Category: Ecoperspectives

Summary : Recently, at Vermont Law School’s annual Solutions Conference, a panel discussion highlighted the need for a stronger indigenous voice in natural resource management. The three speakers came from vastly different cultural and professional backgrounds, but all three agreed that local, state, and federal resource managers have repeatedly ignored indigenous concerns. Currently, indigenous peoples are making progress and some have secured a meaningful role in resource management decisions. However, they still have a long way to go. Environmental issues still disproportionately affect indigenous communities and economic development interests often force indigenous concerns to the sidelines.

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By Scott Lake

On Friday, March 28, Vermont Law School (VLS) held a panel discussion, revealing  the need for a stronger indigenous voice in natural resource policy. Three individuals who work on behalf of indigenous communities spoke about environmental threats to native peoples and cultures. In all three cases, native communities are struggling to maintain their cultural independence in the face of resource mismanagement, pollution, and governmental indifference.

While resource management decisions attempt to balance costs and benefits, indigenous people often bear a disproportionate share of the costs. Moreover, indigenous views on the connection between people, land, water, and wildlife often conflict with state and federal resource policy.

N. Bruce Duthu, a professor at Dartmouth College and a member of the Houma people of southern Louisiana, spoke of his tribe’s struggle to hold onto their lands and maintain their livelihoods. The Houma are rapidly loosing their lands to subsidence and erosion. The Mississippi River—now channelized by miles of dikes, levees, and canals – no longer deposits the sediment needed to replenish the Houma lands. And, according to Duthu, climate change is making matters worse. Flooding is more common and storms are more severe. Simultaneously, the fisheries on which the Houma people traditionally depend are dying. Young Houma men, who once trained to be fisherman, now go to work in the oil industry.  This is largely responsible for the collapse of the coastal fishery. Therefore, the Houma people have a “love-hate relationship” with oil.  Because the Houma people are not a federally recognized tribe, they are forced to rely on the State of Louisiana to stand up to oil interest on their behalf.  This rarely happens since the oil industry plays such a large role in state politics.  In fact one state legislator has suggested Louisiana replace the pelican on its state flag with the Texaco star.

In Washington State, Larry Campbell, a member of the Swinomish tribe, is working to protect salmon fisheries. The Swinomish and other Western Washington tribes traditionally depended on pacific salmon for sustenance and they considered themselves wealthy when salmon were plentiful. But now, with many salmon runs in danger of extinction, the tribes are struggling to assert their right to fish under numerous treaties with the United States. According to Campbell, the right to fish implies an obligation to protect and preserve the salmon. Campbell and other tribal leaders have finally secured a promise of meaningful consultation from State officials. But all too often, Campbell says, non-tribal economic development interests win in both the legislature and the courts.

Finally, Chris Amato, an attorney for EarthJustice, spoke to the VLS audience about the environmental challenges facing the Onondaga people of New York State. According to legend, Onondaga lake, near present-day Syracuse, is the birthplace of the Six Nations—also known as the Iroquois Confederacy. Today, however, the lake is a superfund site. Amato is working with the Onondaga to solve this and other problems by invoking federal anti-pollution laws. Amato works with environmental statutes—such as the Resource Conservation and Recovery Act – that allow tribes to interact with federal regulators as sovereign governments. The tribes have successfully utilized these laws to address “egregious abuses of process” by regulatory agencies. Because the Onondaga’s efforts, and others, tribes are beginning to play a meaningful role in environmental decision-making.

The tragedy is that the original inhabitants of the United States went so long without a voice in natural resource management. To many indigenous peoples, natural resources —such as lakes, forests, and fish—hold cultural and spiritual significance. The fact that indigenous peoples—like the Houma, the Swinomish, and the Onondaga—are often excluded from resource management decisions reveals a gigantic blind spot in environmental policy.

Natural resource planning often proceeds from the premise that managers ought to seek the “highest use” of any given resource. But, as this indigenous rights panel pointed out, the definition of “highest use” is open for debate. Too often, management decisions accommodate only economic interests. However, as Duthu, Campbell, and Amato pointed out, economic development goals often overlook the cultural and spiritual values of indigenous peoples. Management decisions also tend to sacrifice the long-term well-being of indigenous communities for the sake of short-term economic gain. Native peoples should share in land-management decisions on a level equal to federal regulators and state governments.

Scott Lake is a second-year student at Vermont Law School. He will graduate in Spring 2015 with JD and MELP degrees. He is also VJEL’s incoming Senior Article Editor. Before coming to Vermont Law School, Scott lived in Boise, Idaho, where he worked strange, low-paying jobs with peculiar people and played a lot of guitar. He also worked summers as a wildland firefighter with the U.S. Forest Service. He vehemently insists that Idaho has more to offer than potatoes, but so far, we don’t believe him. After graduation, he plans to practice public interest environmental law in the Pacific Northwest, where he hopes to protect wilderness and wildlife from pollution, exploitation, and the Idaho legislature.

The post Indigenous Peoples Seek a Voice in Natural Resource Management appeared first on Vermont Journal of Environmental Law.

Summary:  Arid regions in the southwest are quickly running out of water from excessive groundwater withdrawals, reduced surface water availability, and altered climate patterns. Texas is one of many arid regions facing severe water shortages. In an effort to secure water resources, Texas has turned to suing its neighbors for water resources rather than facing the elephant in the room: its own over consumptive water use.

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By Emily J. Remmel

Texas is out of water.

The Lone Star State’s surging human population, thriving natural gas and industry demands, and its high susceptibility to drought coalesce to create the perfect storm for water disputes. Water resources conflicts are familiar battles to westerners. Texas, however, is on the verge of facing an all-time water crisis and is blundering to secure water resources for future generations.

It is time Texas faces the thirsty elephant in the room.

As of now, Texas is making a paltry effort to face its growing demand for water and its critical lack of supply. Texas’s current strategy—sue thy neighbor.

In an effort to secure freshwater resources for its residents, Texas sued its Red-River rival and northern neighbor, Oklahoma. Tarrant Regional Water District (TWRD) applied for a permit to divert high quality fresh water from several Oklahoma tributaries to supply 1.7 million people (and growing) in the Dallas-Fort Worth metroplex. In Tarrant Regional Water District v. Hermann, Texas claimed that once the pristine Oklahoma tributaries met the shared Red River, the water became too saline, was unusable, and was ultimately wasted as it flowed into the Gulf of Mexico. TRWD further claimed Oklahoma’s denial for a permit was discriminatory in nature and unconstitutional under the dormant commerce clause.

This past summer, the United States Supreme Court ruled the Red River Compact, authorized by Congress in 1978, granted Oklahoma the right to deny Texas entry into Oklahoma to divert water resources. In a unanimous decision, Justice Sotomayor affirmed that thirsty Texas does not have a right to tap into Oklahoma’s water before the water physically reaches the Red River. This ten year battle left Texas with an empty bucket.

Now, a year later, Texas is at it again. This time, Texas is looking west to the Elephant Butte Reservoir in New Mexico in an effort to secure current and future water resources. Texas The delay and costly loss against Oklahoma may have motivated Texas to beeline it to the Supreme Court asserting original jurisdiction. Texas’s claim: New Mexico is violating the Rio Grande Compact by failing to deliver specified quantities of water into the Elephant Butte Reservoir to Texas’s detriment.

The Rio Grande River headwaters originate in southwestern Colorado and the River meanders through New Mexico before reaching Texas and discharging in the Gulf of Mexico. The River gracefully carves through the desert creating precipitous canyon walls. The United States National Park Service has designated certain portions of the River as wild and scenic because of its allure. The River is in trouble. Diminishing rainfall, shrinking snowmelt, and exuberant water withdrawals are reducing the River’s flow. The Elephant Butte Reservoir is at 18 percent its full capacity. The Reservoir is no longer a blue haven in the desert; it now seems more like desolate mirage.

Colorado, New Mexico, and Texas entered into the Rio Grande Compact, signed by Congress in 1939. This Compact specifically allocates a designated water quantity between the three states. Texas argues that New Mexico, contrary to the intent and purpose of the Compact, has allowed excessive surface water diversions and groundwater withdrawals, mostly to meet agricultural demands in an increasingly arid climate. New Mexico has violated the Compact by failing to deliver specific water quantities to the Elephant Butte Reservoir. Interestingly, Texas’s legal claim identifies the hydrological connection between surface water and groundwater. This hydrological phenomenon is usually not founded in the law, especially in the west where surface water rights are distinct from groundwater rights. On January 27, the Supreme Court granted original jurisdiction, allowing Texas to bring its water claim straight to country’s highest judicial authority.

Texas is home to millions of residents and dwindling water supplies. Further, it is clear that municipalities across the great state of Texas continually face reduced water supplies because of higher demands and drier climates. Texas has one tragic flaw: it persistently relies on the judicial system to allocate water to the state rather than take progressive steps towards conservation. It is true, according to the archaic and cryptic water Compact, Texans may deserve a certain “percentage” of water allocation from surrounding states. But Texas refuses to acknowledge the thirsty elephant in the room—extreme growth and development coupled with the lack of existing adequate freshwater supplies makes the “percent” water allocations increasingly unreasonable.

California, the poster state for water conflicts in the United States, is currently experiencing one of the worst droughts on record, quite possibly the worst in 434 years. Southern California’s soaring populations may face severe water restrictions and the state’s valuable agricultural industry could instantly crumble. Within the last two weeks, California farmers in dire need of water for thirsty crops requested assistance from the federal government. The Bureau of Reclamation, the federal agency in charge of water reservoirs and infrastructure on federal lands, turned thirsty-ag away. Although a forecasted two inches of rain may provide acute quick relief to those farmers seeking water, the chronic shortage of water resources in the west is only worsening. The Bureau of Reclamations decision was on-point—redirecting water resources through man-made canals and lengthy interstate or intrastate pipelines is not the solution. California’s drastic overuse of water to available quantity is a prime example of how Texas’s future pivots on a change of water mentality.

While we patiently await Texas’s formal complaint and New Mexico’s 12(b)(6) motion to the Supreme Court regarding the Elephant Butte Reservoir conflict, one must ponder alternatives to Texas’s chronic water shortages. What Texas has failed to see is that the solution to the water conundrum rests not in tedious litigious battles, but in Texas initiating robust water policies that restrict water use and incentivize water conservation.

To achieve such a balance, Texas must initiate cooperative land development and water resources planning. Texas should not promote urban or industrial expansion without a comprehensive water supply plan for the future. The burden to secure water resources would fall on the developer, not the town. The downside to this alternative is a drastic departure from the status quo and reduced economic prosperity (no community truly would promote less business). The decision, however, would offer long-term economic benefits. Residents and existing businesses or industries would be assured adequate water resources based on the comprehensive study and pre-condition that water supplies be adequate before development. There would be no competition or fear for the growing scarcity of water. Aquatic habitats would not be altered by interbasin water transfers. The answer to Texas’s water conflict rests with municipalities realizing water scarcity as an issue before it becomes a problem.

Texas should face this issue head on by implementing comprehensive water planning and development schemes. One thing is clear besides the shortage of water: Texas is running out of neighbors to sue. If the Lone Star State falters again before the Supreme Court against New Mexico, who knows which state Texas may sue next to secure water resources for its 26 million residents, multi-billion dollar agricultural and livestock revenue, and its predominant oil and gas industry.

Emily J. Remmel is a third-year Juris Doctorate candidate at Vermont Law School. She is near completion of a Certificate in Water Law and Policy and serves as the Editor-in-Chief of the Vermont Journal of Environmental Law. Emily is from Edmond, Oklahoma. She grew up with an admiration to understand and protect animals in their natural environment. She has a BS and MS degree in Zoology from the University of Oklahoma, where her focus was aquatic ecology. When not geeking out in the laboratory, she could be found exploring the natural world around her—seining for fishes, collecting water samples, and netting zooplankton to keep as pet friends in mason jars on her windowsill. Her career goal is to pursue her life’s dream to solve the freshwater demand crisis while protecting and preserving aquatic ecosystems.

Summary:   The Freedom Industries chemical spill in Charleston, West Virginia exposed holes in state and federal regulations for chemical storage tanks. A new Senate bill – S. 1961 – seeks to close existing loopholes and provide additional federal oversight where current state laws do not apply. The bill may prevent something like the Elk River spill from happening again in states that fail to take an initiative to implement preventative measures on their own.

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By Ashley Welsch

On January 9, 2014, a chemical tank at Freedom Industries in Charleston, West Virginia, leaked into the Elk River. The spill left 300,000 people over nine counties without drinking, cooking, or bathing water for ten days. The West Virginia National Guard and the Federal Emergency Management Agency (FEMA) had to provide aid to the affected residents, which included tankers full of potable water.

Almost immediately, politicians and community groups cried for new regulations to prevent something like the Elk River spill from happening again. At first glance, though, existing laws would seem applicable to the spill at Freedom Industries. Speaker John Boehner (R-OH) echoed this sentiment stating, “I am entirely confident that there are ample regulations already on the books to protect the health and safety of the American people.” Boehner is right in thinking that the Emergency Planning and Community Right to Know Act (EPCRA) and Clean Water Act (CWA) should have addressed the spill. But in reality, Boehner received donations from the Vice President of Freedom Industries in 2013. And Freedom Industries’ chemical tanks were operating within loopholes large enough to fit, well, tanker trucks of drinking water.

First, the area was practically a ticking time bomb. There are two other, larger chemical facilities along another river in the area, which is known by locals as “Chemical Valley.” In 2002, the Department of Health and Human Resources labeled Chemical Valley as having a “high” susceptibility to contamination. Federal regulators and local advocacy groups had urged West Virginia to pass new chemical safety regulations in 2010, but nothing happened.

It turns out that West Virginia is not very hospitable to regulations, and especially not to environmental regulations. West Virginia Department of Environmental Protection (WVDEP) regulations are not enforceable until approved by the State Legislature, which opens the door to prevalent industry lobbyists. Additionally, a New York Times investigation found that the WVDEP’s enforcement practices were questionable and their treatment of polluters was lax. There is also little public access to WVDEP records. There is no online database for West Virginians to access facilities’ EPCRA filings. Citizens must use a Freedom of Information Act request to access the records on paper.

Even if EPCRA records were accessible, EPCRA was not effective here. The Administrator of the local Emergency Planning Committee didn’t know the tank was there until after the spill, and Freedom Industries took almost four hours to report the spill. Freedom Industries wasn’t legally required to report the spill within 15 minutes—the EPCRA standard—because neither EPA nor the Department of Transportation had classified the chemical as “dangerous.” About a year ago, Freedom Industries gave the West Virginia Division of Homeland Security and Emergency Management an inventory of chemicals it had with “immediate hazards,” and the chemical that spilled was on that list. The inventory list was filed pursuant to EPCRA, but Freedom Industries never filed their emergency management plan. The water treatment plant operator and the local emergency group did not even know the inventory list existed.

Neither the public nor officials were familiar with what exactly leaked into Elk River. The main chemical that spilled, 4-Methylcyclohexanemethanol (MCHM), is a coal processing agent. The Occupational Safety and Health Administration has labeled MCHM as “hazardous,” and its consumption can cause nausea, dizziness, headaches, rashes, and burning eyes. Twelve days after the spill, Freedom Industries revealed that a second chemical, PPH, was in the tank. PPH, or polyglycol ethers, is a thinner for MCHM. MCHM hasn’t been tested for toxicity effects in over 40 years, and the Center for Disease Control and Prevention does not have any hazard information about it. Finally, the water treatment plant downstream of the spill did not know of any specific treatment to remove the MCHM from the water supply.

Even if public officials and citizens had known about the tank and what was inside, the tank was not subject to any environmental regulations. West Virginia, unlike other states, doesn’t require inspections of aboveground chemical storage facilities. However, West Virginia law does require aboveground storage facilities to provide containment areas for spills, allow leaks to be easily detected, and have a groundwater protection plan. But, Freedom Industries never submitted any protection plan to the WVDEP. The EPA generally does not regulate aboveground storage tanks either, though facilities with permits to discharge chemicals into water are required to have spill prevention plans for those chemicals. Freedom Industries had one—and only one—permit to discharge storm runoff into the Elk River, but it did not allow the company to discharge the chemicals themselves. Their permit was granted through the less rigorous general permitting system even though the facility is located right on the river. Vermont Law School Professor Pat Parenteau commented, “It’s no surprise that there was weak follow-up and enforcement on a general permit.”

Despite the gaps in regulation, industry lobbyists and some West Virginia politicians do not want increased federal oversight of chemical storage facilities. Industry lobbyists support the idea that states should enforce their own regulations, but new regulations are not needed. Sen. Joe Manchin (D-WV) is also critical of more federal regulation, even if the federal government has a minimal role. Sen. Manchin said, “We’re taking away so much of the liberties and freedoms, so we’ve got to set certain guidelines that are attainable and let states [handle implementation].” Ironically, the U.S. House of Representatives passed a bill to undermine federal authority under the Toxic Substances Control Act on the same day as the Elk River spill.

Given West Virginia’s poor record of enforcement and overall lack of knowledge and transparency, a federal solution is most appropriate. A new Senate bill (S. 1961) was drafted in the aftermath of the Elk River spill. This bill would require EPA inspections at aboveground storage facilities. These facilities would be subject to regular inspections every three years if they are near a drinking water source, or every five years otherwise. Facilities would also have to notify regulators of the identity and potential toxicity of its chemicals. Approved State programs would have to meet minimum requirements, including design standards, leak detection, spill control, inventory control, staff training, and an emergency response plan.

S. 1961 strikes a suitable balance between State and Federal authorities. Cooperative federalism has been effective for environmental regulation in the past. However, the bill’s future is uncertain because some legislators are wary of the increase in federal oversight. Arguably, this bill respects the States’ authority to handle their environmental problems, as long public health is also protected. S. 1961 resolves the issue of states, like West Virginia, that fail to take the initiative to handle the problem on its own. When 300,000 American citizens go without drinking water for ten days, our current system is clearly flawed. Passing Senate bill 1961 would correct our current system, make things right for several communities (including Chemical Valley), and protect against future catastrophic chemical spills.

Ashley is a JD/Master of Environmental Law and Policy ’15 candidate at Vermont Law School. She is a Staff Editor with the Vermont Journal of Environmental Law, Chair of the Campus Greening Committee, Environmental Legal Research Assistant to the Environmental Law Librarian, and Public Relations Officer for Women’s Law Group. Ashley graduated summa cum laude from the University at Buffalo in 2012 with a double major in Social Sciences Interdisciplinary and Political Science. She also served as the Climate Neutrality Coordinator for the UB Undergraduate Student Association. Ashley has interned with the Clean Air Coalition of Western New York and Amdursky, Pelky, Fennel & Wallen, P.C. in Oswego, NY. Over the summer of 2014, Ashley will intern with the New York State Office of the Attorney General’s Environmental Protection Bureau in Buffalo. After graduation, she would like to practice environmental law with a focus on compliance and enforcement.

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