Category: Ecoperspectives

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By Morgana Matus

This post is cross-posted on FIX.

Beyond the landfills and trash heaps moldering in almost every town and city across the globe, manmade garbage has found its way into the natural landscape on a mind-boggling scale. It seems as though there are virtually no places left on Earth free of our rubbish. Junk can be found everywhere—from the bellies of animals and the tissues of our own bodies to the world’s vast oceans.

The gigantic mess currently swirling around our oceans is ever-growing. There are so many manufactured items floating around the briny deep that marine currents have formed sprawling expanses of crud in the water. One of the most disheartening of these disasters is known as the  Great Pacific Garbage Patch ; a field of debris formed by wind and wave action and discovered by Captain Charles Moore in 1997. While there are no literal islands of trash, the vortexes are gargantuan concentrations of waste located in two major areas, with one midway between Hawaii and California and another off the coast of Japan. The overall amount of debris is still unknown, but scientists estimate the entire Patch encompasses nine million square miles of watery real estate, and is just one of five major garbage clusters occupying the world’s oceans. A majority of this pollution is made up of plastic, leaving scientists scrambling to invent methods to remove the non-biodegradable hazards.

 

The Plastic Paradox

During the 20th century, synthetic plastics became the material of choice for industries from consumer packaging to fashion. Practically indestructible and with the ability to mold into virtually any shape, plastic polymers could withstand the elements and remain intact longer than their organic counterparts. With plastic, perishable food could be transported and preserved longer, electronics insulated and made more efficient, and medical supplies kept sterile and disposable. Unfortunately, the physical tenacity that makes plastics so desirable as grocery store packaging or dishware also creates a gigantic problem for the environment. Most plastics produced today are formed from petrochemicals, which means it takes an enormous amount of time for each straw, water bottle, and single-use fork to break down and disappear. To make matters worse, extracting oil as a basis for these textiles adds fuel to the global warming fire by sustaining a demand for fossil fuels and toxic contamination.

So how do we halt the spread of plastic into the sea and remove what is already there? The first step toward keeping trash from entering the ocean is to reduce the amount created on land and repurpose what we chuck into trash bins.

Unfortunately, there are very few large-scale projects able to tackle the magnitude of our plastic predicament. To begin with, plastic manufacturing companies have little incentive to switch from oil-based polymers to more sustainable, biodegradable options, or to use recycled material. This is in part because it is still cheaper to produce items out of raw, fossil-based feedstock. The major forces driving the conversion to corn, potato, or soy bioplastics come primarily from consumer demand and regional campaigns in cities like Los Angeles and Concord, Massachusetts, where there are efforts to ban plastic bags and water bottles.

Even if synthetic plastics were outlawed altogether by every nation on Earth, the challenge of removing what is still suspended in the ocean would remain a major dilemma. Scientists are just beginning to quantify the amount of plastic hanging out in the water column, how sunlight breaks down large pieces into smaller fragments called “microplastics,” and in what way these bits affect the food chain. The plastic can block sunlight from reaching algae and, in turn, negatively affect organisms that feed on this most basic and important level. Humans rely on that food chain for survival, so plastics (and the hazardous chemicals they contain) can eventually damage our dinners and poison our ecosystems.

To put oceanic plastic into perspective, consider this: In a 2014 study expedition conducted by the Algalita Marine Research Foundation, a sample from a one-hour trawl 260 miles from the center of the Great Pacific Garbage Patch pulled up thousands of times more plastic by weight than plankton, meaning that more synthetic materials were present in one scoop of seawater than the animals that are supposed to live there. Deep-sea explorers such as those working with the Monterey Bay Aquarium Institute in California were amazed to find crud thousands of meters down with a full third of the messy makeup consisting of plastic. Not just eyesores, the materials concentrate dangerous chemicals and act as sponges for toxins such as DDT, PCBs, and PBDEs.

A Solution for Synthetics

As researchers struggle to understand the scope of the situation, local governments, non-profits, and universities are working on a host of creative solutions. Since the physical problem is situated far from the jurisdiction of any one nation, the responsibility to find a fix seems to have fallen on committed organizations and stewards of the environment. Most focus on land-based initiatives such as The National Oceanic and Atmospheric Administration’s regional action plans that coordinate cleanups around the U.S. through their  Marine Debris program. The agency is also working with the fishing industry and the National Fish and Wildlife Foundation to reduce the damage done by derelict fishing gear.

Prototypes for marine robots—such as the  Veolia Drone  developed by French International School of Design student Elie Ahovie or the  Protei invented by Cesar Harada—could one day scour the ocean for trash. Larger groups that employ booms and filters, like the  Ocean Cleanup  system proposed by entrepreneur Boyan Slat, could be placed in areas of concern to help trap trash. However, most of these technologies are still firmly situated on the drawing board, and have not adequately addressed logistics (like how the machines would determine the difference between tiny bits of plastic and living critters of a similar size). They would also have to be durable enough to withstand the destructive effects of seawater, storms, and physical stress.

In recent years, scientists have observed various species of bacteria colonizing rafts of plastic debris, making up what they have dubbed the “plastisphere.” Scanning  electron microscopy  from researchers at the Woods Hole Oceanographic Institution revealed thousands of organisms creating an almost reef-like ecosystem on the surfaces of floating flotsam. It is still a mystery how the byproducts of their digestion affect the rest of the ecosystem. Bioengineers have proposed manufacturing bugs that could act in a similar way to their naturally occurring relatives to mop up the mess, both on land and sea. But releasing any new element into an incredibly complex web of life carries enormous risk. Considering at least one of the species of bacteria chomping on the particulate plastic occupies the same genus as one that causes cholera, no one wants to make any rash decisions. For the plastic that remains solely on land, students from Yale University’s Rainforest Expedition and Laboratory discovered a  fungus  in the Amazon in 2012 that likes to dine on polyurethane without the need for oxygen. Adding a heap of plastic into a strictly controlled digester along with Pestalotiopsis microspora may one day be a way to reduce the amount of plastic reaching the ocean from land.

How You Can Take Part

On a smaller scale, communities can do their part by organizing beach cleanups and switching from petrochemical plastics to organic-based alternatives. Simple changes in everyday habits, such as swapping plastic water bottles for reusable containers and opting for cloth bags instead of flimsy carryout sacks, would make a sizable dent in reducing the trash reaching our waterways. Choosing personal care products that do not contain tiny plastic scrubbing beads or seeking out packaging made from a percentage of recycled material help send a message to corporations: The health of the environment and human safety are important factors consumers are prepared to pay a little extra for. Contributing to non-profits such as the  All One Ocean  Campaign, Annie Leonard’s  The Story of Stuff , and  5gyres.org  expands efforts to spread awareness, mobilize citizens, and establish lobbying interests with enough power to influence legislation. Like climate change or air pollution, removing the plastic from the planet’s oceans will involve stakeholders that occupy positions in government, media, and the scientific community. Although the immensity of the situation may seem overwhelming at first, it is possible for a species clever enough to engineer such feats of chemistry to also help deal with its consequences.

 

Morgana is an environmental journalist, performer, and educator living in Northern California. In her spare time she enjoys telling jokes and singing jazz music.

 

 

The post A Sea Full of Trash: Tackling the Plastic Problem appeared first on Vermont Journal of Environmental Law.

Summary: There may be tiny bits of plastic in your toothpaste. These small plastic pieces are part of many personal care products and are designed to wash down the drain. However, due to their non-biodegradable nature and miniscule size, the plastic pellets sail through wastewater treatment plants, enter water bodies, and cause persistent environmental damage. A bill is before the Vermont Senate that aims to ban this plastic from manufacture and retail in the state in order to prevent harm to environmental and human health.

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By  Olympia Bowker

There’s no denying it— plastic pollution is an ugly problem. State legislation and plastic prevention projects nationwide illustrate the need to address this unsightly issue. But what about the plastic you can’t see?

Microbeads are a common ingredient in many personal care items. Microbeads are tiny  (less than 5 millimeters) plastic beads that act as little scrubbers in products. These beads, which are found in toothpaste and face washes, are designed to wash down the drain. But where do they end up?

When washed down a sink or shower drain, microbeads end up with other wastewater— in wastewater treatmentplants. However, these facilities are not designed to catch such tiny plastic pieces. Therefore, microbeads waltz through treatment facilities unscathed and enter water bodies.

There is currently no way to remove microbeads from water once they are introduced. While there are cloth filters that can be installed into wastewater treatment facilities, these filters are few and far between. For example, there are 59 wastewater treatment plants that discharge into Lake Champlain in Vermont, but only 5 have the proper microbead filtration. However, even with filtration, these microbeads don’t just disappear. The sludge caught by these fine filters is either sent to a landfill, or used as biofuel: microbeads included.

So why are microbeads so bad, especially since you can’t even see them? The size of microbeads plays a large role in the danger they pose. Microbeads are made of absorbent plastic; they tend to attract and take in toxic chemicals, such as dichlorodiphenyltrichloroethane (DDT), polychlorinated biphenyl (PCBs), and flame-retardants. All of these chemicals are recognized to have serious impacts on human health. In addition, the small size of microbeads makes them easy to swallow: when fish swallow the microbeads these chemicals end up in their system. People eat the fish. This scenario escalates.

Microbeads are harmful to the environment and people alike, and diligent jurisdictions recognize this. Illinois and New York successfully passed bills to ban microbeads, while other states are in hot pursuit of similar legislation. Vermont is among these forward-thinking states and has a m

icrobead ban in the works. On January 28, the Vermont House of Representatives advanced a bill that bans the manufacture and sale of microbeads in the state of Vermont. This Bill, H. 4., was first presented to the House on January 8, 2015. After 20 days on the floor and review by both the Committee on Human Services and the Committee on Fish, Wildlife & Water Resources, H. 4. passed 140 to none—completely unopposed.

On January 30, the Bill was referred to the Committee on Natural Resources and Energy. Track the H.4.’s progress here. If passed, this bill will go into effect on July 1 of this year.

As long as microbeads are in personal care products, the miniscule plastics will continue to get into state waters. A ban is the only effective method of fully preventing this type of pollution. Manufacturers agree: Proctor & Gamble, Johnson & Johnson, Colgate, and L’Oreal are all working to replace plastic micobeads with natural, biodegradable replacements such as ground-up fruit pits, oatmeal, and sea salt.

The pending Vermont Bill seeks to align the ban with the Illinois ban. By lining up the timeline for the ban, manufacturers can uniformly phase out microbead use, making compliance with the law realistic.

Olympia Bowker is a third-year JD/Masters of Environmental Law and Policy student at Vermont Law School. Olympia is pursuing dual Water and Land Use Law Certificates and is the Senior Notes Editor at the Vermont Journal of Environment Law . 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 Tiny Beads, Big Problem: Vermont Seeks to Ban Microbeads appeared first on Vermont Journal of Environmental Law.

Summary : Not all agency rules have the force of law. In March of 2014, the EPA and the Army Corps of Engineers issued an “interpretive rule” regarding section 404 of the Clean Water Act, circumventing a notice and comment period. Under the Administrative Procedure Act (APA), “interpretive rules” are merely advisory and do not carry the force of law. However, the content of this new rule implies otherwise.

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By  Olympia Bowker and Michael Campinell

I.               Introduction  

On March 25, 2014 the EPA, in conjunction with the Army Corps of Engineers, issued an interpretive rule section 404(f)(1)(A) of the Clean Water Act (the CWA Rule). According to the EPA, this rule “further clarifies the scope of [the] statutory exemption[s]” under section 404(f)(1)(A). The EPA’s rule blends the statutory and common law requirements of legislative and interpretive rules and creates confusion for those who are subject to the change.

An interpretive rule “advise[s] the public of the agency’s construction of the statutes and rules which it administers…”An interpretive rule is a non-legislative rule that interprets or clarifies a provision previously promulgated through a statutory mandate or an agency regulation. When an agency issues an interpretive rule, the agency clarifies or explains how an existing statute or regulation is binding on those already subject to it. Most importantly, the interpretive rule itself is not binding because the interpretation has not gone through rulemaking procedures or adjudication.

On the contrary, a legislative rule (also known as a “substantive rule”) is a rule that has the force and effect of law. A legislative rule is a binding rule that requires notice under section 533 of the APA. A federal agency can only promulgate legislative rules if Congress gave the agency the power to do so.

As evidenced above, agencies promulgate several types of rules. The content of a rule and the procedures an Agency follows should indicate: 1) which type of rule an Agency promulgated, and 2), what effect that rule has.

This blog post explores whether the CWA Rule is interpretive or legislative based on its content and procedural aspects.

II.             Substantively, the CWA Rule is a Legislative Rule

The CWA Rule creates 56 additional permitting exemptions under the Clean Water Act for normal farming activities as “long as these activities are implemented in conformance with [Natural Resources Conservation Service] technical standards….” The NRCS is part of the USDA and, in regard to the CWA Rule, provides technical assistance “for farmers, ranchers and forest managers wanting to make conservation improvements on their land.” Although the EPA claims the CWA Rule is an interpretive rule, the substance of the document seems to go further than most interpretive rules and actually appears to either add exemptions to, or create further obligations within, the existing statute.

To determine whether a rule is substantive or interpretive, the D.C. Circuit Court outlined a four part test that helps the court decide whether a rule has the “force and effect of law.” The test asks:

(1) whether in the absence of the rule there would not be an adequate legislative basis for the enforcement action or other agency action to confer benefits or ensure the performance of duties, (2) whether the agency has published the rule in the Code of Federal Regulations, (3) whether the agency has explicitly invoked its general legislative authority, or (4) whether the rule effectively amends a prior legislative rule.

If the answer to any of these questions is affirmative, the agency likely created a legislative rule, not an interpretive one. Applying this test to the CWA Rule, the rule seems to be legislative in nature. The first three parts of the test are answered in the negative, but it is the last question that leads to the conclusion that the EPA’s rule in this case is likely legislative.

Looking to the first three parts of the test, the Administrator of the EPA has the ability to create legislative rules to address different types of exemptions under the CWA. In the terms of the test, in the absence of the rule in question, the EPA has an adequate legislative basis to create such a rule. Second, the EPA did not publish the rule in question in the Code of Federal Regulations (CFR). Rather, the EPA published the rule only in the Federal Register and on its own website. Third, the EPA did not “explicitly invoke[] its general legislative authority.” In fact, the EPA classified the rule as interpretive, not legislative. The fourth question, however, leads to the conclusion that the CWA Rule is actually legislative in its substance.

The fourth question is: “Whether the rule effectively amends a prior legislative rule.” In order to answer this question in the affirmative, a rule must go beyond supplying “crisper and more detailed [guidance] than the authority being interpreted.” Further, an “agency’s change in its reading of a statute does not necessarily mean the rule announcing the change is legislative.” Based on these guiding principles, the CWA Rule, in this case, seems like more than an interpretive rule and is likely a legislative rule.

Simply put, the CWA Rule does not “clarify” the existing exemptions to a CWA section 404 permit. Rather, the rule adds new exemptions. The currently existing interpretation of the CWA allows for activities that are included in normal farming practices “such as plowing, seeding, cultivating, minor drainage, and harvesting….” The CWA Rule, however, does not clarify any of these “normal farming practices.” If that were the case, the rule would most definitely be an interpretive rule. Instead, the rule either adds new exemptions to the already existing list of “normal farming practices” or the CWA Rule creates further obligations for farmers seeking a section 404 exemption.

Now, in addition to “normal farming practices,” the CWA Rule may exempt additional activities, as long as those activities are pursuant to NRCS guidelines. Although the EPA may consider some of these activities “normal farming practices” already, it is possible that some these NRCS-approved activities may create additional section 404 permitting exemptions. Even if the interpretive rule does not create additional exemptions, the rule may now require farmers to take additional specific steps to exempt an activity that the NRCS did not previously guide. For example, if the EPA previously considered Animal Trails and Walkways an exempt activity, farmers must now follow the specific NRCS guidelines for the EPA to exempt that activity. These guidelines may create additional obligations for farmers seeking to exempt an activity from section 404 permitting. Currently, whether the rule creates more or less obligations for farmers is unclear.

What is clear, however, is that the CWA Rule either creates additional exemptions from section 404 permitting or the rule imposes additional requirements for farmers to be exempt from section 404 permitting. If either imposition actually exists, the rule is not interpretive, but is actually legislative. Further, both of these creations also carry the force of law because farmers either have additional exemptions under section 404 or farmers must follow specific guidelines to take advantage of an exempt activity. Therefore, based on the CWA Rule’s content, it is a legislative rule.

III.           Procedurally, the CWA Rule is a Non-legislative Rule

Section 553 of the APA mandates published notice of rules, but there are exceptions. In particular, section 553 states: “this subsection does not apply…to interpretive rules….” The CWA Rule is a non-legislative rule for more reasons than its title: it is an interpretive, non-legislative rule because enactment of the rule preceded notice to the public.

An interpretive rule is not binding in nature because it lacks notice, which is a requirement of rulemaking procedures and section 553 of the APA. The CWA Rule went into effect on March 25, 2014, but was published in the Federal Register on Monday, April 21, 2014. The publication noted: “While the interpretive rule is already in effect….”

Although the CWA Rule meets some prerequisites of legislative rules, it does not meet them all. The CWA Rule was published in the Federal Register as required by APA section 553(b) , but this notice did not include the time, place, and nature of the public rulemaking proceedings under section 553(b)(1) because the rule went into effect one month prior.

Therefore, though the EPA is authorized to make legislative rules, the CWA Rule does not constitute a legislative rule because it did not have required notice prior to going into effect.

IV.           Rule Controversy

The CWA Rule created controversy within the farming and agricultural community. Proponents of agriculture argue that the CWA Rule actually narrows the “normal farming practices” exemption because the CWA Rule requires farmers to follow a specific set of guidelines in order for the EPA to consider them exempt from section 404 permitting. Further, there are claims that many of the activities that the NRSC guides are actually already exempt under the Clean Water Act. This means, according to some, that farmers seeking exemption must now face additional barriers for the EPA to consider a “normal farming practice” exempt. While the EPA classifies the rule as interpretive because it simply clarifies section 404 exemptions, critics argue that because the rule places additional burdens on farmers, the EPA must go through the proper notice and comment period that the APA requires for rulemaking.

Shortly after the Federal Register published the CWA Interpretive Rule, a bill arose in the House of Representatives seeking to impose the “Agricultural Conservation Flexibility Act of 2014.” The “Agricultural Conservation Flexibility Act” was referred to the Committee on Transportation and Infrastructure, and explicitly states: ” Section 404(f)(1)(A) of the Federal Water Pollution Control Act (33 U.S.C. 1344(f)(1)(A)) shall be applied without regard to the interpretive rule issued on March 25, 2014, entitled ‘U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the Applicability of the Clean Water Act Section 404(f)(1)(A).'”

  V.             Conclusion

In sum, because the CWA Rule either creates new benefits or new obligations, the rule is legislative in nature and should go through notice and comment period under APA section 553(b). However, since no notice and comment period took place, the CWA Rule is not a legislative rule under the APA. Due to the ambiguity of what type of rule the CWA Rule is, those subject to it are not given a clear indication of whether the rule is binding, or what impact the rule may have. If the legislature fails to statutorily override the EPA’s rule, farmers and agriculturalists alike will wait in limbo while the courts decide the Rule’s nature.

 

Olympia Bowker is a third-year JD/Masters of Environmental Law and Policy student at Vermont Law School. Olympia is pursuing dual Water andLand Use Law Certificates and is the Senior Notes Editor at the Vermont Journal of Environment Law . 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.

 

 

Michael Campinell is a third-year JD/Masters of Environmental Law and Policy student at Vermont Law School. He is the President of the Moot Court Advisory Board and an Articles Editor on the Vermont Law Review . Michael is interested in land use and conservation, wildlife, biodiversity, and water law. Michael earned a B.S. in Environmental Science and a B.A. in political science at the University of New England and worked as a wildlife technician before attending law school. In his free time, Michael enjoys hiking, camping, snowboarding, and cooking.

The post Blurred Lines: The Importance of Delineation Between Legislative and Non-legislative Rules Under the APA appeared first on Vermont Journal of Environmental Law.

Summary:  Trash that is lost, littered, blown, or washed into the ocean is an issue of growing environmental concern.  Los Angeles is a leader in using the federal Clean Water Act tool of Total Maximum Daily Loads (TMDLs) to mitigate a major contributing source of marine trash: urban stormwater.  California is now in the process of developing an innovative statewide trash policy that builds upon local successes.  This post discusses the problem of marine trash, the development of the Los Angeles River Trash TMDL, and California’s forthcoming trash policy.

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By Megan M. Herzog

This post is cross-posted on Legal Planet , the environmental law and policy blog of UCLA Law School and UC Berkeley Law School.

 

Let’s talk trash.

Human-generated stuff that ends up in the ocean, termed “marine debris” or “marine trash,” presents a critical ocean and coastal management challenge.  Trash can be found on coastlines and in seawater worldwide, from the surface to the seafloor.  Marine trash degrades habitats, and harms and kills wildlife.  Plastic trash, in particular, may persist for centuries or longer in the ocean, where it can absorb harmful contaminants and contaminate the environment with chemical additives.  The economic costs of marine trash are alarming, too.  West Coast communities alone spend over $520 million annually on prevention and clean-up.

Despite what one might initially think, marine trash is, to a significant extent, a terrestrial problem.  Some estimates suggest that most marine trash derives from land.  Urban stormwater is a key pathway.  Inevitably, municipal solid waste collection fails to capure all trash.  People litter.  Wind blows waste out of landfills.  Industrial sites experience spills.  And during the next rainstorm, water gushes along the impervious pavement of cities, carrying this trash with it into ocean-bound sewers and waterways.

Reducing trash pollution in stormwater is thus critical to addressing marine trash.  The Clean Water Act , the nation’s principal water quality statute, regulates stormwater discharges; but using the Act to control trash in municipal stormwater systems is a fairly recent innovation.  Los Angeles is leading the way.  Using the Clean Water Act tool of Total Maximum Daily Loads (TMDLs) , the L.A. Region has implemented the nation’s largest trash-capture initiative.  Now, the State of California is pioneering a statewide trash policy that builds upon local successes.

What are TMDLs?

The Clean Water Act requires states to set Water Quality Standards for each waterbody.  Water Quality Standards designate uses for the waterbody (e.g., recreation, wildlife habitat) and set criteria necessary to protect those uses.  A waterbody is ” impaired ” if a pollutant (e.g., trash) prevents attainment of its Water Quality Standards.   Stormwater is a common cause of impairment.

To address impairment, regulators must develop a TMDL specifying the maximum amount of the pollutant that the impaired waterbody can assimilate without violating its Water Quality Standards.  Dischargers must take corresponding action to reduce pollution so as not to exceed the TMDL.

To implement the TMDL, regulators incorporate mandatory pollution-reduction measures into Clean Water Act discharge permits (e.g., local stormwater permits ), as well as any relevant state and local plans.  Stormwater control measures take the form of ” best management practices ” (BMPs), which can include structural retrofits as well as operational or behavioral changes.

L.A.’s’ “Zero Trash” TMDL

Los Angeles has serious trash-pollution problems, as demonstrated by the below L.A. Times photo of the Los Angeles River mouth.  Los Angeles County’s municipal separate storm sewer system (MS4) carries untreated stormwater—and the trash that washes off of city streets with it—into the ocean-bound L.A. River.

In the late 1990s, the L.A. Regional Water Board listed the L.A. River as impaired due to trash, compelling regulators to develop a Trash TMDL for the watershed.  Baseline monitoring studies concluded that stormwater runoff was the dominant source of trash.  Because even a single Styrofoam cup can have lasting, harmful impacts on beneficial uses, regulators essentially had no choice but to set the numeric target for trash in the L.A. River at zero and require the MS4 to implement trash-control measures.  The State Water Board and U.S. Environmental Protection Agency approved the TMDL in 2002.

Local governments balked at the idea that they could be responsible for every piece of litter.  Twenty-two cities sued to set aside the TMDL, arguing that zero trash is an impossible and overly expensive standard.  The California Court of Appeal disagreed in City of Arcadia v. State Water Board , 135 Cal. App. 4 ^th 1392 (2006) , noting a variety of viable compliance measures to attain the zero-trash goal and validating regulators’ use of scientific data.

In 2008, the L.A. River Trash TMDL took effect.  Its mandates are incorporated into the stormwater permits of Los Angeles County, forty-two cities, and the California Department of Transportation.  The TMDL requires permittees to reduce trash 40 percent below a calculated baseline in the first compliance year, and an additional 10 percent each year thereafter.  Months of negotiation led regulators and local governments to agree on two compliance pathways.

First, permittees may install ” full capture devices ” throughout their storm-drain system.  A full capture device captures all particles less than or equal to 5mm in diameter during a typical storm.  Although such devices fail to keep out very small particles , a finer mesh would easily clog, increasing flood risk.

Alternatively, permittees may install “partial capture devices” in tandem with implementing institutional controls such as enhanced enforcement of litter laws and increased street sweeping.  Partial capture catch-basin inserts are the least expensive structural retrofit, but the accompanying institutional controls can be labor-intensive.   For instance, cities must conduct studies to understand trash sources, land uses, and demographics, and continually monitor and adjust strategies.

In spite of challenges, the region as a whole has been surpassing its obligations.  Stormwater improvements in the City of L.A. alone have prevented more than 1.2 million pounds of trash annually from entering waterways and reduced trash inputs to the L.A. River by more than 69 percent.  Compliance with the L.A. River TMDL and other L.A.-area trash TMDLs has resulted in the installation of nearly 100,000 full capture devices and numerous “trash booms” that capture trash at outfalls.  Furthermore, L.A.-area cities have developed expertise in mitigating stormwater and marine trash, helping to pave the way for other jurisdictions seeking to reduce pollution.  Regional compliance with Trash TMDLs costs on average $5.3 per resident per year above and beyond what California communities otherwise spend on trash control (55 percent greater).

Expanding Statewide—and Beyond

The State of California is in the process of developing a statewide trash policy that builds upon Los Angeles’ efforts.  The final policy, expected soon , will provide regulatory consistency by incorporating zero-trash control measures into discharge permits for state agencies, industry, construction sites, and MS4s throughout California, focusing on high trash-generating land uses.

Simultaneously, the State and local governments are pursuing complimentary policies to close the gap between product generation and post-consumer recovery.  California recently adopted the first state law banning single-use plastic bags , a commonly littered item.  California also regulates plastic-pellet spills and offers a cash incentive for beverage-container recycling.  Future policies could motivate producers to incorporate life-cycle considerations into product design, production, and sale.  Policies that shift financial responsibility for marine-trash management upstream—for instance, requiring producers to contribute to financing Trash TMDL compliance—could help incentivize greener product alternatives as well as ease governments’ financial burdens.

Beyond the L.A. River, regulators have implemented Trash TMDLs in fourteen other L.A.-area watersheds , the Colorado River Basin , and Maryland’s Anacostia River Watershed.  Other jurisdictions seeking to control trash-polluted stormwater can draw valuable lessons from these experiences.  California’s forthcoming trash policy will offer an even broader model for stormwater trash control, further expanding our collective expertise about how Clean Water Act tools can be harnessed to address marine trash.

 

Megan M. Herzog is the Emmett/Frankel Fellow in Environmental Law and Policy at UCLA School of Law, where she researches environmental law and policy solutions for the  Emmett Institute on Climate Change and the Environment  and teaches Ocean and Coastal Law and Policy.  Through the Emmett Institute and UCLA’s  Wells Environmental Law Clinic , she has worked for the past several years with ocean conservation groups and policymakers to defend and promote marine trash policy tools.  Prior to joining the UCLA Law faculty in 2012, Ms. Herzog was a Fellow at the Environmental Law Institute.  She received her J.D. and M.S. in Environment & Resources from Stanford University.

The post Zero Trash: Using the Clean Water Act to Control Marine Debris in California appeared first on Vermont Journal of Environmental Law.

Summary: California is currently in the midst of a severe drought that poses substantial risks to agriculture, endangered species, and human society. Water scarcity has caused tensions to ignite among various groups within California. With the drought ongoing, Californians must consider new ways to preserve their limited water resources.

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By Laurie Ristino and Joseph Simpson  

California is experiencing one of the worst droughts on record, resulting in a state of emergency since January 2014. But California’s water troubles resonate beyond its borders. The drought foreshadows a drier state of affairs in much of the West as climate change takes its toll. The tensions in California over competing water uses exemplify what is at stake for the region ecologically and economically.

California contributes about one-half of the nation’s fruit and vegetable production and is also the top dairy-producing state. At the same time, agriculture only contributes 2% of California’s massive gross domestic product (GDP).  In order to produce this bounty, however, the agriculture sector uses about 40% of the state’s water.

California is mostly desert. Its agricultural prowess largely relies on irrigation, especially in the epicenter of agricultural production: the Central Valley. Efficient movement of water has allowed cities such as San Francisco, Los Angeles, and San Diego to boom even though they naturally receive little freshwater.

Near the end of 2012, California fell into an unusual dry spell. After a dry 2013-2014 winter, the drought forced farmers to uproot valuable walnut and almond trees and sell off cattle they could no longer husband. The drought also caused a year-long fire season and water shortages in many communities, especially poor and rural communities in the Central Valley.

Although the state has water reservoirs, farmers cannot access most of the water because of competing interests, including endangered species. The delta smelt, a three-inch fish that has been a listed species since 1993, is the current poster-child in the fight between endangered species and California’s farmers. In 2007, a federal judge granted protection to the delta smelt by limiting the use of irrigation pumps. The U.S. Fish and Wildlife Service evaluated the delta smelt’s habitat after that case and concluded that the best way to protect the fish is to allow free flow of water in the fall during the fish’s spawning season. This restriction allows 660,000 acre-feet of freshwater to flow directly into the ocean each year. A panel of the U.S. Court of Appeals for the Ninth Circuit upheld the restrictions in March 2014.

In August 2014, the California legislature passed bills that gave the state management rights to valuable groundwater sources, further circumscribing farmers’ ability to water their crops. Additionally, the Central Valley has seen a boom in fracking. Not only is the fracking process freshwater-intensive, resulting in further competition for the resource, but farmers worry that fracking fluid will leach into groundwater that the drought has forced farmers to rely on. To no avail, some state legislators requested that Governor Jerry Brown issue a moratorium on fracking in the Central Valley until science proves the process is safe.

Meanwhile, municipal governments have asked citizens to cut down on water use, and some water districts offer rebates for residents to replace their grass with drought-tolerant plants. As a result, water conservation in urban communities has continued an upward trend compared to a year ago.

Conserving water, however, does not refill lakes, streams, and reservoirs. In an example of the ecological chain reaction that occurs when habitat is lost, migratory birds that fish in these waterways in the winter will find smaller populations and higher concentrations of salts and chemicals. Tens of thousands

of agricultural workers may join the 17,000 workers who already lost their jobs. And the U.S. Department of Agriculture expects food prices to remain high for years to come.

Water is the fundamental building block of life. Its deepening scarcity in our West—and in swaths of the globe—will continue to undermine economies and impact species, including us.

Laurie Ristino is an associate professor at Vermont Law School where she serves as Director of the Center for Agricultural and Food Systems and teaches courses in agricultural law. Before joining the Vermont Law faculty, Professor Ristino was senior counsel with the Office of General Counsel, United States Department of Agriculture.

 

Joseph Simpson, JD ’16, from Chino, California, is a second-year JD student and staff editor at the Vermont Journal of Environmental Law .  He graduated from Iowa State University in 2013 with majors in History and Political Science.  He is interested in land use law and hopes to use his knowledge to preserve natural ecosystems, especially the underappreciated desert.

The post All Dried Up: Tensions Rise over Water Shortage in California appeared first on Vermont Journal of Environmental Law.

Summary: In 2016, the Chinese government plans to launch a national market for carbon permit trading. In preparation for this national system, the government rolled out seven test markets, which saw varying degrees of compliance. Overall, there have been no reductions in carbon emissions. But, the system is not doomed. There are several reasons for this poor performance, and once the Chinese government recognizes them and implements a variety of solutions, there is no reason why a carbon emissions trading market cannot work in the world’s most populated country.

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By Caroline Casey 

In August of this year, the Chinese government announced that it would roll out a national market for carbon permit trading. This trading scheme is meant to be a big step toward reaching its pledge to reduce the amount of carbon it emits per unit of GDP to 40-45% below 2005 levels by 2020. This market, which will start in 2016, will be the world’s largest emissions trading market, dwarfing the current European system. The EU Emissions Trading System (ETS) is the largest market in the world and was designed to eliminate nearly 3 billion tons of carbon dioxide emissions from major emitters, such as manufacturing and power generation plants. On the other hand, the Chinese market is meant to cover 700 million tons of emissions per year. In preparation for this national market, the government has set up seven test markets across the country. Unfortunately, while success levels varied among the pilots (five of the seven actually saw a high level of compliance), they have generally failed to reduce emissions. In order for the national system to efficiently fight climate change, there will need to be a few serious changes.

Additionally, there were consistent problems with a lack of transparency in the test markets. Some companies are unable to provide “robust” records of their past emissions, making it hard for regulators to decide what level of emissions to place the cap at. Moreover, regulators lack the tools necessary to verify estimates of emissions provided by companies, potentially leading to fraud. For the market to be effective at all, transparency of emissions data and traded allowances is imperative. This could be done by requiring neutral, third-party review of any data.Many of the problems that came with the experimental markets stemmed from a lack of experience with trading on this type of marketplace. One report stated that many firms struggled to understand how to trade permits, and as a result traded only a few each day. Many expect this problem to disappear as traders become more familiar with the process. Another solution is to allow both private and institutional investors to take part in carbon trading. Experienced investors would improve the quality of the trading, as well as increase competition, thereby increasing prices.

Furthermore, there have been instances of over-supply in these seven test markets: Guangdong added 8 million permits to its scheme after companies threatened to refuse to participate in the second phase of the program. This oversaturation of permits does not require or even encourage reductions in emissions. The first step to solving this problem is to get accurate data from all emitters to set a realistic cap on emissions. Then, the number of permits given will have to be ratcheted down in increments over time. Certainly, it might be a few years before emissions decrease. However, the extra time needed to collect all the relevant information, as well as the several years of combined smaller decreases, will lead to overall greater reductions and a generally more efficient system.

One general solution to the so-far problematic system has been to take the most effective characteristics from the seven test markets to create a “best practices” national market. For example, the Shenzhen market allows foreign investors to trade on the market in their own currency. This practice increases participation and competition, which Chinese regulators hope will drive up the price of carbon.

Lastly, the Chinese markets simply need more time. The government is currently working through trial and error with each of the phases in the test markets. The system is new, and is still more of an experiment than anything else. However, it has the potential to have a major influence on the global market and on mitigating climate change overall—it just can’t do so overnight.

Caroline Casey is a third-year student at Vermont Law School. Her studies focus on water law and land use law and she hopes to use her J.D. to help save the planet. Before coming to law school, Caroline earned a B.A. in Environmental Studies from Villanova University.  When not reading for class or cite checking for VJEL, Caroline likes to listen to public radio, cook, and ride her bike.

 

The post China’s Emissions Trading Plan appeared first on Vermont Journal of Environmental Law.

Summary:  The city of Toledo, Ohio issued a water ban on August 2-3, 2014 after a local treatment plant found unsafe levels of microcystin, a type of harmful algal bloom known to cause health defects and even death when ingested. Due to the amount of unregulated agriculture in Ohio, phosphorus and other nutrients that runoff into Lake Erie create these algal blooms. Until something is done to control the runoff, the water will continue to be contaminated.

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By Victoria M. Scozzaro

On August 2, 2014, the city of Toledo, Ohio issued a ban on water that left about 500,000 residents without

clean drinking water for two days. The ban was put in place after a water treatment plant found unsafe levels of microcystin, a type of harmful algal bloom (HAB), known to cause dangerous health effects—even death—if ingested.

According to local press, the toxin was found at concentrations of 1.5 to 2.5 parts per billion (ppb), while other detections indicated levels as high as 3 ppb. The EPA’s recommended health level is 1 ppb. So what led to the excessive amount of toxins in the water?

Algal blooms come from a disproportionate amount of nutrients—especially phosphorus—in the water. The algal blooms in Lake Erie come from several sources, but one is dominant: the massive amount of fertilizers and animal manure from unregulated agricultural practices.

This should not be surprising due to the considerable amount of agriculture in Ohio. According to the Ohio Farm Bureau , agriculture is Ohio’s top industry. There are 75,700 farms in the state with the average farm size being 188 acres. Ohio has a total of 14.3 million acres of land in farms, and agriculture contributes $105 billion to Ohio’s economy.

The International Joint Commission (IJC) claims that the Lake Erie basin receives 44% of the total phosphorus entering the Great Lakes from agricultural activities, which is more than any other Great Lake. The Maumee River , the largest of the Great Lakes watersheds, is surrounded by agricultural land. So although the Maumee watershed only supplies 3% of all the water that drains to Lake Erie, it contributes to nearly half (43%) of the phosphorous pollution.

Many attribute the Cuyahoga River catching fire in 1969 as a major catalyst for the passage of the Clean Water Act (CWA) in 1972 and many other major environmental clean-ups in Ohio. This made me wonder, what kind of movement will the Toledo water ban ignite? The Toledo water crisis caused many groups to call on regulators to try to restrict phosphorous releases from agriculture. The problem is, the EPA currently does not have the authority under the CWA to regulate the agricultural sector and other nonpoint sources of the pollution.

Apparently, Ohio is offering $150 million in zero-interest loans for improvements to public water systems and wastewater treatment systems. These loans will supposedly be coupled with another $1 million in grants through the Ohio Environmental Protection Agency for local water systems to obtain laboratory equipment needed to test for toxins found in algal blooms. Not to mention, the administration said it will put $1.25 million toward a program to help farmers implement best-management practices to reduce levels of nutrient runoff from their fields. Toledo city officials say they will spend about $4.7 million this year, $1.7 million more than their annual expense, on chemicals to treat water. That seems like a lot of money and a lot of chemicals to fix a problem that would most likely be reduced by simple regulations and limitations.

The water ban in Toledo caused widespread national attention , shining a spotlight on efforts by EPA and other agencies to address nutrients and the problems they create. The EPA attempted to force regulations on states to step up their regulation of nutrient discharges. However the effort created political opposition so officials are now focusing on voluntary approaches.

Despite these attempts, the reality is that until Congress gives EPA power to directly regulate nonpoint sources or the CWA defines agricultural runoff as a point source, the agency is going to continue to struggle.

There is a proposal for a total maximum daily load (TMDL) to be required in Ohio and states surrounding Lake Erie. This is argued because parts of the lake border Canada, which would require international cooperation. However, if you just look at the amount of agriculture in Ohio alone, one can see that even if only Ohio began to limit the amount of nutrients dumped into the water there would be a major improvement in water quality. Algal blooms will decrease if the amount of phosphorus that enters the waterway decreases. These discharges should be regulated because voluntary approaches have obviously not worked.

Agricultural runoff has not been considered a point source under the CWA, but now that we have toxins in our water, there is evidence that agricultural runoff is a point source and thus should be regulated by the EPA. This is because the CWA was established to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The CWA prohibits the unpermitted discharge of pollutants from point sources into rivers, lakes, and streams. A “point source” is defined under the Act to include “any discernable, confined and discrete conveyance, including but not limited to any . . . container [or] rolling stock . . . from which pollutants are or may be discharged.”  The CWA also prohibits the discharge of pollutants from a point source into navigable waters of the United States absent a National Pollutant Discharge Elimination System permit (“NPDES”). If agricultural runoff could be a “point source” because the fertilizers, phosphorus (and other nutrients), and manure enter a navigable waterway (Lake Erie), then farmers would need to have a NPDES permit. Any farm’s discharges without a permit would constitute actionable violations of the CWA. This would ensure proper regulation and protection of fresh water.

While the water in Toledo was declared safe to drink by August 4th, the problem will persist as long as agricultural nutrients go unregulated. Microcystin levels come down when the winds shift and that’s why the treatment plant was able to say the drinking water was safe again. That also means that higher wind temperatures and another wind pattern have the potential to push the water back into higher concentrated levels of microcystin. The problem will only get worse as temperature and weather patterns shift dramatically due to climate change.

Lake Erie is Ohio’s most important resource. Without it, the state cannot provide its citizens with fresh water. It must be a priority for Ohio to clean up its water. There are a lot of “plans” and a lot of “money going towards” strategies that will improve the water quality. How long will Ohio let the problem persist? I’ve never gone without tap water for more than a few hours, but it’s potentials like this that have me here at Vermont Law School studying what can be done to encourage positive change in Ohio.

 

Victoria M. Scozzaro is a 1L student at Vermont Law School pursuing both a Juris Doctor and a Masters in Environmental Law and Policy. Prior to law school, she earned a B.A. in Sustainability and Business from Baldwin Wallace University. Victoria has always been passionate about the environment, and continues to be dedicated to making the world a better place for her family and future generations.

The post The Toledo Water Ban: More Money, More Chemicals, More Problems appeared first on Vermont Journal of Environmental Law.

Summary: The Supreme Court’s recent exactions decision in Koontz v. St. Johns Water Management District has prompted concerns that it will stifle the compensatory mitigation practices of environmental and natural resources permitting agencies. The form of Koontz phobia is unfounded for three reasons: (1) the statutes and regulations under which the agencies work already require the practices Koontz incorporates; (2) the agencies already compile studies justifying their assessment of development harms and mitigation benefits; and (3) those antecedent administrative findings regarding harms and benefits are entitled to judicial deference. The only new burden Koontz places on agencies working in environmental and natural resources permitting, therefore, is to connect the dots between harms and benefits to demonstrate their nexus and proportionality—a demand one surely hopes the agencies can bear.

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By  J.B. Ruhl

Three tightly-interconnected decisions make up the Supreme Court’s constitutional doctrine governing the permissibility of “regulatory exactions”—conditions a land use regulation authority imposes in a land development permit as a purported quid-pro-quo for permit issuance. Nollan v. California Coastal Commission , 483 U.S. 825 (1987) , held that when a land use authority issues a negotiated development permit through an adjudicative process, it may condition that permit on the landowner’s granting of a land dedication exaction—in that case a public easement across the land—only if the benefits of the condition bear an “essential nexus” to mitigating the harms caused by the development. In Dolan v. City of Tigard , 512 U.S. 374 (1994) , the Court added to Nollan the requirement that the harms and the benefits bear a “rough proportionality” in terms of magnitude, in that case finding that a city had not adequately demonstrated that match when conditioning a commercial building expansion permit on the owner’s granting of an easement for a public hike and bike trail to offset some the expected new traffic load. In both cases the Court emphasized that the government bears the burden of proving its exaction satisfies the standards.

Nollan and Dolan caused quite a stir in land use law circles, drawing particular ire from the cadre of legal scholars who have criticized any movement of the Court in the direction of strengtheni ng property rights through a more robust takings and exactions doctrines. To be sure, Nollan and Dolan left many questions unanswered: Do they apply only to onsite land exactions such as easements? Do they apply only to one-off negotiated land use permits, and thus not to legislatively-set, formulaic exactions such as the impact fees many cities have adopted by ordinance? But given the fact that many states had imposed similar or more demanding requirements on state and local permits for decades prior to the Court’s decisions as a matter of state law, the case that Nollan and Dolan rocked the land use world, while a nice theoretical story for law reviews, is difficult to make based on the practical experience.

The third of the case triplets to hatch, Koontz v. St. Johns Water Management District , 133 S.Ct. 2586 (2013) , has generated the same kind of agitated pushback by many land use and environmental law scholars—that is, all theory and little practical reality. Koontz confirmed what should have been obvious: Nollan and Dolan (1) apply to negotiated monetary exactions tacked onto a permit condition, and (2) apply when the land use authority denies the permit because the applicant refused to accept the exaction as a condition. Common sense supports this approach. After all, if a land use authority could get around Nollan and Dolan simply by demanding money, it could take the money and use it to exercise eminent domain to get the land it wants. And if it can avoid Nollan and Dolan simply by dangling the permit (with conditions) in front of the applicant’s face and say “no” if the applicant does not say “yes,” Nollan and Dolan would never come into play. The possible availability of a due process claim for the first scenario and a regulatory takings claim for the second provide little comfort—the cards are stacked high in the government’s favor for both claims.

Nevertheless, Koontz has been skewered by some legal scholars, with one deeming it “a blow to sustainable development” and, comparing it to decisions on affirmative action, voting rights and same-sex marriage, predicting that it “may turn out to have a profound impact on American society.” Even Justice Kagan, in dissent, declared that Koontz would “work a revolution in land-use law.” These are claims that demand practical proof, but there isn’t any. Indeed, as with Nollan and Dolan , the Koontz principles have been enforced in a number of states for decades, including in California and Florida, and there is no evidence that these states and their local governments have been brought to their knees. Indeed, quite the opposite—local governments have responded to the self-discipline the Court has demanded by developing reliable tools for evaluating and assessing exactions, and have made wide use of them with considerable success in courts. It is, therefore, quite unclear exactly where all the Koontz phobia is coming from.

Most of that experience, however, has unfolded in the local land use context. Koontz is likely to extend Nollan and Dolan into previously uncharted territory—compensatory ecological mitigation conditions of environmental and natural resources permits, such as occurs in the U.S. Fish and Wildlife Service’s (FWS) Habitat Conservation Plan (HCP) permitting program under the Endangered Species Act (ESA). Although these programs are functionally land use regulation regimes, agencies like the FWS do not usually attempt to exact on-site easements as compensatory mitigation. The HCP and similar programs have relied instead on conditions for providing offsite mitigation, including paying money to a third party “mitigation bank” that has restored resources or paying “in-lieu” fees to an entity that will arrange for mitigation. Nollan and Dolan , therefore, had not made much of an appearance in the environmental and natural resources permitting world before Koontz , which now clearly extends the doctrine to permit conditions relying on mitigation bank payments, in-lieu fees, and other techniques of compensatory mitigation. Yet, even here there is no cause for alarm, for three reasons.

First, agencies like the FWS operate under statutory and regulatory regimes that incorporate the Nollan / Dolan standards into the compensatory mitigation program. The ESA, for example, requires that the FWS evaluate impacts to the species from the applicant’s proposed activity and require the applicant to “minimize and mitigate such impacts .” 16 U.S.C. 1539(a)(2)(A)(ii). By statute, therefore, the FWS must establish the essential nexus and rough proportionality of any compensatory mitigation demand.

Second, agencies like the FWS are adept at building a scientific record of evidence to support their findings regarding impacts and appropriate mitigation. They have to do their homework, or else they will face a difficult time in court defending a permit condition against claims that it fails to meet the statutory standards.

Third, when they have done their homework, agencies like the FWS enjoy considerable judicial deference when challenged on their assessments of impacts from development and the benefits of compensatory mitigation. For example, when the FWS delineates an area within the permit development footprint as habitat of a species protected under the ESA and evaluates the harm to the species from the applicant’s proposed action, courts defer to those findings unless they are arbitrary and capricious.

All Koontz adds to this picture is that agencies like the FWS , using their antecedent administrative findings regarding harms of the proposed actions (e.g., destroying 10 acres of a species’ habitat) and benefits of the compensatory mitigation (e.g., restoring 15 acres of the species’ habitat), demonstrate the essential nexus and rough proportionality between the two. The agency’s findings regarding development harms and mitigation benefits are not part of the agency’s Nollan / Dollan burden of proof—they are administrative findings subject to judicial deference. Rather, the agency bears only the burden of proving that those findings establish the essential nexus and rough proportionality requirements. Given what the permitting regime already requires, that task should be no more demanding than telling a connect-the-dots story, a burden one would hope agencies could bear and sustain. To be sure, Koontz thus constitutionalizes what legislatures and agencies have already demanded of environmental and natural resources permitting programs, but that’s the point of Koontz —the Court wants to keep it that way.

Like other phobias, Koontz phobia is an overwhelming and unreasonable fear of a situation that poses little real danger but provokes anxiety and avoidance. Many state and local land use authorities have lived under state versions of Nollan / Dollan / Koontz for decades, and many state and federal environmental and natural resources agencies have lived for decades under statutory and regulatory regimes the replicate the doctrine. They’ve learned to deal with it. You can too, Koontz phobics. There’s no reason to be afraid.

 

J.B. Ruhl is the David Daniels Allen Distinguished Chair of Law and Co-director of the Energy, Environment and Land Use Program at Vanderbilt Law School. Before joining the Vanderbilt faculty in 2011, Mr. Ruhl was the Matthews & Hawkin Professor of Property at the Florida State University College of Law. Mr. Ruhl is recognized as an expert in environmental, natural resources, and property law and has been widely published in these fields. Mr. Ruhl earned his J.D. at the University of Virginia and holds a Ph.D. in Geography from Southern Illinois University.

 

 

 

The post Who’s Afraid of the Big Bad Koontz? appeared first on Vermont Journal of Environmental Law.

Summary: A glimmer of (false) hope for public trust plaintiffs.  The Alaska Supreme Court suggested Alaskans might have a right to atmosphere, but declined to provide a remedy.  Adam Murray, of the U.W. Arctic Law & Policy Institute, explains why.

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By Adam Patrick Murray

Atmospheric public trust plaintiffs are running out of options. The public trust doctrine usually includes state obligations to manage submerged lands and navigable waters for a public purpose. [1] Certain states, including Alaska, wrote individualized versions the public trust into their constitutions, laws, and court decisions. The resulting variations can draw additional resources into the public trust ambit. In those instances, enforcement might be a problem courts cannot solve.

The Alaska Supreme Court denies relief, but signals that Alaskans may have a public trust right to preservation of the atmosphere

The Alaska Supreme Court suggested that Alaskans might have a public trust right to atmospheric preservation. In Kanuk v. Alaska , [2] the Court implied that Alaska’s obligation might extend to atmosphere, and that state courts can answer the question conclusively. But it found no reason to do so absent a legislative or executive delineation of state rights and obligations regarding climate change. Even if the right exists, the Kanuk decision suggests Alaska courts cannot provide a remedy.

 

The case was part of a national campaign by Our Children’s Trust (OCT). [3]
This Oregon-based non-profit joins youth plaintiffs in “strategic atmospheric trust litigation…to compel governments…to adopt and implement enforceable science-based Climate Recovery Plans.” [4] The Alaska plaintiffs include Nelson Kanuk, a 17-year old Alaska Native from Kipnuk. Kanuk asked the courts to find and enforce a state obligation to enact new climate policies to protect his subsistence lifestyle. [5]

The appeal reviewed a lower court decision that the judiciary cannot answer Kanuk’s claims. [6] Kanuk requested two general kinds of relief. He wanted the Court to order specific climate policies, [7] and to declare Alaska in violation of a public trust obligation to preserve the atmosphere. [8] The Court affirmed that Kanuk’s specific policy requests are non-justiciable political questions. [9] It also denied declaratory relief, but suggested plaintiffs may succeed on nonpolitical claims. [10] This incremental victory probably still signals the end of the road for Alaska atmospheric trust actions.

Alaskan law probably extends the State’s public trust duty to the atmosphere

State law determines the scope of the public trust doctrine. Most states retain a traditionally narrow function, with slight expansions that relate directly to only water or aquatic species. [11] Alaska’s Constitution, statutes, and courts went further, which is why OCT gained some traction there.

The Alaska Constitution establishes: a state policy of making resources available for maximum use consistent with the public interest ; utilization, development, and conservation of all resources for the maximum benefit of Alaskans; reservation of fish, wildlife, and waters for common uses; and sustained-yield management of all ” replenishable resources .” [12] Alaska statutes expressly declare a state policy to manage water, land, and air “as trustee of the environment for the present and future generations”; and to “conserve, improve, and protect its natural resources and environment and control water, land, and air pollution , in order to enhance the health, safety, and welfare” Alaskans. [13] The Alaska Supreme Court expressly recognized a state “fiduciary duty” to manage these resources for public benefit, [14] and uses trust principles to define state duties. [15]

The Court admitted “plaintiffs do make a good case.” [16] The Justices suggested that plaintiffs have a basis to proceed if they manage to allege claims that are justiciable under the political question doctrine. [17] Reviewing an earlier case that denied damages in a public trust context, Brady v. State , [18] the Court said, ” Brady cannot reasonably be read as holding that violations of the public trust doctrine are without remedy.” [19]

 

 

 

The Alaska Supreme Court declined to provide any kind of relief

However, where the plaintiffs sought specific climate policies, the Court declined. [20] The Alaska Supreme Court would not make a “science- and policy-based inquiry” reserved for the executive or legislature under Baker v. Carr . [21]

Where the plaintiffs sought declaratory relief, the Justices were more equivocal. Under declaratory judgment rules that parallel federal practice, Alaska courts have discretion, but no duty, to issue declarations in “actual controversies.” [22] Alaskan touchstones for “actual controversy” include: ‘”definite and concrete, touching the legal relations of parties having adverse legal interests…. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'” [23] As a matter of prudence, according to the decision, Alaska courts should deny declaratory relief when it will not “clarify and settle legal relations” or “terminate and afford relief from the uncertainty, insecurity, and controversy.” [24]

The Alaska Supreme Court denied declaratory relief under these prudential concerns. [25] The Court would not declare the existence of an atmospheric trust obligation after denying the request for a judicially-determined standard to measure state performance. Such a declaration, the Court reasoned, would not “advance the plaintiffs’ interests any more than it will shape the future conduct of the State.” [26]

A right without a remedy?

The Kanuk decision leaves the state of Alaska close to an atmospheric public trust obligation. By constitution, statute, and precedent, Alaska’s duty to preserve natural resources probably does extend to air, and maybe to airborne effects on more traditional trust elements. Yet Kanuk also indicates that enforcement of an expanded obligation depends on the political branches. In other words, atmospheric trust plaintiffs need a statute or administrative rule providing a remedy for any state failure to reduce its contribution to climate change. Degrading the trust corpus does not violate any law. So even if there is a right to atmosphere, it is a right without a remedy. As first year law students will tell you, that is no right at all.

For more information on the lead plaintiff, please see: http://vimeo.com/33921321 .

Adam Murray is the University of Washington School of Law’s Arctic Law & Policy Institute Research Fellow.  His work focusses on international and U.S. environmental and ocean policy.  After his fellowship, he will move to Anchorage, Alaska for two federal clerkships; one in the U.S. District Court, District of Alaska, and another in the Ninth Circuit. Mr. Murray is an avid whitewater kayaker, proud father of two daughters, and a fourth-generation Pacific Northwesterner.  Find more work by Adam Murray, including an expanded version of this post, at http://ssrn.com/author=2290160.

 

 

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[1] See Phillips Petroleum Co. v. Mississippi , 484 U.S. 469 (1988).

[2] Kanuk ex rel. Kanuk v. State, Dept. of Natural Resources , No. S-14776, 2014 WL 4494394 (Alaska Sept. 12, 2014).

[3] See http://ourchildrenstrust.org (last visited Sept. 26, 2014).

[4] Id.

[5] See http://vimeo.com/33921321 (last visited Sept. 26, 2014).

[6] Kanuk v. State of Alaska, Dept. of Natural Resources , No. 3AN1107474, 2012 WL 8262431 826431 (Alaska Super. March 16, 2012) ( Kanuk I ).

[7] (1) Require use of the” best available science”; (2) reduce greenhouse gas emissions by 6% per year; and (3) order an accounting of current CO2 emissions.

[8] Kanuk at *1.

[9] Id. at *7.

[10] See id. at *8, *9, *10.

[11] See Robin Kudnis Craig, A Comparative Guide to the Western States’ Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust , 37 Ecology L.Q. 53 (2010).

[12] AK Const. art. VIII, §§ 1-4.

[13] Alaska Stat. § 46.03.010.

[14] Baxley v. State , 958 P.2d 422, 434 (Alaska 1998).

[15] E.g. , State v. Weiss , 706 P.2d 681 (Alaska 1985) (trust principles define State duties with regard to federal land grants).

[16] Kanuk at *9.

[17] Id. at *10.

[18] 965 P.2d 1 (Alaska 1998).

[19] Id. at 14.

[20] Kanuk at *6 (quoting Baker v. Carr , 369 U.S. 186, 217 (1962)).

[21] Kanuk at *7.

[22] Alaska Stat. § 22.10.020(g); Alaska R.Civ. P. 57(a); see also Lowell v. Hayes , 117 P.3d 745,755 (Alaska 2005).

[23] Kanuk at *8 (quoting Jefferson v. Asplund , 458 P.2d 995, 998-99 (Alaska 1969)).

[24] Id. at *9 (quoting Lowell v. Hayes , 117 P.3d 745, 755 (Alaska 2005)).

[25] Id. at *11.

[26] Id. at *10.

The post Alaska’s Atmospheric Public Trust: A Right Without a Remedy? appeared first on Vermont Journal of Environmental Law.

Summary: Though the U.S. Constitution does not have an explicit right to a safe environment, many commonwealths, including Puerto Rico, do. For decades natural resources on the Island of Enchantment have been threatened. As a result, legislation has been enacted in order to protect the environment for future generations. The proposed Puerto Rican Model Forest Act attempts to mediate the conflict between humans and nature.

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By Roxanne M. Almodóvar-Pérez

The environment is the basis of life and thus the basis of human existence. Consequently, environmental issues are rooted in complex and conflicting fields. By focusing on sustainable development, model forests attempt to mediate the coexistence of humans and nature. However, good governance of natural resources demands public participation.

For instance, in the 1940s Puerto Rican landscapes had only 6% forest cover while the rest of the land was agricultural. However, after a shift from an agricultural based economy to an industrial economy, forest cover started to re-emerge. Open pit mining during the 1980s and, more recently, the 2010 government-proposed construction of a gas duct—‘Vía Verde’—threatened life in some of the most important forests on the Island. At the end of 2010, the Puerto Rican government partnered with energy developer EcoEléctrica and started negotiations to build a 93-mile pipeline that would have directly cut through the interior of the Island. According to the State Government office and the “Autoridad de Energía Eléctrica” (AEE) (the Puerto Rican Department of Energy), the project was supposed to enhance the “poverty-stricken island.” But, it would have done so at the expense of essential ecosystems and natural habitats for endangered species.

Even though the U.S. Constitution does not have an explicit right to a safe environment, the Puerto Rican Constitution, Article VI § 19 states: “It shall be the public policy of the Commonwealth to conserve, develop and use its natural resources in the most effective manner possible for the general welfare of the community .” ‘Vía Verde’ threatened about 1,500 acres of protected forestland and more than 369 acres of wetlands. Additionally, the ‘Vía Verde’ would have directly impacted the habitat of 34 endangered species, along with 235 rivers and streams, which include a critical conservation zone that produces 25% of the water consumed in Puerto Rico. All of these areas are protected under the Puerto Rican Urban Forest Act (P. del S. 1842 Ley 213 of 1999). Furthermore, the Puerto Rican Forest Law establishes that “it is public policy that [Puerto Rican] forests and land have an ‘inherent essence’ which demands they be protected as such” (P. del S. 1842 Ley 133 of 1975).

Yet, for nearly three years former Governor of Puerto Rico Luis Fortuño, and Daniel Pagán, Director of AEE, remained adamant that the project would provide “a new energy era that [would have] strength[ened] the competitiveness of [the Puerto Rican] economy and [would have] improve[d] the quality of life of [Puerto Ricans].” State government officials insisted that sustainable development was a “balance between the protection of the natural resource, and their social and economic use.” Moreover, project developers claimed ‘green energy’ would significantly reduce: (1) electricity costs (by 30%), (2) carbon dioxide emissions (by 60%), and (3) generate 4,500 new jobs while ” temporarily impacting a minimal portion of the country’s physiography.” Although the project promised to decrease the Island’s dependence on oil while boosting natural gas usage to 71% from its current 15%,the public remained concerned about the environmental impacts.

Private interests argued that sustainability should focus on the economic benefits the project would bring to the Island, while minimizing the temporal environmental harm. However, as Harding points out, a more sustainable development project prioritizes the environment over economy because “there are many ecological assets that are essential for human survival.” Accordingly, in the case of “La Vía de la Muerte” many Puerto Ricans decided against “the invasive and volatile nature of the pipeline, and its influence on the long-term energy portfolio of the Island[‘s]” economic development which was intrinsically tied to the fossil fuel industry.

“La Vía de la Muerte” enlightened Puerto Rican citizens to the importance of maintaining protected forestland. As a result, the Puerto Rican Department of Natural Resources proposed the Model Forest Act (P. de la C. 1635). This is an unprecedented law that establishes 17% of the Island’s forest cover (more than 390,000 acres of land, 240,000 people and 20 municipalities) as ecologically rich habitat with sustainable development values and promotes its conservation. “El Bosque del Pueblo” in Adjuntas, Puerto Rico served as model for this law. This forest had been part of the Ibero-American Forest Network since 2007, and paved the way for the Model Forest Act in Puerto Rico.

The model forest project would make protected land available to education, active scientific research, sustainable agricultural practices, and recreation. Yet the proposed act is not a new zoning ordinance and it does not impose limits beyond those already established in the zoning ordinances. The Act consists of unifying almost a third of the Island as protected territory. The Act establishes a concept of forested land where people live while conscious of their impact on nature. In essence, the Act establishes a forest where commerce, industry, and agriculture coexist by recognizing the immense amount of life and biodiversity that is on the Island. After nearly two years of debate both the Senate and the House of Representatives have approved different versions of the Model Forest Act. However, they have yet to agree on a unified version to enact. If the Act can push through legislative debate, vital resources of Puerto Rican land will be conserved for generations to come. However, the future of the Act’s enactment is unpredictable, in that the Act could be enacted tomorrow, yet it may sit in the legislature for years to come.

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For more information please visit:
Ibero-American Forest Network : http://www.bosquesmodelo.net/en/
Casa Pueblo: www.casapueblo.org/
Twitter: @casapuebloorg
Facebook: Casa Pueblo de Adjuntas | 787.829.4842  

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Roxanne M. Almodóvar-Pérez is a 2L student at Vermont Law School pursuing both a Juris Doctor and a Master’s in Environmental Law and Policy.  Prior to attending law school, Roxanne earned a B.S. in Industrial Microbiology and a M.Sc. in Ecosystem Restoration from the University of Puerto Rico, Mayagüez.  Roxanne is a proud Puerto Rican environmentalist on a quest to protect Mother Earth.

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