Environmental Law Prof Blog

Chartering Sustainable Transnational Corporations

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

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

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

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

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

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

Let Clean Water Flow

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

Let Clean Water Flow 

Most of the green team confirmed today: Jackson, Sutley, and Clinton remain

E & E News reported:

The Senate unanimously confirmed seven of President Barack Obama's Cabinet picks today, including Agriculture Secretary Tom Vilsack, Energy Secretary Steven Chu and Interior Secretary Ken Salazar, but postponed debate on his nominees to lead the State Department, U.S. EPA and White House Council on Environmental Quality...In a post-inauguration session, the Senate quickly approved Chu, Salazar, Vilsack, Education Secretary Arne Duncan, Homeland Security Secretary Janet Napolitano, Veterans Affairs Secretary Eric Shinseki and Office of Management and Budget Director Peter Orszag.

Senate Majority Leader Harry Reid (D-Nev.) also scheduled a 3 p.m. roll call vote for tomorrow on Sen. Hillary Rodham Clinton (D-N.Y.), Obama's nominee to be secretary of the State Department.... The Senate did not take up two other Obama nominations: Lisa Jackson to be the next EPA administrator and Nancy Sutley to be the chairwoman of the White House CEQ. Both nominees did not face significant scrutiny during their confirmation hearings last week, leaving several Senate Republican and Democratic leadership aides today searching for answers about who was holding up the two Obama environmental picks....Andrew Wheeler, Republican staff director for the Senate Environment and Public Works Committee, said ranking member James Inhofe (R-Okla.) supports both nominees and isn't sure who raised the objection to Jackson and Sutley's confirmations, though he said the objection to Sutley being confirmed today was because her position is not Cabinet-level.

Visitors from Mozambique and Inaugural Awe

Today I had the pleasure as Director of our law school's Certificate Program in Law and Government to host two visitors from Mozambique through the International Leadership Visitor Program funded by the State Department.  This program focuses on bringing emerging leaders from developing countries concerned with good governance to the United States, to expose them first-hand to various aspects of American governance.  Last year, we hosted 16 visitors from more than a dozen African countries.  Today's session was more informal and a bit more manageable.

Our visitors were the Governor of a northern province and the second in command of a major department within the national government.  They were interested in learning how the United States trains its graduate or advanced students in law and government.  We were able to share some aspects of our program, including attending and speaking with my first year Lawmaking Process class.  They were also fascinated by how the United States is evolving with its election of President Obama. 

The treat, of course, for me was to learn first-hand something about Mozambique, its politics and policy, and role in Africa.  Certainly, its thorough integration of woman into the power structure and into all aspects of administration is a lesson for Americans as well as other Africans.  This is beginning to happen here, witness Hillary Clinton, Nancy Pelosi, Diane Feinstein, the corps of talented Governors through the US and the league of women joining the Obama administration.  But, until a woman stands where President Obama stood today, we still lag behind virtually every developed country in the world -- and many, such as Mozambique, in the developed world.  Women took their place in the struggle for independence in Mozambique -- even on the battlefield.  They have continued to serve in Parliament and throughout government, with stature and an assured equality that American woman still lack.

Their challenge is to solidify their independence and their emerging democracy -- and to solve the problem of poverty.  There, President Obama gave them reason to hope: "To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds.  And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to suffering outside our boders; nor can we consume the world's resources without regard to effect.  For the world has changed, and we must change with it."

As you who read this blog regularly no doubt realize, these words, especially about providing clean water and reducing our consumption of resources, were music to my ears.  And perhaps to yours.

We have a President who in the midst of the raging storms of the failure of our economy and two wars, understands that "each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet."  That the work to be done includes the promise that "[w]e will harness the sun and the winds and the soil to fuel our cars and run our factories."  That "we will work tirelessly...to roll back the specter of a warming planet."

As my new friends from Mozambique realize, President Obama has not become just an American president, but he is today the most important leader of the whole world.  Not just by virtue of our relative prosperity and military power, but by virtue of our willingness to turn the page of history and to pledge to live up to our responsibilities to people seeking peace and justice and equality and means to enjoy their full measure of happiness throughout the world.

Today, my friends, let us celebrate with all of our new friends...and pledge ourselves to making this vision become a reality, in law, in policy, and in how we conduct our obscure, everyday lives.

ELI Endangered Laws Writing Competition

FOURTH ANNUAL ENDANGERED ENVIRONMENTAL LAWS
STUDENT WRITING COMPETITION (2008-09)

Co-sponsored by
The Environmental Law Institute
The American Bar Association Section of Environment, Energy, and Resources
The National Association of Environmental Law Societies

The Constitution has long been interpreted by the courts and understood by most Americans to
support comprehensive environmental protections. However, arguments targeting the
constitutional legitimacy of environmental laws continue to gain traction in the federal courts. To
inform the debate, we invite law students to submit papers exploring current issues of
constitutional environmental law.

AWARD: $2000 cash prize and an offer of publication in the Environmental Law Reporter.

TOPIC: Any topic addressing recent developments or trends in U.S. environmental law that
have a significant constitutional or “federalism” component. (See sample topics below.)

ELIGIBILITY: Students currently enrolled in law school (in the U.S. or abroad) are eligible,
including students who will graduate in the spring or summer of 2009. Any relevant article, case
comment, note, or essay may be submitted, including writing submitted for academic credit.
Jointly authored pieces are eligible only if all authors are students and consent to submit.
Previously published pieces, or pieces that are already slated for publication, are ineligible.

DEADLINE: Entries must be received no later than 5:00 PM ET on April 6, 2009. Email essays
(and questions) to Lisa Goldman at goldman@eli.org. You will receive a confirmation by email.

SUBMISSION REQUIREMENTS:
Cover page. This page must include the following information:
• Title;
• Author’s name, year in law school, and expected graduation date (to facilitate impartial
judging, the author’s name and law school must NOT appear anywhere in the essay, other
than on the cover page);
• Law school name and address;
• Author’s permanent and school mailing address, email address, and phone number
(IMPORTANT: indicate effective dates for all addresses);
• Abstract (limited to 100 words) describing the piece;
• Certification that the article has not been published and is not slated for future publication
(while authors may submit their articles to other competitions, publication elsewhere will
disqualify an entry from further consideration); and
• Statement as to where the author(s) learned about this competition

Format. Submissions may be of any length up to a maximum of 50 pages (including footnotes),
in a double-spaced, 8.5 x 11-inch page format with 12-point font (10-point for footnotes).
Citation style must conform to the Bluebook. Submissions must be made by email attachment in
Microsoft Word format, with the cover page as a separate attachment.

CRITERIA AND PUBLICATION: The prize will be awarded to the student work that, in the
judgment of ELI, ABA-SEER, and NAELS, best informs the debate on a current topic of
constitutional environmental law and advances the state of scholarship. ELI reserves the right to
determine that no submission will receive the prize. While only one cash prize is available, ELI
may decide to extend multiple offers of publication in the Environmental Law Reporter.

For more about ELI and its Endangered Environmental Laws Program, including past writing
competitions, please visit www.eli.org and www.endangeredlaws.org. Information about
ABA/SEER may be found at www.abanet.org/environ/. Information about NAELS may be found
at www.naels.org.

SAMPLE TOPICS FOR THE 2008-09 ELI-ABA-NAELSWRITING COMPETITION
Students may choose a topic from below or develop their own constitutional environmental law topic.
1) Challenges to environmental plaintiffs’ standing to be heard in federal courts–
a) Standing to sue to enforce environmental laws. E.g., Earth Island Institute v. Ruthenbeck, 490
F.3d 687 (9th Cir. 2007), cert. granted, Summers v. Earth Island Institute, 128 S. Ct. 1118 (Jan.
18, 2008); implications of Massachusetts v. EPA, 549 U.S. 497 (2007), and progeny; Coalition
for a Sustainable Delta v. Carlson, 2008 WL 2899725 (E.D. Cal. July 24, 2008).
b) Standing to sue for “increased risk of harm.” E.g., implications for environmental protection
of an ever-higher bar in the D.C. Circuit for establishing standing in risk-based injury cases. See
Public Citizen v. NHTSA, 513 F.3d 234 (D.C. Cir. 2008) (Sentelle, C.J., concurring) and 489 F.3d
1279 (D.C. Cir. 2007); NRDC v. EPA, 440 F.3d 476 (D.C. Cir.), vacated, 464 F.3d 1 (D.C. Cir.
2006).
2) Application to climate-change cases of other constitutional theories, such as statutory and foreign
affairs preemption, political question doctrine, dormant Commerce Clause, and Compact
Clause. E.g., possible challenges to regional cap-and-trade schemes, such as RGGI and the WCI; the
impact of a future federal cap-and-trade law on state and regional climate frameworks; challenges to
California’s tailpipe emissions regulations, as adopted by 16 other states; and efforts by states and
local entities to recover damages from industry for contributions to global climate change.
See Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F.Supp.2d 295 (D. Vt. 2007),
appeal filed, No. 07-4342, -4360 (2d Cir.); Central Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F.
Supp. 2d 1151 (E.D. Cal. 2007), aff’d on reh’g, 563 F. Supp. 2d 1158 (E.D. Cal. 2008); Lincoln
Dodge, Inc. v. Sullivan, 2008 WL 5054863 (D.R.I. Nov. 21, 2008); California v. General Motors
Corp., 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007), appeal filed, No. 07-16908 (9th Cir.); Comer v.
Murphy Oil, No. 05-436 (S.D. Miss. Aug. 30, 2007) (granting motion to dismiss), appeal argued, No.
07-60756 (5th Cir. Nov. 3, 2008); Connecticut v. American Electric Power Co., 406 F.Supp.2d 265
(S.D.N.Y. 2005), appeal filed, No. 05-5104 (2d Cir.); and Kivalina v. Exxonmobil Corp., No. 08-
01138 (N.D. Cal. filed Feb. 26, 2008).
3) Legislative developments and potential court challenges to Congress’s authority under the
Commerce Clause and other constitutional provisions (e.g., Spending Power, Property Clause, and
Treaty Power) to afford comprehensive protection to the “waters of the United States.” E.g., Clean
Water Restoration Act (H.R. 2421, S. 1870). In the wake of SWANCC v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006), and the resulting
confusion for Clean Water Act administration and enforcement, much of the debate over the
constitutional reach of federal water protections has shifted from the federal courts to Congress.
4) Invocation of constitutional due process to cap punitive damages in environmental cases. See Exxon
Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), establishing as an upper limit in maritime cases a 1:1
ratio between compensatory and punitive damages. Justice Ginsburg, writing separately, wondered if
the Court intended to signal that this ratio would eventually become a ceiling imposed by due process.
5) Impact of preemption jurisprudence (including in non-environmental cases) on environmental
protection. See Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008); Levine v. Wyeth, 944 A.2d 179 (Vt.
2006), cert. granted, Wyeth v. Levine, 128 S. Ct. 1118 (Jan. 18, 2008); Pacific Merchant Shipping
Association v. Goldstene, 517 F.3d 1108 (9th Cir. 2008).

EU Pesticide Ban advances through EU parliament

Yesterday, the European Parliament voted to ban highly toxic pesticides unless their effects can be proven to be negligible. If endorsed by 27 EU ministers, countries with similar geography and climate could decide whether farmers may use specific products. This implements an agreement negotiated in December that substantially reduced the number of substances to be banned.  December agreement

The EU will list EU-approved "active substances," excluding 22 ingredients that are classified as carcinogenic, mutagenic or toxic to reproduction. The chemical "blacklist" includes eight substances used in the manufacture of herbicides, 11 used in fungicides and three in insecticides, many of them produced by German chemical giants Bayer and BASF -- including Ioxynil, Amitrol and Iprodion.  That list will provide the basis for national EU governments to approve pesticides nationally or, via mutual recognition with 120 days, in the north, center, and south regions of the EU.  Currently, approvals apply only for individual countries and there is no deadline set for mutual recognition approvals. 

Already licensed pesticides remain available until their 10-year authorization expires, avoiding a sudden large-scale withdrawal of pesticides from the market.

EU countries will be allowed to ban a product, because of specific environment or agricultural circumstances.  Also, certain restrictions will be put on pesticide use, including banning most aerial crop-spraying, strict conditions on pesticides use near aquatic environments and drinking water supplies, and buffer zones requirements around water and protected areas along roads and railways.

Haiti's Resurrection

Dear Readers and Friends:

It is so difficult this time of year to decide how to spend one's limited resources in a way consistent with our duty to reduce human suffering and make the world a better place.  It is especially difficult now, when all of us are a bit uncertain about our financial future and have lost a considerable amount of our paper wealth.  But, I am concentrating for now on Haiti, the most impoverished nation in the Western hemisphere. Below I post a letter from a friend in Haiti, in the hope that some of you may help in the resurrection of Haiti after this fall's hurricane season. Obviously, my friend is a Christian (as I am), but human need knows no religion.  Be assured that any money sent him through the church will be used to meet profound human need, not the promotion of a creed.  And, if you are reluctant to send money to a faith-based organization, just let me know and I'll be happy to find a secular route for your gift.

[We] are writing you all with a great mix of emotions – sadness and frustration, great doubts, fear, but also some sense of hope. Many of you already know that in the past five weeks, Haiti was affected by four hurricanes – Fay, Gustav, Hanna and Ike, resulting in profound destruction throughout the entire country. Chavannes Jean Baptiste, the director of MPP (Mouvman Peyizan Papay–Farmer’s Movement of Papay) noted this past Monday that the situation is without precedent.  MPP along with other national and international organizations are beginning to get a grasp of the level of havoc and devastation, but it seems impossible that anyone will ever be able to make a full accounting of the loss of life and property.

Many of the root causes of the poverty in Haiti–weak government, inadequate communication, lack of roads and other infrastructure, virtually non-existent social services–have always kept Haitind other countries with similar conditions, open to the full effects of disasters such as this. These same conditions now make it difficult and in some cases impossible for a quick response to those who need help the most. It is even nearly impossible to know who needs the help the most. In the last two days, I have received reports via e-mail of whole communities without food and water, with no help in sight. Lack of real roads have always been part of the isolation of many of these communities. Now, the serious damage to bridges and other weak points along the roads that do exist has increased the number of people who are isolated from any easy access, as well as deepening the level of isolation for those who have always lived at the limits.

Given all this, [our] sense of sadness is easy to understand. We live along side people who carry on their daily lives with grace, great generosity and wonderful senses of humor, despite the profound limitations. Now, these same people, some of whom are close personal friends, have lost homes and possessions and we know they have no real resources, or hope, for recuperating their losses. We have a great need to help, but we ourselves do not have the ability to provide any help that seems significant, even at the local level. Not even for just the families who are part of MPP – at least 52 families whose homes were flooded last week. Multiply the needs of the folks in Hinche by all of communities in nearly every part of Haiti, you can easily understand our frustration. What can we do? Within the sadness and frustration I also feel some guilt, because we ourselves are safe and suffered no damage at all to our home or even to the project where I work.

We also wonder whether the kind of help that is starting to come could possibly be adequate, given the enormous need. And will the assistance that comes be directed to address some of the root causes of poverty in  Haiti?  Will the funds help rebuild roads and bridges so that they are better than they were, or will the be used to make the highways and byways merely passable, subject as always to rapid degradation by even normal use? And will the international lending agencies, such as the International Monetary Fund, encourage the Haitian government to create “safety nets” that can help families and communities recuperate losses? Or will they follow their standard policy, insisting on budgetary stringency, regardless of the needs of the most vulnerable–the poor in general, and women, children and the aged in particular?

It is impossible to write about the current catastrophe without mentioning as well the ongoing global wide crises of food prices which are spiraling out of US control. In the project that I help coordinate – the crew prepares and shares two meals a day. We produce all of the vegetables for these meals ourselves, but for the items we can’t produce (corn, rice, coffee, oil etc), we paid a total of around  $100 in  May.  In August, we spent around $135 for the same supplies and in September we spent $175. In a country where over half the population earns less than $US 1.00 a day, the situation was devastating, before the flooding will now die from hunger, giving in at last to ongoing deprivation?

And the fear we feel, where does that come from? Haitians have a marvelous way of dealing with difficult situations that I have come to respect a great deal. They sing, they laugh, they joke and suddenly, the load lightens and the way forward opens up again. There is also a great deal of tolerance, or patience, with unjust conditions. But there are limits. The suffering from the food crisis was becoming nearly insufferable before the hurricanes. If there is not a rapid, reliable and comprehensive response to the current situation, especially by the Haitian government, there will almost surely be massive unrest, probably focused, as always, in Port au Prince, the capital of     Haiti.

At the end of such a letter, what could we say about hope that could balance the discouragement I’m sure you can sense in what I write? First and foremost is faith – [our] faith as well as the profound faith of Haitians in general. We do believe in a God who makes a way where there is no way – our God who sent our savior, Jesus Christ, to die on the cross, not only to demonstrate God’s profound solidarity with his chosen people, but also to completely and finally put an end to despair. Because we are Christ followers, we hope, and there is nothing that can separate us from that hope, from the constant renewal of that hope. As [we] and several crew members were heading south, into Port au Prince,... we passed through an area just north of the city of    Mirebelais (Mee be lay) where the farmers have access to irrigation. In field after field as we traveled down the road, farmers were out in those fields transplanting rice, hoeing rice, irrigating rice. Just one day after Hurricane Ike had passed through, the fields were already moving from devastation into abundance, farmers moving from being victims to being the agents of their own resurrection. What a miracle. What a God.

Note:

Please be part of Haiti’s resurrection. Contributions for the crisis in Haiti may be sent to Presbyterian Disaster Assistance (PDA). Please write on the check “DR-000064 Haiti Emergency.” Mail it to:

Presbyterian Church (USA)
Individual Remittance Processing
P.O. Box 643700
Pittsburgh PA 15264-3700 

 

OMB's attack on risk assessment

Those of you who remember OMB's ill-fated revision of risk assessment methods (torpedoed by the NRC) may want to consider OMB's recent adventure into the scientific findings underlying risk assessments.  One of the axioms of proper risk assessment/management has been to insulate as far as possible the science from the risk management decision.  Obviously, OMB didn't get the memo! 

OMB Watch published this report:

In April, the U.S. Environmental Protection Agency (EPA) announced it was changing its process for studying the risks of toxic chemicals under its Integrated Risk Information System program. The changes give the White House Office of Management and Budget (OMB) — an office with little scientific knowledge — a greater role in the risk assessment process. EPA will now involve OMB at every stage of the IRIS assessment process. OMB already reviews — and often edits — agencies' proposed and final regulations. The office will now have several opportunities to review and alter the scientific findings that serve as the basis for chemical exposure standards. OMB and EPA have stuck by the changes despite criticism from Congress, a critical report from the Government Accountability Office (GAO), and objections of EPA staff over the role of OMB in agency science.

27th Annual Public Interest Environmental Law Conference

DON’T FORGET TO MARK PIELC IN YOUR 2009 CALENDARS!

The 27th Annual Public Interest Environmental Law Conference

Solidarity! United Action for the Greener Good

 

February 26th – March 1st

University of Oregon School of Law

Eugene, Oregon

www.pielc.org

 

Read on for planning updates and reminders . . .

 

- Last day to submit panel suggestions is January 15th, but the sooner the better, as our timeslots are already starting to fill up.  Go to http://www.pielc.org/pages/panel_suggest.html

- Submit artwork for PIELC 2009 posters and t-shirts now!  Email submissions to aengel@uoregon.edu, or mail them to 1221 University of Oregon School of Law, Eugene, OR 97403, attn: LAW

- Coming in mid-January, our website will be updated with more travel, lodging, and childcare options than ever at www.pielc.org.

- Our confirmed keynote speakers are:

Katherine Redford – Co-Founder and US Office Director of Earth Rights International, is a graduate of the University of Virginia School of Law, where she received the Robert F. Kennedy Award for Human Rights and Public Service. She is a member of the Massachusetts State Bar and served as counsel to plaintiffs in ERI's landmark case Doe v. Unocal. Katie received an Echoing Green Fellowship in 1995 to establish ERI, and since that time has split her time between ERI's Thailand and US offices. In addition to working on ERI's litigation and teaching at the EarthRights Schools, Katie currently serves as an adjunct professor of law at both UVA and the Washington College of Law at American University. She has published on various issues associated with human rights and corporate accountability, in addition to co-authoring ERI reports such as In Our Court, Shock and Law, and Total Denial Continues. In 2006, Katie was selected as an Ashoka Global Fellow.

Riki Ott – Experienced firsthand the devastating effects of the Exxon Valdez oil spill—and chose to do something about it. She retired from fishing, founded three nonprofit organizations to deal with lingering social, economic, and harm, and wrote two books about the spill. Sound Truth and Corporate Myths focuses on the hard science-ecotoxicology, and the new understanding (paradigm shift) that oil is more toxic than previously thought. Not One Drop describes the soft science--the sociology of disaster trauma, and the new understanding that our legal system does not work in cases involving wealthy corporations, complex science, and class-action. Ott draws on her academic training and experience to educate, empower, and motivate students and the general public to address the climate crisis and our energy future through local solutions. Ott lives Cordova, Alaska, the fishing community most affected by the disaster.

Stephen Stec – Adjunct Professor at Central European University (HU) and Associate Scholar at Leiden University (NL).  As well as the former head of the Environmental Law Program of the Regional Environmental Center (REC), Stec is one of the authors of The Aarhus Convention Implementation Guide and main editor for the Access to Justice Handbook under the Aarhus Convention. The subject of the Aarhus Convention goes to the heart of the relationship between people and governments. The Convention is not only an environmental agreement; it is also a Convention about government accountability, transparency and responsiveness.  The Aarhus Convention grants the public rights and imposes on parties and public authorities obligations regarding access to information and public participation and access to justice.

Fernando Ochoa – Legal Advisor for Pronatura Noroeste a Mexican non-profit organization and the Waterkeeper Program for the Baja California Peninsula, and founding member and Executive Director for Defensa Ambiental del Noroeste (DAN), an environmental advocacy organization. Mr. Ochoa has helped establish more than 60 conservation contracts to protect more than 150 thousand acres of land in Northwest Mexico.  As the Executive Director of DAN, Mr. Ochoa has successfully opposed several development and industrial projects that threatened ecosystems in the Sea of Cortes and the Baja California Peninsula, having saved critical habitat for Gray Whales, Whale Sharks and other endangered species.  His work has set important legal precedents on environmental law in order for local communities to gain participation in decision making processes, transparency and access to justice.

Claudia Polsky – Deputy Director of the Office of Pollution Prevention and Green Technology (P2 Office) in California’s Department of Toxic Substances Control (DTSC).  The P2 Office is central to the implementation of  new (2008) legal authority that gives California expansive ability to regulate toxic chemicals in consumer products.  Instead of focusing on cleanup of past pollution -- the historic emphasis of DTSC -- the P2  Office looks to the future by preventing the use of toxic materials in consumer products and industrial operations.  Ms. Polsky's duties include implementing California’s Green Chemistry Initiative, overseeing hazardous waste source-reduction programs, and working with staff engineers to evaluate and deploy new environmental technologies that reduce the need for toxic chemicals. The Office's work involves interaction with stakeholders as diverse as electronics manufacturers, breast cancer activists, analytical chemists, and venture capitalists.  Before joining DTSC, Ms. Polsky worked for the California Department of Justice, Earthjustice, Public Citizen Litigation Group, and The Nature Conservancy. She holds an undergraduate degree from Harvard University, and a J.D. from Boalt Hall School of Law, where she was Editor in Chief of Ecology Law Quarterly. She is also a former Fulbright Scholar to New Zealand, receiving a Masters of Applied Science in Natural Resource Management.

Gail Small – The director of Native Action, an environmental justice organization in Lame Deer, Montana. Small's political engagement in energy issues began in the early 1970s, when she and other high school students were sent by the tribal government to visit coal extraction sites on the Navajo Reservation and in Wyoming, after the Bureau of Indian Affairs (BIA) signed leases opening the Northern Cheyenne Reservation to strip-mining. Small later served on a tribal committee that successfully fought for the cancellation of the BIA coal leases. She received her law degree from the University of Oregon and formed Native Action in 1984. Her work at Native Action includes litigation, drafting tribal statutes, and creating informational resources for tribal members.

Derrick Jenson – bio coming soon

SEE YOU THERE!

The Conference Co-Directors

Cadence Whiteley

Erin Farris

Jasmine Hites

Andy Engel

Teresa Jacobs

Questions? Suggestions? Comments?  email askpielc@uoregon.edu

CGD Contribution to Development Index - Environment

Go check out the Center for Global Development's 2007 Commitment to Development Index page.  Its got some great graphics that you have to see to appreciate.  Unsurprisingly, EU countries lead the way on the Center for Global Development's index of commitment to environmentally sustainable development and the US trails the pack, scoring under 3 on a 10 point scale, while EU countries tend to score 6 or above with Norway near 9.  Center for Global Development Commitment to Development Index    CGD reports: Norway tops this year’s environment standings. Its net greenhouse gas emissions fell during 1995–2005, the last ten years for which data are available, thanks to steady expansion in its forests, which absorb carbon dioxide. Also high is Ireland, whose economy grew 6.6 percent per year faster in the same period than its greenhouse gas emissions; and the U.K., which has steadily increased gasoline taxes and supported wind and other renewable energy sources. Spain finishes low as a heavy subsidizer of its fishing industry while Japan is hurt by its high tropical timber imports. The U.S. has not ratified the Kyoto Protocol, the most serious international effort yet to deal with climate change. That gap, along with high greenhouse emissions and low gas taxes, puts the U.S. last. Two notches up, Australia cuts a similar profile, with the highest per-capita greenhouse gas emissions in the group.         The environment component of the CDI compares rich countries on policies that affect shared global resources such as the atmosphere and oceans. Rich countries use these resources disproportionately while poor ones are less equipped to adapt to the consequences, such as global warming. Countries do well if their greenhouse gas emissions are falling, if their gas taxes are high, if they do not subsidize the fishing industry, and if they control imports of illegally cut tropical timber. A healthy environment is sometimes dismissed as a luxury for the rich. But people cannot live without a healthy environment. And poor nations have weaker infrastructures and fewer social services than rich countries, making the results of climate change all the more damaging. A study co-authored by CGD senior fellow David Wheeler predicts that a two-meter sea level rise would flood 90 million people out of their homes, many of them in the river deltas of Bangladesh, Egypt, and Vietnam. The environment component looks at what rich countries are doing to reduce their disproportionate exploitation of the global commons. Are they reining in greenhouse gas emissions? How complicit are they in environmental destruction in developing countries, for example by importing commodities such as tropical timber? Do they subsidize fishing fleets that deplete fisheries off the coasts of such countries as Senegal and India?

 

Cabinet Speculation

 Here are some predictions/picks on the Cabinet positions of most significance to environmental matters according to Politico's semi-official leaks.  My picks and comments are in green.

Attorney general: Virginia Gov. Tim Kaine; Eric Holder, who was deputy AG under Clinton and is now with Covington & Burling and led Obama’s vice presidential search; Massachusetts Gov. Deval Patrick; Arizona Gov. Janet Napolitano. Odds on favorite is Holder

Supreme Court nominee: Washington superlawyer Robert Barnett; legal scholar Cass Sunstein; Massachusetts Gov. Deval Patrick; 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor of New York; Elena Kagan, dean of Harvard Law School. Consensus is it would most likely be a woman. First nominee has got to be a woman - Kagan is smart and has credibility, but this is a much shorter list than Obama will look at.

Secretary of State: New Mexico Gov. Bill Richardson; Sen. John F. Kerry (D-Mass.); Sen. Richard Lugar (R-Ind)  State is too important to give to a Republican, Kerry's too valuable in the Senate, and Richardson was UN Ambassador so he knows  international diplomacy

Environmental Protection Agency administrator: Former Sen. Lincoln Chafee (R-R.I.); Kathleen McGinty, former head of the Pennsylvania Environmental Protection Agency Again, McGinty is an odds on favorite who knows her stuff

Commerce secretary: Penny Pritzker, Kansas Gov. Kathleen Sebelius, Sen. Olympia Snowe (R-Maine)  Need some Republicans and Olympia Snowe is a liberal one; although she's more valuable in the Senate.  So maybe one of the non-environmental positions will go to a Republican and Obama will stick with a Democrat.  I'd take Sebelius -- she's articulate and mid-Western.

Secretary of the Interior: Rep. Jay Inslee (D-Wash.), Robert F. Kennedy Jr.  This is the position most likely to go to someone who hasn't been in the running.

Secretary of Energy: California Gov. Arnold Schwarzenegger (R), Sen. Jeff Bingaman (D-N.M.); My pick would be Lincoln Chafee, a liberal Republican who understands environmental issues as well as energy issues.  Again, Bingaman's too valuable in the Senate. 

Secretary of Agriculture: Former Iowa Gov. Tom Vilsack, Rep. Collin Peterson (D-Minn.)  Vilsack is odds on favorite.

 

 

 

 

 

Strategic Trade - An Opening for Sustainability

Yesterday the Guardian published an opinion piece by Kevin Gallagher (Washington Consensus Dead?) on Nobel Laureate Paul Krugman's work on strategic trade policy, pointing out that his Nobel Prize is the nail in the coffin of the free trade "Washington consensus."  Krugman explains why it is rational for governments to engage in strategic use of tariffs and subsidies in order to create a niche industry.  The same sort of strategic trade policy makes it rational for governments to engage in strategic use of tariffs and subsidies to support ecological sustainability and social well-being.  Perhaps the pendulum will swing against the free traders enough so that we can protect the global environment through trade and other economic sanctions against nations unwilling to act in a socially and environmentally responsible manner.

Gallagher's opinion:
Last Friday the New York Times quoted the World Bank as saying "There's no question the Washington consensus is dead," indeed it "died at the time of the $700bn bail-out." If the bail-out is death, then awarding Paul Krugman the Nobel prize for economics is the nail in the coffin.

Paul Krugman did not win the Nobel for his popular critiques of Bush-era economic policy in his New York Times column, though the column no doubt helped raise his profile outside the economics profession. The Nobel committee cited Krugman's theoretical contributions to the economics of international trade, the policy implications of which fly in the face of the Washington consensus ( where the mantra is to free up trade every chance you get).

Among Krugman's achievements in the field of international trade is "strategic trade policy". In this work Krugman (and others) showed that tariffs and subsidies to domestic industries can divert profits away from highly concentrated foreign firms and increase a nation's income. Though Krugman himself shies away from prescribing such policy, the textbook example of strategic trade theory is the choice by the Brazilian government to subsidise and develop the aircraft company Embraer. The free-trade theories espoused by the Washington consensus would warn Brazil of the high cost of subsidisation. To free traders, Brazil should focus on its advantage in agricultural products and forget about climbing the manufacturing ladder. Strategic trade theory helps explain why Brazil was willing to gamble in the short term to become one of the finest aircraft manufactures over the long term. They squeezed foreign firms out of the market and carved out a global niche for themselves.

In another classic book, Development, Geography, and Economic Theory, Krugman argued that the government should also play a role in connecting beneficiaries of strategic trade policy to the overall economy. Evoking the work of economists such as Albert O Hirschman and Paul Rosenstein Rodan, Krugman argued that developing countries often needed a "big push" of coordinated government investments to help strategic industries get off the ground and to link the growth of such industry to the economy as a whole.

Problem is, today's trading system is out of whack with these frontier issues in economic thought. In a study published by Boston University's Pardee Centre for the Study of the Longer-Range Future, trade lawyer Rachel Denae Thrasher and I examined the extent to which the World Trade Organisation (WTO) agreements, European Union trade agreements, and United States trade agreements bit into a nation's ability to deploy strategic trade and other industrial policies to benefit from the globalisation process.

We find that in general the world's trading system makes it much more difficult for nations to craft strategic trade and industrial policies for growth and development. Indeed, enshrined in virtually all trade agreements is the "national treatment" idea that says a nation may not treat its domestic industries any differently than foreign ones. That may make sense when rich nations compete against each other, but in a world where 57.6% of the population lives on less than $2.50 per day, one size can't fit all. This restriction is accentuated in provisions for foreign investment, intellectual property, and subsidies.

Interestingly however, we find that there is more "policy space" for innovative growth strategies under the WTO than under most regional trade agreements – especially those pushed by the US. In fact, we find that US-style trade agreements are the most severe in constraining the ability of developing countries to deploy such policy. EU agreements, interestingly, tend to have the same policy space as the WTO.

It doesn't make sense that the World Bank and (implicitly) the Nobel committee are declaring the death of the Washington consensus when the US is choking the ability of nations to use policies that are gaining increasing legitimacy in theory and practice. Change is in the air. As we know in the aftermath of the financial crisis, the US has justified – like never before – a strong role for government in economic affairs. And, of the two presidential candidates, Obama has expressed concern over the direction of US trade policy and has pledged to rethink it. Perhaps these events will make strategic trade and industrial policy rise again.

Community-based Water Development

I just returned from an International Water Training Conference hosted by EDGE Outreach in Indiana. 

It was a bit different from your standard conference: I actually learned to do something.  I can build and install a community water purification system.  I can build and install a community water treatment system.  I can do a community water, sanitation, and hygiene assessment.  I can lead community hygiene education.   I even learned a bit about how to do all of this in a cross-cultural situation!

The training was aimed at people who are actively doing community-based water development work.  The development community itself appears to be broken into three parts: (1) the official development organizations, funding projects through official development aid and international financing from the World Bank, IMF, regional development banks and such; (2) the non-governmental organizations run by professional water management types -- who provide water and sanitation in developed countries and who do charitable work in developing countries -- WaterAid and Water for People; and (3) the missionaries who work on lots of issues throughout the developing world.  This conference was organized and aimed at the third group.

I spent time talking to people who work in Ghana, Guyana, Kenya, Haiti, Costa Rica, and dozens of other places.  The need is immense and unrelenting.   1.5 million people are dying of preventable water borne diseases every year -- a child every 15 seconds.  You really can install a village water purification system for a bit more than $ 1000; you really can develop new water supplies for a village for $ 5000 - $15,000.  You can really make a difference.

One of the best parts of the conference was Bill Deutsch from Auburn discussing watershed management and the need to look upstream to prevent some of the water contamination problems.  The light bulbs going on in people's minds were almost visible -- there will be some sustainable water systems developed throughout the world thanks to the wisdom he shared.  The other concept he shared was that most of the work being done is first and second "generation" development work -- aimed at disasters and individual communities.  The work that isn't being done and needs to be done is third and fourth "generation" development work -- the regional, national, and international policy levels.  That's really my work in the area.  We need to secure the human right to clean drinking water.  We need to assure that the community-based water development work is sustainable in terms of being coordinated with integrated water resources development and with climate change adaptation planning.  We need to find ways to increase the funding available for community-based water development -- beyond official aid and international financial institutions.  This is the challenge.  Let me know if you want to help.

Environmental Case Summaries

Here are Findlaw's environmental case summaries:

Table of Contents
ENVIRONMENTAL LAW CASES

• City of Bangor v. Citizens CommunicationsCo.
• Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc. (continuation page)
• Wilderness Workshop v. US Bureau of Land Mgmt.
• Am. Wildlands v. Kempthorne
• N.C. v. EPA
• Florida Dept. of Envtl. Protection v. ContractPoint Florida Parks, LLC (continuation page)

   To view the full-text of cases you must sign in to FindLaw.com.                

U.S. 1st Circuit Court of Appeals, July 09, 2008
City of Bangor v. Citizens CommunicationsCo., No. 07-2193, 07-2255, 07-2759, 07-2777
In a suit involving the responsibility for the cleanup of the contamination of a river bed in Maine under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA), entry of a consent decree allocating certain responsibilities among various parties and dismissal of motions for judgment as to non-settling third and fourth parties' liability are affirmed where: 1) appellants had standing to challenge the consent decree; 2) the deference given to Maine's decision to sign onto the consent decree is not the same as that given to the EPA in a consent decree, and does not displace the baseline standard of review for abuse of discretion; 3) there was no abuse of discretion in not scrutinizing the purported assignment to test its validity; 4) there was no abuse of discretion in finding the decree to be procedurally fair; 5) the district court's substantive fairness finding was well within its discretion; 6) there was no abuse of discretion in a finding ! that the consent decree complied with CERCLA; and 7) there was no obligation to rule on the motions for judgment before it approved the decree. Read more...

U.S. 10th Circuit Court of Appeals, July 08, 2008
Wilderness Workshop v. US Bureau of Land Mgmt., No. 08-1165
In a suit challenging a decision by agency defendants authorizing defendant/intervenor to construct, operate, and maintain a natural gas pipeline through roadless national forest land, denial of plaintiffs' motion for preliminary injunction is affirmed where: 1) plaintiffs failed to show a substantial likelihood of success as to a claim that defendants' authorization of the project violated the Forest Service's Roadless Rule; 2) they also failed to show a substantial likelihood of success as to a NEPA claim; and 3) there was no abuse of discretion as to the analysis of the remaining prongs of the preliminary injunction test. Read more...

U.S. D.C. Circuit Court of Appeals, July 08, 2008
Am. Wildlands v. Kempthorne, No. 07-5179
In a petition to the Fish and Wildlife Service to list the westslope cutthroat trout as a threatened species due to interbreeding with other trout species, denial of the petition by the agency and a denial to supplement the record with material supporting plaintiffs' cause are affirmed where: 1) although new data might require a future listing of the fish as threatened, the agency engaged in reasoned decision-making based on the best available science; and 2) the district court did not abuse its discretion in refusing to supplement the record. Read more...

U.S. D.C. Circuit Court of Appeals, July 11, 2008
N.C. v. EPA, No. 05-1244
In a petition for review of various aspects of the Clean Air Interstate Rule (CAIR) and several challenges to the EPA's authority under Title I and Title IV, the circuit court vacates the rule in its entirety based on several fatal flaws in the rule, and the fact that the Environmental Protection Agency (EPA) adopted the rule as one, integral action. Read more...

 

 

U.S. 10th Circuit Court of Appeals, July 08, 2008
Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., No. 06-1434, 06-1435, 06-1463
In a suit brought by a federal contractor against a subcontractor after it terminated the subcontractor for default, wherein the subcontractor counterclaimed for wrongful termination, judgment and award to defendant on its counterclaim is affirmed in part, reversed in part, and remanded where: 1) a prior appeal did not discharge a supersedeas bond and it was still in effect, but surety's liability, however, is limited to the penal sum of the bond; 2) prejudgment interest was properly awarded but was improperly calculated on the entire damage award from the date of termination; 3) a duplication of damages occurred and a remand for remittitur or new trial on damages was required; 4) plaintiff was entitled to judgment as a matter of law on a bond equitable adjustment; 5) challenges to the judgment against plaintiff as to another subcontractor and surety failed; and 6) the judgment requires amendment to reflect the accurate post-judgment interest rate. Read more..


Supreme Court of Florida, July 10, 2008

Florida Dept. of Envtl. Protection v. ContractPoint Florida Parks, LLC, No. SC07-1131
Florida Statutes section 11.066 was not intended to require a specific legislative appropriation before a governmental entity can be required to pay a valid judgment entered into for breach of contract with a private entity. Read more...

   

          

Proposed Revision of Forest Service Mining Regulations

Yesterday, the U.S. Forest Service proposed revision of the bonding and environmental requirements for hard-rock mines operating within national forests or grasslands.  Those regulations can be found at 73 FR 25694-01.  The summary and proposed provisions are provided below.  Comments are due May 27, 2008.

They purport to be based on the 1999 NRC recommendations.  It sure took them awhile -- the entirety of the Bush administration!

SUMMARY: This proposed rule would revise the regulations for locatable minerals operations conducted on National Forest System lands. The revised rule would apply to prospecting, exploration, development, mining and processing operations, and reclamation under the Mining Law of May 10, 1872, as amended. The Forest Service invites written comments on this proposed rule.

DATES: Comments must be received by May 27, 2008. Pursuant to the Paperwork Reduction Act, comments on the information collection burden that would result from this proposal must be received by May 27, 2008.

ADDRESSES: Send written comments to Forest Service, USDA, Attn: Director, Minerals and Geology Management (MGM) Staff, (2810), Mail Stop 1126, Washington, DC 20250-1125; by electronic mail to 36cfr228a@fs.fed.us; by fax to (703) 605-1575; or by the electronic process available at Federal eRulemaking portal at http:// www.regulations.gov. If comments are sent by electronic mail or by fax, the public is requested not to send duplicate written comments via regular mail. Please confine written comments to issues pertinent to the proposed rule; explain the reasons for any recommended changes; and, where possible, reference the specific wording being addressed. All comments, including names and addresses when provided, will be placed in the record and will be available for public inspection and copying. The public may inspect comments received on the proposed rule in the Office of the Director, MGM Staff, 5th Floor, Rosslyn Plaza Central, 1601 North Kent Street, Arlington, Virginia, on business days between the hours of 8:30 a.m. and 4 p.m. Those wishing to inspect comments are encouraged to call ahead at (703) 605- 4646 to facilitate entry into the building.

Comments concerning the information collection requirements contained in this action should reference OMB No. 0596-New, the docket number, date, and page number of this issue of the Federal Register. Comments should be sent to the address listed in the above paragraph.

FOR FURTHER INFORMATION CONTACT: Mike Doran, Minerals and Geology Management Staff, (208) 373-4132. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877- 8339 between 8 a.m. and 8 p.m., Eastern Daylight Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

Background and Need for Proposed Rule

Locatable mineral operations on National Forest System (NFS) lands have been regulated under the rules now at 36 CFR part 228, subpart A, since 1974. Under these rules, the Forest Service requires operators proposing to conduct such operations to file with the agency a notice of intent, or a plan of operation, or to amend a plan of operation, as appropriate, whenever the *15695 proposed mineral operations might or would likely cause significant disturbance of surface resources.
The regulations at 36 CFR part 228, subpart A, apply to all prospecting, exploration, and mining operations, whether within or outside the boundaries of a mining claim, conducted under the Mining Law of May 10, 1872, as amended. These regulations were originally promulgated in 1974 as 36 CFR part 252, and were based on the Forest Service's authority under the Organic Administration Act of 1897. The rules were redesignated as 36 CFR part 228, subpart A, in 1981. In 2005, a final rule clarifying when a plan of operations is required (§ 228.4(a)) also was adopted. However, the regulations have not been significantly revised since 1974.
The Forest Service recognizes that prospectors and miners have a statutory right, not a mere privilege, under the Mining Law of May 10, 1872, the Surface Resources Act of 1955, 30 U.S.C. 611-615 (sometimes referred to as the Multiple Use Mining Act of 1955 or as Public Law 167), and the Organic Administration Act of 1897, to go upon certain National Forest System lands for the purposes of locatable mineral exploration, development, and production. The Forest Service may not unreasonably restrict the exercise of that right. Under the revised regulation, Forest Service administrators would at all times apply the test of reasonableness, in that the regulations and their administration cannot extend beyond what is needed to preserve and protect the National Forests from needless surface resource damage. Particular consideration would be given to the economics of operations, the stage of the operations, along with other factors in applying the test of reasonableness.
The regulations at 36 CFR part 228, subpart A, have served the Forest Service fairly well in bonding and otherwise administering exploration, mining, and processing operations on National Forest System lands. However, since 1974, several inefficiencies and problems associated with these regulations have become apparent and field managers are asking that the regulations be revised and updated.
This proposed rule would implement recommendations contained in the 1999 National Research Council (NRC) publication "Hard Rock Mining on Federal Lands." This publication resulted when Congress asked the NRC to assess the adequacy of the regulatory framework for locatable mineral operations on Federal lands. In September 1999, the NRC published its conclusions and recommendations. Although the report concluded that the overall regulatory structure for locatable mineral operations on Federal lands is effective, the report recommended revision of several aspects of the Forest Service's regulations. Some of the concerns identified by the NRC are the same concerns the Forest Service has about the existing regulations, specifically, revising the regulations to improve the process for modifying and suspending injurious operations and adjusting reclamation bonds. The report also recommended major changes in the way the Forest Service approves exploratory operations causing less than 5 acres of surface resource disturbance. In response to this recommendation, the Forest Service proposes to adopt regulations similar to the Bureau of Land Management's (BLM) regulations governing notice level operations set forth in 43 CFR subpart 3809.
The Forest Service contacted representatives of the mining industry about its effort to revise 36 CFR part 228, subpart A. The Forest Service briefed those representatives as to what the agency then saw as its six main concerns with its current locatable mineral operations. These were:
(a) New provisions that essentially formalize the current process for, reviewing and approving proposed plans of operations;
(b) Streamlining the process for approving short-term, low impact operations;
(c) New provisions that improve the process and criteria for modification of an approved plan of operations;
(d) Providing additional detail with respect to the process the Forest Service uses to inspect operations and to remedy the operator's or the operations' noncompliance with applicable requirements;
(e) A new provision that explains the Forest Service's and the operator's responsibilities under the Clean Water Act in connection with the review and approval of proposed plans of operations; and
(f) Providing additional detail with respect to the process the Forest Service uses to review and adjust reclamation bonds to ensure that those bonds cover the full cost of reclaiming National Forest System lands.

Description of Substantive Proposed Changes by Section

PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER

Section 223.14 Where Timber May Be Cut

Section 223.14(d) would be amended to add a citation to 36 CFR part 228, subpart A, to permit certain cutting of timber on a mining claim pursuant to a bonded notice as well as a plan of operations, and to otherwise reflect 36 CFR part 228, subpart A, as it would be revised by this proposed rule.

PART 228--MINERALS

Subpart A--Locatable Minerals

Section 228.3 Definitions

Eleven new terms would be added to the definitions section. Definitions of the terms "occupancy," "permanent structure", and "residence" would be set forth in § 228.3 to provide consistent interpretations for the public and for Forest Service personnel. These definitions would help reduce confusion about the propriety of proposed occupancy and residence on National Forest System lands in connection with locatable mineral operations, part of which has resulted from imprecise language in some Federal court decisions concerning such occupancy and residence. The three new definitions also would make the Forest Service regulations more consistent with the BLM Occupancy and Use regulations for Locatable minerals, 43 CFR subpart 3715. In addition, these definitions would be consistent with amendments to 36 CFR part 261, subpart A, proposed by this proposed rule.
The term "reasonably incident" would be defined to clarify that, by law, mineral operators are restricted to using only reasonable methods of surface disturbance that are appropriate to their stage of operations regardless of the validity of any mining claim on which the operations take place. This clarification is warranted by case law (such as United States v. Richardson, 599 F. 2d 290 (1979); cert. denied, 444 U.S. 1014 (1980)) and the Surface Resources Act of 1955 (30 U.S.C. 612). Reasonable and necessary uses of the National Forest System lands must employ sound and accepted practices to avoid or minimize adverse environmental impacts. These uses also must employ sound, accepted operational methods appropriate for the applicable stage of mining operations, including prospecting, exploration, production (mining and processing), or *15696 reclamation. The Forest Service General Technical Report INT-35, Anatomy of a Mine, from Prospect to Production (section 10-7), describes and gives examples of the reasonable stages of a mining operation.
The proposed term "reclamation" would be redefined to include seasonal and interim measures and long-term treatment after mineral operations have ceased.
The term "reclamation bond" would be included to clarify that interest earning escrow accounts may be used to cover the costs of long-term reclamation measures.
The term "significant disturbance of surface resources" would be defined at § 228.3(n) of the proposed rule to provide general criteria for evaluating the significance of the disturbance of surface resources. However, as discussed in a portion of the June 6, 2005, Federal Register notice for the final rule amending 36 CFR 228.4(a) (70 FR 32713) quoted below, it is impossible to define this term definitively given the variability of National Forest System lands.
"Questions and Answers developed by the Forest Service when the 1974 rule was originally adopted explained that a definition cannot be given that would apply to all lands subject to these regulations. Disturbance by a particular type of operation on flat ground covered by sagebrush, for example, might not be considered significant. But that same sort of operation in a high alpine meadow or near a stream could cause highly significant surface resource disturbance. The determination of what is significant thus depends on a case-by-case evaluation of proposed operations and the kinds of lands and other surface resources involved. In general, operations using mechanized earthmoving equipment would be expected to cause significant disturbance. Pick and shovel operations normally would not. Nor would explosives used underground, unless caving to the surface could be expected. Use of explosives on the surface would generally be considered to cause significant disturbance. Almost without exception, road and trail construction and tree clearing operations would cause significant surface disturbance. The Department continues to believe that a universal definition of the term 'significant disturbance' cannot be established for NFS lands. The lands within the NFS subject to the United States mining laws stretch from Alaska on the north, the Mississippi River on the east, the border with Mexico on the south, and the Pacific Ocean on the west. NFS lands within that large area occur in widely diverse climates, hydrogeologic conditions, landforms, and vegetative types. Due to the great variability of NFS ecosystems, identical operations could cause significant disturbance in one situation and insignificant disturbance in another.
However, the record for the 1974 rulemaking at 36 CFR part 228, subpart A, does identify tests that are of use in deciding whether proposed disturbance of NFS resources constitutes 'significant disturbance' for purposes of that rule. A March 28, 1974, letter from Forest Service Chief John McGuire to Senator Ted Stevens in response to Senator Stevens' comments on the rule proposed in 1973 explains that 'significant disturbance' refers to operations 'for which reclamation upon completion of [that operation] could reasonably be required,' and to operations that could cause impacts on NFS resources that reasonably can be prevented or mitigated."
Nonetheless, locatable mineral operations that fall within the criteria set forth in proposed § 228.3(n) would be judged as likely to cause a significant disturbance of surface resources absent unusual circumstances. It also should be understood that an operation not meeting these criteria might nonetheless be likely to cause "significant disturbance of surface resources" given the nature of the lands and surface resources that would be affected by proposed operations. Thus, even when proposed operations would not be judged as likely to cause significant disturbance of surface resources under the general criteria set forth in § 228.3(n), individualized evaluation of proposed operations might reveal that those operations indeed would be likely to cause "significant disturbance of surface resources."
The Federal Register notice for the final rule amending 36 CFR § 228.4(a) further notes that the March 28, 1974, letter from Forest Service Chief John McGuire "also emphatically makes the point that the Forest Service's locatable mineral regulations do not use the term 'significant' in the same manner as that term is used in the National Environmental Policy Act." It continues to be necessary to distinguish between "significant" disturbance of National Forest System surface resources and "significant" effects on the quality of the human environment. The Forest Service does not interpret a determination that locatable mineral operations are likely to cause significant disturbance of surface resources as an automatic invocation of Section 102(2) (C) of the National Environmental Policy Act of 1969, thus requiring preparation of an environmental impact statement (or an environmental assessment). This was never intended when what is now 36 CFR part 228, subpart A, was originally promulgated nor is it intended now.
As the Federal Register notice for the final rule amending 36 CFR 228.4(a) additionally observed, "Judicial decisions rendered in the 30 years since the rule at 36 CFR part 228, subpart A was promulgated also give context to the meaning of the term 'significant disturbance [of surface resources].' For example, it is well established that the construction or maintenance of structures, such as cabins, mill buildings, showers, tool sheds, and outhouses on NFS lands, constitutes a significant disturbance of NFS resources. United States v. Brunskill, 792 F.2d 938, 941 (9th Cir. 1986); United States v. Burnett, 750 F. Supp. 1029, 1035 (D. Idaho 1990)." These decisions demonstrate the erroneousness of equating a "significant" disturbance of National Forest System surface resources and a "significant" effect on the quality of the human environment. It is extremely unlikely that the maintenance, or even the construction, of such structures standing alone would require preparation of either an environmental impact statement or an environmental assessment unless the National Forest System lands at issue possess some noteworthy status such as being part of a proclaimed wilderness or the designated habitat for a threatened or an endangered species.
Of course, some operations that would be likely to cause significant disturbance of National Forest System surface resources also would be likely to cause significant effects on the quality of the human environment. Thus, some few, by no means all, proposed operations would be expected to require preparation of environmental impact statements. More frequently, but not uniformly or even regularly, proposed operations that would be likely to cause significant disturbance of National Forest System surface resources would trigger preparation of an environmental assessment, which might or might not be the basis for a Finding of No Significant Impact. (Whenever an environmental assessment or environmental impact statement would be required, it would be prepared by the Forest Service.)
The Forest Service requests comments on the adequacy of the proposed definition of "significant disturbance of surface resources" and its discussion set forth above in drawing the distinction between significant disturbance of *15697 National Forest System surface resources and significant effects on the quality of the human environment.
The proposed term "surface use determination" describes a management tool currently used by the authorized officer to determine if a proposed or ongoing use is reasonably incident. The inquiry would consist of an examination and a report completed by a certified mineral examiner that would provide information, conclusions and recommendations to the authorized officer regarding whether a proposed or existing use is logically sequenced, reasonably incident, and otherwise consistent with existing laws and regulations.
This proposed rule defines the term "United States mining laws" as the Mining Law of May 10, 1872, as amended and supplemented. This definition reflects the fact that the 1872 Act has since been affected by many other laws. One such law, the Organic Administration Act of 1897, is specifically mentioned for two reasons. It reapplied the United States mining laws to National Forest System lands following their reservation from the public domain and it provides the Forest Service with authority to promulgate these regulations. Another cited law, the Surface Resources Act of 1955, is specifically mentioned because it confirms requirements implicit in the 1872 Act itself. One such requirement is that operators must use reasonable methods of surface disturbance that are appropriate given the warranted stage of locatable mineral operations.

Section 228.4 Submission of Notices of Intent To Operate, Bonded Notices, and Plans of Operation

This section would be sequentially reorganized to first address operations that would cause little or no disturbance of surface resources, then operations that might cause significant disturbance of surface resources, and finally operations that are likely to cause significant disturbance of surface resources.
An operator would not be required to contact the Forest Service before beginning operations that would cause little or no disturbance of surface resources.
An operator would be required to submit a notice of intent to operate before beginning operations that might cause significant disturbance of surface resources. Among the operations that would require a notice of intent to operate are those that would involve occupancy of National Forest System lands lasting longer than the local forest stay limit and those involving motorized use of closed roads. Submission of a notice of intent for occupancy exceeding the local forest stay limit would be required because such occupancy along with the related mining operations might cause significant disturbance of surface resources. Submission of a notice of intent for motorized use of closed roads similarly would be required because such use along with the related mining operations might cause significant disturbance of surface resources. The notice of intent to operate also would provide an efficient means of evaluating, and when reasonably necessary, regulating occupancy that would exceed local forest stay limits and motorized use of closed roads.
An operator would be required to have either a complete bonded notice then in effect or an approved plan of operations then in effect before beginning operations likely to cause significant disturbance of surface resources. The criteria for deciding which of these instruments the operator would be required to have would be based upon the duration and the extent of the likely significant disturbance of surface resources. The subset of proposed operations likely to cause significant disturbance of surface resources which the rule addresses by means of a complete bonded notice, rather than an approved plan of operations, are those that would neither so disturb more than 5 acres at any point in time nor last more than 2 years. This proposed rule requires an operator to have an approved plan of operations before beginning other operations likely to cause significant disturbance of surface resources which do not satisfy both of these criteria.
The new bonded notice category of operations that this proposed rule creates is similar to the BLM's "notice" category of operations. However, the bonded notice category of operations would differ in one respect from the BLM's notice category of operations. The BLM restricts use of a notice to exploratory operations. The Forest Service proposes to allow use of a bonded notice for all short-term, low impact operations. As the rule is proposed, it is conceivable that some small mining operations would actually progress to the removal of the valuable locatable mineral deposit and the completion of reclamation under the terms of one or more bonded notices.

Section 228.5 Bonded Notice--Completeness Review

The proposed rule would provide that upon receipt of a bonded notice, the authorized officer, who usually would be the District Ranger, would perform a completeness review to determine whether the proposed operations satisfy the environmental protection requirements in § 228.9, assuming that the proposed operations do not require an approved plan of operations, and respond to the operator within 15 days.
The proposed rule generally provides that when a proposed bonded notice is found to be complete and to meet the requirements of § 228.9, the District Ranger would inform the operator that the notice would take effect upon receipt of an adequate reclamation bond. However, § 228.5(a)(5) of the proposed rule would provide that in cases where an operator has established a pattern of noncompliance with requirements applicable to past or ongoing operations, the operator may be required to have an approved plan of operations rather than a complete bonded notice. A process, which would require the authorized officer to seek the operator's input, would be established by the proposed rule to decide whether it would be appropriate to require the operator to obtain an approved plan of operations. The Forest Service specifically requests comment on the inclusion and formulation of § 228.5(a)(5) in the final rulemaking.
Under the proposed rule, once a bonded notice takes effect, the operator would be able to begin the proposed operations.
The proposed rule provides that when the authorized officer determines that operations being conducted in accordance with a complete bonded notice are resulting in significant disturbance of surface resources not fully described by that notice, the operator would be required to obtain a new complete bonded notice or an approved plan of operations, whichever would be appropriate.
Adopting the new bonded notice category of operations would meet recommendations contained in the NRC's 1999 report "Hard Rock Mining on Federal Lands." One of these recommendations is that: "Forest Service regulations should allow exploration disturbing less than 5 acres to be approved or denied expeditiously, similar to notice-level exploration activities on BLM lands." (pg. 97). Another of these recommendations is that: "The BLM and the Forest Service should plan for and implement a more timely permitting process, while still protecting the environment." (pg. 122).
Currently, an approved plan of operations is required for operations that would be subject to a bonded notice under the proposed rule. The existing approval process for a plan of *15698 operations often takes several months to two years. Adopting the bonded notice category of operations would shorten the Forest Service's review of identical low impact, short-term operations freeing up specialists needed to process more complex proposed plans of operations and to administer locatable mineral operations on the ground.
While the bonded notice category of operations would streamline the permitting process for less impactive short-term, operations, the proposed rule also ensures that any adverse impacts that operations conducted under a bonded notice might have on National Forest System lands would be minimized. All operations that would be conducted under a bonded notice would have to meet the environmental protection requirements set forth in § 228.9. All operations that would be conducted under a bonded notice also would have to be properly bonded.

Section 228.6 Plan of Operations--Approval

The procedures for the Forest Service's review of and response to a proposed plan of operations would be very similar to those that would be applicable to a proposed bonded notice.
Section 228.6(h) would include substantially different standards for requiring modification of a plan of operations than those set forth in the current rule. These changes are necessary because the provisions of the current rule governing modification of an approved plan of operations have been interpreted inconsistently. Questions have also been raised as to when incidental changes of operations authorized by the Forest Service rise to the level of requiring modification of the approved plan of operations. The current rule also contains limited and often ineffective criteria for requiring modification of an approved plan of operations. The NRC recognized the existence of such problems and recommended that: "The BLM and the Forest Service should revise their regulations to provide more effective criteria for modifications to plans of operation, where necessary, to protect the federal lands." (pg. 99). The proposed rule would address the NRC's recommendation by correcting these shortcomings.
Currently, 36 CFR part 228, subpart A, contains criteria for requiring modification of a plan of operations that look backward to focus on what should have been "foreseen" when the plan of operations was approved. In this proposed rule, the criteria for requiring modification of a plan of operations allows for a correction of problems manifested after the approval of the plan of operations and would keep approved operations abreast of changed circumstances. These criteria would draw upon those adopted by the Forest Service almost a decade ago in regulations governing locatable mineral operations within the Smith River National Recreation Area, 36 CFR part 292, subpart G. Under the proposed rule, modification of an approved plan of operations might be required to reflect advances in predictive capability, technical capacity, and mining technology. Modification of an approved plan of operations also might be required to address uses of National Forest System land that are no longer, or have become, reasonably incident.
The proposed rule also would reflect the Forest Service's conclusion that it is not reasonable for an operator to continue to conduct any aspect of locatable mineral operations that is causing irreparable or unnecessary injury, loss or damage to National Forest System surface resources even if that aspect of the operations was previously approved by the authorized officer. Thus, the proposed rule would allow the authorized officer to require an operator to suspend any aspect of operations that is causing such injury, loss or damage while the process of modifying the approved plan of operations is ongoing.
Section 228.6(i) would note the Clean Water Act (CWA) obligations that an operator or the Forest Service itself must meet in connection with the approval of a plan of operations. In 2006, a Federal District Court held that the Forest Service cannot approve a proposed plan of operations that may result in a discharge to navigable waters until the operator has obtained a proper 401 CWA certification and presented it to the authorized officer unless the certification requirement has been properly waived. The proposed rule would alert operators and authorized officers to the applicability of this requirement. (The Forest Service Manual has also been amended to include direction for complying with the CWA (FSM 2817.23a)).

Section 228.8 Inspecting Operations and Remedying Noncompliance

The Forest Service has experienced some difficulty in enforcing compliance with the current regulations. A consistent and clearly understood response to noncompliance is needed. The NRC report stated: "* * * the committee is persuaded that more consistent and accessible procedures for deciding when to refer apparent violations to other agencies and the ability to issue reasonable administrative penalties, subject to the appropriate due process, would improve the efficiency of agency operations and enhance the protection of then environment." (pgs.102-103).
This section would list enforcement steps the authorized officer can take if the operator fails to comply with a notice of noncompliance. This proposed rule notes, as is true today, that the authorized officer may initiate a civil action, issue a Violation Notice under 36 CFR part 261, or use the reclamation bond to take all necessary measures to protect the environment specified by the notice of noncompliance.

Section 228.9 Environmental Protection Requirements

This proposed rule would update and revise the environmental protection requirements applicable to locatable mineral operations. A new paragraph, § 228.9(e), would reference the requirements of the Endangered Species Act (ESA). This change would be made because some people have asserted that the ESA does not apply to locatable mineral operations given that the ESA is not mentioned in the currently applicable requirements for environmental protection.
Some operators also do not understand that the Forest Service may require bond coverage that includes the cost of removing any abandoned equipment or other property from National Forest System lands. Some have argued that since the current regulations do not specifically state that removal of equipment is part of reclamation, the operator cannot be required to post a bond for the removal of that equipment. As in the current rule, a separate section of this proposed rule (§ 228.11) would require removal of structures and equipment upon the cessation of operations. However, to prevent further confusion, a new paragraph, § 228.9(i), would be included in the proposed rule to make it clear that a required element of reclamation is the removal of structures and equipment from National Forest System lands. Section 228.13(c)(1), would govern reclamation bonding and also would specify that the cost of complying with proposed § 228.9(i) would be factored into a reclamation bond's required coverage.
This section also would be revised to make the environmental protection requirements applicable to bonded notices as well as plans of operations.

*15699 Section 228.10 Reasonably Incident Uses

This new section would allow an authorized officer to require an operator to cease uses of National Forest System lands that are not reasonably incident to locatable mineral prospecting, exploration, development, mining, processing, or reclamation. This proposed rule would establish a process for evaluating the reasonableness of operations or incidental uses, and to initiate a surface use determination.
Uses such as occupancy and in particular, residence, would be evaluated under this section to determine whether those uses are necessary based on the nature or stage of ongoing or proposed operations. These proposed requirements and requirements proposed elsewhere in this proposed rule are modeled upon the BLM's parallel rule (43 CFR subpart 3715) governing occupancy and reasonably incident uses and operations on the public lands.

Section 228.11 Cessation of Operations

This section would be revised to give the authorized officer a clearly stated process and criteria to use when responding to a proposed or actual cessation or temporary closure of operations. The Forest Service has noticed inappropriate characterizations of closures or cessations of operations as "temporary." These characterizations sometimes appear to be attempts to delay or avoid taking appropriate interim or final actions to clean up and otherwise close and reclaim completed or abandoned operations. These changes would address any such abuse.

Section 228.12 Access for Operations

This section would be revised to clarify that all access must be reasonable. A clarification also would be added stating that the Forest Service may elect to regulate access on National Forest System lands for associated work on lands patented under the United States mining laws pursuant to 36 CFR part 228, subpart A. The vehicle for regulating such access would be either a complete bonded notice or an approved plan of operations.

Section 228.13 Reclamation Bonds for Bonded Notices and Plans of Operation

The revisions in this section would clearly identify the different types of financial instruments that can be used as a reclamation bond. This proposed rule would retain the use of statewide or nationwide blanket bonds while including a new mechanism to insure the adequacy of any blanket bond.
The current regulations do not contain an appropriately detailed process for the administration of reclamation bonds, which results in inconsistent administration of such bonds. As it would be revised, this section would lay out a clear process and definitive standards for administering reclamation bonds. This would facilitate consistent administration of reclamation bonds by Forest Service authorized officers.
Questions have been raised as to whether the authorized officer has authority to require periodic reviews of reclamation bonds, and to require appropriate adjustments of reclamation bonds based upon those reviews. To forestall such questions in the future, the proposed rule would be expanded to set forth detailed language providing criteria and a process for the authorized officer's review of reclamation bonds. The proposed rule would permit review of a reclamation bond's adequacy whenever the authorized officer believes it is necessary. However, the proposed rule would require the authorized officer to seek input from the operator before requiring any adjustment of the bond.
The proposed rule would provide that value should not be attributed to any property that an operator places or creates on National Forest System lands for purposes of determining the cost to fully reclaim such lands in accordance with § 228.13(c). Any other approach would not be reasonable. The operator not only is entitled, but would be required, to remove such property in accordance with § 228.9(i) of the proposed rule. The value of any property impermissibly abandoned on the area of operations also could not be determined in advance. An operator might not own property placed or constructed on National Forest System lands. Even if the operator owned such property initially, ownership of it could pass to another person during the course of the operations voluntarily by sale or involuntarily by bankruptcy. When operations are lengthy, property that was initially valuable may be worth less than the cost to remove it when the operations cease or are concluded. Liability could also be associated with any such abandoned property that the United States would not accept.
This proposed rule would require mandatory bonding for all bonded notices as well as all newly approved plans of operation.
Under current practice, few, if any, operations requiring an approved plan of operations are authorized today without reclamation bond coverage given serious problems that have arisen with respect to previously approved operations for which a bond was not required. However, approved plans of operations are in effect for which a reclamation bond was not required. This proposed rule would require an operator to furnish a bond complying with the requirements of the proposed rule for all existing operations subject to an approved plan of operations, including those for which a reclamation bond initially was not required. Operators would be given 180 days after the effective date of the final rule to furnish such a bond. The BLM also required bonds for existing operations subject to an approved plan of operations to be brought into compliance with the bonding requirements of its revised 43 CFR subpart 3809 regulations within 180 days of that rule's effective date.
As it would be revised, this proposed rule would provide for use of escrow accounts to cover long-term monitoring, maintenance, or treatment measures to prevent or otherwise minimize on-site or off-site damage. The BLM has successfully used this kind of financial instrument to bond such obligations as long-term water treatment (see 43 CFR 3809.556).
This proposed rule also would be expanded to set forth specific criteria and a formal process that the authorized officer must use in deciding whether to permit the release of a reclamation bond or to require the replacement or forfeiture of a reclamation bond. The authorized officer also would be obligated to seek the operator's input before requiring the replacement or forfeiture of a reclamation bond.

Section 228.14 Operations on Withdrawn or Segregated National Forest System Lands Including National Forest Wilderness

The provisions in the current rule governing operations in National Forest Wilderness are reorganized for clarity. Another clarification is made concerning information gathering about any type of mineral as authorized by the Wilderness Act on lands which that Act has withdrawn from appropriation under the United States mining laws. Although the United States mining laws do not govern such information gathering, this proposed rule would make the procedures set forth in this subpart applicable to that work given the similar methods by which such information is gathered.
Proposed paragraphs (f) through (i) of this section would establish the requirements for conducting locatable mineral operations on all National Forest System lands segregated or withdrawn from the operation of the *15700 United States mining laws. National Forest System lands are withdrawn or segregated pursuant to many authorities and there is no logical reason to distinguish between lands segregated or withdrawn from appropriation under one versus another authority.
These proposed provisions specify that operations generally are allowable on all National Forest System lands segregated or withdrawn from the mining laws only to the extent that a person has valid existing rights to proceed, regardless of whether the operations may proceed under a complete bonded notice or an approved plan of operations. Thus, the proposed rule allows the Forest Service to protect genuine valid existing rights (by requiring a determination that such rights exist) while at the same time protecting areas that have been withdrawn or are being proposed to be withdrawn from operation of the mining laws. However, these proposed provisions specify that the Forest Service may allow limited activities before the existence of valid existing rights is established or disproven, including certain limited sampling and limited annual assessment work.
Proposed paragraph (f) of this section would require the Forest Service to prepare a mineral examination report before approving a plan of operations for proposed operations on National Forest System lands withdrawn from the operation of the mining laws. Additionally, this section would grant the Forest Service the discretion to prepare a mineral examination report before confirming that a bonded notice is complete or approving a plan of operations for proposed operations on National Forest System lands that have been segregated under section 204 of FLPMA (43 U.S.C. 1714) for consideration of a withdrawal. This section also would provide that when a mineral examination report finds that a mining claim is invalid but the operator declines to alter the proposed operations to avoid the segregated or withdrawn National Forest System lands in question, the Forest Service will request that the BLM promptly initiate contest proceedings to determine the validity of all such mining claims.
However, in specified limited circumstances proposed paragraph (g) would allow the Forest Service to approve a plan of operations before a mineral examination report for a claim located on withdrawn lands has been prepared. Specifically, the Forest Service may allow operations to take samples to confirm or corroborate mineral exposures that were physically disclosed and existing on the mining claim before the segregation or withdrawal date, whichever is earlier; and to perform any minimum necessary annual assessment work under 43 CFR 3851.1. This section also would permit an operator to conduct the same limited operations on segregated lands under either a bonded notice that the Forest Service has confirmed is complete or a plan of operations that the Forest Service has approved.
Proposed paragraph (h) allows the Forest Service to suspend the time limit the agency would take for final action on a proposed plan of operations until the existence of valid existing rights is finally established or disproven pursuant to paragraph (f) of this section, whether by virtue of the mineral examination report, a mineral contest, or federal court proceedings. The section also provides for the suspension of the time limit for the Forest Service to confirm that a proposed bonded is complete under identical terms.
Proposed paragraph (i) requires an operator to cease all operations, except required reclamation, when the absence of valid existing rights is finally established pursuant to paragraph (f) of this section, whether by virtue of the mineral examination report, a mineral contest, or federal court proceedings.

Section 228.16 Applicability of This Subpart

This section would specify how the revised rule would apply to classes of operations such as approved and ongoing operations, preexisting proposed plans of operation, preexisting unapproved modifications of approved plans, and other preexisting operations. This section would directly parallel the applicability of the BLM's revised 43 CFR subpart 3809 regulations to the same classes of ongoing or proposed locatable mineral operations.

PART 261--PROHIBITIONS

Section 261.2 Definitions

The definition of "operating plans" set forth in this section would be revised to include bonded notices within its scope. A new definition of "residence," patterned upon the definition of "residence" which would be set forth at 36 CFR part 228.3(m), also would be added to this section.

Section 261.10 Occupancy and Use

Paragraphs (a), (b) and (l) of this section would be revised to apply to bonded notices as well as to plans of operation. This change has no substantive effect. These paragraphs presently apply to operations requiring an approved plan of operations. Operations that would be conducted under a complete bonded notice should the proposed rule be adopted, presently require an approved plan of operations under 36 CFR part 228, subpart A. Thus, whether or not the proposed rule is ultimately adopted, the same operations would be subject to these three paragraphs.
New paragraphs (p) and (q) also would be added to this section. Paragraph (p) would prohibit the use or occupancy of National Forest System land or facilities without a complete bonded notice or an approved plan of operations when the operations require such a bonded notice or plan of operations. Paragraph (q) would prohibit the use of National Forest System land as storage sites without a complete bonded notice or an approved plan of operations when the operations would require such a bonded notice or an approved plan of operations.

PART 292--NATIONAL RECREATION AREAS

Subpart D--Sawtooth Natural Recreation Area--Federal Lands

Section 292.17 General Provisions

This section would be amended to add a citation to 36 CFR part 228, subpart A.

Subpart G--Smith River National Recreation Area

Section 292.63 Plan of Operations--Supplementary Requirements

This section would be amended to reflect the revised requirements that would be set forth at proposed 36 CFR part 228.4(f)(1) through (f)(4) and proposed 36 CFR part 228.9. This section also would be revised to employ the same terminology that would be set forth at 36 CFR part 228, subpart A.

PART 293--WILDERNESS--PRIMITIVE AREAS

Section 293.2 Objectives

This section would be amended to add a citation to 36 CFR part 228, subpart A.

Section 293.15 Gathering Information About Resources Other Than Minerals

This section would be amended to add a citation to 36 CFR part 228, subpart A.

Drink Water for Life

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

Plug in to NRDC's Blog

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

ExxonMobil Deliberately Misled Blogosphere About Funding Global Warming Denialists

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

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

 

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

 

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

 

As Maria recounted that discussion:

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

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

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

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

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

 

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

 

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

 

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

 

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

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

 

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

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

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

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

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

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

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

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

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

 

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

 

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

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

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