Tuesday, November 13, 2018
Disruption as Opportunity
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."
- 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.
- 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.
- 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.
Sunday, November 11, 2018
Katrina Fischer Kuh is the Haub Distinguished Professor of Environmental Law, Elisabeth Haub School of Law at Pace University
This is the sixth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
In the spring of 2018, I joined professionals from a number of fields, including law, public health, science, and psychology, at the Witnessing Professionals and Climate Change conference at Princeton University, to contemplate the impact that the global climate crisis has had on our understanding of professional responsibility. In the rich discussion that ensued, Professor Robert Jay Lifton, Lecturer in Psychiatry at Columbia University and Distinguished Professor Emeritus of Psychiatry and Psychology at the City University of New York, used a phrase—malignant normality—that was referenced throughout the conversation and has resonated with me as I have continued to consider the intersection between climate change and the professional responsibilities of attorneys.
In many important respects, norms of legal professional conduct—as expressed in the AALS Statement of Good Practices by Law Professors in the Discharge of their Ethical and Professional Responsibilities and the Model Rules of Professional Conduct and as exemplified by the actions of many attorneys and professional associations—position the legal profession to provide support and leadership in response to climate change. The AALS Statement of Good Practices provides that law professors have an “enhanced obligation to pursue individual and social justice” and that “engaging in law reform activities or advocating for improvements in law and the legal system is a valued role of legal academics”; the Model Rules encourage attorneys to participate “in activities for improving the law” and allow attorneys when advising clients to “refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.” And the Environmental Law Institute recently co-sponsored the Second National Conference of Lawyers Committed to Addressing the Climate Emergency, which involved participants from across the professional spectrum, including private practice, academia, and public interest.
In other ways, however, legal professional norms may frustrate an efficacious response by the profession to climate change. For example, little attention has been paid to the role attorneys may have played in the energy industry effort to mislead the public about climate science and whether, if at all, the Model Rules speak to that type of conduct. Naomi Oreskes and Geoffrey Supran, InsideClimate News, and the Union of Concerned Scientists have extensively documented how some energy industry actors orchestrated a campaign to market lies about climate science to the public. While the role of attorneys in the climate disinformation campaign is not (yet) clear, attorneys were deeply involved in the similar campaign by tobacco companies to lie to the public about the health effects of smoking. Indeed, climate disinformation is but one in a series of revelations about corporate public disinformation efforts which now perhaps includes the safety of opioids as well.
Yet, while many have recognized that attorneys often advise clients regarding public relations, the Model Rules provide little clear guidance about the norms that should govern attorney conduct in this capacity.
- Model Rule 3.3 (Advocate, Candor toward the Tribunal) prohibits a lawyer from knowingly making a false statement of fact or law or offering evidence that the lawyer knows to be false, but is limited to representations to a tribunal.
- Model Rule 3.6 (Advocate, Trial Publicity) prohibits “[a] lawyer who is participating or has participated in the investigation or litigation of a matter” from making an “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter,” but is limited to lawyers acting directly as spokespeople in the context of an adjudicatory proceeding.
- Model Rule 4.1 (Transactions with Persons Other Than Clients--Truthfulness in Statements to Others) prohibits lawyers from knowingly making a false statement of material fact or law to a third person and from failing to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. But various requirements embedded in the Rule raise uncertainty as to whether and how it could apply to counseling misleading public communications. It may be difficult to show that the underlying corporate conduct constitutes fraud as this is indexed to the substantive or procedural law of the applicable jurisdiction and information protected by privilege need not be disclosed. Additionally, it is not clear what level of knowledge satisfies the requirement for “knowingly” nor is it clear what would be understood to constitute a material fact in that context.
- Model Rule 8.4 (Maintaining the Integrity of the Profession, Misconduct) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation, or to counsel a client to engage in activity that would violate the Rules of Professional Conduct. This would seem, on its face, to be potentially applicable to attorney involvement in corporate disinformation campaigns. However, Model Rule 8.4 has not been interpreted or applied in a context similar to that of counseling corporate public disinformation. The Restatement (Third) of the Law Governing Lawyers cautions courts to avoid overbroad readings of the Model Rule and a review of cases and disciplinary proceedings reveals that the Model Rule has typically been applied to conduct of a very different nature, such as when an attorney helps a client structure a fraudulent transfer to avoid a known creditor or backdates documents.
Can attorneys ethically assist their clients in misleading the public through corporate disinformation campaigns designed to distort public opinion, like the climate disinformation campaign? The answer to that question is frustratingly opaque—there is no clear guidance under the Model Rules. In two companion articles, professional responsibility scholar Michele DeStefano Beardslee reported on the results of a study documenting the increasing role of attorneys in managing corporate public relations and analyzed the Model Rules for guidance regarding attorneys functioning in that role. She concluded that “the current ethics rules, adversarial system, and economic incentives almost predestine that attorneys will aid their clients in misleading the public about corporate legal controversies,” observing that “[f]or statements that misrepresent or stretch the truth, the current interpretations of the Model Rules do little to constrain” attorney advocacy in the court of public opinion.
The lack of clear guidance about the ethical obligations of attorneys advising clients in the public relations context may thus be an aspect of our existing professional, normative structure that has contributed to inertia on climate issues. And there are other climate-relevant aspects of legal professional norms that warrant examination. Chief among these is the continued greenhouse gas-intensive travel to professional conferences that is, perhaps, profligate in present circumstances. Critical assessment of these and other legal professional norms is warranted to insure that embedded professional norms, practices, and structures do not inadvertently contribute to a malignant normality that deepens the climate crisis.
Saturday, November 10, 2018
Sarah Krakoff is the Moses Lasky Professor of Law at University of Colorado Law School
Shannon Roesler is Professor of Law at Oklahoma City University School of Law
This is the sixth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
Since the dawn of the environmental justice movement, we have heard the stories of individuals and communities left unprotected by our environmental laws and policies. Their stories reveal the deep-seated structures of racism and inequality that determine what resources and which people environmental law will protect. Despite risks to the cultural and natural resources of the Standing Rock Sioux Tribe, the federal government allowed the construction of the Dakota Access pipeline. When officials in Flint, Michigan, a majority-minority city where 40% of the people live in poverty, purported to cut costs by switching the city’s water supply, they cut corners and failed to treat the water to prevent corrosion. Their decisions exposed the city’s residents to dangerous levels of lead in their drinking water. Recent hurricanes have again devastated the most vulnerable communities, and yet the President dismisses the 2,975 deaths from Hurricane Maria in Puerto Rico as fake news created by Democrats to make him “look as bad as possible.”
But thousands of people did die. Thousands of people were exposed to lead in drinking water. And the promises made to the Standing Rock Sioux Tribe, long ago enshrined in treaties, were once again broken. How can the next generation of environmental laws do better? If the underlying problems include structural racism and inequality, the answer may require radical change. To achieve environmental justice on a sustainable planet, the next generation of environmental law will have to change in two ways. It will have to have to go beyond the environment and beyond law.
That is a tall order. But if we are asking big questions there is no point in being coy or timid. There are two huge problems facing the planet right now. One is that its stable operating systems are at risk of going awry. Climate change is the signature example, but not the only one. The second is that inequality between rich and poor has increased dramatically over roughly the same period that we have put the planet’s operating systems in jeopardy. To make matters even more complicated, wealth inequality is shot through with the structures of racism and colonialism. So if we are thinking big, we might as well think beyond the parameters of our training and disciplines. We should think about what sorts of cultural, economic, and legal structures would result in a just, equitable, and sustainable world for humans and non-humans. And then we should try to think and imagine a way from here to there.
Time is of the essence. We need new visions of an equitable, sustainable future now. Climate change (which is just one of the earth system boundaries at risk) could soon result in a virtually unrecognizable and volatile planet. In a recent article, Swedish scientist Will Steffen and co-authors outlined a scenario that leads the Earth to a situation where positive feedback mechanisms push “the Earth System toward a planetary threshold that, if crossed, could prevent stabilization of the climate . . . and cause continued warming on a ‘Hothouse Earth’ pathway . . . even as emissions are reduced.” That pathway is not inevitable, but if it is not averted through rapid and steep reductions in greenhouse gas emissions, “Hothouse Earth is likely to be uncontrollable and dangerous to many . . . and it poses severe risks for health, economies, political stability (especially for the climate vulnerable) and ultimately, the habitability of the planet.”
If the “Hothouse Earth” scenario comes to pass, it will occur on a planet marked by dramatic and racialized inequality. Economist Thomas Piketty has documented the rise in inequality since industrialization, attributing it to the fact that capital wealth has grown faster than incomes. The upshot is that the United States and other western democracies have very little economic mobility, and are more similar in this regard to monarchical or feudal societies than functioning democracies. In the United States, the long history of legal, political, and economic marginalization of African-Americans, Native Americans, and other non-whites means that today’s inequality is also marked by race.
Further, recent research has shown that natural hazards not only have disparate impacts on poor and minority communities. But that they too contribute to wealth inequality: “Overall, . . . natural hazard damages are contributing to wealth inequality. Additionally . . . while inequality is occurring along other lines, the most notable inequity is along lines of race, education and homeownership.” In other words, environmental harms not only have disparate economic and racial impacts, they also entrench racialized inequality.
In the current cultural and political moment, the structural causes of environmental degradation, rising inequality, and racism are converging in troubling ways. Following the election of President Barack Obama, a study found that white Americans were less likely to view climate change as a serious problem, suggesting a link between racial resentment and climate change denial. Moreover, under the Trump administration, U.S. environmental policies have actively excluded the most vulnerable communities. For example, shortly after President Trump assumed office, the head of EPA’s environmental justice office resigned in response to the administration’s proposed cuts to environmental justice programs. In addition, the administration’s new $1-7/ton social cost of carbon completely ignores the costs of global warming outside the United States, an isolationist approach to a quintessentially global problem. The Trump administration’s indifference to the risks of a warming planet places the nation’s, and the world’s, most vulnerable populations at greatest risk. It is hardly surprising that a journalist summarized the most recent international report on climate change in the following way: “Either way, the outlook is dire, especially for the poor.”
So what would laws look like that could take us off of the pathway to a deeply unequal “Hothouse Earth” and toward a just, equitable, and sustainable planet? They would look like anti-poverty laws, wealth redistribution laws, public infrastructure laws, and health care laws. They would also look like much stronger and more directive environmental laws with interlinked goals of just and equitable decarbonization. And environmental laws would engage at all scales of governance, making local issues of educational segregation and housing inequality national priorities. In short, they would be laws that simultaneously ensure a just, equal, and free society, and that protect the ecological foundations of the planet.
To achieve such laws (and the economic system in which they would participate), it will likely take the kind of massive and diverse activism that resulted in the civil rights and environmental law-making moments of the 1960s and early 1970s. It will take a movement that seeks more than legal change. Yet there is plenty for lawyers to do. Without lawyers to do the work on the front end, and to be standing by during and after the chaos, the chances of getting on the right path are greatly diminished. In short, to get on the path to a just, equitable, and sustainable Earth, it will take much more than legal change, but it will require no less than the full attention of lawyers committed to defeating racism, reversing inequality, and saving the planet.
November 10, 2018 in Air Quality, Climate Change, Current Affairs, Governance/Management, Law, North America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink
Thursday, November 8, 2018
Keith H. Hirokawa is Professor of Law at Albany Law School
Jonathan Rosenbloom is Dwight D. Opperman Distinguished Professor of Law at Drake Law School
This is the fourth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
A brief perusal of the history of environmental law illustrates the ways law might be employed to suffer through a constant state of disruption. In the past, we have largely relied on state and federal environmental legislation and regulation to accomplish the task, in part because of a fear that local governments will “race to the bottom” and take a competitive advantage against their more regulatory-prone neighbors. We would suggest that the reliance on state and federal regulation, as well as the lack of confidence in local governance, has served to undermine sincere dialogue on the potential of local government to govern well both within and across boundaries.
The present circumstance of climate and ecological disruption will provide an opportunity to revisit the issue of local environmental law. Specifically, climate change will require more engagement with local governments because of the local stakes involved. Given current and likely future disruptions from rising sea levels, heat waves, and storm events, local governments will be faced with coastline insecurity, vulnerable infrastructure and difficulties in meeting essential human needs, geological instability, uncertain ecological changes (such as invasive species), water scarcity, and population migration. Such changes will permeate social, economic, and environmental expectations in every community. Given the role that local governments play in responding to challenges to local quality of life and security, local governments will inevitably become players.
There are and will be instances where local governments manipulate social, economic, and environmental resources to protect their own. But there are and will be examples that illustrate the contrary. Some local governments forego regulation of extraction and resource development, while others will adopt more comprehensive land use regulations that maintain ecosystem services and other quality-of-life determinants. But differences in local governance are neither surprising nor unwarranted – governments illustrate legitimacy though responsiveness to local needs, and local needs differ across boundaries. More importantly, norms and values develop in very local ways, and it would be a mistake to disregard value differences, even at minute levels, that occur across borders.
Local is not only a circumstance that is relevant to understanding particular governmental actions. Local also provides a framework for understanding common concerns such as shared resources, regional circumstances, and intergovernmental cooperation. And, in the context of disruption, local can play a significant role in at least the following four categories: responsiveness; baseline information generation; innovation research; and normalization.
- Local is Responsive to Change
Environmental disruption is coming and, in fact, is here. Law will have to develop new strategies to face the new challenges and immediacy will be a factor. Government strategies should be designed to launch on short notice. It is easier to experiment with new regulations and approaches at the local level: first, because the closeness of local government to governed communities demands it; and second, because the scale of local governance makes debate, passage and implementation of new approaches easier.
Local governments are acutely responsive to social, economic, and environmental change for good reason. Regardless of how such disruptions are perceived on a regional, state or federal level, they are felt locally. The invention of the elevator and automobile fundamentally altered the role and potential of urban areas to provide homes and economic opportunities. In turn, such disruptions helped shape attention to infrastructure and governmental service needs. More recently, local governments have expeditiously responded to water shortages by prohibiting water waste, restricting specific water uses, and requiring installation of efficient water fixtures and grey water use in new construction and building renovations. Similarly, local governments have controlled stormwater flows by implementing measures for permeable pavements, green roofs, and rainwater harvesting. See, e.g., Chatham, MA, Protective Bylaws § 4(B) (2016) (floodplain development and permeable driveways);Denver, CO, Code of Ordinances §§ 10-300 to 10-308 (2017) (green roofs);San Diego, CA, Rain Harvesting Rebate Program (cash incentives rain barrel installation).
- Local as Source of Baseline Information
As a matter of course, local governments gather and assess information on local vulnerabilities to disruptions. Local governments keep a watchful eye on natural and built infrastructure assets, the availability of nature resources, housing stocks, access to food and energy, and population dynamics. Local governments often require permit applicants to provide critical information on development elevations, habitat values, and slope stability. Likewise, local planning and development review processes have resulted in a wealth of information on groundwater budgets, canopy cover, and buildable lands. Other local governments require energy benchmarking and audits for larger buildings and governmental operations. See, e.g., Atlanta, Georgia Code of Ordinances § 8-2002 (2016) (requiring both energy benchmaking and auditing for certain public and private buildings); Denver, CO Code of Ordinances § 4-53 (2016) (commercial building benchmarking and reporting); Seattle, WA Municipal Code § 22.920.010 (2010)(requiring building benchmarks and reporting); Austin, TX Code of Ordinances § 6-7-31 (2011) (commercial facilities required to calculate annual energy budget). The information is commonly used to inform a variety of local government decisions such as land use planning and permitting, budget decisions and infrastructure planning, event planning, intergovernmental cooperation and even the exercise of eminent domain. The information helps to identify future risks and costs, the potential for public interest in particular problems, and the solutions that might be relevant.
Local governments are not better at gathering this information due to sophistication or funding. Local governments are better at it because of their access to a deep pool of relevant information and their lens through which the information is discerned. The important point here is to recognize the critical role of location to the way local governance happens. Based on geological, ecological, economic, and cultural circumstances, communities adapt to the demands of living in a particular place because communities must survive in their own place. This type of experienced information is tattooed with the values that particular resources have to their beneficiaries and users and reflected in local resource decisions.
- Local as a Laboratory for Innovative Responses
Communities approach particular changes in their own ways – some dig in to wait out changes, some take more protectionist ideals and seek to maintain the status quo through zoning, where others employ more forward-thinking measures through long range planning. It should not be surprising that different communities often understand changing circumstances in ways that appear to contradict. But it is also not surprising that a particular community’s reaction to new challenges follows more or less the same basic premise: although local needs and circumstances will vary, human needs and quality of life are the common driver.
Accordingly, the third observation about the importance of local is variation in innovation. The development of technologies and approaches to construction, infrastructure, economic development priorities, education, and housing (and others) are designed to resolve the effects of disruption and secure a community’s vision against the backdrop of change. Importantly, variation in local responses to disruption generates significant information on what works and the local circumstances that facilitate stories of success.
Many local governments are experimenting with incentives to promote green building techniques and even requiring developments to implement the most sophisticated building materials. While the federal government pursues policies that support coal and concrete, local governments are pushing forward with promoting technologically advanced forms of building. Lancaster, California, requires that many new buildings meet net zero standards or be outfitted with a solar energy system that can produce two watts of power for every square foot of the home. Lancaster, Cal., Energy Code § 15.28.020 (c) (2017). Georgetown, Texas, offers multiple incentives, including net metering and rebates, for residents to add renewable energy sources to their properties. Georgetown, TX, Code of Ordinances § 13.04.083 (D) (2) (2012). Miami Beach, Florida, a city already struggling with climate changes, is assessing building fees to combat the impacts of rising sea levels through innovative projects such as environmental restoration projects, monitoring, green infrastructure, and stormwater quality improvements. Miami Beach, FL, Code of Ordinances § 133-6(a)(2016).
- Local as Normalization
Elevating location in an analysis of environmental governance does not suggest any particular value as a normative matter. There will be few response strategies that will be effective in every community, and a “good” strategy may be best guided by the notion that it is good if it would work here. In the meantime, preemption is a good check on local governance, and top-down approaches to land use regulation may offer meaningful constraints on the bad kind of intergovernmental and inter-community competition. Nevertheless, the pervasiveness of location suggests that we should not rush to preempt local initiative. In the meantime, although local should be recognized for uniqueness, the contingencies in the arena of local regulation can serve as a gauge for developing norms. Successful strategies can be borrowed and adapted to different communities, which in turn will generate additional confidence as response strategies across the spectrum of ecological, geological and hydrological difference normalize in the common goals that drive locational adaption.
Wednesday, November 7, 2018
Does the President Really Matter to U.S. Participation in International Law? A View from the Perspective of Oceans Law
Robin Kundis Craig is the James I. Farr Presidential Endowed Professor of Law, University of Utah S.J. Quinney College of Law.
This is the third in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
How much do Presidents really matter to the United States’ participation in international environmental law?
Fairly obviously, presidential turnovers in the United States are absolutely critical to how the United States conducts its international relations. President George W. Bush’s pursuit of Middle Eastern terrorists in the wake of 9/11, including wars in Iraq and Afghanistan, represents a far different engagement with the rest of the world regarding international terrorism than President Obama’s reliance on drones and attempts to bring American troops back home. In turn, President Obama’s engagement with the rest of the world on climate change, including committing the United States to the Paris Accord, represents a radically different path than the one President Trump has thus far chosen to walk with regard to the same issue. Indeed, President Trump’s “America First” approach to international relations shows every sign of becoming one of the most presidentially-driven idiosyncratic periods in the United States’ relations with the rest of the world since at least the conclusion of World War II.
But how much does any of that matter to the United States’ participation in international environmental law?
The issue, of course, is that the United States Constitution formulates treaty-making as a two-body problem: The President signs and the Senate advises and consents. Failure of the United States to participate can occur at either stage. For example, President Clinton signed but Congress refused to ratify the 1997 Kyoto Protocol to the 1992 United Nations Framework Convention on Climate Change (to which the United States remains, at least for now, a party). Indeed, as of late August 2018, according to the U.S. Department of State, Presidents have sent 42 treaties to the U.S. Senate that still await the Senate’s advice and consent to ratification.
One of those 42 treaties is the 1982 United Nations Convention on the Law of the Sea (UNCLOS III). President Reagan refused to sign the treaty when it opened for signature while he was in office, but President Clinton signed it on July 29, 1994. It has been sitting with the Senate since October 7, 1994—that is, through Presidents Clinton, Bush II, Obama, and, so far, Trump. Clearly, the identity of the Chief Executive has not mattered much to the United States’ failure to ratify.
Perhaps perversely, however, the United States’ non-ratification and the identity of the Chief Executive also don’t seem to have mattered all that much to the treaty’s operation—including in U.S. waters. Of the 193 United Nations member states, 168 (including the European Union) have ratified this “constitution for the ocean,” which went into effect on November 16, 1994. The United States follows UNCLOS III’s jurisdictional provisions on the grounds that they are customary international law. Indeed, after refusing to sign the treaty, President Reagan first proclaimed a 200-nautical-mile Exclusive Economic Zone for the United States in March 1983, then in December 1988 added a 12-nautical-mile territorial sea —both exactly as UNCLOS III allows. All subsequent Presidents have accepted these proclamations. Finishing up, in September 1999, President Clinton proclaimed a contiguous zone for the United States out to 24 nautical miles, https://www.presidency.ucsb.edu/ws/?pid=56452—and, again, all subsequent Presidents have accepted that declaration. In addition, the United States ratified the supplemental Agreement for the Implementation of the Provisions of the Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocksin August 1996, and this treaty came into force on December 11, 2001.
The United States has perhaps been most out of step with the rest of the world with regard to rights in the seabed. In September 1945, more than a decade before the first Law of the Sea conventions opened for signature in 1958, President Harry Truman proclaimed the United States’ assertion of control over the continental shelf, a post-World War II recognition of the importance of offshore oil and gas reserves. The United States’ most prominent objection to ratifying UNCLOS III was its treatment of the deep seabed (denominated “The Area”) and its minerals as “the common heritage of mankind.” However, deep seabed mining is just now getting underway, and, so far, it is taking place only on the deeper parts of continental shelves controlled by coastal nations (gold and copper deposits off the coast of Papua New Guinea, and iron sands off the coast of New Zealand). As a result, the United States’ objection might be regarded as 40 years premature.
Even with respect to the seabed, however, the United States is beginning to behave like the rest of the world. Specifically, the United States is mapping its extended continental shelf in the Arctic Ocean in conformance with UNCLOS III—even though our non-ratification of the treaty means that we cannot submit a claim to that extended shelf to the Commission on the Limits of the Continental Shelf. Moreover, U.S. companies like Lockheed Martin prefer the legal safety of UNCLOS III when pursuing deep seabed mining; Lockheed Martin formed a U.K. subsidiary, UK Seabed Resources, so that it could receive its mining licenses from the International Seabed Authority pursuant to the treaty. Such industry preferences and the United States’ interest in the Arctic might finally induce the Senate to ratify the treaty.
Maybe. The larger point here, however, is that the United States’ relationship to UNCLOS III has been more or less the same since President Reagan, despite the fact that he did not sign the treaty and President Clinton did. Part of the reason, no doubt, is that President Eisenhower signed, and the Senate under a new President Kennedy ratified, the four 1958 United Nations Conventions on the Law of the Sea, which set forth many of the same kinds of obligations and rights as UNCLOS III. Another part, no doubt, is that the new jurisdictional provisions in UNCLOS III, and many other of its provisions, work to the United States’ advantage. But an important part of the reason is that Senate procedures and politics—not presidential inclination—have been an effective roadblock to ratification, underscoring the basic constitutional point that the United States’ assent and strict adherence to international environmental law is only partially a matter of who the President is.
Monday, November 5, 2018
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.
November 5, 2018 in Agriculture, Air Quality, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, North America, Sustainability, US, Water Quality | Permalink
Monday, November 3, 2014
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.
November 3, 2014 in Biodiversity, Climate Change, Current Affairs, Energy, Forests/Timber, Governance/Management, International, Land Use, Law, Sustainability, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)
Thursday, April 24, 2014
China's Amendments to its Environmental Protection Law: Can it really lift the curse of Midas Touch?
News reports are abuzz with China's amendments to its environmental protection law that will come into effect in January 2015. The amendments reportedly add several new provisions that primarily strengthen enforcement by increasing the amount of fines imposed on non-complying polluters on an ongoing basis (that is for each violation) as opposed to a single pollution, as well as providing for some form of punishment such as demotion of officials that fail to enforce China's pollution control laws. It also reportedly supports whistle blowing to enable citizens to take action much like citizens suit provisions in the United States. A report of China's new law is available here.
Without having the benefit of reviewing the actual laws, it is hard to comment about the prospect of China's new laws. However, one must admit that at the very least it is a step that demonstrates China's serious commitment to tackling domestic environmental problems that are steadily becoming catastrophic in proportion. It is highly symbolic since it is a big step towards action as opposed to rhetoric.
Yet, much as I hate to sound pessimistic, the law fails to make any fundamental changes to addressing its environmental woes. The law remains essentially regulatory; essentially dependent on government officials to enforce. Will the threat of demotion, if found guilty of non-enforcement, suffice to improve enforcement in a country the size of China? Can a company influence the law-making process so as at least make compliance easier, so as to avoid the problem of facing fines for non-compliance? Will a large enterprise be affected by naming and shaming? I ask these questions because the law in its original form (here) was not entirely lame. The law had enough room for stringent enforcement, including preventing the importation of obsolete technology. However, these provisions were never enforced. The new law appears to focus on enforcement, but assumes that greater fines, threats of demotion, and potential for shaming will make a dint. The sad reality is that these tactics have not been successful even in developed countries. Can they be effective in a country where transparency is sorely lacking?
Monday, March 31, 2014
Recently I have been reading Windfall: The Booming Business of Global Warming, by the journalist McKenzie Funk. It is a fun and illuminating, if somewhat frightening, read. Funk takes to the road—in a trans-planetary sense—to report on the entrepreneurs, engineers, hedge funds, investment banks, corporations, nations and others who are angling to profit from climate change. The prose is accessible and engaging, the perspective deeply informed. The chapters would serve as excellent conversation generators in the classroom.
I mention this not only to share a good read, but also because the concept at the center of Funk’s book is closely related to an interdisciplinary study I am undertaking with the visual artist and landscape photographer Alex Heilner. Alex and I hope to explore the industrialization of the Arctic that will inevitably come with increased access to offshore oil and gas and to onshore mineral and carbon deposits, with the opening up of the Northern Sea Route and the Northwest Passage that makes transport of extracted resources more feasible, with easier cruising for tourist vessels, and with the re-focusing of the world’s attention on the Far North. The process, of course, is already underway. Last summer Alex and I embarked on our maiden voyage, a two-week road trip across North Norway. A selection of Alex’s photos is here.
I am still working on sorting through my interview notes and observations to craft an intelligent story about what is going on up there, but, in short, what we found was an intriguing instance of interlocal competition on the Arctic frontier. Ports, municipalities and private investors are all looking for opportunities to build facilities that can serve the Arctic oil and gas and maritime shipping industries. Planners and economic development officials are dreaming big. Everyone in North Norway wants to be a climate “winner.” There is some resistance to increased Arctic drilling from the Green Party, but Norway is, as one interviewee told me, a “benevolent petrostate,” and for most people “oil and gas is king.” As a result, North Norway—long a land of cod fishing and reindeer herding and mining for iron ore, and a place absolutely devastated by WWII—is in growth mode. It is a microcosm of the broader changes Funk writes about, making the global phenomenon visible in development pressures and land use changes in a few of the small places at the top of the world.
- Michael Burger
Wednesday, February 26, 2014
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
Friday, July 26, 2013
Whatever term you choose to describe the technique, hydraulic fracturing and horizontal drilling of oil and gas wells continues at a fast pace. The law, too, is quickly changing. If you're teaching or writing in this area this fall, I've listed some of my favorite resources below. Some of these aren't so new--they're just helpful (I think). This post describes sources associated with unconventional oil and gas development generally--not just fracturing, which is one stage within a larger development process.
The relevant formations: Much of the oil and gas produced in the United States comes from unconventional oil and gas formations -- defined by Q.R. Passey et al. as “hydrocarbon-bearing formations and reservoir types that generally do not produce economic rates of hydrocarbons without stimulation"--meaning that something more than drilling is required. These formations include coalbeds, tight sandstones, and shales, but shales contain the most abundant hydrocarbons. This oil and gas comes from organic matter that was deposited "along the margins of lakes or seas" millions of years ago. The quantity and type of oil and gas formed from this organic matter depends on a number of factors, including the type of organic matter deposited and the quantity of sunlight and nutrients it had; the rate and amount of organic matter destruction by microbes, oxidation, and other processes; and the mixing and diluting of this organic matter with other substances as sediment built up and the matter was trapped within rocks. Heat and the maturity of the organic matter and rock are also important: in most gas-containing shales, geologists would normally expect to see oil due to the type of organic matter there, but the shales are "mature" and were subjected to high heat, producing residual gas trapped within the rocks. All of the above is a summary of Q.R. Passey et al.'s work, which does a much more accurate job of explaining the oil and gas production process.
How much gas and oil?: The Energy Information Administration has a helpful report on global shale gas and oil reserves. The Energy Information Administration projects a "44-percent increase in total natural gas production from 2011 through 2040" in the United States due largely to unconventional resources. Several liquefied natural gas export terminals are proposed. The Federal Energy Regulatory Commission has approved the Cheniere/Sabine Pass LNG terminal in Louisiana, and the facility website indicates that the terminal will be "capable of liquefying and exporting natural gas in addition to importing and regasifying foreign-sourced LNG." The project is still under construction.
The technology: It's not only fracturing that has caused domestic oil and natural gas production to rise dramatically. There are three key changes that contributed to the modern boom. First, wells that will eventually be fractured are often drilled with a horizontal drilling technique--drilling vertically down to a formation (sometimes as far as 12,000 feet--see this Halliburton document for various formation depths) and then laterally through the formation to expose more surface area, and thus more oil and gas. Often, the portion of the formation targeted is quite narrow--often less than one meter thick, for example.
Second, hydraulic fracturing is a key technology, but it has (as industry notes) been around for a long time. Depending on how you parse terms, you could trace it back to the 1800s, when companies used nitroglycerin to break up underground formations. The technique has, of course, changed quite a bit since then. The fracturing used from about 1949 and on tended to use very heavy gels and large quantities of proppant (sand) to prop open fractures when they were formed. Other older fracs used mostly water. But what really changed in the late 1990s was the use of water (lots of it) combined with some chemicals, in a sort of hybrid of the earlier gel and water techniques. Energy companies, with government support, developed this slickwater fracturing technique in Texas's Barnett Shale--and more recently transferred it to other formations. The water, injected at very high pressure down a well, rushes out of the perforated portions of the well and forms fractures in the formation around those portions. Acid injected before the water can also help form fractures.The third key technological component is the use of multiple, staged, fractures along one wellbore. Fracturing companies separate the well into different intervals (think of "compartments" within the horizontal well) using equipment called packers. The companies fracture each interval, which greatly enhances well production.
The regulation: I've written earlier posts about federal exemptions for oil and gas and fracturing. These exemptions, and tradition, leave much responsibility to the states, municipalities, and regional governments. But the regulation of oil and gas development is very much in flux.
Federal: As of January 1, 2015, onshore gas companies will have to capture the volatile organic compounds emitted from the well and the flowback water that comes out of the well after fracturing.This will greatly reduce methane emissions. The EPA is also writing standards that require the treatment of flowback water and salty waters naturally produced from the well; it appears that these standards will apply to direct discharges to water and indirect discharges to a publicly owned treatment works. The EPA initially suggested that it would require disclosure of the chemicals used in fracturing under the Toxic Substances Control Act, but not it appears that it will simply aggregate information disclosed at the state level. Finally, the EPA is drafting Safe Drinking Water Act permitting guidance for hydraulic fracturing that uses diesel fuels, and the BLM has issued several versions of draft rules for fracturing on federal lands.
In terms of studies, the EPA had concluded in a draft report that fracturing in an unusually shallow zone contaminated groundwater in Pavillion, Wyoming, but industry has criticized the study, and the EPA recently passed control over continued study to the State of Wyoming. The EPA's nationwide study of the impacts of fracturing on groundwater is ongoing; the most recent release was a lengthy progress report. The U.S. Geological Survey is conducting a broad-based water quality study in regions where there is drilling and fracturing. One USGS study in Arkansas found no impacts on water quality from "gas-production activities." The EPA is also investigating how to control induced seismicity issues caused by Class II underground injection control wells for oil and gas wastes, although it has not yet revised the Safe Drinking Water Act to address the problem. Finally, the DOE's Shale Gas Production Subcommittee produced a report with recommendations for generally improving regulation of shale gas development.
The Fish and Wildlife Service has also begun to be more active in this area. On July 18, 2013, it issued a final rule listing the diamond darter--a species in the Marcellus Shale region--as endangered.State: State regulation continues to change quickly, with Nebraska being one of the most recent states to propose required disclosure of fracturing chemicals. In January 2013, Mississippi approved rules requiring that surface casing (steel lining cemented into the well) extend 100 feet below groundwater, and the rules also require chemical disclosure. In 2012, Utah enacted new rules requiring chemical disclosure and that wells be pressure tested before drilling and fracturing (thus helping to verify that the wells can withstand the high pressures of fracturing), among other protections. Also in 2012, Colorado implemented requirements for testing of water quality prior to drilling and fracturing (requiring testing of a maximum of four water sources around each well) and made other changes. Further, Ohio enacted SB 315 and SB 165 (2012), and West Virginia enacted HB 401 (2011), all of which modify oil and gas development rules. Over the past few years, Arkansas, Montana, and other states also have changed their rules to address fracturing. For some recent summaries of state regulations, see Resources for the Future's The State of State Shale Gas Regulation and its Shale Maps; summaries and a report from the National Conference of State Legislatures; and American Law and Jurisprudence on Fracing by Haynes Boone.
Local and state: The Pennsylvania Supreme Court has still not issued an opinion regarding the constitutionality of Act 13, which required municipalities to allow drilling and fracturing in nearly all zones and allowed them to impose a fee on unconventional gas wells. A commonwealth Court in Robinson Twp. v. Commonwealth, 52 A.3d 463 (Pa. Cmwlth. 2012) struck down portions of the Act as unconstitutional, finding that it was a substantive due process violation to require municipalities to accept this industrial activity in most zones. In Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d 450 (N.Y. Sup., 2012), and Cooperstown Holstein Corp. v. Town of Middlefield, 106 A.D.3d 1170 (N.Y.A.D. 3 Dept. 2013), New York trial courts determined that despite state language preempting laws "relating to the regulation of oil and gas," towns may use their land use authority to prohibit natural gas development. A West Virginia court, on the other hand, found Morgantown's hydraulic fracturing ban preempted because of the relatively comprehensive (but not directly preemptive) state oil and gas law. See Northeast Natural Energy LLC v. City of Morgantown, Civil Action No. 11-C-411 (W. Va. Circuit Court 2011). In Colorado, where the citizens of Longmont banned hydraulic fracturing, the Colorado Oil and Gas Association made a similar argument against the ban--essentially arguing that Colorado's oil and gas rules occupy the field. The state's Oil and Gas Conservation Commission was reportedly recently joined in the suit.
Industry best practices and recommended state regulations: The State Review of Oil and Natural Gas Environmental Regulations has guidelines for how states should regulate drilling fracturing, which are voluntary. If states agree, STRONGER reviews state programs for compliance with these guidelines. The American Petroleum Institute also has a number of suggested best practices for hydraulic fracturing, and industry and environmental groups have proposed fifteen performance standards through the Center for Sustainable Shale Development.
Courts: Go here to see Columbia Law School's digest of hydraulic fracturing cases and here for Arnold and Porter's chart of hydraulic fracturing cases. In 2008, the Texas Supreme Court in Coastal Oil v. Garza, which held that an individual could not recover trespass damages for the drainage of natural gas caused by fractures that extended into a mineral estate, but a federal district court in the West Virginia case of Stone v. Chesapeake Appalachia, 2013 WL 2097397 (N.D. W.Va. 2013), recently disagreed, finding, in denying summary judgment to defendants:
"[T]his Court finds, and believes that the West Virginia Supreme Court of Appeals would find, that hydraulic fracturing under the land of a neighboring property without that party's consent is not protected by the “rule of capture,” but rather constitutes an actionable trespass."
There's also a split among district courts (and possibly circuit courts) on whether the Migratory Bird Treaty Act requires some sort of action directed at a bird in order for the actor to be liable. When birds dies in North Dakota Bakken Shale waste pits, the federal district court found that this was not enough to make the oil company liable for a "take": "The terms “take” and “kill” as found in . . . the Migratory Bird Treaty Act are action verbs that generally denote intentional behavior." See U.S. v. Brigham Oil and Gas, L.P., 840 F.Supp.2d 1202, 1212 (D.N.D. 2012). The U.S. District Court for the Southern District of Texas, on the other hand, found that "[i]f an operator who maintains a tank or pit does not take protective measures necessary to prevent harm to birds, the operator may incur liability under federal and state wildlife protection laws," including the MBTA. United States v. Citgo Petroleum Corp., 893 F.Supp.2d 841, 847 (S.D. Tex. 2012).
Science: Recent and semi-recent papers have been released that further describe the links between Class II underground injection control wells and induced seismicity, including in Dallas and Fort Worth, Texas, Oklahoma, and Ohio. Nathaniel Warner and other authors who published an earlier study on potential methane migration from Marcellus Shale wells published a more recent paper exploring brine in shallow aquifers. D.J. Rozell and S.J. Reaven also have a good paper addressing "five pathways of water contamination: transportation spills, well casing leaks, leaks through fractured rock, drilling site discharge, and wastewater disposal." For those looking for an overall summary of potential environmental impacts, the National Park Service produced a useful document in 2008.
With respect to climate, MIT researchers published an interesting (and potentially disturbing) report suggesting that cheap gas threatens to substantially delay technologies like carbon capture and storage. The International Energy Agency's "Golden Age of Gas" report also warns that gas alone will not lead to a goal of stabilizing average global temperature increases to 2 degrees Celsius. Natural gas displaced coal in U.S. electricity generation in 2012, and domestic greenhouse gas emissions dropped, but in 2013, natural gas use in generation has declined from 2012 highs. And with respect to methane leakage associated with natural gas production, for a good comparison of estimates see Jeff Tollefson's article in Nature.
Social impacts: For a report on gas attracting chemical companies and manufacturers to the United States, see this American Chemistry Council document. For impacts on local economies, Penn State has a number of good sources. And for interesting numbers showing the strain on infrastructure and services created by a booming oil or gas economy, see Williston, North Dakota's Impact Statement.
And if you haven't fallen asleep yet from this post, see also Gregg Macey's recent "Fracking Fatigue" post for great sources, commentary, and research ideas. A post on recent fracturing scholarship and theory would be almost as long as this one--I'll save it for another day.
Thursday, July 4, 2013
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
July 4, 2013 in Biodiversity, Climate Change, Physical Science, Science, Sustainability, Television, Toxic and Hazardous Substances, Water Resources, Web/Tech | Permalink | Comments (1) | TrackBack (0)
Sunday, June 2, 2013
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 https://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 https://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
June 2, 2013 in Biodiversity, Climate Change, Economics, Food and Drink, Governance/Management, Law, North America, Science, Sustainability, US, Water Resources | Permalink | Comments (0) | TrackBack (0)
Saturday, April 20, 2013
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….”
April 20, 2013 in Air Quality, Asia, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Environmental Assessment, Food and Drink, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)
Friday, December 21, 2012
Sustainability is the most influential environmental idea of the last thirty years. Yet, what sustainability is, what it looks like, is hard to define. One can read through all 50 pages of “The Future We Want,” the outcome document from last summer’s Rio+20 conference, and still not know what, exactly, the term means. I suggest that we can more completely understand sustainability if we recognize it is not only an idea or a policy goal, but also a particular kind of environmental story: the pastoral utopia. And we can understand what sustainability means in the age of climate change if we recognize that this utopian vision has come into conflict with a competing story: the environmental apocalypse.
The differences between sustainability and climate change, utopia and apocalypse, are stark. Sustainability promises that humanity—operating on scales from global civilization to local enclaves—can achieve simultaneous economic development, environmental protection, and social equity, a kind of holistic harmony that requires hard labor but no sacrifice. Climate change, in contrast, reveals that existing patterns of economic development have led to massive environmental disruption and potentially gross inequities that fundamentally threaten the world as we know it. Sustainability focuses on humanity’s technical ingenuity and imaginative potential. Climate change focuses on crisis and catastrophe. Sustainability promises we can thrive. Climate change demands we figure out how we can survive. Sustainability is a comedy, showing us how despite and because of our foibles we can overcome serious obstacles to find a new, happy equilibrium. Climate change is an epic drama, pitching forces of good against evil, creation versus destruction, and calling on heroes to aid in the fight.
Accepting, as I do, that climate change poses a real crisis, the question arises: How does sustainability figure into contemporary environmental discourse? Here, I propose three possible answers:
Sustainability is Bad: Sustainability emerged as an inclusionary, reform-oriented storyline, promoted by and within the context of institutional actors like the United Nations Environment Program, the Organization for Economic Cooperation and Development, the World Bank, the environmental sciences community, and the highly professionalized environmental non-government organizations. Serious problems have emerged from these origins. Most importantly, sustainability has failed (and was designed to fail) to compel the radical transformation at the core of the countercultural social movement that invented modern environmental politics. Rather than inspire changes in the way we live necessary to actually redress the environmental crisis, the sustainability story brackets big-ticket items like capitalism and consumerism, reifies existing actors and hierarchies, and affirms basic patterns of social organization, production, and consumption. In short, it is a deceptive story that perpetuates existing power dynamics that are in many respects the causes of climate change.
Sustainability is Mostly Harmless: Sustainability’s utopian vision has had little impact on actual decision making, yet nonetheless represents a maturation of environmental discourse, rather than a selling-out of environmentalist ideals. Perhaps it over-relies on the capacity of markets and market actors to find solutions to problems made by the demands of markets and market actors, and perhaps it has become something of a placebo, a green Band-Aid on a life-threatening wound, but it has the benefit of providing a powerful ideal and an aspirational goal that, if honestly adhered to and pursued, could substantially improve our world. Sustainability has always sought to re-frame humanity’s role, placing the reconciliation of environmental management and economic growth at the center of our own story. Arguably, there is sufficient evidence that with enough technological savvy, political commitment, and hard work a sustainable ecology and economy can coexist.
Sustainability is Good: Sustainability is a vital and necessary story for achieving real improvements in our overall environmental and social health. However, it has become subsidiary to the twin challenges of climate change mitigation and adaptation, and now must complement these less inspiring storylines—mitigation is irredeemably technocratic, adaptation is potentially paralyzing—by offering a positive vision for environmental change. Sustainability’s narrative and rhetorical force should be harnessed not to promote sustainable development but to motivate us to innovate for greater energy efficiency, to transition to a renewable energy economy, to reduce and alter consumption habits, to move roads and fortify infrastructure to account for sea-level rise, to translocate populations of humans, animals and plants from places that are no longer habitable, or even existent, and to take on the myriad other demands of climate change mitigation and adaptation.
Can the conflicting stories of sustainability and climate change be reconciled, without surrendering something essential about one or the other? Can we have both comedy and epic drama at the same time? And how do these stories interact with the law? Neither sustainability law nor climate change law is, at this point, well-settled; both are in relatively early stages of development. As legislation, regulation, and litigation in these areas proceed, it will be worth keeping tabs on the narrative pitch.-- Michael Burger
Thursday, December 20, 2012
From top to bottom, climate change has altered the Earth’s systems in ways that render impossible a static notion of sustainability. The idea of fixed natural baselines, contested to begin with, today is nearly quixotic. The many losses accompanying this state of affairs include the homelands of small island nations, Native Alaskan villages, and flood-prone communities throughout the world. They also include untold numbers of species, large and small. For many communities, the shocks and adjustments will be ongoing. The challenge for all will be to reconfigure economies and cultures that have been structured around an anachronism—what used to be the local climate.
This may seem like a terrible time to cast a critical eye on the past of the American environmental movement. Instead of looking at its flaws, we might be drawn to glossing over problems in order to unify support for strong climate change mitigation and adaptation policies. Yet glossing over might prove counterproductive. The inescapably damaged state of the world we are trying to preserve provides an opportunity to escape from narratives that have divided communities over environmental policies. Those narratives include saving the environment from people and preserving pristine places from contamination.
Let’s explore those narratives in two places. Aspen, Colorado is a former mining town reborn as a luxury ski resort. Efforts to preserve the wilderness and other natural resources of the surrounding mountains have coincided with pricing Aspen out of any reasonable housing market and creating a distant commuter class of service workers, composed mostly of Latino immigrants. The two phenomena do not have to coincide. The conversion from a boom-and-bust extractive industry economy to an amenity and service-based economy can be managed in ways that produce equitable distributions of environmental and social benefits. But often it is not. The path to easy money for developers is the path of environmental privilege. Wealthy people come for real estate or experiences near beautiful and sparsely populated public lands, and then structure a service economy around the protection of their privileges. (To be clear, I do not mean to say that individual wealthy people do this intentionally; the logic of this type of development is naturalized in a way that makes it invisible to many well-intentioned people.) This often includes, as it has in Aspen, externalizing a range of costs and impacts to outlying communities. Service workers must commute by car from distant places. The towns where they live, which have lower tax bases than Aspen, provide the schools and other services to Aspen’s working class. In short, Aspen is a place of environmental and class extremism, where the very wealthy enjoy the best that the Rocky Mountains can offer in terms of scenery and access to wilderness and other outdoor activities, and low-income workers live in distant communities, drive hours to and from their jobs, and barely have time to notice that the supposedly transformative experience of pristine nature surrounds them.
Black Mesa, Arizona is a high desert plateau, most of which is on the Navajo Nation but portions of which comprise the Hopi Tribe’s land. The Navajo and Hopi people of Black Mesa are among the more traditional Native communities in the country in terms of maintaining their ancestral lands as well as the religions and cultures tied to those places. The community is not a monolith, but it is fair to say that most of the Navajo and Hopi people who live there have strong interests in ensuring that their water (from underground pristine aquifers), their land, and their air can sustain many future generations who will perpetuate Navajo and Hopi life ways. The threats to their ability to ensure that future come from two main sources: the strip mining of coal on Black Mesa (and the accompanying pumping of ground water from the aquifers to mine and transport the coal), and the pollution from the several coal fired power plants that surround the Navajo Nation, including the Navajo Generating Station which receives all of its coal from Black Mesa. None of the electricity generated at the Navajo Generating Station supplies power to people on the Navajo or Hopi reservations. Instead, the power is used by the Salt River Project, Los Angeles Water & Power, Nevada Energy, Arizona Public Service Co., Tucson Electric Power, and the U.S. Bureau of Reclamation. The beneficiaries of coal mining, aquifer pumping, and emissions from the coal fired power plant are therefore corporations and people in the distant cities of Los Angeles, Las Vegas, Phoenix, and Tucson. The recipients of all of the environmental burdens are the Navajo and Hopi people, whose land, resources, and water serve as raw material to develop these far away places.
Contemporary environmental laws, in place since the early 1970s, have done tremendous good, but have done little to curb the extreme inequities in the distribution of environmental burdens and benefits exemplified in these two very different places. In Aspen, the narrative of keeping people out of pristine places is at play. On Black Mesa, the narrative at work is one that separates the plight of subordinated people from the structural forces that harm our environment. The build-up of Los Angeles and Phoenix surely seemed foregone, inevitable, and right to those involved in it. But what thought was given to the Native communities on whose backs those cities were built? Their lands were seen as nothing but the disposable raw material from which to build something better.
As we move forward, post climate change, with only a murky comprehension of how best to preserve remnants of the faultless non-human world, perhaps we can reconsider how to weave human communities and their just demands for equitable treatment into the picture. Otherwise, we may lean towards sustaining only non-human nature, and that will inevitably also benefit only certain classes and strata of humanity. We might unwittingly be sustaining a very hierarchical and increasingly rigid system of doling out environmental privileges and harms. If this is a moment of reconsideration, my vote is to construct a competing narrative of environmentalism, one that has a vision of vibrant, equitable, just and diverse communities of humans and non-humans as its end.
-- Sarah Krakoff
Wednesday, December 19, 2012
Climate change requires that we replace goals of sustainability with something else, at least for any policy goal more concrete and specific than leaving a functional planet to the next generations. Sustainability is by definition the ability to sustain something: the verb needs an object, and the goal of sustainability needs a particular focus or foci—an ecosystem, a socio-ecological system, extant biological diversity, economic growth, development, human health—but something. To talk about sustainability in the abstract is to philosophize, not to pursue meaningful policies and laws.
Climate change, however, is a game-changer. And, from a sustainability perspective (among others), we have absolutely no idea how to play this new game, even though we (accidentally) invented it.
But before we go too far down that road, let’s start with some basics. First, all human well-being—oxygen to breathe, food to eat, habitable environments, fuel, health, economic and cultural development—ultimately depends on the physical, chemical, and biological processes proceeding at multiple physical and temporal scales throughout Earth, including its atmosphere and oceans. Second, climate change is already changing most of the important components of those processes: the temperature of the atmosphere, of regions of the oceans, of land, and of various freshwater bodies; atmospheric and oceanic currents; the chemical composition of the atmosphere; the chemical composition of regions of the oceans; the relative humidity in various regions; precipitation patterns throughout the world; the habitability of particular ecosystems by particular species; natural checks on pest species through temperature and other seasonal changes; and the productivity of various landscapes. Third, these processes are proceeding, and interact with each other, in complex and unpredictable ways, stymieing (or at least limiting) human ability to predict future states of being. Fourth, even if all greenhouse gas emissions ended tomorrow (which will not be the case), carbon dioxide in particular takes a long time to cycle back out of the atmosphere. As a result, humans are stuck with change-inducing carbon dioxide levels in the atmosphere for a while—almost certainly at least a couple of centuries, and probably much longer, especially if climate change mitigation efforts remain half-hearted.
As a result, the bases of human life, health, society, culture, and economics are all changing and almost certainly will continue to change—again, in complex and often unpredictable ways—for the foreseeable (and unforeseeable) future. Climate-change impacts will, almost certainly, be a fact of human existence for longer into the future than the United States has been a country into the past; indeed, under current scientific predictions, humans will likely be dealing with climate change for longer than they’ve already been dealing with the European colonization of the New Worlds.
So, back to the main point: When the only constant in life is continual socio-ecological change, sustainability is a practically meaningless concept. You can’t sustain an ecosystem if the fundamental features of that ecosystem are constantly changing. You can’t sustain a socio-ecological system if its foundations are radically different than they were 20 years ago and will be radically different again 20 years from now. You can’t sustain a particular economy if the bases of that economy are disappearing. You can’t sustain cultural integrity if the society’s members are rapidly becoming climate-change refugees, or if the traditional ecological components of that culture have transformed into something else.
And that’s all before we fully consider the darkest of climate change’s many dark sides. At least three of the four horsemen of the Apocalypse—War, Famine, and Death—are likely to be riding tall and strong through the climate-change era, and we shouldn’t discount the fourth, even if you name him Conquest rather than Pestilence (Pestilence, of course, will be present in force). All of these, moreover, are likely to be joined by a younger sibling, Thirst, who may just turn out to be the most insidious of the lot. In places where these horsemen ride in force, it’s not hard to conclude that anything approaching sustainability will be a distant dream; instead, avoiding absolute chaos and permanent destruction will be the goal de jour.
This is an admittedly dark vision of what climate change means for at least some parts of the world. That does not, however, mean that it’s an inaccurate vision. Moreover, even in the lucky places and for the lucky people destined to be climate-change winners, changing conditions will be a continuous reality—indeed, for some, it will be precisely the fact of changing conditions that makes them climate-change winners. In those places, sustainability will be both impossible and undesirable.
Finally, it’s important to remember that we were never very good at sustainability to begin with. For example, since the world officially adopted sustainable development as a goal at the 1992 United Nations Conference on Environment and Development (the Rio de Janeiro Earth Summit), human consumption of resources has only increased, with no signs of stopping.
So, what should we pursue, if not sustainability? Adaptability, for one—that is, the ability to change (foods, jobs, health regimes, industries, etc.) in response to, and preferably in tandem with, climate-change impacts. Nostalgic conservatism will be, sometimes literally, a dead end. Resilience, for two—that is, the ability to absorb change without losing overall functionality, such as food production, water supply and sanitation, law and order, individual and cultural self-expression. Moreover, while resilience theory grew primarily out of ecological science, the concept needs to apply to other socio-ecological system components besides the environment, from economic resilience at the macro scale to social and cultural resilience at the more local scale to psychological resilience at the individual scale. As Charles Darwin emphasized, “It’s not the strongest of the species that survives, nor the most intelligent, but the one most responsive to change.”
-- Robin Kundis Craig
Tuesday, December 18, 2012
Rethinking Sustainable Development, ELC Essay #12: Sustainability as Process: Seeing Climate Change Opportunities in Sustainability Approaches
Much has been said about the elusive nature of the term, “sustainability.” Some argue that the term is rudderless in the absence of some acceptable matrix for measuring success. This claim makes sense where we demand accountability in governmental decision-making. Some argue the term is inconsistent in different contexts or at different scales. This claim identifies inconsistencies in all sustainability programs that operate at or are justified in different scales (as they all do and all are). Others continue to believe the term invokes a liberal political agenda. Although the arguments supporting this claim are less apparent, there certainly has been an association between liberal democratic politics and the types of social and economic changes suggested by sustainability.
My sense is that most of the above discussions are irrelevant. Sustainability implies (at the very least) a more rigorous pursuit of equity as a matter of governance, a more honest incorporation of economics into environmental quality considerations, and a more effective regulation of the interaction between the natural and built environments. This basic definition is more functional than its critics allow, but only if we approach the application of the sustainability framework with a little light-heartedness on our demands for substance and certainty. Indeed, we might consider whether sustainability is (or has ever been) so substance-driven (and in the meantime, we might reconsider whether we have any actual needs for such certainty). We might productively think of sustainability as a lesson in process. For instance, if we define “governance” as protection against systemic and catastrophic risks, sustainable governance involves the process of identifying known and unknown risks to our social, economic, and environmental dependencies and in formulating solutions to address each of these three legs of sustainability. Process here involves pluralism that is not necessarily democratic, precaution that is not necessarily presumptive, and flexibility that is not necessarily unprincipled. Another way of articulating the “process” point of sustainability is that we are all pragmatists when it comes to sustainable governance.
The present struggle over climate circumstances presents an illustration of this type of process-oriented thinking. On the one hand, climate change presents a context in which sustainability is unquestionably challenged. Climate change has dominated politics, science, conservation planning, and even education. Of course, it is easy to see that climate change provides talking points, models, and mandates in each of these areas because of its reluctance to conform to past models of equity, economics, and environment (not to mention morality, metaphysics, and ontology). It is also easy to recognize that the depth and range of climate-change impacts will uproot human livelihood and well-being in unimaginable ways. Water and food scarcity, loss of soil productivity and biodiversity, and uncontrollable spread of disease are common climate-change consequences. In the context of runaway climate change, it is arguable that the long-term, future-generation vision represented by sustainability is impractical to pursue and impossible to implement. Shifting baselines resulting from climate shifts challenge our present ability to match future needs with future environmental circumstances, thereby making it difficult to chart a course today. Island cultures will be lost to rising seas, and the Stern Report predicts the largest market failure we have ever seen. In this context, the salient but complex question on the usefulness of sustainability might be, “what are we trying to sustain?”
Yet applying sustainability to the challenges of climate change adds a process for understanding the character of the challenge without being subsumed by the breadth or rhetorical commitments of any particular principle. Sustainability is a framework for thinking and is not illustrated by facts so much as by goals. Sustainability demands that each decision reflect good governance on economic, environmental, and equity—regardless of whether we face the threats of climate change or the circumstances of climate stabilization. In the meantime, sustainability helps us understand the dynamics of human interactions with nature, human dependencies on ecosystem services, and social and cultural adaptations to environmental circumstances. Sustainability provides a framework for understanding why funding choices, human capital, cultural bias, and economic tensions become important in the context of particular challenges—like climate change—and a process for making good governance decisions.
-- Keith Hirokawa
Monday, December 17, 2012
Rethinking Sustainable Development, ELC Essay #11: Sustainability is the Answer--Now What was the Question?
On September 16, 2012, the National Ice and Snow Center announced a record-breaking loss of Arctic sea ice. That day also happened to be my 47th birthday. In my relatively short life, the Arctic has changed beyond imagination—and more change is coming. We have a growing litany of climate ills—wildfires, heat-waves, droughts, floods—each perhaps not directly attributable to climate change, but collectively harbingers of the emerging Anthropocene. Yet, rather than prompting any urgent response, each new climate disaster leaves us, in the words of Bill McKibben, “in the same position we’ve been in for a quarter-century: scientific warning followed by political inaction.” The explanations for our impotence in the face of overwhelming evidence that human activities are destroying the very fabric of life on Earth tend to focus on economics—too many powerful actors are making too much money from business as usual and therefore use their power to prevent change.
Without really challenging this basic outline, this essay suggests that this power-based narrative is incomplete. It leaves out the role that law and legal systems play in obscuring this power dynamic. The system by which we structure our decisions in a democratic society—the rule of law itself—actually prevents us from perceiving or confronting this more fundamental power conflict.
It is all too easy to dismiss sustainability as a contentless marketing label lost in a fog of meaningless verbiage. The marketplace of “sustainable” practices, technologies, and gadgets contains far too many gimmicks intended to maintain the cherished illusion that sustainability will just somehow “happen.” As a marketing ploy, sustainability encapsulates our fantasy a sudden technological breakthrough that will allow 7 billion, or 10 billion humans to live the typical American consumption-based lifestyle, only without destroying the Earth in the process. This belief that an external, game-changing solution will save the day is a dangerous fiction. There can be no sustainability when we start with the existing economy and then try to graft change onto its margins. If we needed proof that this approach has failed, is failing and will continue to fail, we need look no further than the rate of melting sea ice—which continues to accelerate despite decades of high-level international climate negotiations.
If we heed climate change’s call, we might begin to rethink sustainability—to take seriously its mandate to maintain, support, and hold. If so, sustainability can offer us a set of organizing principles by which to restructure the core, yet largely invisible, functions of production and transportation that precede the consumption on which so much current sustainability rhetoric focuses. To change these less visible aspects of society, we need to mobilize the power of the law as a framing institution. We can, if we choose, arrange our infrastructure and define our markets to cause sustainable outcomes. Embracing sustainability as our primary framing narrative would create space for new thinking about the ways to balance the power of the state, the market, and civil society.
Getting from here to there may be daunting, and sustainability may seem a slender reed on which to pin our hopes. Yet, the fundamental choices about balance that are sustainability’s essential feature have the capacity to offer us a new vision of the basic social contract—one that could transform human life on planet Earth. To make that happen, we do not need perfect conceptual clarity about sustainability—core indeterminacy is, after all, a definitional part of post-modern existence. Instead, we need to embrace sustainability’s potential for multiple, independent generation of ideas. A range of social, cultural, and political forces seek to frame sustainability through multiple disciplinary lenses. Each frame offers a different conception of the problem and its component parts. From this base, each approach proposes an alternative array of solutions along with the tools by which those solutions might be implemented.
This contest between alternative frames for sustainability has both declarative and constitutive significance. Framing does more than shape how we analyze the sustainability of any particular choice—which variables must be assessed, weighted, and evaluated; and which can safely be ignored. Framing also shapes the process by which we define what constitutes a choice (or a variable) in the first place. Once we acknowledge that framing matters—that disciplines have blind spots and path dependencies—it becomes clear that the very articulation of sustainability is itself a consequence of inevitable disciplinary limitations.
This insight is as liberating as it is daunting. It means that by posing our questions differently we might begin the process of uncovering hidden possibilities, thereby paving the way for a new understanding of the sustainability challenge and opening space for new responses. Perhaps a good beginning would be to shift from a conception of “the environment” to “Mother Earth”—which might help us rediscover a deeper, more profound relationship with the world we are rapidly recreating than the consumption-focused conception that currently predominates.
The future of our children, our species, and our planet hinges in the balance. The window for change is narrow—and closing. Unless we transition away from our consumptive, single-use society into a sustainable one, we will doom our children (as well as our future selves) to life in an increasingly impoverished, depleted, and inhospitable planet.
-- Rebecca M. Bratspies
Friday, December 14, 2012
Rethinking Sustainable Development, ELC Essay #10: What Does Sustainability Mean in the Age of Climate Change?
Sustainable development traditionally demands that we meet future generations’ needs without sacrificing the current generation’s needs. Since climate disruption already promises to compromise both current and future generations’ needs, climate disruption demands a refinement of our understanding of sustainable development. I would suggest that sustainable development demands approximating this ideal of meeting current and future generations’ needs as best we can, by minimizing damage to our attempt to meet the basic needs of both future and current generations. Concretely, this requires a transition to a zero-fossil-fuel economy as quickly as we can, while generating (probably through a carbon tax or sale of allowances) sufficient revenue to fund adaptation both here and in developing countries that will bear the most serious consequences. A fossil-fuel economy is not sustainable, because the resources it relies upon are not renewable and because carbon dioxide harms this generation and threatens to destroy future generations. Herman Daly’s definition of sustainability as demanding harvesting of renewable resources that do not exceed the rates at which these resources replace themselves probably needs revision in light of climate disruption. For resources that we need as carbon sinks or that are already dangerously depleted, we may need to embrace growth in the resource (when possible), rather than a steady state.
In the United States, the political constraints on moving toward zero fossil fuels appear so formidable that it’s hard to think about a key question this leads to: What does sustainability teach us about managing the costs of a transition to zero fossil fuels? But it’s a philosophically important question and will become practically important even in this country if the politics change significantly. First, the concept of sustainable development rules out delaying a transition to zero fossil fuels because of undifferentiated concerns about costs. For that reason, cost-benefit analysis does not help much in analyzing a policy’s sustainability. Sustainability concerns itself with meeting people’s basic needs, however we define that, and embraces sustaining quite significant decreases in surplus wealth if necessary to meet the basic needs of future generations (or this one). At the same time, sustainable development requires some attention to easing transitional impacts on low-income people and to ameliorating impacts associated with dislocating workers in the fossil-fuel industry, even if the green economy generates more jobs than we lose.
My own work has been primarily focused on the problem of operationalizing sustainability (or something like it) when crafting pollution control policies and other policies affecting development (e.g. financial regulation). Sustainability demands changes in the focus, goals, and methods we bring to bear on almost all areas of law. It requires a focus on the shape of change over time, rather than near term costs and benefits. It suggests a goal of avoiding systemic risk, not achieving efficiency at the margin. And it invites an analysis of economic incentives that aims at efficacy in avoiding systemic risk, by asking how government actions will influence the actions of boundedly rational institutions and individuals responding to incomplete information.
The principal advantage of this elaboration involves its ability to directly address the pathologies emanating from neoclassical law and economics and to make the sustainability concept meaningful in other areas of law that influence development. One might argue that the deregulation of the financial industry advanced sustainable development, as it precipitated a rapid decline in carbon emissions as the economy collapsed. I would reject that conclusion on the grounds that it harms our efforts to meet current basic needs. We need to maintain basic social as well as environmental systems even as we drastically change the economy’s material basis and financial structure, as the goal of avoiding systemic risks implies. The economic dynamic concept described above (and elaborated in more detail in The Economic Dynamics of Law (Cambridge University Press 2012)) captures the change in thinking about how government operates that we will need to move us toward sustainability in the era of climate disruption.
-- David M. Driesen