Category: Ecoperspectives

EcoPerspectives Blog

Frack is Whack: Why Hydraulic Fracturing is Bad for People and the Planet

By Kristina O’Keefe, Staff Editor for the Vermont Journal of Environmental Law

March 23, 2022

 

Over the past 20 years, hydraulic fracturing has become the most popular method of extracting natural gas and oil . This process, also known as “fracking,” was discovered back in the 18th century and consists of sending a mixture of water, sand, and chemicals at high pressures which creates cracks within the sediment to release trapped gas and oil . While fracking has benefits such as increasing the availability of oil and natural gas which in turn leads to a decrease in energy prices , the negative impacts that this activity has are far greater than any benefits it supposedly brings . The use of fracking to extract fossil fuels is a very controversial process due to the overwhelming impacts it has in human and environmental health . Some of these impacts include contaminated drinking water, increased air pollution, and environmental degradation . 

 

This year, environmental effects from fracking have been felt in Texas particularly . West Texas is home to the Permian Basin which supplies forty percent of the United States’ oil and fifteen percent of its natural gas . On February 4th, three earthquakes shook the ground of Midland, Texas, a town located within the Permian Basin region . While Texas is a plate boundary that sits on fault lines, this type of seismic activity is unusual for this area because it has been seismically inactive for millions of years . So why after 300 million years of sedimentation build up are these fault lines now so active that “[e]arthquakes in West Texas increased from a grand total of 19 in 2009 to more than 1,600 in 2017 ? ” The answer can be found in the correlation between the time the seismic activity in the Permian Basin began to increase and the rise in fracking activities. The United States Geological Survey reported that this increase in earthquakes in the central United States began around 2009 . Interestingly, the Natural Resources Defense Council also stated that, “of the approximately one million U.S. wells that were fractured between 1940 and 2014, about one-third of those were fractured after 2000 .” The issue however, is not the fracturing of the sediment itself, but the injection of wastewater into the wells that cause the faults to shift . These fracking processes cause damage to the environment much deeper than surface level and the continuation of these activities will only exacerbate the already apparent environmental harms.

 

The negative impacts of fracking do not end with environmental damage, this method of fossil fuel extraction negatively impacts human health as well . The air pollution released during fracking has been linked to headaches, asthma, cancer, birth defects, and more . Also, the wastewater from the fracking process contaminates drinking water supplies in surrounding areas by leaking into aquifers and accidental mishaps such as equipment failure or malfunction . A growing area of concern is fracking contamination’s impact on pregnant woman . Oregon State University conducted a study that found that, “that pregnant women living in close proximity to oil or gas drilling sites in Texas were more likely to have hypertension compared to those who lived farther away .” Eclampsia in pregnant women, a more severe form of hypertension that can lead to seizures, was also found in this study to be elevated in areas near drilling sites . Another study found that pregnant women living near fracking sites have increased risks of preterm births and low birthweights .

 

The impacts that this industry has on the health humans and the environment is quite clear. Continuing these practices despite knowing the effects that many are facing as a result is immoral and irresponsible. Clean sources of energy such as solar and wind are viable alternatives that do not harm our planet and can create jobs that do not sacrifice the health of workers and communities . Fracking should be a thing of the past, and the United States needs to move forward for the sake of our environment and our people.

EcoPerspectives Blog

Climate Change Threatens New England’s Moose Population: States Need to do More

By James Flynn, Staff Editor for the Vermont Journal of Environmental Law

March 22, 2022

 

Climate change is threatening northern New England’s moose population. Moose are the largest members of the deer family and are native to northern New England forests . Moose can stand up to six feet tall at the shoulder and weigh between 500 and 1,000 pounds . Because of their large size and strength, moose have very few natural predators . Despite this fact, the moose population has rapidly declined in the past fifteen years . Climate change is the culprit .

 

 Climate change has led to warmer winters . Consequently, the winter tick population has rapidly increased . In the past, colder winters and snow cover lasting well into the spring kept the tick population in check . This is no longer the case. Unlike other types of ticks, winter ticks do not affect humans . But they are extremely dangerous to moose . Winter ticks are single-host ticks, meaning they remain on a single host throughout the winter season rather than dropping off after a single blood meal . This means a single moose often carries a substantial number of ticks. In fact, a study group found one moose calf to have over 90,000 ticks . Additionally, moose never evolved the grooming behavior found in deer and rabbits leaving them defenseless against tick infestations . The results have been tragic.

 

Winter tick infestations are extremely devastating to moose. Winter ticks feed on a moose’s blood severely weakening the animal in the process . Thus, moose become more susceptible to stressors such as other pests and habitat changes . Although adult moose infested with winter ticks are usually underweight and in general ill health, many survive the infestation . This is not the case for moose calves. Moose calves born in the spring often have a large number of ticks on their body by the time winter arrives . The ticks take so much blood that a calf may need to eat enough to replace their entire blood volume within weeks . If food is scarce, this becomes an impossible task and the calf dies . A three year study found that winter ticks were responsible for seventy-four percent of moose mortality in the studied group, including ninety-one percent of calves . In one recent winter, around sixty-three percent of moose calves in Vermont died, the highest figure on record . Winter ticks were responsible for most of those deaths .

 

State wildlife officials in northern New England are divided on how to solve the moose problem. Some states first responded to the crisis by reducing the number of moose hunting permits distributed each season . But some states are now moving toward a seemingly contradictory approach, allowing more moose hunting . The argument is that reducing the moose population will also reduce the winter tick population . The moose population will be smaller but also much healthier and more sustainable going forward . Another argument in favor of hunting is the fact that a certain number of moose will die from winter tick infestation each spring, regardless of the level of hunting . It is better to harvest these animals in the fall and utilize the meat rather than let them die a lingering death in the spring . This approach may help stabilize the moose population. But states could do much more.

 

Northern New England states should work collaboratively rather than individually in combatting the decline in the moose population. Currently, each state separately manages the moose population in their state despite winter ticks being a region-wide problem . A collaborative approach could include the following actions: an education campaign and new legislation. Together, these two actions could make a big difference in protecting moose from climate change’s impacts. 

 

A collaborative education campaign would bring needed awareness to the moose population decline. The impact that climate change has on certain animal species, such as polar bears, is well documented and likely well known by the average individual . This is not the case with moose. New England states should launch a jointly run education campaign to inform the public about the impact’s climate change has on moose. A successful education campaign could also make the public more likely to donate or volunteer with wildlife preservation organizations and other NGO’s. 

 

New legislation is needed to protect the moose population. Initial legislation could include funding for additional scientific studies on the impact winter ticks have on the moose population. States could use this data to create a regionwide plan. This plan could set goals for states to follow. Finally, the plan could include requirements that should the moose population drop below a set level, they would be declared an endangered species and given additional legal protections. 

 

Together, a collaborative education campaign legislation could improve the lives of moose impacted by winter ticks and a changing climate.

EcoPerspectives Blog

The Infamous Failure of the Eco-Patent Commons and the Quiet Success of the WIPO Green Project: What We Can Learn About Disseminating Green Tech to Developing Countries

By Christopher J. Clugston, Professor, Keimyung University, Daegu, South Korea*

May 20, 2021

Summary: This article reviews the Eco-Patent Commons and the WIPO Green Project, two programs developed to disseminate green tech to developing countries. The failure of the former and the success of the latter are instructive on the best practices in this area.

As the global climate crisis worsens, the need to encourage sustainable growth in the developing world has never been greater. Much of the technology for this sustainable development already exists, but is covered by exclusive patent rights. Because of this, there have been many attempts to develop programs that can facilitate the dissemination and use of existing patented technology for developing and less developed countries. Two significant programs that have attempted to address this are the Eco-Patent Commons (“Commons”) and the WIPO Green Project (“Green Project”). An analysis of these programs is instructive on the best practices in this area.

The Commons was a 2008 initiative spearheaded by IBM, and ultimately joined by twelve additional firms . The Commons was created as a type of patent pool of green technology related patents. In an attempt to create a cohesive and synergistic pool, the patents were limited to a few specific areas of technology: energy conservation, pollution control, environmentally friendly materials, water or materials use, and reduction and recyclability. The firms jointly contributed two-hundred and forty-eight patents, covering ninety-four distinct inventions .  

Most pooling arrangements only cover those that are a party to the agreement. However, the Commons benefited all users of the patented technology. A pledge of a patent to the Commons included an irrevocable covenant to not assert the patent against any third parties for methods or products utilizing the patented technology, as long as they provided environmental benefits. Contributors, however, did retain the right to assert the patents defensively against any company bringing suit.

Although started amid much fanfare, the Commons never lived up to its initial hype . At the time, it was believed that many firms were likely to own green technology that was not being utilized. Thus, this technology had little value to them, but it might hold great potential value to underdeveloped regions. In return for donating this to the Commons, the firm would receive good PR, and also possibly benefit from the further development of its technology. 

The project never caught any traction and began to wind down in 2011, finally ceasing operation in the 2016. A detailed post-mortem on the program found a number of problems with the implementation . First, the Commons was set up by the suppliers (the patent owners) without any input from the potential users of the technology. Second, there was little or no tracking of patent utilization within the program. The problems with this were two-fold. There were no success stories that could be used to promote the program to potential users and there was no valuable PR for the contributors. Finally, and most significantly, the program was entirely run by the private sector on a voluntary basis. There were no fees for participation that could help fund recruitment, provide additional assistance for participants, or go to managing the overall program.

As the Commons was winding down, WIPO started its own Green Project in 2013. This project has been able to avoid most of these issues. Unlike the Commons, the Green Project is not a pooling arrangement. Instead, this project is an online marketplace developed to facilitate transactions between patent owners and green technology purchasers. WIPO is not a participant in the market, or in the transactions facilitated by the market.

The Green Project is distinct from the Commons in a few important ways. First, it includes both the patented green technologies and the reciprocal technology “needs” listings in its database. To further enhance the effectiveness of the program, it also provides matchmaking events and technology exhibitions to bring these groups together . Second, it comprehensively tracks the success of the program, and is able to make adjustments in response to its failures. According to WIPO’s website , the Green Project has developed far beyond the scope of the Commons – with 3,800+ listed technologies, 100+ partners, and 700+ connections made. Further, the Green project continues to grow and be a success; WIPO recently released its WIPO GREEN Strategic Plan 2019-2023 laying out its aggressive growth blueprint over the current four year period. Finally, it is more comprehensive in that it provides access to additional important resources, such as know-how and funding sources. It also helps with patent filings and WIPO Arbitration and Mediation services at a reduced rate.

From the comparison of these programs, we can draw some important conclusions. One, we need to advocate solutions that take input from all interested parties, and that are focused on maximizing the value of the intellectual property assets for both the contributors and the users. The failed Commons attempted to have a royalty-free pool, almost ensuring limited participation of members and modest offering of patent assets. Two, we cannot expect to rely on the private sector, alone, to solve a collective action problem such as this. Public and non-profit entities are necessary to help encourage participation, facilitate the process, track its use, and promote its success stories. These entities should be, as with WIPO, neutral and independent administrators that do not invest, acquire, or exploit the technology. However, considering the enormity of the climate issues we are facing, WIPO Green, and programs modeled after it, can be improved. These programs need to be expanded, and to do so, they will need sufficient funding. Currently, WIPO does not require any fees to register or participate . A fee structure that relied primarily or entirely on more developed countries would help this expansion as well as allowing for subsidies for the less developed countries that need this technology. This would go far toward a sustainable and scalable programs that are necessary to combating climate change.

*Author Bio: Christopher J. Clugston is a professor of law at Keimyung University in Daegu, South Korea. His teaching and research focus on law and technology topics, including those areas where the intellectual property laws overlap with environmental issues.

EcoPerspectives Blog

Don’t Make the Same Mistake Twice

By William Goldberg

August 4, 2020

 

Space is infinite, but earth’s orbits are a finite natural resource that must be managed properly. [1] The problem of orbital debris pollution is complex and serious. [2] Orbital debris, also known as space trash, is an umbrella term to describe non-active satellites and other pieces of spacecraft orbiting the earth. [3] Orbital debris travels at speeds up to 4.3 to 5 miles per second, roughly seven times faster than a bullet, and can cause catastrophic damage to space infrastructure. [4]

 

NASA scientists fear the amount of orbital debris in certain orbits may reach critical mass and set off “a sequence of ever more frequent collisions—a chain reaction that would expand until, within decades, certain portions of Earth orbit would be rendered virtually unusable.” [5] This cascading chain reaction is known as the Kessler syndrome. [6] Popularized in the 2013 film Gravity , the Kessler syndrome poses an apocalyptic and mathematically realistic scenario where critical orbits become permanently unusable. [7] Orbital debris threatens space infrastructure, including the International Space Station, weather satellites predicting dangerous weather systems, military telecommunications satellites controlling drones in warzones, GPS navigation for commercial airliners, satellites supporting financial transactions and internet protocol, and much more.

The existing space law regime is not sufficient to address the growing issues presented by the increasing creation of orbital debris. [8] The space treaties and conventions of the 1960s and 1970s failed to account for today’s rapid growth of technological capabilities in space, especially the proliferation of non-state commercial activity in space. [9] Under current international law, mitigation guidelines are voluntary and there is no enforcement mechanism preventing antisatellite missile tests, which create large amounts of orbital debris. [10] Left unchecked, the lack of an international legal and regulatory framework to provide sufficient guidelines and requirements to space-faring nations may provide an environment under which anti-satellite missile tests proliferate, and the creation of universal externalities in orbital debris continues to expand. Fortunately for the international community, this is not our first rodeo.

The successes and failures of international regulation of ocean waste provide a basis for developing a model for effective regulation of orbital debris. Like earth’s orbits, earth’s oceans are a global common where externalities from marine debris are typically not experienced by the producer of the pollution. Several robust international treaties address ocean pollution, and because orbital debris is created from spacecraft, the best lessons can be learned from the International Convention for the Prevention of Pollution from Ships of 1973 and 1978 (MARPOL).

The International Convention for the Prevention of Pollution from Ships of 1973 and 1978 (MARPOL) was developed to minimize pollution of the oceans and seas, including dumping, oil, and air pollution. [11] Under MARPOL, port states assert jurisdiction over ships in their territorial jurisdiction and over violations that occur at high seas. [12] Countries that are party to MARPOL examine ships at port to verify conformity with international standards and are authorized under MARPOL to detain noncompliant ships. [13]

MARPOL is particularly important for the regulation of marine pollution from ships spilling oil and other harmful substances. [14] As of 2018, 156 states are parties to the convention, being flag states of 99.42% of global shipping tonnage. [15] Because violations of MARPOL can result in detainment of noncompliant ships, and those ships’ potentially valuable cargo, MARPOL forces the compliance of any ship seeking to use the port of a state party to MARPOL without penalty. [16]

MARPOL outlines specific technical requirements that ships at sea must adhere to. [17] And by specific, I mean specific. For example, the maximum capacity of a segregated ballast tank, and any other space within a ship’s cargo tank, must be arranged as to comply with a specific mathematical formula. [18] This formula, among others, requires party states to ensure ships satisfy the required technical specifications under international standards prior to engaging in international transportation of goods. [19] MARPOL is a successful treaty because it requires member states’ ships to adhere to specific technical requirements that serve to establish the international norm. We need to do the same in space.

The Inter-Agency Space Debris Coordination Committee (IADC) is an international forum of governmental bodies for the coordination of activities related to orbital debris and has developed the IADC Space Debris Mitigation Guidelines. [20] The IADC Space Debris Mitigation Guidelines provides a basis for international regulation of orbital debris. Like MARPOL, the technical language of the IADC Space Debris Mitigation Guidelines should be explicitly incorporated into international law and given an enforcement mechanism to ensure compliance. [21]

We cannot wait decades to act like we did with earth’s oceans. [22] The time for an international convention on space trash is now!

[1] Thierry J. Senechal, Orbital Debris: Drafting, Negotiating, Implementing a Convention , Massachusetts Institute of Technology, June 2007, 1, 4 ( http://web.mit.edu/stgs/pdfs/Orbital%20Debris%20Convention%20Thierry%20Senechal%2011%20May%202007.pdf ).

[2] Id.

[3] NASA, Astromaterials Research & Exploration Science Orbital Debris Program Office , (https://orbitaldebris.jsc.nasa.gov) (last visited Nov. 7, 2019).

[4] Id.

 

[5] Matthew J. Kleiman et al., The Laws of Spaceflight a Guidebook for New Space Lawyers 22, 217 (2012); Donald J. Kessler & Burton G. Cour-Palais, Collision Frequency of Artificial Satellites: The Creation of a Debris Belt , 83 J. Geophysical Research 2637-46 (1978).

 

[6] Id.

[7] Id.

[8] Id. at 10.

[9] Thierry J. Senechal, Orbital Debris: Drafting, Negotiating, Implementing a Convention , Massachusetts Institute of Technology, June 2007, 1, 4 ( http://web.mit.edu/stgs/pdfs/Orbital Debris Convention Thierry Senechal 11 May 2007.pdf).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] See id.

[15] Raunek, MARPOL (The International Convention for Prevention of Marine Pollution For Ships): The Ultimate Guide , Maritime Law, Nov. 4, 2019, https://www.marineinsight.com/maritime-law/marpol-convention-shipping/ (last visited Feb. 9, 2020).

[16] International Convention for the Prevention of Pollution from Ships, 12 ILM 1319 (1973).

[17] Protocol of 1978 relating to the International Convention for the prevention of pollution from ships, 1973 (with annexes, final act and International Convention of 1973), U.N., Feb. 17, 1978, Vol. 1340, 1-22484 No. 22484, at 73. https://treaties.un.org/doc/Publication/UNTS/Volume 1340/volume-1340-A-22484-English.pdf.

[18] Id.

[19] Id.

[20] Inter-Agency Space Debris Coordination Committee, IADC Space Debris Mitigation Guidelines , Sep. 2007, (https://www.unoosa.org/documents/pdf/spacelaw/sd/IADC-2002-01-IADC-Space_Debris-Guidelines-Revision1.pdf).

[21] Inter-Agency Space Debris Coordination Committee, supra note 124.

[22] See e.g., Space X, https://www.spacex.com/news.

The post Don’t Make the Same Mistake Twice appeared first on Vermont Journal of Environmental Law .

EcoPerspectives Blog

New Hampshire’s Wetlands: How the N.H. Court in Greenland Eliminated a Key Component for Wetlands Protection

By Andrew Lechner

August 18, 2020

 

In the early 2000s, a developer proposed a large housing development project in the town of Greenland, New Hampshire. [1] The project involved subdividing 212 acres of land into 79 separate housing lots. Of the 212 acres, 85 were protected wetlands, and some wetlands would have to be filled to make way for roads within the development. Accordingly, the Department of Environmental Services (DES) was required to review the project and either grant or deny the developer a permit to fill the wetlands necessary for the project to move forward. The DES ultimately granted a permit to fill 42,350 square-feet of wetlands to make 12 roadways.

 

After the DES granted the permit, the Greenland Conservation Commission (GCC) filed a lawsuit against them. GCC argued that the DES did not correctly review the project’s potential impacts on the affected wetlands. GCC believed that the DES should have looked into more than just the direct impacts from dumping dirt into 42 thousand square-feet of wetlands. Rather, GCC argued that the DES should have considered a wider array of potential impacts on the wetlands, including the impacts from all of the construction that would take place. The key to GCC’s argument was that the “upland” construction components of the proposed project would negatively impact the surrounding wetlands (from things like habitat fragmentation and stormwater runoff), so the DES should have considered such impacts.

This issue made its way to the New Hampshire Supreme Court, in which the court dropped a bomb of a ruling against New Hampshire’s wetland protection. In Greenland Conservation Com’n. v. N.H. Wetlands Council , [2] the court took the stance that any and all development activities are irrelevant for the sake of wetland impact review, unless the activity is physically conducted within a wetland. The court effectively limited the DES’s review authority as such, so the DES cannot look at other potential impacts even if it wanted to. This includes indirect and cumulative impacts.

The court’s reasoning behind its decision consists of two key errors, deriving from its reading of the applicable New Hampshire statute: the Fill and Dredge in Wetlands Act (“Wetlands Act”). First of all, the court basically overlooked the purpose of the Wetlands Act. The purpose of the statute is to protect and preserve New Hampshire’s valuable wetland ecosystems from “despoliation and unregulated alteration.” [3] Accordingly, the Wetlands Act invokes a number of criteria in order to receive a permit. However, the court cast aside any reflection of purpose in the statute and instead read its title (“Fill and Dredge in Wetlands”) as a limiting factor for the statute. According to the court, the only activities that the DES is authorized to consider, for the purposes of the Wetlands Act, are fill and dredge activities within wetlands.

Second, the court essentially twists the words within the Wetlands Act to conform to its own reasoning. The court consistently described “construction activities” in its holding, and differentiated between construction activities performed within wetlands, versus construction activities performed anywhere else. The problem, however, is that the Wetlands Act never makes such a distinction. Rather, the Act consistently describes “projects” in a general sense, and only categorizes them as either major or minor projects. The Wetlands Act never expresses any intent to split up development projects into different portions for the sake of wetland review. The court had injected its own term into the statute to back up its limiting decision.

While the fallout from this New Hampshire Supreme Court decision is not currently clear, it undeniably had negative consequences on the State’s wetlands, and still does. Development proposals currently require no wetland impact analysis for any part of a project except that which is directly held within a wetland, and the DES cannot consider any other portion of such project. Without this analysis, wetlands are bound to be negatively impacted from cumulative and indirect impacts that result from risky projects close-by.

 

 

[1] https://caselaw.findlaw.com/nh-supreme-court/1185068.html

[2] Id.

[3] https://www.gencourt.state.nh.us/rsa/html/L/482-A/482-A-1.htm

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EcoPerspectives Blog

The Penumbras and Emanations of Climate Change: The Case for Environmental Constitutionalism in the U.S. Context

By Terry Ann Campbell*, Staff Editor for the Vermont Journal of Environmental Law

August 13, 2020

 

You may have heard that the Ninth Circuit recently dismissed Juliana v. United States for lack of Article III standing. According to the Ninth Circuit, the 21 Youth Plaintiffs failed to show that their claims can be redressed by the judiciary. The Court’s main argument indicates that Congress and the Executive branch would be better mediums for these young Plaintiffs to advocate for the constitutional relief they seek.

Contrary to the Ninth Circuit’s ruling, the Due Process Clause and the Equal Protection Clause were created to do just what the Youth Plaintiffs are vindicating; relief from the effects of climate change and preserving the planet for future generations. Youth Plaintiffs assert in their amended complaint that the government’s actions violate plaintiffs’ constitutional rights, depriving them of life, liberty and property. As such, Judge Josephine Staton issued a lengthy dissent to show her vehement disagreement with the majority ruling. Judge Staton opined that her colleagues should not have dismissed the case because the Youth Plaintiffs provided sufficient evidence to show that they suffered injury as a result of the government’s conduct or lack thereof. She continued that the judiciary was the correct avenue for the Youth Plaintiffs to air their claim because the judiciary has always been the medium that addresses constitutional issues. The dissent agrees with the Youth Plaintiffs that the Due Process Clause and the Equal Protection Clause protect fundamental rights—even those that are not expressly spelled out in our Constitution—because they are deeply rooted in our nation’s history and tradition.

Since the January 17, 2020 ruling, the Youth Plaintiffs, through their attorneys, filed an en banc petition with the Ninth Circuit on March 2, 2020. In the case of the Ninth Circuit, en banc means that the eleven-member bench will be asked to make a final decision on January’s highly controversial ruling.

Yet, for climate activists, Juliana is already a pretty big deal. It is the first U.S. case of its kind to have gained significant media attention. Further, Juliana has put judges in such a conundrum as to whether the Constitution allows for a private right of action to a clean and healthy environment.

At the basis of the Juliana case approach is the concept of environmental constitutionalism. This is the idea that courts must apply Constitutional Law in addressing cases that involve environmental violations especially when they threaten human life or health in some way or another. Environmental Constitutionalism began fifty years ago. There was a growing need to develop a system of environmental protections which take into consideration the future of human interaction with a more sustainable and lasting environment that is safe to live in. Further developments have led scholars to effectively advocate for the practice of incorporating constitutional texts that enforce against environmental violations—including those of a global nature—like climate change.

Environmental Constitutionalism, though novel in the U.S. context, has been applied by many other countries to bolster some of the most important court decisions that affect mankind and the planet. Concretely, Colombia remains the leading example of the difference constitutional protections can make for environmental claims. A  landmark case in Colombia saw the successful efforts of twenty-five young climate activists who carried individual constitutional claims through their country’s courts. The Colombian youth plaintiffs argued before the Constitutional Court that record rapid deforestation in the Amazon occurred between 2015 and 2016. Further, Colombia had already lost forty percent of its Amazonian forest and that the Colombian government—despite knowing of the repercussions—failed to prevent the vast deforestation.  The Colombian youth plaintiffs prevailed, and the Constitutional Court ruled that under the Colombian Constitution, the Amazon, was entitled to protection, conservation, maintenance, and restoration from harmful environmental practices. As you already know, the Amazon is home to many flora and fauna that are pivotal in maintaining the stability of our planet.

Another groundbreaking case is the Urgenda case which saw a class action decision approved by the Dutch Supreme Court. That Court ruled that the Dutch government has human rights obligations to its population to aggressively tackle the effects of climate change.

Furthermore, several countries like Cote d’Ivoire, Dominican Republic, Ecuador, Thailand, Tunisia, Venezuela, and Viet Nam have already expressly addressed climate change in their constitutions as a way of advancing climate justice and the right to a healthy environment. Notably, Ecuador has been lauded to be the first country to have rewritten its constitution to include the rights of nature , instead of treating nature solely as property rights.

Even though the Juliana case has been dismissed, this is not the time for climate activists to give up. The U.S. Constitution already has language that protects its citizens from the deprivation of life, liberty and property. Therefore, why not apply the Colombian and Dutch examples to the U.S. context to ensure compliance and enforce against disparate threats like climate change?

The time is right to expand the discussion for a U.S. framework on environmental constitutionalism. Regardless of the outcome of the Ninth Circuit’s decision, Juliana is a revolutionary case that continues to spark ongoing conversations and forge new precedent.

*Wah gwaan – Hello everyone! My name is Terry Ann Campbell and I am a 3L at Vermont Law School who will graduate in May 2021. Fun fact, I grew up on the island of Jamaica and I am fluent in French. I am currently pursuing a General Practice Certificate which has allowed me to gain a lot of practical experience in the field of Law. I take an intersectional approach to learning the law and as such, I am interested in the way the law interacts with commercial trade, human rights, and climate justice. Being a Staff Editor on VJEL has allowed me the opportunity to write about environmental issues I deeply care about. It’s been my pleasure writing this blog and I hope you will also find pleasure in reading it. When I am not tackling serious issues, I like to meet new people, go on nature walks, binge watch movies and catch up with old friends and family. Feel free to reach out to me if you have any questions, I would love to meet you!

 

The post The Penumbras and Emanations of Climate Change: The Case for Environmental Constitutionalism in The U.S. Context. appeared first on Vermont Journal of Environmental Law.

EcoPerspectives Blog

Spaceflight and the Environment: NASA’s NEPA Process

By Hunter Sutherland, Editor-in-Chief for the Vermont Journal of Environmental Law

August 3, 2020

 

Every mission, even exploration of other planets, starts with protecting our home, planet Earth .

 

What is NEPA?

Congress enacted the National Environmental Policy Act (NEPA) in 1970 to set the environmental policy for the United States. Major actions by federal agencies that significantly affect the quality of the human and natural environment triggers the procedural process of NEPA.

There are three main initiatives to achieve NEPA’s objective of protecting and enhancing the human environment: (1) to integrate environmental considerations into the planning of Agency actions as early as possible; (2) to ensure the environment, technical, and economic considerations are weighed during decision making and before any actions are taken; and (3) to ensure the decision maker and the public are aware of environmental consequences of proposed Agency actions and that informed decisions are made.

Each federal agency has their own specialized NEPA process, but each follows the same general principles. Typically, the NEPA process identifies issues that need to be addressed, determines alternatives that would correct the issues, studies any potential environmental issues, complies with environmental regulations, and involves the public throughout the process. If the action may have significant environmental impacts, then an Environmental Impact Statement (EIS) will be prepared. If no significant impacts are anticipated or if certain actions have already been determined to not have a significant impact on the human environment, then the action may be Categorically Excluded (CE or CatEx) from the detailed EIS analysis. The use of a CatEx is meant to reduce paperwork, improve efficiency, and eliminate delays in the start and completion of proposed actions with no significant impact. If it is unclear if the anticipated impacts will be significant, an Environmental Assessment (EA) will be prepared. If the EA demonstrates a significant environmental impact, an EIS will need to be prepared, but if no substantial effects are found, the agency will release a Finding of No Significant Impact (FONSI). Preparing an EIR begins with a Notice of Intent (NOI) that provides basic information on the proposed action and possible alternatives. The NOI should identify and invite the participation of interested persons. The next step is to prepare a Draft EIS and to give the public the opportunity to review and comment on the document. Once the agency weighs and incorporates public comments, a Final EIS is produced and a Record of Decision (ROD) is released.

NASA and NEPA

The National Aeronautics and Space Administration (NASA) NEPA Program is managed by their Environmental Management Division and implemented by three federal agencies. NASA’s Senior Environmental Official (SEO) oversees the integration of NEPA into the Agency’s planning and decision making process. Integration of the NEPA process with NASA projects ensures that : (1)  NASA’s commitment to sustainability and environmental stewardship are supported; (2) the public is appropriately engaged in the decision-making process; and (3) procedural risks and delays are minimized. The appropriate level of NEPA review depends on the scope of the Agency’s action and the context and intensity of reasonably foreseeable environmental impacts. NASA would not take an action that would have an adverse environmental impact or limit the choice of reasonable alternatives.

NASA’s Categorical Exclusions

There are several categories of actions that NASA would not need conduct a full NEPA analysis, unless extraordinary circumstances arise. For example, if an action threatens known national natural landmarks, or cultural or historic resources , that would be an extraordinary circumstance that may preclude the use of a CatEx. Specifically, administrative activities, operations and management activities, research and development activities, real and personal property activities, and aircraft and airfield activities are all categorically excluded from the full NEPA process.

NASA’s Environmental Assessments

An Environmental Assessment (EA) will be prepared when an action does not fall under a CatEx and would not likely result in more significant impacts, requiring an EIS. Actions requiring the development of an EA range from on-site construction projects to missions that would return extraterrestrial samples from asteroids, comets, planets, dwarf planets or planetary moons, that have no indigenous life forms.

NASA’s Environmental Impact Statements

An Environmental Impact Statement (EIS) will be prepared when actions might significantly impact the quality of the human environment and when an EA shows that significant impacts may occur which would not be reduced by changes to the proposed action. Actions requiring the development of an EIS range from the development of spaceflight program which uses a nuclear reactor or radioisotope power system to sample return missions where the material collected may contain potential indigenous life forms.

*Hunter Sutherland is currently a 2L at Vermont Law School and is the Editor-in-Chief of Vermont Journal of Environmental Law Vol. 22. Author of The Stakes are Out of This World: How to Fix the Space Act of 2015 , forthcoming 2021. Hunter chose to attend Vermont Law School for their top tier environmental program but has found a great interest in topics ranging from Space Law to Legal Innovation.  Prior to law school, Hunter attended SUNY Oswego and received a bachelor’s degree in Cognitive Science.

 

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EcoPerspectives Blog

Remedying Agency Misconduct

By Alex Spitzer

July 26, 2020

 

The Minnesota Pollution Control Agency (MPCA) secretly took part in an illegitimate and illegal procedure when providing a national pollution discharge elimination system (NPDES) permit to PolyMet. [1]  PolyMet is a foreign company owned by Switzerland’s mining juggernaut Glencore. Fortunately, brave EPA employees blew the whistle and uncovered that the MPCA illegally withheld written comments made by EPA professional staff. These comments expressed major concerns that the permit MPCA planned to issue to PolyMet did not comply with the Clean Water Act. [2] The MPCA clearly and intentionally misrepresented and concealed material facts during the permitting process. The concealment warranted a transfer to Minnesota District Court to review the MPCA’s permitting process and decision. [3] But there has been no indication that the MPCA’s sinister actions will cause the District Court to review and remedy the situation any differently than a typical Administrative Procedure Act (APA) violation. The court, however, needs to recognize the rarity and severity of MPCA’s corrupt actions and address them accordingly.

 

Government agencies commonly engage in misconduct of some sort, which is why Congress created the APA. The APA’s purpose is to “improve the administration of justice by prescribing fair administrative procedure.” [4] No restraint is more important to upholding justice than the restraint of judicial review. Judicial review through the APA advances justice by providing the only avenue to challenge an agency action, finding, or conclusion.   Judicial review enables the courts to review and compel agency action when the court finds a previous agency action improper. The APA lists six categories of agency actions that qualify as a type of misconduct that would allow the courts to intervene through judicial review. [5]

All agency misconduct damages society but not to the same extent. Surprisingly, the APA does not create any guidelines for how to evaluate the severity of the misconduct that it lists. This means there are no procedures in place to ensure that courts respond to misconduct with the appropriate force. However, logically, it makes sense the more severe the misconduct is, the stronger the court’s response must be.  Put simply, bigger problems require bigger solutions; the worse the misconduct is, the more harm it does to society. Therefore, a key aspect of “bigger solutions” to aggressive misconduct is taking proper steps to ensure the misconduct is not repeated.

Now, the big question becomes how to measure the degree of agency misconduct? First, we have to understand what agency misconduct is. At its most basic understanding, agency misconduct is a form of corruption. Corruption is defined as “a departure from the original or from what is pure or correct.” [6] Thus, when an agency initially fails to follow the proper procedures, that can be considered corruption. Corruption and intentional agency misconduct are two sides of the same coin. Therefore, we can use similar metrics to measure the degree of agency misconduct as we would use to measure the degree of corruption.

Fortunately, Zephyr Teachout has already created a way to measure corruption. Corruption is best understood by its context and intent. [7] That is why attitude is a requisite for corruption because it is impossible to separate corruption from a moral failure. [8] Therefore, each potential act of corruption should be examined on an individual basis, like misconduct. Typically, corruption is recognized based on five concepts: quid-pro-quo, inequality, drowned voices, dispirited public, and lack of integrity. [9] Therefore, it makes sense to measure the “corruptness” of an agency’s misconduct by evaluating how intensely it satisfies one or more these concepts. We can use these elements to measure intentional agency misconduct because intentionally agency misconduct impacts society in the same way.

Having said all that, the Supreme Court has created a specific term for acts that should automatically qualify as a severe type of corrupt agency misconduct; that term is “affirmative misconduct.” Affirmative misconduct is one way to describe egregiously wrongful government conduct. [10] Affirmative misconduct is intentionally misrepresenting or concealing  material facts by the government (sound familiar?). [11] Mere inadvertence, mistake, imperfect conduct, delay, inaction, or even failing to follow agency guidelines cannot qualify as affirmative misconduct. [12] Additionally, neither an innocent or negligent misrepresentation will be  considered affirmative misconduct. [13] Not even unprofessional or misleading conduct can qualify as affirmative misconduct. [14] Unlike regular misconduct, affirmative misconduct establishes that something larger than a casual mistake occurred.

Intentionally engaging in wrongful conduct as a government official is a severe abuse of power and uncovering affirmative misconduct should automatically trigger the process for remedying agency corruption. It is difficult establishing a proper process for handling agency corruption to ensure it doesn’t happen again. The most pragmatic way to resolve this issue is to handle the problem the best we can every time it comes up and begin to develop effective and consistent remedies. This process would create a kind of law that was common for dealing with agency corruption. A sort of “common law,” if you will.

Fortunately, the MPCA situation mentioned earlier is a perfect place to begin on this journey. The courts should consider the MPCA’s misconduct as affirmative misconduct and automatically consider it as type two misconduct: corrupt. The courts must take adequate steps to restore agency credibility, to minimize the harm to society, and to ensure the corrupt act will not happen again. Therefore, the next step is to read my article on how the courts should begin laying the foundation for how to manage agency corruption.

[1] http://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/62-CV-19-4626/Memorandum2.pdf.

[2] http://timberjay.com/stories/polymet-permits-in-doubt,15191.

[3] http://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/62-CV-19-4626/Memorandum2.pdf.

[4] https://www.justice.gov/sites/default/files/jmd/legacy/2014/05/01/act-pl79-404.pdf.

[5] https://www.law.cornell.edu/uscode/text/5/706.

[6] https://www.merriam-webster.com/dictionary/corruption.

[7] https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3123&context=clr.

[8] https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3123&context=clr.

[9] https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3123&context=clr.

[10] https://1.next.westlaw.com/Document/Id04ba3c7ff6811d983e7e9deff98dc6f/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad604ab00000170b07b31a8c5b906d2%3FNav%3DCASE%26fragmentIdentifier%3DId04ba3c7ff6811d983e7e9deff98dc6f%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=30ccf87cd04df96c575b46f4f565b6a4&list=CASE&rank=1&sessionScopeId=ef6716c50f2def63b045d051d7a37bf0e898ce500a75e1afb1b11d2d4587f183&originationContext=Smart%20Answer&transitionType=SearchItem&contextData=%28sc.Search%29.

[11] https://1.next.westlaw.com/Document/I87d98a9b970211d993e6d35cc61aab4a/View/FullText.html?transitionType=UniqueDocItem&contextData=(sc.Search)&userEnteredCitation=18+F.3d+1492.

[12] https://1.next.westlaw.com/Document/Id04ba3c7ff6811d983e7e9deff98dc6f/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad604ab00000170b07b31a8c5b906d2%3FNav%3DCASE%26fragmentIdentifier%3DId04ba3c7ff6811d983e7e9deff98dc6f%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=30ccf87cd04df96c575b46f4f565b6a4&list=CASE&rank=1&sessionScopeId=ef6716c50f2def63b045d051d7a37bf0e898ce500a75e1afb1b11d2d4587f183&originationContext=Smart%20Answer&transitionType=SearchItem&contextData=%28sc.Search%29.

[13] https://1.next.westlaw.com/Document/I2663a6516eae11d9bd09d9bdc1d194d4/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad604ab00000170b07d86b2c5b90913%3FNav%3DCASE%26fragmentIdentifier%3DI2663a6516eae11d9bd09d9bdc1d194d4%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=c1dcf8adbea5c16ac8be0d3438037e06&list=CASE&rank=3&sessionScopeId=ef6716c50f2def63b045d051d7a37bf0e898ce500a75e1afb1b11d2d4587f183&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29.

[14] https://1.next.westlaw.com/Document/I6e463a9489c111d9b6ea9f5a173c4523/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad604ab00000170b07e2899c5b909cf%3FNav%3DCASE%26fragmentIdentifier%3DI6e463a9489c111d9b6ea9f5a173c4523%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=3b1a4d36a8d9f92b8a8ac722d7ad6044&list=CASE&rank=1&sessionScopeId=ef6716c50f2def63b045d051d7a37bf0e898ce500a75e1afb1b11d2d4587f183&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29.

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EcoPerspectives Blog

PJM’s Pass Back to FERC’s MOPR Order

By Naveed Nanjee

July 20, 2020

 

In December 2019, the Federal Energy Regulatory Commission (“FERC”) released an order that requires PJM Interconnection LLC (“PJM”), a regional grid operator, to expand its Minimum Offer Price Rule (“MOPR”) to state-subsidized resources in the capacity market. This order attempts to extend the MOPR beyond its traditional use and also attempts to raise the price floor of resources that receive a state subsidy. Neil Chatterjee, FERC’s chairman, stated that the thinking behind the extension of the MOPR to state-subsidized resources is to “safeguard the competitiveness of the market” and provide “a level playing field for all resources.” The rule’s biggest critics are those that are most adversely affected, which include clean energy and consumer interest groups. These groups see this order as a full-court press on their industry as they claim that it unfairly raises the price for clean energy, specifically new wind and solar energy, and ultimately raises prices on consumers. In contrast, supporters of the rule, including natural gas companies like Calpine Corporation, suggest that the rule levels the playing field, because current subsidies allow non-competitive generators to bid lower and skew prices.

Since the release of this ruling, PJM itself has filed a request for rehearing, making substantial arguments against the FERC order. For example, PJM suggests that the order “disrupts the balance that has successfully worked to accommodate the interests of states and integrated utilities, with appropriate guardrails, while maintaining the integrity of the market and ensuring a wholesale rate in the zone of reasonableness.” In addition, PJM also argues that “the new approach also needlessly interferes with state resource policies well beyond what is needed to protect the market against inefficient price formation and achieve rates within a zone of reasonableness.”

A number of House Democrats have also publicly denounced FERC’s recent order. In a letter addressed to Chatterjee, 36 Democrats expressed concerns about the proposed rule, suggesting that the “decision will functionally nullify the energy preferences of states, increase consumer costs by forcing customers to pay twice for generation capacity, and deny states flexibility to pursue their policy goals.” This letter also outlines the issue of preemption with MOPR. The recent FERC order likely preempts state policy by limiting the ability of states to choose the source of their energy resource mix provided under the Federal Powers Act (“FPA”). The letter also states that the MOPR “largely denies states any flexibility in setting energy policy goals.” Because FERC establishes a broad definition of “state subsidy” through this order, any new resource would be subject to the MOPR. Thus, states that have established policies to incentivize clean energy would essentially be blocked from the PJM capacity market.

The Sierra Club, along with a coalition of interested parties, also responded with a letter to Maryland Governor Larry Hogan, Senate President Bill Ferguson, and Speaker of the House Adrienne Jones requesting the Maryland Public Service Commission to mitigate the FERC ruling. The coalition letter suggests that “[i]f this egregious decision to undermine states’ rights is left unchecked Maryland ratepayers could pay hundreds of millions in higher electric bills in the coming years to dirty power plants.” On March 18, 2020, PJM issued a 536-page compliance filing that could alleviate some of the concerns brought to light by environmentalists like the Sierra Club and the renewables industry. The compliance filing proposed to allow projects to individually advocate for lower MOPR and establishes a “resource-specific” exception. This exception allows a resource subject to the MOPR to avoid a default floor price and set a minimum bid price instead, providing flexibility for renewable energy technologies to remain competitive. The filling has requested a waiver for the reliability pricing model auction deadline and an extended comment period of at least 35 days, given the size of the filing.

This MOPR rule has already resulted in tremendous criticism. PJM’s compliance proposal takes a balanced approach to the MOPR rule. However, the ball is now back in FERC’s court as the compliance order is subject to its review and approval.

 

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EcoPerspectives Blog

Fighting Deadly Fires with Legislation

By Kayley Olsen

July 13, 2020

 

Recently, California saw the worst and most devastating fire in their history. The Camp Fire of 2018. On November 8^th , 2018 the foothills of the Sierra Nevada set ablaze and would continue to do for the next 17 days. During that time 153,000 acres of land burned, 14,000 residencies were destroyed, and 85 people were killed. Camp Fire destroyed homes that would devastate families and change their world forever. After six months of investigation, the California Department of Fire (CalFIRE) determined the culprit of the wildfire was PG&E . Essentially, PG&E did not inspect their electric wires frequently, and due to their infrequent inspections— a live wire that was over 100 years old fell down and started the fire.

Following Camp Fire, CalFIRE wanted to ensure that something like this would never happen again, especially at the hands of PG&E. PG&E was required to create a plan that would ensure fire safety from their lines. Essentially, PG&E followed a public utility code in California that said they would clear cut all trees near the electric lines. While this sounds good in practice, it has led to many trees that are protected under California legislation to be cut down. Many Californians were upset that PG&E thought this was the best decision and questioned why California’s environmental legislation called the California Environmental Quality Act (CEQA) didn’t review their decision more closely. For instance, under the review of CEQA, PG&E could have prevented cutting down these protected trees and explore some other means of fire prevention.

PG&E operated under a categorical exemption in CEQA. A categorical exemption means that a proposed project does not need to go through the CEQA process where an environmental impact report does not need to be conducted and no other actions that may be less environmentally harmful need to be assessed. PG&E operated under a class 7 and class 8 exemption where the action is to enhance the environment and they are operating under an already authorized statute. PG&E, to keep in mind, is operating under an already authorized statute under the California Public utility code.

But how is this fair? How can they get away with this? Isn’t the point of CEQA to protect the environment as much as possible? Well, there are times in which the California courts have overruled a categorical exemption with something called the cumulative impact doctrine. The cumulative impact doctrine essentially says that exemptions to CEQA are inapplicable when the cumulative impact of successive projects of the same type in the same place over time is significant.

PG&E’s actions will be significant over time, they are successive projects that go up and down the entire state of California. PG&E will have a major impact on the environment by cutting trees down and will leave the ecosystem devastated. Scientists have said that clear cutting trees, like PG&E is doing, does not equate to fire prevention. There are other means out there besides clear-cutting trees that will work towards fire prevention.

If Californians want to protect their beautiful trees from being cut by PG&E, they need to petition the courts to reconsider PG&E’s actions under a full CEQA review. Under the CEQA review the environmental impact report would show that there are other means besides cutting down trees that will ensure fire prevention. This would be a win-win for everyone because the trees would still be protected, but PG&E would be able to figure out ways to work towards fire prevention without harming the environment.

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