Environmental Law Prof Blog

Will Obama say "NO" to tar sands?

The environmental community is mobilizing to get Obama to reject imports of oil produced from tar sands.  While the campaign primarily focuses on the climate change impacts, the most pernicious effects of tar sands production are on water, both in terms of water quality and water allocation.  Tar sands production requires huge amounts of water and the water becomes polluted to the point where it is largely uneconomic to clean it: essentially permanently polluting freshwater resources, which are already limited.  On these grounds alone, we should not encourage development of tar sands.  In addition, tar sands and other "secondary" forms of oil production, all contribute more to global warming than conventional oil.  We must be prepared for Canada's response: the U.S. is being hypocritical unless it also discourages production of oil shale in the Mountain West -- another secondary recovery source of oil.  And the answer to that needs to be -- yes, we need to get our own house in order and develop a marketable carbon rights program or carbon tax that forces energy corporations to realize that development of such resources is both socially undesirable and economically infeasible.

February 16, 2009
By Earth's Newsdesk, a project of Ecological Internet http://www.ecoearth.info/newsdesk/
CONTACT: Dr. Glen Barry, glenbarry@ecologicalinternet.org

(Seattle, WA) -- On February 19, President Barack Obama
travels to Canada on his first international trip as
President, where he will face pressure from the
Government of Canada to support production of Alberta's
filthy tar sands oil. An international network of
environmental groups has launched the "Obama2Canada"
campaign[1] urging President Obama to stand strong on his
new energy economy agenda and reject entreaties from
Canadian Prime Minister Stephen Harper to shelter the
dirtiest oil on earth from global warming regulation.

"Tar sands oil is the dirtiest form of energy in the
world. It has no place in President Obama's plans for a
clean energy economy," said Sierra Club Dirty Fuels
Campaign Coordinator Pat Gallagher. "Tar sands oil
accelerates global warming. It destroys forests. It
endangers public health. Instead of importing this
expensive, dirty oil, we can invest in clean energy that
will create millions of much-needed, sustainable jobs."

Called oil sands by proponents, tar sands are the very
dirtiest of fossil fuels. Producing oil from tar sands
emits three times the global warming pollution as
conventional oil, requires excessive amounts of energy
and fresh water, and destroys huge swaths of ancient
boreal forest. Given its massive carbon footprint, tar
sands would almost certainly prove unviable under any
reasonable climate change regulations. Along with ending
the use of coal and old growth forest destruction,
stopping tar sands is essential global climate policy
required to maintain an operable atmosphere.

Ecological Internet's Earth Action Network has launched
an independent affinity email protest campaign[2]. There
global citizens can let the new President know how
seriously they take climate change, urge him to reject
tar sands, and support further immediate urgent action in
pursuit of sufficient climate change policies.

"This may be our most important climate campaign ever.
Tar sands development is the most ecologically
destructive project in the world. When fully developed,
tar sands will indefinitely continue North America's
addiction to climate destroying fossil fuels, ensuring
abrupt and runaway climate change exceeds safe levels.
There is virtually no chance of minimizing climate change
and achieving global ecological sustainability should tar
sands production continue or expand," says Ecological
Internet President Dr. Glen Barry.

---------------------------------------------------------
[1] Obama2Canada Contacts:
Kristina Johnson, Sierra Club (415) 977-5619
Jennifer Foulds, Environmental Defence Canada, (416) 323-
9521 x 232
Lisa McCrummen, Obama2Canada: (206) 321-9461

More information, including photos, B-roll video and
other campaign materials are available on
http://www.obama2canada.org/

[2] TAKE ACTION:
Urge President Obama to Say No to Canada's Filthy Tar Sands
http://www.climateark.org/shared/alerts/send.aspx?id=obama_tar_sands

DISCUSS RELEASE:
http://www.climateark.org/blog/2009/02/release-president-obama-urged.asp

Christopher Field and Anny Cazenave AAAS reports on rapidly worsening climate change

On Saturday, I noted the AAAS meeting report on climate change by Christopher Brown.Climate change worsens more rapidly than IPCC anticipated   Here's a bit more on Christopher Field's report from MSNBC:

Carbon emissions have been growing at 3.5 percent per year since 2000, up sharply from the 0.9 percent per year in the 1990s..."It is now outside the entire envelope of possibilities" considered in the 2007 report of the International Panel on Climate Change...The largest factor is the widespread adoption of coal as an energy source... "and without aggressive attention societies will continue to focus on the energy sources that are cheapest, and that means coal."  Past projections for declines in the emissions of greenhouse gases were too optimistic, he added. No part of the world had a decline in emissions from 2000 to 2008.

Anny Cazenave of France's National Center for Space Studies [reported] that improved satellite measurements show that sea levels are rising faster than had been expected... Rising oceans can pose a threat to low level areas such as South Florida, New York and other coastal areas as the ocean warms and expands and as water is added from melting ice sheets...And the rise is uneven, with the fastest rising areas at about 1 centimeter — 0.39 inch — per year in parts of the North Atlantic, western Pacific and the Southern Ocean surrounding Antarctica...

MSNBC link
 

Peasant Movement of Papaye

Our congregation, 1st Congregational United Church of Christ, is launching our 2009 Drink Water for Life challenge this Lenten season, hoping to collect another $ 8 - 10,000 to help the Peasant Movement of Papaye provide water for three communities that contain about 15,000 people.  Here's some information about the Peasant Movement of Papaye.  If you are interested in contributing, please contact me.

Access to water and sanitation is the largest driver of human development

Here's a BBC article I received today.  It confirms what I've been told by public health experts studying Haiti and others: access to water and sanitation is the largest driver of human development.  Its the key to jump-starting the whole development process.  That makes it far too important to leave in the hands of those who seek to profit from water.

Water - another global 'crisis'?
By Richard Black
Environment correspondent, BBC News website BBC link

If you look at the numbers, it is hard to see how many East African communities made it through the long drought of 2005 and 2006.  Among people who study human development, it is a widely-held view that each person needs about 20 litres of water each day for the basics - to drink, cook and wash sufficiently to avoid disease transmission.  Yet at the height of the East African drought, people were getting by on less than five litres a day - in some cases, less than one litre a day, enough for just three glasses of drinking water and nothing left over.  Some people, perhaps incredibly from a western vantage point, are hardy enough to survive in these conditions; but it is not a recipe for a society that is healthy and developing enough to break out of poverty.

"Obviously there are many drivers of human development," says the UN's Andrew Hudson.  "But water is the most important."

At the United Nations Development Programme (UNDP), where Dr Hudson works as principal technical advisor to the water governance programme, he calculated the contribution that various factors make to the Human Development Index, a measure of how societies are doing socially and economically. 
"It was striking. I looked at access to energy, spending on health, spending on education - and by far the strongest driver of the HDI on a global scale was access to water and sanitation." 

Different lives

Two key questions arise, then.  Why do some communities have so little access to water? And how will the current picture change in a world where the human population is growing, where societies are urbanising and industrialising, and where climate change may alter the raw availability of water significantly?

The UNDP is unequivocal about the first question.  "The availability of water is a concern for some countries," says the report.  "But the scarcity at the heart of the global water crisis is rooted in power, poverty and inequality, not in physical availability."

Statistics on water consumption appear to back the UN's case.  Japan and Cambodia experience about the same average rainfall - about 160cm per year.  But whereas the average Japanese person can use nearly 400 litres per day, the average Cambodian must make do with about one-tenth of that.

The picture is improving to some extent.  Across the world, 1.6bn more people have access to clean drinking water than in 1990.  But population growth and climatic changes could change the picture.  In some regions, "the scarcity at the heart of the global water crisis" could become one of physical availability, especially in places where consumption is already unsustainably high.  "There are several rivers that don't reach the sea any more," says Mark Smith, head of the water programme at the International Union for the Conservation of Nature (IUCN).  "The Yellow River is one, the Murray-Darling (in Australia) is nearly another - they have to dredge the mouth of the river every year to make sure it doesn't dry up.  "The Aral Sea and Lake Chad have shrunk because the rivers that feed them have been largely dried out; and you can see it on a smaller scale as well, where streams that are important for small communities in Tanzania may go dry for half the year, largely because people are taking more and more water for irrigating crops."

Wet and dry

Last year the Intergovernmental Panel on Climate Change (IPCC) took an in-depth look at how the raw availability of water might alter in the future as climatic patterns change.  Its projections are derived from computer models of the Earth's hugely complex climate system, and as such are far from being firm forecasts.
A warmer climate overall means a wetter climate; warmer air can hold more moisture.  But weather patterns are likely to shift, meaning that water will be deposited in different places with a different pattern in time.  "In general we see drying in the sub-tropics and mid-latitudes, from southern Europe across to Kazakhstan and from North Africa to Iran," recounts Martin Parry, who as co-chair of the IPCC's working group on climate impacts oversaw the water report's compilation.  "And the drying extends westwards into Central America. And there are equivalents in the southern hemisphere - southern Africa, Australia."
In some populated parts of North Africa and Central Asia, he says, people may struggle simply to get enough to drink  Other areas, meanwhile, are projected to receive more rain - considerably more, in some cases.

The question then is whether societies can make use of it.

"If you look at India, Bangladesh and Burma, there are indications of an increase in water availability," says Professor Parry.  "But when you look in more detail you see that monsoonal precipitation will become more intense - there'll be a heavier downpour but over fewer days - so you might just end up with more runoff, which could actually mean less availability of water to the community." 

Thirsty work

A changing climate is only one of the factors likely to affect the amount of water at each person's disposal in future.  A more populated world - and there could be another 2.5 billion people on the planet by 2050 - is likely to be a thirstier world.  Those extra people will need feeding; and as agriculture accounts for about 70% of water use around the world, extra consumption for growing food is likely to reduce the amount available for those basic needs of drinking, cooking and washing.  Industry can also take water that would otherwise have ended up in peoples' mouths.  On the other hand, as a society industrialises it tends to become less reliant on farming - which could, in principle, reduce overall demand. 

It is a tremendously complex picture; and forecasting its impacts makes simple climate modelling look a trivial task by comparison. Researchers at the University of Kassel in Germany, led by Martina Floerke, have attempted it.  Their projections suggest that some regions are likely to see drastic declines in the amount of water available for personal use - and for intriguing reasons.  "The principal cause of decreasing water stress (where it occurs) is the greater availability of water due to increased annual precipitation related to climate change," they conclude.  "The principal cause of increasing water stress is growing water withdrawals, and the most important factor for this increase is the growth of domestic water use stimulated by income growth."  The modelling suggests that by the 2050s, as many as six billion people could face water scarcity (defined as less than 1,000 cubic metres per person per year), depending, most importantly, on how societies develop - a significant increase on previous estimates.

Ideas pipeline

The irony is that the richer societies are the ones most likely to be able to adapt to these changes - perhaps relatively easily.  A century ago, a 500km-long pipeline was built to bring water from the Western Australian coast to the parched inland goldfields around Kalgoorlie; the economics of gold made it viable.
Now that the coastal capital Perth is drying out, there is talk of building an even longer pipeline to bring water from the north of the state.
The state recently acquired a desalination plant - an effective, but expensive, way of increasing the raw supply of clean water. A number of Middle Eastern countries are doing the same; it is even being contemplated near London.  Rivers can be diverted huge distances, as China is contemplating. Spain and Cyprus can take water deliveries by ship.

But can all societies afford such measures?

In any case, is adaptation possible to some of the really big projected changes, such as the rapid shrinking of Himalayan glaciers which may lose four-fifths of their area by 2030, removing what is effectively a huge natural reservoir storing water for more than a billion people? "In principle you could do it, if you're equipped to do the engineering," says Mark Smith.  "But societies are going to have to get much better at deciding how they're going to use their water.
"And very often, in developing countries where institutions are not well established, decisions are made in a very ad-hoc way - someone says 'yes let's use this much for irrigation' but you're already using that much for a sugar mill, and before you know it you've allocated more than you actually have."

Two years ago I stood in a forest clearing in the west of the Amazon basin talking to researchers studying the deforestation and fires that are an increasing plague in the region.  They told me that some villages around there were experiencing water shortages.  How can that happen, I asked incredulously, in the middle of the Amazon rainforest, in one of the most luxuriously verdant places on Earth?  What had brought the shortages was a combination of increased human settlement, deforestation, and a drying of some streams, possibly related to climate change.  If even the Amazon can feel these pressures, it is difficult not to think that the same picture will be played out in much starker and possibly much messier colours in parts of the world that are already feeling the heat of dwindling supplies and growing needs.

Global water scarcity: the blue gold rush....

Frank Rijsberman, Program Director at Google.org and formerly Director General of the International Water Management Institute, investigates the global water scarcity problem in an essay published on Boston Review. Global water scarcity  A rapidly growing population means that we need rethink the world's water resources –  both use and distribution. Rijsberman analyzes causes for the impending crisis, and addresses possible solutions, which he believes must include both technological and political innovation. The problems are serious, but Rijsberman remains optimistic: "We can avoid a full-blown global disaster. Unfortunately, the water crisis is complicated, often misunderstood, rarely grasped holistically, accelerated by climate change that melts glaciers and icecaps, and exacerbated by biofuel expansion that further stresses scarce water supplies. Forestalling it will require a mix of sustained technological innovation and institutional reform, all guided by deeper understanding and some new thinking."

New 6th Circuit Rapanos decision

A frequent reader who practices in the Sixth Circuit saw this 6th Circuit application of the Rapanos case and passed some comments along:

U.S. v. Cundiff
Cundiff decision 

The Court (Judges Martin, McKeague, and a District Judge Collier, with Martin writing for a unanimous panel (that lineup and the unanimity is interesting alone to me and I would guess other Sixth watchers)) held that, under Rapanos, the government had jurisdiction over the defendant's wetlands in Kentucky. The Court discussed the Marks-Rapanos problem at length (some fascinating discussion, along with a sharp rebuke of the Pacific Legal Foundation's view that the plurality test controls in a footnote), but did not make a final decision because it decided that jurisdiction was proper under both the plurality and Kennedy tests. The application of the plurality and Kennedy tests was also lengthy and interesting.

Also interesting was this footnote, describing the status of the property in Muhlenberg County, KY. (If you've ever been there, this is pretty accurate.)

"1 Singer-songwriter John Prine has colorfully recounted Muhlenberg County’s sordid ecological history: 

"And daddy won’t you take me back to Muhlenberg County / Down by the Green River where Paradise lay / Well, I’m sorry my son, but you’re too late in asking / Mister Peabody’s coal train has hauled it away . . . . / Then the coal company came with the world’s largest shovel / And they tortured the timber and stripped all the land / Well, they dug for their coal ‘til the land was forsaken / Then they wrote it all down as the progress of man . . . .

"JOHN PRINE, Paradise, on JOHN PRINE (Atlantic Records 1971)."

Thanks again -- I grew up singing to Paradise.

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

The War on Bottled Water

People are starting to get it: tap water was named one of the top 10 food trends of 2008 (Time article), one of the top 10 green stories by Grist (Grist article), and Zagat says tap water is in and designer water is out.  I recently asked our administration to eliminate the purchasing of bottled water for law school functions -- although there wasn't immediate affirmation, at least I didn't get laughed out of the office.  Willamette University President Lee Pelton is considering having a University-wide ban on University purchasing of bottle water.

 

Photodisc / Getty

Time article:

In 1992's The Player, Tim Robbins' character, the consummate Hollywood insider, showed his sophistication at restaurants through his ability to differentiate among various kinds of bottled water. But today, that same Hollywood macher would never ask for anything but tap. Because of the environmental costs of producing and shipping bottled waters, more and more chefs are offering only filtered tap water to customers. Mario Batali and his business partner Joseph Bastianich stopped selling bottled water at their New York City restaurants Del Posto and Otto earlier this year, and eateries in Florida and Massachusetts are also serving only tap. The U.S. Conference of Mayors voted in June to recommend that City Halls stop serving bottled water even at special functions. Once hip, bottled water is now unforgivably '90s.

Grist says:

Oh, for PETE's slake

Bottled water loses its luster
This was the year that America's love for bottled water finally began to dry up. Tests conducted by the Environmental Working Group and others found chemicals and other contaminants in leading brands. Thanks in large part to a campaign launched in late 2007 called Think Outside the Bottle, the U.S. Conference of Mayors resolved in June to phase out bottled-water spending. Calls for bottle bans came from college campuses, touring bands, and London Mayor Ken Livingstone. Restaurants organized a tap-instead week to benefit Unicef. And amidst all the H2O-pla, the growth in bottled-water sales dribbled to a fraction of its former self.

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).

Cape Wind EIS Completed

According to MarketWatch, Jim Gordon of Cape Wind Associates, the developer of the controversial Cape Wind wind farm off the coast of Nantucket, plans to begin construction as early as 2010 now that the Cape Wind project has cleared a years-long environmental review by the federal government.  The Interior Department's Minerals Management Service has issued a 2800 page final EIS, estimating that the $1.2 billion plan to build 130 turbines in Nantucket Sound would reduce regional greenhouse gas emissions that contribute to climate change by 880,000 tons per year, create hundreds of jobs and ultimately supply most of the electricity needs for Cape Cod.  The Record of Decision is expected roughly  30 days after issuance of the FEIS.   

Opponents of the project include Sen. Ted Kennedy (D-Mass.) and other residents in the area.  Kennedy vowed to continue their fight against the project, arguing that the 400-foot turbines would kill birds, threaten sea life, and hurt tourism and fishing.  "I do not believe that this action by the Interior Department will be sustained," Kennedy said. "By taking this action, the Interior Department has virtually assured years of continued public conflict and contentious litigation."    

The Seas are Rising

EPA reports sea levels on the United States' mid-Atlantic coast are rising faster than the global average because of global warming, threatening the future of coastal communities.  Coastal waters from New York to North Carolina have crept up by an average of 2.4 to 4.4 millimeters (0.09 to 0.17 inches) a year, compared with an average global increase of 1.7 millimeters (0.07 inches) a year.  As a result, sea levels along the East Coast rose about a foot over the past century.  EPA Sea Level Assessment and Adaptation Report

The IPCC's Fourth Assessment Report indicated that the rate of sea level rise has accelerated and, by the end of the century, global sea levels could be seven to 23 inches higher.  Readers should remember that this IPCC estimate excludes the contribution of Antarctic and Greenland ice because of uncertainties about ice stability and dynamics at the time the Working Group I report was drafted.  In the last two years, additional scientific research has begun to identify a more reliable range of sea level rise associated with those areas of ice, dramatically increasing the estimate of likely global sea level rise by 2100.

EPA had focused on the mid-Atlantic region because it "will likely see the greatest impacts due to rising waters, coastal storms, and a high concentration of population along the coastline." Higher sea levels erode beaches and drastically change the habitats of species, often at a pace too fast for species to adapt and survive. Communities in the area are at greater risk of flooding as a "higher sea level provides an elevated base for storm surges to build upon and diminishes the rate at which low-lying areas drain."  Floods will probably cause more damage in the future as higher sea levels gradually erode and wash away dunes, beaches and wetlands that serve as a protective barrier. Consequently, homes and businesses would be closer to the water's edge and more likely to be damaged in extreme storm events that other scientists predict are increasing with global warming.

Rising sea levels have implications beyond the mid-Atlantic region.  Ports challenged by rising waters could slow the transport of goods across the country, and disappearing beaches could hurt resorts and affect tourism revenue, damaging an already fragile U.S. economy.

EPA, NOAA, and USGS recommend:

• Federal, state and local governments should step in now to prepare for the rising seas
• Governments should protect residents through policies that preserve public beaches and coastal ecosystems and encourage retrofits of buildings to make them higher
• Engineering rules for coastal areas be revised because those used today are based on current sea levels
• Flood insurance rates also could be adjusted to accommodate risk from rising sea levels

Cape Wind Controversy

Barbara Durkin provided the following correspondence concerning the issues surrounding the Cape Wind controversy.  Those of you interested in following these issues may find this correspondence interesting.

December 28, 2008

 

 

 

Dear Mr. Stysky: 

Thank you for this notice that confirms the Patrick Administration has launched an apparent successful attack on the Commonwealth’s primary tool for protection and promotion of public use of its tidelands and waterways. 

At issue is M.G.L Chapter 91 that codifies the “Public Trust Doctrine”, a 2,000 year old legal principal that holds that the air, sea, and the shore belong not to any one person, but rather to the public at large. 

 

A troubling consideration is the timing of the Governor’s actions taken that greatly diminish public rights, and environmental protections afforded under Chapter 91. This particular “Change” of important law paves the way for one person during a United States precedent permitting process. Chapter 91 was determined by the Patrick administration to present an obstacle to a Limited Liability Corporation’s “no bid” deal to control, by occupancy, 24 square miles of public lands. 

 

The Massachusetts Secretary of Environmental Affairs determined the Cape Wind project is “non-water” dependent citing public comments accepted over 147 days as the basis for this decision of record of May 28, 2003.  The public identified that greater scrutiny of Cape Wind, as proposed for Nantucket Sound, is warranted under Chapter 91. This decision of record, in which the public participated, required Cape Wind to obtain a variance under  M.G.L Chapter 91.

 

In response, the Patrick administration exerted supreme power as it ignored public will, expressed over 147 days, and changed the oldest law of its kind in the Nation, M.G.L. Chapter 91.  This Cape Wind obstacle was altered during the project permit review process to accommodate a private developer.  Grave potential risks to the environment of Nantucket Sound, a resource upon which the public, trades, and present endangered wildlife depend, are now risks we assume.   

This announcement indicates that meaningful public participation in the decision making process pertaining to matters that most affect us has perished under the current administration.    

 

Governor Patrick's actions seem sufficient to cause President Abraham Lincoln to turn in over in his grave. As Lincoln eloquently expressed in the Gettysburg Address on the afternoon of Thursday, November 19, 1863: 

 

"government of the people, by the people, for the people, shall not perish from the earth”

 

"Charge", as promised by Governor Patrick, threatens to despoil our children’s inheritance, precious natural resources, Public Trust, heritage public rights, and trades. Deeds weighed more heavily than words reveal that from his State House castle, an Absolute Monarch attended by vassals, rules more than governs the silenced citizens of Massachusetts.   

Thank You,

Barbara Durkin

48 Moore Lane

Northboro, MA  01532

Telephone:  (508) 612-4133

As supplemental evidence previously submitted to the DEP confirms: 

November 24, 2008

Alex Strysky

MassDEP

One Winter Street

Boston, MA  02108

RE:  http://www.mass.gov/envir/mepa/notices/102208em/1.pdf

Department of Environmental Protection

Waterways Regulation Program

Notice of License Application Number W08-2480

 

"The proposed project has been determined to be water-dependent." 

 

Dear Mr. Strysky:

 

It is not acceptable that the Cape Wind project is now being described by the DEP as "water dependent" in this Public Notice.   As it is critical that this area of Nantucket Sound, with endangered species present, avian and marine life, receives a full environmental review relevant to the Cape Wind project under Chapter 91, as "non-water" dependent use. 

 

We need heavier scrutiny of Cape Wind to continue as a "non-water-dependant" use to protect the present endangered species, wildlife, and this environmentally fragile marine ecosystem.  The "world's largest" proposed offshore industrial project, Cape Wind, must continue to be considered within the context of the high values present that include species under federal and state protection.  Nantucket Sound is an Essential Fish Habitat and spawning ground, migratory flyway, with endangered species present, and as such, it merits the maximum protection afforded under Chapter 91 as a non-water dependent project consistent with its previous designation during this permit review process.

 

It is simply impermissible to change this significantly important designation of Cape Wind during the state and federal permit review process to accommodate this private developer's plan. 

 

I consider that this "sleight of hand" reclassification of Cape Wind to "water dependent" use,  is contrary to the public interest, the interest of the fragile environment of Nantucket Sound, Public Trust, and the integrity of the NEPA environmental review process of the Cape Wind project. 

 

A change in the status of Cape Wind from "non-water dependent" to "water dependent" use significantly undermines Public Trust, and public and environmental protections afforded under M.G.L. Chapter 91.   

 

Please deny Cape Wind's Chapter 91 Permit application.

 

Thank You,

 

 

Barbara Durkin

48 Moore Lane

Northboro, MA  01532

Telephone:  (508) 612-4133

 

Governor Deval Patrick has taken action to alter state law, M.G.L Chapter 91; during the permit review process of Cape Wind.

(see Boston Globe story copied below, 'Changes may buoy Cape Wind project' "Patrick seeks to alter state law" 12/11/07.). 

The significance of M.G.L. Chapter 91:

http://www.mass.gov/dep/water/resources/about01.htm

Boston Globe: 

 

"In concluding his remarks to the commission, Butler said that "most importantly, that project (the Nantucket cable) was determined to be water-dependent, whereas as noted in the findings of the draft decision before you, this (Cape Wind) is a non water-dependent use."

http://www.capecodtoday.com/blogs/index.php/2007/10/24/delaying_cape_wind_while_hastening_its_o?blog=69

Cape Cod Commission Decision, in a parallel policy universe: 

Cape Wind as proposed is "inconsistent" with commission minimum performance standards in the following six areas:
- development in V-zones (coastal areas suspectible to storm damage)
- non-water dependent development within 100 feet of the top of a coastal bank, dune crest or beach.
- new dredging.
- impacts to eel beds.
- impacts to fish, shellfish and crustaceans.
- open space.

http://www.capecodtoday.com/blogs/index.php/2007/09/05/preview_of_thursday_s_cape_cod_commissio?blog=53

"The state Executive Office of Environmental Affaire has ruled that the Cape Wind project is non-water dependent and must therefore meet a stricter standard for development in the water (Chapter 91 variance)".
http://capeweb1.meganet.net/~sosweb/files/135_Newsletter_Winter05.pdf

Cape Cod Commission Cape Wind Decision: 

Refer to page 37, forward, of 63 pages for Cape Wind "non-water" dependent:  http://www.capecodcommission.org/CapeWindDecision10-18-07.pdf

'Changes may buoy Cape Wind project'

"Patrick seeks to alter state law"

By Peter J. Howe Globe Staff / December 11, 2007

Governor Deval Patrick's administration proposed several changes to state environmental-protection laws yesterday that could help speed construction of offshore wind-power farms, including the controversy-plagued Cape Wind project that Patrick strongly backs.

The Department of Environmental Protection formally unveiled several changes to the state's Chapter 91 waterways protection laws, which could take effect as soon as April after a public comment period that ends Jan. 17.

One major change would be to declare cables conveying power from offshore renewable-energy projects - including wind farms and hydroelectric generating units - to be water-dependent. That designation would get those projects speedier, more favorable consideration by department regulators, who are required by Chapter 91 to apply heavier scrutiny to nonwater-dependent projects in protected waterfront and river areas.

"The governor has made it an environmental priority to increase renewable energy, and the most important piece of these changes would make the regulations consistent with the administration's support for renewable energy, by allowing renewable energy from offshore to connect to the grid onshore," said Ed Coletta, a department spokesman.

Besides the 130-turbine Cape Wind project in Nantucket Sound, other proposals the changes could help include construction mogul Jay Cashman's plan for a 120-turbine wind farm in Buzzards Bay off Dartmouth and Fairhaven, and the Hull Municipal Light Department's proposed wind farm.

The announcement was made a month after Patrick's administration supported House Speaker Salvatore F. DiMasi's inclusion of a measure in the House's green-energy bill. The measure exempts Cape Wind and the Cashman project from regulatory hurdles in the state's Ocean Sanctuaries Act, which limits or bans development in most coastal waters.

Though former governor Mitt Romney relentlessly opposed Cape Wind, Patrick and his energy and environmental affairs secretary, Ian A. Bowles, have called the project crucial to meeting state goals for renewable energy and helping to market Massachusetts worldwide as being friendly to renewable energy companies.

Mark Rodgers, a Cape Wind Associates spokesman, said yesterday that his company had not yet seen the proposed changes but said they sounded like "a step in the right direction from our viewpoint." The current designation of offshore wind farms as nonwater-dependent projects, Rodgers said, "doesn't make it impossible, but it adds another layer, and it never struck us as a policy that makes sense."

Rodgers said offshore wind farms are clearly water-dependent because it is their location in the open ocean - where winds are much steadier and stronger than on land - that makes them feasible for generating electricity.

Officials from the Alliance to Protect Nantucket Sound, which has been battling Cape Wind for six years, and the Conservation Law Foundation, an environmental group backing Cape Wind, declined to comment.

Last month, Cape Wind angered its foes by asking the state Energy Facilities Siting Board to use its unique authority to approve the project by preempting eight different state and local permits - including the DEP waterways permit. This move came after the Cape Cod Commission voted against approving transmission lines connecting Cape Wind to the regional power grid in Yarmouth.

Peter J. Howe can be reached at howe@globe.com.

© Copyright 2007 Globe Newspaper Company.

 

http://www.boston.com/news/local/articles/2007/12/11/changes_may_buoy_cape_wind_project/

 

Comment to Coastal Zone Management on Cape Wind:

 

http://www.mass.gov/portal/gog_cache.jsp?q=cache:LJU-rWpnzrcJ:www.mass.gov/Eoca/docs/dte/siting/efsb02-2/72cwind.pdf+cape+wind&access=p&output=xml_no_dtd&ie=UTF-8&client=mgov&site=CONSUMERx&proxystylesheet=mgov&oe=UTF-8

 

The significance of M.G.L. Chapter 91 Public and Waterways Protections and Cape Wind as a "non-water dependent" use:

 

                   

1" ID="1"       SRC="aoladp://MA23326682-0001/clip_image003.gif">

ECODESIGN,       Inc.

EAST:       Flagship       Wharf       #506        197       Eighth St       Charlestown       Navy Yard        Boston,       MA 02129        Ph       (617) 241-9006        Cell       (970) 948-8822*        sscutler@ECODESIGN.com

Architecture        Urban       Design & Planning        Environmental       Planning        Production       Design        Project       Develop & Management

 

                   

 

 

 

October 25, 2008

Mr. Phil Dascomb
Cape Cod Commission
PO Box 226
Barnstable, MA 02630

Re: True Environmentalists Seek Alternative Sites for More Productive Wind Energy

Dear Commissioner(s),

The attached ECODESIGN letter expresses the concerns of serious pro-alternative energy environmentalists to the specific wind turbine development proposed by Cape Wind. 

Pro-alternative energy objections to installation of 130 untested, 40-building stories high wind turbines along a major shipping channel, under a busy airspace and in a 24 acre Federal "doughnut hole" in Massachusetts’ coast and Massachusetts Sanctuary include:

· "Federal vs. States rights",

· "Lack of coastal zoning",

· "No competitive bid",

· "Developer land grab",

· "Illegal spot zoning",

· "No siting provisions",

· "Navigational hazards to major transportation and commercial routes",

· "Dangerous radar interference in busy airspace",

· "Homeland Security re: radar interference",

· "Inadequate, misleading Environmental Impact Statement",

· “Effects on marine-life and fishing industry”,

· "EIS critical mass of adverse and unknown effects including socio-economic",

· "Untested technology / maintenance for harsh, corrosive and inaccessible marine conditions", 

· "Safety of search and rescue operations by helicopters or surface vessel in adverse sea or weather",

· "No exit strategy re: technology failure or obsolescence”,

· "Special Energy Bill exemptions to this developer",

 

 

· “Violation of State Sanctuary”,

· "No comprehensive ocean policy",

· “Tax benefits and subsidies over $800m. to developer”,

· “Loss of opportunity/ time/ money/ resources better spent to develop state-of-art technology required to utilize more energy-productive off-shore wind energy sites”.

These are all serious issues that relate the CCC jurisdiction that require the fullest consideration and review of the Cape Cod Commission. There will be important permits, licenses, etc. required from Minerals Management, local towns, including Chapter 91 from MA Department of Environmental Protection.

Chapter 91 regulations and their impact on this project are a critical view of this proposed development; CCC will be requiring the developer’s presentation of a Ch 91 License. I am familiar with Chapter 91 from other projects and realize that Chapter 91 is one of extremely few MA regulations that protect our coast from development and preserves our access to our Massachusetts State waters.  Chapter 91 dates to the earliest of MA laws; it now prevents development of areas of tidal waters for anything other than water dependent uses. 

 

Chapter 91 has been much abused in recent years and now MA citizens and MA government officials have become concerned and activated. Concerns regarding Ch 91’s application to the Transmission Cable component of the Cape Wind’s Proposal raise many questions.

 

1. What specifically is the permit regarding the cable component that is required from offshore and near-shore wind turbine proposals under Chapter 91?   

2. Are these turbine permits to be year-to-year licenses or long term leases?   

3. What are the terms and conditions of the permits or leases?   

4. Can the permits be denied or terminated and on what basis (i.e.: Is there both an activation and an exit strategy)?   

5. Is a separate Impact Statement required from MA agencies for the separate cable component?  

6. Who else is allowed to use this cable or cables?   

7. Is this the best location for MA for such a transmission cable vs. an alternative cable location or “site” or “right-of-way” that leads to potential true “blue water” offshore sites on the continental shelf that will be more productive in the future?  

8. How many cables can we support that connect to the main grid (i.e.: Will there be many other requests and how will they be administered)? 

9. Are there separate impacts re: upkeep and maintenance, shifting, restrictions on anchorage, disruption of seabed, dangers due to damage to the cable(s), etc.   

10. Will transmission cables be terrorist targets requiring additional security and protection and who would pay the costs of this?   

11. Will there be a fee paid for the lease of the MA seabed over which the cable(s) would pass? How much and to whom?

 

 

 

 

How, as well, do rules and regulations of 2002 Regional Policy Plan (as opposed to the 1996 Regional Policy Plan) apply? 

1. How and where will the cable connect to the mainframe electrical grid and what is the condition of the grid at that point (i.e.: Is it as obsolete and inadequate as most of the Northeast grid and who will be updating and maintaining it)?    

2. Where are the monitors quantifying the power to be supplied by Cape Wind and are there independent monitors?    

3. If Cape Cod airport safety is affected, including future uses on Cape both military and commercial, aren’t commercial assets of the Cape restricted in a permanent way by this project as irreversible impacts?

These are considerations that fall to the Cape Cod Commission (CCC).

Sincerely,

 

Sherrie S. Cutler, A.I.A.

ECODESIGN, Inc., President

Environmental Planning and Architecture

 

sscutler@ECODESIGN.com

(970) 948-8822

Shenanigans undermine public confidence in government such as have been conducted to facilitate a private developer, Cape Wind.  The message is, if you're project can't comply with the law, have your friends change the law.   

"Proposed regulation change could ease Cape Wind efforts"

 

http://capecodonline.com/apps/pbcs.dll/article?AID=/20071211/NEWS/712110319/-1/NEWS01

 

Phil Weinberg of the MA Department of Environmental Protection (DEP) then reviewed MA DEP’s review process. He said that DEP jurisdiction is limited to MA territorial waters, and, on this project, specifically to the underwater cable within the 3 mile boundary. Mr. Weinberg said this is a change from DEP’s initial comments in the ENF. Previously, the Nantucket cable fit the definition of an infrastructure crossing facility (ICF). If the ICF is water dependent, there is a low level of public review. In response to a public comment, further review determined that this proposed cable did not travel between opposite banks, this became an infrastructure facility, and a non water dependent project, thus requiring a variance. 

 

Mr. Weinberg then reviewed MA DEP’s regulatory jurisdiction and explained chapter 91 regulations governing the cable through the seabed, wetlands, and water quality impacts from related dredging. 

 

Stakeholders, Resources, and Advisors had the following questions (in italics) for Mr. Strysky (CZM) and Mr. Weinberg (DEP). Their responses are below:

 

Is the cable a chapter 91 license or a permit?

 

(DEP) I’m not sure, but I think it’s a permit.

 

Does the Department consider an underwater cable as being water dependent?

 

(DEP) If it qualifies as an infrastructure crossing facility and the Secretary determines that there is not an alternative, then it’s water dependent. But we determined that it’s not water dependent because it is not bank to bank.

 

Is there a schedule laid out including all of the permitting processes?

 

Ms. Adams said she doesn’t have one, but perhaps the applicant does. 

 

There are 6 locations of cable crossing—is one a tie in to the Nantucket project, and how would that impact this process?

 

( DEP) Don’t have that level of detail, but it would be in the alternatives analysis. Ms. Adams added that the tie in to Nantucket is not one of the 6 options. The cables cross outside of Hyannis harbor and that is not a useful connection point for this project.

 

 

What level of criteria will feed into your determination?

 

(CZM) CZM’s decision will be based on the project’s consistency with CZM’s enforceable policies. Comments from other state agencies may also be considered. For example, CZM doesn’t have a fisheries policy, but would rely on the expertise of the Division of Marine Fisheries (DMF) on that subject. However, CZM can’t make a decision based solely on fisheries issues. 

 

 I think we need more clarity on how jurisdiction decisions get made.

 

One stakeholder responded that this was the subject of a lawsuit brought by the Alliance. The representative from the Alliance to Protect Nantucket Sound responded that there were 2 lawsuits, only one of which is the Alliance’s.

 

What is the motivation or reason for something being water dependent or non water dependent, and how is that related to the infrastructure crossing?

 

(DEP) Chapter 91 looks more favorably to approve water dependent structures than non water dependent structures. Regulations go through what types of uses fit into the water dependent category. One part of the definition is that the structure is bank to bank.

 

COMMENT--Can we bring up consistency question this afternoon, between state’s Ocean Task Force and federal Oceans Commission? We can’t make decisions based on political boundaries if they are unclear.

http://wind.raabassociates.org/Articles/cape-MS-6-2-04v4-final-clean.doc

 

Secretary ENF decrees wind projects "non-water" dependent page (1) Buzzards Bay proposal

 

http://www.buzzardsbay.org/download/13812enf.pdf

 

 

http://www.ceere.org/rerl/projects/support/mwwg/minutes/MWWG_Policy_Nov05_Minutes.pdf 

 

CERTIFICATE OF THE SECRETARY OF ENVIRONMENTAL AFFAIRS ON THE ENVIRONMENTAL NOTIFICATION FORM

By Secretary Robert Durand

April 22, 2002

 

 

PROJECT NAME : Cape Wind Project

PROJECT MUNICIPALITY : Barnstable, Yarmouth, and Federal Waters of Nantucket Sound

PROJECT WATERSHED : Cape & Islands

EOEA NUMBER : 12643

PROJECT PROPONENT : Cape Wind Associates LLC

DATE NOTICED IN MONITOR : November 24, 2001

 

 

 

Pursuant to the Massachusetts Environmental Policy Act (G. L. c. 30, ss. 61-62H) and Section 11.03 of the MEPA regulations (301 CMR 11.00), I hereby determine that this project requires the preparation of an Environmental Impact Report (EIR).

 

INTRODUCTION

 

Chapter 91/Public Trust

 

The EIR should include an analysis of the project impacts on lands subject to the Massachusetts Public Trust Doctrine. The document should discuss potential impacts on navigation and

 

anchorage within the state Territorial Sea, and should discuss any impacts on public access to Chapter 91 lands.

 

The submarine cables qualify as an infrastructure crossing facility under the state Waterways Regulations. DEP must consider an infrastructure crossing to be non-water dependent (and thus categorically prohibited) under the Waterways Regulations unless I make a determination, as part of the EIR review, that the cable cannot reasonably be located or operated away from tidal or inland waters (see 310 C.M.R. 9.12(2)(d)). The EIR should therefore include sufficient information for me to make a determination pursuant to the applicable regulations.

 

The EIR should also discuss any federal public trust implications of the project. The EIR should include discussion of impacts to recreational/commercial fishing and boating, and public access in general, in the area proposed for the WTG array.

 

http://archive.capecodonline.com/special/windfarm/durandwind22.htm 

 

 

 

OCEAN SCIENCE: Winter Carbonate Collapse

H. Jesse Smith

Anthropogenic fossil-fuel burning is increasing the concentration of CO₂ in the atmosphere, which in turn is causing more CO₂ to dissolve in the ocean, thereby lowering the water's pH. Such ocean acidification in turn decreases the concentration of carbonate ion (CO₃)^2-, which makes it more difficult for calcifying organisms such as foraminifera, pteropods, and corals to build their skeletons. So far, most of the attention paid to this process has focused on the time-averaged chemistry of the ocean, but organisms actually experience seasonal carbonate and pH variations. McNeil and Matear examine these variations and show that anthropogenic CO₂ uptake is likely to induce winter aragonite undersaturation in some regions of the ocean when atmospheric CO₂ levels reach 450 parts per million. These findings underscore the importance of understanding the seasonal dynamics of marine carbonate chemistry, as natural variability could hasten the deleterious impacts of future ocean acidification. -- HJS Proc. Natl. Acad. Sci. U.S.A. 105, 18860 (2008).

ExxonMobil pays $ 6 million for spilling 15,000 gallons of diesel into Mystic River

BOSTON, MASS. - DOJ filed a criminal information today in federal court charging a wholly owned subsidiary of ExxonMobil Corporation with violating the criminal provisions of the Clean Water
Act in connection with a spill of approximately 15,000 gallons of diesel oil and kerosene into the Mystic River from ExxonMobil's oil terminal in Everett, Mass.  The information was filed in connection with a $6.1 million settlement.

     According to the information, ExxonMobil Corporation and its corporate predecessors have owned a marine distribution terminal in Everett, Mass. (the "Everett Terminal") since 1929.  Oil tankers deliver petroleum products that are distributed from the terminal throughout the region.  ExxonMobil Pipeline Company, is a wholly owned subsidiary of, and operates the facility on behalf of, ExxonMobil Corporation.  The Everett Terminal included an inland "tank farm," which was comprised of a tank loading rack and 29 large-scale oil storage tanks in which oil products were stored.  Various above-ground pipes and valves connected those tanks to the Terminal's marine transfer area located at the confluence of the Mystic and Island End Rivers.   ExxonMobil's failure to replace a leaking seal valve and a corroded coupling at the transfer station, known to be faulty, was the cause of the spill.  ExxonMobil also negligently failed to conduct required inspections by which it would have detected the spill while it was still ongoing.

       As part of its plea agreement, ExxonMobil has agreed to pay the maximum possible fine of $359,018 (twice the cost of the clean up), the clean up costs of $179,634, and a community service payment of $5,640,982 to the North American Wetlands Conservation Act fund to be
used to restore wetlands in Massachusetts.   ExxonMobil further agreed that for the next three years, the Everett facility will be monitored by an court-appointed official and will be subject to a rigorous environmental compliance program.

      

The Island End River flows into the Mystic River, which flows into Boston Harbor.  Both rivers are navigable waterways of the United States.

       As depicted in the attached diagram, the Terminal's marine transfer area was comprised of three berths (Berths 1, 3 and 4). Barges and ships offload petroleum products that were piped to and stored in the tanks within the tank farm.  Those products were then piped to the Terminal truck loading rack, where they were loaded onto trucks for distribution.  Berth 1 is an approximately 500-foot long pier that
extended southwesterly from the Everett shoreline and ran parallel to the Island End River.  Berths 3 and 4 were situated side-by-side on an approximately 1000 foot dock that ran from the outermost end of Berth 1 northwesterly to the Everett shoreline, parallel with the Mystic River, with Berth 3 being closer to Berth 1.

       The product receipt lines at Berth 1 ran parallel to the Berth 1 dock to approximately the point where the Berth1 dock met the Berth 3 dock, and from that point those lines ran parallel to the Berth 3 dock, where they ultimately were connected to the Berth 3 product receipt lines. The Berth 1 product receipt lines were isolated from the Berth 3 product receipt lines by seal valves, which were designed to prevent product being offloaded at Berth 3 from flowing into the Berth 1 product receipt lines.

       The Everett Terminal was operated and maintained by a staff of approximately 14 employees situated in an office building adjacent to the tank farm and just north of the marine transfer facility.  The regular Terminal staff consisted of a terminal superintendent, terminal supervisor, nine terminal operators who covered the Terminal's 24-hour operations, electrician, mechanic and accountant.  At any given time, at least two terminal operators were on duty.  Additional Terminal support was provided by a field operations specialist, an area administrator and an area engineer.

       ExxonMobil was responsible for the proper operation and maintenance of the facility.  These responsibilities entailed, among other duties, monitoring the Terminal, and when necessary, cleaning,
repairing, and replacing, as appropriate, worn or damaged equipment, including pipes, valves, docks, and tanks.  Likewise, ExxonMobil was responsible for monitoring the transfer of petroleum products at each point in the process: from delivery at the marine transfer area, through the receipt and storage of those products in the tank farm, and to the loading of the products onto trucks at the truck loading rack. It was therefore necessary that facility employees remain alert to pressure drops or spikes during transfer operations and to monitor the site visually for spills, hazards or other irregularities.

       At approximately 4:30 A.M. on Jan. 9, 2006, the oil tanker M/V Nara docked at Berth 3 to unload petroleum products, including approximately 3.1 million gallons of low sulfur diesel (LSD) fuel, which
is blue-green in color and is used as fuel in various types of engines. Later that morning, hoses running from the Nara's tanks were attached to a product intake manifold on Berth 3.  By mid-afternoon, pumps aboard the Nara began to pump LSD fuel from the vessel through the manifold into a product receipt line that was connected to storage tanks on the tank farm.  As it was being pumped from the Nara, the LSD flowed past a 10-inch seal valve located on Berth 3, which closed off a product receipt line from Berth 1.  As a result of wear and tear, the valve did not close completely and leaked oil into the Berth 1 product receipt line.

       ExxonMobil was aware of this defect.  In September 2005, a contractor pressure-tested the value and informed ExxonMobil that it leaked.  Nevertheless, ExxonMobil had failed to replace the valve by the
time the Nara arrived in January 2006.  As a result, LSD pumped from the Nara leaked by the defective valve into the Berth 1 product receipt line.  The line was approximately 610 feet long and 10 inches in
diameter, and was filled with approximately 2,500 gallons of low sulfur kerosene.  At the other end of the line was a pressure relief valve capped by a 3/4-inch coupling.  The coupling had not been replaced in more than 30 years, was unpainted and was badly corroded.

       As the Nara's delivery continued, the leakage by the seal valve on Berth 3 built pressure in the Berth 1 product receipt line until the coupling on Berth 1 burst.  The rupture sent the kerosene in the pipe,
along with LSD from the Nara, pouring through the destroyed coupling into a rectangular containment pan on Berth 1, as depicted in the attached photograph.  The fuel filled the containment pan and began to spill over its side and into the Mystic River below.  The spill continued until approximately 5:00 A.M. on January 10, when pumping from the Nara ended.

       A total of approximately 2,500 gallons of kerosene and 12,700 gallons of LSD poured into the Mystic River, causing a visible blue-green sheen on the Mystic River that eventually spread up the Island End River and down to Boston Harbor, and prompting several reports to the Coast Guard.  ExxonMobil personnel did not discover the ruptured coupling and the full containment pan on Berth 1 until
approximately 11:00 A.M. on January 11, when the Coast Guard arrived at the facility to ask questions about the origin of the sheen.

       ExxonMobil's negligent failure to provide adequate resources and oversight to the maintenance and operation of the Everett terminal was a direct cause of the spill.  In particular, ExxonMobil negligently failed to replace the leaking seal valve on Berth 3, and to replace the unpainted and corroded coupling at Berth 1, which ruptured as a result of the leakage and pressure build-up in the product receipt line.

       ExxonMobil also negligently allowed the spill to continue after it should have been discovered by failing adequately to monitor the transfer operations from the Nara.  Although ExxonMobil's employees were required to perform regular walk-through inspections of the berths, they failed to do so while the containment pan was spilling LSD into the Mystic River.  Because the segment of the walkway over the containment pan was partially submerged when the pan filled, a routine walk-through of the berth, had one been performed, inevitably would have resulted in the detection of the spill while it was still occurring.

Call for Papers: World Water Week Sessions on the Right to Water

 Here is a call for contributions on the World Water Week sessions in Istanbul, August 2009, on the right to water.  This posting is in both French and English (English below).

French

Thème 4.1 : le Droit à l’eau – Cinquième Forum mondial de l’eau, Istanbul 2009

Quatre sessions sont organisées à l’occasion du cinquième Forum mondial de l’eau à Istanbul à propos du Droit à l’eau autour du thème 4 sur la Gouvernance.

Nous invitons les contributions des parties prenantes de toutes les régions pour les sessions suivantes :

Pour savoir comment soumettre vos contributions à l’une des 4 sessions, veuillez consulter le site internet du FAN, d’où vous pourrez aussi télécharger le format des contributions à chacune des sessions :
http://www.freshwateraction.net/web/w/www_171_en.aspx

Session 4.1.1 – Meilleures pratiques de mise en œuvre : Quelles mesures les pouvoirs publics doivent-ils mettre en place dans la réforme du secteur, la budgétisation et l’élaboration de politiques ?

Session 4.1.2 – Le droit à l’eau et l’assainissement change-t-il vraiment quelque chose pour les communautés pauvres et marginalisées ? Quelles mesures doit-on prendre pour augmenter leur aptitude à se servir du droit à l’eau comme outil pour accéder à l’eau et obliger les pouvoirs publics et autres intervenants à leur rendre des comptes ?

Session 4.1.3 – Que comprend le droit à l’assainissement ?

Session 4.1.4 – Quelle est la valeur ajoutée d’une approche fondée sur les droits face aux urgences, du point de vue des pratiques sur le terrain et des actions de plaidoyer ?

La date limite de dépôt des contributions est le lundi 12 janvier 2009 et, si votre contribution est sélectionnée, vous en serez informé d’ici le 9 février 2009. Les contributions retenues seront regroupées dans le livre des Bonnes pratiques du droit à l’eau et un nombre limité de parties intéressées seront invitées à présenter leurs causes à l’occasion du Forum mondial de l’eau à Istanbul.

Session 4.1.1 – Contacter :  Thorsten Kiefer, COHRE (thorsten@cohre.org <mailto:thorsten@cohre.org> )
Session 4.1.2 – Contacter : Sanderijn van Beek, FAN (wwf5@freshwateraction.net <mailto:wwf5@freshwateraction.net> )
Session 4.1.3 – Contacter : Oliver Cumming, Water Aid : (olivercumming@wateraid.org <mailto:olivercumming@wateraid.org> )
Session 4.1.4 – Contacter : Julie Aubriot, Action contre la Faim (rechercheEAH@actioncontrelafaim.org <mailto:rechercheEAH@actioncontrelafaim.org> )

   

English


Topic 4.1: The Right to Water: Fifth World Water Forum, Istanbul 2009

Four sessions are being organised for the Fifth World Water Forum in Istanbul on the subject of the Right to Water under Theme 4: Governance.

We invite contributions from all stakeholders from all regions for the following sessions:

For guidelines on how to contribute for any of the 4 sessions, please visit our website, where you can download the format for contributions for each of the sessions:
http://www.freshwateraction.net/web/w/www_171_en.aspx

Session 4.1.1: Best practices of implementation: What measures need to be put in place by governments in sector reform, budgeting and policy formulation?

Session 4.1.2: Is the right to water and sanitation really making a difference for the poor and marginalised? What steps are needed to improve their ability to use the right as a tool to gain access and to hold governments and other actors to account?

Session 4.1.3: What does the right to sanitation comprise?

Session 4.1.4: What is the added value of a rights-based approach to emergencies, in terms of field and advocacy practices?

The deadline for contributions is Monday January 12 2009, and you will be notified on 9 February 2009 whether your contribution has been accepted. The successful contributions will be included in a book of Good Practices of the Right to Water, as well as a limited number of interested parties being invited to present their cases at the World Water Forum in Istanbul.

Session 4.1.1: Contact: Thorsten Kiefer, COHRE (thorsten@cohre.org <mailto:thorsten@cohre.org> )
Session 4.1.2: Contact: Sanderijn van Beek and Ceridwen Johnson, FAN (wwF5@freshwateraction.net)
Session 4.1.3: Contact: Oliver Cumming, Water Aid: (olivercumming@wateraid.org)
Session 4.1.4: Contact: Julie Aubriot, Action Contre la Faim (rechercheEAH@actioncontrelafaim.org <mailto:rechercheEAH@actioncontrelafaim.org> )

We look forward to hearing from you.

Virginia Roaf
Co-ordinator, Topic 4.1
COHRE Right to Water Programme

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 

 

World Water Week: Transboundary Waters and other flowing things

The World Water Week in Stockholm, the leading annual global meeting place for the planet’s water issues, now invites workshop abstracts and proposals for seminars and side events to be submited for the 2009 World Water Week, August 16-22.

The Workshop topics accepting abstract submissions are:

Securing Water in Coastal Zones
Benefit Sharing and Transboundary Waters
Securing Water in Coastal Zones
Access to Green and Blue Water in a Water Scarcity Situation
The Role of Inter-basin Transfers in Accessing Water
Safe Water Services in Post-conflict and Post-disaster Contexts
Securing Access to Water-related Goods through Trade
Water Storage Options for Secured Access
Subsidies and Financial Mechanisms in the Water Sector

The Deadline for abstract submission is: February 1, 2009.

Detailed information on the 2009 World Water Week in Stockholm and guidelines for submitting an abstract for presentation during the workshops is available at www.worldwaterweek.org and in the "First Announcement" available at: http://www.worldwaterweek.org/Downloads/1st_Announcement_09.pdf.

The World Water Week in Stockholm is hosted by the Stockholm International Water Institute (www.siwi.org). The theme for 2009 is: "Water - Responding to Global Change: Accessing Water for the Common Good  with Special Focus on Transboundary Waters."