Environmental Law Prof Blog

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

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

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

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

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

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

 Authors and titles of the posts:

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

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

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

Preparing Environmental Law for the Climate Dystopia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

***

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

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

  

Liquid Business

By Vanessa Casado Pérez

Vanessa Casado Pérez is Associate Professor of Law and Research Associate Professor of Agricultural Economics at Texas A&M University School of Law

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

The aphorism “water is the new oil” is now truer than it has ever been. While many use the phrase to suggest that water is as scarce and valuable as oil once was, it is also true in another sense: speculation in water markets now rivals speculation in oil markets. Oddly, however, water scarcity has not translated into a higher price for water, as it has done in oil. But this anomaly may be on the verge of changing as international investors start to enter the business of climate change. From oil tycoons like T. Boone Pickens to international hedge funds,  investment in all things water is on the rise. And while many deny climate change, the market does not. Since climate change is widely expected to induce scarcity in water supplies, business investments in the water market are increasing rapidly.

The alarm has gone off. Those who believe markets should not commodify water are appalled by the role that investment moguls play: all the investments in the water business may lead to price increases for water. There is some merit in valuing water as a scarce resource so that we do not misuse it. The more expensive it is, the shorter our showers would be and the more thoughtful the choice of crops and irrigation techniques will be.

But using the market to allocate water also gives rise to two concerns: the affordability crisis for low-income populations and the inability to capture certain intangible values, such as environmental protection, in a single monetary price. The first concern is often answered by saying that the amount of water needed to satisfy our basic needs is around 1% of the total water used. We could let the market deal with the rest and figure out how to allocate the 1% cheaply. Environmental regulations, such as water quality or minimum instream flows, could address the second.

While the answers to these concerns may not be reassuring, we should take comfort in the fact that water is somewhat speculation-resistant, at least compared to oil. Unlike oil regulation, the regulation of markets for water rights has built-in mechanisms to prevent speculation. These constraints in water markets have driven investments towards related industries, like water conservation technology or reuse.

Water rights can be traded in the Western United States and in other jurisdictions such as Australia or Chile. Trade includes leases and sales of water rights that give the buyer the right to use water if it is available. A common transaction might be one between an agricultural right holder and an urban consumer, because the latter often has a higher willingness to pay and a less elastic demand curve. In the US West, these types of transactions have brought flexibility to water allocation systems, where the majority of water rights were allocated when agriculture was the main economic activity and large cities and suburban areas with luscious lawns had not developed. Those transactions should make the farmer realize the opportunity cost of using water. Transactions are subject to different levels of control.  First, transactions are subject to administrative review. Transactions cannot injure third parties or the environment. Water rights are defined across several variables, including the point of diversion and the type of use. A transaction will normally imply a change in either or both of those variables and is likely to affect third parties.

Another layer, and more relevant for the purposes of speculation, is the forfeiture provision included in all prior appropriation states and many other jurisdictions. These forfeiture provisions mandate that holders of water rights use the water. If they don’t use it for a certain period, usually around 5 years, they may lose the water right.So unlike with real estate or stocks and bonds, where owners can wait for the market to peak and then sell their assets, in water markets, owners cannot engage in this kind of wait-and-see. That said, if water becomes valuable enough, investors may find a way around these rules. One company, Water Asset Management,  is taking that route—considering land an accessory. It focuses on water itself but to get to it, it buys land and it tries to make use of the land to break even. While others have not invested in water rights, they have invested in groundwater or water reuse, which profit from water scarcity.

The question is whether there is something that water law could do to stop big players from dominating the water market broadly understood beyond the forfeiture provision and the approval requirements. It can. Furthermore, water law may be able to target the surrounding industries that investors are interested in. First, regulators could limit the number of shares a single entity could accumulate. One of the main fears is a market dominated by big players. While antitrust regulations are set up to deal with monopolistic practices that harm the consumer, water law can take a page from other natural resources markets and avoid concentration by limiting the amount of water rights that can be accumulated in the same hands. In fisheries’ “individual transferable quotas” programs, there are limits on the shares of the total allowable catch that a single ITQ owner can acquire. This should prevent the concentration of the agricultural industry in a few hands, mitigating the concerns about displacing local farmers.

Second, groundwater should be subject to a permit system like surface water is. Investment companies are keen on exploiting lax regulations and have noticed that in many places groundwater may be more readily accessible as an investment. The separate regulation of a unique resource of surface and groundwater denies the science and makes both, given their interconnection, overexploited.

Third, wastewater regulation needs to be properly designed. As it stands today, return flow belongs to the user who diverted the water. A city may have a water right and divert water from the river. The city does not consume all of it. It usually treats the wastewater and sends it back to the river, where downstream users use it. But if a city decided to reuse wastewater before bringing it back to the river, it could do so, leaving downstream users without the water they have relied on for decades. In some states, like Arizona, cities may be able to not only re-use it in their area but sell the water as a commodity because cleaned up wastewater is considered a new product. While incentives to invest in reuse are paramount, water regulations need to better address the effect on downstream users and the ecosystem needs.

An adage seems appropriate to close this essay. Mark Twain purportedly said that “Whisky is for drinking and water is for fighting.” Water scarcity will certainly cause fights as there will not be enough water for all users. Given the business of water in times of climate change, the question that lingers is whether small water right holders and the environment can put up a fight against these powerful businesses. The three water law measures stated in this essay may be able to help.

Environmental Law. Disrupted. Essays from the Environmental Law Collaborative

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

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

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

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

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

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

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

 

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?

--Deepa--

A Couple of Takes on Climate Winners

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

 

Happy World Oceans Day . . . sort of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Happy World Oceans Day!

-- Robin Kundis Craig

China Environmental Experiences: Table of Contents

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

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

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

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

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

China Environmental Experiences # 5: Milk, Pesticides, and Product Safety.  “Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were.…” 

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

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

CEE #8: Environmental Protection as an Act of Cultural Change.   “This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China….”

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

--Erin Ryan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

--Erin Ryan

 

Live Blogging from Silent Spring @ 50

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

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

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

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

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


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


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


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


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


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


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

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

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


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


• "Everyone has a stake in the oceans."


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


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


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


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


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

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

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


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


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


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


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


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


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


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

-Lincoln Davies

Is foreign funding to support environmental protection measures wrong?

The Prime Minister of India, Dr. Manmohan Singh has for long enjoyed a reputation as a rare type of politician. In a country where politics are cloaked with corruption problems, he has stood out as a politician of serious intellectual rigor, humble demeanor, and personal integrity. Recently, however, Dr. Singh gave in to a rather unexpected frustration when he decried American NGO-funded support for protests against the nuclear power plant in Kudankulam in Tamil Nadu and the use of genetically modified crops in India. These NGOs, Dr. Singh argued, did not understand the energy needs of India. He emphasized that the nuclear power plant could not be left idle and had to move forward. Additionally, cases have apparently been filed against four NGOs for alleged misuse of foreign donations to fund protest, and 77 foreign NGOs listed in a government watch list. (The newsreport can be found here). 

In a follow up to the Prime Minister’s comments, US charge d’affaires Peter Burleigh reportedly responded that the United States would comment after verifying the factual accuracy of the statement. Russian Ambassador Alexander Kadakin, however, felt no such compunction. Ambassador Kadakin reportedly responded that the Russian administration had suspected such funding, particularly since the protests began following the Fukushima tragedy and not before the accident. (the report can be found here).

Indian NGOs reportedly responded with a letter addressed to the Prime Minister Singh’s remarks and by bringing legal action. A group of NGOs including a former Indian Supreme Court judge, former Chairperson of the Atomic Energy Regulatory Board, and former Union Power Secretary wrote a letter to the Prime Minister (the report and letter can be found here), challenging the undemocratic underpinnings of the Prime Minister’s remark. They provocatively added, “We are not China.” The head of another NGO filed a defamation action against the Prime Minister for labeling their efforts as a foreign plot or agenda. (report can be found here)

The main question, though, is this: so what if environmental protests are funded by foreign NGOs?

Barring a few restrictions, it is not illegal to provide funding to civil society in India. Unless there are accounting illegalities, there is no reason that local communities should not be legally funded by those with a shared concern. By all means the Indian government could try to enact legislation prohibiting foreigners to fund local civil society initiatives. Of course, such an effort would be ironic considering that foreign investors are vested in nuclear power plants. Surely, Ambassador Kadakin’s concern did not stem so much from his altruistic interest in India’s energy needs as it did from the fact that the Nuclear Power Corporation of India Limited had planned to collaborate with Russia in building two nuclear power plants.

It would be equally ironic that the government, which few months back battled to allow foreign direct investment in India, would oppose foreign funding for supporting civil society endeavors. It is certainly not something that one would expect from Dr. Manmohan Singh, a major architect of India’s economic liberalization reforms.

Let me add, however, that India indeed faces a steep challenge in meeting its energy needs. Millions remain without basic power infrastructure. The sub-continent has limited natural energy resources and has to rely on foreign supplies. Of late, its ability to import oil from Iran has been greatly impeded by foreign sanctions that have limited its ability to make payments to the government. (see report here). India faces serious energy predicament, even as growth rates drop and competition consistently looms across the border from China. Prime Minister Singh is certainly not in a pretty spot right now.

However, questioning legal and peaceful protests by concerned members of the civil society is not the solution. The need of the hour is transparency and efforts by the government to explain and persuade those living in the vicinity of a nuclear power plant of its safety. As we near the first anniversary of the 2011 Japanese Tsunami (March 11), we cannot ignore or wish away the terrifying moment when the nuclear plants in Japan did not shut down. We cannot ignore how Japan’s tragedy paralyzed the world, including its economy. Japanese continue to grapple with radiation challenges. That is the state in an economically developed nation.

Further, as the challenge to the U.S. Nuclear Regulatory Commission’s approval of the two nuclear power plants in Georgia by the Tulane Environmental Law Center for failing to consider the effect of the Fukushima tragedy in the EIA demonstrates, convincing people that nuclear energy is safe is not going to be a cakewalk in a post Fukushima world. The promise of electricity is alluring. But, it is no match to the fear of potential annihilation. Such promise must be backed by technology, sound safety procedures, effective compensation schemes, and legitimate efforts to engage in dialogue. Democratic governance has its own price.

--Deepa B.--

Is the European Union (EU) gently shifting energy law and policy and shaping the future of a climate treaty?

The European Union is steadfast in its commitment to reduce emissions by reducing reliance on traditional fossil fuels. To date it has taken several measures, each of which promises to change the paradigm of energy policy and politics. I have highlighted some recent actions below.

1. An EU law, the legality of which has been confirmed by the Advocate General, imposes a carbon tax on aviation, including international airlines, as part of EU’s Emissions Trading Scheme (EU ETS). China has retaliated by introducing legislation banning airlines from imposing a carbon tax. Several countries, including the United States, reportedly, support China’s position and may follow suit in introducing their own measures against the airline tax.

2. EU’s proposed sanctions against Iran. In response, Iran has suspended export of crude to French and United Kingdom and has threatened to suspend supply to several other European nations. It is simultaneously negotiating a contract to increase export of crude to China, as reported here. According to reports, France and the United Kingdom are not concerned. Not only do they claim to have sufficient reserves, but also the two countries recently inked a new civil nuclear energy pact as part of their energy cooperation efforts.

3. Another proposed action aims to include tar sands oil within EU’s Fuel Quality Directive (FQD), which was passed by the EU as part of its climate and energy strategy in 2008 and which requires suppliers of oil and gas fuel to the transport sector to reduce their emissions by 10% by 2020, as explained here. Based on a report that the extraction from tar sands is highly polluting because of high CO2 emissions, the European Commission has voted to include oil from the tar sands in the FQD. Even though Canada does not import oil to the EU, it fears that the inclusion can have indirect repercussions on its tar sands industry, as reported here. Pending vote by individual European nations, Canada is reportedly threatening to file a complaint before the World Trade Organization if the tar sand oil is included in the FQD.

 Despite objections from different groups, EU’s measures may eventually have a larger impact on the energy landscape. In its attempt to help create a robust carbon market, it may eventually provide much desired incentive to invest in emissions reduction measure. That is, of course, unless nations who are not Party to the Kyoto Protocol or who have withdrawn from the next commitment period, notably China and Canada respectively, cooperate. Either way, it is worth watching Europe maneuver the energy market and the response of countries affected. What is emerging is a patchwork of subtle legal challenges that can nevertheless change the landscape of global energy production, supply, and consumption, as well as the future prospects of negotiating a meaningful climate treaty.

~~Deepa Badrinarayana

Practical and Experiential Learning in Environmental and Energy Law

Increasingly, I find it important to bring the practical into the classroom.  To be upfront, this view is not new for me.  I joined the academy with the presumption that deep theory, legal doctrine, and careful analysis cannot stand alone; the best learning couples heavy doses of those with the real world.  Five years in, consistent feedback from students and the bar have overwhelmingly confirmed what I initially assumed.  At least some professors also seem to agree.

Injecting the practical is comparatively easy in some courses.  In my civil procedure class, for instance, I am constantly trying to find ways to help students see that the rules are not just principles; they are tools that you can only truly understand if you pick them up and use them repeatedly.  In the litigation context, avenues for making this clear are both discrete and fairly digestible, even in the first semester.  Students in my class attend two court proceedings.  They draft a complaint or an answer.  They write a set of discovery.  They complete a CALI exercise that tries to replicate the discovery process of a case.  It is not uncommon on my exams for students to be asked to draft a motion, complete the next entry in a deposition transcript, or create a notice of appeal.  Certainly, I have no illusions that any first-year student will leave my class a master of any of these tasks.  But the hope is that by being exposed to some of them, students not only begin to gain an understanding of what litigators do on a daily basis, but also learn the material more deeply while laying a foundation of skills they will actually need in practice.

The question, then, is whether this kind of hybrid learning is also useful for more specialized, upper level law classes, particularly those in the environment, energy, and natural resource fields.  More and more, I have become convinced that it is.  Conceptually, this makes sense.  Lawyers in any field have specific, practical skills they cannot be effective without.  There is no reason this is not also true for the areas in which we teach.  Having practiced for seven years, I know that's the case.  The environmental lawyer is always translator:  To handle a pollution case, you have to comprehend risk analysis and toxicology.  To grapple with energy rates or mergers, a grasp of economics is essential.  To do endangered species, biology is fundamental.  In all these, an understanding of the industry the lawyer represents, or that the law at issue regulates, cannot be foregone.

The problem for the classroom, however, is twofold.  First, there is a chicken-and-egg dilemma.  Students cannot really dive into the details of many topics on a practical basis until they have the basics of the law under control.  But getting to how that law really works is tough without practical exercises.  Second, there is an allocation quandary.  Every minute spent on a practical exercise deepens students’ understanding of that topic but does so at the expense of another subject area that could be covered instead.  In courses that present as many fascinating issues as ours do, making this choice is often more painful—for me at least—than deciding, for example, whether to do another day on summary judgment or covering standards of review in civil procedure.  At some point, moreover, too much of the practical in the classroom converts the substantive topic to a clinical one; there is a balance to find.

Nevertheless, I believe we owe it to our students to add this dimension to their understanding of the field.  To that end, here are a few things we are doing in my energy law class this semester.

• Field trips to various energy sites, including to PacifiCorp’s Gadsby Power Plant earlier this week.


• Mock cost-of-service ratemaking exercises, using a hypothetical utility’s rate base, debt structure, and production costs.


• Guest lectures and case studies on actual energy controversies.

I’d be thrilled to hear what others are doing in their energy, environmental, or natural resources classes to add practical or experiential learning to the classroom.

-Lincoln Davies

(photo credit: S.P. Hansen)

Electric Power in a Carbon Constrained World

There are enough conferences every year that, if one attended them all, no other work would get done. That said, there is a particularly well put together conference coming up on Thursday, February 9. Electric Power in a Carbon Constrained World will feature some of the leading energy and environmental law scholars today. It is organized around four panels:

• The Role of Coal-Fired Electric Power Generation (John Dernbach, James Holtkamp, Arnold Reitze)

• Natural Gas: Will It Be the Fuel of Choice for Electric Power Generation? (Bruce Pendery, Richard Pierce, Hannah Wiseman)

• Electric Power from Alternative Energy (Lincoln Davies, Steven Ferrey, Alexandra Klass)

• Nuclear Power: Does It Have a Future in the United States? (John Ruple, Michael Stern, Christopher Thomas)

Registration is available here. If you cannot attend in person, the program will also be streamed live here.

-Lincoln Davies

The Nuclear Conundrum

It has been nearly one year since a massive tsunami and earthquake shook Japan's nuclear plants. Up until that point nations seriously considered nuclear energy as a good alternative to meet growing energy demands and reduce GHG emissions. Government response to the incident, however, are varied. European nations, particularly Germany, which was planning to expand the life of some its plants has withdrawn such plans.China and India have no plans to scale back on their nuclear expansion program.India is slated to open one of its largest nuclear power plants in Kudankulum, Tamil Nadu, even though locals (and the Chief Minister of Tamil Nadu) are demanding proper explanation of safety checks from the Prime Minister. An news report (interview) of the issue can be found here. Similarly, in the United States, efforts to cut back on nuclear energy power remain contentious. On January 20, a Vermont District Court judge enjoined the State of Vermont from taking any action to shut down the Vermont Yankee nuclear power plant, after a State Senate vote against renewal of operations at the plant due to safety concerns was challenged. The court found that the Atomic Energy Act preempted State action. A copy of the decision can be found here .

For countries that want to pursue nuclear energy options, the motivation is economic growth. Even Germany, which has scaled back on nuclear energy, is faced with challenges of meeting its energy demands and there are reports that economic slow down in Germany coincides with its new nuclear policy. For countries such as China, India, and the United States, economic concerns govern their decision. Without a comprehensive nuclear safety policy globally, eventual nuclear power expansion appears imminent. What is required then is a close examination of nuclear energy laws, particularly in light of Japan's experience with continuing food contamination and a persisting dissatisfaction with government accountability. It is perhaps time to seriously consider, or reconsider, nuclear safety regulation.

Deepa Badrinarayana

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

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

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

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

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

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

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

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

Obama EPA Backs Off Smog Regs

If you haven't seen it yet, the Obama administration announced today that it will not implement the more aggressive ozone regulations that EPA had proposed.  In his statement on the matter, President Obama alluded to the economy and then cited the fact that the proposed standards would be revisited in two years as the reason for his decision:

I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover.  With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time.  Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013.  Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.

This decision is interesting for a number of reasons.  Politically, it shows both how dominant the economy continues to be and also how much the country has shifted to the right since 2008.  Whether one sides with them or not, the Tea Party's anti-regulation message clearly has resonance.  Many already see this decision as bowing to oil and other interests who had blasted the proposed regulations.

The decision also shows Obama's cold calculus about who will and will not be on his side in the next election.  Environmentalists already have decried this move.  But will they vote for him anyway in 2012?  The President appears willing to make that gamble, despite continued disappointment within the community over the administration's failure to make many of the environmental achievements the campaign promised. 

And, interesting indeed, the decision may reflect a shift in the way the administration is messaging environmental concerns.  In the last election, Obama -- wisely, many would contend -- was careful to link job growth with environmental protection.  The two go hand in hand.  This decision, however, falls into the old trap of seeing the economy and the environment as binary choices, when ultimately the two are intrinsically interlinked on a long-term basis.  True sustainability requires both.  Is this change a permanent shift or a temporary slide?  Only time will tell.

In the meantime, there is extensive news coverage on the decision, including at the Washington Post, the L.A. Times, and the New York Times.

-Lincoln Davies

Must Read Energy Books

The most recent edition of the ABA Journal inspired me.  Its cover story is the feature "30 Lawyers Pick 30 Books Every Lawyer Should Read."

This got me thinking.  What are the must-read energy, or energy law and policy, books out there?

Looking around a little, I found one person's answer.  Alexis Madrigal, senior editor at The Atlantic and author of Powering the Dream: The History and Promise of Green Technology, came up with these "13 Energy Books You Need to Read":

1. Consuming Power by David Nye
2. Petrolia by Brian Black
3. The Prize by Daniel Yergin
4. Energy Policy in America Since 1945 by Richard Vietor
5. Technology and Transformation in the American Electric Utility Industry by Richard Hirsh
6. The Bulldozer in the Countryside by Adam Rome
7. Soft Energy Paths by Amory Lovins
8. Energy at the Crossroads by Vaclav Smil
9. Hubbert’s Peak by Ken Deffeyes
10. A Golden Thread by Ken Butti and John Perlin
11. Sorry Out of Gas: Architecture’s Response to the 1973 Oil Crisis by the Canadian Centre for Architecture
12. Wind Energy Comes of Age by Paul Gipe
13. The Discovery of Global Warming by Spencer Weart

Madrigal's is a fascinating, insightful list.  I'm still wondering: what's my list of must-read energy and energy law/policy books?

More to the point, what's yours?

-Lincoln Davies

Environmental Freakonomics: Bottling Water Not So Bad After All?

As I got deeper and deeper into my Natural Resources Law and Policy material on water, I lamented to a friend that "we just don't have enough water." My friend, an economist, said "no, we just don't have enough properly priced water."  My concern was driven by a Scientific American article about the Ogallala Aquifer, which supports the breadbasket of the world and stretches all the way from South Dakota to Texas.  In West Texas alone, the number of irrigation wells grew from 1,166 in 1937 to more than  
66,000 in 1971.  The overdraft of the aquifer in 1975 was equivalent to the entire flow of the Colorado River, but today the aquifer is being depleted at an annual volume equivalent to 18 Colorado Rivers.  In some places agriculture is withdrawing four to six feet a year, and nature is putting back half an inch.  Natural aquifer recharge would would take 6,000 years if it were to be fully drained.

In a fascinating guest post on freakonomics.com, Charles Fishman describes some of the drivers of water overconsumption within the context of a very interesting case study. Fishman highlights a move by the National Basketball Association's Cleveland Cavaliers to remove all of the 18 water fountains in Quicken Loans Arena (the "Q"). As an alternative to the water fountains - which, of course, provided free water - the organization directed people to free cups of water available in the concession stands, or patrons could purchase a $4 bottle of Aquafina. Of course, to receive either of those options, people had to be willing to stand in line - which can be a lengthy proposition at a sporting event.  Three months passed, and over 1 million spectators attended events in the Q with not one complaint.  About halfway through the NBA season, however, a newspaper reported the removal of the water fountains.  The fans were furious, even though the Q had sold out 29 home games prior to fans' awareness of the removal. The Q scrambled to put the water fountains back in.

This story demonstrates, first, the entitlement people feel toward things that they obviously do not need - which is a disturbing commentary on the societal drivers of overconsumption and environmental degradation as a general matter. But second, the story raises some very interesting facts about water and why we should consider paying more for it. Fishman notes that if you buy a 17 ounce bottle of water for $0.99, you could take it home and continuously refill it every day with tap water for 6 years before you spent $0.99 on that amount of tap water! Even cheap bottled water is 2,000 times more expensive than tap water at home.  This demonstrates an amazing disparity between what we are willing to pay for water when we are at sporting events, on road trips, going to the beach, etc., and what we are not willing to pay, and indeed feel entitled to, in our homes - the place where most water overconsumption occurs. Fishman notes that "[R]esidents act as if increasing the water bill from $23 a month to $30 a month will force them to choose between their heart medicine and their water," even though the average household water bill in the U.S. is less than half the average cable TV or cell phone bill.

Though there are obviously big problems with bottled water - not to mention the toxic chemical and waste disposal issues posed by the plastic used to manufacture them - when considering overconsumption of water it may be useful not to rely too heavily on conventional wisdom ("convenient wisdom") regarding the parcelization of water resources. As Fishman notes, "'Free' is the wrong price for water. In fact, the lack of a price for routine water service is the most important thing that’s wrong with water — resources that are free are wasted; there’s no incentive to learn to use them smartly; there’s no money to maintain and modernize the existing water system; there’s no incentive to reach back and protect the source of something that’s free."

- Blake Hudson