Environmental Law Prof Blog

Climate Change and Changing Fall Foliage - A Little Less Colorful in the Northeast?

 

I cannot imagine a northeastern U.S. without the vibrant fall colors of the maple-beech-
birch forest (image seen right). But recently the U.S. Forest Service issued projections demonstrating that the suitable habitat for maple, beech, and birch trees may shift almost entirely out of the northeastern U.S. under a higher carbon emissions scenario by the year 2100 (click on image at the top). The habitat shift would occur due to climate change-induced changes in precipitation patterns and, of course, temperature.

The fauna and other flora that go along with the maple-beech-birch forest ecosystem would also disappear from the northeast as the habitat shifts. But ecological effects are not all that are at stake when it comes to shifting forest habitats and climate change. The effects of the forest shift on tourism and aesthetic values in the northeast would be profound. Tourism based on fall foliage in New England attracts over 1 million tourists annually and generates $1 billion in revenue. Of course, the oak-hickory forest that would move into the northeast under a higher emissions scenario provides its own mix of beautiful colors and aesthetic values. But it just seems strange to consider that in only a few generations the northeasterners and tourists of the future may have to look at old coffee table books to know what New England forests once looked like in the fall.

- Blake Hudson 

In Case You Missed It - The Week of October 23 to 29

* After years of contamination left it dead, the Ocoee River (the white water rafting paradise) is brought back to life

* Questions and lawsuits abound over whether the Canadian company TransCanada can use the power of eminent domain to gain access to U.S. property owners' land for its oil pipeline. Also, how about this for coincidence? One of the property owners is Sue Kelso (sound a bit like Susette Kelo?)

* Check out this neat time-lapse video of the removal of the Condit Dam in Washington State.

* The Vietnamese Rhino is now extinct.

* The Pew Center on Global Climate Change has issued a report on how businesses are bringing low carbon solutions to the market.

* "Forest carbon markets grow, despite uncertainty"

Impressions from a Frac Site

An energy company generously allowed several students and me to watch a perforating and hydraulic fracturing operation at a vertical Woodford Shale gas well today.  (After drilling and casing a well, the company isolates and punches holes in (perforates) the portions of the well and casing that will be fractured.  This allows acid, water, chemicals, and proppant to move into the shale around the casing when pumped at high pressure down the well.)  Several things struck me.  First, I was surprised by the density of the operation.  The site was small, but the fracturing service company had managed to pack a menagerie of complicated industrial equipment onto a postage stamp of dirt and gravel in the midst of tree-lined agricultural fields.  The machine used to pump the fracturing fluid at high pressure down the well involves a maze of heavy pipes, valves, and gauges all packed together on what appears to be a mobile trailer bed.  But they don't really rest on the bed; the web of pipes themselves seem to form a compact, moving component.  It's like a huge pump station on wheels.  And that was just one piece of equipment.  A range of trailers, trucks, and other machinery, most of which seemed to have diesel engines, chugged away as employees first perforated very small portions of the well and casing (at a depth of more than 12,000 feet), reeled up and depressurized the perforating gun, pressure tested the well, applied an acid treatment, and then pumped various mixtures of water, chemicals, and sand down the well to fracture and prop open the fractures in the shale.  The engines around the site created a constant, low-level roar, although we could still hear the explanations of processes on site as they unfolded. 

Second, I was surprised by the number of computers.  I had known that employees monitored the operation on a variety of computer screens in a trailer, but I was interested to see the complex program used.  Charts of numbers ran like tickers on several screens, showing updated depths, pressures, and rates of acid, water/chemical, or proppant application, among other data, and several graphs ran simultaneously on other screens.  The chemicals all sat in big plastic tanks outside (each approximately the size of a large, squat refrigerator) surrounded by metal wire and connected to thick rubber hoses (Goodyear, for example) lined with a metal mesh.  They each had a prominent label attached.  The acid tanks--thick metal boxes that could hold at least two or three refrigerators, probably--sat on another side of the site.  They, too, were attached to big industrial hoses. There were small pools or piles of things at a few points on the site--a bit of sand or resin proppant here, a small, unidentified puddle of something else there.  As the perforating gun was being pulled up out of the wellbore, drops of liquid fell on us from the cable above the wellhead.  It was whitish;  I guessed that it may have been the salty water that comes up naturally out of the formation.  None of this, although it was really interesting, seemed too eventful.  I imagined how the situation could potentially get more eventful if things went wrong--if the well hadn't been cased correctly, for example, or if a chemical spilled out of the hose while being transferred from a truck to a tank.  As it was, though, I felt like I was in the middle of small yet complex and quite busy industrial operation that had suddenly sprung up in a rural area, and this operation also happened to be drilling, perforating, and fracturing things at 12,000-foot depths.   The 12,000-foot depth thing still gets me every time.  We have to drill that far down now to get to fuel?  Really?  A final surprise:  the mobile food truck--like one of those fancy things in hip urban downtowns (minus the blatantly artistic paint)--that rolled up to the site to serve meat, potatoes, hot tortilla soup, salad, and banana pudding.  (We were told that they don't eat like that every day, but some enterprising chef certainly has hatched a smart business plan for the middle of gas country.) 

-Hannah Wiseman

Call for Articles - Natural Resources & Environment

Interested in publishing a shorter article in a publication read by a large audience? The ABA Section of Environment, Energy, and Resources ("SEER") has just put out a call for articles in its quarterly publication, Natural Resources & Environment.

The theme of the issue is the "New Federalism" in environmental law. The deadline for article proposals is soon: Friday, November 4. Details are below.

CALL FOR ARTICLE PROPOSALS
NR&E Summer 2012 Notice

The ABA Section of Environment, Energy, and Resources’ magazine Natural Resources & Environment will devote its Summer 2012 issue to articles on New Federalism.

The editors of NR&E are looking for articles discussing a range of environmental, natural resource, and energy law and policy topics associated with the current tension between state and federal regulatory responsibility and with the growing Congressional assertiveness on environmental, natural resource and energy issues. Articles may address state, national, or international issues. Suggested topics include:

De-delegation MOAs Clean Air Act (climate change, ozone standard) Citizen suits Texas vs. EPA FERC and DOE entering into areas that used to be in purview of states Vermont Yankee relicensing case Congressional activism on environmental/ energy/ resource issues RGGI Environmental enforcement at the federal, state and local level

States leading climate change charge USACE, overriding state concerns State, RTO (regional transmission operator)/ISO EPA and Surface Mining Act Agency issues Congress v. Agencies Separation of powers Role of science Cross-jurisdictional consistency/standards

WE ARE CURRENTLY SOLICITING AUTHORS TO CONTRIBUTE
ARTICLES TO THIS ISSUE.

Please circulate this notice to members of your committee, asking any member interested in writing an article for this issue to submit a proposal describing the article’s specific topic, including why the topic is important, and how the article will relate to the theme of the issue. Authors should use the proposal form and include full contact information and indicate their professional employment, position, or affiliation. Proposal forms should be e-mailed to the Issue Editor (below). Authors may also e-mail their proposals in the body of an e-mail to the Issue Editor provided that they give all of the information requested on the proposal form. The editors seek articles covering a diverse range of topics written by a diverse range of authors.

ARTICLE PROPOSALS ARE DUE BY November 4, 2011.
Article selection will be made by mid-November. Article drafts are due by January 24, 2012.

Authors will work with an editor from the NR&E Board throughout the publication process and will be assigned a specific word count limit within the range of 2,500-5,000 words. Articles should be written in magazine style (no footnotes). NR&E article guidelines can be found on the ABA Web site at http://apps.americanbar.org/abastore/products/periodicals/5350100_writ.html.

PLEASE SEND ARTICLE PROPOSALS TO THE NR&E ISSUE EDITOR:
Jonathan Scoll at [email protected]

-Lincoln Davies

On the Education of Environmental Law Professors

Earlier today, the AALS issued a call for papers for a 2012 mid-year meeting focused on environmental law, torts, and disaster law.  Part of the call for papers addresses the burgeoning field of disaster law.  The other part addresses the relationships between junior and senior environmental law faculty.  Here’s the blurb:

Earlier this year, the envlawprofessors listserv carried an active and somewhat surprising discussion regarding the relationship between senior and junior teachers of environmental law. That discussion opened up a host of questions regarding generations within environmental law. How welcoming and supportive of junior professors is the environmental law field? Are junior professors being given adequate opportunities to receive feedback on their work? Do senior professors signal appropriate degrees of openness to new or challenging ideas? What can be done to overcome any perceived deficiencies in the mentoring practices of the field? Are enough entering law professors being encouraged to enter environmental law teaching? Does the legal academic tenure process pose special challenges for environmental law specialists?

It’s an intriguing set of questions.  But because I only have relatively uninteresting stories of people being supportive and nice, I won’t add much to the discussion. I wonder, however, if an even more important subject is the relationship between the environmental law academy and the wannabe professors preparing to enter the academy.  That, I suspect, is where deficient mentoring and educational practices can more readily be found.

A quick anecdote captures the problem.  For the first time in my short professorial career, I’m on a dissertation committee.  Last week the committee held its first meeting.  We spent most of the meeting discussing the candidate’s thesis proposal, but for the last few minutes we discussed her plans for her remaining coursework.  Should she a qualitative research methods class?  Would a law school course be helpful?  Had she taken enough stats courses?

As we talked, I found myself wondering two things.  First, how many aspiring environmental law professors have been the beneficiaries of this sort of discussion?  Probably very few, with the exception of the small set of JD/Ph.Ds out there.  We may have received a little informal advice during law school, or we may not have realized until close to or after graduation that perhaps we should tailor our course selection to a future academic career.  Either way, I suspect that very, very few of us ever had a group of professors sit around and spend several hours helping us plan our educational trajectory.

Second, how many aspiring law professors have taken the sort of advanced courses on research methodology (again, leaving aside the JD/PhDs) that are standard fare for Ph.D. candidates in other fields?  Of course, we’ve all taken legal research and writing and probably all did some sort of upper level writing project while in law school.  But legal research and writing courses usually focus on traditional legal research for traditional legal advocacy, and I wonder how much research education most schools provide to students doing upper level writing projects.  And many of the skills an environmental law researcher now might find useful—the ability to understand literature from other fields; the ability to gather useful quantitative and qualitative data, whether through coding traditional legal sources or through surveys, focus groups, or interviews; the statistical sophistication to do quantitative analyses; and perhaps even the ability to use GIS or other spatial analysis technologies, among others—aren’t taught in law school.  If we do have those skills, we probably developed them through self-education or just drew upon some prior period in our educational life. 

Of course, the absence of that educational background doesn’t prevent people from doing good work.  Indeed, an earlier generation of environmental law scholars did a lot of wonderful work without having any prior coursework in environmental law.  We can all learn as we go.  But I still wonder if the quality of our collective research output might be greatly improved, and if junior faculty might enter the profession with a clearer sense of their identity as researchers, if we had a little more education prior to entering the field.

So when and where should that additional education be provided?  One possibility is to encourage more aspiring professors to get Ph.Ds.  That would address some of the skills questions, but it seems rather exclusive to limit entry into the legal academy to people willing and able to spend so many years in graduate school, particularly as the costs of legal education continue to rise.  An LLM focused on environmental research would be another intriguing option.  But I wonder if the simplest alternative would be to integrate some research-focused coursework into fellowships and VAPs.  Perhaps I’m being naïve here (I didn’t do a VAP, so I may have an overly rosy view of what they accomplish), but it seems to me that unless the school is imposing a heavy teaching load, there ought to be enough time in the first year of a two-year VAP to do some coursework as well as teach and write.  And perhaps the benefits of that coursework would last for a career.

-Dave Owen

The Independence of Climate Change Scientists

Last week, the big climate change news was that a group of scientists who had previously expressed climate skepticism analyzed the data and found that they indeed show that global temperatures are rising.  While I was glad to see some skeptics having to eat their words, I was disheartened by the use of the term “independent” in the media’s reporting.  Many news outlets actually used the term to describe the climate skeptics, even though they were partly funded by the Koch brothers.  And by implication, to the average reader, all those other climate scientists aren’t independent.

Here are a few examples (emphasis added): 

Guardian headline and tagline:   “Global warming study finds no grounds for climate sceptics' concerns: Independent investigation of the key issues sceptics claim can skew global warming figures reports that they have no real effect”

CNN headline and first line: “New climate study deals blow to skeptics.  An independent study of global temperature records has reaffirmed previous conclusions by climate scientists that global warming is real.”

BBC headline:  “Global warming 'confirmed' by independent study”

(And it turns out that Fox News didn’t report the new study at all, according to mediamatters.com.)

On the other hand, my respect for news outlets that placed the modifier correctly grew.  For example:

Christian Science Monitor headline and tagline: “Climate study, funded in part by conservative group, confirms global warming: The latest global warming results confirm those from earlier, independent studies by scientists at NASA and elsewhere that came under fire from skeptics in an episode known as 'climategate.'”

- Lesley McAllister

Forests Worth More than a Gold Mine

I am partial to forests. I believe that of all the natural resources, forests provide the most environmental and economic "bang for the buck." Consider all of the following that forests do, and feel free to add items in the comments section as I am undoubtedly leaving out some important functions. Forests provide:

• a renewable source of building materials and associated jobs
• a renewable source of paper products and associated jobs
• clean air services (filtering and trapping air pollutants)
• clean water services by preventing nutrient and other chemical run-off from entering our waterways; ultimately protecting fisheries in areas like the Gulf (since eutrophication from nutrient runoff leads to "dead zones" where fish cannot survive).
• flood control services
• regulation of local ambient air temperatures in urban and rural areas during the summer
• energy cost savings for households and businesses
• a renewable source of fuel in the form of cellulosic ethanol (which unlike starch/corn-based ethanol has actually been shown to reduce greenhouse gases)
• a global climate regulator and major carbon sink/source of carbon sequestration (20 percent of all carbon emissions worldwide come from forest destruction and degradation - more than is emitted by the transportation sector each year)
• renewable and biodegradable plastics (we will, after all, run out of petroleum one day)
• aesthetic values (a park without a tree is, well, not a park)
• cultural values (think sequoias and redwoods)
• recreational values (hunting, hiking, and other activities)
• endangered and other animal species habitat

...and the list goes on. When considering the total value of all these services, it would seem that forests are indeed worth more than a gold mine, as was recently discussed by Jason Sohigian of the Armenia Tree Project, seen below.

- Blake Hudson

  

In Case You Missed It -- The Week of October 16 to 22

Climate change regulation is dead?  Not in California, which this week adopted the nation's first economy-wide cap-and-trade program.

The Tenth Circuit, in a 120-page decision, upheld a Clinton-era rule protecting 50 million acres of forestland from logging and roads.

The Council for an Energy-Efficient Economy released its first annual rankings of states; Massachusetts was first, with California second.

An advocacy study observed that FCC standards for cell phones "grossly underestimate[] the amount" of radiation that "smaller adults and children retain," as reported by Greenwire.

BP received approval for a plan to explore for oil in the Gulf of Mexico, its first such approval since the Deepwater Horizon disaster.

There is a fascinating article this week in The New Yorker about the aftermath of the Fukushima-Daiichi nuclear accident in Japan.  (hat tip: Joe Tomain)

EPA Plans to Regulate Wastewater From Shale and Coalbed Gas Wells

On Thursday, October 20, the EPA announced that it will "develop standards for wastewater discharges produced by natural gas extraction from underground coalbed and shale formations."  The hydraulic fracturing process (also sometimes called "fracing," "fracking," or "hydrofracking") for coalbed and shale wells can generate millions of gallons of wastewater, both in the form of the fracturing water that flows back up out of the well ("flowback") and produced water that flows naturally from the drilled formation.  The EPA's announcement follows its earlier efforts in Pennsylvania to determine where operators of hydraulically fractured wells in the Marcellus Shale were disposing of wastewater--particularly after Pennsylvania discouraged disposal through wastewater treatment plants.  The EPA is concerned that  because shale and coalbed gas operators may not discharge waste directly into streams, the wastewater treatment plants that sometimes receive the waste can't adequately handle it.  The agency hopes to issue a proposed rule for wastewater from coalbed methane wells by 2013 and wastewater from shale wells by 2014.  For a discussion of fracturing-based wastewater issues in Pennsylvania, see this earlier post. 

-Hannah Wiseman

The Polar Bear Wars

On Monday, Judge Emmett Sullivan, a federal district court judge for the District of Columbia, issued two decisions in the ongoing polar bear wars.  Those wars started in 2005, when several environmental groups petitioned the Fish and Wildlife Service to list the polar bear as a threatened species.  The groups then sued to compel action on the petition, ultimately leading to a “threatened” designation.  In subsequent cases, the environmental plaintiffs sued to compel the designation of critical habitat for the species (they won) and to challenge FWS’s decision to list the species as threatened rather than endangered (they lost, but so did other plaintiffs who challenged the decision to list the polar bear at all.

One of this week’s two decisions involved FWS’s so-called 4(d) rule, which established the extent to which ESA section 9 will protect the polar bear (the other, which this post won’t really discuss, upheld limitations on imports of polar bears hunted as trophies).  Section 9 prohibits “take” of species, but the ESA itself mandates those protections only for endangered species.  For threatened species, FWS and the National Marine Fisheries Service have the option of extending section 9 protections.  Under a long-established rule (codified at 50 CFR § 17.31), the agencies generally do so.  But the FWS treated the polar bear as a special case.  It extended section 9 coverage only to activities in polar bear habitat, and specifically excluded activities outside polar bear habitat even if those activities would adversely impact polar bears.  That was a significant exclusion.  The primary threat to the species is the loss of its sea ice habitat.  That ice is disappearing because of climate change, and climate change is occurring because of the greenhouse gas emissions from all over the world.   The 4(d) rule therefore excluded from section 9 coverage most of the activities threatening the bear.  Not surprisingly, the environmental groups, who sought the polar bear listing largely to engage the ESA in the fight against global warming, sued.

For the most part, the environmental groups lost.  FWS argued that because the greenhouse gas emissions of individual sources mix together in the atmosphere, with each potentially regulated activity contributing a small share of the overall problem, establishing that any particular activity had taken individual bears would be impossible.  The D.C. district court found that conclusion to be a reasonable exercise of the agency’s discretion.  The plaintiffs did still win a NEPA claim; the FWS had done no NEPA compliance for the rule, arguing that it was exempt from coverage, and the court disagreed.  It therefore remanded the rule pending compliance with NEPA.  But that appears to be a temporary setback for the administration, which an environmental assessment and finding of no significant impact or, at most, an EIS would likely fix.

Some thorny legal issues remain, however.  The take prohibition is just one of three ways that the ESA provides protection to listed species.  Under ESA section 7, federal agencies also are prohibited from taking actions likely to jeopardize those species continued existence or to destroy or adversely modify their critical habitat.  In an internal memorandum, the FWS has opined that these provisions are equally inapplicable to the greenhouse gas emissions that threaten the polar bear, but, as I’ve argued in more detail here, the latter claim is difficult to reconcile with statutory text.   Even if the changes attributable to individual federal projects are highly incremental, and even if the increments are impossible to quantify, we know perfectly well that each individual federal project that adds greenhouse gas emissions is contributing to the destruction of polar bear habitat.  It is modifying critical habitat, and the modification is adverse.

The whole dispute has placed the FWS (and the National Marine Fisheries Service, for many of the species under its jurisdiction are threatened by climate change) in a bind.  On the one hand, they can acknowledge that climate change is one of the largest, if not the largest, threats to listed species habitat, and can try to regulate the federal activities that generate emissions.  In the current political climate, the consequences aren’t hard to imagine.  The venom (see here; start at 4:20) currently directed at EPA would seem like polite parlor conversation.  Alternatively, the agencies could continue to assert that the ESA’s core regulatory provisions do nothing to address the single largest threat to many listed species, even when we know perfectly well that many potentially regulated activities are exacerbating that threat.  That position seems as absurd as the alternative seems impossible.

So what’s the answer?  In the coming years, the FWS and NMFS may try to come up with alternative approaches, or may just adhere to their current position that climate change is a severe threat for which the ESA provides hardly any answer.  Academics have begun to try, and surely will continue to do so.  Hopefully the agencies will find their way to an effective and workable approach.  But it is very difficult to imagine a scenario in which FWS and NMFS, acting alone, successfully turn the ESA into a meaningful source of GHG emissions regulation.  The statutory basis for such an effort isn’t hard to find, but the political leverage seems unattainable.

Perhaps two alternatives offer more promise.  One would be a joint climate change regulatory initiative cutting across the federal environmental agencies.  I haven’t thought through how exactly this would work (this is a blog post, after all), but it’s striking how many different statutes and programs climate change implicates.  NEPA, the Clean Water Act (because of ocean acidification, among other reasons), the ESA, and of course the Clean Air Act all contain provisions arguably triggered by climate change, yet all are implemented by agencies (or offices within agencies) that are understandably somewhat worried about addressing the problem on their own.  Perhaps there’s some way that the agencies or offices involved in administering those various statutes and programs could work together to develop standardized permitting thresholds or mitigation programs.  Of course, given current politics, such a multi-agency, high-profile effort would be a fat target, a sort of administrative Hindenburg awaiting the inevitable rhetorical spark.  But when some sanity returns, it might ameliorate some of the dysfunctions likely to arise from multiple independent efforts to address climate change under a disparate set of regulatory programs (or, more realistically, to avoid doing so).

The other possibility, which seems painfully obvious but still bears mentioning, is to replace or supplement the existing statutory structure by passing comprehensive climate change legislation.  As long as we don’t have it, we’re really just debating among potential second-best options. 

-Dave Owen

Extreme Events

I haven’t generally seen dust storms listed among the types of extreme events that are likely to grow more frequent and intense with climate change.  The usual list includes floods, hurricanes, heavy downpours, wildfires, heat waves, and droughts.  I think we can add dust storms.

Here’s some good home video of the one that hit Lubbock, Texas yesterday:

 

- Lesley McAllister

Building Skyscraper Forests

Grist.org has posted the above fascinating image in an article titled "The world’s first vertical forest is under construction in Milan."

Grist states:

"We've pretty much established that trees are awesome -- they make you smart, improve your home's value, filter pollution, provide shade, and produce oxygen. But even in a city that prioritizes green spaces, surface area is at a premium. How do you provide enough trees while still living densely? Milan, Italy, has a creative answer: a forest in the form of a skyscraper.

The Bosco Verticale takes the same attitude towards green space that highrises take towards living: You can fit more into a smaller footprint if you build up instead of out. It's an apartment building, but each apartment has a balcony with its own little mini-forest. These provide the pollution-filtering benefits of plant life and the energy-saving benefits of shade, but in a small area; Bosco Verticale's architects estimate that if the same amount of vegetation were laid out flat, it would require 10,000 square meters of woodland (plus another 50,000 meters of land for the living spaces). And kitting out the building with personal forests added only 5 percent to construction costs."

Day in and day out in my classes we talk about all the concerning aspects of environmental and natural resources law and policy. It is great to see these types of projects as signs of hope and the power human ingenuity. I hope to have one of these in my nearby downtown before too long - even if just to look at.

- Blake Hudson

In Case You Missed It - The Week of October 9 to October 15

While China's aggressive investment in electric cars will help the country's smog and oil export challenges, recent analysis suggests that it will do little to change its greenhouse gas picture due to the country's reliance on coal-based electricity.  (NY Times Dot-Earth Blog)

Earthjustice, the American Lung Association, the Natural Resources Defense Council, the Appalachian Mountain Club, and the Environmental Defense Fund sued the EPA for failing to implement a stricter ozone standard.  (NY Times)

Officials at Pelican Refining Company in Louisiana pleaded guilty to Clean Air Act violations and obstruction of justice charges, leading to $12 million on criminal penalties.  (EPA)

President Obama released the "America's Great Outdoors Progress Report," which describes steps toward a "21st-century conservation and recreation agenda."

Could "living" buildings inhale city carbon emissions? The idea is discussed here.

After local officials said that Tokyo was safe, testing by a citizens' group and nuclear research center revealed about twenty radioactive hotspots.  (NY Times)

Leaf Blowers: Another Tirade (and a Proposal for a Class Project)

As I walked to work this morning and faced the daily army of well-intentioned campus employees blowing leaves, dust, and small bits of trash into my face and into the sewers that run to the river (likely in violation of the city's stormwater BMPs for its MS4 permit), I thought for the thousandth time about how much I despise leaf blowers.  I also developed the opinion that leaf blowers perhaps represent all that is wrong in the world, at least from a pessimistic environmentalist's perspective.  Then I thought, "But lots of people write about leaf blowers and how much they hate them, so why bother with yet another tirade?"  Well, for one, it's personally satisfying to rant about these things.  But if I'd considered this sooner and included it in my syllabus, I would have directed my Environmental Law students to produce photo documentation of campus employees blowing grass into sewers, write a report exploring the problem and presenting potential regulatory fixes, and deliver this report to the city council and campus leadership. 

Here's how I would have presented leaf blowers to my students as a classic environmental problem that's difficult to fix:  First, leaf blowing involves good people trying to do "good" things (keeping yards neat, supporting neighborhood property values) while also creating negative externalities.  Second, as good people do "good" things, the trend catches on.  Loud, dust- and pollution-belching machines turn on all over the city at 9 AM on Saturday.  And as everyone does it, regulation becomes more difficult. 

If we look solely to the problem of debris blown into sewers (ignoring the criteria pollutant emissions, greenhouse gas emissions, and noise pollution from leaf blowers, for example), do we try to control every source--the millions of homeowners and business employees dragging out their lawn equipment every day?  And do we regulate or follow an alternative path?  We could try education.  As the City of Tulsa recently did, we could send residents pamphlets telling them to stop blowing things into the sewers--knowing that most homeowners likely will throw away the pamphlets before reading them. (We also could bring psychology into it and include a graphic photo of a dead fish and ugly algae on the pamphlet, thus showing the effects in a more understandable form and not just telling people to stop doing something.)   But what about delegation--the fact that many homeowners and business owners don't know that they are blowing things into the sewer because they have hired someone else to groom the yard? The employee likely never received the pamphlet, or if she did, she may not have read or understood it. Even if she did read and understand it, she'll likely ignore it.  It's exceedingly easy to blow grass clippings, leaves, and stray dirt into the sewer--much easier than bagging it up and hauling it off.  Labeling may be harder to ignore.  Requiring the leaf blower manufacturer to paste on the machine a bright orange tag with a picture and bold letters--"Don't blow debris into the sewer!"--might send a message that's tougher to ignore but still not foolproof. 

The city could educate and regulate and enforce each source, banning leaf blowers or sending out police or code inspectors to ticket people found blowing things into sewers.  We all know how "easy" this type of enforcement is and how well these sorts of things go over--particularly when everyone's doing it.  ("Did you hear that the city actually fined Bob the other day for taking care of his lawn?  I thought we lived in a free country, but I guess I was wrong.")   Better yet, how about federal regulation?  The EPA could swoop in and tell Tulsa that it's violating its MS4 permit. Now that would be a popular solution.

Students might give up on controlling individual sources and move to the downstream technology option--requiring better screens on curb openings or treatment of surface runoff prior to its entry into the river.  Then we'd have a budgetary struggle, with bankrupt cities explaining that they can't even fund the schools, let alone billions of dollars in treatment technologies.  Plus, we might have to agree on the best technologies and their availability, consider non-water effects of the treatment, and modify every city permit. 

Knowing students, they'd come up with creative fixes and complete a brilliant report solving these classic environmental problems.  Maybe I'll try this next year.  And by the way, the first source to which I'll point my students will be Dave Owen's stormwater post.  I agree that stormwater is "really, really interesting"--especially when you add leaf blowers to the mix.  

-Hannah Wiseman

The Kangaroo Switcheroo - Swapping Income Taxes for Carbon Taxes in the Land Down Under

 

 

 

 

 

 

 

 

 

Over the last decade Australia has dealt with similar political wrangling over carbon legislation as we have seen in the U.S. Yet, as I have posted about before, the country has finally taken a step to address carbon emissions. Passage of legislation that would place a $23 per ton tax on carbon on Australia's 500 largest emitters is expected soon. The compromise is that corresponding changes to the income tax code will relieve 1 million Australians from paying any income tax at all.

Would such an approach be viable in the U.S.? Certainly the current economic climate complicates any such measure, but Australia faces the same uncertain economic challenges as the rest of the world. While in the U.S. we debate green energy, carbon regulation through the Clean Air Act, and other climate change related policies on the one hand, and job losses and tax burden impasses on the other, might some compromise be reached to tackle both issues? Of course further reducing tax burdens from income taxes will do little to directly affect the U.S.'s deficit woes, not to mention that those who would receive reduced income tax burdens would be the people who already have jobs. But it does seem that some creative compromise is in order, rather than continued ideological bickering. Australia, after all, also has a predominantly two-party system (though other parties do have a greater presence in national politics). So it seems we have little excuse here in the U.S., aside from our apparent fascination with extreme politics. To use a metaphor from the classic "Crocodile Dundee," when it comes to serious legislative efforts to cut carbon emissions, the U.S. has brought a much smaller knife to the conflict than has Australia.

- Blake Hudson

Chocolate and Climate Change

Much has been said about the catastrophic threats related to climate change.  Frustratingly, the reports of scientists have proved so dire that many people have a hard time believing them.  "How can climate change present so many severe environmental, social, and economic challenges?  Can we really be in that bad of of a fix?" 

While the news on climate change only seems to get worse with time, here is something that most people might be able to grasp.  A recently released report suggests that affordable chocolate may be a victim of climate change.  (I found out about the report on the Environmental News Network.)  The logic behind these findings has to do with the temperature-sensitive cocoa bean.  Apparently slight increases in temperatures in much of the chocolate-producing world would have seriously negative impacts on the cocoa crop. 

While more expensive chocolate is not nearly as serious as some of climate changes predicted impacts, it is still pretty terrible.  Just imagine:  a world plagued with disaster... and no chocolate.  If that doesn't do it for you, imagine the marketing slogans that might accompany a chocolate-constrained world:

“Hungry? Why wait? Oh yeah, because I can no longer afford chocolate.” – Snickers

“Crispety, crunchety, peanut-buttery and no longer chocolatety, Butterfinger” – Butterfinger

“Gimme a break, seriously” – Kit Kat

“It is just like that city with the name I can't remember...  It used to be in what was still Florida before sea level rise...  It's Whatchamacallit!” - Whatchamacallit

“They would melt like the world's glaciers if you only could afford to put some into your mouth.” – M&Ms

“You used to think that climate scientists were nuts, now you don't.” – Mounds and Almond Joy

- Brigham Daniels

Interesting Land Use/Development Poll

The Saint Consulting Group recently released a poll testing attitudes about various kinds of local development projects.  The poll contains many interesting findings, and perhaps the most interesting is a marked disparity between the attitudes of men and women about most kinds of development projects.  The pollsters also found, among other things, that WalMarts are getting less unpopular; that most people would prefer the status quo to development, even with a poor economy; that most people consider development an important election issue and that most also distrust the relationship between developers and local government; and that, notwithstanding the findings about general opposition to development, a significant majority of people would support a wind farm near their home. 

The report is available here; some coverage from the New York Times energy and environment blog (focused on the gender disparity) is here.

- Dave Owen

Climate and Energy Topics at the Annual Fall Meeting of ABA SEER

This Wednesday Oct. 12 through Saturday Oct. 15 is the Annual Fall Meeting of the American Bar Association’s Section on Energy, Environment, and Resources (SEER) in Indianapolis.  The meeting's agenda is dominated by climate change and clean energy, with sessions on nuclear power plant regulation; climate change litigation; the social cost of carbon; greening consumer products; renewable energy on Tribal lands; NEPA & renewable energy projects; biomass regulation; coal ash regulation; mercury regulation; feed-in tariffs; hydraulic fracturing; climate risks in real estate transactions; and greenhouse gas regulation at the federal, state, and local levels. 

In the midst of so much news of anti-regulatory initiatives (in case you missed it), reading this agenda makes me feel hopeful that US law and regulation will soon be turning its attention in the right direction. 

-Lesley McAllister

Fisheries and the "Illusion of Plenty"

In my Ocean and Coastal Law and Policy class we have been discussing fisheries management. Fisheries are natural resources that perhaps best demonstrate the complexities and difficulties of resource management. In addition to U.S. congressional mandates to maximize economic productivity while also maximizing environmental protection, all of the variables that we use to manage fisheries are moving. We are unsure of how many fish are in the ocean, due to the difficulties in collecting data in such a foreign space. So we make our best guess in establishing the maximum sustainable yield (MSY) for the fishery - a moving target. We are also uncertain of what natural climatic conditions might impact the resource from year to year (red tides, dead zones, La Nina, El Nino, etc.) - another moving target. So the MSY may or may not end up being appropriate depending on such conditions.  We are uncertain of our monitoring and reporting efforts, as it is exceedingly difficult both economically and administratively to ensure compliance with the moving target that we've set - thus enforcement is a moving target in its own right. So it is no surprise that we continue to struggle to sustainably manage fishery resources.

Then comes the "illusion of plenty," further complicating fisheries management. Two of the most important recreational fisheries off the coast of California have collapsed largely due to this phenomenon. The research, published in the Canadian Journal of Fisheries and Aquatic Sciences details how catch rates of two species of bass have remained stable while the biomass of the species has crashed by 90% since 1980. The phenomenon is known as "hyperstability," which occurs when "fishermen target spawning areas where large numbers of fish congregate, producing a so-called 'illusion of plenty' that can hide an overall collapse in fish stocks." One researcher described that “[t]he problem is when fish are aggregating in these huge masses, fishermen can still catch a lot each trip, so everything looks fine . . . But in reality the true population is declining.” As with cod in the North Atlantic, it is the quintessential example of "fisheries data masking an impending collapse" - yet another moving target to consider when attempting to manage one of the world's important natural resources.

- Blake Hudson

In Case You Missed It - The Week of October 2 to October 8

A geothermal plant that received ARRA funding struggles to meet power production goals and meet debt repayment obligations. (NY Times)

Researchers reported this week of unprecedented ozone loss in the Arctic.  (Nature)

The House Natural Resource Committee took action on a wide range of anti-environment bills this week.  (NY Times)

While the White House threatened to veto bills that would prevent EPA from moving ahead on air pollution rules (ranging from rules relating to industrial boilers, solid waste incinerators, and cement plants), the House passed one of them (related to cement plants).  (The Hill and Wall Street Journal) 

The U.S. Fish and Wildlife Service released its national wetlands inventory, which found that over the past five years the continential United States lost an average of 13,800 acres of wetlands a year. (LA Times Environment Blog)

Ronald Brownstein provided very interesting commentary on why over the past couple of years House Republicans have consistently voted against EPA regulations. (Grist and Legal Planet)