Category: Ecoperspectives

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.

 

The post PJM’s Pass Back to FERC’s MOPR Order appeared first on Vermont Journal of Environmental Law.

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.

The post Fighting Deadly Fires with Legislation appeared first on Vermont Journal of Environmental Law.

EcoPerspectives Blog

Extending Emergency Preparedness to Farm Animals

By Karianne Morrissey

July 6, 2020

 

The ongoing threat of climate change leads to an increasing number of disasters every year. Animal agriculture is one of the drivers contributing to the acceleration of global warming. [1] In the United States, the current emergency preparedness legal frameworks, at both the state and federal levels, are inadequate. The framework provides exceptions for domestic pets and service animals but not farm animals. Farm animals are rarely beneficiaries of such provisions making them and the communities in which they live more vulnerable to the detrimental impacts of climate change. This gap is a persistent injustice to farm animals who are also at risk of pain, suffering, distress, habitat destruction and displacement, and the communities of which they are members. A proposed approach to the problem of animal suffering not adequately addressed under existing law is to extend public health emergency and disaster preparedness and resilience frameworks to farm animal communities drawing on the model crisis standards of care. [2] These standards would help to mitigate and palliate animal pain, suffering and distress in escalating climate-driven disasters and foster human-animal post-disaster resilience.

The current federal disaster preparedness scheme does not, in application provide for the protection of farm animals in the event of a disaster. The three acts that work together to form the current federal disaster plan are the Pets and Transportation Standards Act (PETS), the National Response Framework (NRF), and the Post-Katrina Emergency Management Reform Act (PKEMRA). [3] The PETs Act gives the Federal Emergency Management Agency (FEMA) the authority to reimburse the state emergency preparedness plans that include animals. [4] However, the PETS Act does not include farm animals. [5] The NRF is a guide for FEMA on how to respond in disasters and calls for the emergency staff to consider those who are responsible for animals. [6] This includes farm animals and livestock. [7]  The PKEMRA allows FEMA to provide assistance to local governments before the state governors request aid. [8]

Under this scheme, the federal government’s relief in the event of a disaster is discretionary. [9] Congress determines the annual budget for FEMA. [10] Additionally, the president must declare a federal disaster to trigger FEMA’s authority. [11] This leaves the disaster preparedness plans vulnerable to the politics of government. The states must have their own disaster preparedness plans to receive supplemental funds from FEMA. [12] But, there is no requirement that the state must include animals in their preparedness plan. While FEMA calls for the consideration of domestic and farm animals in disaster preparedness, [13] in application they are left at the mercy of the states to protect them in emergencies or disasters.

The scope and magnitude that disasters have on communities should be addressed under public health law. Under public health law, the states must create guidelines that improve the health and well-being of community members, which includes farm animals. In 2009, at the direction of the Department of Health and Human Services, the Institute of Medicine issued the Crisis Standards of Care (CSC) which are guidelines for state and local governments. [14] These guidelines have a palliative care component. [15] The palliative care component includes elements, such as palliative care in disaster response plans, pain management, and assistance to reduce distress. [16] The palliative care component could be extended to create protections for animals in disasters. These palliative care standards would extend to animals who are sick as a result of catastrophes or those that are in pain and suffering.

It is clear now more than ever that disaster and emergency events affect all members of the communities in which we live. Farm animals are among those members and deserve to be given greater protections under the law in the event of disasters and emergencies.

 

 

[1] Lisa Winebarger, Standing Behind Beastly Emissions: The U.S. Subsidization of Animal Agriculture Violates the United Nations Framework Convention on Climate Change , 27 Am. Int’l L. Rev. 991, 1007 (2012).

[2] Inst. Of Medicine, Crisis Standards of Care: A Systems Framework for Catastrophic Disaster Response, 1 (Dan Hanfling, et al., eds.) (The National Academies Press (2012), https://commed.vcu.edu/IntroPH/2012/crisisManagement_IOM.pdf.

[3] Pets Evacuation and Transportation Standards Act, Pub. L. No. 109-308, 120 Stat. 1725 (2006) ; Pub. L. No. 109-295, tit. VI, 120 Stat. 1355, 1394 (2006); Pets Act (Faq), am. Veterinary med. Ass’n,   https://www.avma.org/KB/Resources/Reference/disaster/Pages/PETS-Act-FAQ.aspx (last visited Mar. 25, 2020).

[4] Erica LaVoy, The Pets Act and Beyond: A Critical Examination of the Pets Act and What the Future of Disaster Planning and Response for Animals Should Be , Mitchell Hamline L.J. Pub. Pol’y & Prac. 67, 71 (2019).

[5] Id. at 72.

[6]   U. S. Dep’t. of Homeland Sec., Nat’l Response Framework (2009), https://www.fema.gov/media-library-data/1582825590194-2f000855d442fc3c9f18547d1468990d/NRF_FINALApproved_508_2011028v1040.pdf.

[7] Id.

[8] LaVoy, supra note 11, at 73.

[9] Danshera Wetherington Cords, An Inflection Point for Disaster Relief: Superstorm Sandy , 35 Touro L. Rev. 925, 929, 926 (2019).

[10] Id. at 934

[11] Id. at 933.

[12] Paige Chretien, Discretion Bites: The Current State of Animal Emergency Planning, 8 SAN DIEGO J. OF CLIMATE & ENERGY L. 250, 263 (2017).

[13] U. S. Dep’t. of Homeland Sec., Nat’l Response Framework (2009), https://www.fema.gov/media-library-data/1582825590194-2f000855d442fc3c9f18547d1468990d/NRF_FINALApproved_508_2011028v1040.pdf.

[14] Inst. Of Medicine, Crisis Standards of Care: A Systems Framework for Catastrophic Disaster Response, 1 (Dan Hanfling, et al., eds.) (The National Academies Press (2012), https://commed.vcu.edu/IntroPH/2012/crisisManagement_IOM.pdf.

[15] Id.

[16] Id.

The post EXTENDING EMERGENCY PREPAREDNESS TO FARM ANIMALS appeared first on Vermont Journal of Environmental Law.

EcoPerspectives Blog

How the Tides Have Shifted for Virginia Energy Policy in 2020

By Antonia Douglas

June 29, 2020

 

Under Governor Northam’s direction, Virginia’s Energy Policy shifted quite dramatically from when he first took office in January 2018 to what we have at the end of the 2020 Legislative Session. For years, legislators, policymakers, and business – Dominion Energy – have been avoiding the writing on the wall that climate change is having a substantial impact on Virginians, whether it be the fate of our historic sites in Williamsburg, the crop yield in the Shenandoah Valley, or an even more miserable pollen season in Richmond . The effects of climate change in Virginia are apparent and affecting the well-being of Virginians every day. There is hope that these effects of climate change can be slowed down or even mitigated with drastic changes in our energy sector.

The energy sector is one of the biggest polluters when it comes to greenhouse gas emissions (“GHGs”), not only in the country but in each state. Many states are responding to global calls for clean energy and making actual changes which reflect the climate change crisis. Today the energy sector accounts for 30% of the carbon dioxide emissions in Virginia. To stimulate change in the state, Virginia needs steadfast change to its energy sector. This past September Governor Northam enacted Executive Order 43 , which set a 30% renewable energy goal by 2030 and a 100% carbon-free goal by 2050 for Virginia. Governor Northam’s Executive Order 43 was an exciting and monumental moment for the Commonwealth. Still, a majority of it was not legally binding without major action by the General Assembly.

The new decade has been a busy start for Virginians as the General Assembly started its 2020 session on January 8. With the recent flip in both, the House and Senate gave climate and energy activists the morale boost they needed to make 2020 the year where the legislature created a framework to transition the Virginia economy to 100 %? renewable. While dozens of other bills aim to reform Virginia energy law, the focus was on two very different omnibus bills. These two bills would not only create this framework, but it would codify Governor Northam’s Executive Order 43, the Clean Economy Act , and the Green New Deal Act.

While the Green New Deal was relatively short-lived, the Clean Economy Act lived on and is currently sitting on Governor Northam’s desk waiting for his signature. A coalition of the renewable energy industry and environmental groups put forward the Clean Economy Act (“CEA”). Delegate Rip Sullivan of Fairfax and Senator Jennifer McClellan of Richmond are the sponsors of the act in the House and Senate, respectively. The goal of the CEA is to bring zero-carbon electricity supply to Virginia by 2050. One of its key features is the required increase of 3 % in renewable energy every year from 2021 to 2050. Also, under energy efficiency, utilities must achieve energy savings that increase to 2% a year by 2027. These modest increases of required investments in renewable energy and efficiency leave no room for the utilities to argue that the targets will cause them economic discomfort. The CEA also includes a provision for joining the Regional Greenhouse Gas Initiative to reduce statewide electric carbon emissions by 30 percent by 2030. [1] This provision is in accordance with DEQ’s carbon regulations finalized last year.

Further, the CEA includes provisions that created a mandatory renewable portfolio standard where 41 percent of Virginia’s total electric energy will be generated by renewable energy by 2030. [2] But with the generation of total electrical energy and with around 30 percent of Virginia’s electric generation coming from nuclear power, Virginia would only be receiving roughly 30 percent of its electricity from renewable sources. This number is a nod to the 30 percent by 2030 renewable energy target set by Governor Northam in his Executive Order 43. Also, the CEA does not change the code’s existing definition of renewable energy, foregoing the opportunity to exclude biomass, biogas, and other dirty renewables from Virginia’s RPS. Lastly, the CEA includes provisions to include community solar and remove barriers to net metering. The CEA raised the net metering cap to 10 percent, raises the commercial size cap to 3 MW, removes all caps on third-party power purchase agreements, and eliminates standby charges on residential and agricultural customers. And the cherry on top of the CEA is a one-year moratorium on the permitting of any new carbon-emitting generating units that an investor-owned utility might want to build.

Lastly, outside of the CEA, an array of other energy bills has been passed by both the House and Senate that further customer-sited solar or net metering. One is the Solar Freedom Bill , which lifts barriers to customer-sited renewable energy such as rooftop solar. The new provisions lift the net metering cap to 6% for IOUs; raise the PPA cap to 1,000 MW in Dominion territory and 40 MW in APCo territory; remove standby charges below 15 kW in Dominion territory and completely for APCo; raise the residential size cap to 25 kW and the commercial project sizer cap to 3 MW; and much more. Also, in the realm of nuclear energy, a Senate Bill defined “clean” and “carbon-free” energy that not only Virginia law has been silent on but also Governor Northam’s executive order. The bill defines clean or carbon-free energy to “include nuclear energy for the purposes of the code . . . and declares that nuclear energy is considered a clean energy source for the purposes of the Commonwealth Energy Policy.”

The CEA is not perfect by any means, and the clean energy transformation it strives for is incomplete. While the bill is a step in the right direction, its provisions: mostly do not apply to electric cooperatives; requires utility customers to subsidize biomass use by paper companies;  gives Dominion free rein on spending; provides weak energy efficiency targets; and focuses primarily on utility-scale projects and forgets about the importance of customer-sited projects. All in all, this legislation and hopefully new law is groundbreaking and transformational for Virginia Energy Policy. Almost overnight, Virginia went from the bottom of the totem pole to be one of the leaders in clean energy policy and reform. The future in Virginia energy policy will be an exciting one to watch.

 

 

[1] The state would auction carbon allowances, with 50% of proceeds funding energy efficiency programs for low-income, disability, veteran and elderly residents; 16% going to energy efficiency measures on state and local property; 30% for coastal resilience; and 4% for administrative costs.

[2] Total electric energy is defined by the Va Code to mean total electric energy minus electricity produced by nuclear power.

The post How the Tides have Shifted for Virginia Energy Policy in 2020 appeared first on Vermont Journal of Environmental Law.

EcoPerspectives Blog

Rural Farm Electrification

By Max Matt

June 23, 2020

By Max Matt

Roughly 9 percent of the United States’ greenhouse gas emissions come from the agriculture sector. [1] As with transportation, electricity generation, commercial, and industrial activities, this fact begs the question: what can we do about it? Some activities within agriculture emit greenhouse gases inherently – for example: cows burping. [2] Until, a recently-discovered, cow gas-reducing pink seaweed additive starts getting mass-produced, the only way to abate the gas is to curtail beef production. [3] Many other farm activities, however, involve the regular use of gasoline and diesel engines. [4] Alternatives to internal combustion engines for transportation are already in widespread use and are slowly gaining popularity. [5] This blog post will explore the electric alternatives to fossil fuel-powered industrial farm equipment, and the barriers to their adoption.

Is Electrified Farm Equipment Available?

Yes and no. John Deere is presently working on developing large-scale electric tractors. The first, the SESAM (Sustainable Energy Supply for Agricultural Machinery), debuted in 2016 and was battery powered. [6] The latest, the GridCON, is cable-powered, and packs 400 horsepower. [7] Although it must be constantly tethered by a cable, this tractor is autonomous and programmable, and has the option for remote-control. [8] Smaller tractors, on the other hand, are already on the market, and can be had for about double the price of a similar diesel tractor, which is about $20k. [9]

Barriers to Adoption

First, the issue with electrifying farm equipment, even light equipment running on batteries, is likely to be range anxiety. While you can gas up a diesel tractor all day long, electric tractors have the limitation of battery life, which may be only 4-8 hours, depending on the load. [10] Fundamentally, this problem may be difficult to solve without some larger-scale changes to electricity policy. Currently, just as with homes, DC voltages required to power level 3 chargers are not available to the average consumer without the consent and requisite line upgrades from your power company. [11] These chargers can charge an electric car to 80% in about 30 minutes, but they are prohibitively expensive to install. [12]

A Policy Issue

To facilitate the general electrification of the equipment in our lives, which currently run on fossil fuels, major investments are needed to our electrical system. [13] Right now, EV adoption is happening at the consumer level, which means that the average consumer doesn’t have to think much about their power company when they go out and buy a Tesla or a Chevy Bolt. They just buy the car and have a charger installed on a 240v panel by an electrician. [14] Their house, in turn, pulls more watts from the distribution system owned by the power company than it would without the load of an electric car. That would be just fine if our system was built to handle equipment like electric cars or tractors drawing more energy. [15] Unfortunately, especially for folks without a solar system, that isn’t the case: each new electric vehicle costs power companies (and therefore consumers) between $1700 and $5800 in grid upgrades. This might ultimately translate to a rate increase of around 12 percent, and that’s just from electric cars. [16] Electrify the agricultural sector, and inevitably that figure increases.

The Answer: (Probably) BIG Federal Spending

Back in the 1930’s, Franklin Roosevelt’s New Deal included a law called the Rural Electrification Act. [17] The Act empowered the federal government to make cheap loans to non-profit cooperatives of rural farmers in order to electrify rural America. [18] The Act worked well. Almost all rural areas and small towns across the U.S. have been electrified, and the co-ops have given birth to exciting administrative and engineering innovations. [19] So, could the federal government do something like that again, but to upgrade the system? The answer to that question could depend on a few more factors than just bipartisan legislation. The modern electric grid is an economy, albeit a heavily-regulated one. [20] Like most economies, it is driven by supply and demand. Usually, the model works like this: consumers want cheap electricity, and the cheapest electricity provider wins the bid to provide that power. [21] In a place like Texas, where wind power is cheap and plentiful, that has worked out in renewable energy’s favor. [22] But grid upgrades and renewable energy don’t necessarily go hand-in-hand, and until electric farm equipment becomes widely available for cheap, it is unlikely farmers will invest in it. This double-edged sword begs the question: should we wait until demand for electrification drives power companies and co-ops to make massive upgrades themselves, or prepare for that eventuality? The federal government could, in theory, make money available to co-ops and power companies to perform grid upgrades. The availability of more power without more expense could drive consumers and industries like agriculture to electrify, especially in the presence of a carbon tax.

[1] https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions (see pie chart on greenhouse gas emissions by economic sector).

[2] https://www.bbc.co.uk/newsround/49368462 (explaining about how cows emit heaps of methane, and a seaweed additive to their feed can help).

[3] https://www.forbes.com/sites/jeffkart/2019/11/04/blue-ocean-barns-seaweed-supplement-makes-cows-burp-less-cuts-greenhouse-gas-emissions/#30d1c9a772a6 (the inventors are still working some kinks out, but this is promising technology)

[4] https://www.epa.gov/afos-air/emission-standards-farm-equipment-engines

[5] https://www.citylab.com/transportation/2018/10/where-americas-charge-towards-electric-vehicles-stands-today/572857/

[6] https://www.producer.com/2019/02/deeres-new-electric-tractor-tosses-the-battery/.

[7] Id.

[8] Id.

[9] https://www.solectrac.com/eutility ; see also https://www.trigreenequipment.com/promotions/tractor-sales-specials/5045e-5-series-john-deere-tractor-sale/ (compare for an idea of the cost difference between a new electric light tractor and a new diesel one).

[10] https://www.solectrac.com/eutility (note the 3-6 hour battery life, and 3-hour, 80% charge time).

[11] https://www.energysage.com/electric-vehicles/charging-your-ev/install-a-home-charging-station/ (level 3 charges require direct current, which is generally not available residentially).

[12] Id.

[13] https://www.bcg.com/publications/2019/costs-revving-up-the-grid-for-electric-vehicles.aspx.

[14] https://www.energysage.com/electric-vehicles/charging-your-ev/install-a-home-charging-station/.

[15] https://www.bcg.com/publications/2019/costs-revving-up-the-grid-for-electric-vehicles.aspx.

[16] Id.

[17] https://www.nps.gov/home/learn/historyculture/ruralelect.htm.

[18] Id.

[19] https://livingnewdeal.org/glossary/rural-electrification-act-1936/.

[20] https://www.electricchoice.com/blog/what-is-electricity-deregulation/.

[21] Id.

[22] https://www.dallasobserver.com/news/texas-produced-more-energy-from-renewable-sources-than-coal-last-year-11842205 (wind now supplies more of Texas’ energy than coal).

The post Rural Farm Electrification appeared first on Vermont Journal of Environmental Law.

EcoPerspectives Blog

The Origin of the Livestock Provision in the National Organic Program

By Alida Mooney

June 1, 2020

 

Walking up to Kiss the Cow farm is like strolling into a children’s book. Nestled into the foothills of Vermont’s Green Mountains, Kiss the Cow is home to nine milking cows, five heifers, and a hearty colony of chickens, turkeys, and ducks darting between the legs of the farmers and scuttling around. Kiss the Cow is five hundred acres of forest and pasture, all grown and maintained via sustainable means. The two owners of the farm are as devoted to being stewards of the land and community as they are to being farmers. They are dedicated to: “providing excellent food to our community”, to “improving and preserving the land that sustains us”, and “passing on this knowledge and experience to others who want to learn about this lifestyle.”

But the modern American dairy farm isn’t really a farm at all—it is a factory. Food is a product, a commodity, an output, and a farmer is a manager, a cog in a machine, a woman on an assembly line. Small family farms with ten cows—each given a personalized name, milked individually, and allowed to roam pastures—have been replaced with airport hanger-like facilities filled with 30,000 cows. This trend towards larger farms run like a factory has caused many problems for small farms. With fewer resources, money, and staff, it’s hard to keep up with the larger farms. Additionally, the organic certification process —which is the same for farms of all sizes—has caused many additional problems for the traditional farmer.

Congress passed the Organic Production Act of 1990 (OPA) after the growing popularity of organic foods created a need for a standardized definition and standards. Before The OPA, individual farms and third-party certifiers labeled food as organic with wildly different growing and feeding methods. The OPA delegated to the USDA the power to set the standards and certify organic foods. With this power, the USDA promulgated the National Organic Program ( NOP), which lays out the standards for all organic foods. Within the NOP, the Origin of Livestock rule (OOL) outlines which livestock was able to produce organically certified milk. The OOL lists the requirements for how long a cow must be on organic feed before it, and its milk can be considered on par with organic standards. This rule also lays out the requirements for an approved one-time transition of a non-organic herd to an organic herd. Large farms have routinely abused this exception and have turned it into a loophole allowing for continuously transitioning conventional-raised heifers to organic cows. This truly violates the spirit and text of the NOP.

A producer is eligible for this exception only when transitioning “an entire, distinct herd … to organic production.” Once this distinct herd fully transitions to organic—as per the instructions in the OOL—then  “all other animals shall be under organic management from the last third of gestation.” While this exception was meant to be a discrete event, large farms and their organic certifiers have allowed a continuous transition to be counted as a one-time transition. This goes against the NOP and harms small sustainable family farms.

The USDA intended to standardize the organic label and promote turning conventional herds into organic herds with the OOL. However, industrial dairies abuse this rule to benefit themselves. In a time when agriculture should be going back to its roots, this exception only pushes it to be more industrial. The OOL is a step in the wrong direction and must be revised for the sake of consumers, farmers, and the environment.

The post The Origin of the Livestock Provision in the National Organic Program appeared first on Vermont Journal of Environmental Law.

EcoPerspectives Blog

By Kenny Bozarth

            In its most recent review, the EPA concluded that Roundup is safe if used as directed. [1] Further, the EPA found that there are no risks to children who play in residential areas treated with Roundup. [2] The EPA states there is no evidence that glyphosate-based weed-killers cause cancer by considering a “significantly more extensive and relevant dataset than the International Agency on the Research for Cancer.” [3] This conclusion differs with that of California’s Proposition 65 and that of the World Health Organization. [4] California’s Proposition 65 recommended that Roundup be labeled to warn consumers of a possible cancer risk when using the product. [5]

The EPA is tasked with approving pesticides for use under FIFRA. ^[6] Under FIFRA, a pesticide may be registered if the pesticide does not result in “unreasonable adverse effects on the environment.” ^[7] The pesticide must not cause any “unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.” ^[8] Further, a pesticide must be registered in the United States for it to be sold. ^[9] The EPA utilizes a cost-benefit analysis. ^[10] The EPA weighs the risks of using the pesticide against the benefits of using the pesticide. ^[11] If a pesticide’s benefits outweigh its risks, the EPA may approve registration. ^[12] As part of this registration process, the EPA reviews pesticide labels. ^[13] And, a pesticide is considered misbranded if “its labeling bears any statement, design, or graphic design relative thereto or to its ingredients which is false or misleading in any particular.” ^[14] The EPA reviews registered pesticides at least every 15 years. [15]

Proposition 65 relies on various organizations, committees, and experts when making warning label decisions including the Carcinogen Identification Committee, the Developmental and Reproductive Toxicant Committee, and other authoritative bodies. [16] The CIC and DARTIC are independent committees of expert scientists that meet at least once a year. [17] California’s Proposition 65 tends to take a careful approach while the EPA has tended to tailor its decisions to satisfy pesticide manufacturers and political parties. [18] A study performed by the Union of Concerned Scientists found that close to 70 percent of scientists working with regulations under the EPA reported at least one occurrence of political interference. [19]  Also, 553 scientists explained that the EPA rarely utilizes advice from independent scientific advisory committees. [20]

Further, the EPA uses “the best scientific and commercial data available” to make warning label decisions. [21] The EPA has significant discretion to decide what the best data is. [22] California’s Proposition 65 places warning labels on products if “it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity.” [23] Through use of independent research and a careful approach, California’s Proposition 65 is more effective in protecting consumers than the EPA is under FIFRA, but Proposition 65 must overcome a major hurdle before reaching its full potential. [24]

California uses a wealth of independent studies during its warning label process, but a major problem remains. [25] Before August 2018, if Proposition 65 found that a pesticide or other product caused cancer, the final warning label placed on the product did not have to explain the specific ingredient or ingredients in the product that caused cancer. [26] The warning label only stated that the product may cause cancer. [27] While this creates transparency for the consumer by allowing them to weigh the benefits and the risks of consuming a product, the consumer must research every ingredient listed on the product. This creates an overly burdensome process.

Thus, California adopted new rules in August 2016 which became active in August 2018. [28] The new rules state that a product must “name at least one chemical that prompted the warning,” list the internet address for the Proposition 65 warning website, and contain a yellow triangle to serve as a warning signal. [29] These amendments provide the consumer with more information, but they do not go far enough. [30] Not everyone is able to access online information, and listing a link on products may not be effective for these consumers. [31] Some may purchase a product on a quick lunch break and may not have time to visit a link to research 900 chemicals before consumption or use. [32] The only way to be transparent with a consumer is to list every potentially cancerous ingredient or chemical directly on the product.

Regarding Proposition 65’s new requirement of listing at least one specific cancer-causing ingredient, “That single disclosure protects a company from lawsuits relating to any additional toxic chemicals contained in the product.” [33] But, listing one potentially harmful chemical and leaving it up to the consumer to find the rest is like giving someone a head start in an Easter egg hunt. The companies are basically saying, “I’ll help you find the first one, but the rest is on you.” Before California’s Proposition 65 can reach its full potential, further amendments need to be made. However, the new 2018 amendments are a step in the right direction.

California’s Proposition 65 takes a careful approach when deciding to place a warning label on a product. It only makes sense for the law to apply this approach to warning label language requirements. The simple answer is to list every chemical and ingredient that has a correlation to cancer or other health effects directly on the product and hope other states and the EPA follow suit. Only then will companies truly be transparent with the consumer. This transparency is especially important when consumers are handling pesticides. Full transparency will give the consumer the information they need to protect themselves and those around them. Armed with this information, parents may think twice about letting their kid play on a chemically laden lawn.

[1] https://www.reuters.com/article/us-bayer-glyphosate-lawsuit-appeals-anal/bayer-bets-on-silver-bullet-defense-in-roundup-litigation-experts-see-hurdles-idUSKCN1SM2R3

[2] https://www.epa.gov/ingredients-used-pesticide-products/glyphosate

[3] https://www.epa.gov/ingredients-used-pesticide-products/glyphosate

[4] https://www.usnews.com/news/national-news/articles/2019-08-08/epa-wont-approve-labels-that-say-roundup-weed-killer-chemical-glyphosate-causes-cancer

[5] https://www.usnews.com/news/national-news/articles/2019-08-08/epa-wont-approve-labels-that-say-roundup-weed-killer-chemical-glyphosate-causes-cancer

[6] Mary Jane Angelo, The Killing Fields: Reducing the Casualties in the Battle Between U.S. Species Protection Law and U.S. Pesticide Law , 32 Harv. Envtl. L. Rev. 95, 95 (2008).

[7] Id. at 105.

[8] Id.

[9] Id. at 104-105.

[10] Id. at 105.

[11] Id.

[12] Mary Jane Angelo, Embracing Uncertainty, Complexity, and Change: An Eco-pragmatic Reinvention of a First-Generation Environmental Law , 33 Ecology L.Q. 105, 132 (2006).

[13] https://www.epa.gov/pesticide-registration/labeling-requirements

[14] Linda J. Fisher et. al., A Practitioner’s Guide to the Federal Insecticide, Fungicide, and Rodenticide Act: Part I , 24 ELR 10449, 10459 (1994).

[15] https://www.epa.gov/pesticide-reevaluation/registration-review-schedules

[16] https://oehha.ca.gov/proposition-65/how-chemicals-are-added-proposition-65-list

[17] https://oehha.ca.gov/proposition-65/how-chemicals-are-added-proposition-65-list

[18] https://www.sciencemag.org/news/2019/05/health-experts-wary-epa-rush-revise-carcinogen-testing ; https://oehha.ca.gov/proposition-65/how-chemicals-are-added-proposition-65-list

[19] https://www.ucsusa.org/sites/default/files/legacy/assets/documents/scientific_integrity/interference-at-the-epa.pdf

[20] https://www.ucsusa.org/sites/default/files/legacy/assets/documents/scientific_integrity/interference-at-the-epa.pdf

[21] 16 U.S.C.A. § 1536 (West).

[22] 16 U.S.C.A. § 1536 (West).

[23] Cal. Health & Safety Code § 25249.8 (West).

[24] https://oehha.ca.gov/proposition-65/how-chemicals-are-added-proposition-65-list

[25] https://oehha.ca.gov/proposition-65/how-chemicals-are-added-proposition-65-list

[26] https://www.p65warnings.ca.gov/new-proposition-65-warnings

[27] https://www.p65warnings.ca.gov/new-proposition-65-warnings

[28] https://www.p65warnings.ca.gov/new-proposition-65-warnings

[29] https://www.p65warnings.ca.gov/new-proposition-65-warnings

[30] https://www.p65warnings.ca.gov/new-proposition-65-warnings

[31] https://www.p65warnings.ca.gov/new-proposition-65-warnings

[32] https://www.p65warnings.ca.gov/new-proposition-65-warnings

[33] https://www.casualliving.com/web-exclusive/playing-rules-what-need-know-about-prop65-furniture/

The post Pesticide Warning Labels: We Need Transparency appeared first on Vermont Journal of Environmental Law.

EcoPerspectives Blog

We Need Lawyers that “Speak Science” Now More Than Ever!

By Erin Miller

May 18, 2020

 

On Thursday, March 26, 2020, the EPA released a statement explaining that they will stop enforcing environmental regulations because of the COVID-19 pandemic . This unprecedented decision to put in place a temporary policy which gives the EPA discretion to refrain from enforcing civil violations during this pandemic will certainly have long lasting effects in environmental law. In a time when the Trump administration should be focusing on the health and welfare of all Americans, it is instead ramping up efforts to continue to roll-back environmental protections across the board.

Susan Parker Bodine , the EPA Assistant Administrator for Enforcement and Compliance, sent a memorandum to all governmental and private sector partners explaining the agency position. The ‘temporary’ policy applies retroactively to March 13, 2020 and the EPA “will apply this policy to actions or omissions that occur while this policy is in effect even after the policy terminates.” EPA states throughout the memo that they expect all regulated entities to continue to operate safely to protect the public and environment. The policy explains that regulated entities should self-regulate, self-report, and not pollute. If regulated entities’ operations fall into non-compliance during this time, the EPA will consider any circumstances that may explain their failure to comply, including the COVID-19 crisis. 

This policy puts in place legal loopholes for entities to commit civil violations for the foreseeable future without penalty or punishment. Part I. A of the memorandum lays out the procedure regulated entities should follow if compliance is ‘not reasonably practicable.’ Facilities with environmental compliance obligations simply have to identify and document the noncompliance, return to compliance as soon as possible, and identify how COVID-19 was the cause of noncompliance. This policy is giving a legal ‘out’ for civil violations, allowing regulated entities to explain away their infractions as the result of a global public health pandemic. Policies like this one, with no sun-down provisions in place, will allow facilities across the United States to violate Federal regulations. Considering the EPA regulates and enforces violations across numerous industries , the U.S. is facing an environmental health crisis due to the accumulation of violations allowed under the new policy. 

This administration has systematically rolled back protections for the environment and public health in the last three years. The EPA’s new policies and regulatory roll-backs make it increasingly difficult to enact new environmental and public health legislation based on scientific data under the guise of ‘strengthening transparency in regulatory science.’   The deregulatory ambitions of the Trump administration make it clear that now, more than ever, lawyers who understand science are needed to protect the health and future of this nation. When the COVID-19 pandemic subsides, environmental groups and lawyers will undoubtedly have their work cut out for them. Lawyers in the environmental industry are tasked with interpreting environmental laws and regulations. This administration has drastically altered the environmental law industry by repealing or replacing stringent regulations . When so many Federal Regulations are changed in such a short period of time, environmental lawyers have to quickly adjust, learn the new laws,  and find ways to fight against the harms that they create. The fight against this global pandemic, while at the top of every nation’s list of priorities, should not supersede the EPA’s authority to enforce civil violations of environmental laws. The EPA’s mission is to protect human health and the environment. The COVID-19 pandemic may not resolve quickly, but that is no excuse to turn a blind eye to the industries and facilities creating more environmental harms. The EPA can and should continue to protect human health and the environment as they have since the agency’s inception.

Economic stability and growth appear to be the only motivating factor for the majority of environmental and public health deregulation taking place over Trump’s tenure in office. The major problem with taking an economic approach to replacing or repealing these important regulatory protections is that in the long run, human health, environmental health, and the economy will all ultimately suffer. Trump chose to fire his entire pandemic preparedness team , which was established in 2015 under President Obama in response to the EBOLA pandemic . When the COVID-19 pandemic began, the administration was left with no one to advise them and resulted in taking took no action.

The worldwide chaos and uncertainty surrounding this pandemic highlight the dire need for lawyers and advocates with a strong understanding of scientific information. If there is to be any hope of undoing the damage this administration aims to inflict on environmental and public health protections, the legal community must learn to better collaborate with the scientific community at large. There are a number of ways that we can change the legal landscape for the current and future generations of legal experts. 

There are a number of excellent law schools across the nation with environmental law programs . Expanding the number of schools with these types of programs would be a great place to start. Additionally, law schools with strong environmental and public health law programs should consider re-focusing their recruiting efforts by targeting students involved in STEM programs during their undergraduate studies. By recruiting a new base of scientifically minded advocates into environmental law programs, we can ensure that a new generation of legal minds will be in place to confront and help manage the environmental and public health crisis that are plaguing this country. Obviously, this does not account for lawyers who wish to work for large corporations and potential administrations that seek only to increase profits to the detriment of the environment and human beings.

The post We Need Lawyers that “Speak Science” Now More than Ever! appeared first on Vermont Journal of Environmental Law.