2023 TOP 10 BLOG

 

VJEL Staff Editor: Scott Berkley

 

Faculty Member: Patrick Parenteau

 

Memphremagog’s Forever Residents: PFAS Pollutants in Vermont’s Favorite Lake

 

Vermont’s lakes come under threat from all sides: erosion, agricultural pollution, drought, and encroaching development all threaten the welfare of the state’s waters. The state has allocated hundreds of millions of dollars in the past decade to clean up and remediate polluted water bodies, large and small alike, and remediate the pollutants at their upland sources. Most pollutants are transitory, however: they pass through the riverine system seasonally or during flood events. With the specter of PFAS and PFOA (per- and poly-fluoroalkyl chemicals) rising nationwide, Vermont is not immune. These chemicals, which have primarily been used in non-stick and fire-retardant coatings for consumer products and building materials, are known as “forever chemicals” because they retain their composition in environmental settings indefinitely. Nowhere is the conflict over these “forever chemicals” more pronounced than in Lake Memphremagog on Vermont’s northern border.

Vermonters are justly proud of their local water bodies, and few of the state’s water resources garner quite as much enthusiasm as Lake Memphremagog. The lake is situated on the state’s northern border between the cities of Newport, VT and Stanstead, Quebec. Boaters and fishing enthusiasts come to the lake in droves to enjoy its 41 square miles of deep, cold water and largely undeveloped coastline. “Magog,” as many call it, is the outflow point for the four majors rivers of Orleans County, a 700 square-mile watershed. Though three-quarters of the water in the lake comes from the Orleans watershed on the American side of the border, three-quarters of the lake’s surface falls on the Quebec side of the border. The lake drains into the Magog River, the primary water source for most of southern Quebec and its approximately 200,000 residents.

Orleans County, along with Essex and Caledonia, make up Vermont’s Northeast Kingdom, long known as the state’s least economically developed and most rural region. Orleans and its neighbors often rank highest in unemployment and fall lowest on the population growth and local development charts. The county is also home to Vermont’s last remaining landfill: an inconvenient waste-management truth that has not been lost on many local advocates for the continued health of the down-stream Lake Memphremagog.

The 130-acre landfill parcel, owned by the waste-management behemoth Casella, sits just upstream from the city of Newport in the town of Coventry. As the only landfill in Vermont still taking in waste, the Coventry facility has an uneasy place in a state that prides itself on environmental purity, yet relies heavily on inter-state waste management system that farms out garbage from town dumps to other landfills outside of Vermont. When Casella filed an application with the state to expand the landfill more than fifty acres to its current size, five years ago, local Orleans County residents objected. Residents raised the alarm that the significant increase in dump size would be an unsightly spot, visible from miles around, and would give off a distinct odor, despite the efforts to sanitize and de-odorize the dump site. Residents would also see an increase in traffic to the Casella site as trucks offloaded waste from around Vermont and beyond.

Most concerning was the issue of contaminated landfill effluent, a problem noted by members of a local coalition billing itself as DUMP (Don’t Undermine Memphremagog’s Purity). In 2021, water tests in Quebec determined that small traces of PFAS and PFOA chemicals had begun to infiltrate the Memphremagog water source for the southern part of the province. Although the amount of the chemicals discovered would not have raised alarm bells on either side of the border, scientific data suggests that the timeline for chemicals to pass downstream from a pollutant site to a water source could be lengthy, and more contaminants may be on their way into the lake.

Though the quantity of PFAS found by Quebecois regulators was well below the standards set by the provincial government, the finding raises the question of where the chemicals originated. Other industrial sites around the lake could have spawned the contaminants, according to researchers studying the issue. The Casella dump, which includes older, unlined storage areas in addition to new, hermetically-sealed vaults for disposal, is a likely and logical culprit. EPA findings on PFAS contamination suggest that all major waste disposal sites could be polluting their local water sources, and that further testing is needed to determine exact sources.

PFAS and PFOA may be the new “forever chemicals” that Vermont regulators are learning to manage and mitigate. But Orleans County residents have dealt with prior environmental-justice issues. In 2008, researchers at the state health department announced that residents of Newport and surrounding towns were at elevated risks of asbestos contamination following the improper mitigation of an up-valley asbestos mine. Remediation of the mine is still outstanding. Asbestos, with its host of health effects for those exposed, may have been the 20th century’s major unknown contaminant; PFAS and PFOA may prove to be one of the 21st century’s major environmental contaminants.

Coventry is also home to one of Vermont’s four major wastewater management facilities (WWTFs). One function of the WWTF is to process wastewater leaching from landfill facilities such as the active Casella site in Coventry and the now-closed landfill in Randolph (visible just east of I-89 near mile 25). Comprehensive toxicity testing at the Coventry WWTF has determined that the leachate processing at the facility still releases liquids that contain up to two hundred times higher than the EPA’s recommended maximum for healthy water sources.

The only other WWTF in Vermont that accepts leachate from closed landfills is in Montpelier, the state’s capital and a community that is well versed in community efforts to challenge environmental efforts. After the state released findings of PFAS contamination in the Winooski River flowing from Montpelier down to Burlington and Lake Champlain, community members and the anti-toxicity Community Action Works group banded together to lobby the city council to stop accepting leachate-based processing contracts at the WWTF. A further legal challenge to pollutant-creating practices at the Montpelier WWTF would likely entail a series of claims under the Clean Water Act.

Citizen groups in other parts of Vermont have also begun mobilizing to challenge the established wisdom about the long-term health implications of living with contaminated water sources. In Chittenden County, a citizen’s group affiliated with the families of National Guard members stationed on the base in South Burlington has been active in testing for PFAS and PFOA in the lower Winooski River. The Burlington/Winooski urban area has a strong history of community involvement with environmental justice causes at the intersection of the military/civilian population, most recently in the fight against noise pollution resulting from F-35 fighter jets stationed at the base. Suits to block the F-35 stationing were successful in requiring the military to obtain special land-use and NEPA permitting, legal tactics that may come in handy in the fight to compel the state or federal government to remediate the Winooski as a water source.

Meanwhile, in Bennington, legal challenges to corporate PFOA pollution have recently found success. In 2019, county residents and state litigators reached a settlement that compelled a chemical-production company to provide clean drinking water to households whose well water was contaminated with a high levels of PFOA. In 2018, university researchers discovered PFOA chemicals leaching from the Chem Fab fiberglass-fabrics factory in North Bennington and entering an aquifer that fed into private wells at over 400 homes. Contamination stemming from plants and factories that produce Teflon-coated goods is a common issue in the national PFAS/PFOA dialogue. But the scope and efficacy of the remediation in Bennington is a success story, one which the residents of the Memphremagog basin could use for guidance.

The legal implications of the current Memphremagog contaminants could be multiple. Under recently-announced EPA guidance for PFAS and PFOA remediation, any party found responsible for contributing to contamination could be held responsible under the CERCLA guidelines. Depending on the scope of perfluoroalkyl contamination, the Coventry dump could qualify for future site designation under the Superfund. If the Casella-run waste management site were implicated in a federal CERCLA designation, the company could be held liable as a potentially responsible party. In a hypothetical future in which the Coventry dump were designated a Superfund site, the Memphremagog-area residents may have a legal culprit to hold to account.

Even without a CERCLA designation, however, DUMP and other community groups have other avenues to use to address lake pollution. The conversation in Montpelier between Community Action Works and the city council on issues surrounding the wastewater treatment facility demonstrates one way for community members to work with local legislatures on PFAS-related remediation. Memphremagog advocates could follow in a similar path without the need to litigate against Casella, under the Clean Water Act or otherwise, to lower the levels of PFAS and PFOA entering the watershed. Present opposition to the Casella dump in Coventry have centered on concerns around the specific site. As news spreads of the potential impacts of toxic leachate leaving the site, public opposition in the Memphremagog watershed at large, both in the U.S. and in Canada, may increase.

The Bennington Chem Fab settlement also points a way forward for Memphremagog advocacy. If research can tie the Memphremagog PFAS/PFOA contaminants to specific sources on the Vermont side of the border, the polluters could be held liable to remediate and provide the funding to sequester the “forever chemicals” currently troubling the lake’s deep waters. Chemical remediation, an expensive proposition, would thus proceed as both an item of state regulatory importance and a corporate-funded endeavor.

There is no one specific avenue to dealing with Memphremagog’s pollution problem. Continued community advocacy, opposition to dump expansion in Coventry, and further scientific research into the causes of lake pollution are all pieces of a multi-decade puzzle. Critically, as legal means of holding polluters to account become more viable, litigation against responsible parties must move forward. Small victories may happen in the courts, in the lab, at city-council meetings, or through state regulation. Those who love and depend on Lake Memphremagog hope that it will someday be reclaimed from “forever chemicals” for its seasonal and year-round residents to enjoy.

 

 

2023 TOP 10 BLOG

 

VJEL Staff Editor: Nicholas Pellegrini

 

Faculty Member: Mark James

 

The Natural Gas Race: Will Climate Assessments or Industry Concerns Dominate the Reform to FERC’s Pipeline Certification Process?

 

The claim that natural gas is the bridge to a decarbonized world has created a push for additional interstate pipelines and reform to the natural gas permitting process. While natural gas advocates push for more pipelines and a quicker permitting process, the 6th Assessment by the Intergovernmental Panel on Climate Change (IPCC) warns that the world must be fully decarbonized by 2050 to avoid the worst effects of climate change. To this point, the IPCC concludes that the continued installation of fossil fuel infrastructure will only lock in future greenhouse gas (GHG) emissions that the world cannot afford. Both the federal government and many states have acknowledged the need to reduce emissions by setting net-zero GHG emissions targets. The push to build additional pipelines and reform the natural gas permitting process works against the emissions targets that the U.S. and many states are fixed to achieve. However, the outcome of these competing interests lies in the hands of one independent regulatory agency—the Federal Energy Regulatory Commission (FERC).

 

Under the Natural Gas Act (NGA), enacted in 1938, FERC regulates the transportation and sale of natural gas in interstate commerce. Section 7 of the NGA authorizes FERC to review applications for the construction and operation of interstate natural gas pipelines. Thus, before any facilities can be constructed to provide service and prior to a new service being initiated, interstate pipelines must get approval from FERC. FERC’s approval comes in the form of a certificate of public convenience and necessity (CPCN). A CPCN has historically been given if the applicant could proceed without relying on its existing customers to subsidize the proposed construction and operation. An applicant ensures that their project will not be subsidized by existing customers by showing a market need for the projects. Once a market need is shown, then FERC determines if any adverse impacts will arise because of the projects; the adverse impacts are then balanced with the public benefits of the project. Adverse impacts upon the environment are assessed under the National Environmental Policy Act (NEPA). This review process has been in place since 1999 and even though it has remained intact for so long, it has received a great deal of criticism by the D.C. Circuit for its reliance on precedent agreements to establish market need and lack of consideration given to potential adverse impacts, especially those upon the climate and environmental justice communities.

 

In Sierra Club v. FERC, the D.C. Circuit found FERC’s assessment of the environmental impacts of a proposed pipeline project, expected to carry over 1 billion cubic feet of natural gas per day, to be inadequate. The court said that the agency’s environmental impact statement (EIS) did not contain enough information on the GHG emissions that will result from burning the gas that the pipelines will carry. Under NEPA, an agency must consider the indirect environmental effects of the project that are “reasonably foreseeable” in addition to the project’s direct effects.

 

The primary purpose of the project was to transport gas, which would subsequently be burned. FERC acknowledged that burning natural gas releases emissions that can contribute to climate change but did not even attempt to quantify the emissions the project would produce. FERC cannot have informed decision-making process or informed public comment on a project when the amount of GHG emissions it will produce is not quantified. The court accordingly decided that FERC must either quantify and consider the project’s downstream carbon emissions or explain in more detail why it cannot do so.

 

Two year later, in Birckhead v. FERC, the D.C. Circuit criticized FERC’s review of GHG emissions because of a record-development issue. Although the court could not decide upon the issue because it was not brought up as a claim, the D.C. Circuit was suspect of FERC’s “less-than-dogged efforts” to develop the record it would need to determine that downstream GHG emissions are indeed a reasonably foreseeable indirect effect of the proposed project. Both cases express concern over FERC’s reluctance to include GHG emissions in its review process. Yet, the D.C. Circuit’s criticism goes beyond the sole issue of emissions.

 

In Vecinos para el Bienestar de la Comunidad Costera v. FERC, the D.C. Circuit found FERC’s analyses of a proposed project’s impacts on climate change and impacts on environmental justice (EJ) communities to be deficient. The D.C. Circuit pointed out that FERC had not adequately assessed the impacts of the project’s GHG emissions because it neglected to respond to arguments about the methodology used to determine how the project’s emissions contribute to climate change. Furthermore, FERC had conducted its EJ analysis only on communities in census blocks within 2 miles of the project sites, but the EIS stated elsewhere that the air quality impacts could occur within 31 miles of the project. Beyond the geographical scope of the EJ analysis, FERC had found that every community in the assessed census blocks were minority or low-income, yet ultimately concluded that the project did not disproportionately impact residents who identify as a minority or are low-income. These deficiencies led the D.C. Circuit to order FERC to revisit the CPCN that these analyses had supported.

 

Lastly, in EDF v. FERC, the D.C. Circuit found that FERC had failed to balance the potential adverse impacts of a proposed project with its public benefits. FERC had issued a CPCN to Spire STL Pipeline LLC (Spire STL) to construct a new natural gas pipeline in the St. Louis area. However, all parties—including the Missouri Public Service Commission—agreed that the pipeline was not being constructed to serve new demand. Market need for the pipeline was proven with one precedent agreement for 87.5 % of the pipeline’s projected capacity made between Spire STL Pipeline LLC and Spire Missouri Inc. (corporate affiliates). Moreover, no concrete evidence supported any of the public benefits Spire STL claimed would arise from constructing this new pipeline. Despite the evidence of self-dealing, FERC said that it would not second guess the business decisions of Spire STL and allowed the construction of the pipeline to proceed. The agency’s actions led the D.C. Circuit to vacate Spire STL’s CPCN because it refused to incentivize FERC to allow a project to be built and then comprehensively reviewed later. The adequacy of FERC’s certification process has endured many legal losses over the past years, which has forced FERC to adapt.

 

In February of 2022, the Federal Energy Regulatory Commission (FERC) issued two policy statements to provide further guidance on the agency’s natural gas project certification process. One of the policy statements adds to and revises the factors FERC will consider when it grants a CPCN to a proposed interstate natural gas project. The other statement establishes how FERC will address GHG emissions under the NGA and NEPA for proposed pipeline and liquified natural gas (LNG) projects.

 

However, only weeks later, concerns over the uncertainty the updates could instill into the certification process pushed the agency to declare the two policy statements as “drafts.” The two draft policy statements were left open for public comment until April 25, 2022, and reply comments were later due on May 25, 2022. As the year comes to a close, FERC has still not released any word about the future of the two statements. To add to the uncertainty, Chairman Richard Glick’s imminent departure from FERC puts FERC’s commissioners in deadlock and places the fate of the two draft statements largely in the hands of Glick’s successor.

 

What does this mean for the future of the interstate pipeline certification process? Well, the D.C. Circuit has made it abundantly clear that the current certification process is outdated and dismissive when it comes to climate and EJ concerns. FERC has a legal liability gap that it needs to fill. Therefore, if the policies updates from February are not implemented, different policies of a similar likeness will eventually emerge. However, time is crucial in the fight against climate change. The UN’s 2022 Emissions Gap Report says that the world is woefully behind on meeting the goals set out in the Paris Agreement, and finds that GHG emissions need to be reduced by unprecedented levels over the next eight years to meet the goals of the Paris Agreement. All new sources of emissions pose as threats to the Paris Agreement, the federal government’s goals, and the net-zero carbon emissions targets that many states are fighting to achieve. These efforts can no longer be disregarded. The agency needs to address climate change and acknowledge net-zero carbon emissions targets in its pipeline certification process now. The pressure to expand the nation’s pipeline system and quicken the natural gas permitting process will probably grow due to the projected growth of the production and consumption of natural gas. Thus, FERC needs to act before the debate intensifies. Although the direction of FERC’s use of climate change and carbon emissions in its certification process is uncertain, it is only a matter of time before the agency—or Congress itself—makes a change. Only time will tell if the change will be for the better.

 

 

 

2023 TOP 10 BLOG

 

VJEL Staff Editor: Nick Bondurant

 

Faculty Member: Janet Milne

 

The Issue with Climate Based Tax Incentives

 

President Biden signed the Inflation Reduction Act (IRA) into law on August 16, 2022. This law provided a slurry of tax incentives to fight against climate change. This bill enacted unprecedented deficit reduction while reducing carbon emissions. While the benefits of this historic piece of legislation are undeniable, there are questions of the need and workability of the tax incentives.

 

The IRA shook the foundation of what has been done in the United States and how tax incentives will continue to develop in the future. The history of tax incentives in the United States are unequivocally different than the incentives provided by the IRA. This historic change has also sparked the question of whether the tax incentives are worth it and what sectors of the economy will be affected. In short, the IRA is expected to reduce inflation and carbon emissions through these incentives.

 

The backdrop for the IRA is important for setting the stage of the country’s current situation. Tax credits are a dollar-for-dollar reduction for the tax that one owes. Historically speaking, the Internal Revenue Service (IRS) adopted a punishment approach. Punishments shaped the financial sphere, not incentives. The IRA enacted more tax incentives than any other piece of legislation before it. This stemmed from lessons learned when the Build Back Better Act (BBBA) enraged everyday Americans by providing tax breaks to wealthy Americans. To gain bi-partisan support, Biden had to hit multiple targets with one arrow. This arrow transformed into incentives when the IRA financially encouraged the fight against climate change while keeping classist tendencies in mind. No family making less than $400,000 is affected by these changes to the tax code. The lessons learned from the BBBA are what jettisoned the IRA to being signed into law.

 

These climate-friendly tax incentives come in various forms. Most of these forms effect the energy sector in one form or another. Specifically, the IRA targets transportation, energy, and industry with these tax incentives. All these incentives promote the reduction of carbon emissions.

 

The tax incentives affecting the transportation sector vary widely. The first set of incentives focus on production of cleaner sources of fuels outside of the fossil fuel industry. These includes renewable energy, hydrogen, and cleaner aviation fuels. In addition to these fuel incentives, consumers are also encouraged to purchase low to zero emission vehicles. This incentive includes electric and fuel cell cars. Importantly, commercial cars are included in this set of incentives. By covering clean vehicles and fuel sources, consumers and members of industry are encouraged to partake in carbon free sources of transportation.

 

Additionally, there are numerous tax incentives provided for the energy sector that support the fight against climate change. Some enable clean energy while enabling homeowners and businesses to take part in these programs. Firstly, existing tax incentives are prolonged through 2024. These tax credits exist for renewable energy production and investment. These tax credits turn into a technology-neutral credit in 2024. Next, carbon sequestration is incentivized through its existing credit and is actually enhanced by incentivizing reserving land for geologic storage and direct air capture. Next, incentives are given for nuclear energy facilities that still provide electricity production. These incentives last until 2032. Additionally, homeowners and businesses are incentivized to take part in making their structures more energy efficient. These incentives apply to new construction, existing structures, and energy efficient places of business. Lastly, homeowners and businesses are encouraged to install battery storage. All of these actions will accumulate to huge steps in the fight against climate change.

 

Industry is the last sector that gets to take advantage of these tax incentives. These incentives include “development of domestic supply chains for critical energy technologies while also driving investments in solutions such as carbon capture, transport, utilization and storage systems consistent with net-zero emissions goals.” Another section of incentives also include manufacturing the materials and structures needed to support and construct renewable energy infrastructure. These incentives will hopefully lead to the manufacturing sector becoming and supporting the transition to a carbon free country.

 

These are the tax incentives that the IRA provides or reinvigorates, but some are concerned about whether the incentives burden taxpayers too much and if they are even worth the trouble. Plainly, some worry that the parties taking advantage of the tax incentives would have already partaken in that climate-friendly activity without the incentive. Additionally, critics worry the cost of these tax incentives poses a great burden on taxpayers.

 

The answer to the first issue, would parties have taken the climate-friendly action without the incentive, is not a definite yes or no. Of course, some parties would have already taken part in these activities without the tax incentive. Critics should note that some of these parties are mostly economically influenced. When it comes to the larger industries, they would not take part in these activities without an economic incentive to decarbonize their sector. So, there certainly are some benefactors that did not need the incentive to take part in these green initiatives. Even with the individuals who would continue with these activities, why shouldn’t they be financially awarded with their climate-friendly behavior? This positive reinforcement could lead the United States towards a cleaner future.

 

Lastly, critics worry about the cost to taxpayers with these incentives. Overall, the IRA is projected to cost $433 billion and will raise $739 billion. Ultimately, these incentives will reduce carbon emissions in the United States by 40% by 2030. Without the IRA, carbon emissions would only fall by 30% by 2030. The tax incentives are well worth the lost raise in revenue for the government.

 

Overall, the Inflation Reduction Act provided an important carrot in the form of tax incentives to engage various sectors to fight against climate change. Transportation, energy, and manufacturing sectors are engaged on both the individual and sector wide level. Without these tax incentives, the United States could continue the spiral down to a bleak future. Policies like this are of vital importance in the fight against climate change for a capitalist focused country.

 

 

 

 

 

2023 TOP 10 BLOG

 

VJEL Staff Editor: Em Green

 

Faculty Member: Sarah Reiter (Reiter co-authored in her capacity as an adjunct Professor of Law and any views here are her own and do not reflect the opinion of the NEAQ)

 

Whale v. Lobster: Conflicting Interests Between Protecting the North Atlantic Right Whale and Supporting New England’s Commercial Lobster Industry

 

On August 6th, 2022, a young North Atlantic Right Whale (NARW), #4501, was spotted off the coast of New Brunswick, Canada. Appearing in good health, #4501’s appearance was catalogued and touted as a bright point for the future of this critically endangered species. Weeks later, in late August, #4501 was spotted again, this time with fishing gear wrapped across his back.

 

For many, lobster and New England are synonymous. The region is defined by its fishing culture, within its own borders and throughout the greater United States. Beyond a cultural identity, the lobster industry has a significant impact on both the state and national economy. In 2014 the National Marine Fisheries Service (NMFS) issued a biological opinion (BiOp) that incurred the wrath of both conservation groups and the fishing industry. The opinion inspired extensive litigation that continues to this day.

 

Consider the Whale

 

Since 2017, 91 NARWs have been documented dead, seriously injured, or sporting sublethal injuries and illness, in a phenomenon scientists refer to as an Unusual Mortality Event (UME). Less than 350 NARWs remain, primarily due to entanglements and vessel strikes. Experts claim that only “quick and decisive action from humans” can ensure the species survival. Moratoriums on fishing within “protected zones” as well as requirements to mitigate potential harm have drawn criticism and legal challenges from fisheries and state/local governments. Without immediate protection the future of the NARW looks grim.

 

Consider the Lobstermen

 

NOAA compiles data on commercial landings, the “weight of, or revenue from fish” sold for profit, in an annual report. In 2021, Maine reported a record $724,949,426 in landed value from lobster harvesting alone. Ocean acidification, warming waters, overall decrease in biodiversity have led to dramatic changes in fish populations and behavior. As a result of the warming waters, over the past 10 years an increasing portion of lobster fishing occurs 3 or more miles offshore, further into NARW territory. Many lobstermen see new protective regulations as another injury imposed on an industry already struggling to keep its head above water.

 

Consider the Law

 

Section 7 of the Endangered Species Act (ESA) requires federal agencies to ensure that any action authorized, funded, or carried out by a federal agency will not “jeopardize the continued existence of” or result in the destruction or adverse modification of a listed species or its habitat. If there is likely to be an effect the federal agency must prepare a biological opinion. If a proposed plan moves forward with a “no jeopardy” opinion, it can only do so with an incidental take statement (ITS) that outlines the impact on the protected species and limitations on allowable takes.

 

Under the Marine Mammal Protection Act (MMPA) marine mammals that are in danger of extinction as a direct result of human activities are entitled to certain protections. Absent a permit or permitted incidental take, activities that result in the “taking” of an endangered or “depleted marine mammal are prohibited. To minimize mortality and serious injury (M/SI) an agency must implement a plan to reduce M/SI below a species’ potential biological removal level (PBR) within six months. The PBR is the level at which population remains stable. The PBR for NARW is 0.7.

 

Conservation groups have pursued litigation that alleges NMFS did not meet its duties under these two statutes and failed to properly protect the NARW. Under the Administrative Procedures Act (APA), a court must overturn agency actions that are “arbitrary and capricious.” If an agency’s action will be upheld if there is a “rational connection between the facts found and the choice made.” The Fishing industry claims that NMFS violated this statute and that its opinions and rules have not met the required standard.

 

Consider the Court

 

The 2018 the D.C. District Court held that the 2014 BiOp was invalid for failure to include an ITS. In the BiOP, NMFS wrote that the operations of federal fisheries would likely result in an annual M/SI of 3.25 for NARW. The agency was unable to issue the required ITS, because under the MMPA taking even one NARW exceeds the PBR and threatens the survival of the species overall. The agency got creative and instead set “numerical triggers” which, if reached, would reinitiate consultation. The Court did not bite and ordered NMFS to reissue a biological opinion with a valid ITS by May 31st, 2021. In the meantime, the Court allowed the fisheries to continue operating.

 

On May 27, 2021 NMFS issued its new BiOp that contained an ITS authorizing zero lethal takes. The same year they also promulgated the 2021 Final Rule which aimed to reduce NARW M/SI well below the PBR by 2030 and included a “conservation framework.”

 

In Center for Biological Diversity v. Raimondo, conservation groups argued that the new ITS was still invalid and that the Final Rule did not meet requirements to reduce M/SI within the statutory timeframe. The Court agreed. NMFS was not excused from its lawful duty simply because it was challenging to comply. The Court held that if the if the “action under review could not be authorized under the MMPA” then NMFS should have revised the action. The court also held that the 2021 Final Rule was invalid for failing to reduce M/SI to required levels within six months. Again, the fisheries were allowed to continue operating while the court entertained potential remedies.

 

In Maine Lobstermen’s Association v. NMFS, lobstering associations alleged that the 2021 BiOp was invalid because it went too far in its protections and unfairly targeted lobstermen. The Court was not swayed and held that NMFS met its obligations under the APA and had not acted arbitrarily or capriciously. The agency used peer-reviewed models to predict harm to the NARW and appropriately used its expert judgment to allocate that harm.

 

Consider the Future

 

The young NARW mentioned at the beginning of this article will likely die from its injuries. At first glance, the most recent litigation seems like a resounding win for conservation groups. Yet despite finding in favor of greater protections for NARW, courts have consistently refused to halt fishery operations. At each stage an agency is simply allotted more time to revise its opinions and rules. Conservation groups have to balance the frustration of “winning” in court but watching the fisheries continue to operate and harm the NARW.

 

2021 saw the most valuable harvest in the history of Maine’s lobster fishing industry. And yet the future of the industry is murky due to the combined effects of climate change and increasing awareness. The Monterey Bay Aquarium recently placed American lobster on its “red list,” which discourages consumers from purchasing the crustacean based on environmental concerns. The Marine Stewardship Council suspended certification of Maine lobster following the recent litigation, prompting Whole Foods to cease selling it. Lobstering associations decry the harm and threat to their industry that increased regulations could cause. Beyond the sheer fiscal contributions of the industry, it can be hard to quantify the cultural value of a multi-generational juggernaut.

 

This pattern of prolonged litigation perpetuates an “us v. them” dichotomy and creates unsatisfactory solutions for both conservationists and lobstermen. To survive in this climate afflicted reality both groups would benefit from cooperation. One potential solution, ropeless/on-demand fishing, presents an example of such an opportunity. NOAA’s roadmap to develop on-demand fishing emphasizes the desire for partnership with federal fisheries and make this technology accessible and effective. To meet conservation goals, ropeless fishing must develop beyond the experimental phase. Those working to reduce NARW deaths through on-demand fishing benefit from the industry feedback and data collection. And the fishing industry, which is struggling to reach sustainability, benefits in the long run from technologies that might keep them in business.

 

Instead of seeking cooperative solutions, the very lobstermen who lost their case in federal court, alongside New England politicians, successfully lobbied for an amendment to the 2023 Omnibus Bill. The amendment allows the U.S. lobster fishery to delay taking any significant conservation actions that would help protect the NARW. This dangerous precedent makes it clear that Congress is willing to overlook the statutorily required “best available scientific data” in favor of special interests and political pressure. In a move that casts a pall of uncertainty over the entire future of environmental protections, Congress has made it clear that statutory compliance is a commodity, not a necessity.

 

 

 

 

 

2023 TOP 10 BLOG

 

VJEL Staff Editor: Jennifer Bass

 

Faculty Member: Professor Yanmei Lin

 

Money Subsidizing the Destruction of the  Ocean Could Be Used to Save It.

 

The collapse of the ocean’s ecosystems could occur in the next 25 years if overfishing continues. One of the main consequences of overfishing is the loss of biodiversity in the ocean. One of the causes of biodiversity loss is overfishing by the global industrial fishing industry. Some of the practices that contribute to the loss of biodiversity are the overfishing of stocks of fish, unreported fishing, and the harmful government-paid fisheries subsidies that incentivize overcapacity and overfishing. The high seas are currently not covered under the international ocean treaties, causing countries to freely overfish the ocean in these areas. China is one of the worst offenders blamed by international community—the scope of the problem caused an international outcry, including from the United States. In order to stop overfishing of the high seas, the World Trade Organization has reached an international agreement that would end these practices. To protect the global environment, both the United States and China need to ratify global treaties, and take meaningful action to prohibit subsidies targeting overfished stocks and fishing on the high seas, and spend money to “rebuild the stock to a biologically sustainable level.”

 

Problems with Overfishing

 

Overfishing is not just a problem for the fish population but for every living creature on earth. “Biodiversity loss is tightly linked to declining water quality, harmful algal blooms, ocean dead zones, fish kills, and coastal flooding.” Given that one-in-five people in the world turn to the ocean as their main source of protein, overfishing could be catastrophic for populations across the planet. 50%-80% of the world’s oxygen comes from the Ocean, and the wildlife there are the largest carbon sink in the world. Depleting all life in the ocean could have an exponential effect intensifying global warming. Thirty percent of the ocean’s ecosystems have already collapsed globally, and the rest are not far behind. Unsurprisingly, the countries that are contributing the least harm will suffer the highest consequences from this loss of life. These countries often rely primarily on local sustainable fishing. The stock of wildlife taken on the open sea and the destruction done in the process, such as the effects of bottom trawling, affect ocean wildlife everywhere.

 

The solution is to stop governments from paying for overfishing on the high seas. “Fishing at the current scale is enabled by large government subsidies, without which as much as 54% of the present high-seas fishing grounds would be unprofitable at current fishing rates. . . . Deep-sea bottom trawling often produces net economic benefits only thanks to subsidies, and much fishing by the world’s largest fishing fleets would largely be unprofitable without subsidies and low labor costs.” The subsidization of these fleets upset the natural economics of fishing. Meaning that if these fleets were not subsidized over half of them would have never left the harbor and they would not be overfishing.

 

World Trade Organization Fishing Subsidies Agreement

 

The World Trade Organization has been negotiating for more than two decades to end fishing subsidies to fight the exploitation of the high seas. Though  an agreement on Fishing Subsidies was finally reached on June 17, 2022, the agreement will not be implemented unless two thirds of the 164 member states ratify it. This might require approval action by congress, depending on if the agreement bans subsidies for vessels that engage in illegal, unregulated, and unreported (IUU) fishing practices prohibits subsidies for the fishing of overfished stocks but allows subsidies that are implemented to restore the fisheries. The agreement will also address the overfishing of the high seas and puts curb on subsidies for fishing on high seas if operations outside the jurisdiction of regional fisheries management organization (RFMO). The agreement attaches a great importance to transparency by making it mandatory for governments to disclose the fisheries subsidies, and provide annual lists of vessels and operations identified as engaging in IUU fishing.

 

Some of the provisions that were cut were “the agreement does not include a single reference to ‘capacity enhancing’ or ‘harmful subsidies’—the largest ones that lead to exploitation. [The agreement] does not ban any public money from governments going towards subsidizing capital costs.” These outstanding issues of the agreement will likely to be in the next round of negotiation during the next ministerial conference that to be held in 2023.

 

China’s overfishing and its role to stop it

 

China’s distant-water fishing fleets are currently engaging in overfishing the open sea at an unprecedented rate. The invention of refrigerated mother ships that can hold up to 500,000 cubic feet of cargo, or thousands of tons of fish, allow boats to extend their voyage. And Motherships are technically fishing legally under the international Law of the Sea Treaty. Every country has exclusive economic rights up to 200 nautical miles around the country’s coasts—beyond this is called the high seas. The high seas have equal economic zones for all countries. New satellite data found that “The ships hugged the so tightly that satellite mapping of their

 

positions traced the zone’s boundary.” Many of these zones are important to migratory species that enter in and out of them. The depletion of these fish could devastate local fisheries even if they are taking care of their own fisheries.

 

China’s ships account for some of the least profitable on the ocean. “The most unprofitable of all Chinese fisheries was bottom trawling in the Southwest Atlantic, which exhibited an average net loss (even after subsidies are taken into account) of $98 million.” When deep-sea bottom trawling produces net economic benefits it is often only thanks to subsidies. Many fishing operations by the world’s largest fishing fleets would be unprofitable without subsidies and low labor costs.” The subsidization of these fleets upset the natural economics of fishing.

 

In May 2022, China finally ended its 15 years of infamous fishing fuel subsidies and replaced with fishery stewardship subsidies, which is said to “be pivotal to the success of WTO negotiations on fisheries subsidies“. China also aims to reduce its total output from distant water fishing and control the size and number of the distant water fishing fleet according to its 14th Five-Year-Plan (2020-2025). However, more actions can be taken by Chinese government to stop overfishing that prevent the total collapse of the ocean ecosystem, which includes removing excess distant water fishing capacity, help fishers transition to alternative work, and establish funding to help restore fishery resources.

 

United States Response

 

The information of China’s role in the exploitation of global fisheries has sent an alarm to the United States, who see overfishing as a threat conserve marine resources globally and maintain national security. In response to this threat, President Biden signed the National Security Memorandum to Combat Illegal, Unreported, and Unregulated Fishing and Associated Labor Abuses. The United States also “pledged $60 million a year for the next decade.” Though this may seem like a great step in the right direction it could also be seen as a little hypocritical. That is because the second largest individual country to subsidize overfishing is the United States. The USA spends $3.4 Billion a year in subsidizing overfishing. The United States has not ratified the agreement that stop harmful fishing subsidies meaning they will continue to financially support the overfishing of the ocean by billions of dollars.

 

There is a growing international frustration with the United States refusal to sign and then ratify international treaties. Their track record is even more inadequate when it comes to signing international environmental treaties. China published a report on how the United States actions are damaging the international community ecologically. Some of the allegations include impeding the worlds’ ability to tackle climate change, not paying the countries fair share of contribution to international organizations, and disrupting the signing and implementation of international agreements. Further the agreements that the United States sign are often not ratified rendering them “outside of the multilateral framework.”

 

What the United States could be subsidizing is the restoration of the ocean and the creation of ocean sanctuaries. The United Nations has tried to pass the Global Ocean Protection Treaty five times and it once again failed in August of 2022. The negotiation would have made 30% of the ocean marine protected areas. The treaty would have also improved impact assessment, provide finance to developing countries, and would have proposed the sharing of resources. The money that is being put into subsidizing the overfishing of the ocean could be used to protect and restore it.

 

Conclusion

 

The United States pledged millions of dollars to stop the overfishing of the unregulated high seas. At the same time, the U.S. has not signed any of the recent international treaties to protect the ocean. This includes not signing the WTO’s agreement or stopping the subsidizing of overfishing by billions of dollars. Signing and ratifying the WTO’s agreement and supporting the adoption of the Global Ocean Protection Treaty could save the ocean from total collapse. The money spent on subsidizing overfishing could be put toward the conservation of the ocean. The United States should be a global leader for saving the environment instead of impeding its progress.

 

 

 

 

 

2023 TOP 10 BLOG

 

VJEL Staff Editor: Tatum Daily

 

Faculty Member: Christophe Courchesne

 

Restoration of the Marshall Islands: The Time Has Come for the U.S. to Reckon with its Past and Rebuild Trust in the Region

 

The U.S.’s Nuclear Legacy in the Marshall Islands

 

The Republic of the Marshall Islands (RMI), located just north of the equator and midway between Hawaii and Australia, is one of the lowest lying countries in the world. Rising sea levels from climate change threaten to make RMI uninhabitable by the end of the 21st century. However, RMI’s dire environmental concerns do not end with climate change. Rather, nuclear waste and radiation have plagued RMI’s land and waters since the 1940s—the legacy of the U.S.’s Cold War nuclear testing program—which to this day, the U.S. government has failed to fully address.

 

The Marshall Islands were occupied and controlled by several different countries throughout its history. In 1944, during World War II, the United States took control of the area. Shortly after the war, several Marshall Islands atolls became official testing grounds for U.S. nuclear bombs. The U.S.’s testing program included other islands in the Pacific and collectively these sites became known as the Pacific Proving Grounds. Between 1946 and 1958, the testing program “drenched the Marshall Islands with firepower equaling the energy yield of 7,000 Hiroshima bombs.” The detonations changed the atolls’ topographies and left them in a highly contaminated condition from residual radioactivity.

 

The U.S. government began cleanup efforts in the late 1970s. Some of those efforts created new problems. For example, in 1979, the U.S. military built the so-called Runit Dome, a 350-foot-wide concrete cap meant to temporarily contain some of the radioactive contamination left behind from the nuclear testing. However, the U.S. has yet to devise a permanent decontamination plan. Thus, the hidden waste remains and has started leaking into the groundwater below as rising sea levels threaten the Dome’s structural integrity.

 

Another ongoing consequence of the testing program is that some atolls remain unsafe and uninhabitable due to radioactive contamination—displacing islanders from their homes for decades. Health concerns, particularly increased cancer rates, also trouble the island nation. Islanders have sought justice in the form of redress from the U.S. since the 1970s.

 

The Marshall Islands achieved independence as the island nation of RMI when voters approved its first constitution in 1979. In 1983 RMI signed the Compact of Free Association (COFA) with the U.S., requiring the U.S. to provide defense and financial assistance for the republic. Additionally, COFA committed U.S. funds and a joint U.S.-Marshallese Nuclear Claims Tribunal to resolve personal injury claims stemming from the nuclear impacts of the Pacific Proving Grounds. Section 177 of COFA constitutes the corresponding 1986 settlement agreement between RMI and the U.S. for the “full settlement of all claims, past, present, and future … related to the Nuclear Testing Program.” However, the compensation fund consisted of a mere $150 million which is now depleted.

 

Unfortunately, over the intervening decades, the U.S. has continuously neglected its commitments to redress the harms to RMI’s people from the U.S. testing program. For instance, the Nuclear Claims Tribunal has awarded RMI $2.2 billion in judgments in five major class-action claims. However, Congress failed to fund the judgments and two lawsuits to enforce them were dismissed by U.S. federal courts. Additionally, U.S. lawmakers have criticized Congress’s continuous failure to cover the costs of promised medical care and services to displaced Marshallese citizens who migrate to the United States for health care, education, and employment opportunities. Such criticisms have intensified as the impacts of climate change become more pronounced in the Pacific Island region.

 

Compact of Free Association Negotiations and Heightened International Attention

 

COFA’s funding terms expires on September 30, 2023. Negotiations to renew COFA began during the Trump administration. The U.S.’s lack of commitment to address the ongoing health, environmental and economic issues stemming from the nuclear testing program has proven to be a key stumbling block in the negotiation process. RMI submitted a proposed settlement agreement to U.S. negotiators in July 2022. RMI then halted COFA negotiations in September because RMI had yet to receive a response. However, reaching an agreement has taken on increasing geopolitical significance for the U.S. in the context of the U.S.’s strategic competition with China for economic and other influence in the Pacific region. Specifically, concerns about climate change, fragile economic security, and questions about U.S. reliability make the Pacific Island region particularly vulnerable to Chinese influence. Moreover, failed COFA negotiations could lead the island nations to look to China for funding and increased trade.

 

Less than a week after RMI’s halt to the COFA negotiations, leaders from 14 pacific nations and territories gathered in Washington, D.C. for the historic U.S.-Pacific Island Country Summit. The summit’s agenda focused on addressing the climate crisis, clean energy, and sustainable infrastructure. The summit produced several documents outlining the U.S.’s commitment to increase funding for these priorities across the region, including The Roadmap for a 21st-Century U.S.-Pacific Island Partnership, which commits the U.S. to provide over $810 million to fund “additional expanded programs” in the region. These programs aim to: expand diplomatic engagement; enhance maritime security; increase resilience programs related to combatting climate change; and provide development assistance through educational opportunities, investment in “climate-smart” infrastructure, and by addressing barriers to trade. The U.S. will also “explore assistance options” to address unexploded ordnance (military ammunition leftover from past wars) in RMI. However, notably, there is no mention of plans to address the nuclear waste. More importantly, the Roadmap does not include the funds RMI is seeking under COFA.

 

In early October 2022, the United Nations Human Rights Council adopted a resolution on the nuclear legacy of RMI. The resolution aims to secure justice for the human rights impacts of the nuclear testing on the Marshallese. Specifically, the Council will investigate the challenges and suffering resulting from the nuclear testing program, including higher cancer rates, and will submit a report on these impacts in September 2024. Although the resolution falls short of demanding reparations, the U.S., and other nuclear states, fear the initiative could open the door to other countries bringing similar issues to the Council. However, the initiative also highlights the importance of the issues within the international community. In this context of international attention, RMI is unlikely to back down from its demands.

 

Looking Forward to 2023

 

RMI resumed negotiations with the U.S. in November 2022. The ongoing COFA negotiations present the U.S. with the opportunity to reckon with its past and rebuild trust with the region. As the deadline approaches, numerous factors are in play that will influence the outcome. For instance, questions of U.S. prioritization and reliability often depend on the outcome of elections. While there is strong bipartisan support for the Pacific Islands in Congress, many Republicans’ stance on climate change utterly disregards the gravity of the climate risks facing RMI. The evolving political landscape further complicates the U.S.’s ability to address the structural shifts taking place within the region, such as China’s attempts to strengthen ties with Pacific Island countries. Furthermore, the worsening effects of climate change may make the islands more amenable to Chinese influence. Thus, if the U.S. wants to retain its strategic foothold in the region, the U.S. will have to repair its relationship with RMI by prioritizing the restoration of the islands and taking responsibility for the impacts of its nuclear legacy.

 

 

 

 

 

 

2023 TOP 10 BLOG

 

VJEL Staff Editor: Isabella Pardales

 

Faculty Member: Professor Francine Miller

 

The 2023 Farm Bill: What’s At Stake?

 

American agriculture was built on the backs of Black farmers. Farmers of color have endured a long history of government-sponsored discrimination which has led to a declining population of Black farmers. Between 1910 and 1997, the number of Black farmers declined by 98%. Black farmers were purposefully excluded from early relief programs for struggling farmers and later systematically denied access to critical U.S. Department of Agriculture (USDA) programs. The USDA continues to face criticism for not doing enough to remediate past discrimination and advance equity in agriculture. Here we introduce two areas where the 2023 Farm Bill, in conjunction with the Inflation Reduction Act (IRA), can advance environmental justice efforts.

 

I. Introduction to the Farm Bill

 

Since the 1930s, the farm bill has grown in size, scope, and importance. The modern day bill’s origins are in the Agricultural Adjustment Act of 1933 and the Food Stamp Program of 1939. The bill’s reach is uniquely wide: agricultural policy, nutrition, food assistance, alternative energy, agricultural research, conservation, and rural development. Among others, the bill will impact large commodity farmers, small diversified producers, food banks, and those who receive nutritional assistance.

 

The bill has unique political dimensions—as intentional cooperation between rural and urban America is rare. The bill often sets bipartisan goals, so politicians on both sides of the aisle can unify. One of the most important programs funded by the bill is SNAP—the Supplemental Nutritional Assistance Program. As of February 2022, SNAP helped 41 million low-income Americans afford food. Nearly 90% of SNAP participants live in households that contain children, individuals over the age of 60, or individuals with a disability. The Nutrition Title, which includes SNAP, represented over 75% of direct funding in the 2018 Farm Bill. Efforts to undermine SNAP funding can

 

“threaten to bring a Farm Bill down.” The 2018 Farm Bill was passed with the “strongest bipartisan support ever.” The bill is supposed to be reauthorized every 5 years. The House and Senate begin the reauthorization process through committee hearings with government officials, stakeholders, academics, and farmers. While committee hearings occur, legislators introduce “marker bills” which contain policy proposals. These marker bills shape the discussion and debate surrounding the next bill and represent the primary way in which new ideas are introduced. Marker bills for the 2023 Farm Bill have been introduced and will continue to be through the end of the year.

 

Listening sessions with government officials, interest groups, academics, and farmers inform initial bill drafting by the House and Senate Agriculture Committees. Each committee bill is debated, voted on, and amended by each respective body. Debates, conferences, and lobbying continues until the House and Senate approve a final bill. It then goes to the President for veto or signature into law.

 

Over the next year, the bill will take shape in Washington. The bill is widely regarded as one of the most important pieces of legislation to develop in the coming year. The Bill must address a myriad of issues: the pandemic, climate change, environmental justice, economic security, and the resiliency of rural communities. The 2023 Farm Bill must meet the “dramatic circumstances the country currently faces” through strong programs and funding. The narrow Republican majority in the House may help foster the bipartisanship needed to pass the 2023 Farm Bill on time, as many programs from the 2018 bill are set to expire in September 2023 and many House Republicans represent rural constituencies. There is concern House leadership will try to pass a bill with only Republican votes, however any delay in passage is a potential talking point for Democratic challengers in future elections.

 

II. Environmental Justice Opportunities in the 2023 Farm Bill

 

The 2023 Farm Bill offers the opportunity to advance environmental justice efforts through programs and policies that center on racial equity, due in large part to the wide reach the bill has on the country. The USDA has repeatedly been criticized for not doing enough to remediate past discrimination and advance equity in agriculture. There are two particular issues in the greater farm bill conversation about how the bill can advance environmental justice: (1) defining “discrimination” under the Inflation Reduction Act and (2) finding more ways to mitigate against additional Black-owned land loss by helping heirs’ property owners. The Inflation Reduction Act (IRA) is important to consider because it provided more than $40 billion for agriculture, forestry, and rural development. The passage of the IRA should not, however, stifle further advances in equity and environmental justice in the 2023 Farm Bill.

 

A. Defining the IRA provision for producers and landowners who have “experienced discrimination”

 

The passage of the IRA is important to consider in any discussion of the 2023 Farm Bill as two particular provisions of the IRA implicate the USDA. Section 22006 of the IRA provided $3.1 billion to the USDA to provide relief to “distressed” borrowers with Farm Service Agency (FSA) loans. This is expected to provide relief to about 35,000 farmers.

 

Section 22007 of the IRA directs the USDA to provide $2.2 billion in relief to producers and landowners that have “experienced discrimination.” The USDA has a storied history of discrimination, as evident in the Pigford, In re Black Farmers Discrimination Litigation, Garcia, Love, and Keepseagle cases.

 

A provision specifically to remedy USDA discrimination against farmers of color was originally part of the American Rescue Plan Act of 2021 (ARPA). After ARPA’s passage, litigation quickly ensued involving the provisions’ use of race, with white farmers arguing the race-based classification discriminated against them. Congress repealed Section 1005 of ARPA and added Sections 22006 and 22007 of the IRA, which no longer mention race, instead providing relief for “distressed borrowers” and those who have “experienced discrimination.”

 

On Oct 14th, the USDA issued a Notice of Public Comment seeking input on how the USDA should define and identify those who have “experienced discrimination” under past USDA farm loan programs. The decision to open the issue to public comment could be an attempt by USDA to avoid litigation and accusations of discrimination against non-minorities. Funding to directly address the damage caused by racial discrimination by USDA in the farm loan arena has been held up since the passage of ARPA in March of 2021. Currently, farmers promised ARPA relief continue to be in “legal limbo” until the USDA defines how it will determine whether someone “experienced discrimination.”

 

There is concern the “vague language in the legislation will increase competition for the funding” and lead to increased loss of Black-owned farmland. Advocates for Black farmers note that Congress’ unwillingness to use race in the IRA to provide relief “negates the promise made to Black farmers” of support in light of the “well-documented history of race-based discrimination from the USDA.” Advocates must scrutinize the way in which the USDA chooses to define “discrimination” as the implications could be far-reaching. There is additional concern the passage of the IRA will stifle the inclusion of certain provisions in the 2023 Farm Bill related to advancing equity; resistance is expected to provisions that create additional funding opportunities for Black farmers in the bill because of the provisions made in the IRA.

 

B. Heirs’ Property

 

A second legal issue to watch in the farm bill debate concerns provisions related to heirs’ property. Heirs’ property refers to property passed to family members by inheritance, usually without a will. Roughly 40-70% of Americans die without a will each year; race and income play a factor, with one study suggesting only 24% of African Americans make wills. When someone dies without a will, state intestate succession laws govern who inherits an interest in the decedent’s property. And those heirs inherit an interest in the land as tenants in common, which means they each own an interest in the undivided land. If the descendants do not change the deed to reflect the new owners, the property remains in the name of the deceased original owner. If those descendants die without a will as well, then additional heirs inherit an interest in the land. This results in the heirs’ having “cloudy title” to the land because the deed continues to list the name of the original property owner many generations back. In addition, as more generations of owners inherit interests, there can be dozens or even hundreds of heirs who need to reach 100% agreement regarding the property. This makes it extremely difficult to generate wealth.

 

Owning the land as tenants in common with cloudy title can be problematic for many landowners. Any co-owner can bring an action to partition the property—this has resulted in significant loss of Black-owned land. Families are often unable to participate in USDA programs or use the land as collateral because they can’t prove ownership. Determining how much land is held as heirs’ property is difficult, but estimates gather 40-60% of Black-owned land is owned as heirs’ property in the U.S.

 

The 2018 Farm Bill authorized an Heirs’ Property Relending Program which provides loans to heirs to assist with title issues. This program is still being implemented and loans are not yet available. In any event, the program’s reliance on loans is a barrier for many citing: historic and current discrimination, financial barriers to obtaining credit, and the significance of assuming new debt. The 2023 Farm Bill must resolve remaining inconsistencies and gaps. Advocates are pressing for grants to be available for financial and technical assistance. Establishing conservation programs that allow heirs’ property owners to sell conservation easements to land trusts can help ensure “the agricultural future of the land.” Finally, more legal support should be provided in the bill for heirs’ property owners to resolve their issues.

 

 

 

 

 

 

2023 TOP 10 BLOG

 

VJEL Staff Editor: Monica Nerz

 

Faculty Member: Siu Tip Lam

 

COP 2022 and Scope 3 Emissions: Countries and Corporations MUST Get Back to 1.5C

 

The Paris Agreement set a target for nations around the world to “remain at or below 1.5°C pre-industrial levels.” This target was set to avoid the irreversible effects of a warming planet. On September 6, 2022, the Carbon Disclosure Project (CDP) and Oliver Wyman released a report finding that all G7 countries are failing to meet their corporate emissions reduction goals. (G7 countries include: Canada, Germany, France, Italy, Japan, the United States, and United Kingdom.) The CDP is a non-governmental organization that operates a global disclosure system for investors, companies, cities, and states to manage their environmental impacts. Oliver Wyman is a consulting firm that specializes in improving business organizational performance, risk, and operations. Here we discuss the current trajectory G7 countries are on, assess the temperature increases each country is expected to produce, and proposes rules that could reduce Scope 3 emissions.

 

The CDP is one of the founding organizations of the Science Based Targets initiative (SBTi). SBTi and CDP are working in tandem to assess effective corporate environmental sustainability solutions in accordance with the goals of the Paris Agreement. SBTi provides technical assistance to companies to create science-based emissions reduction targets. SBTi and the requesting company then assess whether the targets desired align with the Paris Agreement. Because nations around the world are falling short of their corporate emissions goals, SBTi recently issued more stringent criteria for its certification process when reviewing a company’s climate targets. Although emissions reductions targets are voluntary, SBTi will “only approve company targets that are aligned with the Paris Agreement target of 1.5°C.” Under SBTi’s new initiative, the “Net Zero Standard” assesses a company’s commitment; if they satisfy the 1.5°C target, SBTi will then certify its commitment.

 

SEC’s proposed “issuer rule” and “investor rule”: what do these rules mean?

 

This past year, the Securities and Exchange Commission (SEC) proposed a new rule in March pertaining to environmentally-focused disclosure requirements for publicly traded companies. This rule is called the “issuer rule,” which would require public companies to provide certain climate-related data pertaining to finances and greenhouse gas emissions in the companies’ public disclosure filings such as a company’s annual “Form 10-K.” Part of the issuer rule will require companies to disclose information on emissions they produce directly. The issuer rule will also incorporate “disclosure of information related to emissions from a company’s value chains.”

 

The SEC also proposed the “investor rule” this past May. This rule focuses on environmental, social, governance-related (ESG) funds and firms will be required to provide information on the specifics of their ESG strategies in files such as annual reports. If adopted and finalized, these rules will be critical to future disclosures from publicly traded companies. Disclosures will better reflect their emissions data and how the U.S. can assess whether its are on track to meet the Paris Agreement.

 

The Scoop on Scope 3 Emissions

 

Scope 3 emissions stem from value chains. Value chains consist of various business activities involved in producing a product or carrying out a service. For example, a product could consist of several stages “of the product’s lifecycle,” ranging from sales, procurement, after sales services, and everything in between. As a result, this category of emissions represents on average, six times the total volume of Scope 1 and Scope 2 emissions. If adopted, the SEC’s proposed rules could better enforce Scope 3 emissions disclosure and change current emissions patterns and reporting.

 

Scope 3 emissions are emissions that are not directly part of the company’s own Scope 1 and Scope 2 emissions. Scope 3 emissions are typically attenuated from the company’s actual production of a product. For example, emissions that fall under the Scope 3 category include: transportation and distribution, waste generated in operations, and capital goods. However, Scope 3 emissions for one company may be another company’s Scope 1 or Scope 2 emissions. Scope 3 emissions tend to represent a majority of a company’s total emissions. Thus, targets incorporating Scope 3 emissions tend to be less accounted for—which is exactly why corporations should be required to account for Scope 3 emissions in their disclosures—while simultaneously working to reduce the corporation’s Scope 3 emissions.

 

When Scope 3 emissions are included with Scope 1 and Scope 2 emissions, analysis will show warmer temperatures in almost all sectors and regions. Currently, only a whopping “43% of Scope 1 and Scope 2 emissions are reported globally.” Whereas, “publicly reported emissions reduction targets cover only 26%” of Scope 3 emissions. If the U.S. SEC adopts its proposed rule, this could effectively influence other nations to follow suit in requiring Scope 3 disclosure.

 

Based on Current Temperature Projections, 2022 is Missing the Mark

 

CDP provided a report assessing 4,000 publicly traded companies globally and their disclosures to determine whether the companies’ current corporate emissions reductions goals are bold enough to satisfy the Paris Agreement’s 1.5°C Protocol. The report also reviewed the trajectories for global warming through a science-based approach. Egypt recently hosted this year’s COP 27; one of the goals of this conference was to ensure that the 1.5°C target remained a top priority. Concern looms from G7 countries, who currently produce the highest emissions due to the limited number of adopted targets from private companies. Thus, requiring G7 countries to set effective emissions targets in private sectors will be key to reducing emissions. Pursuant to this goal, one positive takeaway from COP 27 was the innovative finance model that “monetizes avoided or reduced emissions through carbon markets.” Under “Article 6 of the Paris Agreement,” countries are permitted to work collectively in raising funds for high priority decarbonization projects through carbon credit arbitrage in “regional and international markets.”

 

In view of the G7 corporate progress, France’s, Germany’s, and Italy’s corporate sectors are outperforming the remaining G7 countries. Although these European countries serve as a model for the remaining G7 countries, their emissions still exceed the targeted goal of 1.5°C. For example, across all of Europe’s regions and sectors only the power generation sector remains below 2.0° C, which is on track for a 1.9°C increase. The transportation services sector will require the most improvement in Europe, which is currently moving towards an 2.6°C increase. This still exceeds the Paris Agreement goal. Currently, the G7 countries are most likely to reach a 2.7°C temperature increase overall, falling far below the Paris Agreement goal by almost two-fold. Exceeding the Paris Agreement marker can be explained in part by global energy insecurities, inflation, and the costs of extreme weather affecting several regions around the globe.

 

Beyond looking at G7 countries and comparing their progress to Europe’s, other regions in the world such as Asia and North America are notably failing to keep up with Europe. Companies headquartered in North America are on a path to a 2.5°C increase in temperature. Similarly, companies headquartered in Asia are on a path to a 3.0°C increase. Sectors such as the power generation sector vary significantly between: Europe, North America, and Asia. (1.9°C, 2.1°C, and 3.0°C respectively). Differences in temperature pathways amongst Europe, North America, and Asia could be due to limited emissions targets. Amongst the three continents, data suggests that the limited amount of emissions targets could be because of a lack of uniformity and financial stability. One sector that faces particularly difficult barriers is the materials sector. The materials sector operates and distributes supply globally, therefore companies in this industry struggle with improving the industrial processes. (Think of steel and cement production). However, continental targets are based on a company’s degree of ambition on how they want to administer its production processes.

 

Conclusion

 

To conclude, both countries and companies within them are increasingly adopting science-based targets as a mechanism to reduce corporate emissions. Having this mechanism will undoubtedly provide a positive impact on anticipated emissions trajectories as more countries adopt science-based targets. One of the major barriers to fully curbing current emissions patterns is the global miscounting of Scope 3 emissions stemming from production, distribution, transportation processes, among others, in its entirety. However, should the SEC adopt its proposed rules to enforce corporate emissions disclosure, this will put the United States (one of the countries anticipated to surpass the 1.5°C target) on track to better account for corporate emissions. With this proposed rule, comes the potential to influence the remaining G7 countries to adopt a similar disclosure rule.

 

 

 

 

 

 

2023 TOP 10 BLOG

 

VJEL Staff Editor: Nicolas Harris

 

Faculty Member: John Echeverria

 

Property Taxes Changing with the Tides

 

Some of the most valuable private real estate in the U.S. lies near the ocean shore. However, private homes and other structures along the coast are increasingly vulnerable to destruction due to rising seas and violent storms attributable to climate change. One of the very significant, but so far little discussed consequences of this trend is the likely erosion of the property tax bases essential to the economic well-being of coastal cities and towns. This problem requires thoughtful attention by courts in the years ahead, as well as the development of new legislative policies at the local, state, and national levels.

 

Ambulatory Coastal Boundaries

 

Recognition of the “ambulatory” nature of coastal legal boundaries has deep historical roots. As far back as the Roman Empire, the Justinian Code recognized that coastal waters and lands were owned by the sovereign in trust for all the people. Great Britain embraced this principle, but also reasoned that coastal landowners stand to gain land as well. Sir William Blackstone, the famous English jurist and commentator, observed: “as to lands gained from the sea by alluvion [accretion], where the gain is by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining.”

 

Subsequently, this idea traveled across the Atlantic Ocean with the English colonists to North America, eventually becoming a bedrock legal principle in the U.S.. The boundary between private upland property and publicly owned coastal lands is defined in most states by reference to the mean high-water mark as measured over a cycle of approximately 18.6 years. The precise location of this boundary at any point along the coast has always been subject to change: as a result of erosion, the sea may advance inland; as a result of accretion, dry land may advance into the sea. As the physical high-water mark moves in either direction, the legal boundary dividing private ownership from public ownership moves as well.

 

Prior to the era of climate change, the long-established law of coastal boundaries was arguably logical and fair. Both private owners and the government found it useful to be able to pinpoint the legal boundary between public and private ownership along the coast; the visible high-water mark, even as it moved from time to time, served this purpose well. In addition, both private landowners and the public were treated fairly under this rule because dry uplands were just as likely to advance (expanding private ownership) as recede (expanding public ownership). While this legal regime subjected both private citizens and the public to uncertainty about the extent of their property holdings, each side had an equal chance of gaining or losing ground. And anyone who bought coastal property could reasonably be charged with understanding the risks involved in this investment.

 

All of this has been turned upside down because of climate change. Under current projections, the climate system will continue to warm over the near and medium-term. In almost all emissions scenarios, global warming is expected to hit 1.5C° by the early 2030’s. According to the U.S. Global Change Research Program, the sea could rise as much as three feet relative to its historic level by the end of the century. Instead of facing a more or less equal possibility of gaining or losing property as coastal shorelines change over time, private property owners face a largely one-way threat of property loss due to sea level rise with little prospect of property gain.

 

The likelihood of chronic sea level rise and the subsequent loss of private coastal landholdings raise the question of whether and to what extent coastal property owners can and should be able to defend their land rights by building coastal defense structures. In particular, if coastal property owners can succeed, at least for a period of time, in blocking the sea from advancing landward, should they also be able to prevent the legal boundary between public and

 

private land ownership from migrating? An important decision by the U.S. Court of Appeals for the Ninth Circuit, United States v. Milner, suggests that the answer is “no.”

 

The issue in Milner was whether coastal defense structures built by property owners along the shore trespassed on lands held by the United States in trust for an indigenous tribe. The court ruled that the United States had a solid trespass claim even though the defense structures physically blocked ocean waters from reaching inland. The Court ruled the landward reach of public ownership was defined by the point on the upland that the ocean would reach at mean high water if the structures did not exist. The logic of this decision suggests that, however successful coastal defense efforts may be in physical terms, public property ownership will still advance landward with rising seas. The Milner decision is almost certainly not the last word on this important legal issue, but the case establishes an important legal precedent that applies to the entire West Coast of the U.S.

 

The Prospect of a Diminishing Tax Base

 

One alarming consequence of the threat to private property along the ocean coast due to climate change is the prospect of rapidly eroding tax revenues for coastal cities and towns. Property taxes are a significant source of revenue for cities and towns in the U.S.. These funds finance public education, fire departments, and other municipal services that are critical to a community’s day-to-day operations. Property taxes are traditionally considered a relatively stable and predictable source of government funding compared to other revenue sources at the local level.

 

The scope of the threat facing local government tax bases has been highlighted by the September 2022 publication of a study by Climate Central (click on “national summary of county results”). The study identifies the coastal communities in the U.S. most at risk due to sea-level rise. Relying on scientific information provided by Shared Socioeconomic Pathways and

 

the Intergovernmental Panel on Climate Change, the study forecasts the likely loss of taxable properties in these communities. The study predicts that by 2050 approximately 4.4 million acres of current taxable property could be below the mean high-water mark. A reduction in taxable property for coastal communities of this magnitude will undermine local government’s abilities to provide necessary facilities and services. The four states that will suffer the greatest taxable property loss are Florida, Louisiana, North Carolina, and Texas. These states could lose a combined 3.8 million acres of taxable property by 2050.

 

Louisiana, which is especially vulnerable to sea-level rise, could lose up to 8.7% of its total land area to sea-level rise by 2050. Terrebonne and Lafourche Counties along the Gulf Coast are projected to lose over 60% of total land by that date. Florida is projected to lose 1.8% of its total land area by 2050. Florida counties Monroe, Charlotte, and Miami-Dade are each projected to lose more than 10% of their land area. The challenge for Miami-Dade County is especially serious because it is the most populous county in the state and derives enormous revenues from property tax.

 

The Climate Central study translates the projections of acreage lost to sea level rise into estimates of tax revenue shortfalls attributable to the loss of taxable properties. The study estimates that by 2050 Florida could lose approximately $7.01 billion dollars of property taxes. The study concluded that Texas is at risk of losing approximately $4.89 billion dollars in property tax revenue. And in North Carolina, the projected annual shortfall in property taxes is $4.47 billion dollars. These are obviously staggering amounts of money.

 

Looking Forward

 

Predictions of sea level rise, and the prospect of losing millions of acres of taxable private land to the sea, raise a host of challenging legal and policy issues.

 

One basic issue is whether the courts will continue to use the traditional method for determining the legal boundary between private and public ownership along the shore. As discussed, the traditional approach is justified in part by the fact that private property owners are equally likely to gain or lose land because of a changing shoreline. But that premise no longer holds in the era of climate change, and courts may need to rethink whether coastal property boundaries should continue to migrate at all in response to erosion (or, less likely in the future, accretion). The courts’ resolution of this issue will have a significant effect on how sea-level rise will actually impact local tax revenues.

 

The Milner case raises important questions about how local taxing authorities should treat coastal properties protected from the rising seas by coastal defense structures. Milner teaches that these lands should probably be regarded as public property. But if private homeowners and businesses continue to occupy the areas protected by coastal defense structures, and continue to rely on local government facilities and services, should the users of these lands still be expected to pay the equivalent of local taxes? If so, in what manner and amounts should local governments make such assessments?

 

Another important issue is the potential roles of state and federal governments in helping local communities address a shortfall in property tax revenues due to sea level rise. Higher levels of government should protect coastal cities and towns from a loss in property tax revenues due to climate change. Alternatively, given the special climate vulnerability of coastal cities and towns, combined with fiscal challenges they face, states and the federal government may have a special responsibility to finance adaptive measures which will help protect local communities (and their tax bases) from the consequences of sea level rise due to climate change.

 

In extreme circumstances, depending on the topography of the community and the extent of sea level rise, some communities may eventually become unlivable because of sea level rise.

 

Taking the long view, the near-term erosion of the local tax base due to property inundation may be a harbinger of a community’s eventual financial collapse as the sea continues to advance landward. As more taxable properties disappear the community is left with fewer and fewer resources to address greater challenges. States, and more likely the federal government, will inevitably need to step in to help plan and finance the relocation of some communities to safer and more physically sustainable ground.

 

 

 

 

 

 

2023 TOP 10 BLOG

 

VJEL Staff Editor: Logan Keen

 

Faculty Member: Laurie Beyranevand

 

See You Later, Pollinators: The ‘Insect Apocalypse’ Continues to Fly Under the Radar of Policymakers

 

The apocalypse is already underway, and it’s happening right under our noses.

 

Slowly but surely, insects are dwindling—both in variety and total population. A 2021 study found that the “Insect Apocalypse”—as scientists and commentators have christened the existential threat—equates to a loss of 1-2% per year in insect abundance, largely due to the usual suspects of habitat loss and climate change, but also extensive insecticide and herbicide use. Widespread pollinator losses have been identified in Europe. Great Britain has witnessed a 30-50% decline in the number of butterflies, and Germany reported a ghastly 76% reduction in the total biomass of flying insects. Though less well-studied in regions outside Europe, early research indicates the phenomenon of dwindling insect abundance exists in other regions as well.

 

Interestingly, not all insect species are disappearing as a result of climate change. Some are thriving, but they tend to be the sort that humans would rather avoid: namely, agricultural pests. For example, some species are expanding poleward as the climate warms, such as the brown marmorated stink bug, a species particularly fond of crops. Warming oceans have led to increased precipitation, as evidenced by the recent intensity of the monsoon and cyclone seasons in the western Indian Ocean. That increase in rain created the perfect breeding conditions for locusts to breed, hatch, grow, and eventually destroy massive quantities of grain in Ethiopia in 2019 and 2020.

 

Moving forward, humans must grapple with the doubly detrimental impacts of climate change and habitat destruction on insect biodiversity: first, the decline in beneficial insect populations, and second, the expansion of harmful insect populations.

 

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The class Insecta—a marvelously diverse group of creepy crawlers (and fliers) that includes bees, ants, beetles, butterflies, and flies—is currently comprised of about 1 million identified species (not including the millions more suspected unidentified), representing the most successful class in the animal kingdom, evolutionarily speaking.

 

Ask a passerby the first thing that comes to mind when they hear the word “insect,” and they’ll probably have a negative reaction. Fair enough, given humanity’s long familiarity with insects as both carriers of disease and ravagers of crops. Most humans possess a certain pathological and deep-seated aversion to insects, likely a result of thousands of generations of natural selection. The aversion, characterized by researchers as an anxious trait more like disgust than fear, is comparable to our physical reaction to feces and rotting food; scientists believe the traits developed similarly because insects, feces, and rotting food all pose the danger of making us sick. Over time, humans learned to be repulsed by insects.

 

Many insects, however, provide remarkable benefits to humanity, including pollinators and predators of pest insects. Flying insects are key pollinators of 87 of the world’s major food crops, including fruits, spices, and—this cannot be overstated—cacao, the vital ingredient in chocolate. The negative effects of climate change on pollinators are well-studied. Without stable populations of pollinators, crop yields inevitably suffer. While feasible substitutes for pollination exist (indeed, several nations have already implemented the practice of hand-pollination), these practices are time-consuming and costly.

 

One particularly grisly and lesser-known benefit that insects provide to humans comes courtesy of the humble blow fly. Female blow flies land on a dead body within minutes of death, taste it to ensure it’s good food for their larvae, and immediately lay hundreds of eggs—known as maggots. This process kick-starts decomposition. Beginning in the 1300s, ingenious forensic entomologists learned the life cycles of blow flies found in their region and used this information to determine how long an individual had been dead; the same techniques are used today.

 

Climate change, unfortunately, may play an unexpected and catastrophic role in forensic entomology moving forward because it threatens the accuracy of PMI (post mortem interval) predictions. As the planet warms, the home range of certain tropical species of blow fly will continue to expand poleward. Additionally, the actual lifecycles of each species will change— meaning that, practically speaking, a time of death may be grossly misestimated based on either the reliance on calculations made using an outdated lifecycle or the misidentification of the species of maggots on the body. As a result, forensic investigators might hypothetically come to suspect of murder someone totally innocent but present at the crime scene at 5:45PM, while simultaneously eliminating the real culprit as a suspect, who in fact did the deed at 2:15AM—all because climate change is changing the way insects breed and migrate.

 

The bottom line? Despite our evolutionary predisposition to be repulsed by them, insects provide untold benefits to humans, including pollinating the crops that make our food, eliminating pesky agricultural pests, and indeed, helping us solve murders. So: what can be done to prevent their ongoing disappearance?

 

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As the old saying goes, knowledge is power; the aphorism rings truest when it concerns scientific knowledge. With better data, decision-makers can make better decisions to protect the environment. Consequently, one recommendation to address the Insect Apocalypse is the need for more data on insect abundance, particularly in lesser-studied and more biodiversity-rich regions of the globe.

 

While studies on insect populations are becoming more pervasive, these studies have overwhelmingly examined biodiversity in temperate climates, e.g., Great Britain and Germany. Meanwhile, scholars estimate that a majority of the world’s insect species—including undiscovered species, estimated to comprise 80% of total insect species—live in little-studied tropical regions. The upshot is that despite the discouraging picture painted by observation of dwindling insect abundance in temperate regions, the most destructive population collapses of the Insect Apocalypse are probably occurring under the radar.

 

One ambitious 2022 study, for example, analyzed 20,000 insect species to better understand the overlapping effects of the “twin conditions” of habitat loss and climate change on insect abundance. Scientists concluded that insect decline was worst where both factors overlapped, because the largest decline in any of the biomes studied (63% reduction) was found in “climate-stressed agricultural areas” with the greatest amount of natural habitat removed. By contrast, the researchers observed only a 7% decline in insect abundance where three quarters of the nearby natural habitat had been preserved.

 

This knowledge is only powerful though if law- and policymakers are apt to heed it. There is already a substantial body of knowledge indicating the harmful, indiscriminate effects of insecticides and herbicides on insect populations, including those insects that are agriculturally harmless.

 

The second general recommendation, then, is addressed to law- and policymakers: we must carefully consider the impact of every government action or policy on insect abundance. Specific actions the United States might take might include agreeing to list certain insects under the

Endangered Species Act, especially pollinators; further, the US could place trade restrictions on agricultural products coming from places with high deforestation rates, like Brazil and Indonesia.

 

Most importantly, though, the United State should immediately discontinue the use of neonicotinoids, a class of chemicals originally developed by Nazi scientists during World War II which are especially toxic and environmentally pervasive. Not only are these insecticides highly lethal to bees and other insects, but they also have more sinister effects on navigation, taste sensitivity, and other abilities that are key to foraging and thus hive productivity. Additionally, neonicotinoids, or “neonics,” have been found residually in waterways and soil, having noted effects on birds and aquatic invertebrates. The EPA has issued an interim decision on neonicotinoids, but progress has stalled. Recently, the agency banned the use of chlorpyrifos on food sold in the U.S. because of chlorpyrifos indisputable effects on human health, especially to children; there should be similar urgency to proactively protect the nation from the unseen dangers of vanishing insect populations. Several states, including California, New Jersey, and Maine, have enacted laws restricting the use of neonics to various degrees, but an issue of such grave importance ought not be left to the states to determine individually, especially considering the innately migratory nature of both climate change and insect populations. Congress should therefore prioritize passing the amendment to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) introduced last year by Senator Cory Booker—known as the Protect America’s Children from Toxic Pesticides Act—which would include an immediate ban on the most harmful pesticides, including neonicotinoids.

 

For its part, the European Union has already passed legislation to restrict some of the more harmful pesticides, including the three most common neonicotinoids (clothianidin, imidacloprid, and thiamethoxam) in 2018. Though neonics are ruthlessly effective at killing insects, they do so indiscriminately. Studies suggest that non-chemical alternatives to neonicotinoids do exist; these alternatives should be studied further.

 

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In sum: there is an ongoing, drastic reduction in total insect abundance, with insects declining steadily over the past half-century at a rate of 1-2% percent a year. This total decline is contrasted by a simultaneous increase in the home ranges and populations of certain agriculturally destructive insects. This will likely be devastating for humans, both in obvious ways like reducing the pollination of crops, and less obvious ways: for example, by altering the way crime scene forensics are done. The drivers of the Insect Apocalypse are primarily the “twin conditions” of climate change and habitat loss—two sides of the same coin—but also include other human-induced variables like pesticide use. As for solutions, humanity must not only collect more data on understudied regions and species but also more thoroughly consider the data we already possess when making policy; one piece of low-hanging fruit would be an EPA ban on neonicotinoids.