Environmental Law Prof Blog

Conn. v. Amer. Electric Power Co. public nuisance case

John Bonine sent out an immediate e-mail to the ENVLAWPROF listserve, giving a succinct summary of the 2nd Circuit's opinion in the Connecticutt v. American Electric Power Co. public nuisance.  He's given me permission to share it with you:

An incredibly important case on global warming was decided by a US Court of Appeals today, Connecticut vs. American Electric Power Company.  I explain it in the following message.  At the end of this message is a link to the 139-page court decision.

The Court of Appeals for the Second Circuit (an important, almost-apex, regional court based in New York) ruled today that “public nuisance” law (part of tort, or damages law) can be used to sue power companies based upon injuries from global warming.  Eight states of the US, New York City, and three nonprofit (NGO) “land trusts” that seek to preserve environmentally sensitive land all sued power companies that own and operate fossil fuel (coal, etc.) power plants in 20 states of the US.

(1) The Court decided that this dispute about harm from global warming emissions presents legal issues that can be decided by a court, rather than merely political questions that are the area for legislatures or the President.

(2) One important issue was “standing to sue.”  The Court decided that because the NGOs own property interests that can be harmed by weather events as a result of global warming, they clearly have standing to sue.  (In addition, the states have standing to sue private power companies because the states can represent the interest of their citizens.)

(3) The Court decided that the standing of the NGO land trusts can be based on future injury because injuries are “already in process as a result of the ongoing emissions by  defendants that contribute to increasing temperatures.”

(4) The Court decided that it was proper to bring a damage lawsuit based on the common law of “public nuisance.”  This legal doctrine was imported from England, the Court pointed out.  A public  nuisance is “an unreasonable interference with a right common to the general public.”

(5) The Court decided that some entities that are “non-state” (private parties) have the right to file lawsuits against a public nuisance—not only state governments.   The Second Circuit had not previously decided this issue.  It cited cases taking the same position on the issue from the Seventh Circuit (in the Midwest of the US) and the Third Circuit (mid-Atlantic). 

(6) The Court decided that the NGO land trusts were among the entities that could file this particular public nuisance case.  The law requires that only private parties (including NGOs) who are specially injured—in a manner different from the general public—can file public nuisance cases.  Not every private person could bring a public nuisance case.  Not even every private landowner could do so.  But these particular land trusts can because they own ecologically sensitive land, which they have invited the public to visit and enjoy, and their charter, purpose, and mission is to preserve land for public enjoyment. 

(7) The Court decided that the passage of legislation by the US Congress did not eliminate the federal common law of public nuisance when it adopted the Clean Air Act.  This issue is crucial.  It is also an issue that could eventually bring an end to the importance of this case for greenhouse gas lawsuits.  The Court stated that the Clean Air Act has not yet displaced (eliminated) the federal common law of public nuisance for greenhouse gas emissions cases.  That is because the US Environmental Protection Agency has not (yet) ruled that greenhouse gases are a pollutant—and even if it does so, it has not yet even started the process of doing so for greenhouse gas emissions from stationary sources like power plants.  Also, Congress could act separately.

The case may go to the US Supreme Court and there is a chance that it could be reversed there.  Or it may not.  Also, the US Congress could (and almost certainly will) eliminate all such public nuisance lawsuits when it passes a comprehensive climate change law.  The industry will now be lobbying heavily, saying something like this to the Congress:  “Please regulate us (weakly, of course) so that the courts will stop doing so.” 

This is a classic situation where environmentalists win a big  environmental case based on an old, old legal concept and this gives them bargaining power in the legislative process.  This happened with cases against factories polluting the water without permits in the 1960s, a case against the Trans-Alaska oil pipeline in the early 1970s; a case against clearcutting in the National Forests in the mid 1970s.  In each of those three cases, the law that was involved was a statute that was around 100 years old.  The public nuisance cases cited by the Second Circuit are more than 100 years old today.  Now the bargaining will begin.

 But in the meantime it is a huge victory.

 The leading lawyer in this case—a “private public interest lawyer” in Massachusetts who comes to the Public Interest Environmental Law Conference every year and keeps in touch with all of us by e-mail (Matt Pawa), declared this a few minutes ago in an e-mail:

“Today, we celebrate a victory for mother Earth.  Global Warming polluters everywhere:  you are on notice that you are committing a tort and we will sue you.”

 John

 

PS  Below are some excerpts from the case.

“CONCLUSION

 “As we have explained, supra, the district court erred in dismissing the two complaints on the ground that they presented non-justiciable political questions. We now review our additionalholdings. The States have parens patriae and Article III standing, in their quasi-sovereign and proprietary capacities respectively, and New York City and the Trusts have Article III standing.

All parties have stated a claim under the federal common law of nuisance, which we find is grounded in the definition of “public nuisance” found in the Restatement (Second) of Torts § 821B. Federal statutes have not displaced Plaintiffs’ federal common law of nuisance claim.

The complaints against Defendant-Appellant TVA may not be dismissed on the grounds of the political question doctrine or the discretionary function exception. Finally, because we apply the federal common law of nuisance, we do not adjudicate Plaintiffs-Appellants’ alternative state law public nuisance claims.

 

With regard to air pollution, particularly greenhouse gases, this case occupies a niche similar to the one Milwaukee I occupied with respect to water pollution. With that in mind, the concluding words of Milwaukee I have an eerie resonance almost forty years later. To paraphrase:

“It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance” by greenhouse gases. Milwaukee I, 406 U.S. at 106.

The judgment of the district court is VACATED, and the cases are REMANDED for further proceedings.”

 

http://www.ca2.uscourts.gov/decisions/isysquery/e860fc4c-0056-4d5f-bc42-a4cff9260ac2/1/doc/05-5104-cv_opn..pdf

 

(If that doesn’t work. Go to http://www.ca2.uscourts.gov/opinions.htm  and click on “Today’s.”)

 

Here's something to aspire to:

Green Buildings: Is Your City in the Top Ten?

The U.S. Green Building Council ranked cities across the country with the most LEED certified green buildings. A total of 88 green buildings makes Chicago number one. Portland and Seattle follow with 73 and 63 green buildings respectively.

This list, however, is not comprised of just major cities. Grand Rapids, MI made the top ten with 44 LEED certified buildngs, surpassing both Los Angeles and Boston.

Following are the top 10 U.S. cities, ranked by LEED certified buildings:

1. Chicago--88.

2. Portland, Or.--73. 

3. Seattle--63.

4. Washington, D.C.--57.

5. Atlanta--53.

6. San Francisco--50.

7. New York City--46.

8. Grand Rapids, Mich.--44.

9. Los Angeles--40.

10. Boston--38.

For those of you interested in mercury issues:

MERCURY FREE PARTNERSHIP DEVELOPS DRAFT OF GROUNDBREAKING LEGISLATION TO KEEP AIR AND WATER CLEAN

Communities and Individuals Form Coalition Focused on Mercury Reduction within

Broad Environmental Policy

 

 September 9, 2009—The Mercury Free Partnership has developed a draft of legislation which would reduce 90% of harmful mercury emissions from coal-fired power plants, the largest emitter of mercury in the United States. This draft, called the Mercury Reduction Act of 2009, would target coal-fired plants which emit more than 100,000 pounds of mercury into the air each year. In fact, the EPA estimates that about 250 pounds of mercury are currently pumped out of U.S. coal-fired plants into the atmosphere every single day, contaminating our nation’s air and water supplies. Contamination not only poses a multitude of health risks to extremely vulnerable citizens, but it also significantly affects the economic interests of related industries. This is an important initiative because so much attention has been focused on global climate change; what has to be realized is that immediate mercury reduction alone would significantly enhance environmental and health benefits in our world. The purpose of this draft is to initiate dialogue with all concerned stakeholders in order to develop a finalized piece of legislation.

The Mercury Free Partnership believes that the new administration will be taking the necessary steps to curb various industrial emissions and ensure that citizens are protected from many harmful chemicals produced by the market. To make certain that mercury emissions are not swept under the rug in this crucial time period, the Mercury Free Partnership will focus on engaging Congress to work on delivering sensible mercury reduction legislation in the coming session. This can be done with new green technologies that will save lives, create jobs and build momentum for comprehensive environmental change.

The Proposed Legislative Principles of the Mercury Reduction Act of 2009

The key elements of the proposal are as follows:

• Phased reductions that are achievable by utilities versus one hard standard.
• 80% of capture inlet mercury by 2012 (a level that can be met with current technology).
• 90% of capture inlet mercury by 2015.
• Flexible monitoring systems.
• Excess emissions penalties of $50,000 for each pound of mercury emitted over the limit.

These points show how the Mercury Reduction Act will deal directly with the problem of mercury, and will do so in an immediate manner. According to Hazel N. Dukes, President of the NAACP New York State Conference, more focus is needed on particular legislation: “While we recognize the desire to also tackle the broader air issues, we fear that those issues will get bogged down in partisan wrangling, or most likely litigation, and we will end up with years more of pollution impacting our community.” The Mercury Reduction Act will serve as interim bridge to current legislation, providing one national standard for mercury reduction, while providing measureable, achievable reductions of mercury from coal-fired plants. Most importantly, the MRA provides a significant environmental benefit in an area not addressed by larger climate change legislation moving through Congress: mercury reduction.

Mercury emissions are a major health issue with serious financial impact, but technology exists today that can clean up to 90% of airborne mercury emissions from coal-fired plants.

There are many effective technologies to reduce mercury. One such technology is called Activated Carbon Injection (ACI). It has been found to reduce 90% of the mercury emissions from waste incinerators.  A small amount of activated carbon is injected into the plant ductwork where it captures the gaseous mercury and then is removed along with the plant’s fly ash in particulate collectors.  This highly effective environmental solution is very cost-effective, costing only about $1 per month per residential customer for 90% reductions according to a detailed 2004 study by the National Wildlife Federation, and significant cost reductions have been made since then.

Recent evaluations by the Government Accountability Office (GAO) have confirmed that the technology to reduce mercury emissions from coal-fired power plants by up to 90% percent exists. In testimony submitted to the Senate Subcommittee on Clean Air and Nuclear Safety, John B. Stephenson, Director of Natural Resources & Environment at the GAO, explains how sorbent injection systems have demonstrated the ability to reduce mercury emissions from coal-fired power plants anywhere from 80 to 90%.

How to Support the Mercury Free Partnership and the Mercury Reduction Act of 2009

The Mercury Free Partnership is looking to partner with a broad base of individuals and organizations, as no one organization or individual can tackle the daunting task of environmental/health protection alone. It has already received the support of a broad cross-section of environmental, community and science-based groups, including a majority of utilities in key coal-fired utility states. Indications of support have been shown from the EPA, the Obama administration, as well as a large number of congressional members from key regions of the U.S. The Mercury Free Partnership has the specialized and localized knowledge needed to fully inform state and national policymakers as they consider impending legislation.

The House Committee on Energy and Commerce, and more specifically the Subcommittee on Energy and the Environment, oversees such legislation. In addition to contacting the Mercury Free Partnership, you can contact the office of Rick Boucher (VA-9) directly at:

Congressman Rick Boucher

2187 Rayburn House Office Building
Washington, D.C. 20515
202-225-3861
202-225-0442(fax)

 For more information on this issue, please visit www.mercuryfreepartnership.org.

The Mercury Free Partnership is a group of organizations, non-profits, and green businesses that are dedicated to enacting sensible and comprehensive Mercury reduction legislation in the 2009 U.S. Congressional session.   Working collectively with all stakeholders, the utility industry, medical and advocacy groups and clean coal industries we believe we can achieve our goal of removing significant amounts of Mercury from the environment while maintaining essential energy and financial areas of our economy.

Contact: Jason Sabo, Mercury Free Partnership, 877-603-2337 or [email protected]

Jason Sabo

Mercury Free Partnership

Office: 310.310.2616

Fax: 310.496.1335

Mobile: 574.274.1801

[email protected]

1 million trees

I prefer reforestation in developing countries like Haiti where reforestation has great social justice impacts, but the bottom line is great: actually removing CO2 from the atmosphere:

BALTIMORE STUDENTS AND LAWYERS TEAM UP TO LAUNCH THE ABA’S ONE MILLION TREES PROJECT

CHICAGO, Sept 18, 2009 – The American Bar Association, in partnership with the Alliance for Community Trees (ACT) and the Parks & People Foundation, will kick off the ABA’s One Million Trees Project in a public ceremony Sept. 23 at Franklin Square Elementary/Middle School in West Baltimore.

 The ABA’s One Million Trees Project is a five-year national effort to plant one million trees across the United States.  Overseen by the local ACT affiliate Parks & People Foundation, the Franklin Square project will bring together volunteer ABA members along with students, teachers and community members to plant trees in the schoolyard and around the building as part of the campaign to beautify Baltimore’s neighborhoods.

 WHAT:             Participants will plant 10 to 15 trees at the Franklin Square schoolyard, surrounding streets and nearby park, as well as weed, mulch and install flowering beds.  The tree planting event will also serve as the launching point for NeighborWoods Month, a community service campaign to heighten awareness for trees in cities all around the nation

 WHO:               Lawyers, students, volunteers

 WHEN:             Sept. 23 from 9 a.m. to noon

 WHERE:           Franklin Square Elementary/Middle School

1400 W. Lexington Street

 For more information on the One Million Trees Project, please visit http://www.abanet.org/environ/projects/million_trees/home.shtml.

 

New CAFE-GHG Proposal

The Obama administration on Tuesday formally proposed joint CAFE-CAA fuel efficiency standards for cars and trucks that link fuel economy to reduced emissions from vehicles.  Manufacturers would need to increase fuel economy 5 percent per year from 2012 to 2016, with new cars and trucks averaging 35.5 miles per gallon by 2016.  Alternatively, manufacturers must meet a requirement that their vehicles on average emit no more than 250 grams of carbon dioxide per mile. With current technology, the measures are essentially equivalent.  Current CAFE standards require that cars average 27.5 miles per gallon and light trucks average 23.1 miles per gallon.  Download 2012-2016_CAFE_GHGN_PRM  EPA Administrator Lisa P. Jackson estimates the proposed regulations would save 1.8 billion gallons of oil between 2012 and 2016, and prevent greenhouse-gas equivalent to the output of 42 million cars.

According to the Washington Post, Washington Post story President Obama appeared at a General Motors plant in Lordstown, Ohio, claiming the proposal is a boon for both the environment and the automobile industry because "it will give our auto companies some long-overdue clarity, stability and predictability." The Alliance of Auto Manufacturers, the industry trade group, supported Obama's remarks, stating "This is really the road map for automakers to follow."  AAM estimated that the required changes would cost the auto industry $60 billion by 2016, but did not provide an estimate of price increase that consumers would experience..    

The proposal, if finalized in a timely manner -- i.e. before Copenhagen -- is a victory on one front of the battle to reduce U.S. greenhouse gas emissions.  The other front is the legislation to cap GHGs from stationary sources such as utility and industrial powerplants.  According to the Washington Post, Senate Majority Leader Harry M. Reid (D-Nev.) said yesterday that the Senate may not act on climate legislation until next year. The Obama administration, of course, could pressure Congress by proceeding to regulate GHGs under the existing Clean Air Act through calling for new State Implementation Plans, requiring New Source Review permits impose LAER and BACT for GHG, and imposing New Source Performance Standards for GHG.  However, the Administration is unlikely to play chicken with Congress absent proof that Congress is truly dragging its feet.

The Supreme Court in Massachusetts v. EPA almost 2 1/2 years ago determined that EPA has the power to regulate greenhouse gases from vehicles, prompting yesterday's action.

See the press release below:

CONTACT:

EPA: Cathy Milbourn

[email protected]

202-564-7849

202-564-4355

 

DOT: Rae Tyson

202-366-9550

 

FOR IMMEDIATE RELEASE

September 15, 2009

 

DOT Secretary Ray LaHood and EPA Administrator Lisa P. Jackson Propose National Program to Improve Fuel Economy and Reduce Greenhouse Gases

 

New Interagency Program to Address Climate Change and Energy Security

 

WASHINGTON – U.S. Department of Transportation (DOT) Secretary Ray LaHood and U.S. Environmental Protection Agency (EPA) Administrator Lisa P. Jackson today jointly proposed a rule establishing an historic national program that would improve vehicle fuel economy and reduce greenhouse gases.  Their proposal builds upon core principles President Obama announced with automakers, the United Auto Workers, leaders in the environmental community, governors and state officials in May, and would provide coordinated national vehicle fuel efficiency and emissions standards.  The proposed program would also conserve billions of barrels of oil, save consumers money at the pump, increase fuel economy, and reduce millions of tons of greenhouse gas emissions.

 

“American drivers will keep more money in their pockets, put less pollution into the air, and help reduce a dependence on oil that sends billions of dollars out of our economy every year,” said EPA Administrator Lisa P. Jackson.  “By bringing together a broad coalition of stakeholders – including an unprecedented partnership with American automakers – we have crafted a path forward that is win-win for our health, our environment, and our economy. Through that partnership, we’ve taken the historic step of proposing the nation’s first ever greenhouse gas emissions standards for vehicles, and moved substantially closer to an efficient, clean energy future.”

 

“The increases in fuel economy and the reductions in greenhouse gases we are proposing today would bring about a new era in automotive history,” Transportation Secretary Ray LaHood said. “These proposed standards would help consumers save money at the gas pump, help the environment, and decrease our dependence on oil – all while ensuring that consumers still have a full range of vehicle choices.”

 

Under the proposed program, which covers model years 2012 through 2016, automobile manufacturers would be able to build a single, light-duty national fleet that satisfies all federal requirements as well as the standards of California and other states. The proposed program includes miles per gallon requirements under NHTSA’s Corporate Average Fuel Economy Standards (CAFE) program and the first-ever national emissions standards under EPA’s greenhouse gas program. The collaboration of federal agencies for this proposal also allows for clearer rules for all automakers, instead of three standards (DOT, EPA, and a state standard).

 

Specifically, the program would:

 

·         Increase fuel economy by approximately five percent every year

·         Reduce greenhouse gas emissions by nearly 950 million metric tons

·         Save the average car buyer  more than $3,000 in fuel costs

·         Conserve 1.8 billion barrels of oil

 

Increase Fuel Economy and Reduce Carbon Dioxide Emissions:

The proposed national program would require model year 2016 vehicles to meet an estimated combined average emission level of 250 grams of carbon dioxide per mile. Under the proposed program, the overall light-duty vehicle fleet would reach 35.5 miles per gallon (mpg) in model year 2016, if all reductions were made through fuel economy improvements. If this occurs, Congress’ fuel economy goal of 35.0 mpg by 2020 will be met four years ahead of schedule. This would surpass the CAFE law passed by Congress in 2007, which required an average fuel economy of 35 mpg in 2020.

Reduce Greenhouse Gases:

Climate change poses a significant long-term threat to America’s environment. The vehicles subject to the proposed rules announced today are responsible for almost 60 percent of all U.S. transportation-related greenhouse gas emissions. These will be the nation’s first ever national greenhouse gas standards. The proposed standards would require model year 2016 vehicles to meet an estimated combined average emission level of 250 grams of carbon dioxide per mile under EPA’s greenhouse gas program. The combined EPA and NHTSA standards would reduce carbon dioxide emissions from the light-duty vehicle fleet by about 21 percent in 2030 over the level that would occur in the absence of any new greenhouse gas or fuel economy standards. The greenhouse gas emission reductions this program would bring about are equivalent to the emissions of 42 million cars.

 

Save Consumers Money:

NHTSA and EPA estimate that U.S. consumers who purchase their vehicle outright would save enough in lower fuel costs over the first three years to offset the increases in vehicle costs. Consumers would save more than $3,000 due to fuel savings over the lifetime of a model year 2016 vehicle. 

 

Conserve Oil and Increase Energy Security:

The light-duty vehicles subject to this proposed National Program account for about 40 percent of all U.S. oil consumption. The program will provide important energy security benefits by conserving 1.8 billion barrels of oil, which is twice the amount of oil (crude oil and products) imported in 2008 from the Persian Gulf countries, according to the Department of Energy’s Energy Information Administration Office. These standards also provide important energy security benefits as light-duty vehicles account for about 60 percent of transportation oil use.

 

Within the Auto Industry’s Reach:

EPA and NHTSA have worked closely to develop this coordinated joint proposal and have met with many stakeholders including automakers to insure the standards proposed today are both aggressive and achievable given the current financial state of the auto industry. 

 

NHTSA and EPA expect automobile manufacturers would meet these proposed standards by improving engine efficiency, transmissions and tires, as well as increasing the use of start-stop technology and improvements in air conditioning systems. EPA and NHTSA also anticipate that these standards would promote the more widespread use of advanced fuel-saving technologies like hybrid vehicles and clean diesel engines.

 

NHTSA and EPA are providing a 60-day comment period that begins with publication of the proposal in the Federal Register. The proposal and information about how to submit comments are at: http://www.epa.gov/otaq/climate/regulations.htm for EPA and http://www.nhtsa.dot.gov/portal/site/nhtsa/menuitem.43ac99aefa80569eea57529cdba046a0/

for NHTSA.

 

Draft Environmental Impact Statement:

NHTSA has prepared a Draft Environmental Impact Statement (EIS) for the proposed CAFE standards.  The Draft EIS compares the environmental impacts of the agency’s proposal and reasonable alternatives.  NHTSA is providing a 45-day comment period on the Draft EIS.  Information on the submission of comments is provided at the above NHTSA Web address.

     

Environmental Law Preference Rankings: a Prospective Student's Statistical Perspective

Here's an interesting new law ranking system authored by Josh Gellers, a 3rd year PhD student in Political Science at UC Irvine, who is applying to law school and interested in practicing environmental law. He devised a statistical ranking of all major environmental law programs.  Link to the ELPR: http://spreadsheets.google.com/pub?key=tXWyWMzdoyb7k-UKYdEBzQQ&output=html  Those who have been readers know my position on all of this nonsense: I continue to refuse to respond to USNWR's survey.  Cooperating with evil is evil.

In case you want to abuse Mr.Gellers or offer him admission, he is Assistant Director, Focused Research Group in International Environmental Cooperation and an Affiliate, Center for Research on International and Global Studies, at University of California, Irvine, 3151 Social Science Plaza A, Irvine, CA 92697, 

[email protected].

OK, OK, you want to know the bottom line.  Based on rankings allocating 30% to environmental resources, 60% to job prospects, and 10% to specialty, his list is rather unsurprising:

Top 5  Harvard, Berkeley, Yale, Stanford, NYU, 

6-10    Duke, Georgetown, UVa, Tulane, Michigan,

11-15    GW, Vermont, Columbia, UCLA,  Boston College,

16-20    Penn, Northwestern, L&C, Chicago, Minnesota,

21-25    Boston U, Texas, Vanderbilt, Notre Dame, Washington U

26-30    Cornell, Emory, Colorado, Indiana, Illinois-UC

31-35    USC, Pace, Florida, Arizona, Maryland,

35-39    Denver, Utah, FSU, Oregon

I like the list ending at 39 -- the rest of us can sleep at night, in the firm belief that we are associated with number 40.  Kudos to the tier 3 school - Vermont and the tier 4 school - PACE - that managed to raise themselves with their bootstraps to 12th and 32nd in this student's estimation.  Tulane also deserves some applause, making the top 10 when their USNW ranking is 45.

Interestingly enough, as a student, I made my choice from the first four law schools on the list - based on general reputation.  I suspect it really is at the margins that our Environmental Law Programs, however glorious, make a difference in student choices. 

The Changing Shape of the World Economy

Take a look at this chart available at Visualizing Economics  You can also click the image to see it in a pop-up window.  It shows China, India, Russia and Brazil with rapidly growing GDPs between now and 2050.

Climbing to Copenhagen -- rough going in September

Reuters reports that September U.N. summit seen key to climate deal

OSLO (Reuters) - A drive to agree a U.N. climate pact in Copenhagen in December risks failure unless world leaders revive bogged-down negotiations at a U.N. summit in New York on September 22....

Recriminations between rich and poor nations about how to share out curbs on greenhouse gas emissions, and scant aid from recession-hit rich nations, mean the world is far from a deal. A draft treaty is an unmanageable 200 pages long.

"Now the onus is on heads of government," Achim Steiner, head of the U.N. Environment Program, told the Reuters Global Climate and Alternative Energy Summit. He told Reuters that a one-day climate summit at U.N. headquarters on September 22 was a chance to show world leaders that "there is a high risk that a deal will not emerge from Copenhagen" unless they get more involved in spurring the negotiations.

And there is a lot to sort out in the next three months, according to participants in September 8-10 Reuters summit. Brazil's Environment Minister Carlos Minc told Reuters a plan by U.S. President Barack Obama -- struggling to secure healthcare reforms before turning to climate -- to cut U.S. greenhouse emissions back to 1990 levels by 2020 was unacceptably weak. "We don't accept that, it's very poor," he said, adding that the goal should be "closer to something beyond a 20 percent reduction." The U.S. 2020 goal is the weakest of any developed nation, but Obama promises a deep 80 percent cut by 2050.

The full text of the story is on Reuters.com - September UN Climate Summit Critical at:

Climbing to Copenhagen -- rough going in September

Reuters reports that September U.N. summit seen key to climate deal

OSLO (Reuters) - A drive to agree a U.N. climate pact in Copenhagen in December risks failure unless world leaders revive bogged-down negotiations at a U.N. summit in New York on September 22....

Recriminations between rich and poor nations about how to share out curbs on greenhouse gas emissions, and scant aid from recession-hit rich nations, mean the world is far from a deal. A draft treaty is an unmanageable 200 pages long.

"Now the onus is on heads of government," Achim Steiner, head of the U.N. Environment Program, told the Reuters Global Climate and Alternative Energy Summit. He told Reuters that a one-day climate summit at U.N. headquarters on September 22 was a chance to show world leaders that "there is a high risk that a deal will not emerge from Copenhagen" unless they get more involved in spurring the negotiations.

And there is a lot to sort out in the next three months, according to participants in September 8-10 Reuters summit. Brazil's Environment Minister Carlos Minc told Reuters a plan by U.S. President Barack Obama -- struggling to secure healthcare reforms before turning to climate -- to cut U.S. greenhouse emissions back to 1990 levels by 2020 was unacceptably weak. "We don't accept that, it's very poor," he said, adding that the goal should be "closer to something beyond a 20 percent reduction." The U.S. 2020 goal is the weakest of any developed nation, but Obama promises a deep 80 percent cut by 2050.

The full text of the story is on Reuters.com - September UN Climate Summit Critical:

BNA Green Tax Incentive Teleconference Tomorrow

Tax Incentives for the “Green” Industry

Date: Thursday, September 10, 2009
Time: 12:30 PM - 2:00 PM ET

Between Lamborghini developing a hybrid and the proliferation of “green” marketing, there can be no doubt that green is going mainstream.  Congress is trying their best to encourage the green vision by enacting (and expanding) tax incentives designed to use and develop renewable and sustainable resources.  Obtaining the benefit of the incentives depends on a number of items, including satisfying the statutory criteria and placing the property in service in a timely manner.  However, due to some recent changes by Congress, it is not dependent on the taxpayer having taxable income to offset.

What will be covered

This presentation focuses on identifying the available tax incentives and understanding how to take advantage of them.  Whether you have worked on “green” projects in the past or this is a new area for you, this webinar will present the issues that must be addressed, including the tax compliance requirements.

This 60-90 minute webinar will provide participants with a conceptual understanding and practical application of the following:

1. Overview of Available Tax Incentives
   1. Tax Credits
   2. Grants
   3. Depreciation
   4. Deductions
2. Eligibility of Taxpayers To Take Advantage of the Incentives
3. The Energy Production Tax Credit
4. The Energy Investment Tax Credit
5. Electing a Tax-Free Grants In Lieu of Tax Credits
6. Special Depreciation and Deductions

Education Objectives 

Participants will learn how to:

1. Identify the availability of “green” tax incentives for commercial projects
2. Recognize fundamental ideas and solutions available to plan for tax efficient usage or development of renewable energy products
3. Evaluate which tax incentive may be optimal in a situation

Register quickly and easily online to secure your space now. Or, please call 1-800-372-1033 option 6, then option 1, and refer to the date and title of the audioconference. Lines are open Monday through Friday from 8:30 a.m. to 7:00 p.m. ET, excluding most federal holidays.

Don't miss this opportunity to hear a lively, dynamic presentation. Not only are audioconferences an excellent way for you to stay current, with BNA you also get:

• Quality. Count on it. Nothing is canned.
• Objectivity. BNA Tax Management provides you with the best and most objective information.
• Affordability. BNA Tax Management audioconferences are inexpensive when compared to the cost of travel to attend conferences with leading experts and practitioners. Plus, you may use a speakerphone and invite as many of your colleagues as you want to listen in -- all for the price of a single registration. See pricing for more details.
• Convenience. No airlines. No travel. No time out of the office.

In addition, you'll receive:

• Personal attention. Once you've registered, send your e-mail questions in advance to [email protected] and they will be included in the program. You'll also have a chance to e-mail your questions during the audioconference.
• Conference materials. We’ll e-mail links to the materials that will accompany the audioconference one day in advance. If you do not receive this pre-conference e-mail, e-mail [email protected].

New Model of Decision-making Incorporates How People Change Their Minds in the Midst of Making a Decision

NATURE published a summary of research on changes of mind in decision-making on September 10th.  It summarized the research in this fashion (Nature link) :

How do we change our minds? Theoretical neuroscientists have developed plausible models for how the brain comes to a decision based on 'noisy' and often ambiguous information, but these assume that once that decision is made, it is made for good. Now a series of experiments on subjects who were asked to move a handle to one of two positions dependent on a noisy visual stimulus has been used to develop a new model that accounts for how and when we change our mind after we make a decision. Analysis of the rare occasions where subjects changed their mind half way through selecting their answer shows that even after making a decision the brain continues to process the information it had gathered — information still in the processing pipeline— to either reverse or reaffirm its initial decision. The new theory introduces the acts of vacillation and self correction into the decision-making process.

The cites for the research follow:

Authors: Abstractions

doi:10.1038/7261144b

Full Text | PDF (710K)

Letter: Changes of mind in decision-making

Arbora Resulaj, Roozbeh Kiani, Daniel M. Wolpert & Michael N. Shadlen

doi:10.1038/nature08275

First paragraph | Full Text | PDF (438K) | Supplementary information

GAO Report on Wildfire Management

GAO on September 9th published a report "Wildland Fire Management: Federal Agencies Have Taken Important Steps Forward, but Additional, Strategic Action is Needed to Capitalize on Those Steps." GAO-09-877 . A summary, the GAO Highlights, is contained in this link. 

Light at the end of the recession tunnel

According to the Fed's Beige Book report, the economy appears to be stabilizing across much of the country, with a pickup in factory activity and improvement in residential real estate.  Manufacturers are "cautiously optimistic," with several districts reporting gains in new orders.   In addition, "[m]ost regions reported some improvement in residential real estate.". This is the first optimistic report from the Fed concerning housing since the housing market collapsed in Fall 2008, causing homeowners to lose more than $5 trillion in wealth.  The improved conditions are consistent with the economists' expectations, as reported by MarketWatch Fed says economy stabilizing, that economists expect growth to recover to a 3.0% growth rate in the current July-September quarter, following a full year of negative growth in the deepest and longest recession since World War II.  Another good sign is that demand for temporary workers is picking up, which is generally considered a harbinger of an increase in permanent hires.  Inflation is no threat: even given the huge federal stimulus spending, consumer prices remain steady.  And, my TIAA-CREF account is making money for the first time in a year!!!

Certainly some downsides remain.  Overall, consumer spending is flat and credit remains scarce with weak loan demand given tight credit standards.  And commercial real estate is still suffering, because there is still decreasing demand for office space and high vacancy rates continue to cause a decline in nonresidential construction activity.

But things are looking up.  However, listening to the news on CNN, you'd never know it.  The not-so-loyal opposition to Obama is trying to whip up more anti-Obama sentiment arguing that his economic policies have failed because Obama has not been able to fully reverse the recession during his first seven months in office.  Give the guy a break -- he never promised you a rose garden.  Compared to the black storm clouds we experienced during the fall, we're beginning to see the light at the end of the tunnel.

Are Speculators Driving Up Oil Prices?

The Economist published an article Data Diving discussing new data that allows closer analysis of whether speculators are responsible for driving up oil prices.  The short answer according to the speculators is probably not.  And, even if they were, in the Economist's opinion, the critical importance of liquidity overwhelms any effect on higher prices.

The regulatory question is whether the Commodity Futures Trading Commission should limit the positions that speculators such as banks, hedge funds, and others take on oil because of the harmful influence that speculators have on the market.

... whether speculation has really been responsible for spiking prices is a controversial issue. In 2008 the Commodity Futures Trading Commission (CFTC) issued a report dismissing the role of speculators in last year’s startling run-up in prices. But banks, hedge funds and others who bet on oil (without a use for the stuff itself) still face limits on the positions they can take, if Gary Gensler, the new CFTC head, can show that their influence in markets does harm.

New disaggregated data show more clearly the role of speculators in the market:

On September 4th the CFTC added more evidence to the debate by releasing what it said were more transparent data on market positions. Before this month, the CFTC simply classified traders as “commercial” or “non-commercial” in its weekly report on the overall long and short positions in the market. Now it has started to disaggregate them further, into producers and buyers, swap dealers and “managed money”. The third category includes hedge funds.

The new data indicate that speculators (swap dealers and managed money) were long on oil in the week to September 1st, with managed money holding a net long position by more than a 2-to-1 ratio. Those actually involved in the oil business (producers and users) held positions that were net short by similar ratios.  And the swap dealers and managed-money players are bigger in the market, both in terms of the contracts they hold and their own sheer numbers.

So, the speculators constitute the largest amount of the market and they take dramatically opposite positions in the market as compared with producers and users.  Still, the speculators' analysts discount the ability of speculators to affect the market.  I'm not market savvy enough to understand the speculators' analysis proffered by the Economist so would someone out there explain how this tells us that speculators are not influencing the market?

But analysts at Barclays Capital note that long swaps accounted for just 6.4% of total futures and options contracts, not enough to drive prices up on their own. Physical traders held more of the outstanding long positions (10.3%) and held even more short positions. This one set of numbers, in other words, does little to prove that speculators are overriding market fundamentals to drive prices. New quarterly data also released by the CFTC show that money flows to exchange-traded funds (ETFs) in commodities failed to correlate strongly with last year’s price surge.

Maybe some more numbers will help us sort this out (in favor of the speculators):

There are more disclosures to come. The CFTC says it will soon release the newly disaggregated data going back three years. If those numbers, like the quarterly ETF data, are equally unconvincing on the role of speculation, the case for limiting positions will be weakened.

And the Economists' speculator-friendly bottom line:

And a strong counter-argument remains: that speculators provide crucial liquidity. Even if they also have some effect on prices, taking them out of the game could well do more harm than good. It is tempting to look for scapegoats when high prices hurt consumers. But the real culprits for oil-price volatility may be much more familiar: supply, demand and global instability.

Making the World a Better Place

Here is New Scientist's list of the top 10 ways to make the world a better place.  The article itself contains more discussion, but you need to subscribe.

Comments anyone???

BLUEPRINT FOR A BETTER WORLD

We live in an imperfect world. Poverty, disease, lack of education, environmental destruction - the problems are all too obvious. Many people don't have clean water, let alone enough food, and the unsustainable lifestyle of the wealthy few is storing up catastrophic climate change.

Can we do anything about it? You bet we can. Technology is a double-edged sword, but science and reason have made our lives immeasurably better overall - and only through science and reason can we hope to make a real difference in the future. So here and over the next three weeks, New Scientist will explore diverse ideas for making the world a better place, and the evidence backing them.

This week, we look at some radical ideas for transforming society and changing the way countries are run. We also examine the state of the world as it is today, to see whether things are getting better or worse.

Next week, we'll report on what you as an individual can do to make a difference. Then we'll explore what many see as the fundamental problem: overpopulation. And finally, we'll ponder the profound and long-lasting changes we are making to our home planet.

1.  Beware of common sense

If governments are serious about achieving their aims, they must base their decisions on hard evidence and not received wisdom

2.  Legalise drugs

Far from protecting us and our children, the war on drugs is making the world a much more dangerous place

3.  Give police your DNA

The only fair, effective answer to the question of whose DNA profiles police should keep is: everybody's

BIG IDEAS

"The best way to make the world a better place is to make it not the only place for us. We should establish a self-supporting colony on Mars."
J. Richard Gott

Read more

BIG IDEAS

"I think that our best course of action is to spend at least as much effort adapting to global heating as in attempts to slow or stop it happening."
James Lovelock

Read more

4.  Redefine the bottom line

Governments need to find better ways of measuring progress than simply looking at wealth

5.  Find out if we can cool the planet

We need to do our homework rather than simply assume geoengineering can stave off disaster

6.  Tax carbon and give the money to the people

Goods should be taxed to reflect the damage they do to the planet, with revenues redistributed to society

7.  Learn to love genetic engineering

The technology environmentalists love to hate really could play a big role in saving the planet

BIG IDEAS

"One of the biggest problems we face today is a feeling of helplessness. It is desperately important for us to understand that each one of us does make a difference."
Jane Goodall

Read more

BIG IDEAS

"On a global scale, the best and most effective insurance policy for mankind would have to be legislative and economic protection of our surviving rainforests."
Richard Branson

Read more

8. End the pillaging of the high seas

We must put a stop to the free-for-all out on the oceans to have any chance of saving their riches from the ravages of climate change

9. Generate a feed-in frenzy

Paying people who generate green energy and feed it back to the grid is the best way to boost uptake of renewable energy

10. Take Friday off… forever

The four-day week could boost employment, save energy and make us happier

Sustainable Fisheries Law

I teach Sustainable Natural Resources Law in the spring.  Here's a new publication brought to my attention by Gerd Winter that looks like a great fit for introducing students to the fisheries area.  A slightly edited summary of the book courtesy of Gerd appears below:

Towards Sustainable Fisheries Law

As most of the fish resources in the world's oceans are constantly depleting, the development of effective and efficient instruments of fisheries management becomes crucial. Against this background, the IUCN
Environmental Law Programme proudly presents its latest publication in the IUCN Environmental Policy and Law Paper Series, edited by Gerd Winter, a member of the IUCN Commission on Environmental Law, which focuses on a legal approach towards sustainable and equitable management of fish resources.

This publication is a result of an interdisciplinary endeavour with worldwide participation studying multiple demands on coastal zones and viable solutions for resource use with emphasis on fisheries. The book consists of six case studies including Indonesia, Kenya, Namibia, Brazil, Mexico and the EU, which are preceded by an analysis of the international law requirements concerning fisheries management. The final part of the book summarizes the case studies and proposes a methodology for diagnosing problems in existing management systems and developing proposals for reform.

Towards Sustainable Fisheries Law thus helps the reader to learn more about the international legal regime for fisheries management that is currently in place, improves the understanding of the institutional and legal problems related to fisheries management that countries face at the national level, and provides guidance for sustainable use of fish resources through a "legal clinic" for fisheries management.

The book was published as IUCN Environmental Policy and Law Paper No. 74. Free copies can be ordered at the IUCN office or downloaded (2,05 MB) from the IUCN website at: Toward Sustainable Fisheries Law

World Council of Churches Statement on Eco-Justice and Ecological Debt

Many of us attempt to bring ethical perspectives to bear on issues raised by our classes in addition to ecological and economic perspectives.  Although it may be a bit late for those of you who have already started class, here is the most recent statement by the World Council of Churches on eco-justice and ecological debt.  In a related, but fascinating, note, the WCC as part of its current  programme work on poverty, wealth and ecology is attempting to articulate a consumption and greed line -- in addition to the more typical poverty line.  This would provide practical spiritual guidance on when, in Christian terms, too much is too much.  Check it out!!!

WCC Statement on eco-justice and ecological debt

02.09.09

The World Council of Churches (WCC) Central Committee adopted a "Statement on eco-justice and ecological debt" on Wednesday, 2 Sept. The statement proposes that Christians have a deep moral obligation to promote ecological justice by addressing our debts to peoples most affected by ecological destruction and to the earth itself. The statement addresses ecological debt and includes hard economic calculations as well as biblical, spiritual, cultural and social dimensions of indebtedness.

 The statement identifies the current unprecedented ecological crises as being created by humans, caused especially by the agro-industrial-economic complex and the culture of the North, characterized by the consumerist lifestyle and the view of development as commensurate with exploitation of the earth's so-called "natural resources". Churches are being called upon to oppose with their prophetic voices such labeling of the holy creation as mere "natural resources".

 The statement points out that it is a debt owed primarily by industrialized countries in the North to countries of the South on account of historical and current resource-plundering, environmental degradation and the dumping of greenhouse gases and toxic wastes.

In its call for action the statement urges WCC member churches to intervene with their governments to drastically reduce greenhouse gas emissions and to adopt a fair and binding deal at the UN climate conference in Copenhagen in December 2009, in order to bring the CO2 levels down to less than 350 parts per million (ppm).

 Additionally the statement calls upon the international community to ensure the transfer of financial resources to countries of the south to refrain from oil drilling in fragile environments. Further on, the statement demands the cancellation of the illegitimate financial debts of the southern countries, especially for the poorest nations as part of social and ecological compensation.

In a 31 August hearing on "ecological debt" during the WCC Central Committee meeting in Geneva, Dr Maria Sumire Conde from the Quechua community of Peru shared some ways that the global South has been victimized by greed und unfair use of its resources. In the case of Peru, Sumire said mining has had particularly devastating effects, such as relocation, illness, polluted water,and decreasing biodiversity.

 The concept of ecological debt has been shaped to measure the real cost that policies of expansion and globalization have had on developing nations, a debt that some say industrialized nations should repay. Dr Joan Martinez Alier, a professor at the Universidad Autònoma de Barcelona in Spain, said climate change, unequal trade, "bio-piracy", exports of toxic waste and other factors have added to the imbalance, which he called "a kind of war against people around the world, a kind of aggression."

 Martinez went on saying: "I know these are strong words, but this is true." He beseeched those present, at the very least not to increase the existing ecological debt any further.

 The WCC president from Latin America, Rev. Dr Ofelia Ortega of Cuba, said ecological debt was a spiritual issue, not just a moral one. "The Bible is an ecological treatise" from beginning to end, Ortega said. She described care for creation as an "axis" that runs through the word of God. "Our pastoral work in our churches must be radically ecological," she said.

 Full text of the statement

 More on the 31 August hearing on ecological debt

 WCC countdown to climate justice

WCC programme work on poverty, wealth and ecology

More information on the 26 August - 2 September 2009 Central Committee meeting

 

NWF Report Card on Sustainability in Higher Education

Its always interesting to see different perspectives on sustainability.  While the most recent Sierra Club list puts Willamette at 17th, the NWF last year conducted a more comprehensive study for its 2008 National Report Card on Sustainability in Higher Education.  Willamette was honored at that time to receive the nod as the top university as to sustainability.  NWF National Report Card on Sustainability in Higher Education   As with any ranking, methodologies differ and are subject to debate.  And rankings in this area are perhaps as controversial as US News and World Report -- but, I do find it refreshing to compete for an honor that really matters!!!

Climate Planning

My law school, Willamette, is in the process of creating its action plan for going climate neutral.  Although the University has not yet adopted an official target, I expect that it will strive for climate neutrality before 2015.  This, of course, will require substantial investments in energy efficiency as well as on-campus creation and use of green energy.  Naturally, however, 100% green energy is not an immediate option, thus Willamette will need to create or acquire real offsets for our carbon sins, i.e. reforestation/biosequestration, not just REDD or financing green energy investments.  Please share what your school is doing on the score.

Sierra Club's Cool Schools

Check out where your school ranks on the Sierra Club's list of Cool Schools.  Willamette made the top 20, but has lots of room for improvement.  Cool Schools