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 allit 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 cowseach given a personalized name, milked individually, and allowed to roam pastureshave 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 sizeshas 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 organicas per the instructions in the OOLthen “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.
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.
[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).
[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).
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 50 th anniversary of Earth Day , expected to be celebratory, arrives at a somber moment. COVID-19 human tragedies continue to ravage communities, and UN Environment warns that ” nature is sending us a message ” we must heed to avoid future pandemics. This Earth Day demands both deep reflection and bold action. Fortunately, it arrives as the rights of nature movement is surging worldwide, offering new strategies for building legal systems that reflect our interconnected relationships with each other and the planet.
My personal commitment to nature’s well-being began during that exciting period, when I was in elementary school. My local creek was regularly polluted by upstream tannery spills , and in the leadership and passion of citizens around the globe, I saw a path for change. Many of these early advocates later took up the work of implementing the resulting suite of environmental laws – myself included.
“it’s our Wilderness Save it Before it’s too Late” (1972)
Five decades later, we have seen significant improvement in some areas, but much remains to be done. As I wrote recently in the Vermont Journal of Environmental Law , environmental laws have addressed some acute issues, such as large sewage and industrial pollution releases, but have failed to prevent long-term, devastating harm, such as climate change and biodiversity loss. This is due in large part to the fact that our environmental laws are grounded in the frame of “nature as property,” to be owned and degraded. Systems-based science now shows us that we are fundamentally connected with nature. To better guide our relationship with the natural world, we need legal and economic systems arising from a new frame, one of natural systems as fellow Earth citizens. Recognition of the fundamental rights of nature is a core element of such new governance systems.
“Rights of nature” is a legal and jurisprudential theory and movement sparked in part by University of Southern California law professor Christopher Stone’s 1972 essay, ” Should Trees Have Standing.” Stone calls for legal standing and associated rights for ecosystems and species, similar to the concept of fundamental human rights. In 2008, Ecuador became the first nation to take up this call, recognizing in its Constitution the inherent rights of ecosystems and species to exist, thrive, and evolve.
As described in new research from Craig Kauffman at the University of Oregon , legal recognition of nature’s rights now exists at the local to national levels in 12 countries worldwide, [1] including roughly 50 cities and counties spanning 13 states in the United States. [2] An additional 16 countries are also considering legal recognition of nature’s rights, which occurs in the form of constitutional provisions, treaty agreements, statutes, local ordinances, and court decisions. Most of this activity has arisen just over the last decade, with a spike in the last several years. Successes include legal standing and rights for rivers in New Zealand and India , a successful push-back on fracking in Pennsylvania , and the right to a healthy climate in the Colombian Amazon. Kauffman gives credit to movement building, finding that the “sudden and dramatic increase” in proposed and adopted rights of nature laws “reflects the strengthening of transnational rights of nature networks following a decade of network activation and mobilization.”
Earth Day has been a notable marker in the growth of the nature’s rights movement worldwide. For example, the 40 th anniversary of Earth Day in 2010 coincided with one of the United States’ most devastating environmental incidents, the Deepwater Horizon oil spill. Protective regulations put in place by President Obama to prevent another Deepwater Horizon were reversed by President Trump , demonstrating the ongoing need for broader, more durable, rights-based protections for nature.
Deepwater Horizon Oil Spill, Earth Day 2010, U.S. Coast Guard
The first Earth Day gave voice to widespread alarm over an increasingly polluted and degraded environment and produced a wide range of laws to combat identified threats. On Earth Day’s 50 th anniversary, we are witnessing a new global movement, by ” citizens disillusioned by the failure of governments to take stronger actions to address the dual crises of climate change and biodiversity loss.” Advocates, governments, and courts are building laws and policies that recognize nature’s rights and are now beginning to implement them.This need was answered, also on the 40 th anniversary of Earth Day, at the global launch of the rights of nature movement in Cochabamba, Bolivia. A climate conference attended by over 35,000 representatives of 140 nations produced a Universal Declaration of the Rights of Mother Earth , which led later that year to the creation of the UN Harmony with Nature Programme’s Earth Day UN General Assembly Dialogues. These annual UN Dialogues examine development of Earth-centered legal and economic systems , including recognition of the rights of nature. In parallel, a worldwide network of rights of nature advocates has begun to solidify and expand, with an associated “explosion” of new, rights-based environmental laws and policies as described by Kauffman.
Fortunately, we can bring forward lessons learned over the last 50 years towards creation of Earth-centered legal and economic regimes. One example is the U.S. Clean Water Act, passed in 1972 over President Nixon’s veto. It was a monumental achievement at the time, but decades later, U.S. EPA reports that 46% of river and stream miles, 32% of wetland areas, and 18% of coastal and Great Lakes waters are in “poor biological condition.” A Healthy Waters Act , grounded in the rights of waterways, would address the shortcomings of the Clean Water Act and better support the human right to water for basic needs. Lessons learned from Clean Water Act implementation efforts can inform rights-based implementation strategies, such as expanding waterway restoration in addition to attending to antidegradation, and prioritizing whole waterway health rather than focusing primarily on individual designated uses.
Clearing skies and waters associated with COVID-19 shutdowns inspire visions of what life in harmony with natural systems might look like. The burgeoning rights of nature movement represents a new Earth Day revolution, one that is building modern legal and economic regimes that will guide us towards a mutually thriving relationship with the natural world.
[1] Argentina, Bangladesh, Bolivia, Brazil, Colombia, Ecuador, France, India, Mexico, New Zealand, Uganda, United States. [2] California, Colorado, Maine, Maryland, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Vermont, Virginia.
The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP22 Observer Delegation
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By Julia Muench
One year ago, parties to the UNFCCC signed the Paris Agreement, expecting it to come into force over the next four years as individual nations went through the slow process of ratification. To everyone’s surprise, the requisite number of nations ratified it, and as of November 4, the Paris Agreement officially came into force. Today, the parties to the UNFCCC held the first meeting under the Paris Agreement. At the opening ceremony, UN Secretary General Ban Ki-moon announced that this historic approval marks “a new dawn for global cooperation on climate change.” All of the speakers at the ceremony emphasized that this rapid endorsement demonstrates that the world is ready to move forward together to address climate change.
President François Hollande of France
The shadow of US President-elect Donald Trump occasionally threatened to cloud the day’s proceedings, but the new dawn continued to shine through. President François Hollande of France called for consistency and perseverance to work towards the goals of the Agreement, which he called irreversible in law, in fact, and in the minds of the citizens of the world. He specifically thanked President Obama for his crucial role in obtaining agreement in Paris, and then called out the United States, stating that “the largest economic power in the world and the second largest greenhouse gas emitter must respect the commitments they have undertaken.”
Jonathan Pershing, U.S. Deputy Special Envoy for Climate Change
The conversation about U.S. participation in the Agreement continued throughout the day. Jonathan Pershing, the Deputy Special Envoy for Climate Change, focused on market forces that have made fossil fuels unsustainable. For example, he pointed out that the U.S. currently has over 2 million renewable energy jobs compared to 65,000 coal miners. Although refusing to speculate on the future administration, he hinted that a President focused on jobs might find the renewable energy sector more attractive. He also observed that cities and local governments are already adapting to natural disasters, whether they were calling it adaptation to climate change or not.
Senior Advisor to the President Brian Deese and Secretary of Natural Resources for Vermont Deb Markowitz
In a heavily attended panel on U.S. Climate Action, Deb Markowitz (Secretary of Natural Resources for Vermont) addressed the tension head-on, theorizing that many people were there to find out just what effect the Trump administration would have. The panelists’ answer? Not as much as one might fear. Brian Deese (Senior Advisor to the President overseeing Climate Change and Energy Policy) emphasized that the Clean Power Plan was promulgated in response to a mandate from the US Supreme Court holding the EPA has a duty to regulate greenhouse gases. Even President Trump cannot reverse the Supreme Court’s holding, nor can he eliminate the Clean Power Plan without backing in science and law. Markowitz, meanwhile, focused on state action. She observed that state actions drove U.S. climate response during the Bush years, and pointed out that states from Texas to Vermont are deploying renewable energy projects.
As President Hollande observed [yesterday], our world is in turmoil – a setting in which “those who trade in fear are allowed to thrive.” In this world, many have come to doubt what the international community can do. But the Paris Agreement is a beacon of hope in the night, and “a promise of hope cannot be betrayed. It must be fulfilled.” With, or without, the President of the United States.
Summary : Parties to the UNFCCC gathered over the last two weeks for their mid-year meeting in Bonn, Germany to attempt to translate the recent treaties into substantive government policies. At center stage, was the recent Paris Agreement and its future effects as the parties begin to merge its elements with the UNFCCC’s Kyoto protocol and other pre-2020 pledges.
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By Tracy Bach
During the last two weeks of May, the parties to the United Nations Framework Convention on Climate Change (UNFCCC) gathered in Bonn, Germany for their regular mid-yearmeeting. This session is called SB44, which simply means the 44th meeting of the climate change convention’s subbodies , which include two standing groups, the SBI (Subsidiary Body for Implementation) and SBSTA (Subsidiary Body for Scientific and Technological Advice) and one temporary one, the APA (Ad Hoc Working Group on the Paris Agreement). SB44 is the place where the rubber meets the road. Few world leaders attend and even fewer members of the media. Instead, career diplomats who focus on international environmental law in general and climate change specifically come to Bonn to work out the technical realities of translating treaty words into governmental actions.
At SB44, the parties continued work on climate change mitigation and adaptation programs initiated under the UNFCCC and its Kyoto Protocol (KP). But it’s fair to say that this work was perpetually overshadowed by the future impacts of the Paris Agreement (PA).
What would happen to pre-2020 commitments under the KP’s Second Commitment Period if the Paris Agreement entered into force early? How do the NDCs or nationally determined contributions required under the Paris Agreement relate to the pre-2020 Cancun pledges? How will existing governance mechanisms under the UNFCCC and KP, like the KP’s CDM (Clean Development Mechanism) Executive Board , UNFCCC’s Standing Committee on Finance and Adaptation Committee , and the COP19-created Executive Committee of the Warsaw International Mechanism on Loss and Damage , serve the Paris Agreement? Will we simply learn from their track records of what (and what not) to do when creating new governance structures under the PA?
The Paris Agreement seized the center stage for at least a third of SB44’s agenda, given the number of tasks assigned by COP21 for moving into implementation. While on the surface, this work has the appearance of being technical, in reality it is rooted deeply in international politics. Hence the first week of the APA’s SB44 work was held up while the Parties disputed their agenda for the mid-year session. The G77+China the largest negotiating group in the UNFCCC negotiations filed a request before the opening plenaries with concrete suggestions for “balancing” the agenda so that it was less mitigation-centric a hangover from the UNFCCC and KP’s work programme foci. Through these agenda corrections, the G77 also sought to launch the next phase of work using the precise language that parties forged last December when agreeing by consensus on the COP21 decisions.
Forging North American relations at a biergarten on the Rhein.
The APA agenda dispute (and to a lesser extent, those in SBSTA and SBI) served as the opening salvo of a consistent campaign to address the constructive ambiguity that Parties had built into the Paris Agreement’s provisions very carefully. The art of compromise on display in Paris does not transition easily to the technical exercise in Bonn of translating those words into action. This difficulty stood out most strikingly for me on two agenda items: Paris Agreement Article 6 (“cooperative approaches”) and its relation to Article 5 (forests and other land use) and transparency and global stocktaking under Articles 13 and 14, including on finance. More to come soon on these specific topics.
For more articles by VLS Observer Delegation Click Here
Summary : Women have emerged as the most influential figures in the UN’s Convention on climate change. Female diplomats from Saudi Arabia and New Zealand have been elected to co-chair the fledgling APA, which develop guidelines pursuant to the recent Paris Agreement.
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By Bonnie Smith
For the first time ever, women dominate the most influential positions for the UN Climate Change negotiations. This significant change in leadership comports with the Preamble of the Paris Agreement, which states, “[p]arties shoul `d when taking action to address climate change, promote and consider their respective obligations gender equality [and] empowerment of women.”
Significantly, Christiana Figueres, affectionately nicknamed the “Climate Queen” at SB44, stepped down from her six-year tenure as Executive Secretariat of the UNFCCC and welcomed Patricia Espinosa , Mexican ambassador to Berlin, as her successor. The Parties elected Sarah Baashan, a Saudi Arabian diplomat, and Jo Tyndall, a former climate ambassador from New Zealand, to serve as the first co-chairs of the Ad Hoc Working Group on the Paris Agreement (“APA”) , established to develop rules and guidelines under the Paris Agreement.
UNFCCC leaders, delegates, and civil society groups maintained the dialogue on gender and climate change from the opening of the SB44 Conference to its conclusion. Jo Tyndall concluded the APA Plenary Session by remarking on the “whirlwind couple of weeks” at SB44, during which time she and Sarah metaphorically got married, birthed the APA baby, and watched the baby take its first breaths. As she concluded the session she vowed that she and Sarah would not drop the newborn APA baby.
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Summary : Conscious consumption is each individual’s responsibility. Understanding what we consume and how we facilitate the commoditization of life is a necessity if we are to promote the modification of social values to include holistic stewardship of our planetary resources.
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By Madhavi Venkatesan, PhD
All life has intrinsic value. Human life may be able to dominate and subordinate other life forms due to nothing more than brute force but does this equate with a fundamental right to forcibly inseminate, isolate, and commoditize other life forms? Arguably, the claim of human status based on a hierarchy of life forms would appear to be more consistent with stewardship, not domination.
To justify the horrific treatment of other life forms through an assertion that provision of quality of life would be too expensive provides a greater insight into the social values of the present period and nothing more. The treatment we provide to the voiceless impacts our sense of humanity and the manner in which we will ultimately treat one another.
Economics does not justify exploitation, it is a discipline founded on moral philosophy. The value and fairness elements that were embedded explicitly and implicitly in the work of Adam Smith and David Ricardo did not survive the overly simplified twentieth century quantification of the behavioral science. The ignorant greed among some in our society has promoted the use of price as a means to perpetuate profit and consumption, but this is not economic theory, this is the oversimplified, myopic perspective of the individual who is succumbing to self-focused benefit without thought of holistic cost.
Price is not an appropriate measure on its own. It is the fairness of price that is important. A fair price captures the cost of raising a healthy animal. A cheap price implicitly captures the low cost of raising an animal, not necessarily healthy and not net necessarily of nutritious value. The animal is produced like a piece of equipment on an assembly line, fattened with hormones, injected with antibiotics, living in and eating its own feces, with limited development physically and mentally; cheaply treated, cheaply priced, it offers minimal consumption benefit. The flesh that composed the animal, the same meager nutrition and development embedded in the animal will be the fuel source for the consumer. The cheapness in its price imposes yet another adversity: that life can be thrown awaytrashedbased on market-promoted price elasticity. Further from an ecological perspective, the concentrated living conditions of these voiceless, captive living commodities adversely impacts groundwater and, depending how feces are discarded, can create further human health impacts.
We have inherited frameworks that are based on ideas and beliefs that were and are not consistent with the reality of life. We live in a continuous system; how we treat other animals and how we treat the ecosystem we inhabit has an impact on human life both through human health and in how we develop, maintain, and pass on humanity as a social value.
Madhavi Venkatesan is a faculty member in the Department of Economics at Bridgewater State University, where her present academic interests are specific to the integration of sustainability into the economics curriculum. Prior to re-entering academics, Madhavi held senior level positions in investor relations for three Fortune 250 companies. In this capacity she was a key point of contact for investors and stakeholders and was singularly instrumental in the development of socially responsible investing strategies and corporate social responsibility reporting. Madhavi started her financial services career after completing her post-doctoral fellowship at Washington University in St. Louis. She has a PhD, M.A. and B.A. in Economics from Vanderbilt University and a Masters of Environmental Management from Harvard University. She is presently a Masters of Environmental Law and Policy candidate at Vermont Law School.
Summary : This post originally appeared in the Oxford Human Rights Blog on April 18, 2016. The systemic collapse of the U.S. coal extraction industry has scarcely been of benefit to the subordinated Appalachian citizenry. However, tangible socio-legal progress may be achieved in the Appalachian region vis-à-vis a critical human rights approach to environmental justice issues.
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By Nicholas F. Stump
The natural resource extraction industry has long wrought environmental, social, and economic devastation in Appalachiaa U.S. region historically defined by a deeply exploitative coal extraction mono-economy. However, in tandem with the (climate change-driven) global pivot towards non-carbon, cleaner energy sources, widely publicized market and legal developments have resulted in a systemic collapse of the once dominant American coal industry.
Progressive environmentalists rightly celebrate these historic energy market transitions towards a more renewables-focused power grid. The historic Paris Climate Agreement is perhaps a first crucial step in averting catastrophic, carbon-driven climate change. But the Appalachian region remains imperiled: Among other persistent issues ( endemic poverty , most notably), the catastrophic after-effects of surface miningpaired with environmental harms stemming inter alia from hydraulic-fracturing externalities and a crumbling infrastructure pose serious public health concerns for the Appalachian citizenry.
“Appalachia” by Justin Meissen (licensed under CC by SA 2.0)
Poisons continuously leach into Appalachian waterways via, among other multitudinous sources, coal slurry ponds, decades-old acid mine drainage, and endless MTR valley fills (which have obliterated over one thousand miles of Appalachian headwater streams). This coal extraction-produced “environment degradation will remain despite the reduction in the production of coal.” Concurrently, fracking operations poison Appalachian water and air alikeand incidents stemming from a rapidly deteriorating infrastructure produce environmental disasters on the scale of the Elk River Chemical Spill , a national U.S. scandal that left three hundred thousand Appalachian citizens without potable water. Therefore, vast stretches of Appalachia are marked by insufficient environmental protections.
These dire public health concerns are usefully explored using a human rights approach to environmental justice (“EJ”), which illustrates how disproportionate environmental impacts on subordinated groups are problematic and that structural environmental inequities must be remedied as part and parcel of any comprehensive and just regional socio-legal reconstruction project.
EJ has been a prominent critical discourse for decades. Supported by empirical literature , it teaches that environmental harms tend not to be distributed equitably within modern industrialized liberal democracies; rather, minority, female, and low-income populations suffer disproportionate health and economic-related impacts. Moreover, EJ has continued to evolve. Third and fourth wavecritical re-visionings of EJ involve an “integrated particularized approach” that exhibits a “greater complexity based on each community’s cultural, historical, and political experience and its specific needs and goals.”
The Clinton Administration’s Executive Order 12898 institutionalized normative EJ principles in the U.S.; following a period of turbulent policy oscillation, President Obama subsequently reinvigorated the order in 2008. Under E.O. 12898, U.S. federal agencies must consider EJ dictates in applicable regulatory decision-making. To date, widespread implementation of the order has proved largely elusiveand the failure of E.O. 12898 to curtail the long-lasting public health impacts of the radically destructive mountaintop removal mining (“MTR”) practice on low-income Appalachian populations, in particular, is now well-documented.
A human rights approach to EJ strengthens the discourse and is especially applicable to the uniquely situated Appalachian region. Scholarly commentators and legal practitioners have “framed the demands of the environmental justice movements nationally and globally in the language of human rights.” For instance, insufficient environmental protections pertaining to the “substantive right to a healthy environment ” are a prima facie violation of principles articulated in numerous regional treaties ; additionally, tribunals have determined that insufficient environmental protections pertaining to ” life, health, food, [and] water ” implicitly violate other regional human rights treaties.
Such legal trends are heartening. E.O. 12898 has failed Appalachia in part because its dictates are merely one factor to be weighed by an often-captured governmental elite. Re-visioning EJ concerns as not a sole regulatory factor, but rather as enforceable, controlling human rights may indeed yield more transformative EJ outcomes for the region. Moreover, a critically informed human rights approach wherein the Appalachia demos co-determines the scope and nature of such rights at the grassroots levelis a crucial procedural component for a citizenry so long marginalized by structural democratic deficits.
Profound Appalachian socio-legal reconstructions are indeed required in the region: And a more substantial human rights approach to EJ is perhaps one component of a more comprehensive critical project for radical Appalachian reform. Socio-reconstructions of this nature are necessary ends-in-themselves; however, such reformist efforts may additionally serve as a potentially potent model in broader regional and global work. Diverse reformist outcomes might, therefore, be accomplished through critical explorations of Appalachian human rights.
Nicholas F. Stump is a Library Faculty Member at West Virginia University College of Law, where he administers and teaches in the legal research curriculum. Professor Stump’s scholarship focuses on the intersection of environmental law, Appalachian studies, critical legal theory, and critically informed approaches to legal research and analysis.
Summary : Wastewater from hydraulic fracturing (“fracking”) is not well-regulated in the United States, even though regulations exist at federal and state/local levels. This author recently published an article in which he argues the need for a federal commission, similar to the Nuclear Regulatory Commission, to regulate fracking wastewater (link provided in the text below). The following is a taste of the author’s arguments from his article.
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By Curtis Morrison
Federal agencies have failed to effectively regulate the clandestine fracking waste disposal industry. Some state and local fracking regulation exists, but much of that regulation has not proven effective at protecting communities from fracking waste. And sometimes, local fracking regulation has not survived the scrutiny of courts and state legislatures.
Last week, the Whittier Law Review published an article I authored: Fracker in the Rye: The Necessity of Federal Fracking Waste Regulation and a Fracking Waste Regulatory Commission. The article surveys the giant loopholes and shortcomings within the shockingly scarce regulatory regime regulating fracking waste disposal. Through examples of wastewater disposal in places you might not expect, the potential hazards to human health and the environment are examined. The article proposes comprehensive federal regulation of fracking wastewater disposal and the fracking waste management industry through the creation of a new federal commission to enforce it. Finally, it calls on members of Congress to pass federal fracking waste disposal regulation, and create a federal fracking waste regulatory commission modeled off the Nuclear Regulatory Commission.
Wait . . . there’s a fracking waste disposal industry? And it’s unregulated? Yes and yes, but let’s backup for the newbies. Fracking is the process of pumping water and chemicals underground at high pressure to force out oil or natural gas that would have otherwise stayed in the ground for time immemorial. Once these fluids return to the surface, they can also contain metals, dissolved solids, salts, and naturally occurring radioactive material. Although the industry prefers the term “produced water,” these fluids are more accurately coined fracking wastewater.
“You’re destroying public trust resources . . . [l]iterally destroying water,” explained Helen Slottje, New York attorney and founder of Community Environmental Defense Council at a 2015 environmental law conference. “It would be better to take the water that they use for fracking and put it on a rocket ship and send it to the Moon than to [re-] use it for fracking because that water is then available to pollute more water.”
Fracking fluid and other drilling wastes are dumped into an unlined pit located along the Petroleum Highway. Nets were installed on these pits to keep birds from dying in the toxic water. Photo Credit: Sarah Craig/Faces of Fracking
While some larger oil and gas companies handle their own fracking wastewater disposal, typically a wastewater disposal contractor relocates the waste far from the fracking site via pipes, trucks, trains and even barges. Then where does that all that fracking waste go? That’s a good question, with no comforting answers. In Kern County, California , for example, wastewater is left to evaporate in unlined pits where it invariably infiltrates groundwater. Elsewhere, wastewater is injected into abandoned Class-II wells where it also threatens to infiltrate groundwater.
Would a federal ban on fracking be better? Of course. Will that be politically feasible in the near future? Before you answer, consider that a SuperPac supporting Sec. Hillary Clinton’s bid for the presidency, credits her for “channeling the domestic energy boom into a geopolitical tool to advance American interests around the world.”
In the meantime, under the existing legal regime, fracking wastewater continues to irreversibly pollute sacred groundwater and aquifers across the nation. Shouldn’t Congress do something?
Curtis Morrison is a Whittier Law School J.D. candidate expecting to graduate with an environmental law concentration next month. He volunteers as a law clerk with Our Children’s Trust , the Oregon-based non-profit devoted to atmospheric trust litigation. When time permits, he also writes about the environment, government, and politics