Category: Ecoperspectives

EcoPerspectives Blog

Arizona’s Extreme Heat and Its Effect on the Homeless Population

By Vaughn Ford-Plotkin, Staff Editor for the Vermont Journal of Environmental Law

March 23, 2022

 

For many people living in the United States, experiencing temperatures that exceed 110 degrees Fahrenheit is unfathomable, but for the residents of Maricopa County, Arizona, this is an almost daily occurrence during the Summer months. These extreme temperatures are becoming more common throughout the rest of the year as well. In 2020, Phoenix, Arizona had 145 days where the recorded temperature exceeded 100 degrees, with 102 of those days exceeding 105 degrees . The effects of extreme heat are impossible for anyone to fully escape, as constant water consumption, avoiding direct sunlight, and the use of Air Conditioning are recommended to “Survive the Summer” in Phoenix . While mitigation strategies do exist, this did not prevent 323 heat related deaths from occurring in Maricopa County in 2020 . In September 2021, there were already 113 heat related deaths, up from 55 at the same time in 2020 . Of the 323 deaths in 2021, 146 of these deceased individuals were identified as being homeless .

 

Homeless people suffer the effects of extreme heat in Maricopa County with little opportunity for mitigation because they lack access to adequate hydration and air-conditioned indoor repose. Encampments have developed across Maricopa County. These encampments are where unsheltered homeless people use makeshift tents and umbrellas in attempt to avoid direct sunlight and escape the heat. The largest of these encampments was next to my employer’s office over the Summer of 2021. Through participation in handing out cold water bottles and other materials, I learned first-hand that volunteer efforts such as these were largely depended on by the unsheltered community to stay alive. As rent prices increase and the amount of accessible living situations dwindle, more of these encampments have appeared across Maricopa County . These numbers will only grow as the number of homeless individuals in Arizona continue to increase . 

 

These living conditions are already abhorrent, but they are made even more demeaning by the constant reported misconduct and abuse homeless individuals suffer at the hands of Phoenix Police . Reported instances include police officers disposing of homeless people’s possessions when doing “clean ups” at encampments, and arresting advocates who attempt to help protect and give a voice to the homeless people in Maricopa County . These actions by Phoenix Police have even led to a DOJ investigation into the constitutionality of the conduct taken towards homeless individuals . Attempting to survive the extreme heat waves without shelter, while being harassed and displaced by police officers, adds insult to injury for homeless individuals in Maricopa County. This mistreatment of people suffering one of the most dehumanizing and unsettling experiences one can imagine holds up a mirror to us as a society. This leads to important questions we need to ask ourselves: Are we encouraging the abuse and neglect of the most disenfranchised people in our society? Are we ignoring it out of disdain or fear? And what, besides four walls and a roof, separates us from these individuals? 

 

While these are important question to ask, they are philosophical and abstract in nature. This article is meant to broach them, but I also would like to address the tangible and direct actions that can be taken to help homeless people while these philosophical dilemmas are pondered. 

 

 In Phoenix, there’s a group called UnshelteredPhx who operate as a street watch team that documents homeless people and their interactions with the police . They also operate as a volunteer service and fund raiser. They collect supplies like water and umbrellas in the summer to give to homeless individuals, and blankets and jackets for the winter months . This is an example of mitigation at a grassroots level to help prevent homeless people from experiencing injury and death from the effects of extreme heat. These direct actions are helpful during the present extreme weather being faced, but long terms actions and plans are just as important. Lobbying city councils to construct more shelters with adequate space and the development of more affordable housing options are good long-term actions to get people off the streets and out of the heat. Extreme heat in Arizona will continue to be life threatening, as it is a desert in the middle of its 27th year of an extreme drought . Despite these facts, there is no excuse for the continued deaths of homeless people. The resources exist to prevent these tragedies from continuing to occur. Homeless people are still people, entitled to the same rights as sheltered individuals. The treatment of the most vulnerable and disenfranchised people speaks directly about us as a society; what do you want it to say?

EcoPerspectives Blog

The Successor to Lithium-Ion: More Abundant, Sustainable, and Functional Energy Storage for Vehicle Electrification. Cans Can.

By Matthew Bakerpoole, Staff Editor for the Vermont Journal of Environmental Law

March 23, 2022

 

The electrification of vehicles represents a substantial economic and environmental opportunity. The electrification transition should power electric vehicles (EV) with recycled cans to have the most impact. Environmental and electrification advocates should push for both better and best solutions to the problem of transportation emissions. To that end, advocates should resist the sunk cost fallacy and support the widescale development of aluminum ion batteries (Al-ion) as they may now represent the best energy storage solution for EVs .

 

The transportation sector is the largest source of greenhouse emissions in the U.S., representing 29 percent of total emissions . Road vehicles represent 82% (58% from light-duty and 24% from medium and heavy-duty) of transportation emissions or 23% of all U.S. emissions . Accordingly, the electrification of vehicles presents an opportunity to dramatically cut emissions to achieve emissions reduction goals by 2050. The transportation sector must mass-produce high energy density, low cost per mile, and low emissions per unit of energy storage solutions to maximize this opportunity. With that requirement in mind, the industry and regulators should consider all viable storage technologies and not stubbornly fall into the sunk cost trap . 

 

One technology that has recently been presented as a better solution than the industry’s current pick, lithium-ion batteries (Li-ion), is aluminum-ion batteries . Al-ions provide a higher energy density, dramatically faster charging, more charge cycles, lower input cost volatility, and near-infinite recyclability, all while resulting in lower net emissions and cost . 

 

While Li-ions have received significant capital investment and made a transition to renewable energy generation and EVs possible, the technology has several drawbacks. Lithium is toxic in high concentrations and reacts violently when exposed to oxygen, occasionally resulting in vehicle fires after collisions . The scarce elemental components of Li-ions, nickel, and cobalt are subject to price volatility due to competing global demand . In the last ten years, lithium and cobalt prices have been subject to dramatic fluctuations, increasing in price by as much as 326% and 233%, respectively . Both supplying and disposing of the elements required by Li-ions presents significant environmental risks. They are sourced in countries with lax enforcement of environmental and labor protection measures and are difficult to recycle . The estimated lifecycle carbon dioxide (CO2) to energy storage (kilowatt-hour, kWh) ratio of Li-ions is 73 kg CO2 / kWh. Li-ions have a life cycle of around 1000 recharges from a 20% discharge . They also take significantly longer to ‘refuel’ than internal combustion engine vehicles (ICEV). Currently, the fastest EV charge time is 15 minutes . Each of these drawbacks is likely to delay EV adoption as both the free market and political forces resist the transition based on the argument that EVs are an inferior product to ICEVs. 

 

Electrification needs to defeat as many opposition arguments as possible to ensure electrification meets 2050 emissions reductions. Nascent Al-ion technology currently represents the most viable solution. 

 

As the elemental components of Al-ions, aluminum (sourced from bauxite) and carbon (graphene, sourced from graphite), are both non-toxic and among the most common on the planet, Al-ions pose a less environmentally and economically risky solution than Li-ions . Aluminum does not suffer from the same chemical reactivity as lithium and does not combust when exposed to oxygen . Unlike lithium and cobalt-primarily mined in Chile and the Democratic Republic of Congo-aluminum and carbon are available domestically or from diverse international sources . The abundance of Al-ion components contributes to a lower cost per stored kWh . Not only are the components more common and more affordable than Li-ion’s, but Al-ions are nearly infinitely recyclable resulting in significant relative emissions reductions . Production of Al-ions represents an approximate 47% reduction in CO2 emissions per kWh when compared to Li-ions, lifecycle analysis of Al-ion storage has been estimated to produce “0.7 kg of CO2eq, while Li-ion batteries produce an estimated 1.3 kg of CO2eq .” Further opportunities to reduce the emissions associated with recycling Al-ions are found in the potential of powering aluminum recycling facilities with renewable sources like solar photovoltaics. Even if Al-ions displace Li-ions in EVs, market investment for Li-ions will not be wasted. Parallel markets in the stationary energy storage or secondary transportation markets still represent green pastures for existing Li-ion production .

 

In addition to the economic and environmental impacts, Al-ions offer better performance in key areas when compared to Li-ions. New Al-ions claim to achieve higher power density and don’t suffer from the same peak current and temperature limitations of Li-ions . Al-ions also degrade more slowly than Li-ions through lifetime charging cycles . Most importantly for undecided consumers, Al-ions charge 60 times faster than Li-ions, addressing the fear of stranding due to long charge times . Once comparable energy density is proven, EVs equipped with Al-ions will represent a significant product improvement for customers on the fence between EVs and ICEVs.

 

If there is one constant, it’s change. Technological change comes in waves and is occasionally delayed by past economic investments . Environmental and electrification advocates have a challenging task ahead of them in reaching 2050 emissions reductions goals. Advocates should not settle for solutions that are good enough for today. They need to keep their eyes on the technological horizon and push for the development and implementation of better solutions. Li-ions facilitated the initial development and deployment of large-scale renewable energy sources and initial electrification efforts. But technology keeps changing. Al-ions may now represent an even better economic, environmental, and consumer-based solution than Li-ion EVs and ICEVs. What could be more environmentally friendly than recycling your aluminum cans into an EV road trip?

EcoPerspectives Blog

Man Camps, Oil Pipelines, and MMIW: How United States v. Cooley is a False Victory for Indigenous Tribes

By Kimberly N. Mitchell, Staff Editor for the Vermont Journal of Environmental Law

March 23, 2022

 

Tribal officers’ hands continue to be bound after United States v. Cooley (hereafter Cooley), carrying on the violence against missing and murdered indigenous women (MMIW) . Cooley allows tribal officers to temporarily detain non-Indian members in Indian Country . However, that is the crux of the issue – the detainment is only temporary. Tribal officers still have to turn offenders over to State or Federal law enforcement .

 

The precedent case governing tribal criminal jurisdiction is Oliphant v. Suquamish Indian Tribe (hereafter Oliphant ). Oliphant held that tribes lack criminal jurisdiction over non-Indian members in Indian Country, dismissing inherent tribal sovereignty . Why is this a problem? Tribal governments lack the criminal jurisdiction to prosecute non-Indian members who traffic women and girls. 

 

“Man camps” are located near the oil extraction projects that employ them. “Man camps” can be defined as “temporary housing provided to employees of large extraction projects .” These camps have increased violence against Native women, as the men from these camps prey on the local Indigenous communities . For instance, the Tribal Police on the Fort Berthold Reservation in North Dakota “reported more murders, fatal accidents, sexual assaults, domestic disputes, drug busts, gun threats, and human trafficking cases than in any year before .” Surrounding counties have similar reports, but there is a special difference with Fort Berthold compared to the rest of North Dakota. The reservation’s population “has more than doubled” due to the “influx of non-Indian oil workers .”  

 

Human trafficking exists worldwide and all over the United States,; however, the prevalence within and around Indian country deserves wider recognition. Trafficking in general, according to the Trafficking Victims Protection Act of 2000, is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person or services, through the use of force, fraud or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage or slavery .” Sex trafficking differs from human trafficking as it is “the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purposes of a commercial sex act, in which the commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such [] act [is] not [] 18 years of age .” 

 

If trafficking is left unchecked, human trafficking will continue to flourish, which is evident through the Missing and Murdered Indigenous Women and Girls phenomenon . The Missing and Murdered Indigenous Women and Girls phenomenon (MMIW) speaks to bring and spread awareness of a “generations-long silent epidemic that has stolen the lives of Indigenous Women, Girls, and Two-Spirits across [North America].” There are a few reasons why the MMIW issue persists; however, extractive, male-dominated industries near Native communities are a large contributing factor.

 

The main issue is that tribal governments have very limited control over non-Indians because of complex jurisdictional issues among federal, state, and Tribal governments . Tribal police departments have to grapple with jurisdictional issues, along with underfunding and a lack of resources to combat increased crime rates stemming specifically from the presence of man camps. Therefore, the perpetrators skate by, allowing atrocities against Indigenous women and children to continue, with little to no recourse .  

 

In 1978, the Supreme Court in Oliphant held that tribes do not have the right to arrest and prosecute non-Indians who commit crimes within Indian country . “If the perpetrator is non-Indian and the victim an enrolled member, only a federally certified agent has that right. If the opposite is true, a tribal officer can make the arrest, but the case still goes to federal court .” This holding results in a stalemate, or “jurisdictional triangle,” as tribal governments are left wanting jurisdiction but have to hand over these cases to a U.S. attorney, which is further juggled between state and federal authorities . Cooley only adds to this jurisdictional triangle.

 

The primary issue given these circumstances, amongst other aspects, is that victims are left to stand and wait by while little to no accountability takes place. These murdered and missing women receive no justice and certainly do not gain any form of autonomy back from their trauma. Cooley, on its face, acts as a step forward towards tribal sovereignty. Yet, tribal officers are left in the same situations as before. The officers still must answer to outside law enforcement, leaving a trail of jurisdictional challenges and complexity. 

 

Attorney Mary Katherine Nagle, a citizen of the Cherokee Nation, frames the issue at hand quite well: “Recognizing that governments on the local ground should have the right to protect people in their communities without having to look to the federal government or an outside sovereign is a core conservative value .” 

 

One would think giving tribal governments criminal jurisdiction over non-Indian members would be the most logical line of action. The Supreme Court seems to disagree.

EcoPerspectives Blog

Why the Waste? A Step Towards Environmentally Conscious Pet Waste Disposal

By Tommi Mandel, Staff Editor for the Vermont Journal of Environmental Law

March 23, 2022

 

Many state laws require dog owners to pick up their dog’s waste . Whether these laws are based on public health, public convenience, or environmental concerns—it may be time to challenge their effectiveness. Picking up after your pet is the first step, but what happens to the waste after it is picked up? Does a dog owner’s environmental responsibility end after picking up after their dog and throwing the waste in a garbage can? It should not.

 

Dangers of Pet Waste in Landfills

 

Leave No Trace’s director has said, “The proper place for dog poop is in a landfill .” However, a person picking up their pet’s waste, putting it in a plastic bag, and sending that to the landfill is just as harmful to the environment as not picking up the waste at all . One pet owner referred to using plastic bags to pick up dog waste and sending it to landfills as “a very short-term fix with terrible long-term implications,” and described the process as “preserving organic matter in an ecologically expensive plastic bag and sending it to an environment – a landfill – where it cannot decompose .” Waste in landfills can contaminate water and produce methane gas .

 

Is Flushing Pet Waste a Good Option?

 

As Andrew Krosofsky questioned: “Does all that waste have to go to waste ?” Alternatives to sending pet waste to landfills do exist. Various sources suggest flushing dog waste. Krosofsky suggested since flushing waste works for humans, there is no reason that the same method should not work for dogs . Online sources associate the EPA with endorsing flushing pet waste . However, while published on the EPA website, the related pamphlet advocating for the flushing method was authored by Salt Lake County . 

 

However, safety concerns exist regarding the sewage treatment process and the flushing frequency . Some sewage treatment centers may not be able to handle pathogens in pet waste, and septic systems may not adequately handle hair and ash in pet waste . One pet owner reflected that their local utility firm explicitly said only human waste and paper should be flushed, which ruled out flushing their dog’s waste . However, the owner also questioned what they would do with the soiled bag. Had they been able to carry their pet’s waste home to dispose of it by flushing it ? Being realistic, bringing pet waste into one’s home is probably not the most appealing idea, and the method still seems to acquire some landfill waste.

 

Can I—Or Should I—Compost Pet Waste?

 

 One alternative some pet owners turn to is composting. However, guidance is mixed regarding whether pet waste should be composted. Some guidance states: “Dog poop CANNOT go in compost or yard waste bins. I repeat, DO NOT compost dog poop!” While other sources refer positively to composting, such as a molecular biologist composting their dog’s waste for 25 years in their domestic garden compost heap—stating they are “one of the best environments for breaking down waste .” Other sources, however, advise not composting dog waste near the edible garden . A four-year study on pet waste composting found that home compost piles did not get hot enough to kill dangerous pathogens, including E. coli and salmonella, and that roundworms could survive that long in the soil .

 

A Potential Solution: Pet Waste Digester

 

Digesters handle waste that a backyard composter should not . Pet waste digesters are relatively low-cost and environmentally friendly alternatives to mainstream pet waste disposal methods. The Doggie Dooley is a popular pet waste digester, which works like a home septic system . The system is installed by digging a hole into the ground and placing the system in the hole . Then, a dog owner would drop the dog waste into the system, add water, and add a waste terminator tablet which continuously breaks down the dog waste . The waste terminator tablets are non-toxic and environmentally safe, and are made by blending “Mother Nature’s Housekeepers” Bacillus subtilis bacteria and protein enzymes .

 

In 2020, the City of London, Canada, actually did a three-month pet waste digester pilot program where around 20 people were asked to use pet waste digesters provided by the City . Now, the City of London offers digesters to residents for $ 20 . Perhaps, if the United States localities provided pet waste digesters, or located them in public areas such as parks (like many do with pet waste bags and specific garbage cans for pet waste), less waste would go to waste.

EcoPerspectives Blog

Frack is Whack: Why Hydraulic Fracturing is Bad for People and the Planet

By Kristina O’Keefe, Staff Editor for the Vermont Journal of Environmental Law

March 23, 2022

 

Over the past 20 years, hydraulic fracturing has become the most popular method of extracting natural gas and oil . This process, also known as “fracking,” was discovered back in the 18th century and consists of sending a mixture of water, sand, and chemicals at high pressures which creates cracks within the sediment to release trapped gas and oil . While fracking has benefits such as increasing the availability of oil and natural gas which in turn leads to a decrease in energy prices , the negative impacts that this activity has are far greater than any benefits it supposedly brings . The use of fracking to extract fossil fuels is a very controversial process due to the overwhelming impacts it has in human and environmental health . Some of these impacts include contaminated drinking water, increased air pollution, and environmental degradation . 

 

This year, environmental effects from fracking have been felt in Texas particularly . West Texas is home to the Permian Basin which supplies forty percent of the United States’ oil and fifteen percent of its natural gas . On February 4th, three earthquakes shook the ground of Midland, Texas, a town located within the Permian Basin region . While Texas is a plate boundary that sits on fault lines, this type of seismic activity is unusual for this area because it has been seismically inactive for millions of years . So why after 300 million years of sedimentation build up are these fault lines now so active that “[e]arthquakes in West Texas increased from a grand total of 19 in 2009 to more than 1,600 in 2017 ? ” The answer can be found in the correlation between the time the seismic activity in the Permian Basin began to increase and the rise in fracking activities. The United States Geological Survey reported that this increase in earthquakes in the central United States began around 2009 . Interestingly, the Natural Resources Defense Council also stated that, “of the approximately one million U.S. wells that were fractured between 1940 and 2014, about one-third of those were fractured after 2000 .” The issue however, is not the fracturing of the sediment itself, but the injection of wastewater into the wells that cause the faults to shift . These fracking processes cause damage to the environment much deeper than surface level and the continuation of these activities will only exacerbate the already apparent environmental harms.

 

The negative impacts of fracking do not end with environmental damage, this method of fossil fuel extraction negatively impacts human health as well . The air pollution released during fracking has been linked to headaches, asthma, cancer, birth defects, and more . Also, the wastewater from the fracking process contaminates drinking water supplies in surrounding areas by leaking into aquifers and accidental mishaps such as equipment failure or malfunction . A growing area of concern is fracking contamination’s impact on pregnant woman . Oregon State University conducted a study that found that, “that pregnant women living in close proximity to oil or gas drilling sites in Texas were more likely to have hypertension compared to those who lived farther away .” Eclampsia in pregnant women, a more severe form of hypertension that can lead to seizures, was also found in this study to be elevated in areas near drilling sites . Another study found that pregnant women living near fracking sites have increased risks of preterm births and low birthweights .

 

The impacts that this industry has on the health humans and the environment is quite clear. Continuing these practices despite knowing the effects that many are facing as a result is immoral and irresponsible. Clean sources of energy such as solar and wind are viable alternatives that do not harm our planet and can create jobs that do not sacrifice the health of workers and communities . Fracking should be a thing of the past, and the United States needs to move forward for the sake of our environment and our people.

EcoPerspectives Blog

Climate Change Threatens New England’s Moose Population: States Need to do More

By James Flynn, Staff Editor for the Vermont Journal of Environmental Law

March 22, 2022

 

Climate change is threatening northern New England’s moose population. Moose are the largest members of the deer family and are native to northern New England forests . Moose can stand up to six feet tall at the shoulder and weigh between 500 and 1,000 pounds . Because of their large size and strength, moose have very few natural predators . Despite this fact, the moose population has rapidly declined in the past fifteen years . Climate change is the culprit .

 

 Climate change has led to warmer winters . Consequently, the winter tick population has rapidly increased . In the past, colder winters and snow cover lasting well into the spring kept the tick population in check . This is no longer the case. Unlike other types of ticks, winter ticks do not affect humans . But they are extremely dangerous to moose . Winter ticks are single-host ticks, meaning they remain on a single host throughout the winter season rather than dropping off after a single blood meal . This means a single moose often carries a substantial number of ticks. In fact, a study group found one moose calf to have over 90,000 ticks . Additionally, moose never evolved the grooming behavior found in deer and rabbits leaving them defenseless against tick infestations . The results have been tragic.

 

Winter tick infestations are extremely devastating to moose. Winter ticks feed on a moose’s blood severely weakening the animal in the process . Thus, moose become more susceptible to stressors such as other pests and habitat changes . Although adult moose infested with winter ticks are usually underweight and in general ill health, many survive the infestation . This is not the case for moose calves. Moose calves born in the spring often have a large number of ticks on their body by the time winter arrives . The ticks take so much blood that a calf may need to eat enough to replace their entire blood volume within weeks . If food is scarce, this becomes an impossible task and the calf dies . A three year study found that winter ticks were responsible for seventy-four percent of moose mortality in the studied group, including ninety-one percent of calves . In one recent winter, around sixty-three percent of moose calves in Vermont died, the highest figure on record . Winter ticks were responsible for most of those deaths .

 

State wildlife officials in northern New England are divided on how to solve the moose problem. Some states first responded to the crisis by reducing the number of moose hunting permits distributed each season . But some states are now moving toward a seemingly contradictory approach, allowing more moose hunting . The argument is that reducing the moose population will also reduce the winter tick population . The moose population will be smaller but also much healthier and more sustainable going forward . Another argument in favor of hunting is the fact that a certain number of moose will die from winter tick infestation each spring, regardless of the level of hunting . It is better to harvest these animals in the fall and utilize the meat rather than let them die a lingering death in the spring . This approach may help stabilize the moose population. But states could do much more.

 

Northern New England states should work collaboratively rather than individually in combatting the decline in the moose population. Currently, each state separately manages the moose population in their state despite winter ticks being a region-wide problem . A collaborative approach could include the following actions: an education campaign and new legislation. Together, these two actions could make a big difference in protecting moose from climate change’s impacts. 

 

A collaborative education campaign would bring needed awareness to the moose population decline. The impact that climate change has on certain animal species, such as polar bears, is well documented and likely well known by the average individual . This is not the case with moose. New England states should launch a jointly run education campaign to inform the public about the impact’s climate change has on moose. A successful education campaign could also make the public more likely to donate or volunteer with wildlife preservation organizations and other NGO’s. 

 

New legislation is needed to protect the moose population. Initial legislation could include funding for additional scientific studies on the impact winter ticks have on the moose population. States could use this data to create a regionwide plan. This plan could set goals for states to follow. Finally, the plan could include requirements that should the moose population drop below a set level, they would be declared an endangered species and given additional legal protections. 

 

Together, a collaborative education campaign legislation could improve the lives of moose impacted by winter ticks and a changing climate.

EcoPerspectives Blog

The Infamous Failure of the Eco-Patent Commons and the Quiet Success of the WIPO Green Project: What We Can Learn About Disseminating Green Tech to Developing Countries

By Christopher J. Clugston, Professor, Keimyung University, Daegu, South Korea*

May 20, 2021

Summary: This article reviews the Eco-Patent Commons and the WIPO Green Project, two programs developed to disseminate green tech to developing countries. The failure of the former and the success of the latter are instructive on the best practices in this area.

As the global climate crisis worsens, the need to encourage sustainable growth in the developing world has never been greater. Much of the technology for this sustainable development already exists, but is covered by exclusive patent rights. Because of this, there have been many attempts to develop programs that can facilitate the dissemination and use of existing patented technology for developing and less developed countries. Two significant programs that have attempted to address this are the Eco-Patent Commons (“Commons”) and the WIPO Green Project (“Green Project”). An analysis of these programs is instructive on the best practices in this area.

The Commons was a 2008 initiative spearheaded by IBM, and ultimately joined by twelve additional firms . The Commons was created as a type of patent pool of green technology related patents. In an attempt to create a cohesive and synergistic pool, the patents were limited to a few specific areas of technology: energy conservation, pollution control, environmentally friendly materials, water or materials use, and reduction and recyclability. The firms jointly contributed two-hundred and forty-eight patents, covering ninety-four distinct inventions .  

Most pooling arrangements only cover those that are a party to the agreement. However, the Commons benefited all users of the patented technology. A pledge of a patent to the Commons included an irrevocable covenant to not assert the patent against any third parties for methods or products utilizing the patented technology, as long as they provided environmental benefits. Contributors, however, did retain the right to assert the patents defensively against any company bringing suit.

Although started amid much fanfare, the Commons never lived up to its initial hype . At the time, it was believed that many firms were likely to own green technology that was not being utilized. Thus, this technology had little value to them, but it might hold great potential value to underdeveloped regions. In return for donating this to the Commons, the firm would receive good PR, and also possibly benefit from the further development of its technology. 

The project never caught any traction and began to wind down in 2011, finally ceasing operation in the 2016. A detailed post-mortem on the program found a number of problems with the implementation . First, the Commons was set up by the suppliers (the patent owners) without any input from the potential users of the technology. Second, there was little or no tracking of patent utilization within the program. The problems with this were two-fold. There were no success stories that could be used to promote the program to potential users and there was no valuable PR for the contributors. Finally, and most significantly, the program was entirely run by the private sector on a voluntary basis. There were no fees for participation that could help fund recruitment, provide additional assistance for participants, or go to managing the overall program.

As the Commons was winding down, WIPO started its own Green Project in 2013. This project has been able to avoid most of these issues. Unlike the Commons, the Green Project is not a pooling arrangement. Instead, this project is an online marketplace developed to facilitate transactions between patent owners and green technology purchasers. WIPO is not a participant in the market, or in the transactions facilitated by the market.

The Green Project is distinct from the Commons in a few important ways. First, it includes both the patented green technologies and the reciprocal technology “needs” listings in its database. To further enhance the effectiveness of the program, it also provides matchmaking events and technology exhibitions to bring these groups together . Second, it comprehensively tracks the success of the program, and is able to make adjustments in response to its failures. According to WIPO’s website , the Green Project has developed far beyond the scope of the Commons – with 3,800+ listed technologies, 100+ partners, and 700+ connections made. Further, the Green project continues to grow and be a success; WIPO recently released its WIPO GREEN Strategic Plan 2019-2023 laying out its aggressive growth blueprint over the current four year period. Finally, it is more comprehensive in that it provides access to additional important resources, such as know-how and funding sources. It also helps with patent filings and WIPO Arbitration and Mediation services at a reduced rate.

From the comparison of these programs, we can draw some important conclusions. One, we need to advocate solutions that take input from all interested parties, and that are focused on maximizing the value of the intellectual property assets for both the contributors and the users. The failed Commons attempted to have a royalty-free pool, almost ensuring limited participation of members and modest offering of patent assets. Two, we cannot expect to rely on the private sector, alone, to solve a collective action problem such as this. Public and non-profit entities are necessary to help encourage participation, facilitate the process, track its use, and promote its success stories. These entities should be, as with WIPO, neutral and independent administrators that do not invest, acquire, or exploit the technology. However, considering the enormity of the climate issues we are facing, WIPO Green, and programs modeled after it, can be improved. These programs need to be expanded, and to do so, they will need sufficient funding. Currently, WIPO does not require any fees to register or participate . A fee structure that relied primarily or entirely on more developed countries would help this expansion as well as allowing for subsidies for the less developed countries that need this technology. This would go far toward a sustainable and scalable programs that are necessary to combating climate change.

*Author Bio: Christopher J. Clugston is a professor of law at Keimyung University in Daegu, South Korea. His teaching and research focus on law and technology topics, including those areas where the intellectual property laws overlap with environmental issues.

EcoPerspectives Blog

Don’t Make the Same Mistake Twice

By William Goldberg

August 4, 2020

 

Space is infinite, but earth’s orbits are a finite natural resource that must be managed properly. [1] The problem of orbital debris pollution is complex and serious. [2] Orbital debris, also known as space trash, is an umbrella term to describe non-active satellites and other pieces of spacecraft orbiting the earth. [3] Orbital debris travels at speeds up to 4.3 to 5 miles per second, roughly seven times faster than a bullet, and can cause catastrophic damage to space infrastructure. [4]

 

NASA scientists fear the amount of orbital debris in certain orbits may reach critical mass and set off “a sequence of ever more frequent collisions—a chain reaction that would expand until, within decades, certain portions of Earth orbit would be rendered virtually unusable.” [5] This cascading chain reaction is known as the Kessler syndrome. [6] Popularized in the 2013 film Gravity , the Kessler syndrome poses an apocalyptic and mathematically realistic scenario where critical orbits become permanently unusable. [7] Orbital debris threatens space infrastructure, including the International Space Station, weather satellites predicting dangerous weather systems, military telecommunications satellites controlling drones in warzones, GPS navigation for commercial airliners, satellites supporting financial transactions and internet protocol, and much more.

The existing space law regime is not sufficient to address the growing issues presented by the increasing creation of orbital debris. [8] The space treaties and conventions of the 1960s and 1970s failed to account for today’s rapid growth of technological capabilities in space, especially the proliferation of non-state commercial activity in space. [9] Under current international law, mitigation guidelines are voluntary and there is no enforcement mechanism preventing antisatellite missile tests, which create large amounts of orbital debris. [10] Left unchecked, the lack of an international legal and regulatory framework to provide sufficient guidelines and requirements to space-faring nations may provide an environment under which anti-satellite missile tests proliferate, and the creation of universal externalities in orbital debris continues to expand. Fortunately for the international community, this is not our first rodeo.

The successes and failures of international regulation of ocean waste provide a basis for developing a model for effective regulation of orbital debris. Like earth’s orbits, earth’s oceans are a global common where externalities from marine debris are typically not experienced by the producer of the pollution. Several robust international treaties address ocean pollution, and because orbital debris is created from spacecraft, the best lessons can be learned from the International Convention for the Prevention of Pollution from Ships of 1973 and 1978 (MARPOL).

The International Convention for the Prevention of Pollution from Ships of 1973 and 1978 (MARPOL) was developed to minimize pollution of the oceans and seas, including dumping, oil, and air pollution. [11] Under MARPOL, port states assert jurisdiction over ships in their territorial jurisdiction and over violations that occur at high seas. [12] Countries that are party to MARPOL examine ships at port to verify conformity with international standards and are authorized under MARPOL to detain noncompliant ships. [13]

MARPOL is particularly important for the regulation of marine pollution from ships spilling oil and other harmful substances. [14] As of 2018, 156 states are parties to the convention, being flag states of 99.42% of global shipping tonnage. [15] Because violations of MARPOL can result in detainment of noncompliant ships, and those ships’ potentially valuable cargo, MARPOL forces the compliance of any ship seeking to use the port of a state party to MARPOL without penalty. [16]

MARPOL outlines specific technical requirements that ships at sea must adhere to. [17] And by specific, I mean specific. For example, the maximum capacity of a segregated ballast tank, and any other space within a ship’s cargo tank, must be arranged as to comply with a specific mathematical formula. [18] This formula, among others, requires party states to ensure ships satisfy the required technical specifications under international standards prior to engaging in international transportation of goods. [19] MARPOL is a successful treaty because it requires member states’ ships to adhere to specific technical requirements that serve to establish the international norm. We need to do the same in space.

The Inter-Agency Space Debris Coordination Committee (IADC) is an international forum of governmental bodies for the coordination of activities related to orbital debris and has developed the IADC Space Debris Mitigation Guidelines. [20] The IADC Space Debris Mitigation Guidelines provides a basis for international regulation of orbital debris. Like MARPOL, the technical language of the IADC Space Debris Mitigation Guidelines should be explicitly incorporated into international law and given an enforcement mechanism to ensure compliance. [21]

We cannot wait decades to act like we did with earth’s oceans. [22] The time for an international convention on space trash is now!

[1] Thierry J. Senechal, Orbital Debris: Drafting, Negotiating, Implementing a Convention , Massachusetts Institute of Technology, June 2007, 1, 4 ( http://web.mit.edu/stgs/pdfs/Orbital%20Debris%20Convention%20Thierry%20Senechal%2011%20May%202007.pdf ).

[2] Id.

[3] NASA, Astromaterials Research & Exploration Science Orbital Debris Program Office , (https://orbitaldebris.jsc.nasa.gov) (last visited Nov. 7, 2019).

[4] Id.

 

[5] Matthew J. Kleiman et al., The Laws of Spaceflight a Guidebook for New Space Lawyers 22, 217 (2012); Donald J. Kessler & Burton G. Cour-Palais, Collision Frequency of Artificial Satellites: The Creation of a Debris Belt , 83 J. Geophysical Research 2637-46 (1978).

 

[6] Id.

[7] Id.

[8] Id. at 10.

[9] Thierry J. Senechal, Orbital Debris: Drafting, Negotiating, Implementing a Convention , Massachusetts Institute of Technology, June 2007, 1, 4 ( http://web.mit.edu/stgs/pdfs/Orbital Debris Convention Thierry Senechal 11 May 2007.pdf).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] See id.

[15] Raunek, MARPOL (The International Convention for Prevention of Marine Pollution For Ships): The Ultimate Guide , Maritime Law, Nov. 4, 2019, https://www.marineinsight.com/maritime-law/marpol-convention-shipping/ (last visited Feb. 9, 2020).

[16] International Convention for the Prevention of Pollution from Ships, 12 ILM 1319 (1973).

[17] Protocol of 1978 relating to the International Convention for the prevention of pollution from ships, 1973 (with annexes, final act and International Convention of 1973), U.N., Feb. 17, 1978, Vol. 1340, 1-22484 No. 22484, at 73. https://treaties.un.org/doc/Publication/UNTS/Volume 1340/volume-1340-A-22484-English.pdf.

[18] Id.

[19] Id.

[20] Inter-Agency Space Debris Coordination Committee, IADC Space Debris Mitigation Guidelines , Sep. 2007, (https://www.unoosa.org/documents/pdf/spacelaw/sd/IADC-2002-01-IADC-Space_Debris-Guidelines-Revision1.pdf).

[21] Inter-Agency Space Debris Coordination Committee, supra note 124.

[22] See e.g., Space X, https://www.spacex.com/news.

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EcoPerspectives Blog

New Hampshire’s Wetlands: How the N.H. Court in Greenland Eliminated a Key Component for Wetlands Protection

By Andrew Lechner

August 18, 2020

 

In the early 2000s, a developer proposed a large housing development project in the town of Greenland, New Hampshire. [1] The project involved subdividing 212 acres of land into 79 separate housing lots. Of the 212 acres, 85 were protected wetlands, and some wetlands would have to be filled to make way for roads within the development. Accordingly, the Department of Environmental Services (DES) was required to review the project and either grant or deny the developer a permit to fill the wetlands necessary for the project to move forward. The DES ultimately granted a permit to fill 42,350 square-feet of wetlands to make 12 roadways.

 

After the DES granted the permit, the Greenland Conservation Commission (GCC) filed a lawsuit against them. GCC argued that the DES did not correctly review the project’s potential impacts on the affected wetlands. GCC believed that the DES should have looked into more than just the direct impacts from dumping dirt into 42 thousand square-feet of wetlands. Rather, GCC argued that the DES should have considered a wider array of potential impacts on the wetlands, including the impacts from all of the construction that would take place. The key to GCC’s argument was that the “upland” construction components of the proposed project would negatively impact the surrounding wetlands (from things like habitat fragmentation and stormwater runoff), so the DES should have considered such impacts.

This issue made its way to the New Hampshire Supreme Court, in which the court dropped a bomb of a ruling against New Hampshire’s wetland protection. In Greenland Conservation Com’n. v. N.H. Wetlands Council , [2] the court took the stance that any and all development activities are irrelevant for the sake of wetland impact review, unless the activity is physically conducted within a wetland. The court effectively limited the DES’s review authority as such, so the DES cannot look at other potential impacts even if it wanted to. This includes indirect and cumulative impacts.

The court’s reasoning behind its decision consists of two key errors, deriving from its reading of the applicable New Hampshire statute: the Fill and Dredge in Wetlands Act (“Wetlands Act”). First of all, the court basically overlooked the purpose of the Wetlands Act. The purpose of the statute is to protect and preserve New Hampshire’s valuable wetland ecosystems from “despoliation and unregulated alteration.” [3] Accordingly, the Wetlands Act invokes a number of criteria in order to receive a permit. However, the court cast aside any reflection of purpose in the statute and instead read its title (“Fill and Dredge in Wetlands”) as a limiting factor for the statute. According to the court, the only activities that the DES is authorized to consider, for the purposes of the Wetlands Act, are fill and dredge activities within wetlands.

Second, the court essentially twists the words within the Wetlands Act to conform to its own reasoning. The court consistently described “construction activities” in its holding, and differentiated between construction activities performed within wetlands, versus construction activities performed anywhere else. The problem, however, is that the Wetlands Act never makes such a distinction. Rather, the Act consistently describes “projects” in a general sense, and only categorizes them as either major or minor projects. The Wetlands Act never expresses any intent to split up development projects into different portions for the sake of wetland review. The court had injected its own term into the statute to back up its limiting decision.

While the fallout from this New Hampshire Supreme Court decision is not currently clear, it undeniably had negative consequences on the State’s wetlands, and still does. Development proposals currently require no wetland impact analysis for any part of a project except that which is directly held within a wetland, and the DES cannot consider any other portion of such project. Without this analysis, wetlands are bound to be negatively impacted from cumulative and indirect impacts that result from risky projects close-by.

 

 

[1] https://caselaw.findlaw.com/nh-supreme-court/1185068.html

[2] Id.

[3] https://www.gencourt.state.nh.us/rsa/html/L/482-A/482-A-1.htm

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EcoPerspectives Blog

The Penumbras and Emanations of Climate Change: The Case for Environmental Constitutionalism in the U.S. Context

By Terry Ann Campbell*, Staff Editor for the Vermont Journal of Environmental Law

August 13, 2020

 

You may have heard that the Ninth Circuit recently dismissed Juliana v. United States for lack of Article III standing. According to the Ninth Circuit, the 21 Youth Plaintiffs failed to show that their claims can be redressed by the judiciary. The Court’s main argument indicates that Congress and the Executive branch would be better mediums for these young Plaintiffs to advocate for the constitutional relief they seek.

Contrary to the Ninth Circuit’s ruling, the Due Process Clause and the Equal Protection Clause were created to do just what the Youth Plaintiffs are vindicating; relief from the effects of climate change and preserving the planet for future generations. Youth Plaintiffs assert in their amended complaint that the government’s actions violate plaintiffs’ constitutional rights, depriving them of life, liberty and property. As such, Judge Josephine Staton issued a lengthy dissent to show her vehement disagreement with the majority ruling. Judge Staton opined that her colleagues should not have dismissed the case because the Youth Plaintiffs provided sufficient evidence to show that they suffered injury as a result of the government’s conduct or lack thereof. She continued that the judiciary was the correct avenue for the Youth Plaintiffs to air their claim because the judiciary has always been the medium that addresses constitutional issues. The dissent agrees with the Youth Plaintiffs that the Due Process Clause and the Equal Protection Clause protect fundamental rights—even those that are not expressly spelled out in our Constitution—because they are deeply rooted in our nation’s history and tradition.

Since the January 17, 2020 ruling, the Youth Plaintiffs, through their attorneys, filed an en banc petition with the Ninth Circuit on March 2, 2020. In the case of the Ninth Circuit, en banc means that the eleven-member bench will be asked to make a final decision on January’s highly controversial ruling.

Yet, for climate activists, Juliana is already a pretty big deal. It is the first U.S. case of its kind to have gained significant media attention. Further, Juliana has put judges in such a conundrum as to whether the Constitution allows for a private right of action to a clean and healthy environment.

At the basis of the Juliana case approach is the concept of environmental constitutionalism. This is the idea that courts must apply Constitutional Law in addressing cases that involve environmental violations especially when they threaten human life or health in some way or another. Environmental Constitutionalism began fifty years ago. There was a growing need to develop a system of environmental protections which take into consideration the future of human interaction with a more sustainable and lasting environment that is safe to live in. Further developments have led scholars to effectively advocate for the practice of incorporating constitutional texts that enforce against environmental violations—including those of a global nature—like climate change.

Environmental Constitutionalism, though novel in the U.S. context, has been applied by many other countries to bolster some of the most important court decisions that affect mankind and the planet. Concretely, Colombia remains the leading example of the difference constitutional protections can make for environmental claims. A  landmark case in Colombia saw the successful efforts of twenty-five young climate activists who carried individual constitutional claims through their country’s courts. The Colombian youth plaintiffs argued before the Constitutional Court that record rapid deforestation in the Amazon occurred between 2015 and 2016. Further, Colombia had already lost forty percent of its Amazonian forest and that the Colombian government—despite knowing of the repercussions—failed to prevent the vast deforestation.  The Colombian youth plaintiffs prevailed, and the Constitutional Court ruled that under the Colombian Constitution, the Amazon, was entitled to protection, conservation, maintenance, and restoration from harmful environmental practices. As you already know, the Amazon is home to many flora and fauna that are pivotal in maintaining the stability of our planet.

Another groundbreaking case is the Urgenda case which saw a class action decision approved by the Dutch Supreme Court. That Court ruled that the Dutch government has human rights obligations to its population to aggressively tackle the effects of climate change.

Furthermore, several countries like Cote d’Ivoire, Dominican Republic, Ecuador, Thailand, Tunisia, Venezuela, and Viet Nam have already expressly addressed climate change in their constitutions as a way of advancing climate justice and the right to a healthy environment. Notably, Ecuador has been lauded to be the first country to have rewritten its constitution to include the rights of nature , instead of treating nature solely as property rights.

Even though the Juliana case has been dismissed, this is not the time for climate activists to give up. The U.S. Constitution already has language that protects its citizens from the deprivation of life, liberty and property. Therefore, why not apply the Colombian and Dutch examples to the U.S. context to ensure compliance and enforce against disparate threats like climate change?

The time is right to expand the discussion for a U.S. framework on environmental constitutionalism. Regardless of the outcome of the Ninth Circuit’s decision, Juliana is a revolutionary case that continues to spark ongoing conversations and forge new precedent.

*Wah gwaan – Hello everyone! My name is Terry Ann Campbell and I am a 3L at Vermont Law School who will graduate in May 2021. Fun fact, I grew up on the island of Jamaica and I am fluent in French. I am currently pursuing a General Practice Certificate which has allowed me to gain a lot of practical experience in the field of Law. I take an intersectional approach to learning the law and as such, I am interested in the way the law interacts with commercial trade, human rights, and climate justice. Being a Staff Editor on VJEL has allowed me the opportunity to write about environmental issues I deeply care about. It’s been my pleasure writing this blog and I hope you will also find pleasure in reading it. When I am not tackling serious issues, I like to meet new people, go on nature walks, binge watch movies and catch up with old friends and family. Feel free to reach out to me if you have any questions, I would love to meet you!

 

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