Category: Ecoperspectives

   The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP21 Observer Delegation.

__________________________________________

By Madhavi Venkatesan, PhD

Given the defined divide in country specific stakeholders concerns, along with the lens of personal circumstances and beliefs, that promotes a heterogeneity of perspective among COP21 participants, the ultimate success in Paris may rely on the establishment of an agreeable definition of consensus.

In the United Nations Fram ewor k Convention on Climate Change (UNFCCC) the word “consensus” is used three times, once in Article 7(k) and twice in Article 15. In the first use, consensus is not defined but rather provides the defining boundary for the adoption of “rules of procedure and any financial rules,” as these relate to the establishment of the Conference of Parties. In Article 15 paragraph 3, consensus is referenced as the basis of implementing amendments to the Convention; however, again it is not explicitly defined. Instead, the proportion that constitutes consensus can be inferred as being greater than 75%, based on the parameters provided for action in the absence of noted consensus.

If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting at the meeting. The adopted amendment shall be communicated by the secretariat to the Depositary, who shall circulate it to all Parties for their acceptance. (Article 15, paragraph 3)

As noted by Jesse Vogel, specific to the UNFCCC and the Convention, consensus “does not mean complete unanimity. Often it is defined in the negative – the absence of ‘stated objection,’ or of ‘express opposition,’ leaving wiggle room when it comes to defining just what explicit objection looks like. And sometimes, “consensus” can be declared despite the express objection of some.” The lack of clarity of defining what constitutes consensus has been a point of concern for many observers and participants.

La Viña and Guiao comment, “There is, after all, a profound difference between having the agreement of all Parties, and hearing no objections from any of them.” The latter aspect is not necessarily consistent with consensus and in review of prior COP meetings is attributed by some to purposely-deafened ears.

At COP21, the common values of stakeholders will do much to promote a singular foundation for discussion. However, the inclusion, acknowledgement, acceptance, and ultimately overt compromise related to the differences between the national interests represented by meeting participants will be the defining elements of the legacy of the meetings, and the implementation of consensus will play a significant role.

For more articles by VLS COP21 Observer Delegation Click Here

The post Ready for COP: The Significance of Defined Consensus appeared first on Vermont Journal of Environmental Law.

Climate change affects animals. This is not a new revelation. The first IPCC Assessment Report, released in 1990, discusses how climate change negatively impacts polar bears. But the conversation on animals and climate change often neglects the stories of how animals survive by adapting to climate changed conditions.

This endangered subspecies was considered a “goner,” but then the Quino did something surprising. Surrounded by desert, the butterfly could not migrate butterflynorth to wetter terrain. Instead, it moved to higher ground. The Quino population resettled at a higher elevation and most importantly, adapted to using a new host plant. This adaptation is exciting because it indicates what one scientist calls “a genetic revolution.”

For more articles by VLS COP21 Observer Delegation see: http://vlscop.vermontlaw.edu/2015/10/14/animal-adaptation-to-climate-change-looking-through-the-lens-of-the-quino-checkerspot-butterfly/

Summary: Following the European Union’s update of its policy on genetically engineered crops in March, Scotland and Germany became the first member states to use the policy to ban further cultivation of genetically engineered crops within their borders. With more member states likely to join Scotland and Germany in the wake of their bans, these new policies demonstrate a shift in how countries are thinking about the environmental effects of genetically engineered crops.

__________________________________________

By Andrew Minikowski

This past March, following years of delay and internal debate, the European Union updated its formal policy regarding genetically engineered crops. Under the updated policy, any genetically engineered crop strains must be approved for safety by a European Union review board before they may be grown within the individual member states. As a compromise, the updated policy contains a provision whereby member states may opt out of growing genetically engineered crops—even if they have been approved for cultivation by the European Union itself. Thus, the opt out provision essentially allows member states to individually ban the cultivation of genetically engineered crops within their respective territories.

In early August, Scotland became the first member state to officially use the opt out provision to halt future cultivation of genetically engineered crop varieties by Scottish agriculturalists. The ban was met with resounding applause by anti-genetic engineering advocates, even if many commentators saw the ban as merely a way for Edinburgh to further distance itself politically from London. Indeed, the rest of Great Britain has vigorously embraced the growth of genetically engineered crops since the March policy update, despite significant domestic resistance. However, several weeks after Scotland’s band, Germany followed suit and announced a domestic ban. Given Germany’s prominent role in the European Union and status as a global economic powerhouse, the German ban is likely to be influential in other member states and beyond. But what is it that drove Scotland and Germany to adopt a full ban on the growth of genetically engineered crops?

Genetically engineered crops—particularly strains of corn, soybeans, and wheat—have proliferated wildly since their introduction in the 1990s. Many agriculturists were attracted to the crops given their higher yields, lower water requirements, and greater resilience to weeds and other pests. However, there has been strong resistance to genetically engineered crops since their initial introduction. Often erroneously referred to as “genetically modified organisms” or “GMOs,” a crop is genetically engineered when humans insert foreign genetic material into the crop’s genetic structure in order to achieve particular traits that would not be possible to achieve through traditional crop breeding. Conversely, genetic modification is the process by which humans cross-breed particular strains of a crop to achieve desired traits and has been utilized by mankind since the dawn of agriculture.

Though the science on the health effects of genetically engineered crops and food byproducts is inconclusive at best, the consensus on the environmental effects of cultivating genetically engineered crop strains is firmly established. Genetically engineered crops decrease biodiversity, negatively impact local plant species, cross-pollinate (or, perhaps, cross-contaminate) with heirloom and organic crops, and contribute to greater use of herbicides and pesticides that can severely damage local flora and fauna. Due to the environmental and ethical objections of many citizens, 64 countries—including major international players such as Japan, Russia, and China—require the labeling of food products containing genetically engineered material. Of these 64 countries, 28 are European Union member states. In its typical lag behind the rest of the industrialized world, the United States requires no labeling of such products, though three states have enacted legislation to do so. The laws in Connecticut and Maine currently remain dormant under their trigger clauses and will only become operative when a requisite number of other states enact similar legislation. Vermont’s labeling law is slatedto go into effect in 2016 but is currently under heavy assault in federal court by the Grocery Manufacturers Association and its industry allies.

Interestingly, the bans in Scotland and Germany seem to have been prompted primarily by the environmental effects of genetically engineered crop cultivation, rather than ethical or consumer protection reasons. Whereas many individual citizens and Internet “slacktivism” are overwhelmingly focused on the perceived health impacts of genetically engineered crops, national governments seem to be preoccupied with the environmental repercussions of growing such crops. Indeed, this was apparent in the statements of Scottish and German officials when announcing the respective bans.

Richard Lochhead, the Scottish Secretary of Rural Affairs, noted that the ban was prompted by Scotland’s concern for its “beautiful natural environment” and that banning the crops would help cultivate the country’s “clean, green status.” Several members of Scotland’s Parliament voiced support for the ban, commenting on the potential for the crops to harm Scotland’s environment. When Christian Schmidt, the German Agriculture Minister, announced Germany’s ban, the Scottish National Party praised Germany’s decision and noted that “the German government recognizes the importance of…keeping its environment clean and green.”

Thus, the rhetoric accompanying the Scottish and German bans demonstrates that national governments have begun to think about genetically engineered crops from a primarily environmental perspective, rather than in response to potentially unfounded consumer concerns or purely economic motivators. That governments are willing to listen to environmentally motivated arguments should encourage advocacy groups and individuals to petition their own governments froman environmental angle. Indeed, these concerns have surfaced in the United States as well, as the statement accompanying Vermont’s labeling bill specifically noted the threats that genetically engineered crops pose to biodiversity and ecological health.

This shift in thinking about genetically engineered crops bodes well for activists, as the studies evaluating the environmental effects of genetically engineered crops are much more scientifically established than those regarding human health effects. Additionally, given the international influence of Scotland and particularly Germany, it is likely than many other countries may follow their example in the coming months. As for other European Union member states, the individual countries have until October to act under the opt out provisions of the March policy update.

  Andrew W. Minikowski graduated summa cum laude from Vermont Law School in 2015. While at Vermont Law, he served as Editor-in-Chief of the Vermont Journal of Environmental Law , competed as a member of the Pace National Environmental Law Moot Court Competition team, and worked on Vermont’s labeling bill lawsuit as a student clinician in the Environmental and Natural Resources Law Clinic. He is currently serving as a judicial law clerk on the Connecticut Supreme Court. In his spare time he enjoys reading, botanizing, and backpacking.

The post Scotland and Germany Use Updated European Union Policy to Ban Cultivation of Genetically Engineered Crops appeared first on Vermont Journal of Environmental Law.

Summary: The Fukushima Daiichi Disaster was a public health, environmental, and economic catastrophe, and Japan will feel its effects in those sectors for years to come. While Japan once had one of the world’s most diverse energy portfolios, the loss of its nuclear program has caused a sudden shift towards a fossil-fuel heavy generation industry. Subsequently, Japanese greenhouse gas emissions and electricity costs for industrial and residential consumers have skyrocketed. In August 2015, the Sendai Nuclear Power Plant began its restart procedures, marking the beginning of the planned restart of the Japanese nuclear program and, likely, an eventual return to a more diversified energy portfolio.

__________________________________________

By Jared E. Schroder, Esq.

On August 11, 2015, the Kyushu Electric Power Company began the restart process on the No. 1 reactor of its Sendai Nuclear Power Plant in Kagoshima Prefecture. This marked the first restart of a nuclear power plant in Japan since the country’s Nuclear Regulation Authority (NRA) ceased all commercial nuclear operations in 2013 in response to the Fukushima Daiichi Disaster in March, 2011. While Japan’s 48 nuclear reactors have been idling, the NRA issued new safety rules meant to ensure that a disaster like the meltdown at the Fukushima Daiichi Plant would never happen again. While the effects of the Fukushima Daiichi Disaster were catastrophic, the effects of Disaster on Japan’s energy strategy and the change in how Japan meets its energy needs is often understated and much like the meltdown itself, will carry lasting effects on the environment and Japanese economy.

http://www.nbcnews.com/news/ world/japan-restarts-sendai-nuclear-reactor-four-years-after-fukushima-meltdown-n407676

Prior to the Fukushima Daiichi Disaster, Japan had one of the most diverse energy portfolios of any nation. Largely dependent on importing its natural resources, Japan had adopted nuclear power as a key component of its energy generation strategy. In the two years prior to the Fukushima Daiichi Disaster, nuclear power represented 27% of the country’s net electricity generation. The country had planned a massive expansion of its nuclear power program in a bid to reduce greenhouse gas emissions, with its 2010 Energy Plan calling for at least a dozen new nuclear reactors to be constructed by 2020, raising nuclear-fired generation to 50% of the country’s total energy generation.

These ambitious plans were derailed, however, when a magnitude 9 M _w earthquake occurred off the Japanese coast on March 11, 2011. The earthquake and the following tsunami caused extensive damage to the five units of the Fukushima Daiichi Nuclear Power Plant. The loss of the backup power supply, damage to the infrastructure and machinery, and the debris deposited by the tsunami created a catastrophic situation, eventually leading to multiple explosions and mass discharges of radioactive material. The Official Report of the Fukushima Nuclear Accident Independent Investigation Commission concluded that this was “a manmade disaster”, and the nuclear program in Japan was quickly halted under public pressure, with the country’s nuclear plants either being decommissioned or idled pending permission to restart.

http://fukushimaupdate.com/ industry-paper-investigates-why-other-plants-were-not-affected-like-fukushima/

In the meantime, Japan’s energy industry has undergone a dramatic change. With the loss of nuclear power, the electricity generation shifted towards a fossil-fuel dependent portfolio. In 2013, natural gas, coal, and oil represented 43%, 30%, and 14%, respectively, compared to 30%, 24%, and 7%, respectively, in the two years prior to the Fukushima Daiichi Disaster. Meanwhile, regulators have relaxed policies on inspections of generation plants, utilities have restarted mothballed oil-fired generation units, and the government has promoted power restrictions for consumers and other demand-side measures during peak-use times.

This shift from a nuclear and renewable-heavy portfolio to a fossil fuel dominated generation sector carries with it a massive shift in the Japanese environmental program. While it was well on its way towards cutting greenhouse gas emissions in its energy production sector, it has been forced to abandon its plans and rely largely on fossil fuels to power the country. Furthermore, the rapid shift to fossil fuel-based generation meant that older and “dirtier” units had to be activated to meet the sudden need, compounding the emissions increase. Well on its way towards drastically minimizing the importance of fossil fuels in its energy portfolio, Japan’s post-Fukushima nuclear policy has instead made fossil fuels the primary sources of electricity generation and consequently has drastically increased the country’s greenhouse gas emissions to record levels.

Environmental considerations aside, the turning to fossil fuels to fill the gap in generation capacity created by the Fukushima Daiichi Disaster and the subsequent nuclear policy carries drastic economic considerations for Japan. Japan imports most of its natural resources and virtually all of its fossil fuels, making electricity produced using these sources very expensive. In the three years following the Fukushima Daiichi Disaster, Japan spent approximately $270 billion on fossil fuel imports , around 58% more than it had in the years prior to the Disaster. This expense trickles down to the consumer, raising end-user electricity rates to levels where smaller businesses are struggling to bear this increased burden. In short, the loss of its nuclear power has carried drastic negative economic implications for Japan.

Banner says, “Goodbye nuclear power station,” in Japanese. http://www.3news.co.nz/world/ protests-as-japan-restarts-nuclear-reactor-2015081121#axzz3khmNaJEI

Despite the all clear to begin the restart of the nuclear program, the road towards reintroducing nuclear power to Japan is likely to be long and turbulent. The restart decision faces robust public opposition, as there is a strong anti-nuclear movement among the Japanese people, whose trust in both nuclear power and their government regulation of the nuclear infrastructure was deeply shaken by the Fukushima Daiichi Disaster response. The process itself is complex and difficult; only days after the Sendai plant began its restart, the process was halted due to a malfunction in a secondary cooling system. With no other option in the meantime, Japan’s electricity generation will likely remain highly dependent on “dirty” and expensive fossil fuels until the country either finds a new way to shift towards renewables or has ramped up a safer nuclear program with public support.

Jared E. Schroder is a graduate of Wesleyan University and a magna cum laude graduate of Vermont Law School, from which he graduated in 2014 with a General Practice Certificate. Mr. Schroder is interested in the role of energy policy and economics in international relations, international law, and environmental law. Currently living in Washington, D.C., Mr. Schroder is a member of the New York Bar.

The post Sounding the All (Nu)Clear: Restarting Japan’s Nuclear Plants Post-Fukushima Disaster appeared first on Vermont Journal of Environmental Law.

Summary: In his May encyclical, Pope Francis called for swift global action on climate change. He linked science, morality and church doctrine to do so.  Now, citizens around the globe are taking action.

__________________________________________

By Ashton Roberts

On May 24, 2015 Pope Francis used his encyclical as a vehicle to call for a sweeping transformation of politics, economics, and lifestyles to tackle environmental degradation and climate change. He pleaded for swift global action through a critique of consumerism and wasteful development. The Pope’s 184-page encyclical highlights the looming crisis posed by climate change and places most of the blame on human activity and fossil fuels. He bravely linked church doctrine, personal morality, and the environment, something that scientists have avoided doing for decades. The Pope warned of “unprecedented destruction of ecosystems, with serious consequence for all of us” if action is not taken swiftly. He chastised indifference, the pursuit of wealth; trust in technology and political thoughtlessness, saying that relentless exploitation and destruction of the environment are the result. Francis has outlined a three-pronged climate change fix: remove greenhouse gases in the atmosphere, restore ecosystems, and help the people who are most vulnerable to climate change with resources to adapt to our changing climate.

https://commons.wikimedia.org/wiki/File:Pope_Francis_Photo_1.jpg

The Pope states that climate change has grave implications, noting that it is one of the “principal challenges facing humanity today.” He goes on to point out that the most vulnerable victims are the poor, many of whom survive on subsistence lifestyles, and are almost wholly dependent on natural reserves and ecosystem services, without which they will have no means of recovery or adaptation. He holds developed countries responsible in particular saying, “the warming caused by huge consumption on the part of some rich countries has repercussions on the poorest areas of the world, especially Africa, where a rise in temperature, together with drought, has proved devastating for farmers.” The Pope further criticizes businesses that export waste and pollute in less developed countries “in ways they could never do at home, in the countries in which they raise their capital.” His critique of the developed world continues still, arguing against notions that current economics and technology will solve environmental problems stating that on the contrary ” technocratic domination leads to the destruction of nature and the exploitation of people.” Pope Francis champions the perspective of water as a basic and universal human right, because it is “essential to human survival and, as such, is a condition for the exercise of other human rights,” critiquing those who, despite its scarcity, seek to privatize water by turning it into a commodity laid at the alter of the market.

Moving to link morality to the climate change debate, the Pope entreats the international community to take action, saying “recent World Summits…have not lived up to expectations because…they were unable to reach truly meaningful and effective global agreements on the environment …. there is an urgent need for politics and economics to enter into a frank dialogue in the service of life, especially human life.” He highlights this need by writing, “what kind of world do we want to leave to those who come after us, to children who are now growing up …? [I]t is no longer enough…to state that we should be concerned for future generations. We need to see that what is at stake is our own dignity.”

https://commons.wikimedia.org/wiki/Earth#/media/File:The_Blue_Marble.jpg

So what is the take-away from all of this? Climate change is a very real threat. Religious and social leaders are taking steps to push governments around the world to take action and protect our atmosphere. In August, twenty-one young people, with the help of the nonprofit Our Children’s Trust , filed a landmark constitutional climate change lawsuit against the federal government, seeking a court order requiring the President to immediately implement a national plan to decrease atmospheric concentrations of carbon dioxide to a safe level: 350 ppm by the year 2100. In late July, a court in the Netherlands agreed with the citizens that “the severity and scope of the climate problem make it necessary for the Dutch government to reduce the Dutch greenhouse gas emissions at a much higher rate, imposing a 25% reduction by 2020.” This fall nations from around the globe will convene in Paris for COP21 with the aim to create a new international agreement on the climate, applicable to all countries, with the aim of keeping global warming below two degrees Celsius. But, if an agreement isn’t reached we may see more lawsuits on the horizon as citizens take their future on this planet into their own hands.

Ashton Roberts is a 3L at Vermont Law School, working towards her Juris Doctor, Masters of Environmental Law and Policy degree, General Practice Certificate, and Criminal Law Certificate. Prior to law school, she attended Virginia Tech where she earned a B.S. in Environmental Policy and Planning. She is a managing editor on the Vermont Journal of Environmental Law. Most recently, Ms. Roberts worked as a law clerk at Our Children’s Trust in Eugene, Oregon.

The post Pope Francis’ 2015 Encyclical: The Environmental Reader’s Digest Version appeared first on Vermont Journal of Environmental Law.

Summary: The recent decision by the U.S. Supreme Court in  Michigan v. EPA  is a shift for this historically Clean Air Act-friendly Court. It is the first “anti-environmental” decision in the CAA realm since their 2007 Massachusetts v. EPA  ruling. Here, the Court concluded that EPA must consider compliance costs when determining  whether to  regulate toxic emissions from power plants, rather than consider the cost when determining  how to  regulate emissions. The consequences of which may be felt as the Obama Administration unveils the final version of the environmentally ambitious Clean Power Plan.

__________________________________________

Ashton H. Roberts

Annually, late June and July bring with them not only the heat of summer but also a plethora of influential U.S. Supreme Court (Court) opinions and this term was no different. The Court has a history of groundbreaking decisions in the realm of environmental law and the lesser-publicized Michigan v. Environmental Protection Agency (EPA) is one for the Clean Air Act (CAA) record books. The issue in the case, put simply, is whether EPA should consider compliance costs when determining anti-pollution power plant regulations. The answer is “yes,” but the application is not so simple.

An understanding of the history of this regulation is essential to grasp the gravity of the Court’s decision in this case; EPA’s regulation of toxic chemicals has been a long time coming—forty-one years to be exact. Since the Clean Air Act was enacted in 1970, EPA has been directed to regulate the emission of toxic chemicals by coal and oil fired power plants but had neglected to do so. Congress got involved in 1990 when they issued amendments to the CAA, which created a list of toxic chemicals that needed regulating and also ordered EPA to conduct a study to determine whether and how to regulate toxic emissions from power plants. That study was then intended to inform the EPA administrator’s decision to “regulate electric utility steam generating units [power plants] under this section [ § 112 ], if the Administrator finds such regulation appropriate and necessary after considering the results of the study…” In 2000, EPA determined, from the study released in 1998, that it was “appropriate and necessary” to regulate toxic emissions from power plants. In 2005, EPA, under President George W. Bush, reversed the “appropriate and necessary” finding, but the U.S. Court of Appeal for the D.C. Circuit vacated the decision, saying EPA’s attempt to reverse its finding was unlawful. Then, in 2011 the Obama Administration confirmed the 2000 findings and EPA issued the ” Mercury and Air Toxics or MATS rule ,” the regulation at issue in the Michigan case. This regulation, forty-one years after the CAA was enacted, was EPA’s first attempt to regulate power plant emissions of toxic chemicals under § 112 of the CAA.

https://commons.wikimedia.org/wiki/File:Apollo_Beach_power_plant_01432.jpg

The MATS rule applies to the nation’s large network of coal and oil fired power plants; this includes the more than fifty percent of them that were built before the Clean Air Act was even passed in 1970. In the United States power plants are the primary emitters of mercury, acid gases, and numerous toxic metals and about 40% of them do not have advanced emissions controls. The rules would regulate the emission of many toxic pollutants including mercury, arsenic, benzene, and hydrochloric acid; power plants are the largest stationary emitters of these pollutants in the U.S. Mercury is especially hazardous; it causes birth defects in utero, causes major harm to the brain, kidneys, nervous system, and liver. But, the MATS regulations would reduce mercury emissions by about ninety percent. EPA estimated that by 2016 the rule would save up to 11,000 lives due to premature deaths and provide up to $90 billion in health benefits associated with meeting the new standards for air toxics. A lot was at stake for EPA when this case went before the Court on March 25, 2015.

The question before the court focused on EPA’s decision to exclude cost considerations associated with regulating emissions despite the phrase “appropriate and necessary” in § 112 of the CAA. In June, Justice Scalia delivered the opinion of the Court, which used the traditional two-step Chevron doctrine which asks two questions: first, “is the phrase at issue ‘unambiguous'”; and second, “is the agency’s interpretation of the disputed phrase is a reasonable one?” The Court determined first that the phrase “appropriate and necessary” was ambiguous and thus progressed to issue two, whether it was reasonable for EPA to exclude the consideration of cost when interpreting “appropriate and necessary.” The 5-4 majority decided that it was not reasonable to exclude cost; EPA should have used cost as a determining factor when regulating power plant toxic emissions, not solely when determining how to regulate the emissions. The opinion continues discussion of the “appropriate and necessary” standard as it relates to reasonableness and focuses on the context of the statute itself, which suggests that cost should be included.

Ironically, EPA did conduct a cost-benefit analysis of the toxics air rules when evaluating the standards it adopted. The agency concluded that, “the benefits of the MATS [program] are substantial and far outweigh the costs. Employmeed that nt impacts associated with the final rule are estimated to be small.” The costs to industry were estimated at $9.6 billion, where the benefits were found to be between $33 and $90 billion. However many of these benefits, termed co-benefits, were not directly attributable to reductions in the toxics actually being regulated, they come from reduction of other pollutants due to the installation of control technology. Thus, Justice Scalia was dismissive of these co-benefits, setting them aside and showing that in contrast to the previously stated $33 to $90 billion in benefits there were only $4 to $6 million in benefits expected. The Court did follow up saying EPA need not conduct a “formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value. It will be up to the Agency to decide, (as always, within the limits of reasonable interpretation how to account for cost.” It seems that the agency will be given deference in how it accounts for cost in deciding whether toxic emissions regulations for power plants are “appropriate and necessary.”

https://commons.wikimedia.org/wiki/File:Oblique_facade_1,_US_Supreme_Court.jpg

Interestingly, Michigan is the first anti-environmental ruling that the Court has decided in the four CAA cases that they have considered since the landmark decision in Massachusetts v. EPA in 2007 and a contrast to Justice Scalia’s opinion in Whitman v. American Trucking , where the Court held that EPA could not consider cost when setting air quality standards for ozone and particulate matter. While EPA must consider cost moving forward in regulations surrounding the limit on the emission of mercury or hazardous pollutants, almost 70% of power plants have already complied with MATS and the decision did not let those power plants that have not complied off the hook. The Court did not strike down the regulation; rather it sent the case back to the D.C. Circuit Court of Appeals for review where the court must determine whether to keep the emissions standards in effect while EPA takes cost into consideration.

When the U.S. Supreme Court’s decision came down in June environmentalists, industry, and government officials alike began speculating about Michigan ‘s affect on the Obama Administration’s Clean Power Plan. Industry representatives claim Michigan was a warning to EPA to reconsider the Plan because the decisions demonstrated the unwillingness of the Court to defer to EPA when regulating coal fired power plants. But, environmentalists disagreed noting that the narrow decision would have no bearing on the Plan, which arises under a different section of the CAA than MATS. Today, August 3, 2015, EPA issued a notice submitting the Clean Power Plan for publication in the Federal Register. It seems the ruling in Michigan did not deter EPA, because the final rule is slightly stronger than the drafted proposal from last summer and is President Obama’s most ambitious climate policy to date. The Clean Power Plan will be a rule to watch in the next months and maybe Michigan will come into play. Until then, EPA will be re-evaluating costs in MATS.

Ashton Roberts is a 3L at Vermont Law School, working towards her Juris Doctor, Masters of Environmental Law and Policy degree, General Practice Certificate, and Criminal Law Certificate. Prior to law school, she attended Virginia Tech where she earned a B.S. in Environmental Policy and Planning. She is a managing editor on the Vermont Journal of Environmental Law. Ms. Roberts is currently a law clerk at Our Children’s Trust in Eugene, Oregon, working on atmospheric trust litigation.

The post The Dirty Truth of Michigan v. EPA appeared first on Vermont Journal of Environmental Law.

 Summary: The United States Fish and Wildlife Service held its second Ivory Crush in Times Square in June. The event helped raise awareness about the illegal ivory trade, and the threat it still poses to African elephants. While interning in NYC, I was able to attend the event, and this post describes my experience, as well as why events like these are important for elephant conservation.

__________________________________________

By Brittany Wright

 On Friday June 19th, Times Square was slightly louder than usual due to an industrial-sized rock crusher. The equipment was not there for construction, but for elephant conservation. The US Fish and Wildlife Service staged its second Ivory Crush, and crushed over one ton of confiscated ivory. Top government officials, like Department of Interior Secretary Sally Jewell and USFWS Director Dan Ashe, addressed the crowd before the crush about the importance of the elephant conservation and what the crush signals to the rest of the world.

I am interning at the Natural Resources Defense Council in New York this summer and convinced a few of my fellow interns to come to Times Square with me to witness the crush. The event gained a lot of attention from people walking through Times Square. People would stop to take pictures and read the various informational signs that FWS had posted around the area. Elephant advocates and enthusiasts gathered in Times Square with tee-shirts and signs, chanting as the crush began. The crowd cheered loudly—though not as loud as the machine—when the first large tusk made its way up the conveyor belt and dropped into the crusher below. The crush lasted for over two hours, turning one ton of ivory into a pile of dust.

The Times Square crush was the second event held by FWS in an effort to raise public awareness about the illegal ivory trade and its devastating impact on elephant populations. In 2013 FWS had its first ivory crush in Denver, Colorado where it destroyed over 6 tons of confiscated ivory. Starting in 1989, 14 different countries destroyed over 130 tons of ivory. The Denver crush revived the global movement, and in the past three years, many countries around the world held similar events to destroy their confiscated ivory. China, Chad, France, Belgium, Hong Kong and the Philippines all held similar events, either burning or crushing portions of their confiscated ivory to remove the pieces from the market and send a message of solidarity towards ending the illegal ivory trade. Most importantly, at the China crush, government offices vowed to stop the legal domestic trade of ivory. Events like these are critical, both to remove the pieces from the illegal market, and to show that ivory no longer has commercial value.

Even though CITES banned the international trade of ivory over two decades ago, the demand for ivory is still high. According to FWS, an elephant is killed every 15 minutes for its ivory. From 2010 to 2012, approximately 100,000 elephants were killed for their ivory tusks. Countries in Africa have taken steps to help protect elephants, but if there is still a market for ivory the poaching will continue. New York City remains an epicenter for illegal wildlife trade, and the public awareness generated by an event like this can be as an important as removing the ivory from the market. After FWS confiscates ivory, there is little else it can do with it. The ivory cannot be sold or repurposed because it was brought into the country illegally. Instead FWS decided to destroy the ivory, sending a very clear message that the illegal trade of ivory must be stopped. FWS plans to use the crushed ivory to make an elephant memorial. The FWS held a design contest earlier this year after the first Denver crush soliciting ideas for the monument.

Elephants are not out of the woods yet, but events like these help raise the awareness of the very real problem of the illegal ivory trade, and the role the United States plays in stopping it. Stomping out the illegal ivory market is essential to ensuring the survival of the species, and events like the Time Square Ivory Crush send strong message to the rest of the world: stop the illegal trade of ivory. Elephants are far too precious for their ivory to end up as a trinket on a shelf.

Brittany Wright is a 3L at Vermont Law School, working towards her Masters of Environmental Law and Policy degree and a Water Law Certificate. Prior to law school, she attended Hofstra University were she earned a B.A. in Urban Ecology. She is a managing editor on the Vermont Journal of Environmental Law. She is currently interning with the Natural Resources Defense Council as a legal intern in the Oceans Program. She plans on working in the field of ocean law, and using her law degree to protect ocean habitat. She enjoys go to the beach and hiking with her beagle Rio.

The post Crushing Ivory for Elephant Conservation appeared first on Vermont Journal of Environmental Law.

Summary: Nuclear energy is one of the most debated subjects in the environmental policy and legal world.  Questions that often arise are: Is it safe?  Is it sustainable?  Can it serve as a bridge to moving away from fossil fuels?  However, what is often overlooked is the impact of nuclear power on our water systems, especially in drought prone areas.

__________________________________________

By Allen Smith

Many leading energy experts often deem nuclear an acceptable form of sustainable energy. Yet the negative side effects of nuclear energy production are severely underestimated, especially when we consider the region where plants are developed, as well as effects on the overall environmental life cycle.  It is widely known that there have been problems with nuclear energy and waste, and the energy costs of mining uranium in terms of overall emissions are well documented.  Those side effects are amplified when nuclear facilities are developed in drought-prone regions, such as the American Southwest and Texas.

Image credit to psr-la.org

A proposed nuclear facility in Green River, UT would have consumed about 53,000 acre feet of water annually from the Green River (a valuable tributary to the severely depleted Colorado River) to cool its reactors and generate steam to power its turbines. That’s enough water to supply 200,000 people a year, roughly the size of Tacoma, WA. When thinking about the scarcity of available freshwater in the world and the increased drought-like conditions in many parts of the country, those numbers add up to major impacts not just to our economy, but our survival. Just look at the increasing amount of tension and war-like conditions currently developing between local communities and their government over water supply in politically unstable areas such as the Middle East.

The Southwest Nuclear Project Electric Generating Station (SNPEGS) near Bay City, TX is right along the Colorado River and uses water from the river to power each unit and cool the reactors. Two proposed additional units in 2010 were turned down due to financial constraints. The proposed project would have piped tens of thousands acre-feet of water each year from the Colorado River, decreasing the amount of fresh water remaining in the river. Given that a number of other interests had previously gained access to the Colorado River and aggressively used up the water, the ecological effect would have been devastating. Though SNPEGS does not directly discharge wastewater into the Colorado River, wastewater discharge and the effect on water quality remains an issue in many other regions throughout the US, and is especially problematic in fragile, drought-prone areas. The combination of drought-depleted rivers and the negative effect on water quality makes the outlook on future water security extremely bleak.

Image credit to cleantechnica.com

In 2006, the Department of Energy warned that consumption of water for electricity production could more than double by 2030 to 7.3 billion gallons per day in the US if developers continue to build new power plants with evaporative cooling, an amount equal to the entire country’s water consumption for 1995. Thethree stages of nuclear fuel cycle—uranium milling and mining, plant operation, and nuclear waste storage—all consume, withdraw, and contaminate water supplies. Due to this large need for water resources, most nuclear facilities cannot even operate during drought conditions, and in some cases can actually cause water shortages.

The reality around nuclear energy and water should cause both consumers and producers to take caution around expanding nuclear energy or relying on it as a “clean” form of energy in drought-prone regions like the American Southwest, California, and Texas, especially when rivers are at high risk of being drained of their remaining water. The impact of climate change will only worsen drought and stress on water resources and create more tension throughout the world. Thus, if the other environmental costs of nuclear don’t dissuade people enough from using it as a “clean energy alternative,” the cumulative effect on water security should tip the scales against expanding this form of energy in the U.S.

Allen Smith holds a J.D. from Vermont Law School, with dual Land Use and Climate Law Certificates.  Last summer, he helped with the process of getting a bill addressing climate change signed into law in Rhode Island, and was a legal intern with the Rhode Island Department of Environmental Management.  He was a clinician with the Vermont Agency of Natural Resources last fall, where he worked extensively on issues related to addressing water quality in the state, as well as observed negotiations between ANR and the ENRLC staff for the Jay Peak stormwater case.  He has also served as a board fellow with the Stowe Land Trust, and was heavily involved with the Food & Agriculture Law Society, where he was a 3L Senator.  Smith enjoys running, hiking, and other outdoor sports in his spare time.

The post Nuclear Energy and Drought: A Recipe for Disaster appeared first on Vermont Journal of Environmental Law.

Summary: Sacramento has called on Californians to reduce water usage as the state enters its fourth year of drought. While many parties bicker about how we should allocate water, municipalities have brought vanity into the arena. Many cities are willing to adopt new cutbacks, but others are reluctant to change appearance requirements in their zoning ordinances. Such hesitation places residents in a tug-of-war between Sacramento and their respective cities.

__________________________________________

By Joseph  Simpson

California is now in its fourth year of drought. The drought has created conflict between multiple levels of government, but the conflict between the state and municipal governments has turned some California residents and their lawns into a rope for a tug-of-war match. Governor Brown recently announced new urban water use limitations , calling for a twenty-five percent cut in water use. Cities seem to have adopted the restrictions without backlash, but things were not that simple a year ago.

A luscious green lawn at the Newport Beach Civic Center. Is it the healthy choice for Southern California?

In the city of Glendora, a couple stopped watering their lawn to conserve water. Los Angeles County had recently announced fines for using too much water to conform with suggestions from Sacramento. The city, however, did not like that the couple let their lawn go brown. Because the city did not think the lawn was aesthetically appealing, it sent the couple a fine for violating the zoning code. But the couple could have received a fine for doing just the opposite! As more cities accept directives from Sacramento to conserve water, situations like the one in Glendora are less likely o happen, especially now that the California legislature has stepped in to prohibit such fines.

Glendora recently updated its zoning code to conform with Governor Brown’s new directive. The code no longer includes aesthetic requirements, but that the yard is “healthy.” But what is healthy in the city’s eyes? One may assume healthy and aesthetically appealing to be quite similar, especially given the underlying purpose of the requirement in the first place: to maintain property values. If the couple’s yard does not look appealing, then it may cause other properties to lose their value to potential buyers. But Southern California is a desert. The natural landscape is shrubs and “weeds.” Many people may consider healthy to imply something natural. Many of the rebate programs for removing lawns and replacing with drought-tolerant plants prefer natural and local species. What would truly be natural, however, would be a dirt yard with various “weeds.” Many people find that kind of yard to be unattractive. If healthy implies natural but also aesthetically appealing, then healthy may be impossible to achieve.

A hillside of shrubs and native grasses outside of the Newport Beach Civic Center

In 1926, the U.S. Supreme Court in City of Euclid v. Ambler Realty Company approved of the fairly new practice of municipal zoning. The Court ruled that cities may use zoning regulations as long as they promote public health, safety, morals, or general welfare. In Southern California—where wildfires are prevalent, especially during prolonged droughts—regulating yards makes sense. Making sure that residents keep their plants far enough away from their homes promotes public safety because it reduces the chances of fire spreading from vegetation to homes.

Mostly non-native yet drought tolerant succulents at the Newport Beach Civic Center

Requiring residents to maintain healthy lawns, however, seems to fall under the “general welfare” category. If a city intends “healthy” to be equivalent to “aesthetically appealing,” then healthy lawns promote general welfare because they keep property values high for entire neighborhoods. But what is natural for Southern California is not aesthetically appealing. If a city intends “healthy” to be equivalent to “natural,” then healthy lawns would possibly harm the general welfare because property values would decrease. The only other possibility is that the city is so eco-conscious that it intends to promote morals by advocating for a more natural environment. The most likely explanation is that the city’s idea of healthy has more to do with vanity than actual health

The drought in California has surely made citizens think twice about how their actions impact the environment. Even sports teams have reacted to water cutbacks in a positive manner. While some parties may argue that we have enough water but we need allocate it better (see the debate about the Delta Smelt ), municipalities still should not demand citizens to unnecessarily use more water.

Finally, people may want to reconsider their idea of beauty. We should consider a truly healthy environment to be beautiful in itself rather than deciding that Earth needs to wear more makeup. For Californians, accepting the beauty of our natural landscape may be necessary to ensure that the next generation has something to drink.

Joseph Simpson is a third-year law student and current Editor-in-Chief of the Vermont Journal of Environmental Law. He graduated from Iowa State University in 2013 with majors in History and Political Science. He is currently interning for the California Office of the Attorney General’s Land Law Section in Los Angeles. He intends to practice in the land law field after graduating. Joseph enjoys baseball, running, Ultimate Frisbee, and generally being outdoors.

The post Can Cities Decide What “Healthy” Means? appeared first on Vermont Journal of Environmental Law.

  Summary:  Unfortunately for many fish, dams are the end of the river. It doesn’t have to be that way: Dam removal is becoming more common across the country. However, the mechanisms for initiating dam removal are not always efficient. Current dam removal mechanisms are expensive, involve many parties, and can take several years to get the job done. The Public Trust provides a means to expedite dam removal in Vermont, while simultaneously relieving small interest groups and not-for-profit organizations of footing the bill.

__________________________________________

By Olympia Bowker

Dams are ecological barriers—they are walls that prevent anything in the water column from moving up or down a river. Dams can be the kiss of death for fish : they trap silt and sediment, heat up stagnant water, and block fishes’ ability to swim up or downstream. These effects restrict habitat, interfere with vital life-cycle stages, and impact entire ecological communities.Dams don’t only impact critters in rivers and streams—they pose a danger to humans as well. Dams cause erosion , which eats away at the riverbanks that support homes and schools. Damming a river increases the likelihood and severity of floods by forcing water into a narrow, confined area. Vermont experiences an average of 40.10 inches of measurable precipitation a year, about a foot more than the national average of 28.15 inches. In addition, floods are the largest annual disaster cost in Vermont. Dams undoubtedly exacerbate this. In addition to erosion and flooding, dams can cause issues for recreationists on the river. Dams not only block river and stream access for kayaks and canoes, but those same recreationists can unwittingly run into submerged rebar and cement from the decaying, neglected structuresThe expense and time it takes to remove a dam makes progress slow. Only 10 obsolete or unsafe dams have been removed from Vermont  1,200 known dams in Vermont. One hundred and ninety-eight of those dams areclassified as “high hazard” or “significant hazard potential.” In addition, not all dams have been inspected. Dams that fall under the high hazard category have an elevated potential to cause damage or loss of life if the dams should fail. In 2013, 35% of inspected dams were in poor condition and ripe for failure. Even more dams are unknown and undocumented. While not all dams are useless hazards just waiting for their next victim, many are.

There are overDam removal can take years. According to the Vermont Agency of Natural Resources (“Amont, state funding specially earmarked for dam removal is minimal. Interest groups and volunteers are primarily responsible for backing the projects. For example, it cost over $120,000 to remove the NR”), dam removal projects typically take 2 ½ to 3 years for completion. Dam removal is not cheap. As of 2009, the cost of dam removal projects in Vermont ranged from $30,000 to $50,000 for the deconstruction alone. This figure doesn’t include the expense of management or project design (which can run anywhere from $10,000 to over $100,000). The ANR says, “[o]verall project costs [are] typically in the hundred thousands….” It is estimated to cost $22 million to remove all of the documented dams in poor condition. In Ver Groton Dam in Groton, Vermont. However, no funding came from the state; instead, various nonprofits footed the bill. With the exception of $10,000 from the US Fish and Wildlife Service, the following non-profit groups supplied all of the money: American Rivers, the Connecticut River Watershed Council, Green Mountain Coffee Roasters, NH Charitable Foundation, Patagonia, and Trout Unlimited  since 2008.

At best, Vermont removes 3 dams a year. Clearly, the current mechanism for dam removal in Vermont is too slow, too expensive, and the financial burden falls on the wrong shoulders. At the rate dam removal in this state is going, it will take at least 400 years to remove all known dams. That’s just not fast enough. This is where the Public Trust comes in.

The Public Trust is anancient doctrine that dates back to Roman law. The Public Trust was adopted by England, and subsequently the United States. The essence of the Public Trust is that navigable waters and the land below them are held in common by. Over time, this trust duty shifted so each state has its own version of the Public Trust. Vermont is no exception. Vermont’s Public Trust dates back to 1777 and is recorded in the state Constitution. uckily for us, Vermont’s Public Trust is alive and well. Under Vermont’s Public Trust, the state government is the trustee and has the fiduciary duty to protect the trust resources for the inhabitants of the state. In fact, in 2008 Vermont enacted a groundwater law, Vt. Stat. Ann. tit 10, § 1390(5), designating groundwater as a public trust resource. In Vermont, public trust resources must be managed for the benefit of all citizens.

It is uncontested that rivers and streams in Vermont are a Public Trust resource. Under this doctrine, citizens are promised access and enjoyment of state waters. That enjoyment can be in the form of swimming, kayaking, fishing, or simply entry. However, many dams stop Vermont citizens from exercising their right to these enjoyments. While Vermont does not have the power to remove all dams, the state does have the power to remove state and privately owned dams—especially ones that are no longer useful or maintained.

Vermont has a fiduciary duty to its citizens: a duty to remove dilapidated dams and help restore rivers and streams to their pre-colonial splendor. The Public Trust is a vehicle to accomplish this task. Vermont is not making great strides with dam removal— at the current rate, it will take over four centuries for known-in-Vermont dams to be removed. By using the Public Trust as an enforcement mechanism, Vermont citizens can expedite the process. Since the state has a fiduciary duty to Vermont citizens, the state is responsible for removing the dams— the state has to reopen access to streams and rivers. In 2012, the Vermont Supreme Court held in Montpelier v. B arnett that recreation and access to Public Trust waters is a matter of state concern, and requires a resolution at the state level. Dam removal is an issue that should be solved at the state level—not by small, financially insecure public interest groups.

Dams are a problem. Of the 1,200 known dams in Vermont, many no longer serve their original purpose. Instead, they sit. They crumble. They destroy the surrounding environment. Vermont state officials are aware. State agencies, such as the Vermont Department of Fish and Wildlife, focus on fish habitat restoration and dam removal. In fact, there is even a Vermont Dam Task Force whose job is to rehabilitate rivers through dam removal. The Vermont Dam Safety Program aims to educate dam owners on the safety risks, and hope to motivate repairs. Unfortunately, this is not enough. While Vermont tries to be proactive and successful at dam removal, the numbers show a different reality. Vermont’s current strategy for dam removal is inadequate. The current authorities charged with dam removal are underfunded and ineffective. Removing three dams a year is not progress, especially with more than 1,200 known dams in the state.

The Public Trust is a way for citizens to hold Vermont accountable and force the state to take fast action. Vermont needs to foot the bill to remove hazardous dams, and do it now— we don’t have 400 years to wait.

Olympia Bowker holds a J.D. from Vermont Law School, with dual Water and Land Use Law Certificates. She is also a Masters of Environmental Law and Policy candidate. Prior to law school, she earned a B.A. in Environmental Studies and Geography at the University of Vermont, collected plastics samples from the Northeast Pacific Garbage Patch, and worked on the Pacific Crest Trail. Olympia enjoys hiking, reading, and general adventuring.

The post The Dam(age) Stops Here: The Public Trust and Dam Removal appeared first on Vermont Journal of Environmental Law.