Environmental Law Prof Blog

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

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

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

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

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

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

 Authors and titles of the posts:

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

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

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

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.

Why Environmental Law Professors Should Watch "Through the Wormhole"

Happy Independence Day, everyone!

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

     So, why make the effort to watch?

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

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

(3) Morgan Freeman hosts. 'Nuf said.

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

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

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

     Give the show a try!

     -- Robin Kundis Craig

China Environmental Experiences: Table of Contents

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

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

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

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

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

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

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

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

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

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

--Erin Ryan

China Environmental Experiences #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity

This essay, the seventh in my series about the environmental experiences of an environmental law professor in China, continues the discussion I began last time about how different underlying environmental philosophies held by American and Chinese people can lead to different approaches in environmental governance.  (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, May’s exploration of water quality issues, and June’s review of safety issues with Chinese food and consumer products.)  The previous essay addressed differences in the human relationship to nature, and this one addresses differing approaches to conservation, stewardship, and scarcity.  The final installation will conclude with thoughts about some ancient philosophical roots of these differences.

I began the previous essay by acknowledging the delicacy of exploring underlying cultural differences that correspond to some the environmental experiences I’ve written about in this series.  I noted how exquisitely careful one must be in discussing cultural differences, given the inherent shortfalls of any individual’s limited perspective and experience.  Yet these differences relate so directly to the challenges of international environmental governance and intercultural understanding generally that I thought it important to discuss them, notwithstanding the hazards.  So I offered the important qualification, which I share here once again, that:

My observations are inevitably, hopelessly entangled with my own cultural vantage point.  My Fulbright year did not make me an expert on the inner world of Chinese culture—nor, frankly, did my earlier Harvard degree in Chinese language, culture, and history.  My observations qualify as neither empirical scholarship nor serious ethnography, based as they are on casual research, personal experiences, anecdotes, and generalizations.  But in hope that they may be useful in illuminating the philosophical roots of some gaps between Chinese and U.S. approaches to environmental governance, I share them here. 

From there, 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. 

Conservation.  Take our shared goal of conserving natural resources.  Both countries are developing policies to discourage the waste of scarce natural resources, and on many fronts—such as its first steps toward nationally pricing carbon—China is outperforming the U.S.  (Then again, China also built a coal-fired power plant a week in recent years, or more.)  But behind good goal-setting, both countries face cultural-philosophical challenges at the level of policymaking and implementation. 

On the example of climate policy, the American challenge has been achieving a consensus for rational policy.  Part of the failure reflects an ideologically divided nation, but other parts reflect more widely shared American ideologies.  For example, American economists have long argued that a national carbon tax would be more economically efficient than the cap-and-trade proposals that have had more political traction (to the extent that any GHG regulation had traction in Congress). 

Yet even when climate policy was a hot topic in Washington, the carbon tax was considered a dead-letter given the popular resistance to taxes that reflects a libertarian streak in the American cultural consciousness.  The (relative) enthusiasm for emissions-trading schemes, wetland mitigation banking, and other market-based environmental reforms reflect widespread cultural regard for free market ideals—even when these ideals are more poetry than reality in operation.  (There hasn’t been enough consensus to have translated those ideals into actionable climate policy, nor are they universally shared in the U.S.—but they were circulating widely when Waxman-Markey passed the House in 2009.  [Photo courtesy of The Chicago Dope blog.])  Yet another cultural-philosophical hurdle for American climate policymaking—and one pointedly not shared in China—is the scientifically unexplainable skepticism with which increasing numbers of Americans seem to regard science itself (or, perhaps, scientists).

In China, where policymaking isn't usually the obstacle, challenges will likely have more to do with ground-level implementation.  In addition to ongoing competition with economic development priorities and the problem of translating centrally formulated mandates into locally implemented policies, there is also the problem of widespread public indifference--and not specifically to climate issues.  In present-day urban China (as was equally true in the U.S. a few decades earlier), you don’t see a lot of conservation-oriented behavior by average citizens—at least not without an immediate economic incentive or legal requirement.  Solar water heaters are popular, but mostly because they are relatively inexpensive (and in some cases, mandatory).  Buses, taxis and other municipal fleets increasingly run on publicly incentivized natural gas.  Public transportation is very well-developed in comparison to American cities, but mostly because people are only just beginning to afford cars (and unprecedented levels of traffic are developing as China’s emerging middle class gets behind their own wheels). 

Yet where the immediate incentives for conservation end, so in general does public compliance—and at least for now, without regard to the kinds of generational or educational dividing-lines that often accompany diverging conservation habits among Americans.  China does have a nascent recycling program for deposit bottles and cans, but it appears nearly entirely staffed by those on the poorest margin, who sort through others’ trash looking for recyclables on which there is a deposit.  Goodness knows we see the same phenomenon in American cities, but in addition to our homeless entrepreneurs, many Americans participate in curbside collection of non-deposit recyclables without sanctions or incentives.  From kindergarten forward, most American children are inculcated with recycling values as a societal good until it becomes part of their social conscience (whether or not they always follow it). 

In China, the government is attempting to do something similar, with an all-out public information campaign to usher China toward the "Circular" or “Recycling Economy”—the Chinese version of “reduce, re-use, and recycle” writ large.  The effort encourages all citizens to see the relationship between their everyday behaviors and environmental well-being, buttressed by a national law that exhorts sustainable practices by local government and the businesses community (though with few enforcement provisions).  In public places, the government frequently places signs reminding people that “environmental protection is everyone’s responsibility” (the accompanying one is from May Fourth Square in downtown Qingdao).  Even the Tsingtao (“Qingdao”) Beer Brewery & Museum includes a full exhibit on sustainability (including a full exposition of Rachel Carson's Silent Spring), notwithstanding its weak connection with the general subject-matter of the museum.

It’s good that Chinese leaders are beginning to take sustainability seriously, because there is much work to be done at the level of consciousness-raising.  Sustainability certainly goes beyond the simple act of recycling, but it is a good index of public attitudes.  And despite valiant attempts at public recycling cans conjoined to trash cans, most Chinese make no effort to differentiate between them, and both are routinely filled to capacity with identical mixes of trash.  There was no recycling program in my neighborhood or at my university, and no paper recycling of any kind (my students were completely baffled by my repeated efforts to find a place to recycle news and copy paper).  And as in the U.S., homes are often over-heated and under-insulated, engines are over-polluting and smokestacks are under-scrubbed, fertilizers and pesticides overused, products over-packaged, etc.  There are many miles before Americans should soundly sleep on these matters either, but on the whole, fewer Chinese consider them a problem. The sustainability movement has not yet taken hold among public attitudes--though it is beginning to with rising consciousness of the direct human health effects of egregiously widespread air and water pollution.

Stewardship.  Of course, it is perfectly understandable that many Chinese are still more pre-occupied with survival than sustainability, and that other development priorities still preclude advanced sustainability initiatives.  A lack of sophisticated curbside recycling should not be surprising in a country still wracked with abject rural poverty, and the government deserves praise for its efforts to promote the Recycling Economy alongside other development initiatives.  But here is where the effects of underlying, environmentally-relevant philosophies add a special challenge to the task of Chinese environmental governance.  It appears that there is a less entrenched cultural tradition of environmental stewardship here as there is in other crowded nations, like Japan or many in Europe.  Indeed, one feature of Chinese culture that often stands out to foreign visitors is the striking way that most Chinese differentiate between the care they take of the environment inside their own homes and the care they take of the environment beyond their front doors.  The contrast is stark, and suggests potentially significant implications for the challenges of environmental governance in general.

Inside the home, Chinese people take immaculate care to maintain cleanliness and beauty.  Shoes are often left at the front door.  Walls and shelves are adorned with enchanting art and objects reflecting the majestic culmination of thousands of years of traditional Chinese culture: calligraphy, porcelain, paper cuttings, shadow puppets, poetry, landscape paintings, and the like.  But outside that front door, the duty of care appears to end. Common doors, hallways, and stairwells in Chinese apartment buildings receive little attention from residents; empty walls are often cracked with peeling paint and crumbling cement in seemingly abandoned hallways that open surprisingly into those beautifully maintained dwellings once you cross the inner threshold.  This may reflect other collective action problems relating to commonly-owned property, but it also reflects a widespread sense that what happens beyond the inner threshold is someone else’s responsibility.

Crossing the outer threshold onto the street reveals an even more dramatic difference.  In many cities, trash can be found everywhere—heaped on the sides of buildings, and littering not only streets but mountain trails and otherwise beautiful beaches.  Problems with consumer-product and water quality that I have previously written about feed into the overall trash problem.  Easily-breakable products and legitimate fears of unclean re-usables compound the prevailing urban culture of disposability, leading to a stream of waste that is often unceremonially piled up around neighborhoods.  A broken toilet and shards of glass have been piled outside our building for months, and it is only one of many such piles. 

Here in Qingdao, our neighborhood market area is hosed down by a street cleaning truck every morning.  I was surprised to hear this, because I would not have guessed this daily cleaning from looking at them in the afternoon—until I saw what they looked like in the morning beforehand: strewn with fish guts, corn husks, banana peels, discarded vegetable parts, used cooking oil, and every other kind of refuse that you can imagine left behind after the daily rush of morning street vendors.  People discard these things on the street, knowing that the city will clean it up—and the city does a faithful job.  But the hose can’t get to everything, and a fair amount of refuse accumulates in gutters and potholes.  And there is no street-cleaner for the narrower village streets, forest parks, or beaches.

Just as in the U.S., some Chinese individuals admirably take it upon themselves to clean up after their fellow citizens.  Even as I am dismayed to see so much trash along the mountain trails behind my neighborhood, I am heartened to see the small signs left by members of private groups who occasionally clear the area of litter.  The China Daily reported movingly over the winter on the efforts of an elderly woman in Beijing who makes it her personal task to comb trash out of Tiananmen Square every day. 

Nevertheless, while some conscientiously pick up their own trash and even that of others, many others routinely drop trash without thinking much about it.  In many places, it’s a culturally permissible thing to do.  We ourselves are trying to re-educate our four year-old to do otherwise after we watched him proudly demonstrate that he had learned at school how to peel his own banana—and then dropped the peel on the ground, as though it had always belonged there.  Perhaps it came naturally to him to just drop it on the ground without thinking about it, because he sees this happening around him so often.  Some leave water bottles and other garbage behind in buses and taxis, too—which is also common in the U.S.  But what I haven’t seen outside China are the taxi drivers who clean up what passengers have left behind by simply scooping the trash out of their car and into the gutter of the street where they are parked.

Littering is a human cultural problem throughout the U.S. and the rest of the world, demonstrated by American smokers who continue to discard cigarette butts indiscriminately, long since cultural tolerance for this waned after the 1970s environmental movement.  But in China, cultural permission to discard waste in public places extends beyond water bottles and cigarette butts, complicating the environmentalist message.  Consider the entrenched Chinese tradition of encouraging children to use public streets while toilet-training.  Chinese toddlers are weaned from diapers early—a great environmental good, given the obvious environmental problems associated with disposable diapers.  In the U.S., for example, where the average baby goes through about 8,000 diapers, parents buy as many as 40 million disposable diapers a day (or more), most of which end up in landfills where they will hold their mummified loads for the next 500 years.  But in China, toddlers wear pants with a split bottom, enabling children to squat to poo or pee wherever they happen to be when the urge hits.  Which leads to different kinds of environmental problems. 

I should be used to it after nearly a year, but I am always still surprised to emerge from our apartment to find a parent helping a squatting child unload beside the front gate.  Small piles of poo on the sidewalk are commonplace, so we walk carefully, eyes cast down.  I’ve seen parents allow their children to relieve themselves into large potted plants at airports.   I once saw a child have an accident in the aisles of a big-box store, and while the child was immediately whisked away to be cleaned, the resulting pile was left behind for others to avoid.  It’s not uncommon to see men urinating along streets and sidewalks, notwithstanding nearby public toilets erected to accommodate neighborhoods without indoor plumbing.  A related tradition engaged in by both men and women is that of spitting on the streets and sidewalks, after expelling the product from deep within troubled-sounding lungs. 

With so much Chinese ground thus anointed, the outside environment is generally (and correctly) viewed as a terribly unclean place.  The American “five-second-rule” is humorously gross in the U.S., but unimaginable in China—because even indoor floors are trod upon by shoes that have walked through countless stages of decomposing goodness-knows-what.  A Chinese student, eyes wide with horror, once asked me whether it was true that American students sit or even recline on campus lawns between classes.  I laughed at the time, but months later would find myself cringing as a group of visiting American students sat to rest on the gracious exterior stairs of a provincial museum, and nothing I could say would dislodge them.  Similarly, Chinese friends would gasp when I instructed my toddler to hold stair handrails, worried about what hands had been there before him, and what those hands might have touched.  Their view—which I ultimately adopted—was that it was better for him to fall down the stairs than to allow whatever was on those railing onto his thumb, which inevitably drifts toward his mouth.  By necessity, Chinese parents wean thumb-suckers incredibly early (and by whatever means necessary).

Here’s the thing.  If you see the world outside your own home as a legitimate place to offload waste—even E. coli-laden human waste—how can this not extend to greater environmental management?  If it’s culturally permissible to drop litter (and worse) on the street or the beach, why wouldn’t it be okay to release manufacturing waste into the river, or pipe it into the air? 
The potential implications for environmental law are obvious.  Because it’s not just an economic challenge for the government to convince industrialists not to pollute; in some important way, it’s also a cultural challenge.  Professional polluters aren’t just doing it because it’s cheaper than the alternative.  They are doing it because—at some level—it’s what they have always done, and without any moral misgivings.

Scarcity.  The legacy of scarcity in an era of rapid economic development also factors in to environmental philosophy.  Indeed, a discussion of scarcity provides an especially poignant point of contrast between Chinese and American approaches that reflect their different stages of economic development. 

Let’s start by acknowledging the obvious: Americans are fortunate to have lived through a period in which most have not endured the scarcity regularly experienced by people in the developing world, and they should do better to remember that.  My family and I are often ashamed by the patterns of conspicuous consumption in the United States, where ever bigger cars, houses, and other forms of cultural bling are marketed to consumers who enjoy far more than their fair share of world resources.  Yet this year, we have also been perplexed by the contrasting patterns of consumption and waste that we have witnessed in China—from the trash piles of used disposables to the missing efforts to maintain buildings against the effects of weather and time.  Especially in a developing country, where resources are comparatively scarce, why not conserve and maintain? Why not fix old things, rather than just tossing them aside for a new ones? 

In puzzling over this question with some environmental faculty at Wuhan University, I learned how a nation’s developing status can also push in the opposite direction.  One spoke of an experience decades earlier, in the pre-PowerPoint era, when he was using an overhead projector with transparencies to accompany his lecture.  Something like a filament in the ancient projector blew, so everyone waited while the university repairman was called in.  Using tweezers and tiny metallic wire, he got it working again.  The man knew how to fix virtually anything—because he had to.  At the time, there was no alternative but to fix things, over and over again.  But now, in this age of emerging wealth, perhaps there is national pride in not having to fix things this way.  For some, he suggested, it is a sign of growing status to be able to toss out the old rather than fix and maintain it indefinitely. 

Similarly, several students once explained to me that their parents absolutely forbid them from licking their fingers when they ate—a good habit that they adhered to even at the local Kentucky Fried Chicken, a popular foreign restaurant chain in China.  At first, I assumed this was a matter of good hygiene, and I regretted the manners my own child displayed (after all, KFC’s American slogan is “finger-lickin’ good!”).  But I later learned the back-story: that these parents had come of age at a time where they sucked every last drop of grease from their fingers because there simply wasn’t enough food, and not a calorie could go to waste.  Now, when their own children licked a tasty finger over a full plate of food, these parents would passionately bat the sticky fingers away from little mouths, proudly reminding them that they would never have to lick their own fingers for nourishment.  They were not to do it, because doing it symbolized a desperation that the nation had triumphed over (at least in these urban areas) through economic development.

The cultural memory of extreme scarcity runs deep in China, and it is reflected in other curious cultural differences between China and the West.  One possible example that often confuses foreign visitors is the way that Chinese tend not to queue.  There is not a strong tradition of waiting in line for goods or services—so, for example, when the bus arrives, the crowd simply surges the door and people gradually push their way through, one by one.  There are something like lines at street food stalls, but rules are relaxed and there is no hard order to them; if someone wants it badly enough, they can just insert themselves close to the counter.  Even at the airport, as people wait to board the plane at the gate, many will queue, but others force their way through to the front as the group moves toward the plane.  My Western sensibilities were often jarred by this behavior, but my Chinese friends mostly tolerated this with either patience or indifference.  (Though I discovered how fully I had crossed over while escorting that delegation of American students through Beijing, frustrated by their halting efforts to politely advance through crowds while I soared through cracks and openings like a native…) 

Why no tradition of lining up?  One Chinese lawyer explained to me that this is just another response to the nation’s long history of extreme scarcity: in a world where there is never enough to go around, people long ago learned to grab for what they need.  This tradition is changing with new cultural developments and as problems of scarcity ease in China, but I have occasionally wondered whether it could lead to intercultural confusion in international affairs, such as negotiations over hotly contested resources in the Arctic or South and East China Seas.  That said, I am very self-consciously making these observation as an indirect beneficiary of the former American tradition of “manifest destiny”—our most spectacular example of not respecting a first-come, first-served ethic of access to natural resources.  So I suppose that both of our cultures—like all of them really—are on an ongoing path of philosophical development…

[To be continued in the final installment, in which I’ll conclude with some thoughts about the relevance of ancient philosophical traditions.]

--Erin Ryan

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

--Erin Ryan

 

The Good and the Bad in the BP Settlement, and the Main Course Still Ahead

 

I spent last Friday--the second anniversary of the BP Blowout--in the vast basement of the Orleans Parish Criminal District Court building, shifting in my metal chair, ignoring the talk-show chatter from the flat screens, and keeping an eye on the red digit counter to know when my number was up.

I'd been called for jury duty.

Whether I will eventually be deployed is up to the gods, but until then I have resolved to study (with the help of this building's creaking Wi-Fi system) all 2,000 pages of the proposed multibillion-dollar settlement in the Deepwater Horizon case--the settlement made public last week by BP and thousands of Gulf Coast residents and businesses. (I blogged earlier when the broad outline of this settlement was first announced here.) 

Now some of you may wish to savor the details, poring over the documents page-by-page between sips of Courvoisier. But for the rest, I've got the bottom line [SPOILER ALERT]: The proposed settlement rewards plaintiffs' hard bargaining, puts a crimp in federal and state hopes for a speedy trial, and demonstrates once again that despite the size of this deal, the main course is yet to come, in the form of federal civil fines and possible criminal prosecution. 

Hard Bargaining Rewarded

The documents propose a class-action structure, in which private plaintiffs would be compensated for economic harm and health claims by way of a settlement fund. The fund would replace the one that began as Ken Feinberg's Gulf Coast Claims Facility, but would be administered by the court rather than BP. Payouts under the new fund could begin within weeks, following Judge Barbier’s preliminary approval of the plan. 

Settlement claims are divided into those for economic loss and medical harm.  It is the package for economic loss that offers the most sparkling feature: a Risk Transfer Premium or "RTP." The RTP is a kind of bonus, based on an agreed-upon "multiplier." It's meant to compensate plaintiffs for future uncertainty or for less concrete losses that are hard to monetize.  So if you are the captain of a crabbing boat who can show $20,000 of lost earnings, you will get compensation in that amount plus a premium of $100,000--the $20,000 loss multiplied by the RTP multiplier for crab boat captains, which is 5. The multiplier varies by category. For coastal property owners, the multiplier is 2.5. For star-crossed oystermen, it is 8.75. I was especially pleased to find that subsistence fishers had secured an RTP multiplier (2.25) to compensate for non-monetized cultural losses, in addition to the multiplier for the economic value of the fish. In Louisiana and Mississippi, Vietnamese-American fishers often use self-caught fish as ceremonial gifts or as objects of community barter. Perhaps in exchange for RTPs, plaintiffs agreed to a total cap on seafood claims of $2.3 billion. All other claims are uncapped.

As for medical claims, any claimant who worked or lived on the coast may receive up to $60,700 for some specific ailments (but not many others), with the right to sue for medical harms that are identified in the future. Class members are also guaranteed 21 years of free medical monitoring.

The promise of quick payouts, combined with the RTP, gives plaintiffs compelling reasons to consider it. Surely, plaintiffs' lawyers will like it: BP has agreed not to object when they press the court for $600 million in fees (which would be paid in addition to plaintiffs' award). I suspect even BP is relieved to get this confusion of high-stakes claims out of the way.

Lost Hope for a Speedy Trial?

I envision federal and state lawyers, somewhere in Swampville, gritting their teeth over what appears the smallest of details. As part of the plan, BP has suggested the trial containing the state and federal claims be postponed all the way until November of this year. Ostensibly, that's because final approval of this settlement could not happen before then. But the timing all but ensures that the meatiest part of the trial--as well as last-minute settlement negotiations with the federal government--would occur half-a-year from now, when public concern has dissipated and a presidential election has just taken place, possibly putting a Republican in charge of the Justice Department next year. It will be up to Judge Barbier to decide that schedule, but right now the government lawyers must be steaming.

The Main Course

When that trial does happen, or when the federal and state claims settle, remember that those claims lie at the heart of this dispute. The partial settlement, valued at around $8 billion, is unquestionably one of the largest settlements in American history. But the remaining federal and state civil claims could eclipse that by many times. And it is possible that criminal penalties could add tens of billions of dollars more to BP’s bill. (See my itemizations here.) 

Is their number up? Today, not by a long shot.  But we’ll see.

--Rob Verchick  

China Environmental Experiences #3: Breathing Air with Heft

This is the third in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see my introductory post and last month’s reflections on China and the Rocky Mountain Arsenal.) It has been a busy month since my last post, during which I’ve had the pleasure of traveling the country widely. Today I actually write from Japan, where I am visiting Nagoya University to discuss the role of the common law public trust doctrine in balancing economic development and environmental protection.

It is a lecture that I have given frequently in both the U.S. and China, and before arriving, I had carefully considered the differences I could expect in sharing the same ideas with a Japanese audience. In the U.S., law students are fascinated by the role of legal institutions in mediating the conflict, especially demonstrated in the Mono Lake litigation around which I build the presentation. In China, students are more interested the factual content of the story—and dumbstruck by the idea that protecting birds, fish, and wilderness could possibly compete with the water needs of a large metropolis. What would I find here in Japan, a nation with relatively thorough pollution controls but comparatively scarce natural resources?

As it turned out, I needed no academic encounter to see where the Shintoist-inflected Japanese approach would differ from China’s. All the evidence I needed—evidence that nearly knocked me off my feet from the moment I first stepped outside—was in the air. The clean, fresh, sweet-smelling, healthy-feeling air. After eight months of breathing in China, the air was so beautiful that I almost cried. There was no haze, no taste, no grit. You could see the world crisply and clearly ahead of you for miles—even better than I could recall from home in the U.S. I realized in that moment how much I had forced myself to forget what this could be like, in order to just get on with daily life in China. But like an elephant, the lungs never forget. So I guess it’s time to confront the great elephant in the room of Chinese environmental issues and talk about the experience of living with China’s notorious air quality problems.

Everyone knows that air pollution is a serious problem in China. The World Health Organization reports that some 700,000 Chinese people die each year from air-pollution related respiratory diseases. Many of the world’s most polluted cities are in China, and we took serious account of this reality in contemplating our Fulbright voyage. In Beijing, particulate pollution levels regularly exceed the scale that the U.S. government normally uses to monitor it (such that air quality problems are quite literally “off the scale”). Shanghai air is a little better, but still far worse than the worst air quality days in the worst air quality years of Los Angeles’ experience. A friend at the U.S. Embassy in Beijing reports the common wisdom there that a bad day in Los Angeles can get as high as 90 on the PM 2.5 particulate pollution scale, while a bad day in Beijing can exceed 400 (and occasionally even tops 500). He says "if it's less than 150, I'm usually happy, because then I can see the sun." (For full comparison's sake, in 2009, the average PM 2.5 particulate pollution level for the entire U.S. was just under 10, and the average in Los Angeles was just under 15.) The State Department actually pays the American embassy staff in Beijing “hardship compensation”—extra pay for enduring hazardous working conditions, just by virtue of breathing there.  [For a good-day/bad day photo comparison, see this follow-up post.]

And foreigners aren’t the only ones concerned. In recent months, the people of Beijing witnessed an important demonstration of their own political power when public unrest ultimately persuaded the Chinese government to change its air quality monitoring norms. For years, China had monitored only airborne particulates measuring at least 10 microns across, even though it is the much smaller particles that can do the most damage—passing through the alveoli in the lungs directly into the blood stream. The U.S. embassy in Beijing monitors particulate matter as small as 2.5 microns (PM 2.5) on an hourly basis, and had been making the data available to the public over the Internet. So the Chinese air quality reports made air quality problems look a lot less serious than the American reports.

But this winter was worse than usual—much worse. The U.S. Embassy data showed sustained levels of seriously hazardous pollution—the kind that could harm any healthy person, not just the especially sensitive young, old, or sick. Air filter sales surged in Beijing, and residents donned surgical masks in (mostly futile) efforts to reduce their inhalation of choking auto exhaust, coal-fired power plant and manufacturing emissions, and dust from the ubiquitous construction projects and nearby Gobi desert. A New York Times report that managed to jump the Great Firewall told of some Party officials who had retrofitted their homes with equipment to cleanse the toxic air, infuriating the 99% who had to breathe it without recourse.

As public agitation mounted, the Chinese government reportedly requested that the U.S. Embassy stop publishing its PM 2.5 monitoring data (likening it to inappropriate meddling in domestic affairs). Beijing residents were enraged by these purported efforts to keep them in the dark about genuine threats to public health. In the Twitter-like microblogs that dominate the Chinese blogosphere, one after another vented their outrage—mothers wanting to keep young children inside when the air was most hazardous, sons wanting to keep aging mothers at home on the days of elevated stroke risk. In a stunning victory for transparency in Chinese governance—and an important signal of how seriously average Chinese people are taking air quality—the government reversed itself and finally began monitoring at the PM 2.5 level.

In fact, I had been graciously offered connections to some of the nation’s leading universities in Beijing when my Fulbright placement was being set. But given Beijing’s air problems (and with memories of my son’s respiratory complications from swine flu still fresh in mind), we pursued a placement in the coastal city of Qingdao instead, as much for the city’s famously clean air as for Ocean University’s vibrant environmental law program. And indeed, when we arrived in August, the wisdom of our choice seemed confirmed. Our introductory week in Beijing—while culturally thrilling—was environmentally chilling. None of my ample armchair research into Beijing’s air quality problems prepared me for the experience of actually breathing air with physical heft. Air with taste and texture. Air that we knew—our bodies as physically as our minds did intellectually—would eventually make us sick. We were elated to finally get to Qingdao, where indeed, the summer air was comparatively pristine. 

But even in Qingdao, everything changed in late November, when the heat went on in northern China. In China, the heat (like most else!) is centrally coordinated. So the heat for the entire northern part of the country goes online around November 15th, bringing to life the countless coal-fired power plants that freckle every city landscape, some large but many quite small. One such sleeper turned out to be directly across from my son’s preschool. Its curiously squat smokestack was coupled with a more slender companion, both raised just above the higher floors of the surrounding residential apartments. They seemed old and apparently unused in the fall, so we had assumed it was an old factory abandoned after residential infill. Once we realized that it was really an eye-level conduit for mercury-laden, throat-choking coal dust, we panicked considered our alternatives. But the truth is that these little generators are everywhere. So many, so little, that installing appropriate scrubbers would require the kind of massive financial commitment currently beyond reach for most developing economies.

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. There is a kind of low-level panic that sets in when the air begins to go bad. You hope against hope that this time will not last as long as the last time, and you unconcsciously start to breathe more shallowly. Then you assume a bunker mentality and try to keep the bad air out of your home as much as possible. You close all the windows and become extremely careful about closing the doors as fast as possible when you come and go from the apartment. You have to give up the charade when you leave for work, but eventually it doesn't matter because the bad air eventually finds a way into every room. In large enclosed spaces like airports, the haze can even obstruct your view of the far interior wall. At this point, you just have to submit to the situation and try not to think about what's actually in the air. There is nowhere to go, nothing you can do to avoid it. But you still try not to breathe too deeply.

After the winter heat went on, the blue skies of Qingdao disappeared behind a grainy haze of automobile fumes and coal plant smoke. On the worst days the weather report is simply “smoke,” and breathing is like inhaling in the wake of buffed chalkboard erasers that have been tainted with some kind of chemical. We use packing tape to try and seal the faulty window frames and the gaps around our doors. Surfaces in our home are perpetually coated with once airborne dust and particulates. We are no longer so keen to take walks to the lovely mountain behind the university (which we very often can’t even see, as in the prior photo). We avoid strenuous exercise—even running to catch the bus—because deep breathing hurts. On days when we can only hazily see the building fifteen meters from our own (and the others beyond disappear fully into the smoke, as in the photo below), we try to not even leave the apartment.

In the early days of winter, the stress of adjusting to the air pollution was oppressive. We felt sick most of the time, and were always anxious. Eventually, we adapted to the circumstances and we were once again able to find joy and fascination in our new world. But even now, we finish most days by lying down in bed to cough the day's residue out of our lungs. And on many mornings, I wrestle with the decision to send my son to preschool, which requires both him and my mother to troop a half-mile up a steep hill directly toward the belching power plant.

In fact, when the EPA announced the new mercury rule that it finally promulgated in late 2011 after twenty years of trying, I metaphorically jumped for joy and then literally wept with grief when it forced me to connect the primary source of U.S. mercury—coal-fired power plant emissions—with our own experience here. I thought of all the environmental risks to which we are subjecting my little boy, who turned four here this winter. So ironic, after all our fastidious caretaking in his first three years (organic milk, physician-approved sunscreen, no cigarette or pesticide exposure, etc.)! What was the point, when we are now subjecting him to more hazard than he may experience for the rest of his life? Almost every day in January, I questioned whether I did the right thing bringing him here. About every other day, I was pretty sure that I didn’t.

Then again, we take the objectives of our cultural diplomacy here very seriously. Raising a child here has enabled us to access a depth of Chinese culture that most visitors never come close to understanding. We understand China in a way we never could have imagined before now, and we have shared our American ideals just as profoundly. At the moment, my son is a living bridge between our cultures, in a way that fills our neighborhood with joy and hope for the future of our nations’ friendship. So I tell myself that the air pollution is really very temporary for us, and that we will come home in just a few more months. (And then I wrestle with the guilt of knowing that all the people I’ve come to love here will not have the same luxury.)

Seriously folks—I’ve said it before, and I’ll say it again—every American bellyaching about the costs of environmental regulation in the United States really needs to spend a year living in China. Especially from this vantage point, the proposition that Americans no longer need so much environmental law because our environment is so clean (thanks, of course, to environmental law…) makes me want to break something. I try to muster some empathy for those making this argument, because they obviously have no perspective on what the lack of meaningful environmental regulation would actually mean for their daily lives. Which is why they should come to China for a while—preferably with their small children and aging parents. (Then we’ll see how much they miss the EPA!)

Here in Qingdao, without the benefit of enforced environmental regulations, we have learned simply to pray for cold weather. The northerly winds from Siberia blow the smoke out to sea and provide a day or two of respite, so bitter cold is our new favorite forecast. In fact, Qingdao’s famously clean air is probably a result of this standard winter weather pattern—but the weather patterns here shifted this year, as they have been doing all over the globe. Whether for reasons of climate change or unknown factors, the winds that once regularly purged Qingdao’s smog barely blew this winter, and air quality plummeted accordingly. In just the first three months, bad air quality days already exceeded the previous year’s by 400%. Qingdao residents have complained bitterly about the problem, even prompting some new local regulations. But as one of my students wryly observed, “would they rather their homes have no heat?”

In fact, northern Chinese winters get very cold, and most of our Chinese friends easily prefer the heat with all of its downsides. But we should also give credit where it is due for the many ways that Chinese people avoid making the problem even worse—by not living the way that most Americans do. For example, the roofs of all Chinese buildings are barnacled with rows and rows of solar water heaters, avoiding the need for yet more coal-fired electricity. The taxi fleets all run exclusively on natural gas, and city public transportation is exceptional—cheap, easy to use, and everywhere. Almost nobody here has an electric clothes dryer, among the most notorious energy hogs in the American household. Some fear this may change for the environmentally worse as 1.4 billion Chinese get richer and more interested in exotic appliances—but Japan has a fully developed economy, and line-drying remains the norm there as well. Finally, China appears to have made a serious national commitment to reducing greenhouse gas production in its Twelfth Five Year Plan, now beginning implementation in the seven largest metropolitan areas. (Perhaps in the meanwhile, they can work on small coal-plant scrubbers.)

Anyway, we are now counting down the days until the heat finally goes off on April 15th. What seemed unendurable in the first few months eventually became routine, such that the days we once barricaded ourselves inside are now days that I will (if reluctantly) take my son outside to play. We say things like, “the air is bad today, but at least the chalk dust doesn’t have too much chemical in it.” For better or worse, we have adjusted to our new environment—fully appreciating that it is still better than most Chinese enjoy. After November 15th, I alternated between horrified, angry, and desperate that I had submerged my family in the very sort of environment that I had pledged my professional career to avoid. I still have all of these feelings at times, but the desperation has mostly given way to determination. What environmentalists do is important. (Indeed, even the Tsingtao Beer Museum includes a display about environmental protection efforts tracing to Rachel Carson's Silent Spring.) What environmental scientists and lawyers do is important. What environmental law professors do is important. Keep doing it, everyone.

--Erin Ryan

Live Blogging from Silent Spring @ 50

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

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

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

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

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


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


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


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


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


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


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

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

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


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


• "Everyone has a stake in the oceans."


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


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


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


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


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

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

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


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


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


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


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


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


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


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

-Lincoln Davies

China Environmental Experiences #2: Rocky Mountain Arsenal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

--Erin Ryan

New Series: Environmental Adventures in China

I’m delighted to be joining the Environmental Law Prof Blog as a contributing editor. This year, I’ll be blogging about my environmental experiences in China, where I’m spending 2011-12 as a Fulbright Scholar and Visiting Professor at Zhongguo Haiyang Daxue (Ocean University of China). I am teaching a full schedule of American law courses while researching Chinese environmental governance, joined by my husband, 4-year old son, and 73-year-old mother. In our small two-bedroom apartment, we live like a typical Chinese family, with three generations and an only child.

To be sure, the living is not always easy—but perhaps our most important lesson of all will be to learn what it means to downsize from American consumption levels and live a little more like the rest of the world. (And this is a sobering lesson indeed.)

In light of our rich reservoir of experience here, my blogging will be less academic and more experiential—less about the fact that Beijing will finally begin monitoring air pollution at the 2.5 micron level, and more about how life changes when you are immersed in those particulates day after day. (For more academic reporting, see the excellent Chinese blog, China Environmental Law.) To summarize the overall sentiment of the series, anyone complaining about excessive environmental regulation in the U.S. really ought to spend a year living in China.

Better still, they should bring their young children or aging parents.

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. No amount of legal research could have prepared me for the differences in environmental perspective that I would encounter here (and even my undergraduate degree in Chinese language and culture falls short). So I hope that sharing these stories will help illuminate some of the cultural gaps we will inevitably encounter as Chinese and American partners work together to solve our global environmental challenges.

I thought I'd start by explaining a little bit about where many of these stories come from. We are fortunate to be living in the beautiful city of Qingdao, Shandong Province, which is on the coast of northeastern China across the Yellow Sea from South Korea. Qingdao is home to about seven million people—a small (!) city by Chinese standards. It is a wonderful place of disarmingly friendly people, complete with weather-worn mountains overlooking a peaceful sea. Home to several of China’s biggest brands and among the ten busiest commercial shipping ports in the world, Qingdao has won several awards for green development. And yes, it is where the famous Chinese beer comes from (“Tsingtao” is just a different Romanization for “Qingdao”!)

Ocean University is one of China's key comprehensive universities under the direct supervision of the Ministry of Education. It has about 30,000 students and faculty and ranks among the top 10% of universities nationwide. The law school has an especially dynamic environmental program, offering master's and doctoral degrees and hosting seven research institutes addressing marine law, coastal zone management, sustainable development, and other important topics. (Of note, the Law School is currently inviting applications from both students and faculty for some very intriguing programs of exchange--about which I've posted separately here.)

The Dean and faculty have been extremely welcoming, and the students are delightful. Teaching them is especially gratifying because they are so hungry for the kind of engaged and participatory teaching that we regularly use in American law schools. Most of them have never before been asked what they themselves think, or to work all the way through a doctrinal problem, or to question their instructors. It is truly a privilege to be part of this cross-cultural exchange, and I will always be grateful to both the China Fulbright Program and my hosts here at Ocean University for the opportunity.

Nevertheless, the challenges of living here—specifically, the environmental challenges—can be harrowing. In the next few months, I’ll blog about the experiences of living without clean air, potable water, or faith that products in the marketplace won’t make us sick. I'll write about the many ways that established environmental problems foster newer ones, like the consequences of poor public water quality on the ever-increasing stream of waste products to cope with it. I'll write about our palpable homesickness for the kind of government oversight we take for granted to protect us in circumstances ranging from pharmaceutical to pedestrian safety. (For all the chest-thumping in some American circles about the perils of socialism, China is a Tea Partier's dream in many respects—as far away from the Nanny State as most would ever wish to venture.)

Yet I’ll also write about the environmental realms in which the Chinese put Americans to shame—for example, the amazing public transportation system in cities like ours, which can be navigated cheaply and conveniently by bus at all hours (and has a subway system in the making). Or the full-scale embrace of alternative sources of energy, with a solar water heater on every roof. Or the national government’s commitment to price carbon on at least some level--a part of the new Five Year Plan beginning experimentation in seven cities. Or the general willingness among most Chinese to make personal sacrifices for the greater good.

But since this is a blog and not a novel, I'll save my first tale for the next post--a story about how Colorado's Rocky Mountain Arsenal led to surprising insights among my Natural Resources Law students about their own experiences in China. Stay tuned!

--Erin Ryan

Position Announcement - Environmental ADR Program Director

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

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

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

-Lincoln Davies

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

* The famine in Somalia continues to worsen.

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

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

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

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

* The leopards are not happy.

The Saga Continues . . .

Twelve years ago to the month, my wife and I stood in a long line at the classic Uptown Theater in northwest Washington, D.C. to see the much-anticipated Star Wars: Episode I The Phantom Menace.  Whatever your view is of that movie, Jar Jar Binks, or the science fiction genre in general, for me The Phantom Menace evoked a very particular response.  Having come to film as a child largely on repeated viewings of the VHS copy of the original Star Wars my father had made for me when it aired on network television -- the commercials almost, but not quite, perfectly cut out by the pause button -- The Phantom Menace left me awestruck by its effects, struggling with its disconnection from the original trilogy, and certain of only one thing: there would be more.

If anything was clear at the end The Phantom Menace, it was that there would be another installment of the Star Wars enterprise.  The story would go on.  The saga would continue.

Those who have been following the story of high-level nuclear waste in the United States must be feeling the same thing this week, as yet another installment of the saga that is Yucca Mountain was revealed.  While Congress is investigating the Nuclear Regulatory Commission's delay in issuing a final decision on the Department of Energy's withdrawal of its permit application for Yucca, this week the Government Accountability Office released a report examining what motivated DOE's decision to withdraw its application in the first place.  The GAO report is critical enough of the DOE that it is accompanied by a 14-page letter from the Department asserting, in part, that "some" of the GAO's "conclusions are based upon misapprehensions of fact."

A few highlights from the GAO report:

• "DOE’s decision to terminate the Yucca Mountain repository program was made for policy reasons, not technical or safety reasons."


• "After decades of effort and nearly $15 billion in spending, DOE succeeded in submitting a license application for a nuclear waste repository. However, since then, DOE has dismantled its repository effort at Yucca Mountain and has taken steps that make the shutdown difficult to reverse."
  


• "DOE undertook an ambitious set of steps to dismantle the Yucca Mountain repository program. However, concerns have been raised about DOE’s expedited procedures for disposing of property from the program . . .  In addition, DOE did not consistently follow federal policy and guidance for planning or assessing risks of the shutdown. Some of these steps to dismantle the program will likely hinder progress if the license application review process resumes—should NRC or the courts require it."
  


• "[There are] two broad lessons for developing a future waste management strategy. First, social and political opposition to a permanent repository, not technical issues, is the key obstacle. Important tools for overcoming such opposition include transparency, economic incentives, and education. Second, it is important that a waste management strategy have consistent policy, funding, and leadership, especially since the process will likely take decades."

Further media reports on the GAO study are available here, here, and here.

-Lincoln Davies

Yucca in the Crosshairs

When I teach administrative law, we start the semester with one of the primary lessons of the course:  "Everything in administrative law is political."  The same, often, can be said about energy law.  Our policy, our decisions, the directions we head on the nation's energy landscape are driven as much by politics -- interest groups, ideology, inertia -- as they are by reason, calculus, and a careful assessment of costs.

This is perhaps nowhere more true than with nuclear energy.  The political storm that surrounds that resource is on full display again this week.  As I posted previously, the House Energy and Commerce Committee has begun investigating the Obama administration's decision to (depending on your perspective) mothball or permanently shutter the Yucca Mountain project, which was originally slated to serve as a long-term storage facility for spent nuclear fuel.

Yesterday, the Committee held hearings on the matter and sparks flew.  The heart of the hearing was why the Nuclear Regulatory Commission has not yet acted on the Department of Energy's request to withdraw its permitting application for Yucca.  A prior decision by the Atomic Safety and Licensing Board ruled that DOE lacked the authority to withdraw its application.  That decision, however, is subject to review by the full NRC.

The implication by Republican lawmakers is that Chairman Gregory B. Jaczko, who was appointed by President Obama, has bowed to the administration's -- and his former boss's, Harry Reid (D.-Nev.) -- will by stalling issuance of the Commission's appellate decision.  A tied vote by the Commission would mean that the Board's decision stands, and other commissioners stated that they had given their votes last year.

A few highlights:

• Rep. Lee Terry (R-Neb.) called the NRC "the most secretive agency on Capitol Hill.”


• Rep. Joe Barton (R-Tex.) suggested that Chairman Jaczko was "foot-dragging . . . because he thinks on June the 30th" the Commission will have a different makeup.


• Rep. Morgan Griffith (R.-Va.) said it appears "from the outside" that the NRC is attempting to stall "until somebody comes along that agrees with you more than apparently whatever votes you got behind the scenes."

Yucca thus now may have officially earned the moniker "energy law's political yo-yo of the century."  No other project is as critical to the future of nuclear energy in this nation, and no other has been as stalled, delayed, debated, wrangled, or fought over.  It is, as politics so often are, truly up and down. 

Or, as Rep. Terry asserted about the NRC itself, "this is a politically run organization now." 

That sounds just like administrative -- and energy -- law to me.

Further coverage is available in the Washington Post, the New York Times, the Las Vegas Sun, and at E&E Daily.

-Lincoln Davies 

Seeing Environmental Law

A recent post by Blake Hudson reminded me how much photos can help teach environmental law.  With this in mind, over the past couple of days I have been pulling together some resources that I hope will improve my next environmental law class.

One resource that I do not use nearly as much as I should is Google Earth.  Google Earth seems tailor-made for environmental law professors.  In fact, Google's most recent campaign to get people to try the product is "Take a virtual tour of the California coast redwoods."  Could they be speaking to people like me more clearly?  I guess the ad could read "Take a tour of the redwoods the next time you teach natural resources," but that is nitpicking, isn't it?  It is not just the redwoods either.  To bring the point home, look at this aerial shot of some place very different from the redwoods--Love Canal:

The picture is great at telling the story of Love Canal's CERCLA remediation: it has been abandoned.  If you look closely at the picture, you can see that what appears an open field is actually the remnants of a neighborhood.  If one wants to take the story to the next level, Google Earth can help with that too.  The program allows users to upload photos and share them with anybody interested.  These photos are good at giving us more refined glances at Google's aerial shots.  Here is one of several shots of Love Canal, taken from near 100th Street:

The field used to be a neighborhood.  The fence is meant to keep people off the remediation site.  The street is no longer used and is in disrepair. 

Additionally, I occasionally I show my students youtube videos.  Sticking with the Love Canal Theme, here is a video of Lois Gibbs discussing her experience with the Love Canal disaster.

 

Lastly, I often use federal government websites to find photos because these websites often explicitly permit people to use their photos for educational purposes.  Perhaps the largest repository of photos the federal government has is the National Archive.  Its Archival Research Catalogue includes thousands of photographs that are available digitally.  (Be warned, however, the search engine does not work very well on the site.  I would actually recommend doing a site specific Google search instead of the catalogue's search engine).  Here is one of my favorite pictures I have found in the national archives--Dead Horse Point in Utah, my home state:

I think that to understand environmental law sometimes, you need to see it.  You need to somehow experience the things at stake, not just read or talk about them.  I am trying to find ways to help my students do that.  As I am rethinking my approach to environmental law for the upcoming year, I would be interested to hear what resources you use or would recommend.

--  Brigham Daniels

Environmental Justice @ 2011

No doubt that one of the most important forces in environmentalism over the last three decades has been the environmental justice movement.  Leaders in this field -- Bunyan Bryant, Robert Bullard, Sheila Foster, Eileen Gauna, Hazel Johnson, and Beverly Wright, to name only a few -- changed the way environmental issues are seen.  They point out that much of environmental protection has been myopic, and that its focus must change: to include equity, gender, income, race, and, ultimately, justice.

This week, the Department of Energy, the EPA, and the Department of the Interior, among others, are sponsoring what looks to be a phenomenal conference on the state of environmental justice today.  From the press release:

The U.S. Department of Energy, along with the U.S. Department of Agriculture, the U.S. Department of Interior, the U.S. Environmental Protection Agency, the National Small Town Alliance, the Howard University School of Law and others, kicked off the State of Environmental Justice in America 2011 Conference today in Washington, D.C.

This year's conference theme is "Building the Clean Energy Economy with Equity," and will focus on climate change, green jobs and equity for low-income, minority and Tribal populations. The goal is to continue bringing together participants from Federal agencies, academia, business and industry, nonprofit organizations, faith-based organizations and local communities to participate in a dialogue on achieving equality of environmental protection.

If you are in or near D.C., it should be time well spent.  The conference's website is here.  The program is here.

-Lincoln Davies

AAAS Policy Alert

For those of you who try to stay current on science policy, I am a member of AAAS and receive its policy alerts. I encourage all of you to join and subscribe to Science.  Here is today's policy alert:

AAAS Policy Alert -- April 29, 2009 

President Addresses National Academies

President Obama addressed the Annual Meeting of the National Academy of Sciences on April 27 and called for a renewed commitment to basic scientific research and education. During his speech he stated that his goal would be to increase our nation's share of federal investment in research and development (R&D) to 3 percent of gross domestic product (GDP). In recent years, the share has hovered around 2.6 percent of GDP. Furthermore, Obama announced the membership of the President's Council of Advisors for Science and Technology (PCAST). Members include past AAAS President Shirley Ann Jackson of RPI, as well as former Board member Rosina Bierbaum and current AAAS Treasurer David Shaw. They join former AAAS President John Holdren who is both the U.S. President's science advisor and co-chair of PCAST.

Budget News

The House and Senate have nominated the conferees to resolve the differences between their respective versions of the FY 2010 budget resolution. House members include: Budget Committee Chairman John Spratt (D-SC), Ranking Member Paul Ryan (R-WI), and Reps. Allen Boyd (D-FL), Rosa DeLauro (D-CT) and Jeb Hensarling (R-TX). Senate members include Budget Committee Chair Kent Conrad (D-ND), Ranking Member Judd Gregg (R-NH) and Sen. Patty Murray (D-WA). The conferees met today (April 27) to begin deliberating over a consensus document.

Other Congressional News

Congressional Climate Change Update. The House Energy and Commerce Committee held four days of hearings on the American Clean Energy and Security Act, with much debate on the merits of moving ahead on the climate and energy package. Subcommittee markup of the bill has been pushed back to next week, with details such as how to allocate permits to emit greenhouse gases and how the revenues will be used yet to be determined. Meanwhile Senate Environment and Public Works Chairwoman Barbara Boxer (D-CA) announced the formation of five working groups to find compromises in several areas of concern: regional issues, cost containment, targets and timetables, market oversight and coal research and technology. The Senate Foreign Relations Committee heard from Todd Stern, special envoy for climate change at the State Department, who testified on the diplomatic cost of inaction on climate change and emphasized the need for all countries - developed and developing - to engage in negotiations with "common but differentiated responsibilities." Stern is leading the first session of the Major Economies Forum on Energy and Climate on April 27-28, a White House initiative to develop a dialogue among major developed and developing economies on climate change.

New Bill Promotes Science Envoys. Last week, Senator Richard Lugar (R-IN) introduced legislation (S. 838) that recognizes the importance of international scientific cooperation and the work of organizations such as AAAS and the National Academies in this area. The legislation tasks the State Department to appoint Science Envoys to represent our nation and promote international collaboration.

Executive Branch

Presidential Memo on Scientific Integrity. OSTP issued a Presidential Memo on scientific integrity in the April 23 Federal Register and requests public comments on six principles for maintaining and protecting the responsible use of science in decision-making. The memo builds upon a March 9, 2009 memorandum from the President that called on OSTP to issue a set of recommendations within 120 days. OSTP has launched a blog on the subject and is seeking comments on the selection of scientists to serve in the executive branch, peer-review of science used in policy-making, access to scientific data used in policy-making, and whistleblower protection. Comments are due May 13, 2009.

NIH Stem Cell Guidelines Now Open for Comment. The NIH Guidelines for Human Stem Cell Research are now open for public comment until May 26.

NCI Director Speaks on Cancer Plan. National Cancer Institute Director John Niederhuber recently spoke of his institute's plans in the wake of President Obama's cited goal of doubling funds for cancer research. Included would be a boost in the NCI payline to fund more meritorious research grants, as well as more grants to first-time investigators and new faculty researchers. There will also be a focus on personalized cancer care.

EPA Examines Ocean Acidification. On April 14, EPA issued a Federal Register notice requesting information on ocean acidification, the changing of ocean chemistry from increases in carbon dioxide that affects coral reefs and other marine organisms. In response to a lawsuit by the Center for Biological Diversity, EPA is trying to determine whether changes are needed to the water quality criteria under the Clean Water Act. Comments are due June 15, 2009.

Toxics Reporting Tightened. As mandated in the 2009 omnibus appropriations bill, EPA finalized changes to reporting requirements under the Toxics Release Inventory that will take effect July 1. The final rules restore more stringent reporting requirements than those from a Bush-era rule that raised the pollution threshold for reporting. In 2006, AAAS submitted comments stating that the increased threshold would "threaten the ability of researchers to identify and understand potential threats to the environment and public health in a scientifically rigorous manner."

FDA Widens Access to "Morning-After" Pill. The Food and Drug Administration will now allow 17-year-olds to purchase the Plan B "morning-after" pill without a prescription, following a recent federal court order that it do so. The decision has been labeled a "triumph of science over politics" because of widespread concern that the previous administration overruled scientific advice on making the pill available over the counter, leading the FDA's top women's health official, Susan Wood, to resign in protest in 2005.

Nation's First CTO: Clarification. Last week's Policy Alert reported on the President's selection of Aneesh Chopra to be the nation's first chief technology officer. It has since been reported that the CTO will also be one of the associate directors of the Office of Science and Technology Policy (OSTP) concerned with overall technology policy and innovation strategies across federal departments. Chopra's position (which is subject to Senate confirmation) should not be confused with that of Vivek Kundra, recently named Chief Information Officer, who is located in the Office of Management and Budget (OMB), overseeing day-to-day information technology spending and interagency operations.

Elsewhere

Climate Risk Report Released. Led by the Heinz Center and CERES, a coalition of insurance, government, environmental, and investment organizations released a report, Resilient Coasts: A Blueprint for Action that listed steps the nation can take to drastically reduce rising coastal hazard risks and their associated economic impacts.

Texas School Board Chairman Up for Confirmation. Texas State Board of Education Chairman Don McLeroy, a vocal opponent of teaching evolution, is up for Senate confirmation by the state Senate, and during a recent hearing some members of the Senate Nominations Committee expressed dissatisfaction with McLeroy's performance. One state senator said McLeroy has "created a hornet's nest" and noted that 15 bills filed during this legislative session would strip powers from the state school board. Even if McLeroy is not confirmed as chairman, he will still remain a member of the board. In other news, the Institute for Creation Research is now suing in U.S. District Court over the Texas Higher Education Coordinating Board's decision to deny its request to offer a master's degree in science education.

Animal Rights Activists Charged. Two animal rights activists have been arraigned on charges of conspiracy, stalking and other crimes, including attempted fire-bombing, against UCLA scientists engaged in animal research.

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Publisher: Alan I. Leshner
Editor: Joanne Carney
Contributors: Erin Heath, Earl Lane, Steve Nelson, Al Teich, Kasey White

NOTE: The AAAS Policy Alert is a newsletter provided to AAAS Members to inform them of developments in science and technology policy that may be of interest.  Information in the Policy Alert is gathered from published news reports, unpublished documents, and personal communications.  Although the information contained in this newsletter is regarded as reliable, it is provided only for the convenience and  private use of our members.  Comments and suggestions regarding the Policy Alert are welcome.  Please write to [email protected].

Findlaw environmental case summaries March 2009

Table of Contents - March 16-29th

ENVIRONMENTAL LAW CASES

• Trout Unlimited v. Lohn
• Natural Resources Def. Coun. v. EPA

FindLaw's case summaries are copyrighted material and are not intended for republication without prior approval. You may, however, freely redistribute this e-mail in its entirety.
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U.S. 9th Circuit Court of Appeals, March 16, 2009
Trout Unlimited v. Lohn, No. 07-35623
In a challenge to a National Marine Fisheries Service (NMFS) regulation distinguishing between natural and hatchery-spawned salmon and steelhead when determining the level of protection each species should receive under the Endangered Species Act, the majority of District Court's rulings are affirmed where NMFS decisions were not arbitrary, but reversed where summary judgment to Plaintiff was erroneous. Read more...

U.S. D.C. Circuit Court of Appeals, March 20, 2009
Natural Resources Def. Coun. v. EPA, No. 07-1151
Petitioner's petition for review of EPA air quality regulations is denied, where: 1) Petitioner failed to object to the EPA's definition of "natural event" during the rulemaking process; and 2) the preamble to the regulations was not a final agency action, and thus was not reviewable under the Clean Air Act. Read more...

Table of Contents - March 9 - 15th

ENVIRONMENTAL LAW CASES

• Am. Bird Conservancy v. Kempthorne
• Dallas v. Hall
• Hempstead County Hunting Club v. Southwestern Electric Power
• Washington v. Chu
• Delaware Dept. of Natural Res. & Envt'l. Ctrl. v. FERC
• Eastern Niagara Pub. Pwr. Alliance & Pub. Pwr. Coal. v. FERC
• State of California v. Allstate Ins. Co.
• People v. Tri-Union Seafoods, LLC

FindLaw's case summaries are copyrighted material and are not intended for republication without prior approval. You may, however, freely redistribute this e-mail in its entirety.
To view the full-text of cases you must sign in to FindLaw.com.[Findlaw registration is free}

U.S. 3rd Circuit Court of Appeals, March 11, 2009
Am. Bird Conservancy v. Kempthorne, No. 07-4609
In an action involving environmental rulemaking, dismissal of plaintiff's complaint for lack of subject matter jurisdiction is affirmed where the challenge to the denial by the Fish and Wildlife Service to undertake an emergency rulemaking listing the red knot species of bird endangered, is rendered moot by the publication of the warranted but precluded by higher priority listing in the periodic Candidate Notice of Review. Read more...

U.S. 5th Circuit Court of Appeals, March 12, 2009
Dallas v. Hall, No. 08-10890
In an action by a city against the Fish & Wildlife Service based on the agency's establishment of a conservation easement on the city's land, summary judgment for Defendant is affirmed, where the FWS considered a reasonable range of alternatives before creating the easement, and was not required to consider the impact on a potential water source. Read more...

U.S. 8th Circuit Court of Appeals, March 12, 2009
Hempstead County Hunting Club v. Southwestern Electric Power , No. 08-2613
In an environmental action, appeal of a denial of a preliminary injunction to halt preconstruction activities for defendant's failure to obtain the permit required by the Clean Air Act is dismissed as moot where defendant has since received the Clean Air Act permit and lawfully begun construction at the site. Read more...

U.S. 9th Circuit Court of Appeals, March 10, 2009
Washington v. Chu, No. 06-35227
In an action by the state of Washington against the Department of Energy for violation of hazardous waste management regulations, summary judgment for Plaintiff is affirmed, where the Washington Hazardous Waste Management Act plainly exempts designated nuclear waste from the storage and land-disposal prohibitions "with respect to WIPP" only. Read more...

U.S. D.C. Circuit Court of Appeals, March 13, 2009
Delaware Dept. of Natural Res. & Envt'l. Ctrl. v. FERC, No. 07-1007
Petitioner state agency's petition for review of FERC's approval of an application to operate a natural gas site is dismissed, where Petitioner lacked standing to challenge the order because it was expressly conditioned on Petitioner's approval. Read more...

U.S. D.C. Circuit Court of Appeals, March 13, 2009
Eastern Niagara Pub. Pwr. Alliance & Pub. Pwr. Coal. v. FERC, No. 07-1472
Petitioner's petition for review of the Federal Energy Regulatory Commission's (FERC) approval of a state agency's license to operate a power project is denied, where FERC's decision to issue the license was reasonable and reasonably explained. Read more...

Supreme Court of California, March 09, 2009
State of California v. Allstate Ins. Co. , No. S149988
In an action arising from efforts to obtain insurance coverage for property damage liability imposed in a federal lawsuit as a result of discharges from a hazardous waste disposal facility, grant of defendant's motion for summary judgment is reversed where: 1) triable issues of fact exist as to whether the 1969 overflow fell within the meaning of the absolute pollution exclusion for watercourses contained in the insurance policy; 2) evidence the State should have known flooding was likely is insufficient to prove as an undisputed fact that the waste discharge in 1978 due to flooding was expected and therefore nonaccidental; and 3) there is a triable issue as to whether the cost of repairing the property damage from the 1969 and 1978 discharges can be quantitatively divided among the various causes of contamination. Read more...

California Appellate Districts, March 11, 2009
People v. Tri-Union Seafoods, LLC, No. A116792
In an action involving food warnings, trial court's ruling for the defendant is affirmed where substantial evidence supports the trial courts finding that methylmercury is naturally occurring in canned tuna and thus defendants and other tuna companies are exempt from the warning requirements of Proposition 65. Read more...

Table of Contents - March 2 - 8th

ENVIRONMENTAL LAW CASES

• Summers v. Earth Island Inst.
• Martex Farms, S.E. v. US EPA
• Izaak Walton League of Am., Inc. v. Kimball
• Latino Issues Forum v. EPA

FindLaw's case summaries are copyrighted material and are not intended for republication without prior approval. You may, however, freely redistribute this e-mail in its entirety.
To view the full-text of cases you must sign in to FindLaw.com.

U.S. Supreme Court, March 03, 2009

Summers v. Earth Island Inst., No. 07-463
In an action challenging Forest Service regulations exempting certain land management activities from the agency's review process, an injunction against the regulations is reversed where Plaintiffs lacked standing to challenge the regulations absent a live dispute over a concrete application of those regulations. Read more...

U.S. 1st Circuit Court of Appeals, March 05, 2009
Martex Farms, S.E. v. US EPA, No. 08-1311
Final decision and order of the Environmental Appeals Board holding plaintiff liable for violations of the Federal Insecticide, Fungicide, and Rodenticide Act is affirmed where: 1) there is no legal basis for plaintiff's argument that the EPA's enforcement action amounted to selective prosecution; 2) plaintiff's claim that it was deprived of a full and fair opportunity to present its case fails as the denial of its motion to depose four witnesses was justified; and 3) there is no evidence that there is any basis for reversal as to the substantive violations committed by plaintiff. Read more...

U.S. 8th Circuit Court of Appeals, March 06, 2009
Izaak Walton League of Am., Inc. v. Kimball , No. 07-3689
In an action involving the Boundary Waters Canoe Area Wilderness Act, district court's grant of defendant's motion for summary judgment is affirmed where: 1) plaintiff's claims that the Forest Service violated the Act are time barred by the six year statute of limitations in the Act; and 2) there is no appellate jurisdiction over the appeal of the district court's order remanding the matter to the Forest Service to prepare an environmental impact statement assessing the sound impact of the proposed snowmobile trail. Read more...

U.S. 9th Circuit Court of Appeals, March 05, 2009
Latino Issues Forum v. EPA, No. 06-71907
In a petition for review of the EPA's approval of a state air-pollutant reduction program, the petition is denied where the EPA acted lawfully under 42 U.S.C. section 7509(d)(2) by not requiring implementation of "all feasible measures" into the program. Read more...

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U.S. Babies Drinking Formula are Exposed to Unsafe Levels of Perchlorate

One of the joys of blogging is all the good news that various organizations share with bloggers.  However, here's a story that isn't such good news, but needs to be told.  Joaquin Sapien of Propublica, which does public interest journalism, wrote this story about the dangers of hazardous chemicals such as perchlorate in baby formula:

CDC Study Finds Rocket Fuel Chemical in Baby Formula

by Joaquin Sapien, ProPublica - April 3, 2009 3:49 pm EDT 

Perchlorate, a hazardous chemical in rocket fuel, has been found at potentially dangerous levels in powdered infant formula, according to a study [1] by a group of Centers for Disease Control scientists. The study, published last month by The Journal of Exposure Science & Environmental Epidemiology, has intensified the years-long debate about whether or how the federal government should regulate perchlorate in the nation’s drinking water.

According to the CDC, perchlorate exposure can damage the thyroid, which can hinder brain development among infants. For nearly a decade, Democratic members of Congress, the Department of Defense, the White House and the Environmental Protection Agency have been fighting about how much perchlorate in water is too much.

In the new study, CDC scientists tested 15 brands of infant formula and found perchlorate in all of them.  The names of the brands weren’t revealed because the CDC says the study "was not designed to compare brands." But the study does say that the formulas with the highest perchlorate levels are the most popular. The most contaminated brands were lactose-based as opposed to soy-based and accounted for 87% of the infant formulas on the market in 2000, the latest data available from the U.S. Department of Agriculture.

The study points out that when perchlorate-contaminated powdered formula is mixed with water that also contains traces of the chemical, as many drinking water sources around the country do, the final concoction can become particularly harmful to babies.

"As this unprecedented study demonstrates, infants fed cow’s milk- based powdered formula could be exposed to perchlorate from two sources – tap water and formula. That suggests that millions of American babies are potentially at risk," said Anila Jacob, a physician and a senior scientist with Environmental Working Group, a Washington, D.C., nonprofit that posted the study [2] on its Web site.

In December the EPA released an interim health advisory [3] suggesting that water with a level of perchlorate limited to 15 parts per billion (ppb) is safe to drink.The level is not an enforceable standard, but is meant to provide guidance to states and local governments seeking to develop their own regulations.

Keeping perchlorate beneath that level would ensure that the amount of daily oral exposure would remain beneath a threshold called a reference dose, the EPA said. That is the amount of perchlorate humans could consistently consume over the course of a lifetime without increasing their risk of harm. Environmentalists argue that the EPA reference dose is too high.

The CDC study found that, hypothetically, 54% of infants consuming the perchlorate-contaminated formula would exceed EPA’s reference dose, if the formula were mixed with water containing perchlorate at 4 ppb.

Perchlorate has been found at that level in drinking water sources of at least 26 states and two territories, according to a study the CDC referenced in the report.

Perchlorate’s effect on individual infants will vary, the CDC scientists said, according to their weight and the amount of iodine in their diet.Iodine can counteract the harmful effects of perchlorate and is an ingredient in many brands of baby formula, the scientists said.

In a statement sent to reporters last night, Sen. Barbara Boxer, chair of the Environment and Public Works committee, said the study prompted her to ask the Food and Drug Administration to inform the public "how best to protect children from perchlorate." As she has done in the past, Boxer called on the EPA to "overrule the Bush Administration’s policy which was to walk away from setting a safe drinking water standard for perchlorate in our water supply."

In 2002 the EPA suggested limiting the amount of perchlorate in water to 1 ppb, but in December [3] it changed that level to 15 ppb to the dismay of environmental advocates.

A March 2008 Government Accountability Office report criticized the Bush White House [4] for injecting politics into the EPA’s chemical risk assessment of perchlorate and other toxins.The report suggested that the White House Office of Management and Budget was stalling the completion of risk assessments by forcing scientists to respond to comments from other federal agencies, including the Department of Defense. The report notes that tight restrictions on perchlorate and other toxins would greatly increase safety and cleanup costs incurred by the Defense Department and its contractors.The Perchlorate Information Bureau, an industry trade group supported by Lockheed Martin, Aerojet and other defense contractors, said the cost of an overly restrictive perchlorate standard would be "potentially staggering [5]."

Perchlorate has been found leaching into public water wells from military bases and bomb-building facilities, especially in California [6].

Less than two weeks before the Bush administration left office, the EPA announced that it would delay its long-awaited decision [7] on whether to set a drinking water standard for perchlorate until the National Academy of Sciences weighed in on the issue.That announcement effectively punted the decision to current EPA Administrator, Lisa Jackson, who promised to regulate perchlorate at her confirmation hearing.

As we reported previously [8], when Jackson headed the New Jersey Department of Environmental Protection, state scientists urged her to regulate perchlorate, which was found at 4 ppb in six of 123 public water wells [9] (p. 41) in New Jersey in a 2005 survey.New Jersey still does not have a perchlorate standard.

Other states however, have stepped in to fill the regulatory void.California has set a perchlorate standard at 6 ppb and Massachusetts at 2 ppb.

As pressure to regulate perchlorate has mounted, so too has lobbying from the chemical manufacturing and defense industries. In February David Corn reported for Mother Jones [10] that these industries have hired a former Democratic senator from Nevada to stymie efforts to regulate the chemical.   

An EPA spokesperson said in an email to ProPublica today that the agency is reviewing the Bush administration’s work and "hopes to announce our direction soon."

"Perchlorate exposure is a serious issue," the email said, "and it’s a top priority for Administrator Jackson, who is concerned about its health effects on children."

This story is published under a Creative Commons license.