Monday, December 3, 2012
Rethinking Sustainable Development, Environmental Law Collaborative Essay #1: Transparency in Support of Sustainability
Including only those activities over which individuals have substantial and direct control, emissions from individuals and households constitute 30-40% of U.S. greenhouse gas emissions; individuals are responsible for an even larger volume of emissions when indirect emissions, such as the energy required to manufacture and transport purchased goods, are included. The United States has, however, infamously approached international environmental negotiations adamant that “the American lifestyle is not up for negotiation.” This attitude can persist in part because the environmental harms occasioned in support of U.S. lifestyles are often most acutely experienced elsewhere, in the countries that produce the inexpensive goods that we consume. We “let them eat pollution” so that we need not and, in the process, prop up unsustainable lifestyles, obscure the environmental harms these lifestyles occasion, and quiet potential objections through the economic benefits that flow to the developing world.
At least in one sense, climate change does not so readily permit this sleight of hand. The climate harms occasioned by the greenhouse gas emissions associated with the production and supply of goods cannot be relegated to the country of manufacture. Climate change thus presents an opportunity to force a reckoning with the unsustainable practices that underlie U.S. lifestyles. In another sense, however, greenhouse gas emissions are not readily visible and frequently driven indirectly by lifestyle; there is thus a danger that the connection between U.S. lifestyles, underlying unsustainable practices, and resulting climate harms will remain obscured, underscoring the importance for law and policy to promote transparency to reveal the greenhouse gas emissions attributable to individuals. Possibilities for creating such transparency include carbon footprint labeling of goods, smart meter technology, individual carbon footprint calculators, and reorienting domestic climate policy to better engage individuals. If achieved, this transparency could support a new openness to reimagining more sustainable lifestyles.
Ultimately, we must build communities, infrastructure, and systems that support sustainable lifestyles; proposals abound for how this can occur and some communities have made significant progress. It will, however, require significant will and commitment to give effect to the insights and specific policies of sustainability. Generating the commitment—personal, public, political—necessary to achieve and maintain this goal may, in the United States, first require a revelation about how current lifestyles occasion environmental harms, including through greenhouse gas emissions. One challenge for legal scholars, then, is how to use law and policy to reveal, or at least not obscure, the environmental harms occasioned by our lifestyles.
-- Katrina Fischer Kuh
Saturday, December 1, 2012
For the next three weeks, we are going to be doing something a little different here at Environmental Law Profs. We are going to be posting a series of 15 short essays all addressing the theme of sustainability and climate change. These essays that will appear each week day from now until Christmas are the product of discussion of the Environmental Law Collaborative.
A few hardy souls, which include some of the bloggers here at Environmental Law Profs, formed the Environmental Law Collaborative with the goal of engaging environmental law scholars in the thorny issues of the day. In the summer of 2012, scholars gathered in the woods of Connecticut to debate the value of scholarly research and the potential of legal literature to effect social and environmental change. With visions of Airlie House and armed with the principles of collaboration and the necessities of ecological fragility, the group sought to foster progress toward an adaptive, conscious, and equitable governance of actions that impact local and global ecologies.
This inaugural Workshop addressed the re-conceptualization of sustainability in the age of climate change. Climate change is forcing developments in the norms of political, social, economic, and technological standards. As climate change continues to dominate many fields of research, sustainability is at a critical moment that challenges its conceptual coherence. Sustainability has never been free from disputes over its meaning and has long struggled with the difficulties of simultaneously implementing the “triple-bottom line” components of environmental, economic, and social well-being. Climate change, however, suggests that the context for sustainable decision-making is shifting. Accordingly, the Workshop focused on examining the re-conceptualization of sustainability in the age of climate change, including (but not limited to) framing the term in climate change discussions; reaching sustainable practices across disciplines such as law, economics, ethics, and the hard sciences; and conceptualizing the role of sustainability in adaptation and resiliency preparation.
The event produced an intensive and collaborative assessment of sustainability in the age of climate change. The essays that will be appearing this month examine the process of adapting the principles and application of sustainability to the demands of climate change, including (but not limited to) framing the term sustainability in climate-change discussions; coordinating sustainable practices across disciplines such as law, economics, ethics, and the hard sciences; and conceptualizing the role of sustainability in formulating adaptation and resiliency strategies. Furthermore, these essays also contemplate the role of law and legal systems in crafting effective climate-change-adaptation strategies and consider feasible strategies in the context of specific examples.
In the coming weeks, we will post contributions from Rebecca Bratspies, Michael Burger, Betsy Burleson, Robin Craig, David Driesen, Alexandra Harrington, Keith Hirokawa, Sarah Krakoff, Katy Kuh, Stephen Miller, Pat Parenteau, Jessie Owley, Melissa Powers, Jonathan Rosenbloom and Shannon Roesler.
Please tune in, comment freely and help us further the conversation on sustainability and climate change.
-- Betsy Burleson, Michael Burger, Keith Hirokawa and Jessie Owley
Thursday, November 8, 2012
China Environmental Experiences #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity
This essay, the seventh in my series about the environmental experiences of an environmental law professor in China, continues the discussion I began last time about how different underlying environmental philosophies held by American and Chinese people can lead to different approaches in environmental governance. (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.) The previous essay addressed differences in the human relationship to nature, and this one addresses differing approaches to conservation, stewardship, and scarcity. The final installation will conclude with thoughts about some ancient philosophical roots of these differences.
I began the previous essay by acknowledging the delicacy of exploring underlying cultural differences that correspond to some the environmental experiences I’ve written about in this series. I noted how exquisitely careful one must be in discussing cultural differences, given the inherent shortfalls of any individual’s limited perspective and experience. Yet these differences relate so directly to the challenges of international environmental governance and intercultural understanding generally that I thought it important to discuss them, notwithstanding the hazards. So I offered the important qualification, which I share here once again, 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.
From there, 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.
Conservation. Take our shared goal of conserving natural resources. Both countries are developing policies to discourage the waste of scarce natural resources, and on many fronts—such as its first steps toward nationally pricing carbon—China is outperforming the U.S. (Then again, China also built a coal-fired power plant a week in recent years, or more.) But behind good goal-setting, both countries face cultural-philosophical challenges at the level of policymaking and implementation.
On the example of climate policy, the American challenge has been achieving a consensus for rational policy. Part of the failure reflects an ideologically divided nation, but other parts reflect more widely shared American ideologies. For example, American economists have long argued that a national carbon tax would be more economically efficient than the cap-and-trade proposals that have had more political traction (to the extent that any GHG regulation had traction in Congress).
Yet even when climate policy was a hot topic in Washington, the carbon tax was considered a dead-letter given the popular resistance to taxes that reflects a libertarian streak in the American cultural consciousness. The (relative) enthusiasm for emissions-trading schemes, wetland mitigation banking, and other market-based environmental reforms reflect widespread cultural regard for free market ideals—even when these ideals are more poetry than reality in operation. (There hasn’t been enough consensus to have translated those ideals into actionable climate policy, nor are they universally shared in the U.S.—but they were circulating widely when Waxman-Markey passed the House in 2009. [Photo courtesy of The Chicago Dope blog.]) Yet another cultural-philosophical hurdle for American climate policymaking—and one pointedly not shared in China—is the scientifically unexplainable skepticism with which increasing numbers of Americans seem to regard science itself (or, perhaps, scientists).
In China, where policymaking isn't usually the obstacle, challenges will likely have more to do with ground-level implementation. In addition to ongoing competition with economic development priorities and the problem of translating centrally formulated mandates into locally implemented policies, there is also the problem of widespread public indifference--and not specifically to climate issues. In present-day urban China (as was equally true in the U.S. a few decades earlier), you don’t see a lot of conservation-oriented behavior by average citizens—at least not without an immediate economic incentive or legal requirement. Solar water heaters are popular, but mostly because they are relatively inexpensive (and in some cases, mandatory). Buses, taxis and other municipal fleets increasingly run on publicly incentivized natural gas. Public transportation is very well-developed in comparison to American cities, but mostly because people are only just beginning to afford cars (and unprecedented levels of traffic are developing as China’s emerging middle class gets behind their own wheels).
Yet where the immediate incentives for conservation end, so in general does public compliance—and at least for now, without regard to the kinds of generational or educational dividing-lines that often accompany diverging conservation habits among Americans. China does have a nascent recycling program for deposit bottles and cans, but it appears nearly entirely staffed by those on the poorest margin, who sort through others’ trash looking for recyclables on which there is a deposit. Goodness knows we see the same phenomenon in American cities, but in addition to our homeless entrepreneurs, many Americans participate in curbside collection of non-deposit recyclables without sanctions or incentives. From kindergarten forward, most American children are inculcated with recycling values as a societal good until it becomes part of their social conscience (whether or not they always follow it).
In China, the government is attempting to do something similar, with an all-out public information campaign to usher China toward the "Circular" or “Recycling Economy”—the Chinese version of “reduce, re-use, and recycle” writ large. The effort encourages all citizens to see the relationship between their everyday behaviors and environmental well-being, buttressed by a national law that exhorts sustainable practices by local government and the businesses community (though with few enforcement provisions). In public places, the government frequently places signs reminding people that “environmental protection is everyone’s responsibility” (the accompanying one is from May Fourth Square in downtown Qingdao). Even the Tsingtao (“Qingdao”) Beer Brewery & Museum includes a full exhibit on sustainability (including a full exposition of Rachel Carson's Silent Spring), notwithstanding its weak connection with the general subject-matter of the museum.
It’s good that Chinese leaders are beginning to take sustainability seriously, because there is much work to be done at the level of consciousness-raising. Sustainability certainly goes beyond the simple act of recycling, but it is a good index of public attitudes. And despite valiant attempts at public recycling cans conjoined to trash cans, most Chinese make no effort to differentiate between them, and both are routinely filled to capacity with identical mixes of trash. There was no recycling program in my neighborhood or at my university, and no paper recycling of any kind (my students were completely baffled by my repeated efforts to find a place to recycle news and copy paper). And as in the U.S., homes are often over-heated and under-insulated, engines are over-polluting and smokestacks are under-scrubbed, fertilizers and pesticides overused, products over-packaged, etc. There are many miles before Americans should soundly sleep on these matters either, but on the whole, fewer Chinese consider them a problem. The sustainability movement has not yet taken hold among public attitudes--though it is beginning to with rising consciousness of the direct human health effects of egregiously widespread air and water pollution.
Stewardship. Of course, it is perfectly understandable that many Chinese are still more pre-occupied with survival than sustainability, and that other development priorities still preclude advanced sustainability initiatives. A lack of sophisticated curbside recycling should not be surprising in a country still wracked with abject rural poverty, and the government deserves praise for its efforts to promote the Recycling Economy alongside other development initiatives. But here is where the effects of underlying, environmentally-relevant philosophies add a special challenge to the task of Chinese environmental governance. It appears that there is a less entrenched cultural tradition of environmental stewardship here as there is in other crowded nations, like Japan or many in Europe. Indeed, one feature of Chinese culture that often stands out to foreign visitors is the striking way that most Chinese differentiate between the care they take of the environment inside their own homes and the care they take of the environment beyond their front doors. The contrast is stark, and suggests potentially significant implications for the challenges of environmental governance in general.
Inside the home, Chinese people take immaculate care to maintain cleanliness and beauty. Shoes are often left at the front door. Walls and shelves are adorned with enchanting art and objects reflecting the majestic culmination of thousands of years of traditional Chinese culture: calligraphy, porcelain, paper cuttings, shadow puppets, poetry, landscape paintings, and the like. But outside that front door, the duty of care appears to end. Common doors, hallways, and stairwells in Chinese apartment buildings receive little attention from residents; empty walls are often cracked with peeling paint and crumbling cement in seemingly abandoned hallways that open surprisingly into those beautifully maintained dwellings once you cross the inner threshold. This may reflect other collective action problems relating to commonly-owned property, but it also reflects a widespread sense that what happens beyond the inner threshold is someone else’s responsibility.
Crossing the outer threshold onto the street reveals an even more dramatic difference. In many cities, trash can be found everywhere—heaped on the sides of buildings, and littering not only streets but mountain trails and otherwise beautiful beaches. Problems with consumer-product and water quality that I have previously written about feed into the overall trash problem. Easily-breakable products and legitimate fears of unclean re-usables compound the prevailing urban culture of disposability, leading to a stream of waste that is often unceremonially piled up around neighborhoods. A broken toilet and shards of glass have been piled outside our building for months, and it is only one of many such piles.
Here in Qingdao, our neighborhood market area is hosed down by a street cleaning truck every morning. I was surprised to hear this, because I would not have guessed this daily cleaning from looking at them in the afternoon—until I saw what they looked like in the morning beforehand: strewn with fish guts, corn husks, banana peels, discarded vegetable parts, used cooking oil, and every other kind of refuse that you can imagine left behind after the daily rush of morning street vendors. People discard these things on the street, knowing that the city will clean it up—and the city does a faithful job. But the hose can’t get to everything, and a fair amount of refuse accumulates in gutters and potholes. And there is no street-cleaner for the narrower village streets, forest parks, or beaches.
Just as in the U.S., some Chinese individuals admirably take it upon themselves to clean up after their fellow citizens. Even as I am dismayed to see so much trash along the mountain trails behind my neighborhood, I am heartened to see the small signs left by members of private groups who occasionally clear the area of litter. The China Daily reported movingly over the winter on the efforts of an elderly woman in Beijing who makes it her personal task to comb trash out of Tiananmen Square every day.
Nevertheless, while some conscientiously pick up their own trash and even that of others, many others routinely drop trash without thinking much about it. In many places, it’s a culturally permissible thing to do. We ourselves are trying to re-educate our four year-old to do otherwise after we watched him proudly demonstrate that he had learned at school how to peel his own banana—and then dropped the peel on the ground, as though it had always belonged there. Perhaps it came naturally to him to just drop it on the ground without thinking about it, because he sees this happening around him so often. Some leave water bottles and other garbage behind in buses and taxis, too—which is also common in the U.S. But what I haven’t seen outside China are the taxi drivers who clean up what passengers have left behind by simply scooping the trash out of their car and into the gutter of the street where they are parked.
Littering is a human cultural problem throughout the U.S. and the rest of the world, demonstrated by American smokers who continue to discard cigarette butts indiscriminately, long since cultural tolerance for this waned after the 1970s environmental movement. But in China, cultural permission to discard waste in public places extends beyond water bottles and cigarette butts, complicating the environmentalist message. Consider the entrenched Chinese tradition of encouraging children to use public streets while toilet-training. Chinese toddlers are weaned from diapers early—a great environmental good, given the obvious environmental problems associated with disposable diapers. In the U.S., for example, where the average baby goes through about 8,000 diapers, parents buy as many as 40 million disposable diapers a day (or more), most of which end up in landfills where they will hold their mummified loads for the next 500 years. But in China, toddlers wear pants with a split bottom, enabling children to squat to poo or pee wherever they happen to be when the urge hits. Which leads to different kinds of environmental problems.
I should be used to it after nearly a year, but I am always still surprised to emerge from our apartment to find a parent helping a squatting child unload beside the front gate. Small piles of poo on the sidewalk are commonplace, so we walk carefully, eyes cast down. I’ve seen parents allow their children to relieve themselves into large potted plants at airports. I once saw a child have an accident in the aisles of a big-box store, and while the child was immediately whisked away to be cleaned, the resulting pile was left behind for others to avoid. It’s not uncommon to see men urinating along streets and sidewalks, notwithstanding nearby public toilets erected to accommodate neighborhoods without indoor plumbing. A related tradition engaged in by both men and women is that of spitting on the streets and sidewalks, after expelling the product from deep within troubled-sounding lungs.
With so much Chinese ground thus anointed, the outside environment is generally (and correctly) viewed as a terribly unclean place. The American “five-second-rule” is humorously gross in the U.S., but unimaginable in China—because even indoor floors are trod upon by shoes that have walked through countless stages of decomposing goodness-knows-what. A Chinese student, eyes wide with horror, once asked me whether it was true that American students sit or even recline on campus lawns between classes. I laughed at the time, but months later would find myself cringing as a group of visiting American students sat to rest on the gracious exterior stairs of a provincial museum, and nothing I could say would dislodge them. Similarly, Chinese friends would gasp when I instructed my toddler to hold stair handrails, worried about what hands had been there before him, and what those hands might have touched. Their view—which I ultimately adopted—was that it was better for him to fall down the stairs than to allow whatever was on those railing onto his thumb, which inevitably drifts toward his mouth. By necessity, Chinese parents wean thumb-suckers incredibly early (and by whatever means necessary).
Here’s the thing. If you see the world outside your own home as a legitimate place to offload waste—even E. coli-laden human waste—how can this not extend to greater environmental management? If it’s culturally permissible to drop litter (and worse) on the street or the beach, why wouldn’t it be okay to release manufacturing waste into the river, or pipe it into the air?
The potential implications for environmental law are obvious. Because it’s not just an economic challenge for the government to convince industrialists not to pollute; in some important way, it’s also a cultural challenge. Professional polluters aren’t just doing it because it’s cheaper than the alternative. They are doing it because—at some level—it’s what they have always done, and without any moral misgivings.
Scarcity. The legacy of scarcity in an era of rapid economic development also factors in to environmental philosophy. Indeed, a discussion of scarcity provides an especially poignant point of contrast between Chinese and American approaches that reflect their different stages of economic development.
Let’s start by acknowledging the obvious: Americans are fortunate to have lived through a period in which most have not endured the scarcity regularly experienced by people in the developing world, and they should do better to remember that. My family and I are often ashamed by the patterns of conspicuous consumption in the United States, where ever bigger cars, houses, and other forms of cultural bling are marketed to consumers who enjoy far more than their fair share of world resources. Yet this year, we have also been perplexed by the contrasting patterns of consumption and waste that we have witnessed in China—from the trash piles of used disposables to the missing efforts to maintain buildings against the effects of weather and time. Especially in a developing country, where resources are comparatively scarce, why not conserve and maintain? Why not fix old things, rather than just tossing them aside for a new ones?
In puzzling over this question with some environmental faculty at Wuhan University, I learned how a nation’s developing status can also push in the opposite direction. One spoke of an experience decades earlier, in the pre-PowerPoint era, when he was using an overhead projector with transparencies to accompany his lecture. Something like a filament in the ancient projector blew, so everyone waited while the university repairman was called in. Using tweezers and tiny metallic wire, he got it working again. The man knew how to fix virtually anything—because he had to. At the time, there was no alternative but to fix things, over and over again. But now, in this age of emerging wealth, perhaps there is national pride in not having to fix things this way. For some, he suggested, it is a sign of growing status to be able to toss out the old rather than fix and maintain it indefinitely.
Similarly, several students once explained to me that their parents absolutely forbid them from licking their fingers when they ate—a good habit that they adhered to even at the local Kentucky Fried Chicken, a popular foreign restaurant chain in China. At first, I assumed this was a matter of good hygiene, and I regretted the manners my own child displayed (after all, KFC’s American slogan is “finger-lickin’ good!”). But I later learned the back-story: that these parents had come of age at a time where they sucked every last drop of grease from their fingers because there simply wasn’t enough food, and not a calorie could go to waste. Now, when their own children licked a tasty finger over a full plate of food, these parents would passionately bat the sticky fingers away from little mouths, proudly reminding them that they would never have to lick their own fingers for nourishment. They were not to do it, because doing it symbolized a desperation that the nation had triumphed over (at least in these urban areas) through economic development.
The cultural memory of extreme scarcity runs deep in China, and it is reflected in other curious cultural differences between China and the West. One possible example that often confuses foreign visitors is the way that Chinese tend not to queue. There is not a strong tradition of waiting in line for goods or services—so, for example, when the bus arrives, the crowd simply surges the door and people gradually push their way through, one by one. There are something like lines at street food stalls, but rules are relaxed and there is no hard order to them; if someone wants it badly enough, they can just insert themselves close to the counter. Even at the airport, as people wait to board the plane at the gate, many will queue, but others force their way through to the front as the group moves toward the plane. My Western sensibilities were often jarred by this behavior, but my Chinese friends mostly tolerated this with either patience or indifference. (Though I discovered how fully I had crossed over while escorting that delegation of American students through Beijing, frustrated by their halting efforts to politely advance through crowds while I soared through cracks and openings like a native…)
Why no tradition of lining up? One Chinese lawyer explained to me that this is just another response to the nation’s long history of extreme scarcity: in a world where there is never enough to go around, people long ago learned to grab for what they need. This tradition is changing with new cultural developments and as problems of scarcity ease in China, but I have occasionally wondered whether it could lead to intercultural confusion in international affairs, such as negotiations over hotly contested resources in the Arctic or South and East China Seas. That said, I am very self-consciously making these observation as an indirect beneficiary of the former American tradition of “manifest destiny”—our most spectacular example of not respecting a first-come, first-served ethic of access to natural resources. So I suppose that both of our cultures—like all of them really—are on an ongoing path of philosophical development…
[To be continued in the final installment, in which I’ll conclude with some thoughts about the relevance of ancient philosophical traditions.]
November 8, 2012 in Asia, Climate Change, Current Affairs, Governance/Management, International, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, US | Permalink | Comments (2)
Monday, September 17, 2012
I had been wondering what ordinary people in India think about climate change. So last week on my ride home from the office, I asked my auto-rickshaw driver. He was a talkative guy, bearded, with black spectacles and a navy blue turban. He had been keen on identifying for me the many troubles a man like him endures on the subcontinent. “Too many people!” he shouted, his voice competing with the cab’s rattling frame and the bleats of oncoming horns. “Too much traffic!”
We swung around a landscaped rotary. I gripped my seat. A copse of date palms swerved by, and then a billboard: “Enrich Delhi’s Green Legacy.” I took the bait. “So what do think about global warming?” I shouted. We slowed to a stop behind a row of cars and two-wheelers waiting at the light. He cut the motor. A small boy pranced into the stalled traffic and began turning cartwheels in hopes of a small remuneration. “Yes, I know about that,” the driver said. “Too much warming. Too much heat.” “But do you worry about it?” “Me—no.” He fired the engine and frowned slightly. “You know, India has too much noise!” he shouted. “And too many dogs! Too many everything.”
I continue to grill my Indian acquaintances on climate change, but I’ve now found a more scientific source of information. The Yale Project on Climate Change Communication released a report last month, “Climate Change in the Indian Mind,” that takes a broad look at climate change awareness and attitudes in modern India. Based on a survey of 4,035 Indians—both urban and rural, from a range of income and education levels—the report presents an encouraging view of the world’s biggest and most perplexing environmental challenge in the world’s biggest and most perplexing representative democracy.
Like the rickshaw wallah in Delhi, most Indians are aware of changing trends in the climate. According to the report:
Only 7 percent of respondents said they know “a lot” about global warming, while 41 percent had never heard of it or said, “I don’t know.” However, after hearing a short definition of global warming, 72 percent said they believe global warming is happening, 56 percent said it is caused mostly by human activities, 50 percent said they have already personally experienced the effects, and 61 percent said they are worried about it.
(Compare that to public opinion the United States. According to a recent Gallup poll, only 52% of Americans say the effects of climate change are now occurring. But ask about the cause, and one finds numbers similar to those in India: 53% percent of Americans, according to Gallup, attribute global warming to human activity.)
But, unlike the rickshaw wallah, most Indians are worried enough about global warming that they want their government to address the problem.
Here’s another excerpt from the report’s “Highlights”:
• Millions of Indians are observing changes in their local rainfall, temperatures, and weather, report more frequent droughts and floods, and a more unpredictable monsoon. A majority of respondents said their own household’s drinking water and food supply, health, and income are vulnerable to a severe drought or flood and that it would take them months to years to recover.
• 54 percent said that India should be making a large or moderate-scale effort to reduce global warming, even if it has large or moderate economic costs.
• Majorities favored a variety of policies to waste less fuel, water, and energy, even if this increased costs.
• 70 percent favored a national program to teach Indians about global warming.
This glimpse into Indian minds must come with caveats. Like any survey, it captures only a moment in time. Plus, it’s easier to favor conservation policies when you don’t know exactly who would bear the cost. Even with a firm public commitment to action, the translation from public will to government policy is notoriously complicated in India. (Or, for that matter, in the United States.)
But the survey offers a ray of hope. India’s ambition of becoming a true global power will depend on its ability to harness green energy and cope with higher temperatures, bigger rains, and longer droughts. In a general way, Indians know this. But ambition means nothing without political leadership. And that is one thing in India that is not in oversupply.
Robert R.M. Verchick is a 2012-2013 Fulbright-Nehru Research Scholar and holds the Gauthier ~ St. Martin Chair in Environmental Law at Loyola University New Orleans
Thursday, August 30, 2012
NEW DELHI — Here’s what the monsoon season looks like in India. This summer, the northern states have been lashed with rain. In the northeastern state of Assam, July rains swamped thousands of homes, killing 65 residents. Floods and mudslides in northeast India sent nearly 6 million people heading for the hills in search of temporary housing (a tarp, a corrugated roof) and government aid (when they can get it). In New Delhi, the monsoon hasn’t caused anything nearly as traumatic. But one cloudburst can easily flood roads and storm canals, sending bubbling streams of grease and sewage across the urban slums.
Haven’t heard about all this? Normally, I wouldn't have either. But this semester I’m living in New Delhi, near one of those storm canals, working as a Fulbright-Nehru Research Scholar affiliated with India’s Centre for Policy Research. My plan is to examine the ways in which Indians are adapting to climate change, at the national, regional, and local levels.
Perhaps no country in the world is as vulnerable on so many fronts to climate change as India. With 7,000 kilometers of coastline, the vast Himalayan glaciers, and nearly 70 million hectares of forests, India is especially vulnerable to a climate trending toward warmer temperatures, erratic precipitation, higher seas, and swifter storms. Then there are India’s enormous cities (home to nearly a third of the population), where all of these trends conspire to threaten public health and safety on a grand scale—portending heat waves, drought, thicker smog layers, coastal storms, and blown-out sewer systems.
Those floods I mentioned earlier are typical of India’s monsoon season—data for this season, in fact, show a monsoon with slightly less total precipitation than normal. But the floods demonstrate the kinds of extreme events that if multiplied in the future will bring even more risk to a fragile country. According to a recent report issued by India’s Ministry of Environment and Forestry, current projections indicate “a 3% to 7% overall increase in all-India summer monsoon rainfall in the 2030’s with respect to the 1970’s.” In contrast, during the winter and pre-summer “dry” season, most regions “are likely to have lower rainfalls.” Such a “barbell effect”—a more extreme wet season joined to a more extreme dry season—could mean trouble for India’s growing cities and struggling rural farmers.
India’s public and private sectors have begun developing adaptation strategies, although most are at the beginning stages. With prodding from the national government, some states are now developing vulnerability assessments and setting priorities. International non-profits like the Rockefeller Foundation are joining with local governments and citizens’ organizations to find better ways to control storm water, irrigate crops, and improve health against the backdrop of a changing climate. Manufacturers, insurance companies, and banks are also examining ways to adapt. This has led to an array of discussions about how public or private initiatives should be used to build resilience in the Indian communities, to make them “climate-ready.” Some of these ideas are particular to India, but many of them will be tested here and exported to the rest of the world, including the United States.
Should rural farmers in India be encouraged to protect against monsoon vagaries by investing in a legalized “weather derivatives” market, like some American hedge funds do? Is there a way that India’s expansive Public Trust Doctrine (inspired by American case law) could be used to protect threatened assets like coastal wetlands and groundwater supplies? Am I nuts to think that a megacity like New Delhi—home to 16 million people, 11 million vehicles, nearly half a million stray dogs, and scores of loitering cows—can coalesce into an environmentally sensible and climate resilient city of the future? Over the coming months, I’ll take on some of these subjects in this blog. I’ll talk with local experts, visit project sites, and venture an assessment or two. As for now, the afternoon thunder is rattling my office window, and I need to find my rubber sandals.
- Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans.
August 30, 2012 in Asia, Climate Change, Current Affairs, Environmental Assessment, Governance/Management, International, Land Use, Law, Sustainability, Water Resources | Permalink | Comments (0) | TrackBack (0)
Thursday, July 5, 2012
Today I discuss the curious contrast between China’s role as an international and domestic producer of consumer goods, and some of the implications for average Chinese people. (This is the fifth 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, and May’s exploration of water quality issues.)
While preparing for our year in China, we wondered what we should bring with us from home. 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. It’s true that China produces a lot of the manufactured goods now sold in the U.S. and throughout the world. What’s not true is that they are available for purchase in China. As it turns out, China has two separate manufacturing industries—the factories that produce for export, and those that produce for domestic consumption. In fact, it’s illegal to sell goods produced for export on the domestic market. And while Chinese exports are generally of decent quality, that’s not always the case for products sold in domestic Chinese markets.
Before I say more, it’s important to acknowledge the relationship of this problem to China’s stage of economic development, and the mind-boggling progress it has made over a very short period of time. Just a few decades ago, China was still reeling from the political turmoil of the Cultural Revolution and the chaos of the Great Leap Forward and famine times preceding it. Only after the Deng Xiaoping reforms in 1978 did national priorities shift toward full-speed-ahead economic development. In the thirty years since, the nation’s progress in creating new industry and providing for basic human needs has been astonishing—especially in urban areas, and most markedly in the coastal areas like Shanghai and Shenzhen, or the northern city of Qingdao, where we live. But even though there are some 500 million Chinese now using the Internet, some 170 million of them—more than half the population of the U.S.—still live on only a dollar a day.
Of course, such rapid development has been accompanied by the environmental degradation that I’ve written about in previous posts, just as American industrialization did a century ago. And indeed, when you’re trying to feed 700 million mouths in the underdeveloped countryside, it can be hard to focus on ground-level ozone. Still, people living close to the margin are especially vulnerable to environmental harms from pollution and climate-related disasters. Understanding this, the government has increasingly recognized that ongoing development efforts must be better partnered with effective environmental regulation, evidenced by a steady stream of reports about new environmental goals and sustainability initiatives. As far as I can tell, these are mostly hortatory at the moment, but hey—every environmental movement has to start somewhere, and it’s usually with consciousness-raising.
This is all just to fairly contextualize my observations here that, in addition to better managing pollution, China faces an uphill challenge to better ensure the safety of the products its people come into contact with each day. Product safety is like any other environmental regulation; both rely on state enforced rules to ensure that people are not harmed by toxins or hazards, especially when the harm is of the sort that most people couldn’t reliably identify on their own. And at least generally speaking, the safety and quality of domestically marketed Chinese products leaves a lot to desire.
Americans may recall how this problem reached the export market in 2007, when Chinese toys sold in the U.S. were found to have been produced with lead paint. Teething children, those most vulnerable to neurotoxins, risked exposure when they inevitably gummed or sucked on these toys.
As the parent of new baby at the time, I carefully pulled out all of his new toys that had been made in China, just in case. But now imagine the same kind of problem here in China, in every kind of product line, and with only a fraction of the government regulators available to inspect products for health and safety. You can’t just pull everything out, just in case. There will be nothing left.
In China, the most troubling examples relate to food safety. In recent years, there has been a parade of scandals in which chemical toxins have been found in local meats, vegetables, and other products. The most tragic was the milk scandal of 2008, in which several Chinese babies died and hundreds of thousands were sickened by milk products purposefully contaminated with melamine, an industrial chemical that raises the apparent protein content of watered-down dairy products (and also causes kidney failure). Responsible parties were fired, jailed, and even executed in punishment—but two years later, it was discovered that 170 tons of contaminated formula that was supposed to be destroyed after the scandal was simply repackaged and resold on the domestic market.
I know Chinese parents who will only give their child imported milk, even though it is by far the most expensive item in the family budget—in absolute terms, 400-500% more expensive than the average milk sold in the U.S. (and this purchased by families with a fraction of the average U.S. income.) These frightened parents will carefully scan UHT milk products to make sure that the only Chinese characters appear on stick-on labels—not the original cartons—ensuring that no part of the production process took place here in China. We were taught to do the same on our arrival, and imported milk soon became the most expensive part of our family budget as well.
Baby formula price differences are even more exaggerated—even one can of imported formula can cost as much as a week’s worth of groceries—which is obviously prohibitive for most Chinese families. But this week, the China Daily reported that formula produced by one of China’s biggest dairy manufacturers was pulled from shelves after testing positive for elevated mercury levels. The Yili Industrial Group recalled three series produced between November and May after inspectors discovered high mercury levels, presumed the result of air, water, and soil pollution from coal-fired power plants and industrial and mining projects. Afterward, the government made an emergency announcement that it had tested 715 samples from all infant milk powders on the market, and none showed abnormal mercury content except Yili’s. But note the use of the word “abnormal,” rather than illegal: perhaps the most chilling aspect of the story is that China doesn’t actually have an official safety standard for mercury in milk power.
(Writing on July 4th, it’s a good moment for me to pause and reflect on the many things I am grateful for in my own country. And even with all of its flaws, I’ve never been more grateful for the FDA than I am right now. Let this be yet another post-it to all my fellow-citizens who have come to take our own regulatory state so for granted that they have forgotten what life would actually look like without it.)
China’s regulatory apparatus is struggling to catch up with the herculean pace of its industrial sector, and the gap between them is exposed by these tragic examples in which local people are hurt by the very products they are racing to produce, ever more quickly and inexpensively. The United States has been here before as well, and it may just be a necessary part of the process of economic development. But China is at that stage where its people are beginning to decide that the health and safety of their children is just as important as other aspects of economic development. The bottom line is that too little of what reaches the Chinese consumer is subject to reliable health and safety inspection based on sensible regulatory standards. And we know Chinese producers can do better, because they meet all kinds of health and safety standards when making goods for export!
Because milk is just the tip of this iceberg. Chinese of means are willing to pay extraordinary amounts for all kinds of foreign products—not just food, but also clothing and electronics. This puzzled me at first, until I lived here long enough to witness just how often the things I buy at the local market break, tear, or otherwise self-destruct. From clocks to toothbrushes to ziplock bags—I don’t know how else to say it—the Chinese goods we buy here just here don’t work very well, or very long. Even as I write, I am sweeping away from my son’s mouth the disintegrating pieces of the nice couch that was relatively new when we moved into our apartment last year (and worrying about what may be in it).
I’m no economist, but I can’t help but relate this to the high tariffs the Chinese government adds to imports—the source of so much international tension with economic competitors like the U.S. It’s no wonder the government favors these tariffs: if imports were not made artificially more expensive than they already are, Chinese consumers would prefer them even more strongly to local products. I had a conversation about this once with a student complaining about how expensive American-made clothing was in China (the tariffs make it much more expensive than it would be at home, even in absolute terms). I pointed out that from the perspective of his government, this was a way of accelerating the developing economy by harnessing the enormous purchasing power of China’s emerging consumer class. He responded that, yes, if he were a Chinese official, he would probably do the same thing. But as a Chinese consumer, all he really wanted were some quality shoes.
Of course, a lot of what I am describing is just the reality of life in a developing country, and I certainly don’t want to whine about that too much. My purpose in sharing this is not to complain, but to help those from the developed world understand the full scope of the environmental and economic challenges on the other side. If you were a government official trying to get 150+ million people out of abject poverty, wouldn’t you try to harness the purchasing power of your vast citizenry to do it, free trade notwithstanding?
Regulatory regard for individual health and safety here seems different from the west anyway, reflecting differences both economic and cultural. In flying back to China after lecturing in Vietnam, I was astounded to be fumigated without warning by an aerosolized pesticide sprayed on me in my seat by the Chinese flight attendant. I later learned that it was required by Chinese law, doubtlessly to prevent the spread of serious insect-borne diseases. But my eyes, nose, and throat burned worryingly for the rest of the day, and I wondered how I’d have felt about it had I been pregnant or carrying an infant. In an earlier post, I wrote about our harrowing experience trying to avoid domestic pesticides whose safety we could not ascertain, and I felt affirmed when it was later reported that the government was taking steps to ban twenty commonly used pesticides for reasons of human toxicity.
In another example, my husband—the grandson of a lifelong Milwaukie firefighter—was dismayed that our apartment has barred-in windows and no fire escape, for which I chided him as an over-privileged westerner until I saw ordinary people exploding fireworks just feet from neighboring homes and businesses. The displays are spectacular, but they also cost fingers, lives, and some famously devastating fires. Similarly costly are the traffic-related mortalities that are unfortunately common here. Still, most don’t wear helmets on their motorbikes, and seat belts are purposefully dismantled in most cars because people consider them a nuisance. (In one of our more hilarious cross-cultural moments, we lugged a child car-seat here all the way from the U.S., knowing we’d never find one in China—only to discover it useless because there are no seatbelts to secure it in place!) Traffic lights to help pedestrians cross the street are rare, and even those that exist are of limited value: “don’t walk” means that you will surely be killed if you cross; “walk” means it is now somewhat less likely that you will be killed.
Yet this is only part of the story. Notwithstanding the lack of health and safety standards, there are so many other elements of Chinese culture that are much more committed to human health than western cultures—and especially American culture. Americans may be good at regulating for health and safety, but our lifestyles certainly don’t do much to advance the goal—as documented by our famously expanding waistlines. Healthful living is a huge and important part of Chinese culture, and among its most admirable. Chinese people eat dried fruits and nuts instead of cheese doodles. They rest regularly and sleep well at night. Chinese medicine emphasizes the maintenance of wellness over the post-hoc treatment of disease. Most of all, healthy exercise is a foundation of everyday life.
I don’t just mean that Chinese people are in better shape because fewer have cars and must walk where Americans usually drive, although that’s also true. Here, exercise is a ritual part of daily life—and especially community life—in a way that would be wholly unfamiliar to most Americans. In the morning, people gather for morning exercise in public parks, courtyards, and parking lots, often doing tai chi. Seeing a hundred people spontaneously join in perfect, soundless unity this way is truly one of the most beautiful things I have ever seen. After dinner, families take a ritual “digestive” walk around the neighborhood together. Then begins evening exercise, when people again gather in public areas for a variety of activities. Children play openly while men play team sports. Women regularly gather for a Chinese cultural version of line-dancing, in which they collectively perform a repeating, multi-sided sequence to accompanying music. We were sad to discover very few playgrounds for children—but in perhaps a wiser use of scarce resources, every neighborhood has an exercise parks for adults, with metal equipment to keep people fit and limber, especially as they age. They are frequently used, especially after work, by young and old alike.
So I end this essay where I began, acknowledging the developmental and cultural differences that make my observations here admittedly fraught. Nations struggling to feed rural populations have to be more concerned with crop yields than genetically modified organisms, more concerned with child malnutrition than child obesity rates. Chinese culture protects health in other ways, and it’s understandable that regulatory priorities have focused elsewhere than health and safety to this point—although perhaps the time has come for change. But where American regulations offer models for China, Chinese culture offers lessons for Americans, in exactly those realms we need them most.
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…
Monday, April 23, 2012
I spent last Friday--the second anniversary of the BP Blowout--in the vast basement of the Orleans Parish Criminal District Court building, shifting in my metal chair, ignoring the talk-show chatter from the flat screens, and keeping an eye on the red digit counter to know when my number was up.
I'd been called for jury duty.
Whether I will eventually be deployed is up to the gods, but until then I have resolved to study (with the help of this building's creaking Wi-Fi system) all 2,000 pages of the proposed multibillion-dollar settlement in the Deepwater Horizon case--the settlement made public last week by BP and thousands of Gulf Coast residents and businesses. (I blogged earlier when the broad outline of this settlement was first announced here.)
Now some of you may wish to savor the details, poring over the documents page-by-page between sips of Courvoisier. But for the rest, I've got the bottom line [SPOILER ALERT]: The proposed settlement rewards plaintiffs' hard bargaining, puts a crimp in federal and state hopes for a speedy trial, and demonstrates once again that despite the size of this deal, the main course is yet to come, in the form of federal civil fines and possible criminal prosecution.
Hard Bargaining Rewarded
The documents propose a class-action structure, in which private plaintiffs would be compensated for economic harm and health claims by way of a settlement fund. The fund would replace the one that began as Ken Feinberg's Gulf Coast Claims Facility, but would be administered by the court rather than BP. Payouts under the new fund could begin within weeks, following Judge Barbier’s preliminary approval of the plan.
Settlement claims are divided into those for economic loss and medical harm. It is the package for economic loss that offers the most sparkling feature: a Risk Transfer Premium or "RTP." The RTP is a kind of bonus, based on an agreed-upon "multiplier." It's meant to compensate plaintiffs for future uncertainty or for less concrete losses that are hard to monetize. So if you are the captain of a crabbing boat who can show $20,000 of lost earnings, you will get compensation in that amount plus a premium of $100,000--the $20,000 loss multiplied by the RTP multiplier for crab boat captains, which is 5. The multiplier varies by category. For coastal property owners, the multiplier is 2.5. For star-crossed oystermen, it is 8.75. I was especially pleased to find that subsistence fishers had secured an RTP multiplier (2.25) to compensate for non-monetized cultural losses, in addition to the multiplier for the economic value of the fish. In Louisiana and Mississippi, Vietnamese-American fishers often use self-caught fish as ceremonial gifts or as objects of community barter. Perhaps in exchange for RTPs, plaintiffs agreed to a total cap on seafood claims of $2.3 billion. All other claims are uncapped.
As for medical claims, any claimant who worked or lived on the coast may receive up to $60,700 for some specific ailments (but not many others), with the right to sue for medical harms that are identified in the future. Class members are also guaranteed 21 years of free medical monitoring.
The promise of quick payouts, combined with the RTP, gives plaintiffs compelling reasons to consider it. Surely, plaintiffs' lawyers will like it: BP has agreed not to object when they press the court for $600 million in fees (which would be paid in addition to plaintiffs' award). I suspect even BP is relieved to get this confusion of high-stakes claims out of the way.
Lost Hope for a Speedy Trial?
I envision federal and state lawyers, somewhere in Swampville, gritting their teeth over what appears the smallest of details. As part of the plan, BP has suggested the trial containing the state and federal claims be postponed all the way until November of this year. Ostensibly, that's because final approval of this settlement could not happen before then. But the timing all but ensures that the meatiest part of the trial--as well as last-minute settlement negotiations with the federal government--would occur half-a-year from now, when public concern has dissipated and a presidential election has just taken place, possibly putting a Republican in charge of the Justice Department next year. It will be up to Judge Barbier to decide that schedule, but right now the government lawyers must be steaming.
The Main Course
When that trial does happen, or when the federal and state claims settle, remember that those claims lie at the heart of this dispute. The partial settlement, valued at around $8 billion, is unquestionably one of the largest settlements in American history. But the remaining federal and state civil claims could eclipse that by many times. And it is possible that criminal penalties could add tens of billions of dollars more to BP’s bill. (See my itemizations here.)
Is their number up? Today, not by a long shot. But we’ll see.
April 23, 2012 in Current Affairs, Energy, Governance/Management, Law, North America, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Saturday, April 7, 2012
This is the third 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 my introductory post and last month’s reflections on China and the Rocky Mountain Arsenal.) It has been a busy month since my last post, during which I’ve had the pleasure of traveling the country widely. Today I actually write from Japan, where I am visiting Nagoya University to discuss the role of the common law public trust doctrine in balancing economic development and environmental protection.
It is a lecture that I have given frequently in both the U.S. and China, and before arriving, I had carefully considered the differences I could expect in sharing the same ideas with a Japanese audience. In the U.S., law students are fascinated by the role of legal institutions in mediating the conflict, especially demonstrated in the Mono Lake litigation around which I build the presentation. In China, students are more interested the factual content of the story—and dumbstruck by the idea that protecting birds, fish, and wilderness could possibly compete with the water needs of a large metropolis. What would I find here in Japan, a nation with relatively thorough pollution controls but comparatively scarce natural resources?
As it turned out, I needed no academic encounter to see where the Shintoist-inflected Japanese approach would differ from China’s. All the evidence I needed—evidence that nearly knocked me off my feet from the moment I first stepped outside—was in the air. The clean, fresh, sweet-smelling, healthy-feeling air. After eight months of breathing in China, the air was so beautiful that I almost cried. There was no haze, no taste, no grit. You could see the world crisply and clearly ahead of you for miles—even better than I could recall from home in the U.S. I realized in that moment how much I had forced myself to forget what this could be like, in order to just get on with daily life in China. But like an elephant, the lungs never forget. So I guess it’s time to confront the great elephant in the room of Chinese environmental issues and talk about the experience of living with China’s notorious air quality problems.
Everyone knows that air pollution is a serious problem in China. The World Health Organization reports that some 700,000 Chinese people die each year from air-pollution related respiratory diseases. Many of the world’s most polluted cities are in China, and we took serious account of this reality in contemplating our Fulbright voyage. In Beijing, particulate pollution levels regularly exceed the scale that the U.S. government normally uses to monitor it (such that air quality problems are quite literally “off the scale”). Shanghai air is a little better, but still far worse than the worst air quality days in the worst air quality years of Los Angeles’ experience. A friend at the U.S. Embassy in Beijing reports the common wisdom there that a bad day in Los Angeles can get as high as 90 on the PM 2.5 particulate pollution scale, while a bad day in Beijing can exceed 400 (and occasionally even tops 500). He says "if it's less than 150, I'm usually happy, because then I can see the sun." (For full comparison's sake, in 2009, the average PM 2.5 particulate pollution level for the entire U.S. was just under 10, and the average in Los Angeles was just under 15.) The State Department actually pays the American embassy staff in Beijing “hardship compensation”—extra pay for enduring hazardous working conditions, just by virtue of breathing there. [For a good-day/bad day photo comparison, see this follow-up post.]
And foreigners aren’t the only ones concerned. In recent months, the people of Beijing witnessed an important demonstration of their own political power when public unrest ultimately persuaded the Chinese government to change its air quality monitoring norms. For years, China had monitored only airborne particulates measuring at least 10 microns across, even though it is the much smaller particles that can do the most damage—passing through the alveoli in the lungs directly into the blood stream. The U.S. embassy in Beijing monitors particulate matter as small as 2.5 microns (PM 2.5) on an hourly basis, and had been making the data available to the public over the Internet. So the Chinese air quality reports made air quality problems look a lot less serious than the American reports.
But this winter was worse than usual—much worse. The U.S. Embassy data showed sustained levels of seriously hazardous pollution—the kind that could harm any healthy person, not just the especially sensitive young, old, or sick. Air filter sales surged in Beijing, and residents donned surgical masks in (mostly futile) efforts to reduce their inhalation of choking auto exhaust, coal-fired power plant and manufacturing emissions, and dust from the ubiquitous construction projects and nearby Gobi desert. A New York Times report that managed to jump the Great Firewall told of some Party officials who had retrofitted their homes with equipment to cleanse the toxic air, infuriating the 99% who had to breathe it without recourse.
As public agitation mounted, the Chinese government reportedly requested that the U.S. Embassy stop publishing its PM 2.5 monitoring data (likening it to inappropriate meddling in domestic affairs). Beijing residents were enraged by these purported efforts to keep them in the dark about genuine threats to public health. In the Twitter-like microblogs that dominate the Chinese blogosphere, one after another vented their outrage—mothers wanting to keep young children inside when the air was most hazardous, sons wanting to keep aging mothers at home on the days of elevated stroke risk. In a stunning victory for transparency in Chinese governance—and an important signal of how seriously average Chinese people are taking air quality—the government reversed itself and finally began monitoring at the PM 2.5 level.
In fact, I had been graciously offered connections to some of the nation’s leading universities in Beijing when my Fulbright placement was being set. But given Beijing’s air problems (and with memories of my son’s respiratory complications from swine flu still fresh in mind), we pursued a placement in the coastal city of Qingdao instead, as much for the city’s famously clean air as for Ocean University’s vibrant environmental law program. And indeed, when we arrived in August, the wisdom of our choice seemed confirmed. Our introductory week in Beijing—while culturally thrilling—was environmentally chilling. None of my ample armchair research into Beijing’s air quality problems prepared me for the experience of actually breathing air with physical heft. Air with taste and texture. Air that we knew—our bodies as physically as our minds did intellectually—would eventually make us sick. We were elated to finally get to Qingdao, where indeed, the summer air was comparatively pristine.
But even in Qingdao, everything changed in late November, when the heat went on in northern China. In China, the heat (like most else!) is centrally coordinated. So the heat for the entire northern part of the country goes online around November 15th, bringing to life the countless coal-fired power plants that freckle every city landscape, some large but many quite small. One such sleeper turned out to be directly across from my son’s preschool. Its curiously squat smokestack was coupled with a more slender companion, both raised just above the higher floors of the surrounding residential apartments. They seemed old and apparently unused in the fall, so we had assumed it was an old factory abandoned after residential infill. Once we realized that it was really an eye-level conduit for mercury-laden, throat-choking coal dust, we panicked considered our alternatives. But the truth is that these little generators are everywhere. So many, so little, that installing appropriate scrubbers would require the kind of massive financial commitment currently beyond reach for most developing economies.
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. There is a kind of low-level panic that sets in when the air begins to go bad. You hope against hope that this time will not last as long as the last time, and you unconcsciously start to breathe more shallowly. Then you assume a bunker mentality and try to keep the bad air out of your home as much as possible. You close all the windows and become extremely careful about closing the doors as fast as possible when you come and go from the apartment. You have to give up the charade when you leave for work, but eventually it doesn't matter because the bad air eventually finds a way into every room. In large enclosed spaces like airports, the haze can even obstruct your view of the far interior wall. At this point, you just have to submit to the situation and try not to think about what's actually in the air. There is nowhere to go, nothing you can do to avoid it. But you still try not to breathe too deeply.
After the winter heat went on, the blue skies of Qingdao disappeared behind a grainy haze of automobile fumes and coal plant smoke. On the worst days the weather report is simply “smoke,” and breathing is like inhaling in the wake of buffed chalkboard erasers that have been tainted with some kind of chemical. We use packing tape to try and seal the faulty window frames and the gaps around our doors. Surfaces in our home are perpetually coated with once airborne dust and particulates. We are no longer so keen to take walks to the lovely mountain behind the university (which we very often can’t even see, as in the prior photo). We avoid strenuous exercise—even running to catch the bus—because deep breathing hurts. On days when we can only hazily see the building fifteen meters from our own (and the others beyond disappear fully into the smoke, as in the photo below), we try to not even leave the apartment.
In the early days of winter, the stress of adjusting to the air pollution was oppressive. We felt sick most of the time, and were always anxious. Eventually, we adapted to the circumstances and we were once again able to find joy and fascination in our new world. But even now, we finish most days by lying down in bed to cough the day's residue out of our lungs. And on many mornings, I wrestle with the decision to send my son to preschool, which requires both him and my mother to troop a half-mile up a steep hill directly toward the belching power plant.
In fact, when the EPA announced the new mercury rule that it finally promulgated in late 2011 after twenty years of trying, I metaphorically jumped for joy and then literally wept with grief when it forced me to connect the primary source of U.S. mercury—coal-fired power plant emissions—with our own experience here. I thought of all the environmental risks to which we are subjecting my little boy, who turned four here this winter. So ironic, after all our fastidious caretaking in his first three years (organic milk, physician-approved sunscreen, no cigarette or pesticide exposure, etc.)! What was the point, when we are now subjecting him to more hazard than he may experience for the rest of his life? Almost every day in January, I questioned whether I did the right thing bringing him here. About every other day, I was pretty sure that I didn’t.
Then again, we take the objectives of our cultural diplomacy here very seriously. Raising a child here has enabled us to access a depth of Chinese culture that most visitors never come close to understanding. We understand China in a way we never could have imagined before now, and we have shared our American ideals just as profoundly. At the moment, my son is a living bridge between our cultures, in a way that fills our neighborhood with joy and hope for the future of our nations’ friendship. So I tell myself that the air pollution is really very temporary for us, and that we will come home in just a few more months. (And then I wrestle with the guilt of knowing that all the people I’ve come to love here will not have the same luxury.)
Seriously folks—I’ve said it before, and I’ll say it again—every American bellyaching about the costs of environmental regulation in the United States really needs to spend a year living in China. Especially from this vantage point, the proposition that Americans no longer need so much environmental law because our environment is so clean (thanks, of course, to environmental law…) makes me want to break something. I try to muster some empathy for those making this argument, because they obviously have no perspective on what the lack of meaningful environmental regulation would actually mean for their daily lives. Which is why they should come to China for a while—preferably with their small children and aging parents. (Then we’ll see how much they miss the EPA!)
Here in Qingdao, without the benefit of enforced environmental regulations, we have learned simply to pray for cold weather. The northerly winds from Siberia blow the smoke out to sea and provide a day or two of respite, so bitter cold is our new favorite forecast. In fact, Qingdao’s famously clean air is probably a result of this standard winter weather pattern—but the weather patterns here shifted this year, as they have been doing all over the globe. Whether for reasons of climate change or unknown factors, the winds that once regularly purged Qingdao’s smog barely blew this winter, and air quality plummeted accordingly. In just the first three months, bad air quality days already exceeded the previous year’s by 400%. Qingdao residents have complained bitterly about the problem, even prompting some new local regulations. But as one of my students wryly observed, “would they rather their homes have no heat?”
In fact, northern Chinese winters get very cold, and most of our Chinese friends easily prefer the heat with all of its downsides. But we should also give credit where it is due for the many ways that Chinese people avoid making the problem even worse—by not living the way that most Americans do. For example, the roofs of all Chinese buildings are barnacled with rows and rows of solar water heaters, avoiding the need for yet more coal-fired electricity. The taxi fleets all run exclusively on natural gas, and city public transportation is exceptional—cheap, easy to use, and everywhere. Almost nobody here has an electric clothes dryer, among the most notorious energy hogs in the American household. Some fear this may change for the environmentally worse as 1.4 billion Chinese get richer and more interested in exotic appliances—but Japan has a fully developed economy, and line-drying remains the norm there as well. Finally, China appears to have made a serious national commitment to reducing greenhouse gas production in its Twelfth Five Year Plan, now beginning implementation in the seven largest metropolitan areas. (Perhaps in the meanwhile, they can work on small coal-plant scrubbers.)
Anyway, we are now counting down the days until the heat finally goes off on April 15th. What seemed unendurable in the first few months eventually became routine, such that the days we once barricaded ourselves inside are now days that I will (if reluctantly) take my son outside to play. We say things like, “the air is bad today, but at least the chalk dust doesn’t have too much chemical in it.” For better or worse, we have adjusted to our new environment—fully appreciating that it is still better than most Chinese enjoy. After November 15th, I alternated between horrified, angry, and desperate that I had submerged my family in the very sort of environment that I had pledged my professional career to avoid. I still have all of these feelings at times, but the desperation has mostly given way to determination. What environmentalists do is important. (Indeed, even the Tsingtao Beer Museum includes a display about environmental protection efforts tracing to Rachel Carson's Silent Spring.) What environmental scientists and lawyers do is important. What environmental law professors do is important. Keep doing it, everyone.
April 7, 2012 in Air Quality, Asia, Cases, Climate Change, Current Affairs, Energy, Governance/Management, International, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Weblogs | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 14, 2012
Recently, editors of this blog have reported on some of the impressive sustainable efforts of schools around the nation. Perhaps because I am fortunate to have two of the best little boys on the entire planet, I think the subject matter is worth an ongoing dialogue. Rachel Gutter, director of the Center for Green Schools at the U.S. Green Building Council, explains the charge: “With so many of our country’s schools in disrepair, it is critical to highlight the importance of providing our children with healthier, more sustainable educational environments that enhance learning.”
On February 27, 2012, co-authors Lindsay Baker and Harvey Bernstein - on behalf of the Center for Green Schools at USGBC and McGraw-Hill Construction – released a report entitled, The Impact of School Buildings on Student Health and Learning: A Call for Research. The report addresses the very important question of how we research school building design, maintenance, and operations to assess and maximize the relationships between building performance and student health and performance. The report highlights the state of research on the subject and identifies areas where attention to building performance may reap substantial rewards for our children. In particular, the authors provide an inventory of student needs in the classroom based on how students hear, breathe, see, feel, move, think, and learn. The authors also identify the roles and responsibilities of the various stakeholders in researching the impacts of buildings on childhood education: school staff and leaders; teachers and students; building professionals; researchers; governmental agencies; and other supporting networks and organizations. The paper suggests a need and basis to account for the already 2,300 schools across the nation that are already participating in the USGBC’s LEED green building program.
One take-away from the report is that the information needed to complete research on this relationship is becoming easier to access, at least in part because high-performing buildings are becoming an easier sell to higher education administrations. At least, sustainable initiatives are quite popular and stimulated on the campuses of higher educational institutions.
Nevertheless, to many the ultimate challenge remains the cost, a nagging obstruction that is exacerbated by the growing price tag on higher education. However, the evidence on cost savings associated with energy efficiency continues to grow. For example, Gregory Kats argued in 2006 that “Green schools cost on average almost 2% more, or $3 more per ft2, than conventional schools. The financial benefits of greening schools are about $70 per ft2, more than 20 times as high as the cost of going green.” More recently, the American Council for an Energy-Efficient Economy and the Appliance Standards Awareness Project recently released The Efficiency Boom: Cashing In on the Savings from Appliance Standards, in which it reported that the existing energy efficiency standards governing appliances will net consumers more than $1.1 trillion in savings cumulatively through 2035. New and revised energy standards will improve these savings, resulting in typical household savings of over 180 MWh of electricity and over 200,000 gallons of water between 1995 and 2040.
An equally promising trend concerns school investments in “Green Revolving Funds” to facilitate cleantech and other sustainability improvements on campus. Harvard’s $12 million Green Loan Fund is self-described as follows:
The Loan Fund provides capital for high-performance campus design, operations, maintenance, and occupant behavior projects. Basic project eligibility guidelines state that projects must reduce the University’s environmental impacts and have a payback period of five to ten years or less. The model is simple: GLF provides the up-front capital. Applicant departments agree to repay the fund via savings achieved by project-related reductions in utility consumption, waste removal, or operating costs. This formula allows departments to upgrade the efficiency, comfort, and functionality of their facilities without incurring any capital costs.
The number of schools utilizing the GRF model has been growing steadily, aided in large part by AASHE’s Billion Dollar Green Challenge. Of course, the GRF model may not suit every school, at least because the initial investment may feel like the type of discretionary spending that simply is not available. Ideally, the lessons learned from existing and contemplated green schools, the predicted market shifts, and the associated forward-thinking will outgrow this misperception.
- Keith Hirokawa
Friday, March 9, 2012
"Heeding the Signs of a Changing Ocean" -- Susan Avery, President and Director, Woods Hole Oceanographic Institution:
- "Every second breath you take is provided by the ocean."
- "We have entered a new geologic age -- the anthropocene era."
- "The Gulf and other coastal waters have long been a dumping ground for human activities."
- "One thing that I think Rachel would be pleased about is that science [is now] at the stage where you can predict the emergence of harmful algal blooms."
- NOAA "has begun now issuing seasonal red tide alerts in the Northeast."
- "I really think it's harder to get into the ocean than to space. We probably know more about the surface of the moon and Mars than we do the ocean."
- "It's not funded, but we have a national ocean policy."
- "If we think about where we are now with the oceans, and what Rachel Carson would think today, I think she we be partly despairing and partly hopeful."
- "The economic benefit of the ocean is huge, and it is just beginning to be documented."
- "Everyone has a stake in the oceans."
- "One of the keys" to ocean management "is the realization that best practices by an individual corporation is not enough . . . . Collaboration is needed . . . . The problem is that there has not been a structural process to" bring ocean industries together.
- "Thinking to the future . . . , these are the kind of cross-sectoral things that . . . businesses can get involved in and be part of the solution and not just part of the problem:" (1) ocean governance -- Convention on Biological Diversity, (2) marine spatial planning, (3) regional ocean business councils, (4) smart ocean / smart industries.
- "Marine mammal issues will increasingly affect marine activities, especially shipping."
- "We need to balance that growing need for resources and food and energy with those areas that already have resources."
- "Better data means better modeling and better forecasting," which fundamentally helps businesses, "let alone leading to better environmental management."
"Challenges for Ocean Governance in a Climate Change Era" -- Robin Kundis Craig, Attorneys' Title Professor of Law and Associate Dean for Environmental Programs, Florida State University College of Law
- "I think what we should really be thinking about is how to keep those ecosystems healthy, functioning, and resilient rather than collapsing."
- "The problem is we have one ocean but many governments."
- "As much as we'd like to treat the ocean as one place, there are serious problems for doing that under our current legal system."
- "Marine spatial planning was introduced, internationally at least, before governments were really thinking about climate change. . . . It is not a panacea. . . . It will not really help with climate change mitigation . . . ."
- "Marine spatial planning can help with climate change adaptation, and it" can become "more climate change adaptable."
- "Ocean acidification is the technical fix for anyone who wants to [address] climate change" in the oceans.
- Australia has a climate change adaptation plan for the Great Barrier Reef. In part, it seeks to "fill knowledge gaps," "identify critical ecosystem thresholds," and translate that into management practices.
- "Australia is also using the Reef as a reason to engage in climate change mitigation."
- An example of dynamic zoning possibilities is TurtleWatch, which predicts on a daily basis where sea turtles will be so that fishers can avoid them (and thus prevent closure of the fishery).
March 9, 2012 in Biodiversity, Books, Climate Change, Current Affairs, Economics, Environmental Assessment, Governance/Management, International, Law, North America, Science, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Monday, February 27, 2012
As I explained in a previous post, this year I am blogging about my environmental experiences in China, where I am spending the year as a Fulbright Scholar at Ocean University in Qingdao. In this series, I’ll describe what it’s like to live in a rapidly developing society without effective environmental regulation of air, water, and product safety—but also those environmental realms in which the Chinese surpass American efforts, including public transportation, overall consumption levels, and the national commitment to encouraging cultural change toward a “recycling economy” (while Americans argue about teaching climate science in schools). (For the full background on this series, see my introductory post.)
But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here. Teaching environmental law and policy here is, as you would imagine, endlessly enlightening. Environmental decision-making in the U.S. proceeds from very different underlying assumptions than those most prevalent in China. So it was fascinating to begin class the way I usually do, probing the conflicting assumptions about the goals of natural resources management that make the enterprise so challenging in any context.
As many of you probably do as well, I especially like to raise these issues through the Rocky Mountain Arsenal discussion problem posed by environmental historian Bill Cronon (in Uncommon Ground: Toward Reinventing Nature) and nicely excerpted in the Rasband, Salzman, and Squillace NRL textbook. (Attached photo by Oborseth, with Creative Commons license.) This compound outside of Denver was left so toxic after decades of manufacturing mustard gas, napalm, and other chemical weapons that it was completely sealed off from human contact for years after its closure in 1992—a respite from human intervention during which it evolved into the nation’s “most ironic” wildlife refuge. Wildlife driven out of the developing Colorado front-country was finally able to establish undisturbed habitat in the arsenal, notwithstanding its toxic soils and contaminated waters. If the frogs had five legs, at least those frogs had wetlands to live in.
After sharing the story with my Chinese students, we debated the questions posed by Cronon and the textbook authors—how would you best manage these lands in accordance with nature? Would you initiate the massive disruption required to decontaminate the very earth underfoot, even though it would likely displace (and kill) a lot of wildlife? Or should you leave the five-legged frogs alone to live out their happy if shunted lives, peacefully unaware of the toxic soup in which they live? This began a lively conversation with the class that continued pleasantly and provocatively for months.
But over those same months, several of these students also became involved in my family’s experience of navigating the environmental challenges of our new life in China.
A few were there on the day that we arrived in Qingdao, helping us move into our new apartment. There were huge flakes of paint peeling from every wall, window, and doorway, collecting in piles on the floor no matter how often swept, beckoning my three-year-old like so many giant, lightly-sweetened corn-flakes. My very first question to the student in charge, an environmental law major with impeccable English, was whether I should worry about lead in the paint. “Why?” he asked. But even translating the problem into Chinese (and noting the established problem of lead paint in some Chinese toys) didn’t quite convey my concern. He assured me that children all over China grow up without incident in identical apartments with the same kind of paint, whatever it was. (Between this and the fact that the bathroom drain piped dirty water directly into the kitchen tap, we did not last there long.)
Several students traveled with me on congested area highways on days when I was overcome with the fumes of auto-emissions to which they were so accustomed that they didn’t even notice. Many times, on days thick with foul-smelling cloudy air, they assured me that Qingdao is a coastal city, and that this was just fog. Having lived in coastal cities most of my life, I am quite familiar with the difference between fog and smog. Fog is wet, I would say, and it doesn’t sting your eyes or your throat. “You feel this in your eyes?” they would ask, incredulously. I would later discuss EPA’s new Mercury Rule with a group over lunch, touching on its significance for coal-fired power plants. None had ever heard of the relationship between coal-fired plants and mercury, even though we could see three belching furiously into the air just from where we were sitting. Chinese coal doesn’t have any mercury, one assured me.
Others were on hand when our (second) apartment became infested with insects that ravaged us at night until my son looked like a smallpox patient for all his sores. The bites were so intense that bitten fingers would swell and go numb for hours at a time, preventing us from sleeping at all. After two weeks, we were so obviously exhausted and haggard that even my students were anxiously trying to help resolve the problem. And the solution was so obvious to them: just douse the apartment with successive rounds of pesticides as hard and thoroughly as possible until whatever was preying on us was gone. They contacted the building manager to explore options for beginning the process immediately, and secured a promise to do so. The solution was so simple that they were astonished by our polite but strident refusal to allow it.
Although we were desperate to be rid of the pests, we were even more concerned about the potential poisons used to eradicate them. Indeed, one of the hazards of being an environmental law professor is knowing a little too much about the hazards environmental laws are designed to prevent—such as the neurological consequences of organophosphate exposure. We had already puzzled everyone by declining to use the standard pesticide aerators that most Chinese use to kill mosquitoes, opting for minor suffering over the unknown consequences of an inhaled pesticide that we couldn’t research in English. We knew about some very dangerous Chinese chalk pesticides that are especially harmful to children, but we couldn’t evaluate the safety of those being offered to us now. After my son experienced some unusual neurological symptoms as an infant, we had avoided even American pesticides regulated for consumer safety, and this just didn’t seem like the time to shed precautions. But how to explain this to our kind hosts, for whom pesticides are a regular, widespread, and unquestioned part of life?
I finally just had to acknowledge that our behavior probably seemed completely unreasonable to most Chinese people, who would easily opt to fumigate and forget. I said a little bit about my son’s special medical history and explained that we were probably even more cautious than the average Americans. But I also noted the concerns raised by public health advocates around the world about the negative consequences of introduced chemicals in the environment, especially on young children. I explained the care that many American parents increasingly take in limiting the early exposure of their children to potentially dangerous substances in pesticides, cleaning products, and even plastic baby bottles.
In the end, with a little creativity and help from our friends, we were able to find some non-toxic solutions to our pest problem. But a few days later, one of my favorite students came up to me before class to say that he had continued to ponder the pesticide situation—and the eye-stinging air, and the peeling paint. This was the same student who had assured me not to worry about lead paint in the first apartment, and one of the many who regularly assured me that the cloudy air was coastal fog. “I cannot stop thinking this,” he said. And then in hushed but earnest tones: “China is the Rocky Mountain Arsenal, isn’t it?”
My jaw slowly dropped as I tried and failed to form words. He looked at me steadily, with an intense but quiet pain behind his eyes. I hated the comparison between China and a toxic dump. I especially hated it from this brilliant student, so proud of his country’s accomplishments and protective of the many ways that it differs from mine. But he persisted: “Not perfect comparison, I know, but really, the same basic situation, right? Environment is fouled, and we are like those frogs. We don’t even know it, do we? That we live in a toxic world?”
Still speechless, I nodded gently, to acknowledge the part of the comparison that tragically held some truth. Then I mumbled something semi-coherent about the same problem happening worldwide, and I politely turned away to ready my notes for class (but mostly so that he would not see me brush away the wetness from the corners of my eyes).
The pain behind his broke my heart. He was right, of course (and to some extent, his observation holds true for all of us). But in that moment, the last thing I wanted was for my teaching to make him feel ashamed of his country, or betrayed by his government, or panicked about the future—or, really, anything other than just a little more educated than he had been the day before.
But he is that much more educated, and this I did come to do. I am here to teach American environmental law, and in so doing, I find myself surprisingly torn. In sharing with my students some of the ways that I see the world, I necessarily force them to see theirs a bit differently, and it is not always for the best. To be sure, our educational exchange works in both directions, and that student reminded me that all of us are living in the Rocky Mountain Arsenal in varying degrees. But the Chinese students with whom I spend the most time no longer believe that the cloudy air is fog, and I am sad for them that they will now worry for their children in a way that their neighbors won’t. They will worry about mercury poisoning and lung cancer, and worse—they will feel powerless to change it, at least for now. Without genuine levers of participation in governance, there really is some bliss to be had in ignorance.
Their lost environmental innocence is cause for grief, especially when it brings pain without obvious remedy. As midwife for this loss, I share in that grief. But I also cherish the hope that it will one day be a reason for celebration, when—thanks to their generation’s rising consciousness—the air no longer stings. If nothing else, I hope that my students will have that much more fire in their bellies, as their bellies are increasingly well-fed, to protect the next generation more effectively. And on that front, knowing even this small sample of Chinese young people fills me with confidence.
Monday, February 20, 2012
I’m delighted to be joining the Environmental Law Prof Blog as a contributing editor. This year, I’ll be blogging about my environmental experiences in China, where I’m spending 2011-12 as a Fulbright Scholar and Visiting Professor at Zhongguo Haiyang Daxue (Ocean University of China). I am teaching a full schedule of American law courses while researching Chinese environmental governance, joined by my husband, 4-year old son, and 73-year-old mother. In our small two-bedroom apartment, we live like a typical Chinese family, with three generations and an only child.
To be sure, the living is not always easy—but perhaps our most important lesson of all will be to learn what it means to downsize from American consumption levels and live a little more like the rest of the world. (And this is a sobering lesson indeed.)
In light of our rich reservoir of experience here, my blogging will be less academic and more experiential—less about the fact that Beijing will finally begin monitoring air pollution at the 2.5 micron level, and more about how life changes when you are immersed in those particulates day after day. (For more academic reporting, see the excellent Chinese blog, China Environmental Law.) To summarize the overall sentiment of the series, anyone complaining about excessive environmental regulation in the U.S. really ought to spend a year living in China.
Better still, they should bring their young children or aging parents.
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. No amount of legal research could have prepared me for the differences in environmental perspective that I would encounter here (and even my undergraduate degree in Chinese language and culture falls short). So I hope that sharing these stories will help illuminate some of the cultural gaps we will inevitably encounter as Chinese and American partners work together to solve our global environmental challenges.
I thought I'd start by explaining a little bit about where many of these stories come from. We are fortunate to be living in the beautiful city of Qingdao, Shandong Province, which is on the coast of northeastern China across the Yellow Sea from South Korea. Qingdao is home to about seven million people—a small (!) city by Chinese standards. It is a wonderful place of disarmingly friendly people, complete with weather-worn mountains overlooking a peaceful sea. Home to several of China’s biggest brands and among the ten busiest commercial shipping ports in the world, Qingdao has won several awards for green development. And yes, it is where the famous Chinese beer comes from (“Tsingtao” is just a different Romanization for “Qingdao”!)
Ocean University is one of China's key comprehensive universities under the direct supervision of the Ministry of Education. It has about 30,000 students and faculty and ranks among the top 10% of universities nationwide. The law school has an especially dynamic environmental program, offering master's and doctoral degrees and hosting seven research institutes addressing marine law, coastal zone management, sustainable development, and other important topics. (Of note, the Law School is currently inviting applications from both students and faculty for some very intriguing programs of exchange--about which I've posted separately here.)
The Dean and faculty have been extremely welcoming, and the students are delightful. Teaching them is especially gratifying because they are so hungry for the kind of engaged and participatory teaching that we regularly use in American law schools. Most of them have never before been asked what they themselves think, or to work all the way through a doctrinal problem, or to question their instructors. It is truly a privilege to be part of this cross-cultural exchange, and I will always be grateful to both the China Fulbright Program and my hosts here at Ocean University for the opportunity.
Nevertheless, the challenges of living here—specifically, the environmental challenges—can be harrowing. In the next few months, I’ll blog about the experiences of living without clean air, potable water, or faith that products in the marketplace won’t make us sick. I'll write about the many ways that established environmental problems foster newer ones, like the consequences of poor public water quality on the ever-increasing stream of waste products to cope with it. I'll write about our palpable homesickness for the kind of government oversight we take for granted to protect us in circumstances ranging from pharmaceutical to pedestrian safety. (For all the chest-thumping in some American circles about the perils of socialism, China is a Tea Partier's dream in many respects—as far away from the Nanny State as most would ever wish to venture.)
Yet I’ll also write about the environmental realms in which the Chinese put Americans to shame—for example, the amazing public transportation system in cities like ours, which can be navigated cheaply and conveniently by bus at all hours (and has a subway system in the making). Or the full-scale embrace of alternative sources of energy, with a solar water heater on every roof. Or the national government’s commitment to price carbon on at least some level--a part of the new Five Year Plan beginning experimentation in seven cities. Or the general willingness among most Chinese to make personal sacrifices for the greater good.
But since this is a blog and not a novel, I'll save my first tale for the next post--a story about how Colorado's Rocky Mountain Arsenal led to surprising insights among my Natural Resources Law students about their own experiences in China. Stay tuned!
February 20, 2012 in Air Quality, Asia, Climate Change, Energy, Food and Drink, Governance/Management, International, Land Use, Law, Sustainability, Toxic and Hazardous Substances, Water Quality, Weblogs | Permalink | Comments (3) | TrackBack (0)
Wednesday, February 15, 2012
Existing buildings – in their physical presence, design, and operations - challenge the goal of sustainability in the built environment. Older buildings can be leaky, inefficient, and even unhealthy, and they typically do not perform well against the expectations that we draw from today’s green building techniques and technology.
There is evidence that green building programs are impacting the existing building stock through retrofit programs offered in LEED and others. The number of projects certified under LEED for Existing Buildings: Operations and Maintenance (EBOM) surpassed those certified under its new construction counterpart in 2009. Spending on remodeling and retrofits has been on the rise and is predicted to grow to $10.1 billion-$15.1 billion by 2014. Recently, the USGBC announced that LEED-certified retrofits have outpaced new construction certifications on a cumulative basis.
We might view green retrofits of existing buildings as significant. Of course, the past is a major obstacle for achieving sustainability in the built environment, and the provision of alternatives to “business as usual” in existing structures is itself a victory. In addition, and perhaps more importantly, the growth in green retrofits suggests that sustainability may involve changes in people as well as buildings.
- Keith Hirokawa
Friday, February 10, 2012
Increasingly, I find it important to bring the practical into the classroom. To be upfront, this view is not new for me. I joined the academy with the presumption that deep theory, legal doctrine, and careful analysis cannot stand alone; the best learning couples heavy doses of those with the real world. Five years in, consistent feedback from students and the bar have overwhelmingly confirmed what I initially assumed. At least some professors also seem to agree.
Injecting the practical is comparatively easy in some courses. In my civil procedure class, for instance, I am constantly trying to find ways to help students see that the rules are not just principles; they are tools that you can only truly understand if you pick them up and use them repeatedly. In the litigation context, avenues for making this clear are both discrete and fairly digestible, even in the first semester. Students in my class attend two court proceedings. They draft a complaint or an answer. They write a set of discovery. They complete a CALI exercise that tries to replicate the discovery process of a case. It is not uncommon on my exams for students to be asked to draft a motion, complete the next entry in a deposition transcript, or create a notice of appeal. Certainly, I have no illusions that any first-year student will leave my class a master of any of these tasks. But the hope is that by being exposed to some of them, students not only begin to gain an understanding of what litigators do on a daily basis, but also learn the material more deeply while laying a foundation of skills they will actually need in practice.
The question, then, is whether this kind of hybrid learning is also useful for more specialized, upper level law classes, particularly those in the environment, energy, and natural resource fields. More and more, I have become convinced that it is. Conceptually, this makes sense. Lawyers in any field have specific, practical skills they cannot be effective without. There is no reason this is not also true for the areas in which we teach. Having practiced for seven years, I know that's the case. The environmental lawyer is always translator: To handle a pollution case, you have to comprehend risk analysis and toxicology. To grapple with energy rates or mergers, a grasp of economics is essential. To do endangered species, biology is fundamental. In all these, an understanding of the industry the lawyer represents, or that the law at issue regulates, cannot be foregone.
The problem for the classroom, however, is twofold. First, there is a chicken-and-egg dilemma. Students cannot really dive into the details of many topics on a practical basis until they have the basics of the law under control. But getting to how that law really works is tough without practical exercises. Second, there is an allocation quandary. Every minute spent on a practical exercise deepens students’ understanding of that topic but does so at the expense of another subject area that could be covered instead. In courses that present as many fascinating issues as ours do, making this choice is often more painful—for me at least—than deciding, for example, whether to do another day on summary judgment or covering standards of review in civil procedure. At some point, moreover, too much of the practical in the classroom converts the substantive topic to a clinical one; there is a balance to find.
Nevertheless, I believe we owe it to our students to add this dimension to their understanding of the field. To that end, here are a few things we are doing in my energy law class this semester.
- Field trips to various energy sites, including to PacifiCorp’s Gadsby Power Plant earlier this week.
- Mock cost-of-service ratemaking exercises, using a hypothetical utility’s rate base, debt structure, and production costs.
- Guest lectures and case studies on actual energy controversies.
I’d be thrilled to hear what others are doing in their energy, environmental, or natural resources classes to add practical or experiential learning to the classroom.
(photo credit: S.P. Hansen)
Wednesday, February 1, 2012
The idea of fostering environmental literacy among students is important to human well-being. As such, it is promising to learn that public and private schools across the nation have been busy greening both the curriculum and educational facilities. States now commonly adopt and follow environmental literacy standards in public schools or participate in sustainability programs (such as, for example, Florida, Illinois, Kentucky, Maryland, and Wisconsin). EPA’s recent issuance of the voluntary School Siting Guidelines promotes sincere consideration of environmental factors in siting decisions. Reporting on innovative sustainability educational programs and tools has been increasingly active and grown with the development of reporting tools by the Association for the Advancement of Sustainability in Higher Education and others.
This post focuses on efforts to provide healthy and low-impact school buildings and recognizes that green school buildings lead to healthier students that can learn by the examples set by educators. As recently reported by the National Education Association, “Green schools cost $3 more per square foot, but generated $74 per square foot in benefits from energy savings, increased attendance, and teacher retention.” The U.S. Green Building Council's (USGBC) Center for Green Schools released its first annual Best of Green Schools list. The List recognizes significant accomplishments in creating sustainable learning environments in 10 categories. Relevant factors include efforts to occupy green-certified buildings, create collaborative sustainability programs, increase the sustainability in school infrastructure, improve departmental efficiency and inter-departmental interaction, and engage in energy conservation and other cost savings. The categories and recipients are as follows:
1) Best Moment for the Movement
The U.S. Department of Education has been recognized in the Moment for the Movement category for its Green Ribbon Schools program. On the blog of the Department of Education, Secretary of Education Arne Duncan encourages educators, parents, and administrators to engage in the process of identifying the schools that will “have no environmental impact, make a positive effect on students’ health, and enable students to become environmentally literate citizens who are well prepared for the 21st Century economy.” The Green Ribbon awards program recognizes schools for their combined achievement (or progress) in three areas: 1) energy efficiency; 2) student and environmental health; and 3) high quality education in environmental literacy. At least 33 states, Washington D.C. and the Bureau of Indian Education have announced plans to participate in the program. (See Michigan’s recent announcement here)
2) Best Region
Sacramento’s Mayor Kevin Johnson has organized the Sacramento region, recipient of the Region award, to pursue a shared vision “to transform the Sacramento region into the Emerald Valley – the greenest region in the country and a hub for clean technology.” The effort has included schools as a focus for improvement, both in the content of education and educational facilities. The Greenwise Regional Action Plan includes a policy to create a $100 million revolving loan fund for green school retrofits across the region.
3) Best State
Ohio school planners are no stranger to sustainable initiatives. The State of Ohio received the award in the State category for its outstanding commitment to healthy learning environments. The USBGC reports that Ohio leads the nation with 315 LEED registered and certified projects. The effort continues and is encouraging other green school projects.
4) Best City
Philadelphia, which oversees the eighth largest school district in the country, is recognized in the City category for its focused efforts to improve the sustainability of the City’s school facilities. With help from the Delaware Valley Green Building Council’s Green Schools Circle, the School District of Philadelphia has committed to seeking certification at LEED Silver or higher for all new construction projects. The District has also adopted a plan to green the city’s existing 291 public schools. The District boasts the Thurgood Marshall Elementary School as the state’s first LEED certified existing building and the Kensington High School for Creative and Performing Arts, which was recognized as the first public high school in the nation to achieve LEED Platinum certification.
5) Best School
The School award was given to Lake Mills Middle School in Lake Mills, Wisconsin. In March of 2011, Lake Mills Middle School became the nation’s first public school to achieve LEED Platinum certification. The building improvements were completed $700,000 under budget and included a 36,632 square foot renovation and a 59,865 square foot expansion, native landscaping to facilitate studies on biodiversity and ecology, preference for local materials, and efficient heating and cooling systems.
6) Best Higher Ed Innovator
University of Texas at Dallas was recognized in the Higher Education Innovator category for their LEED Platinum Student Services Building. Occupants of this four-story, 74,000-square-foot building benefit substantially from natural sunlight and views to the outside. The USBGC reports that the building has an annual electrical savings of $60,000. Rick Dempsey, associate vice president for business affairs and the facilities management and campus sustainability officer, notes that the Student Services Building may serve as a launching point: “[B]y taking into account environmental considerations and future operational costs, the building exceeded our performance goals and has allowed us to envision new ways of creating sustainable new space on campus.”
7) Best Collaborator
In the Collaborator category, Kentucky is recognized for driving collaborative support for green schools. Rep. Jim DeCesare (R) and Rep. Mary Lou Marzian (D) are credited for forming the Kentucky Green Schools Caucus as a catalyst for forward-thinking state legislators to coordination and education on the benefits of green schools and facilitating bipartisan participation in green school resolutions.
8) Best Convenor
Boston Mayor Thomas Menino was recognized in the Convenor category for drawing an impressive interdisciplinary crowd of researchers to the Research Summit on Childhood Health and School Buildings. The attendees at the Summit debated and explored the relationships between school facilities, student health, and academic performance. The Summit adds to Boston’s wide range of improvements in public and private educational facilities.
9) Best Policy Maker
The District of Columbia City Council was recognized in the Policy Maker category for its passage of the Healthy Schools Act of 2010 and 2011 updates. The 2011 updates included a commitment to become the first participant in the U.S. Department of Education’s Green Ribbon Schools program. The District has established itself as a leader by adopting goals and guidance pertaining to student indoor and outdoor health, student access to meals and physical activities, Farm to School programs and health education, and sustainable buildings and premises.
10) Best K-12 Innovator
The K-12 Innovator award recognizes the public-private partnership resulting from the Illinois’ General Assembly’s October 2009 adoption of House Joint Resolution 45 (HJR 45). In March of 2011, the HJR 45 task force issued a report that inventoried the financial and physical resources of the school system, reported on sustainability surveys and case studies in furtherance of best practices among Illinois schools, and envisioned resources and strategies to implement the Environmental Literacy for Illinois 2010 Strategic Plan.
- Keith Hirokawa
Friday, January 27, 2012
- Nuclear Power: Does It Have a Future in the United States? (John Ruple, Michael Stern, Christopher Thomas)
Friday, January 13, 2012
The ABA Section of Environment, Energy, and Resources (SEER) will host its 41st Annual Conference on Environmental Law this March 22-24 in Salt Lake City. If you have not been before, this is one of, if not the, premier environmental law conferences in the nation. (If the weather turns right, there could also be really great skiing.) The conference used to be known as the "Keystone Conference."
As usual, there is a fantastic line-up. Just a few samples include:
- Environmental Protection on the Chopping Block? How Environmental Law and Enforcement Will Respond to Funding Cuts and Other Restrictions
- Hydraulic Fracturing on Trial: Possibilities, Pollution, and Preemption
- Federal Air Regulation of the Energy Sector: What to Expect for Oil, Natural Gas, and Coal
- Time and Scale: Emerging Challenges to NEPA and the ESA Getting Real About “Growing Communities”—How New Laws and Regulations Are Changing the Game of Urban Expansion
Of particular note, this year's conference has a number of opportunities for students, including panels designed to help acclimate students to emerging issues in the field and scholarships for students to attend (deadline: February 14, 2012).
To register, go to the conference website.
Thursday, December 1, 2011
When the U.S. Supreme Court hears oral argument in PPL Montana, L.L.C v. State of Montana on December 7, it will consider issues of constitutional history dating to the early days of the American Republic and legal sources that some claim (and others dispute) trace to Magna Charta and the Institutes of Justinian in Roman law. The court will also consider a factual record that includes the journals of the Lewis and Clark expedition. Moreover, the case involves a challenge for the more conservative Justices on the Court, who arguably have to choose between their concerns for private property rights and protection of state sovereignty.
Despite these fascinating underpinnings of the case, some might argue that the core legal issue is interesting only to a water law or property law scholar: What is the proper legal standard to determine “navigability” for purposes of who owns the beds and banks of a particular water body?
The real-world stakes in PPL Montana, however, are potentially extremely important. The dispute involves whether the State of Montana or either private power companies or the federal government own the beds and banks of the Missouri, Clark Fork and Madison Rivers, and therefore whether the State is entitled to compensation for decades of hydroelectric power production by private companies using dams built on state land. More broadly, the Court’s decision could affect ownership and control of hundreds of miles of rivers throughout the country, particularly in the West. And more importantly, with state ownership comes a public trust duty to protect those waters for shared public values in navigation, commerce, fisheries, and environmental protection. (See, e.g., National Audubon Society v. Superior Court (1983).)
Because of common confusion about the legal import of the word “navigability”, it is also important to clarify what is not at stake in the case. This case will notaffect the longstanding dispute over the federal government’s jurisdiction over some kinds of water bodies under the Clean Water Act (CWA). Thus far, the Supreme Court has decided CWA jurisdiction cases largely on statutory grounds, interpreting the term “waters of the United States” in the statute. (See Rapanos v. United States (2006).) To be sure, the Supreme Court has indicated that the term “navigable” remains relevant to the geographic reach of the CWA, and that this issue may have constitutional dimensions. (See Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers (2001).) However, the Supreme Court has established a different—and for most purposes broader—standard of “navigability” for Commerce Clause authority than for title. Commerce clause authority extends to non-navigable tributaries of navigable waters and to waters that are navigable after artificial improvements. (See Kaiser-Aetna v. United States (1979); United States v. Appalachian Elec. Power Co., (1940).) The title test is broader than the Commerce Clause test only where a waterway is navigable solely for intrastate commerce; but one can hardly make that claim for the Missouri River and a major tributary (Clark Fork), which are part of the largest interstate river system in the contiguous states, along with a major tributary of the Columbia River system (the Madison River).
No one in the PPL Montana case disputes the core principle of state ownership of the beds and banks of navigable waters. The Supreme Court confirmed that aspect of state sovereignty in the first half of the nineteenth century (Martin v. Waddell’s Lessee (1842)), and then added that newly admitted states as well as the original 13 share those same rights under the equal footing doctrine of the U.S. Constitution. (Pollard’s Lessee v. Hagan (1845).) Later, the Supreme Court clarified that states held those lands in trust for their people, and therefore could not allow use of those lands for exclusive private benefit without safeguarding their public trust purposes and values. (Illinois Central R. Co. v. Illinois (1892).)
Rather, in PPL Montana, the power company petitioners argue that the Montana trial court and the Montana Supreme Court employed the wrong legal standard in determining whether the particular waters at issue in this case were navigable at the time Montana was admitted to the Union, the timeframe the Supreme Court has held relevant for purposes of ownership.
First, PPL argues that the Montana courts improperly applied the navigability test to the “whole river” rather than a segment-specific inquiry. In United States v. Utah (1931), for example, the Supreme Court found state ownership for large portions of the Colorado and Green Rivers in Utah, but held that title remained in the United States (which owns the surrounding lands) through Cataract Canyon, for which there was insufficient evidence of navigability at statehood. In other cases, however, the Supreme Court has held that temporary interruptions in navigability defeat neither navigability nor title so long as those stretches can be portaged such that the river continues to serve as a continuous highway for commerce. (See The Montello (1874).) Cataract Canyon was never portaged as part of a continuous highway for commerce, and anyone (like me) who has hiked that cliff-bound region knows that such an effort was likely impossible, especially when Utah was admitted into the Union. The State of Montana, however, introduced evidence that the rivers at issue in PPL Montana were portaged historically to transport gold, furs, and other goods in interstate commerce. Interstate commerce stopped at Cataract Canyon, but not at the waterfalls along Montana’s Rivers or many similar waterways throughout the nation.
PPL’s plea for a segmented approach to navigability really amounts to an attack on the factual findings of the state court, an issue the Supreme Court did not accept for review and on which the Court should defer in any event. From a policy perspective, however, PPL’s argument invites a piecemeal pattern of ownership that could impede a state’s efforts, under the public trust doctrine or otherwise, to manage rivers and their component resources as ecosystems. This is a matter of great importance to watershed managers and to businesses and members of the public who use and enjoy rivers for recreational or commercial navigation, for fishing, for water supplies, and for other economic and environmental purposes.
Second, PPL argues that the Montana courts improperly entertained evidence of current-day recreational use to support a finding of navigability at statehood, as well as evidence of other allegedly irrelevant commercial river uses such as log floating. PPL’s argument about current-day usage is ironic, because in the lower courts it argued that the State should not be allowed to rely on historical records of navigability because they are hearsay (no one remains alive who has personal knowledge of navigability when Montana was admitted to the Union in 1889) and inherently unreliable. If a State cannot use historical evidence of navigability at statehood, and it cannot use post-statehood evidence as probative of the legal test of navigability at statehood, states will have no reasonable way of proving ownership for many rivers. Proof will become increasingly difficult to harness as time passes, inviting private landowners to raise more and more challenges to navigability and thereby to strip the states of legitimate claims to title and, more importantly, to eliminate essential public trust protections.
As to the use of log floating to demonstrate navigability, floating logs to market was a major aspect of commerce in heavily forested parts of the country, and was critical to such major development as construction of the transcontinental railroads. The Supreme Court has approved of such evidence in prior cases (see St. Anthony Falls Water Power Co. v. Board of Water Com’rs of City of St. Paul (1897), but more important, who is better suited than the states (through their courts) to determine what kinds of economic activity are sufficient to show that rivers were highways for commerce for purposes of proving navigability for title?
From a rhetorical perspective, the briefs filed by PPL and various amici on its side appeal to the inclinations of a majority of the Supreme Court to protect private property and the stability of title against governmental takings. The State of Montana and amici on its side, on the other hand, emphasize the importance of preserving state sovereignty and the equal rights of states on admission to the Union. A ruling in PPL’s favor, however, could do serious damage both to property rights and to state sovereignty, because it would effectively constitute a private taking of public property and accompanying public trust protections to subsidize private resource development. The Court can best protect both sets of interests by upholding the Montana Supreme Court’s adherence to U.S. Supreme Court precedent in finding state ownership in the beds and banks of the rivers in question.
Guest post written by Robert Adler, Professor of Law, University of Utah, S.J. Quinney College of Law; Wallace Stegner Center. This post was cross-posted on the Center for Progressive Reform blog.
Wednesday, November 16, 2011
In celebration of the 40th Anniversary of the Clean Water Act, the Fordham Environmental Law Review plans to publish an issue devoted to water. They have issued a call for papers, with a deadline of December 15, 2011. The details follow:
CALL FOR ARTICLE PROPOSALS
The Fordham Environmental Law Review will devote its Spring 2012 issue (Vol. 23.2) to articles on Water, in recognition of the 40th anniversary of the Clean Water Act.
The editors of the ELR are looking for articles discussing a range of environmental, natural resource, energy law, and policy topics associated with issues of water and riparian rights. Articles may address state, national, or international issues. Suggested topics include:
- Clean Water Act
- Waste water treatment and disposal
- Citizen suits
- Invasive Species
- Conflicts between federal and state rights
- Congressional activism on environmental/ energy/resource issues
- Environmental enforcement at the federal, state and local level
- EPA and Surface Mining Act
- Agency issues
- Congress v. Agencies
- Role of science
- Cross-jurisdictional consistency/standards
ARTICLE PROPOSALS ARE DUE BY December 15, 2011.
Authors will work with an editor from the ELR Board throughout the publication process. Articles should be between 8,000 and 25,000 words and should be written in standard legal journal style (footnotes conform to The Bluebook: A Uniform System of Citation). ELR article guidelines can be found on the ELR website at: http://law.fordham.edu/fordham-environmental-law-review/5518.htm.
Contact: Lee Van Put, Senior Notes & Articles Editor, Fordham Environmental Law Review