Environmental Law Prof Blog

Happy New Year !!!

I try to keep this space professional, so I won't share my personal New Year's resolutions or predictions.  But, my law prof blogging intentions (note: not resolutions) are to:

(1) add resources

(2) blog more commentary

(3) blog more consistently

That's enough...I've always tried to follow the tennis pro's 3 tips rule.

One additional change I plan to make is to direct future royalties towards international projects promoting sustainable drinking water and sanitation in developing countries.   

Biodiversity science: Invasive Species Dynamics

Invasive species are second only to habitat destruction in causing loss of biodiversity.  However, scientists have found it difficult to prevent the spread of invasive species because spread dynamics are poorly understood. A study by Arim, et al., was published yesterday in the Proceedings of the National Academy of Science suggests that the spread of invasive species is not idiosyncratic and follows general patterns. PNAS Abstract

Species invasions are a principal component of global change, causing large losses in biodiversity as well as economic damage. Invasion theory attempts to understand and predict invasion success and patterns of spread. However, there is no consensus regarding which species or community attributes enhance invader success or explain spread dynamics. Experimental and theoretical studies suggest that regulation of spread dynamics is possible; however, the conditions for its existence have not yet been empirically demonstrated. If invasion spread is a regulated process, the structure that accounts for this regulation will be a main determinant of invasion dynamics. Here we explore the existence of regulation underlying changes in the rate of new site colonization. We employ concepts and analytical tools from the study of abundance dynamics and show that spread dynamics are, in fact, regulated processes and that the regulation structure is notably consistent among invasions occurring in widely different contexts. We base our conclusions on the analysis of the spread dynamics of 30 species invasions, including birds, amphibians, fish, invertebrates, plants, and a virus, all of which exhibited similar regulation structures. In contrast to current beliefs that species invasions are idiosyncratic phenomena, here we provide evidence that general patterns do indeed exist.

Wetlands: The Large/Small Handle Issue

Last month, in an interesting take on the large handle/small handle issue, the federal district court in the Southern District of Florida enjoined the Corps from issuing a CWA 404 permit based on inadequate NEPA compliance.  The Corps had analyzed only the effects of the filling of the 20+ acres of jurisdictional wetlands and not the cumulative and synergistic impacts of the development of the 1900+ acre biotechnology park proposed by Scripts Research Institute.  Florida Wildlife Federation v. Corps, 2005 WL 3418302 (S.D.FL 2005).

Judge Redden Refuses to Substantially Change Proposed Columbia River Hydro Operations During 2006

Today, Judge James Redden issued an opinion and order in NWF v. NMFS largely refusing to change the planned operations of the Columbia River hydro system with respect to spill and flow augmentation.  Judge Redden's opinion gave the federal government deference on every close issue. 12/30 Opinion on Injunctive Relief Pending Columbia River BiOp Remand

Ecological economics: sustaining optimal growth

Those interested in sustainable development may want to consider a paper recently published by Simone Valente of the Institute of Economic Research ETH Zurich, entitled "Sustainable Development: Renewable Resources and Technological Progress." Valente Paper  As should be obvious, growth in per capita consumption cannot be sustained for exhaustible natural resources (Pezzey and Withagen 1998).  Valente extends the model to include technical progress, resource renewability, extraction costs and population growth, with the result that optimal growth paths can only be maintained if the social discount rate does not exceed the sum of the rates of resource regeneration and augmentation. The development of resource-saving techniques is crucial for sustaining consumption per capita in the long run, whereas capital depreciation and extraction costs do not affect sustainability.

Regional Greenhouse Gas Initiative

Although Massachusetts and Rhode Island did not sign, last week seven Northeastern states signed a memorandum of understanding pledging to reduce greenhouse gas emissions.  Connecticut, Delaware, Maine, New Hampshire, New Jersey, New York, and Vermont have agreed to cut CO2 emissions by 2.5 % annually beginning in 2015, for a total reduction of 10% below 2009 projected levels by 2019. 

The states participating in the RGGI will issue allowances for each ton of CO2 emitted by power plants.  Each plant producing 25 MW or more must have enough allowances to cover its individual carbon dioxide emissions and meet a specific cap placed on total emissions.  Plants may sell their excess allowances to companies that need to offset higher emissions, buy allowances from the 25% of total allowances retained by the states, or use "offsets" from projects that reduce GHG emissions such as landfill methane gas recovery, reforestation, and methane capture efforts from farming or natural gas transmission facilities.

A safety valve allows states to extend compliance periods for plants if the cost of CO2 allowances reaches $10 and allows plants to use offsets in lieu of allowances for up to 20% of their emissions. 

The 2009 projected emissions used to establish allowances are: New York: 64,310,805 short tons; New Jersey: 22,892,730 short tons; Connecticut: 10,695,036 short tons; New Hampshire: 8,620,460 short tons; Delaware: 7,559,787 short tons; Maine: 5,948,902 short tons; Vermont: 1,225,830 short tons.

RGGI MOU

Third Circuit Admits Defeat: US can recover oversight costs

In US v. DuPont, 2005 WL 3489474 (Dec. 22, 2005), the 3rd Circuit joined the rest of the country, holding CERCLA authorizes the United States to recover costs incurred in the course of supervising a hazardous waste cleanup conducted by responsible private parties.

Insured losses from Hurricanes Katrina, Rita, and Wilma estimated at almost $ 60 billion

Planet Ark reported today that Advisen Ltd. estimates worldwide insurance and reinsurance losses related to the three major hurricanes that hit the United States this year to be $57.6 billion, making the cumulative catastrophe losses the largest on record. Including unreported/unfiled losses,

Advisen projects pre-tax insured losses per hurricane to be $40.4 billion for Katrina, $6.4 billion for Rita, and $10.8 billion for Wilma. The losses amount to more than twice the annual total for other US natural disasters and one-and-a-half times the losses from the 2001 terrorist attacks in New York and Washington.  Several variables could prompt Advisen's estimates to increase dramatically, the company warned. Flood losses could elevate Advisen's estimates by billions of dollars if lawsuits to force insurers to cover flood damage related to Hurricane Katrina are successful. Also, hurricane-related pollution lawsuits could add hundreds of millions to Advisen's totals.

Disaster Planning

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John Bohannon notes in Science that the last year has been one of unprecedented natural disasters -- the 2004 "Christmas tsunami" in the Indian Ocean, Hurricane Katrina on the U.S. Gulf Coast, and the Pakistan earthquake, which left nearly 300,000 dead and millions homeless.

Natural disasters are anything but natural: societies can mitigate their impacts by making the right decisions about where and how people live, how information is shared, and what kind of research to invest in.

Some ideas include:

• Disaster mitigation consultant Aromar Revi's proposal for "a public database like Google Earth" that would allow researchers around the world to map the "risk landscape down to the ZIP-code level." Nations with shared risks could build better warning networks -- if they are willing to share data and the expense.

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  Economist Reinhard Mechler's proposal for nations to use the disaster insurance market to improve risk-sharing, rather than rely on international charity  -- which would require the same sort of detailed risk data.



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  the US National Science and Technology Council's call for enhanced interdisciplinary communication as well as social science research to aid emergency risk communication

    As he notes:

One thing is all but certain: Even worse years lie ahead. Vulnerable urban populations of the developing world are set to double by 2030, as are coastal populations everywhere. Meanwhile, changing climate threatens to bring more hurricanes due to warming and chronic coastal flooding due to rising sea levels, among other worrying possibilities.

Disaster Research and Planning Needs

Science's 2004 Prediction on Nanotechnology Regulation on Target

Last year Science predicted that nanotechnology regulation would be a hot topic in 2005.  Indeed, it has been.  See:

R. F. Service, "Calls Rise for More Research on Toxicology of Nanomaterials," Science 310, 1609 (2005)

R. F. Service, "EPA Ponders Voluntary Nanotechnology Regulations," Science 309, 36 (2005)

U.S. EPA National Center for Environmental Research Nanotechnology Home

ICON -- International Council on Nanotechnology

National Institute for Occupational Safety and Health:  Nanotechnology Topic Page

Nanotechnology Service of the European Commission

Project on Emerging Nanotechnologies

 

Scientific Breakthrough of the Year 2005: Climate change is a runner-up

As Science said:

The new science was much like that of the past decade, just more insistent and more ominous. In January, climate modelers announced even higher confidence in earlier assertions that the oceans--down to great depths--have warmed in recent decades just as models said they would. Each of two tropical cyclone studies found that over recent decades more and more storms around the world have grown to the most intense levels as rising greenhouse gases have warmed tropical waters. At higher latitudes, scientists announced, Arctic Ocean ice cover had hit another record low, this time with the added warning that the feedbacks expected to accelerate high-latitude warming--and presumably ice loss--seem to be taking hold. And all this climate change is having an effect. It's altering everything from bird migration patterns in Australia to microbial compositions in sea-floor muck.

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Scientific Breakthrough of the Year 2005: Evolution

No, Science isn't joking!  Science has named the progress in understanding how evolution actually works the breakthrough of the year 2005.  Evolution

Hurricane Katrina Lessons: Environmental Justice and Natural Hazards Policy

AEI-Brookings Joint Center has published an interesting piece by Matthew Adler on equity considerations in natural hazard policy.  Equity and Natural Hazards

Environmental conditionality built into US$ 5.26 billion environmental compensation awards for Gulf War

On December 8, 2005, the UN Security Council's Compensation Commission (UNCC) approved a new follow-up scheme to ensure proper remediation of environmental damage from the 1991 Gulf War.  The UNCC completed its review of 168 environnmental claims in June 2005, bringing the final awards of compensation for environmental damage to US $ 5.26 billion (of a claimed US $85 billion), the largest amount of compensation ever awarded in the history of international environmental law.see UNCC report and ASIL Summary.  To ensure implementation of the Commission’s detailed technical recommendations for environmental monitoring and remediation annexed to the awards, and in order to prevent the kind of misappropriation of UN-administered funds documented in October 2005 by the Volcker Commission Report (Report of the Independent Inquiry Committee into the United Nations Oil-for-Food Programme), the UNCC laid down a series of guidelines and safeguards, including half-yearly progress reports through ‘independent reviewers’, accompanied by auditing certificates and potentially subject to site inspections. UNCC decision. The four principal recipient countries (Iran, Jordan, Kuwait and Saudi Arabia) agreed to the Commission’s withholding a 15% portion from all final disbursements until satisfactory completion of the environmental projects concerned – which is the first time ‘environmental conditionality’ has been built into an international claims procedure for state responsibility.  HT Peter H. Sand

19th Century Rules for the 21st Century: Are Growth and Development Outpacing Water Law

The 24th Annual Water Law Conference, entitled "19th Century Rules for the 21st Century: Are Growth and Development Outpacing   Water Law?" will be held on February 23-24, 2006  in San Diego.   ABA 24th Annual Water Law Conference

"The conference will focus on the Nation’s system of water laws in the face of an explosion of population growth and a real estate boom. Speakers will address   the central question of whether antiquated laws are flexible enough to provide policymakers with the tools needed to manage our water supplies in   the face of increasing demand and urbanization. Panels will contemplate how   institutions that manage water resources can successfully adapt to the   dynamic water world; how administrators can interpret historic water agreements with Indian tribes in the east and in the west; and how interested   parties should allocate water demands once federal projects are paid out.   Other speakers will debate the constitutionality of the Endangered Species Act and will discuss implications of the Clean Water Act on water supplies.   Practitioners also will hear from developers, environmentalists and regulators who routinely find adequacy of water supplies to be the key component to urbanization and development."  Highlights will include A keynote by Arizona Governor Janet Napolitano (invited) discussing her initiatives to provide water supply reliability in the face of tremendous population growth. A closing address by Assistant Secretary of the Interior for Water Mark Limbaugh        discussing the "View from Washington" on the relationship between water resources and growth. Opening panel discussing "Who Owns the Water" that has been developed by the United States under the Reclamation Act, used by irrigators, regulated by States, claimed by Tribes and is now coveted by developers across the urbanizing West. A conversation on what is an adequate water supply, both from a legal and practical perspective, and whether looking to assure an adequate water supply is really the best way to provide water necessary to meet the needs of a growing population. Moot court debating the question of whether the federal Endangered Species Act is, in fact, constitutional under the Supreme Court’s recent Commerce Clause jurisprudence. Discussion of the complicated ethical questions associated with multi-party negotiations and mediations in the context of new development and water resources. Three distinguished practitioners discussing the similarities (and differences) of interstate adjudications and conflicts among the United States, Tribes and States taking place based on riparian water rights versus appropriative water rights. Update on the latest developments on TMDLs and a discussion of using water quality to regulate growth and development.

Species meet a bumpy and precipitous end -- the extinction vortex

 

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A quantitative study by Fagan and Holmes to be published in the January 2006 volume of Ecology Letters indicates that vertebrate populations approaching extinction have increased rates of decline and increased year-to-year variability. This lends empirical support to the “extinction vortex” that has been previously theorized.  Abstract

Loss of predator diversity accelerates trophic cascades

A study to be published in the January 2006 volume of Ecology Letters by Byrnes, et al. indicates that declining diversity of predators accelerates changes in community structure:

Although human-mediated extinctions disproportionately affect higher trophic levels, the ecosystem consequences of declining diversity are best known for plants and herbivores. We combined field surveys and experimental manipulations to examine the consequences of changing predator diversity for trophic cascades in kelp forests. In field surveys we found that predator diversity was negatively correlated with herbivore abundance and positively correlated with kelp abundance. To assess whether this relationship was causal, we manipulated predator richness in kelp mesocosms, and found that decreasing predator richness increased herbivore grazing, leading to a decrease in the biomass of the giant kelp Macrocystis. The presence of different predators caused different herbivores to alter their behaviour by reducing grazing, such that total grazing was lowest at highest predator diversity. Our results suggest that declining predator diversity can have cascading effects on community structure by reducing the abundance of key habitat-providing species.  Abstract

 

Regional Greenhouse Gas Initiative

The Regional Greenhouse Gas Initiative (RGGI) is in danger of failing -- with Massachusetts, Rhode Island, and Connecticut failing to reach a final agreement on how the program would work. One issue is the level at which carbon credits would be capped, aka the safety valve. Business groups including the New England Council and the American Council for Capital Formation claim that if RGGI is ever enacted it would dramatically boost electricity costs -- and plants in RGGI states would be tempted to relocate to other states that would not have carbon dioxide limits. NY Governor Pataki predicts RGGI would only lead to a modest increase and would save customers money down the road as power plants get more efficient.

Sprawl

Tune into the discussion on sprawl sponsored by the Property Law Prof Blog: sprawl

Hurricane Katrina Recovery

The topic of the AMS environmental science seminar this week is Disaster Recovery: A Post Disaster Reaction or Anticipatory Activity.  Download announcement (pdf)

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