Category: Ecoperspectives

 Summary: In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act.  Deep in this bulwark of financial regulatory overhaul, Congress passed a provision aimed to achieve a purely social good by requiring manufacturers to disclose their supply chains for minerals believed to fund the conflict in the Democratic Republic of Congo.  This piece is the follow-up to Back on the (Supply) Chain Gang that the Vermont Journal of Environmental Law published this year.

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By  Christopher  M. F.  Smith, J.D.

On April 14, 2014, the U.S. Circuit Court of Appeals for the D.C. Circuit (D.C. Circuit) handed down an opinion that may give social and environmental activists a way to affect corporate change through the Securities and Exchange Commission’s (SEC) disclosure regime.  In National Association of Manufacturers (NAM) v. SEC , the D.C. Circuit ruled on a challenge to the SEC’s Final Rule for conflict-mineral supply-chain disclosure.  The National Association of Manufacturers, Business Round Table, and U.S. Chamber of Commerce (Industry Group) raised claims under the Administrative Procedure Act (APA), the Securities Exchange Act of 1934 (34 Act), the and First Amendment of the U.S. Constitution.  The D.C. Circuit held in favor of the SEC on all but the First Amendment Claim.

In 2010, Congress responded to the 2008 financial crisis that caused the Great Recession with the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank).  An often overlooked provision of Dodd-Frank is section 1502.  Section 1502 mandates the SEC promulgate a rule for companies to disclose conflict-minerals their supply-chain.  The purpose of section 1502 is to squeeze off funding to militant oppressors of the Congolese people through the forces of U.S. capital markets.  Congress directed the SEC to enhance disclosure requirements to include supply-chain analysis for manufacturing minerals that are germane to the Democratic Republic of Congo.  These minerals serve as the revenue stream for militant guerilla oppressors   Dodd-Frank created a humanitarian based disclosure requirement to influence market demand through disclosure and transparency.

Very simply, the SEC promulgated a three-part rule.  First, the issuer must complete an inquiry in to the country of origin for the minerals Dodd-Frank enumerates. If the company has reason to believe that minerals may have originated in DRC, the issuer must complete a due diligence process to scrutinize and alter their supply-chain.  Last, the rule requires issuers to report their findings and describe the conflict disposition of their products, such as “DRC conflict free” or “not DRC conflict free” to the SEC in Form SD.  Issuers must also publish in that disposition on the   company website.  The Industry Group brought four APA claims, a 34 Act claim, and a First Amendment claim.  The D.C. Circuit District Court held for the SEC in all claims.  The D.C. Circuit heard argument on January 7, 2014.

 

NAM v. SEC : A (Very) Brief Synopsis

The first APA challenge claimed that the SEC’s decision not to exempt de minimis (minimal) users of conflict-minerals was arbitrary and capricious.  The D.C. Circuit deferred to the SEC’s reasoning that Congress did not write in a de minimis exemption, and the SEC interpreted that statutory omission as deliberate, based on the surrounding language.  Furthermore, such an exemption might diminish the impact of the rule because manufacturers often use conflict-minerals in very limited quantities.  Second, the Industry Group claimed that the threshold for completing the due diligence requirement contravened the statutory language and was arbitrary and capricious. The D.C. Circuit held that the requirement did not contravene the statute nor was it arbitrary and capricious because the statute was silent on the threshold and obligation of uncertain issuers. The SEC properly used its delegated authority to resolve ambiguities by ensuring issuers do not ignore red flags.

Third, th e Industry Group argued that the SEC went beyond the scope of its statutory authority by requiring issuers who contract to manufacture products that contain conflict-minerals comply with the rule rather than just manufactures themselves.  The D.C. Circuit held that the SEC reconciled a variation in two provisions of section 1502 by applying the rule to both.  The final APA claim concerned the phase-in period during which issuers may describe their products as “DRC conflict undeterminable” and avoid an independent, third-party audit.  The Industry Group claimed that distinguishing between large issuers and smaller reporting companies with two- and four-year phase-in periods was arbitrary and capricious because smaller reporting companies are in supply-chains of large issuers.  The D.C. Circuit adopted the SEC’s reasoning that large issuers can exert more leverage than smaller reporting companies to gather supply-chain information, thus the disparity in phase-in.

Next, the Industry group argued that the SEC did not follow the proper cost/benefit analysis, as required by the 34 Act.  The Industry Group only challenged the benefit side, rather than cost, stating that the SEC did not quantitatively determine whether the rule would fulfill Congress’s intent.  The D.C. Circuit held that Congress intended to achieve a “compelling social benefit” and  SEC could not possibly measure the positive effects of the rule, as it was a complex issue beyond the SEC’s expertise. The Court went on, bluntly stating “[e]ven if one could estimate how many lives are saved or rapes prevented as a direct result of the [] rule, doing so would be pointless because the cost of the rule – measured in dollars – would create an apples-to-bricks comparison.”  Finally, the Court stated that the SEC properly relied on Congress’s belief that transparency and closure were the means to their intended ends.

Last, the Industry Group challenged the requirement that issuers describe their products as “DRC conflict free” or not.  The D.C. Circuit held for the Industry Group, reasoning that describing products as “not DRC conflict free” indicates a moral viewpoint, essentially compelling issuers to declare blood on their hands.  The D.C. Circuit struck down the description requirement because it unconstitutionally compelled ideological commercial speech.

 

Implications for Social and Environmental Activists

Capital market activism is not new.  Most know it in the context of shareholder activists seeking social and environmental change through shareholder proposals to prescribe corporate behavior.  Section 1502 of Dodd-Frank and the SEC final rule create a purely humanitarian disclosure requirement to make social change by informing investors of issuer supply-chains for minerals financing conflict in the DRC countries.

It may be working.  Intel and HP, both issuers affected by the rule, began the Conflict-Free Smelter Program.  The program seeks transparency by smelters and refiners in their sources for conflict-minerals.  The limited number of smelting facilities makes it a key point in the supply-chain to deter conflict-mineral use.  The Intel-HP initiative may be proof that the rule will fulfill Congress’ intent.

The D.C. Circuit decision may be a foot in the door for social and environmental activists to make change through capital market disclosure.  The drafters of section 1502 sought to change corporate behavior through supply-chain transparency.  The five SEC victories in NAM v. SEC may be an encouraging sign for others who may want to use market forces to influence investor and issuer behavior.

In the comment period for the conflict-mineral rule, one letter suggested expanding supply-chain disclosure to include environmental considerations.  At the 2013 annual meeting of the ABA, former ABA President Laurel Bellows discussed addressing human trafficking through supply-chain disclosure and transparency.  After the NAM v. SEC decision, these ideas seem possible.

NAM v. SEC may be telling for social and environmental activists in several ways.  The APA rulings may inform those who seek other supply-chain disclosure rules, social or environmental.   The First Amendment ruling may be telling for food and agricultural activists who seek disclosure through labeling, such as the GMO law the Vermont State Legislature passed this year. If food producers challenge Vermont’s GMO Labeling law on First Amendment grounds, it will be interesting to see if NAM v. SEC serves as persuasive precedent.

The 34 Act claim is the most compelling part of the decision for capital market activists.  It appears that Congress’ belief that a particular addition to the SEC disclosure regime will fulfill its intent to achieve a compelling social good is benefit analysis enough to satisfy 34 Act’s analytical rulemaking requirements.  A supply-chain disclosure requirement for human trafficking seems analogous to conflict-mineral supply-chain disclosure, and may not require the SEC to quantify the benefit.  If Congress intended to achieve a compelling environmental good, perhaps such an intent combined with a belief that disclosure would achieve environmental good will satisfy the 34 Act benefit analysis.

Some foreign jurisdictions require disclosure of particular environmental metrics, such as emissions, chemicals/substances used, and waste produced.  NAM v. SEC could be an opening for this type of disclosure in the U.S.  The environment is beyond the SEC’s expertise, as were conflict-minerals.  It would be similarly difficult for the SEC to quantify the environmental impacts of environmental disclosure, as it is difficult for the SEC to determine the humanitarian impact of conflict-mineral supply-chain disclosure.  Therefore, in drafting environmental disclosure rules, the SEC may be able to rely on Congress’ intent and belief that disclosing such information would benefit the environment, rather than grasping at straws to quantify an environmental benefit.

 

Conclusion

Economist Adam Smith mused that an invisible hand of the market metaphorically promoted self-regulation by market participants.  In response to the stock market crash of 1929, Congress created an opaque hand of the market by establishing the SEC in the 34 Act.  Through regulatory requirements and anti-fraud enforcement provisions, informed investors influence corporate behavior.  It appears that Congress and the D.C. Circuit extended the power of that opaque hand to influence the market in order to achieve social, humanitarian good.

Before issuers began filing Form SD this week, supply-chain disclosure influenced corporate behavior. Two large issuers are working to divest manufacturing from the DRC conflict, as Congress intended.  Time will tell whether Congress’s political will could make further social change through the opaque hand of the SEC regulatory regime.  Perhaps achieving environmental change will be next.

 

Christopher graduated cum Laude from Vermont Law School in 2014.  Christopher is originally from Boston and graduated Magna cum Laude from Suffolk University with a Bachelor of Science in Politics, Law & the Courts and the History of Women & Gender.  Christopher focuses primarily in corporate finance law, in particular, capital formation and regulatory compliance for securities issuers.  While at Vermont Law Christopher completed the Business Law certificate, engendering a unique interest in the intersection of business and environmental issues.

The post The Opaque Hand: Making Social (and perhaps Environmental) Change through Capital Markets appeared first on Vermont Journal of Environmental Law.

Summary: This EcoPerspective discusses the EPA’s and Army Corps of Engineers’ attempt at redefining the meaning of  “waters of the United States.” Since the Supreme Court decision in Rapanos v. United States , the jurisdictional reach of those agencies over waters with a significant nexus to navigable waters has been somewhat unclear. However, the agencies’ new definition may make farmers and other interest groups unhappy, even with proposed exemptions for some agricultural practices.

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By Emily Lyons

The Clean Water Act’s (CWA) jurisdictional reach has been unclear ever since the Supreme Court’s convoluted decision in Rapanos v. United States . On April 21, 2014, the Environmental Protection Agency (EPA) and Army Corps of Engineers (USACE) published a rule in the Federal Register that redefines “waters of the United States” and gives much needed clarity to the CWA’s jurisdiction. The proposed definition attempts to clarify EPA’s jurisdiction over navigable waters, their tributaries, and other waters—including wetlands and streams—with a significant nexus to a navigable water or tributary.

Politicians, construction and agricultural industry representatives, and other critics of the rule argue that the agencies have gone too far and the rule, if finalized, would be unduly  burdensome to developers and especially to farm and ranch operations. EPA says the program will not protect any new types of waters that the CWA did not historically cover. However, the agency’s own economic analysis estimates that approximately 3% more of U.S. waters would fall under the CWA’s jurisdiction as a result of the proposed rule. The same analysis claims that the proposed definition will impact an additional 1,332 acres nationwide under CWA’s section 404.

 

Muddied Waters Following Rapanos

The CWA prohibits the discharge of pollutants or fill material into “waters of the United States” without a permit. EPA issues permits for the discharge of pollutants, while the USACE issues permits for the discharge of fill material. Individuals who discharge a pollutant or fill material without a permit from the proper agency are subject to civil and criminal penalties. Because the CWA regulates “waters of the United States,” the definition of this phrase is key to determine the statute’s jurisdictional reach.

In 1986, EPA and USACE defined “waters of the United States” to include traditional navigable waters, interstate waters, all other waters that could affect interstate commerce, tributaries, and adjacent wetlands. However, subsequent Supreme Court decisions over the years narrowed the agency’s application of this definition.

In Rapanos , the Supreme Court most recently considered the definition of “waters of the United States.” The Court determined that the USACE’s application of the definition was too broad when applied to a wetland adjacent to a tributary but without a surface water connection. Unfortunately, the Supreme Court could not come to a majority decision in the case. Five justices agreed that USACE’s interpretation was too extensive. Four justices reasoned that wetlands with continuous surface connections to adjacent waters fall under the CWA’s jurisdiction. One concurring justice—who agreed that the interpretation was too broad—wrote that whether or not adjacent wetlands were a “water of the United States” depends upon whether the wetland has a “significant nexus” to a water regulated by the CWA.

Following the Supreme Court’s decision in Rapanos , EPA issued guidance that adopted the concurring opinion’s significant nexus test. Through this guidance, USACE and EPA asserted CWA jurisdiction over all traditional navigable waters, wetlands adjacent to these waters, relatively permanent tributaries of traditional navigable waters, wetlands abutting those tributaries, and non-permanent tributaries and their adjacent wetlands if they had a “significant nexus” to traditional navigable waters. The guidance proved vague, unwieldy, and created a patchwork of court precedents which caused EPA and USACE to propose the clarified “waters of the United States” definition.

The Proposed Rule

When EPA and USACE released the proposed rule, they stated that the definition generally finds all tributaries of traditionally navigable waters, interstate waters, and adjacent water bodies as automatically within the agencies’ jurisdictions because these waters share a “significant nexus” to navigable waters. According to EPA, the proposed rule clarifies that the CWA protects the following waters: seasonal and rain-dependent streams, wetlands near rivers and streams, other types of waters that may have uncertain connections with downstream water based upon a significant nexus to a water body (i.e. ditches).

The proposed rule also establishes default jurisdiction for all streams, ponds, and wetlands located in floodplains and riparian corridors, but leaves jurisdictional determinations on “unidirectional” waters, non-adjacent wetlands, and “other waters” such as prairie potholes, that are outside of riparian and flood zones and determined on a case-by-case basis based on  scientific evidence demonstrating a “significant nexus.” The agencies define “significant nexus” as one that “significantly affects the chemical, physical or biological integrity” of a downstream river, territorial sea, or other jurisdictional water.

EPA and USACE based this draft rule on a peer-reviewed assessment of more than a thousand scientific studies that look at the connectivity of waters in the United States to each other. In essence, this assessment concluded that all streams and wetlands—regardless of size of continuity of flow—are connected to a navigable water because they affect the quality of the larger waterways. The agencies will not issue a final rule until EPA finalizes this connectivity study. However, EPA’s own Science Advisory Board has issues with the study and it is unclear when EPA will complete the study.

  Farmers Unhappy with Overbroad Rule

Many agricultural interest groups are unhappy with the proposed “water of the United States” definition because the proposal brings virtually all waters, regardless of their size or continuity of flow, under the CWA’s jurisdiction. Most of these groups are concerned about that farmers will be required to obtain costly and burdensome CWA permits to conduct everyday chores because the rule would regulate things such as ephemeral drains, small and remote waters, and ditches. Thus, EPA will require farmers to obtain federal permit for activities performed near these “waters.” These groups, and even politicians, see the rule as a new roadblock for farmers and an attempt by EPA to obtain land use regulatory authority.

The CWA grants numerous exemptions and exclusions for farming and ranching. EPA and USACE claims that the proposed rule preserves those exemptions. Additionally, the agencies worked with the United States Department of Agriculture (USDA) to develop an interpretive rule to ensure 56 specific conservation practices related to water quality improvement, such as habitat restoration and establishing riparian forest buffers, will not be subject to CWA’s section 404 permitting requirements. The interpretive rule seeks to exempt these practices by specifying these activities as “normal farming” measures. In order to qualify for this exemption, the activities must be part of an established farming, forestry, or ranching operation and implemented in compliance with USDA technical standards.

These exemptions appear as though they actually benefit agricultural practices by exempting “normal” farming or ranching activities. However, these exemptions are not all that they seem to be. First, many exempted activities are common farming practices such as fencing, grazing, and brush management that have usually been considered “normal” farming and ranching activities under the statutory exemption. Additionally, EPA and USACE narrowly defined “normal” by limiting it to activities that have been ongoing since the 1970s. This means that new farms, farms that have come in and out of production over time, or those that have changed from one type of crop to another fall outside the “normal” farming exemption. Finally, these exemptions only apply to the CWA’s section 404 fill permit program; it does not provide protection from potential liability and section 402 requirements. Many everyday activities such as weed control or fertilizer application could trigger liability if a farmer accidentally deposits materials into a ditch or ephemeral stream. These narrow exemptions do not protect farmers from new restrictions on farming practices or provide for the clarity on the jurisdictional reach of the CWA as the rule intended.

The “water of the United States” rule is open for comment until July 21, 2014.

Emily is a 2014 VLS graduate. Originally from a small dairy farm in Northern Illinois, she graduated from the University of Illinois Urbana-Champaign with a BS in Animal Sciences and a minor in Environmental Economics and Law. Emily’s passion for agriculture drove her to attend law school where she focuses on the interplay between environmental law and agricultural operations. While at VLS, Emily was a member of the National Moot Court Team and a Headnote Editor for the  Vermont Law Review.

The post Muddy Clarity for Farming: EPA’s Proposed “Waters of the United States” Definition appeared first on Vermont Journal of Environmental Law.

Summary: This EcoPerspective takes a critical look at the indirect effects of outdoor recreation on the environment. Large numbers of people are inspired through recreation and related activities to protect the wild and untrammeled places left in the world. But recreation, in itself, has its own environmental consequences. The desire alone to protect these natural playgrounds does very little to address the greater environmental harm that results from work and other day-to-day activities.

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By Scott Lake

The tiny plastic shavings became a thick, suffocating dust, and settled on any available surface. Soon, a thin layer of bizarre, multicolored sawdust covered everything. It left a strange, greasy residue that not even the best dish soap would cut through. The place was a mess. And still the sharp plastic dust kept collecting. It scratched the inside of our throats and plugged our noses. We put up with it. In the early days of the company, everyone was expected to make sacrifices. Generally, this meant long hours and unhealthy working conditions. The plastic dust was just the latest in a long series of environmental challenges that we—as the physical backbone of a struggling small business—had to put up with. Before the dust, I spent hours breaking up chalk, hunched over a fifty-gallon barrel breathing in a different type of suffocating dust. There were no sick days. If you wanted to keep you job, you did not complain. The worst thing any of us could do, as employees, was to make things more difficult for management. Rock climbing, it turns out, is a tough, messy business.

Our company was founded and operated by two men who really enjoyed climbing. They had decided, some years ago, that they wanted to start a climbing company, so they rented space in an old warehouse and began making climbing equipment. We catered to an odd subculture within rock climbing called bouldering. Boulderers—as those who practice bouldering call themselves—do not use ropes. They climb short, relatively technical bits of rock close to the ground. With some exceptions, they rarely climb high enough to risk serious injury. Bouldering tends to be more social than other kinds of climbing. It’s also more accessible than roped climbing, since it requires less gear, and you don’t have to learn how to belay.

Boulderers often fall. To protect themselves, they place pads on the ground below the rocks they climb. The company that I worked for made these pads. In the beginning, I spent most of my days cutting fabric and foam. But soon, we diversified. We began making larger pads and flooring systems for indoor climbing gyms. Later, we made the plastic handholds that indoor gyms bolt onto their walls. The plastic dust came from the handholds. Making holds is a messy process that involves a lot of chemistry and a belt sander. We also dealt in large volumes of other potentially toxic substances, including foam, vinyl, acetone, and many types of glue. We produced a lot of waste; the dumpster in the front parking lot filled up every couple of days. As for the rainbow-colored plastic sawdust, we swept it up and threw it in the dumpster with everything else. Many of those shavings no doubt made it to the river that ran behind the warehouse.

Knowing what I know now, I would hesitate to call bouldering an environmentally friendly activity. Our manufacturing business certainly was not. I think our bosses would have gladly dumped our toxic garbage in the river, if they were not so afraid of getting caught. Most of the people I worked with would have called themselves environmentalists, but they managed to suspend their environmental sympathies between 8:00 a.m. and 5:00 p.m. There was work to be done. Our production schedule tolerated only minimal delays on account of sickness and injury; it certainly did not have room for environmental concerns.

Too often, the environment takes on tertiary importance, circumscribed by the persistent demands of our daily lives. When work calls, the earth can wait; even among climbers who look to natural environments for inspiration. Such an approach trivializes the natural world and erodes our connections to it. As historian Richard White warned, we must “come to terms with our work.” We must “pursue the implications of our labor and our bodies in the natural world.” We are not separate from nature; we are part of it. Nature is not just a place we visit in our free time. Everything we do—especially our work—affects the environmental resources on which we depend. White agued that if we fail to acknowledge our “self-deception,” we will “turn [wild] lands into a public playground. We will . . . imagine nature as . . . a paradise where we leave work behind.” I submit that this has already happened. At the climbing company—which shall remain nameless—we sullied our workspace and then drove miles to climb in remote locations.

The question going forward, then, whether the current alliance of recreation and environmentalism makes sense. I believe the answer depends on whether climbers, and others who play in the outdoors, are willing to acknowledge the true environmental costs of their actions. All of us—even those who go on foot into the wild, pick up after ourselves, and take only pictures—must understand that we alter the places we visit. Sometimes, as is the case with bouldering, we leave permanent reminders of our presence. In other cases—as with the manufacturing of climbing gear—we have indirect, but severe effects. I am not saying we should stop recreating, or stay out of the wilderness. But we need to discard the hypocrisy of claiming that we represent a higher, or more forgivable, use of nature’s abundance. The fact that we tread more lightly on our playground does not change the fact that we consider it a playground. Nor does it excuse the indirect consequences of our activities—plastic dust and all.

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

The post Of Plastic and Playgrounds: Re-Thinking the Relationship Between Work, Recreation, and the Environment appeared first on Vermont Journal of Environmental Law.

Summary: At the end of last month, the IPCC released the next component of the Fifth Assessment Report. Working Group II’s addition follows the updated scientific analysis of Working Group I and provides information of the impacts of climate change, vulnerability to climate change, and adaptation suggestions. While some argue that the report goes too far in describing the potential doom and gloom of climate change, others counter that the report does not go far enough. Regardless, it can serve as a useful tool for climate change policy negotiations.

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By Kristin Campbell

At the end of March 2014, Working Group II (WGII) unleashed upon the global community their contribution to the Intergovernmental Panel on Climate Change (IPCC) Fifth Assessment Report (AR5). Upon release, climate change reappeared in the news. Reactions ranged from acceptance of the likelihood of the grim future portrayed to saying the doom and gloom touted did not go far enough. The reactions are expected because the drafting process of the IPCC Reports is built on compromise. Each word is meticulously chosen to create a document with which all of the authors can accept. While the Reports will never be considered perfect, they can still have great utility for policy makers and international action on climate change.

The IPCC Reports are generated by thousands of scientists that contribute the newest and best research to the project. The IPCC was established by the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO) in the late 1980s. Since then, scientists from around the world have collaborated to produce five reports on the state of the present climate and forecast for the future climate. The final Report survives numerous edits from experts and evolves through additional revisions by the authors. These reports emerge approximately every seven years and contain updated information as the result of increasingly more advanced climate models as well as a better understanding of the atmosphere as a whole.

Working Group I (WGI) provides the scientific basis for the climate change discussion, addressing the past climate regime to give a baseline with which to compare today’s current climate in addition to validation for the climate models that forecast the future climate. WGI’s contribution to the AR5 is a massive document of more than 1,500 pages. Sifting through each word was a daunting task for the reviewers. To facilitate using the information in the IPCC, each section has a technical summary to start the chapter. Quick snippets about the contents of the section highlight important facts contained within the section. Should something within the technical summary pique your interest, a thorough discussion is found within the chapter. But even the technical summaries can be overwhelming. Thankfully, part of the IPCC process requires publication of a “Summary for Policymakers” (SPM) for each Working Group. The SPM breaks the WGI’s 1,500 pages down to only thirty-six pages, but it contains a wealth of information. The SPM allows for solid reference to the science to justify policy decisions rather than cite to the full IPCC report.

In terms of practical use, WGI is immensely beneficial to the scientific community, but the document is rife with technical terms that are best understood by fellow scientists. Even the painstakingly crafted graphics that provide visual references cannot completely portray the totality of the impacts of increased precipitation in certain areas from recurring and prolonged droughts in other areas. Knowing that the average global temperature will increase or precipitation patterns will change is only one piece of the puzzle. For the scientific research to be truly effective, it is imperative to understand what it means in a world beyond computer models.

Enter Working Group II. This Group provides a further connection of the scientific consensus with life on Earth. The authors are tasked with absorbing the technical discussion of the scientific results and translating the information into a language that resonates with a larger audience. Step one is evaluating the impacts. The scientific information presented in WGI highlights regions that may be affected by certain atmospheric phenomena. WGII must evaluate these regions and consider a multitude of factors to determine the impact climate change will have. WGII also looks at the vulnerability of the affected states. Some places might be susceptible to similar alterations of the climate system, but in some cases, social and economic factors will determine just how detrimental the climate changes will be.

The magnitude of impacts in many places hinges on the vulnerability of the people living there. Vulnerability, as defined within the Summary for Policymakers for WGII, is “the propensity or predisposition to be adversely affected. Vulnerability encompasses a variety of concepts and elements including sensitivity or susceptibility to harm and lack of capacity to cope and adapt.” The vulnerability of a population is not solely based on the proximity to the rising seas or being situated on the edge of a desert. The social and economic dynamics also affect the vulnerability of the people.

Climate change is happening. Working Group II reported that the effects of climate change are beginning to appear everywhere. Some places around the globe will see similar changes in the climate, but the impacts will not be nearly as devastating. Part of WGII’s Report looks at adaptation. Mitigation should not be completely ruled out of the picture, but with the effects of climate change already appearing, adaptation needs a stronger point in the discussion. Tragically, those adapting first, not only have contributed the least climate change, but also lack sufficient resources to properly attack the problem. For example, Bangladesh only contributed 0.4 metric tons of CO₂ to the atmosphere in 2010 (while the United States emitted 17.6 metric tons), but it is already considering ways to reinforce coastline against climate-change-induced sea level rise and looking into alternatives for their agricultural sectors that will be sustainable as the climate changes.

As the international community evaluates the UN Framework Convention on Climate Change (UNFCCC) in anticipation of the next Conference of the Parties in December 2014, the IPCC’s report should be taken into consideration. The IPCC has produced a report that contains substantial information about how and why climate change is occurring. We can no longer sit back and discuss climate change as a future event. The impacts, including those forecasted by previous IPCC reports, are making themselves known. They are not going away. Sea level is rising and islands are disappearing. The average global temperature is rising and precipitation patterns are changing.  In developed countries, like the United States, the realities of these changes might still be discussed in the future tense. And even when the impacts becomes part of daily life, countries with stronger economies and technological advances will be in a better position to adapt.

Developing countries are not as lucky. Many people around the world are struggling for regular access to clean water and enough food. Even more are relegated to living day to day with a never-ending uncertainty about whether they will be able to make ends meet. On top of all of those trials and tribulations, climate change threatens to take every little bit of what they own. Adaptation is not impossible, but it relies on the kindness of others. It relies on global climate policy having the teeth to demand mitigation of climate change to best of our abilities. And more importantly, climate change policy must address adaptation, including how to adapt and how to fund the adaptation. Climate change is a global problem that requires a global solution. Humans are resilient and change is possible. The IPCC has laid out a dismal future if nothing changes. As the UNFCCC looks for a plan for 2015 and beyond, they should evaluate the work put together by all of the IPCC scientists, take it to heart, and help prevent climate change catastrophe. The UNFCCC has been entrusted to solve the climate change problem through international collaboration. The time for talking has run out. Instead, they should take immediate action to limit greenhouse gas emissions and foster development of adaptation strategies.

Kristin is a second-year Juris Doctor and Master of Environmental Law and Policy student at Vermont Law School. Prior to law school, she completed the Climate and Society Masters Program at Columbia University where she focused on applying climate science information to various social sectors. Her desire to address climate change began as a interest in climatology while earning a Bachelor of Science in Meteorology at Florida State University. Kristin was drawn to meteorology from a young age because of her fascination with the thunderstorms and hurricanes that frequented her South Florida home. When she’s not building the bridge between climate science and climate change policy, Kristin teaches dance to young children, consumes her weight in tea on a daily basis, and scouts out the best place to devour a good book (with a preference for the outdoors when the weather is nice and the couch with the cats when precipitation attacks the earth). 

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

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By Scott Lake

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

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

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

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

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

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

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

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

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

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

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By Emily J. Remmel

Texas is out of water.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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By Ashley Welsch

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

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

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

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

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

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

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

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

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

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

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

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