Category: Ecoperspectives

Melting Away: The Environmental Impacts of Rock Salt and Possible Solutions

By Cassidy McMann

Since the 1940s, the use of rock salt, or sodium chloride (NaCl), combats snow and ice accumulation on roads during the winter. However, rock salt contaminates water resources, damages vegetation, and harms wildlife. Therefore, many state transportation agencies across the country now utilize alternatives and administer new practices to mitigate the environmental harms of rock salt. Yet, the use of more environmentally friendly methods is not widespread, and transportation agencies should look to the success of other states for guidance.

Transportation agencies often use various means and methods for de-icing roads. For example, the NYSDOT utilizes about six different chemicals and treatments to control ice and snow on its roads. These include rock salt, treated salt, calcium chloride, magnesium chloride, magnesium chloride with organic based performance enhancer (OBPE), and sand. However, rock salt is the most common and least expensive ice control chemical. Today, about 20 million tons of rock salt is used annually, which is equivalent to about 123 pounds for every American. Rock salt works by creating a saltwater brine on the ice, which lowers the ice’s melting point. The salt then breaks into separate sodium and chloride ions which ultimately make their way into waterways and ecosystems.

Once applied to roads, rock salt seeps into ground and surface waters such as streams, rivers, and lakes. High chloride levels in these waters negatively impact a large number of fish, bugs, and amphibians. According to a survey done by the U.S Geological Survey (USGS), 84% of urban streams had increased chloride levels, and 40% exceeded federal safety guidelines for aquatic life. The USGS concluded rock salt to be the source of the contamination. Moreover, high levels of chloride can hinder the growth and reproduction of aquatic species’ and organisms. Furthermore, increased chloride in freshwater ecosystems can negatively impact food sources and disrupt osmoregulation in amphibians.

Rock salt also harms vegetation alongside roadways. Salt, or salt-ladened water, is kicked up onto plants and trees by passing vehicles and covered by the overspray during salt application. Rock salt can cause discoloration or browning of needles on evergreen trees, bud damage, twig and stem dieback, reduced or distorted leaf or stem growth, and reduced plant vigor in contaminated plants and deciduous trees. Furthermore, rock salt negatively affects soil quality and health. Sodium ions in rock salt can displace important minerals like potassium and phosphorus when they become attached to soil particles. As a result, the soil becomes more dense and compacted leading to reduced drainage and aeration. Additionally, due to the increased presence of chlorine and sodium in the soil, plants will absorb these minerals instead of necessary nutrients resulting in deficiencies.

Above all, what may be the most concerning about rock salt is its persistence. Once salt is present in an ecosystem, in the soil, or in a waterway, biological processes will not remove it. According to Paul Gallay, the President of Riverkeeper, increasing sodium concentrations in many freshwater waterways and water bodies could have originated from salt applied decades ago. This salt is now percolating into surface waters today after reaching groundwater years ago. Salt can be transported out of a system through dilution by fresher water. However, this process is only successful when transport from the system is possible, such as through an isolated lake or aquifer.

While there is no perfect, singular solution to rock salt’s impacts, the implementation of new technologies and policies can reduce environmental damage while maintaining public safety. Changes in the maintenance and type of equipment used to de-ice roads offer many achievable options. For example, live edge blades on snowplows are more efficient at removing snow. Currently, the majority of snowplows currently have flat blades. However, most roads are built to have a small curve to prevent water from pooling on the lanes during rainfall. As a result, flat blades have a tendency to leave some ice behind on the road which leads to the need for more salt application. Unlike flat blades, live edge blades can adapt to curves in the road and efficiently remove more snow and ice.

Another change to implement is calibrating snowplows and trucks more frequently. Most agencies and municipalities only calibrate their trucks for salt flow at most once a year. Without proper calibration, trucks could be releasing more salt than intended. “Smart snowplows” are another new innovation that can aid in the reduction of salt use. These plows are outfitted with GPS technology that can gauge pavement temperature, the amount of residual salt from prior applications, and the presence of ice and amount of friction on the road. This sophisticated technology allows for operators to have unique control of the plow’s blades and application rates which results in less salt and chemical use.

Moreover, action can be taken through policy implementation at the state level. For example, in 2020 NY passed legislation establishing the Adirondack Road Salt Reduction Task Force. The Task Force is responsible for studying and assessing the impacts of road salt in Adirondack State Park and must complete a comprehensive review of rock salt application and best management practices. In 2023, the Task Force published its review, which identified instances of exceedances of regulatory contaminant levels and found current water quality standards are not protective enough for the Park’s resources. The review recommends implementing new environmental assessment and monitoring guidelines and providing training to snow and ice removal practitioners for best management practices.

Rock salt likely is not going away anytime soon. However, it is important to acknowledge and address the environmental impacts of rock salt, especially since climate change will likely intensify winter storms and make winter weather more erratic. Rock salt has lasting environmental affects and ultimately wreaks havoc on groundwater and surface waters. Therefore, transportation agencies should continue to implement new technologies that reduce the need for rock salt and states should encourage these changes through legislation and funding.

Railroading State Environmental Law: The Surface Transportation Board Preempts All

By Benjamin Albertson

The Surface Transportation Board (“STB”) has exclusive authority over railroads in the United States and has since the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”). With this authority, it has consistently railroaded almost any state law that affects the construction and operation of railroads, even if the effect is purely incidental to the law’s general purpose. The ICCTA explicitly preempts any conflicting local, state, or federal law. The STB has consistently interpreted this preemption to include any law affecting the operation of railroads in any way, including local permits. The preempted laws of specific concern are state environmental laws, which railroads have been allowed to ignore with impunity.

Now, the Ninth Circuit has provided a framework under which state environmental laws can have the “force and effect of federal law” and are not preempted by ICCTA. This framework allows state environmental laws passed pursuant to a federal environmental law, like the Clean Water Act (“CWA”) or Clean Air Act (“CAA”), to have the force and effect of federal law if the Environmental Protection Agency (“EPA”) approves the state implementation plans. This means such laws will not be preempted by ICCTA. This framework is not limited to the CWA and CAA, but their statutory construction is a roadmap for the Ninth Circuit’s method. The Ninth Circuit later applied this framework to a case in Washington, where a federal law allowed Washington and Oregon to work together to maintain a scenic area. The Court found the relevant federal law (The Columbia River Gorge National Scenic Area Act), unlike the CAA or CWA, failed to contain a provision that could transform a local law into a law with the force and effect of federal law.

Multiple Circuits have also held that any form of permitting requirements are per se preempted, even if for environmental reasons (City of Ozark, AR v. Union Pacific Railroad Co., Oregon Coast Scenic Railroad, LLC v. State of Oregon Department of State Lands, Green Mountain Railroad Corp. v. Vermont). Unfortunately, this severely limits state environmental regulations and their ability to address environmental concerns from railroads. Trains produce noise, vibration, and air pollution. Pollution which disproportionately affects poor and marginalized communities. As shown above, however, state attempts to regulate have often left the state wanting. Also, while it is good the Ninth Circuit adopted the “force and effect” framework, it has already shown what happens when federal law fails to give states the force and effect they need. This leaves state and local governments in a sorry state when the federal government has and continues to fail to act. The STB has used this preemption against states that have attempted to apply their environmental laws against railroads. Still, not all is dark, and work is getting done.

States around the country have taken great steps to address climate change, California is a great example. But what if one state’s emissions reductions are offset by another’s additions? A national climate change law implementing a cap-and-trade system for carbon would go far in managing our emissions. Unfortunately, that is unlikely right now. The STB should stop railroading state attempts to fight climate change, and perhaps be a bit more open to assisting states in this fight.

That is not to say the STB does nothing. The Eighth and Ninth Circuits frameworks which could potentially enforce state and local environmental laws against railroads, come from STB decisions. Understandably, these frameworks give great deference to the railroad industry’s concerns because years of effort to deregulate the railroad industry led to the passage of the ICCTA. The deregulated rail industry is not interested in change either. While California works to address concerns due to the idling of older locomotives, the Association of American Railroadsprepares litigation to ensure such laws are preempted.

Still, the future is not all bleak; the EPA recently promulgated rules to give state and local governments some control of locomotive pollution, at least for older locomotives. This is a step in the right direction. Hopefully, as time goes by, the EPA and STB can recognize their role in the fight against railroad pollution and nuisance. The rail industry may be uninterested in cleaning itself up, but states, the EPA, and the STB have the power to work together to address these concerns and lead our railroads into a cleaner, greener future.

Reforming Oceanic Governance: A Department of Oceans 

by Joseph Lepak

Current federal ocean governance is spread across a myriad of federal agencies in different departments and the time has come to bring them all together. This blog proposes that a new federal executive department is needed to bring ocean governance into the 21st century: a Department of Oceanic Affairs (DOA). First, we will cover the current governance structure of United States oceans, the current need for a DOA, and lastly propose how DOA would be structured, and what DOA would be responsible for.

From the mean high tide line on the shore to 200 nautical miles, the waters above and below are under United States jurisdiction. Beyond 200 nautical miles, the ocean seafloor part of the continental shelf(the extension of the continent into the ocean) is still under United States jurisdiction. Twelve nautical miles from shore to sea are the territorial waters, where full U.S. law applies. Congress, in the 1953 Submerged Lands Act gave states jurisdiction from shore to three nautical miles (although Texas and Florida for their gulf coastline are special as their jurisdictions extend nine nautical miles). From the territorial waters and up to 200 nautical miles is the exclusive economic zone where only a limited form of jurisdiction exists, primarily regulation of economic activities. In total, 131 million square kilometers (~50 million square miles) is under United States jurisdiction.

Governing this vast area, four agency mandates prioritize oceans, while other mandates involve oceans. The largest and most important agency is the National Oceanic and Atmospheric Administration (NOAA). NOAA is responsible for research of the ocean and weather, conservation of the ocean, management of fisheries, and the protection of marine endangered species. NOAA is part of the Department of Commerce, and interestingly does not have an organic statute, instead being created by executive order. Then there is the Bureau of Ocean Energy Management (BOEM) and Bureau of Safety and Environmental Enforcement (BSEE), both created by splitting the Minerals Management Agency in the wake of the 2010 BP oil spill. BOEM is responsible for permitting ocean energy projects (oil rigs and wind-turbines) while BSEE is responsible for ensuring that those energy projects meet safety standards. Lastly, the Maritime Administration (MA) regulates and promotes the development of the U.S. merchant marine and shipping industry. Beyond the four primary ocean agencies is the Environmental Protection Agency, which regulates ship discharges, ocean trash, and beach/coastal health; and the United States Army Corps of Engineers which regulates certain uses of water, such as dredging and dock and harbor construction and operation.

Creating a new executive department would promote administrative efficiency and the new department would serve as a designated entity to address ocean developments. Reorganization for administrative efficiency is a common reason for creating new departments. The Department of Education was a spin-off of the Department of Health, Education, and Welfare’s education programs consolidated with education programs in the Department of the Interior and Department of Labor. Similarly, the Department of Energy (DOE) brought together 30 agencies with energy-related mandates under one roof. Both departments were meant to provide an effective means of communication between the different agencies but also highlighted a commitment by the federal government to the field in question. For example, the DOE assembled its various agencies to tackle the energy crisis of the 1970s. The need for an Ocean Policy Committee in 2021 indicates the potential for efficiency increases by creating DOA. The push by the Biden administration to balance conservation with increased offshore development required greater coordination by agencies and necessitated a national ocean strategy.

While improving federal administrative efficiency is a solid reason for DOA’s creation, the growing “blue economy” demands that an organization like DOA exists. Notably, the Biden Administration seeks to build 30 gigawatts of offshore wind power by 2030. However, the expansion of offshore wind is but one part of the Biden Administration’s strategy which includes the protection of 30% of all marine areas by 2030 and the elimination of greenhouse gas emissions from shipping. Additionally, the Biden administration has invested $240 million into aquaculture. All these actions (offshore renewable energy, clean shipping, and fisheries management) are part of what experts call the blue economy. The blue economy is the revitalization of industries related to the ocean as part of a sustainable future, as exemplified by the United Nations Sustainable Development Goal 14, and the recognition that offshore wind and aquaculture will only increase the importance of the ocean in the overall economy. However, regardless of the future president, the Biden Administration will end, and the future of these initiatives may become uncertain. A special purpose department, if built on sustainable principles, will enshrine our nation’s commitment to the ocean and ensure a just development of the blue economy.

The Department of Oceanic Affairs would be the logical outgrowth of the Ocean Policy Committee, and would consolidate the National Oceanic Atmospheric Administration, the Bureau of Ocean Energy Management, and the Bureau of Safety and Environmental Enforcement. The Maritime Administration, as a transportation agency, would remain part of the Department of Transportation since keeping all transportation agencies together maintains their efficiency. Additionally, the DOA is a management entity and not a defense entity, so the DOA would not share roles with the U.S. Navy or Coast Guard. Instead, the DOA should be viewed as a maritime equivalent to the Department of the Interior, administering federal lands at sea. DOA would be responsible for the regulation of fisheries, offshore energy development, marine national sanctuaries and other protected areas, protecting marine species, research into the ocean and the atmosphere, and be the first point of federal regulatory efforts as new maritime ocean developments occur. At minimum there should be four assistant secretaries that the current agencies would filter into: (1) an Ocean Research Administration; (2) an Ocean Conservation Administration; (3) an Ocean Resource Management Administration; and (4) an Ocean Safety Administration. The administrations/assistant secretaries would oversee the relevant current agencies, so NOAA would be split, and (for example) the National Marine Fisheries Service would be part of the Ocean Resource Management Administration while the Weather Service would go to the Ocean Research Administration. BOEM would be incorporated as a sister within the Resource Administration alongside the fisheries service, while BSEE would be part of the Ocean Safety Administration. With NOAA as its backbone, the new department would transform NOAA into an entity that can address the 21st-century ocean challenges outlined above.

EcoPerspectives Blog

India’s Climate Diplomacy in 2024: Reflections on Climate Tech and Environmental Diplomacy

By Akshith Sainarayan, third-year student, School of Law, Christ (Deemed to be University and Calvert Nazareth, fourth-year student, School of Law, Christ (Deemed to be University)

May 9, 2024

 

Introduction

The World Meteorological Organization’s provisional State of the Global Climate Report recently confirmed that 2023 was the hottest year in history. The report noted that the effects of climate change and global warming are evident, courtesy of the increased number of climate disasters and extreme weather conditions. The impacts of climate change are worsening in frequency and intensity. Counterfactually, however, innovation and technology will play a pivotal role in the pursuit to overcome climate crises in the years to come. This niche branch of technology, often referred to as climate technology or climate-driven tech, aims to secure a symbiotic relationship between technological growth and environmental safe-keeping.

The United Nations Framework Convention on Climate Change defines climate technologies as “technologies that are used to address climate change . . . including technologies that help to reduce GHGs [greenhouse gasses], renewable energy technologies and adaptation technologies such as drought-resistant crops, early warning systems and sea walls.” The synergy between technology and environmental protection manifests through understanding the various opportunities and risks, building strong resilience against climate impacts and responding effectively when such impacts occur. Technology can not only tackle climate change, it also has the potential to create new jobs, promote economic growth, and lead to more innovation.

India is a global leader in climate technology, as the nation has been ambitious in achieving its net-zero targets for 2070 and its interim climate commitments for 2030. According to the Impact Investors Council Report, India boasts of housing over 120 funded climate-tech-driven start-ups, which have received funding from 272 investors from across the country. India’s push towards reducing its carbon footprint by exploring sustainable technology has three characteristics: allowing pathways for greater private investment in climate technology, collaboration through public-private partnerships, and technology transfers as a part of its global commitments.

Through the course of this discussion, we examine India’s internal business model and external trade policies concerning climate technology. This includes an analysis of the market for climate tech in India, as well as the latest trends in climate diplomacy from the 13th Ministerial Conference (“MC-13”) against this backdrop. Through this, we attempt to create a holistic understanding of how India fares in the climate tech and sustainability space, what opportunities lie in this market, and how India perceives sustainable trade in the World Trade Organization (WTO).

 

Where Does India Stand?

While India tackles its persistent air and water pollution problem, an opportunity presents itself with a growing demand for environmental technology. The Indian environmental tech market has a value of approximately $23 billion, with a projected growth rate of 7.5% between 2023 and 2028. India is also the 6th largest market globally for niche environmental tech solutions—particularly those relating to air pollution control and solid waste recycling. The market is also rife with technology for wastewater management.  India’s approach to the climate crisis is not necessarily unidimensional. These solutions are not entirely import-driven solutions and are contingent on a mix of “Make in India” and “Make for India.”

Consequently, climate tech ecosystems are crucial for India’s strategy towards energy transition and sustainability. With start-up funding and investments in green tech at an all-time high, India holds the 9th position globally for venture capital (VC) funding for climate technology. The market acts as a twofold opportunity in plowing in much-needed foreign investment and sustaining a climate-centric industry.

 

India’s Recent Climate Diplomacy

India has always been a vehement proponent of the common but differentiated responsibility policy in climate politics. Its climate policy comes as a natural consequence of furthering the cause as a proactive player in the “trans-nationalist” movement in climate advocacy; the policy engages beyond the confines of a COP-centric climate change mitigation regime, which has historically been a traditional approach opted for by multilateralist trade factions.

While India and its climate tech ecosystem booms into a profitable space for investment, its approach towards streamlining cross-border business has also been positive. In October 2023, India proposed a roadmap before the WTO’s Working Group on Trade and Transfer of Technology (“WGTTT“). The roadmap was envisioned to facilitate the development and transfer of environmentally sound technology (“ESTs“) through a multilateral process towards removing barricades on tech transfer. The roadmap includes the establishment of an environmentally sound technology database linked with a technology transfer platform, streamlining licensing practices, and enabling developing countries to use Trade-Related Aspects of Intellectual Property Rights (“TRIPS“) flexibilities.

The proposed mechanism within the TRIPS Agreement encourages open and adaptable technology licensing, specifically to research outcomes related to climate change and ESTs funded by public resources. This also includes a proposal towards establishing publicly funded technology inventories by developed nations—creating a databank of sorts to merge the asymmetry between developed and developing nations. The TRIPS mechanism will facilitate smoother movement of climate tech.  Additionally, it urges these countries to disclose information about technologies that are either directly or indirectly patented or funded by government bodies. India also suggested promoting innovative intellectual property rights-sharing arrangements between firms in developed and developing countries. These arrangements would facilitate the joint development of environmental goods and services. Furthermore, India recommended case-by-case exemptions from patentability for inventions critical to the diffusion of ESTs necessary for climate change adaptation and mitigation. It also proposed shortening patent protection terms to enhance access to specific patented ESTs in the public interest. Waiving patents on climate-friendly products and granting royalty-free voluntary licenses are additional measures to address climate crises.

India also played a pivotal role at the MC-13 of the WTO in Abu Dhabi earlier this year. India advocated for a sustainable means of living based on traditions and values of conservation, including LiFE (“Lifestyle for Environment”) as a key to combating climate change. India also expressed its concerns about using unilateral trade protectionist measures by many countries across the globe in the guise of environmental protection. In doing so, India particularly criticized the European Union’s CBAM (Carbon Border Adjustment Mechanism)—a carbon tariff policy on the usage/trade-in of carbon-intensive products.

India led the negotiations against the inclusion of this proposal, stating that it targets developing nations by studying their industrial policies and ultimately seeks onshore industries. The policy was ultimately dropped due to disagreements in arriving at a consensus on the language of the CBAM proposal such that developing countries do not take the hit, as against the original intention of possibly targeting Chinese-owned SOEs.

 

Inferences and Conclusion

India’s policy seems consistent with its original stance on common but differentiated responsibilities. On one hand, India seeks to open its borders up for sustainable tech transfers—tapping into a booming market that could bring in some much-needed foreign direct investment (“FDI“). On the other hand, it seeks to hold its ground as a developing nation, criticizing Western and European attempts to continue preferential trade policies against the global south. The events of WGTTT and MC-13 put India in a strategic position to further what is perhaps the need of the hour for the climate tech market—generating climate finance by integrating the private sector internationally. This also works as a strategy to involve the Global South in generating climate-centric solutions to strengthen its climate tech market. These events reflect a delicate balance between leveraging global partnerships for sustainable tech transfers and safeguarding the interests of developing nations in the face of evolving trade dynamics. On the domestic front too, India has attempted to ease its business regulations through the Jan Vishwas Act. This includes relaxing policies on environmental protection, compliance, disclosure standards, etc. How India seeks to integrate its domestic policies with its position in the WTO is a question not yet answered.

EcoPerspectives Blog

Low on Snow: Climate Resilience Policy and the Push to Prevent the Acceleration of Warming Winters in New England

By Lauren Carita, Staff Editor for the Vermont Journal of Environmental Law

May 3, 2024

 

Welcome to 2024, where a white Christmas is a distant memory and ski resorts close mid-January due to a lack of snow. These days, mud, rain, and fluctuating temperatures upend normal life in picturesque New England. While some may appreciate the nice break in chilly weather, the reality is unfortunately grim and deeply concerning. The combining factors of human-induced climate change and the El Niño weather pattern will most likely catapult this winter to the warmest on record. A recent study found that regions with higher latitudes, like New England, are warming more rapidly than the rest of the world—with winters warming the fastest.

This begs the question, “are politicians and leaders doing anything about this?” Here’s the answer: if they are not, they should be—and they should have started 40 years ago.

 

What Is Needed: Climate Resilience Policy

Climate resilience involves the ability to anticipate, prepare for, and respond to hazardous climate impacts. Climate resilience anticipates both acute (heatwaves, wildfires, etc.) and chronic (rising sea levels, worsening air quality, etc.) impacts. Since the consequences of rapid warming in New England will disadvantage BIPOC (Black, Indigenous, and People of Color) and low-income communities, climate resilience plans must account for these vulnerabilities.

New England’s warming winters trigger an increase in precipitation as rain. Increased temperatures and rain melts the existing snowpack and can result in damaging floods. Rural flood mitigation strategies are necessary resilience policies to prevent the extent of damage incurred by unexpected flash flooding. Redirecting or creating mitigation revenue sources is just one way state and local governments can use their policy tools to prepare for future winter flooding events.

Can state climate resilience policies really bring back New England winters? It depends, but the stakes are too significant not to try.

 

Which States are Succeeding?

Vermont is ahead of the game regarding New England state climate policy. The state experienced dramatic summer and winter flooding in the past decade, and will continue to do so with increased temperatures. After Tropical Storm Irene, state lawmakers updated the Emergency Relief Assistance Fund to accelerate Vermont’s cleanup efforts and increase resilience in the face of these disasters. State officials developed criteria for community financial assistance to incentivize taking risk-reduction measures like developing a hazard mitigation plan, passing a river corridor protection bylaw that meets or exceeds state regulations, or by prohibiting new structures in special flood hazard areas. Even if communities cannot meet this incentive, the state gives 30 days after a federal disaster declaration to increase their score and qualify for more assistance.

Connecticut has been refreshing their Climate Preparedness Plan since 2013. The state, much like the rest of New England, deals with major flooding events year-round. In January 2021, the Governor’s Council on Climate Change released a “phase one” report titled “Taking Action on Climate Change and Building a More Resilient Connecticut for All.” Through an environmental justice lens, the report includes many anticipated climate resilience strategies for the state including re-evaluating their approach to siting renewable and non-renewable infrastructure, maintaining un-fragmented forest cover, and further developing policies that encourage protection of natural wetlands. On top of that, the Connecticut Department of Energy and Environmental Protection launched a Climate Resilience Fund that prioritizes grants for advancing critical flood mitigation projects. So far, this fund has helped dozens of Connecticut communities become more resilient to the effects of climate change while centering on the most vulnerable populations.

 

Which States Need Improvement?

Due to Governor Chris Sununu’s misrepresented views on current climate science, New Hampshire falls behind on climate resilience policy compared to the rest of the New England states. Governor Sununu is the only New England governor yet to join the U.S. Climate Alliance, a bipartisan climate action coalition. Even though New Hampshire’s 2009 Climate Action Plan anticipated the reduced viability of ski areas and the increase in major flooding events, the plan offers no solid policy pathways to resiliency. Thankfully, municipalities and communities are stepping up. After January’s intense flash flooding, the coastal watershed communities of Dover, Exeter, Hampton, Newcastle, Newmarket, Portsmouth, and Rye are planning to strengthen their resilience efforts in 2025. Through their involvement in the New Hampshire Coastal Adaptation Workgroup (NHCAW), these communities have partnered with over 30 organizations to use storytelling to summarize efforts, update timelines of projects, and create ArcGIS maps of initiatives in vulnerable areas. Even without the help of Governor Sununu, the state still pulled together to address their needs. To go further, the state government must facilitate increasing federal funding, creating and updating state-level resilience reports, and at the very least, acknowledging climate change as a tangible issue.

If the U.S.—and by extension, the individual states—do not act fast to keep warming below 2ºC, the compounding climate risks will be extreme and deadly. New England’s lack of snow will be the least of our worries if the Atlantic overtakes our coastal communities and mass climatic changes occur in rapid succession as predicted for this century. Even if we cannot save snow, we can save people. To achieve this daunting task, climate resilience policies and adaptation plans are necessary in every state and community in the region. State leaders must ensure preparation is adequate for their unique circumstances based on the best available data. Citizens must hold them accountable with their vote.

Together, New England can preserve not only its popular winter activities and historic charm, but it can save itself from the worst of the climate impacts it knows are coming.

To find out more about how New England states are using climate resilience policy to prepare for increased warming, visit the RAINE database.

EcoPerspectives Blog

Green Banks are Too Small to Fail: Green Investment and the Inherent Local Interest

By Ervin Yahr, Staff Editor for the Vermont Journal of Environmental Law

May 3, 2024

 

As the need for green infrastructure grows, so does green investment. Green loans and green banking itself are emerging fields in banking. They provide the private sector with an opportunity to fund green projects. Through both government and private investment, green banks have cropped up in the United States and around the world. Green banks are often non-profit, non-governmental entities that divert investment toward climate-conscious infrastructure, alleviating pressure on public budgets. In the U.S., most green banking is at a small, local scale, directly impacting the surrounding community. Green banking stands as an opportunity for private investment in green initiatives and infrastructure. Banks can offer green loans and small-scale community banking while they provide a unique opportunity to reinvest locally with a streamlined green consciousness.

Local green investment may be the solution for an equitable green future in the United States. Not only do local institutions understand their communities better than national institutions, they have greater access to stakeholders and private investors in the area. A national solution may not be the answer. “Many clean-energy projects require local expertise” claims Reed Hunt from the German Marshall Fund of the United States. With disproportionately high outputs, local green banks have already outperformed what could be expected by financial analysts. Through the “deep experiences and roots” in local low-income communities, small, local green banks have a unique relationship that a nation-wide entity could not hope to achieve. A national green bank can assist in green efforts, but it cannot replace the local touch that small green banks can achieve.

State legislatures must often incentivize private entities to support their local communities. The Federal Deposit Insurance Corporation (FIDC) encourages banks to get involved with their communities and report loan services and investment projects that serve both low- and moderate-income (LMI) members of their community. Institutions can now serve their communities through green infrastructure investments. Green or not, the FDIC insures banks under the Community Reinvestment Act (CRA). The CRA requires banks to meet the credit needs of their local communities and serve LMI neighborhoods. Investment in local infrastructure benefits the community at all income levels.

Banks vie for better ratings under the CRA which grants them longer periods of time between review and the possibility of an “outstanding” rating. Decorah Bank & Trust, for example, is one of only five banks in the state of Iowa with an outstanding CRA rating. Decorah Bank & Trust and its division, Greenpenny, maintain separate accounts for funds and investments. According to Maureen Yahr, the bank’s former CRA Officer, Greenpenny has sixteen loans that total over $5 million dollars that would likely pass CRA review. Greenpenny’s loans and investments go exclusively towards green projects, so CRA eligible loans are guaranteed to be green. Green banks can conform to CRA requirements and benefit their LMI communities without sacrificing climate considerations. Local banks have the greatest ability to achieve this as they are confined to smaller communities under consideration in the CRA and are better equipped to know what a community needs.

Small green banks are a tested and trusted model of generating and applying capital towards green investment. If the EPA or another federal entity created a national green bank, it would funnel federal dollars into smaller institutions with a foothold in underserved and low-income communities. Banks can invest Greenhouse Gas Reduction Fund loan money directly in low-income communities or qualified entities that serve these communities. The IRA did not clearly define low-income or disadvantaged community, but by working with local and state green banks already serving LMI neighborhoods, federal money could benefit a variety of people. The IRA also fails to directly name green banks as recipients for grants, but institutions that would qualify align with green banking principles. A national green bank can leverage its size to get better deals with a larger source of capital, but it will always funnel that money into smaller entities with a local focus.

Not only do local green banks understand their communities and know how to serve them, many small green banks have been able to leverage public money and gain private investment at unprecedented rates. Connecticut Green Bank’s 8:1 ratio of private to public investment is emblematic of what can be done with green banking, even at a small scale. While Connecticut Green Bank is exemplary, the national average for green banks is about 3:1 private to public dollars. Specifically, in 2019, for every dollar invested in green banks, $3.60 was invested in the green economy. Though lower than Connecticut Green Banks’ rates, this is nothing to balk at when there are trillions of dollars in investment ahead. Organizations and legislators look to Connecticut Green Bank’s successful investment strategies as a proof of concept for future larger-scale national green banking. By furthering the efforts of local and state green banks, a national green bank could be successful.

EcoPerspectives Blog

A Call to Incorporate Language Access into Washington, D.C.’s Climate Adaptation Plan

By Emily Starobin, Staff Editor for the Vermont Journal of Environmental Law

May 3, 2024

 

When climate disaster strikes, language services are a matter of life and death and Washington, D.C.’s climate plan misses the mark.

Our nation’s capital is a multilingual city, with 15% of residents speaking a language other than English at home. The city’s rich linguistic diversity makes the expansion of language access that much more important. Under the D.C. Language Access Act, all programs, departments, and services must provide language access to all residents with limited English proficiency (LEP) or no-English proficiency (NEP). However, the climate adaptation plan, Climate Ready D.C., does not include a specific language access policy. To adequately serve all city residents and advance environmental justice more broadly, the District should incorporate a language access plan as part of its climate adaptation strategy.

 

Scope of the Problem

The climate adaptation plan fails to address language access despite significant LEP/NEP communities. In response to extreme snowstorms, increased flooding, and record-breaking heat waves, the city’s Department of Energy & the Environment (DOEE) adopted Climate Ready D.C. in 2016. Partnering with technical experts, agencies, and community-based organizations, the DOEE identified 77 action items across four main areas. These areas include transportation and utilities, buildings and development, neighborhoods and communities, and governance and implementation. Unfortunately, only one action item focused on language access: providing American Sign Language (ASL) interpreters at cooling centers (air-conditioned or cooled buildings to provide respite and safety during extreme heat).

Language access is an essential component of any disaster recovery and resiliency plan, especially for a diverse city like D.C. The foreign-born population accounts for more than one-third of city’s population growth. Top languages spoken other than English are Spanish, French, Amharic/Ethiopian, German, and Chinese. Of all the residents, 15% speak a language other than English at home, and of these residents, 32% are LEP/NEP. Over half of LEP/NEP individuals speak Spanish. About two-thirds of LEP/NEP households are linguistically isolated, meaning that no one 14 and older in the household is proficient in English.

Climate change resiliency through language access is important to the broader concept of environmental justice. EPA defines environmental justice as “the fair treatment & meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” In D.C., according to the U.S. Climate Vulnerability Index, a significant portion of NEP/LEP communities (who “speak[] English less than well”) also suffer from high overall climate change vulnerability due to factors such as low income, poor health outcomes, and inadequate critical infrastructure.

 

Proposed Solution

DOEE should integrate a language access plan into its climate adaptation strategy, Climate Ready D.C. In doing so, the DOEE must collaborate with D.C. Office of Human Rights and D.C. Language Access Coalition. A comprehensive disaster-specific language access plan will help guarantee that all NEP/LEP residents have meaningful access to disaster preparedness and adaptation services, in line with the Language Access Act.

Existing language access laws and programs allow this proposal to be feasible. First, the D.C. Language Access Act requires expanded access and participation in all public services, activities, and programs for LEP/NEP residents. This Act applies to all city government agencies, departments, programs, contractors, and grantees, including the DOEE.

Second, the Act established the Language Access Program, based out of D.C.’s Office of Human Rights. The Program works with city agencies to ensure that all LEP/NEP residents have access to free translation, interpretation, and signage when seeking government services. The Act also designated the D.C. Language Access Coalition as the official third-party consultant to implement the Act, collect data, and conduct outreach. The Coalition is an alliance of 41 community-based and civil rights organizations focused on language access rights and other social justice issues affecting local immigrant communities. The Program and Coalition will prove indispensable in implementing the proposed language access plan specific to climate adaptation.

 

Drawbacks

Creating a climate disaster language access plan will require time, financial resources, and stakeholder support. First, the community-based organizations that make up the D.C. Language Access Coalition are already strapped for resources. The Coalition will need additional funding to implement the plan. Second, the plan will take time and resources away from city agencies, which are currently at capacity. Both the DOEE and the D.C. Office of Human Rights will need to devote resources to complete this project. Third, the Coalition and the city government will need stakeholder support to meaningfully engage the community in identifying and addressing the climate adaptation and preparedness needs of LEP/NEP residents.

 

Policy in Practice

The Urban Institute offers helpful recommendations in its study, Ten Years of Language Access in Washington, D.C. For example, the Institute suggests that D.C. expand data collection and analysis, invest in multilingual personnel, improve quality and accessibility of language services and materials, and develop targeted community engagement.

These recommendations apply to two of the four action areas in Climate Ready D.C. First, within the transportation and utilities area, the plan aims to increase the resiliency of communication systems before, during, and after a disaster. The city can mirror Frontline Resource Institute’s Communication Plan for Building Community Resilience to build a strong communication network by using the appropriate language and the specific communication platforms most used by impacted residents. FEMA’s Language Access Policy would also help employ various types of language assistance, including oral language and written translation.

Second, for the neighborhoods and communities action area, Climate Ready D.C. should incorporate emergency preparedness and planning for climate-related events with a focus on the most vulnerable communities. To do so, the proposed plan must prioritize language access services for individuals most at risk of climate change disasters. Using mapping tools (such as the U.S. Climate Vulnerability Index) and improving data collection are necessary steps to identify priority communities and their specific language needs.

Lastly, the plan must incorporate ASL services in addition to spoken language services. The city is home to a thriving deaf community, with over 20,000 deaf and hard-of-hearing residents. While the D.C. Language Access Act does not require the right to ASL services, Climate Ready D.C. has a responsibility to reflect the needs of deaf and hard-of-hearing residents. Vermont Agency of Natural Resource’s draft Language Access Plan serves as a model for incorporating non-spoken languages into climate plans.

 

Conclusion

Our nation’s capital is a multilingual city that needs a multilingual solution to climate change adaptation. For this reason, the DOEE must incorporate a specific language access plan for spoken and non-spoken languages within the Climate Ready D.C. Looking to other language access plans and building on the city’s existing language access infrastructure, the D.C. Language Access Coalition will play a vital role in implementing the proposed plan. D.C. has a duty to ensure all individuals of varying English proficiency and communication needs have meaningful access to climate adaptation and preparedness resources. Their lives—and ours—depend on it.

EcoPerspectives Blog

Ecosystem Services in Agency Cost-Benefit Analysis

By Elizabeth Hein, Staff Editor for the Vermont Journal of Environmental Law

May 3, 2024

 

On February 28, 2024, the White House issued guidance on how to evaluate ecosystem services in agency cost-benefit analysis. The guidance seeks to help agencies better assess the benefits of ecosystem services throughout agency decision-making.

The guidance defines ecosystem services as “contributions to human welfare from the environment or ecosystems.” This definition is broad; the guidance makes clear that agencies should consider benefits stemming from ecosystem services in relation to how they affect other environmental costs and benefits.

 

I. What are Ecosystem Services?

The term “ecosystem services” refers to several different services, or benefits, that people receive from nature. There are four types of ecosystem services: provisioning services, regulating services, cultural services, and supporting services. Ecosystems provide people with food, drinking water, timber, plants, and several other resources. Ecosystems also provide regulating services, such as plants turning carbon dioxide into breathable oxygen through photosynthesis. The National Wildlife Federation describes ecosystem services as crucial because “[e]cosystems provide many of the basic services that make life possible for people.”

 

II. Ecosystem Services are Hard to Monetize

Ecosystem services are hard to quantify. How do you measure the dollar value of bees pollinating flowers? Or the dollar value of tree roots holding soil in place?

A major difficulty is that each type of ecosystem service requires different data or information to calculate a dollar value. Certain services are easier to calculate. For instance, the dollar value of timber that a forest provides is easily calculable. The value can also vary by location. Some locations, such as a city with high levels of air pollution, might value plants that clean the air more than a rural town.

 

III. Agency Cost-Benefit Analysis

Federal agencies must weigh the costs and benefits of regulations that the agency expects will have large economic effects. Agencies use this cost-benefit analysis to justify their decision to adopt a regulation. This cost-benefit analysis is not the only determinative factor; agencies consider other factors, such as the policy priorities of the President. The cost-benefit analysis weighs the dollar value of the costs of a regulation against the dollar value of the benefits of the regulation. This results in a clear numerical value that answers the question: do the benefits truly outweigh the costs?

Economic cost-benefit analysis suffers from a major flaw. Without accounting for ecosystem services, these cost-benefit analysis have a strong methodological bias against environmental policies. Failure to include the value of ecosystem services results in agencies treating these services as if they are worth nothing.

That is not to say that agencies completely fail to consider ecosystem services or other environmental benefits—the National Environmental Policy Act requires that agencies consider environmental impacts of major agency actions. There have also been previous collaborative agency efforts to evaluate ecosystem services. For instance, the National Ecosystem Services Partnership created a guidebook for agencies that engage in land management. This guidebook provides “credible approaches for incorporating ecosystem services into natural resource planning and management.”

 

IV. Pros and Cons of the White House Guidance

The numerous benefits of the White House guidance outweigh the costs, or challenges, that the guidance imposes. Overall, the guidance will ensure that agencies consider the effect of regulations on ecosystem services. The guidance states that when agencies consider alternative actions that may cost less or result in increased benefits, the agencies should “consider developing alternatives that generate additional services.” This guidance also applies to all federal agencies, not just those involved in environmental regulations.

Accounting for ecosystem services does not guarantee that agencies will create regulations that better protect these essential services. In addition, given the challenges of developing a dollar amount of the benefits provided by an ecosystem service, there is limited data that agencies can rely on. Finally, the guidance confines agency consideration of environmental benefits to ecosystem services. The complexity of our environment cannot easily be defined or quantified.

 

V. Conclusion

The inclusion of ecosystem services in agency cost-benefit analysis represents a massive shift in how agencies evaluate the environment. Although the White House’s guidance does not mandate that agencies adopt regulations that benefit ecosystem services, the guidance does provide a pathway to ensure that agencies consider the complexities of the environment. Agencies must now evaluate how regulatory decisions will affect ecosystem services.

EcoPerspectives Blog

Well, Well, Well, Well, How the Water Tables: How Recent Court Decisions Have Replenished Hope for Dwindling Aquifers in the West

By Elle Elliot, Staff Editor for the Vermont Journal of Environmental Law

May 3, 2024

 

I. Introduction

The western United States is facing a severe groundwater crisis that poses significant threats to the region’s water resources and ecosystems. Groundwater depletion is leading to declining water tables, the lowering of lakes and drying of perennial streams, and land subsidence. Groundwater depletion is primarily caused by excessive extraction for agricultural irrigation. As the demand for water increases to meet the needs of a growing population, groundwater resources are being tapped at unsustainable rates across the West. However, the Idaho, Nevada, and Montana judiciaries have recently pushed back against unchecked groundwater withdrawals in landmark state supreme court decisions.

 

II. Groundwater Depletion Threatens Existing Resources

A. How Is Groundwater Generally Regulated?

Groundwater is regulated separately from surface water in the United States. Despite the undeniable scientific connection between groundwater and surface water, legally groundwater regulations exist apart from surface water regulations. While there are some federal laws that extend protection to groundwater—like the Federal Safe Drinking Water Act, Toxic Substances Control Act, and Resource Conservation and Recovery Act, to name a few—generally, individual states maintain control over how groundwater is allocated within their respective borders.

Many western states—like Idaho, Montana, and Nevada—rely on a water allocation system that combines the doctrine of prior appropriation (“first in time, first in right”) with the beneficial use doctrine (“use it or lose it”). This essentially means the first person to appropriate water from a resource has an undisputed right to the resource, so long as the water use has purpose. Subsequent appropriators may also draw from the water source, but their use cannot interfere with the use of those people holding senior water rights. Idaho, Nevada, and Montana follow the doctrine of prior appropriation.

B. Groundwater Depletion is a Threat to the West’s Way of Life

The western United States is home to some of the most productive agricultural regions in the nation. Groundwater has been a critical resource for irrigating crops and sustaining the region’s agricultural economy. However, decades of over-extraction of groundwater have led to a steady decline in water tables. In some areas, groundwater levels have dropped by hundreds of feet, leaving many wells dry. Moreover, groundwater depletion has a devastating impact on agriculture. As groundwater levels drop at an alarming rate, farmers may find it increasingly difficult to irrigate their crops, leading to reduced yields and increased food insecurity. This, in turn, can have a ripple effect on the economy and the livelihoods of millions of people.

Though the groundwater crisis is a serious threat to the region’s water security, there are still many people who oppose any sort of government regulation restricting pumping for agriculture and industry purposes. From Kansas to Nevada, California to Montana, farmers, miners, and real estate developers continue lobbying for relaxed pumping standards as applied to their respective industries and block key legislation imposing limits on groundwater usage. Despite data urging immediate protection of this invaluable resource that may be irreplaceable–at least, irreplaceable within our lifetime–industry opposition remains steadfast. Control, at least in several western states, remains firmly in the hands of agribusiness and mining operations.

 

III. Courts Defend States’ Rights to Manage Aquifers

The future is not yet fixed: regaining protection for aquifers may rest on decisions of state supreme courts. A recent string of court decisions out of Idaho, Nevada, and Montana indicate that state judiciaries are beginning to push back against legislative indifference to the groundwater crisis. Since January 2024, courts from these respective states have irrevocably altered the landscape of aquifer conservation by ruling in favor of granting states with more power to regulate this resource.

A. Idaho

Early in January, the Idaho Supreme Court confirmed the power of state officials to limit, or even prohibit, groundwater drawing from wells in order to protect the state’s dwindling water supply. During a drought in Wood River Valley, a district court adjudicated water rights. The Director of the Idaho Department of Water Resources concluded that, due to the impact on senior water rights, the aquifer lacked sufficient water to satisfy junior water rights. In its decision, the Idaho Supreme Court found that the Director had the authority to initiate administrative proceedings and did not violate the prior appropriation doctrine.

The New York Times’ investigative team conducted a comprehensive research study, revealing that Idaho has been grappling with one of the most acute rates of groundwater depletion in the nation. This alarming trend largely stems from agricultural practices, which have become the cornerstone of the state’s economy. However, a significant shift in the water allocation paradigm may be on the horizon thanks to the landmark ruling issued by the Idaho Supreme Court in January of this year.

B. Nevada

On January 25th, 2024, in a dispute between real estate developers and state water agencies, the Nevada Supreme Court found in favor of the state agencies, ruling that Nevada’s government can manage groundwater for the public interest and the preservation of senior water rights. The court also held that the state could restrict new groundwater pumping if the pumping will impact other users and wildlife. Specifically, this decision reaffirms Nevada’s authority to change how groundwater is regulated, which includes the power to alter how basin boundary lines are drawn and managed.

Environmentalists herald the Nevada Supreme Court’s decision as a “win” for water law. For the first time in the state of Nevada, and in the Southwest, state regulators can consider surface water and groundwater as a unified resource. The Supreme Court’s ruling establishes the precedent that the state can take actions in regions confronting droughts and ecological challenges pertaining to water if the scientific evidence supports the decision. This development is a significant triumph, and environmental advocates and water suppliers contend that it will have a positive impact on the future of Nevada’s groundwater allocation.

C. Montana

Finally, in February 2024, a judge in Montana said “no” to further housing development in one of the state’s most water-stressed valleys. Like the case in Nevada, the lawsuit arose from tension between long-standing valley residents and real estate developers looking to build more housing. The ruling found that state officials failed to impose adequate limits on constructing new homes that rely on groundwater. The judgment rests at the heart of current public policy because it aims to strike a thoughtful balance between the requirement for adequate housing and the need to ensure sustainable water usage. Sustainable groundwater usage is essential for the health of ecosystems and human well-being.

 

IV. Conclusion

The consequences of groundwater depletion are numerous and severe. Declining water tables can result in the drying up of wells, reduction of water in streams and lakes. Over-pumping groundwater leads to bodies of water falling below the necessary depth that streamside or wetland vegetation need to survive. The overall effect is “the loss of riparian vegetation and wildlife habitat.” Excessive pumping of groundwater can also cause the land to subside as the underground water is withdrawn from its reserve, damaging infrastructure, disrupting transportation systems, and increasing the risk of flooding in the areas where the ground receded. In some cases, groundwater depletion can even lead to the formation of sinkholes.

With the recognition of the urgent need to address declining groundwater resources, state and federal governing entities may initiate the implementation of more stringent protective measures. Recent developments in Western states have provided an indication of the potential shift in policy. Notable court decisions in Nevada, Idaho, and Montana have significantly bolstered the authority of states to regulate excessive groundwater extraction, taking steps toward sustainable groundwater management in the West.