Category: Ecoperspectives

The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP21 Observer Delegation

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By Katherine Dressel

The European Union recently celebrated 30 years of the border-free Schengen Area , a crucial pillar of the European Single Market. Schengen cooperation guards the fundamental right of 400 million E.U. citizens to cross internal borders without being subjected to cumbersome border checks. This guarantee also applies to many non-EU nationals, cross-border commuters, and tourists. With COP21 fast-approaching the city of Paris, the Schengen Area is struggling to find a balance between freedom of movement and security.

Schengen Area

The refugee crisis in Europe has been the worst crisis since World War II. A record number of individuals are seeking asylum within the E.U. A U.N. refugee agency reported that 218,394 people crossed the Mediterranean to reach Europe this October, which is close to the number from the entire year of 2014. The refugee crisis is challenging the notion of free movement of people across borders. Pressure is mounting to close the E.U.’s open borders along the migrant trail. The recent flood of refugees has overwhelmed countries outside of the E.U., which have been receiving limited support from Member States. European leaders are demanding a restoration of border control, and are questioning the concept of the Schengen area. Have citizens of the E.U. been taking Schengen and the right to move freely for granted?

The French government will reintroduce border controls for the month surrounding COP21, beginning on November 13 ^th and ending on December 13 ^th , two days after the COP21 is scheduled to end. According to Article 23 of the Schengen Borders Code , this measure is taken “where there is a serious threat to public policy or internal security.” The possibility that any open zone of the Schengen area will be suspended “is impending dangerously over the core principle of free movement and is a further blow to the European integration.”

For this month, no one—includ ing E.U. citizens—will be able to move freely across French borders. French officials published a document via the E.U. Council which states France’s plan to reintroduce controls at the borders of Belgium, Luxembourg, Germany, the Swiss Confederation, Italy and Spain “on the occasion of COP 21. ” Le Monde published that “since the Borders Code came into force in 2006, each time border controls have been reintroduced, it has been for the purpose of preventing terrorism and crime, and for security purposes related to the hosting of international meetings or sports events.”

It’s not only the refugee crisis that is persuading France to close its borders. Minister of Foreign Affairs and Chair of COP21, Laurent Fabius, says that 80 Heads of State and foreign officials will appear at the Conference. He fears violence by protesters and green activists. The Ministry has created a special procedu re  for accredited participants of COP21, particularly those that require a visa to enter France.

Close-up page of passport with Schengen visa.

It seems that the civil society mobilizing for COP21 is being targeted; “embassies are requesting various documents including invitations from us and proof of the applicant’s ability to pay for transport, among other requests,” says a spokesperson for Coalition Climat 21. Mouhad Gasmi is the voice against shale gas in Alegeria. He filed a visa application on October 21 ^st , invitation to COP21 in hand. The consulate of France in Algeria gave him an appointment for one month after COP21. Climate 21 further states, “the government is choosing who they want to take part in the official summit.”

The public is “unconvinced of the French government’s claim that it is willing to include them, in all their diversity, in the COP process.” Do France and other E.U. Member States need to sacrifice freedom for safety and peace?

For more articles by VLS COP21 Observer Delegation Click Here

The post COP21: Threat to Public Policy? appeared first on Vermont Journal of Environmental Law.

The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP21 Observer Delegation

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By Sara Barnowski

Climate change is proven – the vast majority of the scientific community , along with many major businesses and nearly every major insurance provider , all agree that climate change is having real impacts on the world today. Most also believe that those impacts are the result of anthropogenic activity. However, the facts about climate change are not being translated into political action. This is in large part because the facts are not driving the discussion.

Sen. James Inhofe

Despite the fact that the latest IPCC report states that “warming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia,” and that “human influence on the climate system is clear,” somehow 18% of the US population still does not believe global warming is occurring, and 35% does not believe that it is caused by human activity. Even worse, the 114th Congress includes 162 climate deniers (approximately 30% of Congress) with only eight states represented exclusively by individuals who believe that addressing climate change is a priority.

Who are all of these climate deniers? Many Americans, if asked to picture a climate denier, would likely picture a figure like Rush Limbaug h or Senator James Inhofe. It turns out that there is more to this assumption than mere stereotyping. Several studies have been published over the past five years, building on existing bodies of research, which all indicate that climate skeptics are most likely to be white, conservative men. I took a closer look at three psychology and sociology studies from three different continents, all of which came to this same conclusion.

A study out of Cardiff University indicated that men are more skeptical of climate change than women, and that “political affiliation is a strong determinant of skepticism, with Conservative voters amongst the most skeptical.” An American study out of Michigan State University was one of the first to explicitly categorize “conservative white males” as the most skeptical of climate change. This study went a step further to analyze conservative white men who self-reported an above average understanding of global warming (considered “confident conservative white men”). By isolating these individuals, the study found that 48.4% of confident conservative white men believe the effects of global warming will never happen, compared to only 8.6% of all other respondents. Additionally, it found that while 71.6% of confident conservative white men believed that recent temperature increases are not primarily due to human activities, only 34.2% of all other respondents feel that way. Finally, a 2015 study published in the New Zealand Journal of Psychology supported and extended the “conservative white male” effect based on a sample of over 6,000 New Zealanders. This study confirmed that conservative white males (along with older individuals with high levels of socioeconomic status and less education) are disproportionately more likely to be skeptical of the reality of climate change and its anthropogenic cause.

Ms. Usha Nair, representative of the global south and current Co-Focal Point of the Women and Gender Constituency stakeholder group

These studies essentially just prove what most of us already knew or assumed. But the impact of the “conservative white man” syndrome is significant. Not only do the studies provide scientific evidence that conservative white men are the least likely to take action on climate change, it also indicates that “beliefs about climate change are fundamentally linked to existing values and worldviews,” and “are not a result of knowledge deficit or misunderstanding.” In other words, they are also least likely to be swayed by the overwhelming scientific consensus or by the urgency of environmental advocates.

None of this would matter so much if it were not for the fact that political decisions related to climate change are predominantly made by men. The UNFCCC Conference of the Parties is actually mandated to “improve the participation of women in bodies established under the Convention and its Kyoto Protocol.” However, progress is slow, and the involvement of women in recent Conferences of the Parties has been limited. Women only represented 36% of the Party delegates to COP20 last year, and only represented 26% of the heads of Party delegations. This year, women represent only 25% of the members of constituted bodies (which is a ~3% decline from last year) and represent only 23% of the regional groups and other Party groupings.

Senate majority leader, Mitch McConnell, and other Senate republicans

Even if we give the benefit of the doubt to the Conference of the Parties and assume that the participants in the process are all committed to combating climate change, any international agreement that the Parties sign must still be approved by two thirds of the United States Senate for it to become legally binding on the U.S. (although there are alternative mechanisms for the country to deposit its “instrument of ratification” with the UNFCCC). At least one source indicates that 32% of the current Senators are climate deniers, creating a very narrow margin for the 66% approval of any international climate change agreement. The fact that the whole of the U.S. Senate is currently 54% republican , 94% white , and 80% male does not lend hope to the cause.

Now, none of this is to say that every climate denier is a conservative white male, nor is it to say that all conservative white males are climate deniers. It is my ardent hope that the current United States senators (republican, democrat, Caucasian, minority, male, and female alike) will vote to approve the agreement reached at Paris this year. But if they do not, it might be an additional incentive to diversify our elected officials.

For more articles by VLS COP21 Observer Delegation Click Here

The post Ready for COP: The Role of Gender in Climate Politics appeared first on Vermont Journal of Environmental Law.

   The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP21 Observer Delegation.

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By Madhavi Venkatesan, PhD

Given the defined divide in country specific stakeholders concerns, along with the lens of personal circumstances and beliefs, that promotes a heterogeneity of perspective among COP21 participants, the ultimate success in Paris may rely on the establishment of an agreeable definition of consensus.

In the United Nations Fram ewor k Convention on Climate Change (UNFCCC) the word “consensus” is used three times, once in Article 7(k) and twice in Article 15. In the first use, consensus is not defined but rather provides the defining boundary for the adoption of “rules of procedure and any financial rules,” as these relate to the establishment of the Conference of Parties. In Article 15 paragraph 3, consensus is referenced as the basis of implementing amendments to the Convention; however, again it is not explicitly defined. Instead, the proportion that constitutes consensus can be inferred as being greater than 75%, based on the parameters provided for action in the absence of noted consensus.

If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting at the meeting. The adopted amendment shall be communicated by the secretariat to the Depositary, who shall circulate it to all Parties for their acceptance. (Article 15, paragraph 3)

As noted by Jesse Vogel, specific to the UNFCCC and the Convention, consensus “does not mean complete unanimity. Often it is defined in the negative – the absence of ‘stated objection,’ or of ‘express opposition,’ leaving wiggle room when it comes to defining just what explicit objection looks like. And sometimes, “consensus” can be declared despite the express objection of some.” The lack of clarity of defining what constitutes consensus has been a point of concern for many observers and participants.

La Viña and Guiao comment, “There is, after all, a profound difference between having the agreement of all Parties, and hearing no objections from any of them.” The latter aspect is not necessarily consistent with consensus and in review of prior COP meetings is attributed by some to purposely-deafened ears.

At COP21, the common values of stakeholders will do much to promote a singular foundation for discussion. However, the inclusion, acknowledgement, acceptance, and ultimately overt compromise related to the differences between the national interests represented by meeting participants will be the defining elements of the legacy of the meetings, and the implementation of consensus will play a significant role.

For more articles by VLS COP21 Observer Delegation Click Here

The post Ready for COP: The Significance of Defined Consensus appeared first on Vermont Journal of Environmental Law.

Climate change affects animals. This is not a new revelation. The first IPCC Assessment Report, released in 1990, discusses how climate change negatively impacts polar bears. But the conversation on animals and climate change often neglects the stories of how animals survive by adapting to climate changed conditions.

This endangered subspecies was considered a “goner,” but then the Quino did something surprising. Surrounded by desert, the butterfly could not migrate butterflynorth to wetter terrain. Instead, it moved to higher ground. The Quino population resettled at a higher elevation and most importantly, adapted to using a new host plant. This adaptation is exciting because it indicates what one scientist calls “a genetic revolution.”

For more articles by VLS COP21 Observer Delegation see: http://vlscop.vermontlaw.edu/2015/10/14/animal-adaptation-to-climate-change-looking-through-the-lens-of-the-quino-checkerspot-butterfly/

Summary: Following the European Union’s update of its policy on genetically engineered crops in March, Scotland and Germany became the first member states to use the policy to ban further cultivation of genetically engineered crops within their borders. With more member states likely to join Scotland and Germany in the wake of their bans, these new policies demonstrate a shift in how countries are thinking about the environmental effects of genetically engineered crops.

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By Andrew Minikowski

This past March, following years of delay and internal debate, the European Union updated its formal policy regarding genetically engineered crops. Under the updated policy, any genetically engineered crop strains must be approved for safety by a European Union review board before they may be grown within the individual member states. As a compromise, the updated policy contains a provision whereby member states may opt out of growing genetically engineered crops—even if they have been approved for cultivation by the European Union itself. Thus, the opt out provision essentially allows member states to individually ban the cultivation of genetically engineered crops within their respective territories.

In early August, Scotland became the first member state to officially use the opt out provision to halt future cultivation of genetically engineered crop varieties by Scottish agriculturalists. The ban was met with resounding applause by anti-genetic engineering advocates, even if many commentators saw the ban as merely a way for Edinburgh to further distance itself politically from London. Indeed, the rest of Great Britain has vigorously embraced the growth of genetically engineered crops since the March policy update, despite significant domestic resistance. However, several weeks after Scotland’s band, Germany followed suit and announced a domestic ban. Given Germany’s prominent role in the European Union and status as a global economic powerhouse, the German ban is likely to be influential in other member states and beyond. But what is it that drove Scotland and Germany to adopt a full ban on the growth of genetically engineered crops?

Genetically engineered crops—particularly strains of corn, soybeans, and wheat—have proliferated wildly since their introduction in the 1990s. Many agriculturists were attracted to the crops given their higher yields, lower water requirements, and greater resilience to weeds and other pests. However, there has been strong resistance to genetically engineered crops since their initial introduction. Often erroneously referred to as “genetically modified organisms” or “GMOs,” a crop is genetically engineered when humans insert foreign genetic material into the crop’s genetic structure in order to achieve particular traits that would not be possible to achieve through traditional crop breeding. Conversely, genetic modification is the process by which humans cross-breed particular strains of a crop to achieve desired traits and has been utilized by mankind since the dawn of agriculture.

Though the science on the health effects of genetically engineered crops and food byproducts is inconclusive at best, the consensus on the environmental effects of cultivating genetically engineered crop strains is firmly established. Genetically engineered crops decrease biodiversity, negatively impact local plant species, cross-pollinate (or, perhaps, cross-contaminate) with heirloom and organic crops, and contribute to greater use of herbicides and pesticides that can severely damage local flora and fauna. Due to the environmental and ethical objections of many citizens, 64 countries—including major international players such as Japan, Russia, and China—require the labeling of food products containing genetically engineered material. Of these 64 countries, 28 are European Union member states. In its typical lag behind the rest of the industrialized world, the United States requires no labeling of such products, though three states have enacted legislation to do so. The laws in Connecticut and Maine currently remain dormant under their trigger clauses and will only become operative when a requisite number of other states enact similar legislation. Vermont’s labeling law is slatedto go into effect in 2016 but is currently under heavy assault in federal court by the Grocery Manufacturers Association and its industry allies.

Interestingly, the bans in Scotland and Germany seem to have been prompted primarily by the environmental effects of genetically engineered crop cultivation, rather than ethical or consumer protection reasons. Whereas many individual citizens and Internet “slacktivism” are overwhelmingly focused on the perceived health impacts of genetically engineered crops, national governments seem to be preoccupied with the environmental repercussions of growing such crops. Indeed, this was apparent in the statements of Scottish and German officials when announcing the respective bans.

Richard Lochhead, the Scottish Secretary of Rural Affairs, noted that the ban was prompted by Scotland’s concern for its “beautiful natural environment” and that banning the crops would help cultivate the country’s “clean, green status.” Several members of Scotland’s Parliament voiced support for the ban, commenting on the potential for the crops to harm Scotland’s environment. When Christian Schmidt, the German Agriculture Minister, announced Germany’s ban, the Scottish National Party praised Germany’s decision and noted that “the German government recognizes the importance of…keeping its environment clean and green.”

Thus, the rhetoric accompanying the Scottish and German bans demonstrates that national governments have begun to think about genetically engineered crops from a primarily environmental perspective, rather than in response to potentially unfounded consumer concerns or purely economic motivators. That governments are willing to listen to environmentally motivated arguments should encourage advocacy groups and individuals to petition their own governments froman environmental angle. Indeed, these concerns have surfaced in the United States as well, as the statement accompanying Vermont’s labeling bill specifically noted the threats that genetically engineered crops pose to biodiversity and ecological health.

This shift in thinking about genetically engineered crops bodes well for activists, as the studies evaluating the environmental effects of genetically engineered crops are much more scientifically established than those regarding human health effects. Additionally, given the international influence of Scotland and particularly Germany, it is likely than many other countries may follow their example in the coming months. As for other European Union member states, the individual countries have until October to act under the opt out provisions of the March policy update.

  Andrew W. Minikowski graduated summa cum laude from Vermont Law School in 2015. While at Vermont Law, he served as Editor-in-Chief of the Vermont Journal of Environmental Law , competed as a member of the Pace National Environmental Law Moot Court Competition team, and worked on Vermont’s labeling bill lawsuit as a student clinician in the Environmental and Natural Resources Law Clinic. He is currently serving as a judicial law clerk on the Connecticut Supreme Court. In his spare time he enjoys reading, botanizing, and backpacking.

The post Scotland and Germany Use Updated European Union Policy to Ban Cultivation of Genetically Engineered Crops appeared first on Vermont Journal of Environmental Law.

Summary: The Fukushima Daiichi Disaster was a public health, environmental, and economic catastrophe, and Japan will feel its effects in those sectors for years to come. While Japan once had one of the world’s most diverse energy portfolios, the loss of its nuclear program has caused a sudden shift towards a fossil-fuel heavy generation industry. Subsequently, Japanese greenhouse gas emissions and electricity costs for industrial and residential consumers have skyrocketed. In August 2015, the Sendai Nuclear Power Plant began its restart procedures, marking the beginning of the planned restart of the Japanese nuclear program and, likely, an eventual return to a more diversified energy portfolio.

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By Jared E. Schroder, Esq.

On August 11, 2015, the Kyushu Electric Power Company began the restart process on the No. 1 reactor of its Sendai Nuclear Power Plant in Kagoshima Prefecture. This marked the first restart of a nuclear power plant in Japan since the country’s Nuclear Regulation Authority (NRA) ceased all commercial nuclear operations in 2013 in response to the Fukushima Daiichi Disaster in March, 2011. While Japan’s 48 nuclear reactors have been idling, the NRA issued new safety rules meant to ensure that a disaster like the meltdown at the Fukushima Daiichi Plant would never happen again. While the effects of the Fukushima Daiichi Disaster were catastrophic, the effects of Disaster on Japan’s energy strategy and the change in how Japan meets its energy needs is often understated and much like the meltdown itself, will carry lasting effects on the environment and Japanese economy.

http://www.nbcnews.com/news/ world/japan-restarts-sendai-nuclear-reactor-four-years-after-fukushima-meltdown-n407676

Prior to the Fukushima Daiichi Disaster, Japan had one of the most diverse energy portfolios of any nation. Largely dependent on importing its natural resources, Japan had adopted nuclear power as a key component of its energy generation strategy. In the two years prior to the Fukushima Daiichi Disaster, nuclear power represented 27% of the country’s net electricity generation. The country had planned a massive expansion of its nuclear power program in a bid to reduce greenhouse gas emissions, with its 2010 Energy Plan calling for at least a dozen new nuclear reactors to be constructed by 2020, raising nuclear-fired generation to 50% of the country’s total energy generation.

These ambitious plans were derailed, however, when a magnitude 9 M _w earthquake occurred off the Japanese coast on March 11, 2011. The earthquake and the following tsunami caused extensive damage to the five units of the Fukushima Daiichi Nuclear Power Plant. The loss of the backup power supply, damage to the infrastructure and machinery, and the debris deposited by the tsunami created a catastrophic situation, eventually leading to multiple explosions and mass discharges of radioactive material. The Official Report of the Fukushima Nuclear Accident Independent Investigation Commission concluded that this was “a manmade disaster”, and the nuclear program in Japan was quickly halted under public pressure, with the country’s nuclear plants either being decommissioned or idled pending permission to restart.

http://fukushimaupdate.com/ industry-paper-investigates-why-other-plants-were-not-affected-like-fukushima/

In the meantime, Japan’s energy industry has undergone a dramatic change. With the loss of nuclear power, the electricity generation shifted towards a fossil-fuel dependent portfolio. In 2013, natural gas, coal, and oil represented 43%, 30%, and 14%, respectively, compared to 30%, 24%, and 7%, respectively, in the two years prior to the Fukushima Daiichi Disaster. Meanwhile, regulators have relaxed policies on inspections of generation plants, utilities have restarted mothballed oil-fired generation units, and the government has promoted power restrictions for consumers and other demand-side measures during peak-use times.

This shift from a nuclear and renewable-heavy portfolio to a fossil fuel dominated generation sector carries with it a massive shift in the Japanese environmental program. While it was well on its way towards cutting greenhouse gas emissions in its energy production sector, it has been forced to abandon its plans and rely largely on fossil fuels to power the country. Furthermore, the rapid shift to fossil fuel-based generation meant that older and “dirtier” units had to be activated to meet the sudden need, compounding the emissions increase. Well on its way towards drastically minimizing the importance of fossil fuels in its energy portfolio, Japan’s post-Fukushima nuclear policy has instead made fossil fuels the primary sources of electricity generation and consequently has drastically increased the country’s greenhouse gas emissions to record levels.

Environmental considerations aside, the turning to fossil fuels to fill the gap in generation capacity created by the Fukushima Daiichi Disaster and the subsequent nuclear policy carries drastic economic considerations for Japan. Japan imports most of its natural resources and virtually all of its fossil fuels, making electricity produced using these sources very expensive. In the three years following the Fukushima Daiichi Disaster, Japan spent approximately $270 billion on fossil fuel imports , around 58% more than it had in the years prior to the Disaster. This expense trickles down to the consumer, raising end-user electricity rates to levels where smaller businesses are struggling to bear this increased burden. In short, the loss of its nuclear power has carried drastic negative economic implications for Japan.

Banner says, “Goodbye nuclear power station,” in Japanese. http://www.3news.co.nz/world/ protests-as-japan-restarts-nuclear-reactor-2015081121#axzz3khmNaJEI

Despite the all clear to begin the restart of the nuclear program, the road towards reintroducing nuclear power to Japan is likely to be long and turbulent. The restart decision faces robust public opposition, as there is a strong anti-nuclear movement among the Japanese people, whose trust in both nuclear power and their government regulation of the nuclear infrastructure was deeply shaken by the Fukushima Daiichi Disaster response. The process itself is complex and difficult; only days after the Sendai plant began its restart, the process was halted due to a malfunction in a secondary cooling system. With no other option in the meantime, Japan’s electricity generation will likely remain highly dependent on “dirty” and expensive fossil fuels until the country either finds a new way to shift towards renewables or has ramped up a safer nuclear program with public support.

Jared E. Schroder is a graduate of Wesleyan University and a magna cum laude graduate of Vermont Law School, from which he graduated in 2014 with a General Practice Certificate. Mr. Schroder is interested in the role of energy policy and economics in international relations, international law, and environmental law. Currently living in Washington, D.C., Mr. Schroder is a member of the New York Bar.

The post Sounding the All (Nu)Clear: Restarting Japan’s Nuclear Plants Post-Fukushima Disaster appeared first on Vermont Journal of Environmental Law.

Summary: In his May encyclical, Pope Francis called for swift global action on climate change. He linked science, morality and church doctrine to do so.  Now, citizens around the globe are taking action.

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By Ashton Roberts

On May 24, 2015 Pope Francis used his encyclical as a vehicle to call for a sweeping transformation of politics, economics, and lifestyles to tackle environmental degradation and climate change. He pleaded for swift global action through a critique of consumerism and wasteful development. The Pope’s 184-page encyclical highlights the looming crisis posed by climate change and places most of the blame on human activity and fossil fuels. He bravely linked church doctrine, personal morality, and the environment, something that scientists have avoided doing for decades. The Pope warned of “unprecedented destruction of ecosystems, with serious consequence for all of us” if action is not taken swiftly. He chastised indifference, the pursuit of wealth; trust in technology and political thoughtlessness, saying that relentless exploitation and destruction of the environment are the result. Francis has outlined a three-pronged climate change fix: remove greenhouse gases in the atmosphere, restore ecosystems, and help the people who are most vulnerable to climate change with resources to adapt to our changing climate.

https://commons.wikimedia.org/wiki/File:Pope_Francis_Photo_1.jpg

The Pope states that climate change has grave implications, noting that it is one of the “principal challenges facing humanity today.” He goes on to point out that the most vulnerable victims are the poor, many of whom survive on subsistence lifestyles, and are almost wholly dependent on natural reserves and ecosystem services, without which they will have no means of recovery or adaptation. He holds developed countries responsible in particular saying, “the warming caused by huge consumption on the part of some rich countries has repercussions on the poorest areas of the world, especially Africa, where a rise in temperature, together with drought, has proved devastating for farmers.” The Pope further criticizes businesses that export waste and pollute in less developed countries “in ways they could never do at home, in the countries in which they raise their capital.” His critique of the developed world continues still, arguing against notions that current economics and technology will solve environmental problems stating that on the contrary ” technocratic domination leads to the destruction of nature and the exploitation of people.” Pope Francis champions the perspective of water as a basic and universal human right, because it is “essential to human survival and, as such, is a condition for the exercise of other human rights,” critiquing those who, despite its scarcity, seek to privatize water by turning it into a commodity laid at the alter of the market.

Moving to link morality to the climate change debate, the Pope entreats the international community to take action, saying “recent World Summits…have not lived up to expectations because…they were unable to reach truly meaningful and effective global agreements on the environment …. there is an urgent need for politics and economics to enter into a frank dialogue in the service of life, especially human life.” He highlights this need by writing, “what kind of world do we want to leave to those who come after us, to children who are now growing up …? [I]t is no longer enough…to state that we should be concerned for future generations. We need to see that what is at stake is our own dignity.”

https://commons.wikimedia.org/wiki/Earth#/media/File:The_Blue_Marble.jpg

So what is the take-away from all of this? Climate change is a very real threat. Religious and social leaders are taking steps to push governments around the world to take action and protect our atmosphere. In August, twenty-one young people, with the help of the nonprofit Our Children’s Trust , filed a landmark constitutional climate change lawsuit against the federal government, seeking a court order requiring the President to immediately implement a national plan to decrease atmospheric concentrations of carbon dioxide to a safe level: 350 ppm by the year 2100. In late July, a court in the Netherlands agreed with the citizens that “the severity and scope of the climate problem make it necessary for the Dutch government to reduce the Dutch greenhouse gas emissions at a much higher rate, imposing a 25% reduction by 2020.” This fall nations from around the globe will convene in Paris for COP21 with the aim to create a new international agreement on the climate, applicable to all countries, with the aim of keeping global warming below two degrees Celsius. But, if an agreement isn’t reached we may see more lawsuits on the horizon as citizens take their future on this planet into their own hands.

Ashton Roberts is a 3L at Vermont Law School, working towards her Juris Doctor, Masters of Environmental Law and Policy degree, General Practice Certificate, and Criminal Law Certificate. Prior to law school, she attended Virginia Tech where she earned a B.S. in Environmental Policy and Planning. She is a managing editor on the Vermont Journal of Environmental Law. Most recently, Ms. Roberts worked as a law clerk at Our Children’s Trust in Eugene, Oregon.

The post Pope Francis’ 2015 Encyclical: The Environmental Reader’s Digest Version appeared first on Vermont Journal of Environmental Law.

Summary: The recent decision by the U.S. Supreme Court in  Michigan v. EPA  is a shift for this historically Clean Air Act-friendly Court. It is the first “anti-environmental” decision in the CAA realm since their 2007 Massachusetts v. EPA  ruling. Here, the Court concluded that EPA must consider compliance costs when determining  whether to  regulate toxic emissions from power plants, rather than consider the cost when determining  how to  regulate emissions. The consequences of which may be felt as the Obama Administration unveils the final version of the environmentally ambitious Clean Power Plan.

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Ashton H. Roberts

Annually, late June and July bring with them not only the heat of summer but also a plethora of influential U.S. Supreme Court (Court) opinions and this term was no different. The Court has a history of groundbreaking decisions in the realm of environmental law and the lesser-publicized Michigan v. Environmental Protection Agency (EPA) is one for the Clean Air Act (CAA) record books. The issue in the case, put simply, is whether EPA should consider compliance costs when determining anti-pollution power plant regulations. The answer is “yes,” but the application is not so simple.

An understanding of the history of this regulation is essential to grasp the gravity of the Court’s decision in this case; EPA’s regulation of toxic chemicals has been a long time coming—forty-one years to be exact. Since the Clean Air Act was enacted in 1970, EPA has been directed to regulate the emission of toxic chemicals by coal and oil fired power plants but had neglected to do so. Congress got involved in 1990 when they issued amendments to the CAA, which created a list of toxic chemicals that needed regulating and also ordered EPA to conduct a study to determine whether and how to regulate toxic emissions from power plants. That study was then intended to inform the EPA administrator’s decision to “regulate electric utility steam generating units [power plants] under this section [ § 112 ], if the Administrator finds such regulation appropriate and necessary after considering the results of the study…” In 2000, EPA determined, from the study released in 1998, that it was “appropriate and necessary” to regulate toxic emissions from power plants. In 2005, EPA, under President George W. Bush, reversed the “appropriate and necessary” finding, but the U.S. Court of Appeal for the D.C. Circuit vacated the decision, saying EPA’s attempt to reverse its finding was unlawful. Then, in 2011 the Obama Administration confirmed the 2000 findings and EPA issued the ” Mercury and Air Toxics or MATS rule ,” the regulation at issue in the Michigan case. This regulation, forty-one years after the CAA was enacted, was EPA’s first attempt to regulate power plant emissions of toxic chemicals under § 112 of the CAA.

https://commons.wikimedia.org/wiki/File:Apollo_Beach_power_plant_01432.jpg

The MATS rule applies to the nation’s large network of coal and oil fired power plants; this includes the more than fifty percent of them that were built before the Clean Air Act was even passed in 1970. In the United States power plants are the primary emitters of mercury, acid gases, and numerous toxic metals and about 40% of them do not have advanced emissions controls. The rules would regulate the emission of many toxic pollutants including mercury, arsenic, benzene, and hydrochloric acid; power plants are the largest stationary emitters of these pollutants in the U.S. Mercury is especially hazardous; it causes birth defects in utero, causes major harm to the brain, kidneys, nervous system, and liver. But, the MATS regulations would reduce mercury emissions by about ninety percent. EPA estimated that by 2016 the rule would save up to 11,000 lives due to premature deaths and provide up to $90 billion in health benefits associated with meeting the new standards for air toxics. A lot was at stake for EPA when this case went before the Court on March 25, 2015.

The question before the court focused on EPA’s decision to exclude cost considerations associated with regulating emissions despite the phrase “appropriate and necessary” in § 112 of the CAA. In June, Justice Scalia delivered the opinion of the Court, which used the traditional two-step Chevron doctrine which asks two questions: first, “is the phrase at issue ‘unambiguous'”; and second, “is the agency’s interpretation of the disputed phrase is a reasonable one?” The Court determined first that the phrase “appropriate and necessary” was ambiguous and thus progressed to issue two, whether it was reasonable for EPA to exclude the consideration of cost when interpreting “appropriate and necessary.” The 5-4 majority decided that it was not reasonable to exclude cost; EPA should have used cost as a determining factor when regulating power plant toxic emissions, not solely when determining how to regulate the emissions. The opinion continues discussion of the “appropriate and necessary” standard as it relates to reasonableness and focuses on the context of the statute itself, which suggests that cost should be included.

Ironically, EPA did conduct a cost-benefit analysis of the toxics air rules when evaluating the standards it adopted. The agency concluded that, “the benefits of the MATS [program] are substantial and far outweigh the costs. Employmeed that nt impacts associated with the final rule are estimated to be small.” The costs to industry were estimated at $9.6 billion, where the benefits were found to be between $33 and $90 billion. However many of these benefits, termed co-benefits, were not directly attributable to reductions in the toxics actually being regulated, they come from reduction of other pollutants due to the installation of control technology. Thus, Justice Scalia was dismissive of these co-benefits, setting them aside and showing that in contrast to the previously stated $33 to $90 billion in benefits there were only $4 to $6 million in benefits expected. The Court did follow up saying EPA need not conduct a “formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value. It will be up to the Agency to decide, (as always, within the limits of reasonable interpretation how to account for cost.” It seems that the agency will be given deference in how it accounts for cost in deciding whether toxic emissions regulations for power plants are “appropriate and necessary.”

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Interestingly, Michigan is the first anti-environmental ruling that the Court has decided in the four CAA cases that they have considered since the landmark decision in Massachusetts v. EPA in 2007 and a contrast to Justice Scalia’s opinion in Whitman v. American Trucking , where the Court held that EPA could not consider cost when setting air quality standards for ozone and particulate matter. While EPA must consider cost moving forward in regulations surrounding the limit on the emission of mercury or hazardous pollutants, almost 70% of power plants have already complied with MATS and the decision did not let those power plants that have not complied off the hook. The Court did not strike down the regulation; rather it sent the case back to the D.C. Circuit Court of Appeals for review where the court must determine whether to keep the emissions standards in effect while EPA takes cost into consideration.

When the U.S. Supreme Court’s decision came down in June environmentalists, industry, and government officials alike began speculating about Michigan ‘s affect on the Obama Administration’s Clean Power Plan. Industry representatives claim Michigan was a warning to EPA to reconsider the Plan because the decisions demonstrated the unwillingness of the Court to defer to EPA when regulating coal fired power plants. But, environmentalists disagreed noting that the narrow decision would have no bearing on the Plan, which arises under a different section of the CAA than MATS. Today, August 3, 2015, EPA issued a notice submitting the Clean Power Plan for publication in the Federal Register. It seems the ruling in Michigan did not deter EPA, because the final rule is slightly stronger than the drafted proposal from last summer and is President Obama’s most ambitious climate policy to date. The Clean Power Plan will be a rule to watch in the next months and maybe Michigan will come into play. Until then, EPA will be re-evaluating costs in MATS.

Ashton Roberts is a 3L at Vermont Law School, working towards her Juris Doctor, Masters of Environmental Law and Policy degree, General Practice Certificate, and Criminal Law Certificate. Prior to law school, she attended Virginia Tech where she earned a B.S. in Environmental Policy and Planning. She is a managing editor on the Vermont Journal of Environmental Law. Ms. Roberts is currently a law clerk at Our Children’s Trust in Eugene, Oregon, working on atmospheric trust litigation.

The post The Dirty Truth of Michigan v. EPA appeared first on Vermont Journal of Environmental Law.

 Summary: The United States Fish and Wildlife Service held its second Ivory Crush in Times Square in June. The event helped raise awareness about the illegal ivory trade, and the threat it still poses to African elephants. While interning in NYC, I was able to attend the event, and this post describes my experience, as well as why events like these are important for elephant conservation.

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By Brittany Wright

 On Friday June 19th, Times Square was slightly louder than usual due to an industrial-sized rock crusher. The equipment was not there for construction, but for elephant conservation. The US Fish and Wildlife Service staged its second Ivory Crush, and crushed over one ton of confiscated ivory. Top government officials, like Department of Interior Secretary Sally Jewell and USFWS Director Dan Ashe, addressed the crowd before the crush about the importance of the elephant conservation and what the crush signals to the rest of the world.

I am interning at the Natural Resources Defense Council in New York this summer and convinced a few of my fellow interns to come to Times Square with me to witness the crush. The event gained a lot of attention from people walking through Times Square. People would stop to take pictures and read the various informational signs that FWS had posted around the area. Elephant advocates and enthusiasts gathered in Times Square with tee-shirts and signs, chanting as the crush began. The crowd cheered loudly—though not as loud as the machine—when the first large tusk made its way up the conveyor belt and dropped into the crusher below. The crush lasted for over two hours, turning one ton of ivory into a pile of dust.

The Times Square crush was the second event held by FWS in an effort to raise public awareness about the illegal ivory trade and its devastating impact on elephant populations. In 2013 FWS had its first ivory crush in Denver, Colorado where it destroyed over 6 tons of confiscated ivory. Starting in 1989, 14 different countries destroyed over 130 tons of ivory. The Denver crush revived the global movement, and in the past three years, many countries around the world held similar events to destroy their confiscated ivory. China, Chad, France, Belgium, Hong Kong and the Philippines all held similar events, either burning or crushing portions of their confiscated ivory to remove the pieces from the market and send a message of solidarity towards ending the illegal ivory trade. Most importantly, at the China crush, government offices vowed to stop the legal domestic trade of ivory. Events like these are critical, both to remove the pieces from the illegal market, and to show that ivory no longer has commercial value.

Even though CITES banned the international trade of ivory over two decades ago, the demand for ivory is still high. According to FWS, an elephant is killed every 15 minutes for its ivory. From 2010 to 2012, approximately 100,000 elephants were killed for their ivory tusks. Countries in Africa have taken steps to help protect elephants, but if there is still a market for ivory the poaching will continue. New York City remains an epicenter for illegal wildlife trade, and the public awareness generated by an event like this can be as an important as removing the ivory from the market. After FWS confiscates ivory, there is little else it can do with it. The ivory cannot be sold or repurposed because it was brought into the country illegally. Instead FWS decided to destroy the ivory, sending a very clear message that the illegal trade of ivory must be stopped. FWS plans to use the crushed ivory to make an elephant memorial. The FWS held a design contest earlier this year after the first Denver crush soliciting ideas for the monument.

Elephants are not out of the woods yet, but events like these help raise the awareness of the very real problem of the illegal ivory trade, and the role the United States plays in stopping it. Stomping out the illegal ivory market is essential to ensuring the survival of the species, and events like the Time Square Ivory Crush send strong message to the rest of the world: stop the illegal trade of ivory. Elephants are far too precious for their ivory to end up as a trinket on a shelf.

Brittany Wright is a 3L at Vermont Law School, working towards her Masters of Environmental Law and Policy degree and a Water Law Certificate. Prior to law school, she attended Hofstra University were she earned a B.A. in Urban Ecology. She is a managing editor on the Vermont Journal of Environmental Law. She is currently interning with the Natural Resources Defense Council as a legal intern in the Oceans Program. She plans on working in the field of ocean law, and using her law degree to protect ocean habitat. She enjoys go to the beach and hiking with her beagle Rio.

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