previous trend analyses, on changes in average intensity. Here we overcome these two limitations by examining trends in the upper quantiles of per-cyclone maximum wind speeds (that is, the maximum intensities that cyclones achieve during their lifetimes), estimated from homogeneous data derived from an archive of satellite records. We find significant upward trends for wind speed quantiles above the 70th percentile, with trends as high as 0.3 0.09 m s-1 yr-1 (s.e.) for the strongest cyclones. We note separate upward trends in the estimated lifetime-maximum wind speeds of the very strongest tropical cyclones (99th percentile) over each ocean basin, with the largest increase at this quantile occurring over the North Atlantic, although not all basins show statistically significant increases. Our results are qualitatively consistent with the hypothesis that as the seas warm, the ocean has more energy to convert to tropical cyclone wind.
September 10, 2008
IEA Sees Potential Long-term Reduction in US Oil Demand
The International Energy Agency (IEA link) cut its estimate for global oil demand today based on the changes Americans are making in their lifestyles in response to high gasoline prices and the recession. North American demand fell 5.3% and 2.9% in July, part of a seven month decline in US demand. This decrease in demand may be exacerated by OPEC's reduced production: 715,000 barrels per day in August and September, reducing OPEC's production ceiling from 32.2 million barrels per day to 28.8 million barrels per day. This appears to be a response to oil prices failing towards $100 per barrel in August. IEA seemed to be warning OPEC that any attempt to maintain oil prices over $100 per barrel would likely cause long-term changes in behavior and purchasing habits undercutting oil demand in OECD countries and Asian countries, such as Taiwan, Thailand, the Phillipines and Malaysia, are reducing subsidies that have fueled demand. The extent of reduction in demand may depend upon the extent of China's supposed economic slowdown.
August 29, 2008
ExxonMobil agrees to pay most of the reduced Exxon Valdez damage award - about 3 % of its most recent quarterly profits
This week ExxonMobil and plaintiffs' lawyers in the Exxon Valdez case concluded a settlement to pay out most of the $507.5 million maximum damages award set by the U.S. Supreme Court in June. August 26, 2008 AK Daily news Exxon will pay $383.4 million to be distributed to 33,000 commercial fishermen and others who sued after the Exxon Valdez tanker spilled almost 11 million gallons of oil in Prince William Sound in 1989. Exxon continues to battle with plaintiffs over another $70 million and potential interest of $488 million on the Supreme Court judgment. The figures don't add up because ExxonMobil will reimburse itself $54 million -- the largest single payout -- under terms of a side agreement Exxon made in 1991with seven Seattle-based fish-processing companies. The $ 383.4 million payment represents roughly 3 % of $11.7 BILLION profits ExxonMobil garnered last quarter, the largest corporate profit ever gained in history. 7/31/08 AP report on ExxonMobil 2d quarter profits At this profit rate, ExxonMobil will pay roughly 8/10th of 1% of its annual profits. Oh, I'm sure that ExxonMobil is quaking in their boots about ever being so negligent again. The average American family would pay a larger fine (as a percentage of their take home income or even their total income) for tossing a gum wrapper out the window of a car. Litter fines What's the take home message of the Supreme Court....maybe litter fines are unconstitutionally excessive? They might actually deter littering by the likes of ExxonMobil! If ExxonMobil had been fined at the rate of $1000 per cubic foot (the Washington State fine for littering more than a cubic foot of litter), ExxonMobil would have owed $ 1.47 BILLION. Forgive me. I'm still a bit irritated by the Supreme Court's sense of justice in the damages case.
July 14, 2008
1/3 of coral reef building species in danger of extinction
One-third of coral reef-building species are in danger of extinction -- according to a recent study by Kent Carpenter. He reviewed 704 reef-building coral species and rated them according to International Union for Conservation of Nature (IUCN) standards of extinction risk. One-third of those species fall into the threatened or near-threatened categories, which are considered at increased risk for extinction. Science.
The highest concentration of jeopardized species lives in two areas: the Caribbean Sea and the western Pacific "Coral Triangle," which spans Indonesia, Malaysia, the Philippines, and nearby areas. Using current figures and extrapolations from historical data, the researchers estimated that in the 1990s less than 5% of the 704 species would have been placed in the threatened or near-threatened IUCN categories.
Science reports on new hurricane model
ScienceDaily (July 9, 2008) — A new mathematical model indicates that dust devils, water spouts, tornadoes, hurricanes and cyclones are all born of the same mechanism and will intensify as climate change warms the Earth's surface. HT Eric, Climate Change Group
University of Michigan professor Nilton Renno and UM research scientist Natalia Andronova have created a generalization of Bernoulli's equation to address all spiralling storms. It more accurate calculates the maximum expected intensity of spiraling storms based on the depth of the troposphere and the temperature and humidity of the air in the storm's path. The model improves upon current thermodynamic models by using actual measurements of the energy feeding a storm system and friction slowing it down rather than make simplifying assumptions about those variables.
"This model allows us to relate changes in storms' intensity to
environmental conditions," Renno said. "It shows us that climate
change could lead to increases in how efficient convective vortices
are and how much energy they transform into wind. Fueled by warmer
and moister air, there will be stronger and deeper storms in the
future that reach higher into the atmosphere."
The model predicts that each increase of 3.6 degrees Fahrenheit will increase storm intensity by at least several percent. The destruction power of intense storms could increase by 10%. This prediction provides theoretical support for the empirical observations of scientists who suggest that hurricance intensity has increased as sea surface temperatures have risen.
June 28, 2008
SCOTUS grants cert -- June 27, 2008
Coeur Alaska Inc. v. Southeast Alaska Conservation, No. 07-984, consolidated with Alaska v. Southeast Alaska Conservation, No. 07-990. Are process wastewater discharges from mining operations governed by the drege-and-fill permit scheme operated by the Army Corps of Engineers under Section 404 of the Clean Water Act or are they covered by effluent limitations under the National Pollutant Discharge Elimination System, which are within the Environmental Protection Agency's jurisdiction?