Saturday, November 17, 2018

Aggressive Solutions to Disrupt Biodiversity Loss

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 17, 2018 in Biodiversity, Climate Change, Forests/Timber, Governance/Management, International, Land Use, Law, North America, US | Permalink

Is It Time to Say Goodbye to Environmental Law?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Anthropocene demands nothing less.

November 17, 2018 in Biodiversity, Climate Change, Current Affairs, Energy, Governance/Management, Law, Sustainability, US | Permalink

Thursday, November 15, 2018

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.         

  

November 15, 2018 in Biodiversity, Climate Change, Economics, Land Use, Law, Legislation, North America, US, Water Quality, Water Resources | Permalink

Wednesday, November 14, 2018

Designing Law to Prevent Runaway Climate Change

Melissa Powers is the Jeffrey Bain Faculty Scholar and Professor of Law, and Director of the Green Energy Institute at Lewis & Clark Law School.

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

“Every system is perfectly designed to get the results it gets.” If that’s so, our climate and energy laws have been perfectly designed to fall short. They will not avoid the catastrophic consequences of climate change or enable a swift transition to a zero-carbon energy system, because they have not been designed to achieve those outcomes. Instead, climate and energy laws in the United States, including those promoted by the most progressive jurisdictions, are designed to gradually reduce some emissions and eventually phase out fossil fuels from some sectors, but they are not designed to achieve the drastic systemic changes in our energy sectors and human behavior that are necessary to quickly and permanently reduce greenhouse gases. Even laws that may appear to have ambitious final targets—such as an 80% reduction in greenhouse gas emissions or 100% renewable power by 2050—are designed with loopholes and exemptions that make it unlikely that the targets will be met.   For the United States and the world to have a chance of preventing runaway climate change, we need to change our approach lawmaking. Rather than focus on incremental changes that we hope will meet future targets, we must create outcome-oriented climate and energy laws that ensure compliance. Otherwise, the slim chance we have to prevent runaway climate change will be lost.

U.S. environmental law is entering in its fifth decade, and while the existing legal system has produced significant improvements in air and water quality, it is not up to the task of addressing climate change. This is because U.S. environmental law is not end-goal-oriented, and the few laws that may seem to establish ambitious goals are not designed to meet them. Consider the Clean Water Act, which establishes the goal of restoring and maintaining “the chemical, physical, and biological integrity of the Nation’s waters,” so that every U.S. waterbody is fishable and swimmable. However ambitious that goal may seem, the permitting systems under the Clean Water Act are designed and/or applied to allow continued degradation of waterbodies, including those that are neither swimmable nor fishable due to historical and ongoing pollution and habitat destruction. The Clean Air Act’s goal of “protect[ing] and enhance[ing] the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population,” is too vague to be considered outcome-oriented. And implementation of the Clean Air Act focuses on balancing the economic interests of polluters with the public’s interest in pollution reduction. At best, this balance will produce deep emissions reductions where cost-benefit analyses support them, but the balance is subject to distortion—as the Trump Administration’s ongoing efforts to dismantle Obama-era environmental regulations reveal. Even the Acid Rain program under the Clean Air Act, which sets a final aggregate cap on sulfur dioxide emissions, uses a final target that was set based on politics,  not environmental needs. U.S. environmental law seeks to slow the pace of degradation or to gradually accelerate the rate of improvement. While it’s important that these laws are applied to greenhouse gases until we have better laws in place, it is also essential to recognize that environmental law will not, in and of itself, do the job of preventing runaway climate change.

Nor will state and local efforts, as currently designed, do the job. In response to the Trump Administration’s announcement that it will withdraw from the Paris Agreement and in response to the Trump Administration’s assault on dozens of U.S. environmental rules,  states and local governments have declared their intent to take a leading role in mitigating climate change. Their actions, while both commendable and necessary, are generally not designed to achieve decarbonization as an end goal. Leading states like California and New York have enacted scores of laws to reduce greenhouse gas emissions, but neither state has committed to energy decarbonization. California recently adopted a target of obtaining 100% zero-carbon electricity by 2045,  but the state does not have either a goal or a strategy for eliminating fossil fuels from its transportation or heating sectors. Several local governments, happily, have made commitments to decarbonize all aspects of their energy systems.  But, thus far, they do not have strategies to meet their commitments. In short, we lack both goals and designs for effective decarbonization.

We must change this approach. The United States and the rest of the world must quickly establish and achieve end goals for climate mitigation. Climate scientists have already told us what these end goals must be: for the world to have a chance of keeping temperature increases to tolerable levels, we must decarbonize our energy systems and, ultimately, achieve net-negative emissions targets through carbon sequestration. Global greenhouse gas emissions must stop increasing, immediately, and they must then rapidly drop, so that, by 2050, developed countries emit no greenhouse gases from fossil fuels.

U.S. lawmakers at the local, state, and federal (after the Trump Administration is out of office) levels must commit to complete energy decarbonization by 2050.  They then must design their decarbonization strategies to ensure they meet this ambitious target. Much like we expect architects to design buildings that will perform as expected, we need to expect our lawmakers and regulatory agencies to create decarbonization strategies that will achieve the goals. Rather than apply existing laws with the hope that they will eventually reduce emissions over time, we need to create legal systems that ensure success. If “every system is perfectly designed to get the results it gets,” it’s past time for the United States to adopt a design approach to decarbonization. We can’t afford to get it wrong.

November 14, 2018 in Air Quality, Climate Change, Current Affairs, Energy, Governance/Management, Law, Legislation, US | Permalink

Tuesday, November 13, 2018

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.

November 13, 2018 in Current Affairs, Economics, Governance/Management, Land Use, Law, Legislation, North America, US, Water Quality, Water Resources | Permalink

Disruption as Opportunity

Disruption as Opportunity

By Jessica Owley

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

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

  1. Environmental Disruption.

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

  1. Legal Disruption.

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

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

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

  1. Disruption as an Opportunity

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

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

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

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

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

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

November 13, 2018 in Air Quality, Biodiversity, Climate Change, Current Affairs, Governance/Management, Land Use, Law, North America, Science, US | Permalink

Sunday, November 11, 2018

Malignant Normality

By Katrina Fischer Kuh

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.  

 

November 11, 2018 in Climate Change, Current Affairs, Law, Sustainability, US | Permalink

Saturday, November 10, 2018

Environmental Justice and Environmental Sustainability: Beyond Environment and Beyond Law

By Sarah Krakoff and Shannon Roesler

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

Friday, November 9, 2018

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

By Blake Hudson

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

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

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

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

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

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

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

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

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

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

November 9, 2018 in Air Quality, Biodiversity, Current Affairs, Land Use, Law, North America, Sustainability, US, Water Quality, Water Resources | Permalink

Thursday, November 8, 2018

Learning from Local Response to Environmental Disruption

By Keith H. Hirokawa and Jonathan Rosenbloom

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.

  1. 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).

  1. 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.

  1. 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).

  1. 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.

November 8, 2018 in Climate Change, Current Affairs, Governance/Management, Land Use, Law, Legislation, North America, Sustainability, US, Water Resources | Permalink

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, http://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.

November 7, 2018 in Climate Change, Constitutional Law, Current Affairs, Governance/Management, International, Law, Water Resources | Permalink

Monday, November 5, 2018

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.  

 

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.

Continue reading

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?

--Deepa--

April 24, 2014 in Asia, Climate Change, Current Affairs, Economics, Energy, Environmental Assessment, International, Law, Legislation, Sustainability | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 26, 2014

Shell, the Arctic, and the Classroom

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

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

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

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

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

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

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

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

- Michael Burger

February 26, 2014 in Biodiversity, Climate Change, Energy, Environmental Assessment, Law, US | Permalink | TrackBack (0)

Tuesday, June 4, 2013

ATA v. City of Los Angeles: Ports, Trucks and the Market Participant Exception Take a Tour of the Supreme Court

Back in mid-April I made my first visit to the Supreme Court of the United States, in order to hear oral argument in American Trucking Associations v. City of Los Angeles. I had written an amicus brief in the case, on behalf of a number of national local government associations, and was interested to see how it would go. As one prominent environmental law scholar/practitioner advised me, “There is nothing quite like seeing Justice Scalia sneer at your favorite argument.” 

The case is one of an emerging category of market participant exception cases that implicate environmental law and policy. Here, ATA challenged certain aspects of the Clean Truck Program enacted by the Port of Los Angeles. The program was created to allay neighboring communities’ and environmental groups’ concerns about air pollution generated in and around the port by drayage trucks – usually old 18-wheelers at the end of their useful life that transport shipping containers from marine terminals to local railyards, truck depots, and other nodes in the intermodal transport network, for long-distance hauling. These groups had previously held up expansion of the Port through litigation and political opposition. The Port, making a business decision, decided it would be more efficient to address the air pollution than to keep fighting the communities and enviros.   

The program requires trucking companies to enter into concession agreements—or contracts—with the Port, which impose a number of requirements on trucks that access port facilities. Two requirements made it through the 9th Circuit and landed before SCOTUS: one requires trucking companies to have off-street parking plans for their trucks, the other requires trucks to post a placard including a number to call to report air pollution problems. ATA’s argument is that these requirements are expressly preempted by the Federal Aviation Administration Authorization Act (which, in addition to deregulating the airline industry also addresses regulation of the trucking industry). The Port’s argument is that the requirements are not preempted because they do not have “the force and effect of law” required under the preemption provision, in large part because they fit under the market participant exception, a doctrine developed at SCOTUS under dormant Commerce Clause and implied preemption cases but never before applied to express preemption under a federal statute. At the risk of grossly oversimplifying the matter: the Port maintains that it is a landlord, operating a business, and that in order to grow its business it has to impose certain limitations on those who enter and use its property.  

As you might imagine, the case is complicated. What I found most interesting about the oral argument was how straightforward the members of the Court appeared to find it. To those who spoke, the case seemed to boil down to the fact that noncompliance with the concession agreements could result in misdemeanor charges. The misdemeanor charges, however, under the terms of the Tariff that governs the Port, could only be applied to the marine terminal operator who leases space from the Port and who contracts with the trucking company, and not to the trucking company itself. The criminal penalty is not a term of the concession agreement between Port and trucking company. This fact, though, did not seem to sway the judges from their primary concern: Criminal penalties can only be enforced by the government acting as a regulator. Therefore, any concession agreement that in any way involves the threat of criminal sanction cannot be market participation.

I have two concerns about what appears to be the likely result, here. First, I think the emphasis on the criminal penalty mistakes a practical irrelevancy for a matter of theoretical or doctrinal importance. The Port’s attorney told the Court that the Port does not and would not seek criminal sanctions against a marine terminal operator for a trucking company's noncompliance with the concession agreement. Second, and perhaps more importantly, the existence of the criminal penalties is a red herring. State and local governments acting as market participants are always wielding a power different from that available to private firms, and they are always pursuing different purposes. Their contracting processes are likely to be dictated by law, rather than best practices or personal preference. Their profits are not distributed to partners or shareholders. And, of particular relevance here, government contracts are subject to the False Claims Act and its state analogs, which threaten criminal penalties. 

Second, ATA’s lawsuit is a Trojan Horse. In addition to the relatively innocuous provisions at issue in the case, the Port of LA’s Clean Truck Program also includes a mandatory phase-out of old, dirty trucks. Similar phase-outs have been adopted by the Port of Seattle and the Port Authority of New York & New Jersey. The trucking association has not challenged these programs, but lawsuits directly challenging these important initiatives will almost certainly follow quickly on the heels of a decision limiting the market participant exception defense to statutory preemption. Of course, the Court can craft an opinion that avoids doing serious damage to ports’ ability to claim the exception in other circumstances unrelated to the FAAAA, such as under the Clean Air Act vehicle emissions standards provisions. Here’s hoping the Court writes with that in mind. 

-- Michael Burger

 

 

June 4, 2013 in Air Quality, Constitutional Law, Law, North America, US | Permalink | Comments (0) | TrackBack (0)

Sunday, June 2, 2013

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

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

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 ChinaIMG_300 ER teaching at HaiDa A (111611) “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.…” Beijing CBD view on July 23 2011 Smog over 400 PMI (Smog) Beijing CBD view on July 26 2011 Smog over 60 PMI (Clear)

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 NatureLaoshan Mountain 036“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.   China Sept 2011 400“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

Shanghai Jade Buddha Temple, World Financial Center, Bund 070

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)

Thursday, December 20, 2012

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

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

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

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

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

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

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

-- Sarah Krakoff 

December 20, 2012 in Climate Change, Governance/Management, Law, Sustainability | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 19, 2012

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

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

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

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

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

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

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

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

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

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

-- Robin Kundis Craig

December 19, 2012 in Climate Change, Governance/Management, Law, Sustainability | Permalink | Comments (0) | TrackBack (0)