Environmental Law Prof Blog

Uncertainty Remains on Federal Disaster Assistance Post-Sandy

Nearly two months after Hurricane Sandy ravaged the eastern seaboard, Congress has yet to formally consider President Obama's request for a $60 billion aid package.  The New York Times editorial board and New Jersey Governor Chris Christie weighed in to support a relief bill offered by Senate Democrats that largely mirrors President Obama's request, while the Club for Growth and the Heritage Foundation voiced their opposition.  The latest reports suggest the bill, after some intense negotiations, is likely to pass in the Senate today, but uncertainty remains in the House. 

-Tim Mulvaney

The Mayan Apocalypse and Climate Change

- Blake Hudson

Rethinking Sustainable Development to Meet the Climate Change Challenge: Coda

Today's preceding post was the last in the series of short essays put together by the Environmental Law Collaborative. If you'd like to see all of the essays together, click here and do the download thing. On behalf of Keith, Jessie, Betsy and myself, as well as all the ELC participants, I'd like to thank the Environmental Law Prof Blog editors for affording us this venue for our initial publication. 

Meanwhile, a few things to look forward to from ELC: A revised version of the essays in a spring issue of ELI's Environmental Law Reporter News & Analysis. A book on the meaning of sustainability in the age of climate change with longer-form contributions from our ELC authors, likely forthcoming in 2014. And future collaborative projects geared toward scholarly engagement with the critical environmental issues of the day.

-- Michael Burger

Rethinking Sustainable Development, ELC Essay #15: The Story with Sustainability

Sustainability is the most influential environmental idea of the last thirty years. Yet, what sustainability is, what it looks like, is hard to define. One can read through all 50 pages of “The Future We Want,” the outcome document from last summer’s Rio+20 conference, and still not know what, exactly, the term means. I suggest that we can more completely understand sustainability if we recognize it is not only an idea or a policy goal, but also a particular kind of environmental story: the pastoral utopia. And we can understand what sustainability means in the age of climate change if we recognize that this utopian vision has come into conflict with a competing story: the environmental apocalypse.   

The differences between sustainability and climate change, utopia and apocalypse, are stark. Sustainability promises that humanity—operating on scales from global civilization to local enclaves—can achieve simultaneous economic development, environmental protection, and social equity, a kind of holistic harmony that requires hard labor but no sacrifice. Climate change, in contrast, reveals that existing patterns of economic development have led to massive environmental disruption and potentially gross inequities that fundamentally threaten the world as we know it. Sustainability focuses on humanity’s technical ingenuity and imaginative potential. Climate change focuses on crisis and catastrophe. Sustainability promises we can thrive. Climate change demands we figure out how we can survive. Sustainability is a comedy, showing us how despite and because of our foibles we can overcome serious obstacles to find a new, happy equilibrium. Climate change is an epic drama, pitching forces of good against evil, creation versus destruction, and calling on heroes to aid in the fight. 

Accepting, as I do, that climate change poses a real crisis, the question arises: How does sustainability figure into contemporary environmental discourse? Here, I propose three possible answers: 

Sustainability is Bad: Sustainability emerged as an inclusionary, reform-oriented storyline, promoted by and within the context of institutional actors like the United Nations Environment Program, the Organization for Economic Cooperation and Development, the World Bank, the environmental sciences community, and the highly professionalized environmental non-government organizations. Serious problems have emerged from these origins. Most importantly, sustainability has failed (and was designed to fail) to compel the radical transformation at the core of the countercultural social movement that invented modern environmental politics. Rather than inspire changes in the way we live necessary to actually redress the environmental crisis, the sustainability story brackets big-ticket items like capitalism and consumerism, reifies existing actors and hierarchies, and affirms basic patterns of social organization, production, and consumption. In short, it is a deceptive story that perpetuates existing power dynamics that are in many respects the causes of climate change.  

Sustainability is Mostly Harmless: Sustainability’s utopian vision has had little impact on actual decision making, yet nonetheless represents a maturation of environmental discourse, rather than a selling-out of environmentalist ideals. Perhaps it over-relies on the capacity of markets and market actors to find solutions to problems made by the demands of markets and market actors, and perhaps it has become something of a placebo, a green Band-Aid on a life-threatening wound, but it has the benefit of providing a powerful ideal and an aspirational goal that, if honestly adhered to and pursued, could substantially improve our world. Sustainability has always sought to re-frame humanity’s role, placing the reconciliation of environmental management and economic growth at the center of our own story. Arguably, there is sufficient evidence that with enough technological savvy, political commitment, and hard work a sustainable ecology and economy can coexist.

Sustainability is Good: Sustainability is a vital and necessary story for achieving real improvements in our overall environmental and social health. However, it has become subsidiary to the twin challenges of climate change mitigation and adaptation, and now must complement these less inspiring storylines—mitigation is irredeemably technocratic, adaptation is potentially paralyzing—by offering a positive vision for environmental change. Sustainability’s narrative and rhetorical force should be harnessed not to promote sustainable development but to motivate us to innovate for greater energy efficiency, to transition to a renewable energy economy, to reduce and alter consumption habits, to move roads and fortify infrastructure to account for sea-level rise, to translocate populations of humans, animals and plants from places that are no longer habitable, or even existent, and to take on the myriad other demands of climate change mitigation and adaptation.

Can the conflicting stories of sustainability and climate change be reconciled, without surrendering something essential about one or the other? Can we have both comedy and epic drama at the same time? And how do these stories interact with the law? Neither sustainability law nor climate change law is, at this point, well-settled; both are in relatively early stages of development. As legislation, regulation, and litigation in these areas proceed, it will be worth keeping tabs on the narrative pitch.  

-- Michael Burger

Sweating the Small Stuff: Indian Villages Plan for Climate Change

Sweating the Small Stuff: Indian Villages Plan for Climate Change

Cross-posted from CPRBlog.

 

In October, I wrote about the city of Surat, the diamond-polishing capital of India, and its battle against climate change.  Recently I had the chance to visit another municipality working on adaptation, a place known more for its postage stamp farms and wandering livestock than jewelry and textiles. It’s called Gorakhpur, and is located in the flood-prone state of Uttar Pradesh, near the India-Nepal border.

I first visited Gorakhpur nearly 25 years ago--when I was a long-haired backpacker and Gorakhpur was a muddy stop on the way to Kathmandu. Some things there haven’t changed. The streets are still muddy. Tea stalls and tarpaulin tents still line the streets, illuminated by the blue flames of cook stoves. At my business hotel, electricity was as unreliable as ever, and the telephones still crackled and hissed. Each morning, I would greet a dozen or so cows grazing on a hillock of garbage outside the hotel gate. (The city still has no regular solid waste collection).

But Gorakhpur has also changed in important ways. The city has over four hundred thousand people, with millions more in the surrounding district. There are malls, cineplexes, fast-food joints, and pizzerias! What began as a small urban core has spread erratically, encroaching upon lakes, marshes, and scores of farm villages—all held together by a hectic flow of traffic and a mighty, tea-stained dome of hydrocarbons.

Like many communities in these arid plains, Gorakhpur suffers from flash floods in the rainy season which lead to “water logging,” a saturation of poorly drained soil that can ruin a season of farming. Faulty drainage channels and unmanaged garbage increase water logging as well as the related incidence of disease. Residents—who have always battled malaria and dysentery—are now seeing a rise in diarrhea, hepatitis, and Japanese encephalitis. These trends will increase as population and development grow. In addition, the rising temperatures and stronger rains associated with climate change will intensify these effects in dangerous but unpredictable ways.

To learn more, I met with a long-time community organization called the Gorakhpur Environmental Action Group (GEAG) that is now helping farmers in the urban fringe to prepare for these growing risks. (GEAG released a preliminary report, “Toward a Resilient Gorakhpur,” in 2010.) Like the climate initiative in Surat, GEAG’s work is supported by the Asian Cities Climate Change Resilience Network (ACCCRN) and funded by the Rockefeller Foundation.

GEAG knows that Gorakhpur presents a spider’s web of institutional, environmental, and technical challenges, of which climate change is just a part. So the group wisely focuses on issues that, while related to climate, immediately and tangibly affect the lives of village residents. GEAG also emphasizes community activism and government accountability.

Accompanied by GEAG members Monojeet Ghoshal and Pragya Tiwari, I toured a couple of villages were progress is being made. I spoke with farmers about changes they have noticed in rain patterns and I saw an array of compact innovations designed to deliver high benefit at affordable cost. Residents here are learning to sweat the small stuff.

For instance, stone-and-brick storm drains now line most pedestrian roads and alleys; and, unbelievably, nearly all appear to be functioning. New buildings are elevated and built to standards suggested by GEAG engineers. The hand pump at the neighborhood well had been reset on concrete steps many inches above the flood line to insure that drinking water is available even after harsh rains. Many vegetable farmers have begun growing two sets of crops—one on the ground, which is still prone to flood, and another on a frame of overhead “lofts” to support plants that grow on climbing vines. (One popular crop looked something like okra.)

But this is a story about much more than technology. Even the smallest changes to public space, from repaired drains to elevated pumps, require consistent pressure on the municipal government that too often avoids “village issues.” With the help of GEAG staffers, villagers I met had learned to organize efficiently, monitor their village infrastructure, and hold officials responsible. When plastic bags and other waste clogged their storm drains, the community appointed members to patrol the roads each week and record every instance of a blocked gutter or malfunctioning well; they would then deliver the information in a binder to the official in charge—repeatedly—until action was taken.

To be sure, India needs big ideas too. Some, like environmentally sensitive irrigation techniques and improved seed varieties could yield large benefits. Others seem misguided. (Investors, for instance, have encouraged the Indian Parliament to open financial markets to weather derivatives, an idea I mentioned in an earlier post. Some economists believe derivatives trading could help village farmers hedge against poor harvests due to bad weather. But the financial and agricultural experts I’ve talked with in India are doubtful. Making good financial “bets” requires access to meteorological data and statistical skills that village farmers just don’t have, and such markets might invite corruption.)

But climate adaptation is coming to India—to rich cities like Surat and poor transitional cities like Gorakhpur. The key, as with many important ideas, will be sound implementation and improved governance.

_____

Robert Verchick is the author of Facing Catastrophe: Environmental Action for a Post-Katrina World.

 

 

Rethinking Sustainable Development, ELC Essay #14: What Are We Sustaining, Exactly?

From top to bottom, climate change has altered the Earth’s systems in ways that render impossible a static notion of sustainability. The idea of fixed natural baselines, contested to begin with, today is nearly quixotic. The many losses accompanying this state of affairs include the homelands of small island nations, Native Alaskan villages, and flood-prone communities throughout the world. They also include untold numbers of species, large and small. For many communities, the shocks and adjustments will be ongoing. The challenge for all will be to reconfigure economies and cultures that have been structured around an anachronism—what used to be the local climate. 

This may seem like a terrible time to cast a critical eye on the past of the American environmental movement. Instead of looking at its flaws, we might be drawn to glossing over problems in order to unify support for strong climate change mitigation and adaptation policies. Yet glossing over might prove counterproductive. The inescapably damaged state of the world we are trying to preserve provides an opportunity to escape from narratives that have divided communities over environmental policies. Those narratives include saving the environment from people and preserving pristine places from contamination. 

Let’s explore those narratives in two places. Aspen, Colorado is a former mining town reborn as a luxury ski resort. Efforts to preserve the wilderness and other natural resources of the surrounding mountains have coincided with pricing Aspen out of any reasonable housing market and creating a distant commuter class of service workers, composed mostly of Latino immigrants. The two phenomena do not have to coincide. The conversion from a boom-and-bust extractive industry economy to an amenity and service-based economy can be managed in ways that produce equitable distributions of environmental and social benefits. But often it is not. The path to easy money for developers is the path of environmental privilege. Wealthy people come for real estate or experiences near beautiful and sparsely populated public lands, and then structure a service economy around the protection of their privileges. (To be clear, I do not mean to say that individual wealthy people do this intentionally; the logic of this type of development is naturalized in a way that makes it invisible to many well-intentioned people.) This often includes, as it has in Aspen, externalizing a range of costs and impacts to outlying communities. Service workers must commute by car from distant places. The towns where they live, which have lower tax bases than Aspen, provide the schools and other services to Aspen’s working class. In short, Aspen is a place of environmental and class extremism, where the very wealthy enjoy the best that the Rocky Mountains can offer in terms of scenery and access to wilderness and other outdoor activities, and low-income workers live in distant communities, drive hours to and from their jobs, and barely have time to notice that the supposedly transformative experience of pristine nature surrounds them. 

Black Mesa, Arizona is a high desert plateau, most of which is on the Navajo Nation but portions of which comprise the Hopi Tribe’s land. The Navajo and Hopi people of Black Mesa are among the more traditional Native communities in the country in terms of maintaining their ancestral lands as well as the religions and cultures tied to those places. The community is not a monolith, but it is fair to say that most of the Navajo and Hopi people who live there have strong interests in ensuring that their water (from underground pristine aquifers), their land, and their air can sustain many future generations who will perpetuate Navajo and Hopi life ways. The threats to their ability to ensure that future come from two main sources:  the strip mining of coal on Black Mesa (and the accompanying pumping of ground water from the aquifers to mine and transport the coal), and the pollution from the several coal fired power plants that surround the Navajo Nation, including the Navajo Generating Station which receives all of its coal from Black Mesa. None of the electricity generated at the Navajo Generating Station supplies power to people on the Navajo or Hopi reservations. Instead, the power is used by the Salt River Project, Los Angeles Water & Power, Nevada Energy, Arizona Public Service Co., Tucson Electric Power, and the U.S. Bureau of Reclamation. The beneficiaries of coal mining, aquifer pumping, and emissions from the coal fired power plant are therefore corporations and people in the distant cities of Los Angeles, Las Vegas, Phoenix, and Tucson. The recipients of all of the environmental burdens are the Navajo and Hopi people, whose land, resources, and water serve as raw material to develop these far away places.

Contemporary environmental laws, in place since the early 1970s, have done tremendous good, but have done little to curb the extreme inequities in the distribution of environmental burdens and benefits exemplified in these two very different places. In Aspen, the narrative of keeping people out of pristine places is at play. On Black Mesa, the narrative at work is one that separates the plight of subordinated people from the structural forces that harm our environment. The build-up of Los Angeles and Phoenix surely seemed foregone, inevitable, and right to those involved in it. But what thought was given to the Native communities on whose backs those cities were built? Their lands were seen as nothing but the disposable raw material from which to build something better. 

As we move forward, post climate change, with only a murky comprehension of how best to preserve remnants of the faultless non-human world, perhaps we can reconsider how to weave human communities and their just demands for equitable treatment into the picture. Otherwise, we may lean towards sustaining only non-human nature, and that will inevitably also benefit only certain classes and strata of humanity. We might unwittingly be sustaining a very hierarchical and increasingly rigid system of doling out environmental privileges and harms. If this is a moment of reconsideration, my vote is to construct a competing narrative of environmentalism, one that has a vision of vibrant, equitable, just and diverse communities of humans and non-humans as its end.

-- Sarah Krakoff 

Rethinking Sustainable Development, ELC Essay #13: Climate Change Means the Death of Sustainability

Climate change requires that we replace goals of sustainability with something else, at least for any policy goal more concrete and specific than leaving a functional planet to the next generations. Sustainability is by definition the ability to sustain something: the verb needs an object, and the goal of sustainability needs a particular focus or foci—an ecosystem, a socio-ecological system, extant biological diversity, economic growth, development, human health—but something. To talk about sustainability in the abstract is to philosophize, not to pursue meaningful policies and laws.

Climate change, however, is a game-changer. And, from a sustainability perspective (among others), we have absolutely no idea how to play this new game, even though we (accidentally) invented it.

But before we go too far down that road, let’s start with some basics. First, all human well-being—oxygen to breathe, food to eat, habitable environments, fuel, health, economic and cultural development—ultimately depends on the physical, chemical, and biological processes proceeding at multiple physical and temporal scales throughout Earth, including its atmosphere and oceans. Second, climate change is already changing most of the important components of those processes: the temperature of the atmosphere, of regions of the oceans, of land, and of various freshwater bodies; atmospheric and oceanic currents; the chemical composition of the atmosphere; the chemical composition of regions of the oceans; the relative humidity in various regions; precipitation patterns throughout the world; the habitability of particular ecosystems by particular species; natural checks on pest species through temperature and other seasonal changes; and the productivity of various landscapes. Third, these processes are proceeding, and interact with each other, in complex and unpredictable ways, stymieing (or at least limiting) human ability to predict future states of being. Fourth, even if all greenhouse gas emissions ended tomorrow (which will not be the case), carbon dioxide in particular takes a long time to cycle back out of the atmosphere. As a result, humans are stuck with change-inducing carbon dioxide levels in the atmosphere for a while—almost certainly at least a couple of centuries, and probably much longer, especially if climate change mitigation efforts remain half-hearted. 

As a result, the bases of human life, health, society, culture, and economics are all changing and almost certainly will continue to change—again, in complex and often unpredictable ways—for the foreseeable (and unforeseeable) future. Climate-change impacts will, almost certainly, be a fact of human existence for longer into the future than the United States has been a country into the past; indeed, under current scientific predictions, humans will likely be dealing with climate change for longer than they’ve already been dealing with the European colonization of the New Worlds.

So, back to the main point: When the only constant in life is continual socio-ecological change, sustainability is a practically meaningless concept. You can’t sustain an ecosystem if the fundamental features of that ecosystem are constantly changing. You can’t sustain a socio-ecological system if its foundations are radically different than they were 20 years ago and will be radically different again 20 years from now. You can’t sustain a particular economy if the bases of that economy are disappearing. You can’t sustain cultural integrity if the society’s members are rapidly becoming climate-change refugees, or if the traditional ecological components of that culture have transformed into something else.

And that’s all before we fully consider the darkest of climate change’s many dark sides. At least three of the four horsemen of the Apocalypse—War, Famine, and Death—are likely to be riding tall and strong through the climate-change era, and we shouldn’t discount the fourth, even if you name him Conquest rather than Pestilence (Pestilence, of course, will be present in force). All of these, moreover, are likely to be joined by a younger sibling, Thirst, who may just turn out to be the most insidious of the lot. In places where these horsemen ride in force, it’s not hard to conclude that anything approaching sustainability will be a distant dream; instead, avoiding absolute chaos and permanent destruction will be the goal de jour.

This is an admittedly dark vision of what climate change means for at least some parts of the world. That does not, however, mean that it’s an inaccurate vision. Moreover, even in the lucky places and for the lucky people destined to be climate-change winners, changing conditions will be a continuous reality—indeed, for some, it will be precisely the fact of changing conditions that makes them climate-change winners. In those places, sustainability will be both impossible and undesirable.

Finally, it’s important to remember that we were never very good at sustainability to begin with. For example, since the world officially adopted sustainable development as a goal at the 1992 United Nations Conference on Environment and Development (the Rio de Janeiro Earth Summit), human consumption of resources has only increased, with no signs of stopping.

So, what should we pursue, if not sustainability? Adaptability, for one—that is, the ability to change (foods, jobs, health regimes, industries, etc.) in response to, and preferably in tandem with, climate-change impacts. Nostalgic conservatism will be, sometimes literally, a dead end. Resilience, for two—that is, the ability to absorb change without losing overall functionality, such as food production, water supply and sanitation, law and order, individual and cultural self-expression. Moreover, while resilience theory grew primarily out of ecological science, the concept needs to apply to other socio-ecological system components besides the environment, from economic resilience at the macro scale to social and cultural resilience at the more local scale to psychological resilience at the individual scale. As Charles Darwin emphasized, “It’s not the strongest of the species that survives, nor the most intelligent, but the one most responsive to change.”

-- Robin Kundis Craig

China Environmental Experiences #8: Environmental Protection as an Act of Cultural Change

This essay, the last in my series about the environmental experiences of an environmental law professor in China, concludes my three-part discussion about how different underlying environmental philosophies held by American and Chinese people can lead to different approaches in environmental governance.  The first part addressed differences in the human relationship to nature, and the second addressed differing approaches to conservation, stewardship, and scarcity.  This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China. (For the full series background, see the introductory post, reflections on China and the Rocky Mountain Arsenal, an account of air quality issues in China, an exploration of water quality issues, and a review of Chinese food and consumer product safety.) 

I began the previous two essays about environmental philosophy by acknowledging the delicacy of exploring the underlying cultural differences that correspond to some of the environmental experiences I’ve written about in this forum.  I noted how exquisitely careful one must be in discussing cultural differences, given the inherent shortfalls of any individual’s limited perspective and experience.  And before plunging once more into that fraught territory (and with apologies for the repetition), I’ll once more share the important qualification that:

My observations are inevitably, hopelessly entangled with my own cultural vantage point.  My Fulbright year did not make me an expert on the inner world of Chinese culture—nor, frankly, did my earlier Harvard degree in Chinese language, culture, and history.  My observations qualify as neither empirical scholarship nor serious ethnography, based as they are on casual research, personal experiences, anecdotes, and generalizations.  But in hope that they may be useful in illuminating the philosophical roots of some gaps between Chinese and U.S. approaches to environmental governance, I share them here. 

In the prior two essays, I discussed how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world, and expressed through our different approaches to managing conservation, stewardship, and scarcity.  This final piece, the most fraught and likely flawed of the three, considers the relationship between the Chinese approach and the Taoist, Buddhist, and Confucian ideals that undergird Chinese culture.  It engages issues of gender roles, environmental protection, and cultural change in both China and the United States (with a shout-out to Vietnam).

But first, a brief note about the cultural baggage that I bring to the project.  Long before this seemed prudent to the average American college student, I majored in Chinese language, culture, and politics as an undergraduate in the late 1980s and early 1990s.  I had started out as a philosophy major but switched departments in order to study Eastern traditions that were not part of the standard Western philosophy curriculum.  I locked myself in the language lab to catch up on my Mandarin so that I could graduate on time, but it was worth it to peer into the incredible story of this unfamiliar nation.  I was riveted by the breadth of Chinese history, the expanse of Chinese philosophical traditions, and the cultural foundations—so contrasting my own—that enabled modern societal movements like the Cultural Revolution and One Child Policy.  I was curious about Confucianism and Buddhism and especially enchanted with the Naturalist School of Taoism, in which I saw an emphasis on harmony between the human and natural worlds that resonated with my own personal sensibilities.  From Taoism originates the philosophy conception of Yin and Yang (literally, “the shadow and the light”), emphasizing the surprising but inevitable ways that seemingly opposing forces are interdependent and interconnected within the world, suspended in an organic embrace of balance.

So I was very excited when the Fulbright program and Chinese Ministry of Education placed me in Shandong province, the historic home not only of Confucius but also to many renowned Taoist temples among the enchanting Laoshan mountains.  I knew that China faced daunting environmental challenges, but in some subconscious way, I hoped that home-grown Taoist principles would provide cultural support for resolving them.  But the Taoism I found in China held little in common with the stylized, “Tao-of-Pooh” version that I studied in college.  The Taoist temples that I visited appeared to emphasize faithful worship of colorful immortals over personal adherence to the Way (or “Tao”) of simple joy and interconnected balance.  On the surface, they seemed very similar to Buddhist temples, which I had expected to differentiate a contrasting path of detachment to avoid suffering within cycles of rebirth. 

Fully recognizing the interpretive limitations of my tourist perspective, I asked the students accompanying me to help me understand the differences between Taoism and Buddhism from their own vantage points, but I found that they were generally unable to articulate much about either tradition—nor were they terribly interested in doing so.  What they did describe was wholly unrelated to my own schooling, focusing on important historical moments rather than underlying ideas.  Granted, I’m sure I would have had a very different experiences talking with the actual Taoist or Buddhist monks in those temples, and I suspect that many echoes of these traditions continue to reverberate through Chinese culture in ways that neither I nor my students fully appreciate.  (I’m also sure that the sterilized versions I learned at Harvard never accurately reflected the full reality of Chinese experience.)  Either way, I discovered that the majority of mainland Chinese don’t pay all that much attention to these ancient traditions these days—many seeing them as quaint at best, and culturally backward at worst. 

I shouldn’t have been surprised, given how strongly (and often violently) ancient Chinese philosophies were discouraged during the Cultural Revolution of the 1960s.  In that second Chinese revolution, Chairman Mao set out to eradicate the traditional belief systems that he warned were holding the Chinese people back--and also, most likely, to consolidate his own weakening political power.  Women were liberated from centuries of repression and peasants at the bottom of the social order were exalted, but teachers were pilloried, libraries destroyed, and many monks and scholars persecuted to their deaths.  (Horrifying estimates suggest that somewhere between one and twenty million people were killed during the decade-long struggle.)  Four decades later, it was fascinating to see how the Cultural Revolution had succeeded in some of its ideological objectives, especially in eroding the overt roles that Taoism and Buddhism play in the philosophical world of most mainland Chinese.  For what it’s worth, though, the same routing of “old thinking” has also succeeded in fundamentally changing the status of women in society.  While women are hardly co-equal with men in modern China, their position in society has improved immeasurably since 1949, thanks in part to the relentless urging of the early communist party that “women hold up half the sky.” 

This example of purposeful cultural change yields an especially fascinating comparison with Vietnam, a neighboring socialist republic that is also the result of a political revolution, but this one uncoupled from a cultural revolution of the sort that rocked China.  In Vietnam, the rhetoric of the new political order stands on seemingly equal footing with ancient cultural and philosophical traditions.  Nearly every home, hotel, or restaurant that I visited included a little shrine, honoring a mix of immortals, ancestors, and other objects of traditional worship— unselfconsciously adjacent to political propaganda signs honoring heroes of the revolution or touting contemporary political objectives and loyalty.   The richness of traditional Vietnamese culture continues to suffuse people’s everyday lives, in contrast to modern China, where cultural traditions flourish around holidays but seem less entrenched at other times. (Indeed, several Chinese privately lamented to me that the nation had lost its ethical moorings after the decimation of the Cultural Revolution, perhaps explaining the hunger for spiritual entrepreneur movements like Falun Gong—which revives some elements of Buddhism and Taoism—and Christianity.) 

Yet in Vietnam, I also observed the inevitable flip-side of entrenched ancient traditions—a literal expression of the Yin and the Yang—epitomized by the plight of a remarkable woman I met while guest lecturing there, whom I’ll call Linh.  Linh is a twenty-something, overseas-educated, up-and-coming young professional with a plumb job working for the government who nevertheless fretted about her future, especially regarding marriage.  She feared getting married because, according to traditions once universal in China and still prevalent in northern Vietnam, marriage would require her to leave her family home and become a member of her husband’s family household, where she expected ill-treatment from her parents-in-law. 

She had a vivid picture of what that treatment might look like based on the experiences of her own sister-in-law, who lived together with her, her brother, their toddler, and Linh’s parents in her father’s home.  The sister-in-law had been unable to see her own family since the birth of her son, because Linh’s father had forbidden her from taking the child away from the family home for the two hour journey to her village. 
Linh summoned the courage to tell her father that he should be nicer to his daughter-in-law and allow her to see her parents.  After all, she reminded him, one day she would be someone’s daughter-in-law wanting to see him.  But he did not take well to being scolded by his daughter, and nothing changed as a result.  Linh seems resigned that she will someday have to get married, but she does not look forward to that day.

It broke my heart to hear—in 2012!—this age-old story of fear and sorrow from a well-educated professional woman at the pinnacle of Vietnamese society.  Aside from the foreign education and government job, her story is reminiscent of countless Chinese women over the thousands of years that young brides were forced to leave their parents’ households for their husbands’, often to be persecuted by an unhappy mother-in-law once forced to leave her own family.  I recall learning in college that the suicide rate among young Chinese women during this time was estimated to be the highest of any social group anywhere on earth at any time in human history, evidencing the misery that so many endured.  (Sadly, recent studies show that this trend continues in rural China, where traditional family structures remain entrenched.)  Fortunately, that time is long gone in the urbanizing parts of China that I visited, and the situation is much improved in Vietnam as well, given the social and economic power that comes to women like Linh from working outside the home.  So at least some of the “old thinking” extinguished by the Chinese Revolution should not be missed—even if many of the methods can never be condoned. 

Yet not every aspect of traditional Chinese culture was destroyed during the Cultural Revolution.  Notwithstanding the dismantling of so many foundations, one critical cornerstone of traditional Chinese culture survived relatively intact: Confucianism.  Founded on the teachings of the ancient philosopher Confucius, the philosophy of Confucianism continues to provide a strong ethic of righteous living and rules of conduct in relationships that redounds throughout Chinese culture.  As a humanist delineator of right and wrong behavior, it focuses on the cultivation of personal virtue, respect for authority, and deference to proper roles within the community.  Among its principles, Confucianism emphasizes the importance of education, reverence for the ancestors, and the critical responsibilities of individuals within clearly articulated social hierarchies. 

Confucian ethics are among the proudest cultural traditions of China, and they form the backbone of many other Asian cultures, from Vietnam to Japan to Korea.  They infuse the flavor and texture of Chinese society, gracing it with respectful behavior, deep regard for the wisdom of elders, and societal support for teachers and education more generally.  It also emphasizes the proper role of individuals given their particular role within the social order.  Children should obey parents, wives should obey husbands, and husbands should obey local leaders, who should, in turn, obey national leaders.  This system of ordered relationships has provided needed social stability during times of great political upheaval, reaching back over thousands of years of territorial conquest and dynastic change that might have otherwise torn Chinese culture apart. 

So even after the Cultural Revolution successfully eradicated the already weakening traditions of Taoism and Buddhism from the Chinese popular consciousness, the Confucian bedrock of Chinese society continues to thrive—probably because the current political system is itself so well-aligned with Confucian principles.  The success of the Chinese Communist Party is inextricably intertwined with broad-based Confucian respect for the wisdom of national leadership, deference to authority, and Confucian-cultivated obedience within an explicit societal hierarchy.  Of course, in reinforcing these strict social hierarchies, Confucianism has also facilitated the long stability of arguably oppressive traditions like the practice of female foot-binding (eradicated by the mid-20th century), and the gender roles that continue to haunt women like Linh throughout Asia.  The Yin and the Yang.

How, then, does all this relate to environmental governance?  Possibly profoundly.  Even as the great tradition of Confucianism exhorts right behavior within the social order (and even setting aside the most contested areas of that social order), I cannot help but wonder about the relationship between Confucian principles and environmental ethics.  As I discussed in the previous essay, I found a less entrenched cultural tradition of environmental stewardship in China than I have seen in equally crowded nations, and I wondered why.  For example, I remarked on the striking way that most Chinese seem to differentiate between the care they take of the environment inside their own homes and the care they take of the environment beyond their front doors:

“Inside the home, Chinese people take immaculate care to maintain cleanliness and beauty.  Shoes are often left at the front door.  Walls and shelves are adorned with enchanting art and objects reflecting the majestic culmination of thousands of years of traditional Chinese culture….  But outside that front door, the duty of care appears to end. Common doors, hallways, and stairwells in Chinese apartment buildings receive little attention from residents; empty walls are often cracked with peeling paint and crumbling cement in seemingly abandoned hallways that open surprisingly into those beautifully maintained dwellings once you cross the inner threshold.  This may reflect other collective action problems relating to commonly-owned property, but it also reflects a widespread sense that what happens beyond the inner threshold is someone else’s responsibility.

“Crossing the outer threshold onto the street reveals an even more dramatic difference… Littering is a human cultural problem throughout the U.S. and the rest of the world, demonstrated by American smokers who continue to discard cigarette butts indiscriminately, long since cultural tolerance for this waned after the 1970s environmental movement.  But in China, cultural permission to discard waste in public places extends beyond water bottles and cigarette butts, complicating the environmentalist message... [discussing the tradition of allowing children to toilet-train on public streets and sidewalks].  With so much Chinese ground thus anointed, the outside environment is generally (and correctly) viewed as a terribly unclean place…. 

“Here’s the thing.  If you see the world outside your own home as a legitimate place to offload waste… how can this not extend to greater environmental management?  If it’s culturally permissible to drop litter (and worse) on the street or the beach, why wouldn’t it be okay to release manufacturing waste into the river, or pipe it into the air?  The potential implications for environmental law are obvious.  Because it’s not just an economic challenge for the government to convince industrialists not to pollute; in some important way, it’s also a cultural challenge.  Professional polluters aren’t just doing it because it’s cheaper than the alternative.  They are doing it because—at some level—it’s what they have always done, and without moral misgivings.”

Indeed, in China, moral misgivings are more likely to come from the violation of Confucian ethics than the violation of relatively new, state-mandated environmental laws.  And herein lies the great challenge for Chinese environmental law. 

Confucianism teaches the maintenance of social order through right behavior within strictly nested social hierarchies.  Chinese culture is permeated with Confucian ethics, which teach people to focus on their own sphere of responsibility and act obediently toward the sphere above them.  These ethics reinforce the power of the very political system now earnestly trying to generate meaningful environmental laws and nurture the “Recycling Economy” that I discussed in the previous essay.  But in teaching people to focus on their own sphere and not beyond, is it possible that these same ethics unwittingly support an underlying environmental tendency to think, perhaps, a little too locally and not enough globally?  Could Confucian ethics unintentionally encourage a duty of care that extends only to the corner of the world under one’s direct control—the inside of one’s home—leaving responsibility for the rest to others?  Could this help explain the comparatively weak tradition of environmental stewardship in China?

It certainly can’t be the only explanation, given the confluence of Confucian ethics and strong environmental stewardship traditions in neighboring Japan, another Asian nation founded on deeply Confucian traditions, coupled with a Shintoist reverence for nature.  Still, I can’t help but wonder whether there is some explanation lurking here to account for the remarkable way that the Chinese duty of care for the environment seems to coincide with Confucian circles of agency, responsibility, and authority.  Americans sport buttons and bumper stickers exalting us to “think globally, act locally.”  But most Chinese people seem to orient both their thinking and acting within the bounds of their most powerful culturally designated sphere of responsibility: the family home.

Confucian ideals remain steadfast in China, but cultural change is imminent—and on the rise, thanks to both top-down and bottom-up sources.  Operating through the Internet from the bottom up, a thriving economy of Chinese social media has dislodged young people from the strictly local sphere as they build communities of interest across the country (although not the world, thanks to the “Great Firewall” that blocks domestic access to social networks abroad).  And as I discussed in the previous essay, the Chinese government is working hard from the top-down—hopefully harnessing citizens’ Confucian respect for leadership—to inseminate a “Recycling Economy” within the new social order.   The Recycling or “Circular Economy” sustainability campaign exhorts citizens to see the relationship between their every-day behaviors and the health of the overall environment beyond their front doors, and to connect the health of the environment to overall human well-being. 

But there is no way around it: the environmental project in China is going to take an act of cultural change.  The Cultural Revolution represents one way of successfully implementing cultural change, but nobody inside or outside China would advocate the tragic human and cultural violence of that method today.  Instead, this is the time for a gentler variety or ideological entrepreneurship—best accomplished through the old-fashioned tools of community-based education and consciousness raising and the new-fangled platforms of mass and online social media.

Facebook and Weibo aside, it’s the same kind of cultural change that made recycling ideals an every-day part of American life.  I still remember when curbside recycling began in my childhood neighborhood and we were asked, for the first time, to rinse cans and bottles before putting them out for street-side collection in big blue bins.  My incensed father simply could not get past the idea that he was being asked to “wash garbage” (and then to pollute his pretty neighborhood with ugly blue bins).  “But it’s not garbage,” my sister and I insisted—“it’s recycling!” And the blue bins weren’t ugly to us, because we found beauty in the good they would do for our environment (similar to the philosophically-driven aesthetic I find in many of today’s modern wind farms).  This is what we had learned in school, though obviously not at home, and our family demonstrates the way that cultural learning can move through the generations backwards as well as forwards.  My father, now in his seventies, today dutifully washes the recycling and my mother maintains separate receptacles for paper, plastic, glass and aluminum, and trash.  This is what cultural change looks like.

Cultural change should come from within, not without, goes the very wise wisdom.  The good news is that the “Recycling Economy” and other efforts to increase public sustainability awareness show that Chinese leaders are taking steps toward environmental progress, and a series of unprecedented public protests over pollution show that the Chinese public is also beginning to engage serious environmental issues.  Just as China takes on issues of conservation and stewardship, so should Americans better grapple with our issues of overconsumption and waste.  Indeed, all human beings must learn to live more sustainably, but the world’s two largest economies bear special responsibility.  All of us must take care not only of our homes, but the hallways, streets, creeks, lakes, rivers, oceans, atmosphere, and biosphere that make up our shared environmental home.  And as we move forward together through separate acts of philosophical growth, economic development, and cultural change—it just might help us to understand a little bit about exactly where each of us is coming from. 

Which, in the end, has been the ultimate purpose of this series of essays.  Now that I am back in the U.S. and reintegrating into the strange traditions of my own culture, I conclude the year-long series with the sincere hope that they have contributed helpfully in some small way to our ongoing cultural dialog, conducted in hundreds of thousands of individual points of contact every day.  Indeed, U.S.-China relations have never been more important than they are right now, for both nations—and because of the collective environmental, economic, and political impacts beyond our own borders, to all the peoples of the world.  Together, with a little patience, humility, humor, and mutual respect, we can all continue building that bridge toward a brighter future, brick by individual brick. 

After all, it was the ancient Chinese philosopher Lao Tzu—the founder of Taoism—who intoned around 500 B.C. that “a journey of a thousand miles begins with a single step.”  What do you think would happen if all 1.8 billion Chinese and Americans took that single step at the same time?

--Erin Ryan

Rethinking Sustainable Development, ELC Essay #12: Sustainability as Process: Seeing Climate Change Opportunities in Sustainability Approaches

Much has been said about the elusive nature of the term, “sustainability.” Some argue that the term is rudderless in the absence of some acceptable matrix for measuring success. This claim makes sense where we demand accountability in governmental decision-making. Some argue the term is inconsistent in different contexts or at different scales. This claim identifies inconsistencies in all sustainability programs that operate at or are justified in different scales (as they all do and all are). Others continue to believe the term invokes a liberal political agenda. Although the arguments supporting this claim are less apparent, there certainly has been an association between liberal democratic politics and the types of social and economic changes suggested by sustainability. 

My sense is that most of the above discussions are irrelevant. Sustainability implies (at the very least) a more rigorous pursuit of equity as a matter of governance, a more honest incorporation of economics into environmental quality considerations, and a more effective regulation of the interaction between the natural and built environments. This basic definition is more functional than its critics allow, but only if we approach the application of the sustainability framework with a little light-heartedness on our demands for substance and certainty. Indeed, we might consider whether sustainability is (or has ever been) so substance-driven (and in the meantime, we might reconsider whether we have any actual needs for such certainty). We might productively think of sustainability as a lesson in process. For instance, if we define “governance” as protection against systemic and catastrophic risks, sustainable governance involves the process of identifying known and unknown risks to our social, economic, and environmental dependencies and in formulating solutions to address each of these three legs of sustainability. Process here involves pluralism that is not necessarily democratic, precaution that is not necessarily presumptive, and flexibility that is not necessarily unprincipled. Another way of articulating the “process” point of sustainability is that we are all pragmatists when it comes to sustainable governance. 

The present struggle over climate circumstances presents an illustration of this type of process-oriented thinking. On the one hand, climate change presents a context in which sustainability is unquestionably challenged. Climate change has dominated politics, science, conservation planning, and even education. Of course, it is easy to see that climate change provides talking points, models, and mandates in each of these areas because of its reluctance to conform to past models of equity, economics, and environment (not to mention morality, metaphysics, and ontology).  It is also easy to recognize that the depth and range of climate-change impacts will uproot human livelihood and well-being in unimaginable ways. Water and food scarcity, loss of soil productivity and biodiversity, and uncontrollable spread of disease are common climate-change consequences. In the context of runaway climate change, it is arguable that the long-term, future-generation vision represented by sustainability is impractical to pursue and impossible to implement. Shifting baselines resulting from climate shifts challenge our present ability to match future needs with future environmental circumstances, thereby making it difficult to chart a course today. Island cultures will be lost to rising seas, and the Stern Report predicts the largest market failure we have ever seen. In this context, the salient but complex question on the usefulness of sustainability might be, “what are we trying to sustain?”

Yet applying sustainability to the challenges of climate change adds a process for understanding the character of the challenge without being subsumed by the breadth or rhetorical commitments of any particular principle. Sustainability is a framework for thinking and is not illustrated by facts so much as by goals. Sustainability demands that each decision reflect good governance on economic, environmental, and equity—regardless of whether we face the threats of climate change or the circumstances of climate stabilization. In the meantime, sustainability helps us understand the dynamics of human interactions with nature, human dependencies on ecosystem services, and social and cultural adaptations to environmental circumstances. Sustainability provides a framework for understanding why funding choices, human capital, cultural bias, and economic tensions become important in the context of particular challenges—like climate change—and a process for making good governance decisions. 

-- Keith Hirokawa

New Beach Access Decision in New Jersey

New Jersey’s coastal development policies have served as significant fodder for debate as the recovery from Hurricane Sandy continues. This week, the Huffington Post offered a particularly exacting critique of the leniency of the state’s coastal land-use regulations.  The lengthy report begins by explaining how exclusive private beach clubs in the town of Sea Bright, though constructed seaward of the town’s sea wall, will be allowed to rebuild in the same location in Sandy’s wake.  One of these private clubs, the “Sea Bright Beach Club,” is the defendant in an important recent beach access decision of a state appellate panel.

In the early 1990s, the State sought to replenish the beaches in Sea Bright.  Originally, several private beach clubs refused to sign an easement to allow public construction and, ultimately, recreational access to those replenished beaches.  Ultimately, in 1993, an Assistant Commissioner of the State’s Department of Environmental Protection signed identical agreements with each of the clubs that would limit public access to the replenished beaches to a mere 15’ north-south transit corridor along the water’s edge. 

Following the New Jersey Supreme Court’s landmark 2005 decision in Raleigh Avenue v. Atlantis, which concluded that public use of some reasonable portion of dry sand is “ancillary to use of the ocean” in accord with the public trust doctrine, the State filed suit seeking reformation of the 1993 agreements involving the Sea Bright beach clubs.  The suit proceeded to mediation before the former Chief Justice of the New Jersey Supreme Court, James R. Zazzali.  (In full disclosure, as a then-Deputy Attorney General in New Jersey, I was involved in the early stages of the litigation and mediation.)  All but one of the beach clubs agreed to an amicable settlement with the State in 2010, as reported here.  Litigation continued with the Sea Bright Beach Club.

In September of this year, a three-judge appellate panel unanimously affirmed a trial court order holding that the limited access provisions in the 1993 agreements are “void as against public policy.”  The court stated:

“Certainly, after the Raleigh Avenue ruling, both parties to the 1993 agreement should have recognized that the limited public access to . . . the oceanfront tidal property the club owned might be questionable and the limited public access to the remainder [the un-granted state tidelands that the state had replenished] was wholly untenable.  . . . We have identified no factor or circumstance to disturb [the trial court judge’s] decision that equitable estoppel principles barred the State from seeking to void the portion of the 1993 agreement limiting access to the majority of beachfront property controlled by the Club.”

The appellate decision, available here, is captioned Chiesa v. D. Lobi.  As reported here, here and here on this blog, the New Jersey Supreme Court is set to take up a major beach replenishment case, Borough of Harvey Cedars v. Karan, this spring regarding the existence and scope of the “special benefits” doctrine.  In Karan, an oceanfront landowner alleges that the increased height of a replenished dune reduced the value of her property by impairing her view of the water.   The claim challenges the $300 offered by the Borough to condemn an easement to replenish the dune.  Affirming a jury award of $375,000, the appellate court below held that the replenished beach and dunes directly adjacent to the claimant’s property did not confer a direct benefit to the claimant that should serve as an offset in determining an appropriate condemnation award.

It remains to be seen whether the following pronouncement by the D. Lobi panel will serve as an important marker in Karan: “To be sure, beach replenishment serves the greater public good of flood protection, but its direct benefit to the [oceanfront] Club is almost incalculable.”

-Tim Mulvaney

Teaching Fracking, Part II: Resources for Unconventional Gas and Hydraulic Fracturing

As 2012 draws to a close, I offer a partial list of some of the best resources for learning, teaching, and writing about drilling and fracturing for natural gas. 

1. Opinion section:  The biggest threat posed by domestic natural gas may be the displacement of renewables and the associated demise of climate solutions.

Abundant natural gas--the cleaner fossil fuel in terms of greenhouse gases and conventional pollutants--may ultimately lead to the demise of climate goals.  In 2012, when the International Energy Agency reported that the United States would become "self sufficient" in energy by 2035 and would possibly become the world's largest producer of oil, its Chief Economist, Faith Birol, also issued dire warnings:  Because of the U.S fascination with shale gas and oil, and our new knowledge that we have abundant, accessible unconventional fossil resources, we are ignoring the climate problem and forgetting the urgent need to build renewables.  "Climate change has been slipping down the agenda," he said. "It is not having a significant impact on energy investors."  Birol concluded: "I don't see much reason to be hopeful that we will see reductions in carbon dioxide. . . . We have seen more carbon dioxide emitted this year." The warning, then, is that the United States will remain blindly optimistic as we wallow in a sea of abundant oil and gas--so blind, in fact, that we will ignore our shrinking coastlines and vanishing species. The solution is not to ignore or stop extracting gas:  It has displaced coal at a rapid rate and has reduced energy-related greenhouse gas emissions in the United States; it's also cheap.  But we must continue building renewable generation at a rapid rate; natural gas is supposed to be a bridge to something more sustainable, and if we miss that essential point, we will fail to address what may be the greatest threat to the health of our planet.  The abundance and cheap price of gas--particularly in the absence of a carbon tax to accurately price the impacts of fossil fuels--could make it increasingly difficult to maintain a renewable energy focus. This is unfortunate, particularly in light of the fact that natural gas and renewables make a natural pair; gas plants, which can start up rapidly, are a key back-up source for intermittent renewables.

2.Section on natural gas and environmental impact "facts" (Warning: the facts in this area change quickly).  2a. the numbers

International Energy Agency 2012:  The United States is likely to be self sufficient in energy by 2035 and a major exporter of energy, whereas many other countries will import from us.  This does not make us "energy secure," however, as fuels, like other goods, are part of a global market. As the IEA reminds us, "No country is an energy 'island' and the interactions between different fuels, markets and prices are intensifying." (This report is worth getting from your library.)

Energy Information Administration 2012: "As of January 1, 2010, total proved and unproved natural gas resources are estimated at 2,203 trillion cubic feet," but this number changes frequently and is much disputed.

By 2035, the EIA projects that shale gas will account "for 49 percent of total U.S. natural gas production."

There are approximately 16,346 shale gas wells in the Barnett Shale of North Central Texas. There are approximately 1,483 producing gas wells within the City of Fort Worth.

Energy companies have registered approximately 33,277 well sites on FracFocus, the website on which companies voluntarily report chemicals used in hydraulic fracturing.

In 2010, the states with the largest shale gas production numbers included Texas, Louisiana, Arkansas, Oklahoma, and Pennsylvania.

2b. The global gas situation

On December 13, 2012, the British government decided to allow hydraulic fracturing for natural gas within the United Kingdom. 

In September 2012, South Africa lifted a ban on fracturing in one region.

In the following Energy Information Administration map, red areas have been studied most closely.

2c. Useful risk assessments from the United States

One of the most comprehensive assessments of the effects of drilling and fracturing:  New York Department of Environmental Conservation Revised Draft Supplemental Generic Environmental Impact Statement on the Oil, Gas, and Solution Mining Program (exploring most of the effects but ignoring the impacts of seismic testing to locate gas underground).

One of the best, brief summaries of drilling and fracturing risks begins on page 3 of the U.S. Fish and Wildlife Service document "Summary of Oil and Gas Development, Hydraulic Fracturing and Issues Associated with Conservation of U.S. Fish and Wildlife Service Trust Resources in the Southwest Region."

The Government Accountability Office, in two reports that examine the scientific studies to date, has concluded that we cannot currently quantify fracturing risks from the sparse data currently available.

Rozell and Reaven, Water Pollution Risks Associated with Natural Gas Extraction from the Marcellus Shale (estimating the likely total volume of spills). 

Wisconsin Department of Natural Resources, Silica Sand Mining in Wisconsin (describing the environmental  impacts of mining sand for fracturing proppant).

Two Duke studies:  potential methane contamination of groundwater from drilling and fracturing, and potential contamination of groundwater with brine (naturally produced salty water from formations).

Reply by Richard Davies arguing that methane contamination is unproven.

Duke scientists' reply to Davies.

EPA Pavillion, Wyoming report on potential contamination of groundwater with fracturing fluids.

For excellent information on chemicals in fracturing, see the EPA's Proceedings of the Technical Workshops for the Hydraulic Fracturing Study: Chemical & Analytical Methods.  See also the Congressional report "Chemicals Used in Hydraulic Fracturing."

The EPA has evaluated the potential impact of fracturing wastes on microbial processes in wastewater treatment plants.

The U.S. Fish and Wildlife Service has a brief discussion of the impacts of natural gas drilling and fracturing on fish and wildlife.

Earthquakes caused by underground injection control wells for the disposal of oil and gas wastes:  see Ohio Department of Natural Resources Youngstown report and the Oklahoma Geological Survey report by Austin Holland.

The Texas Water Development Board has a good report on water use in the Barnett Shale. 

WorldWatch has a good comparison of lifecycle studies addressing methane emissions from gas development.

2d. Recent regulation and associated legal action

Federal

EPA's final Clean Air Act rules: NSPS for volatile organic compounds from newly fractured and refractured wells; NSPS for sulfur dioxide emissions from gas processing plants and for VOCs from various compressors and storage vessels used in oil and gas production.  The American Petroleum Institute claims that the rules will be very expensive and will slow down unconventional development--a familiar industry response, of course, to most environmental regulations.

On December 11, 2012, seven states issued an intent to sue EPA for failure to control methane from oil and gas production.

BLM has proposed fracturing rules for federal and Indian lands, which would require, among other things, testing mechanical integrity of the well before fracturing to ensure that the well can withstand fracturing pressures, continuous monitoring of well pressures during fracturing, reporting of chemicals used, and reporting of total volumes of water used and quantities and methods of waste handling and disposal.

Hydraulic fracturing using diesel fuel--a practice that still occurs--is not exempt from the Safe Drinking Water Act, unlike other types of fracturing. The EPA has issued draft guidance for this type of fracturing, which would require, among other things, that permit writers consider potential interaction of the fuel with the formation into which it is injected as well as potential reactions that could occur after injection, and a plan for cementing casing (lining) into a well that would "ensure proper cement design and volume."  The guidance would also more broadly define diesel to include kerosene, home heating oils, automotive diesel fuel, and others.

In October 2011 the EPA initiated a Clean Water Act rulemaking process "to set discharge standards for wastewater from shale gas extraction."

The EPA is continuing its study of the impacts of hydraulic fracturing (primarily fracturing in shales) on water and is hosting a number of technical roundtables and workshops in 2012 and 2013.

State and regional

The New York Department of Environmental Conservation has issued proposed rules for drilling and fracturing with high volumes of water.  The public comment period ends on January 11, 2013.

Texas, which has long resisted revising most of its oil and gas rules despite a major rise in shale gas well numbers, has proposed revisions to its casing regulations and other rules.  The Railroad Commission (the state's oil and gas agency) also has, as required by the state legislature, issued rules requiring the disclosure of chemicals used in fracturing.

Oklahoma, Mississippi, and a number of other states also have adopted disclosure rules.

Montana changed some of its oil and gas rules to address fracturing, and North Dakota has proposed a similar revision. 

Colorado (follow “Rules” hyperlink in blue menu to the left of the page, then follow “2008 Rulemaking” hyperlink, then follow “COGCC Amended Rules Redline”), Ohio (particularly for urbanized areas), Pennsylvania (through several different acts and rulemakings), and West Virginia have made some of the most comprehensive changes to their oil and gas codes.

The Delaware River Basin Commission proposed somewhat extensive rules for well site development, drilling, and fracturing within the Delaware River watershed, but the rules have not yet been finalized.  New York's attempt to require a NEPA environmental impact statement before the rules were released failed due to a lack of standing, but the judge made it clear that once the rules were finalized, the state could probably return to court.  2012 WL 4336701.

Preemption:  Pennsylvania attempted to remove municipalities' authority over many aspects of drilling and fracturing by requiring them to allow the practice in most zones, in exchange for more protective state environmental regulation.  The Commonwealth, which had long refused to impose a severance tax on gas, also provided that municipalities could charge an unconventional gas well fee, the proceeds of which would go to a central fund that would be redistributed to fund road infrastructure, environmental clean-up, and other projects. A divided Commonwealth Court of Pennsylvania found that the Act essentially forced municipalities to violate their comprehensive plans and declared portions of the Act null and void.  The state's supreme court has heard oral argument. Robinson Twp. v. Commonwealth of Pennsylvania, 52 A.3d 463 (Pa. Cmwlth. 2012).

Colorado's governor instituted a task force on municipal-state relations in regulating natural gas. The task force issued recommendations, but the state has threatened to sue the town of Longmont, which banned fracturing.

Ordinances in Fort Worth,Texas and Farmington, New Mexico (see Chapter 19, Oil and Gas Wells) provide examples of relatively comprehensive local ordinances that address drilling and fracturing.

Several New York courts have allowed towns to ban fracturing despite generally preemptive language in the state's Oil, Gas, and Solution Mining Law, which supersedes "all local laws or ordinances relating to the regulation of the oil, gas, and solution mining industries."  N.Y. ENV. LAW § 23-0303. Municipalities wishing to avoid preemption must apparently write their gas regulations as land use laws that happen to limit (or ban) gas development--these, the courts have said, don't "relate to the regulation of . . . gas" but rather to the regulation of land use.   See, e.g., Anschutz Exploration v. Town of Dryden (NY 2012).  For more discussion of federalism in fracking, see my other post.

The University of Colorado's Intermountain Oil and Gas BMP Project collects regulations from several states, as does FracFocus. FracFocus adds some editorialization to its regulatory summaries, however, arguing, "The best-suited regulators of hydraulic fracturing are the states." The website is run by the Ground Water Protection Council, a nonprofit association of state regulators, which has spoken out against federal regulation of fracturing in certain areas, and the Interstate Oil and Gas Compact Commission, which receives industry funding for certain events and more clearly opposes federal regulation of fracturing and oil and gas development.

Common law:  For a good summary of fracturing litigation, see Keith Hall and Lauren Godshall's article in "The Advocate." The Texas Supreme Court in Coastal Oil & Gas v. Garza held that Garza could not obtain trespass damages for fractures into a formation that drained the gas from the formation; the issue remains open in other states.  Plaintiffs in Pennsylvania have alleged nuisance, negligence, trespass, and strict liability, among other claims, as a result of contamination from drilling and fracturing. The courts, which have not yet had the opportunity to reach the substance of these claims in the cases I'm aware of, have noted that it is not yet clear whether gas drilling is an abnormally dangerous activity in Pennsylvania.  See, e.g., Fiorentino v. Cabot, 750 F.Supp.2d 506 (M.D. Pa. 2010).  Federal district courts addressing cases that arise in Arkansas also have not yet determined whether fracking is abnormally dangerous.  See, e.g., Tucker v. Southwestern Energy Co., 2012 WL 528253 (E.D. Ark. 2012).

2e. Data on enforcement of oil and gas and environmental laws at well sites, and types of violations

The Arkansas Public Policy Panel found a number of stormwater violations at Fayetteville Shale sites.

The Pennsylvania Department of Environmental Protection's compliance database allows you to create spreadsheets of all violations at Marcellus Shale sites (select "Oil and Gas Compliance Report" from the menu on the right.  From the dropdown menu, select "unconventional only" "Yes.").

The New Mexico Oil Conservation Division has a spill database and a list of oil and gas pits that have caused underground water contamination.

I've begun to try to collect and analyze data but am still in the very early stages.

2f. Fracking theory

Professor David Spence, University of Texas, has a great piece on federalism in fracking, arguing that many of the effects are local and that for impacts that don't cross state lines, local control is generally good. 

Professor Michael Burger has an excellent reply to Spence forthcoming in PENNumbra.

In an op-ed, Professor Jody Freeman has argued for implementation of federal fracturing standards with a cooperative federalism approach.

I'm working on a piece that argues that when regulations are written, rule writers balance the cost of regulation against anticipated harms with a certain scale of activity in mind, and they fail to anticipate or automatically account for needed regulatory changes when scale rapidly changes, as has occurred with drilling and fracturing.  Agencies and regulations need to better project scalar change and include automatic provisions for seamless transitions to new scales, including automatic increases in agency staffing and provisions to address potential threshold and interactive effects as activities expand in scale.  I'll post this on SSRN soon and will welcome critiques and suggestions.

3. Best practices and needed regulatory changes

The Marcellus Shale Advisory Commission Final Report made a number of recommendations for changes, such as increasing civil penalties for well violations and improving various casing and substantive requirements, many of which Pennsylvania adopted in the disputed Act 13 (House Bill 1950).

The Secretary of Energy Advisory Board Shale Gas Production Subcommittee 90-day report recommends, among other things, disclosure of fracturing fluids, not using diesel in fracturing and reducing the use of diesel in drilling and fracturing equipment, and "managing short-term and cumulative impacts on communities, land use, wildlife, and ecologies."  The final report makes similar and more detailed recommendations.

The State Review of Oil and Natural Gas Environmental Regulations--a public-private group that took on the responsibilities of a predecessor group after the EPA exempted most oil and gas wastes from Subtitle C of the Resource Conservation and Recovery Act--has guidelines for hydraulic fracturing and drilling.  It has conducted a number of voluntary reviews of states' hydraulic fracturing regulations (for the states that have agreed to be reviewed) and has recommended improvements in regulation and enforcement.

The American Petroleum Institute has a number of standards and guidelines for drilling and fracturing, including, for example, "Water Management Associated with Hydraulic Fracturing."

This is only a partial list, but I hope that it's useful.  Happy holidays to all.

--Hannah Wiseman

Rethinking Sustainable Development, ELC Essay #11: Sustainability is the Answer--Now What was the Question?

On September 16, 2012, the National Ice and Snow Center announced a record-breaking loss of Arctic sea ice. That day also happened to be my 47th birthday. In my relatively short life, the Arctic has changed beyond imagination—and more change is coming. We have a growing litany of climate ills—wildfires, heat-waves, droughts, floods—each perhaps not directly attributable to climate change, but collectively harbingers of the emerging Anthropocene. Yet, rather than prompting any urgent response, each new climate disaster leaves us, in the words of Bill McKibben, “in the same position we’ve been in for a quarter-century: scientific warning followed by political inaction.” The explanations for our impotence in the face of overwhelming evidence that human activities are destroying the very fabric of life on Earth tend to focus on economics—too many powerful actors are making too much money from business as usual and therefore use their power to prevent change.

Without really challenging this basic outline, this essay suggests that this power-based narrative is incomplete. It leaves out the role that law and legal systems play in obscuring this power dynamic. The system by which we structure our decisions in a democratic society—the rule of law itself—actually prevents us from perceiving or confronting this more fundamental power conflict.

It is all too easy to dismiss sustainability as a contentless marketing label lost in a fog of meaningless verbiage. The marketplace of “sustainable” practices, technologies, and gadgets contains far too many gimmicks intended to maintain the cherished illusion that sustainability will just somehow “happen.”  As a marketing ploy, sustainability encapsulates our fantasy a sudden technological breakthrough that will allow 7 billion, or 10 billion humans to live the typical American consumption-based lifestyle, only without destroying the Earth in the process. This belief that an external, game-changing solution will save the day is a dangerous fiction. There can be no sustainability when we start with the existing economy and then try to graft change onto its margins. If we needed proof that this approach has failed, is failing and will continue to fail, we need look no further than the rate of melting sea ice—which continues to accelerate despite decades of high-level international climate negotiations.

If we heed climate change’s call, we might begin to rethink sustainability—to take seriously its mandate to maintain, support, and hold. If so, sustainability can offer us a set of organizing principles by which to restructure the core, yet largely invisible, functions of production and transportation that precede the consumption on which so much current sustainability rhetoric focuses. To change these less visible aspects of society, we need to mobilize the power of the law as a framing institution. We can, if we choose, arrange our infrastructure and define our markets to cause sustainable outcomes. Embracing sustainability as our primary framing narrative would create space for new thinking about the ways to balance the power of the state, the market, and civil society.

Getting from here to there may be daunting, and sustainability may seem a slender reed on which to pin our hopes. Yet, the fundamental choices about balance that are sustainability’s essential feature have the capacity to offer us a new vision of the basic social contract—one that could transform human life on planet Earth. To make that happen, we do not need perfect conceptual clarity about sustainability—core indeterminacy is, after all, a definitional part of post-modern existence. Instead, we need to embrace sustainability’s potential for multiple, independent generation of ideas. A range of social, cultural, and political forces seek to frame sustainability through multiple disciplinary lenses. Each frame offers a different conception of the problem and its component parts. From this base, each approach proposes an alternative array of solutions along with the tools by which those solutions might be implemented.

This contest between alternative frames for sustainability has both declarative and constitutive significance. Framing does more than shape how we analyze the sustainability of any particular choice—which variables must be assessed, weighted, and evaluated; and which can safely be ignored. Framing also shapes the process by which we define what constitutes a choice (or a variable) in the first place. Once we acknowledge that framing matters—that disciplines have blind spots and path dependencies—it becomes clear that the very articulation of sustainability is itself a consequence of inevitable disciplinary limitations.

This insight is as liberating as it is daunting. It means that by posing our questions differently we might begin the process of uncovering hidden possibilities, thereby paving the way for a new understanding of the sustainability challenge and opening space for new responses. Perhaps a good beginning would be to shift from a conception of “the environment” to “Mother Earth”—which might help us rediscover a deeper, more profound relationship with the world we are rapidly recreating than the consumption-focused conception that currently predominates.

The future of our children, our species, and our planet hinges in the balance. The window for change is narrow—and closing. Unless we transition away from our consumptive, single-use society into a sustainable one, we will doom our children (as well as our future selves) to life in an increasingly impoverished, depleted, and inhospitable planet. 

-- Rebecca M. Bratspies

Rethinking Sustainable Development, ELC Essay #10: What Does Sustainability Mean in the Age of Climate Change?

Sustainable development traditionally demands that we meet future generations’ needs without sacrificing the current generation’s needs. Since climate disruption already promises to compromise both current and future generations’ needs, climate disruption demands a refinement of our understanding of sustainable development. I would suggest that sustainable development demands approximating this ideal of meeting current and future generations’ needs as best we can, by minimizing damage to our attempt to meet the basic needs of both future and current generations. Concretely, this requires a transition to a zero-fossil-fuel economy as quickly as we can, while generating (probably through a carbon tax or sale of allowances) sufficient revenue to fund adaptation both here and in developing countries that will bear the most serious consequences. A fossil-fuel economy is not sustainable, because the resources it relies upon are not renewable and because carbon dioxide harms this generation and threatens to destroy future generations. Herman Daly’s definition of sustainability as demanding harvesting of renewable resources that do not exceed the rates at which these resources replace themselves probably needs revision in light of climate disruption. For resources that we need as carbon sinks or that are already dangerously depleted, we may need to embrace growth in the resource (when possible), rather than a steady state. 

In the United States, the political constraints on moving toward zero fossil fuels appear so formidable that it’s hard to think about a key question this leads to:  What does sustainability teach us about managing the costs of a transition to zero fossil fuels? But it’s a philosophically important question and will become practically important even in this country if the politics change significantly. First, the concept of sustainable development rules out delaying a transition to zero fossil fuels because of undifferentiated concerns about costs. For that reason, cost-benefit analysis does not help much in analyzing a policy’s sustainability. Sustainability concerns itself with meeting people’s basic needs, however we define that, and embraces sustaining quite significant decreases in surplus wealth if necessary to meet the basic needs of future generations (or this one). At the same time, sustainable development requires some attention to easing transitional impacts on low-income people and to ameliorating impacts associated with dislocating workers in the fossil-fuel industry, even if the green economy generates more jobs than we lose. 

My own work has been primarily focused on the problem of operationalizing sustainability (or something like it) when crafting pollution control policies and other policies affecting development (e.g. financial regulation).  Sustainability demands changes in the focus, goals, and methods we bring to bear on almost all areas of law. It requires a focus on the shape of change over time, rather than near term costs and benefits. It suggests a goal of avoiding systemic risk, not achieving efficiency at the margin. And it invites an analysis of economic incentives that aims at efficacy in avoiding systemic risk, by asking how government actions will influence the actions of boundedly rational institutions and individuals responding to incomplete information. 

The principal advantage of this elaboration involves its ability to directly address the pathologies emanating from neoclassical law and economics and to make the sustainability concept meaningful in other areas of law that influence development. One might argue that the deregulation of the financial industry advanced sustainable development, as it precipitated a rapid decline in carbon emissions as the economy collapsed. I would reject that conclusion on the grounds that it harms our efforts to meet current basic needs. We need to maintain basic social as well as environmental systems even as we drastically change the economy’s material basis and financial structure, as the goal of avoiding systemic risks implies. The economic dynamic concept described above (and elaborated in more detail in The Economic Dynamics of Law (Cambridge University Press 2012)) captures the change in thinking about how government operates that we will need to move us toward sustainability in the era of climate disruption.  

-- David M. Driesen

Rethinking Sustainable Development, ELC Essay #9: Climate Sustainability Through Ethics, Economic, and Environmental Coordination

Sustainability can become more than the sum of its parts by transcending its literal meaning to become the synergistic trampoline for ethical, economic, and environmental resilience and coherence. From sustainability of forests and fish stocks  to sustainability of future generations and  a call for fusion of ethical, economic, and environmental understandings, complex systems are increasingly challenging humanity to adapt both language and governance. It makes little sense to speak of literal sustainable extraction of ancient water from aquifers nor of fossil fuels. The diplomacy that emerged from Rio in 1992 sought to bind a mindfulness of ecological carrying capacity with equitable use of resources to alleviate poverty. To date, both environmental and development communities find sustainable development lacking. Yet, time is running out to rename policy approaches without genuine follow-through in the form of environmental and human security. The international community has the capacity to embrace sustainability as an overarching framework for coordinated ethical, economic, and environmental decision-making. It is not the only means by which to proceed but represents one plausible response to increasingly disconnected fields that impact one another. A sensible first step down this coherence path is to recognize good governance as crucial to achieving sustainability and climate cooperation.

How do we calibrate efforts to build a sustainability arc that can enhance human and environmental integrity? High-level forums for inclusive meaningful dialog can enhance network creation and expansion into new public-private, local-regional-international, and a myriad of interdisciplinary patterns of cooperation. Complex adaptive systems and good governance principles can inform decision-making that results in rule of law enhancing predictable, efficient, and fair outcomes. The rule of law depends upon accessible, independent, and efficient decision-making. None of these processes is rapid or inexpensive. Yet, they can be rightly called investments and folded into respected economic climate-energy-water recommendations when decision-makers use sensibly long-term time horizons for efficiency analysis and recognize the value of equity, ecosystems, and other important yet not easily measured public and private goods.

As Dan Taylor has note, “the answer still is Gandhi’s. We know more clearly the processes for how to move toward his vision that improving people’s wellbeing is grounded in their mobilization, and that vision can be summed up as: begin simply, be true to process, the means are the ends, grow capacity in the partnership.” Sharing best practices from human rights and environmental law may provide a synergistic catalyst for ethics, economic, and environmental coherence.

International human rights law offers a robust justice framework with which to address climate change. Applying human rights thresholds to climate change may catalyze sustainability cooperation. Decisions informed by an understanding of climate justice can bring together dialogue from development, human rights, environment, trade, and business communities. Energy-food-climate security can be discussed as the interwoven crisis that threatens humanity rather than as unrelated dilemmas. What appear to be fragmented trade, environment, and human rights regimes can be sustainability framework building blocks.

Challenges to transitioning to greater efficiency and renewable energy use include the degree to which fossil fuel is embedded in the economy and the degree to which pricing carbon is a prerequisite for substantial private sector investment in environmentally sound innovation and participation in diffusion. A good starting point would be for trade and environment regimes to set clear criteria for what constitutes environmentally sound innovation based upon ongoing life cycle analysis that is mindful of science and equity. Network coordination can facilitate breakthroughs in trade and environment relations and build upon best practices.

With a background in economics, human rights, and environmental law, I haveparticipated in the drafting process for the UNFCCC, Agenda 21, and the Rio Declaration. More recently, I was a member of UN, IGO, and NGO delegations to the climate negotiations. It is my understanding that substantive life cycle analysis, procedural capacity building, and cultural sensitivity remain open issues. Bringing together a wide range of perspectives in a catalytic manner can converge insights that resonate. A collage of narratives from ecology, ethics, economics, and environmental law may be able to galvanize collective action—with or without a single shared sustainability vision.    

Individuals have gained subject status at international law, and civil society voices are not only being heard but responded to. The quiet desperation of humanity that Thoreau spoke of has become a powerful force—potentially capable of incentivizing climate coordination. Irrespective of the rhetoric with which we converse, we need to figure out how to come together as a global community that feels its collective loss enough to cooperate (both quickly and effectively) to achieve a sustainability arc that enhances ethical, economic, and environmental cooperation.

-- Elizabeth Burleson

Rethinking Sustainable Development, ELC Essay #8: Social Equity and Environmental Policy

Most contemporary definitions of sustainability incorporate key principles from a 1987 report (commonly referred to as the Brundtland Report) by the World Commission on Environment and Development. In addition to the notion that sustainability necessarily involves a commitment to intergenerational equity, the Brundtland Report emphasizes the interdependence of environmental quality, social equity, and economic policies. International documents since the Brundtland Report have also linked income inequality and environmental degradation. For example, economic policies designed to mitigate poverty by increasing the production of goods may result in the overuse of natural resources, leading to an eventual decline in both natural resources and income levels. Today, examples of this relationship appear in the climate-change context. For instance, as the climate changes, some populations are forced to use ecologically fragile land for agricultural purposes. The decline in land quality further contributes to income inequality, and the agricultural practices further degrade the land.

This link between poverty and the environment may sometimes be empirically accurate, but it may not be true in all cases. For example, it may be the case that people with fewer economic resources tend to conserve the resources they have; they may be better at using less and recycling the waste they generate.

If, however, we assume that this link is empirically true often enough—or that environmental policies simply should incorporate concerns of social equity—then the next question is how should governments at every level understand the relationship between income inequality and the environment for purposes of policy making. Even if we assume that the physical sustainability of the environment is a condition for social equity (or vice versa), we still need to define what social equity is in order to design policies that further it. In doing so, we necessarily identify who we think the winners and losers of environmental policies should be.

So, what exactly is social equity and what does it require in the context of environmental policy making? In the United States, the environmental justice movement has long stressed that social equity requires the fair distribution of environmental benefits and burdens, an approach now reflected in U.S. law and policy. The idea that social equity necessarily involves the distribution of something is relatively straightforward, but the idea of fairness is less clear. How, for example, can environmental policies fairly distribute carbon emissions worldwide?

Resolution of this question requires a distributive rule that reflects a normative principle of equality. Theories of social justice supply various options. In the international context, policy makers could decide to allocate emissions equally, granting governments a per capita share. Or, policy-makers could adopt a prioritarian rule that would grant the least advantaged societies a greater share than they would receive on a per capita basis to ensure that the economic losses incurred by these societies are relatively less than those incurred by more well-off societies. Another possibility is to ensure that all societies are guaranteed a level of emissions that will continue to meet their basic needs however defined.

Deciding what social equity requires raises other questions as well. Some questions help identify how far considerations of equity extend. For example, should policy-makers consider the effects of climate change on both humans and nonhuman animals? Should they consider the effects on those outside their political borders? What about the consequences for future generations? Other questions involve the nature of the decision-making process. Should policy-makers attempt to create a fair process for environmental decision-making or simply attempt to reach fair results? In other words, do we evaluate the fairness of a particular decision by looking at how it was made (e.g., by evaluating levels of citizen participation and governmental transparency) or by assessing the consequences of the policy (e.g., by evaluating actual impacts to the environment and income inequality)?

Current definitions of sustainability address a few of these questions. As noted above, definitions of sustainability require consideration of a policy’s effect on future generations. In emphasizing the need to reduce poverty while protecting the environment, these definitions also appear to be consequentialist, or result-oriented—although proponents of environmental justice certainly recognize the need to incorporate democratic values into decision-making processes. The apparent resolution of these questions highlights an important tension in environmental policy-making, particularly in democratic societies. Liberal theories of justice often emphasize the importance of fair decision-making processes, rather than fair results, and resist adopting a particular conception of the good. On the other hand, definitions of sustainability contemplate results that are fair both in the present and in the future, and they appear to adopt a vision of the good that connects human welfare to environmental conditions.

Questions of social justice do not have easy answers, but we cannot ignore them. The international community apparently accepts the idea that social equity should be part of environmental decision-making. To make this a reality, we need to focus on how this can and should be done.

-- Shannon M. Roesler

Doha’s Contribution: Looking at non-quantifiable loss and damage

The eighteenth meeting of the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) was uneventful; nations primarily reiterated a general intent to negotiate post-Kyoto emissions reduction obligations at the next meeting. There was no major breakthrough in the earlier positions of major emitters; they merely agree to pursue new directions in future negotiations.

 Nevertheless, one important development occured at the Doha meeting. The COP adopted a report, "Approaches to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change to enhance adaptive capacity." [The Loss and Damage Report or the Report].

To date both UNFCCC and the Kyoto Protocol have focused on mitigation and adaptation. With respect to both actions, developed countries undertook financial responsibility to help particularly vulnerable developing countries. Since the COP meeting in Copenhagen, the focus on providing accelerated funding for both efforts increased; a new Green Climate Fund was established; the focus on adaptation funding increased. The Loss and Damage Report goes a step further and adds a new dimension to ongoing climate treaty negotiations. It provides a framework for discussing and negotiating loss and damage suffered by developing countries because of climate change, including non-economic loss. Some such loss or risks identified include climate-induced shifts in migration patterns, displacement of people, and other special vulnerabilities. The Report sets an agenda for the secretariat to organize an expert meeting and prepare a technical paper on the non-economic losses.

This is an important development, because it is an implicit acknowledgment that climate change will have serious non-economic consequences, particularly on special populations. It also begs a question that has been pushed to the background in the midst of concerns about the economic implications of climate change—how to value the invaluable? Loss of home, for instance. Of course, the Report recognizes this crucial question, but disappointingly subjects any progress on the issue to the availability of financing. Nevertheless, it is an important step in the correct direction, one that essentially should lead us to think—how exactly should we value climate mitigation efforts?

 --Deepa B--

Rethinking Sustainable Development, ELC Essay #7: Adaptive Management, Resiliency, and Why Sustainability Discussions Give Me a Headache

Climate change does not change our view of sustainability; it heightens the importance of sustainability thinking. The concept of sustainability is inextricably linked with ideas of planning and management. From an ecological standpoint, sustainability guides resource management—helping ensure that current use of a resource will not deplete the resource and that future generations (or even just future versions of us) will be able to use the resource as well.

Take the simple example of sustainable timber management. If we cut down all the trees today, we won’t have any trees available for timber next year. If we harvest timber in a way that leaves the soil vulnerable, we’ll make it even harder to have trees in the future. Therefore, when deciding how to manage the forest, we make a plan that involves cutting down only some of the trees. We look at water, soils, and nutrients to determine what actions will protect our desire to cut down more trees in the future. We consult scientists and economists and take ecological and social considerations into account. And then we realize that our simple sustainable forest example is not really so simple. To meet our goal of sustainable timber harvest, we must also adopt an approach that considers many factors and is open to change and adaptation as inputs change or our information about (understanding of) the system grows. 

Sustainable timber management offers a glimpse into the complexity of thinking broadly about sustainability, yet climate change makes sustainability analysis even harder. Keeping with our forest example, climate science tells us that we are likely to see even greater changes in water regimes, nutrient availability, and species richness. Things are going to get harder because our earlier predictions about the future were wrong. Things are going to get harder because our current understanding of the natural world is still wrong. Things are going to get harder because all of our natural and social systems will be facing increased stress.

Sustainability thinking necessarily involves both (1) thinking about the future and (2) taking an adaptive approach. Sustainability as a concept and approach means considering the future health of ecosystems and seeking to maintain functioning systems. If we seek to sustain anything, we must establish some projections of what the future conditions will be. We need to determine what prescriptions are needed. Climate science (along with many other fields) tells us that the world is a changing place and that the future is not always easy to determine.

Adaptability is what makes sustainability effective in an era of climate change. Mechanisms like adaptive management enable us to revisit policies and programs as circumstances change. A call for embedding ideas of adaptive management in our environmental laws is not new. Yet, we have only been minimally successful on that front. Much of law, especially laws regarding environmental protection and property, are static. Our methods of land conservation, for example, have focused on park-like protection where we set land aside for public ownership or protect it with conservation easements. We set static rules regarding the land, often adopting a hands-off approach and hope that will serve future needs. This means we sometimes get part one of the equation right—we think about the future. But we leave off part two. We don’t create mechanisms to reexamine our rules or management strategies. In our changing world, we are too focused on fixed points.

Breaking free from current practices and norms is not an easy task.  the ecological concept of resiliency, however, may help us approach environmental protection from a new direction. Resilience is the capacity of an ecosystem to respond to perturbation or change. High resiliency is a function of both an ability to resist impacts and to recover quickly from disturbances. Importantly, a resilient system is not one that continues to look the same throughout the ages but one that responds and reorganizes while retaining function. Environmental protection should not be an effort to retain ecosystems and amenities in their current state but should promote resiliency. Healthy functioning systems are not wedded to a specific external appearance. Working towards resiliency means assessing what the thresholds of a system are and how close we are to those thresholds. Thinking of adaptation in resiliency terms goes beyond assessing whether humans will be able to respond to the coming climatic changes and considers our capacity to manage resistance and influence resilience. This shift towards resiliency thinking is a fundamental component in updating our principles of sustainability in an era of climate change.

-- Jessica Owley 

Rethinking Sustainable Development, ELC Essay #6: It's the Biosphere, Stupid

Let’s be honest: there is nothing sustainable about the way humans are using the resources of the planet. By almost any measure, we are exceeding the earth’s carrying capacity. Human population, currently numbering 7 billion and projected to hit 9 billion by mid-century, coupled with a rapidly rising per-capita consumption rate underlie all of the other present drivers of global change. Though humans make up less than one half of a percent of the global biomass, we use up 25-32% of the earth’s net primary productivity. Humans have converted 43% of land to agricultural or urban landscapes, with much of the remaining natural landscape fragmented by roads and utilities. This exceeds the physical transformation that occurred at the last global-scale critical transition when 30% of Earth’s surface went from being covered by glacial ice to being ice free. With extinctions rates already 100 to 1,000 times background rates, and projected to increase dramatically in response to anthropogenic global warming, humans are literally altering the course of evolution.

Speaking of climate change, atmospheric concentrations of carbon dioxide have increased by 39% since the Industrial Revolution and, at approximately 400 parts per million (ppm), are now the highest in fifteen million years. We are adding 2.2 ppm per year. At this rate, worldwide carbon dioxide levels will substantially exceed 1,000 ppm by the end of this century. The level of heating that would result from this degree of concentration would be beyond anything seen during any period in which Earth supported complex life. To have even a 50-50 chance of holding temperature increases to the 2°C target agreed to in the Copenhagen Accord, atmospheric concentrations cannot exceed 1 trillion tons. We are already halfway there, and the rate of increase is accelerating. To limit emissions to 1 trillion tons, three-quarters of fossil fuels must be left in the ground as nations switch to renewable energy sources. 

And rising temperatures with devastating extreme weather events aren’t the only problem. The oceans, which have been soaking up a lot of the carbon dioxide and masking the full impacts of global warming, are more acidic than at any time in the past 300 million years. Acidification can affect many marine organisms, but especially those that build their shells and skeletons from calcium carbonate, such as corals, oysters, clams, mussels, snails, and phytoplankton and zooplankton, the tiny plants and animals that form the base of the marine food web. Three of the five largest extinctions of the past 500 million years were associated with global warming and acidification of the oceans. 

Nor is carbon the only threat to the oceans. According to the UN Food and Agriculture Organization, over 70% of the world’s fish species are either fully exploited or depleted. Further, nitrogen and phosphorous loadings from fertilizer runoff and fossil fuel combustion have created over 400 “dead zones” around the globe. More than 235,000 tons of food is lost each year to hypoxia in the Gulf of Mexico alone. The oceans are in crisis. We have only decades left before the damage we have inflicted on the oceans becomes permanent.

Without belaboring the obvious, the point is that sustainability is a physical concept grounded in science and bounded by the very real limits of the planet’s life support systems. The danger is not that we will run out of oil or natural gas or other stuff but that we will run out of the assimilative capacity of the biosphere and trigger a planetary scale shift in biological systems. It won’t be the end of the world, but it could well be the end of human civilization as we’ve known it.

The problem with thinking about sustainability as an economic concept is perfectly illustrated by the Norway-UK Energy Partnership for Sustainable Growth calling for accelerated oil and gas development in the increasingly ice-free Arctic. British Prime Minister David Cameron and his Norwegian counterpart Jens Stoltenberg called the deal a prime example of sustainable development that will insure the drilling is done in a “safe and environmentally sensitive” manner; provide a “long term gas supply;” create “good jobs;” and generate income for “investment in renewable energy.” The Arctic, of course, has just experienced a record loss of sea ice this past summer. “Sustainable” is not a word scientists would use to describe what is happening in the Arctic. Rather words like “death spiral” and “global disaster” are closer to the mark. There is nothing sustainable about chasing every last molecule of fossil fuel on the planet. “All of the above” is not an energy policy; it’s a bumper sticker. 

It’s the ninth inning; we’re behind; there are two outs; and we’re down 0-2 in the count. With his re-election President Obama has one last at bat. A home run would be a carbon tax sending a strong price signal to the market and an aggressive program of investment in clean energy based on a strong national Renewable Electricity Standard as part of a robust plan for economic recovery.     

-- Patrick Parenteau 

In Case You Missed it: Week of December 1 to December 7

- The Supreme Court heard oral argument in Decker v. Northwest Environmental Defense Center and Los Angeles County Flood Control District v. NRDC.  Both cases involve stormwater regulation under the Clean Water Act.

- The Supreme Court decided Arkansas Game and Fish Commission v. U.S. Army Corps of Engineers.  It held "simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection."

Rethinking Sustainable Development, ELC Essay #5: The Sustainable, Inevitable Exploding City

The global urban footprint will expand from two to five times what it is today by 2050. This is in part due to the estimated population growth of 2.4 billion between now and 2050, most of which will occur in urban areas. Urban areas also have a persistently declining density in both developed- and developing-world cities. As a result, an extensive new infrastructure will be built in the twenty-first century that will exceed the size and scale of all previous city building.  The dismal fact looms:  our cities are exploding, inevitably.

Making the inevitably exploding city of the 21st century sustainable should be the cornerstone to long-term conservation and adaptability efforts to address climate change. It only makes sense that an environmental problem derived from human development revisit the source of the problem. Consider: transportation is a major source of greenhouse gas emissions, as are the construction and operation of residential and commercial buildings; land-use change resulting from city growth will also increase greenhouse gas emissions, through acts such as deforestation; and increased building stock will drive greater electricity use. Sustainable solutions to reducing greenhouse gas emissions in exploding cities will require equal parts pragmatic policy, legal tools, and a new narrative of development. Here is what this approach might look like:

Policy. To accept the exploding city as inevitable does not mean we stop trying to improve city form and increase density, but it does mean we move beyond efforts simply to contain growth of the urban footprint. For instance, California’s approach to the transportation sector has been a “three-legged stool” of greenhouse gas emissions standards for new model vehicles; low-carbon fuel standards; and land-use policies intended to reduce vehicle miles traveled. As a second example, building standards must be changed to achieve two ends: reduce climate emissions from the operation of buildings and adapt to a changing climate. To wit, Amory Lovins once famously grew a banana tree in a well-insulated hothouse in the middle of a Colorado winter with little heating. Similarly, we can substantially reduce buildings’ resource demands within the scope of existing technology: we must deploy it in this generation of buildings that will redefine human habitation.

Law. Cities must be places people want to live. Great places are not built as a monolith but by empowering local communities in megapolitan regions to build communities in their images. In developed countries, this means advancing sub-local government structures, which I have called “legal neighborhoods” to service sub-local needs, while still using local government to address regional issues. In developing countries, it means advancing concepts such as Brazil’s City Statute, which, broadly speaking, seeks to bring its slum areas, or favelas, into civil society; seeks to bring both social and environmental justice to those communities; and allows those communities to participate in the fruits of cities’ developments. Densely-settled environments must become more than merely tolerable and more than a place for economic opportunity: they must become the places people would choose to live over all other choices. The legal and political tools must make this choice evident.

Narrative. Sustainability’s narrative must move beyond its famous definition from the Brundtland Commission as “meet[ing] the needs of the present without compromising the ability of future generations to meet their own needs.” In the context of the exploding city, I propose a “dwelling ethic.” A dwelling ethic, as I see it, incorporates the “land ethic” approach of Aldo Leopold, which he stated “enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land,” with the teachings of Martin Heidegger that construction must be for “dwelling,” or long-term inhabitance, not just “building,” a consumerist approach to the physical environment.  To achieve Leopold’s vision for the land in an age of exploding cities, we must decide to dwell, as Heidegger would say, as if we intended to stay put—in this house, on this planet—for some time to come. Such an ethic is of particular importance in this, humanity’s most peripatetic age.

-- Stephen R. Miller