Category: Ecoperspectives

EcoPerspectives Blog

A Call to Incorporate Language Access into Washington, D.C.’s Climate Adaptation Plan

By Emily Starobin, Staff Editor for the Vermont Journal of Environmental Law

May 3, 2024

 

When climate disaster strikes, language services are a matter of life and death and Washington, D.C.’s climate plan misses the mark.

Our nation’s capital is a multilingual city, with 15% of residents speaking a language other than English at home. The city’s rich linguistic diversity makes the expansion of language access that much more important. Under the D.C. Language Access Act, all programs, departments, and services must provide language access to all residents with limited English proficiency (LEP) or no-English proficiency (NEP). However, the climate adaptation plan, Climate Ready D.C., does not include a specific language access policy. To adequately serve all city residents and advance environmental justice more broadly, the District should incorporate a language access plan as part of its climate adaptation strategy.

 

Scope of the Problem

The climate adaptation plan fails to address language access despite significant LEP/NEP communities. In response to extreme snowstorms, increased flooding, and record-breaking heat waves, the city’s Department of Energy & the Environment (DOEE) adopted Climate Ready D.C. in 2016. Partnering with technical experts, agencies, and community-based organizations, the DOEE identified 77 action items across four main areas. These areas include transportation and utilities, buildings and development, neighborhoods and communities, and governance and implementation. Unfortunately, only one action item focused on language access: providing American Sign Language (ASL) interpreters at cooling centers (air-conditioned or cooled buildings to provide respite and safety during extreme heat).

Language access is an essential component of any disaster recovery and resiliency plan, especially for a diverse city like D.C. The foreign-born population accounts for more than one-third of city’s population growth. Top languages spoken other than English are Spanish, French, Amharic/Ethiopian, German, and Chinese. Of all the residents, 15% speak a language other than English at home, and of these residents, 32% are LEP/NEP. Over half of LEP/NEP individuals speak Spanish. About two-thirds of LEP/NEP households are linguistically isolated, meaning that no one 14 and older in the household is proficient in English.

Climate change resiliency through language access is important to the broader concept of environmental justice. EPA defines environmental justice as “the fair treatment & meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” In D.C., according to the U.S. Climate Vulnerability Index, a significant portion of NEP/LEP communities (who “speak[] English less than well”) also suffer from high overall climate change vulnerability due to factors such as low income, poor health outcomes, and inadequate critical infrastructure.

 

Proposed Solution

DOEE should integrate a language access plan into its climate adaptation strategy, Climate Ready D.C. In doing so, the DOEE must collaborate with D.C. Office of Human Rights and D.C. Language Access Coalition. A comprehensive disaster-specific language access plan will help guarantee that all NEP/LEP residents have meaningful access to disaster preparedness and adaptation services, in line with the Language Access Act.

Existing language access laws and programs allow this proposal to be feasible. First, the D.C. Language Access Act requires expanded access and participation in all public services, activities, and programs for LEP/NEP residents. This Act applies to all city government agencies, departments, programs, contractors, and grantees, including the DOEE.

Second, the Act established the Language Access Program, based out of D.C.’s Office of Human Rights. The Program works with city agencies to ensure that all LEP/NEP residents have access to free translation, interpretation, and signage when seeking government services. The Act also designated the D.C. Language Access Coalition as the official third-party consultant to implement the Act, collect data, and conduct outreach. The Coalition is an alliance of 41 community-based and civil rights organizations focused on language access rights and other social justice issues affecting local immigrant communities. The Program and Coalition will prove indispensable in implementing the proposed language access plan specific to climate adaptation.

 

Drawbacks

Creating a climate disaster language access plan will require time, financial resources, and stakeholder support. First, the community-based organizations that make up the D.C. Language Access Coalition are already strapped for resources. The Coalition will need additional funding to implement the plan. Second, the plan will take time and resources away from city agencies, which are currently at capacity. Both the DOEE and the D.C. Office of Human Rights will need to devote resources to complete this project. Third, the Coalition and the city government will need stakeholder support to meaningfully engage the community in identifying and addressing the climate adaptation and preparedness needs of LEP/NEP residents.

 

Policy in Practice

The Urban Institute offers helpful recommendations in its study, Ten Years of Language Access in Washington, D.C. For example, the Institute suggests that D.C. expand data collection and analysis, invest in multilingual personnel, improve quality and accessibility of language services and materials, and develop targeted community engagement.

These recommendations apply to two of the four action areas in Climate Ready D.C. First, within the transportation and utilities area, the plan aims to increase the resiliency of communication systems before, during, and after a disaster. The city can mirror Frontline Resource Institute’s Communication Plan for Building Community Resilience to build a strong communication network by using the appropriate language and the specific communication platforms most used by impacted residents. FEMA’s Language Access Policy would also help employ various types of language assistance, including oral language and written translation.

Second, for the neighborhoods and communities action area, Climate Ready D.C. should incorporate emergency preparedness and planning for climate-related events with a focus on the most vulnerable communities. To do so, the proposed plan must prioritize language access services for individuals most at risk of climate change disasters. Using mapping tools (such as the U.S. Climate Vulnerability Index) and improving data collection are necessary steps to identify priority communities and their specific language needs.

Lastly, the plan must incorporate ASL services in addition to spoken language services. The city is home to a thriving deaf community, with over 20,000 deaf and hard-of-hearing residents. While the D.C. Language Access Act does not require the right to ASL services, Climate Ready D.C. has a responsibility to reflect the needs of deaf and hard-of-hearing residents. Vermont Agency of Natural Resource’s draft Language Access Plan serves as a model for incorporating non-spoken languages into climate plans.

 

Conclusion

Our nation’s capital is a multilingual city that needs a multilingual solution to climate change adaptation. For this reason, the DOEE must incorporate a specific language access plan for spoken and non-spoken languages within the Climate Ready D.C. Looking to other language access plans and building on the city’s existing language access infrastructure, the D.C. Language Access Coalition will play a vital role in implementing the proposed plan. D.C. has a duty to ensure all individuals of varying English proficiency and communication needs have meaningful access to climate adaptation and preparedness resources. Their lives—and ours—depend on it.

EcoPerspectives Blog

Ecosystem Services in Agency Cost-Benefit Analysis

By Elizabeth Hein, Staff Editor for the Vermont Journal of Environmental Law

May 3, 2024

 

On February 28, 2024, the White House issued guidance on how to evaluate ecosystem services in agency cost-benefit analysis. The guidance seeks to help agencies better assess the benefits of ecosystem services throughout agency decision-making.

The guidance defines ecosystem services as “contributions to human welfare from the environment or ecosystems.” This definition is broad; the guidance makes clear that agencies should consider benefits stemming from ecosystem services in relation to how they affect other environmental costs and benefits.

 

I. What are Ecosystem Services?

The term “ecosystem services” refers to several different services, or benefits, that people receive from nature. There are four types of ecosystem services: provisioning services, regulating services, cultural services, and supporting services. Ecosystems provide people with food, drinking water, timber, plants, and several other resources. Ecosystems also provide regulating services, such as plants turning carbon dioxide into breathable oxygen through photosynthesis. The National Wildlife Federation describes ecosystem services as crucial because “[e]cosystems provide many of the basic services that make life possible for people.”

 

II. Ecosystem Services are Hard to Monetize

Ecosystem services are hard to quantify. How do you measure the dollar value of bees pollinating flowers? Or the dollar value of tree roots holding soil in place?

A major difficulty is that each type of ecosystem service requires different data or information to calculate a dollar value. Certain services are easier to calculate. For instance, the dollar value of timber that a forest provides is easily calculable. The value can also vary by location. Some locations, such as a city with high levels of air pollution, might value plants that clean the air more than a rural town.

 

III. Agency Cost-Benefit Analysis

Federal agencies must weigh the costs and benefits of regulations that the agency expects will have large economic effects. Agencies use this cost-benefit analysis to justify their decision to adopt a regulation. This cost-benefit analysis is not the only determinative factor; agencies consider other factors, such as the policy priorities of the President. The cost-benefit analysis weighs the dollar value of the costs of a regulation against the dollar value of the benefits of the regulation. This results in a clear numerical value that answers the question: do the benefits truly outweigh the costs?

Economic cost-benefit analysis suffers from a major flaw. Without accounting for ecosystem services, these cost-benefit analysis have a strong methodological bias against environmental policies. Failure to include the value of ecosystem services results in agencies treating these services as if they are worth nothing.

That is not to say that agencies completely fail to consider ecosystem services or other environmental benefits—the National Environmental Policy Act requires that agencies consider environmental impacts of major agency actions. There have also been previous collaborative agency efforts to evaluate ecosystem services. For instance, the National Ecosystem Services Partnership created a guidebook for agencies that engage in land management. This guidebook provides “credible approaches for incorporating ecosystem services into natural resource planning and management.”

 

IV. Pros and Cons of the White House Guidance

The numerous benefits of the White House guidance outweigh the costs, or challenges, that the guidance imposes. Overall, the guidance will ensure that agencies consider the effect of regulations on ecosystem services. The guidance states that when agencies consider alternative actions that may cost less or result in increased benefits, the agencies should “consider developing alternatives that generate additional services.” This guidance also applies to all federal agencies, not just those involved in environmental regulations.

Accounting for ecosystem services does not guarantee that agencies will create regulations that better protect these essential services. In addition, given the challenges of developing a dollar amount of the benefits provided by an ecosystem service, there is limited data that agencies can rely on. Finally, the guidance confines agency consideration of environmental benefits to ecosystem services. The complexity of our environment cannot easily be defined or quantified.

 

V. Conclusion

The inclusion of ecosystem services in agency cost-benefit analysis represents a massive shift in how agencies evaluate the environment. Although the White House’s guidance does not mandate that agencies adopt regulations that benefit ecosystem services, the guidance does provide a pathway to ensure that agencies consider the complexities of the environment. Agencies must now evaluate how regulatory decisions will affect ecosystem services.

EcoPerspectives Blog

Well, Well, Well, Well, How the Water Tables: How Recent Court Decisions Have Replenished Hope for Dwindling Aquifers in the West

By Elle Elliot, Staff Editor for the Vermont Journal of Environmental Law

May 3, 2024

 

I. Introduction

The western United States is facing a severe groundwater crisis that poses significant threats to the region’s water resources and ecosystems. Groundwater depletion is leading to declining water tables, the lowering of lakes and drying of perennial streams, and land subsidence. Groundwater depletion is primarily caused by excessive extraction for agricultural irrigation. As the demand for water increases to meet the needs of a growing population, groundwater resources are being tapped at unsustainable rates across the West. However, the Idaho, Nevada, and Montana judiciaries have recently pushed back against unchecked groundwater withdrawals in landmark state supreme court decisions.

 

II. Groundwater Depletion Threatens Existing Resources

A. How Is Groundwater Generally Regulated?

Groundwater is regulated separately from surface water in the United States. Despite the undeniable scientific connection between groundwater and surface water, legally groundwater regulations exist apart from surface water regulations. While there are some federal laws that extend protection to groundwater—like the Federal Safe Drinking Water Act, Toxic Substances Control Act, and Resource Conservation and Recovery Act, to name a few—generally, individual states maintain control over how groundwater is allocated within their respective borders.

Many western states—like Idaho, Montana, and Nevada—rely on a water allocation system that combines the doctrine of prior appropriation (“first in time, first in right”) with the beneficial use doctrine (“use it or lose it”). This essentially means the first person to appropriate water from a resource has an undisputed right to the resource, so long as the water use has purpose. Subsequent appropriators may also draw from the water source, but their use cannot interfere with the use of those people holding senior water rights. Idaho, Nevada, and Montana follow the doctrine of prior appropriation.

B. Groundwater Depletion is a Threat to the West’s Way of Life

The western United States is home to some of the most productive agricultural regions in the nation. Groundwater has been a critical resource for irrigating crops and sustaining the region’s agricultural economy. However, decades of over-extraction of groundwater have led to a steady decline in water tables. In some areas, groundwater levels have dropped by hundreds of feet, leaving many wells dry. Moreover, groundwater depletion has a devastating impact on agriculture. As groundwater levels drop at an alarming rate, farmers may find it increasingly difficult to irrigate their crops, leading to reduced yields and increased food insecurity. This, in turn, can have a ripple effect on the economy and the livelihoods of millions of people.

Though the groundwater crisis is a serious threat to the region’s water security, there are still many people who oppose any sort of government regulation restricting pumping for agriculture and industry purposes. From Kansas to Nevada, California to Montana, farmers, miners, and real estate developers continue lobbying for relaxed pumping standards as applied to their respective industries and block key legislation imposing limits on groundwater usage. Despite data urging immediate protection of this invaluable resource that may be irreplaceable–at least, irreplaceable within our lifetime–industry opposition remains steadfast. Control, at least in several western states, remains firmly in the hands of agribusiness and mining operations.

 

III. Courts Defend States’ Rights to Manage Aquifers

The future is not yet fixed: regaining protection for aquifers may rest on decisions of state supreme courts. A recent string of court decisions out of Idaho, Nevada, and Montana indicate that state judiciaries are beginning to push back against legislative indifference to the groundwater crisis. Since January 2024, courts from these respective states have irrevocably altered the landscape of aquifer conservation by ruling in favor of granting states with more power to regulate this resource.

A. Idaho

Early in January, the Idaho Supreme Court confirmed the power of state officials to limit, or even prohibit, groundwater drawing from wells in order to protect the state’s dwindling water supply. During a drought in Wood River Valley, a district court adjudicated water rights. The Director of the Idaho Department of Water Resources concluded that, due to the impact on senior water rights, the aquifer lacked sufficient water to satisfy junior water rights. In its decision, the Idaho Supreme Court found that the Director had the authority to initiate administrative proceedings and did not violate the prior appropriation doctrine.

The New York Times’ investigative team conducted a comprehensive research study, revealing that Idaho has been grappling with one of the most acute rates of groundwater depletion in the nation. This alarming trend largely stems from agricultural practices, which have become the cornerstone of the state’s economy. However, a significant shift in the water allocation paradigm may be on the horizon thanks to the landmark ruling issued by the Idaho Supreme Court in January of this year.

B. Nevada

On January 25th, 2024, in a dispute between real estate developers and state water agencies, the Nevada Supreme Court found in favor of the state agencies, ruling that Nevada’s government can manage groundwater for the public interest and the preservation of senior water rights. The court also held that the state could restrict new groundwater pumping if the pumping will impact other users and wildlife. Specifically, this decision reaffirms Nevada’s authority to change how groundwater is regulated, which includes the power to alter how basin boundary lines are drawn and managed.

Environmentalists herald the Nevada Supreme Court’s decision as a “win” for water law. For the first time in the state of Nevada, and in the Southwest, state regulators can consider surface water and groundwater as a unified resource. The Supreme Court’s ruling establishes the precedent that the state can take actions in regions confronting droughts and ecological challenges pertaining to water if the scientific evidence supports the decision. This development is a significant triumph, and environmental advocates and water suppliers contend that it will have a positive impact on the future of Nevada’s groundwater allocation.

C. Montana

Finally, in February 2024, a judge in Montana said “no” to further housing development in one of the state’s most water-stressed valleys. Like the case in Nevada, the lawsuit arose from tension between long-standing valley residents and real estate developers looking to build more housing. The ruling found that state officials failed to impose adequate limits on constructing new homes that rely on groundwater. The judgment rests at the heart of current public policy because it aims to strike a thoughtful balance between the requirement for adequate housing and the need to ensure sustainable water usage. Sustainable groundwater usage is essential for the health of ecosystems and human well-being.

 

IV. Conclusion

The consequences of groundwater depletion are numerous and severe. Declining water tables can result in the drying up of wells, reduction of water in streams and lakes. Over-pumping groundwater leads to bodies of water falling below the necessary depth that streamside or wetland vegetation need to survive. The overall effect is “the loss of riparian vegetation and wildlife habitat.” Excessive pumping of groundwater can also cause the land to subside as the underground water is withdrawn from its reserve, damaging infrastructure, disrupting transportation systems, and increasing the risk of flooding in the areas where the ground receded. In some cases, groundwater depletion can even lead to the formation of sinkholes.

With the recognition of the urgent need to address declining groundwater resources, state and federal governing entities may initiate the implementation of more stringent protective measures. Recent developments in Western states have provided an indication of the potential shift in policy. Notable court decisions in Nevada, Idaho, and Montana have significantly bolstered the authority of states to regulate excessive groundwater extraction, taking steps toward sustainable groundwater management in the West.

EcoPerspectives Blog

The Last Frontier is Shrinking: How the BLM Can Mitigate Climate Impacts in Alaska

By Caroline Smith, Staff Editor for the Vermont Journal of Environmental Law

May 3, 2024

 

For some people, beautiful states like California and Hawaii are the ideal vacation; many people want nothing more than to sit on a beach and roast away in the sun. But others, however, feel the exact opposite. Alaska—the coldest and northernmost state in the U.S. by a longshot—is the ideal vacation for many cold-loving adventure-seekers. The state of Alaska is home to many tourist activities—such as whale watching and cruises—and, before the pandemic, over 50,000 Alaskans relied on a form of tourism for their income.

Although the forms of tourism that support Alaskans vary widely, most people visit The Last Frontier for its wide array of outdoor recreation opportunities. Alaska is home to twenty-three national parks with 1.9 million visitors, 70 million acres of Bureau of Land Management (BLM) land, and innumerable other federal, state, and private lands available to tourists to engage in just about any outdoor recreation activity they can think of. From the tundra to the wetlands, tourists and Alaskan residents alike often experience nature in its diverse forms in Alaska.

But how much longer will Alaska’s diverse landscape exist for people to enjoy? Alaska is bearing the brunt of climate change compared to the rest of the US: Alaska is warming at a rate 2-3x faster than the global average. The impacts of this expedited warming include landscape degradation, reduced fish stocks, and diminished access to wildlife. These impacts have and will continue to damage infrastructure, economies, food security, and indigenous communities in Alaska. And, notably for cold-loving adventure-seekers, climate change will increasingly damage the tourism industry in the state.

The general understanding is that climate change is a real, global issue that cannot be solved by the state alone. However, that does not mean that governmental bodies working within Alaska are defenseless against the warming climate. As mentioned, federal agencies manage a large portion of Alaska, including the 70 million acres of BLM land. BLM governs these 70 million acres under a multiple-use and sustained-yield (MUSY) approach, per the Bureau’s organic act: the Federal Land Policy and Management Act. Under this law, a MUSY approach requires managing land so it can both meet the needs of all generations—current and future—and achieve an output of renewable resources.

The BLM can help defend Alaska against climate change by following its MUSY directive. Due to the exacerbated effects of climate change in Alaska, future generations are becoming less and less likely to reap the natural benefits of the BLM’s land in Alaska. With this aggravating factor, the Bureau has adequate grounds to alter its land management balance by tweaking its multiple uses to increase the likelihood of sustained yields.

Oil and gas development—a common BLM land use in Alaska—is a large contributor to climate change and needs to be minimized to prevent the earth from warming to catastrophic levels. In other words, there will not be a sustained yield of any renewable resource for future generations if oil and gas use continues the way it has been. Thus, to maintain Alaska’s sustained yield, the BLM must lessen the use of land for oil and gas development.

The BLM likely cannot abandon its multiple-use and sustained-yield directive to completely rid its land of oil and gas. It can, however, balance its uses differently to help achieve sustained yields for more generations. Practically, this would require the BLM to greatly reduce its allowance of oil and gas development on its land, while maintaining other, less environmentally detrimental uses. This change would reduce carbon emissions and ecosystem habitat that drives climate change, which would, hopefully, slow down the accelerated speed of climate change in Alaska.

This change, however, is not as simple as the MUSY mandate makes it seem. Although reducing oil and gas development in Alaska would help guarantee a sustained yield, the BLM has been administering oil and gas leasing programs in Alaska since the 1950s—and has ramped up operation in recent years. Furthermore, the federal courts in Alaska seems poised to uphold BLMs expansion of oil and gas development. Although it seems that Alaska is inextricably intertwined with oil and gas, a modern, common-sense reading of BLM’s MUSY mandate provides an adequate beginning for the end of oil and gas in Alaska. And notably, a shift in perspectives on BLM’s MUSY mandate would maintain the public’s ability to enjoy outdoor recreation on The Last Frontier.

EcoPerspectives Blog

Wearing Fast Fashion to the Environment’s Funeral: The Need for Conscious Consumers

By Baileigh Schrader, Staff Editor for the Vermont Journal of Environmental Law

May 3, 2024

 

The Lifecycle of the Fashion Industry

In the fashion industry, people buy clothes one day, wear them the next day, and discard them the day after. This fast paced, multifaceted, recurring cycle is known as “fast fashion.” Merriam-Webster defines “fast fashion” as “an approach to the design, creation, and marketing of clothing fashions that emphasizes making fashion trends quickly and cheapy available to consumers.” The “fast fashion” process strips the Earth of its limited resources, enables workforce exploitation in the fashion industry, and pollutes the air and waterways.

The fashion industry produces roughly 150 billion pieces of clothing a year. On average, each piece of clothing is worn ten times before being disposed of. Eighty-seven percent of the 150 billion garments produced yearly end up in a landfill where they are either burned or buried. Only 1% of clothing is recycled.

Fashion trends come in waves. These trends include popular styles, colors, and prints. However, more often than not, these trends do not last long. Roughly one year is the lifetime of a fashion trend, with it resurfacing twenty years later. To keep up with what fashion trends are popular at the moment, many individuals turn to cheaper, more affordable sources of the trending pieces. Companies offering cheaper options are often less environmentally conscious of their production processes.

 

Disastrous Implications of “Fast Fashion”

Water is the most-used  resource during the garment production process. One cotton shirt requires nearly 700 gallons of water and a pair of jeans requires 2,000 gallons. The fashion industry’s water use does not stop there; it continues throughout the lifecycle of the garment. This includes the dyeing process where it is common for toxic dyes to leak into streams, ditches, and groundwater. The production process is also extremely energy intensive. Every stage, from processing yarn to distributing clothes to consumers, requires energy consumption.

The fashion industry accounts for about 40% of all carbon emissions, largely due to the production of synthetic fibers. One of the most common synthetic fibers is polyester which makes up roughly 70% of all clothing produced. Carbon dioxide is the largest source of greenhouse gas emissions, contributing largely to climate change and global warming. Thirty-five percent of all microplastics found in the ocean originate from the fashion industry. When consumed by marine animals, microplastics cause malnutrition, inflammation, reduced fertility, and death—depleting biodiversity.

 

What Does Being an Ethical Consumer Look Like

Now the big question is what individuals can do to become ethical fashion consumers. There are several steps that consumers can take to fight against “fast fashion.” First, consumers must educate themselves on the negative environmental impacts of the “fast fashion” industry. Learning about the impacts of “fast fashion” on the environment will bring awareness to the industry’s pollution, exploitation of workers, and its use of natural resources. Understanding the purpose behind becoming ethical consumers will encourage consumers to choose quality over quantity and to shop secondhand when possible.

Second, consumers can support ethical brands that prioritize sustainability and transparency in their supply chains. Sustainable brands are becoming more common as individuals become aware of the disastrous effects of fast fashion pollution. Ethical brands seek to use recycled materials, participate in eco-friendly practices, and minimize their waste and energy usage.

Third, consumers should shift their fashion thinking from trend-driven to timeless-driven. Consumers shifting away from a trend-driven mindset will reduce overall consumption. This will cause consumers to invest in high-quality fashion pieces that are durable and versatile, outlasting the one-year lifecycle of trend pieces. In turn, less clothing will end up in landfills.

Furthermore, it is essential for consumers to recognize the very origin of where the pieces of clothing they purchase comes from. Much of the “fast fashion” industry begins in countries such as Bangladesh. These countries hire primarily poor women to work in dangerous conditions. Some of the most common dangers in factories that produce clothing include machinery and chemicals. Therefore, a large piece of becoming an ethical fashion consumer involves supporting fashion brands that pay employees a fair wage and offer safe working conditions.

 

Conclusion

Becoming an ethical consumer does not require a person to lose their sense of style. Instead, it asks the consumer to think about the long-term environmental effects of the clothing they choose to purchase. Together, consumers can make the environment the ultimate fashion enthusiast.

EcoPerspectives Blog

Action to Protect Public Health and the Environment Must be Taken PFAST

By Ashton Danneels, Staff Editor for the Vermont Journal of Environmental Law

May 3, 2024

 

Non-stick pans, waterproof clothing, popcorn bags, and firefighting foam, what do these items have in common? They all contain PFAS.

Per- and polyfluoroalkyl substances (PFAS) have garnered significant attention in recent years due to their ubiquitous presence in various consumer products and the detrimental health effects associated with exposure. Scientific evidence indicates a connection between PFAS contamination and health effects such as elevated cholesterol levels, kidney cancer, ulcerative colitis, thyroid disease, testicular cancer, and pregnancy-induced hypertension. These “forever chemicals” have posed a significant challenge to regulators and communities alike, prompting decisive action to mitigate their adverse impacts. PFAS stand out due to their unique chemical structure, to make a PFAS molecule, you replace hydrogen with fluorine in a carbon chain. This alternation makes PFAS incredibly persistent and resistant to degradation, as breaking a carbon-fluorine bond requires substantial energy. This distinct structure sets PFAS apart from other chemicals and contributes to their persistence in the environment. Because of this persistence and the fact they are used in so many consumer products, making their way into water supply; 98% of 99% of people have PFAS in their bodies. Currently, the EPA is only able to regulate 29 of the nearly 15,000 synthetic chemicals. This blog post delves into PFAS regulation and the significance of these efforts in safeguarding public health and the environment.

 

Understanding PFAS

Manufacturers have been producing and utilizing PFAS, which are synthetic chemicals, in a wide array of industrial and consumer products since the 1940s. From non-stick cookware to waterproof clothing, PFAS have found their way into countless everyday items due to their desirable properties such as water and stain resistance. However, their persistence in the environment and bioaccumulative nature have raised concerns regarding their long-term effects on human health and ecosystems. These compounds endure long after their initial use, accumulating in the bloodstreams of people and animals worldwide. The true extent of PFAS contamination in water, soil, and air is still undetermined.

 

The Regulatory Landscape

Efforts to regulate PFAS have intensified in recent years, driven by mounting evidence of their harmful effects and growing public awareness. The EPA has recognized the urgent need for action but has left most regulatory measures up to the states to take action to address PFAS contamination and protect their communities from exposure. Particularly, the Biden-Harris Administration has prioritized the issue, recognizing the urgent need for action. For example, the Administration has proposed the first ever national drinking water standard , which will set enforceable levels for six PFAS that are known to contaminate drinking water. There are also efforts by the Administration to understand the difference sources and pathways of human exposure to PFAS, which is important in the mitigation effort. They have also created a PFAS strategy team, hopefully these efforts will create actionable steps to address this pervasive problem.

 

Proposed Rules by EPA

The EPA has proposed a rule in February, 2024 aimed at bolstering its approach to tackling PFAS pollution:

Modification of Hazardous Waste Definition: The EPA is proposing to modify the definition of hazardous waste under the Resource Conservation and Recovery Act (RCRA) to ensure clearer authority for addressing emerging contaminants like PFAS. The proposed rule includes defining nine specific PFAS (including PFOA and PFOS) as hazardous constituents under RCRA. This stems from EPA’s evaluation of scientific studies, confirming these six PFAS exhibit toxic, carcinogenic, mutagenic, or teratogenic effects, meeting the standard of a hazardous constituent. If finalized, facilities subject to RCRA corrective action requirements will be required to consider and potentially remediate these PFAS during the cleanup process at treatment, storage, and disposal facilities. This modification would empower regulators to compel cleanup efforts at permitted hazardous waste facilities, thereby enhancing protections for communities and the environment. This proposed rule would mark a good start, as PFAS have not been labeled as hazardous constituents before, meaning they were not as severely regulated under RCRA.

 

Global Concerns and Advocacy

Concerns regarding PFAS contamination have also come to an international forefront. The United Nations has criticized chemical companies like DuPont and Chemours for their role in perpetuating PFAS pollution, particularly in communities such as those along the lower Cape Fear River in North Carolina. In response to a complaint filed with the UN about the PFAS contamination in the drinking water by Clean Cape Fear, a community action group, the UN has issued letters to the chemical manufacturers, citing human rights violations. This continued advocacy work will hopefully begin to hold the chemical manufacturers liable for the pervasive problem of PFAS contamination. The UN’s scrutiny highlights the need for concerted efforts to hold polluters accountable and prioritize the rights and well-being of affected populations.

 

Legislative Action and Community Advocacy

In addition to regulatory measures, proponents have proposed legislative initiatives to comprehensively address PFAS contamination. The bipartisan PFAS Action Act represents a significant step forward in this regard. The proposed legislation seeks to establish national drinking water standards for key PFAS compounds, designate PFAS as hazardous substances, and implement measures to mitigate contamination and protect vulnerable communities. Additionally, it will accelerate the designation of certain PFAS as hazardous substances, set discharge limits on industrial releases which will prohibit unsafe incineration, and require comprehensive health testing. It also includes provisions for assisting schools and childcare facilities in addressing PFAS contamination and ensuring manufacturers provide reference standards to expedite mitigation efforts. Endorsed by various environmental organizations, such as the NRDC, the PFAS Action Act reflects a collaborative effort to enact meaningful change and safeguard public health.

States are actively safeguarding individuals from PFAS exposure, with 28 states implementing 141 policies and 34 states introducing 277 policies to protect residents from contamination. For instance, New York enacted legislation mandating manufacturers of children’s products containing hazardous chemicals to notify both the state and retailers, leading to a ban on PFAS-containing products. In 2023, a proposed bill required disclosure of PFAS chemical amounts in discharges into state waterways by publicly owned treatment works and industrial waste dischargers. Another bill aimed to prohibit the sale of covered products, including textiles, rugs, cookware, and cleaning products, containing PFAS. These actions underscore how  are leading the charge in regulating PFAS and reducing human exposure.

 

Conclusion

The regulation of PFAS represents a multifaceted endeavor encompassing regulatory, legislative, and advocacy-driven approaches. As scientific understanding of PFAS continues to evolve and awareness of their impacts grows, stakeholders must remain vigilant in addressing this pervasive environmental and public health challenge. Implementing robust regulatory frameworks, enacting supportive legislative, and fostering community engagement can help us strive towards a future where we effectively manage the risks associated with PFAS.

EcoPerspectives Blog

Uncovering New Opportunities in Environmental Law

By Alejandra Mendoza, Alexandra Haymons, Chase Hetler, Valerie Xiong*

May 1, 2024

 

Introduction

American environmental law has made tremendous headway over the last 50 years. For example, federal laws now regulate commercial fishing, promote clean water, and support renewable energy development. These federal regulations complement numerous examples of decentralized and nonstate environmental governance, including using climate networks and coalitions to build urban resilience against climate change. Despite this progress, American environmental laws across scales and environmental regimes face at least four common challenges that constrain their efficacy: legal and statutory ambiguity, statutory interpretation approaches, bureaucratic implementation, and barriers to collaboration. As undergraduate students who are surveying the dominant environmental law frameworks that we hope to shape during our careers, we acknowledge these challenges. Nevertheless, we believe that each challenge we highlight also illustrates actionable pathways to strengthen and reimagine U.S. environmental law.

 

Resolving Legal Ambiguity

First, many federal environmental statutes contain vague statutory language that often provides opportunities to deprioritize conservation efforts. The Magnuson-Stevens Fishery Conservation and Management Act (MSA) is a clear example of this vague language. The MSA establishes standards for sustainable fisheries management with a broad goal to sustain, protect, and increase fish populations for food supply, ecosystem health, economic benefits, and community resilience. However, its bycatch standard says “conservation and management measures shall, to the extent practicable, (a) minimize bycatch and (b) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch” without outlining tangible steps to do so. This vague language allows for the continued capture of bycatch in the name of practicality. Since profits tie to commercial fishing efficiency, passive methods that maximize catch and minimize effort are generally the most destructive. Thus, bycatch is not practically avoidable in the current commercial system. As a result, commercial tuna fisheries commonly catch marine megafauna like sharks, dolphins, and sea turtles as bycatch. Although fisheries target elasmobranchs (sharks, skates, and rays), more than 50% of their decline is due to bycatch.

 

Therefore, the MSA and accompanying regulations must clearly define necessary changes in the commercial fishing industry, such as gear modifications and passive gear observation, to achieve its stated objective of reducing and eliminating unsustainable bycatch. As the MSA demonstrates, American environmental law benefits from the presence of many comprehensive environmental statutes; embracing opportunities to clarify indistinct language in alignment with the purpose of these laws can eliminate loopholes and strengthen the frameworks that we already have.

 

Reforming Statutory Interpretation

Second, the ambiguous language in many American environmental laws means that many environmental lawsuits function as venues for contesting statutory interpretation. In environmental litigation, technicalities as narrow as a single term’s definition or “plain meaning” can determine the rigor of environmental protection. For instance, “navigable waters” and “waters of the United States” in the Clean Water Act (CWA) have been heavily debated for decades. In the landmark, unanimous United States v. Riverside Bayview Homes, Inc. (1985) decision, the Supreme Court declared wetlands “navigable waters” and “waters of the United States,” and attempted to specify this further in the heavily divided Rapanos v. United States (2006) case. But most recently, the court limited wetland protections in Sackett v. EPA (2023) based on a dictionary definition of the word “waters.”

 

Meanwhile, County of Maui v. Hawaii Wildlife Fund (2020) opened the doors for regulating nonpoint source pollution through groundwater, which has historically proven difficult to regulate. In both Riverside Bayview and County of Maui, the Court recognized the CWA’s greater commitment to prevent water pollution and accordingly expanded the definitions of ambiguous terms to fit this purpose. These decisions—reflective of a purposive approach to statutory interpretation—have resulted in increased protection of the nation’s waters amid emerging environmental challenges, when text-based approaches have at best been inconsistent and at worst achieved the opposite. More broadly, purposive approaches suggest an opportunity to strengthen environmental laws, as these approaches revive statutory interpretation practices to allow appellate courts to interpret statutes based on their “spirit” rather than their textual plain meaning.

 

Effective Implementation

Alongside challenges in interpreting existing federal environmental statutes, a third common challenge is how to effectively use statutory frameworks to their full potential. This has become apparent as the Bureau of Land Management (BLM) navigates the challenge of implementing renewable energy on public land under the Federal Land Policy and Management Act and the National Environmental Protection Act. These Acts establish the multiple-use sustained yield doctrine, which allows land use flexibility aligned with renewable energy goals.

 

In 2016, the BLM initiated the Solar and Wind Energy Rule under this framework, which formalized a “smart” approach to renewables on BLM lands and created designated leasing areas (DLAs) for renewable energy. Since 2021, BLM approved 35 renewable energy projects, expecting them to represent 8,160 MW of generation capacity. These projects, however, would only span 23,396 acres, less than one percent of BLM’s total acreage. If BLM allotted its full 870,000 acres to solar DLAs, it could provide enough energy to power over 29 million homes. The BLM has recently proposed several rules to expand renewables establishment, including the Renewable Energy Rule, which would amend the application process and lower rental fees in DLAs. By granting rights-of-way to projects in DLAs, this rule would lead to more efficient project implementation and overcome barriers to transferring federal policy into on-the-ground action. In the case of renewables adoption, maximizing the use of prioritized land for renewables is crucial to reaching energy goals, and streamlining rules to make implementation more efficient will make statutory frameworks more effective. More broadly, this case illustrates the opportunities inherent in promoting rulemaking that can leverage the transformative potential of existing environmental statutes.

 

Promoting Collaboration

Finally, implementing environmental law in a meaningful way requires deep collaboration across governmental scales and jurisdictions. One illustration of this challenge is how many American cities are grappling with questions of how to maximize their ability to achieve climate mitigation objectives while efficiently using resources. One important response to this common challenge is the emergence of climate networks across the U.S., including the United States Climate Alliance. Networked collaboration between cities and other stakeholders enables practitioners to share knowledge, leverage resources, and distill best practices for putting environmental law into action. City climate networks also establish municipal governments as key players who can help to localize national and global climate mitigation measures, and they help to support connected and coherent climate policymaking by jurisdictions that might otherwise regulate in isolation. More broadly, city climate networks exemplify the important, multi-scalar conversations that can allow actors to transcend governmental hierarchies, strengthening and expanding the scope of environmental law.

 

Conclusion

As climate change tests the limits of American environmental law, many of the shortcomings that have appeared suggest opportunities to strengthen its influence and scope. Although individual challenges in environmental law are diverse, ranging from loopholes in fishery management and Supreme Court interpretations to BLM rule implementation and multi-scalar governance, they collectively highlight the range of potential actors and approaches that may support better resolution of environmental challenges. Moreover, while seemingly distinct, the four cases that we present in this article underscore the overarching challenge, and corresponding opportunity, of seeking ways to fully and effectively utilize our existing frameworks in American environmental law and policy.

 

*Contributors:

Alejandra Mendoza: Senior Environmental Studies major, Colorado College

Alexandra Haymons: Senior Organismal Biology & Ecology major, Colorado College

Chase Hetler: Junior Environmental Studies and Political Science double major, Colorado College

Valerie Xiong: Junior Environmental Studies major, Colorado College

EcoPerspectives Blog

The Fad of Ecotourism in India: Discovering Paradise to Creating Purgatory?

By Tejaswini Kaushal, B.A. L.L.B (Hons.) student, Dr. Ram Manohar Lohiya National Law University, Lucknow, India

August 17, 2023

I. Green is the New Black: Analyzing the Boom of Ecotourism

Through the 1900s, the phrase “ecotourism” boomed. It promised sustainable and responsible travel to make people aware and do good for the environment. And as all so-claimed “eco”-friendly things do, it gained significant popularity as a way to experience nature’s wonders while supporting conservation efforts. It garnered praise for raising environmental awareness, sensitizing the next generation, showcasing marginalized communities, preserving endangered cultures, and safeguarding wildlife. India has been one of the biggest benefactors of this trend, and the 2023 Union Budget, coupled with the “Visit India” regime, reflects the government’s continued commitment to empowering this industry.

The World Wildlife Fund defines ecotourism as “responsible travel to natural areas that conserves the environment and promotes the welfare of local people[,]” specifying four essential classifying criteria:

1. Responsible travel to natural areas;
2. Conservation of the environment;
3. Promotion of the welfare of local people; and often
4. Education and interpretation

Now, “ecotourism” has become a misnomer, now representing mere nature tourism lacking its sustainability premise. This leaves us to ponder the question:

II. Will Pseudo-Ecotourism Destroy What it Seeks to Preserve?

Researchers have well-studied the climatic and environmental impact of over-tourism. On this, the CEO of Agoda, an online travel agency in Asia, John Brown, recently commented: “. . . we saw a shift in travel patterns, as people, limited to domestic travel, explore lesser-known areas.” Though this might be a quick fix to decrease overcrowding in the conventional tourist spots, it creates a danger of reducing unobtrusive natural sites to similar travesties. With the increase in demand for ecotourism at such sites, the very premise on which it stands will begin to waver. Owing to the commercial pressures but lacking resources, pseudo-ecotourism emerged, a modified concept that lacks the key sustainability ingredient.

Furthermore, India’s legislative frameworks afford limited protection because of fragmented state-wise tourism policies and the National Ecotourism Policy, 2022 plays a normative function at best. The Wild Life (Protection) Act, 1972, Forest (Conservation) Act, 1980, Environment (Protection) Act, 1986, Coastal Regulation Zone Notification, 1991, Environmental Impact Assessment Notification, 2006, and Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 become applicable, yet the limitations they face in their respective domains also extend to ecotourism, causing emergence of regulatory gaps. However, the Indian judiciary displays a proactive commitment to environmental conservation. In Nagarahole Budakattu Hakku Sthapana Samithi v. State of Karnataka, the Karnataka High Court ordered the handover of a restaurant building under forest conservation law violations. In Union of India v. Kamath Holiday Resorts Pvt. Ltd., the Supreme Court rejected land leasing rights for a restaurant in a reserved forest, emphasizing environmental priority over tourist convenience.

III. Looking Beneath the Green-Coated Surface

a. From Green to Grey

In Costa Rica, illegal traffickers and curious onlookers have threatened the leatherback turtles back to the brink of extinction. In Mexico, the Biosphere Reserve Sierra Gorda faces excessive logging, fires, and deforestation for tourist housing. Ecotourism initiatives in the Galapagos Islands have attracted migrants seeking employment, resulting in increased pressure on local infrastructure and the environment. In India, the 2013 flash floods in the Kedarnath Valley occurred due to a climate-change-aggravated melting of glaciers triggered by hordes of tourists banking themselves in the mountains yearly. In the Himalayas, a study conducted for ecotourism revealed that locals suffered from increased waste generation and water pollution. These incidents illustrate that ecotourism, despite its environmental claims, often disrupts ecosystems, damages fragile habitats, and degrades natural resources through unregulated footfall, undermining the very attractions it aims to preserve.

b. From Eden to Exploitation

The impact of pseudo-ecotourism on the locals is comparable to or even worse than conventional mass tourism since these irreversibly harm culturally sensitive areas. In Columbia and Indonesia, “green grabbing” is an all-too-common phenomenon with the forcible transfer of land ownership from locals under the “environmentalism'” label. Even India witnesses forest and coastal destruction, displacement of indigenous communities, erosion of traditional values, and exploitation without compensation. Without corrective actions, local communities face marginalization and cultural erosion due to the tourism industry’s lure of ‘environmental opportunism.’ For instance, lifting the alcohol ban in Lakshadweep under tourism pressures stirred concerns about adversely affecting the “social fabric” of the predominantly Muslim community.

c. Hogwashing and Greenwashing

While the surge of eco-consciousness post-1992 Earth Summit led to businesses embracing the “green” tag, it also gave rise to “greenwashing,” which distorts environmental objectives for profit using the right buzzwords. Through misleading advertising of tourism packages’ ecological sustainability, travel agencies often hogwash environmentally-conscious tourists and lure them into seemingly eco-friendly trips. For instance, certification programs have gained prominence to accredit environmental commitments and discern authenticity. Nevertheless, the voluntary and market-driven nature of many of these programs, fueled by presumed consumer demand, raises concerns about their effectiveness. Not only do these create apprehension around large corporates dominating the market through money-power, but also showcases an absent universal certification standard since addressing the complex web of local concerns within an international certification framework proves challenging at the moment.

IV. Preserving Nature’s Playground

a. Carrying Capacity Assessments

Drawing from our neighborhood, Bhutan enjoyed sustainable growth with a protected environment until it followed a controlled tourism policy driven by a “high value, low volume” strategy, but it now faces the threat of regarded culture and nature having shifted to a “high value, low impact” strategy. On the other hand, Maldives achieved sustainability by adopting a carrying capacity standard and a 20% limit on building development in the mid-1990s. These measures were prompted by the detrimental effects of tourism, which led to beach erosion aggravated by hard armoring shores and coral reef degradation due to boating, dredging and commercial mining. India does enjoy a precedent establishing the principle of carrying capacity in Forest Friendly Camps Pvt. Ltd. v. State of Rajasthan, where the court limited park visitors and promoted environmentally, economically, socially, and culturally sustainable tourism activities. However, it was an isolated event lacking transnational impact. Furthermore, despite recognizing the importance of Environmental Impact Assessments and introducing policies in 1994, inconsistent limits and guidelines have prevailed across states and over time.

b. Conservation Impact Funds

Sikkim, India reflects a disparity between the government’s tourism plan and the locals’ desire for greater involvement in tourism management, environment conservation, and benefits-sharing, leading to half-hearted plan implementations. Ecotourism revenue-funded cultural impact funds (“CIFs”) can be a prospective solution to support cultural heritage, habitat restoration, and community development. Allocating a percentage of ecotourism revenue to conservation and CIFs can ensure improved and enthusiastic community participation. Additionally, establishing transparent governance structures to ensure effective allocation and management of these funds and involving local communities, NGOs, and relevant government agencies can further community participation.

c. Enhanced Community Engagement

The Peruvian Tambopata and Infierno native communities protect endangered harpy eagles and scarlet macaws while showcasing them to visitors. This expression of autonomy and proactive engagement by local communities has been facilitated through robust support from both local and governmental entities, empowering them to effectively manage local resources, get incentivized for their contributions, and simultaneously promote tourism. Similarly, granting local autonomy in India and promoting community-based enterprises, dialogue platforms, and fair benefit-sharing guidelines can prevent private players from dominating commercial hotspots and ensure equitable benefit-sharing and decision-making. Developing clear guidelines for benefit-sharing mechanisms to ensure that local communities receive fair compensation for their contributions and reinvesting tourism revenues in community development and conservation initiatives is equally essential.

d. Private Party Collaborations

In Peru, Rainforest Expeditions and the Ese’eja community made a joint tourism venture, with a 20-year contract safeguarding community affairs; prohibiting farming, logging, and hunting; and ensuring 60% of profits and shared decision-making. Adopting a similar balance in autonomy, traditions, wildlife preservation, and sustainable tourism by involving private entities to support local initiatives without replacing them is vital for improved implementation.

e. Boosting Village Tourism

Ecotourism, exemplified by the Sirubari Village Tourism Project in Nepal, thrives on smaller enterprises and boarding facilities, termed “village tourism.” The Project promotes homesteads as accommodations through contracts with locals, in turn benefitting tourists and the local community while reducing the need for additional infrastructure. Promoting such a structure through provisions of financial assistance and subsidies to homeowners, converting houses into bed and breakfast facilities, and marketing them through travel agencies and online platforms will ensure long-term sustainability.

f. Adopting a Culture-Preserving Approach

Increasing tourist demands in Ladakh, India, drives up local goods and water prices, while the demand for Western-standard facilities strains their culture’s sustainability. Highlighting the cultural differences creates awareness among tourists to embrace and sustain the locally abundant goods and cultural practices while avoiding actions that disrupt the local culture.

V. Towards greener Pastures

“Only if we understand, will we care. Only if we care, will we help. Only if we help, shall all be saved.”

– Jane Goodall, conservationist

Ecotourism holds immense potential as a tool for conservation, community empowerment, and sustainable development. However, to harness its benefits and prevent unintended negative consequences, it requires a holistic approach. Governments must enforce stringent regulations, conduct carrying capacity assessments, and invest in infrastructure development. Local communities should be active participants, receiving fair economic benefits while preserving their cultural heritage. With responsible management, ecotourism can be a force for positive change, ensuring that paradise remains intact for generations to come. If adoption of a holistic approach that combines preservation, community empowerment, and sustainable harmony are not done, it will leave behind mere green rhetoric in this quest to distinguish genuine sustainability efforts. India’s future steps will be critical in determining whether its natural environment ascends to the heights of paradise or descends into the depths of purgatory.

EcoPerspectives Blog

Does Pollution End at U.S. Borders? – Why U.S. Military Pollution is a Reason for Agencies to Implement the Global Social Cost of Carbon

By Mariah Bowman, J.D. Candidate, 2024, Pace University Elisabeth Haub School of Law

July 31, 2023

The social cost of carbon (SCC) has been the basis for policies such as tax credits for carbon capture technology and zero-emissions credits. This model can represent a domestic or global scenario of climate damage, but many in the United States favor domestic views only. The question is whether the U.S. should account for global damages from climate change in its SCC modeling based on how their emissions exacerbate that global harm. The short answer is yes, the U.S. should account for the global economy in its SCC policies. Based on the country’s international presence through the military, the U.S. should calculate an SCC that incorporates characteristics of the global economy.

The social cost of carbon is an economic tool used to determine how much the cost is, in dollars, of emitting another ton of carbon dioxide into the atmosphere. As carbon dioxide builds up in the atmosphere, it also traps heat surrounding the planet. The damage this heat creates is SCC. In other words, it is the quantitative benefit of reducing one ton of carbon dioxide emissions. Economists and policymakers use SCC to analyze the costs and benefits to environmental policies since carbon emissions are not reflected in market prices. Estimates of economic damages from climate change are approximately $1.7 trillion each year by 2025 and $30 trillion each year by 2075 if the status quo remains unchanged. If the temperature eventually reaches five degrees Celsius, damages will reach an estimated $140 trillion annually and $730 trillion at seven degrees Celsius.

The U.S. military has carried its carbon footprint across the globe for over a century, and because the U.S. is not a party to the Kyoto Protocol, the military does not have to report its emissions. The military may not have to report emissions to global institutions, but its stations across the globe leave an impact. The war in Iraq not only destroyed ecosystems, but also elevated rates of cancer for those living in the area. Additionally, the war in Afghanistan caused mass deforestation, and U.S. armed forces released toxic pollutants into the air, causing sickness in Afghans and U.S. veterans. In total, the “War on Terror” released 1.2 billion metric tons of greenhouse gases into the atmosphere, which equates to the emissions of 257 million cars each year. If the U.S. military were a nation, it would be the 47^th largest emitter in the world.

The military has an interest in reducing emissions and mitigating climate change because it predicts climate change will exacerbate current security threats or create new dangers. The Department of the Army released its Climate Strategy in February 2022, and the Department of the Navy released its Climate Action 2030. The problem is that these strategies are not required by statute, and their implementation is up to Congress’ discretion. However, the U.S. Department of Defense releases a different report as required by Section 335 of the National Defense Authorization Act that details the vulnerabilities the military faces as climate change-related events become more prevalent. The DoD’s report explains, “DoD is continuing to work with partner nations to understand and plan for future potential mission impacts. This is a global issue and a number of Ministries of Defense across the world are beginning to plan now for future impacts. . . .” The Department of Defense also released its Climate Risk Analysis in October 2021, detailing international effects of climate change, but it fails to explain how the actions of the military exacerbate those effects. Yet, it does include a map of its global aid missions. A government agency acknowledging that the climate crisis is a global issue and planning to work with other nations to address that issue means the U.S. government should be able to employ a global measurement of SCC to account for the effects of climate change in partner countries.

The argument of arbitrariness may be the strongest obstacle to the implementation of the global social cost of carbon. Courts will overturn an agency’s action if it deems it arbitrary and capricious or seen as unreasonable use of discretion. Courts may even see the act of following executive directions without question or review as arbitrary. For agency action to be reasonable, there must be factual and policy determinations, meaning there needs to be a plausible reason for taking that action and supported with facts. If an agency were to implement a global SCC without an explanation, a court would likely find this arbitrary under the Administrative Procedure Act. Even with an agency’s detailed justification for a global SCC, there are still constraints from the courts because “scientific and economic judgments are overridden by purely political considerations.” The global calculation of the SCC may be ruled as arbitrary because measurements of state-specific impacts on climate change are heavily scrutinized due to political tension.

If the executive branch were to argue that a global SCC calculation would solve international tensions and climate change negotiations, this would likely reduce questioning of arbitrariness. Also, accounting for the duty of preventing transboundary harm could be another counter to arbitrariness. Defending an argument against a hard look review of arbitrariness would need to involve deliberation over its merits, scientific evidence, and institutional capacities. While the method of calculating a global SCC is not unanimously agreed on, it is important for agencies to exhaust all techniques for calculating a range of global SCC, so that it creates a strong record to present in court. Administrative obstacles will remain in the way of implementing a global SCC, but the U.S. should maintain its focus on campaigning for a global SCC because of the impact the U.S. military has beyond its own borders.

EcoPerspectives Blog

Seven Years to Midnight?

By Travis Rosenbluth, Staff Editor for the Vermont Journal of Environmental Law

May 2, 2023

In 2014, scientists of the IPCC agreed that human influence on the climate system is evident. It is a milestone that seems insignificant in 2023; however, as we’ve seen most recently in the medical space, getting experts — let alone scientists — to agree on anything seems like a colossal task. Nevertheless, in the IPCC’s Fifth Assessment Report (AR5), international scientists came to a consensus that, indeed, humans were influencing the world’s climate. Now, almost a decade after AR5 and nine years closer to 2030 (a pivotal year determined by the 2015 Paris Climate Agreement), the old consensus seems to remain but solutions are handicapped. This is a real problem.

More poignantly, this a real problem for up-and-coming Millennial and Gen Z policy makers, environmental lawyers, and activists, all environmentalists (hereinafter, “the Coalition”). Without another new layer of consensus on our situation’s significance, and an achievable goal in mind, any real systematic solution will also be handicapped. This blog post intends to rouse a realignment within the Coalition, one of reasonableness. Some of what is to come may be provocative and contrarian; so, take a breath —but not too deep because the air is full of carbon dioxide.

The main focus is addressing the fatalistic climate of so called “doomerism” that has haunted and captured many young people’s perceptions and activism therein today. We’ve all seen the headlines that this type of theory produces; all one needs to do is google “IPCC warning,” and the news feeds will populate with apocalyptic headlines. These warnings certainly play a part in capturing the awareness of the problem, but for all its capture, the results aren’t as serious. The awareness has increased for sure (which is a good thing). Ask most people, and they will say that we are already living in a catastrophe; just look at the eradication of the coral reefs, the rising sea levels, and melting icebergs.

However, there is hardly any significant legislation passed that one could point to as a real game changer in the fight against climate change (ironically the most significant “environmental bill” to pass through congress recently was the Inflation Reduction Act). Instead, we see things like Greta Thunberg yelling at parliament, and activists are throwing soup on museum paintings. This is the absence of an actual systematic fight to save the environment; in fact, it is an example of helpless activism instead of a reasonable discussion of any strategy. So one must ask, how did we get here?

It is a self-fulfilling and circular equation that we have seen before: identify the problem, make it existential, claim there is only one solution, strawman the side that doesn’t agree, seek uncompromising perfection, get nothing done, the problem continues, and ten years down the road, major contributors are still pumping out GHGs, and no identifiable victories can be shown. Yet where does reasonable consensus come in? Well, there are three camps to this. The two extreme camps highlight the need for the middle camp. The first camp, those who have a blind deus ex machina belief that technology, together with human innovation and ingenuity will save the day, offers nothing reasonable to the debate. The same can be said for the most vocal camp, those who believe that passing the Paris Climate Agreement stated redline is an existential crisis and humans will cease to exist if we do.

A provocateur may say, the argument that the world will be uninhabitable in 2030 as the temperature rises above 1.5º Celsius is as bombastic as the argument that claims, “climate change is a hoax.” The planet will, of course, likely be habitable (caveats included), and humans, in a large capacity, will still be able to live on earth. Regarding policy contribution, if one subscribes to the less reasonable idea that the world will be uninhabitable by 2030 and beyond, there are only two (equally unreasonable) policies: self-preservation or climate-based warfare. We can safely assume that a reasonable public is not voting for the overthrow of the American government and the invasion and conquering of India and China for the sake of roughly 1.2ºC (from their respective emissions). Thus, such existentialism without acknowledging these unreasonable options for achieving certain global temperature rise goals is unproductive and can likely only serve to induce fear.

The lack of consensus building, in addition to a generation of fatalist humans, results in climate based anxiety, fear, and deception, which (in the wrong hands) can be put towards political gain. We’re probably all too familiar with the disingenuous politician who, throughout history, has only ever put forth unrealistic utopian policies, destined to divide or self-destruct. We owe it to ourselves to ask the question of whether the Green New Deal was one such “all-or-nothing” policy and whether there was a more measured and reasonable approach that sowed (even some) progress toward actionable consensus, rather than sowing political division. Similarly, California’s recent executive order to suspend carbon-emitting vehicles may be subject to similar questions and critiques. The cynical argument here is that this is all pandering; both acts allow for the proverbial “can” to be “kicked down the road” toward an overly ambitious and inevitably unattainable goal.

Thus, one must ask, is the assertion that “it gets the conversation going” actually beneficial to the conversation? It has since locked Congress and America in a partisan divide. This gridlock is a natural conclusion when there is not a formidable Coalition with consensus around reasonable, actionable goals. In order to avoid a lost generation amidst a continued lack of reasonable strategy, goals, and merely expecting politicians to pedal ‘silver bullet’ legislation (less likely to pass and more likely to divide), we must demand change.

This change would be a realignment. Any successful social campaign is not won by provocative acts or issuing blame. Rather, such realignment must face harsh truths, evaluate wins and losses, having key figures to promote key initiatives, organized actionable-goals, and realistic negotiation. Yet before all of that, it requires reasonable consensus. Realistic and reasonable ideas can lead to implementation, implementation can lead to momentum, momentum can lead to grander policies, and those policies (if they ever come) can lead to real solutions. Therefore, if we realign our focus reaching a new consensus then we can pivot toward a new reassessment of our collective goals and strive for actionable solutions in our lifetime.