Environmental Law Prof Blog

Foreign Affairs - The Candidates in Their Own Words --

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

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

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

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

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

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

D.C. Circuit vacates the delisting and mercury rules

The D.C. Circuit just vacated the Delisting and Clean Air Mercury Rules.  New Jersey v. EPA decision
I have not read the whole decision.  But one of the implication I am most interested in is the court's vacating the delisting rule.  It seems to me that this decision opens the door for carbon dioxide from power plants to be regulated under section 112 of the Clean Air Act.  Section 112, with its Maximum Achievable Control Technology T-based standard, might be an attractive way to use the existing Clean Air Act provisions to regulate carbon dioxide.

Candidates Compete for Green Title

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

British Petroleum agrees to pay $70 million USD for environmental crimes

Acting Attorney General Peter D. Keisler announced yesterday that the energy company British Petroleum (BP) has agreed to pay approximately 70 million dollars in fines and restitution for environmental crimes. This includes a criminal fine of $50 million for Clean Air Act violations resulting from an explosion at BP's Texas City refinery in 2005.

"This is the largest fine ever assessed to a single entity under the Clean Air Act. And this is the first criminal prosecution under a section of the Act specifically created to prevent accidental releases that result in death of serious injury," said Keisler.

BP has also agreed to pay a $12 million criminal fine, $4 million in community service payments, and $4 million in criminal restitution for Clean Water Act violations associated with pipeline leaks of crude oil in Alaska. Additionally, BP agreed to three years of probation for the Clean Air Act and Clean Water Act violations.

"BP committed serious environmental crimes in our two largest states, with terrible consequences for people and the environment" said Granta Nakayama, EPA’s Assistant Administrator for Enforcement and Compliance Assurance. "Today's agreement sends a message that these types of crimes will be prosecuted."

The fines are part of BP's plea agreement to pay more than $373 million for environmental crimes, fraud and market manipulation. BP and several of its employees were charged by an indictment issued by a federal grand jury in the Northern District of Illinois with conspiracy to manipulate the price of propane in 2004, wire fraud, and several violations of the Commodity Exchange Act. BP will pay $303 million in restitution and criminal and civil fines for these crimes under the terms of a  deferred prosecution agreement.

Read the Department of Justice's press release.

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

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

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

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

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

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

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

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

Thank you to Read/Write Web

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

Vote for Children's Safe Drinking Water

Welcome, SusanSmithDrinkWaterforLife

My Current Vote
Children's Safe Drinking Water Votes this round: 512  |

Project ID: 01250
Date Posted: 7/02

US Fund for UNICEF

Project Description:
For Two Cents We Can Change the World. Four thousand children die needlessly every day from drinking contaminated water. It's a tragedy that hundreds of millions of people obtain their drinking water from polluted sources such as muddy rivers, ponds, and streams. This public health crisis can be addressed today through an innovative and low-cost technology that effectively purifies and cleans water while removing bacteria, viruses, and parasites. Right now millions of people in Africa, Asia, and the Americas are being reached by a not-for-profit project, but millions more are in need. Help us reach a goal of providing 2 billion liters of safe drinking water. For only two pennies a day a child can have safe drinking water. We'd love to hear your thoughts. In fact, Give Us Your Two Cents Worth. Thank you.

Member: gsallgood

About Me:
My mission is to prevent the sickness and death that occur in the developing world from drinking unsafe water. I'm lucky to spend much of my life building partnerships to provide a low-cost technology to purify water. I never get tired of seeing filthy and highly contaminated water miraculously turn into clear and safe water. And, what's most satisfying is to provide children with their first drink of truly clean and purified water. Now we've developed a way for everyone to get involved. We can make, transport, and deliver the technology on a sustainable basis for only pennies per person. In fact, for just two cents we can provide purified drinking water for a person for a day. Two Cents to Change a Life. Please consider joining our project: "Give Your Two Cents Worth.

1.1 billion people around the world do not have access to clean water. As a result, 5,000 children die needlessly every day. In poor, rural communities, the only source of water is often miles away and the grueling task of collecting it often falls to young girls.

In the mountain village of La Horca, Nicaragua, Rosibel Gonzalez, 12, traveled 7.5 miles each day to fetch water for her parents and five siblings. Waking up before dawn, she walked to the creek before school and carried back a bucket of water on her head. She repeated the task after school and again before bed. But because the water she fetched came from the same source used by village livestock, it was dangerous to drink. When Rosibel's little brother, Wilber, was only eight months old, he and other villagers contracted cholera. That's where UNICEF, the United Nations Children's Fund, came in. UNICEF provided a new solar-powered water pump and filtration system to bring clean water directly into La Horca's 35 homes. Now, Rosibel and her entire village have safe water to drink and Rosibel is left with plenty of time to study and play with her little brother.

With a presence in 156 countries, UNICEF is striving to duplicate this success worldwide. By voting for this project, you can help UNICEF save millions of children's lives. We know what needs to be done, we just need your help to do it. Only 2 cents will purchase one water purification tablet to clean 5 liters of water, $48 can purchase a portable latrine and $5,000 can buy a solar water pump, like the one installed in Rosibel's village. UNICEF partners with communities to provide these and other innovative, low-cost and life-saving solutions for the world's most vulnerable children and their families.

Zoellick becomes World Bank president

The Executive Directors of the World Bank yesterday unanimously selected Robert Zoellick as the 11th President of the bank for a five-year term.

The President of the bank is ex-officio President of the International Development Association (IDA) and Chairman of the Board of Directors of the International Finance Corporation (IFC), the Multilateral Investment Guarantee Agency (MIGA), and the Administrative Council of the International Centre of Investment Disputes (ICSID).

This announcement affects every aspect of environmental, energy, and resources law, of course, due to the Bank's pivotal role in financing development -- and thereby setting development policy throughout the world.  So, who is this masked man?

Here's the Bank's bio:

Professional History of Mr. Robert B. Zoellick

Mr. Zoellick, a U.S. national, is currently Vice Chairman, International, of Goldman Sachs Group, and a Managing Director and Chairman of Goldman Sach’s Board of International Advisors. He has served in a number of senior positions in successive US administrations, including as Deputy Secretary, U.S. Department of State, and as U.S. Trade Representative (2001-05). He also served as Deputy Assistant Secretary for Financial Institutions Policy, US Department of Treasury, and Undersecretary for Economic and Agricultural Affairs and Counselor in the U.S. State Department. He was Executive Vice President of Fannie Mae (1993-1997), the large U.S. mortgage finance corporation, as well as Vice President and Assistant to the Chairman and CEO. In addition, he served as Olin Visiting Professor, U.S. Naval Academy, as Senior Advisor, Goldman Sachs, as Research Scholar, Belfer Center, Harvard University, and previously on three corporate boards, as well as numerous research and non-profit boards.

Mr. Zoellick has a J.D., magna cum laude, Harvard Law School, and a M.P.P. (in public management and international issues) from the Kennedy School of Government. In addition, Mr. Zoellick has received numerous distinguished service awards.

Read between the lines: Zoellick is a Bush loyalist and true believer in globalization for the benefit of corporate interests and the wealthy.  Wouldn't it be refreshing sometime for the World Bank to be led by someone who is committed to reducing international poverty and who has on the ground development experience -- rather than ideological theorizing and strategizing experience.

Unfortunately, and I say this as an alumna of both, Zoellick's Kennedy School and HLS credentials just mean he's smart, not moral or committed to the public he is supposed to serve.

CERCLA private cost recovery

 

The Supreme Court granted certiorari in du Pont v. U.S., 460 F.3d 515 (3rd Cir. 2006),which held that potentially responsible parties (PRPs) did not have an implied cause of action under CERCLA 107(a) or common law to recover voluntarily incurred cleanup cost from other PRPs. The Supreme Court also vacated the judgment and remanded the case for further consideration in light of U.S. v. Atlantic Research Corp., 2007 WL 1661465 (2007). Atlantic Research Corp. held that CERCLA 107(a) provides PRPs with a cause of action to recover such voluntarily incurred costs from other PRPs. (Case below: E.I. DuPont de Nemours & Co. v. United States, 460 F.3d 515 (C.A.3-N.J. 2006).)

The Lessons of the Montreal Protocol

I remember sitting about 20 years ago in a conference room of the Assistant Attorney General for the Environment Division in the Justice Department.  As the Department's policy representative, I was listening to representatives of several CFC manufacturers who were trying to prevent US implementation of the Montreal Protocol.  They explained that it was simply infeasible for the CFC manufacturers to comply with the Montreal Protocol.  I am extremely glad that no one believed them:  since that time the US has effectively implemented the Protocol, even to the point of criminally prosecuting car repair shops that mishandled air conditioning refrigerants regulated under the Montreal Protocol. 

Science reports on a new study published in PNAS indicating that the Montreal protocol has limited the growth in global warming as well as helping repair the ozone layer.  Indeed, so far its beneficial effects in limiting global warming outstrip those of Kyoto.  That should really come as no surprise.  First of all, the Montreal Protocol has been fully implemented and in effect far longer.  Second, it regulated some of the most detrimental GHGs because of their effect on the ozone layer -- so essentially the Montreal Protocol picked some of the "low-hanging fruit" --an overworked, but accurate metaphor for the most easily accomplished changes. 

However, most importantly, the Montreal Protocol used an effective regulatory approach.  There is little doubt that the most effective regulatory device is a phased-in ban or stringent cap, particularly one that allows trading during the phase down, which in turn efficiently distributes the costs of phase down to the least cost avoiders.  [In this respect, a cap with marketable rights is far superior to a tax because we have real certainty about the environmental target that will be accomplished through the cap, whereas the amount of a tax to hit the target is guesswork, that may well require multiple adjustments, thus reducing regulatory certainty and industry willingness to commit R & D]. 

We've verified that theoretical observation with the real life successes of the CAA lead phase down as well as the acid rain program.  The key is a strict schedule for the phasedown and stringent targets.  It gives industry the regulatory certainty necessary to invest in necessary R & D -- and even if industry does not believe it is feasible to hit the target when the target is first established (as indeed the CFC manufacturers claimed at the time), industry is remarkably adept at finding ways to do seeming impossible tasks.   Indeed, that is the genius of free enterprise.

Obviously, Kyoto was intended to be the beginning of a phase-down of carbon emissions.  But it hasn't worked as well as it might have due to the constant uncertainty about post-2012 requirements. 

There is a lesson in this for the world's policymakers if they are willing to learn.  The tripe currently being circulated in policy circles about "maintaining flexibility in the face of improving or changing information" is just that -- tripe.  Regulatory certainty is essential to induce the magnitude of investment necessary to get us out of the carbon trap.  Sometimes we just have to say "no," provide a series of targets and firm deadlines, ease the pain and create flexibility in implementation through well-designed trading programs that first and foremost hit the targets, and use strong enforcement mechanisms to assure compliance.  Then, we can actually accomplish something.

Since reducing carbon emissions is something we really need to accomplish, we need to use the lessons of the past about how to effectively regulate, and refuse to listen to theoretical nonsense about optimal regulation.  We know how to do this.  We just need to do it.  Now.    

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So far, the CFC ban has prevented the release of far more greenhouse gases (green and blue lines) than have the CO₂ reduction targets imposed by the Kyoto Protocol (red line). See full story from Science News below.

Spirit of the Eagle

This blog is devoted principally to the professional or academic aspects of environmental law, policy, science, and ethics.  But like any blogger, I do have a life.  Anyone interested in the slightly less academic side of me is welcome to visit Spirit of the Eagle, my personal blog.

Drink Water for Life Challenge

As readers know, the royalties of this blog are now devoted to international NGOs providing safe, clean drinking water, sanitation, and hygiene education.

The 7th Millennium Development Goal seeks to cut in half the number of people without those essentials by 2015. Current estimates are that it will cost about $16 billion additional per year until 2015 to accomplish that goal.  I find it unbelievable that we cannot globally achieve that goal, especially when unnecessary deaths from water-borne diseases exceed 2 million, mostly children, each year.  That's one child every 15 seconds.

For those of you who are members of faith-based communities, I suggest that you sponsor a DRINK WATER FOR LIFE challenge associated with your congregation.  Drink water instead of lattes (sodas, bottled water, coffee, alcohol).  Do it for Lent (or your appropriate analogous spiritual break).  Get your friends, your synagogue or church, school or workplace to do the same.  Collect the money you save, gather it together on  Easter (or whatever date makes sense in your faith tradition), put it in a Water Fund, and send it to one of the organizations that do this work.  With just $5000, an entire village of 200 - 500 people can be supplied with safe, clean, sustainable drinking water, sanitation, and hygiene education. 

If you need addresses of faith-based organization who do this work, or secular charitable organizations who do this work, let me know.  If you need flyers explaining the problem, let me know.  Together we can make a difference.

25th Annual ABA SEER Water Law Conference

<> American Bar Association Section of Environment, Energy, and Resources 25th Annual Water Law Conference: Changing Values, Changing Conflicts February 22-23, 2007   San Diego, CA   Hotel del Coronado The 25th Anniversary Water Law Conference will focus on the changing values for water use and the resulting changes in legal conflicts over water. The conference includes speakers and panels reflecting the broad diversity of issues and perspectives on the most challenging issues now facing the water law community. Speakers will discuss past, present and anticipated future changes and trends in water law, and how those changes will affect your practice. The conference will open with perspectives on the changing nature of water conflicts and the most significant trends over the last 25 years, from water law luminaries of the last quarter century. After a rousing debate about changes in how courts defer to agency determinations, particularly in light of the 2006 Rapanos decision, panels will examine more closely certain critical issues now facing the water law community – from instream use and conflicting sovereigns to international conflicts and conservation. Friday morning will address emerging issues that will change the nature of water law practice in the next quarter century, including water quality issues arising out of inter-basin transfers, resolution of water rights conflicts, and the dynamic relationship between water law and science. The conference will close with a special “Hot Topics” lunch on climate change and how it may affect water law practice, including a presentation on California’s recent efforts to assess how its water policy may need to change to address global warming. This year’s conference also offers two early morning panels – one on water law fundamentals to help those new to the water law field, and one on the ethics of ex parte contacts in a world where water conflicts are now often resolved outside formal adjudications. Click here to Register

NRC Trashes OMB's January 2006 Risk Assessment Guidelines

The Bush Administration will rework OMB's controversial risk assessment proposal after the National Research Council expert panel reviewing the proposal called the approach "fundamentally flawed." NRC Report on OMB Risk Assessment Guidelines.  The January 2006 proposed risk assessment technical guidelines  were developed by former OIRA director John Graham to improve federal risk assessments, which OMB criticized in the cases of dioxin, mercury, perchlorate, and mad cow disease.

The proposal generated substantial public comment over the last year.  Industry supported the proposal.  Public health experts and  environmental groups contended that the guidelines would prevent government agencies from regulating health hazards by setting technical risk assessment standards that were difficult -- or even impossible -- to meet. 

OMB submitted the proposal to the National Research Council for review.  According John Ahearne, chair of the NRC review committee, the committee decided that the proposal was broken beyond repair.  It contained a confusing, overly broad definition of risk assessment, omitted crucial aspects of risk assessment such as how to handle absence of adequate information and assumed sufficient data would be readily available.  And, more fundamentally, OMB failed to demonstrate that costly changes in the federal risk assessment process were necessary.  The 18-person NRC committee unanimously agreed that OMB should withdraw the January 2006 proposed guidelines. NRC Executive Summary

RegWatch, rejoiced yesterday, with the following post:

Nation's Top Scientists Strongly Reject OMB's Regulatory Guidance

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This morning, the National Academy of Sciences rejected the White House Office of Management and Budget's (OMB) Proposed Risk Assessment Bulletin. OMB charged NAS with the task of peer-reviewing the bulletin, and NAS issued a stinging rebuke.
The Bulletin calls for an overly standardized method across all agencies of assessing the potential risks of regulatory action. No matter if the issue is the environment, consumer products, or massive buildings and infrastructure, the framework would be the same.

NAS cites concerns that OMB is overstepping its bounds in suggesting this restrictive framework, and that micromanaging the ways in which agencies go about their business stymies the expertise within those agencies. Ultimately, NAS smartly concludes that this one-size-fits-all approach is unrealistic and would not jibe well with scientific and technological findings:

We began our review of the draft bulletin thinking we would only be recommending changes, but the more we dug into it, the more we realized that from a scientific and technical standpoint, it should be withdrawn altogether.

OMB has called off the Bulletin for now. Reg Watch revels in sound science trumping politics this time around.

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Read the NAS news release and report
Read OMB Watch's comments on the Proposed Risk Assessment Bulletin.

  Read more about how the Bulletin would lead to dangerous deregulations.

Posted by Matt Madia

Electronics Regulation Expands Beyond EU

The EU's RoHS Directive prohibits import of consumer electronics containing lead (Pb), mercury (Hg), hexavalent chromium (Cr⁶⁺) or polybrominated biphenyl (PBB) and polybrominated diphenyl ether (PBDE) at levels over 0.1%, or cadmium (Cd) at levels over 0.01%. EU's WEEE directive puts the responsibility for the disposal or recycling of consumer electronics back on the manufacturer.   China, Japan, and Korea have joined the European Union in expanding regulation of manufacturers and users of electrical and electronic products.  The U.S. again seems to be acting as a regulatory free-rider -- allowing stringent regulatory standards to be set by other countries -- and benefiting from those standards as multinational companies must respond strategically by international implementation of recycling and reuse programs.  For a description of Asian product-related environmental regulations, see Park Myth, Misunderstanding, Miscommunications and Mistakes - Fact and In-Depth Analysis of Product-Related Environmental Regulations on Electrical and Electronic Equipment in China, Japan and Korea Abstract