Environmental Law Prof Blog

Living the Good Life in the Anthropocene: Essays from the Environmental Law Collaborative

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, discuss, and write on an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC participants seek to use their disparate areas of scholarly expertise to study trends and important events in the law and ultimately to improve the environmental conditions of the world in which we live. 

Participants at the ELC’s most recent meeting in July 2023 were asked to consider what it means to live the good life in the Anthropocene. To frame the conversation, participants first considered the Stockholm Resilience Center’s concept of planetary boundaries. As the Anthropocene progresses, the Center has concluded that the number of planetary boundaries that we are crossing is steadily increasing, from three in 2009, when the Center’s researchers first introduced the concept, to six in 2023.

Planetary boundaries represent a safe operating space for humanity; crossing them, in turn, means that humans are changing basic attributes of planetary systems—such as biodiversity, climate change, freshwater use, and toxic loadings—to the point of risking the future of human civilization.

However, for the first time, in May 2023 in Nature, these researchers assessed not only the safe planetary boundaries but also the just ones. Considerations of equity and justice, the authors concluded, require that we re-think three of the planetary boundaries: nitrogen, which is critical for fertilizing crops but also creates water pollution, harmful algal blooms, and marine dead zones; aerosols; and climate change, which imposes disproportionate impacts on some populations.

The distinction between “safe” and “just” planetary boundaries raises several questions regarding how to conceptualize the “good life” in the Anthropocene. The ELC discussions in July 2023 and the essays that follow played with various conceptions of the “good”—from “enjoyable” to “moral”—as well as the various elements necessary to a good life in the Anthropocene, from choice to respect to requirements like fresh water to amenities like outdoor recreation.

 Authors and titles of the posts:

• Karen Bradshaw, What Makes the Good Life?
• Rebecca Bratspies, Baking in Inclusion
• Michele Okoh, Reflections on Beauty in the Anthropocene
• Danielle Stokes, Governing for the Good Life
• Amber Polk, The Tragedy of Living in the Anthropocene
• Melissa Powers, Consuming Our Way to Clean Energy
• Karrigan Bork & Keith Hirokawa, Reallocating Environmental Risk
• Shannon Roesler, What the Many Meanings of Shelter Share
• Cinnamon Carlarne & Keith Hirokawa, Imagining Climate Havens in a Boiling World
• J.B. Ruhl, Eating Cheetos in the Anthropocene: Governing the Good Life at a “Whole of Consumption” Scale 
• Robin Kundis Craig, Rationalizing Water Consumption in the United States: Hydrogeological Reality vs. The Constitutional Right to Travel  ​
• Sarah Fox, Consumption All the Way Down
• Ruhan Nagra, Green Colonialism
• Kevin Lynch, Breaking Our Consumption Addictions
• Jessica Owley, What Is the Good Life in the Anthropocene?
• Anastasia Teletsetsky, Inequity, Excess Commercialization, and Overconsumption in the Anthropocene: Two Very Modest Regulatory Proposals 
• Bruce Carpenter, Josh Galperin & Francis Hicks, Accessioning Joy

The Environmental Law Collaborative would also like to thank the USC Gould School of Law and the Vanderbilt Law School for their generous support of the July 2023 meeting!

--Robin Craig, Rebecca Bratspies, & J.B. Ruhl

Adapting to a 4°C World: Essays from the Environmental Law Collaborative

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, discuss, and write on an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC participants seek to use their disparate areas of scholarly expertise to study trends and important events in the law and ultimately to improve the environmental conditions of the world in which we live. 

Participants at the ELC’s most recent meeting in July 2021 were asked to consider the adaptation challenges of the worst-case climate scenario: a world that warms to 4°C by 2100. As environmental law professors, we remain dedicated to the study and support of laws and policies designed to mitigate greenhouse gas emissions and avert the worst-case scenario. But we cannot ignore what scientific studies and newer climate models show. The Paris Agreement’s goal to hold warming to 1.5° – 2°C above preindustrial levels now appears unrealistic. In the United States, regulatory inaction and political gridlock frustrate efforts to implement the decarbonization measures that we need now to prevent the warming predicted by climate models. At the international level, the commitment and cooperation necessary for dramatic emissions reductions also appear unlikely.

To frame and inspire discussion about the consequences of a 4°C world, participants read a recent article by two ELC members, Robin Kundis Craig and J.B. Ruhl, who argue that because a 4°C world is likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adaptation. A 4°C world is one marked by dramatic sea-level rise, devastating heat waves, extreme drought, increased flooding, food insecurity, and radical shifts in ecosystems and biodiversity. Some communities may not be able to adapt; they may simply have to move. Adapting our laws and governance structures to physical and social disruption at this scale requires transformative thinking.

In the blog posts we will share this month, ELC participants explore what it means to adapt to a 4°C world. Some posts highlight the inadequacy of current legal doctrines, planning policies, and governance structures to meet the adaptation challenges ahead. Others examine the need to rethink laws and institutions that govern ecosystem services and issues of biodiversity. And some focus on issues of social equity and environmental injustice. Although each post makes its own contribution, they share a deep concern for the future and an urgency to mitigate not only the emissions that drive us closer to 4°C, but also the serious harms that we will suffer if we fail to plan for the worst-case scenario.

Authors and titles of the posts to come:

• Karrigan Bork, Shi-Ling Hsu, & Kevin Lynch, Western Water Rights in a 4°C Future
• Melissa Powers, Designing the 4ºC Electricity System to Achieve a 2ºC Future
• Josh Galperin, Compensation at 4ºC Celsius
• Karrigan Bork, Room for Nature
• David Takacs, In a 4°C World, the Inexorable Climate Change-Biodiversity Nexus
• Michele Okoh, America Erased
• Cinnamon Carlarne, The Mutable Boundaries of a Worst-Case Climate World
• Sarah Fox, The 4ºC City
• Karen Bradshaw, Climate Change Lessons from a Disney Princess
• Keith Hirokawa, More Better Information as 4°C Preparedness: Ecosystem Benefit Flows and Community Engagement
• Jessica Owley, Harnessing Eco-Anxiety and Triaging for the Future ​
• JB Ruhl & James Salzman, Rawls@4°C
• Shannon Roesler, The Costs of Political Polarization and Gridlock
• Robin Craig, Contemplating Equity from the Deck of the Titanic: A Metaphoric Meditation for a 4°C World
• Clifford Villa, Letting Go of 2˚C, Letting Go of Race?
• Shi-Ling Hsu, Catastrophic Inequality in a Climate-Changed Future
• Katrina Kuh, Precommitment Strategies to Avoid the Justice Worst Case in the Climate Worst Case

- Shannon Roesler

Aggressive Solutions to Disrupt Biodiversity Loss

David Takacs is a Professor at University of California Hastings College of the Law

This is the thirteenth and final essay  in a series  from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

Biodiversity is disappearing rapidly, portending grave results not just for nonhuman species (and the populations and individuals that comprise them), but for the functioning ecosystems they constitute, and the human communities that depend on diverse species and thriving ecosystems -- that is to say, all of us. It is perhaps the single greatest problem our species faces. Even though 15% of the Earth’s land has designated formal protection, about 1/3 of that land “is under intense human pressure,” and only ¼ of Earth’s land surface remains free from substantial human impacts.  Such degradation harms the wellbeing of over 3 billion people, and consumes more than 10% of annual global gross product through loss of biodiversity and ecosystem services. Only 13.2% of oceans are “wilderness,” and only 4.9% of those areas are within protected areas.

While cultivation (agriculture, ranching, forestry) and direct exploitation remain the gravest harms to biodiversity, climate change increasingly threatens biodiversity as species are unable to adapt to a rapidly and chaotically changing world: Our current, static methods of conserving species become increasingly inadequate if we do not preserve or restore habitats species will need in a climate-addled future.

We have made strides making laws that constrain humans from wantonly destroying everything.  The need for conservation is a customary norm around the world. Nearly all nations have acceded to the Convention on Biological Diversity, and nearly all nations make some attempts to preserve their genetic heritage, with laws that sustain endangered species and/or protect land important to vital ecosystems and the biodiversity they sustain.

But the cataclysm of species annihilation proceeds apace.  According to the IUCN over 26,000 species are threatened with extinction, including 41% of amphibian species, 24% of mammal species, and 13% of bird species face grave extinction threats.The human population is projected to grow to nine billion by 2050 and likely to eleven billion by 2100, while the average person’s buying power and consumption will grow by 150%.Our laws to conserve are not keeping pace with our drive to destroy.

To stave off a disastrous disruption in human and nonhuman survival, law needs to evolve quickly andradically.  I am not challenging current legal foci on endangered species and protected lands, which, at least, concentrate easy to identify entities (I do know what a bald eagle is, but might have trouble drawing the parameters of a given ecosystem type), and has meant that some species that would otherwise be gone still live alongside us. We can certainly exponentially ramp up what we’ve been doing.  Nor am I advocating one or more of the following legal disruptions as the ones we oughtto choose.   But we do have to rethink, drastically, our current approaches to living alongside biodiversity if we are to have ample biodiversity along which to live, and if human civilization is to be sustained in some recognizable form.

E.O. Wilson and other prominent conservation biologists proposed setting aside “half for nature.” Protected areas do help biodiversity survive. If done smartly -- with careful planning to conserve megadiverse areas that human communities depend upon for local and global ecosystem services -- biologists estimate we could steward 85% of nonhuman species while sustaining the human communities that depend upon them. 

This would also require that the law evolve from a static conception of species and landscapes -- put a fence around an area, manage species in forms and places they’ve long been -- to a more dynamic form grounded in pinpoint adaptive management. We’d need to think about maintaining evolutionary potential outside of formally protected areas so that species could migrate, and develop nimble systems for prioritizing high level protection as areas formally protected for species no longer suit their needs in a changing climate. Law would need to specify performance standards for areas and species of concern, i.e. ecological indicators or benchmarks that must be met, and if not, required pathways to change how we’re doing what we’re doing. Managers would constantly be measuring, monitoring, reporting, and verifying in accordance with the standards. This would also result in greater employment for local people as biodiversity managers, green jobs rooted in caring for the Earth.

Current efforts to conceptualize and operationalize “Nature’s Contributions to People” broaden our notion of “ecosystem services.” Including harder-to-quantify contributions of biodiversity to our well-being may result in being more inclusive in who gets to define what those contributions are and thus what should be preserved. For selected areas, law might provide management autonomy with transfer of property rights for local guardians with a track record of care and stewardship. Law would need to be nimble and place-specific for whom are the legally mandated managers, who monitors that performance standards are being met, and what are the legal consequences for derogation from those standards. 

Concerted, focused, effective efforts to stave off biodiversity loss will likely be very, very expensive.  To afford this, particularly in the global South, (but even in the North, where no country comes close to preserving “half Earth,” or are successfully staunching species loss) would be to take the legal principle of Common but Differentiated Responsibilities  (CBDR) seriously.  Wealthy countries (and individuals) have become wealthy by exploiting lands and species of the South (or by exploiting other citizens) without proper compensation. The same entities have polluted the global atmospheric commons without paying for the externalities of that pollution. Laws implementing CBDR would alleviate the poverty that requires the poor to degrade nonhuman landscapes, and to pay for land and species conservation, including employment for a cadre of conservation professionals and paraprofessionals. All of this could be abetted by negotiating a new multilateral environmental agreement to replace the weak voluntary commitments embedded in the Convention on Biological Diversity, or by amending that agreement to put some teeth into it, including requirements to implement CBDR aggressively.

Law hasbegun, increasingly, to ask those who degrade the global environment to pay for such degradation.  Under the aegis of “polluter pays” principle, REDD+  (Reducing Emissions from Deforestation and forest Degradation) allows greenhouse gas polluters to “offset” their pollution by investing in reforestation or avoiding deforestation, allowing trees to work their photosynthetic magic by sucking up CO2. Biodiversity offsetting takes this logic one step further, by asking developers to offset damage to targeted species or ecosystems by paying others elsewhere to conserve those species.  Both practices are controversial; but to stave off mass extinctions, when done right and on a large, monitored scale, market mechanisms could inject many billions of dollars into government conservation coffers, particularly to incentivize conservation on private lands (where otherwise conservation would not occur). State of the art collaborations between regional planners, social scientists, community groups representing disparate interests, climatologists and conservation biologists could predict where species and ecosystems might likely migrate, where human communities are likely to expand, and to prioritize migration corridors that will allow natural communities to adapt to climate change: Market mechanisms can direct and prioritize conservation in these areas. 

Desperate and wildly ecologically changing times require us to rethink all of our notions of what “belongs” where.  Law could permit and define parameters on aggressive conservation translocation. In a paradigm change from traditional static notions of biodiversity conservation, we might assist colonization andintroduce species to where they’d historically been, exporting species from places where habitat no longer exists or soon will not exist due to changing climates or growing human demands. These can be reintroductions to where species have been and now disappeared, or reinforcement of individuals into existing populations of that species. The “rewilding” movement focuses on top carnivores whose (re)introduction revitalizes ecosystem functions and augments species diversity.   Such programs could also consider introducing species that have not existed in a place, that would be “invasive,” but nonetheless might have some chance of fulfilling ecological roles and adapting to the onslaught of climate change.

And given that we are already radically altering what may exist and where, we might use genetic manipulation or “rescue” for endangered species. Taking this one step further, we could resuscitate extinct species through genetic manipulation.   So, for example organizations like Revive & Restore  seek “de-extinction,” the return of the woolly mammoth, passenger pigeon, and heath hen through tissue biobanking, intense genetic (re)sequencing, and cloning.

A different line of thinking suggests that radical conservation interventions -- put a fence around half the Earth’s surface, manipulate the genetic endowment of life -- are dystopic interventions that totally miss the point that poverty and inequality drive biodiversity loss, and that “put a fence around and protect it” conservation lead to human dislocations, political upheaval, and general human misery.   The only sustainable way to maintain nonhuman communities (and thus human communities) is to change the paradigmatic drive towards ever greater economic growth that inevitably degrades ecological and human capital, and to transfuse wealth from overconsuming rich to disenfranchised poor, North to South. 

The ultimate sustainable route to biodiversity conservation is through what I call “deep equity,”   i.e., a fundamental change in what we value and how we operationalize those values in law. Deeply equitable solutions maximize and synergize individual, community, and nonhuman health and potential. Such values, as they become deeply rooted in societies, would also become deeply rooted in those societies’ laws, creating a virtuous circle.  One such value change might be reflected were we to give various different biological (or nonbiological) entities fundamental rights,  reflecting our expanding conception of beings to whom we owe ethical obligations, with laws implementing those obligations.  Or, simply, the wealthy need to consume much, much less than current rates, reflecting the urgency of our situation.

But law evolves slowly, and we are unlikely to pursue many of these in the short term, and in the long term it may be too late to preserve large swathes of functioning ecosystems or the magnificent creatures that inhabit them, or to save our own species that ineluctably depends upon these ecosystems.  And that is the ultimate disruption that environmental law has thus far been ill-equipped to prevent.

Is It Time to Say Goodbye to Environmental Law?

Inara Scott  is an Associate Professor in the College of Business at Oregon State University

This is the twelfth  in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

Besides being a legal scholar, I also write fiction. My first published book was a young adult novel, and it was in publishing that I became familiar with the problem of shelving. You see, before you can sell your book, you have to identify the genre. That designation tells booksellers and librarians where to shelve the book; for e-books, it identifies what category to put it in for online searching.

If you can’t label it, they can’t sell it.

Picking a genre determines how the book is marketed and who becomes the audience. Genres also carry deeply embedded connotations: for example, who do you picture reading romance novels? Who do you picture writing them?

The boundaries of genres can make it impossible to write and sell certain kinds of stories. Understanding this, authors consider where their book will be shelved beforethey write and modify their story ideas accordingly.  Until the 1970s, few books were written with teenage protagonists because there was no such genre as “young adult”—the genre of books for young people aged 12-18 wasn’t officially created until the 1960s.  

Like fiction authors, lawyers are trained to think about law in discrete categories. Interdisciplinary efforts may be viewed with skeptical, or even disapproving eyes.  As a professor teaching environmental law at a business school, I can say from first-hand experience that many do not consider me to be part of the “environmental law” community simply because of where I teach.

TheAnthropocene—and more specifically, climate change—offer existential challenges to the survival of humanity and life on this planet. Many instinctively turn to environmental law to solve these challenges. Unfortunately, I don’t think the challenges we face will be solved by items on the environmental law shelf. No, I believe we need to start fresh, create a new genre, and leave environmental law firmly in the past.

To explain why, let’s start with what the environmental law shelf currently contains. Most definitions of environmental law describe statutes and regulations that govern how people interact with the natural environment—the “natural environment” in this context being non-human species, plants, and natural resources. Environmental law is also generally understood to include pollution control and management of public lands and natural resources. The laws most would identify as the cannon of the environmental law genre (e.g., the Endangered Species Act, the Clean Air Act, and the Clean Water Act) focus on this relatively straightforward human-environment formula. These laws generally arose out of a perceived environmental crisis, a desire to protect the environment from human harm, and a need to ensure environmental resources were available for human consumption.

Over time, the popular understanding of environmental law, including this human-environment formula, created certain expectations for and limitations on the genre:

1)Environmental law addresses interactions between humans and the natural environment, and ways to limit human actions in order to protect the environment. Conversely, environmental law does not focus on human-to-human interactions or economic transactions. Matters having to do with corporate law, tax, and business are generally not included. It is only recently that energy law—including fossil fuel extraction and electric utility regulation—has been considered alongside or even linked to environmental law. 

2)Environmental laws address narrow targets with narrow solutions. For example, the Endangered Species Act creates a mechanism for protecting individual species. It was not intended to create a mechanism for considering bigger questions—i.e., how do we protect biodiversity?  

3)Environmental law is furthered by liberal white activists. Environmental law is not relevant to conservatives, people of color,  or people living in urban settings who don’t like the woods.

Point number three is perhaps the most dangerous aspect of the environmental law shelf. In a time of virulent political division, environmental law, like anything associated with climate change, is associated with one perspective and one political party.  Sadly, it is also associated with one race and one socioeconomic status, and negatively associated with strident activism.  Overall, the percentage of Americans identifying as environmentalists is down to 42% (from 78% in 1991).

So, at this point in history, what the public thinks of as environmental law is law that: does not address corporate governance or economic regulation; sees humans as separate from and antagonistic to the “natural world”; is narrowly focused on singular solutions in a complex world; and is not relevant to a diversity of perspectives or identities.

The danger here should be obvious from this list: many of the areas that currently fall out of the environmental law arena are precisely the ones that are essential to addressing the key challenges of the Anthropocene. Lawyers seeking to mitigate climate change mustembrace corporate law as a key part of their toolbox. Shareholder primacy and corporate law that fosters short-termism must be countered if we are to fight overuse of natural resources and a culture of unfettered consumerism. Smart infrastructure development and management of the electricity sector is essential to decarbonizing our economy.  Understanding how to rethink the field of economics could create a path for sustainable development.

To be clear, I’m not talking about simply rebranding the environmental law shelf. Rather, just like the genre “young adult” had to be created to allow for the flowering of teenage literature, I believe we need to develop a new term to describe the legal challenge ahead of us.

I suggest we call this new genre “Commons Law.”

By using the term “commons,” I hope to draw attention to a few issues. First, I recognize that the tradition notion of the commons is a resource shared by the public that is not privately owned. However, Commons Law will refer to regulation of public andprivately-owned resources. Why? In the Anthropocene, I believe we must confront the reality that the Earth is our commons, and whether activity takes place on private orpublicly-owned land, it can have significant impacts on all people.

Second, I hope to call up two environmental law stalwarts that may seem contradictory: Garret Hardin’s Tragedy of the Commons,  and Elinor Ostrom’s Nobel Prize winning work regarding the Governing of the Commons.  Hardin’s work is appropriate, because many would say we are living proof of the tragedy that occurs when communities share resources and individuals have the incentive to overuse and pollute, rather than conserve. Ostrom’s work is also appropriate, however, because she provides a response to Hardin, offering ways to govern shared resources that do not end in collapse of the resource and do not require privatization.

Commons Law must be broad, diverse, and big enough to contain seeming contradictions. It must recognize that creation of sustainable communities includes economic activity and must include, or even focus on, the regulation of this economic activity. It must address the governance of corporations that control the majority of global resources and threaten global ecosystems. It must also recognize the value in non-human species, biodiversity, and the preservation of spaces that are free from human development.

Commons law must be interdisciplinary and intersectional. It must avoid the trap of zero-sum environmentalism by casting a wide net for stakeholders and developing new legal tools that consider social justice alongside ecosystem protection. To meet the unique challenge of the Anthropocene we need to start thinking outside the environmental law shelf.

The cannon of environmental law deserves a proud place in environmental history for its contributions to our planet. However, it does not serve us well as a model for the Anthropocene. Moving forward, I believe we need to leave environmental law to the past and start fresh. Educate new lawyers, activists, and community members in a different way of thinking, planning, and legislating.

The Anthropocene demands nothing less.

Preparing Environmental Law for the Climate Dystopia

J.B. Ruhl  is the David Daniels Allen Distinguished Chair of Law, Director of the Program on Law and Innovation, and Co-director of the Energy, Environment, and Land Use Program.

This is the tenth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

The probability of holding the climb in atmospheric temperature to 2°C above pre-industrial levelsis rapidly approaching zero.  Barring a global political miracle, technological breakthrough, or economic collapse, we will surpass 2°C and enter an era of climate dystopia. How long that lasts before, if ever, we turn the corner is anyone’s guess. Among the many casualties will be environmental law as we know it.

I paint a bleak picture, but it is one our nation’s institutions of environmental law must face. Vast expanses of human populations will demand that their well-being be protected from storms, droughts, pests, diseases, and other harms climate change will bring their way. The built environment will be reinforced or moved. Agricultural lands will be retooled or relocated. Halting the spread of crop pests will be a priority. Malaria, dengue fever, and other diseases will be controlled at all costs. Water will be moved to where it is desperately is needed. People living where relief is simply unattainable will be relocated or leave on their own accord. Equitable distribution of these and other protective measures will be demanded. And if environmental programs such as the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Section 404 of the Clean Water Act (CWA), Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and their many kin stand in the way of these adaptive responses, they will be mowed down. To be blunt about it: environmental law must prepare for the climate dystopia or be pushed aside.

The prospect of a climate dystopia means environmental law must put its money where its mouth is. For over a decade, advocates for swift and robust controls on greenhouse gas emissions argued—rightly so—that failure to implement such controls would lead to a drastic global scenario of massive disruption to social-ecological systems. With failure increasingly likely, it would be untenable to suggest that the scenario is less dire than claimed or that adaptation measures of unprecedented scale and magnitude will not be necessary. Rather, climate change “mitigationists” must now work alongside “adaptationists,” and environmental law will need to conform to both agendas.        

To be clear, I am not for a moment suggesting that environmental law back off efforts to control greenhouse gas emissions—even as we pass 2°C we must continue work to turn it around (although a separate issue is whether hardline environmentalism’s opposition to new gas pipelines and electric transmission lines is actually impeding mitigation). Rather, it is climate change adaptation, not mitigation, that will push back on environmental law as we know it. This will be a new kind of challenge for environmental law. For the most part, the controversies enveloping environmental law until now have mostly been about an “environment versus economy”  rhetoric. Environmental law has been cast by critics as the enemy of jobs and the enemy of property rights,  but rarely has it been cast, even by its most ardent opponents, as the enemy of public health and safety (a recent example, though, is President Trump’s preposterous claim that water conservation initiatives had prevented firefighters from accessing water to combat California’s raging wildfires). That will change in the era of climate change adaptation, if environmental law does not itself adapt.  

Before considering what can be done to prepare environmental law for the climate dystopia, let’s consider and dispense with the option of staying the course, fighting the fight, and not giving an inch. This strikes me as a suicidal strategy. People whose health, safety, and security depend on rapid and robust adaptation measures—shoring up coastal barriers, eradicating disease bearing insects, protecting crops from new migrating pests, securing drinking water supplies—will have sharply diminished tolerance for protracted NEPA litigation, for avoiding all impacts to endangered species, for staying out of wetlands, for conserving water supplies, and for other environmental protection and conservation measures taken as a given today. Giving no ground by behaving as if the climate adaptation demand for new infrastructure is like today’s highway project, or as if the demand for deploying new pesticides is like today’s FIFRA registration challenge, or as if the need to clear habitat for new agricultural land development is like today’s endangered species conflict, will be a sorely misguided strategy. This is not to say environmental law must simply go away, but taking a hard line position of enforcing all existing environmental laws to the hilt will ignite a furious backlash that could open the door to a wholesale rollback of regulatory programs, and with broad and deep public support for doing so.

So the more realistic question to ask is what can environmental law do now to become more facilitative of climate change adaptation without sacrificing core values and goals? We do not want to throw the baby out with the bathwater. Several strategies seem viable and capable of being implemented under existing laws. The following descriptions of their core approaches use federal law as the medium for explanation, but they could be instituted at state and local levels as well.

Maximize connections to public health and safety. Although some corners of environmental law are closely tied to promoting public health, such as air pollution regulations, that connection has not often been drawn to natural resources programs such as the ESA and Section 404, and protecting public safety has generally not been a theme of environmental law. More could be done on this front. The ecosystem services theme that has gained prominence in the past two decades is aimed in this direction. For example, wetlands provide water purification and groundwater recharge services as well as protection against inland flooding and coastal storm surges. Wherever it can be shown that robust protection of natural resources promotes climate change adaptation strategies, those connections should be made and widely advertised. This will only go so far, however, as those connection must be shown to be real and credibly assessed.

Establish criteria for what qualifies as a climate change adaptation action. Clearly, not every action and project should be considered as furthering climate change adaptation, hence it will be important to establish a set of criteria for designating a project as truly serving necessary and urgent climate change adaptation and thus qualifying for the approaches outlined below. A multi-agency commission could be charged with evaluating which projects qualify. This could very likely be instituted by a presidential executive order establishing the commission, outlining the goals, and directing executive agencies to use existing authorities to achieve them.

Embrace compensatory mitigation. Although compensatory mitigation already is deeply embedded in many programs, most prominently in Section 404 wetlands mitigation banking, it needs to be expanded, simplified, and made widely available. Climate adaptation, especially shoring up or relocating built environment infrastructure, is going to have extensive impacts on natural resources, and holding to the strategies of avoid and minimize preferred in today’s environmental programs will be problematic.   Also, the Obama Administration’s stated goal of having compensatory mitigation produce net environmental benefits, even when not required by law (it seldom is), which the Trump Administration rescinded, would be a magnet for opposition. Something closer to the ESA’s “maximum extent practicable”  standard for qualifying actions, which does not require full compensation (much less net benefits) could be workable. Section 404 of the CWA itself imposes no standard; indeed, it does not mention mitigation—Congress required the Corps to establish “performance standards” for mitigation in a 2004 military appropriations bill, but there also imposed no outcome standard. It may also be necessary to allow compensatory mitigation after the fact, so as to expedite necessary projects.

Expedite processes. Speaking of which, there already is a fierce debate whether pre-decision impact assessment processes such as NEPA, ESA Section 7, and FIFRA registration take too long to complete and are too costly. That debate will only intensify as important adaptation measures are at stake. But mandatory page limits and time limits are not needed across the board, as the Trump Administration is pushing for.  Rather, qualifying climate adaptation projects could be moved to an alternative consolidated impact assessment “fast track” under which one document would serve all such review programs, only “no action” and “proposed action” would be considered as the alternatives, and mandatory time frames would be in effect. Nothing in NEPA, Section 7 of the ESA, or Section 404 of the CWA precludes such an approach for land development projects. The respective agencies (CEQ, EPA, and Corps) could therefore promulgate regulations establishing this approach.  

Leverage statutory substantive flexibility. Many of our current environmental laws actually are sufficiently flexible to allow regulators to scale back on controls and conditions where appropriate to facilitate important climate adaptation initiatives. For example, Section 404(b)(1) of the Clean Water Act, which authorizes EPA to promulgate water degradation guidelines for the Corps of Engineers’ issuance of Section 404 permits, does not establish any fixed standards or limits. By cross-reference to Section 403(c), it simply lists the types of effects the guidelines must address. And the EPA is authorized in Section 404(c) to veto a Corps permit only if it will result in an “unacceptableadverse effect” on any of several specified resources. Similarly, FIFRA pesticide registration is held to a standard of not imposing “unreasonableadverse effects on the environment,” defined to require a cost-benefit analysis.  EPA very likely would have the authority to carve out qualifying climate change adaptation infrastructure projects and pesticide registrations for a specialized set of guidelines as to what are “unacceptable” and “unreasonable” environmental impacts. Even the ESA, often depicted as rigid and demanding, has room for flexing on behalf of climate adaptation projects. For example, given that it operates on a species-wide assessment scale, very few projects today result in the dreaded “jeopardy” finding under the interagency consultation provision of Section 7,  and the Section 10 permitting process for non-federal actions leaves ample room for using compensatory mitigation flexibly.       

Institute “repair accounts” and “repair planning” to offset relaxed standards.The quid-pro-quo for all of the above could be to keep track of impacts that were not avoided, minimized, or mitigated because of the above measures and put them in a “repair account” tagged to the entities carrying out the project. A condition of the permits covering the project could be to develop a “repair plan” that would require fixing or compensating for those impacts in the future when it makes sense to do so. For example, repairing efforts might not be prudent while temperatures are past 2°C and still rising.

***

These and similar measures within reach under existing environmental laws may not provide enough “flex” to accommodate needed adaptation initiatives, in which case the statutory can of worms might need to be opened up. That prospect could be ugly for environmental law. It behooves those interested in keeping environmental protection and conservation in play for adaptation policy, therefore, to find creative ways of molding today’s environmental programs to meet tomorrow’s climate adaptation needs while maintaining as much of the core goals in place as possible.   

I appreciate this sounds like a call for compromise—because it is—and that environmentalists have long been wary of compromises, likening them to sleeping with the enemy. But when it comes to climate change adaptation, refusing to compromise is a fool’s errand. The challenge will be in designing compromises that allow important climate change adaptation measures to go forward without imposing unnecessary adverse environmental impacts and without opening the door too wide to what qualifies for more flexible treatment. The sooner environmental institutions begin thinking about this challenge and crafting approaches like those described above, the sooner they will be perceived as a friend of adaptation asking only for reasonable environmental safeguards.         

  

Disruption as Opportunity

Disruption as Opportunity

By Jessica Owley

Jessica Owley is Professor of Law at University of Buffalo Law School

This is the seventh in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

1. Environmental Disruption.

The world has always been full of disturbances, alterations, and disruptions. This has been particularly true when examining the ecological conditions of the Earth. Our planet has undergone many changes, even some drastic ones. Yet, the current rate of environmental disruption is unquestionable and unprecedented. Climate change is clearly the major disruptor, changing our atmosphere, our ocean currents, and our ecosystems. Humans are a particularly destructive species though and even without the implications of climate change, we are disrupting the environment. We convert species habitat. We pollute rivers. We overhunt. Our current historical environmental atrocities, however, seem trivial in the context of climate change. Particularly tricky is the unpredictability of climate change impacts and intensities.

1. Legal Disruption.

Complicating the environmental disruption is an increased disruption of the American legal system. In the 1970s, the federal government began acknowledging environmental harms in our country and creating legal strategies to combat them. The goal of the Clean Air Act (1970) is to prevent and control air pollution. The Clean Water Act (1972) seeks to eliminate the discharge of pollutants into the nation’s waters. The Endangered Species Act (1973) recognizes the negative impacts of humans on the environment and seeks a “means whereby the ecosystems upon which endangered species … depends may be conserved.” And with the clearest acknowledgement of human impacts on the environment, the National Environmental Policy Act (1970) recognizes “the profound impact of man’s activities” on the natural world and sets a national policy to “prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of [hu]man[s].”

While the effectiveness of these laws and the strategies they adopted is open for debate, they represented an awareness of environmental harm and a need to combat it. All of these statutes and others are now under attack from the Trump Administration and the Republican Congress. The Administration is seeking repeal and revision of the statutes along with changes to regulations and agency policies. Beyond the laws on the books, the Administration is also disrupting federal environmental law by dismantling the agencies that carry out those laws. The number of employees is shrinking along with departmental budgets. Science posts are being removed or left unfilled and scientific reports and language specifically prohibited or hidden.

While the assault on the panoply of existing federal environmental programs is disheartening, federal climate change policy is truly depressing. In 1992, world leaders (along with many others) met in Brazil and acknowledged the intense environmental, economic, and social problems caused by global climate change. Agreeing that the cause was “anthropogenic,” President George Bush  signed the agreement and applauded the countries of the world in taking quick action to combat the serious problem of climate change. Despite this statement (and the U.S. role in shaping both the initial agreement and subsequent accords), the federal government has never been a true leader in the fight against climate change. However, the Trump Administration’s actions in this realm are so radical as to again merit the label disruptive. Shortly after taking office, Donald Trump announced withdrawal of the United States from the Paris Climate Agreement. Even more insulting, the only significant U.S. delegation at the last conference of the parties to that 1992 treaty preached increased use of fossil fuels.  As with the disruption to our environment, the disruption to our environmental laws is unprecedented.

1. Disruption as an Opportunity

The real conundrum for environmental activists and humans who care about the world is determining what to do in the face of this disruption. The paragraphs above paint a bleak picture and suggest that disruption is doing significant harm. A challenge then is whether we can turn that attitude on its head and make these disruptions opportunities. At our 2018 ELC meeting, Vanessa Casado Perez noted that crisis, hitting rock bottom, is what really spurs human action on environmental issues. If things are really falling apart at the federal government, maybe this disruption of environmental law will trigger new energy and action from other sectors. Disruptions in innovation are changes to technologies that can help sectors (and sometimes even societies) leap ahead to a new level. Creative ideas lead to new solutions.

One sphere where this environmental and legal disruption is inspiring action is in the private sector. While Inara Scott reminds  us that the business sector can be a force for positive change there is also a strength in individuals acting on their own or joining force with the power of nongovernmental organizations. In this light, a turn to the private seems both logical and sensible. Citizens seek to fill in the gaps left by a withdrawn federal government. It is unclear whether they can work as effectively toward reducing the harms of ecological disruption, but in a time of legal disruption their efforts gain prominence. Three examples highlight this trend.

Citizen Science and Information Protection: As government agencies began scrubbing their websites of environmental information, particularly discussions of climate change, others began archiving the information and making it available. Private organizations like the Environmental Data and Governance Initiative formed shortly after information began disappearing from public websites. Groups that had formed earlier for other reasons (like associations of librarians)  also took up the cause of protecting and providing information when they saw the need arise. Additionally, while the EPA may be employing fewer scientists, people across the planet are stepping up and collecting data to aid in scientific research and environmental monitoring.  The rise of the citizen scientist is an innovation that can improve environmental information and outcomes if deployed correctly.

Increasing Support of Environmental NGOs and Land Trusts: After the election of Donald Trump, donations to environmental advocacy organizations rose. Public attention to environmental issues can be seen in events like the March for Science and the Peoples Climate Movement. Gallup’s most recent polls show concern for the environment growing in the United States, even as fewer people identify themselves as environmentalists. Land trusts are an interesting part of this trend. Like other environmental organizations, they also saw their membership numbers and dollars increase post-Trump. Their focus differs from traditional environmental advocacy organizations as they seek to meet their conservation goals through protection of individual parcels and working with property tools. By purchasing land and rights in land, they seek to prevent development and conversion of land to uses that diminish ecosystem services and amenities. Working with private landowners, they often bring new people into the conservation movement. Through working with property rights, they create restrictions that are more durable than federal regulatory mechanisms.

Citizen Suits: Finally, despite a hollowing out of our environmental laws, activists are drawing upon the citizen suit provisions contained in many of our key environmental statutes. While there have been some proposals that would impact some of the fee-shifting provisions of citizen suits, neither Congress nor the Executive branch has suggested repealing citizen suit provisions or revising the Administrative Procedure Act, which often provides the hook for environmental litigation. Law firms are preparing for an increase in environmental citizen suits and the environmental activists seem happy to comply. Thus, we can still look to our 1970s law for some solace even though we must acknowledge the standing hurdles for environmental citizen suits are nontrivial.

These examples illustrate how energy and innovation by private actors can be part of the story of response to the current disruption of environmental law. Taken together with other examples and proposals in these essays, they can provide us with a way forward if not quite a way out.

You Cannot Disrupt That Which Was Never Ordered – Land Use Policy in the U.S.

By Blake Hudson

Blake Hudson is Professor of Law and the A.L. O'Quinn Chair in Environmental Studies at the University of Huston Law Center.

This is the fifth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

The theme of the 2018 Environmental Law Collaborative, “Environmental Law: Disrupted,” effectively captures the way in which federal environmental law has been seemingly turned on its head under the current administration. It truly feels like a disruption, as if nearly 50 years of environmental progress is not just being halted, but is at risk of being reversed, even on issues that in recent decades seemed settled—like having safe air to breathe and safe water to drink. Of course, we have seen this play out before, such as when Ronald Reagan was first elected and began the rollback of federal environmental protections. But partisanship is much more acute today than it was even then, and the disruption seems to have an air of permanence about it, or at least an air of long-term persistence.

In light of this disruption, many are calling for an increased reliance on the next line of defense, state governments. It is an understandable position, given that some states have demonstrated an interest in addressing environmental problems more broadly, as well as the political will and administrative capacity to do so. Yet for many more states, particularly in regions of the country like the Southeast (where I am from), an understanding of the state’s role in protecting citizens from environmental and associated economic harm, and the development of the political will and institutional capacity to carry out such programs, feels quite remote. In these locations it is arguably not much further developed than it was when the state of Ohio seemed content to let the Cuyahoga River burn in the 1960’s.

But what about the areas of law where there never was a comprehensive, ordered legal approach already in place to be disrupted?—the legal fronts where states have yet to comprehensively exercise their authority to protect the environment, and where the federal government has little to no regulatory safeguards in place? Such is the case with land development that impacts natural resources, and the dearth of policies in place to comprehensively and effectively deal with the scope of the problem. In this space there really cannot be a disruption of the legal regime because there never was a meaningful evolution or progression towards comprehensive environmental safeguards to begin with.

Control over the paving of landed natural capital with development in the U.S. remains an uber-decentralized mishmash of policy approaches (at least in places where there are any policies actually implemented). Land use regulation is the “quintessential state and local power,” as articulated by the U.S. Supreme Court. Thus, the fifty states hold the keys to how land development proceeds, with little input from the federal government (except in the limited circumstances where an endangered species or a wetland connected to navigable waters is present). Most states, in turn, often leave decisions over land use development to the 88,000 subnational governments that stretch across the U.S.—that is, unless the states do not like the way in which local governments are trying to control land development and prevent environmental harm, in which case they can preempt those efforts (here and here).

While the federal government refuses to enter the regulatory space, land development impacts many of the targets of federal environmental regulation. Land development affects water quality (the Clean Water Act), air quality (mobile emissions under the Clean Air Act), and the driver of species decline, habitat destruction (the Endangered Species Act). So the subject matter of federal environmental law could be addressed more effectively if state and local governments engaged in better land use planning.

Considering the lack of federal involvement, and an ad-hoc, inconsistent approach to land use planning at the state and local level (with southeastern states being exceptionally lax regarding land development controls), urban sprawl proceeds apace, and natural capital is being replaced at a profound rate. While some jurisdictions have engaged in innovative land use planning and development, and gains have been made on some fronts, until society begins to view development per se as a complex, “super-wicked” environmental problem, we will not maintain a sense of urgency along policy fronts to address the problem’s scope. We will keep addressing the symptoms of the land development problem (endangered species, poor water quality, poor air quality) rather than finding a cure for the disease.

While explication of the minutiae is beyond the scope of this post, I am currently working on a project developing a typology of factors that contribute to the wickedness of the land development problem (stay tuned). These include the challenges of collective action unique to the land development sector; corporate design of that sector; legal institutional hurdles; economic drivers; intersecting federal policies; property rights; political economy; time/behavioral science/spatial and geographic factors; population/demographics; and an ever-changing natural environment in a time of climate change. Articulating and exploring these factors will be important to both change the dialogue on land development as an environmental problem and to more adequately inform policy responses to address the problem.

In short, the current state of affairs at the national level is a dramatic disruption of environmental progress. But we cannot forget the areas where holistic environmental progress has never been achieved. In a world of growing populations and economic growth tied quite directly to the replacement of natural capital with human-built capital (Texas, a state of 25 million people in 2010 is projected to double to 50 million citizens by 2050 due to rapid economic expansion), we can no longer take our country’s vast expanse of land for granted. We must do better to plan and control growth, the development of our land, and the replacement of our natural capital. If not, we will eventually find the loss of those environmental resources quite disruptive to human progress and well-being.

Environmental Law. Disrupted. Essays from the Environmental Law Collaborative

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, discuss, and write on an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC participants seek to use their disparate areas of scholarly expertise to study trends and important events in the law, and ultimately to improve the environmental conditions of the world in which we live. 

In 2018, we watched the U.S. regulatory environment change rapidly, even as we witnessed the escalation of visible and profound impacts from climate change. Alongside these events, and with full knowledge of the limited time left in which to address existential environmental challenges, the question the group attempted to tackle at our collaborative meeting was whether environmental law as we know it is up to the task of meeting these ongoing, escalating, and perilous threats. 

Each of us has challenged ourselves to think deeply about where environmental law should be headed in the next decade or more, and how we might get there. The blogs we will be posting in the next two weeks discuss our individual conclusions about how we might reframe and reshape -- and ultimately, disrupt -- the environmental law landscape to better address the catastrophic, synergistic, and disruptive ecological changes portended by climate change, biodiversity destruction, and social inequality. We asked ourselves, what would it look like if we radically and fundamentally reoriented our environmental law and policy agenda? Is this possible, desirable, or both? 

As we are a diverse group of scholars and thinkers, our conclusions are by no means uniform, but they share a common thread: this is not time for business as usual. The system requires significant, potentially disruptive changes, some of which may make us profoundly uncomfortable. As you will read, Sarah Krakoff and Shannon Roesler ask what law would look like if we conceived of global climate change as a social justice challenge and accordingly remade laws addressing poverty, wealth distribution, public infrastructure, and health care, while Keith Hirokawa and Jonathan Rosenbloom would reorient adaption to climate change by heeding and disseminating legal strategies local governments are formulating. J.B. Ruhl argues that to confront the urgent need for climate change adaptation, environmentalists will have to compromise in strategic ways, while Inara Scott asserts that it is time to bid goodbye to environmental law and start fresh by reconceptualizing a more inclusive, more effective “commons law.”  

Continuing in this line of disruptive thinking, David Takacs suggests radically rethinking biodiversity laws before it is too late to preserve functioning ecosystems or the magnificent creatures that inhabit them, or to save our own species that ineluctably depends upon these ecosystems. Erin Ryan argues that with environmental laws under attack, we must think of creative, out of the box ways to defend it at multiple levels of legal hierarchy. Blake Hudson points out that many kinds of ecological disruption can be tied to land development -- where there has never been much effective law to disrupt in the first place. And in an essay that may surprise many, Robin Kundis Craig argues that in international environmental law, the role of the president may be overstated.  

Melissa Powers writes about the urgent need for deep decarbonization, with clear targets and strategies to achieve them, as Vanessa Casado Perez tackles the problem of rethinking water law to address inevitable conflicts over water shortages. Turning away from the public sector, Jessica Owley suggests an expanded role for private actors in forwarding the goals of environmental law. Importantly, Katrina Kuh challenges environmental lawyers look more closely in our mirrors to insure that embedded professional norms, practices, and structures do not inadvertently contribute to a “malignant normality” that deepens the climate crisis.   

We hope these essays disrupt your thinking in provocative, productive ways, and look forward to opening a dialog with you about how we can reframe, reshape, and ultimately disrupt environmental law to meet the challenges of our day.  

 

Responding to the IPCC Fifth Assessment during the Month of November (from the Environmental Law Collaborative)

As a special post-Halloween treat for the month of November, a series of guest blogs will be appearing here examining the latest IPCC report. The essays are the latest production of the Environmental Law Collaborative, a group of environmental law scholars whose goal is to meet and work collaboratively to discuss and offer solutions for environmental law’s major issues of the day. ELC facilitates dialog among thought leaders on environmental policy priorities, practical implementation strategies, assessment mechanisms, and cooperative analysis of science, economics, and ethics. It has become increasingly apparent that, although environmental policy benefits from a robust drive for the dissemination of information, environmental policy is also influenced by strategic misinformation and effective use of persuasive communication. To advance society and secure welfare at local and global scales, our professional activities must contribute to resolution of the divisive issues that confront our environment.

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Shell, the Arctic, and the Classroom

In late January Royal Dutch Shell announced that the company was putting an end to its efforts to drill exploratory wells in the Arctic Ocean off Alaska’s north coast this summer, and intimated that it may never drill there, at all. The announcement was timed with other recent climate news. Just a day or two later the State Department released its Supplemental Environmental Impact Statement for the 2012 Presidential Permit application for the proposed Keystone XL pipeline. Two weeks after that it was revealed that the Arctic archipelago of Svalbard has been experiencing average temperatures 15 degrees C above normal. But I don’t think Shell made its decision because it worried what President Obama will do with Keystone XL, or because of the ever-mounting evidence of climate change impacts in the Arctic. Rather, the company probably made the decision because the Ninth Circuit held the week before, in Village of Point Hope v. Jewell, that the environmental impact statement prepared for the 2008 lease sale in the Chukchi Sea violated the National Environmental Policy Act.

The Ninth Circuit’s decision is important, of course, because of its immediate impact on oil and gas drilling in the U.S. Arctic. It is also notable, though, from a teaching perspective, for at least three reasons:

First, the decision affirms, in one of the most visible environmental battles of the day, that NEPA remains an important, even essential, tool in the environmentalist’s toolkit, capable of stopping major projects from moving forward, or at least stalling them for the time being. This remains as true as ever, even though NEPA is just a “procedural” statute.

Second, the decision provides a nice illustration of how courts treat the “missing information” requirement under Section 1502.22 of the Council on Environmental Quality’s NEPA regulations in the context of a tiered environmental review. Under this provision, an agency must either obtain information that is “essential to a reasoned choice among alternatives” or explain why such information was too costly or difficult to obtain. But the Outer Continental Shelf Lands Act explicitly provides for multiple levels of environmental review as an offshore lease moves from the original lease sale to actual production and development. Here, the court found that the Bureau of Ocean Energy Management’s analysis of the impacts of a major oil spill did not fail even though it lacked specific information about such things as species population numbers, migratory patterns and breeding habits. According to the court, that data would be relevant at a later stage. Increasingly, it seems that knowledge of programmatic EIS’s is essential to understanding how NEPA works today.

Finally, the decision illustrates how far afield an agency has to go in a technical analysis to run afoul of the statute, and what kinds of evidence attorneys use to demonstrate the “arbitrary and capricious” application of agency expertise. In this way, it stands as a contemporary comparable to the Westway litigation and the Second Circuit’s decision in Sierra Club v. U.S. Army Corps of Engineers, with its improperly timed studies and ignored population of winter bass among the piers on the Hudson River. Here, BOEM estimated the amount of recoverable oil in the Chukchi lease area by estimating production from a theoretical first offshore oil field, an amount that totaled the nice round number of one billion barrels. One apparent reason for focusing on the first field, rather than the entire lease area, was that the BOEM analyst wouldn’t have the relevant data for the larger analysis for two months. Not exactly the best reason to take a predictive approach to a five-year lease sale in a frontier region of the Arctic. And according to two of the judges on the panel, at least, an arbitrary one.  

There is, of course, more: A series of emails that do not paint the agency staff in the best light, ultimately whittling down a range of options to a single number. Skeptical comments on the draft analysis from other BOEM staff.  Highly critical comments from EPA and Fish and Wildlife. Public comments that make plain some of the more obvious flaws in the logic of BOEM’s decision. Courts will defer to agency expertise, and that deference reaches its height out here in the predictive realm, but get enough in-house experts, sister agency staff and clear-thinking citizens to disagree and you might just have a winning case.  

At the end of the day, it was probably most damaging that BOEM chose a number that represented “the lowest possible amount of oil that was economical to produce as the basis for its analysis.” This number then factored into all of the environmental impact assessments, including seismic effects, habitat effects, and effects of the sale on global warming, as well as Fish and Wildlife’ determination that the lease sale would not jeopardize listed species. As it turns out, it was a close call on the spectacled and Stellar’s eiders. Even a slightly higher estimate may have resulted in a jeopardy finding.

That, students will see, is a bad fact for the defense, a good one for the plaintiffs.

- Michael Burger

Why Environmental Law Professors Should Watch "Through the Wormhole"

Happy Independence Day, everyone!

      Unfortunately, I am spending my day with a health issue. By way of a silver lining, that gave me the perfect excuse to catch up on episodes of "Through the Wormhole."  All of which has led me to conclude: If you're still a stranger to "Through the Wormhole," you shouldn't be. (And, by the way, the first two seasons are readily available through Netflix and probably a lot of other services.)

     So, why make the effort to watch?

(1) If you like environmental law, the chances are good that you have at least a passing interest in science. This is cutting-edge science, presented in a very intelligent format.

(2) Okay, it's mostly physics (and mostly of the quantum/cosmological type) -- but how often do we get to go there?

(3) Morgan Freeman hosts. 'Nuf said.

(4) But none of that would be enough on its own for me to feature the show on this blog. The real reason that I think "Through the Wormhole" is worth the effort for environmental law professors is that the show provides EXCELLENT examples of how to teach complex scientific concepts. Each episode starts with a plain English, common-sense explanation of why what you're about to learn is important. You then get some normal-life analogy to explain what the scientists are doing -- for example, smashing a watch becomes analogous to smashing atoms. But the best part of the show are the visuals it treats you to -- pictures, animations, special effects (aliens morphing into scientists being my favorite so far), and all manner of scientific illustrations and data displays -- while the scientists and Mr. Freeman explain (with excellent senses of humor all around) what the heck the scientists are doing.

     I can't say, after watching the episode on subatomic particles, that I can give you a physicist-quality explanation of what a Higgs boson is -- although, in my own defense, the physicists talking about it seemed a little blown away by the concept as well. On the other hand, the episode on the possibility of alien life certainly gave me some new perspectives on water and ecological principles that I plan to incorporate into class, and the discussions of alternate evolutions on Earth (with careful and understandable presentations of the scientific evidence) will have repercussions for how I teach students about deep-sea thermal vent ecologies in Ocean and Coastal Law. I recommend the episode to anyone who teaches biodiversity issues to students.

     More importantly, the series as a whole is giving me some great new perspectives on how to blend lecture, video, and graphics into much more effective presentations of hard-core science than I've been doing to date. I think that the examples from the series will be especially instructuve for how I teach the basic science of climate change in Environmental Law and the basic human biochemical reactions to toxins in Toxic Torts. I'm really looking forward to experimenting next year!

     Give the show a try!

     -- Robin Kundis Craig

Happy World Oceans Day . . . sort of

World Oceans Day is June 8. It’s a relatively new holiday—the United Nations General Assembly decided in 2008 (United Nations Resolution 63/111, paragraph 171) that every June 8, starting with June 8, 2009, would bear the United Nation’s designation of World Oceans Day.

The purpose in designating World Oceans Day was to call attention to the many problems facing the ocean and to raise global awareness of the many challenges facing both marine ecosystems and the humans that depend upon them. In 2013, the theme for World Oceans Day is “Oceans & People.” The day even has its own 43-second video, care of “One World, One Ocean,” which you can view at http://worldoceansday.org.

The interesting thing about the video, however, is that it shows healthy, beautiful oceans teeming with life. The oceans themselves, however, are more often than not in much worse shape than that.

If you read the New York Times Magazine last week (May 26, 2013), you might have noticed that the cover story was about monk seal murders in Hawai'i. Hawaiian monk seals are among the most endangered marine mammals in the world. Most of their breeding grounds are in the Papahanamokuakea Marine National Monument, a limited-access marine reserve covering the Northwestern Hawaiian Islands. (Notably, the murders occurred in the Main Hawaiian Islands, the islands all of us visit on vacation.) And yet, somebody (or several somebodies) wants the monk seals dead.

From one perspective, the monk seal story is sad and disturbing. From another, however, it is a microcosmic example of a macrocosmic phenomenon: Humans are killing the oceans, largely because we don't think we can.

And law isn't doing a whole lot to stop that process, by the way.

The oceans occupy 139.4 million square miles of the Earth's surface, or about 71% of that visible surface. Of course, they also have significant depth--up to almost 36,000 feet at the Mariana Trench.

And we're changing them. If that doesn't scare you, it should.

We're changing the ocean's biodiversity. Even as the Census of Marine Life revealed in 2010 at least 20,000 new marine species after a decade of world-wide research, scientists are predicting that most fish species will be commercially extinct by 2050. In addition, large individuals of marine species are already down to about 10% of what is "natural."

We're changing the ocean's chemistry. As the concentrations of carbon dioxide in the atmosphere increase, the world's oceans are taking up a lot of the excess--about 40% of the anthropogenic carbon dioxide. Their capacity to do so may be decreasing, but even if it isn't, the oceans can't absorb that much carbon dioixide without impact. Through a complex chemical reaction, the absorbed carbon dioxide becomes, essentially, carbonic acid, a phenomenon that has already measurably reduced the ocean's pH. This "ocean acidification" is already interfering with mariculture in the states of Washington and Maine; it may be altering ocean acoustics; and it could interfere with the ocean's ability to produce oxygen for all of us.

We're changing the ocean's currents. As average atmospheric temperatures increase, they both change wind patterns and increase sea surface temperatures. Both of these alterations, in turn, change ocean currents, and the results have been as diverse as new "dead zones" (hypoxic zones) off several coasts and an ocean "hot spot" off the coast of Tasmania, Australia.

We're changing the ocean's temperatures and cycles. The most obvious example is the Arctic Ocean, which set records for the amount of sea ice melt in 2012 and may be entirely ice-free in the summers as soon as 2016. The Arctic nations (Canada, Russia, Denmark, Norway, and the Unites States) are already anticipating increased human use of the Arctic Ocean, including fishing, offshore drilling, and commercial marine traffic. The implications for the mixing of marine species traditionally considered purely "Pacific" or purely "Atlantic" are potentially mind-boggling.

Against this background, the Obama Administration released the National Ocean Policy Implementation Plan in April 2013, available at http://www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf. There's a lot in the National Ocean Policy, and there's a lot in the Implementation Plan. However, one thing notably dropped out between the Draft Implementation Plan and the final Implementation Plan: required marine spatial planning. Marine spatial planning is a demonstrated best practice for reconciling, coordinating, and rationalizing the multiple uses that humans make of the marine environment--including the needs of the marine ecosystems themselves. In the United States, marine spatial planning, implemented well, could also help to rationalize the radical fragmentation of authority that undermines comprehensive ocean governance.

This isn't a government taking the need for increased marine resilience seriously. As I've argued in multiple other fora, we need to transform our ocean law and policy.

Happy World Oceans Day!

-- Robin Kundis Craig

China Environmental Experiences: Table of Contents

Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China.  A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays.  That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):

New Series: Environmental Adventures in China.  “This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”

China Environmental Experiences #2: Rocky Mountain Arsenal.  “But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here….”

China Environmental Experiences #3: Breathing Air with Heft.  “…It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it.…”

China Environmental Experiences #4: Wifi Without Potable Water.  “This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power….” 

China Environmental Experiences # 5: Milk, Pesticides, and Product Safety.  “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.…” 

CEE #6: Environmental Philosophy and Human Relationships with Nature.  “In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy…."

CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity.  “[Previously], I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development….”

CEE #8: Environmental Protection as an Act of Cultural Change.   “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….”

CEE #9: Post Script: Returning from China to the U.S.   “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”

--Erin Ryan

Shifting Seas: The Law's Response to Changing Ocean Conditions - November 14th and 15th at RWU

On November 14-15, 2012, the Marine Affairs Institute at Roger Williams University School of Law is putting on its 9th Bi-Annual Marine Law Symposium. This year's theme is...climate change! (Shocking, right?) But even with all the attention given to climate change at similar events, this symposium fills an important gap: The symposium will specifically address climate change's impacts on the oceans, and the ways in which coastal and ocean law and policy are (and are not) responding. We have scientists, policymakers, practitioners, and a good helping of legal scholars to talk about ocean acidification, rising sea levels, state and munipal adaptation efforts, the implications for the maritime industry, and emerging issues in the Arctic. You can find the agenda here. And here is the description:  

This Symposium will examine the laws and policies that are implicated as climate change impacts coastal and ocean environments. The land-sea  boundary is shifting, ocean water is warmer and more acidic, fluctuating weather conditions and storms increasingly impact coastal communities, and the melting Arctic ice cap raises new international boundary and resource exploitation issues. These changes trigger many corresponding legal considerations for natural resource managers, planners, attorneys, insurers and law enforcement entities.  At this Symposium, experts and legal practitioners from governmental bodies as well as private industry, academia and non-profit organizations will explore the state of the law, how disputes have been handled to date, and what may be on the horizon. Attendees can expect to walk away with the law and policy tools necessary to engage in these rapidly changing issues, and an understanding of the natural and social science behind changing coastal and ocean conditions.

You can contact me if you have any questions. And I hope to see you in Bristol!

- Michael Burger

Live Blogging from Silent Spring @ 50

This morning, I will be blogging live from the University of Utah law school's 17th Annual Stegner Center Conference, "Silent Spring at 50: The Legacy of Rachel Carson." As usual, the conference offers a stellar line-up.

If you want more, you can watch the symposium live (or, later, view the archived version).

The morning session is entitled "The Edge of the Sea: Rachel Carson and the Protection of the Marine World" and features the following speakers:

"Heeding the Signs of a Changing Ocean" -- Susan Avery, President and Director, Woods Hole Oceanographic Institution:

• "Every second breath you take is provided by the ocean."


• "We have entered a new geologic age -- the anthropocene era."


• "The Gulf and other coastal waters have long been a dumping ground for human activities."


• "One thing that I think Rachel would be pleased about is that science [is now] at the stage where you can predict the emergence of harmful algal blooms."


• NOAA "has begun now issuing seasonal red tide alerts in the Northeast."


• "I really think it's harder to get into the ocean than to space. We probably know more about the surface of the moon and Mars than we do the ocean."


• "It's not funded, but we have a national ocean policy."

"Corporate Ocean Responsibility: Business, Sustainable Use and Stewardship of the Marine World" -- Paul Holthus, founding Executive Director, World Ocean Council

• "If we think about where we are now with the oceans, and what Rachel Carson would think today, I think she we be partly despairing and partly hopeful."


• "The economic benefit of the ocean is huge, and it is just beginning to be documented."


• "Everyone has a stake in the oceans."


• "One of the keys" to ocean management "is the realization that best practices by an individual corporation is not enough . . . . Collaboration is needed . . . . The problem is that there has not been a structural process to" bring ocean industries together.


• "Thinking to the future . . . , these are the kind of cross-sectoral things that . . . businesses can get involved in and be part of the solution and not just part of the problem:" (1) ocean governance -- Convention on Biological Diversity, (2) marine spatial planning, (3) regional ocean business councils, (4) smart ocean / smart industries.


• "Marine mammal issues will increasingly affect marine activities, especially shipping."


• "We need to balance that growing need for resources and food and energy with those areas that already have resources."


• "Better data means better modeling and better forecasting," which fundamentally helps businesses, "let alone leading to better environmental management."

"Challenges for Ocean Governance in a Climate Change Era" -- Robin Kundis Craig, Attorneys' Title Professor of Law and Associate Dean for Environmental Programs, Florida State University College of Law

• "I think what we should really be thinking about is how to keep those ecosystems healthy, functioning, and resilient rather than collapsing."


• "The problem is we have one ocean but many governments."


• "As much as we'd like to treat the ocean as one place, there are serious problems for doing that under our current legal system."


• "Marine spatial planning was introduced, internationally at least, before governments were really thinking about climate change. . . . It is not a panacea. . . . It will not really help with climate change mitigation . . . ."


• "Marine spatial planning can help with climate change adaptation, and it" can become "more climate change adaptable."


• "Ocean acidification is the technical fix for anyone who wants to [address] climate change" in the oceans.


• Australia has a climate change adaptation plan for the Great Barrier Reef. In part, it seeks to "fill knowledge gaps," "identify critical ecosystem thresholds," and translate that into management practices.


• "Australia is also using the Reef as a reason to engage in climate change mitigation."
• An example of dynamic zoning possibilities is TurtleWatch, which predicts on a daily basis where sea turtles will be so that fishers can avoid them (and thus prevent closure of the fishery).

-Lincoln Davies

China Environmental Experiences #2: Rocky Mountain Arsenal

As I explained in a previous post, this year I am blogging about my environmental experiences in China, where I am spending the year as a Fulbright Scholar at Ocean University in Qingdao. In this series, I’ll describe what it’s like to live in a rapidly developing society without effective environmental regulation of air, water, and product safety—but also those environmental realms in which the Chinese surpass American efforts, including public transportation, overall consumption levels, and the national commitment to encouraging cultural change toward a “recycling economy” (while Americans argue about teaching climate science in schools). (For the full background on this series, see my introductory post.)

But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here. Teaching environmental law and policy here is, as you would imagine, endlessly enlightening. Environmental decision-making in the U.S. proceeds from very different underlying assumptions than those most prevalent in China. So it was fascinating to begin class the way I usually do, probing the conflicting assumptions about the goals of natural resources management that make the enterprise so challenging in any context.

As many of you probably do as well, I especially like to raise these issues through the Rocky Mountain Arsenal discussion problem posed by environmental historian Bill Cronon (in Uncommon Ground: Toward Reinventing Nature) and nicely excerpted in the Rasband, Salzman, and Squillace NRL textbook. (Attached photo by Oborseth, with Creative Commons license.) This compound outside of Denver was left so toxic after decades of manufacturing mustard gas, napalm, and other chemical weapons that it was completely sealed off from human contact for years after its closure in 1992—a respite from human intervention during which it evolved into the nation’s “most ironic” wildlife refuge. Wildlife driven out of the developing Colorado front-country was finally able to establish undisturbed habitat in the arsenal, notwithstanding its toxic soils and contaminated waters. If the frogs had five legs, at least those frogs had wetlands to live in.

After sharing the story with my Chinese students, we debated the questions posed by Cronon and the textbook authors—how would you best manage these lands in accordance with nature? Would you initiate the massive disruption required to decontaminate the very earth underfoot, even though it would likely displace (and kill) a lot of wildlife? Or should you leave the five-legged frogs alone to live out their happy if shunted lives, peacefully unaware of the toxic soup in which they live? This began a lively conversation with the class that continued pleasantly and provocatively for months.

But over those same months, several of these students also became involved in my family’s experience of navigating the environmental challenges of our new life in China.

A few were there on the day that we arrived in Qingdao, helping us move into our new apartment. There were huge flakes of paint peeling from every wall, window, and doorway, collecting in piles on the floor no matter how often swept, beckoning my three-year-old like so many giant, lightly-sweetened corn-flakes. My very first question to the student in charge, an environmental law major with impeccable English, was whether I should worry about lead in the paint. “Why?” he asked. But even translating the problem into Chinese (and noting the established problem of lead paint in some Chinese toys) didn’t quite convey my concern. He assured me that children all over China grow up without incident in identical apartments with the same kind of paint, whatever it was. (Between this and the fact that the bathroom drain piped dirty water directly into the kitchen tap, we did not last there long.)

Several students traveled with me on congested area highways on days when I was overcome with the fumes of auto-emissions to which they were so accustomed that they didn’t even notice. Many times, on days thick with foul-smelling cloudy air, they assured me that Qingdao is a coastal city, and that this was just fog. Having lived in coastal cities most of my life, I am quite familiar with the difference between fog and smog. Fog is wet, I would say, and it doesn’t sting your eyes or your throat. “You feel this in your eyes?” they would ask, incredulously. I would later discuss EPA’s new Mercury Rule with a group over lunch, touching on its significance for coal-fired power plants. None had ever heard of the relationship between coal-fired plants and mercury, even though we could see three belching furiously into the air just from where we were sitting. Chinese coal doesn’t have any mercury, one assured me.

Others were on hand when our (second) apartment became infested with insects that ravaged us at night until my son looked like a smallpox patient for all his sores. The bites were so intense that bitten fingers would swell and go numb for hours at a time, preventing us from sleeping at all. After two weeks, we were so obviously exhausted and haggard that even my students were anxiously trying to help resolve the problem. And the solution was so obvious to them: just douse the apartment with successive rounds of pesticides as hard and thoroughly as possible until whatever was preying on us was gone. They contacted the building manager to explore options for beginning the process immediately, and secured a promise to do so. The solution was so simple that they were astonished by our polite but strident refusal to allow it.

Although we were desperate to be rid of the pests, we were even more concerned about the potential poisons used to eradicate them. Indeed, one of the hazards of being an environmental law professor is knowing a little too much about the hazards environmental laws are designed to prevent—such as the neurological consequences of organophosphate exposure. We had already puzzled everyone by declining to use the standard pesticide aerators that most Chinese use to kill mosquitoes, opting for minor suffering over the unknown consequences of an inhaled pesticide that we couldn’t research in English. We knew about some very dangerous Chinese chalk pesticides that are especially harmful to children, but we couldn’t evaluate the safety of those being offered to us now. After my son experienced some unusual neurological symptoms as an infant, we had avoided even American pesticides regulated for consumer safety, and this just didn’t seem like the time to shed precautions. But how to explain this to our kind hosts, for whom pesticides are a regular, widespread, and unquestioned part of life?

I finally just had to acknowledge that our behavior probably seemed completely unreasonable to most Chinese people, who would easily opt to fumigate and forget. I said a little bit about my son’s special medical history and explained that we were probably even more cautious than the average Americans. But I also noted the concerns raised by public health advocates around the world about the negative consequences of introduced chemicals in the environment, especially on young children. I explained the care that many American parents increasingly take in limiting the early exposure of their children to potentially dangerous substances in pesticides, cleaning products, and even plastic baby bottles.

In the end, with a little creativity and help from our friends, we were able to find some non-toxic solutions to our pest problem. But a few days later, one of my favorite students came up to me before class to say that he had continued to ponder the pesticide situation—and the eye-stinging air, and the peeling paint. This was the same student who had assured me not to worry about lead paint in the first apartment, and one of the many who regularly assured me that the cloudy air was coastal fog. “I cannot stop thinking this,” he said. And then in hushed but earnest tones: “China is the Rocky Mountain Arsenal, isn’t it?”

My jaw slowly dropped as I tried and failed to form words. He looked at me steadily, with an intense but quiet pain behind his eyes. I hated the comparison between China and a toxic dump. I especially hated it from this brilliant student, so proud of his country’s accomplishments and protective of the many ways that it differs from mine. But he persisted: “Not perfect comparison, I know, but really, the same basic situation, right? Environment is fouled, and we are like those frogs. We don’t even know it, do we? That we live in a toxic world?”

Still speechless, I nodded gently, to acknowledge the part of the comparison that tragically held some truth. Then I mumbled something semi-coherent about the same problem happening worldwide, and I politely turned away to ready my notes for class (but mostly so that he would not see me brush away the wetness from the corners of my eyes).

The pain behind his broke my heart. He was right, of course (and to some extent, his observation holds true for all of us). But in that moment, the last thing I wanted was for my teaching to make him feel ashamed of his country, or betrayed by his government, or panicked about the future—or, really, anything other than just a little more educated than he had been the day before.

But he is that much more educated, and this I did come to do. I am here to teach American environmental law, and in so doing, I find myself surprisingly torn. In sharing with my students some of the ways that I see the world, I necessarily force them to see theirs a bit differently, and it is not always for the best. To be sure, our educational exchange works in both directions, and that student reminded me that all of us are living in the Rocky Mountain Arsenal in varying degrees. But the Chinese students with whom I spend the most time no longer believe that the cloudy air is fog, and I am sad for them that they will now worry for their children in a way that their neighbors won’t. They will worry about mercury poisoning and lung cancer, and worse—they will feel powerless to change it, at least for now. Without genuine levers of participation in governance, there really is some bliss to be had in ignorance.

Their lost environmental innocence is cause for grief, especially when it brings pain without obvious remedy. As midwife for this loss, I share in that grief. But I also cherish the hope that it will one day be a reason for celebration, when—thanks to their generation’s rising consciousness—the air no longer stings. If nothing else, I hope that my students will have that much more fire in their bellies, as their bellies are increasingly well-fed, to protect the next generation more effectively. And on that front, knowing even this small sample of Chinese young people fills me with confidence.

--Erin Ryan

Position Announcement - Environmental ADR Program Director

The Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah S.J. Quinney College of Law has posted a job opening for a new alternative dispute resolution program focused on environmental, natural resources, and energy issues.  The position is for the director of the program.

Here is the announcement.  Note the link at the end for online applications:

The Wallace Stegner Center for Land, Resources and the Environment at the University of Utah S.J. Quinney College of Law is establishing a new Alternative Dispute Resolution (ADR) program focused on environmental, public lands, and natural resource issues and is currently accepting applications for the ADR Program Director. The Director will play a major role in initiating, designing, and developing the new ADR program. Specific responsibilities include identifying issues of local, regional, and national importance and proactively investigating ADR opportunities; public education about the benefits of mediation, collaboration, and other ADR options; providing ADR services to government agencies, corporations, environmental organizations, and other entities; fundraising to support the program; and research on ADR processes and opportunities. Requirements include a Juris Doctor or equivalent degree, along with a minimum of five (5) years of experience in alternative dispute resolution. Experience with environmental, natural resources, or energy law and policy, and especially experience with these issues in the western United States, is strongly preferred. For additional information and to apply, please go to http://utah.peopleadmin.com/postings/11104.

-Lincoln Davies

When the Decline of an Endangered Species Hits Close to Home

   
      

 

 

 

 

 

 

When in college (1997-2002) I was introduced to the Gopher Frog (Rana Capito). A biology professor of mine at the University of Montevallo, Dr. Malcolm Braid, performed research on the frog, including an innovative captive breeding and relocation program. The frog was rapidly disappearing from Alabama due to both urban sprawl in areas of critical habitat as well as the destruction of the longleaf pine ecosystem. The gopher frog has a cousin, the Dusky (Mississippi) Gopher Frog (Rana Sevosa), which had previously been considered a subspecies but was elevated to species status in 2001. Only one small population of the dusky gopher frog now survives in a small area in southern Mississippi (picture above) and the frog only numbers around 100 individuals in the wild (though 1500 live in captivity in a successful breeding program). For more information on the frogs see here and here.

The longleaf pine ecosystem upon which the gopher frogs depend once stretched over 90 million acres across the entire southeastern U.S., but now only around 3-4% of it remains. Fire suppression, urban development, and forestry practices that replaced longleaf with monoculture pine plantations are primarily to blame for the loss of the ecosystem. Not only does the longleaf ecosystem provide critical habitat for the dusky gopher frog, but it also supports a variety of other unique species also listed under the ESA, such as the Gopher Tortoise (about which I have previously written) and the Red-Cockaded Woodpecker, among others (in fact, my pioneering grandfather, in an early effort to engage in the complex task of scientific tracking of species on our forestland in Alabama, spray painted, in red, "Toby" on the back of one unsuspecting - or perhaps suspecting, but slow - gopher tortoise. He would see Toby from time to time and know that he was doing well - except perhaps for the lead potentially leaching into his shell. But that is neither here nor there). The gopher frogs actually get their name because they survive in the burrows of gopher tortoises, which act as a "keystone species" for a variety of other species.

So when I learned of the federal government's plans to triple the area proposed as critical habitat for the dusky gopher frog I was encouraged, even though the proposal only gives the frog "a shot at survival." But at the same time, the news was a bit troublesome - not actually the news, but the memories it dredged up of my lack of understanding of the value of biodiversity when first introduced to the frogs. The gopher frogs of Alabama were some of the first natural resources I ever thought about in a critical manner as I began my college education. To see their habitat continue to be imperiled and to know that other populations of frogs are hanging only by a thread, really hits close to home - in more ways than one. I have previously posted about how global society is not even doing a good job of protecting charismatic megafauna (see Lions, Tigers, and Bears...All Gone?). How much more difficult will it be to preserve these southern treasures reliant on an ecosystem - and a piece of southern history - that we have already almost entirely eradicated? Hopefully the federal government's efforts will be a step in the right direction, and can make a difference before the sun goes down on the dusky gopher frog's time in the south and on the earth.

- Blake Hudson 

In Case You Missed It - The Week of August 28 to September 3

* The Obama administration decided to abandon proposed ozone regulations, which the oil industry and other business interests had criticized as unnecessarily costly.

* Although most of the 9 million people who lost power due to Hurricane / Tropical Storm Irene have had their electricity restored, utilities have gone on the defensive, launching PR campaigns in the face of likely investigations from regulators.

* Tropical Storm Lee has forced evacuation of over a third of oil and gas production platforms and drilling rigs in the Gulf of Mexico.

* Japan has adopted a feed-in tariff that will take effect next year and seeks to incent 30,000 MW of new renewables installations in the next decade.

* Over a thousand arrests have been made of climate change activists protesting the Keystone XL pipeline, including Darryl Hannah and Bill McKibben.

* A beetle called the goldspotted oak borer is threatening trees in southern California.

* President Obama is pushing for a transportation spending bill, to fund federal highway projects and keep fuel taxes in place.

In Case You Missed It -- The Week of August 1-7

* The famine in Somalia continues to worsen.

* Shell received conditional approval from the U.S. Bureau of Ocean Energy Management, Enforcement and Regulation to drill in the arctic Beaufort Sea, off the coast of Alaska.

* EPA proposed a rule that would exempt carbon dioxide streams from hazardous waste regulations under certain conditions.  The hope is to spur greater use of carbon capture and sequestration technology.

* A new PAC has formed to promote energy efficiency legislation.

* If you haven't seen it yet, Science has out an impressive set of materials on population trends, their environmental impacts, and prognostications about what it all means for the future of the planet.

* The leopards are not happy.