The Environmental - Environmental Law Institute
Transcription
The Environmental - Environmental Law Institute
Remembrance: Stewart Udall, Founding Father Volume 27, Number 3 • May/June 2010 The Environmental FORU M ® Advancing Environmental Protection Through Analysis • Opinion • Debate Perchlorate: Not Only Rocket Science Footprints Five Steps to Lower Toxics Moral Limits State Versus Feds On Clean Air Policy Upsetting Offsets Just a Way for Rich To Avoid Change? The Policy Journal of the Environmental Law Institute® Endangered Species Deskbook Second Edition SPRING 2010 By Lawrence R. Liebesman and Rafe Petersen The Endangered Species Deskbook is a comprehensive reference to one of the most complex and heavily litigated environmental statutes ever enacted by the U.S. Congress. The Endangered Species Act, passed in 1973, requires all federal departments and agencies to conserve endangered and threatened species by utilizing their authorities in furtherance of the act’s purposes. Because the ESA takes a broad approach to species protection, it has had major impacts, especially on private property rights and economic development. It has also been a lightning rod for debate over human impacts on the biodiversity of the U.S. ecosystem. More recently, the effects of climate change on imperiled species have become hotly contested as Congress considers legislation intended to combat global warming. ELR THE ENVIRONMENTAL LAW REPORTER R ENDANGERED SPECIES DESKBOOK 2ND EDITION Lawrence R. Liebesman This new edition of the Deskbook updates the previous edition’s comprehensive discussion of the law by adding a new chapter on climate change and addressing the latest ESA-related developments, such as the listing of the polar bear under the ESA. This second edition also includes appendixes that detail key laws, policies, regulations, and contact information for easy reference. Holland & Knight Rafe Petersen Holland & Knight ENVIRONMENTAL LAW INSTITUTE By explaining the ESA’s complicated history and implementation—along with ensuing agency regulations and court decisions—the Deskbook provides a practical guide for interpreting the Act. It is particularly valuable in outlining the steps that are needed for compliance with ESA and agency regulations. Like its predecessor, this new edition offers a wealth of information for practitioners, policy makers, and all citizens interested in the issues surrounding species conservation. Biographies Lawrence R. Liebesman, partner with the law firm of Holland & Knight, has more than thirty years experience as an environmental attorney and litigator. He is a frequent author and lecturer on environmental topics and has participated in landmark Supreme Court cases under the Clean Water and Endangered Species Acts. Rafe Petersen, also a partner with Holland & Knight, primarily practices in the area of environmental compliance and litigation, with an emphasis on the Clean Water Act, the Endangered Species Act, the National Environmental Policy Act and resource issues. To order, call 1-800-621-2736, or visit www.eli.org Price $109.95 • 350 pp. ELI Associates receive a 15% discount T h e B r i e f Unseen Hand | Reducing Footprints ❧ Headnote: Science, regulation, and environmentally preferable purchasing programs are intensifying, driving the move toward greener chemicals. A multi-part benchmark can help companies reduce business risk as they manage the transition. By Richard Liroff Investor Environmental Health Network Ralph Butler With Another View by Kathy Gerwig of Kaiser Permanente Page 24 Geography | The Moral Limits of Jurisdiction ❧ Headnote: As the states and the public face new rules on emissions under the Clean Air Act, the authors find that environmental policy devoid of economic feasibility equals ethical bankruptcy by policymakers to the detriment of citizens and their economic liberty. By Harold G. Leggett and Beau James Brock Louisiana Department of Environmental Quality Page 32 Cover Story | It’s Not Only Rocket Science ❧ Headnote: The perchlorate story follows the arc of other major controversial chemical management challenges, such as dioxin, where the initial focus on end-of-pipe controls missed key sources in the environment. By Andrew Rak Noblis Center for Sustainability Henry Payne With Another View by Samuel Kounaves of Tufts University Page 38 Remembrance | Founding Father ❧ Headnote: Stewart L. Udall, who died on March 20 at the age of 90, was one of the prime movers of the modern environmental movement, building a firm legal and policy foundation. Page 44 T h e B r i e f The Forum | The Upset About International Offsets Page 48 ❧ Headnote: The notion of offsets for global warming pollutants is a perfect win-win for the environment, or so it seems at first glance. The Clean Development Mechanism of the Kyoto Protocol allows emitters in the rich countries, which face mandatory reductions in greenhouse gasses, to finance projects in the developing world, which has no required cutbacks and where reductions can often be made more cheaply. But early on analysts pointed out that a key need is to prove that the reduction would not have occurred in a business-as-usual context. Another problem is to monitor the offsets to ensure that they continue over time, which particularly affects forestry-based projects. And some have criticized the practice at a basic level, accusing developed countries of evading reductions at their facilities and thus undermining a global movement. Colu m n s The Federal Beat................................. 8 By Margaret Kriz Hobson An Economic Perspective ................. 16 By Robert N. Stavins All of the parties in the chemical safety debate agree that the time has come to revamp TSCA. South Korea and Mexico will host meetings that could help climate policy. Around the States............................. Science and the Law ......................... 18 10 By John Pendergrass By Craig M. Pease A high level official for economic development would be something new in the states. In California, a web of natural and human processes has also ensnarled science. In the Courts..................................... 12 The Developing World ..................... 20 By Richard Lazarus By Bruce Rich Environmentalists have lost all 16 NEPA cases on the merits, boding ill for this term’s decision. When having a sustained supply of elephants was a matter of state security. The Business of Environment............ 14 Notice & Comment.......................... 22 By Elliott P. Laws The view that the school was putting children at risk turned out not to be the case. By Stephen R. Dujack Counting on scientists to save the world from climate change misunderstands the history of technology. In the Literature: Tracy Mehan on science, the environment, and political reality — Page 6 ELI Report: Bringing together resource managers in former warzones — Page 54 Closing Statement: Leslie Carothers on Earth Day at 40, and a Look Ahead — Page 60 The Environmental Law Institute makes law work for people, places, and the planet. The Institute has played a pivotal role in shaping the fields of environmental law, policy, and management, domestically and abroad. Today, ELI is an internationally recognized independent research and education center known for solving problems and designing fair, creative, and sustainable approaches to implementation. ELI strengthens environmental protection by improving law and governance worldwide. ELI delivers timely, insightful, impartial analysis to opinion makers, including government officials, environmental and business leaders, academics, members of the environmental bar, and journalists. ELI is a clearinghouse and a town hall, providing common ground for debate on important environmental issues. The Institute is governed by a board of directors who represent a balanced mix of leaders within the environmental profession. Support for the Institute comes from individuals, foundations, government, corporations, law firms, and other sources. The Environmental Forum® is the publication of ELI’s Associates Program, which draws together professionals in environmental law, policy, and management. The Forum seeks diverse points of view and opinion to stimulate a creative exchange of ideas. It exemplifies ELI’s commitment to dialogue with all sectors. For more information about ELI and its Associates Program, contact the Environmental Law Institute, 2000 L Street NW, Suite 620, Washington, D.C. 20036, 202 939 3800 or 800 433 5120. Or visit our web site at www.eli.org. The ELI Board of Directors Paul Allen Wayne Balta James Buckley Laurie Burt William Chandler Josephine Cooper Amy Edwards William Eichbaum E. Donald Elliott Robert Frantz Michael Gerrard Robert L. Graham Daniel Greenbaum Wm. Robert Irvin Michael Kavanaugh Sara Kendall Stanley Legro Peter Lehner Raymond Ludwiszewski Angus Macbeth Eileen Millett Tom Mounteer Jaime Xicotencatl Palafox Granados Martha Rees Kathy Robb Nicholas Robinson Edward Strohbehn Brian Trelstad Mark Udall Daniel Weinstein Usha Wright The Environmental Forum Advisory Board Braden Allenby Adam M. Finkel David Struhs Lynn L. Bergeson Richard Frandsen Bud Ward Professor of Civil and Environmental Engineering Arizona State University Tempe, Arizona Managing Director Bergeson & Campbell, P.C. Washington, D.C. David Clarke Senior Editor Inside Washington Publishers Arlington, Virginia William Eichbaum Vice President World Wildlife Fund Washington, D.C. Professor University of Pennsylvania Law School and UMDNJ School of Public Health Senior Counsel House Energy and Commerce Committee Washington, D.C. Ann Powers Professor Pace University School of Law White Plains, New York Stephen Shimberg DLA Piper US LLP Washington, D.C. Page 4 ❧ T H E E N V I R O N M E N T A L F O R U M Vice President, Environmental Affairs International Paper Memphis, Tennessee Morris A. Ward, Inc. White Stone, Virginia David Weinberg Partner Wiley Rein & Fielding LLP Washington, D.C. The Environmental Forum® Stephen R. Dujack Attention ELI Members, Editor Brett Kitchen ELI Report Editor Marcia McMurrin Subscription Manager, 202 939 3851 [email protected] By reading this magazine, you are putting your ELI membership benefits to work. Be sure to utilize your other benefits to the max! Leslie Carothers Publisher Scott Schang Vice President Climate and Sustainability Rebecca Leamon Director of Associates Jamien Payne Sales Associate 202 939 3836 [email protected] The Environmental Forum® (ISSN 0731-5732) is the publication of the ELI Associates Program, the society for professionals in environmental law, policy, and management. Annual dues are $115 (government, academic, and non-profit rate: $70). Please call or email for international rates. Rates subject to change. Published bimonthly by the Environmental Law Institute®. Copyright © 2010, Environmental Law Institute. All rights reserved. Reproduction in whole or in part without written permission is prohibited. Environmental Law Institute, ELR®—The Environmental Law Reporter®, and The Environmental Forum® are registered trademarks of the Environmental Law Institute. Editorial inquiries should be addressed to the Editor at phone: 434 296 3380, fax: 434 296 1396, email: [email protected]. Membership, subscription, or address changes should be addressed to The Environmental Forum, 2000 L Street NW, Suite 620, Washington, D.C. 20036, phone: 202 939 3851, fax: 202 939 3868 email: [email protected]. ELI publishes Research Reports that present the analyses and conclusions of the policy studies ELI undertakes to improve environmental law and policy. In addition, ELI publishes several magazines and journals — including The Environmental Forum®, the Environmental Law Reporter®, and the National Wetlands Newsletter — and books, which contribute to the education of the profession and disseminate diverse points of view and opinion to stimulate a robust and creative exchange of ideas. Those publications, which express opinions of the authors and not necessarily those of the Institute, its Board of Directors, or funding organizations, exemplify ELI’s commitment to dialogue with all sectors. ELI welcomes suggestions for article and book topics and encourages the submission of draft manuscripts and book proposals. Read @ELI.ORG Every Monday All associate members are entitled to receive the weekly @eli.org e-mail.This e-mail alerts readers to up-to-the minute job opportunities, seminars, events, publications and other key issues in environmental law and policy. If you’re not getting this, e-mail [email protected] today. 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Get Great Discounts on Books from ELI Press You receive a 15% discount on all books published by ELI Press. See ads in every issue of the Forum for details on recent and forthcoming books. Recycled/Recyclable Soy-based inks Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 M ay / J une 2 0 1 0 ❧ Page 5 I n t h e L i t e r a t u r e and International Environmental and Scientific Affairs from 1985 to 1994. In Negotiating Environment and Science: An Insider’s View of InternaBy G. Tracy Mehan III tional Agreements, from Driftnets to the Space Station, Smith relates the story of eight talks with which he unching with a former col- not make sense. The stark choice is was intimately involved, including league, I mentioned that I was between privatization/regulation, or the London agreement to amend going to teach a course on in- no action at all. the Montreal Protocol on Substances ternational environmental law. Attempts to create a property that Deplete the Ozone Layer, the My friend’s quick response: “Is rights regime in fisheries, through international space station agreethere any?” transferable individual fishing quo- ment, the U.S.-Canada acid rain Good question. With marine fish- tas, have been successful, but these agreement, and two pacts relating to eries crashing, mercury pollution cy- programs have usually been within a marine fisheries management. These cling around the globe, and a variety nation’s sovereign borders. Yet, many last include the so-called “Bering Sea of mega-fauna going extinct in all the global commons issues still require a Donut Hole,” a decimated pollock seven seas, one could be forgiven for regulatory approach, which is where fishery outside the exclusive economtaking such a dim view. The global international diplomacy and law ic zones of both the United States commons is threatened by the lack of come into play. and Russia. settled, enforceable norms in terms The modern environmental era is He also guided to completion of stewardship or sustainable devel- still very young in the great scheme agreements on scientific cooperation opment or exploitation. of things, no more acutely than in with the Soviet Union, management The traditional textbook respons- international environmental law. It is of the Porcupine caribou herd which es to the Tragedy of the migrates in and out of the Commons have been either Arctic National Wildlife Negotiating Environment and privatization or regulation Refuge and across the borScience: An Insider’s View of of the resources, although der into Canada, and an International Agreements, from the research of Elinor Osagreement linking human Driftnets to the Space Station, trom of Indiana University rights and environmental by Richard J. Smith. Resources has revealed that there are issues. for the Future; 167 pages; actually a plethora of colSmith discusses each $27.95 laborative approaches to negotiation in a separate resources management alchapter, within which he ready in play around the also divines lessons from world. each case. He concludes the Ostrom, who earlier book with a summing up of this year became the first all the lessons learned and woman to win the Nobel prize in fortuitous that Richard J. Smith, one offers some critical observations on economics, has demonstrated that of America’s most experienced prac- the handling of negotiations on the user-managed fish stocks, pastures, titioners in the field of international Kyoto Protocol that are of timely woods, lakes, and groundwater ba- environmental and scientific diplo- import. To that end, Smith’s story sins, in many countries and cultures, macy, has written his account of the is quintessentially political, but not often work out better than standard negotiations for several recent break- partisan, in the service of sound scitheories predict. Resource users are through agreements and treaties that ence, policy, and law. able to establish norms of behavior, paved the way for new approaches to “To conclude a viable environsophisticated rules for decisionmak- managing global resources. ment or science agreement, all sides ing, and enforcement mechanisms. Smith served in the U.S. Coast in a negotiation need to be convinced Scale, however, does matter, be it Guard for four years before joining that the commitments being undergeographic, demographic, or indus- the Foreign Service. He held a variety taken are based on sound science as trial. In the case of transboundary of permanent and acting positions it is understood at the time of the neatmospheric pollution or ocean fish- at the State Department, eventually gotiation, while recognizing that in eries, implementing a strategy of col- becoming principal deputy assistant most instances the relevant scientific laborative management simply does secretary in the Bureau of Oceans knowledge is still evolving,” he says. A HEALTHY RESPECT Science, the Environment, Political Reality L Page 6 ❧ T H E E N V I R O N M E N T A L F O R U M Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 The politics is both antecedent to and inherent in the intergovernmental process leading up to the negotiations with other nations. Sustained interaction with stakeholders such as fisheries interests, NGOs, industrial companies, and congressional staff is essential. “Much of the most important work in reaching an international agreement takes place before a U.S. negotiator begins formal talks with his or her foreign counterparts,” Smith says. “It helps greatly if the U.S. negotiator is named early and is engaged throughout the interagency process.” Smith believes that keeping in touch with both Alaskan fishermen and concerned environmental groups proved critical to maintaining Senate support in the case of the driftnet agreement with Japan, even in the face of hostility from the imposing senator from Alaska, Ted Stevens. Smith detected trouble for the Kyoto Protocol from the very beginning. “For example,” he notes, “before the Kyoto meeting, a designated U.S. chief negotiator did not develop over time a productive dialogue with Congress and with the domestic groups that would be affected by the protocol.” Smith’s approach to international negotiation counters the stereotype of diplomats who do not care about or understand public attitudes. Instead, he offers a how-to-manual on conducting high-level diplomacy in a democratic mode with integrity and a healthy respect for science, the environment, and political realities. Nineteenth Annual ELI Eastern Boot Camp on Environmental Law® November 10-12, 2010 Offices of K&L Gates Washington, DC “The faculty and curriculum are top notch. I am going back to my firm to find out why more environmental associates have not been to Boot Camp.” “A very good course that will be greatly helpful to me in beginning my environmental law practice.” G. Tracy Mehan III is Principal with The Cadmus Group, Inc., an environmental consulting firm. He is also an Adjunct Professor at George Mason University School of Law. He may be contacted at [email protected]. Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 M ay / J une 2 0 1 0 ❧ Page 7 Th e By Margaret Kriz Hobson Finally, Real Toxics Safety Regulation? A t a time when the climate change debate has nearly eclipsed congressional interest in other environmental issues, Senator Frank Lautenberg (DNew Jersey) is putting the finishing touches on a bill aimed at protecting the public from potentially dangerous chemicals found in everyday products. Lautenberg is proposing to overhaul the Toxic Substances Control Act, the 34-year-old law that contains so many loopholes, according to the Government Accountability Office, that federal regulators have been unable to use it to control hazardous chemicals. The toxics law allows chemical makers to market new substances without first proving that they are safe. As a result, roughly half of the applications for new chemicals that the Environmental Protection Agency receives under TSCA contain no scientific safety studies, according to a February report by EPA’s inspector general. Once a chemical is in commercial use, regulators can’t require companies to test the substance unless they can prove it presents a significant risk to public health. Roughly 80,000 chemicals are in commercial use, but only 200 have been required to be tested. The law’s impotence has been apparent since 1989, when EPA tried to ban some uses of asbestos based on dozens of studies linking the chemical to deadly respiratory illnesses. Two years later, however, a federal court Fe de r a l Be at ruled that ambiguities in TSCA pro- to use that data to determine which hibited the ban. At the time, Congress chemicals should be extensively tested shrugged off calls to strengthen the for safety. The public advocacy group law, leaving EPA regulators with little Safer Chemicals Healthy Families power. wants lawmakers to phase out the use But in recent years, Americans have of a category of chemicals known as become increasingly alarmed about “persistent, bioaccumulative, and toxthe dangerous chemicals found in ic” substances, which include dioxin, consumer products. “The American mercury, lead, and cadmium. people are more and more concerned Meanwhile, the bad publicity trigabout chemicals ending up in their gered by the reports has convinced bodies,” Lautenberg, the chairman chemical makers and oil and natuof the Senate Subcommittee on Su- ral gas companies that provide the perfund, Toxics, and Environmental building blocks for most chemicals to Health, argued at a recent hearing. support changes to TSCA. Industry “And parents in particular are dis- executives also worry that EPA’s inmayed that the government is power- ability to regulate problem chemicals less to require testing of chemicals that has opened the door to state and local are going into our children’s bodies.” governments, who are passing a patchThose fears were heightened late work of conflicting laws that will be last year when the Centers for Dis- expensive for the companies to meet. ease Control and Prevention reported However, the manufacturers favor a that hundreds of potentially danger- more-limited, chemical-by-chemical ous chemicals used in fire retardants, approach to controlling hazardous plastic hardeners, and substances. non-stick coatings At the recent All of the parties in the hearings, Lautenberg were found in huchemical safety debate described his upcomman blood and urine samples. agree that the time has ing bill, known as the All of the parties Kid-Safe Chemicals come to revamp TSCA Act, as “an invitation involved in the chemical safety debate agree for all to play a part.” that the time has come to revamp He called on Republicans to come TSCA and the Obama administra- to the table to help negotiate a final tion ranks modernizing the chemical package. A similar measure is expectsafety law as one of its top priorities. ed to be introduced in the House Last fall, EPA Administrator Lisa by Representative Bobby Rush (DJackson announced a set of principles Illinois), who chairs the House Enfor modernizing the statute. Jackson ergy and Commerce subcommittee asked Congress to require manufac- on commerce, trade and consumer turers to prove that their chemicals are protection. safe before being allowed to market Lobbyists from both sides of the them. She also asked for the authority issue had hoped to begin hammering to regulate chemicals that do not meet out compromise chemical safety legisscientifically set safety standards. lation early this year. But they concede Public health groups and environ- that the climate change debate has mentalists cite studies on the failings made it nearly impossible for Congress of the toxics law as evidence that the to concentrate on other environmenCongress should give the agency even tal priorities. As a consequence, expect more powers to control chemical safe- the chemical safety bill to be waiting in ty. At a February hearing, Kenneth the wings for next year. Cook, president of the Environmental Working Group, called on Congress Margaret Kriz Hobson is the environment and to authorize extensive monitoring of energy writer for the National Journal. She can chemicals in adults and newborns and be reached at [email protected]. Page 8 ❧ T H E E N V I R O N M E N T A L F O R U M Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 COMING SOON AIR POLLUTION CONTROL LAW 2ND Edition Arnold W. Reitze, Jr. The most comprehensive, up-to-date guide to and analysis of the Clean Air Act (CAA) will be published in 2010 by the Environmental Law Institute. Authored by University of Utah Prof. Arnold W. Reitze, Jr., this second edition of Air Pollution Control Law explains the legislative provisions, regulatory requirements, and court decisions that comprise the body of air pollution control law. In 20 detailed chapters, with over 20,000 useful references, Professor Reitze provides a thorough, understandable guide to the legal, technical, scientific, and policy issues surrounding the CAA. No other book so thoroughly summarizes in one volume the complex yet vitally important maze of statutory provisions, regulations, and permitting requirements that characterize CAA implementation. Every aspect of air pollution control policy and law, including contemporary implementation issues and developments, is discussed in detail, and numerous practice and compliance tips are provided. The book is designed and organized to both facilitate an understanding of the Act and its requirements and to provide guidance on methods of compliance and enforcement. The book includes completely up-to-date discussions of current controversial issues such as: greenhouse gas controls; utility emission regulation; the "grandfathering" of existing facilities; and mobile source emissions. Arnold W. Reitze Jr. is a professor of law and a member of the Institute for Clean and Secure Energy at the University of Utah. He has had a distinguished career consulting and representing for governments and professions within a broad range of environmental law. He was formerly the J.B. and Maurice C. Shapiro Professor of Environmental Law and Co-Director of the Environmental Law Program at George Washington University Law School. To order, call 1-800-621-2736, or visit www.eli.org ISBN: 978-1-58576-153-1 800pp $109.95 ELI Associates receive a 15% discount. A rou n d By John Pendergrass Growth and Agency Roles in the States N ew Jersey’s new commissioner of environmental protection, Bob Martin, is planning to appoint an assistant commissioner for economic development, which has stimulated discussion in the state about whether it is appropriate for DEP to have a high official focused on growth. Martin acknowledges that the “primary role of DEP is to protect the environment and natural resources in the state; that’s our No. 1 role, and I see economic development as a secondary role. In the past, the DEP has hindered economic growth in a lot of cases and . . . everybody has a DEP story.” His vision of the role of the department in promoting economic development is through green energy and issuing DEP permits as quickly as possible. Some have a different perspective. The head of the environmental section of the Office of Legislative Services, an arm of the New Jersey legislature that drafts bills and whose staff is nonpartisan and prohibited from taking positions on matters before the legislature, notes that the law authorizing the department says nothing about promoting the economy. The law directs DEP to protect the environment, prevent pollution, and conserve natural resources. In fact, DEP was created on Earth Day in 1970 when the Department of Conservation and Economic Development was split up and the economic development functions t h e Stat e s were given to other agencies. This can failed to find any other environmental be viewed as an indication that eco- agencies with a similarly high official nomic development was intended to whose duties are primarily devoted to be removed from DEP’s authority. economic development. Nor did this Martin’s vision of the department’s search reveal environmental agencies role in economic development does that have economic development as a not appear to be inconsistent with its primary program. An assistant comhistory or authorizing language. He missioner of environmental protecexplains the new assistant commis- tion for economic development will, sioner’s role in terms of existing DEP therefore, be something new. programs and responsibilities — green It may not be all that different, energy, permitting, and policy. however, from what some other One of his previously announced state environmental agencies are initiatives is a one-stop office to assist doing. Many agencies promote permit applicants with the process, smart growth and virtually all proa function that one DEP employee mote cleanup and redevelopment of said currently exists but is far down brownfields. Neighboring Pennsylvain the bureaucracy. Nor is permit nia, under Democratic Governor Ed reform necessarily a partisan issue; Rendell, has two deputy secretaries the previous governor, a Democrat, with duties that include economic had established a task force to review development — one for commuDEP’s permitting process and Gover- nity revitalization and local governnor Chris Christie, a Republican who ment support and one who heads appointed Martin, is considering the the Office of Energy and Technology recommendations of the task force. Development. The former manages As further evidence that linking large scale community revitalization permitting and economic develop- projects while the latter is responsible ment is not a radical for developing state concept, New Jersey A high level official for energy policies and Future, a nonpartifor supporting ecosan organization ad- economic development nomic development vocating for smarter initiatives related to would be something growth, sponsored energy, among other new in the states a panel on how to duties. achieve meaningful The title assistant permit reform at its recent statewide commissioner of environmental proRedevelopment Forum. tection for economic development Martin emphasizes linking the may at first seem odd, but Commisenvironment and the economy. “I re- sioner Martin makes a good case for ject the premise that we must choose the value of such a post and how it between a healthy environment and can fit within the statutory mandates a vibrant economy,” he says. Many of DEP. His explanation of the assisenvironmentalists agree with this sen- tant commissioner’s duties suggests timent, including Richard Webster, that they will be within the broad amlegal director of the Eastern Environ- bit of existing department activities, if mental Law Center, a nonprofit public elevating some of those to new promiinterest law firm in Newark. “There is nence. But that is certainly among the no dichotomy between a good envi- prerogatives of an agency head. This ronment and a good economy,” he is another state experiment that keeps says. “A good environment goes with environmental policy vital. a good economy, and you can’t have a good economy if you don’t have a John Pendergrass is Director of ELI’s good quality environment and an ef- Center for State, Local, and Regional Envifective DEP.” ronmental Programs. He can be reached at A quick review of other states [email protected]. Page 10 ❧ T H E E N V I R O N M E N T A L F O R U M Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 I n By Richard Lazarus 40 Years Without Scoring a Win M y first essay in this space, published 15 years ago this spring, had a title that could be used again for this column: “A Lean Green Docket This Term.” Then, as now, the Supreme Court followed up a term that was marked by a disproportionately large number of environmental cases with a term with almost none. On April 27, the second to last oral argument day, the Court will have heard argument in Monsanto v. Geertson Seed Farms, which is the one and only classic “environmental law” case that the Court will be hearing during the entire term. (Disclosure: I am serving as co-counsel for the environmental respondents.) At issue in Monsanto is the award of a permanent injunction based on a violation of the National Environmental Policy Act. Greens, led by the Center for Food Safety, challenged the federal Animal Plant Health and Inspection Service’s decision to deregulate genetically altered alfalfa seeds without first preparing an environmental impact statement. The district court agreed that the federal agency had violated NEPA, and both vacated APHIS’s decision and issued a permanent injunction. Neither the federal agency nor industry appealed the merits of the NEPA ruling or the vacatur, and instead challenged only the validity of the permanent injunction. If history were to repeat itself in t h e C ou r t s Monsanto, there is not much doubt es, however, offer the possibility of a where Las Vegas oddsmakers would different outcome this time. First, one be establishing the betting lines. The reason given for the federal governSupreme Court has previously decid- ment’s perfect record in NEPA cases is ed 16 NEPA cases on the merits since the care that the solicitor general has President Richard Nixon signed the taken to seek Supreme Court review law 40 years ago. Environmentalists only in cases that are not only imporhave been the respondents in each of tant, but also winnable. In Monsanto, those cases, having won in the lower however, the SG did not seek certiorari courts, and therefore they had every- on behalf of the federal agency, which thing to lose in the High Court. And, had lost below. Industry intervenors that is precisely what has happened. filed the only cert petition, which the They have lost all 16 cases. And, add- government opposed. To be sure, the ing insult to injury, environmentalists SG agreed with industry intervenors did not receive the vote of a single jus- that the lower courts had erred, and tice between 1976, when the Court now joins industry in the briefing on decided Kleppe v. Sierra Club, and No- the merits. But the federal governvember 2008, when the Court decid- ment’s opposition at the jurisdictional ed Winter v. Natural Resources Defense stage may also say something about its Council. views of the strength of petitioners’ leNow, that’s quite a streak. It re- gal arguments. minds me of the Uni High School Another advantage enjoyed by enbasketball team’s losvironmental responing streak of 96 games in Monsanto is Environmentalists have dents between February expert Supreme Court lost all 16 NEPA cases counsel (present com1974 and November 1979 — a streak that on the merits, boding ill pany excluded). The I prefer not to recolrefor this term’s decision environmental lect because I was not spondents retained good enough to play as pro bono counsel on the Uni team. But even Uni High for the preparation of the merits brief did not lose all those games without and the presentation of oral argument scoring a single basket. Larry Robbins, who is the lead partner Nor does the appellate court of ori- of a small D.C. boutique law firm that gin, standing alone, suggest a different specializes in appellate and Supreme outcome. The Monsanto case hails from Court advocacy. As I have reported the Ninth Circuit, and the Supreme in prior columns, the federal governCourt in recent decades has seemed al- ment has long enjoyed the advantage most to take extra pleasure at reversing of being represented in the Court by Ninth Circuit rulings favorable to en- the SG, and industry has in recent vironmentalists. Making matters even years increasingly retained expert priworse, the environmental respondents vate sector counsel to their significant in Monsanto will not have the potential advantage in environmental cases. In support of Justice Stephen Breyer, who Monsanto, the playing field will be while on the First Circuit wrote favor- evened some. ably about the availability of injuncThe Court will likely decide the tive relief for NEPA violations. Justice case during the final weeks in June, Breyer is not participating in the case just before recessing for the summer. because his brother, Charles Breyer, Then we will learn whether environwas the district court judge who ruled mentalists lose No. 17 or instead make in favor of the environmental plaintiffs history. and awarded them permanent injuncRichard Lazarus is Justice William J. Brennan tive relief. Differences between the Monsanto Jr. Professor of Law at Georgetown. He can be case and prior High Court NEPA cas- reached at [email protected]. Page 12 ❧ T H E E N V I R O N M E N T A L F O R U M Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 NOW AVAILABLE The Clean Water Act and the Constitution 2nd Edition by Robin Kundis Craig In this second edition of a landmark book, author Robin Kundis Craig explores the ways in which constitutional requirements impact on water quality regulation through a review of the Clean Water Act and recent court and administrative decisions. This second edition thoroughly updates the first edition with particular emphasis on the controversial 2006 Supreme Court decision Rapanos v. United States. This case has reignited a vociferous debate among lower courts, in Congress, and among regulators about the reach of federal jurisdiction over water pollution, which has resulted in enforcement difficulties and much uncertainty. This second edition helps explain these conflicts and the underlying constitutional issues at play. “One of the most revolutionary statutes ever enacted by Congress, the Clean Water Act has produced remarkable progress over the past 25 years. Much of that progress, however, is threatened today — and some of those threats come from a number of recent Supreme Court decisions. Professor Craig’s book presents a thorough, straightforward examination of the Clean Water Act’s approach to delegated federalism and the constitutional provisions that have both empowered and bedeviled the statute.” —William L. Andreen Clarkson Professor of Law University of Alabama School of Law “Given the current legal flux, there is no better time for the publication of an authoritative guide to the constitutional issues with which the Clean Water Act is entangled. And there is no better guide to this subject than the new edition of Robin Kundis Craig’s book on this complicated subject. It is, now and forever, a significant contribution to the canon.” —G. Tracy Mehan, III Former Assistant Administrator for Water, U.S. E.P.A. and Adjunct Professor at George Mason University School of Law Spring 2009 • 978-1-58576-138-8 • 300 pp. • $49.95 ELI Associates receive a 15% discount 2000 L St., NW • Suite 620 • Washington, DC 20036 Visit www.elistore.org to order online or learn about all our deskbooks and other publications. Th e By Elliott P. Laws Expecting the Unexpected W hen dealing with environmental issues you should prepare yourself for surprises. That this has also been an axiom of human existence for centuries is clear when we read the words of the pre-Socratic Greek philosopher Heraclitus (c. 535 BC–475 BC), who wrote, “If you do not expect the unexpected, you will not find it.” I learned that early in my tenure at EPA in the 1990s when results that were expected by me and my staff turned out to be quite different when they came in. Two cases spring immediately to mind. The first involved the Brio Superfund Site in Harris County, Texas. Brio was a classic example of some of the earlier sites listed on the National Priorities List. It was a refinery that reclaimed petrochemicals from tank bottoms, tars, and residues from other off-site sources. Materials for reclamation as well as the wastes from Brio’s own processes were stored in open pits at the site. When I became assistant administrator for the Office of Solid Waste and Emergency Response, the Record of Decision had long been signed. The remedy called for the use of a rotary kiln incinerator and was about to be implemented. We were receiving community complaints about odors emanating from the site around the time excavation of wastes from one of the pits began. Temporary enclosures were built over the waste pits to Bus i n e s s of E n v i ron m e n t contain emissions during excavation. of clean fill. A series of yard and road This material was stockpiled for the cleanups ensued, but the expectation trial burn incineration of the wastes. that the school was putting children at I had been assured by the region risk turned out not to be the case. that all tests had been performed to enWhat led me to remember these sure that the surrounding community long-ago instances is that we have would be safe during the incineration recently seen EPA embark on efprocess. However, we had just institut- forts to take new or fresh looks at the ed a major commitment to enhanced chemicals and the practices where public involvement and an organized the weight of scientific evidence community was presenting convinc- points convincingly to a “no enviing evidence that they could be at risk. ronmental impact” conclusion. The Add to this the strong objections to recently announced Chemical Aconsite incineration at Superfund sites tion Plan for Bisphenol A and EPA’s which had been sweeping the nation, congressionally mandated study into and I felt we needed to do more. the hydrofracking process for oil and Sending EPA’s Emergency Response natural gas extraction (and carbon Team from Edison, New Jersey, to the sequestration in the future) come to Brio site with its mobile air monitor- mind as examples. ing equipment gave us our first surCaution should be the watchword prise: the community was right. I still for the advocates of regulation, deremember the exact words of the mes- fenders of the status quo, and EPA, sage I received: “You can’t put a shovel which must ultimately decide what to into those waste pits without setting do. I urge all of these parties to take off the neighborhood air monitors.” to heart the lessons I learned: from This led to further characterization of Brio — the predictions of the experts the waste material onsite, and in 1997 sometimes turn out to be wrong; from a capping remedy was Agriculture Street — instituted. I had been most obvious exThe view that the school the told to expect that pectations sometimes was putting children nothing would come turn out not to be of the trip except conat risk turned out not realized. firmation of the seIt will either be the to be the case lected remedy. advocates for change The other case inor those supporting volved the Agriculture Street Landfill the current condition in how BPA and in New Orleans. Here, again, due to hydrofracking are addressed who will public comments and environmental likely experience Heraclitus’ unexpectjustice concerns, we were looking at a ed result. I do not know where EPA site that the community wanted placed will ultimately come out on these two on the NPL. Lead in soil at residents’ issues; however, the agency is clearly homes had been documented, but indicating that it believes a different across the street from those houses was direction is warranted — and that an elementary school that had been could be where the surprises surface. constructed directly on top of the old Perhaps Oscar Wilde’s slightly more landfill. We were concerned for the modern version should be the agency’s safety of children in the school and on mantra in these instances: “To expect the playground and put in place an ex- the unexpected shows a thoroughly pedited testing regime in order to fast- modern intellect.” track the site for NPL consideration. Contamination was found sufficient E l l i o t t P. L a w s , f o r m e r E P A to justify a listing. However, there were Assistant Administrator and former President no health or environmental problems for Safety, Health & Environment of Texaco, is detected at the school, which had Senior Counsel at Crowell & Moring. He can been built on top of three to five feet be reached at [email protected]. Page 14 ❧ T H E E N V I R O N M E N T A L F O R U M Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 FALL 2009 CLIMATE CHANGE DESKBOOK by Tom Mounteer The Climate Change Deskbook is a comprehensive guide and reference to the law of climate change for practicing attorneys and environmental professionals. The first section of the Deskbook is an in-depth analysis of the laws, regulations, and policies that shape our increasingly carbon-constrained world. Readers benefit from the perspective of attorneys with vast experience practicing in environmental law explaining how the fast-moving pieces of the climate change puzzle fit together. The second section of the Deskbook provides those reference materials that you need at your fingertips to help answer your climate questions. “Tom Mounteer and the lawyers of Paul Hastings are uniquely qualified to address [climate change] because of their broad experience with environmental law combined with an expert knowledge of the business and tax law germane to the rapidly evolving field of climate change law. This deskbook is an outstanding work. Hopefully it will be the first of many editions that will be needed as the field expands and matures.” — Arnold W. Reitze, Jr., Professor of Law, S.J. Quinney College of Law, University of Utah, and Professor of Law Emeritus, The George Washington University Law School About the Author Tom Mounteer is a partner in the Washington, DC, office of Paul Hastings, where he co-chairs the firm’s environmental practice. Since 1997, he has been an adjunct professor at the George Washington University Law School’s Master in Environmental Law Program. September 2009 • 978-1-58576-148-7 • 430 pp. • $119.95 ELI Associates receive a 15% discount “For a foreign official, understanding the complexities of environmental law generally, and climate change in particular, within the U.S. system can be daunting. This book provides a great foundation for understanding existing and emerging legal issues. It is lucid and wellorganized, making it a practical and approachable deskbook.” —Jason Tolland, Counsellor and Program Manager, Environment and Energy, Embassy of Canada Visit www.elistore.org to order online or learn about all our deskbooks and other publications. 2000 L St., NW • Suite 620 • Washington, DC 20036 A n By Robert N. Stavins Two Countries Key To Progress in 2010 M y travels over just the past two years on behalf of the Harvard Project on International Climate Agreements have taken me (in alphabetical order) to Bali, Beijing, Bonn, Brussels, Canberra, Copenhagen, Geneva, London, Mexico City, New York, Paris, Poznan, Rome, Tokyo, Seoul, Venice, Warsaw, and Washington, among many other locations. Along the way, I have met with senior government officials, business leaders, academics, and representatives of green NGOs to talk about opportunities for the design and implementation of a post-Kyoto international climate regime that is scientifically sound, economically rational, and politically pragmatic. Of course, over this same time period, there have been many ups and downs for the prospects of establishing a reasonable post-Kyoto international climate policy architecture. Most recently, the 15th Conference of the Parties of the UN Framework Convention on Climate Change, which met in Copenhagen in December, produced two significant outcomes. The key substantive outcome, of course, was the Copenhagen Accord. The key institutional outcome was speculation that the UNFCCC may not be the best venue going forward for productive negotiations on climate change. These dual results point to the E c onom ic P e r spe c t i v e special importance of two nations in account for nearly 90 percent of international climate policy develop- global carbon dioxide emissions, may ments, especially this year. I’m not be somewhat limited by the fact that referring to China and the United is was created by and is chaired by States (despite the fact that they are, the United States, a nation with conof course, the world’s two leading strained credibility on climate issues emitters of carbon dioxide). Rather, among some countries, particularly I am referring to South Korea and in the developing world. Mexico. Why? The G20, which brings together First, these two nations are unique the world’s largest economies, focuses in being both long-time members on economic as well as other global (South Korea since 1996, Mexico issues and consists of almost the same since 1994) of the Organization of set of nations as the MEF, likewise Economic Cooperation and Devel- accounting for about 90 percent of opment and members of the group global emissions. The G20 could of non-Annex I countries under the thus be an exceptionally promising Kyoto Protocol, which have no direct supplementary venue for meaningful commitments under that interna- and realistic climate discussions. tional agreement. The OECD comes And in November of this year, the as close as anything to defining the G20 will be hosted by South Korea. set of industrialized nations. This gives the Seoul government a Thus, South Korea and Mexico special role in setting the agenda for have their feet planted firmly both the discussions and presiding at the in the developed world and the de- sessions. The meetings there will come veloping world (a fact just two weeks before that is readily apparent the 16th Conference of South Korea and on even brief visits to the Parties of the UNthese nations). This FCCC, which will take Mexico will host gives them remarkmeetings that could place in Cancún, Mexable credibility with ico. Thus, the Mexican help climate policy the two key blocks in government is also in a international climate key position this year. negotiations. That, on its own, would Add to this the fact that both South be of considerable importance, but Korea and Mexico have been particuthere is another reality that makes larly creative in their domestic climate this of even greater significance (and policy initiatives and international opportunity) this year. proposals over the past year. Coming out of Copenhagen, Together, South Korea and Mexico, many participants in the interna- share credibility in the developing and tional climate negotiations (as well developed worlds, and likewise share as informed observers) noted that the unique international legitimacy as the UNFCCC has real limitations as the hosts and presidents of the G20 and sole venue for future climate nego- COP-16 in 2010. This is why these tiations: too many countries (192), two countries have a remarkable opexcessively stringent requirements for portunity to provide leadership of the agreement (unanimity), and a distinct international community and make tendency to polarize debates between real progress on negotiations to address developed and developing countries. the threat of global climate change. Two other, potentially supplementary venues stand out as promising: Robert N. Stavins is the Albert Pratt Profesthe Major Economies Forum and the sor of Business and Government at the John F. Kennedy School of Government, Harvard G20. The MEF, which has hosted pro- University, and Director of the Harvard Enductive discussions among 17 key vironmental Economics Program. He can be countries and regions that together reached at [email protected]. Page 16 ❧ T H E E N V I R O N M E N T A L F O R U M Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 NOW AVAILABLE Nanotechnology Deskbook Lynn Bergeson & Tracy Hester Nanotechnology promises to have far reaching impacts on the economy, including offering technological advances in pollution control. While over 200 products that use nanomaterials are already in the marketplace, minimal data exist on the health and environmental effects of nanomaterials. This poses significant questions for companies, regulators, consumers, and lawyers. The Nanotechnology Deskbook guides the reader through the application of existing law and regulations to nanomaterials by exploring domestic laws and regulations and considering developments in the international context. It includes a focus on special business considerations when this technology is involved and concludes by discussing the development of an effective environmental governance structure for nanotechnologies that protects human health and the environment without stifling the development of this new field. Price $109.95 (ELI Associates receive a 15% discount) • Softcover “...This is not a scientist’s book. Those who can’t tell a quantum dot from a fullerene need not be intimidated. Instead, this timely book looks carefully at the key statutes that govern aspects of nanomaterials throughout their lifecycles...There is simply no other single source that provides such a comprehensive overview of the governance structure and hot issues in nanotechnology.” Mark Duvall Managing Counsel The Dow Chemical Company “This is a ‘must have’ guidebook through the legal maze of the nanotechnology revolution...No lawyer, businessperson, policymaker, or government official can afford to be without this Deskbook.” 40 th Julia A. Moore Deputy Director Project on Emerging Nanotechnologies Woodrow Wilson International Center for Scholars ANNIVERSARY 2009 2000 L St., NW Suite 620 Washington, DC 20036 Visit www.elistore.org to order online or learn about all our deskbooks and other publications. S c i e nc e By Craig M. Pease Mixing Smelt, Salmon, and People I n California’s Sacramento–San Joaquin Delta, natural ecosystems and human institutions have become hopelessly intertwined. The delta is habitat for the endangered winter-run chinook salmon and threatened delta smelt, and it also provides drinking water for two-thirds of California’s 38 million people. Natural processes (e.g. snowpack in the Sierras) and the management actions of government agencies and courts (administering a complex system of dams, canals, and levees) simultaneously control the water flows critical to both fish and people. The entanglement of the natural and human greatly increases the complexity of managing the delta. This was brought home forcefully in two recent decisions from the Eastern District of California, one earlier this spring in the Consolidated Salmonid Cases, and one last fall in the Delta Smelt Consolidated Cases. Both disputes arose when the Bureau of Reclamation wanted to make management changes in the Central Valley Project, its sprawling hydrological system. But first, as required by the Endangered Species Act, it had to formally consult with the U.S. Fish and Wildlife Service (for the smelt) and National Marine Fisheries Service (for the salmon). The services’ reviews found that the bureau’s planned changes would jeopardize these fish and, as required by the ESA, they recommended reasonable and prudent alternatives to a n d t h e L aw mitigate the harm. Not surprisingly, on both continues to evolve. these alternatives would restrict water Especially instructive are two earlier withdrawals for human use. cases, also in front of Judge Wanger, and Several California districts that pur- also involving ESA consultations bechase water from the bureau and supply tween the bureau and services over the it to municipalities and agricultural us- impact on smelt and salmon of planned ers sued, on the grounds that no envi- changes in the Central Valley Project. ronmental impact statement had been In 2007, in NRDC v. Kempthorne, the completed. They complained particu- court ruled illegal the opened-ended realarly of the lack of any analysis of the sonable and prudent alternative recomimpact of the recommended reasonable mended by the Fish and Wildlife Serand prudent alternatives on the hu- vice, whereby a team of scientists would man environment. In both cases, Judge periodically review delta smelt data and Wanger ruled in favor of the water dis- recommend management changes, but tricts. The agencies started out focused which provided no guarantees of any on fish, but found that the law required real and enforceable agency action if them to look simultaneously at fish and smelt numbers decreased. This was too human needs. much management flexibility. Then just This web of natural and human pro- a year later, in Pacific Coast Federation of cesses has also ensnarled science. In the Fishermen’s Associations v. Gutierrez, a delta, it is no longer sensible or even parallel case involving chinook salmon, possible to study entirely natural phe- the same court found that a reasonable nomena (e.g. delta smelt distribution and prudent alternative establishing under natural water flow and salinity fairly broad upper and lower bounds on regimes). Rather, most relevant science permissible agency actions (e.g., on wais done against a backter flow rates) passed drop of water flow muster, even though In California, a web regimes controlled sithe bureau reserved multaneously by natu- of natural and human some management ral processes and huflexibility within these processes has also man institutions (e.g. bounds. ensnarled science effect on delta smelt of Alas, there is one withdrawing a certain critical, if somewhat amount of water, from a certain loca- ancillary point. In theory, increased tion, at a particular time of the year). management flexibility should lead to Science has merged with adaptive man- improved science, more knowledge, agement, characterized succinctly by and better results. In practice, it often Kai Lee: “Policies are experiments; learn also opens the door to political influfrom them.” ence on natural resource management. Strictly from the standpoint of sci- This all too frequently runs counter to ence, adaptive management is emi- good science. nently sensible. Both natural and huAs the natural and human worlds man systems are hugely complex. It is have become increasingly entangled, so impossible to know a priori what man- to have science and law. Now scientists agement options are best. But just how work, not surrounded by nature, but much management flexibility does the deep within human institutions. The law allow, and in exactly what circum- evolving case law that sets limits on the stances? decisionmaking flexibility of human In the delta, the ability of the agen- institutions is having a wider impact on cies to pursue adaptive management is science than is commonly understood. limited both by standards on agency action imposed by environmental statutes Craig M. Pease, Ph.D., a research scienand by binding enforceable provisions tist, teaches at the Vermont Law School Enof water delivery contracts between the vironmental Law Center. He can be reached bureau and water districts. The case law at [email protected]. Page 18 ❧ T H E E N V I R O N M E N T A L F O R U M Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 Th e By Bruce Rich The First Habitat and Species Laws W e like to think that environmental protection is a recent invention, and that the United States has been a pioneer, establishing national forests and parks more than a hundred years ago, then the Endangered Species Act 37 years ago. But in India in the 4th and 3rd centuries B.C. there were arguably more advanced provisions for habitat and species protection than anything in the U.S. until the 1970s. The great Indian Emperor Ashoka (his reign was from 268–239 B.C.) commanded a huge empire that included most of today’s India, Pakistan, and Afghanistan. Following a particularly bloody war, Ashoka converted to Buddhism and promulgated a series of edicts based on non-violence, religious tolerance, and protection of animals and habitat. These laws were inscribed in stone throughout his realm. Many can still be seen. Ashoka’s Fifth Pillar Edict is nothing less than a species and forest protection law. It lists all of the kinds of animals declared as exempt from slaughter — including turtles, bats, ants, ducks, geese, swans, doves, porcupines, squirrels, deer, lizards, rhinoceroses, and pigeons. In fact, all four-footed animals “which are not eaten and of no utility” were to be protected. He promulgated what we would call measures for habitat protection, declaring that “forests must not be set on fire either wantonly or for the destruction of life,” and that De v e l opi ng Wor l d the chaff in fields “must not be set on Service and of America’s first gradufire along with the living things in it.” ate school of forest management at On numerous fixed days other kinds of Yale, was a close friend of Theodore animals may not be destroyed and el- Roosevelt. He is widely viewed as the ephant forests and fish ponds are not to most eloquent spokesperson of his time be harvested. for multiple use management of natural Many of Ashoka’s species and for- resources. Pinchot literally coined the est protection measures were actually term conservation, defining it as “the first enacted by Kautilya (c. 350–283 use of the earth for the good of man.” B.C.), the chief minister of Ashoka’s This definition almost paraphrases the grandfather, the Emperor Chan- title — and underlying principle — of dragupta. Kautilya wrote a treatise on Kautilya’s great treatise, which views the statecraft and economics (the Arthasas- management of material wealth, detra, literally the “science of wealth”) in fined as “the earth inhabited by men,” which he advocates the establishment as the underlying priority of society and of protected woodlands, “one for each the state. kind of forest produce.” These include The essence of Pinchot’s approach hardwoods, reeds, fibers, leaves used for was rational use of resources for ecowriting, flowers used in dyes, and me- nomic and other ends, with careful atdicinal plants. tention to their stewardship. His friend Kautilya also advocated the creation John Muir later became his greatest of protected reserves “where all animals opponent, for Muir was one of the are welcomed as guests and given full first of what we would today call deep protection.” Of great importance too is ecologists, advocating the protection of the setting aside of special reserve forests nature as a value in itself. Ashoka’s apfor elephants, with the death penalty for proach to conservation builds on that poaching. Having a sustained supply of of Kautilya, but also transcends it in a elephants was a matter of state security, higher ethos of respect and care for all for military victory life, regardless of eco“depends principally nomic utility, an ethos When having a on elephants.” with which John Muir sustained supply of Kautilya enumerwould have agreed. ated a list of species elephants was a matter Interestingly, in “which should be propractice, the species of state security tected from all danand forest protection gers of injury.” These measures advocated by include, besides cattle, various kinds of both Kautilya and Ashoka are mostly birds and deer. Beyond the protection identical — showing that at least in anof specific species, Kautilya prohib- cient India, utilitarian economic manits cruelty to animals, forcing the of- agement and an ethical commitment to fender to pay fines and money for the protect animal life and habitat largely treatment and recovery of the injured coincided. beast. Even individual plants and trees — enjoyed protection, and if the scale of This column is adapted from Bruce fines is indicative, in urban areas they Rich’s new book from Beacon Press, rank higher than animals. All of this is To Uphold the World: A Call for A New to be overseen by special departments Global Ethic from Ancient India, with a of government, including a chief super- foreword by Nobel economist Amartya intendent of forest produce, a chief el- Sen and an afterword by Peace Prize ephant forester, and a chief protector of winner the Dalai Lama. animals and controller of slaughter. Kautilya’s approach might be com- Bruce Rich is an attorney and author who pared to that of the utilitarian conserva- has served as senior counsel for major tionists of the Gifford Pinchot school. environmental organizations. His email is Pinchot, the founder of the U.S. Forest [email protected]. Page 20 ❧ T H E E N V I R O N M E N T A L F O R U M Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 FORTHCOMING RCRA Permitting Deskbook by Susan M. McMichael ELR ORTER REP L LAW MENTA VIRON The Resource Conservation and Recovery Act (RCRA) THE EN is a complex area. The misinterpretation of its requirements goes to the heart of environmental compliance problems found by many. Problems may arise that cause major delays in processing permits and modifications, resulting in unnecessary costs not only for those seeking a permit, but also for the permitting kbook s e D authorities. The handbook provides a comprehensive, itting m r e P peer-reviewed overview of the substantive permitting RCRA requirements for treatment, storage, and disposal facilities and incorporates relevant legal research by identifying major administrative, federal, and state court decisions. About the Author el Michaty, LLC. M. Mc ri Susans Nuclear Secu mo Los Ala Susan M. McMichael is a former chair of the Western States Project, and representative on the National Association of Attorney Generals RCRA Federal Facility Task Force. She has clerked for the United States Court of Appeals for the Tenth Circuit and currently works for Los Alamos Nuclear Security, LLC. 2010 • 978-1-58576-132-8 • 570 pp. • $109.95 ELI Associates receive a 15% discount 2000 L St., NW • Suite 620 • Washington, DC 20036 TE STITU IN L LAW ENTA RONM ENVI Visit www.elistore.org to order online or learn about all our deskbooks and other publications. N 40 Years Ago and 40 Years From Now T he past few months have been a time of important commemorations. Last December 22 marked the 40th anniversary of the National Environmental Policy Act. On the same day we observed ELI’s 40th birthday. The 40th anniversary of the Clean Air Act followed in January, then in April four decades since the first Earth Day. On December 2 we will mark 40 years since the founding of the Environmental Protection Agency (which will be honored for its achievements at the ELI Annual Dinner on October 19). The past few months have marked two relevant anniversaries for me. Forty years ago, I wrote an article on high school dress code reform for the Ridgewood, New Jersey, Sunday Post, the first time I was paid to write on public policy. And with this issue, I mark 20 years in this space. I actually began writing for the Sunday Post before my dress code article. I was hired in October 1969 to cover high school football. The editor had engaged me over the telephone, not realizing I was still a student who had to be driven to the office by his mother. I remember well the first time I entered the newsroom and was shown to a desk with an Underwood No. 5 manual typewriter and given 45 minutes to peck out a 1,000-word game story. When I finished, my copy was turned over to the sports editors, who smoked stubby cigars and cut and paste with long shears and pots of rubber cement. Having survived that initiation, I was waiting for my mother to pick me up when Jim Jones, the editor-in-chief, put a fatherly arm around my shoulder and took me upstairs to the press. It was a noisy composing room with clacking linotype machines containing cauldrons of smoldering lead that was cast into type. Playing the mentor, Jim showed me how stories were made into the page, with the pieces that didn’t fit set to the side by the compositor for him to cut. o t i c e & C o m m e n t Jim could read the type even though it was in reverse. I swore to myself that I would learn how to read mirror-image type as an first step in my profession. As it turned out, I never learned to read in reverse. When I joined the Daily Princetonian two years later, the newspaper had just switched to what was called cold type. Keyboardists entered our copy onto punched ribbons, which were then fed into a machine that used gears, lenses, and translucent plastic strips to etch type onto photographic film. We developed the film in a darkroom and then pasted the long strips onto page mechanicals. When copy didn’t fit, it was an easy job to cut because the type wasn’t mirrored. But learning how to make paste-up mechanicals didn’t last, thanks to the personal computer revolution. By the mid 1980s, desktop publishing started taking over the industry, another paradigm shift. And by the mid 1990s, the internet began to put the printing press itself into retirement. Forty years ago, computers were huge main frames, used by major banks and universities, and code was entered into them using punched tape or cards; output was on wide striped paper with sprocket holes on the side. The very notion of using a keyboard and monitor to directly access a computer didn’t exist until the Apple II went on the market in 1976. Applications like spread sheets and word processing didn’t come around until later in the 1970s. Today, equivalent computing power can be had with a device that fits into your pocket and also can communicate with anyone in the world, instantly and for free, with pictures, text, and sound. High school sports stories are available on the web within minutes of the final gun, with no typesetter (nor newsroom editor) in the pipeline. The manual typewriter has been supplanted by the electric typewriter, then the desktop, then the laptop, then the netbook, and now the iPad. And the smoke filled room is only a memory. I doubt if any of these paradigm shifts could have been anticipated. Thank you for indulging me in this Page 22 ❧ T H E E N V I R O N M E N T A L F O R U M reminiscence, but there is a lesson in the tale of these last 40 years that is relevant to environmental law and policy. Forty years from now is the time horizon envisioned in international agreements and congressional legislation for the longterm goals of carbon reduction measures meant to ameliorate global warming. By 2050, humanity will need to operate with only 10 or 20 percent of the fossil-fuel-based energy input needed today, a huge reduction especially with projected increases in population. How we can do so is anybody’s guess, but it will have to depend on a paradigm shift in the economy and the technology that supports it. Forty years is a long time, and whether technology will make the necessary leaps — and, in particular how — is impossible to say. Paradigm shifts are revolutions, and revolutions are notoriously difficult to predict. Even when they can be anticipated to some extent, their contours are only visible in retrospect. During an ELI management retreat in 1993, we were shown a short film on paradigm shifts in technology. A main point of the video was the laughable slowness of Swiss watchmakers to convert to digital models. The Japanese were taking over the industry. Today, however, digital watches can be had for pocket change whereas Swiss chronometers sell for hundreds if not thousands of dollars, the more primitive and complicated — watchmakers actually use the word “complication” in a positive context to mean an added feature, like moon phases — the more expensive. And despite the trend toward miniaturization in almost everything else, the most popular watches are larger and heavier than average. They need to be wound daily and have windows so owners can ogle the archaic mechanism inside. The lesson here is that whereas in science paradigm shifts are always toward simpler models (the principle of Occam’s Razor) and become accepted by all, in society and the technology that enables it, shifts are not necessarily simple, nor obvious, nor linear, nor publicly supported. That knowing a revolution is in pros- Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 N pect is not enough to predict the future is a lesson for climate diplomacy and policymaking. There are numerous examples of paradigm shifts in technology that were unpredictable, either in assuming that a revolution was in store or not seeing one about to happen. In the 1800s, the telegraph and then the telephone created instant communication using the medium of wires. Then radio and later television leapfrogged those technologies by switching to broadcast. But in the 1970s, television moved to cables and in the 1980s telephones moved to cellular communication. In the 1990s radio and TV began to move to satellites. Now the latest revolution is completing the circle: high capacity fiber optic cables running into businesses and homes for TV, radio, and the internet. The video we saw in 1993 was on a VHS cassette, which supplanted the superior Betamax system, the opposite of what was expected. Going back a full 40 years puts us in the era of the 8-track tape, which was replaced by the cassette, then by the CD, then by the iPod. The iPod itself has evolved dramatically in the few short years since it was invented; now most models also have video and other capabilities, such as making phone calls and taking photographs. Phones with cameras and recorded music seemed an odd combination that wouldn’t catch on, but today they are standard. A final observation on technology: Forward leaps as described above not only are not linear nor predictable but sometimes fail to happen. The passenger airline industry began in 1929, and in 1969 the first jumbo jet went into service. But in the 40 years hence virtually nothing has changed in basic airliner design except refinements of the art. The Supersonic Transport passenger plane was shot down before it got off the drawing board — due to environmental reasons — and only a handful of SSTs were built. Congress killed the U.S. program in 1971. The year 1969 also saw the first moon landing and the release of 2001: A Space Odyssey. But in 1973 the spacefaring o t i c e & C o m m e n t nations abandoned manned trips beyond low earth orbit. Today the movie is laughably out of date. The paradigm shifts in air travel and aerospace both failed to happen. F Legislative branches during those years, continuing today. The judicial branch was also part of the mix, prodding rulemaking, filling out legislative and regulatory actions through case law, and affirming the role of agencies to implement Congress’s mandates in the Chevron decision. Today, we are in the curious position of possibly basing the most profound leap in technology imaginable by addressing global warming through EPA action based on a single court decision, Massachusetts vs. EPA, and language written in the Clean Air Act in 1970. Some analysts, like the authors of Super Freakonomics, expect technology to come to the rescue against global warming. They point out how in the early 1900s, “horseshit” threatened public health in American cities, but in a few years the advent of the automobile (then a fringe technology) completely eliminated the problem. The same will happen with regard to atmospheric greenhouse gases, they write. What they don’t admit, however, is that the automobile depended on enlightened policy, which funded the first highways in the 1930s and then the Interstate system in the 1950s. Whether car culture would have taken over otherwise is open to conjecture. Similarly, the airline and aerospace industries that made such leaps between 1929 and 1969 depended on a strong federal role in airport management and airspace regulation, plus the Apollo program. Now 40 years old, the Environmental Law Institute is embarking on a long range strategic planning exercise that will look forward to the next 40 years, called Environment 2050. Sensibly, ELI is unsure about being able to predict the far future and it is limiting the detailed plan to fleshing out a vision of the years ahead in the period from now until 2030. You can read about how successful that plan is in this magazine 20 years from now, but whether it still will be printed on paper or even edited by a human being is anyone’s guess. orty years from now, the year 2050, marks the time when humanity will have to largely abandon fossil fuels. Will technology be up to it? Will law be able to foster and manage such change? Sadly, as history shows not only can we not easily predict the advances in energy technologies that may or may not happen, we cannot predict the advances in what might be called the legal technology needed to foster needed technological leaps. After all, 40 years ago, modern environmental law didn’t exist, and 40 years before that, the very ability of the federal government to regulate the market was in doubt until there was a paradigm shift in the makeup of the Supreme Court. Something equivalently epochal needs to happen if humanity is to be able to face down climate change. The spate of environmental legislation that began 40 years ago was definitely epochal — the NEPA to CERCLA phase that lasted from 1969 to 1980. We then began a phase of reauthorization and fine tuning of these statutes, with major changes to the Clean Water Act, Endangered Species Act, Resource Conservation and Recovery Act, Superfund, and the Clean Air Act. That ended 20 years ago. I remember in 1990 holding a series of conclaves on which statutes would be reauthorized in the months following the CAA amendments. Both RCRA and the CWA seemed up for renewal and Superfund too, but we’ve gone 20 years without major environmental legislation, something no one would have predicted. Congress began taking itself out of the game with the first environmental laws, ceding to the new Environmental Protection Agency the promulgation of the rules that would carry out congressional mandates, and the speed of rulemaking became a major bone of Notice & Comment is written by the editor contention between the Executive and and represents his views. Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 M ay / J une 2 0 1 0 ❧ Page 23 U n s e e n h a n d Reducing Footprints Science, regulation, and environmentally preferable purchasing programs are intensifying, driving the move toward greener chemicals. A multi-part benchmark can help companies reduce business risk as they manage the transition Richard A. Liroff R educing the toxicity of manufactured products should be a core element of business strategy. It can lessen reputational and litigation liabilities, help avoid “toxic lockout” from the marketplace, and spur innovation. It can drive sales for environmentally preferable products, lower overhead costs when products subject to government hazardous waste laws are eliminated, and contribute to enhanced employee safety and productivity. Five years ago, the initial version of this benchmark was published as concern about toxic chemicals in consumer products and supply chains was beginning to coalesce. The measure was intended, as I wrote then, “to be an iterative benchmark, elaborated and refined over time [since] as companies develop innovative approaches to safer chemicals and substitution policies, they will raise the bar for acceptable and outstanding performance.” Companies can use this revised benchmark to develop an initial assessment of where they stand. For a deeper dive, more detailed guidelines will be available in 2010 from the Business-NGO Working Group for Safer Chemicals and Sustainable Materials. The Working Group has produced a set of “guiding principles for chemicals policy” whose eleRichard A. Liroff, Ph.D., is founder and director of the Investor Environmental Health Network. IEHN is a collaboration of investment managers that advocates for safer corporate chemicals policies to grow long-term shareholder value and reduce financial and reputational risks to companies. This article is adapted with permission from greenbiz.com. Page 24 ❧ T H E E N V I R O N M E N T A L F O R U M ments include “know and disclose product chemistry,” “assess and avoid hazards,” “commit to continuous improvement,” and “support public policies and industry standards.” The Working Group’s forthcoming guidelines will provide detailed suggestions for implementing the principles. The updated Corporate Toxic Footprint/Green Chemistry Benchmark has five core elements: First, corporate commitment. Firms need to signal the company’s commitment — preferably via a statement from the CEO — to lowering product toxicity by reducing or eliminating known or suspected high priority toxicants and promoting development of products created according to the principles of green chemistry. Second, data development. Companies need to adopt standard procedures for systematically reviewing the chemical composition of products and promote generation of toxicity data by suppliers. Third, capacity building and greening the supply chain. Companies should create information, training, and incentive programs to help implement safer alternative ideas. They should add “reduce inherent hazards” as a criterion for product formulation and chemical procurement, including a commitment to continuous improvement in use of safer chemicals. Fourth, investor and public accountability. Firms should analyze in annual and quarterly SEC filings the material risks and opportunities for the company associated with toxic chemicals and with safer alternatives and cleaner production processes. Fifth, public policy positions. Companies should encourage progressive trade association stances on toxics reduction. They should speak with an independent voice and organize ad hoc coalitions to advance toxics reduction, involving businesses and consumer and environmental groups. Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 1. Corporate Commitment to Toxic Footprint Reduction and Green Chemistry The principles of green chemistry should inform and drive chemical substitution programs. As summarized by Clean Production Action: “The goal of green chemistry is to create better, safer chemicals while choosing the safest, most efficient ways to synthesize them and to reduce wastes.” SC Johnson stands out for having made its Greenlist process of toxicity reduction a core part of its corporate strategy. While this reflects the strong social ethic of the Johnson family, significant commitments have also been made by publicly owned companies. For example, Nike has been working on toxicity reduction since the 1990s and in 2004 declared a corporate-wide goal of “proactively targeting, removing, or replacing chemicals that, while not legislated as illegal, fit the scientific definition of toxic.” Kaiser Permanente’s Environmentally Preferable Purchasing Policy adopts a precautionary approach to substances, acknowledging that federal and state regulations and standards do not always address critical issues concerning public and environmental health. The policy lists 10 specific chemicals and classes of chemicals that the company is working to avoid, including persistent bioaccumulative tox- ic compounds, halogenated flame retardants, and phthalates. More commonly, however, companies’ safer substitution commitments are not presented in standalone statements, but are captured in the tools companies adopt that have explicit substitution elements. For example, Steelcase has been pursuing “cradle to cradle” certification for its product portfolio for many years. Competitor Herman Miller likewise has been deploying cradle-to-cradle design principles in its “design for environment” protocol. Companies may be reluctant to make such commitments for several reasons. These include uncertainty about the performance, availability, scalability, cost, and hazard profile of alternative materials; reluctance to reveal corporate strategy to competitors; a lack of knowledge about the chemicals in their supply chain and their suppliers’ reluctance to disclose them; an absence of regulatory drivers; and insufficient customer demand. Furthermore, companies may open themselves up to criticism if they establish a goal and then fail to meet it. The risk was recently illustrated when Greenpeace hung a banner on a Hewlett-Packard office building because of H-P’s retraction of deadline commitments it had made for phasing out certain toxic chemicals. Companies may also be reluctant to make such Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 M ay / J une 2 0 1 0 ❧ Page 25 commitments because of their corporate cultures. But undue caution can cut against a company in the court of public opinion. Apple is well-known for its tight-lipped culture, but this silence made it seem a laggard when other electronics companies, such as H-P and Dell, were making public commitments to toxic phaseouts. A concerted effort by Greenpeace ultimately led Apple CEO Steve Jobs to release a statement in 2007 captioned “A Greener Apple.” The statement noted that the firm does not generally trumpet its plans, but this had left both employees and outsiders in the dark about Apple’s desire to become greener. “Our stakeholders deserve and expect more from us, and they’re right to do so,” Jobs commented. Apple had already told its suppliers in 2006 of its goal to eliminate all bromine- and chlorine-based compounds. A 2009 Clean Production Action case study, “Greening Consumer Electronics,” describes the substantial success Apple subsequently achieved based on innovative engineering and close collaboration with its suppliers. Some companies are fearful that making public commitments may compromise their competitive position. This needs to be carefully considered on a case-by-case basis. But contrary to this notion, properly conceived and implemented public commitments can actually strengthen their competitive position and the overall health of the enterprise. These declarations invite innovations; align and sustain internal efforts; forewarn producers of hazardous chemistries they had better innovate themselves; convey corporate responsiveness to consumer concern; trigger a competitive race to the top toward safer chemicals; and reassure investors that the company is working systematically to reduce or eliminate a potential liability. 2. Data Development “If it’s not measured, it’s not managed” is a core tenet of sound business operations. The data development portion of the benchmark has two principal components: First, adopt standard procedures for systematically reviewing the composition of products and promote generation of toxicity data by suppliers. Second, assess the composition of products against published lists of known or suspected high priority chemicals, with particular emphasis on such categories as persistent and bioaccumulative substances, carcinogens, mutagens, reproductive toxicants, neurotoxicants, and hormone disruptors Dealing with your company’s carbon footprint is challenge enough — starting with your stack emisPage 26 ❧ T H E E N V I R O N M E N T A L F O R U M sions and then extending to the carbon embedded in your products’ and your operation’s own carbon demand. So at a cursory glance it might seem nearly impossible to take on the hundreds if not thousands of chemicals in your company’s supply chain. And how do you weigh these chemicals’ diverse environmental health impacts, from acute human toxicity to cancers to impacts on aquatic ecosystems? There’s no perfect answer to this metric question, but leadership companies have begun to devise responses. For example, SC Johnson’s Greenlist rates the materials in its products based on their impact on the environment and human health. Wal-Mart has developed another scoring system called the GreenWERCS Chemical Screening Tool. The tool, developed in a collaborative process involving suppliers, nongovernmental organizations, and software company TheWERCS, is intended to identify chemicals’ potential environmental impact and drive green chemistry innovation. The system assesses products based on ingredient information provided by suppliers. It generates a score for each product based on chemical composition and allows comparisons among products in the same category. Numerous companies have developed less comprehensive yet nevertheless useful approaches to lowering their toxic footprint. These generally involve the creation of restricted substances lists. Clean Production Action and the Healthy Buildings Network have collaborated to offer a “Red List” — a compendium of official lists of chemicals of high concern. The Green Chemistry and Commerce Council has provided a useful overview of such lists, noting they are driven by regulation, by marketing considerations (will Wal-Mart buy my product, or is there consumer concern about Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 A a chemical?), and advocacy by nongovernmental organizations. Companies can measure their progress in reducing their toxic footprint by reporting on reduced use of particular chemicals of concern. They can also work with certifiers such as McDonough Braungart Design Chemistry to receive cradle-to-cradle certification of products. Leadership companies are eager to share their tools. SC Johnson has made Greenlist available for licensing at no cost, though companies would incur costs in adapting it to their own product stream. Likewise, Wal-Mart has signaled its willingness to have other retailers engage GreenWERCS. Wal-Mart, with other companies, is working on a Global Data Synchronization Network Product Ingredient Reporting Project that would enhance movement of product ingredient data within supply chains. These activities in the United States complement data development systems in the European Union, where numerous consultancies are assisting companies in addressing the demands for chemical disclosure, hazard data development, and enhanced supply chain communication required by the EU’s newly enacted chemical management legislation, known as REACH. Many industry trade associations are also contributing constructively to the chemical tracking effort, forging progressive industrywide lists that member companies should address. For example, the American Apparel & Footwear Association has developed a restricted substances list, and a multi-company apparel industry working group has created a kit for suppliers that builds on the AAFA’s work. The electronics industry has developed its own guide. Within the automotive industry, the Suppliers Partnership for the Environment is using the SciVera Lens system for assessing and managing chemicals. n o t h e r V i e w Prescription: Sustainability A Climate. Global warming will t Kaiser Permanente, we know that healthy cause health effects that will directneighborhoods and a ly impact Kaiser Permanente’s abilhealthy environment ity to fulfill its promise of quality, are critical to the health affordable care. We are taking pracof every person. Environmental tical actions to limit our emissions sustainability and social equity have of greenhouse gases and helping direct, positive effects on individu- to reduce the carbon footprint of al wellness and the wellbeing of the the communities we serve. We are communities we live in. Since the expanding our supply of renewable organization was founded in 1945 energy through on-site installations we have worked to curb our impact of solar power. We also make use on the environment by using safer of new technologies to minimize chemicals, building greener hos- member and patient travel, includpitals, reducing waste, purchasing ing mail-order pharmacies, e-visits, locally grown food, and using sus- and telemedicine. Food. We support a food systainable energy. Striving for sustainability in- tem that is ecologically sound, cludes understanding the dispro- economically viable, and socially portionate impacts of environ- responsible. We sponsor 37 farmers markets at our mental pollutants. In hospitals and medical the United States today, offices, in some cases the health of ethnic miproviding the only norities, poor people, source of fresh food and other disadvanin the neighborhood. taged groups is worse On an annual basis 60 than the health of the tons of the produce overall population. ExKathy Gerwig served in Kaiser Perposures to air pollution manente’s hospitals in and harmful chemicals in the environment have greater Northern California comes from health consequences in disadvan- local farms. Waste. We are reducing and taged communities, where lack of nutrition, limited or no access to where possible eliminating waste preventive health care services, and through source reduction and reinadequate opportunities to exer- cycling to promote individual and community health. In 2009 we recise are the norm. Kaiser Permanente’s environ- cycled over 60,000 pieces of elecmental stewardship activities focus tronic waste using certified U.S.based specialists. on four priorities: Companies should reduce their Chemicals. Kaiser Permanente seeks to advance an economy where environmental footprint because the production and use of chemicals it is smart business and mitigates are not harmful for humans as well risk. But it is also about health. as for our global environment. In ad- And without our health, nothing dition to a robust environmentally else matters. preferable purchasing program, we have testified before Congress twice Kathy Gerwig is Vice President, Environon the need for federal mechanisms mental Stewardship Officer, at Kaiser Perto reduce harmful chemicals in the manente, one of America’s leading health products and materials consumers care providers and not-for-profit health plans serving 8.6 million members. and corporations buy. Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 M ay / J une 2 0 1 0 ❧ Page 27 Confidential business information is one of the largest barriers to the sharing of data. Trade secrets have historically been an obstacle to information sharing, but companies have found creative ways to address them while working toward safer chemicals. For example, since Wal-Mart sells its own private label brands, national brand competitors have an understandable reluctance to share their ingredient information; Wal-Mart has built protections into its system that permit toxicity comparisons among products and spur reduced toxicity, but also shield especially sensitive information from disclosure. 3. Capacity Building and Supply Chain Greening The capacity building and greening the supply chain portion of the benchmark has four core components. First, information, training, and incentive programs. These are central to toxicity reduction, just as they are to achieving any corporate goal. At SC Johnson, “an appreciation for sustainability and the Greenlist process in particular is integral to staff training, procedures, and motivation or rewards. . . . New employees are trained on Greenlist within a few months of joining the company. . . . Goals are set annually for the company, and personal performance and pay also are linked to progress on the Greenlist goals.” Just imagine if reducing product toxicity across the board and a concomitant commitment to designing substitute chemicals to the maximum extent practicable consistent with the principles of green chemistry was a core value of the world’s major chemical manufacturers, infused this way into their corporate cultures! Second, reduce inherent hazards in product formulation. Many initiatives fall within the rubric of Design for the Environment and can specifically include highly detailed lifecycle assessment or more qualitative lifecycle “considerations.” What counts most in these processes is their expansiveness. For example, if the chemical component of a design for environment program focuses only on compliance with various regulatory requirements, that’s far different from a program designed to drive down the total toxicity footprint of a product irrespective of its chemicals’ regulatory status. Third, develop collaborative activities with suppliers or other companies, including research and financial risk sharing. Europe’s implementation of REACH is forcing unprecedented collaboration within supply chains on chemical assessment. Europe’s implementation of its earlier Reduction of Hazardous Substances Directive, aimed at the electronics sector, has similarly driven supply chain Page 28 ❧ T H E E N V I R O N M E N T A L F O R U M collaboration there, but collaborative activity in the electronics sector has been addressing chemicals of concern even beyond those named explicitly in the RoHS directive. For example, the High Density Packaging User Group International, which focuses on electronic assemblies and sub-assemblies, has been developing a halogen-free materials database. Companies should themselves explore how they can provide incentives to their suppliers, or share risks, to encourage greener chemistry. One collaborative model that companies might consider is the American Chemical Society Green Chemistry Institute Pharmaceutical Roundtable. Through the roundtable, major drug companies are working to implement green chemistry and green engineering. The companies are collaboratively funding research consistent with green chemistry, targeting chemical reactions and production methods that are especially in need of green alternatives. In its inaugural corporate social responsibility report last year, Campbell’s declared sustainable agriculture to be one of its four core priorities. When Campbell’s began its program about 20 years ago, as a way of reassuring its growers, it agreed to share the economic risks from adopting new Integrated Pest Management techniques. Its growers would manage both conventional plots and IPM plots, and Campbell’s agreed that if there were shortfalls in yield or quality in the pilot plots, it would make up the difference. In fact, yield and quality were not issues, and costs dropped. Across a wide range of crops, Campbell’s now reports that the need for synthetic pesticides has dropped by 50 percent. In 2008, Wal-Mart announced that HewlettPackard was the winner of the Home Entertainment Design Challenge. The contest was open to Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 all of Wal-Mart’s suppliers of consumer electronics, who were asked to submit products having attractive designs, innovations that reduced their environmental impact, and packaging that facilitates reuse and recycling, reduces waste, and reduces or eliminates the use of toxic materials. Hewlett-Packard responded with a design — the “H-P Protect Messenger Bag” — that reduced product packaging by 97 percent. Fourth, supplier codes of conduct, auditing, and related supply chain approaches. In 2001, Sony was unable to sell Playstations during the winter holiday season in the Netherlands because regulators found cadmium in connecting cables. A more recent and widely known example of supply chain toxicity is Mattel’s massive recall of toys in 2007, with attendant costs, litigation, and reputational damage, because some of its toys sourced from China were coated with lead paint. Hasbro then launched an advertising campaign promoting its own safety record. In an on-line chat, Hasbro’s CEO commented, “We believe that our high standards and robust testing and inspection process have allowed Hasbro to avoid any of the lead paint recalls.” Indeed, Hasbro had significant staff in China and incorporated an extra step in its testing regimen that enabled it to avoid Mattel’s problems. 4. Investor and Public Accountability As the fabled U.S. Supreme Court Justice Louis D. Brandeis wrote nearly 100 years ago, “Publicity is justly commended as a remedy for social and industrial diseases.” Companies need to take several steps to foster investor and public accountability. First, investor disclosures. IEHN has made enhanced disclosure to investors a core focus. We have produced two reports based on reviews of corporate financial filings with the Securities and Exchange Commission and advocated filing reforms in direct discussions with SEC staff and with staff of the Financial Accounting Standards Board. IEHN’s 2008 report “Toxic Stock Syndrome: How Corporate Financial Reports Fail to Apprise Investors of the Risks of Product Recalls and Toxic Liabilities” is based on searches through thousands of SEC filings and detailed review of more than 25 companies’ reports. The report concludes that major industrial sectors are doing a poor job of informing shareholders of market risks they face due to toxic chemicals in their products. It urges companies to provide shareholders with additional information on chemical supply chain issues. It also urges SEC staff to issue guidance to companies requiring them to more specifically report their product lines vul- nerable to regulation under REACH and to report more fully on credible adverse scientific findings that may impact their company. IEHN’s 2009 report “Bridging the Credibility Gap: Eight Corporate Liability Accounting Loopholes that Regulators Must Close” observes that existing regulations do not require companies to sufficiently disclose the potential liabilities associated with production and use of nanomaterials. Currently applicable accounting rules are the very same ones that permitted companies to legally understate their potential liabilities from asbestos litigation until the moment that they declared bankruptcy and wiped out shareholder value. The report recommends that companies be required to disclose on a summary basis what is known about hazards of products as these become understood in the laboratory, particularly when these are recognized by “significant institutes, task forces, institutions or agencies anywhere in the world, such as government research or regulatory bodies, insurers, reinsurers, think tanks, prestigious bodies, etc.” Companies would then provide brief descriptions of measures the firm is taking to minimize or eliminate the issue, and indicators of the potential severity of the scale of the problem. Second, sustainability reporting. Sustainability reporting has really taken off. A survey published by the consultancy KPMG in 2008 concluded that corporate responsibility has “gone mainstream.” Globally, 80 percent of the Fortune 250 are producing corporate responsibility reports. These are often supplemented by more-detailed internet-based disclosures. Companies are increasingly producing reports according to the consensus-based reporting standards of the Global Reporting Initiative. Regrettably, despite their positive impact the GRI standards are very slim regarding chemicals in products, so they don’t drive corporate reporting on this issue. Nevertheless, examples of such discussions appear in reports from, Dell, Ikea, Sony, SC Johnson, Sara Lee, and Levi Strauss. Third, effective consumer disclosure practices. Ingredient disclosure has been a very sensitive topic for many years and a centerpiece for activist campaigns around both cosmetics and cleaning products. Companies have begun to take dramatic steps. In 2008, Seventh Generation, long a proponent of ingredient disclosure, created an online label reading guide listing various ingredients found in common cleaners and providing information about how the ingredients are used and any potential side effects to people. Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 M ay / J une 2 0 1 0 ❧ Page 29 5. Public Policy Positions The public policy portion of the benchmark has two components: Encourage progressive trade association stances on toxics reduction and speak with an independent voice and organize ad hoc industry and industry-NGO coalitions to advance toxics reduction The U.S. Chamber of Commerce, one of Washington’s most powerful lobby organizations, has seen major U.S. companies cancel their memberships, resign from its board of directors, or issue strong statements distancing themselves from the chamber because of its strident objections to federal legislation on climate change. Firms have multiple reasons for joining and receiving benefits from trade associations, but at some point companies must decide when they’ll part company if the association crosses the line on basic corporate principles in a manner that risks reputational damage or is contrary to the company’s core business interests. There’s about to be a major debate on federal toxics policy reform in the United States. Companies must decide how to position themselves. A core group of businesses and investment groups have already endorsed the four Guiding Principles for Chemicals Policy of the Business-NGO Working Group for Safer Chemicals and Sustainable Materials. The American Chemistry Council, representing manufacturers, said a few years ago that the existing federal chemical policy framework “works well.” ACC has now acknowledged change is in order, although this 180-degree shift has been met with skepticism from environmental health advocates. SOCMA, the trade association of small and mid-size chemical companies, opposes substantial overhaul of the existing regulatory framework. The Soap and Detergent Association and the Consumer Specialty Products Association both participated in the 2009 release of the ACC’s principles, though both joined with the Grocery Manufacturers Association in releasing their own “Building Blocks for U.S. Chemicals Management Policy” later that year. Environmental health advocates have set forth their own principles under the umbrella of the Safer Chemicals, Healthy Families campaign. The campaign coalition includes, for example, The Autism Society, Breast Cancer Fund, American Nurses Association, the Learning Disabilities Association, the Natural Resources Defense Council, and the Environmental Defense Fund. Seventh Generation has already aligned itself with the environmental health advocates, launchPage 30 ❧ T H E E N V I R O N M E N T A L F O R U M ing the “million babies crawl,” an on-line campaign “to attract a million or more crawlers to dramatize the wide public support” for overhauling national chemicals policy. The company’s crawl website states flatly that “the federal law that should protect us from health-harming chemicals just doesn’t work.” So where does your company want to be? Especially if you’re on the board of your trade association, do you want to tilt it toward the environmental health community or toward the chemical industry? In lobbying on specific provisions of newly proposed legislation, think hard about your reputational risks, especially if you market children’s products or to mothers. Data continue to mount on chemicals in bodily fluids, such as umbilical cord blood, amniotic fluid, and breast milk. Data also are accumulating on chemical links to learning disorders and asthma among young children. With scientists discerning new links of chemicals to diabetes and other chronic health disorders, will your company be on the side of those who routinely say “more research is needed” and “no cause-effect linkages have been established,” or will you tilt toward your customers’ concern about their families’ health? Companies should think hard about reputational risks, extra overhead costs, roadblocks to moving to safer chemicals, obstacles to assuring customers products are safe, and the increased health care costs and reduced productivity from employees’ exposure to toxic chemicals. Your core business interests are better aligned with your customers downstream than with the upstream manufacturers of the toxic chemicals in your products. Your public positions on chemical policy reform should similarly align. • Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 ELR ® ELR India Update ™ Does your firm have Indian manufacturing facilities? Hire Indian suppliers? See India as a market for your products and services? If so, ELI offers you a new addition to the ELR family of products... ELR INDIA UPDATE ™ Jay Pendergrass A quarterly newsletter to inform environmental professionals about developments in Indian environmental law. Reported and written by expert Indian environmental lawyers Kochhar & Co. and edited by ELR’s professional staff, this reporting service covers environmental legal and policy developments at the national and state level regarding: Climate and Energy Policy * Manufacturing * Importation and Exportation * Product Safety * Worker Safety * Water Quality and Supply Only $200 for four issues per year For more information, call 800-433-5120 or 202-939-3836 or e-mail [email protected] The Moral Limits of Jurisdiction As the states and the public face new rules on emissions under the Clean Air Act, the authors find that environmental policy devoid of economic feasibility equals ethical bankruptcy by policymakers to the detriment of all citizens and their economic liberty Harold G. Leggett Beau James Brock A ny policy that seeks to improve the quality of life must spring from the hearty trunk of the community in order to support the diverse boughs and flowering crown of society. This isn’t only metaphor but reality: the Environmental Protection Agency is attempting to reduce emissions of ozone, particulate matter, and greenhouse gases using standards developed without real consensus and without fully understanding their impact on citizens and on states charged with maintaining compliance with the Clean Air Act. The agency is driving initiatives through the its own internal policy process to achieve a political end, potentially causing our citizenry’s limbs to break under the weight while undermining its root principles. The American people do not see our republic as infallible. An early example came in 1798, when both Virginia and Kentucky passed resolutions of protest to meddling from Washington, declaring, “The rightful remedy against all unauthorized acts done under color Harold G. Leggett, Ph.D., is Senior Manager of Harold Leggett & Associates, an environmental & resource management consulting firm, after previously serving as Secretary of the Louisiana Depar tment of Environmental Quality. Beau James Brock serves as Confidential Assistant to the Secretary of the department (Peggy Hatch) after serving in the same capacity for Harold Leggett. This article reflects only the personal opinions of the authors does not consititute an official position of the state of Louisiana. Page 32 ❧ T H E E N V I R O N M E N T A L F O R U M of [law] against the states was a nullification by those sovereignties.” These protests took on heightened implications in 1832 when South Carolina, in decrying the economic inequities caused by the protectionist tariffs designed to support fledgling northern manufacturers, passed a nullification ordinance. John C. Calhoun detailed the political and legal basis of nullification and what it meant for the state and the rest of the country: “The crisis stemmed from the ‘radical error’ that the general government ‘is a national, and not, as in reality it is, a confederated government.’” This sectional economic struggle reached fever pitch when the governor of South Carolina called for volunteers to defend the state in case of invasion, and President Andrew Jackson responded with equal swiftness, declaring, “Nullification [is] treason against the United States.” The felling of the tree that is our republic was derailed by a political compromise on the amount of the tariffs. But “states rights” is no longer a code phrase for denial of civil liberties, and nullification has returned as a real weapon in defense of environmental federalism. According to the Tenth Amendment Center, as of last October some 37 states have introduced “state sovereignty resolutions” and seven have passed them. Clearly, to return to our metaphor, boughs are about to break. The lack of full public participation in environmental policymaking, which includes not only contributions from citizens but from corporations as well, has never been more evident than in the ongoing unilateral agency actions to strengthen National Ambient Air Quality Standards for two criteria pollutants, ozone and particulates, and to restrict emissions of greenhouse gases for the first time. Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 The last action may be the most troubling. Last year EPA declared under Section 202(a) of the Clean Air Act that “greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare.” The agency claimed it issued its endangerment finding as an administrative requirement to the order posed by the Supreme Court decision in Massachusetts v. EPA in 2007. However, the Court did not require such a finding. In fact, the Court held that “we need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding. The statutory question is whether sufficient information exists to make an endangerment finding. We hold only that EPA must ground its reasons for action or inaction in the statute.” Bitter protests follow finding After the agency’s proposed endangerment finding in the spring of 2009 and before it finalized the finding last December, it did accept comments from the public concerning possible action. However, review of the agency’s responses to those comments shows an utter disregard for any policy determination except for the path it had ordained. In perfunctory responses to questions concerning the economic impact of regulation, EPA smugly stated, “Commenters should take up their concerns with Congress.” But there were bitter protests from not only the energy industry, which might be expected, but also affected states. Texas Governor Rick Perry voiced his strong opposition to the endangerment finding, stating, “EPA relied most heavily on the major assessment reports of both the Intergovernmental Panel on Climate Change and the U.S. Climate Change Science Program. EPA took this approach rather than conducting a new assessment of the scientific literature.” He further stated, “I vehemently disagree that these reports ever provided a sufficient legal basis for the EPA to find that natural gases, such as carbon dioxide, present any danger to public health or welfare.” He went on to cite the most recent findings of fraud and data manipulation in these reports and the need to maintain the integrity of the process. Despite a clear need to proceed with the utmost caution in this important area, EPA has recently proposed a series of rulemaking and other policy actions addressing greenhouse gas emissions that will likely have dramatic and far-reaching negative impacts on the states. Even under EPA’s conservative estimate of the stationary source universe impacted by its actions, in Louisiana alone there are approximately 757 affected CAA Title V permits and more than 6,000 additional minor sources that would now be subject to increased regulation. In a letter to EPA Administrator Lisa P. Jackson, the Louisiana Department of Environmental Quality questioned the agency’s proposed use of administrative processes as appropriate mechanisms to address global warming, noting, “The CAA requires EPA to identify specific pollutants. While precursors of specific pollutants may be regulated, carbon dioxide equivalents are not precursors and no specific criteria pollutant has been identified.” Prior to the promulgation of any rule or final policy action that could result in the regulation of greenhouse gas emissions at stationary sources, LDEQ requested EPA to quantify the costs and benefits. But in the case of ozone and smog, EPA has stated in a fact sheet, “The Clean Air Act prohibits EPA from considering costs in setting or revising National Ambient Air Quality Standards.” When the agency came out with a “range” of acceptable NAAQS it placed political expediency above sound science. How can the agency expect the public to maintain confidence in its scientific expertise and its implementation strategies with hyperbole that “the sky is falling” and a closed fist as to the fiscal realities of such pronouncements? We must understand the moral limits of environmental jurisdiction that impact every American citizen. Instead, EPA issued this proposed rule with the time worn cliché of “protecting the children.” At the end of the day, environmental policy devoid of economic feasibility equals moral bankruptcy by policymakers and the detriment of all citizens and their economic liberty. The level playing field The sectionalism along geographical lines that confounded our founders (and persists to this day) is being replaced by diverse special interest lobbying. This parallels the rise of the corporation and non-governmental public interest organizations. Upon Teddy Roosevelt’s ascension to the presidency, he directly confronted the issue of corporate hegemony encroaching ever more upon the fabric of our society. In a speech delivered a year into his first term, Roosevelt said the United States must address business’s impacts with evolutionary, not revolutionary, means. “If we are to accomplish any good at all it must be resolutely keeping in mind the intention to do away with any evils in the conduct of big corporations, while steadfastly refusing to assent Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 M ay / J une 2 0 1 0 ❧ Page 33 to indiscriminate assault upon all forms of corporate capital as such. The line of demarcation must always be on conduct, not upon wealth.” In environmental policy, our initiatives must always be cognizant of this maxim and set our path toward justice through evolutionary means without debasing our cause in flailing at capital itself. Here then is the question of the level playing field which confronts us now in the policy considerations of new Clean Air Act rules for greenhouse gases and tighter air quality standards for criteria air pollutants. Will our nation consent to new environmental rules that will diminish our citizens’ quality of life and jeopardize the economic viability of our industrial base? Our American form of government is a highly complex machine that daunts the uninformed, challenges the enlightened, and castigates those whose rhetoric is found to be without substance. Regardless of the cynical talking heads who dominate our airwaves, our nation is not a paternalistic oligarchy, and our citizens will not tolerate any attempts to convert its workings to make it so. However, is the fear of environmental socialism a rational one? One cannot discount the Obama administration’s public agenda on health care, the socialist form of delivery, and its precedents in Great Britain and Canada. Great Britain, under a Labor Party government, embraced these socialist reforms during the post-war 1940s as their nation devolved from great power to the brink of a commercial collapse of confidence. Churchill, for the Conservative Party minority, spoke out against the revolutionary specter of socialism, stating, “Unless we free our country while time remains from the perverse doctrines of socialism, there can be no hope for recovery.” There is no question we must advance environmental standards that improve every American’s quality of life, but we must not succumb to blind adherence to political rhetoric devoid of sound science. The citizens of this land will not idly procrastinate when their livelihoods are impacted, when transportation costs tear through supermarket aisles, and high fuel costs chill their homes and deprive them of basic freedom of movement in their vehicle. A commercial bill of rights If the federal government persists on a path of greater and greater abridgement of commercial liberties, the response from the people of this country may be a call to action and defend their right to work in a free society through a commercial bill of rights. The establishment of clearly defined boundaries of federal power may be the only true protection for economic predictability, and thus, viability for American corpoPage 34 ❧ T H E E N V I R O N M E N T A L F O R U M rations and by inference the American worker. This list may include the following: • Congress shall make no law concerning environmental quality standards unless they are based on sound science and are practical, consistent, and manageable in their implementation; • Any laws to be established by Congress shall fully account for due process, the mechanisms for just and fair enforcement, and the critical need to update existing standards which no longer are protective of human health and the environment; • All environmental permits issued by or under the auspices of the federal authority shall, henceforth, be analyzed and considered, including fee structure, not by the size of the facility, but by the risk of potential harm posed to the public by emissions or discharges during its ordinary operation; • All emissions and discharges from any facility shall be accounted for in annual reporting to governmental authorities, and facilities that successively reduce the footprint of this pollution will qualify for administrative extensions of their existing permits; • Incorporated municipalities and county governments shall not be subject to unreasonable civil penalties issued by governmental authorities which are only borne by innocent citizens; • All corporations operating under articles of incorporation filed in our country, regardless of their commercial wealth or size, are entitled to protection from frivolous lawsuits filed by governmental officials or third parties suing under the color of environmental legal authority and thereby are entitled to recover any and all legal fees in defending any suit found by a court to be frivolous, vexatious, or devoid of good faith; • Corporations and sectors of business shall not be targeted for civil enforcement by our government and are entitled to fair and equitable enforcement in maintaining a level playing field for all; • No corporation that voluntarily discloses environmental violations, even knowing ones committed by its employees, shall be criminally liable if said disclosure is complete, forthright, and made in waiver of any and all legal privileges, and made prior to the official opening of criminal investigation by the government concerning the violations. All individual employees must be turned over in the disclosure and are subject to criminal prosecution to the full extent of the law; and • The citizens of any state shall exercise their sovereign right to nullify any environmental law or rule of the federal government which imposes any standards, duties, or obligations upon its commercial interests that undermine the economic viability of its state and violate the sacred compact between sovereigns as proscribed in the Constitution. To ensure full democratic Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 participation, the proper mechanism for any nullification question shall only be by plebiscite or referendum by all eligible voters within the state. This commercial bill of rights may signal the pendulum reversal that will ensue if the proposed environmental policies of the Obama administration are implemented without consensus. Leadership from the bully pulpit certainly has its place in our country, but a bold vision without due consideration of the cascading affects upon our nation’s commercial infrastructure is the very definition of economic anarchy. Only three months after assuming the presidency, Theodore Roosevelt, the original bully pulpit president, began our nation down the path of conservation of natural resources, and urged federal authorities to take a hand in protection of flora, fauna, and waters of our country. President Obama likewise has begun his tenure by stating, “Global warming is not just the greatest environmental challenge facing our planet — it is one of our greatest challenges of any kind. Combating global warming will be a top priority of my presidency, and I will attend to it personally.” But the citizens of Louisiana in particular will bear a heavy economic burden if the Obama administration’s air emission policies are enacted as presently advertised. According to economist Loren Scott, stockholders and taxpayers, often one and the same, would pay the heavier costs in depleted investment returns and higher gas pump prices. “That the people would fall for this is a great tribute to the economic illiteracy of Americans,” Scott says. The Supreme Court, and its institutional obligation of final legal review, is designed since Marbury v. Madison to interpret, not make new laws or regulations, and within this obligation is the inherent decision whether to hear a case at all. These decisions do not come without great consideration and review, and when a writ of certiorari is granted by the Court, a ruling fundamentally should provide not only a final answer, but clarity to a host of similar and possibly divided issues around the country. A recent Supreme Court case of much debate is Rapanos v. United States, a case involving wetlands and whether the EPA maintained the jurisdiction to bring civil enforcement proceedings against Rapanos for the alleged illegal filling of wetlands under the Clean Water Act. The resulting votes on the case were a highly divided court with a celebrated concurrence by Justice Kennedy that has unleashed a flood of unpredictability on both the regulatory and commercial development side of the debate on jurisdictional waters of the United States. It cannot be said the Court has done its duty by our nation if it resigns itself to intellectual machinations that not only fail to provide clarity, but instead subject all environmental stakeholders, regulatory bodies, and yes, even our courts themselves in to a significant vortex of confusion on a matter as fundamental as jurisdiction. Emperor’s Clothes or Stone Soup? In moving forward with impending major environmental initiatives, we as Americans must decide the path we will travel. Will we choose to marvel at the new coat of the emperor, and not dare to interject, even if we perceive it to exposing our commercial livelihood to the elements? Or, will we strive together, with government, industry, and environmental activists to feed our hungry village by combining our intellectual and social yields to produce practical, consistent, and manageable environmental solutions? The answers we seek are only ones which will provoke more questions, such as to how clean can our waters be? How clear can our skies become? These are unanswerable without debate, without the ability to differ in opinion, and possibly without practical applications for everyone even today. For example, when the Clean Water Act was established, the policy spiriting the effort was to be made whole by the NPDES system. Most people do not even know what NPDES stands for, or simply get it wrong. Courageously, it stands for National Pollutant Discharge Elimination System. Its original purpose was to eliminate all pollutant discharges into waters of the United States in twenty years. Instead, we have added countless unanticipated new point sources under the regulatory ambit and worked to identify sources of water degradation and systematically reduce pollutant loads through a complicated system of permitting, enforcement and modeling. How will the law of unintended consequences affect future endeavors to reduce greenhouse gases and new standards for criteria air pollutants? If we do not engage on these issues and understand all stakeholders’ special needs and their critical value to our nation’s infrastructure, we may suffer the fate of tyrants. Never hearing the voice of the individual worker, we may eventually be overridden by the screams of the mob. The choice is ours as citizens of this democracy. Do we continue to do our duty to actively participate in our democratic processes, and challenge environmental policy in Washington, or do we skulk away from the field, and abdicate our rights to a small band of elites (who may be wrong)? It is in the democratic process, conducted around a table where no prince sits at its head and no citizen sits at its foot, that policy will be effectively formulated that raises the quality of life for all Americans and emboldens the public confidence of our nation. • Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 M ay / J une 2 0 1 0 ❧ Page 35 ELI Applauds Our Star Sponsors for 2010 Arnold & Porter LLP Bergeson & Campbell, P.C. Beveridge & Diamond, P.C. Bingham McCutchen LLP Constellation Energy Covanta Energy, Inc. Farella Braun + Martell LLP Please mark your calendars for the next ELI AWARD DINNER Tuesday, October 19, 2010. Gibson, Dunn & Crutcher Hogan & Hartson LLP Holland & Knight Hunton & Williams LLP K & L Gates LLP Koch Industries, Inc. Lockheed Martin Corporation NACWA Paul Hastings, Janofsky & Walker LLP Pfizer Inc. Sidley Austin LLP Volkswagen Group of America, Inc. “The ELI Award Dinner is not merely a great event for the environmental law community, it is one of the few times each year that I get an opportunity to renew my valued friendships with colleagues in the field.”—Raymond B. Ludwiszewski, Partner, Gibson, Dunn & Crutcher LLP For more information about Star Sponsorship, contact Tess Doheny at 202-939-3820. C o v e r S t o r y T It’s Not Only Rocket Science The perchlorate story follows the arc of other major controversial chemical management challenges, such as dioxin, where the initial focus on end-ofpipe controls missed key sources in the environment By Andrew Rak Andrew Rak is a Manager within N o blis’s C en ter fo r S us t ain a bili t y. Noblis is a nonprofit science, technology, and strategy organization based in Falls Church, Virginia. Page 38 ❧ T H E E N V I R O N M E N T A L F O R U M he ongoing debate over the potential health effects from exposure to low levels of perchlorate is overshadowing an equally important dialogue on the sources of contamination. Perchlorate first became a headline concern when it was discovered that it entered the environment from rocket fuel and munitions at Department of Defense sites — seemingly just another legacy of the Cold War — but it can also be found in fertilizer, bleach, fireworks, road flares, and blasting compounds. It can be present as an ingredient or impurity in lubricating oils, matches, and automotive airbag deployment initiators. It is associated with aluminum, rubber, dye, and paint manufacturing, leather tanning, and pulp processing. Solutions used in water and wastewater treatment plants for disinfection have also been identified as a potential problem. While some research has addressed the relative importance of multiple sources, the perception that military activities are the overwhelming contributor to the environment may be hindering appropriate and effective regulation. While perfect knowledge about the sources of perchlorate is unobtainable, continuing to focus solely on a few point sources will not adequately spur effective public health regulation. Extensive toxicological studies have been undertaken related to the potential health risks from exposure to perchlorate, including a National Research Council review of the Environmental Protection Agency’s toxicity assessment. The chemical may pose a health risk if taken up by the thyroid, where it disrupts the production of hormones and affects metabolism and neurodevelopment. But toxicity is only part of a risk-based approach to public health. As the NRC famously declared in 1983 in the Red Book — more properly “Risk Assessment in the Federal Government: Managing the Process” — only by combining toxicity data with information about the sources of exposure to a contaminant can a thorough risk-based approach be constructed. In other words, the same scientific rigor and expertise applied to the investigation of a chemical’s toxicity should be applied to the identification of sources that lead to significant exposures. A thorough examination of the sources of exposure to perchlorate has not been completed, and this lack of knowledge hinders attempts by regulatory agencies to provide an effective risk-based approach for protecting public health. Through an Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 understanding of sources in the environment and role of point and non-point sources of perchlorate releases to the environment, regulatory agencies should be displaced. can take appropriate steps to directly reduce expoThe perchlorate story follows the arc of other masure and control public health risk. jor controversial chemical management challenges, While defense activities have often been assumed such as dioxin, where the initial focus on end-ofto be the dominant fraction of perchlorate’s envipipe controls from incinerators and chlorine, and ronmental presence, military contributions alone pesticide production proved to miss key sources cannot be the explanation for the geographically in the environment. During the multi-decade indispersed detection of the compound. Nor can teragency and public debate over the appropriate military sources be responhealth risk estimates for disible for the perchlorate oxin, EPA issued a pivotal detected in a wide variety emissions report. In 2000, of food stuffs, including the emissions inventory dairy items and produce. analysis for dioxin found Sampling of dairy prodthat backyard burning of ucts from Maryland and plastics and other waste in organic lettuce from Wisrural areas was a major reconsin have found trace maining non-point source amounts of perchlorate; of deposition to soil. This however, any direct consurprising finding shifted nection to military point the regulatory debate and sources at these locations highlighted areas where the is lacking, thereby sugtraditional focus on point gesting the importance of sources and end-of-pipe other contributors. enforcement approaches Early impressions about could not be applied. Any perchlorate sources helped new reduction strategy for To holistically address the risks a more federal and state regulators dioxin emissions would develop preliminary plans likely have to include mulcomprehensive assessment of the sources for addressing contaminatiple non-point sources in contributing to exposures is necessary tion. However, more comorder to be effective. The plete evaluations may increase the focus on newly same dynamic appears to be developing for peridentified sources. In a 2005 letter to the federal chlorate. Environmental Protection Agency, state regulatory officials wrote that “none of the nine water supplies hile early data helped regulatory that have tested positive for perchlorate in Massaagencies focus on perchlorate as an chusetts appear to have any connection to military emerging problem, to holistically bases or activities.” The use of perchlorate-containaddress its risks a more compreing explosives in construction activities, and even hensive assessment of the sources in bleach, were among the new sources identified contributing to environmental exposures is necesby the state. Earlier this year, Maine Drilling and sary. With improved sampling technology and the Blasting agreed to contribute $1 million to the city additional data that are being generated relating of Westford, Massachusetts, for remediating perto dietary and other exposure routes, food safety chlorate associated with construction explosives. regulators, environmental agencies, and local govGrappling with the risk from other sources is just ernments will be able to more effectively regulate a matter of time. the use, disposal, and cleanup of perchlorate, and The advent of new scientific fingerprinting reduce public exposure. Information on unusual methods that distinguish natural from man-made suspects will increase the government’s grasp of the sources will allow regulatory managers to tackle this problem and enhance risk mitigation as our undermulti-faceted source challenge with targeted risk standing advances. reduction measures. As new sources are identified At the federal level, EPA has elected to address and quantified, lingering misperceptions about the W Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 M ay / J une 2 0 1 0 ❧ Page 39 exposure to perchlorate in groundwater and drinking water using authorities under Superfund and the Safe Drinking Water Act. Although the agency has yet to make a final regulatory determination for perchlorate in drinking water, some state regulatory agencies have already promulgated regulations, with California and Massachusetts setting enforceable limits of 6 parts per billion and 2 parts per billion, respectively. However, it is not clear if these regulations will result in a meaningful public health benefit because we do not know what role drinking water plays in overall exposure to perchlorate. Addressing the need for appropriate regulation requires a more complete understanding of the sources (and relative amounts) of synthetic and natural perchlorate in the environment. While EPA has elected to address perchlorate in groundwater and drinking water, other regulatory agencies and researchers have paid attention to potentially more widespread exposures in the diet. Ongoing food monitoring surveys have found perchlorate in mothers’ milk and cows’ milk, as well as in infant-formula. Perchlorate has also been found in lettuce, spinach, cantaloupe, cabbages, and beets. The Food and Drug Administration has completed studies of the occurrence of perchlorate in food items, but has yet to issue any health advisories. Likewise the Department of Agriculture conducts monitoring through its National Residue Program. But an analysis of the relative sources of perchlorate and how these sources may influence entry into the food chain has not been conducted. In the future, the NRP may generate key opportunities for risk reductions should trends related to perchlorate in food warrant mitigation. A continued focus on military sources will not provide a complete analysis of the sources of perchlorate. The defense establishment uses perchlorate in numerous items as an oxidizer. While the military continues to purchase large amounts of perchlorate for solid rocket motors and other items (6.2–8.1 million pounds per year from 2004–2006), solid perchlorate inside a rocket motor casing is unavailable for release to the environment. Industrial recycling of rocket motors, which previously released wash water into the environment, is now a closed loop system. Annual military training uses of perchlorate in detonators, initiators, and ground burst simulators, which are confined to certain ranges, is approximately 1.6 million pounds, and substitutes are now being employed for some of these uses. As a result of remediation activities, substitution efforts, best management practices, and compliance with Clean Water Act permits, defense-related releases of perchlorate should be diminishing. Page 40 ❧ T H E E N V I R O N M E N T A L F O R U M In California, one of the states thought to be most contaminated with perchlorate, the military collaborated with state officials to investigate reports of widespread contamination. In 2003, the Defense Department and state regulators established a partnership to investigate the presence of perchlorate throughout California to locate previously unidentified threats to public water supplies. More than 900 military sites were screened using a consensus-based protocol; 870 of these sites were deemed to be not of concern. State regulators agreed that military installations and formerly used defense sites did not appear to be significantly impacting California public drinking water wells. As a result of the collaboration, California also adopted many of the department’s best management practices for perchlorate. The department began an extensive perchlorate monitoring program and, by 2008, had collected more than 47,500 samples at 309 locations nationwide to define the scope of its perchlorate contamination problem. The results of this monitoring program — posted and annually updated on the Defense Environmental Network Information Exchange website — show that the vast majority of perchlorate samples from military locations were below 4 parts per billion, and large groundwater plumes of perchlorate exist at only a limited number or military sites. W hile the military appears to be defining and controlling many of its potential sources of perchlorate, it is unclear what controls are being put in place elsewhere. Recent research announced in the Fourth National Report on Human Exposure to Environmental Chemicals by the Centers for Disease Control and Prevention together with a number of academic findings suggest that exposure to perchlorate is widespread, indicating there may be many undocumented sources. These sources should be thoroughly evaluated in order to better understand total human exposure. The contribution of perchlorate from the use of sodium hypochlorite for various household, drinking water, and commercial disinfection purposes may be an important non-point source contributor to total perchlorate exposure. Sodium hypochlorite, a bleach, generates perchlorate in storage and when it is exposed to sunlight. The compound is used in a variety of household applications (household bleach is a 3–6 percent solution) and industrial applications (water and waste water disinfection solutions are 12–15 percent solutions) related to disin- Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 A fection. Nearly $3 billion of sodium hypochlorite bleach is sold globally each year. In a 2008 study, perchlorate contamination was found to occur in more than 90 percent of sodium hypochlorite samples. The most recent part of the perchlorate source picture to come to light is the volume of the compound entering the United States in fireworks. Recent data from the Department of Commerce indicate a large increase in firework imports over a five-year span, from 174.7 million pounds in 2002 to 271.2 million pounds in 2006. Potassium perchlorate constitutes up to 70 percent of the chemical fraction in fireworks. Based on these data, the American Pyrotechnics Association estimates that 14.2 million pounds of perchlorate entered the country in fireworks in 2002, and 21.8 million pounds in 2006. Imports represent about 90 percent of fireworks used in the United States. For 2006, the amount of perchlorate imported in fireworks represents nearly three times the amount purchased by the military. While importation does not necessarily equate with amounts released into the environment, these data highlight an important potential nonpoint source. Recent field studies also support focusing on perchlorate discharges from fireworks. EPA analyzed water in an Oklahoma lake before and after fireworks displays. Testing performed 14 hours after an event showed that perchlorate levels rose 24 to 1,028 times above the predisplay baseline. The agency found that concentrations of perchlorate peak about 24 hours after a display and then decrease to the baseline within 20 to 80 days. Thus, Fourth of July activities and sporting events may be important in future efforts to define sources and routes of exposure. Efforts to restrict and manage releases at the local level may be able to control exposure. The millions of emergency road n o t h e r V i e w Perchlorate Will Accumulate I n 2008 NASA’s Phoenix best explanation for its changing Lander found perchlorate distribution in the soil when movin three different Martian ing from the upper to lower valleys soil samples. That discovery is the difference in the amount of prompted a re-analysis of the liquid water present and its effect, soil samples we had brought back leading to depletion or concentrafrom an expedition a year earlier to tion of the perchlorate. In the highAntarctica’s Dry Valleys, a site used lands the atmospheric deposition as a Mars analogue for training be- of perchlorate is left undisturbed, cause of the subzero temperatures while in the lower wet valleys its and extreme aridity. For both Earth distribution becomes chaotic. Combining our findings with and Mars, the evidence implies that given the right conditions and a those for the Arctic, North Amersource of chlorine, perchlorate will ica, and other regions provides an emerging picture for the global accumulate. Free of anthropogenic influenc- presence of natural perchlorate. In es, the Dry Valleys provide an ideal addition, our results from Antarclocation for such studies.The Ant- tica clearly point to the conclusion arctic soil samples had been collect- that even though natural perchlorate is atmospherically ed from pits dug in three and homogeneously types of Dry Valley mideposited, over time it croclimate zones: coastal will accumulate at high (wet), inland (arid), and levels at some locations highland (hyperarid). while it will be nonSamples were collected existent at others. from every identifiable Our results supsoil horizon (boundaries between different kinds Samuel Kounaves port the hypothesis that perchlorate must of soil) down to the icecemented soil. All the samples were also have a variety of long-term, widely, and irregularly distributed reanalyzed for perchlorate. To our amazement, perchlorate sinks. Since aqueous perchlorate was found in all the highland soils, is chemically stable in the natuin all the horizons from the surface ral environment, its lack of accuto the ice-cemented soil. Its concen- mulation in the ocean or aquifers tration ranged up to 630 parts per may also be attributable to microbillion and in a continuous vertical bial utilization in anaerobic or low profile. In contrast, for the inland nitrate media. To help us understand the full valley soil horizons, it was found to vary with a more heterogeneous impact of perchlorate, we need to distribution, while in the coastal more accurately determine its globvalleys it appeared very randomly al distribution and accumulation distributed, approaching 1,100 patterns, its interactions with terppb in one isolated soil horizon, restrial ecology, and its atmospheric and totally absent in others, with formation mechanisms. no regular or discernible pattern. How the perchlorate is deposit- Samuel Kounaves is a Professor in the ed in these valley soils is clearly evi- Chemistry Department at Tufts University. dent from its correlation to nitrate For more information see: S. P. Kounaves, and chloride, both of which have et al., Environmental Science and Techbeen shown to be atmospherically nology, 2010, 44, 236-2364, doi:10.1021/ formed and deposited. Thus, the es9033606. Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 M ay / J une 2 0 1 0 ❧ Page 41 flares sold annually contain significant concentrations of perchlorate, which is often released into the environment. A study in Santa Clara, California, found that 88,184 pounds of road flares are used in the county annually with a corresponding perchlorate content of 5,732 pounds. Field testing has shown maximum concentrations of perchlorate in runoff leaving highways of 314,000 parts per billion after road flare use. Considering the volume nationwide, discarded or partially used emergency flares may be another important non-point source of exposure. Communities could take steps to consider the use of alternative safety-lighting systems such as those adopted by Seattle and other local police organizations to reduce the contribution from flares. Natural sources of perchlorate from geological materials, such as potash ore, playa crust, and hanksite, also contribute to environmental perchlorate. Natural deposits have been found in the Texas panhandle and north-central New Mexico. Other research suggests that perchlorate may be produced via atmospheric processes, then enters the food chain through rainfall. Atmospheric formation may explain the discovery of perchlorate in soil and ice from the Antarctic [See Another View, page 41] where concentrations reach up to 1100 micrograms per kilogram. Finally, there is a possible connection between tropospheric ozone and the formation of perchlorate in plants, a factor that could in part explain the presence of perchlorate in agricultural products. One source of perchlorate in the environment that is receiving some additional attention is the over 100 million pounds of Chilean nitrate fertilizer — which contains perchlorate at levels of 100,000 parts per billion —that have been applied in the United States. There are over 400,000 pounds still being applied annually to commercial agricultural land and homeowner gardens. In 2006, Texas Tech University scientists reported in the journal Environmental Science & Technology that perchloratecontaining Chilean nitrate fertilizer likely accounts for more low-level contamination in the United States than all military and industrial sources put together. P erhaps the most important development driving the understanding of sources of perchlorate in the environment is new forensic fingerprinting technology that can help differentiate man-made and natural types of perchlorate. Isotopic methods are powerful tools when applied to the intractable problems of Page 42 ❧ T H E E N V I R O N M E N T A L F O R U M source attribution for groundwater contaminants. Elements in compounds can have widely different isotopic ratios based on their mode of formation. Stable ratios have a fingerprint, allowing scientists to distinguish sources from one another. The isotopic method for perchlorate is available for use through some university and Department of Energy laboratories. Scientific validation of the new method is underway. The new clarity made available through forensic inquiries into sources may provide a much better understanding about the proportion of contributions of perchlorate in the environment from commercial, consumer, agricultural, and military sources. Forensic methods distinguished synthetic from natural sources of perchlorate at contaminated sites in southern California and elsewhere, and proved helpful in disentangling possible sources. A 2009 study by the U.S. Geological Survey used forensic isotopic methods to identify historic use of fertilizer as the most likely cause of groundwater contamination in areas of Long Island and concludes that these findings may have national implications. The growing concern over the possible health effects of exposure to low levels of perchlorate should not overshadow the investigation of perchlorate sources. There appears to be a growing body of evidence that perchlorate sources should be reappraised, particularly in light of findings that perchlorate in fireworks, bleach, safety flares, and Chilean fertilizer may outweigh military-industrial uses. The new data on sources in the environment and releases to the environment should be used to better inform regulatory decisions on controlling exposure. More importantly, the application of fingerprinting methods that distinguish natural from man-made sources will empower regulatory managers to tackle this multi-faceted source challenge with tailored risk reduction measures. As consumer, natural, military, and agricultural sources continue to be identified and quantified, misperceptions about the role of point and non-point sources should be displaced. While early data allowed regulatory agencies to focus initially on perchlorate as an emerging problem, to holistically address the risks from exposure a more comprehensive assessment of sources is necessary. More information about the unusual suspects among perchlorate sources will enhance risk mitigation and protect public health. With improved sampling technology, food safety regulators, environmental agencies, and local governments will be able to control the use, disposal, and cleanup of perchlorate to reduce public exposure. • Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 The MIT Press Global Governance of Hazardous Chemicals The Natural Resources Trap Private investMent Without PubliC CoMMitMent Challenges of Multilevel ManageMent edited by William Hogan and Federico Sturzenegger Henrik Selin “this book is likely to become a standard reference in the area of natural resources and credible host country policies—coming, as it does, with a solid grounding in modern economic theory.” — tim Worrall, university of Manchester “Global Governance of Hazardous Chemicals provides an illuminating account of the evolution of the global chemicals management regime. selin’s analysis of the agreements that make up this regime provides important insights into the role of coalitions and institutional linkages in the complex and multiscale governance efforts aimed at improving chemical safety.” — Jennifer Clapp, university of Waterloo, coauthor of Paths to a Green World Politics, Science, and the Environment series 240 pp., $22 paper 520 pp., 43 illus., $40 cloth Economic Thought and U.S. Climate Change Policy edited by David M. Driesen “this book is original, timely, and important. best of all, it addresses the economics, politics, and ethics regarding a crucial public policy issue. Written in clear language and accessible to anyone interested in the topic, Economic Thought and U.S. Climate Change Policy is a must read.” — robert Paehlke, trent university American and Comparative Environmental Policy series 352 pp., 3 illus., $24 paper To order call 800-405-1619 • http://mitpress.mit.edu • Visit our e-books store: http://mitpress-ebooks.mit.edu N O W AVA I L A B L E ENVIRONMENTAL JUSTICE Legal Theory and Practice By Barry E. Hill Environmental risks and harms affect certain areas more than others. The environmental justice movement is aimed at redressing this disproportionate burden of risk and exposure to pollution in minority and low income individuals, communities, and populations. Environmental Justice provides an overview of this defining problem and explores the growth of the environmental justice movement. It analyzes the complex mixture of environmental laws and civil rights legal theories adopted in environmental justice litigation. Teachers will have online access to the more than 100 page Teachers Manual. Barry E. Hill is currently the senior counsel for environmental governance in the Office of International Affairs of the U.S. Environmental Protection Agency. He has taught environmental justice at the Vermont Law School for 15 years, where he serves on the board of advisors for the Environmental Law Center. He has published numerous articles on environmental law and policy, and environmental justice. March 2009 • 800 pp. 978-1-58576-124-1 • $89.95 ELI Associates receive a 15% discount R e m e m b r a n c e B Founding Father Stewart L. Udall, who died on March 20 at the age of 90, was one of the prime movers of the modern environmental movement, building a firm legal and policy foundation Page 44 ❧ T H E E N V I R O N M E N T A L F O R U M efore the first Earth Day, before the vast outpouring of legislation whose implementation and administration is our profession’s daily bread and butter, Stewart L. Udall came to Washington and changed the way the nation views its environmental heritage and the ability of government to preserve it, helping to make all that followed both natural and necessary. Following three terms as a U.S. representative from his native Arizona, during which time he served on the House interior committee, he was named secretary of the interior by President John F. Kennedy in 1961. During the eight years that followed, continuing in the administration of President Lyndon Johnson, he championed measures that forever changed the country’s view of the federal role in conservation, preservation, and pollution prevention. He also helped to safeguard millions of acres of federal land as national parks, seashores, and wilderness areas. As President Obama put it on learning of Udall’s death on March 20, he “left an indelible mark on this nation and inspired countless Americans who will continue his fight for clean air, clean water, and to maintain our many natural resources.” Or as one of his successors at the Department of the Interior, Bruce Babbitt, put it, “Stewart Udall, more than any other single person, was responsible for reviving the national commitment to conservation and environmental preservation.” “That was a wonderful time,” Udall said recently of his tenure at the Department of the Interior, “and it carried through into the Nixon administration, into the Ford administration, into the Carter administration,” embracing the 30 years of progress from the natural resources laws of the 1960s, to the NEPA to CERCLA legislative burst in the 1970s, and to their strengthening amendments in the 1980s. “I don’t remember a big fight between the Republicans and Democrats in the Nixon administration or under President Ford and so on,” he said. “There was a consensus that the country needed more conservation projects of the kind we were proposing.” Udall played a critical role in forming that consensus. In recent years, however, according to his son Tom, now a Democratic senator from New Mexico, the senior Udall often lamented the change in tone in Washington that has stalled environmental progress, including the end of bipartisan support for pollution and natural resources legislation. In his latter years he became a fierce critic of President George Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 M ay / J une 2 0 1 0 ❧ Page 45 W. Bush. “The Bush administration, determined to ransack public lands for the last meager pockets of petroleum, has turned my old department into a servile, single-minded adjunct of the Energy Department,” he said. S tewart Lee Udall was born in 1920, the scion of a family already famous. His father was Arizona Supreme Court justice Levi S. Udall and his grandfather had founded the Mormon community in which he grew up, St. Johns. But his early life was not one of privilege, observed the Arizona Star. “I grew up on the tail of the frontier. I plowed fields with horses and worked as a hired hand in high school for 50 cents a day,” he told the newspaper. Udall interrupted his studies at University of Arizona for service in the military during World War II, when he was a tail gunner on B-24 bombers in the Italian theater, and as a Mormon missionary, returning to finish his bachelor’s degree. He played as a guard on the university’s basketball team that went to the National Invitational Tournament, the sport’s championship of the time. He continued on to a law degree at Arizona, then he and his brother Morris, who would succeed him in Congress, where he established his own environmental legacy, formed a firm in Tucson. During Udall’s six years in Congress he became a civil rights champion and fought for home rule for the District of Columbia, both unpopular measures but ones to which he was deeply committed. In 1960 he campaigned for candidate John F. Kennedy, helping to secure Arizona for the senator from Massachusetts. When Udall joined the Kennedy administration in 1961, he persuaded the new president to call a White House conference on conservation, the first since the Theodore Roosevelt administration. During his tenure, Udall declared, “nature will take precedence over the needs of the modern man.” A fan of Rachel Carson, whose 1962 book Silent Spring launched the contemporary concern about pollution, Udall responded with his own book, The Quiet Crisis, a year later. Like the Carson book, it became a bestseller. In his book, he called for a nationwide “land conscience” to preserve America’s wild places. “We cannot afford an America where expedience tramples upon esthetics and development decisions are made with an eye only on the present.” During his tenure at Interior, he launched a fullcourt press against untrammeled development, scoring numerous victories. He helped to secure passage Page 46 ❧ T H E E N V I R O N M E N T A L F O R U M of the Wilderness Act of 1964, the Land and Water Conservation Fund Act of 1965, the National Historic Preservation Act of 1966, the Wild and Scenic Rivers Act of 1968, and early legislation to combat air and water pollution and preserve endangered species. At Interior, he was instrumental in the fight to preserve the Grand Canyon from a series of dam projects that would have flooded much of the natural wonder. He was not afraid to buck the powers that be. “My own people from Arizona were desperate to build those dams,” he told National Public Radio in 1996. “Some of them still dislike me.” Udall was responsible for the acquisition of 3.85 million acres to the federal estate, including four national parks, six national monuments, nine national recreation areas, 20 historic sites, 50 wildlife refuges, and eight national seashores. “From the Cape Cod seashore in Massachusetts to the untamed wilds of Alaska, Mr. Udall left a monumental legacy as a guardian of America’s natural beauty,” the New York Times declared. He persuaded Lyndon Johnson to make the environment a key part of the Great Society, and worked with Lady Bird Johnson on the Keep America Beautiful program. He was a staunch friend of the First Lady, who helped to smooth his passage from the Kennedy administration to her husband’s cabinet despite differences between the two men. As an indication of his wide-ranging influence and concern, Udall is credited with integrating the Washington Redskins, the last holdout of the formerly all-white National Football League, whose stadium was on leased National Park Service land. Udall left public service in 1969 but remained active in his favorite causes for the rest of his life. Along with other members of his family, he championed the cause of atomic weapons workers and citizens exposed to radiation from weapons manufacturing and above-ground testing. He won the case in 1984, but it was overturned on appeal. He then turned to his friends in Congress, including Republican Orrin Hatch of Utah and Democrat Ted Kennedy of Massachusetts, to secure passage of the Radiation Exposure and Compensation Act of 1990, which was signed by President George H. W. Bush. In addition to compensation for the afflicted, the law formally apologized to those who were “subjected to increased risk of injury and disease to serve the national security interests of the United States.” Stewart Udall and Morris Udall received the ELI Award for career achievement in advancing environmental law, policy, and management in 1992. Mo Udall died in 1998. Stewart’s son Tom Udall, now the junior senator from New Mexico, and Mo’s son Mark Udall, now the junior senator from Utah, received the Award in 2009. — S.R.D. Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 THE FORUM The Upset About International Offsets T he notion of offsets for global warming pollutants is a perfect win-win for the environment, or so it seems at first glance. Offsets enable emitters who face reduction mandates and concomitant costs to pay other emitters who can reduce more cheaply to do so, resulting in the same cutback but at a lower price. An early version occurred in Central Europe after the downfall of communism, when western plants and facilities along the border realized that there was low-hanging fruit in the former controlled economies. There, because the government owned the capital it had been lenient on pollution, which affected countries in the West. Beyond the problem of transboundary pollution is the global warming context. Offsets were enshrined in the 1997 Kyoto Protocol to the U.N. Page 48 ❧ T H E E N V I R O N M E N T A L F O R U M Framework Convention on Climate Change as the Clean Development Mechanism. The CDM allows emitters in the rich countries, which face mandatory reductions in greenhouse gasses, to finance projects in the developing world, which has no required cutbacks. But early on analysts pointed out that a key need is to prove that the reduction would not have occurred in a business-as-usual context. Another problem is to monitor the offsets to ensure that they continue over time, which particularly affects forestry-based projects. And some have criticized the practice at a basic level, accusing developed countries of evading reductions at their facilities and thus undermining a global movement to phase out carbon-based fuels and other pollutants that contribute to climate change. Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 “Programs like the Climate Action Reserve have helped set a high bar for the voluntary carbon offset market.” “Offsets make economic sense for emitters seeking to limit compliance costs, who may face stranded investments.” Derik Broekhoff Laura H. Kosloff Vice President for Policy Climate Action Reserve Consultant, Attorney at Law “The key immediate challenge of the Clean Development Mechanism is the weeding out of business-as-usual projects.” Axel Michaelowa “Offsets should be part of the climate solution as long as they reflect real reductions and do not undermine global reductions.” Marty Spitzer Senior Founding Partner Perspectives Legislative Director Center for Clean Air Policy “Carbon markets are not an end in and of themselves. Stakeholders need to be confident that offsets are contributing to mitigation.” Mark Trexler Director of Climate Strategies and Markets Det Norkse Veritas (U.S.A.) Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 “Needed is an appellate process that grants standing to interested parties and that creates binding precedents.” Michael Wara Assistant Professor Stanford Law School M ay / J une 2 0 1 0 ❧ Page 49 T Offsets Allow Us to Go Further, Faster Derik Broekhoff C arbon offsets have been a central element of nearly every market-based program for controlling greenhouse gas emissions proposed or implemented around the world over the past 20 years. It is easy to understand why. Offsets help lower the cost of achieving GHG emissions reductions, channel investment and resources to countries (or sectors of the domestic economy) that would otherwise face no incentive to reduce emissions, and, as a consequence, build political constituencies in favor of more comprehensive and aggressive emissions targets. Yet despite their embrace by policymakers, carbon offsets have been greeted with skepticism by many critics of emissions trading. On one level, this skepticism is understandable. Carbon offsets are the epitome of an intangible commodity. Their value and effectiveness depend entirely on how they are defined, quantified, and guaranteed. Such guarantees require the establishment of standards and a regulatory infrastructure to consistently enforce those standards. What many critics of offsets overlook is how robust these standards and infrastructure are today, based on years of work under both regulatory and voluntary carbon offset programs. Programs like the Climate Action Reserve, for example, have helped set a high bar for the voluntary carbon offset market, developing standards through public engagement, overseeing verification activities, and maintaining a publicly accessible registry of offset projects. Nearly all offsets openly traded today are certified by programs that perform h e F o r u m these three functions. And while some programs, including the Clean Development Mechanism under the Kyoto Protocol, have come in for criticism recently, most are upholding reasonable standards for offset quality when viewed objectively. With any carbon offset program there will always be lurking questions: Would particular projects that receive credit have been implemented anyway? What level of emissions would have occurred over time in the absence of specific projects? These are questions that can never be answered definitively. For offsets to be valuable and effective at achieving overall emissions reduction goals, however, absolute certainty is unnecessary. The Climate Action Reserve and other carbon offset programs have developed tools to answer these kinds of questions credibly, analytically, and robustly while recognizing the inherent uncertainty. It is a hard fact that the most cost-effective near-term options for reducing global GHG emissions are likely to come from sources that will not be covered by regulatory emissions caps. Carbon offsets allow trading systems to take advantage of these options, creating flexibility, liquidity, and the ability to go further, faster in reducing overall emissions. The problem is not that we do not know how to set effective standards. Rather, the challenge is for policymakers to clearly and transparently explain the need for offsets, to confront the uncertainties and tradeoffs involved, and to adopt rules accordingly. It is only by demonstrating this kind of leadership that we will achieve the very significant reductions in global emissions that are necessary to address the urgent challenge of climate change. Derik Broekhoff is Vice President for Policy at the Climate Action Reserve. Page 50 ❧ T H E E N V I R O N M E N T A L F O R U M Why? Because Offsets Are Important! Laura H. Kosloff O ffsets make economic sense for emitters seeking to limit compliance costs, particularly in the near-term when they could lead to stranded investments. Those emitters have been seen as key to politically acceptable climate change policy, which is why offsets have grabbed such a high profile. A well-designed offset can be characterized as a win-win. The potential for advantage is particularly true at the global level, where offset funding could provide revenues for energy and natural resource programs in developing countries, supplementing dwindling international assistance. This has become lost in some recent debates — offsets really can make sense economically and environmentally. Facts: • The atmosphere doesn’t care where emissions or reductions occur. GHGs are the perfect tradable commodity. • Since we do not have to worry about pollution hot spots with GHGs, there is no need for healthbased trading restrictions. • The cost of achieving emissions reductions varies by gas and region, which increases the potential value of market mechanisms in reducing the cost of achieving targets. Reducing emissions at power plant smokestacks is often far more expensive than reducing methane emissions from landfills. We should not abandon technological solutions, but it in the interim we need to push costeffective approaches. What kind of numbers are involved? $10–20 billion could mitigate a gigaton of CO2 emissions annually through international Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 T offsets (about 5 percent of current global fossil fuel emissions). This would increase total resources available for sustainable energy, forestry, and land-use management efforts in developing countries. Such activities are crucial to long-term climate change mitigation efforts. Climate change mitigation simply can’t be seen as a national or regionally constrained effort. The theoretical potential of carbon offsets is enormous. Our ability to transfer more efficient energy supply and demand technologies to developing countries than otherwise would be possible is undisputed. In principle, such a transfer could reduce projected long-term carbon emissions from developing countries significantly. There is little doubt that incremental financing of desirable energy and forestry measures around the world could reduce future GHG emissions. I am not arguing that offsets are the answer. They are not. There is no silver bullet, no magic wand. Solving this issue will require more effort than any other environmental effort to date. And yes, offset programs need to be designed appropriately; not all offsets are created equal. They must be actions that actually reduce emissions (or increase sequestration) from what otherwise would have been the case (without the carbon market, or in business as usual conditions). The fact that it’s difficult should not mean we give up. Offsets are one step on the path to climate change mitigation — a crucially important piece, for economic and political reasons. That’s why the push for offsets hasn’t gone away, and won’t. Laura H. Kosloff, former Senior Counsel for EcoSecurities Group plc., consults on climate, energy, and environmental policy issues. h e F o r u m An Indispensable Piece of the Global Jigsaw Puzzle I Axel Michaelowa n just five years, the Clean Development Mechanism of the Kyoto Protocol has mobilized more than 5,000 greenhouse gas reduction projects in over 60 developing countries. Project developers estimate the volume of pre2013 emissions offsets from these projects at over 2.5 billion tonnes of CO2 equivalent. Reductions come from a wide variety of technologies — ranging from thermal destruction of industrial gases in large chemical plants to distribution of efficient charcoal stoves in rural Africa. In the aftermath of the Kyoto negotiations, most analysts had seen the CDM as the Cinderella of the protocol’s market mechanisms. They felt that project-based offsets would entail prohibitive transaction costs due to the need to check whether the project actually makes a difference compared to business as usual. The revenue from selling offsets would be insufficient to mobilize entrepreneurs in the highly risky business environment of developing countries. Direct emissions trading between governments or offsets from projects in industrialized countries would be much more attractive than the CDM. This pessimistic worldview had underestimated the entrepreneurial spirit in developing countries. Once regulators had clarified that projects could be developed “unilaterally,” i.e., would not need the involvement of a company from an industrialized country, a real gold rush started. Obviously, project developers first looked for the nuggets lying on the ground — and found them in the form of projects destroying the industrial gases HFC-23 and nitrous oxide, which generate huge volumes Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 of offsets at costs that are a fraction of the sales revenue. Critics argued that it would be much more efficient to just pay the costs of installing the abatement equipment through public subsidies. In hindsight, this is easy to say — but no public agency discovered these abatement options before the CDM market did. Moreover, it is only fair that developing countries receive a substantial share of the benefits from mobilizing emissions abatement. The availability of cheap offsets leads to more stringent emissions commitments in industrialized countries than in the case where only costly domestic reductions are available. Without the access to the CDM, European industries would have never accepted the tightening of their emissions cap under the EU emissions trading scheme. The key immediate challenge of the CDM is the weeding out of business-as-usual projects. While regulators introduced thoroughly refined additionality tests, still too many projects are slipping through. Regulators should resort to methods used by financial institutions to find out which projects are really mobilized by the revenue from offset sales. And in the long run, advanced developing countries have to be weaned off the CDM to take up commitments. This could be achieved by discounting offsets from such countries. Project-based offsets in developing countries are the success story of the Kyoto Protocol. They show that the market is able to discover and implement emissions reductions even under difficult circumstances. This is heartening given the slow progress of climate policy in industrialized countries. Axel Michaelowa is Senior Founding Partner of the climate policy consultancy Perspectives and a researcher at the University of Zurich. M ay / J une 2 0 1 0 ❧ Page 51 T A Good Idea, Given a Few Basic Reforms I Marty Spitzer t is time again to debate the role of international offsets. Much has changed since the U.N. adopted the Clean Development Mechanism as part of the Kyoto Protocol, allowing developing countries to sell offsets to developed countries. The CDM has been beneficial to both poor and rich countries by bringing financing to the former and helping to reduce compliance costs for the latter. Today our goals have changed and international offsets policy must also change. While we still need to lower our compliance costs by purchasing offsets from developing countries, to avoid a 2°C rise in global temperatures we must also reduce our own emissions and simultaneously accelerate the pace at which major developing countries reduce theirs. The oft-heard rhetoric in Washington and among businesses — that the United States needs a large pool of offsets to lower costs and should not act before China and India — may feel good but creates a dilemma. If we continue paying developing countries to reduce emissions to meet our own reduction goals, what incentive will they have to undertake and finance their own emissions reductions? Moreover, our energy-intensive and trade-sensitive industries (e.g., steel) should also be concerned with current offsets policy because their competitors in developing countries profit from selling credits to us. Large developing countries are also beginning to see a problem with the current CDM. Countries like China know they must eventually reduce their absolute emissions, but worry that selling us their lowest cost reductions will leave them paying for h e F o r u m more expensive ones. So what should offsets policy look like? First, it should build on agreements by developing and developed countries in the international negotiations. Developing countries have now agreed they will reduce their emissions in exchange for financial and technological assistance from the developed countries. Offsets could only be earned for emissions reductions that go beyond these commitments. Another important reform would move away from the current projectby-project CDM, where it is possible for some firms to reduce their emissions and sell offsets even as net emissions from their sector increase. Instead, sectoral crediting allows offsets to be sold only after emissions are reduced for the entire sector (e.g., steel again), fostering environmental integrity and protecting U.S. jobs. On deforestation, we need a staged approach. Developing countries should first prove their readiness and capacity to measure, report, and verify reductions before receiving credits. Government-togovernment funding should also be made available to build capacity and to purchase offsets before they are completely market ready. The House-passed Waxman-Markey bill includes both approaches. Ultimately, offsets should be part of the climate solution as long as they reflect real reductions in emissions and do not undermine global emissions reductions — including required reductions from developing countries — necessary to ward off the worst impacts of climate change. If we build on the emerging international framework and contribute our fair share of financing to help developing countries meet their commitments, we will foster a robust offsets program that will help meet the climate challenge at the lowest possible cost. Marty Spitzer is the Legislative Director at the Center for Clean Air Policy. Page 52 ❧ T H E E N V I R O N M E N T A L F O R U M We’ve Been Looking for a Free Lunch Mark Trexler T here’s little question that offsets can be an important component of climate change strategy, primarily because of their ability to moderate near-term mitigation costs. Today’s ruckus is not really about whether offsets can contribute to mitigation, however; it’s about how they’ve performed to date, and how to integrate offsets into legislation. But carbon markets are not an end in and of themselves. Stakeholders need to be confident that offsets are actually contributing to mitigation. Any effective offset strategy requires balancing two objectives: lower cost compliance and environmental rigor. Too much focus on costs, and rigor goes out the window (because too many reductions are credited as offsets). Too narrow a focus on rigor, and costs go sky-high (because too many real offsets are excluded from the offset pool). In looking for the perfect rules that let in all the low-cost real offsets but none of the impostors, we’re dreaming an impossible dream. It’s crucial that policymakers define a politically acceptable balance between these two objectives. The key analytical issue here is “additionality,” perhaps the most misused and misunderstood word in climate change mitigation. In a regulated market an offset ton allows another ton to be emitted from a source that otherwise would have been capped. To keep net emissions from exceeding the cap, offsets brought into the system have to be additional. Being additional means that the reductions are attributable to the existence of a carbon offset market (since if they’re not the re- Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 T ductions would presumably have occurred anyway, meaning they can’t offset other emissions). The same conclusion applies to voluntary markets, even though they’re not technically capped. Additionality is not rocket science, but applying it effectively requires a policy decision about how to balance the inevitably competing objectives. Policymakers have too often taken the free lunch way out of assuming we can design a perfect system, inadvertently setting a hurdle that no offset program can ever meet. Critics then play gotcha, searching out questionable offset projects, and characterizing the whole program as fraudulent. That’s not necessarily any more appropriate than condemning home pregnancy test kits because they occasionally give an incorrect result. The idea of perfect policy offers a free lunch and makes for good rhetoric, but lousy climate change mitigation. In 1998 we lost the opportunity to incentivize companies through federal early-action legislation to pursue GHG reductions in advance of regulations. Many in industry wanted credit for many things they clearly would have done anyway. Many environmental groups, fearing too loose a policy, wanted to allow credits for virtually nothing. The net result was a failure to enact policy that could have materially contributed to climate change mitigation efforts. Are we on the same path with offsets, where players concerned almost exclusively with compliance costs push to count almost everything as an offset, while players primarily interested in environmental perfection push to allow almost nothing to be counted? Climate change is too serious a problem for us to again accept an outcome that serves neither business nor environmental interests. Mark Trexler is Director of Climate Strategies and Markets at Det Norske Veritas (U.S.A.), a global risk-management firm. h e F o r u m Offset Developers, Critics Could Both Benefit by Fixes Michael Wara C arbon offsets, especially international offsets, offer the promise of reducing the cost of developed country greenhouse gas reduction goals. While promising in theory, real international offsets produced by the Clean Development Mechanism have failed to deliver because of persistent doubts about their quality. Are the claimed reductions real? Have they been verified properly? There has been enormous debate around these issues but so far, not much resolution. Environmental organizations are justified in criticizing a slew of projects that have made it through the system despite serious questions as to whether they would credit business-as-usual behavior. At the same time, offset developers are rightly outraged about high and uncertain regulatory risks to their projects created by a shifting legal and regulatory landscape. There is cause and effect here: doubts about quality lead to changing standards. Ultimately, since demand for compliance grade offsets is a political decision, these doubts need to be addressed if the CDM or a successor is to endure. The good news is that both problems — lack of environmental credibility for NGOs and high and unpredictable regulatory risk for offset project developers — might be addressed by one change to the CDM. What the mechanism needs is a fair and transparent appellate process that grants standing to a wide array of interested parties and that creates precedents that will bind future decisionmakers. Today, environmental groups participate in the CDM in two ways: by commenting at the validation Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 stage of project applications and by taking pot shots at the overall quality of the CDM in the arena of public opinion, often to devastating affect. Comments during validation can be and are routinely ignored. Criticism of already registered projects cannot create a better system, except indirectly, and may undermine support for international solutions to greenhouse gas emissions. A healthier offset regulatory process, both for the environment and for project developers’ profitability, would foster buy-in on the part of NGOs while at the same time creating a body of precedent that would reduce regulatory risk for project developers. Access to an appellate body for NGOs would give them a real stake in the CDM and create a sense of ownership that is currently lacking. Having NGOs in the system would also, of necessity, increase offset quality by providing a powerful check to project developers and by empowering the third-party verifiers in their employ. Offset developers worry about opening a floodgate of challenges. Evidence from the Forest Stewardship Council and the Marine Stewardship Council, both of which have appellate review with broad standing, indicates otherwise. NGOs have limited resources. Assuming that appellate decisions would bind future decisionmakers, the more likely result is a system with clear, albeit tougher, rules that would lead to higher quality offsets created with lower risk and hence, lower transaction costs. The NGO and the offset developer communities would both be better off in such a system. The alternative is continued erosion of public confidence in offsets as a tool of climate mitigation. Michael Wara, Ph.D., is an Assistant Professor at Stanford Law School, where he teaches environmental and property law. M ay / J une 2 0 1 0 ❧ Page 53 Making the Law Work for People, Places, and the Planet Peacebuilding ELI and partners examine how businesses and resource managers can cooperate in former war zones In February, Senior Attorney Carl Bruch and Research Associate Sarah Wegmueller traveled to Japan, where ELI partnered with the University of Tokyo and the Global Infrastructure Fund Research Foundation Japan, to convene a symposium, Improving Natural Resource Management in Post-Conflict Countries: The Roles of Businesses for Human Security. “The sound management of natural resources is critical to post-conflict peacebuilding, and businesses can play a central role in rehabilitating these resources and contributing to the recovery process,” said Professor Mikiyasu Nakayama of the University of Tokyo’s Graduate School of Frontier Sciences. The symposium drew a diverse audience of more than 80 practitioners, researchers, and students, who participated in an animated dialogue about the role of businesses and natural resources in postconflict peacebuilding. Some of the most important players in postconflict peacebuilding are businesses, as they are often drawn to high-value natural resources such as diamonds, oil, timber, and gold in former war zones. Ranging from largescale multinational corporations to micro-enterprises, they can create jobs for local citizens, generate government revenues, increase investment in infrastructure, and even help meet basic needs. of Tokyo, Päivi Lujala of the Norwegian University of Science and Technology, and Siri Aas Rustad of the International Peace Research Institute Oslo composed the first panel, which examined experiences with the Kimberley ELI’s Sarah Wegmueller addresses the meeting on natural resource management in post-conflict societies. Moreover, the private sector can aid in rehabilitating natural resources, making them more productive and developing infrastructure and human and physical capacity to rebuild processing facilities. The first keynote address, delivered by Prof. Yasunobu Sato of the University of Tokyo, focused on the dynamics between businesses and human security in post-conflict countries. Kazumi Kawamoto of the University Page 54 ❧ T H E E N V I R O N M E N T A L F O R U M Process Certification Scheme, a procedure created to ensure that diamonds do not come from conflict areas, and its relevance to other resources in post-conflict countries. Carl Bruch delivered the afternoon keynote address, in which he explored the overarching lessons learned for businesses and natural resource management in post-conflict countries. The second panel of speakers — Diana Klein of International Alert, Miko Watanabe of University of Tokyo, and ELI’s Sarah Wegmueller — highlighted multinational corporations’ experiences in extractive industries, ecotourism, and in enabling economic recovery. The symposium adjourned with remarks by Professor Masahiko Kunishima of the University of Tokyo’s Department of International Studies. “This symposium successfully brought together researchers and field experts to discuss how businesses can act as vehicles for post-conflict economic recovery,” said Wegmueller. The symposium was supported by a Grantin-Aid for Scientific Research on Priority Areas (21200047) of the Ministry of Education, Culture, Sports, Science and Technology of the government of Japan and the Alliance for Global Sustainability of the University of Tokyo. It was held as a part of a global project spearheaded by ELI to strengthen post-conflict peacebuilding through improved natural resource management. More information about the project and symposium is available at www.eli.org/Program_Areas/PCNRM/. Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 ELI Report Constitutional Law Debating response to new line of attack As the health-care debate showed, federal regulation is increasingly subject to constitutional attacks — a trend that also has affected environmental law. On February 26, ELI convened Environmental Protection in the Balance: Citizens, Courts, and the Constitution, co-sponsored with UC-Berkeley Law School’s Center for Law, Energy and Environment and Georgetown University Law Center’s environmental protections are consistent with both the Constitution and sound legal practice.” A standing-room-only audience of over 120 listened intently as expert panels analyzed trends in the federal courts that affect the future of environmental protection. Key constitutional and structural issues that were covered included citizen standing and access to courts, the scope of congres- An audience member at the ELI-Berkeley-Georgetown Law conference asks a question. Environmental Law and Policy Program. The symposium brought together an impressive range of legal scholars, practitioners, and policymakers to explore topics at the intersection of constitutional and environmental law. “The last decade has seen a number of court challenges to the bipartisan 1970s consensus that laid the foundations of modern environmental law,” said Jay Austin, director of ELI’s Endangered Environmental Laws Program. “Through their scholarship and advocacy, these lawyers are demonstrating that broad sional authority to protect the environment, the constitutional status of state and regional climate initiatives, and emerging constitutional theories that support or threaten environmental law. Keynote remarks were provided by Professor Richard Lazarus of Georgetown Law School, who identified four distinct eras of constitutional environmental law, and Judge Peter W. Hall from the U.S. Court of Appeals for the Second Circuit, who discussed his court’s role in the Connecticut v. American Electric Power global-warming case. Snowmageddon Weather fails to halt Hill climate conference Not even the famous blizzard of 2010 prevented nearly 100 participants from attending an ELI conference on, ironically, the climate. Shortly before snowfall began on the morning of February 5, the doors opened on Capitol Hill to Implementing Climate Change Policy: Looking Forward to the Hard Part. The event was cosponsored by ELI, along with Columbia University Law School, University of Virginia Law School, and Vanderbilt University Law School. It was a very cold day for the discussion of a very hot topic: U.S. climate change legislation. Such a bill would likely be one of the longest and most complex federal statutes passed in decades, and would affect almost every corner of the economy. Until then, EPA and perhaps other agencies may adopt rules to the same end. Implementing the new regulatory scheme will be a massive and difficult undertaking. Billions of dollars will hinge on each of numerous implementation decisions. The conference brought together leading government officials, academics, public interest attorneys, and private practitioners to explore these issues: The dozens of rulemakings required of the Environmental Protection Agency, the Department of Energy, and other agencies; Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 creating the machinery for markets and offsets; managing the transition for key sectors (fossil and renewable energy, agriculture, forestry); linkages to the international climate and trade systems; state and local roles; affecting individual and corporate behavior; equity and environmental justice issues. The conference cochairs included Professors Jonathan Z. Cannon, University of Virginia Law School; Michael B. Gerrard, Columbia Law School; and Michael P. Vandenbergh, Vanderbilt Law School. Vandenbergh noted that “although there is much we don’t know about the final outcome of policy development at the global, federal, and state levels, the conference provided a chance to give serious attention to implementation issues. “The weather didn’t impede a very productive discussion of the implementation challenges confronting climate policy at the global, federal, and state levels,” he said. The conference attendees weathered the blizzard on Saturday, but held the conference via telephone rather than appearing in person. Fortunately, E&E News interviewed ELI’s Vice President of Climate and Sustainability, Scott Schang, about the conference the following week. The transcript of that interview is presented on the following pages. M ay / J une 2 0 1 0 ❧ Page 55 ELI Report Climate Change Vice President Scott Schang on the impact of congressional legislation and agency rulemaking Monica Trauzzi: Scott, ELI recently held an event focusing on the issues surrounding the implementation of a cap-and-trade bill. [See preceding page.] It assumes that one will eventually pass, but it’s an important discussion to have because billions of dollars will be at stake once we have a cap-and-trade system in place. So, what are the primary challenges you see associated with the implementation of cap and trade? Scott Schang: The conference focused on implementing climate policy broadly in the United States. So, cap and trade was the reason we actually decided to have the conference. Back in the summer we thought, Look, Waxman-Markey has gone fairly well. We think by February 2010 we’ll probably have a fairly good sense of what the Senate bill will look like. That didn’t happen. So the conference did talk about cap and trade and how you could implement it and the fact that implementing a program like this is really key in order to do the design. Lori Schmidt and people from the Hill talked a little bit about how they had thought about enforcement and the need for monitoring and the need for other tools to be available and built into the legislation so you could actually do a cap-and-trade program that worked on the ground once it was implemented. Trauzzi: So, where do we start? I mean, if and when Congress does pass legislation, what are the first steps that need to take place in order to get the wheels turning and some motion going on this? Schang: The first steps have already happened. One interesting thing that came out of the confer- states. The states, obviously, have already been well down the road, and they will no longer sit idle if the Congress continues to stay stalled. Trauzzi: So, do the same challenges exist if EPA regulates versus if we have capand-trade legislation? Schang: Those present at very different levels and the need to use all the different tools that we have in our toolkit to actually make progress. Mike Vandenbergh gave an interesting talk about the impact of individuals on climate and how what we really have to do here, up at the federal, state, and local ELI Vice President for Climate and Sustainability Scott Schang discusses climate change with E&ETV’s Monica Trauzzi. ence was the notion that, while we don’t yet have a U.S. action plan for climate change, guide stars are starting to appear. For example, the president did say in the annex to the Copenhagen Accord that the U.S. would try to reduce greenhouse gas emissions by 17 percent if Congress acted. But the U.S. has, we’ve seen in Waxman-Markey, those same goals. So, in a broad sense, the United States is starting to move down the road. We also have the EPA starting to move in terms of implementing some rulemakings surrounding climate and we have the Page 56 ❧ T H E E N V I R O N M E N T A L F O R U M very different challenges, but one of the messages that came from the conference was that, one way or another we’re going to get this done. There was a real consensus that we need federal legislation, and that’s really the way that would be the most efficient and the most effective for regulating greenhouse gases. But people also said, Look, if we don’t get federal legislation we’re still going to move. Gina McCarthy made the point that EPA does have a legal duty to move on greenhouse gases. But we also heard about the states and individual actions, what you can do level, is to change behavior. Cap and trade is just one tool to try to change behavior. Trauzzi: There’s a lot of money at stake here. How do you avoid corruption and scandals from taking place? Schang: That’s hugely important, and that’s actually one of the reasons I think we are having some trouble politically with cap and trade. The WaxmanMarkey legislation was written in a somewhat different time. It was before the economy met significant difficulties. It was before Wall Street lost a lot of the confidence of the American Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 ELI Report public. And so when you have a system that was built around a market, and it’s going to try to give significant allowances to large interests, as Dan Esty has pointed out, you have some real concerns about cap and trade that weren’t there a year or so ago. That’s been a significant issue for us to handle. On the other hand, implementing at the EPA level, as we all know, would require a lot of difficult rulemakings. It’s a very poor fit to try to actually do what we’re trying to do. You can make it work, but it will be very inefficient, probably expensive to do. Trauzzi: Are there previous regulatory schemes that we can sort of look to for examples of how to make cap and trade work? Or is this uncharted territory? Schang: There are some. Everyone has talked about the acid rain program, which is definitely a beginning, but, as other people have also pointed out, acid rain only addressed a single pollutant and it came from a single type of source that was continuously monitored. Regulating 13,000 sources in a variety of industries around the country without monitoring is a real issue. So, I think the key ideas that I heard at the conference that are really important are monitoring and reporting. That’s a concern for us at ELI as well — because if you’re going to have a system like this, you have to have the data made available to the public. And that’s really important, because if the public doesn’t understand what’s happening at their local level, who’s emitting what, how are certain companies and industries meeting their goals, then they can’t understand the system and embrace it. Also, you can’t have people enforce the system. You need the reporting and the monitoring in order to have enforcement, and that’s a concern we’ve had at ELI — making sure that you can actually enforce the system once it’s put in place. We also have to make sure that we can have citizen suits. It’s been very important in many of our federal statutes to have citizens stand behind the federal government and the state governments and retain the ability to bring enforcement actions to make sure that all the different things are happening that need to happen at the actual implementation level. If you don’t have that reporting and monitoring being very transparent, you can’t have these citizen suits. The other concern about citizen suits is that you need to have standing. In other words, you need to have the ability of a citizen to be able to get into the courtroom to bring his or her case. And with greenhouse gases having such a broad impact, it’s not clear that standing is going to be easily shown. Trauzzi: This is complex stuff, clearly, through this discussion that we’re having. Will a cap-and- Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 trade czar even be possible, someone who knows all the ins and outs of the system, who can sort of oversee everything that’s happening or will it sort of need to be broken down bit by bit? Schang: That’s the important thing about legislation and one thing that we’ve heard at the conference is that it won’t be one thing that will happen. There will be cap and trade, but if you read the Waxman-Markey bill it has four main titles, only one of which is cap and trade. There are three other titles, and that’s really important. So, again, going back to the toolkit analogy, we’re going to have all these different tools that need to be used. Cap and trade is one of them. There will be one person, probably at EPA, maybe with some help from the Department of Agriculture, who will make the cap-and-trade system work and maybe the Commodities Future Trading Commission will also be involved. And they’ll know how to do that. I don’t think that’s too difficult. M ay / J une 2 0 1 0 ❧ Page 57 ELI Report Workshop Seminars Skills Workshop in Public Interest Environmental Law, held on March 26-27, was ELI’s first program dedicated to skills training for junior attorneys and professionals who work for public interest organizations. The group of 40 participants displayed great enthusiasm throughout the session and gave the course rave reviews. According to one participant, “The course was outstanding: I February marked the final two seminars of ELI’s 13-part series cosponsored with ALIABA, Understanding the New Climate and Energy Legal Landscape, a weekly telephone and webcast series that explained the real world impact of the fast moving developments surrounding climate and energy. The Economics of Climate and Energy Policy, held on February 17, Law professor Richard Lazarus, an experienced Supreme Court scholar and litigator, at the public interest workshop. feel fortunate to have been part of this pilot project. The subject material was very rich and relevant.” Another expressed great admiration for the faculty: “A breadth of experience with nearly everyone at the top of their game. Despite how busy I’m sure each and every one of them is, they all seemed excited to be presenting at this workshop.” The workshop was made possible by a grant from Rockefeller Philanthropy Advisors, which was awarded to ELI in partnership with the Natural Resources Council of America. discussed the potential impact to the U.S. economy of various climate and energy regimes. Litigating Climate Change, held on February 24, addressed the implications of federal climate legislation and regulation for existing and future common law claims and cases as well as actions under federal and state statutes. ELI’s Ocean Seminar Series featured a conference on March 11, Arctic Coastal and Marine Spatial Planning and the Role of the Arctic People, co-sponsored by the Alaska Eskimo Whaling Page 58 ❧ T H E E N V I R O N M E N T A L F O R U M Commission. The meeting was made possible by support from the Naomi and Nehemiah Cohen Foundation and the Oak Foundation. The conference brought together representatives of Arctic communities and federal agencies to begin a national conversation about U.S. arctic coastal and marine spatial planning. The discussion centered on the rights, traditions, and experiences of the Arctic people; existing co-management practices; competing management imperatives; and how to build from the existing system toward an Arctic marine spatial planning framework. On February 18-19, George Washington University Law School hosted the 2010 J.B. and Maurice C. Shapiro Environmental Law Conference: Next Generation Energy And The Law, which was co-sponsored by George Washington University Law School, ELI, the George Washington Environmental Law Association, and the Journal of Energy and Environmental Law. ELI co-sponsored a number of other events in February and March, many outside the beltway. Sustainable Practices in 2010: What Private Companies are Doing and Requiring and Why was held on March 11 with Venable, LLP, in Washington, D.C. On March 19, ELI cosponsored Meet the New U.S. EPA Regional Administrator: Curt Spald- ing with WilmerHale in Boston. ELI and the Environmental Law Committee of the New York City Bar co-sponsored two events in New York. The first was the annual New York Environmental Law Year in Review on February 17, a discussion of the year’s most significant New York judicial, regulatory, and administrative developments. The second event was Marcellus Shale: Shall We Drill? held on March 10, a panel discussion of proposals to drill for natural gas in the shale formation spanning several eastern states. ELI held an Associates Seminar on March 25, NEPA and Climate Change: CEQ’s Draft Guidance. Tom Jensen, Sonnenschein Nath & Rosenthal LLP, was the moderator, joined by Ted Boling, White House Council on Environmental Quality, William Malley of Perkins Coie LLP, and Noah Matson, Defenders of Wildlife. March ended with an event hosted by Georgetown University Law Center. Adapting to Climate Change: Problems and Solutions was co-sponsored by the Georgetown International Environmental Law Review, the Georgetown Climate Center, and ELI. The symposium addressed the role of laws and policies for climate change adaptation in the areas of natural resources, human impacts, and institutional and regulatory design. Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 ELI Report The Profession ELI Is An Association of Many Facets Scott Schang Vice President Climate Change and Sustainability “ELI must not conduct this seminar.” That was the closing line of an e-mail received just days before our new Skills Workshop in Public Interest Environmental Law, held on March 2627. [See preceding page.] A member was upset that we were planning a training session for public interest lawyers on skills such as negotiating, litigating, commenting, building coalitions, and working with the media. She had two concerns: ELI was teaching opponents to sue her clients, and we were doing it behind closed doors. The workshop was made possible by a $25,000 grant from the Natural Resources Council of America. The contours of the grant proposal were shaped to meet the funder’s requirements: networking among environmental activists, raising awareness of environmental justice, and making people more effective advocates on behalf of America’s natural resources. We applied for a grant because it allowed us to meet two long-term ELI goals: to offer more professional training and to do more for our public interest members. For many years, ELI has been talking about offering training on the skills of being an effective advocate. It would complement all the substantive environmental law training we do through our Boot Camps and ALIABA courses. The workshop also offered something of value to the non-profit sector of ELI’s membership. Virtually all of our Associate Seminars and programs are done with private practice issues in mind. I had often heard that Boot Camp, which includes sessions on how to conduct due diligence and transactional practice and is taught mostly by law firm attorneys, is too focused on corporate issues to be useful to those in the nonprofit world. We took the ELI member’s concerns seriously. We discussed the objections with other ELI members and advisors and with the member who wrote the email. Although I don’t believe we resolved her concerns, we concluded it was appropriate to conduct the workshop. We all understand that teaching people how to sue companies was not the primary purpose of the workshop. ELI’s Associate Seminars seek to increase the knowledge, skills, and ability of all environmental professionals to do their jobs. It may help you defend a company, advance a government position — or yes, even sue someone. That portion of the skills workshop entitled “Building a Case” spent much time discussing how to select the right case to take and the right clients with which to work. It taught people how to avoid frivolous suits and to recognize issues better addressed through administrative or legislative venues. And it covered how to be a more effective advocate in those matters that do wind up in court. By teaching these skills, we made workshop participants better professionals, inside and outside the courtroom. The people on the other side of these newly trained professionals will benefit by working with better rounded, more seasoned practitioners. Skills training is not a zero-sum game: all parties benefit when you have the luxury of working with smart, well-trained opponents. There is no doubt a closed door session made this program especially effective. According to work- Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010 shop participants, they felt more comfortable talking about what they did not understand and asking open-ended questions, which would not have happened if potential adversaries were in the room. Further, the session was able to target the issues of concern unique to public interest environmental advocates. Finally, the ELI member may have felt the Institute was singling out environmental groups for special treatment not afforded other ELI members. In fact, we hold annual closed door meetings of the ELI Corporate Environmental Network, where we invite the environmental leaders from ELI member companies to meet and discuss issues of common concern. We conduct other training sessions, such as international sessions for judges, in closed door settings. We limit attendance when we think it will serve the interests of the participants, not because we are forming cabals or helping people devise grand schemes against other ELI members’ interests. At the same time, we appreciate that ELI’s role of nonpartisan convener can be called into question when we use invitation-only sessions, and we use them judiciously. We hope to find funding for the workshop again next year, and to use the experience gained to create skills training programs for other ELI members to further our mission of strengthening all environmental practitioners. M ay / J une 2 0 1 0 ❧ Page 59 ELI Report Closing Statement Earth Day at 40, a Look Forward Leslie Carothers President T his year’s Earth Day celebration inspired a number of special occasions to reflect on where the environmental movement has been and where it is going. These included the first annual meeting of the EPA Alumni Association and a White House Conference on America’s Great Outdoors. Here at ELI, we held a Board of Directors meeting to review our mission and an Earth Day reunion of over 100 veteran staff and supporters. Headlining the EPA alumni gathering was William Ruckelshaus, the agency’s first and fourth administrator. As an agency alumna who served under him in the early days, I enjoyed hearing Ruckelshaus reflect on taking over a new organization responsible for carrying out a stack of laws comparable in their economic and social impact to the New Deal. In his trademark dry and humorous style, Ruckelshaus recalled learning early on that EPA’s actions made almost everyone — except on good days the public — mad about something. President Nixon’s business supporters did not much like what was coming out of EPA. Even Walter Cronkite complained about having to install a holding tank on his boat. On the positive side, Ruckelshaus cited his ability to hire the best people, without much interference from the White House; the advent of color TV to bring home to citizens the ugly impacts of pollution; and the ability to deploy major public funding as well as tough legal duties and deadlines to move foot-dragging municipalities toward cleanup of their wastewater. He also stressed the importance of leadership at all levels. Ruckelshaus serves as Chair of the Puget Sound Partnership, a broad-based organization promoting collaborative solutions to protect the waterbody from the impact of coastal and watershed development. He pointed to the example of two local leaders who came together to help their community hammer out a plan to control runoff in one of the ecosystems affecting water quality and habitat in Puget Sound. Of course, his own leadership in and out of government sets a fine standard. At the White House Conference, Interior Secretary Ken Salazar, the host, was happy to be upstaged by his boss, President Obama, who thrilled the audience of 500 conservationminded individuals and leaders of organizations from around the country by “just showing up,” as one of them put it. But he also had a message for the group. Remembering President Theodore Roosevelt’s White House meeting on conservation a century ago, Obama called for action and collaboration to protect our national landscape, to increase opportunities for outdoor recreation for everyone, and to reach out to Americans to reconnect them to their natural heritage. Like Ruckelshaus, the president stressed the role of leadership, especially grassroots leadership in all sectors, in finding solutions and opportunities for consensus. Even in times of crisis, he concluded, we are “called to take the Page 60 ❧ T H E E N V I R O N M E N T A L F O R U M long view.” Salazar and Agriculture Department Secretary Tom Vilsack moderated panels on conserving working lands and energizing citizens, followed by small group discussions to exchange ideas on how to form the necessary partnerships to make progress. Many of these same themes were prominent in the discussion of ELI’s vision and mission at the recent meeting of our board, which included several staff members. The participants wrestled with various formulations of a vision statement incorporating goals of environmental health, economic prosperity, and social justice. And they focused on what ELI has contributed and should contribute to bringing about the desired future state. Much of ELI’s agenda in fact responds to the continuing needs highlighted in Ruckelshaus’s remarks. We strive to provide the highest quality of education and publications for people in the environmental profession; to foster dialogue about environmental law, science, values, and choices with the profession and the broader public; and to perform research and analysis drawing upon the best thinking in all sectors, to come up with practical governance tools — those carrots and sticks — that can change the behavior of individuals and institutions in a positive direction. As Ruckelshaus and Obama agreed, what the country needs are more leaders who are ready and able to work with others to bring about change. A big part of ELI’s continuing mission is to equip those leaders with the ideas, and the experience of working with other stakeholders, necessary to be effective. ELI’s own remarkable band of alumni, board members, staff, partners, and volunteers who came together to celebrate this Earth Day are living proof that we are helping to foster that kind of leadership both inside our hallways and outside our doors. Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May/June 2010