Environmental Law Prof Blog

Changes at the NRC

For those following the Yucca Mountain controversy, nuclear energy policy, and the fascinating administrative law story of the NRC:  last week, Allison M. Macfarlane, a geologist who is considered an expert in the back end of the fuel cycle, was approved by the Senate as the new chair of the Commission.  She follows Gregory Jaczko, who was instrumental in halting the Yucca Mountain Project and who resigned in May.  Any predictions about what the new chair will bring?

-Emily Meazell 

A Puzzling Cert Grant

Several weeks ago, the U.S Supreme Court granted cert in NRDC v. County of Los Angeles, a Clean Water Act case involving stormwater permit compliance.  This is just one of two stormwater cases the Court will hear this term (more coverage of that here), making this perhaps the most exciting term ever for stormwater geeks.  But granting cert in this case was a strange choice. 

Understanding the strangeness requires a little background.  Like most major metropolitan areas, Los Angeles County has a complex system of stormwater management infrastructure.  That infrastructure commingles stormwater runoff from many different public and private sources, conveying it into the rivers that drain the LA basin. The stormwater carries a wide variety of pollutants, and those pollutants contribute to chronic violations of water quality standards in the rivers and in the ocean.

In Los Angeles, as in many other developed areas, drawing a line between the man-made stormwater management infrastructure and the natural watercourses isn't always easy.  Most suburban and urban rivers are at least somewhat re-engineered, and the Los Angeles River, which flows much of its length through a lined concrete channel, is just a particularly notorious example of a common phenomenon.  Urban rivers tend to occupy a continuum of naturalness, with some flowing relatively freely and some buried and largely forgotten within subterranean culverts.  Often streams occupy multiple states at various portions of their length.  For example a stream might start in a somewhat natural state, flow into lined ditches or even buried culverts, and then reappear again, picking up additional stormwater discharges all along the way.

That complexity appears to have generated the cert grant here.  At one point in its opinion (authored by Judge Milan Smith, who has had a few other interesting things to say recently), the Ninth Circuit held that discharges from the MS4 system to the San Gabriel and Los Angeles Rivers violated the Clean Water Act.  Monitoring of the flow in those portions of the MS4 system revealed violations of permit requirements, and the combination of those violations and the presence of downstream discharges amounted, according to the Ninth Circuit, to a violation of the Clean Water Act.  But the catch is that the monitoring sites were within channelized portions of the Los Angeles and San Gabriel Rivers.  In other words, on one reading, the Ninth Circuit held that the flow of polluted water from a channelized portion of the river to a non-channelized portion of the same river could create a violation of the Clean Water Act.  This, the defendants and petitioners argued, conflicted with the Court's decision in South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004).  And on that issue, the Court granted cert.  (The Court denied cert on the other question raised by the petition, which was whether those channelized portions of the river constituted navigable waters within the meaning of the Clean Water Act.)

I wonder why.  This doesn't appear to be a recurring issue in federal court cases.  It wasn't even a big issue in this case; the litigants appear to have focused largely on other issues and defenses.  In fact, NRDC's primary argument was that the monitoring station reports revealed violations caused by discharges upstream of the monitoring station, not that they revealed that illegal discharges were occurring downstream.  And the case is factually and legally very complex.  So the Court seems to have signed itself up to perform essentially de novo review (without any opportunity to do its own factfinding) of a somewhat arcane legal question arising out of a rather complicated fact pattern and an equally complex statute--a statute that at least a few of the justices hold in rather poor regard.  This, I fear, won't go well.

-Dave Owen

China Environmental Experiences # 5: Milk, Pesticides, and Product Safety

Today I discuss the curious contrast between China’s role as an international and domestic producer of consumer goods, and some of the implications for average Chinese people.  (This is the fifth in my series of reports from the field about the environmental experiences of an environmental law professor in China—for the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, and May’s exploration of water quality issues.)

While preparing for our year in China, we wondered what we should bring with us from home.  Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here!  But after our arrival, we were surprised to discover how mistaken these assumptions were.  It’s true that China produces a lot of the manufactured goods now sold in the U.S. and throughout the world.  What’s not true is that they are available for purchase in China.  As it turns out, China has two separate manufacturing industries—the factories that produce for export, and those that produce for domestic consumption.  In fact, it’s illegal to sell goods produced for export on the domestic market.  And while Chinese exports are generally of decent quality, that’s not always the case for products sold in domestic Chinese markets.

Before I say more, it’s important to acknowledge the relationship of this problem to China’s stage of economic development, and the mind-boggling progress it has made over a very short period of time.  Just a few decades ago, China was still reeling from the political turmoil of the Cultural Revolution and the chaos of the Great Leap Forward and famine times preceding it.  Only after the Deng Xiaoping reforms in 1978 did national priorities shift toward full-speed-ahead economic development.  In the thirty years since, the nation’s progress in creating new industry and providing for basic human needs has been astonishing—especially in urban areas, and most markedly in the coastal areas like Shanghai  and Shenzhen, or the northern city of Qingdao, where we live.  But even though there are some 500 million Chinese now using the Internet, some 170 million of them—more than half the population of the U.S.—still live on only a dollar a day.

Of course, such rapid development has been accompanied by the environmental degradation that I’ve written about in previous posts, just as American industrialization did a century ago.  And indeed, when you’re trying to feed 700 million mouths in the underdeveloped countryside, it can be hard to focus on ground-level ozone.  Still, people living close to the margin are especially vulnerable to environmental harms from pollution and climate-related disasters.  Understanding this, the government has increasingly recognized that ongoing development efforts must be better partnered with effective environmental regulation, evidenced by a steady stream of reports about new environmental goals and sustainability initiatives.  As far as I can tell, these are mostly hortatory at the moment, but hey—every environmental movement has to start somewhere, and it’s usually with consciousness-raising.

This is all just to fairly contextualize my observations here that, in addition to better managing pollution, China faces an uphill challenge to better ensure the safety of the products its people come into contact with each day.  Product safety is like any other environmental regulation; both rely on state enforced rules to ensure that people are not harmed by toxins or hazards, especially when the harm is of the sort that most people couldn’t reliably identify on their own.  And at least generally speaking, the safety and quality of domestically marketed Chinese products leaves a lot to desire. 

Americans may recall how this problem reached the export market in 2007, when Chinese toys sold in the U.S. were found to have been produced with lead paint.  Teething children, those most vulnerable to neurotoxins, risked exposure when they inevitably gummed or sucked on these toys. 
As the parent of new baby at the time, I carefully pulled out all of his new toys that had been made in China, just in case.  But now imagine the same kind of problem here in China, in every kind of product line, and with only a fraction of the government regulators available to inspect products for health and safety.  You can’t just pull everything out, just in case.  There will be nothing left.

In China, the most troubling examples relate to food safety.  In recent years, there has been a parade of scandals in which chemical toxins have been found in local meats, vegetables, and other products.  The most tragic was the milk scandal of 2008, in which several Chinese babies died and hundreds of thousands were sickened by milk products purposefully contaminated with melamine, an industrial chemical that raises the apparent protein content of watered-down dairy products (and also causes kidney failure).  Responsible parties were fired, jailed, and even executed in punishment—but two years later, it was discovered that 170 tons of contaminated formula that was supposed to be destroyed after the scandal was simply repackaged and resold on the domestic market. 

I know Chinese parents who will only give their child imported milk, even though it is by far the most expensive item in the family budget—in absolute terms, 400-500% more expensive than the average milk sold in the U.S. (and this purchased by families with a fraction of the average U.S. income.)  These frightened parents will carefully scan UHT milk products to make sure that the only Chinese characters appear on stick-on labels—not the original cartons—ensuring that no part of the production process took place here in China.  We were taught to do the same on our arrival, and imported milk soon became the most expensive part of our family budget as well.

Baby formula price differences are even more exaggerated—even one can of imported formula can cost as much as a week’s worth of groceries—which is obviously prohibitive for most Chinese families.  But this week, the China Daily reported that formula produced by one of China’s biggest dairy manufacturers was pulled from shelves after testing positive for elevated mercury levels.  The Yili Industrial Group recalled three series produced between November and May after inspectors discovered high mercury levels, presumed the result of air, water, and soil pollution from coal-fired power plants and industrial and mining projects.  Afterward, the government made an emergency announcement that it had tested 715 samples from all infant milk powders on the market, and none showed abnormal mercury content except Yili’s.  But note the use of the word “abnormal,” rather than illegal: perhaps the most chilling aspect of the story is that China doesn’t actually have an official safety standard for mercury in milk power.

(Writing on July 4th, it’s a good moment for me to pause and reflect on the many things I am grateful for in my own country.  And even with all of its flaws, I’ve never been more grateful for the FDA than I am right now.  Let this be yet another post-it to all my fellow-citizens who have come to take our own regulatory state so for granted that they have forgotten what life would actually look like without it.)

China’s regulatory apparatus is struggling to catch up with the herculean pace of its industrial sector, and the gap between them is exposed by these tragic examples in which local people are hurt by the very products they are racing to produce, ever more quickly and inexpensively.  The United States has been here before as well, and it may just be a necessary part of the process of economic development.  But China is at that stage where its people are beginning to decide that the health and safety of their children is just as important as other aspects of economic development.  The bottom line is that too little of what reaches the Chinese consumer is subject to reliable health and safety inspection based on sensible regulatory standards.  And we know Chinese producers can do better, because they meet all kinds of health and safety standards when making goods for export! 

Because milk is just the tip of this iceberg.  Chinese of means are willing to pay extraordinary amounts for all kinds of foreign products—not just food, but also clothing and electronics.  This puzzled me at first, until I lived here long enough to witness just how often the things I buy at the local market break, tear, or otherwise self-destruct.  From clocks to toothbrushes to ziplock bags—I don’t know how else to say it—the Chinese goods we buy here just here don’t work very well, or very long.  Even as I write, I am sweeping away from my son’s mouth the disintegrating pieces of the nice couch that was relatively new when we moved into our apartment last year (and worrying about what may be in it). 

I’m no economist, but I can’t help but relate this to the high tariffs the Chinese government adds to imports—the source of so much international tension with economic competitors like the U.S.  It’s no wonder the government favors these tariffs: if imports were not made artificially more expensive than they already are, Chinese consumers would prefer them even more strongly to local products.  I had a conversation about this once with a student complaining about how expensive American-made clothing was in China (the tariffs make it much more expensive than it would be at home, even in absolute terms).  I pointed out that from the perspective of his government, this was a way of accelerating the developing economy by harnessing the enormous purchasing power of China’s emerging consumer class.  He responded that, yes, if he were a Chinese official, he would probably do the same thing.  But as a Chinese consumer, all he really wanted were some quality shoes.

Of course, a lot of what I am describing is just the reality of life in a developing country, and I certainly don’t want to whine about that too much.  My purpose in sharing this is not to complain, but to help those from the developed world understand the full scope of the environmental and economic challenges on the other side.  If you were a government official trying to get 150+ million people out of abject poverty, wouldn’t you try to harness the purchasing power of your vast citizenry to do it, free trade notwithstanding?

Regulatory regard for individual health and safety here seems different from the west anyway, reflecting differences both economic and cultural.  In flying back to China after lecturing in Vietnam, I was astounded to be fumigated without warning by an aerosolized pesticide sprayed on me in my seat by the Chinese flight attendant.  I later learned that it was required by Chinese law, doubtlessly to prevent the spread of serious insect-borne diseases.  But my eyes, nose, and throat burned worryingly for the rest of the day, and I wondered how I’d have felt about it had I been pregnant or carrying an infant.  In an earlier post, I wrote about our harrowing experience trying to avoid domestic pesticides whose safety we could not ascertain, and I felt affirmed when it was later reported that the government was taking steps to ban twenty commonly used pesticides for reasons of human toxicity. 

In another example, my husband—the grandson of a lifelong Milwaukie firefighter—was dismayed that our apartment has barred-in windows and no fire escape, for which I chided him as an over-privileged westerner until I saw ordinary people exploding fireworks just feet from neighboring homes and businesses.  The displays are spectacular, but they also cost fingers, lives, and some famously devastating fires.  Similarly costly are the traffic-related mortalities that are unfortunately common here.  Still, most don’t wear helmets on their motorbikes, and seat belts are purposefully dismantled in most cars because people consider them a nuisance.  (In one of our more hilarious cross-cultural moments, we lugged a child car-seat here all the way from the U.S., knowing we’d never find one in China—only to discover it useless because there are no seatbelts to secure it in place!)  Traffic lights to help pedestrians cross the street are rare, and even those that exist are of limited value: “don’t walk” means that you will surely be killed if you cross; “walk” means it is now somewhat less likely that you will be killed.

Yet this is only part of the story.  Notwithstanding the lack of health and safety standards, there are so many other elements of Chinese culture that are much more committed to human health than western cultures—and especially American culture.  Americans may be good at regulating for health and safety, but our lifestyles certainly don’t do much to advance the goal—as documented by our famously expanding waistlines.  Healthful living is a huge and important part of Chinese culture, and among its most admirable.  Chinese people eat dried fruits and nuts instead of cheese doodles.  They rest regularly and sleep well at night.  Chinese medicine emphasizes the maintenance of wellness over the post-hoc treatment of disease. Most of all, healthy exercise is a foundation of everyday life. 

I don’t just mean that Chinese people are in better shape because fewer have cars and must walk where Americans usually drive, although that’s also true.  Here, exercise is a ritual part of daily life—and especially community life—in a way that would be wholly unfamiliar to most Americans.  In the morning, people gather for morning exercise in public parks, courtyards, and parking lots, often doing tai chi.  Seeing a hundred people spontaneously join in perfect, soundless unity this way is truly one of the most beautiful things I have ever seen.  After dinner, families take a ritual “digestive” walk around the neighborhood together.  Then begins evening exercise, when people again gather in public areas for a variety of activities.  Children play openly while men play team sports.  Women regularly gather for a Chinese cultural version of line-dancing, in which they collectively perform a repeating, multi-sided sequence to accompanying music.  We were sad to discover very few playgrounds for children—but in perhaps a wiser use of scarce resources, every neighborhood has an exercise parks for adults, with metal equipment to keep people fit and limber, especially as they age.  They are frequently used, especially after work, by young and old alike.

So I end this essay where I began, acknowledging the developmental and cultural differences that make my observations here admittedly fraught.  Nations struggling to feed rural populations have to be more concerned with crop yields than genetically modified organisms, more concerned with child malnutrition than child obesity rates.  Chinese culture protects health in other ways, and it’s understandable that regulatory priorities have focused elsewhere than health and safety to this point—although perhaps the time has come for change.  But where American regulations offer models for China, Chinese culture offers lessons for Americans, in exactly those realms we need them most. 

--Erin Ryan

 

Heat Wave 2012

Living in San Diego, one could almost forget that the country is in the second week of a serious heat wave.  To appreciate its significance, I spent a few minutes looking at some cool maps (no pun intended). 

This first one is from this morning, showing the forecast heat index for today.  As described by the Weather Channel, "The heat index is the calculation of temperature that takes into consideration the effects of humidity and temperature on the human body. The heat index gives an indication of how the combination of temperature and humidity feels to humans."  I see that most Americans are feeling pretty hot today...

And here's one, also from today, showing departures from normal temperatures.  It shows that temperatures in the Southern U.S. are about normal or just somewhat above while temperatures in the middle and Northern U.S. (except in the Northwest) are very much beyond normal.  (And yes, here in San Diego, I'm wearing a sweatshirt.)

There's a lot of news today about how a heat wave like this might make more people in the U.S. acknowledge the reality and the importance of climate change. See, for example, here (by AP science writer Seth Borenstein) and here (NBC Alex Wagner's video piece). That would be cool.

- Lesley McAllister

"Claiming the Arctic: Principles for Acquiring Territory from the Commons"

Cara Nine, a philosopher and political theorist at University College Cork in Ireland, has posted a draft paper titled Claiming the Arctic: Principles for Acquiring Territory from the Commons. The paper challenges the core values and principles that lay behind the territorial claims to high seas areas—in the Arctic and elsewhere—made under the United Nations Convention on the Law of the Sea. It’s an interesting read, especially in light of the current push for the U.S. to finally ratify the treaty. Here’s the abstract:

The Arctic is increasingly seen as a commons open to territorial appropriation by states. For example, countries such as Russia, Denmark (via Greenland), and Canada claim parts of the Arctic on the basis of continental shelf features. Political and legal resolutions regarding the Arctic will set legal precedence for territorial claims made to other significant common regions, such as vast areas of the open sea.

The underlying issue is not which group should control the Arctic region but rather if any group should. To answer to this question, we must know when it is legitimate for a group to acquire territorial rights from the commons. The goal of this essay is to establish a set of principles governing the original acquisition of territorial rights over a region that is in the commons. Rather than appealing to property rights, contracts, or proviso conditions, I instead base my arguments on the moral permissibility of a system of territorial rights. The permissibility of a system of territorial rights is based on three fundamental values: the promotion of peace, commerce and trade, and stewardship over resources. Taking these values into consideration, we can take up a default position against rules of acquisition that undermine one or more of these values and a default position in favour of rules of acquisition that do not undermine these values. Next, I establish that certain resources, those that are non-renewable and in areas that have limited human uses (such as the seabed) are less susceptible to original acquisition arguments than other kinds of resources. Finally, I reject the argument that states can claim their continental shelf as territory and arguments for territorial acquisition based on labour-mixing. Territorial acquisition beyond the state's exclusive economic zone (200 miles from shore) is largely unjustified. In conclusion, I briefly propose that a limited-tenure property rights regime based on Antarctic political principles would present a better rights-based system over these regions.

-- Michael Burger

In case you missed it

Union Carbide absolved of liability for environmental harms of Bhopal gas leak

    A New York district court dismissed an action brought by citizens of India against the parent corporation of Union Carbide India (now Everready Industries), Union Carbide Corporation (now part of Dow Chemicals). Plaintiffs sued the parent company to clean up the contaminated site, where water supply has also been affected. The court reportedly rejected arguments on piercing the corporate veil and noted that the parent corporation was not responsible for the accident or for the clean up. News reports on the decision are available here and here. The plaintiffs will reportedly appeal the decision.

UNESCO LISTS NEW NATURAL HERITAGE SITES, INCLUDING THE WESTERN GHATS IN INDIA

UNESCO has listed twenty six new sites. The inclusion of these sites in UNESCO's list entitles them to protection and funding assistance under the  World Heritage Convention (WHC). The Western Ghats is an area rich in biological diversity and its inclusion may have interesting implications in terms of action to protect WHC sites from climate change. UNESCO's resolution and recommendations on protecting world heritage sites can be found here.