Category: Ecoperspectives

EcoPerspectives Blog

Derailing Environmental Protection: Concerns Over Air and Water After the East Palestine, OH Derailment

By Jacob Baverso, Staff Editor for the Vermont Journal of Environmental Law

May 2, 2023

The Department of Transportation recognizes rail shipment for hazardous materials as the safest method to move such materials over long distances. Despite suggesting that the rail industry’s safety statistics are increasing, there have been a cluster of recent train derailments due to a lack of safety regulation enforcement and rollbacks under the Trump Administration. Most notably is the derailment in East Palestine, Ohio on February 3, in which five rail cars of “vinyl chloride,” and a dozen other cars of hazardous chemicals spilled, leading to it to ignite after a mechanical failure. Vinyl chloride is an important component for PVC and other plastics. According to the Centers for Disease Control, vinyl chloride exposure can lead to respiratory issues, neurological symptoms, chronic exposure, and is associated with liver damage and cancer. Additionally, other chemicals contained on the Norfolk Southern manifest released by EPA, including ethylene glycol monobutyl ether, ethylhexyl acrylate, and isobutylene, all cause respiratory irritation and neurological symptoms.

In response to this leak, cleanup authorities conducted a controlled burn three days after the derailment and ordered residents within a one-mile radius to evacuate. However, burning these chemicals resulted in other chemical releases, such as hydrogen chloride and phosgene (a chemical weapon used during World War I), which lead to respiratory issues, impaired vision, nausea, and rashes. Despite EPA stating that it was safe to return to East Palestine, residents are hesitant to return and are still complaining about strong smells, headaches, and nausea (understandably so). This comes after over 3,500 fish and amphibians were found dead within the Ohio River watershed. Additionally, pet and livestock owners complained that their animals were suffering from many of the same symptoms. The CDC has also updated its toxicological profile and sent out a draft for public comment in January, but this draft eliminates much of the safety concerns printed in the original profile report (and most notably, has had little revision since its publication in 2006, until weeks before the derailment in East Palestine). If the area is so safe, then why are residents still getting sick and why are animals suddenly dying?

After the derailment, vaporized vinyl chloride, as well as the products it produces after being burned (notably hydrogen chloride and phosgene) is governed by the Clean Air Act, which sets Emission Standards for Hazardous Air Pollutants (NESHAPs). Additionally, OSHA regulations permit 5 ppm for up to 15 minutes of exposure to vinyl chloride (or 0.5 ppm averaged over 8 hours). There is still ongoing studies as to environmental impacts, however governmental authorities and independent researchers have offered conflicting evidence from early studies. EPA insists that air quality in East Palestine is safe, yet residents continue to complain about breathing problems, rashes, and other health effects.

Animals are also experiencing sudden health effects, such as heart complications, difficulty breathing, facial swelling, and even death. Scientists from Texas A&M analyzed the data reported by EPA. They found elevated levels of acrolein (a hazardous chemical commonly found in smoke) and other hazardous chemicals at levels high enough to cause long-term health problems. Furthermore, it is unknown how far these toxic chemicals in the air have spread. It depends on local wind patterns, weather, and topography. Unfortunately, it may be difficult to track the spread or even detect vinyl chloride or its burn products, because they break down after a few days in the atmosphere. After breaking down, these substances become hydrochloric acid, formaldehyde, and carbon dioxide—common chemicals found from other emissions sources like power plants, vehicles, and breaking down composite/compressed wood products. Complicating this further, it might take months for scientists to fully analyze impacts to surrounding air quality, and even years to determine long-term effects.

Unlike air pollution, water pollution is easier to track and lasts longer. Following the spill, pets, wildlife, and over 3,500 fish and amphibians died along local waterways, including the Ohio River, within days of the spill. Animals are also dying as far as 20 miles from the derailment site. Additionally, the spilled chemicals left a sheen on the water. The spill initially contaminated Sulphur Run, which then spread to Leslie Run, Bull Creek, and North Fork Little Beaver Creek—all tributaries of the Ohio River. The sheens are more noticeable when the water is stirred up, such as by throwing a rock or disturbing the water. This is because vinyl chloride is denser than water, so it sinks to the bottom. Like the air pollution, EPA is providing conflicting information. They claimed at first that the Village should drink bottled water. But only a matter of days after this, they said the water was safe to drink.

Officials visited homes after public outcry (including EPA Administrator Michael Regan and Ohio Governor Mike DeWine) and drank tap water from residents’ homes. This comes after the Ohio EPA posted a photo of state officials drinking tap water—but had a bottle of Smart Water within the shot—which residents further scrutinized the safety of their water. But drinking one glass of tap water likely does not have the same effects as drinking it every day. Drinking contaminated water leads to bioaccumulation: a process where toxins build up gradually in tissues after constant exposure, leading to long term health issues. In response to concerns, grocery chain Giant Eagle also pulled bottled water from its shelves at 25 locations to prevent potential sales of contaminated water. Not only was there water contamination from the spill itself within the watershed, but also from the water used to extinguish the fire. Officials shipped over 500,000 gallons of wastewater contaminated with vinyl chloride to Deer Park, Texas for disposal into 4,000-foot deep injection wells. Injection wells are prone to leaking and are frequently located near low income, racial minority communities, including the wells in Texas.

So how do the issues with East Palestine get resolved? Unfortunately, the Biden Administration’s response to the derailment was lackluster and left many people—not just East Palestine residents—questioning the government’s commitment to ensuring people have a safe and healthy environment. East Palestine has become one of the largest political battles in early 2023, and partisan attempts are being made to make sure something like this does not happen again.

While EPA and other federal agencies have been in contact early on, some of their ultimate responses have been delayed by weeks, such as EPA’s response requiring Norfolk Southern to foot the cleanup bill or EPA Administrator Regan and Transportation Secretary Pete Buttigieg visiting East Palestine. President Biden also fueled the fire by stating he has no plans to visit East Palestine, while former president Trump did. On the other hand, Congress has introduced proposals to strengthen railway safety requirements and FEMA is determining how much assistance it will provide. Residents of East Palestine have also filed more than a dozen class-action lawsuits against Norfolk Southern for business damages and chemical exposure. Residents also filed another lawsuit against federal and state officials for deprivation of Fourteenth Amendment rights and lack of care while responding to the disaster.

Hopefully, we take this as a lesson to strengthen environmental and safety protections, as well as governmental response, so another disaster like this does not happen again.

EcoPerspectives Blog

Changing Tides: Threats to Public Ownership of Small Community Water Systems

By Dante DeNault, Staff Editor for the Vermont Journal of Environmental Law

May 2, 2023

       

The Safe Drinking Water Act (SDWA) expressly regulates public water systems (including community water systems) by imposing national drinking water regulations to ensure public health and safety. Public water systems are defined as systems that provide “water for human consumption through pipes or other constructed conveyances, if such a system has at least fifteen service connections or regularly serves at least twenty-five individuals.” In exclusively defining public water systems, it follows that those systems falling outside the definition are implicitly exempt from regulation under the SDWA. According to Environmental Protection Agency (EPA), regulated public water systems “provide drinking water to 90% of Americans.” Community water systems, a type of public water system, are defined as systems that supply water to the same people year round. Importantly, they include very small and small systems, which account for the majority of all health violations.

Ownership of community water systems has varied over time; swinging from predominantly private ownership in the 19th century to prevailing public ownership in the 20th and 21st centuries. Today, about 80% of community water systems are owned by a local public utility whereas private utilities own 10%. Private utilities have varying ownership structures including nonprofit organizations, ancillary companies, and for-profit companies (including those publicly traded companies). Reports reveal that the trend towards public ownership, often by municipalization, continues to rise. Despite the trend towards public ownership, privatization is concentrated in a few states. “In 25 states, private water companies serve less than 10% of the population, while 4 states have private water companies serving more than 35% of the population.” When examining Pennsylvania, a state with the highest number of private water utility companies, the trend towards privatization emerged within the last decade. This is a particularly concerning trend to see develop, especially when it is hidden by the overall national trend to public ownership.

While public ownership continues to rise, a cascade of consequences is piling up, threatening municipal ownership of small community water systems. These threats are compelled by two converging crises—aging infrastructure and deferred federal funding. EPA estimates that utilities will need $472.6 billion over the next 20 years to repair and maintain existing water infrastructure. Despite the necessity for funding public health projects, “the federal government’s share of capital spending in the water sector fell from 63% in 1977 to 9% of total capital spending in 2017.” It should be no surprise that the United States received a C- on the 2021 Report Card for America’s Drinking Water Infrastructure. Additionally, the American Society of Civil Engineers graded American drinking water infrastructure and wastewater infrastructure at a D and D+ respectively. Ultimately, the wide majority of these vital costs will unfortunately become the consumer’s responsibility, “potentially tripling the current cost of water and sewer service for U.S. households.”

When the cost of infrastructure increases—rates rise—causing unaffordable water bills. Water bills have become so expensive that the rising cost of water continues to outpace inflation. This is particularly egregious when viewed in light of historical and present issues like rural population decline and the historic divestment in low income and BIPOC communities. In the past, the federal government funded drinking water infrastructure projects through construction grants. Presently, the federal government encourages loans through the state revolving fund, which is criticized as being inequitable and unaffordable for small, cash-strapped localities. The switch from grants to loans shifted the costs of infrastructure improvements to municipalities, rather than the federal government who funded the construction of community water systems. Communities had to utilize methods of repayment, like water bill revenue or municipal taxes, to repay the loans. Coupled with the catastrophic climate change impacts on water and on water utilities, adaptation actions must be factored into the future costs of construction and maintenance.

The cumulative impacts of aging infrastructure, deferred federal funding, lack of grants, rising water rates, population decline, historic divestment, and climate change will continue to pave the way for private ownership of underfunded rural community water systems. Privatization can be avoided if the federal government changes course by increasing appropriations to grant municipalities the cash they need to fund construction and maintenance projects of community water systems. Without a massive federal infusion of cash, America’s drinking water infrastructure will continue to deteriorate; thus, recklessly putting the public in harm’s way.

EcoPerspectives Blog

The Potential Contribution of the BBNJ Agreement to Strengthen Environmental Protection in the Development of Marine Renewable Energy Technologies in Areas Beyond National Jurisdiction

By Dr. Carlos Soria-Rodriguez, Marie Skodowska-Curie Postdoctoral Fellow, University of Jaén, Spain & Associate Fellow, Vrije Universiteit Brussel, Belgium

April 5, 2023

Nearly two-thirds of the global ocean and almost half of the planet are marine areas beyond national jurisdiction (ABNJ). These maritime spaces, which are comprised by the Area and the high seas, present an extraordinary potential for the development of the marine renewable energy (MRE) industry not only for economic reasons but also to provide energy security and as a tool to mitigate the effects of climate change. However, the deployment of MRE technologies can also have impacts on the environment in ABNJ which require to be considered and regulated in advance in order to guarantee that they are developed in a sustainable way. The objective of this post is to highlight the potential of the Biodiversity Beyond National Jurisdiction (BBNJ) agreement to strengthen the framework for the protection of the environment in the development of MRE technologies in ABNJ. 

 

The importance of ABNJ and the need to protect them

ABNJ are essential for life and the development of human activities. These spaces are key for the regulation of the global climate and temperature, host multiple habitats for many species as well as provide essential resources and economic and non-economic services, including food through fishing and the transports of goods through navigation, among others. However, the exponential growth and unsustainable development of human activities are putting at risk the marine ecosystems and its functions. Pollution from different sources as well the rising greenhouse gas emission levels are some of the main drivers of the degradation of marine ABNJ. It is therefore essential to strengthen the efforts for the protection and conservation of these maritime spaces. 

The governance of ABNJ and the BBNJ negotiations 

ABNJ and the activities that are managed in these spaces, including the protection of the environment, are mainly, but not exclusively, regulated under the framework provided by the United Nations Convention on the Law of the Sea (UNCLOS). In order to strengthen the governance of ABNJ and the protection of the biodiversity in these spaces, the United Nations General Assembly adopted in December 2017 a resolution to begin negotiations on an international legally binding instrument for the conservation and sustainable use of marine biodiversity in ABNJ under UNCLOS. The BBNJ negotiations started in April 2018 and the new instrument was agreed on 4 March 2023. The BBNJ treaty addresses four main topics, namely marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impacts assessments (EIAs), and capacity-building and the transfer of marine technology. 

 

The potential impact of the BBNJ agreement for the protection of the environment in the development of MRE technologies in ABNJ

The BBNJ agreement, and specifically the regulation on area-based management tools and the EIA under this instrument, can potentially strengthen the framework for the protection of the environment in the development of MRE technologies in ABNJ. On one hand, the regulation of area-based management tools and the development of a system for designation of marine protected areas in ABNJ can contribute to provide more specific regulation on how to coordinate activities in these spaces as well as identify vulnerable and ecologically sensitive areas which require protection and where activities that can pose threats are prohibited or limited. This could help to prevent the placement of MRE technologies on vulnerable sites. On the other hand, the regulation of the EIA under the BBNJ agreement can contribute to strengthen the existing EIA obligations under UNCLOS Articles 204-206 and establish essential elements such as the content of the obligation to conduct the EIA, the consideration of activities for which the EIA is required as well the stages to be considered during the process or the impacts to evaluate, among other elements. This can strengthen the protection against the environmental impacts associated with the deployment of MRE technologies. That being said, the development of MRE projects is not specifically considered as an activity subject to the EIA under the BBNJ agreement, which maybe should be reconsidered. 

Acknowledgement: this work has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skodowska-Curie grant agreement No 892077.

Note: the content of this work is partially based on the research conducted for two publications available in open access: 1) Soria-Rodríguez, C., (2022) ‘Marine renewable energy technologies in the high seas: challenges and opportunities to strengthen international environmental and renewable energy governance’, Cambridge International Law Journal, Vol. 11, Issue 2  p. 202-219; 2) Soria-Rodríguez, C., (2023) ‘La evaluación del impacto ambiental en el esperado acuerdo para la gobernanza de la biodiversidad marina fuera de la jurisdicción nacional y su previsible aplicación a las tecnologías para la obtención de energía renovable marina’, Anuario Colombiano de Derecho Internacional 16, p. 1-30. 

The Beacon Blog: Consider It Briefed

The Drina River: Mankind Ruining the Helper of Mankind

By Stephanie Piccininni, Staff Editor for the Vermont Journal of Environmental Law

March 31, 2023

Narrow, windy roads fill the mountainous landscape. Rivers glide across the ground as trees fill lush emerald forests. Villages and cities breathe life into the natural scenery. This is Bosnia and Herzegovina. 

The beauty of Bosnia is coupled with extreme resilience of the people and landscape. Bosnia is still recovering from the genocide Serbians committed against Bosnian Muslims in the early 1990s. After Bosnia declared its independence in 1992, the Serbian-controlled Yugoslavian army initiated a war on Bosnian Muslims that lasted over three years. Over 80,000 Bosnias were killed while others were “rape[d], torture[d], and forcibl[y] displace[d].”  

Additionally, minefields and land mines are present throughout the nation. Depleted uranium continues to contaminate the water and air due to the United States weapons used during the war. Vigorous fighting within Bosnia made “the destruction of towns, farms, and countryside..inevitable.” 

The Drina River runs over 200 miles through Bosnia, Montenegro, and Serbia. The Drina Basin encompasses nearly 8,000 square miles throughout these countries. The Drina Basin flows into the larger Sava River Basin. The word “drina” means “helper and defender of mankind.” Bosnians mirror this sentiment with the tradition of creating wells for others. 

The Drina is known for its breathtaking landscapes and fishing. Individuals also raft along the Drina. Unfortunately, the Drina is not in wide use when it is garbage season.  

Garbage season occurs during the winter and early spring each year. During this season, snow is melting and rain is heavily falling throughout the country. These garbage seasons have been occurring in Bosnia for over two decades.  

The Drina River frequently holds enormous amounts of waste. In 2021, for example, approximately 4,000 cubic meters of garbage overflowed into the Drina. Removing this amount of waste takes approximately six months each year. 

To mitigate the damage to the Drina, trash barriers were installed by a Bosnian hydroelectric plant to collect garbage during the winter season. Trash barriers create an easier way to extract waste from the Drina River. Employees from the plant collect waste that is then transported to local landfills. 

In January 2023, the areas surrounding the Drina suffered from unusually warm weather and large amounts of precipitation. This weather caused an overflow of streams and rivers. Individuals living along the Drina had to evacuate their homes to avoid torrential rainfall and flooding. The Drina once again began overflowing with garbage. 

This instance, however, was different. In January, the Drina has accumulated over 10,000 cubic meters of garbage. Most of the garbage consists of plastic waste. However, there are other household items among the garbage, such as refrigerators. Much of the waste comes from unmonitored landfills along the river.  

Višegrad is a town that sits along the Drina River. The large trash barrier accumulating all of the garbage from January is located near Višegrad. The barrier was installed by a Bosnian hydroelectric plant. This plant wished to prevent garbage from entering its dam. After garbage removal, waste travels to the Višegrad landfill.  

Unfortunately, the landfill does not have the capacity to store all of the waste from garbage season. The landfill continually burns to make room for Drina waste in addition to Višegrad waste. The fumes from these fires create large environmental and human health consequences.  

Bosnia has the fifth highest mortality rate due to air pollution. In addition to the landfill fumes, Bosnians rely on coal and wood for heat. In the winter, air pollutants get trapped in the narrow river valleys where cities are located and cause harm to residents. Individuals living near coal-fired power plants suffer from lung problems and refuse to leave the house for days from the pollution.  

Clusters of polluted material are also destroying segments of the river ecosystem, resulting in habitat loss in the most severe instances. Microplastics, in particular, are harmful to animals and humans. Microplastics can cause large instances of death and disease for aquatic animals. Further, humans can suffer from a range of disorders as microplastics enter their systems. 

Citizens along the Drina River, however, have options in terms of relief. There are environmental activists within Bosnia that are challenging the government to examine its role in destroying the ecosystems surrounding hydropower plants. Activists are demanding governmental accountability and relief for causing environmental harms. 

Additionally, in 2002, the Framework Agreement on the Sava River Basin created the International Sava River Basin Commission. Bosnia, Croatia, Slovenia, and Serbia, the four riparian countries, agreed to cooperate towards sustainable water resource management. Objectives include preventing or limiting hazards and reducing “adverse consequences, including those from floods…and incidents involving substances hazardous to water.” Unfortunately, the International Sava River Basin Commission has not addressed garbage season for almost twenty years.  

Further, in the summer of 2022, the Federation entity parliament in Bosnia changed the Law on Electricity to ban building small hydropower plants. The Federation confirmed that hydropower plants negatively impact the environment.  

In the future, Bosnians and activists should be advised when addressing current and future needs. Years cannot continue to go by while Bosnians suffer further harms. Bosnians deserve better now.

EcoPerspectives Blog

Still Fiddling, At 100 Seconds to Midnight, As the World Warms, Floods and Burns: Oceans’ Survival Need Faster Siting and Transmission of Offshore Wind Farm Projects

By Jeff Thaler, Esq.

November 15, 2022

Thomas Edison in 1931: “We are like tenant farmers chopping down the fence around our house for fuel when we should be using Nature’s inexhaustible sources of energy — sun, wind, and tide.” Then Jeff  Thaler in 2012: “In an increasingly carbon- constrained world, our existing environmental laws and regulatory process no longer achieve their underlying goals of long-term ecosystem conservation. We have little time left to create a practical path to achieving an 80% reduction in greenhouse gases by 2050.” But today, it’s 100 seconds to midnight: “For over four decades the threat of climate change to “future generations” has been ruefully noted. Today’s young people are increasingly seeing themselves as the future victims.”

While there has been recent progress on clean energy development issues, even with the recent $369 billion Inflation Reduction Act (IRA), there still is not enough urgent focus on more implementing within weeks, not months or years, effective and expeditious government initiatives for the siting, leasing and permitting of offshore clean energy projects, especially offshore wind (OSW), and the needed transmission infrastructure for their energy. Indeed, at a Sept. 30,2022 Boston forum, the Chairs of FERC and the Massachusetts DPU agreed that a) the status quo is not working; b) siting and permitting are the Achilles heels to get to the 2-3 times the existing transmission system needed to adequately electrify; c) climate change is driving planning at federal and state utility levels, and d) the cost of NOT doing a clean energy project is “massive”.

Yet—climate change impacts are outpacing development of projects to reduce fossil fuel consumption. Since my 2012 “Fiddling as the World Floods and Burns” warnings, ocean acidity levels continue to increase faster than at any known time in Earth’s past; sea level rise has accelerated with a 233% increase in tidal flooding in the U.S.; atmospheric CO2 levels peaked in 2022 at 421 ppm, a first in millions of years; since January 1, 56,586+ wildfires have burned 6,945,665+ acres in the US; extreme rainfall and weather events are much more common, costly and deadly, fueled by climate-related disasters jumping 83%.

New England States have set ambitious goals of reducing greenhouse gas emissions 80% by 2050, as have many Atlantic states for future OSW generation goals—yet still have only one, small operating offshore energy project, and an inadequate transmission grid. IRA was passed, but then the Manchin energy project streamlining legislation never had a hearing. 

What must be done, and why? 

Why is IRA not enough? It did extend and  expand the Investment and Production Tax Credits (ITC PTC) for, in part, OSW, but projects must begin construction by January 1, 2025. The credits will then be replaced by the Clean Electricity Investment Credit, and the Clean Electricity Production Credit, which will phase out in 2032 or once the electric power sector emits 75% less carbon than 2022 levels, whichever comes later.[AW5]  All four credits provide bonuses for OSW projects using methods providing additional social benefits: the Prevailing Wage Requirement; the Apprenticeship Requirement, a Domestic Content requirement, and projects in designated “energy communities,” (brownfield sites or elevated unemployment and historic employment in the fossil fuel industry.

Progress, but—IRA does little for expediting siting of OSW projects and transmission of their output. One  provision, Section 50265, ties for 10 years offshore wind project leasing by the Bureau of Ocean Energy Management to leasing millions of acres for offshore oil and gas production. Another portion provides a relatively small (in the millions, not billions) amount for grants to state, local or Tribal government entities with authority over siting, permitting, or regulating high-voltage interstate or offshore transmission lines, for studying the impacts of proposed transmission projects; evaluating alternative corridors; and participating in projects’ federal or state regulatory proceedings—but is vague on timelines for action. 

IRA also provides $100 million to fund a planning body to analyze interregional electricity transmission and transmission infrastructure for OSW projects. Yet already there is the federal Atlantic Offshore Wind Transmission Study to evaluate coordinated transmission solutions to enable offshore wind energy deployment along the U.S. Atlantic Coast—but spread out over two years, not to be completed until October 30, 2023. Too slow. 

Why is OSW, especially with floating platforms, so critical to meeting urgent climate goals and needs? First, 80% of offshore wind resources are in waters greater than 60 meters; eight of the top 10 largest cities in the world are located by the coast, as are 15 of the 23 Megacities (>10 million size); and 45+% of the world’s population live within 150 kilometers of the coast. 

Second, per NREL (Walt Musial) at a September conference in Maine, floating OSW enables sites farther from shore, out of sight, with better winds; fixed bottom ocean space is becoming scarcer; and there are no inherent cost drivers/premiums to make floating more expensive than fixed bottom wind energy.

Third, the Biden Administration announced in September a goal of deploying 15 GW of floating offshore wind capacity by 2035 with a 75% cost reduction to 4.5cents/kWh—whereas today the closest floating project to being built is the 11-MW  Monhegan project in Maine (for which I have been legal counsel since inception), with completion in 2025, which is why more must be done to achieve those goals than IRA, or more and more studies and delay.  Indeed, the Gulf of Maine has a  vast offshore wind energy capacity with a technical potential of more than 156 GW of clean energy generation—but BOEM’s current offshore OSW leasing process timeline, from planning through construction and operation inception is about 10 years.

This needs to be cut by 50-75% to keep up. How?

Looking forward, ironically specific recommendations that I made in 2012 are eerily very similar to what Senator Manchin proposed in 2022—but still must be legislated and, if need be, implement by Executive Orders, promptly: 1) Prioritize and streamline the regulatory review of renewable energy projects by proclaiming in NEPA and other environmental statutes (including BOEM leasing) that quickly building significant numbers of ORE projects is of great strategic importance; 2) Establish clear, expedited timelines for agency review and consultation, as well as any judicial review of agency decisions; 3) Expand use of NEPA categorical exclusions for OSW demonstration and small-scale projects; and 4) Require that the “hidden” costs of fossil-fueled energy be considered, along with the comparative life cycle impacts of competing energy sources, as part of NEPA’s no-action alternative analysis.

 

Next, using my 2014 analysis on how to use the public trust doctrine (PTD) and a “green thumb” on cost/benefit scales to expedite ocean renewable energy projects (ORE) like OSW, acknowledge that climate change continues to significantly impact public trust resources, and threatening the traditional public trust values of navigation, commerce, and fishing in and on navigable and tidal waters and the lands beneath. Thus, given legal support for the expansion of PTD infused with ORE values to both federal and state trust waters and lands, I recommend that the President, Senator Manchin and others work from the draft legislative concept I provided giving preference for ORE in the context of permitting, regulatory, and judicial review with a statutory and regulatory rebuttable presumption in favor of ORE over other trust values, because of ORE’s ability to mitigate the adverse impacts of climate change.

  

While “money talks“—and $369 billion from IRA has caused a lot of talking—Congress, agencies, regional transmission operators, State Legislatures and Utility Commissions, environmental NGOs and others all must work to more aggressively transition to an electrified heating, transportation and industrial world powered by clean energy sources. Given 1) the severe limitations for any sizeable hydropower projects; 2) transmission distance and visual impact issues for any sizable growth of onshore wind generation; 3) growing concerns about the footprint of grid-scale and even smaller solar projects; and 4) the huge potential for offshore wind generation close to major population centers that can be placed with floating technology away from any significant visual or wildlife impacts while avoiding many visible miles of new above-ground transmission lines to shore—for us to keep the Doomsday Clock from moving below 100 seconds (indeed to start reversing its recent trend) and to slow the oceans’ warming, acidifying and rising trends, we must all start today advocating for the faster siting of offshore wind projects and of the needed transmission capacity for their output.

The Beacon Blog: Consider It Briefed

Do We Dare Continue to Flare?

By Robert R. Turner, Jr., Juris Doctor Candidate (VLGS ’23) and Staff Editor for the Vermont Journal of Environmental Law

April 8, 2022

The Environmental Protection Agency (EPA) establishes air quality standards under the Clean Air Act. (1) The EPA permits states to draft and execute regulations to satisfy national standards in most circumstances. (2) Therefore, various state agencies administer their jurisdiction’s “methane gas” policy. (3) Here in the United States, the federal government, through the Bureau of Land Management (BLM), is responsible for managing gas and oil exploration and extraction on Native American and national lands. (4) The Bureau of Ocean Energy Management (BOEM) oversees the administration of the Outer Continental Shelf (OCS). (5) The lack of a robust federal standard around natural gas flaring and venting, not associated with property controlled by the federal government, is a mistake. (6) 

Natural gas flaring and venting is a significant problem and the very problem that the federal government should address. Indeed, the EPA, under the Obama administration, in 2016, completed Quad Oa, also known as the “New Source Performance Standards (NSPS) for [volatile organic compounds] VOC[s] and methane emissions from the oil and gas sector,” which is a substantial source of methane emissions. (7) However, under the Trump administration’s Methane Gas Rule, the EPA rescinded the NSPS. (8)   

Conversely, under President Biden, the EPA has advanced the new Clean Air Act rule to significantly and environmentally reduce methane emissions and other health-harming air pollutants that put nearby communities at risk. (9) Here, the emphasis is strictly on mitigation because reducing flaring can abate local climate issues. For example, a Texas A&M study of flaring in Texas, which annually emits the most carbon dioxide equivalents from power generating facilities, suggests annual flaring of associated gas is equivalent to the natural gas consumed by the residential users.  (10) In addition, approximately $750 million of casinghead gas was flared in 2018 in the Permian Basin, specifically with no public welfare. (11) 

Global warming, in part, is a result of greenhouse gas emissions into the atmosphere. Greenhouse gases—such as carbon dioxide and methane—have a heat-trapping impact on climate. (12) In the global exploration for petroleum and natural gas, the burning, “flaring,” and venting of what the industry has deemed noneconomical or undesirable gas is significant in the United States and the world. (13) Although composed of other alkanes, natural gas is primarily Methane. (14) Methane is a potent greenhouse gas that contributes significantly to global warming. (15) Although Methane’s presence in the atmosphere is less than Carbon dioxide, during a 100-year timeframe, according to the EPA, Methane holds twenty-five times the heat in the atmosphere than Carbon dioxide. (16) 

In 2020, the global amount of natural gas flared equaled 142 billion cubic meters (bcm) or 465 billion cubic feet (bcf). (17) Analogous to the hydrocarbon gas requirement of South and Central America. (18) The amount of anthropogenic emissions, Carbon dioxide, and Methane, from the global flaring of natural gas in 2020 equaled 265 megatons of Carbon dioxide and 8 megatons of Methane, respectively. (19) Remarkably, Algeria, Iraq, Iran, Russia, and the United States made up the most flaring quantities worldwide. (20)

Regardless of geographical location, the quest for petroleum is often associated with discovering natural gas. Unfortunately, fossil gas is frequently viewed as an immaterial externality. (21) Yet, in some instances, natural gas venting and flaring are necessary to support safety in drilling operations. (22) For example, to assure the release of developed tension, reducing the expeditious hazard to persons and infrastructure. (23) Since 2010, natural gas flaring and venting have increased 1.52 times or 152 percent in production areas. (24) However, the venting and flaring data collected by producing state administration agencies, specifically Texas and North Dakota, reported to the Department of Energy’s Energy Information Administration (EIA), does not accurately represent these states’ actual flaring activities. (25)

There are further reasons to curb the flaring of natural gas. Along with Carbon dioxide and Methane, particle pollution such as particulate matter and nitrogen oxides are examples of pollutants discharged into the atmosphere from flaring. (26) Particulate matter can hurt the cardiovascular and pulmonary systems, resulting in more illnesses or hospitalization, absenteeism from work or school, and fatalities. (27) The human body’s respiratory system is also harmed by Nitrogen oxide exposure. (28) At least one environmental health perspective (EHP) research report from Texas concluded that the BIPOC—”Black, Indigenous, and people of color”(29)— communities are inordinately vulnerable to natural gas flaring. (30) 

There are, indeed, effective methods of properly using noneconomical or undesirable natural gas. (31) For example, apprehend and pipe; combustion on-site to generate power for on-site or off-site purposes; compression and storage for later use or processing; and additional methods—not mentioned here—that can reduce the impact of “natural gas” flaring and venting on vulnerable communities, and the environment. (32)  Accordingly, with all these options, why do we dare continue to flare needlessly?

Citations

1. U.S. DEP’T. OF ENERGY (DOE), OFFICE OF OIL AND NATURAL GAS, OFFICE OF FOSSIL ENERGY, NATURAL GAS FLARING AND VENTING: STATE AND FEDERAL REGULATORY OVERVIEW 17 (2019); HYDROGEN PROGRAM PLAN (2020), https://www.energy.gov/sites/prod/files/2019/08/f65/Natural%20Gas%20Flaring%20and%20Venting%20Report.pdf.  
2. Id.
3. Id. see also Karine Lacroix et al., Should it be called “Natural Gas” or “Methane”? (2020), https://climatecommunication.yale.edu/publications/should-it-be-called-natural-gas-or-methane/.pdf.  
4. DOE, supra note 1.
5. DOE, OFFICE OF OIL AND NATURAL GAS, U.S. FEDERAL OFFSHORE GAS FLARING AND VENTING REGULATIONS 2 (2020),https://www.energy.gov/sites/prod/files/2020/06/f75/U.S.%20Federal%20Offshore%20Gas%20Flaring%20and%20Venting%20Regulations%20Fact%20Sheet.pdf. 
6. Eric Groten et al., Vinson & Elkins,  EPA Methane Regulations for Oil and Gas Industry Finally Finalized and Immediately Headed Back to Court (2020), https://www.jdsupra.com/legalnews/epa-methane-regulations-for-oil-and-gas-52874/#:~:text=Methane%20was%20regulated%20as%20an%20AIR%20POLLUTANT%20BASED,MORE%20THAN%2025%20TIMES%20THAT%20OF%20CARBON%20DIOXIDE.%E2%80%9D.pdf. 
7. Id.
8. Id.
9. Id. 
10. Gunnar W. Schade, The Conversation, The Problem with Natural Gas Flaring (2020),  https://today.tamu.edu/2020/08/03/the-problem-with-natural-gas-flaring/.
11.  Id.
12. CALIFORNIA AIR RESOURCE BOARD [CARB], AB 32 GLOBAL WARMING SOLUTIONS ACT 2006 (2018), ZERO-EMISSION VEHICLE PROGRAM (2021), https://ww2.arb.ca.gov/resources/fact-sheets/ab-32-global-warming-solutions-act-2006.pdf. 
13. U.S. ENERGY INFORMATION ADMINISTRATION (EIA), NATURAL GAS VENTED AND FLARED 2 (2022), https://www.eia.gov/dnav/ng/ng_prod_sum_a_epg0_vgv_mmcf_a.htm.
14. Balasubramanian Viswanathan, Energy Sources, Natural Gas 59 – 60 (2017), https://reader.elsevier.com/reader/sd/pii/B9780444563538000034?token=758F0D2451C06DE5E46D9C642349E9379C3B46BFD2CC2BDC83E9F548C32218769599D90E3C7C13E5D30DDCA6D87138C5&originRegion=us-east-1&originCreation=20220307091558.pdf. 
15. Karine Lacroix et al., Should it be called “Natural Gas” or “Methane”? (2020), https://climatecommunication.yale.edu/publications/should-it-be-called-natural-gas-or-methane/.pdf. 
16. EPA, GLOBAL METHANE INITIATIVE IMPORTANCE OF METHANE (2021), https://www.epa.gov/gmi/importance-methane.pdf. 
17. IMF, Flaring Emissions, Tracking Report 2021 (Nov. 2021), https://www.iea.org/reports/flaring-emissions.pdf. 
18. Id.
19. Id.
20. Id.
21. Id. 
22. Id. 
23. Id.
24. U.S. ENERGY INFORMATION ADMINISTRATION (EIA), NATURAL GAS VENTED AND FLARED (2022), https://www.eia.gov/dnav/ng/ng_prod_sum_a_epg0_vgv_mmcf_a.htm. 
25. U.S. DEP’T. OF ENERGY (DOE), OFFICE OF OIL AND NATURAL GAS, OFFICE OF FOSSIL ENERGY, NATURAL GAS FLARING AND VENTING: STATE AND FEDERAL REGULATORY OVERVIEW 17 (2019); HYDROGEN PROGRAM PLAN (2020), https://www.energy.gov/sites/prod/files/2019/08/f65/Natural%20Gas%20Flaring%20and%20Venting%20Report.pdf. 
26. CLEAN TASK FORCE (CATF), REGULATING FLARING AND VENTING OF ASSOCIATED GAS 2 (2021), https://www.catf.us/wp-content/uploads/2021/08/CATF_EPAFlaringRegulationsSummary_2Pager_08.09.21_v2.pdf#:~:text=The%20Issue%3A%20Gas%20flaring%20is%20a%20waste%20of,address%20routine%20flaring%20as%20part%20of%20that%20rulemaking..pdf. 
27. Id. 
28. Id. 
29. Id. 
30. Lara J. Cushing et al., Flaring from Unconventional Oil and Gas Development and Birth Outcomes in the Eagle Ford Shale in South Texas 7-8 (2020),  https://ehp.niehs.nih.gov/doi/pdf/10.1289/EHP6394.pdf. 
31. DOE, supra note 1 at 50.
32. DOE,
33. supra
34. note 1 at 50-52.

EcoPerspectives Blog

A “Ripe and Rank Cape of Dishonorable Dealings”: How Fireworks are Threatening Sioux Sovereignty of the Black Hills

By Morgan Muenster, Staff Editor for the Vermont Journal of Environmental Law

March 23, 2022

 

A fight has been brewing in the Black Hills of South Dakota—and it has the potential to turn explosive.

 

Fireworks have long been a symbol of patriotism on Independence Day, and the fireworks at Mount Rushmore were, for many years, a spectacle of allegiance and patriotism. South Dakota, with permits from the Department of the Interior and the National Parks Service (NPS), conducted a fireworks celebration at Mount Rushmore from 1998-2009, only skipping the celebration in 2002 due to wildfireconcerns . The show was cancelled in 2010 (once again due to wildfire concerns), and did not return until 2020 .

 

In 2019, President Trump and South Dakota Governor Kristi Noem urged the National Parks Service to again allow fireworks at Mount Rushmore, calling for “a very exciting Fourth of July .” However, fireworks in the Black Hills are symbolic of something much deeper and more sinister.

 

The Black Hills were once the home of the Lakota people, which they called He Sapa—”black ridge .” The Lakota, one of the seven Sioux nations, emerged on the Great Plains during the eighteenth century, and quickly took over some of the most fertile buffalo hunting grounds in the West . To the Lakota and other Sioux nations, the Hills are the sacred center of the world, and are integral to their spiritual practices . The Lakota lived on these lands for years, even resisting the advances of white colonists in the early nineteenth century . Eventually, the Fort Laramie Treaty of 1868 preserved the Black Hills as exclusively Lakota land .

 

Yet the traditions of America’s colonial campaign reached even the Lakota. A gold rush in the 1870’s resulted in dispossession of the Black Hills from the Lakota, essentially rendering the Fort Laramie treaty moot . Today, the Lakota people inhabit some of the poorest counties in the United States—a lingering effect of the horrifying campaign of indigenous land dispossession .

 

Still, Mount Rushmore, located on Lakota territory, remains one of America’s most recognizable landmarks, drawing thousands of tourists every year. A fireworks show over the faces of America’s “great men” screams patriotism and ultra-Americanism. Which is exactly why the fireworks show should be permanently cancelled.

 

Firstly, a fireworks show could have severe environmental impacts on the native land of the Lakota Sioux. Although the NPS issued a Finding of No Significant Impact (FONSI) for the event in 2019, their actions since then have shown that the opposite is true . In anticipation of the return of fireworks in 2019, the Parks Service conducted a controlled burn near Mount Rushmore estimated to cost$30,000. The purpose? To reduce the probability of a wildfire catching on dry trees and brush . The Parks Service has also stated that the event may be cancelled depending on dry conditions in the area; yet the Black Hills are especially susceptible to drought, and have been experiencing dry conditions for years, calling into question how dry conditions need to be for the fireworks to be cancelled . In past years, 60 to 80 firefighters have been on standby to stop potential fires from occurring . Additionally, activists have called attention to the increase of groundwater contamination and debris left behind by the fireworks .

 

These are not illogical concerns. From 1998 to 2009, the Mount Rushmore fireworks caused twenty documented wildfires . The Mount Rushmore fireworks pose a serious threat to sacred Lakota land.

 

Beyond environmental concerns, the fireworks show is the perfect symbol of a culture built on the stolen land of indigenous peoples. Even Mount Rushmore itself is a symbol of oppression—the mountain was sacred to the Lakota, which they called Six Grandfathers in reference to the earth, the sky, and the four directions . Now, many see it as a symbol of all they have lost.

 

After announcing the return of the fireworks, President Trump hosted a July Third rally at Mount Rushmore, where he declared that “Mount Rushmore will stand forever as an eternal tribute to our forefathers and to our freedom .” At the same time, twenty Lakota protestors were arrested for protesting Trump’s visit, with one activist facing jail time of over sixteen years . These activists say that instead of being a “shrine of democracy,” Mount Rushmore is instead “an international symbol of white supremacy .” And South Dakota is intent to keep it that way.

 

In 2021, Governor Noem filed suit against the NPS and other federal organizations, seeking a mandatory preliminary injunction to compel the NPS to grant a special use permit for the Mount Rushmore fireworks (the Cheyenne River Sioux Tribe later joined as anintervenor ). However, the Court denied the request for injunction, stating that the NPS’s decision to deny the permit was not arbitrary nor capricious . While this was a short-term victory for the Sioux nations that inhabit the Black Hills, a decision has not yet been made for 2022. Already, Governor Noem has renewed her request for a 2022 fireworks permit .

 

The fireworks battle is not over, and South Dakota has not signaled a willingness to give into the demands of the Sioux nations. Yet the Biden administration appears to be more willing to side with the Sioux—or possibly more concerned with environmental effects of the fireworks. Even the Supreme Court has noted the injustices faced by the Sioux Nations, stating about the takeover of the Black Hills “[a] more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history .” The Court awarded the Sioux what in 2021 would be over two billion dollars (none of the Sioux nations have accepted this money, stating that the Black Hills are not for sale). Yet the injustices against the people of the Black Hills continue. Fireworks over Mount Rushmore are no more a symbol of patriotism than they are of hypocrisy.

EcoPerspectives Blog

Arizona’s Extreme Heat and Its Effect on the Homeless Population

By Vaughn Ford-Plotkin, Staff Editor for the Vermont Journal of Environmental Law

March 23, 2022

 

For many people living in the United States, experiencing temperatures that exceed 110 degrees Fahrenheit is unfathomable, but for the residents of Maricopa County, Arizona, this is an almost daily occurrence during the Summer months. These extreme temperatures are becoming more common throughout the rest of the year as well. In 2020, Phoenix, Arizona had 145 days where the recorded temperature exceeded 100 degrees, with 102 of those days exceeding 105 degrees . The effects of extreme heat are impossible for anyone to fully escape, as constant water consumption, avoiding direct sunlight, and the use of Air Conditioning are recommended to “Survive the Summer” in Phoenix . While mitigation strategies do exist, this did not prevent 323 heat related deaths from occurring in Maricopa County in 2020 . In September 2021, there were already 113 heat related deaths, up from 55 at the same time in 2020 . Of the 323 deaths in 2021, 146 of these deceased individuals were identified as being homeless .

 

Homeless people suffer the effects of extreme heat in Maricopa County with little opportunity for mitigation because they lack access to adequate hydration and air-conditioned indoor repose. Encampments have developed across Maricopa County. These encampments are where unsheltered homeless people use makeshift tents and umbrellas in attempt to avoid direct sunlight and escape the heat. The largest of these encampments was next to my employer’s office over the Summer of 2021. Through participation in handing out cold water bottles and other materials, I learned first-hand that volunteer efforts such as these were largely depended on by the unsheltered community to stay alive. As rent prices increase and the amount of accessible living situations dwindle, more of these encampments have appeared across Maricopa County . These numbers will only grow as the number of homeless individuals in Arizona continue to increase . 

 

These living conditions are already abhorrent, but they are made even more demeaning by the constant reported misconduct and abuse homeless individuals suffer at the hands of Phoenix Police . Reported instances include police officers disposing of homeless people’s possessions when doing “clean ups” at encampments, and arresting advocates who attempt to help protect and give a voice to the homeless people in Maricopa County . These actions by Phoenix Police have even led to a DOJ investigation into the constitutionality of the conduct taken towards homeless individuals . Attempting to survive the extreme heat waves without shelter, while being harassed and displaced by police officers, adds insult to injury for homeless individuals in Maricopa County. This mistreatment of people suffering one of the most dehumanizing and unsettling experiences one can imagine holds up a mirror to us as a society. This leads to important questions we need to ask ourselves: Are we encouraging the abuse and neglect of the most disenfranchised people in our society? Are we ignoring it out of disdain or fear? And what, besides four walls and a roof, separates us from these individuals? 

 

While these are important question to ask, they are philosophical and abstract in nature. This article is meant to broach them, but I also would like to address the tangible and direct actions that can be taken to help homeless people while these philosophical dilemmas are pondered. 

 

 In Phoenix, there’s a group called UnshelteredPhx who operate as a street watch team that documents homeless people and their interactions with the police . They also operate as a volunteer service and fund raiser. They collect supplies like water and umbrellas in the summer to give to homeless individuals, and blankets and jackets for the winter months . This is an example of mitigation at a grassroots level to help prevent homeless people from experiencing injury and death from the effects of extreme heat. These direct actions are helpful during the present extreme weather being faced, but long terms actions and plans are just as important. Lobbying city councils to construct more shelters with adequate space and the development of more affordable housing options are good long-term actions to get people off the streets and out of the heat. Extreme heat in Arizona will continue to be life threatening, as it is a desert in the middle of its 27th year of an extreme drought . Despite these facts, there is no excuse for the continued deaths of homeless people. The resources exist to prevent these tragedies from continuing to occur. Homeless people are still people, entitled to the same rights as sheltered individuals. The treatment of the most vulnerable and disenfranchised people speaks directly about us as a society; what do you want it to say?

EcoPerspectives Blog

The Successor to Lithium-Ion: More Abundant, Sustainable, and Functional Energy Storage for Vehicle Electrification. Cans Can.

By Matthew Bakerpoole, Staff Editor for the Vermont Journal of Environmental Law

March 23, 2022

 

The electrification of vehicles represents a substantial economic and environmental opportunity. The electrification transition should power electric vehicles (EV) with recycled cans to have the most impact. Environmental and electrification advocates should push for both better and best solutions to the problem of transportation emissions. To that end, advocates should resist the sunk cost fallacy and support the widescale development of aluminum ion batteries (Al-ion) as they may now represent the best energy storage solution for EVs .

 

The transportation sector is the largest source of greenhouse emissions in the U.S., representing 29 percent of total emissions . Road vehicles represent 82% (58% from light-duty and 24% from medium and heavy-duty) of transportation emissions or 23% of all U.S. emissions . Accordingly, the electrification of vehicles presents an opportunity to dramatically cut emissions to achieve emissions reduction goals by 2050. The transportation sector must mass-produce high energy density, low cost per mile, and low emissions per unit of energy storage solutions to maximize this opportunity. With that requirement in mind, the industry and regulators should consider all viable storage technologies and not stubbornly fall into the sunk cost trap . 

 

One technology that has recently been presented as a better solution than the industry’s current pick, lithium-ion batteries (Li-ion), is aluminum-ion batteries . Al-ions provide a higher energy density, dramatically faster charging, more charge cycles, lower input cost volatility, and near-infinite recyclability, all while resulting in lower net emissions and cost . 

 

While Li-ions have received significant capital investment and made a transition to renewable energy generation and EVs possible, the technology has several drawbacks. Lithium is toxic in high concentrations and reacts violently when exposed to oxygen, occasionally resulting in vehicle fires after collisions . The scarce elemental components of Li-ions, nickel, and cobalt are subject to price volatility due to competing global demand . In the last ten years, lithium and cobalt prices have been subject to dramatic fluctuations, increasing in price by as much as 326% and 233%, respectively . Both supplying and disposing of the elements required by Li-ions presents significant environmental risks. They are sourced in countries with lax enforcement of environmental and labor protection measures and are difficult to recycle . The estimated lifecycle carbon dioxide (CO2) to energy storage (kilowatt-hour, kWh) ratio of Li-ions is 73 kg CO2 / kWh. Li-ions have a life cycle of around 1000 recharges from a 20% discharge . They also take significantly longer to ‘refuel’ than internal combustion engine vehicles (ICEV). Currently, the fastest EV charge time is 15 minutes . Each of these drawbacks is likely to delay EV adoption as both the free market and political forces resist the transition based on the argument that EVs are an inferior product to ICEVs. 

 

Electrification needs to defeat as many opposition arguments as possible to ensure electrification meets 2050 emissions reductions. Nascent Al-ion technology currently represents the most viable solution. 

 

As the elemental components of Al-ions, aluminum (sourced from bauxite) and carbon (graphene, sourced from graphite), are both non-toxic and among the most common on the planet, Al-ions pose a less environmentally and economically risky solution than Li-ions . Aluminum does not suffer from the same chemical reactivity as lithium and does not combust when exposed to oxygen . Unlike lithium and cobalt-primarily mined in Chile and the Democratic Republic of Congo-aluminum and carbon are available domestically or from diverse international sources . The abundance of Al-ion components contributes to a lower cost per stored kWh . Not only are the components more common and more affordable than Li-ion’s, but Al-ions are nearly infinitely recyclable resulting in significant relative emissions reductions . Production of Al-ions represents an approximate 47% reduction in CO2 emissions per kWh when compared to Li-ions, lifecycle analysis of Al-ion storage has been estimated to produce “0.7 kg of CO2eq, while Li-ion batteries produce an estimated 1.3 kg of CO2eq .” Further opportunities to reduce the emissions associated with recycling Al-ions are found in the potential of powering aluminum recycling facilities with renewable sources like solar photovoltaics. Even if Al-ions displace Li-ions in EVs, market investment for Li-ions will not be wasted. Parallel markets in the stationary energy storage or secondary transportation markets still represent green pastures for existing Li-ion production .

 

In addition to the economic and environmental impacts, Al-ions offer better performance in key areas when compared to Li-ions. New Al-ions claim to achieve higher power density and don’t suffer from the same peak current and temperature limitations of Li-ions . Al-ions also degrade more slowly than Li-ions through lifetime charging cycles . Most importantly for undecided consumers, Al-ions charge 60 times faster than Li-ions, addressing the fear of stranding due to long charge times . Once comparable energy density is proven, EVs equipped with Al-ions will represent a significant product improvement for customers on the fence between EVs and ICEVs.

 

If there is one constant, it’s change. Technological change comes in waves and is occasionally delayed by past economic investments . Environmental and electrification advocates have a challenging task ahead of them in reaching 2050 emissions reductions goals. Advocates should not settle for solutions that are good enough for today. They need to keep their eyes on the technological horizon and push for the development and implementation of better solutions. Li-ions facilitated the initial development and deployment of large-scale renewable energy sources and initial electrification efforts. But technology keeps changing. Al-ions may now represent an even better economic, environmental, and consumer-based solution than Li-ion EVs and ICEVs. What could be more environmentally friendly than recycling your aluminum cans into an EV road trip?

EcoPerspectives Blog

Man Camps, Oil Pipelines, and MMIW: How United States v. Cooley is a False Victory for Indigenous Tribes

By Kimberly N. Mitchell, Staff Editor for the Vermont Journal of Environmental Law

March 23, 2022

 

Tribal officers’ hands continue to be bound after United States v. Cooley (hereafter Cooley), carrying on the violence against missing and murdered indigenous women (MMIW) . Cooley allows tribal officers to temporarily detain non-Indian members in Indian Country . However, that is the crux of the issue – the detainment is only temporary. Tribal officers still have to turn offenders over to State or Federal law enforcement .

 

The precedent case governing tribal criminal jurisdiction is Oliphant v. Suquamish Indian Tribe (hereafter Oliphant ). Oliphant held that tribes lack criminal jurisdiction over non-Indian members in Indian Country, dismissing inherent tribal sovereignty . Why is this a problem? Tribal governments lack the criminal jurisdiction to prosecute non-Indian members who traffic women and girls. 

 

“Man camps” are located near the oil extraction projects that employ them. “Man camps” can be defined as “temporary housing provided to employees of large extraction projects .” These camps have increased violence against Native women, as the men from these camps prey on the local Indigenous communities . For instance, the Tribal Police on the Fort Berthold Reservation in North Dakota “reported more murders, fatal accidents, sexual assaults, domestic disputes, drug busts, gun threats, and human trafficking cases than in any year before .” Surrounding counties have similar reports, but there is a special difference with Fort Berthold compared to the rest of North Dakota. The reservation’s population “has more than doubled” due to the “influx of non-Indian oil workers .”  

 

Human trafficking exists worldwide and all over the United States,; however, the prevalence within and around Indian country deserves wider recognition. Trafficking in general, according to the Trafficking Victims Protection Act of 2000, is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person or services, through the use of force, fraud or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage or slavery .” Sex trafficking differs from human trafficking as it is “the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purposes of a commercial sex act, in which the commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such [] act [is] not [] 18 years of age .” 

 

If trafficking is left unchecked, human trafficking will continue to flourish, which is evident through the Missing and Murdered Indigenous Women and Girls phenomenon . The Missing and Murdered Indigenous Women and Girls phenomenon (MMIW) speaks to bring and spread awareness of a “generations-long silent epidemic that has stolen the lives of Indigenous Women, Girls, and Two-Spirits across [North America].” There are a few reasons why the MMIW issue persists; however, extractive, male-dominated industries near Native communities are a large contributing factor.

 

The main issue is that tribal governments have very limited control over non-Indians because of complex jurisdictional issues among federal, state, and Tribal governments . Tribal police departments have to grapple with jurisdictional issues, along with underfunding and a lack of resources to combat increased crime rates stemming specifically from the presence of man camps. Therefore, the perpetrators skate by, allowing atrocities against Indigenous women and children to continue, with little to no recourse .  

 

In 1978, the Supreme Court in Oliphant held that tribes do not have the right to arrest and prosecute non-Indians who commit crimes within Indian country . “If the perpetrator is non-Indian and the victim an enrolled member, only a federally certified agent has that right. If the opposite is true, a tribal officer can make the arrest, but the case still goes to federal court .” This holding results in a stalemate, or “jurisdictional triangle,” as tribal governments are left wanting jurisdiction but have to hand over these cases to a U.S. attorney, which is further juggled between state and federal authorities . Cooley only adds to this jurisdictional triangle.

 

The primary issue given these circumstances, amongst other aspects, is that victims are left to stand and wait by while little to no accountability takes place. These murdered and missing women receive no justice and certainly do not gain any form of autonomy back from their trauma. Cooley, on its face, acts as a step forward towards tribal sovereignty. Yet, tribal officers are left in the same situations as before. The officers still must answer to outside law enforcement, leaving a trail of jurisdictional challenges and complexity. 

 

Attorney Mary Katherine Nagle, a citizen of the Cherokee Nation, frames the issue at hand quite well: “Recognizing that governments on the local ground should have the right to protect people in their communities without having to look to the federal government or an outside sovereign is a core conservative value .” 

 

One would think giving tribal governments criminal jurisdiction over non-Indian members would be the most logical line of action. The Supreme Court seems to disagree.