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EcoPerspectives Blog

The Penumbras and Emanations of Climate Change: The Case for Environmental Constitutionalism in the U.S. Context

By Terry Ann Campbell*, Staff Editor for the Vermont Journal of Environmental Law

August 13, 2020

 

You may have heard that the Ninth Circuit recently dismissed Juliana v. United States for lack of Article III standing. According to the Ninth Circuit, the 21 Youth Plaintiffs failed to show that their claims can be redressed by the judiciary. The Court’s main argument indicates that Congress and the Executive branch would be better mediums for these young Plaintiffs to advocate for the constitutional relief they seek.

Contrary to the Ninth Circuit’s ruling, the Due Process Clause and the Equal Protection Clause were created to do just what the Youth Plaintiffs are vindicating; relief from the effects of climate change and preserving the planet for future generations. Youth Plaintiffs assert in their amended complaint that the government’s actions violate plaintiffs’ constitutional rights, depriving them of life, liberty and property. As such, Judge Josephine Staton issued a lengthy dissent to show her vehement disagreement with the majority ruling. Judge Staton opined that her colleagues should not have dismissed the case because the Youth Plaintiffs provided sufficient evidence to show that they suffered injury as a result of the government’s conduct or lack thereof. She continued that the judiciary was the correct avenue for the Youth Plaintiffs to air their claim because the judiciary has always been the medium that addresses constitutional issues. The dissent agrees with the Youth Plaintiffs that the Due Process Clause and the Equal Protection Clause protect fundamental rights—even those that are not expressly spelled out in our Constitution—because they are deeply rooted in our nation’s history and tradition.

Since the January 17, 2020 ruling, the Youth Plaintiffs, through their attorneys, filed an en banc petition with the Ninth Circuit on March 2, 2020. In the case of the Ninth Circuit, en banc means that the eleven-member bench will be asked to make a final decision on January’s highly controversial ruling.

Yet, for climate activists, Juliana is already a pretty big deal. It is the first U.S. case of its kind to have gained significant media attention. Further, Juliana has put judges in such a conundrum as to whether the Constitution allows for a private right of action to a clean and healthy environment.

At the basis of the Juliana case approach is the concept of environmental constitutionalism. This is the idea that courts must apply Constitutional Law in addressing cases that involve environmental violations especially when they threaten human life or health in some way or another. Environmental Constitutionalism began fifty years ago. There was a growing need to develop a system of environmental protections which take into consideration the future of human interaction with a more sustainable and lasting environment that is safe to live in. Further developments have led scholars to effectively advocate for the practice of incorporating constitutional texts that enforce against environmental violations—including those of a global nature—like climate change.

Environmental Constitutionalism, though novel in the U.S. context, has been applied by many other countries to bolster some of the most important court decisions that affect mankind and the planet. Concretely, Colombia remains the leading example of the difference constitutional protections can make for environmental claims. A  landmark case in Colombia saw the successful efforts of twenty-five young climate activists who carried individual constitutional claims through their country’s courts. The Colombian youth plaintiffs argued before the Constitutional Court that record rapid deforestation in the Amazon occurred between 2015 and 2016. Further, Colombia had already lost forty percent of its Amazonian forest and that the Colombian government—despite knowing of the repercussions—failed to prevent the vast deforestation.  The Colombian youth plaintiffs prevailed, and the Constitutional Court ruled that under the Colombian Constitution, the Amazon, was entitled to protection, conservation, maintenance, and restoration from harmful environmental practices. As you already know, the Amazon is home to many flora and fauna that are pivotal in maintaining the stability of our planet.

Another groundbreaking case is the Urgenda case which saw a class action decision approved by the Dutch Supreme Court. That Court ruled that the Dutch government has human rights obligations to its population to aggressively tackle the effects of climate change.

Furthermore, several countries like Cote d’Ivoire, Dominican Republic, Ecuador, Thailand, Tunisia, Venezuela, and Viet Nam have already expressly addressed climate change in their constitutions as a way of advancing climate justice and the right to a healthy environment. Notably, Ecuador has been lauded to be the first country to have rewritten its constitution to include the rights of nature , instead of treating nature solely as property rights.

Even though the Juliana case has been dismissed, this is not the time for climate activists to give up. The U.S. Constitution already has language that protects its citizens from the deprivation of life, liberty and property. Therefore, why not apply the Colombian and Dutch examples to the U.S. context to ensure compliance and enforce against disparate threats like climate change?

The time is right to expand the discussion for a U.S. framework on environmental constitutionalism. Regardless of the outcome of the Ninth Circuit’s decision, Juliana is a revolutionary case that continues to spark ongoing conversations and forge new precedent.

*Wah gwaan – Hello everyone! My name is Terry Ann Campbell and I am a 3L at Vermont Law School who will graduate in May 2021. Fun fact, I grew up on the island of Jamaica and I am fluent in French. I am currently pursuing a General Practice Certificate which has allowed me to gain a lot of practical experience in the field of Law. I take an intersectional approach to learning the law and as such, I am interested in the way the law interacts with commercial trade, human rights, and climate justice. Being a Staff Editor on VJEL has allowed me the opportunity to write about environmental issues I deeply care about. It’s been my pleasure writing this blog and I hope you will also find pleasure in reading it. When I am not tackling serious issues, I like to meet new people, go on nature walks, binge watch movies and catch up with old friends and family. Feel free to reach out to me if you have any questions, I would love to meet you!

 

The post The Penumbras and Emanations of Climate Change: The Case for Environmental Constitutionalism in The U.S. Context. appeared first on Vermont Journal of Environmental Law.

EcoPerspectives Blog

Spaceflight and the Environment: NASA’s NEPA Process

By Hunter Sutherland, Editor-in-Chief for the Vermont Journal of Environmental Law

August 3, 2020

 

Every mission, even exploration of other planets, starts with protecting our home, planet Earth .

 

What is NEPA?

Congress enacted the National Environmental Policy Act (NEPA) in 1970 to set the environmental policy for the United States. Major actions by federal agencies that significantly affect the quality of the human and natural environment triggers the procedural process of NEPA.

There are three main initiatives to achieve NEPA’s objective of protecting and enhancing the human environment: (1) to integrate environmental considerations into the planning of Agency actions as early as possible; (2) to ensure the environment, technical, and economic considerations are weighed during decision making and before any actions are taken; and (3) to ensure the decision maker and the public are aware of environmental consequences of proposed Agency actions and that informed decisions are made.

Each federal agency has their own specialized NEPA process, but each follows the same general principles. Typically, the NEPA process identifies issues that need to be addressed, determines alternatives that would correct the issues, studies any potential environmental issues, complies with environmental regulations, and involves the public throughout the process. If the action may have significant environmental impacts, then an Environmental Impact Statement (EIS) will be prepared. If no significant impacts are anticipated or if certain actions have already been determined to not have a significant impact on the human environment, then the action may be Categorically Excluded (CE or CatEx) from the detailed EIS analysis. The use of a CatEx is meant to reduce paperwork, improve efficiency, and eliminate delays in the start and completion of proposed actions with no significant impact. If it is unclear if the anticipated impacts will be significant, an Environmental Assessment (EA) will be prepared. If the EA demonstrates a significant environmental impact, an EIS will need to be prepared, but if no substantial effects are found, the agency will release a Finding of No Significant Impact (FONSI). Preparing an EIR begins with a Notice of Intent (NOI) that provides basic information on the proposed action and possible alternatives. The NOI should identify and invite the participation of interested persons. The next step is to prepare a Draft EIS and to give the public the opportunity to review and comment on the document. Once the agency weighs and incorporates public comments, a Final EIS is produced and a Record of Decision (ROD) is released.

NASA and NEPA

The National Aeronautics and Space Administration (NASA) NEPA Program is managed by their Environmental Management Division and implemented by three federal agencies. NASA’s Senior Environmental Official (SEO) oversees the integration of NEPA into the Agency’s planning and decision making process. Integration of the NEPA process with NASA projects ensures that : (1)  NASA’s commitment to sustainability and environmental stewardship are supported; (2) the public is appropriately engaged in the decision-making process; and (3) procedural risks and delays are minimized. The appropriate level of NEPA review depends on the scope of the Agency’s action and the context and intensity of reasonably foreseeable environmental impacts. NASA would not take an action that would have an adverse environmental impact or limit the choice of reasonable alternatives.

NASA’s Categorical Exclusions

There are several categories of actions that NASA would not need conduct a full NEPA analysis, unless extraordinary circumstances arise. For example, if an action threatens known national natural landmarks, or cultural or historic resources , that would be an extraordinary circumstance that may preclude the use of a CatEx. Specifically, administrative activities, operations and management activities, research and development activities, real and personal property activities, and aircraft and airfield activities are all categorically excluded from the full NEPA process.

NASA’s Environmental Assessments

An Environmental Assessment (EA) will be prepared when an action does not fall under a CatEx and would not likely result in more significant impacts, requiring an EIS. Actions requiring the development of an EA range from on-site construction projects to missions that would return extraterrestrial samples from asteroids, comets, planets, dwarf planets or planetary moons, that have no indigenous life forms.

NASA’s Environmental Impact Statements

An Environmental Impact Statement (EIS) will be prepared when actions might significantly impact the quality of the human environment and when an EA shows that significant impacts may occur which would not be reduced by changes to the proposed action. Actions requiring the development of an EIS range from the development of spaceflight program which uses a nuclear reactor or radioisotope power system to sample return missions where the material collected may contain potential indigenous life forms.

*Hunter Sutherland is currently a 2L at Vermont Law School and is the Editor-in-Chief of Vermont Journal of Environmental Law Vol. 22. Author of The Stakes are Out of This World: How to Fix the Space Act of 2015 , forthcoming 2021. Hunter chose to attend Vermont Law School for their top tier environmental program but has found a great interest in topics ranging from Space Law to Legal Innovation.  Prior to law school, Hunter attended SUNY Oswego and received a bachelor’s degree in Cognitive Science.

 

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EcoPerspectives Blog

Remedying Agency Misconduct

By Alex Spitzer

July 26, 2020

 

The Minnesota Pollution Control Agency (MPCA) secretly took part in an illegitimate and illegal procedure when providing a national pollution discharge elimination system (NPDES) permit to PolyMet. [1]  PolyMet is a foreign company owned by Switzerland’s mining juggernaut Glencore. Fortunately, brave EPA employees blew the whistle and uncovered that the MPCA illegally withheld written comments made by EPA professional staff. These comments expressed major concerns that the permit MPCA planned to issue to PolyMet did not comply with the Clean Water Act. [2] The MPCA clearly and intentionally misrepresented and concealed material facts during the permitting process. The concealment warranted a transfer to Minnesota District Court to review the MPCA’s permitting process and decision. [3] But there has been no indication that the MPCA’s sinister actions will cause the District Court to review and remedy the situation any differently than a typical Administrative Procedure Act (APA) violation. The court, however, needs to recognize the rarity and severity of MPCA’s corrupt actions and address them accordingly.

 

Government agencies commonly engage in misconduct of some sort, which is why Congress created the APA. The APA’s purpose is to “improve the administration of justice by prescribing fair administrative procedure.” [4] No restraint is more important to upholding justice than the restraint of judicial review. Judicial review through the APA advances justice by providing the only avenue to challenge an agency action, finding, or conclusion.   Judicial review enables the courts to review and compel agency action when the court finds a previous agency action improper. The APA lists six categories of agency actions that qualify as a type of misconduct that would allow the courts to intervene through judicial review. [5]

All agency misconduct damages society but not to the same extent. Surprisingly, the APA does not create any guidelines for how to evaluate the severity of the misconduct that it lists. This means there are no procedures in place to ensure that courts respond to misconduct with the appropriate force. However, logically, it makes sense the more severe the misconduct is, the stronger the court’s response must be.  Put simply, bigger problems require bigger solutions; the worse the misconduct is, the more harm it does to society. Therefore, a key aspect of “bigger solutions” to aggressive misconduct is taking proper steps to ensure the misconduct is not repeated.

Now, the big question becomes how to measure the degree of agency misconduct? First, we have to understand what agency misconduct is. At its most basic understanding, agency misconduct is a form of corruption. Corruption is defined as “a departure from the original or from what is pure or correct.” [6] Thus, when an agency initially fails to follow the proper procedures, that can be considered corruption. Corruption and intentional agency misconduct are two sides of the same coin. Therefore, we can use similar metrics to measure the degree of agency misconduct as we would use to measure the degree of corruption.

Fortunately, Zephyr Teachout has already created a way to measure corruption. Corruption is best understood by its context and intent. [7] That is why attitude is a requisite for corruption because it is impossible to separate corruption from a moral failure. [8] Therefore, each potential act of corruption should be examined on an individual basis, like misconduct. Typically, corruption is recognized based on five concepts: quid-pro-quo, inequality, drowned voices, dispirited public, and lack of integrity. [9] Therefore, it makes sense to measure the “corruptness” of an agency’s misconduct by evaluating how intensely it satisfies one or more these concepts. We can use these elements to measure intentional agency misconduct because intentionally agency misconduct impacts society in the same way.

Having said all that, the Supreme Court has created a specific term for acts that should automatically qualify as a severe type of corrupt agency misconduct; that term is “affirmative misconduct.” Affirmative misconduct is one way to describe egregiously wrongful government conduct. [10] Affirmative misconduct is intentionally misrepresenting or concealing  material facts by the government (sound familiar?). [11] Mere inadvertence, mistake, imperfect conduct, delay, inaction, or even failing to follow agency guidelines cannot qualify as affirmative misconduct. [12] Additionally, neither an innocent or negligent misrepresentation will be  considered affirmative misconduct. [13] Not even unprofessional or misleading conduct can qualify as affirmative misconduct. [14] Unlike regular misconduct, affirmative misconduct establishes that something larger than a casual mistake occurred.

Intentionally engaging in wrongful conduct as a government official is a severe abuse of power and uncovering affirmative misconduct should automatically trigger the process for remedying agency corruption. It is difficult establishing a proper process for handling agency corruption to ensure it doesn’t happen again. The most pragmatic way to resolve this issue is to handle the problem the best we can every time it comes up and begin to develop effective and consistent remedies. This process would create a kind of law that was common for dealing with agency corruption. A sort of “common law,” if you will.

Fortunately, the MPCA situation mentioned earlier is a perfect place to begin on this journey. The courts should consider the MPCA’s misconduct as affirmative misconduct and automatically consider it as type two misconduct: corrupt. The courts must take adequate steps to restore agency credibility, to minimize the harm to society, and to ensure the corrupt act will not happen again. Therefore, the next step is to read my article on how the courts should begin laying the foundation for how to manage agency corruption.

[1] http://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/62-CV-19-4626/Memorandum2.pdf.

[2] http://timberjay.com/stories/polymet-permits-in-doubt,15191.

[3] http://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/62-CV-19-4626/Memorandum2.pdf.

[4] https://www.justice.gov/sites/default/files/jmd/legacy/2014/05/01/act-pl79-404.pdf.

[5] https://www.law.cornell.edu/uscode/text/5/706.

[6] https://www.merriam-webster.com/dictionary/corruption.

[7] https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3123&context=clr.

[8] https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3123&context=clr.

[9] https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3123&context=clr.

[10] https://1.next.westlaw.com/Document/Id04ba3c7ff6811d983e7e9deff98dc6f/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad604ab00000170b07b31a8c5b906d2%3FNav%3DCASE%26fragmentIdentifier%3DId04ba3c7ff6811d983e7e9deff98dc6f%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=30ccf87cd04df96c575b46f4f565b6a4&list=CASE&rank=1&sessionScopeId=ef6716c50f2def63b045d051d7a37bf0e898ce500a75e1afb1b11d2d4587f183&originationContext=Smart%20Answer&transitionType=SearchItem&contextData=%28sc.Search%29.

[11] https://1.next.westlaw.com/Document/I87d98a9b970211d993e6d35cc61aab4a/View/FullText.html?transitionType=UniqueDocItem&contextData=(sc.Search)&userEnteredCitation=18+F.3d+1492.

[12] https://1.next.westlaw.com/Document/Id04ba3c7ff6811d983e7e9deff98dc6f/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad604ab00000170b07b31a8c5b906d2%3FNav%3DCASE%26fragmentIdentifier%3DId04ba3c7ff6811d983e7e9deff98dc6f%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=30ccf87cd04df96c575b46f4f565b6a4&list=CASE&rank=1&sessionScopeId=ef6716c50f2def63b045d051d7a37bf0e898ce500a75e1afb1b11d2d4587f183&originationContext=Smart%20Answer&transitionType=SearchItem&contextData=%28sc.Search%29.

[13] https://1.next.westlaw.com/Document/I2663a6516eae11d9bd09d9bdc1d194d4/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad604ab00000170b07d86b2c5b90913%3FNav%3DCASE%26fragmentIdentifier%3DI2663a6516eae11d9bd09d9bdc1d194d4%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=c1dcf8adbea5c16ac8be0d3438037e06&list=CASE&rank=3&sessionScopeId=ef6716c50f2def63b045d051d7a37bf0e898ce500a75e1afb1b11d2d4587f183&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29.

[14] https://1.next.westlaw.com/Document/I6e463a9489c111d9b6ea9f5a173c4523/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad604ab00000170b07e2899c5b909cf%3FNav%3DCASE%26fragmentIdentifier%3DI6e463a9489c111d9b6ea9f5a173c4523%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=3b1a4d36a8d9f92b8a8ac722d7ad6044&list=CASE&rank=1&sessionScopeId=ef6716c50f2def63b045d051d7a37bf0e898ce500a75e1afb1b11d2d4587f183&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29.

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EcoPerspectives Blog

PJM’s Pass Back to FERC’s MOPR Order

By Naveed Nanjee

July 20, 2020

 

In December 2019, the Federal Energy Regulatory Commission (“FERC”) released an order that requires PJM Interconnection LLC (“PJM”), a regional grid operator, to expand its Minimum Offer Price Rule (“MOPR”) to state-subsidized resources in the capacity market. This order attempts to extend the MOPR beyond its traditional use and also attempts to raise the price floor of resources that receive a state subsidy. Neil Chatterjee, FERC’s chairman, stated that the thinking behind the extension of the MOPR to state-subsidized resources is to “safeguard the competitiveness of the market” and provide “a level playing field for all resources.” The rule’s biggest critics are those that are most adversely affected, which include clean energy and consumer interest groups. These groups see this order as a full-court press on their industry as they claim that it unfairly raises the price for clean energy, specifically new wind and solar energy, and ultimately raises prices on consumers. In contrast, supporters of the rule, including natural gas companies like Calpine Corporation, suggest that the rule levels the playing field, because current subsidies allow non-competitive generators to bid lower and skew prices.

Since the release of this ruling, PJM itself has filed a request for rehearing, making substantial arguments against the FERC order. For example, PJM suggests that the order “disrupts the balance that has successfully worked to accommodate the interests of states and integrated utilities, with appropriate guardrails, while maintaining the integrity of the market and ensuring a wholesale rate in the zone of reasonableness.” In addition, PJM also argues that “the new approach also needlessly interferes with state resource policies well beyond what is needed to protect the market against inefficient price formation and achieve rates within a zone of reasonableness.”

A number of House Democrats have also publicly denounced FERC’s recent order. In a letter addressed to Chatterjee, 36 Democrats expressed concerns about the proposed rule, suggesting that the “decision will functionally nullify the energy preferences of states, increase consumer costs by forcing customers to pay twice for generation capacity, and deny states flexibility to pursue their policy goals.” This letter also outlines the issue of preemption with MOPR. The recent FERC order likely preempts state policy by limiting the ability of states to choose the source of their energy resource mix provided under the Federal Powers Act (“FPA”). The letter also states that the MOPR “largely denies states any flexibility in setting energy policy goals.” Because FERC establishes a broad definition of “state subsidy” through this order, any new resource would be subject to the MOPR. Thus, states that have established policies to incentivize clean energy would essentially be blocked from the PJM capacity market.

The Sierra Club, along with a coalition of interested parties, also responded with a letter to Maryland Governor Larry Hogan, Senate President Bill Ferguson, and Speaker of the House Adrienne Jones requesting the Maryland Public Service Commission to mitigate the FERC ruling. The coalition letter suggests that “[i]f this egregious decision to undermine states’ rights is left unchecked Maryland ratepayers could pay hundreds of millions in higher electric bills in the coming years to dirty power plants.” On March 18, 2020, PJM issued a 536-page compliance filing that could alleviate some of the concerns brought to light by environmentalists like the Sierra Club and the renewables industry. The compliance filing proposed to allow projects to individually advocate for lower MOPR and establishes a “resource-specific” exception. This exception allows a resource subject to the MOPR to avoid a default floor price and set a minimum bid price instead, providing flexibility for renewable energy technologies to remain competitive. The filling has requested a waiver for the reliability pricing model auction deadline and an extended comment period of at least 35 days, given the size of the filing.

This MOPR rule has already resulted in tremendous criticism. PJM’s compliance proposal takes a balanced approach to the MOPR rule. However, the ball is now back in FERC’s court as the compliance order is subject to its review and approval.

 

The post PJM’s Pass Back to FERC’s MOPR Order appeared first on Vermont Journal of Environmental Law.

EcoPerspectives Blog

Fighting Deadly Fires with Legislation

By Kayley Olsen

July 13, 2020

 

Recently, California saw the worst and most devastating fire in their history. The Camp Fire of 2018. On November 8^th , 2018 the foothills of the Sierra Nevada set ablaze and would continue to do for the next 17 days. During that time 153,000 acres of land burned, 14,000 residencies were destroyed, and 85 people were killed. Camp Fire destroyed homes that would devastate families and change their world forever. After six months of investigation, the California Department of Fire (CalFIRE) determined the culprit of the wildfire was PG&E . Essentially, PG&E did not inspect their electric wires frequently, and due to their infrequent inspections— a live wire that was over 100 years old fell down and started the fire.

Following Camp Fire, CalFIRE wanted to ensure that something like this would never happen again, especially at the hands of PG&E. PG&E was required to create a plan that would ensure fire safety from their lines. Essentially, PG&E followed a public utility code in California that said they would clear cut all trees near the electric lines. While this sounds good in practice, it has led to many trees that are protected under California legislation to be cut down. Many Californians were upset that PG&E thought this was the best decision and questioned why California’s environmental legislation called the California Environmental Quality Act (CEQA) didn’t review their decision more closely. For instance, under the review of CEQA, PG&E could have prevented cutting down these protected trees and explore some other means of fire prevention.

PG&E operated under a categorical exemption in CEQA. A categorical exemption means that a proposed project does not need to go through the CEQA process where an environmental impact report does not need to be conducted and no other actions that may be less environmentally harmful need to be assessed. PG&E operated under a class 7 and class 8 exemption where the action is to enhance the environment and they are operating under an already authorized statute. PG&E, to keep in mind, is operating under an already authorized statute under the California Public utility code.

But how is this fair? How can they get away with this? Isn’t the point of CEQA to protect the environment as much as possible? Well, there are times in which the California courts have overruled a categorical exemption with something called the cumulative impact doctrine. The cumulative impact doctrine essentially says that exemptions to CEQA are inapplicable when the cumulative impact of successive projects of the same type in the same place over time is significant.

PG&E’s actions will be significant over time, they are successive projects that go up and down the entire state of California. PG&E will have a major impact on the environment by cutting trees down and will leave the ecosystem devastated. Scientists have said that clear cutting trees, like PG&E is doing, does not equate to fire prevention. There are other means out there besides clear-cutting trees that will work towards fire prevention.

If Californians want to protect their beautiful trees from being cut by PG&E, they need to petition the courts to reconsider PG&E’s actions under a full CEQA review. Under the CEQA review the environmental impact report would show that there are other means besides cutting down trees that will ensure fire prevention. This would be a win-win for everyone because the trees would still be protected, but PG&E would be able to figure out ways to work towards fire prevention without harming the environment.

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EcoPerspectives Blog

Extending Emergency Preparedness to Farm Animals

By Karianne Morrissey

July 6, 2020

 

The ongoing threat of climate change leads to an increasing number of disasters every year. Animal agriculture is one of the drivers contributing to the acceleration of global warming. [1] In the United States, the current emergency preparedness legal frameworks, at both the state and federal levels, are inadequate. The framework provides exceptions for domestic pets and service animals but not farm animals. Farm animals are rarely beneficiaries of such provisions making them and the communities in which they live more vulnerable to the detrimental impacts of climate change. This gap is a persistent injustice to farm animals who are also at risk of pain, suffering, distress, habitat destruction and displacement, and the communities of which they are members. A proposed approach to the problem of animal suffering not adequately addressed under existing law is to extend public health emergency and disaster preparedness and resilience frameworks to farm animal communities drawing on the model crisis standards of care. [2] These standards would help to mitigate and palliate animal pain, suffering and distress in escalating climate-driven disasters and foster human-animal post-disaster resilience.

The current federal disaster preparedness scheme does not, in application provide for the protection of farm animals in the event of a disaster. The three acts that work together to form the current federal disaster plan are the Pets and Transportation Standards Act (PETS), the National Response Framework (NRF), and the Post-Katrina Emergency Management Reform Act (PKEMRA). [3] The PETs Act gives the Federal Emergency Management Agency (FEMA) the authority to reimburse the state emergency preparedness plans that include animals. [4] However, the PETS Act does not include farm animals. [5] The NRF is a guide for FEMA on how to respond in disasters and calls for the emergency staff to consider those who are responsible for animals. [6] This includes farm animals and livestock. [7]  The PKEMRA allows FEMA to provide assistance to local governments before the state governors request aid. [8]

Under this scheme, the federal government’s relief in the event of a disaster is discretionary. [9] Congress determines the annual budget for FEMA. [10] Additionally, the president must declare a federal disaster to trigger FEMA’s authority. [11] This leaves the disaster preparedness plans vulnerable to the politics of government. The states must have their own disaster preparedness plans to receive supplemental funds from FEMA. [12] But, there is no requirement that the state must include animals in their preparedness plan. While FEMA calls for the consideration of domestic and farm animals in disaster preparedness, [13] in application they are left at the mercy of the states to protect them in emergencies or disasters.

The scope and magnitude that disasters have on communities should be addressed under public health law. Under public health law, the states must create guidelines that improve the health and well-being of community members, which includes farm animals. In 2009, at the direction of the Department of Health and Human Services, the Institute of Medicine issued the Crisis Standards of Care (CSC) which are guidelines for state and local governments. [14] These guidelines have a palliative care component. [15] The palliative care component includes elements, such as palliative care in disaster response plans, pain management, and assistance to reduce distress. [16] The palliative care component could be extended to create protections for animals in disasters. These palliative care standards would extend to animals who are sick as a result of catastrophes or those that are in pain and suffering.

It is clear now more than ever that disaster and emergency events affect all members of the communities in which we live. Farm animals are among those members and deserve to be given greater protections under the law in the event of disasters and emergencies.

 

 

[1] Lisa Winebarger, Standing Behind Beastly Emissions: The U.S. Subsidization of Animal Agriculture Violates the United Nations Framework Convention on Climate Change , 27 Am. Int’l L. Rev. 991, 1007 (2012).

[2] Inst. Of Medicine, Crisis Standards of Care: A Systems Framework for Catastrophic Disaster Response, 1 (Dan Hanfling, et al., eds.) (The National Academies Press (2012), https://commed.vcu.edu/IntroPH/2012/crisisManagement_IOM.pdf.

[3] Pets Evacuation and Transportation Standards Act, Pub. L. No. 109-308, 120 Stat. 1725 (2006) ; Pub. L. No. 109-295, tit. VI, 120 Stat. 1355, 1394 (2006); Pets Act (Faq), am. Veterinary med. Ass’n,   https://www.avma.org/KB/Resources/Reference/disaster/Pages/PETS-Act-FAQ.aspx (last visited Mar. 25, 2020).

[4] Erica LaVoy, The Pets Act and Beyond: A Critical Examination of the Pets Act and What the Future of Disaster Planning and Response for Animals Should Be , Mitchell Hamline L.J. Pub. Pol’y & Prac. 67, 71 (2019).

[5] Id. at 72.

[6]   U. S. Dep’t. of Homeland Sec., Nat’l Response Framework (2009), https://www.fema.gov/media-library-data/1582825590194-2f000855d442fc3c9f18547d1468990d/NRF_FINALApproved_508_2011028v1040.pdf.

[7] Id.

[8] LaVoy, supra note 11, at 73.

[9] Danshera Wetherington Cords, An Inflection Point for Disaster Relief: Superstorm Sandy , 35 Touro L. Rev. 925, 929, 926 (2019).

[10] Id. at 934

[11] Id. at 933.

[12] Paige Chretien, Discretion Bites: The Current State of Animal Emergency Planning, 8 SAN DIEGO J. OF CLIMATE & ENERGY L. 250, 263 (2017).

[13] U. S. Dep’t. of Homeland Sec., Nat’l Response Framework (2009), https://www.fema.gov/media-library-data/1582825590194-2f000855d442fc3c9f18547d1468990d/NRF_FINALApproved_508_2011028v1040.pdf.

[14] Inst. Of Medicine, Crisis Standards of Care: A Systems Framework for Catastrophic Disaster Response, 1 (Dan Hanfling, et al., eds.) (The National Academies Press (2012), https://commed.vcu.edu/IntroPH/2012/crisisManagement_IOM.pdf.

[15] Id.

[16] Id.

The post EXTENDING EMERGENCY PREPAREDNESS TO FARM ANIMALS appeared first on Vermont Journal of Environmental Law.

EcoPerspectives Blog

How the Tides Have Shifted for Virginia Energy Policy in 2020

By Antonia Douglas

June 29, 2020

 

Under Governor Northam’s direction, Virginia’s Energy Policy shifted quite dramatically from when he first took office in January 2018 to what we have at the end of the 2020 Legislative Session. For years, legislators, policymakers, and business – Dominion Energy – have been avoiding the writing on the wall that climate change is having a substantial impact on Virginians, whether it be the fate of our historic sites in Williamsburg, the crop yield in the Shenandoah Valley, or an even more miserable pollen season in Richmond . The effects of climate change in Virginia are apparent and affecting the well-being of Virginians every day. There is hope that these effects of climate change can be slowed down or even mitigated with drastic changes in our energy sector.

The energy sector is one of the biggest polluters when it comes to greenhouse gas emissions (“GHGs”), not only in the country but in each state. Many states are responding to global calls for clean energy and making actual changes which reflect the climate change crisis. Today the energy sector accounts for 30% of the carbon dioxide emissions in Virginia. To stimulate change in the state, Virginia needs steadfast change to its energy sector. This past September Governor Northam enacted Executive Order 43 , which set a 30% renewable energy goal by 2030 and a 100% carbon-free goal by 2050 for Virginia. Governor Northam’s Executive Order 43 was an exciting and monumental moment for the Commonwealth. Still, a majority of it was not legally binding without major action by the General Assembly.

The new decade has been a busy start for Virginians as the General Assembly started its 2020 session on January 8. With the recent flip in both, the House and Senate gave climate and energy activists the morale boost they needed to make 2020 the year where the legislature created a framework to transition the Virginia economy to 100 %? renewable. While dozens of other bills aim to reform Virginia energy law, the focus was on two very different omnibus bills. These two bills would not only create this framework, but it would codify Governor Northam’s Executive Order 43, the Clean Economy Act , and the Green New Deal Act.

While the Green New Deal was relatively short-lived, the Clean Economy Act lived on and is currently sitting on Governor Northam’s desk waiting for his signature. A coalition of the renewable energy industry and environmental groups put forward the Clean Economy Act (“CEA”). Delegate Rip Sullivan of Fairfax and Senator Jennifer McClellan of Richmond are the sponsors of the act in the House and Senate, respectively. The goal of the CEA is to bring zero-carbon electricity supply to Virginia by 2050. One of its key features is the required increase of 3 % in renewable energy every year from 2021 to 2050. Also, under energy efficiency, utilities must achieve energy savings that increase to 2% a year by 2027. These modest increases of required investments in renewable energy and efficiency leave no room for the utilities to argue that the targets will cause them economic discomfort. The CEA also includes a provision for joining the Regional Greenhouse Gas Initiative to reduce statewide electric carbon emissions by 30 percent by 2030. [1] This provision is in accordance with DEQ’s carbon regulations finalized last year.

Further, the CEA includes provisions that created a mandatory renewable portfolio standard where 41 percent of Virginia’s total electric energy will be generated by renewable energy by 2030. [2] But with the generation of total electrical energy and with around 30 percent of Virginia’s electric generation coming from nuclear power, Virginia would only be receiving roughly 30 percent of its electricity from renewable sources. This number is a nod to the 30 percent by 2030 renewable energy target set by Governor Northam in his Executive Order 43. Also, the CEA does not change the code’s existing definition of renewable energy, foregoing the opportunity to exclude biomass, biogas, and other dirty renewables from Virginia’s RPS. Lastly, the CEA includes provisions to include community solar and remove barriers to net metering. The CEA raised the net metering cap to 10 percent, raises the commercial size cap to 3 MW, removes all caps on third-party power purchase agreements, and eliminates standby charges on residential and agricultural customers. And the cherry on top of the CEA is a one-year moratorium on the permitting of any new carbon-emitting generating units that an investor-owned utility might want to build.

Lastly, outside of the CEA, an array of other energy bills has been passed by both the House and Senate that further customer-sited solar or net metering. One is the Solar Freedom Bill , which lifts barriers to customer-sited renewable energy such as rooftop solar. The new provisions lift the net metering cap to 6% for IOUs; raise the PPA cap to 1,000 MW in Dominion territory and 40 MW in APCo territory; remove standby charges below 15 kW in Dominion territory and completely for APCo; raise the residential size cap to 25 kW and the commercial project sizer cap to 3 MW; and much more. Also, in the realm of nuclear energy, a Senate Bill defined “clean” and “carbon-free” energy that not only Virginia law has been silent on but also Governor Northam’s executive order. The bill defines clean or carbon-free energy to “include nuclear energy for the purposes of the code . . . and declares that nuclear energy is considered a clean energy source for the purposes of the Commonwealth Energy Policy.”

The CEA is not perfect by any means, and the clean energy transformation it strives for is incomplete. While the bill is a step in the right direction, its provisions: mostly do not apply to electric cooperatives; requires utility customers to subsidize biomass use by paper companies;  gives Dominion free rein on spending; provides weak energy efficiency targets; and focuses primarily on utility-scale projects and forgets about the importance of customer-sited projects. All in all, this legislation and hopefully new law is groundbreaking and transformational for Virginia Energy Policy. Almost overnight, Virginia went from the bottom of the totem pole to be one of the leaders in clean energy policy and reform. The future in Virginia energy policy will be an exciting one to watch.

 

 

[1] The state would auction carbon allowances, with 50% of proceeds funding energy efficiency programs for low-income, disability, veteran and elderly residents; 16% going to energy efficiency measures on state and local property; 30% for coastal resilience; and 4% for administrative costs.

[2] Total electric energy is defined by the Va Code to mean total electric energy minus electricity produced by nuclear power.

The post How the Tides have Shifted for Virginia Energy Policy in 2020 appeared first on Vermont Journal of Environmental Law.

EcoPerspectives Blog

Rural Farm Electrification

By Max Matt

June 23, 2020

By Max Matt

Roughly 9 percent of the United States’ greenhouse gas emissions come from the agriculture sector. [1] As with transportation, electricity generation, commercial, and industrial activities, this fact begs the question: what can we do about it? Some activities within agriculture emit greenhouse gases inherently – for example: cows burping. [2] Until, a recently-discovered, cow gas-reducing pink seaweed additive starts getting mass-produced, the only way to abate the gas is to curtail beef production. [3] Many other farm activities, however, involve the regular use of gasoline and diesel engines. [4] Alternatives to internal combustion engines for transportation are already in widespread use and are slowly gaining popularity. [5] This blog post will explore the electric alternatives to fossil fuel-powered industrial farm equipment, and the barriers to their adoption.

Is Electrified Farm Equipment Available?

Yes and no. John Deere is presently working on developing large-scale electric tractors. The first, the SESAM (Sustainable Energy Supply for Agricultural Machinery), debuted in 2016 and was battery powered. [6] The latest, the GridCON, is cable-powered, and packs 400 horsepower. [7] Although it must be constantly tethered by a cable, this tractor is autonomous and programmable, and has the option for remote-control. [8] Smaller tractors, on the other hand, are already on the market, and can be had for about double the price of a similar diesel tractor, which is about $20k. [9]

Barriers to Adoption

First, the issue with electrifying farm equipment, even light equipment running on batteries, is likely to be range anxiety. While you can gas up a diesel tractor all day long, electric tractors have the limitation of battery life, which may be only 4-8 hours, depending on the load. [10] Fundamentally, this problem may be difficult to solve without some larger-scale changes to electricity policy. Currently, just as with homes, DC voltages required to power level 3 chargers are not available to the average consumer without the consent and requisite line upgrades from your power company. [11] These chargers can charge an electric car to 80% in about 30 minutes, but they are prohibitively expensive to install. [12]

A Policy Issue

To facilitate the general electrification of the equipment in our lives, which currently run on fossil fuels, major investments are needed to our electrical system. [13] Right now, EV adoption is happening at the consumer level, which means that the average consumer doesn’t have to think much about their power company when they go out and buy a Tesla or a Chevy Bolt. They just buy the car and have a charger installed on a 240v panel by an electrician. [14] Their house, in turn, pulls more watts from the distribution system owned by the power company than it would without the load of an electric car. That would be just fine if our system was built to handle equipment like electric cars or tractors drawing more energy. [15] Unfortunately, especially for folks without a solar system, that isn’t the case: each new electric vehicle costs power companies (and therefore consumers) between $1700 and $5800 in grid upgrades. This might ultimately translate to a rate increase of around 12 percent, and that’s just from electric cars. [16] Electrify the agricultural sector, and inevitably that figure increases.

The Answer: (Probably) BIG Federal Spending

Back in the 1930’s, Franklin Roosevelt’s New Deal included a law called the Rural Electrification Act. [17] The Act empowered the federal government to make cheap loans to non-profit cooperatives of rural farmers in order to electrify rural America. [18] The Act worked well. Almost all rural areas and small towns across the U.S. have been electrified, and the co-ops have given birth to exciting administrative and engineering innovations. [19] So, could the federal government do something like that again, but to upgrade the system? The answer to that question could depend on a few more factors than just bipartisan legislation. The modern electric grid is an economy, albeit a heavily-regulated one. [20] Like most economies, it is driven by supply and demand. Usually, the model works like this: consumers want cheap electricity, and the cheapest electricity provider wins the bid to provide that power. [21] In a place like Texas, where wind power is cheap and plentiful, that has worked out in renewable energy’s favor. [22] But grid upgrades and renewable energy don’t necessarily go hand-in-hand, and until electric farm equipment becomes widely available for cheap, it is unlikely farmers will invest in it. This double-edged sword begs the question: should we wait until demand for electrification drives power companies and co-ops to make massive upgrades themselves, or prepare for that eventuality? The federal government could, in theory, make money available to co-ops and power companies to perform grid upgrades. The availability of more power without more expense could drive consumers and industries like agriculture to electrify, especially in the presence of a carbon tax.

[1] https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions (see pie chart on greenhouse gas emissions by economic sector).

[2] https://www.bbc.co.uk/newsround/49368462 (explaining about how cows emit heaps of methane, and a seaweed additive to their feed can help).

[3] https://www.forbes.com/sites/jeffkart/2019/11/04/blue-ocean-barns-seaweed-supplement-makes-cows-burp-less-cuts-greenhouse-gas-emissions/#30d1c9a772a6 (the inventors are still working some kinks out, but this is promising technology)

[4] https://www.epa.gov/afos-air/emission-standards-farm-equipment-engines

[5] https://www.citylab.com/transportation/2018/10/where-americas-charge-towards-electric-vehicles-stands-today/572857/

[6] https://www.producer.com/2019/02/deeres-new-electric-tractor-tosses-the-battery/.

[7] Id.

[8] Id.

[9] https://www.solectrac.com/eutility ; see also https://www.trigreenequipment.com/promotions/tractor-sales-specials/5045e-5-series-john-deere-tractor-sale/ (compare for an idea of the cost difference between a new electric light tractor and a new diesel one).

[10] https://www.solectrac.com/eutility (note the 3-6 hour battery life, and 3-hour, 80% charge time).

[11] https://www.energysage.com/electric-vehicles/charging-your-ev/install-a-home-charging-station/ (level 3 charges require direct current, which is generally not available residentially).

[12] Id.

[13] https://www.bcg.com/publications/2019/costs-revving-up-the-grid-for-electric-vehicles.aspx.

[14] https://www.energysage.com/electric-vehicles/charging-your-ev/install-a-home-charging-station/.

[15] https://www.bcg.com/publications/2019/costs-revving-up-the-grid-for-electric-vehicles.aspx.

[16] Id.

[17] https://www.nps.gov/home/learn/historyculture/ruralelect.htm.

[18] Id.

[19] https://livingnewdeal.org/glossary/rural-electrification-act-1936/.

[20] https://www.electricchoice.com/blog/what-is-electricity-deregulation/.

[21] Id.

[22] https://www.dallasobserver.com/news/texas-produced-more-energy-from-renewable-sources-than-coal-last-year-11842205 (wind now supplies more of Texas’ energy than coal).

The post Rural Farm Electrification appeared first on Vermont Journal of Environmental Law.