Category: Ecoperspectives

Linda Sheehan, https://bit.ly/SheehanUNHwNBio
April 2020

The 50 ^th anniversary of Earth Day , expected to be celebratory, arrives at a somber moment. COVID-19 human tragedies continue to ravage communities, and UN Environment warns that ” nature is sending us a message ” we must heed to avoid future pandemics. This Earth Day demands both deep reflection and bold action. Fortunately, it arrives as the rights of nature movement is surging worldwide, offering new strategies for building legal systems that reflect our interconnected relationships with each other and the planet.

The first Earth Day in 1970 inspired nations to create sweeping, new environmental law regimes. In the United States, virtually all modern environmental laws arose in part from Earth Day marches, teach-ins, and movement building actions.

My personal commitment to nature’s well-being began during that exciting period, when I was in elementary school. My local creek was regularly polluted by upstream tannery spills , and in the leadership and passion of citizens around the globe, I saw a path for change. Many of these early advocates later took up the work of implementing the resulting suite of environmental laws – myself included.

“it’s our Wilderness … Save it Before it’s too Late” (1972)

Five decades later, we have seen significant improvement in some areas, but much remains to be done. As I wrote recently in the Vermont Journal of Environmental Law , environmental laws have addressed some acute issues, such as large sewage and industrial pollution releases, but have failed to prevent long-term, devastating harm, such as climate change and biodiversity loss. This is due in large part to the fact that our environmental laws are grounded in the frame of “nature as property,” to be owned and degraded. Systems-based science now shows us that we are fundamentally connected with nature. To better guide our relationship with the natural world, we need legal and economic systems arising from a new frame, one of natural systems as fellow Earth citizens. Recognition of the fundamental rights of nature is a core element of such new governance systems.

“Rights of nature” is a legal and jurisprudential theory and movement sparked in part by University of Southern California law professor Christopher Stone’s 1972 essay, ” Should Trees Have Standing.” Stone calls for legal standing and associated rights for ecosystems and species, similar to the concept of fundamental human rights. In 2008, Ecuador became the first nation to take up this call, recognizing in its Constitution the inherent rights of ecosystems and species to exist, thrive, and evolve.

As described in new research from Craig Kauffman at the University of Oregon , legal recognition of nature’s rights now exists at the local to national levels in 12 countries worldwide, [1] including roughly 50 cities and counties spanning 13 states in the United States. [2] An additional 16 countries are also considering legal recognition of nature’s rights, which occurs in the form of constitutional provisions, treaty agreements, statutes, local ordinances, and court decisions. Most of this activity has arisen just over the last decade, with a spike in the last several years. Successes include legal standing and rights for rivers in New Zealand and India , a successful push-back on fracking in Pennsylvania , and the right to a healthy climate in the Colombian Amazon. Kauffman gives credit to movement building, finding that the “sudden and dramatic increase” in proposed and adopted rights of nature laws “reflects the strengthening of transnational rights of nature networks following a decade of network activation and mobilization.”

Earth Day has been a notable marker in the growth of the nature’s rights movement worldwide. For example, the 40 ^th anniversary of Earth Day in 2010 coincided with one of the United States’ most devastating environmental incidents, the Deepwater Horizon oil spill. Protective regulations put in place by President Obama to prevent another Deepwater Horizon were reversed by President Trump , demonstrating the ongoing need for broader, more durable, rights-based protections for nature.

Deepwater Horizon Oil Spill, Earth Day 2010, U.S. Coast Guard

This need was answered, also on the 40 ^th anniversary of Earth Day, at the global launch of the rights of nature movement in Cochabamba, Bolivia. A climate conference attended by over 35,000 representatives of 140 nations produced a Universal Declaration of the Rights of Mother Earth , which led later that year to the creation of the UN Harmony with Nature Programme’s Earth Day UN General Assembly Dialogues. These annual UN Dialogues examine development of Earth-centered legal and economic systems , including recognition of the rights of nature. In parallel, a worldwide network of rights of nature advocates has begun to solidify and expand, with an associated “explosion” of new, rights-based environmental laws and policies as described by Kauffman.

The first Earth Day gave voice to widespread alarm over an increasingly polluted and degraded environment and produced a wide range of laws to combat identified threats. On Earth Day’s 50 ^th anniversary, we are witnessing a new global movement, by ” citizens disillusioned by the failure of governments to take stronger actions to address the dual crises of climate change and biodiversity loss.” Advocates, governments, and courts are building laws and policies that recognize nature’s rights and are now beginning to implement them.This need was answered, also on the 40 ^th anniversary of Earth Day, at the global launch of the rights of nature movement in Cochabamba, Bolivia. A climate conference attended by over 35,000 representatives of 140 nations produced a Universal Declaration of the Rights of Mother Earth , which led later that year to the creation of the UN Harmony with Nature Programme’s Earth Day UN General Assembly Dialogues. These annual UN Dialogues examine development of Earth-centered legal and economic systems , including recognition of the rights of nature. In parallel, a worldwide network of rights of nature advocates has begun to solidify and expand, with an associated “explosion” of new, rights-based environmental laws and policies as described by Kauffman.

Fortunately, we can bring forward lessons learned over the last 50 years towards creation of Earth-centered legal and economic regimes. One example is the U.S. Clean Water Act, passed in 1972 over President Nixon’s veto. It was a monumental achievement at the time, but decades later, U.S. EPA reports that 46% of river and stream miles, 32% of wetland areas, and 18% of coastal and Great Lakes waters are in “poor biological condition.”  A Healthy Waters Act , grounded in the rights of waterways, would address the shortcomings of the Clean Water Act and better support the human right to water for basic needs. Lessons learned from Clean Water Act implementation efforts can inform rights-based implementation strategies, such as expanding waterway restoration in addition to attending to antidegradation, and prioritizing whole waterway health rather than focusing primarily on individual designated uses.

Clearing skies and waters associated with COVID-19 shutdowns inspire visions of what life in harmony with natural systems might look like. The burgeoning rights of nature movement represents a new Earth Day revolution, one that is building modern legal and economic regimes that will guide us towards a mutually thriving relationship with the natural world.

[1] Argentina, Bangladesh, Bolivia, Brazil, Colombia, Ecuador, France, India, Mexico, New Zealand, Uganda, United States.
[2] California, Colorado, Maine, Maryland, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Vermont, Virginia.

The post Earth Day’s 50th Sees Explosion in Rights of Nature Movement Worldwide appeared first on Vermont Journal of Environmental Law.

The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP22 Observer Delegation

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By Julia Muench

One year ago, parties to the UNFCCC signed the Paris Agreement, expecting it to come into force over the next four years as individual nations went through the slow process of ratification. To everyone’s surprise, the requisite number of nations ratified it, and as of November 4, the Paris Agreement officially came into force. Today, the parties to the UNFCCC held the first meeting under the Paris Agreement. At the opening ceremony, UN Secretary General Ban Ki-moon announced that this historic approval marks “a new dawn for global cooperation on climate change.” All of the speakers at the ceremony emphasized that this rapid endorsement demonstrates that the world is ready to move forward together to address climate change.

The shadow of US President-elect Donald Trump occasionally threatened to cloud the day’s proceedings, but the new dawn continued to shine through. President François Hollande of France called for consistency and perseverance to work towards the goals of the Agreement, which he called irreversible in law, in fact, and in the minds of the citizens of the world. He specifically thanked President Obama for his crucial role in obtaining agreement in Paris, and then called out the United States, stating that “the largest economic power in the world and the second largest greenhouse gas emitter must respect the commitments they have undertaken.”

 

 

The conversation about U.S. participation in the Agreement continued throughout the day. Jonathan Pershing, the Deputy Special Envoy for Climate Change, focused on market forces that have made fossil fuels unsustainable. For example, he pointed out that the U.S. currently has over 2 million renewable energy jobs compared to 65,000 coal miners. Although refusing to speculate on the future administration, he hinted that a President focused on jobs might find the renewable energy sector more attractive. He also observed that cities and local governments are already adapting to natural disasters, whether they were calling it adaptation to climate change or not.

 

In a heavily attended panel on U.S. Climate Action, Deb Markowitz (Secretary of Natural Resources for Vermont) addressed the tension head-on, theorizing that many people were there to find out just what effect the Trump administration would have. The panelists’ answer? Not as much as one might fear. Brian Deese (Senior Advisor to the President overseeing Climate Change and Energy Policy) emphasized that the Clean Power Plan was promulgated in response to a mandate from the US Supreme Court holding the EPA has a duty to regulate greenhouse gases. Even President Trump cannot reverse the Supreme Court’s holding, nor can he eliminate the Clean Power Plan without backing in science and law. Markowitz, meanwhile, focused on state action. She observed that state actions drove U.S. climate response during the Bush years, and pointed out that states from Texas to Vermont are deploying renewable energy projects.

As President Hollande observed [yesterday], our world is in turmoil – a setting in which “those who trade in fear are allowed to thrive.” In this world, many have come to doubt what the international community can do. But the Paris Agreement is a beacon of hope in the night, and “a promise of hope cannot be betrayed. It must be fulfilled.” With, or without, the President of the United States.

Summary : Parties to the UNFCCC gathered over the last two weeks for their mid-year meeting in Bonn, Germany to attempt to translate the recent treaties into substantive government policies.  At center stage, was the recent Paris Agreement and its future effects as the parties begin to merge its elements with the UNFCCC’s Kyoto protocol and other pre-2020 pledges.

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By Tracy Bach

During the last two weeks of May, the parties to the United Nations Framework Convention on Climate Change (UNFCCC) gathered in Bonn, Germany for their regular mid-yearmeeting.  This session is called  SB44, which simply means the 44th meeting of the climate change convention’s subbodies , which include two standing groups, the SBI  (Subsidiary Body for Implementation) and SBSTA (Subsidiary Body for Scientific and Technological Advice) and one temporary one, the APA  (Ad Hoc Working Group on the Paris Agreement).  SB44 is the place where the rubber meets the road.  Few world leaders attend and even fewer members of the media.  Instead, career diplomats who focus on international environmental law in general and climate change specifically come to Bonn to work out the technical realities of translating treaty words into governmental actions.

At SB44, the parties continued work on climate change mitigation and adaptation programs initiated under the UNFCCC and its Kyoto Protocol (KP).  But it’s fair to say that this work was perpetually overshadowed by the future impacts of the Paris Agreement  (PA).

What would happen to pre-2020 commitments under the KP’s Second Commitment Period if the Paris Agreement entered into force early? How do the NDCs or nationally determined contributions required under the Paris Agreement relate to the pre-2020 Cancun pledges? How will existing governance mechanisms under the UNFCCC and KP, like the KP’s CDM (Clean Development Mechanism) Executive Board , UNFCCC’s Standing Committee on Finance and Adaptation Committee , and the COP19-created  Executive Committee of the Warsaw International Mechanism on Loss and Damage , serve the Paris Agreement?  Will we simply learn from their track records of what (and what not) to do when creating new governance structures under the PA?

The Paris Agreement seized the center stage for at least a third of SB44’s agenda, given the number of tasks assigned by COP21 for moving into implementation.  While on the surface, this work has the appearance of being technical, in reality it is rooted deeply in international politics.  Hence the first week of the APA’s SB44 work was held up while the Parties disputed their agenda for the mid-year session.  The G77+China — the largest negotiating group in the UNFCCC negotiations — filed a request before the opening plenaries with concrete suggestions for “balancing” the agenda so that it was less mitigation-centric — a hangover from the UNFCCC and KP’s work programme foci.  Through these agenda corrections, the G77 also sought to launch the next phase of work using the precise language that parties forged last December when agreeing by consensus on the COP21 decisions.

Forging North American relations at a biergarten on the Rhein.

The APA agenda dispute (and to a lesser extent, those in SBSTA and SBI) served as the opening salvo of a consistent campaign to address the constructive ambiguity that Parties had built into the Paris Agreement’s provisions  very carefully. The art of compromise on display in Paris does not transition easily to the technical exercise in Bonn of translating those words into action. This difficulty stood out most strikingly for me on two agenda items: Paris Agreement Article 6 (“cooperative approaches”) and its relation to Article 5 (forests and other land use) and transparency and global stocktaking under Articles 13 and 14, including on finance.  More to come soon on these specific topics.

For more articles by VLS Observer Delegation Click Here

The post SB44 – Next Steps After Paris appeared first on Vermont Journal of Environmental Law.

Summary : Women have emerged as the most influential figures in the UN’s Convention on climate change. Female diplomats from Saudi Arabia and New Zealand have been elected to co-chair the fledgling APA, which develop guidelines pursuant to the recent Paris Agreement.

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By Bonnie Smith

For the first time ever, women dominate the most influential positions for the UN Climate Change negotiations. This significant change in leadership comports with the Preamble of the Paris Agreement, which states, “[p]arties shoul `d when taking action to address climate change, promote and consider their respective obligations…gender equality [and] empowerment of women.”

Significantly, Christiana Figueres, affectionately nicknamed the “Climate Queen” at SB44, stepped down from her six-year tenure as Executive Secretariat of the UNFCCC and  welcomed Patricia Espinosa , Mexican ambassador to Berlin, as her successor. The Parties elected Sarah Baashan, a Saudi Arabian diplomat, and Jo Tyndall, a former climate ambassador from New Zealand, to serve as the first co-chairs of the Ad Hoc Working Group on the Paris Agreement (“APA”) , established to develop rules and guidelines under the Paris Agreement.

UNFCCC leaders, delegates, and civil society groups maintained the dialogue on gender and climate change from the opening of the SB44 Conference  to its conclusion. Jo Tyndall concluded the APA Plenary Session by remarking on the “whirlwind couple of weeks” at SB44, during which time she and Sarah metaphorically got married, birthed the APA baby, and watched the baby take its first breaths. As she concluded the session she vowed that she and Sarah would not drop the newborn APA baby.

For more articles by VLS Observer Delegation Click Here

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Summary : Conscious consumption is each individual’s responsibility. Understanding what we consume and how we facilitate the commoditization of life is a necessity if we are to promote the modification of social values to include holistic stewardship of our planetary resources.

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By Madhavi Venkatesan, PhD

All life has intrinsic value. Human life may be able to dominate and subordinate other life forms due to nothing more than brute force but does this equate with a fundamental right to forcibly inseminate, isolate, and commoditize other life forms? Arguably, the claim of human status based on a hierarchy of life forms would appear to be more consistent with stewardship, not domination.

To justify the horrific treatment of other life forms through an assertion that provision of quality of life would be too expensive provides a greater insight into the social values of the present period and nothing more. The treatment we provide to the voiceless impacts our sense of humanity and the manner in which we will ultimately treat one another.

Economics does not justify exploitation, it is a discipline founded on moral philosophy. The value and fairness elements that were embedded explicitly and implicitly in the work of Adam Smith and David Ricardo did not survive the overly simplified twentieth century quantification of the behavioral science. The ignorant greed among some in our society has promoted the use of price as a means to perpetuate profit and consumption, but this is not economic theory, this is the oversimplified, myopic perspective of the individual who is succumbing to self-focused benefit without thought of holistic cost.

Price is not an appropriate measure on its own. It is the fairness of price that is important. A fair price captures the cost of raising a healthy animal. A cheap price implicitly captures the low cost of raising an animal, not necessarily healthy and not net necessarily of nutritious value. The animal is produced like a piece of equipment on an assembly line, fattened with hormones, injected with antibiotics, living in and eating its own feces, with limited development physically and mentally; cheaply treated, cheaply priced, it offers minimal consumption benefit. The flesh that composed the animal, the same meager nutrition and development embedded in the animal will be the fuel source for the consumer. The cheapness in its price imposes yet another adversity: that life can be thrown away—trashed—based on market-promoted price elasticity. Further from an ecological perspective, the concentrated living conditions of these voiceless, captive living commodities adversely impacts groundwater and, depending how feces are discarded, can create further human health impacts.

We have inherited frameworks that are based on ideas and beliefs that were and are not consistent with the reality of life. We live in a continuous system; how we treat other animals and how we treat the ecosystem we inhabit has an impact on human life both through human health and in how we develop, maintain, and pass on humanity as a social value.

Madhavi Venkatesan is a faculty member in the Department of Economics at Bridgewater State University, where her present academic interests are specific to the integration of sustainability into the economics curriculum. Prior to re-entering academics, Madhavi held senior level positions in investor relations for three Fortune 250 companies. In this capacity she was a key point of contact for investors and stakeholders and was singularly instrumental in the development of socially responsible investing strategies and corporate social responsibility reporting. Madhavi started her financial services career after completing her post-doctoral fellowship at Washington University in St. Louis. She has a PhD, M.A. and B.A. in Economics from Vanderbilt University and a Masters of Environmental Management from Harvard University. She is presently a Masters of Environmental Law and Policy candidate at Vermont Law School.

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Summary : This post originally appeared in the Oxford Human Rights Blog on April 18, 2016. The systemic collapse of the U.S. coal extraction industry has scarcely been of benefit to the subordinated Appalachian citizenry. However, tangible socio-legal progress may be achieved in the Appalachian region vis-à-vis a critical human rights approach to environmental justice issues.

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By Nicholas F. Stump

 

The natural resource extraction industry has long wrought environmental, social, and economic devastation in Appalachia—a U.S. region historically defined by a deeply exploitative coal extraction mono-economy. However, in tandem with the (climate change-driven) global pivot towards non-carbon, cleaner energy sources, widely publicized market and legal developments have resulted in a systemic collapse of the once dominant American coal industry.

Progressive environmentalists rightly celebrate these historic energy market transitions towards a more renewables-focused power grid. The historic Paris Climate Agreement is perhaps a first crucial step in averting catastrophic, carbon-driven climate change. But the Appalachian region remains imperiled: Among other persistent issues ( endemic poverty , most notably), the catastrophic after-effects of surface mining—paired with environmental harms stemming inter alia from hydraulic-fracturing externalities and a crumbling infrastructure —pose serious public health concerns for the Appalachian citizenry.

“Appalachia” by Justin Meissen (licensed under CC by SA 2.0)

Poisons continuously leach into Appalachian waterways via, among other multitudinous sources, coal slurry ponds, decades-old acid mine drainage, and endless MTR valley fills (which have obliterated over one thousand miles of Appalachian headwater streams). This coal extraction-produced “environment degradation…will remain despite the reduction in the production of coal.” Concurrently, fracking operations poison Appalachian water and air alike—and incidents stemming from a rapidly deteriorating infrastructure produce environmental disasters on the scale of the Elk River Chemical Spill , a national U.S. scandal that left three hundred thousand Appalachian citizens without potable water. Therefore, vast stretches of Appalachia are marked by insufficient environmental protections.

These dire public health concerns are usefully explored using a human rights approach to environmental justice (“EJ”), which illustrates how disproportionate environmental impacts on subordinated groups are problematic and that structural environmental inequities must be remedied as part and parcel of any comprehensive and just regional socio-legal reconstruction project.

EJ has been a prominent critical discourse for decades. Supported by empirical literature , it teaches that environmental harms tend not to be distributed equitably within modern industrialized liberal democracies; rather, minority, female, and low-income populations suffer disproportionate health and economic-related impacts. Moreover, EJ has continued to evolve. Third and fourth wave critical re-visionings of EJ involve an “integrated particularized approach” that exhibits a “greater complexity based on each community’s cultural, historical, and political experience and its specific needs and goals.”

The Clinton Administration’s Executive Order 12898 institutionalized normative EJ principles in the U.S.; following a period of turbulent policy oscillation, President Obama subsequently reinvigorated the order in 2008. Under E.O. 12898, U.S. federal agencies must consider EJ dictates in applicable regulatory decision-making. To date, widespread implementation of the order has proved largely elusive—and the failure of E.O. 12898 to curtail the long-lasting public health impacts of the radically destructive mountaintop removal mining (“MTR”) practice on low-income Appalachian populations, in particular, is now well-documented.

A human rights approach to EJ strengthens the discourse and is especially applicable to the uniquely situated Appalachian region. Scholarly commentators and legal practitioners have “framed the demands of the environmental justice movements nationally and globally in the language of human rights.” For instance, insufficient environmental protections pertaining to the “substantive right to a healthy environment ” are a prima facie violation of principles articulated in numerous regional treaties ; additionally, tribunals have determined that insufficient environmental protections pertaining to ” life, health, food, [and] water ” implicitly violate other regional human rights treaties.

Such legal trends are heartening. E.O. 12898 has failed Appalachia in part because its dictates are merely one factor to be weighed by an often-captured governmental elite. Re-visioning EJ concerns as not a sole regulatory factor, but rather as enforceable, controlling human rights may indeed yield more transformative EJ outcomes for the region. Moreover, a critically informed human rights approach —wherein the Appalachia demos co-determines the scope and nature of such rights at the grassroots level—is a crucial procedural component for a citizenry so long marginalized by structural democratic deficits.

Profound Appalachian socio-legal reconstructions are indeed required in the region: And a more substantial human rights approach to EJ is perhaps one component of a more comprehensive critical project for radical Appalachian reform. Socio-reconstructions of this nature are necessary ends-in-themselves; however, such reformist efforts may additionally serve as a potentially potent model in broader regional and global work. Diverse reformist outcomes might, therefore, be accomplished through critical explorations of Appalachian human rights.

Nicholas F. Stump is a Library Faculty Member at West Virginia University College of Law, where he administers and teaches in the legal research curriculum. Professor Stump’s scholarship focuses on the intersection of environmental law, Appalachian studies, critical legal theory, and critically informed approaches to legal research and analysis.

The post Appalachia in Crisis: A Human Rights Approach to Environmental Justice in the U.S. appeared first on Vermont Journal of Environmental Law.

Summary : Wastewater from hydraulic fracturing (“fracking”) is not well-regulated in the United States, even though regulations exist at federal and state/local levels. This author recently published an article in which he argues the need for a federal commission, similar to the Nuclear Regulatory Commission, to regulate fracking wastewater (link provided in the text below). The following is a taste of the author’s arguments from his article.

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By Curtis Morrison

Federal agencies have failed to effectively regulate the clandestine fracking waste disposal industry. Some state and local fracking regulation exists, but much of that regulation has not proven effective at protecting communities from fracking waste. And sometimes, local fracking regulation has not survived the scrutiny of courts and state legislatures.

Last week, the Whittier Law Review published an article I authored: Fracker in the Rye: The Necessity of Federal Fracking Waste Regulation and a Fracking Waste Regulatory Commission . The article surveys the giant loopholes and shortcomings within the shockingly scarce regulatory regime regulating fracking waste disposal. Through examples of wastewater disposal in places you might not expect, the potential hazards to human health and the environment are examined. The article proposes comprehensive federal regulation of fracking wastewater disposal and the fracking waste management industry through the creation of a new federal commission to enforce it. Finally, it calls on members of Congress to pass federal fracking waste disposal regulation, and create a federal fracking waste regulatory commission modeled off the Nuclear Regulatory Commission.

Wait . . . there’s a fracking waste disposal industry? And it’s unregulated? Yes and yes, but let’s backup for the newbies. Fracking is the process of pumping water and chemicals underground at high pressure to force out oil or natural gas that would have otherwise stayed in the ground for time immemorial. Once these fluids return to the surface, they can also contain metals, dissolved solids, salts, and naturally occurring radioactive material. Although the industry prefers the term “produced water,” these fluids are more accurately coined fracking wastewater.

“You’re destroying public trust resources . . . [l]iterally destroying water,” explained Helen Slottje, New York attorney and founder of Community Environmental Defense Council at a 2015 environmental law conference. “It would be better to take the water that they use for fracking and put it on a rocket ship and send it to the Moon than to [re-] use it for fracking because that water is then available to pollute more water.”

Fracking fluid and other drilling wastes are dumped into an unlined pit located along the Petroleum Highway. Nets were installed on these pits to keep birds from dying in the toxic water. Photo Credit: Sarah Craig/Faces of Fracking

While some larger oil and gas companies handle their own fracking wastewater disposal, typically a wastewater disposal contractor relocates the waste far from the fracking site via pipes, trucks, trains and even barges. Then where does that all that fracking waste go? That’s a good question, with no comforting answers. In Kern County, California , for example, wastewater is left to evaporate in unlined pits where it invariably infiltrates groundwater. Elsewhere, wastewater is injected into abandoned Class-II wells where it also threatens to infiltrate groundwater.

Would a federal ban on fracking be better? Of course. Will that be politically feasible in the near future? Before you answer, consider that a SuperPac supporting Sec. Hillary Clinton’s bid for the presidency, credits her for “channeling the domestic energy boom into a geopolitical tool to advance American interests around the world.”

In the meantime, under the existing legal regime, fracking wastewater continues to irreversibly pollute sacred groundwater and aquifers across the nation. Shouldn’t Congress do something?

Curtis Morrison is a Whittier Law School J.D. candidate expecting to graduate with an environmental law concentration next month. He volunteers as a law clerk with  Our Children’s Trust , the Oregon-based non-profit devoted to atmospheric trust litigation. When time permits, he also writes about  the environment, government, and politics

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Summary : Cyberattacks pose obvious threats to infrastructure and financial institutions, but they also create major environmental threats. Any dam, chemical plant, or nuclear power plant that uses computers is a savvy hacker away from being an environmental disaster.

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By Mark Latham

Cyberattacks occur today with alarming frequency. They can happen anywhere a computer performs some function, which today means any and everywhere. The recent revelation that the control system for a small dam outside New York City had been hacked by a group possibly associated with the Iranian Revolutionary Guard is chilling evidence that nothing which is even remotely computer-dependent is immune from a cyberattack. Fortunately, the dam was offline for maintenance and the hack discovered before any harm occurred. Cyberattacks, too, have implications for the so-called critical infrastructure that we rely upon for our energy, industrial operations and environmental protection.

 

The exact purpose of the dam cyberattack is not clear. It could have been, though, a penetration test to see if a small component of our infrastructure could be breached as a precursor to larger, more sophisticated attack. Instead of a small dam, next time a hack could occur within a portion of our critical infrastructure, such as the electric grid.

 

What havoc might a cyberattack wreak if it shutdown power for a few weeks or months in the major population centers of the East coast? If a cyberattack targeting a portion of the U.S. electrical grid were successful in the summer then scores could die from the heat, similar to what occurred in Chicago during a brief but particularly brutish hot spell in 1995. That blast of intense Midwest heat directly caused hundreds of deaths. A grid shutdown coinciding with the depths of the winter cold would be equally lethal. Not only would the human toll likely be substantial if a determined cyber-foe successfully attacked the grid but the adverse financial consequences would be painful as well. And this type of malicious hack has occurred. Late last year a cyberattack occurred that left tens of thousands of Ukrainians in the dark.

 

Might a nuclear plant be subject to a successful cyber siege? Perhaps that sounds like a far-fetched, bad disaster movie plot, but perhaps not. According to the London-based policy institute Chatham House in its 2015 report, Cyber Security at Civil Nuclear Facilities , investigators alarmingly found that “the nuclear industry is beginning – but struggling – to come to grips with this new, insidious threat.” They also found that the risk of a damaging cyberattack at a nuclear plant is also heightened because off-the-shelf, commercial software programs are frequently used at these facilities and the vulnerabilities that are inherently a part of those programs could be exploited with the potential for truly horrific consequences. At the recently completed Nuclear Summit convened in Washington, D.C. by President Obama, cybersecurity experts recognized that, while the risk may be low, the age of U.S. reactors, virtually all of which were constructed before the digital revolution, also increased their vulnerability to cyberattacks.

 

Moreover, we must not forget that a nuclear facility has already been subjected to a remarkably successful cyberattack. In the first reported use of a true cyber weapon, the home of Iran’s illicit nascent nuclear program was stricken by a never seen before highly sophisticated piece of malware named Stuxnet. Likely the handy work of United States and Israeli computer scientists, Stuxnet was unleashed as a counterattack targeting the Iranian nuclear enrichment program. Despite the fact that the facility was intentionally kept free from the web as a defensive measure, this remarkable bit of cyber-prestidigitation halted Iran’s nuclear ambitions for years.

 

Because so many industrial processes heavily rely upon SCADAs—supervisory control and data acquisition devices, which are essentially mini-computers that run a wide variety of industrial operations ranging from the mundane to the critical—virtually any industrial facility is at risk of a cyberattack. In fact, at Iran’s Nantanz nuclear facility, Stuxnet specifically targeted SCADAs manufactured by the German industrial giant Siemens that controlled the hundreds of centrifuges located deep within the facility essential to produce weapons-grade nuclear material.

 

Other cyberattacks offer further compelling evidence that the critical components of our infrastructure, including sewage treatment plants, air pollution control systems, pipelines, refineries, and chemical plants, among others, are at risk. If, for instance, a sewage treatment plant’s cyber defenses were successfully breached, treatment operations could be brought to a halt resulting in the discharge of untreated sewage into the receiving stream with resulting harm to aquatic life and potential adverse consequences for the public health. Technically, this type of attack is certainly possible. Iran, for instance, reportedly retaliated in response to Stuxnet by hacking into a number of American banks. A more alarming and relevant example is that Iran also reportedly responded by accessing one of Saudi Arabia’s massive Aramco oil facilities compromising data and destroying thousands of computers. As 2014 came to a close, the German Federal Office for Information Security announced that an unidentified steel mill in that country had been hacked. As a result of this cyberattack, plant personnel couldn’t shutdown a blast furnace, which resulted in major damage to the plant.

 

Numerous financial institutions have been victims of hacks, of course, given that is where the money is to paraphrase Willie Sutton. But so far the adverse effects of those cyber attacks have not had far-reaching consequences. That may not be the case if cyber-thugs successfully gain access to the computers essential for the operation of our energy and environmental protection critical infrastructure.

Professor Mark Latham, deputy vice dean for academic affairs, joined the Vermont Law School faculty in 2005. He specializes in a range of environmental issues that arise in corporate and commercial real estate transactions and brownfields redevelopment. His research focus includes the intersection of business and environmental law, and also issues under the federal Clean Water Act.

 

 

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Summary: Prior to the Conference of Parties in Paris, this blog shared weekly stories about the intricacies of the compact that would come from the Conference. The environmental law world buzzed with optimism as late November neared. Less than four months from the release of the Paris agreement, Professor Mark Latham does not share the optimism expressed by others. Whether the Paris agreement can avoid being another Kyoto Protocol depends on the technology and lifestyles that developing nations choose to adopt as they eventually earn more income and whether the American government steps up to be a leader in environmental protection.

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By Mark Latham

The climate change negotiations held in Paris late last year achieved what many believe is a groundbreaking international agreement. While there may be a sense of optimism that the agreement reached at the COP 21 proceedings will serve to avert the catastrophic impacts associated with a warming planet, there are several reasons why I remain doubtful that the well-intentioned agreement will result in meaningful reductions in global greenhouse gas emissions.

First, let us not forget that we have trod down this path once before. Negotiators previously reached a “groundbreaking” international agreement that was expected to halt the global rise in greenhouse gas emissions. In 1997, the Kyoto Protocol was negotiated at a previous Conference of the Parties and subsequently ratified by 190 countries. It was expected to set the stage for a five percent reduction in carbon emissions that would occur beginning in 2008 through 2012, based on 1990 emission levels. The Kyoto Protocol was undoubtedly a stunning example of what could occur through intensive international diplomacy, cooperation and negotiation.

The only problem, however, is that the Kyoto Protocol didn’t work to reduce overall global carbon emissions. Granted the United States didn’t help matters when it stepped aside and did not participate in the efforts to reduce emissions called for by the Kyoto Protocol. Another problem that contributed to the ineffectiveness of the Kyoto Protocol was the exclusion of rapidly growing economies, namely China and India, from the requirement to reduce carbon emissions.

Second, since it is virtually impossible for President Obama to take any meaningful action to reduce carbon emissions without Congress on board, EPA developed the Clean Power Plan, which obligated states to develop and implement plans to reduce carbon emissions. This was the center piece of the Obama administration’s plan to address climate change.

In an unprecedented step the Supreme Court stayed the implementation of the Clean Power Plan. Without the Clean Power Plan it is not likely that the U.S. will meet the reduction targets called for by the efforts of the COP 21 proceedings. Further, given the climate change skepticism routinely expressed by the Republican presidential candidates, if the GOP does indeed win the White House later this year, no federal effort to reduce greenhouse gas emissions will occur. Without U.S. leadership toward greenhouse gas reductions, other countries may decide to follow suit and not take action to combat climate change, which would sabotage the efforts called for by the COP 21 proceedings.

Third, as developing countries strive to achieve increased prosperity, those that succeed in this endeavor will raise the standard of living for hundreds of millions people. As incomes grow and concomitant gains in the standard of living occur, the new entrants to the middle class will desire what the middle classes in developed economies have had access to for decades, if not longer: namely, stable and reliable sources of electricity, and also access to the full range of energy-intensive consumer products and durable goods including computers, smart phones, tablets, HD televisions, refrigerators, washers and dryers, air conditioners, and automobiles. Alongside the acquisition of such goods, a corresponding rise in energy demand will also occur. This, in turn, will increase carbon emissions as energy demand rises to support the goods acquired by a growing global middle class. One only needs to consider the dramatic rise in carbon emissions that China has experienced side-by-side with its increased prosperity during its rise over the last thirty years as a major global economic power.

Finally, treaties, laws, and regulations simply cannot provide the long-term solutions required to address the global dilemma known as climate change. Sure, laws may help to speed along the development of non-fossil fuel sources of energy through “technology forcing.” But one crucial lesson from the Kyoto Protocol experience is that we can impose all the laws, regulations, and “clean power plans” that the imaginations of policymakers and regulators can muster, but they won’t provide the solutions required to successfully combat the threat that climate change presents. The crux of the problem is a scientific one, so the climate change threat that the world faces requires technology-based solutions. Rather than reliance on legal-based regimes that to date have proven ineffectual at sufficiently curbing global greenhouse gas emissions, policymakers need to unharness scientists and engineers around the world to tackle this problem. This can be accomplished through increased public and private funding into low carbon forms of energy production and increased research-and-development efforts. Policymakers also need to incentivize entrepreneurs through the tax code and offer grants and low interest loans to fund the research and development efforts that are necessary for the technologies that are essential for a low carbon future.

Professor Mark Latham, deputy vice dean for academic affairs, joined the Vermont Law School faculty in 2005. He specializes in a range of environmental issues that arise in corporate and commercial real estate transactions and brownfields redevelopment. His research focus includes the intersection of business and environmental law, and also issues under the federal Clean Water Act.

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