ELI cordially invites you to attend the annual reception and dinner, with this year’s award going to The Honorable Hank Paulson.
October 25, 2016 Omni Shoreham Hotel 2500 Calvert Street, NW, Washington, DC
ELI thanks our Super Star Sponsors
2016 Award Dinner 2016 Award «« Beveridge & Diamond «« Katten Muchin Rosenman LLP «« Crowell & Moring «« King & Spalding «« Gibson, Dunn & Crutcher «« Sidley Austin
and our Star Sponsors of the 2016 Award Dinner!
« American Express « Kirkland & Ellis LLP « Arnold & Porter « Latham & Watkins « Bayeco « Morgan, Lewis & Bockius LLP « Bergeson & Campbell « Paul Hastings LLP « Boeing « PepsiCo « Covington & Burling LLP « Perkins Coie « Dorsey & Whitney LLP « Pfizer « Dow Chemical Company « Pillsbury Winthrop Shaw « Exelon Pittman LLP « Farella Braun + Martel LLP « Skadden, Arps, Slate, Meagher « Geosyntec Consultants & Flom LLP & Affiliates « Greenberg Traurig, LLP « Toyota « Hess « Venable LLP « Hogan Lovells « West Academic « Husch Blackwell « Weyerhaeuser « IBM Corporation « The Wilderness Society « K&L Gates « WilmerHale « Keller and Heckman LLP
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For more information about Star Sponsorship, Proceeds from the 2016 ELI Award Dinner will please contact: Melodie DeMulling, (202) 939- help support the educational and research 3808, [email protected]. mission of the Environmental Law Institute. THE BRIEF
Navigating Demands on Water
LEAD FEATURE ❧ Drought is now a permanent feature of the American ecology. Meanwhile, demands on water supply are rising along with population increases, stressing endangered species. In response, existing statutes and litigation based on them are being stretched to their limits. By Kathy Robb Ralph Hunton & Williams Butler
Page 24 A Virtuous Circle
CENTERPIECE ❧ We live in a material world. The unsustainable consumption of natural resources translates into environmental degradation and increased business risk. Economic growth and raw materials need to be decoupled. Fortunately, there is a path forward. By Stanislaus Mathy Environmental Protection Agency
Page 30 Making the Paris Agreement Work
COVER STORY ❧ The challenge now is implementation. Creating a race to the top — an approach that could incentivize greater ambition — will require all elements of civil society, including environmental professionals, to reach the accord’s ambitious but eminently realizable goals. By John C. Dernbach and Donald A. Brown Henry Payne Widener University Law School
With a SIDEBAR by Hari Osofsky of University of Minnesota Law School Page 34
The Man Who’s Got BLM’s Back
PROFILE ❧ Steve Ellis operates at the interface of the political and the career workforce in this Department of the Interior agency tasked with managing the nation’s public lands, a fiery pivot point in the conservation conversation.
By Phil Taylor Greenwire
Page 40 THE BRIEF
Is OSHA a Failed Agency — Or an Unheralded Success?
THE DEBATE ❧ Fatal occupational injuries have fallen by 60 percent since the Occupational Safety and Health Administration was created, but how much credit it deserves is the subject of this Debate. OSHA has been out front offering advice on workplace improvements and can claim credit for successes such as brown lung disease or HIV infection among healthcare workers. However, the agency has set exposure limits for only 18 hazardous substances in its 46 years of existence. What are the agency’s most Page 44 praiseworthy success stories? And if OSHA‘s achievements have been limited, who bears responsibility? What statutory, budgetary, organizational, structural, or philosophical changes could improve the agency’s record?
b l o g s
The Federal Beat...... 9 Clearing the Air...... 17 By David P. Clarke By Kathleen Barron Chemical Safety Act Is First New Environmental Acknowledging Role of Nuclear Power in Meeting Law in 20 Years. Climate Goals.
Around the States...... 11 Science and the Law...... 19 By Linda K. Breggin By Craig M. Pease Are State Agency Budgets Rising Enough to Meet The Plight of the Bugs, and the Failure of the New Challenges? Laws of Humans.
In the Courts...... 13 The Developing World...... 21 By Richard Lazarus By Bruce Rich Who’s On First? District, Appeals Courts Grapple Conservation Fads, Environmental Markets, and with Jursidiction. Climate Change.
An Economic Perspective...... 15 Notice & Comment...... 22 By Robert N. Stavins By Stephen R. Dujack Cap-and-Trade: How California Can Lead on Latest news on climate change is exceedingly Climate Policy. dire. The Paris Agreement offers the only hope.
In the Literature: Oliver Houck on early America’s fur economy — Page 6 ELI Report: National Wetlands Awards presented at annual event — Page 52 Closing Statement: Scott Fulton on environment and justice — Page 56 The Environmental Law Institute makes The Institute is governed by a board of directors law work for people, places, and the planet. The In- who represent a balanced mix of leaders within stitute has played a pivotal role in shaping the fields the environmental profession. Support for the of environmental law, policy, and management, Institute comes from individuals, foundations, domestically and abroad. Today, ELI is an government, corporations, law firms, and internationally recognized independent other sources. research and education center known The Environmental Forum® is the for solving problems and designing fair, publication of ELI’s Associates Program, creative, and sustainable approaches to which draws together professionals in implementation. environmental law, policy, and manage- ELI strengthens environmental protec- ment. TheForum seeks diverse points of tion by improving law and governance view and opinion to stimulate a creative worldwide. ELI delivers timely, insightful, impartial exchange of ideas. It exemplifies ELI’s commitment analysis to opinion makers, including government to dialogue with all sectors. officials, environmental and business leaders, aca- For more information about ELI and its Associ- demics, members of the environmental bar, and ates Program, contact the Environmental Law In- journalists. ELI is a clearinghouse and a town hall, stitute, 1730 M Street NW, Suite 700, Washington, providing common ground for debate on important D.C. 20036, 202 939 3800 or 800 433 5120. Or environmental issues. visit our website at www.eli.org.
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4 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 The Environmental Forum
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® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 5 Reprinted by permission from The Environmental Forum®, September/October 2016 In the Literature
ASTOR’S DREAM away, take the goods to England, or bring them straight home across two oceans for payday. Globalization, The Great Northwest American Fur Emporium circa 1810. As Astor would learn, the risks By Oliver A. Houck were daunting as well. His men were in dangerous territory. The native settlements could turn hostile in a halk it up to Captain Cook’s Ages, was totally destroy’d.” Setting moment. The weather was awful, and men, who discovered some- another precedent that would haunt the mouth of the Columbia River thing more immediately the American experience. a menace with every passage. Com- Clucrative than a route around the All of this is background to the munications fell apart. Several of his world. They found that the “spec- newly published Astoria: John Jacob ships never arrived. A second, over- tacularly lustrous sea otter furs” Astor and Thomas Jefferson’s Lost Pacific land party to the post nearly starved purchased from Pacific Northwest Empire, which recounts the bold-be- to death on a marathon that lasted Indians for “one dollar’s worth of yond-reason venture of America’s first more than a year, Lewis and Clark trinkets, sold for a hundred dollars business tycoon, John Jacob Astor, a as nightmare. Nearly half of Astor’s cash in Macao and Canton.” The young immigrant who rose from the company would meet violent deaths. “rage with which our seamen were wharves of New York to become the All of this in order to serve the Chi- possessed to return and buy another wealthiest man in America, on the nese taste in fur collars, and a boom cargo of skins to make their fortunes, back of the fur trade. And on the back in beaver hats in London. The aston- at a single time, was not far shorty of of a vision for a western country not ishing part is that he came within an mutiny.” America’s first commercial yet created, not even yet dreamed, ace of succeeding. empire was born. perhaps even a companion democ- The American fur trade, writ It took no mutiny, simply the sailors’ racy on the Pacific coast, as he would large, is chronicled in Bernard de Vo- tale. A full decade before the overland sell it to President Jefferson, bearing to’s classic Across the Wide Missouri, journey of Lewis and Clark, a rollicking account rich one Captain Robert Gray of in the kind of detail that the Columbia Rediviva was Astoria: John Jacob Astor sticks in the mind: a party sailing from Boston, round- and Thomas Jefferson’s Lost of Kiowa parading into the ing Cape Horn and heading Pacific Empire. A Story of annual grand rendezvous, for the Northwest prize. He Wealth, Ambition, and Sur- the warriors leading in war was only getting started. He vival, by Peter Stark. Harper paint, their the wives fol- crossed the Pacific, traded Collins; 400 pages; $27.99. lowing on ponies pulling otter pelts for tea in China, the travois, their chants passed through the Indian preceding them on the Ocean, around the ever-vi- wind; a pair of American olent Cape of Good Hope, mountain men engaged in and finally up in the North a competition over eating Atlantic, arriving home three the entrails of a buffalo, one years later, elated, rich, and at each end, squeezing the ready to go again. contents ahead of them; a Six years later he did, but by this (of course) his name. And on the back careful calculation of the front-load- time Russian and British traders had of a third vision, widely shared, that ing musket against the Indian bow. made the same discovery, and the these resources were inexhaustible. Even de Voto, however, perhaps the prices natives were charging for pelts The logistics were daunting. Es- best historian of the American West, had soared. Offended, the captain tablish a post on an unknown coast paid little attention to the Pacific. It began to take them by force, which three thousand miles away as the was not his lens. met with some resistance. Further crow files, more than twice that by Astoria, focused on one piece of offended, Gray sent a raiding party sail, communicate with it by letters the frame, shares some of the same to raze the town of Opitsatah, and, entrusted to other boats en route to charm, the songs of Canadian pad- “in a short time,” its commanding anywhere, resupply it regularly, trade dlers who formed much of the com- officer recorded, “this fine village of with unknown natives against com- pany, airing their repertoire for days two hundred houses and massive cer- petitors from four more powerful on end. (Of all the remarkable at- emonial wood carvings, the work of nations, sell the pelts a half a world tributes of the Americans, they did
6 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 In the Literature
not sing.) We also see contrasting about lasting peace and allow civili- plains and tall-grass prairies as well. attitudes towards the native tribes, zation to advance.” Toward that end, Grouped in large herds, buffalo were the Brits quite formal but proper, the an estimated million bison a year perforce constantly on the move (as French fraternizing at every oppor- were killed between 1872 and 1875 are beavers, up and down a water- tunity, and the Americans harboring alone. (President U.S. Grant even shed), cropping their environment a disdain that led easily and often vetoed a buffalo protection bill, the and then letting it recover. Their to death. Killing Indians was no big first legislation ever passed by Con- manures were spread widely, reduc- deal. Over time, it never became one. gress to protect a wildlife species.) ing contamination, and their sharp Although, among other things it cost The program worked well. The buf- hooves aired plains soils and provided Astor his best ship on the western falo, like the sea otter and the beaver, water pockets for rain, tiny buffalo coast, trade goods, captain, and crew. were functionally gone. ponds. Along with beaver, they were Although Astoria, a history, treats the best friends a watershed ever had. none of this, these animals’ function In the end, three keystone species he fur trade soon went bal- in the landscape was gone as well. went down, and to our considerable listic. Sea otters have the Which would matter. Sea otter com- cost, a fact unrecognized then and thickest coats of any in the pleted a near-shore equilibrium dom- resisted yet today. Planet 101: Yes Tanimal kingdom, two coats in fact, inated by kelp forests, sea urchins, nature exists, and yes it is interde- one shielding the soft inner fur and abalone that trimmed them pendent. And it is valuable beyond sporting thousands of micro-hairs back, and otters that ate kelp feed- counting. per square inch. Better warmth and ers in turn with the near-unique (and Meanwhile, John Jacob Astor’s insulation could not be found. Their visually astonishing) use of rocks as a great project for the Pacific Northwest original numbers in the north Pacific tool to slam open these shelled crea- had failed. Three years of bad luck, topped one million. tures. Without the spotty leadership, and then the War Within a century, Yes, nature exists, and otter the mollusks of 1812 led to the abandonment of under constant ham- it is interdependent. boomed, ate out the his Columbia River empire. It galled mering, they were kelp, and one of the him to his dying day, but he recouped down to 1,000 and, And it is valuable richest ecosystems in quickly by cornering the Rocky yet a half-century beyond counting the world (and storm Mountain beaver trade and then sell- later, became early buffer to the coast) ing out at the propitious moment candidates for the went into a trophic before it, too, crashed. Meanwhile, endangered species list. The second cascade. It has taken a century of he had been busy buying up lower fur crop was beaver, which drew protection to bring them back, par- Manhattan ahead of the real estate trappers from Quebec to the Rocky tially, to sustainable levels. boom, amassed great wealth, built the Mountains to the sea. It too went The beaver crash led to other con- Astoria hotel chain to carry his name, from boom to bust, in only twenty sequences, most dramatically for the and hired the celebrated Washington short years this time, swept from fish and wildlife that depended on Irving to write his memoirs. By Amer- every pond, stream, and valley until their ponds, and for downstream ican lights, a life well lived. beaver were too few to make a bun- floods, once held in check by mil- At book’s end, Astoria speculates dle and the London hat trade turned lions of these same ponds, now re- on what might have happened had to linen instead. leased without brakes onto civili- Astor’s Northwest venture succeed- The third fur to go was the Ameri- zation below. Which then led to a ed. Could it really have coexisted can bison ranging as far east as Loui- spree of human dam building, great with the eastern civilization where siana, and whose rolling thunder walls of concrete to replicate what we he lived? Would he, in the author’s shook the plains. Observing a herd once had for free. And could again. words, “Have created another ‘bea- in Arkansas, an Army colonel report- Responding to proposals for $10 bil- con of democracy,’” or “a sprawl- ed: “From the top of Pawnee Rocks lion in new dams for the Columbia ing and powerful trade empire con- I could see from six to ten miles in watershed, the Washington Depart- trolled by a dictatorial fur and real every direction. This whole space was ment of Ecology has countered by estate baron based in Manhattan?” covered with buffalo, looking at a releasing beavers into the Methow The question seems uncannily distance like a compact mass.” They Valley (where they had been extermi- contemporary. too went down, remarkably quickly, nated). In short order they have 176 . for their hides and then to eliminate ponds at 51 sites, storing millions of Oliver A. Houck is professor of law at the plains Indians themselves. As gallons of water. There is hope. Tulane University. He can be reached at General Phil Sheridan told the Texas The bison collapse, followed by [email protected] or www.oliverhouck. legislature, “The only way to bring the advent of cattle, transformed the com.
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 7 Reprinted by permission from The Environmental Forum®, September/October 2016 Contemporary Issues in Climate Change Law and Policy: Essays Inspired by the IPCC
By Robin Kundis Craig and Stephen R. Miller
The Intergovernmental Panel on Climate Change’s most recent set of reports, generally referred to collectively as the Fifth Assessment Report, present signi cant data and ndings about climate change. But what role does law play in addressing and responding to these ndings? This book, the second by the Environmental Law Collabo- rative, an a liation of environmental law professors, focuses on the relationship between law and the Fifth Assessment Report in hopes of bridging this gap.
This book’s chapters are illustrative of the overwhelming number of legal issues that climate change creates. Some of the contributions remain directly tied to the text of the IPCC’s reports, while others focus on climate change more generally. Together, this volume contributes to a constructive and helpful discussion about how to address the climate change challenge.
Review
“The Environmental Law Collaborative has once again produced a volume of contributions on a theme of vital importance. Contemporary Issues in Climate Change Law and Policy uses the IPCC’s latest round of reports as the lens through which to assess the progress and trajectory of law for climate change mitigation and adaptation. The result is a collection of chapters that are remarkably diverse in coverage yet coherent and intent in focus. Topics span the waterfront from national security and water infrastructure to religious perspectives and local community action. Each chapter stands on its own as thorough, insightful, and engaging, as well as a bountiful resource of law and policy update and analysis. Uni ed in the book through its core theme, the authors provide much to be gained for everyone from a newcomer to the rough and tumble of climate policy to those already steeped in its discourse.”
—J.B. Ruhl David Daniels Allen Distinguished Chair of Law Vanderbilt University Law School
ISBN: 978-1-58576-177-7 | Price $35.95 ELI members receive a 15% discount on all ELI Press and West Academic publications. To order, call 1(800) 313-WEST, or visit www.eli.org or westacademic.com. The Federal Beat Chemical Safety Act Is First New Environmental Law in 20 Years
he Frank R. Lautenberg paper in which four previous EPA tox- Chemical Safety for the 21st ics program chiefs provided insider ad- Century Act is effective im- vice on TSCA reform. Noting the Food Tmediately. But will it be immediately Quality Protection Act’s regrettable lack effective? Given the law’s dramatic of a phase-in, the former AAs suggested changes to U.S. chemicals man- that a minimum 6-18-month transi- agement, some industry observers tion period would be needed under a David P. Clarke is a writer and editor worry about the rapid-fire deadlines new TSCA testing and evaluation pro- who has served as a journalist, in indus- EPA must meet without a phase-in gram. But Congress ignored that ad- try, and in government. He can be reached period for absorbing the new provi- vice. Bergeson also cites, among other at [email protected]. sions, which aim to enhance public challenges, a controversial negotiated confidence in chemical safety. rulemaking due three years after enact- expressing interest in joining OPPT Doubtless, EPA must contend with ment to limit chemical data reporting to get in on the ground floor of imple- a demanding schedule. A June 29 agen- on any inorganic byproducts that will menting a very important modification cy “first year implementation plan” lists be recycled, reused, or reprocessed. of a federal environmental statute. a series of decisions due in short order. However, others who also were ACC is “encouraged by the approach Under Lautenberg, EPA must initiate key TSCA reform participants express EPA has taken” so far, Walls says, citing at least 10 risk evaluations a year for ex- confidence that EPA will meet its the first-year plan as an example of the isting chemicals that the agency deems deadlines. Richard Denison, the Envi- transparency and public engagement high priority for safety assessments. ronmental Defense Fund’s lead senior that will be critical as the agency moves More immediately, within 180 days af- scientist, comments that with a brand forward. ACC is reviewing the plan ter enactment, EPA must have the first new law there will be “growing pains,” and likely will provide comments. For 10 chemical evaluations under way. By but they will be temporary. Although example, in the forthcoming prioritiza- three and a half years, EPA must be the immediate effective date of Laut- tion rule, EPA’s existing TSCA Work working on 20 high-priority evalua- enberg demands “full speed ahead,” it Plan chemicals prioritization process tions and have designated 20 low-pri- would have been crazy to put off the will have to be adapted to reflect the ority chemicals. effective date for 6-18 new priority-setting criteria. EPA’s plan lists four It’s about best months, Denison says. The rule defining the new risk evalu- rules with mid-De- In the past, the TSCA ation process also will attract signifi- cember 2016 interim practices; the challenge program “never had cant ACC attention, as will questions milestones and final is constistency any deadlines to meet, regarding the interaction between the rules due mid-June across agencies never had any man- agency’s recently established Chemical 2017, including the dates,” handicapping Safety Advisory Committee and the prioritization process the program’s ability to new Science Advisory Committee on rule, the risk evaluation process rule, win Office of Management and Budget Chemicals, to be established within one a rule to designate active and inactive support, he adds. Clear requirements year. For the first time, “best available chemicals under the TSCA inventory, and deadlines are a needed fix. science” and “weight of evidence” ap- and a fees rule that has no deadline in Likewise, Mike Walls, American pear in the same law, Walls also notes, the new law but that EPA is moving on Chemistry Council vice president of ensuring important new policy and quickly because “authority to require regulatory and technical affairs, says he guidance will be needed in the science fees will be needed ASAP.” is “absolutely confident” that EPA can arena. Given these and many other man- deal with its many new obligations re- During a June 30 EPA webinar dates, the new law confronts EPA with garding new proposed rules and indi- on the new law, almost 1,300 people overwhelming demands, says Lynn vidual chemical decisions. For starters, joined, portending significant interest. Bergeson, managing partner of the law the agency has a roughly $56 million However, EPA’s system was so over- firm Bergeson & Campbell and a key appropriation and can collect new fees whelmed that most participants heard voice throughout the reform debates. under numerous sections of the law. no audio. Sympathetic observers don’t According to Bergeson, a major prob- Moreover, program staff members are believe the glitch signals an inauspicious lem is the lack of a transition period. working hard and experts outside the beginning, but it certainly points to That point was underscored in an Au- Office of Pollution Prevention and Lautenberg’s far-reaching implications, gust 2010 American Bar Association Toxics, both internal and external, are affecting every sector of the economy.
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 9 Reprinted by permission from The Environmental Forum®, September/October 2016 The Sustainability Handbook, 2nd Edition The Complete Management Guide to Achieving Social, Economic, and Environmental Responsibility
By William R. Blackburn
The Sustainability Handbook 2d Edition covers the complexities, challenges, and bene ts of sustainability when pursued by corporate, academic, government, and nonpro t organizations. This second edition identi es the newest, most cutting-edge practices in the eld to stimulate organizations of all types to take the next step toward sustainability, o ering a wide variety of practical approaches and tools, including a model sustainability policy for organizations, summaries and tips on selecting sustainability codes, an extensive collection of sample metrics, and much more. Organizations of all sizes can improve their chances of success—and survival—by integrating sustainability into their operations and decisionmaking. This handbook provides a blueprint on how organizations can reach or exceed economic, social, and environmental excellence.
Reviews
“This updated version of The Sustainability Handbook should be on every Sustainability Leader’s bookshelf. Blackburn combines his current study of the eld with his years of directing an industry-leading company to deliver techniques and tools for the reader to use to successfully integrate sustainability into their organization.”
—Jim Thomas, VP—Sustainability, Safety, Environment, Risk, Ethics & Compliance Petco Animal Supplies, Inc.
“If I was on a desert island and had to pick just ONE resource to learn, absorb, and then apply sustainability knowledge and best practices, I would pick The Sustainability Handbook—without a bit of a inch. It will serve as your sustainability beacon—a one-stop shop for a clear, honest, and thorough sustainability education and guide.”
—Bob Langert, Retired VP of Sustainability, McDonald’s Corp. Editor-at-Large, Green Biz Group
ISBN: 978-1-58576-174-6 | Price $79.95 ELI members receive a 15% discount on all ELI Press and West Academic publications. To order, call 1(800) 313-WEST, or visit www.eli.org or westacademic.com. Around the States Are State Agency Budgets Rising Enough to Meet New Challenges?
ew data indicate that many also vary. Ballotpedia notes state FY state environment and natural 2015 environment and natural re- resources department budgets sources department budgets ranged Nhave declined over the period from FY from $9.1 billion in California to 2011 to FY 2015. According to Bal- under $13 million in Oklahoma. Ac- lotpedia, a nonprofit online encyclo- cording to ECOS, in FY 2011 and FY pedia, 18 states decreased funding, 23 2012, permit fees provided the largest Linda K. Breggin is a senior attorney increased funding, and data were un- source of state environment agency in ELI’s Center for State and Local Envi- available for nine. funding (nearly 60 percent), followed ronmental Programs. She can be reached The Environmental Council of the by federal funds (nearly 30 percent) at [email protected]. States, a national association of state and finally state general funds (around and territorial environmental leaders, 13 percent). Oklahoma DEQ’s Jimmy Givens told also tracks budget trends for environ- The mix does vary from state to NPR that “cuts to state funding dis- ment agencies (but does not include state. On average, however, ECOS proportionately affect DEQ programs natural resources agencies). Based on data indicate that state general funds that make sure that local water supplies data from 47 states, Puerto Rico, and increased a small amount from FY are safe to drink.” Similarly, the Hart- the District of Columbia, ECOS re- 2011 to FY 2012. Dunn notes that, in ford Courant reported in July that the ported that from FY 2011 to FY 2012 comparison, federal categorical grant Connecticut Department of Energy state environment agency budgets de- funding — which supports state op- and Environment’s Rob Klee, whose creased in 36 states by an average of eration of delegated federal programs agency has lost 203 full-time employ- $357,000. Budgets increased in only — “for the last 15 years has essen- ees since 2007-08, told employees that nine and were constant in two. tially remained flat.” That, she says, is due to state budget cuts “we won’t be Although Ballotpedia and ECOS problematic considering inflation and able to continue doing everything we offer valuable data, additional infor- the need to implement new rules and do now,” and “we won’t always be able mation is needed to modernize programs. to do everything as quickly and effec- understand more ful- State budgets ranged Finally, a more tively as we want.” ly environment agen- thorough understand- Klee’s scenario has played out in cies’ funding levels from $9.1 billion to ing of the reasons for Pennsylvania, where the Department and how states stack under $13 million in funding decreases is of Environmental Protection’s John up. Alexandra Dunn, fiscal year 2015 needed. In some cases Quigley testified that “inadequate staff executive director of budget cuts may be and technology hamper the agency’s ECOS, says that state a political statement ability to handle the volume of permits budgets present “a complicated story.” about a particular program, such as it receives,” noting the agency had over She explains, for example, that com- the Clean Power Plan, explains Dunn. 400 fewer inspection and permitting paring state budget data is “apples and But, reductions also may reflect larger staff than seven years ago. oranges, because how states structure trends, such as economic downturns, According to Dunn, we have their programs is highly variable.” She as ECOS concluded with respect to reached a “level of stability at most cites the nonpoint-source water pol- agency budget decreases from FY 2011 agencies,” and states generally “find lution and drinking water programs, through FY 2012. Decreased fund- their legislatures willing to fund, if which in some states are included in ing also could reflect that an agency applicable through direct appropria- environment agency budgets but, in is doing the same work but applying tions, core environmental programs others, in agriculture or health depart- technology and other approaches to and services.” Although this may be ment budgets. ECOS’s regular budget perform more efficiently, says Dunn. the case in some states, it is also im- data collection, which will soon in- The deleterious effects of inadequate portant to learn, as ECOS recognizes, clude FY 2013-15, is an effort to de- funding, however, are also evident. Na- which states are underfunded. The velop a “consistent lens” for evaluation tional Public Radio recently reported information will lay the foundation over time, according to Dunn. that the Oklahoma Department of En- for tackling the hard policy decisions Comparing state budgets is a chal- vironmental Quality is down from 39 required to ensure the state environ- lenge not only because the scope of to 22 field offices and has reduced the mental programs that are central to agency responsibilities differ, but be- number of inspectors monitoring com- our system of environmental protec- cause agency size and funding sources munity water systems from 89 to 58. tion are effective.
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 11 Reprinted by permission from The Environmental Forum®, September/October 2016 What Can Animal Law Learn From Environmental Law?
Edited by Randall S. Abate
This book, edited by Prof. Randall S. Abate of Florida A&M University College of Law, seeks to ll the gap between the complex legal issues that matter most to the environmental law and animal law movements. Environmental law, with its intricate layers of international, federal, state, and local laws, has a longer history and is more established than its animal law counterpart. Yet, animal law faces many of the same legal and strategic challenges that environmental law faced in seeking to establish a more secure foothold in the United States and abroad. As such, animal law stands to gain valuable insights from the lessons of the environmental law movement’s experience in confronting those challenges.
The 17 chapters contained in this book compare the very di erent trajectories of the two movements’ regulatory histories and examine the legal intersections that may exist across them. Professor Abate draws on the talents of 22 experts from academia, the nonpro t community, and the legal profession to examine the ways in which animal rights and welfare law can bene t from lessons learned in the environmental eld. Providing various contexts and perspectives from U.S. law, foreign domestic law, and international law, the book addresses a myriad of substantive issues, including climate change, international trade, agriculture, invasive species, lead pollution, and sheries management, as well as procedural issues, such as standing and damages. The book concludes with a vision for the future on how animal law can learn from environmental law and how the two movements can better coordinate their common objectives.
About the Editor
Randall S. Abate is a professor of law, director of the Center for International Law and Justice, and project director of the Environment, Development & Justice Program at Florida A&M University College of Law in Orlando, Florida. At Florida A&M, Professor Abate teaches Environmental Law, International Environmental Law, Environmental Justice, Climate Change Law and Indigenous Peoples Seminar, Ocean and Coastal Law Seminar, Public International Law, Constitutional Law I and II, and Animal Law. Professor Abate joined the Florida A&M College of Law faculty in 2009 with 15 years of full-time law teaching experience at Vermont Law School, Widener Law School–Harrisburg, Rutgers School of Law–Camden, Florida Coastal School of Law, and Florida State College of Law. He has taught international and comparative environmental law courses in study abroad programs in Kenya, Canada, India, Argentina, and the Cayman Islands.
“This is a path-breaking collection of thoughtful essays on the relationship between traditional environmental law and the emerging law of animal rights and welfare. Indeed, these closely reasoned accounts show how intertwined are the strands of law that comprise these seemingly disparate elds. In a human-dominated world, the book is a useful reminder that hubris can lead to catastrophe for all forms of life on earth.”
—Patrick Parenteau, Professor of Law and Senior Counsel of the Environmental and Natural Resources Law Clinic, Vermont Law School
ISBN: 978-1-58576-176-0 | Price $59.95 ELI members receive a 15% discount on all ELI Press and West Academic publications. To order, call 1(800) 313-WEST, or visit www.eli.org or westacademic.com. In the Courts Who’s On First? District, Appeals Courts Grapple with Jursidiction
itigation is often procedurally lawsuits challenging the WOTUS rule messy. Because environmental all over the country: In 18 federal dis- laws are so complicated. And trict courts and, hedging their bets, in Lbecause there are so many parties in- eight federal appellate courts. For the volved. But the Sixth Circuit’s recent government attorneys defending the ruling in Murray Energy Corp v. De- WOTUS rule, the cases became the partment of Defense extends the mere litigator’s equivalent of Whack-a-Mole. Richard Lazarus is the Howard J. and messy to the crazily chaotic. They had to defend in multiple federal Katherine W. Aibel Professor of Law at Murray Energy concerns the validity courts of appeals and district courts all Harvard University. He can be reached of the Clean Water Act rule promul- over the country, responding to com- at [email protected]. gated in June 2015 by EPA and the peting motions, court schedules, and Army Corps of Engineers defining filing deadlines. jurisdictional issue. The Eleventh Cir- “Waters of the United States.” It is an The Sixth Circuit’s ruling in Mur- cuit case was not one of the cases trans- exceedingly important and controver- ray Energy last February attempted ferred to the Sixth Circuit because the sial rule, because WOTUS defines the to provide some order. By lottery, the case began as a district court filing and geographic reach of the act, including eight federal courts of appeals that had the Eleventh is accordingly considering its applicability to wetlands. received the petitions challenging the the jurisdictional issue on review from But before even considering the WOTUS rule chose the Sixth Circuit a district court ruling. It is far from lawfulness of the rule, the Sixth Cir- to resolve the issue for all eight. The clear that the Eleventh, should it de- cuit in Murray had to grapple with the Murray Energy court in turn ruled that cide to reach the issue, will agree with threshold issue whether it had jurisdic- federal courts of appeals, not district the Sixth. Not only is the Eleventh tion to hear the case. The Clean Water courts, possessed original jurisdic- Circuit (unlike the third judge on the Act does not make clear whether such tion in the case, and in the aftermath Sixth Circuit), of course, not bound a lawsuit must be filed of that ruling, most by any prior Sixth Circuit ruling, but first in federal district A litigator’s equivalent of the district courts Eleventh Circuit precedent is the most court or instead in a around the country favorable against the view that the fed- federal court of ap- of Whack-a-Mole, with dismissed their cases eral appellate courts have original juris- peals in the first in- cases popping up in either on their own or diction. Should the Eleventh Circuit stance. Section 509 many jurisdictions in response to the gov- disagree with the Sixth Circuit, only lists seven categories ernment’s motion. the Supreme Court could resolve the of challenges to EPA But, even now conflict. action that are reviewable directly in more than a year after the WOTUS In addition, any party who lost the appellate courts, but leaves unclear rule’s promulgation, it remains uncer- on the jurisdictional issue before the whether a challenge to EPA’s definition tain whether the threshold jurisdic- Sixth Circuit still has a little time of the act’s regulatory scope falls within tional issue is truly at rest. Although left to seek Supreme Court review one of those seven. the Sixth Circuit’s judgment favored no matter how the Eleventh Circuit The federal government’s view is its jurisdiction, the three-judge panel rules. And, while it is unclear whether that an EPA rule that, like the WO- was splintered. There were three sepa- the High Court would grant review TUS rule, defines the Water Act’s rate opinions and no majority opinion. over the solicitor general’s expected geographic reach falls within two of One judge thought the court lacked opposition, the obvious confusion the seven categories, and therefore jurisdiction; one thought there was caused in the WOTUS litigation any challenge to the WOTUS rule jurisdiction; and the only reason that might prompt a grant. Ironically, the must originate in a federal appellate the panel’s judgment was in favor of ju- SG unsuccessfully advised the Court court. But some lower federal courts risdiction was because the third judge to hear the jurisdictional issue a few have disagreed with the government’s concluded he was bound by a prior years ago, warning that otherwise just reading of Section 509 in challenges Sixth Circuit ruling to concur in that the kinds of problems witnessed in to prior EPA rules. judgment even though he thought that the WOTUS litigation would arise. Because of the resulting uncertainty, prior ruling was “incorrect.” Hardly a In retrospect, it certainly looks like more than 100 plaintiffs representing stirring endorsement. the SG was right. It’s been a colossal 32 states, leading industries, and envi- In July, moreover, the Eleventh Cir- mess and unnecessarily delayed judicial ronmental groups filed simultaneous cuit heard oral argument on the same review of an important regulation.
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 13 Reprinted by permission from The Environmental Forum®, September/October 2016 Rethinking Sustainability to Meet the Climate Change Challenge
Edited by Jessica Owley and Keith H. Hirokawa
Has the concept of sustainability as we know it reached the end of its useful life? Sustainability means many things to many people, but it has been a positive driving force across all levels of society in a broad-based e ort—either through laws and treaties or voluntary action—to keep our planet and our people healthy. But none of those e orts have managed to prevent climate change. It’s a reality that’s here to stay, and it’s bigger than we would have imagined even 20 years ago.
This collection of essays from experts in the eld articulates a wide range of thoughtful ways in which conceptions of sustainability need to be reexamined, re ned, or articulated in greater detail to address the climate challenge. As the editors note, one of the main challenges is the need for a better understanding of the issues at the intersection of sustainability and climate change and developing the proper means of communicating them. This important work takes critical steps toward reimagining sustainability in the era of climate change.
About the Editors
Jessica Owley is an associate professor of environmental law, federal Indian law, property, and land conservation at the SUNY Bu alo Law School.
Keith Hirokawa is an associate professor at Albany Law School, where he teaches courses involving environmental and natural resources law, land use planning, property law, and jurisprudence.
Review
“There is no better critique of sustainable development in print today than these 14 essays by scholars of the Environmental Law Collaborative. Their discerning insights expose inadequacies inherent in how the diverse and competing concepts of sustainable development can cope with climate disruptions. Has the law and policy associated with sustainable development become a maladaptation, increasing socioeconomic and ecological vulnerability? The work is provocative and timely. Profs. Owley and Hirokawa have deftly edited a well-annotated book that is essential in assessing whether sustainable development can address—or survive—the problems of climate disruption.”
—Nicholas A. Robinson, Gilbert & Sarah Kerlin Professor of Environmental Law Emeritus, Pace University School of Law
ISBN: 978-1-58576-173-9 | Price $35.95 ELI members receive a 15% discount on all ELI Press and West Academic publications. To order, call 1(800) 313-WEST, or visit www.eli.org or westacademic.com. Rethinking Sustainability to Meet the An Economic Perspective Climate Change Challenge Cap-and-Trade: How California Can Lead on Climate Policy Edited by Jessica Owley and Keith H. Hirokawa he past year has been a crucial cant multinational contributions will time in international climate be necessary to avoid having Califor- Has the concept of sustainability as we know it reached the end of its negotiations. In December in nia’s aggressive in-state actions be for useful life? Sustainability means many things to many people, but it has TParis, negotiators established an agree- naught. Absent such multilateral ac- been a positive driving force across all levels of society in a broad-based ment on the next round of targets and tion, ambitious state policies do little e ort—either through laws and treaties or voluntary action—to keep our actions to succeed the Kyoto Protocol, or nothing to address the real prob- planet and our people healthy. But none of those e orts have managed which was signed in 1997 and will ef- lem. Robert N. Stavins is the Albert Pratt to prevent climate change. It’s a reality that’s here to stay, and it’s bigger fectively close down in 2020. Nego- But California can play a very im- Professor of Business & Government at than we would have imagined even 20 years ago. tiators set up a new and meaningful portant role by showing leadership, in the Harvard Kennedy School, and director agreement for multinational action two key ways. One is to demonstrate of the Harvard Environmental Economics This collection of essays from experts in the eld articulates a wide range through individual country Intended a commitment to meaningful reduc- Program. E: [email protected]. of thoughtful ways in which conceptions of sustainability need to be Nationally Determined Contribu- tions in greenhouse gas emissions. In reexamined, re ned, or articulated in greater detail to address the tions. The Paris round was crucial, this regard, California has more than An example of this is the attempt climate challenge. As the editors note, one of the main challenges is the because it expanded the coalition of met the bar, with policies that are as to employ aggressive sector-based tar- need for a better understanding of the issues at the intersection of contributions from countries respon- aggressive as — if not more aggressive gets through technology-driven poli- sustainability and climate change and developing the proper means of sible for 14 percent of global emis- than — those of most countries. cies, such as the Low Carbon Fuels communicating them. This important work takes critical steps toward sions under Kyoto (Europe and New The other way is to show leadership Standard. In the presence of the cap- reimagining sustainability in the era of climate change. Zealand) to 187 countries responsible regarding how reductions of GHG and-trade regime, the LCFS has the for 96 percent of emissions. emissions can best be accomplished — perverse effect of relocating carbon About the Editors California sent a delegation to that is, in regard to progressive policy dioxide emissions to other sectors but the Paris talks. While not officially design. California has a sophisticated not reducing net emissions — at the Jessica Owley is an associate professor of environmental law, federal Indian law, property, and land conservation at the a party to the negotiations, govern- GHG cap-and-trade system in place, same time driving up statewide abate- SUNY Bu alo Law School. ment officials from which, while not per- ment costs and suppressing allowance Sacramento attended The state’s system fect, has many excel- prices in the cap-and-trade market, to show support for lent design elements. thereby reducing incentives for tech- Keith Hirokawa is an associate professor at Albany Law School, where he teaches courses involving environmental and could be a model for natural resources law, land use planning, property law, and jurisprudence. broad and meaning- Countries around the nological change. That is bad news ful action. For many even larger systems in world are now plan- all around. These perverse outcomes Review years, spurring action other countries ning or implement- render such policies of little interest beyond the state’s ing cap-and-trade or value to other regions of the world. borders has been systems, including While reduction in transportation- “There is no better critique of sustainable development in print today than these 14 essays by scholars of the the key rationale for developing a in Europe, China, and South Korea. sector emissions is clearly an impor- Environmental Law Collaborative. Their discerning insights expose inadequacies inherent in how the diverse and California-based climate policy. These countries are carefully watching tant long-run objective of an effective competing concepts of sustainable development can cope with climate disruptions. Has the law and policy This began 10 years ago with As- decisions made in Sacramento. Cali- climate policy, if the approach taken associated with sustainable development become a maladaptation, increasing socioeconomic and ecological sembly Bill 32, the Global Warm- fornia’s system, possibly with a few to achieving such reductions is un- vulnerability? The work is provocative and timely. Profs. Owley and Hirokawa have deftly edited a well-annotated ing Solutions Act of 2006. Initially, improvements, could eventually be a necessarily costly, it will be of little use book that is essential in assessing whether sustainable development can address—or survive—the problems of the focus was on encouraging action model for even larger systems in other to most of the world. Most countries climate disruption.” within the United States, including countries. have much less financial wealth than federal legislation, state-level action, Unfortunately, California’s climate California, and will therefore be much —Nicholas A. Robinson, Gilbert & Sarah Kerlin Professor of Environmental Law Emeritus, and multi-state compacts, but subse- policy has not relied heavily on its less inclined to follow the lead on such Pace University School of Law quent domestic response turned out cap-and-trade system to achieve state expensive policies. to be much less than anticipated. As a targets. Furthermore, rather than in- With China now the largest emit- result, California’s focus shifted to the creasing reliance on this innovative ter in the world, and India and other international domain. market-based climate policy over large developing countries not very This is a good time to consider how time, recent proposals have doubled- far behind, policies that achieve emis- the state can best demonstrate leader- down on the use of less efficient con- sion reductions through excessively ship on this global stage. Action by ventional policies to achieve GHG costly means will fail to encourage all key countries, including the large reductions. While some of these so- other countries to follow. On the emerging economies — China, India, called “complementary policies” can other hand, by increasing reliance on ISBN: 978-1-58576-173-9 | Price $35.95 Brazil, South Korea, and South Africa be valuable under particular circum- its progressive cap-and-trade system, ELI members receive a 15% discount on all ELI — will be necessary to meaningfully stances, they can also create severe California can succeed at home and Press and West Academic publications. address the climate problem. Signifi- problems. be influential around the world. To order, call 1(800) 313-WEST, ® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 15 or visit www.eli.org or westacademic.com. Reprinted by permission from The Environmental Forum®, September/October 2016 Best of the Books: Reflections on Recent Literature in Natural Resources and the Environment
By Oliver A. Houck and G. Tracy Mehan III
Lively wit and wisdom from the books columnists of The Environmental Forum, the policy journal for environmental professionals.
Best of the Books is a series of 60 essays and book reviews originally published in the Environmental Law Institute’s policy journal, The Environmental Forum. Written by columnists Oliver A. Houck and G. Tracy Mehan III, both long involved in the development of environmental policy, this anthology provides thoughtful and insightful pieces that reflect on where we are now in the struggle to harmonize human impacts with life of the planet.
As William D. Ruckelshaus, the first U.S. EPA Administrator, writes in the foreword:
“If you find yourself interested in the environment and thirsting for more information about what is meant by being an environmentalist, this is the book for you. If you want to understand the multitude of complex issues raised by different players in the debates—heroes and villains—then read on. What you will find is the rich and fascinating unfolding of a movement that in its modern form is now over 50 years old.”
Best of the Books will serve as an excellent source for anyone needing a canon of recent literature on the modern environmental movement and the legal structures supporting it.
About the Authors
Oliver A. Houck is a Professor of Law at Tulane University Law School. His specialties involve environmental, natural resources, and criminal law. He is active in legal proceedings involving wildlife, wetland, coastal, and pollution issues and publishes regularly on these and related topics. He also served as General Counsel to the National Wildlife Federation from 1971-1981.
G. Tracy Mehan III is Executive Director of Government Affairs for the American Water Works Association. Mehan has a long and accomplished career in natural resources and environmental protection, having served at the U.S. Water Alliance, the U.S. Endowment for Forestry and Communities, and The Cadmus Group, Inc., an environmental consulting firm. He was also Assistant Administrator for Water at the U.S. Environmental Protection Agency from 2001-2003.
"As Dante encountered Virgil to guide him through the afterworld, readers in this world should use Houck and Mehan as guides to locate and enjoy the best of contemporary environmental writing. This book is a splendid read."
—Bruce Babbitt Former U.S. Secretary of the Interior (1993-2001) and 16th Governor of the state of Arizona (1978-1987)
ISBN: 978-1-58576-175-3 | Price $29.95 ELI members receive a 15% discount on all ELI Press and West Academic publications. To order, call 1 (800) 313-WEST, or visit www.eli.org or westacademic.com. Best of the Books: Reflections on Recent Clearing the Air Literature in Natural Resources and the Environment Acknowledging Role of Nuclear Power in Meeting Climate Goals
By Oliver A. Houck and G. Tracy Mehan III ince at least the 1970s, federal This is occurring across all elec- and state policymakers have tricity market structures, as evi- looked for ways to bring clean- denced by the nuclear plant retire- Lively wit and wisdom from the books columnists of The Environmental Ser sources of electricity to customers. ment announcements this spring in Forum, the policy journal for environmental professionals. From the Public Utility Regulatory California, Nebraska, and Illinois. Policies Act to the federal tax code, In fact, in just the last year, operators Best of the Books is a series of 60 essays and book reviews originally from regional carbon cap-and-trade have elected to prematurely retire 10 Kathleen Barrón is senior vice published in the Environmental Law Institute’s policy journal, The Environmental Forum. Written by columnists Oliver A. Houck and G. Tracy programs to state renewable portfo- units, or one-tenth of the fleet na- president, wholesale market policy, at Mehan III, both long involved in the development of environmental policy, this lio standards, we have seen numer- tionwide, representing 69 million Exelon Corporation. She can be reached anthology provides thoughtful and insightful pieces that reflect on where we ous attempts over the last 40 years to megawatt-hours of zero-emission at [email protected]. are now in the struggle to harmonize human impacts with life of the planet. either encourage cleaner and more generation — three times the energy efficient sources or discourage pollu- generated by all solar panels built in the state to achieve its goal of reduc- As William D. Ruckelshaus, the first U.S. EPA Administrator, writes in the tion-emitting sources. the United States over the last 15 ing CO2 emissions 40 percent below foreword: Across the board, however, fed- years. 1990 levels. The ZEC program will eral and state policies have ignored This does not include the lost function similarly to the familiar re- “If you find yourself interested in the environment and thirsting for the largest and most reliable source carbon-free energy generated by newable energy credits that facilitate more information about what is meant by being an environmentalist, of clean energy: nuclear generation. the nuclear plants that have already RPS programs, but with an impor- this is the book for you. If you want to understand the multitude of Despite providing more than 60 per- ceased operation in California, Wis- tant and innovative new feature. The complex issues raised by different players in the debates—heroes cent of the nation’s zero-emissions consin, and Vermont, nor the addi- state will buy ZECs from nuclear and villains—then read on. What you will find is the rich and energy, nuclear operators across tional plants that financial analysts plants and the credits will be priced fascinating unfolding of a movement that in its modern form is now our industry have largely stayed out currently deem at risk of following at the value of avoided CO2 emis- over 50 years old.” of the debate, instead keeping the them to premature retirement. These sions, also known as the “social cost lights on, our capac- shutdowns have real of carbon,” minus any market com- Best of the Books will serve as an excellent source for anyone needing a canon of recent literature on the modern ity factors up, and costs and irrevers- pensation. environmental movement and the legal structures supporting it. Nuclear can serve as our heads down. ible consequences for This ensures that the state pays Utilities kept do- the carbon-free bridge plant communities, nuclear plants no more than needed About the Authors ing what they were to the clean energy the electricity grid, to achieve the necessary carbon re- doing: operating the future we all want and the environment ductions. In contrast, indirect mea- Oliver A. Houck is a Professor of Law at Tulane University Law School. His specialties involve environmental, natural nation’s 99 nuclear — when the plants sures, such as RPSs or tax credits, resources, and criminal law. He is active in legal proceedings involving wildlife, wetland, coastal, and pollution issues and reactors safely and that have announced tend to have wildly varying embed- publishes regularly on these and related topics. He also served as General Counsel to the National Wildlife Federation from affordably, providing 20 percent of retirement stop generating electric- ded prices of CO2. A diverse group 1971-1981. all the electricity consumed in the ity, CO2 emissions will go up dra- of climate scientists and environ- United States, and serving as the matically. We will go backwards in mental groups have praised the in- G. Tracy Mehan III is Executive Director of Government Affairs for the American Water Works Association. Mehan has a long backbone of the power grid that pol- our effort to bring customers cleaner novative regulation, arguing that it and accomplished career in natural resources and environmental protection, having served at the U.S. Water Alliance, the U.S. icymakers were seeking to improve. electricity. will make New York a global leader Endowment for Forestry and Communities, and The Cadmus Group, Inc., an environmental consulting firm. He was also All along, it was assumed that nucle- In recognition of this increasingly in energy policy. Assistant Administrator for Water at the U.S. Environmental Protection Agency from 2001-2003. ar energy would continue to be there dire reality, states are exploring ways If properly valued and granted while policies led to new sources of to value the carbon-free power pro- license extensions, today’s nuclear clean power. That is no longer a vi- vided by nuclear plants until a more fleet could continue operating until able strategy. comprehensive approach to national the middle of this century, serving "As Dante encountered Virgil to guide him through the afterworld, readers in this world should use Houck and Mehan as Here’s why: In the previous era of clean energy policy emerges. In New as a carbon-free bridge to the clean guides to locate and enjoy the best of contemporary environmental writing. This book is a splendid read." increasing electricity demand, nu- York, Governor Andrew Cuomo and energy future we all want. However, clear energy could survive and even the state public service commission losing nuclear plants prematurely —Bruce Babbitt thrive despite being left outside of have provided the leadership neces- will make that bridge longer and far Former U.S. Secretary of the Interior (1993-2001) and 16th Governor of the state of Arizona (1978-1987) clean energy incentive programs and sary to create a new type of envi- more expensive. The question is this: policies. However, in the current era ronmental regulation that will sup- should we build on our existing clean of flat or falling demand, subsidized port the Empire State’s reactors as a energy foundation, or should we tear competition, cheaper (but emitting) bridge to a low-carbon future. it down and start from scratch? alternatives, and increased operating Under the new regulation, the The author is grateful for the assis- ISBN: 978-1-58576-175-3 | Price $29.95 expenses, many nuclear facilities are commission has established a Zero tance of Kathy Robertson in developing not recovering their costs. Emission Credit program to enable this column. ELI members receive a 15% discount on all ELI Press and West Academic publications.
To order, call 1 (800) 313-WEST, or visit www.eli.org or westacademic.com. ® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 17 Reprinted by permission from The Environmental Forum®, September/October 2016 Wetlands Deskbook 4TH Edition
By Margaret "Peggy" Strand and Lowell M. Rothschild
Wetlands law operates at the junction of private-property rights and natural resource protection. While wetlands provide rich and diverse species habitat, protecting and promoting water quality, the vast majority of U.S. wetlands are on private proper- ty. Federal law addresses wetlands protection and development in a complex manner. Those interested in protecting wetlands or developing wetland property must navigate challenging legal waters.
The Wetlands Deskbook organizes wetlands law for the novice and expert. This must-have reference book combines insights from two of the nation’s premier wetlands experts and provides all the background materials needed. This Fourth Edition includes updates on the most recent court decisions, agency policies, and regulations, such as implications for endangered species and U.S. Department of the Interior mitigation strate- gies. The authors have also added a new section identifying practical tips and pitfalls for attorneys practicing wetlands law.
Margaret “Peggy” Strand is a partner at Venable, LLP in Washington, D.C. Ms. Strand has substantial experience advising on the regulatory requirements of federal and state law, including wetlands, natural resources, protected species, climate change, and pollution control. She was Chief of the Environmental Defense Section in the U.S. Justice Department, Environmental and Natural Resources Division, from 1984 to 1991, and served as a Justice Department trial attorney and supervisor since 1976.
Lowell Rothschild, Senior Counsel at Bracewell & Giuliani LLP in Washington, D.C., is an environmental litigator focusing on natural resource issues such as wetlands, endangered species, and environmental review. For over 20 years, he has represented private, public, governmental, and quasi-governmental clients working in the oil and gas, natural resource extraction, and infrastructure development sectors in obtaining and defending permits and responding to allegations of legal noncompliance, through both internal investigations and litigation.
ISBN: 978-1-58576-172-2 | Price $119.95 ELI members receive a 15% discount on all ELI Press and West Academic publications. To order, call 1(800) 313-WEST, or visit www.eli.org or westacademic.com. Science and the Law The Plight of the Bugs, and the Failure of the Laws of Humans
he thought of biodiversity been known: Too many people, typically conjures up images leading too lavish a lifestyle. of bears and tigers, not bugs, As a scientist, I especially seek Tmosquitoes, beetles, aphids, and simple conceptual models. I abhor caterpillars. With some justifiable unnecessarily complex explanations, reason, insects are widely regarded as such often obscure the truth, rath- as annoying little critters that bite, er than explicating it. Craig M. Pease, ph.d., is a scientist transmit disease, and eat our crops. One core model of environmen- who teaches at the Vermont Law School Superficially, butterflies appear to tal science simply and cleanly di- Environmental Law Center. He can be be the exception. Yet the insects we vides the Earth into two parts — the reached at [email protected]. know as butterflies spend most all natural world, versus the world of their life as caterpillars, a life form humans and our economic, politi- roughly 0.5 gigajoules per person, that seems to elicit an innate desire cal, and social institutions. Peter Vi- per year. to pick the disgusting little thing off tousek’s seminal 1989 Science paper, Adding the increase in human the plant, throw it on the ground, and the literature it has spawned, population to the increase in human and stomp it. show that by diverse measures (e.g., per-capita energy, we find, over the Who cares about insects? I do — land use, net primary productivity, last 40 years, a 100 percent increase a whole lot. I am appalled, indeed nitrogen fixation, etc.), humans now in human society’s total use of en- scared, by what is happening to occupy roughly half the biosphere. ergy. It’s a teeter-totter. The human them. And you should be too. Over the last 40 years, human biosphere doubles, and the natural In 2013, M. Sorg and colleagues population size has grown from 4.2 biosphere gets reduced, as assayed by placed standard Malaise insect traps billion to 7.4 billion, a 76 percent insect abundance, by half. Indeed, on a German nature preserve, repli- increase. As for the lavish lifestyle, going back further in time, human cating a 1989 insect there are compelling population has doubled, and dou- survey. As published Insects are declining in reasons, grounded bled, and doubled again (on which in a Report of The in thermodynam- see Albert Bartlett’s timeless You- Krefeld Entomologi- numbers and in species ics, as explained by Tube videos on geometric growth). cal Association, they worldwide, a result of Friedrich G. Juenger, And human per-capita energy use is found that for ev- human profligacy Nicholas Georgescu- now well over 100 times higher than ery four pounds of Roegen, Howard and subsistence society levels. What ex- insects present 25 Eugene Odum, Jing actly should we expect, if not utter years ago, only one pound now re- Chin, and Vaclav Smil, to assess the devastation of the natural world? mains. impacts of all those people on the Always and everywhere, the laws Their results are entirely consis- natural environment in terms of of nature trump the laws of humans, tent with Rudolpho Dirzo’s 2014 their per-capita energy use. Over the though it often takes considerable Science paper showing the abundance last 40 years, per-capital energy use time for this to play out. Here the of about 450 closely monitored in- worldwide has increased a seemingly laws of nature pertaining to geomet- sect species had decreased over the modest 18 percent. ric growth and energy drive loss of last 40 years by 45 percent. (It is tell- However, this per-capita energy biodiversity. The insects — what ing that we have decent abundance use varies greatly across countries, few remain of them — testify to the data on less than .01 percent of the and is orders of magnitude above complete failure of the laws of hu- perhaps 5 million extant insect spe- the pre-industrial base level. In the mans that seek to protect biodiver- cies, of which only a fifth or so have United States, each person uses sity. been described.) More colloquially, roughly 350 gigajoules each year. What hubris. What myopia. the bugs are getting hammered. Agrarian, undeveloped countries What moral bankruptcy. Herein our Too often our laws and policy dis- such as Tajikistan and Senegal have industrial, fossil-fuel-based society, cussions focus on proximate drivers annual per-capita energy use of 10 and its laws, having itself existed a of biodiversity loss, including habi- to 20 gigajoules. A true hunter-gath- scant century, burns a vast, mostly tat degradation, introduced species, er society (of which essentially none unread, library that encodes billions and climate change. Yet the ultimate are left on Earth) with no access of years of evolution, history, and causes of biodiversity loss have long whatsoever to fossil fuels would use knowledge.
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 19 Reprinted by permission from The Environmental Forum®, September/October 2016 Protecting the Environment Through Land Use Law: Standing Ground
By John R. Nolon
John R. Nolon’s Protecting the Environment Through Land Use Law: Standing Ground takes a close look at the historical struggle of local governments to balance land development with natural resource conservation. This book updates and expands on his four previous books, which established a comprehensive framework for understanding the many ways that local land use authority can be used to preserve natural resources and environmental functions at the community level. Standing Ground describes in detail how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This body of work emphasizes the critical importance of law in protecting the environment and promoting sustainable development.
Nolon looks at the legal foundations of local environmental law within the federal legal system, how traditional land use techniques can be used to protect the environment, and innovative and exible methods for protecting fragile envi- ronmental areas and for making urban neighborhoods livable.
Standing Ground is both a call to action—challenging readers to consider how local law and policy can augment state and federal conservation e orts—and a celebration of the valuable role local govern- ments play in protecting our environment.
“When it comes to the subject of local environmental law, John Nolon is a passionate, inspirational, and authoritative guide and teacher. The rest of us—lawyers, planners, professors, judges, public o cials, and citizen activists—have all bene ted from his insights and have been challenged to think carefully and creatively about the ways in which local law and policy can augment and improve upon federal and state e orts to protect our fragile environment from a growing number of threats.”
—Michael Allan Wolf, Richard E. Nelson Chair in Local Government Law, University of Florida Levin College of Law
To order, call 1(800) 313-WEST, or visit www.eli.org or westacademic.com. Price $69.95 • 628 pp. ELI members receive a 15% discount on all ELI Press and West Academic publications. Protecting the Environment Through Land The Developing World Use Law: Standing Ground Conservation Fads, Environmental By John R. Nolon Markets, and Climate Change 2013 editorial in Conserva- minded purchasers, sale of rain-forest John R. Nolon’s Protecting the Environment Through Land Use tion Biology by three leading products for cosmetics, discovery of Law: Standing Ground takes a close look at the historical scientists identified 10 “fads” new pharmaceuticals in rain-forest thatA environmental organizations and plants, and most recently, getting the struggle of local governments to balance land development funders have promoted globally in a private sector to pay local governments with natural resource conservation. This book updates and counter-productive fashion. The article and communities to conserve forests or expands on his four previous books, which established a maintained that conservation efforts manage agriculture as carbon sinks. Bruce Rich, an ELI Visiting Scholar, is comprehensive framework for understanding the many ways often are driven by a culture of unreal- Mitigating climate change is the big- an attorney and author who has served that local land use authority can be used to preserve natural istic expectations, leading to a cycle of gest single new source of environmental as senior counsel to major environmental rejection, reinvention, and repackaging finance, including government promo- organizations. E: [email protected]. resources and environmental functions at the community without learning the lessons of failure. tion of carbon-trading systems through level. Standing Ground describes in detail how localities are The fads included “marketing of nat- which private companies would pay for hoped for market-based conservation responding to new challenges, including the imperative that ural products from rain forests; biologi- land-based carbon offset sinks in devel- approaches try to survive by evolving they adapt to and help mitigate climate change and create cal diversity hotspots; integrated con- oping countries that will cost less then towards ever greater dependence on sustainable neighborhoods. This body of work emphasizes servation and development projects; reducing emissions in their own pro- government finance and regulation. ecotourism; eco-certification; commu- duction facilities. The United Nations Some market-based conservation the critical importance of law in protecting the environment nity based conservation; payment for REDD+ program (the + indicates other approaches like REDD+ originally and promoting sustainable development. ecosystem services; reduced emissions forest management programs that have were conceived to depend on revenue from deforestation and [forest] degra- been added to REDD) is currently the linked to prices that will increase in re- Nolon looks at the legal foundations of local environmental dation (REDD); conservation conces- lead example of such an approach. lation to growth of the very activity they law within the federal legal system, how traditional land use sions; and landscape approaches that But the main obstacle to conserva- are supposed to offset — in this case integrate agriculture, sustainable uses, tion in many parts of the world is a lack carbon emissions. But there is a chronic techniques can be used to protect the environment, and and conservation.” of robust governance and institutions oversupply of carbon credits for which innovative and exible methods for protecting fragile envi- One could think of others too, such — starting with reducing corruption prices have remained depressed for over ronmental areas and for making urban neighborhoods livable. as debt-for-nature — and simple failure a decade — 4.93 euros per ton of CO2 swaps or bio-pros- Reactively jumping of political will. Rais- equivalent as of July in the European Standing Ground is both a call to action—challenging readers to consider how local law and policy can pecting. It’s not that ing more money puta- Union carbon trading system. Low de- these approaches are from one new fad tively for conservation mand for carbon offsets in richer coun- augment state and federal conservation e orts—and a celebration of the valuable role local govern- without any value, but to another serves through increasingly tries reflects in part a more rapid fall ments play in protecting our environment. a professional and in- conservation poorly inventive finance can than expected in the price of alternative stitutional culture that even make things investments in renewable energy, espe- “When it comes to the subject of local environmental law, John Nolon is a passionate, inspirational, and reactively jumps from worse without reforms cially wind and solar photovoltaics, as authoritative guide and teacher. The rest of us—lawyers, planners, professors, judges, public o cials, and one new allegedly transformational fad in governance and institutions, and a well as slower and less carbon intensive to another serves conservation poorly. change of political culture. economic growth. This good news for citizen activists—have all bene ted from his insights and have been challenged to think carefully and The fads reflect the need of organi- A subsequent 2016 Conservation Bi- the climate is bad news for market pric- creatively about the ways in which local law and policy can augment and improve upon federal and state zations for new funding, and for new ology article revisits some of these mar- es of carbon offsets to finance REDD+. e orts to protect our fragile environment from a growing number of threats.” ways to brand themselves as more in- ket-based fads. It argues that REDD+ Meanwhile, lack of action by gov- novative than their competitors. Many and other market-based instruments ernments threatens that the transition —Michael Allan Wolf, Richard E. Nelson Chair in Local Government Law, donors are seduced by gimmicky ap- are fundamentally flawed approaches, to low-carbon energy will occur too late proaches that purport to be replicable since they can never raise sufficient to mitigate dangerous global warming. University of Florida Levin College of Law a thousand-fold as global solutions. amounts of money through artificially In late June, the energy ministers of the Others seek the utopian grail of mar- created markets to fully compensate the Group of Twenty largest economies ket-based instruments that aim to make short-term real world economic pro- once again failed to agree on any dead- conservation economically competitive ceeds of habitat-destroying resource ex- line or effective plan to phase out the with habitat-destroying activities. traction. Existing markets and econom- G20’s $444 billion in annual fossil fuel So one hears time and again that ic incentives for habitat destruction production and consumption subsi- wildlife habitat or rain forests can be can’t be countered by a weaker govern- dies, a commitment they made in 2009 saved only if they are made to pay for ment-created market for carbon offsets and rhetorically reaffirmed at the 2015 themselves, be it through ecotourism, or environmental services without huge Paris climate summit. This yearly $444 To order, call 1(800) 313-WEST, or visit www.eli.org or westacademic.com. eco-certification of international con- additional direct subsidization. As mar- billion is real money, not the cargo cult Price $69.95 • 628 pp. sumer commodities for conservation- kets fail to deliver, REDD+ and other of global carbon offsets.
ELI members receive a 15% discount on all ELI Press and West Academic publications. ® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 21 Reprinted by permission from The Environmental Forum®, September/October 2016 Notice & Comment
The Climate News unabated, an outcome that could devastate coastal “The Great Barrier Reef is in grave Gets Even Worse communities around the danger. The twin perils brought by globe,” the study concludes. climate change – an increase in the he debate over the reality of Predictions of sea level temperature of the ocean and in its Tclimate change continues, but rise have counted the con- acidity – threaten its very existence. those in the denial camp have to tribution of melting gla- If they continue to rise at the present face an increasing trove of anecdotal ciers and thermal expan- rate, the reefs will be gone within evidence plus hard data supporting sion of the oceans. This decades. And that would be a global the theory that greenhouse gases are study for the first time catastrophe. About a quarter of the warming the planet, with potentially added in “irreversible” and species of fish in the world spend catastrophic results. surprisingly rapid melt- some part of their lives in the reefs. “2015 was a record warm year ing of the Greenland and If the reefs go, the fish will also both globally and in many indi- Antarctic icecaps. The seas disappear. And that could affect vidual countries,” according to the could rise a full two meters the livelihood and diet of human World Meteorological Organization. by the end of the century, communities worldwide.” “Heatwaves were extremely intense within the lifespan of to- in various part of the world, leading day’s infants. That would — Sir David Attenborough to thousands of deaths in India and drastically alter the map of Pakistan. Record extreme precipita- the world and flood many tion led to flooding that affected tens of the world’s great cities and other mer maximum extent of northern sea of thousands of people across South coastal communities, as well as ag- ice continues to shrink, leading sci- America, West Africa, and Europe. ricultural land, causing hundreds of entists to worry that the planet is in Dry conditions in southern Africa millions of climate refugees. a positive feedback loop. Open water and Brazil exacerbated multi-year “A record expanse of Arctic sea absorbs heat normally radiated away droughts.” never froze over this winter and re- by highly reflective sea ice, warming Thousands of people died in just mained open water as a season of the water further. two countries from the intense heat, freakishly high temperatures pro- “Australia’s iconic reefs, particu- and tens of thousands became cli- duced deep — and likely irreversible larly the northern part of the Great mate refugees. — changes on the far north,” accord- Barrier Reef, are experiencing severe It gets worse. The Washington Post ing to The Guardian.“I’ve never seen bleaching,” according to the Climate reported on a study published in the such a warm, crazy winter in the Arc- Council, an Australian NGO. “The journal Nature. “Sea levels could rise tic,” the paper quoted Mark Serreze, Great Barrier Reef is a multi-billion nearly twice as much as previously director of the National Snow and dollar economic asset,” the council’s predicted by the end of this century Ice Data Center. “The heat was re- website reports. “Its value-added if carbon dioxide emissions continue lentless.” At the same time, the sum- economic contribution to the Aus-
Kids, Who Face the Greatest Climate Risk, Win in Court
A judge’s ruling on of Ecology to create left emissions-reducing drew draft emissions [April 29] in a lawsuit rules to reduce green- rules to the state. . . . rules in February for filed by eight kids forces house gas emissions by Current state targets, more work, lawyers for the state of Washing- the end of 2016. The set in 2008, call for a the children went back ton to get dead-serious judge said the urgency reduction in emissions to court, asking the about the threat of of climate change and of 50 percent below judge to press regula- climate change. In the state’s responsibil- 1990 levels by 2050. tors to act. what the activist teens ity to protect citizens The kids argue that “This is a massive vic- and pre-teens called a required that the Ecol- current science makes tory,” said Gabe Mandell, surprise decision, King ogy Department be clear that the cut 14, who was among the County Superior Court held to a deadline. . . . should be at least 80 eight kids who brought Judge Hollis Hill ordered The ruling reversed a percent. the lawsuit. the state Department November decision that After the state with- —Huffington Post
22 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 Notice & Comment
tralian economy was $5.7 billion in 2011–12, supporting 69,000 jobs.” The council notes that over a third NEWS THAT’S BEMUSED of reefs worldwide are suffering from thermal stress, and that half a billion In the background, stretching to believes that climate change people derive their livelihood from the horizon, is a sea of windmills, could bring financial ruin is Donald reefs, adding up to a trillion-dollar- scores of them. In the foreground is Trump. a-year economic asset that is in grave a photovoltaic array covering several “Presumptive GOP presidential peril. acres. This is the sight — or site — nominee Donald Trump has pro- “The rate of carbon dioxide emis- that greats visitors to Hillary Clinton’s posed yet another wall,” reports the sions is now higher than it’s been in campaign web page devoted to the online daily Greenwire. “This one the last 66 million years, going back climate change issue. Text running would keep out the rising seas that to the age of dinosaurs, according to across the page declares: “Making threaten to swamp his luxury golf a new study” in the journal Nature America the world’s clean energy resort in Ireland.” In May, Trump GeoScience, as reported by E&E Cli- superpower and meeting the climate “filed an application in County Clare mate Wire.“Today’s emissions even challenge.” for a permit to build a nearly two- eclipse the largest-known natural re- Donald Trump’s views on global mile-long stone wall. The beach- lease of carbon 56 million years ago. warming are quite different. He sees front of the golf course has been That event, perhaps due to green- climate change “as a very expensive receding about a yard each year.” house gases escaping from frozen form of tax,” according to the Wash- The application cites “global seabeds, caused temperatures to rise ington Post. He has called the theory warming and its effects” and in- 5 degrees Celsius.” “bullshit,”according to Politico, and cludes an environmental impact Not only would such a tempera- declared it is a Chinese plot to make statement, the ‘zine reports. The ture increase today cause the death of U.S. manufacturing noncompetitive. EIS notes “dune loss” in western millions of humans, it would put an He later walked back that last com- Ireland “due to sea level rise and incredible stress on ecosystems, par- ment and said he was only joking. increased Atlantic storminess.” ticularly those that depend on a cold Clinton’s web site states that According to Politico, “The zoning season as part of their natural cycle. she will “lead the world in the fight application raises further questions Indeed, studies show that is already against climate change by bringing about how the billionaire developer happening in the boreal forest. greenhouse gas emissions to 30 per- would confront a risk he has publicly “Up to a quarter of the permafrost cent below what they were in 2005 minimized but that has been identi- that lies underneath the surface of within the next decade — and keep fied as a defining challenge of this Alaska could melt by the end of the going. . . . I won’t let anyone take us era by world leaders, global industry, century, spewing long-held carbon backward, deny our economy the and the American military. His pub- into the atmosphere and helping ac- benefits of harnessing a clean energy lic disavowal of climate science at celerate climate change,” The Guard- future, or force our children to endure the same time he moves to secure ian reports on a U.S. Geological Sur- the catastrophe that would result his own holdings against the effects vey study. “Under scenarios calculated from unchecked climate change.” of climate change also illustrates by USGS, 16 percent to 24 percent of Trump has doubled down on the the conflict between his political Alaska’s permafrost will disappear by issue in a tweet issued in May, after rhetoric and the realities of running the end of the century under varying he had wrapped up the nomina- a business with seaside assets in climate change outcomes.” tion: “Any and all weather events the 21st century.” The problem is that, as with melt- are used by the GLOBAL WARMING Trump has said that a leader ing of the Arctic icecap, melting of HOAXSTERS to justify higher taxes to needs to be unpredictable, so may- permafrost and resulting emissions save our planet! They don’t believe it be this seeming contradiction is all of methane and other carbon com- $$$$!” part of a plan. At the same time as pounds would cause a positive feed- Actually, they — climate change he was proposing to build a wall in back loop, leading to ever-higher activists — do believe very strongly Ireland, he started campaigning in temperatures. that the world is headed toward a California prior to the June primary Meanwhile, representatives of bleak future that could destabilize there. “There is no drought,” Trump more than 179 countries have signed the economy, disrupt food supplies, told a rally, according to the Post. the Paris Agreement, humanity’s last, and put in jeopardy the ecosystems If only water required for an endan- best hope for a habitable planet. vital to our planet’s health and the gered fish could be diverted, there Notice & Comment is written by health of human society. And one would be plenty for all of Califor- the editor and represents his views. of the persons who most strongly nia’s needs, he declared.
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 23 Reprinted by permission from The Environmental Forum®, September/October 2016 24 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 LEAD FEATURE
Navigating Demands on Water
Drought is now a permanent feature of the American ecology. Meanwhile, demands on water supply are rising along with population increases, stressing endangered species. In response, existing statutes and litigation based on them are being stretched to their limits
Kathy Robb is a partner at Hunton & Williams representing water districts, manufacturers, energy companies, and financial institutions in environmental litigation and transactions. She represented the Guada- lupe-Blanco River Authority in The Aransas Project v. Shaw, et al.
ater policy and related regulation permanent feature of the climate of a low-rainfall increasingly intersect with consid- region, like a desert. eration of endangered species in The U.S. Drought Monitor, maintained by the the United States, resulting in com- National Oceanic and Atmospheric Administra- plex problems that are not easily tion’s National Integrated Drought Information Waddressed, especially through litigation — where System, provides a nearly daily index of current many of the disputes inevitably seem to end up. drought conditions based on a synthesis of expert Once considered a problem confined to the arid opinion from the public and private sectors and key West, these issues now crop up across the country, drought indicators like soil moisture, snowpack, as seen in Florida v. Georgia, currently before the precipitation, and streamflow. Specific indices are Supreme Court; the decade-long delta smelt litiga- used to classify the intensity of drought. tion in the San Francisco Bay–Delta area of Califor- U.S. Drought Monitor maps indicate agricul- nia, taken up most recently by the Ninth Circuit; tural drought where insufficient moisture is available and the whooping crane case in Texas decided last to grow a specific crop at a particular time.Hydro - year by the Fifth Circuit. The policy implications in logical drought reflects deficiencies in water supplies, these disputes are far-ranging and often go to the measured by stream flows and by lake, reservoir, heart of several cornerstone environmental statutes, and groundwater levels. Hydrological drought is including especially the Clean Water Act but also usually identified in a geographic area later than ag- the Endangered Species Act and the National Envi- ricultural drought, because lack of rainfall may af- ronmental Policy Act. The disputes illustrate the po- fect farming immediately but takes longer to affect tential tension between state and federal authority river and stream levels. An increase in groundwater when water is considered, despite the cooperative pumping often follows. Hydrological drought, once federalism that is the hallmark of the CWA and the it sets in, intensifies competition among a broad mandates of the other statutes. range of stakeholders: agriculture, of course, and All three cases rise from one issue: drought. It has also municipal suppliers; energy, industrial, fishing, affected the United States for centuries, and not just tribal, and recreational users; the environment; and in the West. Drought can be defined as a deficiency endangered or threatened species. of precipitation over a period of time, at least a sea- Drought generally has been left to the states to son or more. This deficiency is considered against a manage. In recent years, federal legislation has been long-term average and has a beginning and end — proposed from time to time, some aimed at federal distinguishing it from aridity, which is a relatively water projects built long ago and still operated by
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 25 Reprinted by permission from The Environmental Forum®, September/October 2016 the Bureau of Reclamation, in an attempt to address portionment of the waters of the ACF basin and drought conditions that can plague water supply. injunctive relief against Georgia to sustain an ade- Meanwhile, drought also affects listed and threat- quate flow of fresh water to the Apalachicola region. ened species, and can lead to restrictions on land use The Court granted Florida’s 2013 motion for leave and activity under the ESA. to file a complaint, and the case is now pending be- Following the 1978 Supreme Court decision fore a special master. in the snail darter case, TVA v. Hill, with its oft- The legal disputes about the ACF basin started quoted language that the “plain intent of Congress in 1990, when Alabama filed suit in federal court in enacting” the ESA “was to halt and reverse the to enjoin the Army Corps of Engineers from grant- trend toward species extinction, whatever the cost,” ing Georgia’s requests that the corps reallocate water Congress overrode the decision and the dam was in its storage reservoirs on the Chattahoochee for completed. Congress later amended the ESA to municipal supply. Florida subsequently intervened insist that key regulations must be “reasonable and to maintain a flow into Apalachicola Bay. The con- prudent.” tinued disputes have played out along three distinct In the current political climate, it seems unlikely lines: efforts among the states to cooperate and de- that the ESA will be revised one way or another. velop an interstate compact allocating ACF water; Recently, proposals to amend or revise the ESA, and challenges to the corps’ analysis of Georgia’s water similar state statutes, have emerged from stakehold- allocation requests; and litigation challenging the ers on both sides of the water-supply issue — those validity of the corps’ allocation decision. advocating drought-related provisions to make the In 1907, when Kansas sued Colorado over use of vital resource more available for human use, and the Arkansas River — a complaint that the Supreme those seeking to strengthen environmental protec- Court dismissed and did not hear on the merits — tions during drought. None has passed. Consider- the Court held it had authority to equitably ap- ing the web of state and federal laws already in place portion interstate waters so that each state could that apply to any water situation, piecemeal changes enforce its right to an equal share. Depending on seem unlikely, and would be extraordinarily compli- how you count, the Court has considered only nine cated to implement. equitable apportionment cases in its history, and ac- tually apportioned waters in only three. (Of course, the Court additionally has considered water rights istory shows that we tend to have a short disputes between states under interstate compacts.) attention span where water is concerned. To file a complaint, a state must show that its Or as Ben Franklin said, “When the interest is of “sufficient seriousness and dignity,” and Well’s dry, we know the Worth of Wa- that there is not an alternate forum to resolve its ter.” How to address gaps between wa- dispute. If the motion for leave to file a complaint Hter supply and demand has long been among the is granted, the Court routinely appoints a special most challenging environmental issues facing us. master, as in Florida v. Georgia. The master sifts In the short term, the challenge is how to evaluate through the technical evidence, conducts hearings, demands for more water that may benefit users but and submits recommendations to the Court. The may jeopardize certain species of fish and plants, parties must bear the expense of gathering the mas- including listed species. In the long term, the chal- sive amounts of data necessary to resolve the dis- lenge is how to manage water supplies to protect pute, and to enforce the decision through the Court aquatic species and also to support water users, who if necessary. depend on reliable supplies. We are achieving mixed The Florida v. Georgia dispute involves factors results in meeting these challenges. common to water conflicts worldwide: competition In the east, shared water resources in the Apala- for drinking water in an area of growth and devel- chicola-Chattahoochee-Flint (ACF) and Alabama- opment, with agriculture, endangered and threat- Coosa-Tallapoosa (ACT) river basins have resulted ened species protection, navigation, hydropower, in 25 years of litigation and disputes among numer- fishing and other commercial pursuits, recreation, ous interested parties, including Alabama, Florida, and conflict between upstream and downstream us- and Georgia. Now Florida has brought suit against ers. The ACF dispute represents in a microcosm the Georgia in the Supreme Court under the original conflicts that will continue to face us as population jurisdiction of Article III, seeking equitable ap- growth, energy needs, protecting the environment,
26 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 and changing weather put increasing demands on BiOp addressing drought operations determined finite water resources. that the proposed action will not jeopardize the ex- Drought in the southeastern United States has istence of the species considered and will not de- brought with it unprecedented competition for stroy or adversely modify critical habitat. Under water in the ACF/ACT basins among states shar- NEPA, the corps also submitted an Environmental ing the watersheds. Florida, Georgia, and Alabama Assessment of the drought-related modification to (which is not a party in the suit before the Court) its operations of Jim Woodruff Dam, with a finding collaborated over many years, entering into an of no significant impact. initial interstate compact “agreeing to agree”; sub- The corps has been updating the Master Water sequently discussing a framework for a compact Control Manual for the ACF basin in fits and starts, addressing allocation; and participating in media- interrupted from time to time by the litigation. The tion. In 2007, sections of Alabama, Georgia, North affected states are participating in that process, and Carolina, South Carolina, and Tennessee each had it is expected to be completed in 2017. When the the lowest annual rainfall on record. Some stream Supreme Court invited the solicitor general to file flows and reservoirs were at their lowest recorded el- a brief expressing the views of the United States on evations. That year, Florida, Georgia, and Alabama Florida’s motion to file a complaint for equitable ap- tried to negotiate a compact, urged by the secretary portionment, the SG recommended that the Court of the interior. This and subsequent efforts toward not consider the case until the corps completed the agreement failed. manual update. The Court took the case anyway. The three rivers making up the ACF basin have distinct differences. The Chattahoochee is im- pounded by five reservoirs, mostly maintained by here are three main water rights doctrines the corps for navigation, power, and flood control. in use in the United States at the state lev- There are also 11 power projects. One of the im- el. Florida and Georgia are riparian rights poundments, Lake Lanier, is the principal source states; generally, most eastern states have of water for metropolitan Atlanta, which doubled adopted a riparian system. Most western in size in the latter part of the 20th century. The Tstates have adopted some form of prior appropria- region includes the headwaters of five major rivers. tion. And several states have developed newer, hybrid Groundwater supplies less than 1.5 percent of At- systems. But these labels are becoming increasingly lanta’s needs. less useful as states develop and refine individually The Flint River runs through a 350-mile agricul- their water law in response to increasing demand tural region in southern Georgia and is mainly free and supply challenges. flowing, with only three reservoirs. Under prior appropriation, the right to use water The Apalachicola River moves through the Flor- for “beneficial use” attaches “first in time, first in ida Panhandle and empties into Apalachicola Bay. right,” and the user must “use it or lose it.” Benefi- The river has been dredged repeatedly by the corps cial use historically was a domestic or an economic to maintain a channel. The Apalachicola and its use, but now also includes aesthetic, recreational, floodplain system provide habitat for the highest and ecological uses. Definitions differ from state to concentration of endangered and threatened spe- state, with quirks and idiosyncrasies developed in cies in the basin. Apalachicola Bay provides shelter some state laws over a hundred years. Most states for juveniles of many aquatic species found in the require prior appropriation users to get a permit or Gulf of Mexico, and over 10 percent of all oysters decree before the right is fully vested, and the states consumed in the United States. Oyster, shrimp, and can apply restrictions to protect downstream users. recreational fishing is a multi-billion-dollar indus- In the East, where water is more plentiful, the try. The productivity of the bay results from the states adopted a “reasonable use” riparian system. unique range of salinity maintained by discharge A person owning real property bordering a natu- from the ACF’s freshwater flow. ral watercourse can make any reasonable use of that In 2006, as part of ESA consultation initiated water, so long as the use does not adversely affect the by the corps, the Fish and Wildlife Service issued a rights of other riparian owners. Biological Opinion on the corps’ Interim Operating The hybrid systems have sprung up in states that Plan for Jim Woodruff Dam and associated releases are experiencing more recent scarcity. They blend to the Apalachicola River. In 2007 an Amended the reasonable-use riparian system with elements of
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 27 Reprinted by permission from The Environmental Forum®, September/October 2016 prior appropriation. The particulars vary from state FWS worked on a new BiOp. FWS then issued a to state, but generally, hybrid systems recognize ri- new BiOp in 2008 concluding that water projects parian rights and also implement a permit mecha- were jeopardizing the smelt. The district court again nism for new demands placed on water resources. found the BiOp arbitrary and capricious, for failure Of course, state water rights law can profoundly to consider the “significant effects on the human en- affect the availability and allocation of water sup- vironment,” and again ordered FWS to complete a plies. While all state water rights systems can be new one. In 2014, the Ninth Circuit reversed the described at some level as complex, California has district court, affirming that water projects were a particularly complicated structure, based on both jeopardizing the existence of the smelt. The Ninth the riparian and prior appropriation doctrines. Circuit stated that the ESA “prohibits us from mak- The riparian model allows California landown- ing such fine utilitarian calculations to balance the ers with land bordering a watercourse to use that smelt’s interest against the interests of the citizens of water, and prior appropriation allows diversion of California,” holding that FWS could curtail water water without regard to land ownership near the deliveries to farms to protect the fish. The Supreme watercourse for beneficial use, acquiring rights to Court declined review without comment. the water through that use after obtaining a permit California experienced severe water shortages from California. While riparian users are considered beginning in 2008, impacting the Central Valley on equal footing with each other, and their water and the smelt habitat. Between 2008 and 2015, the share is reduced equally across the board in times of state deposited 1.4 trillion gallons of water into San scarcity, appropriation rights are ranked by senior- Francisco Bay in an attempt to keep the fish from ity and go to those who first appropriated the water. extinction. Pumps in the Bay-Delta that deliver wa- In addition, riparian owners take seniority over ap- ter to Southern California and farms in the Central propriation as a group. California also just started Valley were restricted. In 2015, a yearly spring sur- regulating groundwater through new legislation ad- vey by California scientists reported six smelt found opted last year. in March in the Bay-Delta and one smelt in April. The delta smelt is a listed fish that has had an That month, Governor Jerry Brown announced a impact on California water law and policy. Some compromise plan to address the drought that in- think it is on the brink of extinction in the wild. Ef- cluded cutting back on water transportation from forts to divert water to protect the delta smelt have northern California to southern California for fish sparked debate about how the fish, which is found and wildlife protection, resulting in 30,000 acres of only in California, has impacted water use during habitat protection compared to the 100,000 acres the state’s historic drought. The Bureau of Recla- originally planned. That provided some drought re- mation, which built and operates water facilities in lief to residents under declared emergency waivers. delta smelt habitat areas, figures prominently in the In the meantime, pumping restrictions continue. controversy. The San Francisco Bay and Sacramento and San Joaquin Rivers Delta, where the delta smelt is found, n Texas, what began in 2010 as an attempt to referred to as the Bay-Delta, is a 1,153-square-mile stop the licensing of a nuclear power plant re- area where the rivers flow into the bay. Large pumps sulted in a complaint against the state of a “take” are used to provide water from the area to central under the ESA through its water permitting ac- and southern California. Regulatory and court-im- tivities. A federal district court in Texas original- posed restrictions on water removal from the Bay- Ily concluded in The Aransas Project v. Shaw that the Delta to protect fish habitat had been questioned state’s lawful regulation of water diversions resulted by some as impacting water shortages; prior delta in a take, and ordered the Texas Commission on pumping had been questioned by others as a factor Environmental Quality “to seek an Incidental Take contributing to fish decline. Permit that will lead to development of a Habitat In 2005, the Natural Resources Defense Council Conservation Plan,” enjoining it from “approving sued the FWS after it issued a BiOp finding that or granting new water permits affecting the Guada- water projects were not having an adverse effect on lupe or San Antonio rivers until the state of Texas the recovery of the delta smelt. The federal district provides reasonable assurances to the Court that court found that the BiOp was arbitrary and capri- such permits will not take whooping cranes in vio- cious and ordered protections for the smelt while lation of the ESA.” The Fifth Circuit reversed the
28 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 district court, finding a lack of proximate cause and Estuary, and to secure funding for further studies. foreseeability as a matter of law. The parties intend to pursue both identification of The case involved the iconic whooping crane, additional water supplies to meet rapidly growing which winters in Texas around the Aransas National human needs in the watershed, and effective and Wildlife Refuge located on San Antonio Bay at the comprehensive stewardship of the lands and waters bottom of the Guadalupe and San Antonio River within the watershed and of San Antonio Bay. This basins and summers in Wood-Buffalo National Park kind of private-sector initiative to balance compet- in Canada. The crane was protected even before the ing needs of human and environmental use may enactment of the ESA, and listed as endangered un- point toward a way forward on the complex issues der the law when it was enacted. The ongoing recov- facing us in tackling water supply issues. ery of the Aransas population, the only wild flock in The agreement rests on a three-prong core of the world, is considered an ESA success. protecting existing water users through economic The plaintiff, a nonprofit group, filed a suit in mitigation; maintaining water prices that can im- 2010 alleging that 23 whooping cranes died at the prove the allocation of water among users over time refuge during the winter of 2008–09, during a se- by incorporating the ecological costs of removing vere drought, as a result of the state’s lawful regula- water from natural flows and estuaries so that prices tion of water diversions. The plaintiff claimed that reflect the full social costs of water; and declaring the diversions decreased inflows and resulted in a commitment to seek funding for further research higher salinity in the San Antonio Bay, allegedly re- on topics that reduce conflicts between economic ducing the abundance of wolfberries and blue crabs, and ecological uses, including sea level rise, delta which the plaintiff asserted are the two most impor- preservation and restoration, endangered species tant food sources for the cranes. habitat, and desalination. The uncontroverted testimony was that diver- The agreement is reflective of Congress’s lan- sions from the Guadalupe and San Antonio rivers guage in the Water Resources Development Act of during that time did not affect the salinity levels of 2000: “Until a new source of water supply of com- San Antonio Bay on average more than a tenth of a parable quantity and quality as that available on the percent. Experts for both sides agreed that wolfber- date of enactment of this act is available to replace ries and blue crabs living in a marsh environment the water to be lost as a result of implementation tolerate a wide range of salinity. of the plan, the secretary [of the interior] and the Under the Supreme Court decision in Babbitt nonfederal sponsor shall not eliminate or transfer v. Sweet Home Chapter of Communities for a Great existing legal sources of water.” Oregon, regulators cannot be held liable for a take unless their actions are the proximate cause of actual harm to the species. In 2014, the Fifth Circuit held he California, Florida-Georgia, and Texas that TCEQ officials did not take cranes in violation cases illustrate the limits of litigation in of the ESA during drought through its lawful water- addressing the complexity of water supply permitting activities. The appeals court rejected the in a world of increasingly scarce resources. district court’s finding of proximate cause and fore- The ESA’s Section 2(c)(2) provides that seeability. The Fifth Circuit stated that the district Tfederal agencies “shall cooperate with state and lo- court had failed to articulate “why the remote con- cal agencies to resolve water resource issues in con- nection between water licensing, decisions to with- cert with conservation of endangered species.” The draw river water by hundreds of users, whooping inherent tension between water supply for human crane habitat, and crane deaths in a year of extraor- use and for other species and the environment is dinary drought compels ESA liability.” only becoming more acute, and is spawning a new The Fifth Circuit’s determination for the defen- round of litigation on whether a NEPA analysis dants in the litigation was not the final word for considering impact on the human environment lead defendant-intervenor Guadalupe-Blanco River must be completed in designating critical habitat Authority and plaintiff The Aransas Project, how- for endangered species under the ESA. Then there ever. GBRA and TAP agreed in February to ad- are the demands of the CWA as well. Where water dress voluntarily the watershed management issues is concerned, the complexities of species demands they had been litigating regarding the Guadalupe — and legal conflicts — continue on into the fu- River System, including the San Antonio Bay and ture. TEF
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 29 Reprinted by permission from The Environmental Forum®, September/October 2016 CENTERPIECE
A Virtuous Circle
We live in a material world. The unsustainable consumption of natural resources translates into environmental degradation and increased business risk. Economic growth and raw materials need to be decoupled. Fortunately, there is a path forward
Mathy Stanislaus is the assistant administrator in the Office of Land and Emergency Management at the Environmental Protection Agency. He represents the United States on the transition to sustainable materials management in deliberations of the G7 Alliance on Resource Efficiency.
he term circular economy is becoming tainties and disruptions — rather than prosperity. commonplace as we seek to create eco- Against this backdrop, the G7 (Canada, France, nomic prosperity without compromising Germany, Italy, Japan, the United Kingdom, and human health and the environment. We the United States) has recognized this global chal- simultaneously are striving to find a bal- lenge and formed an Alliance on Resource Effi- Tance between society’s needs and the planet’s ca- ciency in response. The alliance publicly recognizes pacity to provide. All this is a complicated task, es- that improving resource efficiency and managing pecially when one considers the numerous distinct materials sustainably throughout their lifecycles but interlinking facets of our economy. Despite the are important elements of delivering environmen- difficulties, we need action now if we are to achieve tal and climate protection, employment, social sustainability in the future. benefits, and sustainable, green growth. Domestically and globally, there is a growing In the United States, the Environmental Pro- consensus that economic expansion and raw ma- tection Agency, states, and other stakeholders terials need to be decoupled. Data from Accenture have adopted sustainable materials management indicate that, during the 20th century, global raw to address the challenge of advancing sustain- material use rose at about twice the rate of popula- able use of materials within society. The premise tion growth, and that for every 1 percent increase is simple: use materials productively while mini- in GDP, raw material use has risen by 0.4 percent. mizing the amount of materials and all associ- Furthermore, much of the raw material used by in- ated environmental impacts. SMM uses lifecycle dustrial economies is returned to the environment analysis and systems thinking as a way to iden- as waste within one year. Although there has been tify adverse environmental and other effects — some attempt at decoupling economic growth and and then to reduce them. It takes into account natural resource use, it is insufficient to overcome the entire lifecycle of material resources flowing the even higher demands we face with a projected through the economy, from extraction or har- world population of more than 9 billion people by vest of materials and food (e.g., mining, forestry, 2050, not to mention the rapid industrialization in and agriculture), to production and transport of the world’s emerging economies. goods, provision of services, reuse of materials, Ironically, the unsustainable consumption of and, if necessary, disposal. natural resources and concomitant environmental SMM casts a far broader net than approaches degradation translates into increased business risks based on traditional end-of-life waste manage- — through higher material costs and supply uncer- ment and pollution management. SMM allows for
30 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 a more strategic use of resources and better out- thinking were directed at government stakehold- comes. Without considering the entire lifecycle, ers: promote efforts to manage materials and prod- negative effects can be shifted from one type of ucts on a lifecycle-basis; build capacity and inte- impact to another. Well-intentioned strategies can grate materials management approaches in existing actually increase negative environmental outcomes government programs; and, accelerate the broad, if the big picture is not completely framed. In us- ongoing public dialogue on lifecycle-based materi- ing SMM, such issues can be revealed, and the als management. In addition, the report contained potential trade-offs considered and perhaps even the first-of-its-kind lifecycle assessment of the U.S. overcome. It is important to note that SMM and economy. It identified 38 materials, products, and other approaches (such as resource efficiency, the services that represent potentially significant con- circular economy, and the Kobe 3Rs) are slightly tributions to adverse environmental issues and different, but all share a broad agreement that ma- showed where approaches like recirculating mate- terials can be better managed and used, and gener- rials back into the economy could be taken. ally kept in productive use longer. Lifecycle-based Governments, businesses, and other organiza- decisionmaking represents a radical change in how tions have numerous instruments to select from environmental, social, and economic impacts and to operationalize SMM throughout our supply needs are thought of at all levels, from the commu- chains. Just some of these options include: regula- nity to the entire global economy. tions, collaboration, standards development, eco- SMM also offers a new view on climate change. nomic incentives (e.g. taxes, subsidies), procure- When taking a lifecycle-based perspective, ma- ment programs, research, grants, goal setting, tools terials and land management account for more and measurement, education, technical assistance, than 40 percent of greenhouse gas emissions in and other voluntary efforts. Given the range of in- the United States. As the United States and other struments available, it is not always easy to know countries assess how they will fulfill their Intended which one is best, and the most effective is likely Nationally Determined Contributions (commit- to be situation specific. In the United States, EPA ments under the Paris Agreement made by coun- has found four of them — collaboration, standards tries that help limit global warming to under 2 development, goal setting, and regulation — to be degrees Celsius), systems-based approaches can effective ways to advance SMM. Particularly in the help identify greenhouse gas reduction opportu- context of electronics, food, and hazardous materi- nities while simultaneously addressing economic als, these instruments have already achieved tan- development and competitiveness associated with gible successes. the availability of material feedstocks. The World In 2001, EPA collaborated with stakeholders, Resources Institute identifies reductions from the including the electronics industry, and determined manufacturing sector as the third-largest near-term that the development of voluntary standards greenhouse gas abatement opportunity needed to would challenge companies to meet industry- achieve the United States’ commitments beyond leading sustainability measures. The effort resulted President Obama’s earlier, regulation-based Cli- in the Electronic Product Environmental Assess- mate Action Plan. It identifies resource efficiency ment Tool, which is now a global rating system and waste reduction as one of the primary levers that helps purchasers identify environmentally in the manufacturing sector needed to protect the preferable electronics products. EPEAT-registered planet from dangerous heating. products meet standards that cover their lifecycle, including criteria that encourage manufacturers to reduce or eliminate environmentally sensitive ma- rogress is being achieved. EPA is opera- terials, and to design their products for reuse. tionalizing SMM in a real way by using Over their lifetime, compared to products that a range of policy instruments and stake- do not meet EPEAT criteria, the more than 114 holder collaboration, but radical change million EPEAT-registered products that were pur- across the supply chain is needed to truly chased in 2013 will reduce the use of primary ma- Pobtain sustainable solutions to environmental im- terials by 4.5 million metric tons, which is equiva- pacts posed by materials. In the EPA’s 2009 report lent to the weight of 14 Empire State Buildings. In “Sustainable Materials Management: The Road addition, nearly 2.2 million metric tons of green- Ahead,” specific recommendations around lifecycle house gas emissions will be prevented, which is
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 31 Reprinted by permission from The Environmental Forum®, September/October 2016 equivalent to taking more than 1.5 million average high as $59 million per year. The underlying prin- American passenger cars off of the road for a year. ciple of the rule was recognition of the manufactur- This global rating system is already a tremendous ers’ economic incentive to maximize recirculation example of how the selection of the right instru- and reuse materials. This example demonstrates ment can affect not only domestic materials, but that regulations can be crafted to protect com- also reverberate throughout the worldwide flow of munities and at the same time leverage economic materials. advantages for sustainable recycling and recovered- Goal-setting and collaboration have been key materials manufacturing. components of advancing EPA’s work to decrease food loss and waste. The agency developed the Food Recovery Challenge, a voluntary partner- n an international level, the G7 Alli- ship that spurs businesses and organizations to ance on Resource Efficiency was estab- improve their sustainable food management prac- lished to share best practices on using tices and report their results on an annual basis. natural resources more efficiently. In- In 2014 alone, almost 800 Food Recovery Chal- creased efficiency will protect jobs and lenge participants prevented and diverted nearly Ocreate new ones, strengthen economies, and pro- 606,000 tons of wasted food from entering land- tect the environment. To date, the alliance’s activi- fills or incinerators; these results showcase the ties have focused on collaboration among the G7 power of simply challenging people to set goals. countries, the business sector, and international More recently, in alignment with Target 12.3 of organizations. Workshops and conferences in Asia, the United Nations’ Sustainable Development Europe, and North America have provided the Goals, EPA and the Department of Agriculture perfect setting for sharing, discussing, and forming have announced a national goal to reduce food new and unexpected partnerships. loss and waste by 50 percent by the year 2030. Corporations such as General Motors, Johnson The agencies are catalyzing change through a col- Controls, PepsiCo, Toyota, Tarkett, and Werner lective call to action across the food system and & Mertz have shared their success stories about are looking to public and private-sector leaders to establishing systems to maximize the reuse and implement robust actions to increase food recov- reengineering of materials in a way that advances ery and decrease waste. their bottom line. The G7 countries, the EU Com- Regulations are another opportunity for opera- mission, the World Economic Forum, the Orga- tionalizing SMM in society. EPA’s recently revised nization for Economic Cooperation and Develop- Definition of Solid Waste Rule incorporates circu- ment, the World Bank, the United Nations Envi- larity of materials into the structure of the Resource ronment Program, the United Nations Industrial Conservation and Recovery Act, which governs Development Organization, the International Re- hazardous waste management, including recycling. sources Panel, the World Trade Organization, the The revised regulation encourages safe and envi- International Labor Organization, and others have ronmentally responsible recycling by affirming that identified multilateral cooperation as a key compo- in-process recycling (returning industrial residues nent of fostering resource efficiency. All stakehold- to the manufacturing process in which they were ers hold the view that the alliance should prioritize originally generated) is legitimate recycling and by activities, work closely with private industry, and streamlining the applicable requirements. It also promote resource efficiency and SMM and its best contains a new, targeted regulatory exclusion for practices. Many note the importance of engaging certain higher-value hazardous spent solvents that countries beyond the G7 because of the global na- are remanufactured into commercial-grade prod- ture of material flow. ucts. For example, pharmaceutical manufacturers The most recent workshop, held in Washington, use at least 100 kilograms of solvents to make 1 D.C., last March, explored using lifecycle concepts kilogram of a particular active pharmaceutical in- in supply chain management to achieve resource gredient. After use, these solvents are only lightly efficiency. The automobile sector was used as a case contaminated and need minimal processing to be study because it is an important part of the indus- returned to a commercial-grade product. Benefits trial economy that also bridges the service econo- of the rule include energy and resource savings, as my. Auto supply chains are global and contribute well as a reduction of greenhouse gas emissions; significantly to global GDP, in part because of the estimated future cost savings for the industry are as tens of thousands of individual parts that make
32 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 up a vehicle; many recycled materials are used in curement officers, designers, engineers, and -ac the manufacturing process. The collective insights countants work together to enhance sustainabil- from the workshop transcended all sectors, not just ity within an organization? Should the policies of the auto industry. their organization be aligned with those of other There were a number of key areas that were organizations to achieve even greater sustainability identified as opportunities for closing the manu- gains, even greater competitiveness, or are differ- facturing and supply chain loops. For example, ences in policy inherently necessary? How do we being able to share information without triggering ensure that public and private-sector policymaking antitrust or proprietary issues is one way to move becomes holistic and systems oriented? SMM forward. Technology transfers and making The Organization for Economic Cooperation technology assistance and best practices available and Development has recently issued a report to small or medium-sized businesses that may not analyzing resource efficiency policies of the G7 have the resources to invest in SMM development countries. The OECD notes that all G7 countries could drive wider implementation. Similarly, en- have programs to support innovation in resource suring that data are available and transparent al- efficiency; however, more upstream parts of the lows for informed decisionmaking, and applica- value chain did not receive the same attention as tion of lifecycle analysis across the supply chain. end-of-life materials management. The OECD rec- Metrics and measures drive action by showing ommended that governments conduct sector-by- tangible progress. Even the concept of a product is sector analyses of policy misalignments to identify important. Who owns it — the company or the the most important drivers of resource inefficiency consumer? Is its end-of-use also its end-of-life or and ways to address them. The OECD also noted are there opportunities beyond recycling and the that while there is growing recognition of the eco- reuse of individual parts? nomic benefits of recirculating materials within the Secondary-materials markets represent another economy, a more focused effort is necessary at the opportunity to maximize materials at the product’s level of the individual business. In particular, work end-of-life. A secondary materials market can be is needed on aligning government policies and as- characterized as directly linking used or “wasted” sisting small and medium-size firms in the supply materials from one manufacturer into the feed- chain. stock of another. In the United States, non-haz- ardous waste management is administered at the state and local levels. Historically, these programs o achieve SMM we must continue to have been managed in a way that does not result in collaborate, innovate — and change. adverse public health or environmental effects. The We must embrace a more systems-based next generation of policy and program develop- and lifecycle-based approach to decision- ment should examine how state and local require- making by using the full range of policy ments can simultaneously maximize the amount Tinstruments at all levels of society. While EPA, of materials destined for reuse. This could include the G7, businesses, international organizations, aligning or reexamining state take-back laws, re- NGOs, and others are working collaboratively to orienting municipal and state waste management address the issue, radical change and disruption is programs toward materials reuse, financing and needed by all stakeholders and must occur if we lifecycle-costing of local programs, and rigorous are to achieve SMM. Much is at stake. We live in and transparent data collection. EPA will publish a a material world. How our society uses materials is findings report that describes the observations and fundamental to our economic and environmental opportunities identified during the U.S. work- future. Everyone — consumers, businesses, educa- shop, but it is already clear that there are many tors, governments, nonprofits — can make a dif- more steps that can be taken by all stakeholders to ference. What will you do? TEF improve SMM within the supply chain. A sustainable economy requires successful mod- The author wishes to thank the staff in the Of- els and the business activities based on them that fice of Resource Conservation and Recovery for their achieve fundamental reductions in energy, materi- contributions to this article: Kathleen Salyer, Cheryl als, and water throughput in its delivery of neces- Coleman, Priscilla Halloran, Elizabeth Resek, Kim- sary goods and services. We need to ask ourselves berly Cochran, Nathan Wittstruck, Kelly McAllister, a number of challenging questions: how can pro- Meghan Radtke.
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 33 Reprinted by permission from The Environmental Forum®, September/October 2016 COVER STORY
ast year’s Paris Agreement of the parties to the 1992 U.N. Framework Convention on Climate Change is an extraordinary achieve- ment. That the conference organizers could get over 190 countries — which had been Lquarrelling with each other through 20 prior Con- ferences of the Parties — to unanimously support an agreement of substance on a subject as complex, Making the Paris huge, costly, and politically difficult as tackling cli- mate change is nothing less than a miracle. The challenge now is implementation, and more. Agreement Work In the run-up to the Paris conference, countries submitted Intended Nationally Determined Con- tribution pledges to take specific actions to reduce The challenge now is implementation. greenhouse gas emissions. The Paris Agreement is based on those INDCs. They “present a real in- Creating a race to the top — an approach crease in the ambition level compared to a projec- that could incentivize greater tion of current policies,” the U.N. Environment Program said in its “2015 Emissions Gap Report.” ambition — will require all elements of As the report adds, however, the INDCs represent civil society, including environmental only about half of the reduction required by 2030 if the world is to have a likely chance of keeping professionals, to reach the accord’s the global temperature increase below 2 degrees ambitious but eminently realizable goals Celsius. A temperature increase above that level is widely recognized as dangerous, even disastrous — and the temperature increase thus far is already about half the way there. In recognition of this gap, the Paris Agreement includes processes to ratchet up the level of national ambition. It also invites and encourages widespread John C. Dernbach is participation by every segment of civil society — distinguished professor, Widener including business, nongovernmental organiza- University Commonwealth Law tions, agriculture, universities, as well as state, city, School, in Harrisburg, Pennsylvania, and other local governments. Lawyers and other and director of its Environmental Law environmental professionals, including econo- and Sustainability Center. mists, engineers, scientists, regulators, consultants, and risk assessors, have an essential role to play. In fact, an “all hands on deck” approach is necessary . to make the agreement work. This is particularly Donald A. Brown is scholar in true because the unfolding science in the months residence for sustainability, ethics, since the agreement was signed indicates that cli- and law at Widener Law School. mate change is more serious and urgent than we may have imagined. This article will briefly outline the key elements of the Paris Agreement as well as the daunting chal- lenge of meeting its goals. It will suggest the broad elements of an approach that could encourage or in- centivize parties to greater ambition, creating a race to the top. It will also describe ways that all elements of civil society, including lawyers and policymakers, can help make the agreement work. The following six elements are necessary, but not exhaustive:
34 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 Achieve the targets set in INDCs Paris, the Obama administration has taken addition- al steps that are consistent with the overall goal of the An obvious first step is for nations to actually accom- agreement, such as a moratorium on new coal leases plish what they promised to do already. This is not on federal lands as part of a comprehensive review of nearly enough, but it is also utterly necessary. Because that program. Still, the United States must double its the agreement is based to some degree on reciprocity, pace in reducing carbon intensity to reach the 2025 nations that implement their INDCs will encourage goal, according to Energy Secretary Ernest Moniz. others to do likewise. The inability or unwillingness All of this, of course, is generating enormous push of key countries to achieve the goals in their INDCs back. One of the key actions in the U.S. INDC, the could undermine efforts in others. And higher levels Clean Power Plan, would reduce GHGs from elec- tric-generating facilities by 32 percent from 2005 levels by 2030. Before the U.S. Court of Appeals for the District of Columbia Circuit had even heard oral argument on le- gal challenges to the CPP, the Supreme Court in February stayed its implementation un- til all challenges are resolved. Even if EPA ultimately pre- vails, the stay indicates the need for more serious con- sideration of alternative ap- proaches. Some of the nation’s leading legal scholars pub- lished a paper in early 2016 arguing that the agency should use Section 115 of the Clean Air Act to regulate greenhouse gases through that law’s State of ambition cannot be achieved if countries cannot Implementation Plan process. Whatever happens to or will not meet their INDC commitments. the CPP, the United States and other countries must The short-term objective of the U.S. INDC is — at a minimum — meet their INDC commit- “to achieve an economy-wide target” of reducing its ments. GHG emissions by 26 to 28 percent below its 2005 level in 2025. This objective translates roughly to 14 Set and achieve more ambitious short- to 16 percent below 1990 levels, which is short of the and long-term national goals 25 to 40 percent reduction from 1990 levels that the Intergovernmental Panel on Climate Change said in The Paris Agreement contains ambitious internation- 2007 was needed for developed countries. Still, the al goals. It aims to “hold the increase” in the global United States explained that this objective “is consis- average temperature to well below 2 degrees above tent with a straight line emission reduction pathway pre-industrial levels and “to pursue efforts to limit” from 2020 to deep, economy-wide emission reduc- the temperature increase to 1.5 degrees, “recogniz- tions of 80 percent or more by 2050.” ing that this would significantly reduce the risks and The United States also explained that the short- impacts of climate change.” The parties also aim to term objective is based on actions that had already achieve “rapid reductions” in GHG emissions “so been taken, or were about to be finalized, including as to achieve” net zero GHG emissions (“a balance strengthened efficiency standards for motor vehicles, between anthropogenic emissions by sources and re- household appliances, and industrial equipment; movals by sinks”) between 2051 and 2100. methane emission standards for landfills as well as oil An enormous challenge for the world after Paris is and gas facilities; and EPA’s Clean Power Plan. Since the magnitude and urgency of limiting global green-
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 35 Reprinted by permission from The Environmental Forum®, September/October 2016 house emissions to levels that will limit warming The U.S. INDC is “consistent with,” but does not to non-dangerous levels. The Paris Agreement itself directly commit to, “deep, economy-wide emission reflects a shift in understanding what a non-danger- reductions of 80 percent or more by 2050.” But a ous level means — from the 2 degree temperature more ambitious long-term goal is almost certainly increase that had previously been employed to “well needed. The cimate convention states that developed below” 2 degrees and a strong suggestion that 1.5 de- countries should take a leadership position because grees would be better. The “2015 Emissions Gap Re- of their superior resources and technology, and also port” concluded that limiting warming to 1.5 degrees because of their greater historic contribution to the with greater than a 50 percent probability of success increase in atmospheric GHG concentrations. The requires first that total carbon dioxide emissions must new Nationally Determined Contribution, or NDC, be net zero between 2045 and 2050, and second that as the post-Paris pledges are called, which countries all GHG emissions (not only carbon dioxide but also are to submit by 2020, should thus be based on eq- methane, nitrous oxide, and fluorinated compounds) uity as well as well as their “common but differentiat- must be net zero between 2060 and 2080. Although ed responsibilities and respective capabilities” — the these goals require staggering GHG emission reduc- term used by the climate convention to express both tions for the entire world, developed countries need the duty of all nations to address climate change and to be even more ambitious to satisfy their obligation their unequal abilities to do so. to reduce their GHG emission on the basis of eq- For the Paris Agreement’s periodic stock-takes uity and common but differentiated responsibilities, and transparency provisions to work effectively, each based on commitments they made in the framework nation will need to submit sufficient information convention in 1992. in support of its new NDC so that governments, Climate change is also occurring with growing businesses, and nongovernmental organizations can speed and intensity. The year 2015 was easily the evaluate the actual factors it considered in formulat- warmest year on record, and 2016 is on track to be ing it. The Paris Agreement, in fact, requires NDCs warmer still. Recent data from the National Oceanic to contain “information necessary for clarity, trans- and Atmospheric Administration indicate that sea parency and understanding.” These factors include levels could rise as much as nine feet by 2050–60, the actual temperature limit the NDC is designed to which is higher and sooner than previously thought. achieve in cooperation with others; the amount of The Paris Agreement processes for ratcheting up carbon that can still be emitted without exceeding the level of ambition provide a way to address these that temperature limit; what fraction of the carbon challenges. Beginning in 2020, and every five years budget it allocated to itself; and the equity factors the afterwards, each country is to “prepare, communi- nation considered when it allocated that portion of cate and maintain successive nationally determined the global carbon budget to itself. When nations sub- contributions that it intends to achieve.” These, mitted their INDCs before Paris, by contrast, many of course, are in addition to its pre-Paris pledge or claimed that their commitments were ambitious and INDC. The new pledges are to “represent a progres- fair without any explanation of these points. sion” beyond a country’s current pledge, and are to In its most recent assessment, the Intergovernmen- “reflect its highest possible ambition.” The agreement tal Panel on Climate Change explained four equity also includes provisions for standardized accounting principles that “are important in establishing expecta- for each nation’s reductions that will enable measure- tions of what may be reasonably required of different ment of its overall achievement. Beginning in 2023, actors.” It said that these are understood well enough and every five years afterwards, the Conference of the to “put bounds on the plausible interpretations of Parties is also to “take stock” of “collective progress” ‘equity’ in the burden sharing context.” The first in achieving the purpose of the agreement to assess of these equity principles is responsibility, which is whether enhanced “international cooperation for cli- usually understood to be historical responsibility for mate action” is needed. current elevated greenhouse gas concentrations. The In setting their INDCs leading up to Paris, coun- second is capacity, or the economic ability of a nation tries described what actions they intended to take to to reduce its emissions. The next is equality, or the get to a certain level of emissions reductions by 2025 equal right of each citizen to use the atmosphere as a or 2030. Because those reductions are not nearly sink for his or her greenhouse gases. The fourth and enough, nations must establish and meet more am- final equitable principle is the right of poor countries bitious short-term goals. The long-term objective, to pursue economically sustainable development. moreover, needs to be even deeper cuts by 2045, Although reasonable people can disagree about 2050, and afterwards. what each of these principles means in any particu- But what should a nation’s long-term goal be? Continued on page 38
36 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 SidebarSidebar
Nations Depend on Business and Local Action
he final night of the Paris Implementation also hinges, fuller success hinges on more ef- climate change negotiations, however, on a “high ambition co- fective inclusion of different types TI was proud to watch the U.S. alition” that goes far beyond the of suburban cities, the urban emis- delegation walk in to a standing nation-states that joined that group. sions reductions fostered by these ovation as a member of the “high Many networks of subnational gov- networks will help national govern- ambition coalition.” Not only had ernments and businesses have been ments meet ambitious targets. the nations of the world managed collaborating for years to increase Networks are similarly working to create the strongest compromise global ambition on climate change, to reduce corporate emissions and that was politically possible, but my and making their own pledges support the energy economy’s tran- country’s representatives — despite during conferences of the parties. sition. In the lead up to the Paris the complex dynamics at home — Their efforts will be critical to nation- negotiations, over five hundred or- were supportive participants in mak- states’ ability to meet the targets in ganizations committed to eliminate ing that happen. the NDCs. fossil fuel investments as part of The Paris Agreement represents These international, national, and Divest for Paris, and more than 150 a major achievement for multilater- subnational networks have played companies joined the American alism and a step forward on climate key roles in ramping up needed ac- Business Act on Climate Pledge. On change. The high ambition coalition, tivity and demonstrating how action April 20, 2016, two days before 174 led by the Marshall Islands, helped can create economic win-wins. A few countries plus the European Union to bridge traditional negotiating examples of international networks signed the Paris Agreement, 110 blocks. The agreement’s voluntary that organized local government companies — including IKEA, PG&E, approach builds on lessons learned focused on local action illustrate General Mills, and Starbucks and from the Kyoto Protocol and Copen- this phenomenon. The International organized by a coalition that includ- hagen negotiations. Council for Local Environ- ed Ceres and the World The agreement’s goals are more mental Initiatives and a Wildlife Fund — released ambitious than its target of keeping group known as United a statement supporting warming below 2 degrees. It has Cities and Local Govern- the Clean Power Plan mechanisms for ramping up ambi- ments launched the Local and investment in a low- tion, an article on loss and damage, Government Climate Road carbon economy. and provisions aimed at advancing Map at the 2007 Bali ne- These networks are adaptation, financing, and technol- gotiations. This effort has no panacea. Like nation- ogy transfer. included both advocacy for Hari Osofsky states, subnational gov- Although current commitments subnational participation ernments and business- under nation-state pledges (called in the international agreements and es may not always follow through NDCs) are not yet nearly enough organized action by those smaller- with their pledges; measurement to meet the agreement’s goals, scale governments. and enforcement are complex; and which are themselves not ambitious The C40’s 83 mega-cities, which investment in fossil fuels remains enough to protect the most vulner- represent 600 million people and high. But despite these limitations, able, they represent an important 25 percent of global GDP, have their high ambition moving forward, start. The key question, of course, taken 10,000 actions to address like that of the nation-states, is cru- is how to get from that start to climate change; its new Technical cial to implementation of the Paris meeting those goals. Implementing Assistance Program helps cities Agreement and to broader progress current NDCs will be politically com- develop measurement, targets, and on climate change. plex, and those commitments still planning. The Compact of Mayors, need to be ramped up further. A key established at the 2014 UN Climate Hari Osofsky is the Robins Kaplan professor piece of the U.S. NDC, for example, Summit, involves a broader group of of law and faculty director of the Energy is the controversial Clean Power 510 cities in pledges, tracking, and Transition Lab at the University of Minne- Plan. Whether or not this particular action. Its May 2016 report argues sota. She chaired the American Society of regulation is ultimately upheld, U.S. for augmenting local powers, financ- International Law’s observer delegation at implementation depends on a con- ing opportunities, and national gov- the 2015 Paris climate change negotiations tinued energy-sector transition and ernmental support. and co-authored Climate Change Litigation: an interweaving of energy and envi- While I have argued elsewhere Regulatory Pathways to Cleaner Energy? ronmental law. that these local climate networks’ (Cambridge; 2015) with Jacqueline Peel.
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 37 Reprinted by permission from The Environmental Forum®, September/October 2016 lar context, not all claims made by nations about the bia Law School, and one of us [John Dernbach] have fairness of their GHG emissions targets are entitled begun work on an edited volume that would identify to respect. As economist Amartya Sen has explained, and analyze a wide variety of legal pathways to de- people will often agree on specific instances of injus- carbonization in the United States. Similar efforts in tice without fully agreeing on what perfect justice re- other countries would likely be very helpful. quires. By simply disclosing their views of what fair- ness and equity require, and thus enabling frank and Create a race to the top in reducing constructive discussion, nations can make it more GHG emissions likely that the Paris Agreement will be effective. Yet this is only likely to happen if civil society — govern- This is only likely to happen if governments as well as ments and NGOs, business, media, the public, and businesses, NGOs, and the public accelerate the tran- others — insist on, create, and foster a public dia- sition from conventional development to sustainable logue within and among countries on the actual basis development, particularly in the energy sector. Sus- for each country’s NDC. tainable development — based on energy efficiency and conservation as well as renewable energy — pro- Create technical, policy, and legal duces more economic, security, social, and environ- pathways for decarbonization mental benefits, and has lower costs, than conven- tional fossil fuel development. Reductions in GHG The zero emissions effort is essentially unprecedent- emissions also produce other benefits — co-benefits ed, and it is difficult to point to prior experience for — that are experienced locally, including economic detailed guidance. Fortunately, the Deep Decarbon- development, job creation, reduced energy costs, and ization Pathways Project, which is organized by the improved public health. Designing legal measures Sustainable Development Solutions Network and that maximize these co-benefits is a key element in the Institute for Sustainable Development and Inter- getting these measures adopted, successfully imple- national Relations, has outlined technical and policy mented, and keeping them. approaches to decarbonization for 15 countries, in- This is essential in developing countries. More than cluding the United States. The project was undertak- 85 percent of the global increase in energy consump- en “to understand and show how individual coun- tion between now and 2040 is projected to come from tries can transition to a low-carbon economy” based developing countries, and China and India alone are on the limit of 2 degrees. For the United States, a key expected to account for half of that. China’s support for finding is that reducing GHG emissions by 80 per- reductions in GHG emissions is based in no small part cent from 1990 levels by 2050 is technically feasible on rising concern by its citizens over the public health and would cost only 1 percent of U.S. GDP. Doing effects of burning coal for electricity. so, it said, would require almost complete decarbon- Developing countries are much more likely to ization of electricity by 2050, deploying roughly 300 move in this direction, however, if developed coun- million alternative fuel vehicles (electricity or hydro- tries lead the way. Germany (world’s fourth-largest gen) by 2050, and doubling electrical generation economy) and California (seventh-largest), which are through a vast increase in either renewable energy or already working toward the goal adopted in Paris, il- carbon capture and sequestration. lustrate the role of sustainable development in this This scenario makes it easier to understand what leadership effort. California aims to reduce GHG decarbonization would mean for the United States emissions by 80 percent from 1990 levels by 2050. But it does not describe the particular laws or types of Its Global Warming Solutions Act of 2006 establishes laws that would be needed to get to those outcomes. a cap-and-trade program as part of a comprehensive Decarbonization is highly unlikely to happen at the approach to address GHG emissions, and it has in national level unless it is translated into a supportive place a longstanding set of electricity efficiency laws. legal structure. What legal framework, for example, Germany’s goal is to reduce GHG emissions by 80 to would be needed to get from 54.5 miles per gallon 95 percent from 1990 levels by 2050. It participates for new vehicles in the United States in 2025 (the in the EU Emissions Trading System, launched in current fuel economy standard) to 300 million alter- 2005, which covers about 45 percent of the country’s native fuel vehicles by 2050? Legal scenarios about GHG emissions. Since adoption of its Renewable different laws or combinations of laws would make Energy Sources Act in 2000, almost 30 percent of it possible for decisionmakers and the public to vi- the country’s electricity now comes from renewable sualize what the choices are, and therefore easier to sources. Both claim significant job creation, eco- make better choices. Michael Gerrard, who directs nomic development, and environmental and other the Sabin Center for Climate Change Law at Colum- benefits from their decarbonization efforts. The old
38 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 frame — that people must forfeit their wellbeing to movement for a decarbonized and sustainable soci- address climate change — is being refuted not simply ety. They provide a common purpose and organizing with arguments but with evidence. framework around which many actions from differ- ent sectors can be conducted. They should encour- Widespread public participation and age or prod governments to be more ambitious over support time, without being prescriptive about what they should do. They will provide information to govern- The German government held dialogue forums in ments and others about what other governments are 2014 and 2015 on decarbonization of its economy actually doing, as well information about the effec- with its states, local authority associations, and so- tiveness and impacts of particular laws and policies. cial stakeholders, and involved them “early on in the This information will be public, which means that search for suggestions for measures in all sectors.” At governments are more likely to honestly and openly a side event on the German decarbonization strategy share what they are doing. at the Paris climate conference, representatives of the Already, the Paris Agreement has inspired a variety German government, industry, and civil society orga- of pledges and actions by entities that are not nation- nizations unanimously spoke on behalf of that strat- al governments to supplement national pledges; cre- egy and what they were doing to assist in the effort. ate and expand international partnerships to reduce In the United States, by contrast, the national Re- greenhouse gas emissions (ranging from the Compact publican Party leadership appears virtually united in of Mayors to the global industry Cement Sustain- its opposition to serious action on climate change (at ability Initiative); create new legal and policy tools; least in public). There will be nine presidential elec- develop and deploy new, less expensive, and more ef- tions between now and 2050, including the 2016 fective technologies; redirect investment from fossil election. The United States cannot hope to achieve fuels toward alternative energy; and in many other a significant long-term emissions reduction goal if ways accelerate the transition to a sustainable fu- there is going to be a national debate every four years ture. The Non-State Actor Zone for Climate Action, about whether human-caused climate change is even which is organized under the auspices of the annual real. A way must be found to fully and constructively U.N. climate change conferences, reports that there engage Republican Party leaders in a way that also are public pledges to reduce greenhouse emissions by seriously addresses climate change. 2,253 cities, 2,078 corporations, 433 investors, 150 One such approach is to use a carbon tax as a regional governments, and 235 civil society organi- substitute for the Clean Power Plan. Jerry Taylor, zations. Citizens, businesses, and NGOs should also who heads the Niskanen Center, a libertarian think prod their governments to adopt and implement sig- tank, is an advocate for this approach. After decades nificant carbon reduction programs. of fighting climate science on behalf of the Cato Lawyers and other environmental professionals Institute, he became convinced that human-caused have a crucial role to play. The Paris Agreement has climate change presents substantial risks to human major implications for a wide variety of clients. En- well-being and property. He also sees that, for a vari- vironmental professionals are needed to advise clients ety of reasons, EPA regulation of greenhouse gases is on what the agreement means and both the risks and here to stay. As a libertarian, he believes a carbon tax opportunities it presents. The Paris Agreement almost — with the proceeds remitted to taxpayers and not certainly requires changes in law at all levels of gov- used to balance the budget — would be better than ernment as well as changes in private governance (in- government regulation. Other ways to address this is- cluding private standards and certification systems, sue — via existing Republican leadership or at the private investor initiatives, corporate sustainability ballot box — are suggested by Gallup polling data in goals, and supply chain contracting requirements). March. A record number (65 percent) of “Americans Lawyers are needed to draft and, along with other now say increases in the Earth’s temperature over the environmental professionals, help implement those last century are primarily attributable to human ac- laws. Because the climate is changing, lawyers need to tivities rather than natural causes,” and a significantly advise clients on a wide range of adaptation activities. increased but lower number of Republicans (40 per- The ethical imperative underlying the climate change cent) feel the same way. issue also suggests the value of considering changes in the lawyer’s codes of professional responsibility. Envi- A global social movement ronmental lawyers and other professionals helped pi- oneer an earlier environmental movement; they must The goals and processes established by the Paris help lead a new movement to successfully implement Agreement both require and encourage a global the Paris Agreement. TEF
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 39 Reprinted by permission from The Environmental Forum®, September/October 2016 PROFILE
teve Ellis acts as a shepherd to the Bureau of Land Management’s far- flung flock. The agency’s deputy director and highest career official keeps BLM’s 10,000 scattered em- ployees in sync with its policymak- ing headquarters. He picks BLM’s state-level directors and recruits career leaders to Sthe Department of the Interior base in Washing- ton, D.C. Ellis also monitors employee morale through in- The Man cidents such as the 40-day occupation of the Mal- heur National Wildlife Refuge in Oregon, where Who’s Got some BLM employees became collateral targets in an intensified debate over federal land ownership. In late January, as the Oregon occupation was in BLM’s Back full swing, Ellis made a quiet stop in Burns, Or- egon, to show appreciation for BLM’s district em- ployees, who had been forced to work from home Steve Ellis operates at the interface of for weeks as militia descended on the town. “These are my BLM children,” Ellis, whose federal career the political and the career workforce has spanned roughly three dozen years, says dur- in this Department of the Interior ing a December hike at BLM’s Red Rock Canyon National Conservation Area. “You can’t forget that agency tasked with managing the in this senior career position.” nation’s public lands, a fiery pivot He’s a subtle but influential player as BLM con- tinues a major culture shift, one that tries to place point in the conservation conversation resource conservation on par with extraction. While BLM policy is largely dictated from inside the Belt- way, political appointees including Interior Secre- tary Sally Jewell and Assistant Secretary for Land and Minerals Management Janice Schneider see El- Phil Taylor is a reporter for E&E’s lis as a key adviser on what will and won’t work in Greenwire and E&E Daily, focusing the field. A good deputy director will ensure those on the Interior Department and policies are consistently deployed. “You’re walking Forest Service and stories about the career-political interface,” says Henri Bisson, energy development on public lands, who served in Ellis’s position during the George wildlife and endangered species W. Bush administration. “You have to guide senior policy, recreation, and conservation. managers below you and be a cheerleader, moving chess pieces around, but you also have to guide the people above you to make good decisions.” The deputy director post is BLM’s most impor- tant position, according to former BLM Director Bob Abbey. Policies change with a new president, but the BLM workforce will stay largely the same. “Steve is serving at a critical time,” Abbey says. “Given the BLM’s aging workforce and the need to replace experienced personnel, he is in the position to bring into the organization fresh, intelligent, and gifted leadership and use the strategic hiring of Reprinted from Greenwire, the leader in energy and environmental news, with permission from E&E Publishing, www.eenews.net. personnel as an opportunity to make positive state- Copyright 2016, Environment & Energy Publishing, LLC. ments both to employees and the public.”
40 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 Steve Ellis goes rock climbing.
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 41 Reprinted by permission from The Environmental Forum®, September/October 2016 Ellis, 62, who was raised on a farm in Illinois, llis’s federal career began on a fire crew has been in his post two years. He recently began in Illinois’s Shawnee National Forest, treatment for prostate cancer and should be return- where he earned money for his forestry ing from leave before press time. degree at Southern Illinois University. It’s the relationships he’s built that helped him He married his high school sweetheart, climb the BLM career ladder, Ellis says. He started Linda, while the two were in college as a BLM forester in Burley, Idaho, in 1979 and 41 years ago, and they took a “poor rose through BLM and Forest Service ranks in couple’s honeymoon” backpacking and hitchhiking Washington, D.C., Nevada, Oregon, Alaska, and Ein Colorado’s San Juan Mountains. Idaho. “I tell people when they get in these senior After earning a master’s degree in geography executive career jobs, don’t forget where you came from the University of Northern Illinois, Ellis head- from,” Ellis says. “If I look back on my 36-year ca- ed West for his first job with BLM, an agency few reer, what comes to my mind is not the projects or had heard of in his home state. In Idaho, Ellis served the big fires I was on. It’s the people.” as BLM forester in Burley, soil scientist in Boise, During the December hike, Ellis pauses on a and field manager in Shoshone. He and Linda had bench on the Lost Creek trail in Red Rock Can- all three of their kids in the state: Cam, Jessica, and yon, speaking over the faint sound of humming- Mandi. birds and a trickling stream. He’d come to the In 1992, Ellis was hired to a budget position in canyon from the Western Governors’ Association BLM’s headquarters, where he spent four years. He winter meeting to meet with Red Rock staff and also served a short stint as legislative fellow for for- enjoy the park’s stark scenery, cholla mer Senator Ben Nighthorse Campbell (R-CO). cactuses, desert almond shrubs, and He says he worked there alongside Rhea Suh and Joshua trees. His next stop was a tour Ken Lane, who would later go on to serve in top With a wag’s tale, of Basin and Range National Monu- Interior posts in the Obama administration. Ellis describes ment, a 700,000-acre expanse of broad Then it was back West. After a short stop in himself as “a sagebrush valleys and juniper-speckled BLM’s Las Vegas office, Ellis spent more than a de- mountains that had recently been add- cade working in Oregon as BLM’s district manager multiple-use ed to BLM’s expanding National Con- in Lakeview and as supervisor for Oregon’s Fremont- and sustained- servation Lands. Winema and Wallowa-Whitman national forests. It yield guy with a Ellis wears a blue BLM ballcap, was in Wallowa County, Ellis says, that he honed conservation bent” Vasque hiking boots, and a North the art of collaboration in public land management. Face jacket over a Craters of the Moon “That’s where the light came on for me.” National Monument and Preserve In small, rural communities like Lakeview and fleece. If he is supposed to have the Baker City, a lot of public lands diplomacy took Saturday off, his D.C. bosses didn’t get the memo. place in the bleachers of high school sporting events By the end of the two-hour hike, he will have re- or at the local Rotary Club or grocery store, Ellis ceived about 30 emails and two text messages. Ellis says. He believes his outreach helped keep the agen- answers to five superiors: Jewell, Deputy Secretary cy out of the courtroom. “In the past, we’d come Mike Connor, budget chief Kris Sarri, Schneider, up with a proposal and the public would react to it and BLM Director Neil Kornze. through the [National Environmental Policy Act] In D.C., Ellis also works long hours. He wakes process,” he says. “Now, the public, they don’t just at 4:30 a.m., then leaves his Arlington apartment want to react to the proposal, they want to help you to swim laps before arriving at his office at around develop the proposal.” 7:15. He heads home around 7:15 p.m. but spends That outreach also extends to BLM’s critics. In a couple of hours each night returning calls from February, Ellis met with commissioners in Kane his state directors in the West. It’s a poorly kept se- County, Utah, historically a hotbed of anti-BLM cret at BLM that Ellis spends his Sunday mornings sentiment, to discuss collaborative solutions to at Arlington’s Northside Social cafe, where, begin- BLM’s management of the Grand Staircase–Es- ning at 7 a.m., he doles out “free career counseling” calante National Monument. “If you’re going to over coffee with employees, coaching them through put a collaborative group together, it’s important family moves and the BLM “career jungle gym.” He you have all the parties represented,” Ellis says. “I devotes one day a week to getting outdoors near the encouraged [the commissioners] and I encouraged Beltway — Shenandoah National Park’s Old Rag, the BLM leadership to focus forward.” the Dolly Sods Wilderness, and Seneca Rocks are That open-door policy has earned Ellis praise. “I some of his preferred hikes. don’t think he had a door on his office,” says Craig
42 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 Gehrke, regional director for the Wilderness Society in Boise, who worked closely with Ellis during his tenures with BLM and the Forest Service.
hile in Wallowa, the Ellis family suffered a personal tragedy when daughter Jes- sica, a former wildland fire- fighter who was serving her second tour as an Army med- ic in Iraq, was killed on May 11, 2008, by a roadside bomb at the age of 24. Ellis Wstill wears her dog tag and makes regular visits to her grave in section 60 of Arlington National Cemetery. In 2010, Abbey and BLM’s then Deputy Direc- E&E’s tor Mike Pool hired Ellis back to BLM to serve as POWER PLAN state director in Idaho, a post that oversees nearly HUB 12 million acres in the Gem State. Ellis led contro- versial decisions to protect sage grouse, site a mas- sive transmission line, and renew scores of grazing permits that environmentalists had challenged in court. In his current role, Ellis is tasked with integrating new policies into BLM’s diverse portfolio of energy development, grazing, logging, conservation, and recreation. A key challenge will be, again, BLM’s sage grouse plans, which span tens of millions of acres in 10 states. If the plans stall at the field level, BLM runs the risk of having the bird listed under the Endangered Species Act. “This isn’t going to be implemented in my office or Neil’s office,” or the of- fices of Jewell aides Sarah Greenberger or Jim Lyons, Ellis says. “This is going to be implemented on the ground out “Look at the here, in Pahrump or Ely or Elko or To- bureau now nopah.” compared to when Ellis says he has no plans other than to “go home” after his tenure as deputy I started. We director ends. In Oregon, which Ellis manage successfully calls home, he has five grandchildren these treasured and an adopted wild horse named Say- landscapes” lor that came from BLM’s Saylor Creek herd in Idaho. He’s also a licensed pi- lot. Ellis describes himself as “a multi- ple-use and sustained-yield guy with a conservation bent.” He says he’s proud of how BLM has evolved. “Look at the bureau now compared to when I started,” he says. “We have national monuments, we have national conservation areas, we manage wilderness. We manage successfully these treasured landscapes. Early in my career, we weren’t known for that. We’re proud of that. It’s part of the evolu- tion of the bureau.” TEF
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Is OSHA a Failed Agency — Or an Unheralded Success?
panoply of federal regulatory agencies help protect And although OSHA standards have virtually elimi- Americans from hazards when they are breathing nated some occupational diseases (such as “brown Aair and drinking water, when they are traveling on lung” disease in the textile industry, and accidental the highways and airways, and when they are using con- transmission of HIV and hepatitis in healthcare work- sumer products and financial instruments. But only one ers), the agency has clearly not controlled toxic sub- agency — the Occupational Safety and Health Admin- stances that cause chronic disease as broadly as EPA istration— protects us for the half of our waking hours has. There has been no survey of concentrations of when we are on the job. toxic substances in U.S. workplaces since 1983, and OSHA was founded in the same year, 1970, as the OSHA has set exposure limits for only 18 hazardous Environmental Protection Agency, and the two can point substances in its 46 years of existence — and just to some similar examples of good news. Just as con- two in the past 19 years. For comparison, there are centrations of many major air pollutants have fallen by roughly 70,000 chemicals in commerce, and the Ger- 90 percent or more during EPA’s lifetime, fatal occupa- man equivalent of OSHA has set limits for more than tional injuries have fallen by 60 percent since OSHA 1,000 substances. came on the scene. This Debate tackles the fundamental question of And probably to an even greater extent than its much whether OSHA is succeeding in its original mission “to larger sister agency, OSHA has engaged productively assure so far as possible every working man and wom- “on the ground” with hundreds of thousands of employ- an in the nation safe and healthful working conditions.” ers, providing invaluable (and free) advice on how to What are the agency’s most praiseworthy success sto- improve workplace conditions. ries? And if OSHA‘s achievements have been limited, However, attributing the happy statistics to specific who bears responsibility: a stingy Congress, an ane- action by OSHA is controversial. Some critics point to mic statute, recalcitrant employers, an apathetic public, the extremely low monetary penalties Congress has al- unreasonable labor unions, or the staff and political lowed the agency to levy as evidence that safer condi- leadership of the agency itself? What statutory, budget- tions are not being impelled, but are a natural result ary, organizational, structural, or philosophical changes of nationwide de-industrialization. Indeed, the current could improve the agency’s record? number of manufacturing jobs is only 65 percent of the The Forum invited OSHA Administrator David Mi- number in 1970. chaels to be part of our Debate, but he declined.
44 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 “Employers have “There is no question that dramatically reduced Congress and the courts injury incident rates intended for OSHA to simply because OSHA, be far more effective and with all its excesses, is on more the master of its their radar screen.” own fate.”
Baruch A. Fellner Adam M. Finkel Head, OSHA Pracice Executive Director, Penn Program on Gibson Dunn & Crutcher, LLP Regulation Univ. of Pennsylvania Law School
“We don’t have a good “Congress should revise basis for assessing the the OSH Act to make it total benefits and costs stronger and to provide of the OSHA program adequate resources to relative to the absence of protect workers from on the program.” the job hazards.”
John Mendeloff Randy Rabinowitz Professor of Public Affairs Director University of Pittsburgh Occupational Safety & Health Law Project
“When there has been “OSHA has contributed strong leadership and to a significant decrease commitment and OSHA in worker injuries over has focused its efforts, time, but the agency the agency has made a could be even more real difference.” effective.”
Peg Seminario W. Kip Viscusi Safety and Health Director Distinguished Professor of Law, AFL-CIO Economics, and Managment Vanderbilt University
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Rather, if effective worker protec- ergonomics regulation at the end of It Is a Success. tion was to be ensured, the employ- the Clinton administration. OSHA’s So Why Do ers that could anticipate and abate ergonomics regulation was so objec- the workplace hazard should receive tionable that it remains the first and We Still Need It? OSHA citations regardless of wheth- only regulation erased by Congress er their employees were immediately under the Congressional Review Baruch A. Fellner exposed. These theories were tested Act. in court, but were not the subject, as Obama’s misplaced priority is a t was the summer of 1972, when they are today, of political challenge regulation which would put hun- an excited young pup arrived or vitriol. dreds of thousands of employers’ at the Department of Labor to The second example illustrates injuries and illnesses, unvarnished Iassume the enforcement responsi- the truth of the adage that fools rush and without context, on OSHA’s bilities under a brand new statute, in where angels fear to tread. In this website. The unashamed purpose the Occupational Safety and Health instance, the fool was this young of this regulation is to persuade Act. The department had not yet pup trying to extend OSHA’s reach. employees, customers, and vendors moved to its present digs with the AstroTurf had been recently intro- not to work for, or do business with, beautiful view of the Capitol that duced and the data quickly emerged entities based only on their injury would symbolize the invasion of that football players and other ath- records. In addition, this regulation politics into the implementation of letes were harmed by the surface and would make it a citable offense to salutary legislation. the speed it generated. What an reward employees with a bonus or In those halcyon days, OSHA ideal target for OSHA’s General a pizza for working without injury was relatively innocent; it, like so Duty Clause, which proscribes rec- under the guise that such incentive much other socioeconomic legisla- ognized hazards likely to cause death programs discourage the reporting tion (such as the National Environ- or serious physical harm. I recall my of injuries and illnesses. mental Policy Act), was the product citation proposal to Eula Bingham, Notwithstanding the many bridg- of that great “liberal” president, then the head of OSHA. Bingham es too far OSHA has traveled, the Richard Nixon. It was the Williams- was no shrinking violet when it verdict is positive. Its presence in the Steiger Act, named after a commit- came to extending OSHA’s reach. workplace has raised the conscious- ted Democrat and an inveterate Nevertheless, she had the judgment ness of American employers to the Republican. Which is not to say that to recognize OSHA’s limitations de- imperative of safety and health. No, despite its embrace by Republicans spite the persuasiveness of legal and that process is hardly an embrace of and Democrats, OSHA’s birth was factual arguments to the contrary. the compliance officer. Rather, it is not controversial. To the contrary, Or, in words that are not an exact the culture of safety that has taken wresting occupational safety and quote, Bingham responded, “Are root. Whether that mindset trans- health from the patchwork regula- you nuts?” lates into daily pre-work safety talks tions of the individual states was no The abandonment of such third- or complex risk analyses is not the mean political feat. But the wide- rail constraints reflects the evolu- point. Employers have dramatically spread workplace carnage was the tion of OSHA from its constructive reduced injury incident rates simply unarguable imperative and OSHA beginnings to its present state of because OSHA, with all its excesses, was to be its cure. endless controversy. Today, citations is on their radar screen. Two snapshots may give a against circuses, Broadway shows, As we begin to approach OSHA’s glimpse of how things were in and zoos mark OSHA’s attempt fifth decade, the agency should es- OSHA’s early days. We recognized to regulate inherent risk. OSHA chew initiatives that strain its legal early on that multiple employers proudly announces its objective to and political limits. To do otherwise worked simultaneously at many “regulate by shaming,” accentuated will jeopardize its very existence dangerous worksites, particularly by bombastic press releases and mil- with the question, Why do we need in construction. It was neither fair lions of dollars of penalties aimed OSHA at all if its success has already nor sensible to issue citations only at retail establishments with an oc- been achieved? against the employer whose name casional package temporarily in an was on the hardhat of the employee aisle way. Baruch A. Fellner is an active retired part- working near the roof’s unguarded OSHA’s misplaced priorities ner with Gibson Dunn & Crutcher, LLP. He edge. That employer could have are also revealed on the regulatory has headed the OSHA practice for the past been the plumber or the electri- front. As we speak, the agency is 30 years. cian without the authority to erect gearing up for a challenge not seen guardrails. since the days of OSHA’s midnight
46 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 THE DEBATE
• reduce excess risks of chronic “Mission Accomplished” with rules Succeeding With disease to far below 1 chance in 1,000, that enshrine excess cancer risks ex- the Cards even if there are as few as several hun- ceeding 1 chance per 100, and refuses dred exposed workers nationwide; to impose costs that exceed 1 percent You Are Dealt • impose costs high enough to of any firm’s revenue. threaten some firms’ viability, so long I reject the facile recommenda- Adam M. Finkel as the costs don’t “threaten the profit- tion that OSHA should become op- ability of an industry as a whole”; positional for its own sake, or should he rising tides of environmental • impose a “general duty” on em- respond to “manufactured doubt” and and safety improvement have ployers to remedy safety or health voodoo economics with exaggerations done relatively little to lift the hazards even when no specific OSHA of its own. But when in the backcoun- Tboats of workers, who still face injury regulations exist, or even when obvi- try, it’s important to know which ani- and illness risks far above what we have ously weak and antiquated rules apply; mals will lose interest if you play dead, come to expect elsewhere in society. • force industries, if necessary, to but also which will attack unless you Most of the success stories (safer cars, install novel risk-reducing technologies rise up and look bigger. cleaner smokestacks, reduced tobacco that go “beyond what the industry is The best strategy for an over- exposure) either stop at the workplace presently capable of producing”; and matched regulator is to enlist partners door or include workplaces as an af- • change the fundamental nature of in all directions. OSHA should involve terthought. While the number of fatal certain jobs (e.g., farms can no longer other federal, state, and local regulators occupational accidents is falling almost employ people to stand within grain — and concerned citizens — as “eyes imperceptibly slowly, occupational silos to loosen the product). and ears” to lead its inspectors to seri- disease has become the eighth leading So then why has OSHA so often let ous hazards. It should work with the cause of premature death. Some very its detractors have their way, and let a non-union “COSH” groups to insist good things have come out of OSHA blasé public continue to avert its eyes that proven technologies required to in the last 12 months (notably require- from hazards known for centuries to protect the public also diffuse into the ments for a small subset of firms to be needlessly dangerous? The answers workplace, where risks are higher (all report injuries electronically, and a often lie within the walls of my former new passenger cars now must have long-awaited silica regulation), but agency. Under leaders of both parties, backup cameras, but not the trucks they look less impressive viewed over OSHA defends its won-lost percent- and forklifts that cause backover fatali- an eight-year administration. age, its turf, and (though not always!) ties at work). There is no question that OSHA its career managers much more ener- And it should prod the best firms to faces a gantlet of shrill opposition, getically than it empowers its superb evangelize for health and safety among benign neglect, and false friends. It rule-writers and onsite inspectors, and their customers, suppliers, colleagues, depends on steady appropriations from than it pursues cutting-edge science and competitors. In 2000, an advocacy Congress, many of whose members get and stringent standards. group convinced McDonald’s to stop teary eyed at the thought of “job cre- For one concrete example of many, buying from slaughterhouses that did ators” having to stop entrepreneuring consider the 2006 OSHA standard not treat their animals humanely; re- and follow some rules, but who have for hexavalent chromium, a human cently Walmart and other companies little sympathy for bereaved families carcinogen. In 1998, our chief lawyer have stopped buying eggs from caged or the fiscal costs of chronic disease. came in waving news of our “victory” hens (possibly increasing worker inju- And it relies in vain on being tugged in court that allowed us to shelve the ries and illnesses in the bargain). The proportionately “from the left” by a promised rule. Here, the principle only reason that companies like these declining union movement, whose zeal that “no one can tell us what to do” do not also take pride in purchasing ebbs further when regulatory controls trumped the idea that perhaps we from and selling to companies who might shift jobs away from antiquated should use our reaffirmed discretion to treat their workers humanely is that or unsafe processes that both manage- accelerate the slow pace of this needed OSHA is satisfied to tie one hand be- ment and labor want to keep afloat. rule. Then, the final rule (issued only hind its own back and bemoan its lack But there is also no question that after a second court decision excoriated of reach. Congress and the courts intended for OSHA for further delay) was so weak OSHA to be far more effective and that it allows about 85 percent of all Adam M. Finkel is a senior fellow at the more the master of its own fate. I sus- establishments to increase chromium University of Pennsylvania Law School and a pect few readers are aware that judicial levels — and the new silica standard professor of Environmental Health Sciences at interpretations of the Occupational looks eerily similar in this regard. I the University of Michigan. He was director of Safety and Health Act of 1970 explic- find it depressing that an agency with health rulemaking and a regional administrator itly allow OSHA to: the authorities granted above declares for OSHA from 1995–2005.
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don’t have a good basis for assessing tions are moderate. Investigate how An Agency That the total benefits and costs of the an engineering-based alternative Doesn’t Know If It OSHA program relative to what might work. For safety standards, would have happened in the ab- rely more on follow-back studies of Has Been a Success sence of the program. Workers do state workers’ compensation reports have greater rights because of the to obtain better information about John Mendeloff OSHA program; however, the abil- the likely effects and costs of new ity to exercise these rights has prob- standards. he most important factors ably been eroded by the decline For enforcement, transition to affecting the level of work- of labor unions and the growth in an inspectorate trained to focus place risks are the demand non-English speakers. on safety programs and manage- Tby workers for greater safety and Why hasn’t it worked better? ment commitment. Reduce the the ability of firms to supply it. Regulation prior to OSHA was use of “first-instance” penalties to Both of these are mostly a function unduly lax. OSHA’s creators shared a smaller set of standards. Target of wealth. But other factors matter the era’s mistrust of agency discre- more inspections at establishments as well. For example, the construc- tion, both in standard-setting and that have not been reviewed despite tion fatality rate in the United in enforcement. Although courts being in risky industries. Increase Kingdom is one half to one third generally upheld agency authority, the number of inspections in those the rate in the United States. And they constrained it by raising the industries. These policies, although within the United States there are evidentiary bar. A reasonable sys- representing a major change for long-standing disparities of almost tem should allow the regulator to OSHA, actually reflect, to some equal size across regions. adopt moderate reductions in the degree, those used in Washington Regulation of work safety can face of suggestive evidence. Instead, and Oregon (and are patterned on speed up the adoption of new pre- OSHA can regulate only after a the United Kingdom’s). ventive technologies but, except in complex process of finding “signifi- Compared to other regulatory the cases of some disease exposures, cant risk” and economic “feasibil- agencies, OSHA has developed very it usually operates on the margins, ity,” and then is constrained to set little analytical capacity; one result making adoption happen a little standards at “the lowest feasible is that it has not learned very much faster than it would have. Regula- level.” As a result, some health stan- about the impact of its activities. tors also try to enforce existing dards have been costly compared “We’re an enforcement agency, safety standards, which employers to their effects. The longer process not a research agency,” has been a may be unaware of or willing to tended to make it less likely that frequent message. The National In- flout. This enforcement process is any rulemaking could be begun stitute for Occupational Safety and aided by making employees aware and completed within the term of Health, created by the same statute of the rules and giving them a role any OSHA director. that created OSHA, has played a in forcing action. In the field, officials enforced very limited role in analysis or eval- With this background, how the set of OSHA standards. One uation of OSHA programs. OSHA should we assess OSHA’s success in problem is that most injuries are should use more small-scale experi- reducing risks? In manufacturing, not caused by violations of those ments. A small OSHA research in- OSHA inspections that cite serious standards. A second is that inspec- stitute, reporting to the secretary of violations appear to cause injury tors had no general mission to go labor and with a scientific advisory rate reductions of 10 to 20 per- beyond compliance to help employ- board, should be established. cent for a few years. We don’t have ers and employees figure out how evidence about other sectors. New to improve safety. Although penal- John Mendeloff, a professor of public affairs OSHA safety standards have proba- ties were quite low in OSHA’s early at the University of Pittsburgh, has written bly done some good, but good eval- years, they became larger, providing extensively on OSHA policy and served as uations are missing. New OSHA incentives for compliance after cita- director of the RAND Center for Health and health standards have slashed expo- tions and, when well publicized, Safety in the Workplace. sures to asbestos, lead, cotton dust, even before. The number of inspec- and a few other hazards. tors was slashed under the Reagan The paucity of new health stan- administration and never recovered. dards is embarrassing; most stan- What changes might help? For dards are still based on data from health standards, change the law to the 1950s and 1960s. Due in large allow lower exposure limits based part to the gaps noted above, we on lesser evidence when the reduc-
48 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 THE DEBATE
cantly updated in the 46 years since by EPA), and transportation work- Worker Health it was passed. Congress should revise ers whose jobs involve work with and Safety: More the OSH Act to make it stronger airplanes, trains, truck, and boats and provide adequate resources to (covered by FAA, FRA, FMCSA, Needs to be Done protect workers from on-the-job and the Coast Guard) have limited hazards. OSHA protections. Randy Rabinowitz Congress directed OSHA to OSHA has too few resources. It is adopt standards regulating danger- charged with protecting workers in hen a worker is killed, ous work practices and toxic expo- more than eight million workplaces. injured, or made ill on sures. Most employers voluntarily OSHA and state safety and health the job, it represents a follow these standards and health agencies had a total of 1850 inspec- tragedyW for the employee and his or and safety professionals rely on them tors who, during FY 2015, conduct- her family. Workplace injuries often as guideposts. Unfortunately, too ed 35,385 federal and 41,892 state impoverish those affected. The total many of OSHA’s standards are woe- inspections. The average penalty for cost of occupational injuries and fully out of date and are based on a serious violation of the OSH Act illnesses in the United States is at consensus guidelines adopted in the — one that may cause death or seri- least $250 billion annually. Workers’ 1960s or earlier. ous physical harm — is just $2,148. compensation pays only 21 percent The process for setting standards The AFL-CIO estimates that of the costs. Workers, their families, that protect workers has slowed to federal OSHA can inspect every and public and private social insur- a crawl, because Congress, the ex- workplace in America once every ance and welfare programs subsidize ecutive branch, and the courts have 145 years. Employers have little in- the rest. weighed it down with added analytic centive voluntarily to comply with When Congress passed the Oc- and procedural requirements. The the law when violations are so likely cupational Safety and Health Act time-consuming hurdles that OSHA to go undetected. Congress should in 1970, its goal was “to assure so must overcome to revise its out-of- provide OSHA with adequate re- far as possible every working man date standards means that it has less sources to fulfill the duties it has and woman in the nation safe and time to address new hazards that been assigned. healthful working conditions” by have been recognized since 1970, Employees are not adequately focusing on prevention of work- including the risk of workplace protected when they voice concerns related deaths, injury, and disease. violence to health care and social about workplace safety. OSH Act Since then, the incidence of occu- service workers and musculoskeletal enforcement relies on employees to pational injuries and fatalities has disorders arising from patient han- spot hazards, to report injuries and dropped significantly. dling. illnesses when they occur, and to Reliable statistics do not exist It now takes OSHA, on average, request inspections when hazards to measure the incidence of work- more than seven years to complete persist. Although the OSH Act pro- related illnesses, particularly latent a new standard. Since 1970, OSHA hibits retaliation against employees diseases. We do know, however, that has issued only 37 major health and who speak up for their own protec- standards issued by the Occupa- 55 major safety standards. Congress tion, enforcement of OSH Act anti- tional Safety and Health Adminis- should give OSHA the tools it needs retaliation provisions is limited. Too tration have significantly reduced to set new and revise out-of-date often, employees who assert their worker exposure to toxic chemicals, standards that address workplace rights to a safe workplace are fired. such as lead and asbestos. Most hazards in a timely manner. Congress should let workers enforce workplaces are safer now than they Even when standards exist to their right to be free from retalia- were in 1970 and both employers protect workers, too few are actually tion. and employees are more aware of covered by the OSH Act. Federal Workers deserve a safe workplace. the hazards present on the job, the law does not protect public employ- Current law is too weak to ensure risks they pose, and the steps needed ees who face on-the-job hazards, nor work is free from hazards. to control those risks. Action by the increasing number of workers in OSHA to implement the OSH Act the gig or on-demand economy who Randy Rabinowitz is the director of the is responsible for much of this im- are being (mis)classified as indepen- nonprofit Occupational Safety & Health Law provement. dent contractors. When another Project. But the OSH Act has several key agency regulates working conditions weaknesses. These limit OSHA’s in an industry, OSHA cannot do so. ability to fully protect workers from This means that agricultural work- harm. The law has not been signifi- ers who apply pesticides (covered
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deaths have declined dramatically: comparison, the EPA budget is $8.1 Protecting Workers from 14,000 in 1970 to 4,800 in billion. — Progress but a 2014, with high-hazard industries Federal OSHA and the state like construction seeing the great- OSHA plans are responsible for Long Way to Go est reductions in the numbers and overseeing the safety and health of rate of fatalities. The same is true for 140 million workers at more than Peg Seminario work-related injuries and exposures 8 million workplaces. But currently to toxic substances like asbestos and there are fewer than 2,000 OSHA n 1970, Congress passed the benzene. While employers, unions, inspectors (about 900 with federal Occupational Safety and Health workers, and safety and health pro- OSHA). Federal OSHA is able to Act, with the goal of providing fessionals have played a major role, inspect workplaces under its juris- Iworkers a protected place to work. OSHA through its standards, en- diction on average only once every The law didn’t just happen — it forcement, and other programs has 147 years. took decades of struggles by unions set the foundation for these gains. OSHA’s ability to issue needed and workers, and only came follow- OSHA standards have dramati- standards is likewise constrained. In ing workplace and environmental cally changed norms and practices. its 46-year history the agency has tragedies. It became part of a wave Just think about how asbestos issued standards for 30 toxic sub- of federal legislation to protect removal is handled today — with stances. The standard-setting process workers, the public, and the envi- enclosures, full-body personal has gotten harder and longer, as ronment from harm. protective equipment, and more layers of procedural and analytical Like many of the environmen- — compared with decades ago. In requirements have been added and tal laws enacted at the time, it was health care, including dental offices, industry and political opposition has based upon a foundation of setting use of gloves and facemasks or res- intensified. Early on, it took OSHA and enforcing protective standards, pirators is standard practice, in large one to three years to issue new with the federal government — in measure due to OSHA’s bloodborne standards for major hazards. The this case the Department of Labor pathogens standard. These practices most recent standards — silica and — given the responsibility to carry are now viewed as necessary and ap- confined space entry in construction out the law in collaboration with propriate to protect both workers — took about 20 years. As a result the states. In addition, the OSH and the public. But when these stan- for most hazards, standards are out Act gave workers and their repre- dards were issued, there was huge of date or non-existent. OSHA can’t sentatives important new rights, employer opposition, with claims address even long-recognized prob- including filing complaints, request- that the rules were unnecessary, in- lems, let alone the emerging hazards ing onsite inspections, and having feasible, and would put employers that put workers in danger. a voice in safety and health in the out of business and cost jobs. OSHA needs more resources. The workplace. Similarly, OSHA enforcement statute, which has never been up- The law has been described as has changed practice and improved dated, needs strengthening. The act radical and revolutionary, funda- conditions, both through emphasis must be extended to cover the mil- mentally changing the balance of programs that focus on high-hazard lions of public employees who still power between not only the govern- industries like meat packing and lack legal protection; penalties must ment and employers, but between poultry, and inspections at indi- be strengthened, including making workers and employers, on a central vidual workplaces with high injury criminal offenses a felony instead of workplace issue. This direct chal- rates or in response to complaints. a misdemeanor; and whistleblower lenge to “management prerogatives” It is well documented that OSHA protections improved so workers can on how workplaces are operated inspections improve conditions, re- exercise their rights. has been the source of much of the ducing exposures and injuries. But most of all OSHA — and employer opposition and conflict When there has been strong lead- worker safety and health — needs regarding the law and its implemen- ership and commitment and OSHA greater public and political support, tation for the past four decades. And has focused its efforts, the agency which will only come when the na- it is in this context that OSHA has has made a real and lasting differ- tion places a higher value on work- worked and often struggled to carry ence. ers’ lives. out the statute’s mandates. OSHA’s biggest problem and Forty-six years after the law went deficiency is that it simply does not Peg Seminario is safety and health director into effect and OSHA was created, have the resources that are needed for the AFL-CIO. there is no question that real prog- to meet its responsibilities. OSHA’s ress has been made. Work-related current budget is $552 million. As a
50 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 THE DEBATE
tion for workplace fatalities and in- receives regular discharge monitor- Economic juries is about $100 billion. ing reports and undertakes frequent Incentives for OSHA regulations contribute on-site inspections. In contrast, to this type of market operation seeing an OSHA inspector remains Job Safety through policies that inform workers a rare event, with an annual prob- of the hazards they face. One such ability of about 1 in 100 at any W. Kip Viscusi regulatory effort that alerts workers given worksite. The associated to workplace risks and contributes penalties levied in this enforcement n the 1970s, the Occupational to the functioning of markets is the process are still low, with total ini- Safety and Health Administra- OSHA hazard communication regu- tial proposed OSHA penalties of tion became the poster child for lation. After OMB rejected the regu- under $150 million in 2010. The Iineffective and intrusive regulation. latory proposal, OSHA appealed financial incentives for safety created OSHA was vilified for workplace the decision to then Vice President by OSHA are dwarfed by the other standards that intruded on manage- George H. W. Bush. OSHA’s benefit forces at work. ment decisions and often imposed assessments were too low, since they Bolstering OSHA’s impact re- seemingly nonsensical requirements. valued worker lives based on their quires that the agency generate Early empirical studies of the im- lost earnings, or what they termed greater financial incentives for safety. pact of the agency on worker safety the “cost of death.” My analysis that A more vigorous enforcement effort showed no demonstrable effects, introduced the value of statistical life and much more substantial penalty so that there was no evident payoff into OSHA’s analysis led to benefits levels would be essential compo- from the imposition of regulatory exceeding costs and the issuance of nents of such an initiative. But there costs. the regulation. OSHA has a con- should also be a recognition of the Since this initial period of con- tinuing vital role to play in alerting underlying economic forces at work. troversy, the nitpicking regulations workers to hazards that they might OSHA should target its efforts at were trimmed, and workplace safety not otherwise understand. risks for which the market does not has exhibited substantial improve- In addition to payment of higher function effectively, such as dimly ment. Defenders of the agency point wages to workers to incur job risks, understood health hazards. More to the reduction in worker injuries there is also compensation of work- visible acute risks pose fewer chal- as evidence of the efficacy of these ers after job injuries through the lenges for the operation of market command-and-control regulations. state workers’ compensation pro- forces and workers’ compensation My own studies have found that grams. In 2013, the net workers’ incentives. OSHA has contributed to a signifi- compensation premiums written Identification of areas where mar- cant decrease in worker injuries. But through commercial lines was $41 ket forces clearly fail can assist in the the preponderance of the decline billion. This insurance program in effective targeting of OSHA efforts. in injuries over the past 80 years turn establishes powerful incentives Mexican immigrant workers incur reflects continuation of the long-run for safety through experience rating about 40 percent greater fatality improvements in safety. OSHA’s ef- of firms. Larger firms especially are risks than do native U.S. workers, forts have enhanced safety, but the incentivized through this process. but they receive less hazard pay for agency could be even more effective. My empirical estimates found that these risks. For Mexican immigrants The underlying economic de- in the absence of workers’ com- who are not fluent in English, there terminants of safety hinge on how pensation, workplace fatality rates is no evident wage compensation for government policies influence the would be 30 percent greater. the substantial fatality risks that they incentives for safety. Firms will make How do the financial incentives face. OSHA can potentially play a additional investments in safety to for safety created by OSHA compare constructive role by creating power- the extent that there is a financial with those generated through wage ful financial incentives for safety incentive to do so. The principal compensation and workers’ com- to address these and other market market incentive is that workers pensation? The regulatory approach failures. require additional pay to work on involves the use of inspections to dangerous jobs, and they currently identify standards violations, which W. Kip Viscusi is the University Distin- receive pay at a rate that implies a can lead to financial penalties. In guished Professor of Law, Economics, and value of statistical life on the order my research on EPA inspections of Management at Vanderbilt University in of $9 million. That works out to water pollution from pulp and paper Nashville, Tennessee. wage compensation at a rate of $900 mills, I found that this regulatory for an annual fatality risk of 1 in strategy can be extremely effective. 10,000. The total wage compensa- In the case of water pollution, EPA
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 51 Reprinted by permission from The Environmental Forum®, September/October 2016 ELI MakingREPORT Law Work for People, Places, and the Planet HonoringNational Wetlands Iraqi Minister Awards | Michael Annual L.event Ross showcases delivers inaugural personal Al Moumininvolvement Lecture in conserving on Environmental nation’s dwindling Peacebuilding natural resources
ELI’s National Wetlands now the primary funding more than 300 restoration cycling of nutrients in natural Awards honor individuals source for regional tribal trips since 2000. and managed wetland and across a broad range of wetland conservation efforts. State, Tribal, and Lo- aquatic ecosystems for over geography and expertise for He was a technical advisor cal Program Development: 40 years. He is a renowned excellence in wetlands pro- for the Wild Rice Monitoring Throughout his career, Tom biogeochemist, mentor, and tection, restoration, and edu- Handbook and Field Guide Bernthal of the Wisconsin leader in wetland science. cation. At this year’s event, and lead author of a report Department of Natural He promoted an integrated ELI President Scott Fulton identifying over 300 Wiscon- Resources has been a approach to wetland sci- observed that “wetlands sin wild rice waters. He also prominent figure in wetlands ence that included biogeo- destruction is the tragedy of coordinates an interagency research, restoration, and chemistry in research and the commons manifest be- restoration program that has education in Wisconsin. His education, he co-authored fore our eyes as we see one increased rice abundance ability to coordinate efforts a textbook entitled Biogeo- of our most precious natural chemistry of Wetlands: Sci- resources incrementally be- ence and Applications, and ing whittled away.” has produced more than Keynote speaker Jim Zorn 350 peer-reviewed papers. of the Great Lakes Indian Wetlands Community Fish & Wildlife Commission Leader: Roberto Viqueira is commended the contribu- the founder of Protectores tions of the awardees: “All de Cuencas, a commu- Winners, from left to right: Tom Bernthal, K. Ramesh Reddy, Peter your work, individually and David, Roberto Viqueira, and Pamela B. Blanchard. nity-based nonprofit that collectively, shows us what conserves and restores we have to do, what we in Wisconsin and the Upper and advance innovative wet- wetlands throughout Puerto should do, for our home and Peninsula of Michigan by 25 land monitoring and assess- Rico. Through partnerships ultimately for our own surviv- percent. ment methods have pro- and leveraging over $7 mil- al as a species. . . . Where Education & Outreach: duced numerous resources lion in funding from federal would we be without them?” Pamela B. Blanchard, an as- for the region. He was instru- and local agencies, he has This year’s award recipi- sociate professor at Louisi- mental in the development reduced pollution to the ents are: ana State University School of the statewide Floristic Guánica Bay by preserving Conservation & Res- of Education, co-founded the Quality Assessment and in Guánica Lagoon, creating toration: Peter David is a LSU Coastal Roots Seedling drafting “Reversing the Loss: sewage treatment wetlands, wildlife biologist with the Nursery program in 2000 to A Strategy for Protecting and and launching the “Think Great Lakes Indian Fish and educate students and teach- Restoring Wetlands in Wis- Before You Drop It” cam- Wildlife Commission. For ers on coastal issues and consin.” paign with NOAA to reduce 30 years, he has fostered sustainability, and engage Science Research: A grad- marine debris. He has also partnerships between fed- students in restoration proj- uate professor and depart- promoted sustainable ag- eral, state, county, and tribal ects. The program has grown ment chair in the Soil and ricultural practices through agencies, NGOs, and citizens to include 48 schools in Lou- Water Science Department the creation of a certification to encourage wetland stew- isiana and four schools in at the University of Florida’s program and has helped ardship and research, with Chile. Approximately 16,000 Institute of Food and Agri- develop a regionally adapted an emphasis on wild rice. He students have participated in cultural Science, K. Ramesh hydroseed for shoreline sta- was involved in establishing the program, planting nearly Reddy has led ground- bilization and habitat reha- the Circle of Flight Program, 130,000 native plants on breaking research on the bilitation
52 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 ELI REPORT
6th volume on post-conflict peacebuilding, resource protection
In conjunction with the conducting the reviews also United Nations Environment “viewed the process as a Programme, McGill Univer- vehicle for restoring rule of sity, and the University of law beyond forestry manage- Tokyo, ELI has released the ment.” final book in its six-volume Anita van Breda, from edited series on post-conflict the World Wildlife Fund for peacebuilding. Nature, focused on the To celebrate the publica- importance of integrating Panelists at the book launch: John Waugh, Todd Walters, James Ro- tion of Governance, Natural sectors to achieve success- chow, Carl Bruch, Anita Van Breda, Lisa Goldman, Clayton Adams. Resources, and Post-Conflict ful peacebuilding, noting “it Peacebuilding, a book launch the international community to establish a national ben- is not possible to build a was held at ELI’s headquar- to take meaningful steps, it efits-sharing trust fund. His safe, productive community ters in downtown Washing- is possible to improve natu- team’s work proposed a ma- without a safe, productive ton, D.C. ral resource management jority stakeholder approach. environment.” Edited by ELI’s Carl to rebuild governance and James Rochow, president Attendees were also Bruch, Carroll Muffet of the rule of law, combat corrup- of the Trust for Lead Poison- treated to discussion of Center for International En- tion, engage disenfranchised ing Prevention, served as a the penultimate book in vironmental Law, and former populations, and build confi- consultant in Liberia and dis- the series, Livelihoods, ELI attorney Sandra Nichols, dence following conflict. cussed concession reviews Natural Resources, and the book uses case studies Case study authors pro- of Liberia’s forestry sector Post-Conflict Peacebuilding to describe experiences and vided a first-hand account that resulted from interna- from Lisa Goldman, and lessons from peacebuild- of their experiences. John tional pressure to address a case study on cross- ing efforts in more than 40 Waugh of Integra LLC spoke the abuse of mineral conces- border cooperation in the conflict-affected countries. about his work as a consul- sions. He explained that al- Balkans from Todd Walters By bringing together gov- tant in Liberia after a failed though the work focused on of International Peace Park ernment, civil society, and attempt by the government the forestry industry, those Expeditions.
Online video series of oral history memories from the pioneers
On Earth Day 2016, ELI Many cited the devastat- provided perspectives on to- Environment Committee. launched an online collec- ing environmental and health day’s environmental agenda “And they look at a picture of tion of oral histories of 24 consequences of pollution and the future of environ- Beijing and you show them pioneers instrumental in as a tipping point for making mental protection. Achieving what Los Angeles looked like forming the framework of the environment a national political consensus regard- when we started all of this U.S. environmental law — concern. ing environmental regulation and say, ‘There but for the first-hand recollections of In his interview, former and laws recently has proven grace of God go we.’ They commitment, determination, EPA Administrator the late difficult, with environmental appreciate that these are and action by these dy- Russell E. Train said, “The issues increasingly becom- their resources and they’re namic men and women from air was so bad you could see ing a political lightning rod. going to protect them.” across diverse careers. it, smell it, and taste it. You But, many of the pioneers Celebrating Pioneers in The videos provide couldn’t ignore the fact of expressed an inspiring opti- Environmental Law can be valuable insight into what rampant air pollution around mism and faith, especially in accessed at www.eli.org/ triggered the rise in public the country, plus, disasters the world’s youth. “There’s a celebrating-pioneers-in-envi- support for environmental like the Santa Barbara oil whole generation of people ronmental-law. These stories protection, the creation and spill or the Cuyahoga River out there who think the are a resource for historians bipartisan efforts of momen- in Ohio catching fire. These environment belongs to and students, but more than tous laws like the Clean Air things really got the public’s them and they think they’re that, they are a source of Act and the Clean Water Act, attention.” entitled to a clean environ- insight and inspiration for and where environmental law In addition to reflecting ment” said Leon Billings, a those working every day to has fallen short. on the past, the pioneers former staffer on the Senate protect the environment.
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 53 Reprinted by permission from The Environmental Forum®, September/October 2016 ELI REPORT
Panelists at ELI’s first summer school event of the year talk to emerging environmental professionals about careers in environmen- ELI President Scott Fulton (middle) enjoyed a reception held to honor tal law and policy. leaders in wetlands protection, restoration, and education.
Carl Bruch, ELI Director, International Programs, was one staff member representing the Institute at plenary sessions at the World Scott Fulton (seventh from right) traveled to Brazil with judges, Environmental Law Congress in Rio de Janeiro, Brazil. The World former judges, and legal experts for the World Environmental Law Congress event launched the Global Judicial Institute and brought Congress to develop a charter for a new Global Judicial Institute for together judges and stakeholders from legal communities around the Environment. the world to discuss strengthening environmental rule of law.
Bill Sapp, Ethan Shenkman, Aditi Prabhu, J.B. Ruhl, and D. Randall Benn discuss the topics in “The Permit Power Revisited: The Theory Attendees of ELI and the American Law Institute’s two-day continuing and Practice of Regulatory Permits in the Administrative State,” one legal education course on the Clean Water Act learned about recent of the articles selected by ELI and Vanderbilt University Law School programmatic, litigation, and regulatory developments, and emerg- to be highlighted at the Environmental Law and Policy Annual Review ing issues that will influence water law and practice in the years to Conference come.
54 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016 ELI REPORT
ELI in Action Communicating Scientific Uncertainty to Clients and the Public
Jay Austin Senior Attorney and Editor-in-Chief, the Environmental Law Reporter
“A lawyer, a scientist, ganisms, participants com- Their largest constraint ent with a duty of candor to and a journalist walk into pared how their disciplines’ in communicating nuanced the tribunal, a low bar that a bar. . . .” differing professional norms, information about scientific typically bans only outright That was the refrain challenges, and business uncertainty, they reported, falsehoods. Lawyers may at ELI’s second multidis- models shape the ways they is modern readers’ short argue, to their clients’ ad- ciplinary workshop on communicate — and occa- attention spans and de- vantage, that areas of both “Scientific Uncertainty and sionally fail to communicate creasing time and space for science and the law itself Professional Ethics,” which — the nuances of scientific telling a complex story in are uncertain or unsettled. convened fifty practitioners topics. detail. For many lawyers, ques- of those three professions For example, the sci- With the decline in sci- tions of scientific uncertain- to discuss how they commu- entists emphasized the ence and environment ty ultimately are resolved nicate scientific uncertainty absence of any single com- beats, journalists’ lack of pragmatically, subject to on environmental and public prehensive, written code specialized expertise can be various standards of proof health issues. governing how they commu- another constraint, as it af- depending on the type of Funded by the National nicate their findings, but not- fects their ability to evaluate proceeding, be it civil, crimi- Science Foundation’s Paleo- ed that they are held to the scientific information. But, nal, or administrative. climate Program, the meet- standards of statistics, such in principle, good journal- The workshop’s second ing was held in Washington as reporting significance ists do attempt to look to day was devoted to a fa- at the Carnegie Endowment and confidence intervals. a preponderance of the evi- cilitated, in-depth discus- for International Peace on Transparency is another dence (rather than equally sion of how this group of April 21-22. factor, as scientists must present both sides), criti- professionals can advance The workshop’s goal was be sensitive to conflicts of cally evaluate sources, and the issues identified and to promote more effective interest and responsive to interpret information based discussed with respect to communication about scien- their funders’ requirements on their own knowledge and effectively and ethically com- tific uncertainty by deepen- of disclosure and ethical research. municating scientific uncer- ing the participants’ under- conduct. In contrast to the other tainty. standing of their respective Peer review also is a two professions, the lawyers The participants agreed approaches to complex method of enforcing pro- noted that practicing attor- that progress can and issues. fessional norms. Overall, neys who advise clients and should be made incremen- Attendees included envi- scientists’ aim is generally represent them in litigation tally, with key people taking ronmental lawyers from the to provide all the informa- are bound in their commu- affirmative steps and others private, academic, and non- tion needed to help others nications by detailed codes catching on. profit sectors; beat and free- judge the value of their of professional responsibil- ELI is working with the lance journalists and other work, rather than to steer ity, while lawyers working group to identify, prioritize, communication specialists that judgment in a particular outside of attorney-client and shepherd practical working in print, broadcast, direction. relationships such as law next steps for the improved and online media; and natu- The journalists simi- professors, policy attorneys, communication of scientific ral scientists from a variety larly noted the absence of a and analysts have fewer uncertainty, and these ef- of backgrounds. single common ethical code, ethical constraints and may forts will be the subject of Working through case while pointing out the exis- speak more freely. another workshop tentatively studies on climate change tence of some news-outlet- Lawyers must balance scheduled for late 2016 or and genetically modified or- specific codes. a duty of loyalty to their cli- early 2017.
® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. SEPTEMBER/OCTOBER 2016 | 55 Reprinted by permission from The Environmental Forum®, September/October 2016 ELI REPORT Closing Statement Neighborhood Tensions and Our Role in Seeking Justice are in poor health, or have inadequate some studies have suggested that access to health care may also have even when economics is removed from higher susceptibility. the equation, race still influences the The exposure plane is greatly in- exposure continuum, positing, in other fluenced by the intersection between words, that poor nonminority communi- poverty and environmental degradation. ties can be seen as bearing less of a With poverty tends to flow political impo- pollution burden than poor minority com- tence, a lack of voice and access, and munities. a sense of helplessness to confront A good deal of effort has been in- powerful economic or political interests. vested in response to these concerns, It can also produce a certain invisibility particularly in the area of procedural jus- that makes it difficult to draw govern- tice — the idea of equalizing the oppor- ment attention and intervention, such tunity for participation in the decision- as, for example, environmental enforce- making process. But with respect to the ment. With poverty also flows a certain question of substantive justice — the predetermination regarding where you notion of leveling environmental benefits live, where your kids go to school, and and burdens — I wonder whether we are the like. You live in the poorer parts of still working at the margins, rather than Scott Fulton town where housing is economically ac- at the center or heart, of the challenge. President cessible to you. And choice to change Why is that? For the simple reason that circumstance is often not readily that it’s difficult. Cumulative impacts available. are still poorly understood, there are s we have witnessed the recent One of the factors that tend to push questions about the significance of horrors of escalating racial ten- down property values and the cost of disparities that operate within an ac- A sions in the policing arena, the residential housing is proximity to com- ceptable risk range, communities are question is whether in our sphere of mercial and industrial zones, highways, sometimes divided in their response work — environmental protection — we and such. The closer you are, the more to new economic development, land have done as much as we might to level real estate values are suppressed. But use and transportation policy rationally the field of justice across communities. that’s not the only implication. If you favors brownfield, rather than greenfield, My guess is that how you think about live where the polluting activities in your development, etc. environmental justice depends to some area are concentrated, your exposure to It’s complicated. But if some among degree on your own background or racial contaminants is likely to be greater than us are asked to accept proportionately identity and the experiences with race the exposure of the non-proximate com- more pollution burden than others, we and class issues that you bring to your munity. So we see the potential for dis- need to continue to search for ways to work, but, generally, when we talk about parate environmental exposure based neutralize those burdens or find ben- environmental justice, we’re talking on economic class, and the obvious efits that can offset them. If we look at about addressing disparate levels of connection between land-use-planning companies and local governments who protection from environmental impacts decisions and the environmental justice have been relatively more successful based on economic class, race, or other challenge. in addressing environmental justice demographic factors. And this idea Because of our tragic history with concerns, we will see attention to both of disparate protection breaks out on race, and the differential in economic the question of equalized engagement two distinct but sometimes connecting opportunity that has so often followed, and offsetting benefits to the commu- planes: susceptibility and exposure. we have also seen a close relationship nity, allowing new development to be In terms of susceptibility, we are between economic class and race. And embraced as a net plus for those most aware that there are some subpopula- so, just as we should not be surprised immediately affected by it. tions that have a higher dose-response to see a differential in environmental Maybe that’s where to focus the con- susceptibility to environmental contami- exposure based on economic class, we versation going forward: lifting up the best nants than is experienced by the gen- should likewise not be surprised to see practices that have emerged in this area, eral public. Children and the elderly are a differential in exposure that breaks and looking for ways to more holistically perhaps the most obvious examples. out along the lines of racial identify. level out the benefits and burdens of eco- But people who suffer from disease, If this weren’t perplexing enough, nomic development. What do you think?
56 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, September/October 2016