Environmental Law Prof Blog

World Seeks Major Changes in International and National Economic Systems

The G-20 group of industrialized and developing country leaders meets April 2 to address the global economic crisis.  One thing is clear, we're ready for some change! 

Major reform of the international economic system is needed in order to solve the current economic crisis, according to a new global poll of over 29,000 people in 24 countries carried out by GlobalScan / PIPA at the University of Maryland.  70% believe major changes are required to the way the global economy is run. 4 per cent think no significant changes are needed.  Majorities in most countries - on average 68 per cent - also see the need for major changes to their own country’s economy.  Fifteen of the 24 countries are part of the G20.  Among G20 countries, 65% believe major changes are required to the international economic system, while 62% believe major changes are needed in their nation's economic system.  World Public Opinion For a country by country breakdown of the results, see the following graphic:
Breakdown of World Opinion as to the Need for Major Changes in the Economic System

The question of course is what sort of change.  I received two new publications from GDAE’s Globalization and Sustainable Development Program highlighting changes in both the trade and financial system advocated by Kevin Gallagher of the Global Development and Environment Institute at Tufts.  I have found their analyses to be very interesting:

“Global Crisis in Need of Global Solutions”
by Kevin P. Gallagher, in Latin American Trade Network LATN Nexos 7, March 2009.
In this short essay for a special issue from the Latin American Trade Network on the challenges facing the upcoming G-20 meetings, Kevin P. Gallagher highlights the urgent need for a global response to the economic crisis that recognizes that expansionary government stimulus policies cannot be just for the wealthy countries. He points out that the IMF in its emergency assistance plans for developing countries is still imposing harsh conditionalities that limit rather than expand government spending.  If the IMF is to receive significantly higher lending authority, it should be forced to abandon its draconian austerity policies, which are more inappropriate than ever in the current crisis.Link to IMF Essay

“Trading our way out of the financial crisis: The need for WTO reform”
By Kevin P. Gallagher and Timothy A. Wise
in Rebuilding Global Trade: Toward a Fairer, More Sustainable Future, International Centre for Trade and Sustainable Development (ICTSD) and the Global Economic Governance Programme (GEG), University College, Oxford.
In the context of the deepening global crisis that is pushing millions more into poverty in developing countries, development should be the centerpiece of reforming the global financial architecture. Pressing to conclude a World Trade Organization (WTO) deal based on the current proposals in Geneva would be counterproductive. This essay offers five policies toward reforming global trade that will enable economic development and stimulate global demand during the crisis.Link to WTO Reform Essay

For more analyses like these check out GDAE's Globalization and Sustainable Development Program

World Water Forum Ministerial Declaration Refuses to Acknowledge Human Right to Water

With US encouragement, the Ministerial Declaration adopted at the World Water Forum declined to recognize a human right to water: Its time for US policy to change.

ENS reported today:

Twenty countries have officially challenged the Ministerial Declaration released Sunday at the close of the week-long World Water Forum because it defines water as a human need rather than as a human right.  Latin American states played a key role in gathering signatures on a counter-declaration that recognizes access to water and sanitation as a human right and commits to all necessary action for the progressive implementation of this right. Countries that signed the counter-declaration are: Bangladesh, Benin, Bolivia, Chad, Chile, Cuba, Ecuador, Ethiopia, Guatemala, Honduras, Morocco, Namibia, Niger, Panama, Paraguay, South Africa, Spain, Sri Lanka, Uruguay and Venezuela. Switzerland has declared its support although a formal signature is expected to take months to finalize.

The U.S. delegation, led by Daniel Reifsnyder, deputy assistant secretary of state for environment and sustainable development, took the position that "there is at present no internationally agreed right to water or human right to water, and there is no consensus on what such a right would encompass," according to State Department spokesman Andy Laine.  The Ministerial Declaration was not open to negotiation at the World Water Forum as negotiations on the statement were concluded at a preparatory meeting held in Paris on March 3 and 4.  Laine told ENS that during the preparatory process the United States did oppose language that would have recognized water as a human right. "The United States does not oppose any government adopting a national right to water or sanitation as part of its own domestic policy. We do, however, have concerns with a statement that would require all countries to adopt a national right to water or sanitation or would establish an international right to water or sanitation," Laine said.  "Establishing an international right to anything raises a number of complicated issues regarding the nature of that right, how that right would be enforced, and which parties would bear responsibility for ensuring these rights are met," said Laine. "To date, there have been no formal intergovernmental discussions on these issues. It would therefore be premature to agree to such a right."  Other governments supporting the principle of water as a human need, rather than are human right, are Brazil, Canada, Egypt and the European Union.

Nongovernmental organizations and the United Nations have mounted a campaign to lobby governments to recognize water as a human right  In Istanbul last Friday, Philipp Terhorst of Transnational Institute, speaking for the European Water Network, criticized the recent EU Parliament’s resolution that fails to recognize the human right to water.  The Washington, DC-based NGO Food and Water Watch asked its members to send emails to their Congressional representatives urging them to support water as a human right. Their appeal counters the State Department position, saying, "While it has been argued that there is no international consensus on the existence of a right to water and sanitation, such rights have been enshrined in two ministerial-level declarations of the United Nations."

Maude Barlow, a Canadian national who serves as senior advisor on water to UN General Assembly President Miguel D’Escoto, delivered a statement from him in Istanbul. D’Escoto was clear, “Water is a public trust, a common heritage of people and nature, and a fundamental human right. ... We must challenge the notion that water is a commodity to be bought and sold on the open market. Those who are committed to the privatization of water ... are denying people a human right as basic as the air we breathe.”  "We must work quickly to guarantee that access to drinking water constitutes a fundamental right of all peoples," said D'Escoto. 

The UN president also questioned the legitimacy of the forum itself. His speech stated, "The forum's orientation is profoundly influenced by private water companies. This is evident by the fact that both the president of the World Water Council and the alternate president are deeply involved with provision of private, for-profit, water services."  He added that future forums should, "conduct their deliberations under the auspices of the United Nations."  The Forum is staged by the World Water Council, a French-based organization whose funding comes in part from the water industry.

Barlow, who is also the national chairperson of the Council of Canadians, delivered the president's message to the People's Water Forum, a counter-forum held by hundreds of civil society members from nearly 70 countries whose voices have not been at the formal World Water Forum. The speech was later released to the World Water Forum, which was attended by 25,000 delegates from 150 countries.  "This is a victory for all our groups who have been working for over 15 years for water to be recognized as a human right," said Barlow.

Pope Benedict XVI last July called for recognition of the right to water. In his message to the international exposition on Water and Sustainable Development Spain, the pontiff said, "The use of water, which is regarded as a universal and inalienable right, is related to the growing and urgent needs of people who live in destitution, taking into account the fact that limited access to potable water has repercussions on the well being of an enormous number of people and is often the cause of illnesses, sufferings, conflicts, poverty and even death."

Clinton urged by prominent women to place priority on safe drinking water and sanitation

Water advocates sent a letter today to Secretary of State Clinton asking her to prioritize the provision of safe drinking water and sanitation, arguing that women bear a disproportionate share of the burden.  WATER ADVOCATES, a Washington, D.C. group formed to raise awareness of the water issue among policymakers in Washington D.C., issued the press release that follows.

Water Advocates

1506 21st Street NW, Suite 200, Washington DC 20036 | Telephone 202 293 4003 | Fax 202 293 4001 | www.wateradvocates.org

For Immediate Release
Press Contact: John Sauer, Water Advocates
(202) 293-4003

Dear Secretary Clinton: “Women of the World Need Safe Water”

Washington, DC—March 25—In an unprecedented letter of concern to Secretary of State Hillary Clinton, prominent women have urged enhanced U.S. leadership to reduce the burden on women from inadequate drinking water and sanitation in developing countries. The Secretary of State received the letter between International Women’s Day (March 8) and World Water Day (March 22) to emphasize this critical linkage.

It is the first time that women in America have come together from such diverse fields - non-governmental, corporate, philanthropic, environmental and entertainment – to advocate the global importance of safe water and sanitation from a women’s perspective.

In their letter, the women leaders urged Secretary Clinton to take five actions that would make this issue a higher priority in U.S. foreign policy:
• appoint high-level advocates for water in the U.S. State Department and USAID
• commit U.S. leadership on the world stage
• significantly increase funding
• complete the Senator Paul Simon Water for the Poor Act Strategy
• hire qualified field staff

The prominent women leaders characterized the global lack of water and sanitation as an urgent, but solvable, development challenge. Nearly one billion people do not have access to safe drinking water and 2.5 billion people do not have a safe place to dispose their excreta or a place to wash their hands. Women and their children bear the most severe burden from this crisis.

“If safe drinking water were accessible,” says the letter, “women would not waste 40 billion hours annually fetching water from distant and contaminated sources. Only with safe water will women and their families have a chance to live without debilitating water-borne diseases (such as cholera, typhoid, and amoebic dysentery). Only then will they free their time to engage in income-generating activities, education, and caring for their families.”

Sanitation, a typically ignored women’s issue, is central to the women’s message. The letter points out that “latrines enhance girls’ attendance at school (especially once at the age of menstruation). They would provide dignity to the one billion women who otherwise defecate in the open, and reduce direct exposure to disease-causing pathogens.”

Proven techniques and technologies are readily available to provide access to safe drinking water and sanitation. Experienced developmental organizations stand ready to increase their work with the U.S. government around the world. The letter also calls upon Secretary Clinton to encourage public-private partnerships to solve this global crisis and improve the condition of women and children worldwide.

“It is often forgotten how important water is to women’s lives,” emphasized Andra Tamburro of the non-profit organization, Water Advocates. “Access to safe drinking water and sanitation is an essential step to empowering women.”

The signers include the following:

Harriet Babbitt
Vice Chair of the Global Water Challenge; Former Deputy Administrator, USAID

Kathy Baczko

Carol Bellamy
President & CEO, World Learning

Frances Beinecke
President, NRDC

Katryn Bowe
Water Advocates

Sally Cowal
Senior Vice President and Chief Liaison Officer, PSI

Patricia Dandonoli
CEO of WaterAid America

Monica D. Ellis
President & CEO, Global Environment & Technology Foundation

Helene Gayle
President & CEO of CARE

Molly F. Greene
Founder, Chief Philanthropy Officer
Water Missions International

Sherri Goodman
Former Deputy Undersecretary of Defense (Environmental Security)

Patricia Hall
President & Founder, H2O for Life

Ashley Judd

Nicole Lee
Executive Director, TransAfrica Forum, Inc.

Lee Lysne
Executive Director, Kind World Foundation

Tanvi Nagpal
Director, Water and Sanitation Initiatives, Global Water Challenge

Melanie Nakagawa
Attorney, International Program, NRDC

Michaela Oldfield
Water Advocates

Rachel Posner
Assistant Director, Global Water Futures Project

Kathleen Rogers
President, Earth Day Network

Jeannine B. Scott
Senior Vice President, Africare

Jane Seymour

Willa Shalit
Founder & CEO, Fair Winds Trading, Inc.

Mrs. Paul Simon

Andra Tamburro
Water Advocates

Christine Todd Whitman
President, The Whitman Strategy Group; Former Administrator, United States Environmental Protection Agency

Check out the Drink Water for Life site

Visit the Drink Water for Life Website

Just How Many Deaths Are Attributable to Lack of Clean Water and Sanitation?

I've been having a hard time pinning down how many people die each year from lack of clean drinking water and sanitation.  The figure I had used for the last three years was 2 million deaths annually.  I read a figure of 4 million in a recent Church World Service paper.  The WHO 2008 report Safe Water, Better Health gave figures that add up to nearly 3 million.  But today I encountered a figure of 8 million deaths  in Water and Wastewater News, a publication for water service professionals.  For now, I'm going with the WHO figures that are obviously low because of the conservative methodology they used, but that seems more realistic.  If anyone can help me sort this out, I'd appreciate it. 

Where has all our money gone?

Remember that old folk song Where Have All the Flowers Gone?  If you don't, go listen:it was a classic back in its day.

Well, I've got a new version:

Where has all our money gone,
Long time passing,
Where has all our money gone,
Long time ago,
Where has all our money gone,
Gone to the bankers, everyone
When will they ever learn?
When will they ever learn?

Obviously, the financial sector didn't do too bad while they foreclosed on houses through the Depression.  But life's been really good for the bankers since about 1995.  Even better than foreclosing on farms and homes during the Depression days.  But all good things must come to an end.
 

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Briefing on Proposed CO2 Endangerment Finding

In the first few weeks of my introductory Environmental Law and Policy course, I ask students to prepare a presidential briefing on a current issue.  If any of you have the same approach, you might want to take a look at this and provide it as a sample.

Of course, anyone who is interested in global warming should review it too.  Download Endangerment briefing

North Carolina v. TVA

A frequent reader brought this article in Toxic Law Reporter to my attention.  Trent Taylor's article discusses the implications of the district court ruling in North Carolina v. TVA and other recent public nuisance rulings.  Here's the opening paragraph: 

On January 13, 2009, in North Carolina ex rel.Cooper v. Tennessee Valley Authority,—-F. Supp.2d—-  Civil No. 1:06CV20, 2009 WL 77998 (W.D. N.C. Jan. 13, 2009) (hereafter ‘‘TVA decision’’), U.S. District Judge Lacy Thornburg of North Carolina declared that air emissions from three coal-fired plants located in eastern Tennessee and one plant located in Alabama, all operated by the Tennessee Valley Authority, are a public nuisance contributing to ‘‘significant hurt, inconvenience [and] damage’’ in North Carolina.  As a remedy, the court ordered that the TVA proceed with plans to install enhanced pollution controls in these plants and reduce emission of certain pollutants by specific time limits. The court estimated that complying with its orders would cost, at a minimum, approximately $1 billion. The court found against the TVA despite its compliance with all applicable federal and state regulations. Yet few noticed this important decision–it caused barely a ripple in mainstream legal circles. This may be because while public nuisance as recently as several years ago was seen as the ‘‘hot’’ tort, some legal commentators have since written it off as a serious legal doctrine due to a string of victories for defendants in the most high-profile public nuisance litigation to date–claims against the past manufacturers of lead paint and pigment. However, it would be a mistake for practitioners to ignore this decision. Though it may not singlehandedly rehabilitate public nuisance as a tort theory of consequence in the minds of the legal     literati, the TVA decision will have a number of far-reaching implications, especially when other recent decisions on public nuisance are taken into account. Indeed, it may herald in a new era of public nuisance suits against corporate defendants, [including those] seeking to redress environmental harms...

 Taylor article on North Carolina v TVA

NAS Summit on Climate Change - next week

This strikes me as a little late given the approaching Copenhagen deadline, but better late than never.

The Summit on America's Climate Choices, to be held March 30-31, 2009 in Washington, D.C., provides an opportunity for study participants to interact with major thought leaders and key constituencies to frame the questions and issues that the study will address.

Four panels of experts will release consensus reports in late 2009:

• Panel on Limiting the Magnitude of Future Climate Change
• Panel on Adapting to the Impacts of Climate Change
• Panel on Advancing the Science of Climate Change
• Panel on Informing Effective Decisions and Actions Related to Climate Change

The Committee on America's Climate Choices will issue a final report in 2010 that will integrate the findings and recommendations from the four panel reports and other sources to identify the most effective short-term actions and most promising long-term strategies, investments, and opportunities for responding to climate change

Here's the full agenda for the conference: Summit_agenda_3-23-09

Who's (or what's) on first

Above you'll find the Recovery.gov image of where the $819 billion stimulus money is going.  Below is the CBO's analysis, with graphics by the Washington Post.  Clicking on either image will pop-up a full-size image.

Oil Spill along Australia's Sunshine Coast

Reuter's reported tomorrow -- the joys of the international dateline -- that Queensland premier Anna Bligh declared Moreton Island, Bribie Island and southern parts of the Sunshine Coast to be disaster zones after an oil spill from a cargo ship spread over 60 kilometers of beach.  The cargo ship carries 100 tons of oil and the spill from the ship is far larger than initial reports indicated.  The cargo ship's hull was pierced by a container swept overboard in heavy seas caused by a cyclone near the area.  The clean-up of the spill will be difficult due to the heavy seas and high tides from the cyclone and the spill is being carried into rivers in the area.  The Queensland EPA reports that the spill has already affected seabirds and turtles.

By the standards of major oil spills, the Australian spill is unremarkable.  The Exxon Valdez spill involved nearly 11 million gallons or 5500 tons of crude oil.  But, like the Exxon Valdez, this spill occurred in an ecologically sensitive area and an area dependent in part on a large tourist industry.  When we weigh the small probabilities of large spills associated with various activities, such as offshore oil drilling, with the possible benefits of that activity, we need to carefully examine how close any spill might be to ecologically sensitive areas and areas dependent on tourism.  The lesson of the Exxon Valdez is that even the most expensive cleanups cannot fully recover many of the living resources that are destroyed by oil spills close to shore.

For those of you who were not alive or may have forgotten, the Exxon Valdez spill was one of the most destructive oil spills in history.  Here's an account of that spill that I recently wrote:

EXXON VALDEZ OIL SPILL

On March 24, 1989, the Exxon Valdez, an oil tanker owned by Exxon Corporation, went aground on Bligh Reef in Prince William Sound, Alaska.  The oil tanker had just departed the Valdez terminal with over 53 million gallons of crude oil, transported from Prudhoe Bay Oilfields through the Alaskan pipeline bound for Exxon’s West Coast refineries.  The vessel spilled 10.8 million gallons of crude oil into Prince William Sound, and the oil eventually covered 11,000 square miles of ocean and 1300 miles of shoreline.  The oil spill immediately killed between 250,000 to 500,000 seabirds, more than 1,000 sea otters, 300 harbor seals, 250 bald eagles, 22 orca whales, and billions of herring and salmon eggs. 

Today, twenty years after the spill, 26,000 gallons of oil remain contaminating roughly six kilometers of shoreline.  Of the thirty-one natural resources identified by the Natural Resources Trustee as affected by the spill, ten have recovered during the last 20 years, fourteen are still recovering, two have made no progress toward recovery (herring and pigeon guillemot), and five lack sufficient data to determine the extent of recovery. 

The Exxon Valdez oil spill is still considered the most environmentally damaging oil spill to date, even though it is no longer in the top 50 oil spills in terms of the size of the spill.  As the Exxon Valdez Oil Spill Trustee Council has indicated, “[t]he timing of the spill, the remote and spectacular location, the thousands of miles of rugged and wild shoreline, and the abundance of wildlife in the region combined to make it an environmental disaster well beyond the scope of other spills.”

The Accident

After a harbor pilot successfully navigated the Exxon Valdez through the Valdez Narrows, he returned control of the ship to Captain Joseph Hazelwood.  To avoid icebergs in the outbound shipping lane, Hazelwood maneuvered the ship into the inbound shipping lane.  Hazelwood then put the ship on autopilot and left a third mate in charge of the wheelhouse and an able seaman at the helm.  The crew failed to reenter the outbound shipping lane.  While Hazelwood was relaxing in his stateroom, the Exxon Valdez went aground on Bligh Reef, rupturing eight of her eleven cargo holds. 

Hazelwood, who Exxon knew was an alcohol abuser who had not completed treatment and had stopped attending Alcoholics Anonymous meetings, had drunk five double shots of vodka, amounting to 15 ounces of 80 proof alcohol, shortly before leaving Valdez.  In addition, neither of the crewmen Hazelwood placed in charge of the tanker had their mandatory rest period before beginning duty.  The National Transportation Safety Board’s investigation of the accident identified five factors that contributed to the grounding of the Exxon Valdez: the third mate failed to properly maneuver the vessel, possibly due to fatigue and an excessive workload; the captain failed to provide navigation watch, possibly due to impairment from alcohol; Exxon failed to supervise the captain and provide a rested and sufficient crew for the vessel; the U.S. Coast Guard failed to provide an effective vessel traffic system; and lack of effective pilot and escort services from the Valdez terminal through Prince William Sound.

Litigation

Five separate sets of lawsuits arose out of the Exxon Valdez Oil Spill. 

First, Exxon Shipping pled guilty to negligent discharge of pollutants under Clean Water Act (CWA) section 309 as well as criminal violations of the Refuse Act and the Migratory Bird Treaty Act (MBTA).  Exxon pled guilty to criminal violations of the MBTA. Exxon was fined $150 million, the largest fine ever imposed for an environmental crime. The court forgave $125 million of that fine in recognition of Exxon’s cooperation in cleaning up the spill and paying certain private claims. Of the remaining $25 million, $12 million went to the North American Wetlands Conservation Fund and $13 million went to the national Victims of Crime Fund.   As criminal restitution for the injuries caused to the fish, wildlife, and lands of the spill region, Exxon agreed to pay $100 million, evenly divided between the federal and state governments.

Second, the federal and state governments sue Exxon Shipping and Exxon under CWA section 311 and the Comprehensive Environmental Response Compensation and Liability Act section 107, to recover damages to natural resources for which the governments are trustees.  In settlement of those civil claims, Exxon agreed to pay $900 million with annual payments stretched over a 10-year period. The settlement also contained a $100 million reopener for funds to restore resources that suffered a substantial loss or decline as a result of the oil spill, the injuries to which could not have been known or anticipated by the trustees at the time of the settlement.  The United States demanded the full $100 million under the reopener provision in 2006.

Third, within two or three years of the accident, Exxon settled the claims of various fishermen and property owners for $ 303 million. 

Fourth, a class action involving tort claims against Exxon, Hazelwood, and others by commercial fishermen, Native Americans, and property owners resulted in a $ 5 billion jury verdict against Exxon.  That jury verdict was reduced by the 9th Circuit to $ 2.5 billion and the U.S. Supreme Court in Exxon Shipping Co. v. Baker vacated the 9th Circuit award, limiting punitive damages against Exxon to $ 507.5 million, the same amount of compensatory damages, in addition to the compensatory damages due to plaintiffs. 

Finally, Captain Hazelwood was prosecuted by the State of Alaska for operating a vessel while under the influence of alcohol and negligent discharge of oil.  Despite evidence that Hazelwood had consumed numerous alcoholic beverages before departing Valdez and still had alcohol in his blood many hours after the accident, an Alaskan jury found him not guilty of the operating under the influence charge. The jury did find him guilty of negligent discharge of oil.  Hazelwood was fined $50,000 and sentenced to 1,000 hours of community service in Alaska. 

Resulting Legislation

Frequently environmental legislation is the result of a dramatic event or environmental accident.  In the case of the Exxon Valdez oil spill, Congress reacted by enacting the Oil Pollution Act of 1990, which created a fund to finance oil spill cleanup when parties do not voluntarily clean up oil spills for which they are responsible, set up a broad liability scheme to provide a federal cause of action for cleanup and other damages arising out of oil spills, set standards for oil tankers and oil storage facilities to avoid future spills and improve spill response, and sought to improve emergency responses to oil spills through regional contingency planning. 

For more information about the environmental impacts of the spill and the clean-up that was undertaken under the auspices of the Exxon Valdez Oil Spill Trustee Council, visit the Council's website.   http://www.evostc.state.ak.us/

 

Let them sue!

They still don't get it.  AIG's CEO who was brought in after the government took over an 80% stake in AIG is continuing to pay bonuses and "retention pay" to people who have virtually destroyed the global economy -- almost single-handedly.  AIG will pay its executives, including the folks at Financial Products who created the mess that would have killed the world's largest insurance company, over $720 million dollars in bonuses and "retention pay."  Lawyers have concluded that the firm would risk a lawsuit if AIG reneged on the agreed upon retention payments of about $600 million, only $400 million of which was agreed upon before the government started bailing out AIG in September. 

AIG has agreed to eliminate bonuses to the top 7 executives and defer 1/2 of the bonuses to another 42 top executives with the other 1/2 to be paid based on performance.  Nonetheless 4,700 people in AIG's global insurance units are receiving $600 million in retention pay and $121 million in corporate bonuses will go to more than 6,400 people.  That means, on top of salaries, the 4700 people are getting an average of $127,000 worth of retention pay + those people and others are also getting $19,000 worth of bonuses.

All of that for these.....people on top of what I'm sure are handsome salaries to begin with.  Let's see.  I'm in the 95-99th percentile of taxpayers.  These four million taxpayers pay something in excess of 20% of all federal income taxes.  So, folks in my group will be paying each be paying just a small amount of bonus (about $ 40 each) to AIG employees who have probably cost each of us on the order of $100,000 - $ 250,000 this year.   I'd rather be able to sue them for the money than pay them a dime of bonus!

Continue reading

Climate Change from the Markey Committee

Chairman Edward J. Markey

Select Committee UPDATE

The Markey Memo

Monday, March 9, 2009

UPCOMING HEARINGS:

TUESDAY: “The Future of Coal Under Climate Legislation”

Chairman Ed Markey and the Subcommittee on Energy and Environment will hold a hearing titled, “The Future of Coal under Climate Legislation.” The hearing will address the future of coal under an economy-wide cap on global warming pollution, including the technologies and policies that may help reduce coal’s carbon footprint. Witnesses include: David Hawkins (NRDC), David Crane (NRG Energy Inc.), Ian Duncan, Ph.D., Frank Alix (Powerspan Corp.), Harold P. Quinn, Jr. (National Mining Association), Lindene Patton (Zurich Financial Services Group).

WHEN: 9:30 AM, Tuesday March 10^th, 2009

WHERE: 2322 Rayburn House Office Building

For more information, please visit the House Energy and Commerce website.

THURSDAY: “Consumer Protection Policies In Climate Legislation"

Chairman Markey and the Subcommittee on Energy and Environment will hold a hearing entitled, “Consumer Protection Policies in Climate Legislation.” Additional information will be available shortly.

WHEN: 10:00 AM, Thursday, March 12, 2009

WHERE: 2322 Rayburn House Office Building

For more information, please visit the House Energy and Commerce website.

RECENT HEARINGS – Highlight Video Now Online:

Smart Grid:

Smart grid and smart metering technologies are critical to America’s efforts to create jobs and save energy. The economic recovery package provided $11 billion for smart grid technology and development, and an additional $6 billion for renewable energy transmission construction. Business leaders from GE, IBM and Wal-Mart all testified before the Select Committee on the cost saving and efficiency benefits available through smart grid technology. Click here for testimony, photos and additional video.

Fighting Carbon Pollution in the Developing World:

As the United States looks toward the UN Climate Conference in Copenhagen, the Select Committee received testimony about efforts in China, India, Brazil and the developing world to reduce emissions. Click here for testimony, photos and additional video.

TIME is MONEY: Daylight SAVINGS Time Report

A Department of Energy report found that bi-partisan changes to the Daylight Saving Time (DST) program authored by Congressman Markey and Fred Upton (R-MI) saves American families nearly $500 million and 2.9 million barrels of oil. As part of the 2005 Energy Bill, Markey and Rep. Fred Upton amended the Uniform Time Act of 1996 to increase the portion of the year that is subject to DST, providing longer hours of daylight and helping consumers cut back on peak-hour electricity usage. For more information, please click here.

For more information, please visit the Select Committee on Energy Independence and Global Warming website: www.globalwarming.house.gov

Supreme Court Rejects Drug Manufacturer Claim that FDA Precludes More Stringent Label Warning

Wyeth v. Levine, No. 06-1249 (U.S. Mar. 4, 2009)  Findlaw Link

 

Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the "IV-push" method, whereby a drug is injected directly into a patient's vein, the drug entered Levine's artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine's injury would not have occurred if Phenergan's label included an adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as a professional musician. Declining to overturn the verdict, the trial court rejected Wyeth's argument that Levine's failure-to-warn claims were pre-empted by federal law because Phenergan's labeling had been approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed.

Held: Federal law does not pre-empt Levine's claim that Phenergan's label did not contain an adequate warning about the IV-push method of administration. Pp. 6-25.

     (a) The argument that Levine's state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug label only after the FDA approves a supplemental application, the agency's "changes being effected" (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration, and there is no evidence that the FDA would ultimately have rejected such a labeling change. Wyeth's cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenergan label would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. It is a central premise of the Food, Drug, and Cosmetic Act (FDCA) and the FDA's regulations that the manufacturer bears responsibility for the content of its label at all times. Pp. 11-16.

     (b) Wyeth's argument that requiring it to comply with a state-law duty to provide a stronger warning would interfere with Congress' purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency's power to pre-empt state law. The history of the FDCA shows that Congress did not intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that state-law failure-to-warn claims threaten the FDA's statutorily prescribed role. Although an agency regulation with the force of law can pre-empt conflicting state requirements, this case involves no such regulation but merely an agency's assertion that state law is an obstacle to achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, the weight this Court accords the agency's explanation of state law's impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134. Under this standard, the FDA's 2006 preamble does not merit deference: It is inherently suspect in light of the FDA's failure to offer interested parties notice or opportunity for comment on the pre-emption question; it is at odds with the available evidence of Congress' purposes; and it reverses the FDA's own longstanding position that state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861, is distinguished.  Pp. 17-25.

Columbia Basin Bulletin e-book on Columbia River salmon lititation

I'm not a big fan of paying for PDFs, but here's a resource that students of the Columbia River salmon litigation should be aware of. CBB link If you're not familiar with CBB, go take a look.  You can sign up for their free weekly newsletter and you can subscribe to their archives.

Salmon and Hydro

An Account of Litigation over Federal Columbia River Power System Biological Opinions for Salmon and Steelhead, 1991-2009

First Edition, February 2009

A NOAA Fisheries "biological opinion" is the federal government's primary guide for recovering13 species of Columbia River Basin salmon and steelhead listed under the Endangered Species Act . A "BiOp" must insure that these ESA-listed fish survive and thrive in the Columbia/Snake River Basin hydropower system . Yet, since the first salmon ESA-listings in 1991, these biological opinions have been the subject of continual litigation. It is in federal court where one sees most clearly the divisions and difficulties of Columbia Basin salmon recovery. This issue summary offers a historical account of this continual litigation since the first ESA listings and summarizes the major issues that have dominated Columbia Basin Salmon recovery since 1991.

Salmon and Hydro: An Account of Litigation over Federal Columbia River Power System Biological Opinions for Salmon and Steelhead, 1991-2009, a 77-page document in an easy-to-read Adobe PDF format, is available for digital download through our secure payment system. Price: $19.95

 

 

TABLE OF CONTENTS

For Excerpts Click These Links:

INTRODUCTION

 

I. 1991-1995: Three ESA Listings, Four Biological Opinions, Five Court Challenges

II. 1995-1998: Reasonable And Prudent Alternatives, Spread The Risk, Long-Term Configuration, Adaptive Management; River Governance; Regional Parties Stake Their Positions; A BiOp Finally Passes Legal Muster

 

III. 1998-1999: More ESA Listings; A Supplemental Steelhead BiOp Guiding River Operations; Independent Science Advisory Board Weighs In On Smolt Transportation; Appeals Court Upholds 1995 BiOp; Supplemental BiOps On New Listings, Snake Water

IV. 1999-2004: Not Just Hydro, But All The ‘Hs’; Recovery In 48 years?; Mitigation Must Be Certain To Occur; Another BiOp Bites The Dust; A Remand; Corps Rules On Snake River Dam Removal

V. 2004-2008: A New BiOp Says No Jeopardy From Hydro Operations; A New ‘Environmental Baseline’; Redden Says No Again; Discretionary Actions vs. Non-Discretionary (Dams’ Existence); Court Runs The River; Upper Snake River Gets Own BiOp

VI. 2008-2009: A ‘Collaborative’ BiOp; New Fish Funding Agreements, New BiOp Support; Montana Finally Likes The Reservoir Plan; Earthjustice Says New Approach Inadequate; Oregon Left As Only State Opposed To BiOp; Should Independent Scientists Evaluate BiOp?; Parties To Litigation Grows; Clean Water Act Now An Issue; A New Round Of Briefings

VII. Conclusion: Rushing To Redden’s Finish Line

Obama Directs Agencies to Consult with FWS and NMFS on Endangered Species

President Obama today told federal agencies to consult with the expert fish and wildlife agencies concerning whether a decision may affect threatened or endangered species.  The memorandum effectively suspends a December 2008 rule issued by the Bush administration, which waived requirements that agencies like the Army Corps of Engineers consult with experts at the Fish and Wildlife Service or the National Marine Fisheries Service when deciding whether projects like building dams affect threatened or endangered species.  Today’s decision did not throw out the Bush administration rule, which had prompted lawsuits from California and a number of environmental groups. Instead, Mr. Obama asked that the secretaries of commerce and the interior “review” the Bush regulation and determine whether new rules are needed.  “Until such a review is completed,” Mr. Obama wrote, “I request the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices” involving the Fish and Wildlife Services and the National Marine Fisheries Service. 

The text of the memorandum appears below:

THE WHITE HOUSE

Office of the Press Secretary
________________________________________________________________
For Immediate Release                  March 3, 2009

March 3, 2009

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: The Endangered Species Act

The Endangered Species Act (ESA), 16U.S.C. 1531 et seq., reflects one of the Nation's profound commitments. Pursuant to that Act, the Federal Government has long required a process of broad interagency consultation to ensure the application of scientific and technical expertise to decisions that may affect threatened or endangered species. Under that interagency process, executive departments and agencies (agencies) contemplating an action that may affect endangered or threatened species have long been required, except in certain limited circumstances, to consult with, and in some circumstances obtain the prior written concurrence of, the Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS)-- the expert agencies that have the primary responsibility to ensure that the ESA is implemented in accordance with the law.

On December16, 2008, the Departments of the Interior and Commerce issued a joint regulation that modified these longstanding requirements. See 73Fed. Reg. 76272. This new regulation expands the circumstances in which an agency may determine not to consult with, or obtain the written concurrence of, the FWS or NMFS prior to undertaking an action that may affect threatened or endangered species. But under the new regulation, agencies may continue the previous practice of consulting with, and obtaining the written concurrence of, the FWS and NMFS as a matter of discretion.

I hereby request the Secretaries of the Interior and Commerce to review the regulation issued on December16, 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA.

Until such review is completed, I request the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with statutory authorities.

The Secretary of the Interior is hereby authorized and directed to publish this memorandum in the Federal Register.

 

                  BARACK OBAMA

Times They are a Changing.... Way Faster Than We Thought

About 3 years ago, my blog began posting all climate change research I could find in hopes of convincing my peers and readers that climate change was real and needed to be placed at the top of our collective political/social agenda.  It was leading edge research, even though the message had been blaring at us for more than a decade. 

In the past year or two, the focus of my efforts has shifted a bit.  As American society seemed to appreciate the reality of climate change, I shifted to blogging about research on climate change impacts, the emissions reductions necessary to minimize those impacts, and the policy tools available to reduce emissions --  in hopes of highlighting the dramatic environmental impacts already occurring due to climate change and the danger that we are reaching climate tipping points.

What has become apparent is the potentially devastating inadequacy of global emission reduction goals currently being discussed in Congress and in international treaty discussions. We don't just need to reduce our 1990 emissions by 80% (the most radical goal that has been part of the political discussion), we don't just need to go carbon neutral (the most radical goal that individuals and institutions have set), we need to become carbon negative -- we need to reverse the impact of human activity on the global climate....and fast.

Let's be clear....we need to act immediately, we need to make dramatic changes, and we can ill afford to allow the smoke and mirrors of commentators in the pocket of the energy business to sidetrack the discussion.  What the industry claims is an adequate response, or the most we can afford, or the most supported by the current science, or the most that the technology can achieve now should be viewed with well-founded skepticism. 

Since 1970, industry has repeatedly claimed with respect to a wide variety of environmental problems that we didn't yet have the technology, that the costs outweighed the benefits, that we couldn't afford the price tag, that jobs were being lost, and other hogwash about environmental protection.  They did so with knowledge of technologies in their pocket, awareness they were inflating costs and minimizing benefits, attributing job losses caused by changing technology to the environment, and placing more emphasis on profits and  maintaining the size of their bonuses than on creating a sustainable society.

I make this claim as one who has always been reluctant to classify myself as an environmentalist because my experience with industry and government was broader and deeper than my involvement with any environmental group.  That remains the case even today.  But enough is enough! We have a true crisis.  We need great courage to deal with that crisis, particularly with the shape of the global economy left to us by our neoliberal friends. 

This article from ENS and the reports I have linked to below underscore the problem:

Climate Tipping Point Near Warn UN, World Bank  ENS link

Link to World  Bank report referenced in ENS story

Link to UNEP Annual Report referenced in ENS story

The planet is quickly approaching the tipping point for abrupt climate changes, perhaps within a few years, according to the UN Environmental Programme's newly released 2009 Year Book and a separate World Bank report now being presented throughout Latin America.

The UN agency warns that urgent action is needed to avoid catastrophic climate events such as major food and water shortages, shifts in weather patterns, and destabilization of "major ice sheets that could introduce unanticipated rates of sea level rise within the 21st century."

The report warns that climate changes are occurring much faster than anticipated by the latest Intergovernmental Panel on Climate Change report, issued in 2007.

While earlier estimates forecast up to half a meter (19.5 inches) risein sea level in the coming century, updated calculations suggest that the rise may be as high as two meters (78 inches). 

Melting ice sheets and glaciers in the northern and southern hemispheres will not only contribute to sea level rise, but will also leave many regions around the world without basic water resources for human consumption and industrial production.

In its new report[entitled "Low Carbon, High Growth: Latin American Responses to Climate Change,"] the World Bank focuses on four climate impacts of special concern: "the warming and eventual disabling of mountain ecosystems in the Andes; the bleaching of coral reefs leading to an anticipated total collapse of the coral biome in the Caribbean basin; the damage to vast stretches of wetlands and associated coastal systems in the Gulf of Mexico; and the risk of forest dieback in the Amazon basin."

Last week, World Bank climate experts presented devastating news to an audience in Lima, Peru - glaciers in the Andes mountain range may disappear within the next 20 years unless immediate action is taken to mitigate climate change.  In the past 35 years, Peruvian glaciers have shrunk by 22 percent, resulting in a 12 percent reduction in freshwater for the coastal area, the home of about 60 percent of the country's population. Bolivia and Ecuador, which depend on nearby glaciers for water, also are facing serious shortages....

The damage from hurricanes and tropical storms will increase, the WorldBank reports. Estimates suggest that losses from hurricane damage along the coasts of the Gulf of Mexico "could increase tenfold from 2020 to 2025.  In Central America and the Caribbean, losses will triple or quadruple, respectively, in the same period," said World Bank economist John Nash, who presented the report in El Salvador.

Continue reading

The New Subsistence Society

Sometimes its a good idea to stand back and contemplate the universe.  Today's early news that the Dow Jones Industrial Index took another header because of AIG's $60+ billion loss prompts me to do that. 

What is the vector of our society?  What will it look like after all the dust has settled?  It is not just the financial crisis that prompts me to contemplate this.  Although the phrase is over-used, we are in the midst of a perfect storm -- a global economy that creates and distributes goods and services through the internet, computerized machines and cheap labor virtual collapse of the financial system, the advent of peak oil, and the climate crisis.  How will all of these things cumulatively affect our future?

We've lived with the first problem for decades now -- what do people do as they  become less and less important to production of goods and services.  The science fiction of our times: what happens when people and their primary asset, labor, becomes virtually superfluous.  Certainly countries with high labor costs relative to Asia and South America already are beginning to experience the problem.  Computerized machines can plant, water, and harvest the fields; robots can make the cars and prefabricated housing; department stores, bank branches, car dealers, even retail grocery stores can be replaced by internet marketing; 100 law professors lecturing to law students and 1000 college professors lecturing to college students is more than enough -- creating the prospect of a British or continental education system, with those professors raised to unseemly heights and the remainder left to do the grunge work of tutors; even more radically, 100 K-12 teachers can teach a nation of students with computer graded exams, if we believe that convergent answers are the goal of education; priests and ministers can be replaced by TV showmen and megachurch performers. 

So what do the other 6.95 billion of us do?  Now, we consume.  Voraciously.  If we don't, then the basics can be provided by a very few and the rest of us become unwanted baggage.  A non-consumer is a drag on the system.  We depend on the velocity of money, excess consumption, and inefficiency to provide each of us with a job and to maintain the current economy.

And what happens when money moves at a crawl, when people stop consuming, when production becomes life-threatening to the planet, and when a key resource for production, oil, reaches the point of no return???  The answer is a new subsistence economy.  A new world where a few are need to produce, a few more can consume, and the remainder have no economic role and are left to subsist as best they can.

Admittedly, it will be subsistence at a higher level -- through the internet, computerization, and technology, each of us will have the capacity to do things for ourselves that are beyond the imagination of today's impoverished subsistence farmers.  But, relative to those who own all of the means of production, a few entertainers (be they basketball players, lecturers, moviestars, or mega-church leaders), and a few laborers (building the machines, computers, the information infrastructure and doing basic and applied research), we will all be poor.  Perhaps only relatively and perhaps only in material terms.  But poor, living at a subsistence level, consuming food from our own gardens, building our own houses, wearing clothes for function not fashion, educating our own children through the internet, capturing essential power through distributed energy, and buying very little of goods that are bound to be too expensive for most -- probably just computers.  It won't necessarily be bad.  Perhaps we can refocus on relationships, family, community, art, music, literature, and life, rather than define ourselves in terms of our job and our things.  Perhaps we can refocus on spirituality instead of materialism. Who knows?  Maybe the new society won't be such a bad thing after all -- at least if we insist that the few who have the privilege of production have a responsibility to share the wealth with the many.