Greenhouse Gas Regulations: Drama, Rebellion, and Quiet Progress (episode I)

Last week I had the opportunity to travel to a conference on Greenhouse Gas (GHG) Regulations.  I learned a lot, and I will share some of the more interesting tidbits here over several posts.  For starters, I will not waste your time laying out too much of the background science, arguing about whether or not GHG's are accumulating in the atmosphere, or whether this is having an effect on the planet.  They are, it is.  Concentrations of CO2 have reached 400 ppm, the highest level in hundreds of thousands of years.  Even if humans stop emitting all CO2 today, we have already made significant, long lasting changes in our atmosphere, in the Earth's natural cycles.  The planet has warmed, it will warm further, and the consequences of this are far-reaching.  Comment if you like to argue these points if need be, but this isn't about what you might choose to believe--it is about science, facts.

I'm going to assume that if you are reading this you're already know at least a little about this topic, so I may skip over some of the most basic elements.  This piece is an overall introduction, and I'll also write several more specific posts.  California has some of the most progressive laws in the country regulating GHGs.  AB32 (CA Global Warming Solutions Act, 2006) and SB375 (Sustainable Communities and Climate Protection Act, 2008) are the two primary laws in CA that address the issues.  The brief summary is that these laws are designed to reduce GHG emissions to 1990 levels by 2020, and they do so by targeting many of the different sources of GHG emissions.

In California, the vast majority of GHGs are generated by 3 primary sources: the transportation sector (primarily cars & trucks), industry, and the electrical generation.  Further, although there are several different GHGs, the primary concern centers on CO2 emissions, as they account for most of the GHGs.  By regulating these three areas, California can do a lot of curb CO2 emissions.

California has therefore created a "cap and trade" system that limits the amount of CO2 various industries, electrical generators, etc. can emit per year.  The goal is first to "cap" the total amount of CO2 being released into the atmosphere.  Then, set a dollar value as to what a ton of CO2 is worth to an emitter. Emitting CO2 is tied to economic activity--the production of electricity, goods, services.  Therefore, anyone electing to emit CO2 can price this into their economic model. By allowing would-be emitters to buy/trade these CO2 credits on an open market, cleaner/more efficient companies can elect to sell their credits to another company that is struggling to comply with the restrictions.

These restrictions get progressively tighter with time, forcing companies to adopt new cleaner technologies, pay more for the right to pollute, or ultimately go out of business if they cannot adapt.  You can imagine that a power utility would turn away from coal, or even natural gas, in favor of cleaner sources of energy such as wind, solar, tidal, geothermal, etc.  Cities can contribute as well, by redesigning streets to improve traffic flow, building more public transit, siting goods and services in retail hubs that may be walking distance from high density housing or public transportation, etc.

In the next few days I'll go deeper into the laws California has put in place to try and mitigate this harm as much as it can.  Of course California is only one state, and California cannot solve this problem on its own.  However California can help lead the nation, the world, in solving this problem.

A Catalyst for Action

In 2002, I had the honor of attending the World Summit on Sustainable Development (WSSD) in Johannesburg, South Africa.  This UN Conference brought the world together 10 years later to follow up on the historic 1992 Earth Summit in Rio de Janeiro.  Without getting into too many details here, many considered the WSSD a disappointment--a missed opportunity to make meaningful progress on a host of important environmental issues.  The global community kicked the can down the road.

Twelve years later, the world has gathered again--this time in New York City. Yes, there are still some people making excuses, claiming that Climate Change is not real, that humans cannot possibly be responsible for changing the temperature, weather, climate of the entire planet.  These Climate Deniers are a small but very vocal group that still have tremendous political influence in the United States.  Fortunately, the rest of the world is not listening.  Countries from Germany to China have realized: 1) the science speaks for itself, 2) this is happening now, and 3) we've already missed the chance to mitigate some harm.  We'd better act NOW or else the harm will be a whole lot worse.  Some clever people have also realized there's money to be made in new technology, and this doesn't need to be a "jobs vs. the environment" debate.  

So, what are some news organizations most worried about?  Whether or not a football player committed a crime (pick one), whether President Obama was disrespectful with his latte-salute, or whether one of the Kardashians or Jenners or whomever they are did X (pick anything).

Dear readers, this is all just one big distraction from things that really matter.  We are facing real problems, and we're (humans) the cause of these problems.  Today in Oklahoma, some guy cut off a woman's head apparently due to misguided religious beliefs.  Wildfires burning near Lake Tahoe were started by an arsonist.  ISIS and the Taliban are committing genocide and creating havoc in the Middle East while Putin is still making a mess in Ukraine.  Perhaps most alarming is that ebola could actually turn into a global pandemic--in large part due to misinformation, lack of education, superstitions...and the fact that the global community is pretty much failing to fund any sort of meaningful response.  

Really?  Really?!?  I look at my little boy sleeping peacefully as I write this.  I wonder what world we're going to leave him?  I am afraid it won't be nearly as nice as the world I was born into, and I hate that we as a country, as a species, can't figure out that we're wasting precious time on nonsense.

So, if you've taken the time to read this far, I ask you please--do this one thing.  Make the world slightly better with your time here.  I don't care what it is.  Add beauty through art or music.  Waste less.  Be kinder.  Invent something that makes things better.  Learn something new, and share it.  Help underprivileged kids.  Just. Do. Something. Good.

And me?  I'm about to start really educating myself much more thoroughly on Green House Gas emissions, renewable energy, and some related topics so I can take a more active role in this area.  I will also be sharing these new insights in my blog.  (Of course, if I happen to get involved in a dog-bite case, I may still talk about that too...)  Twelve years ago I flew all the way to South Africa to try and make things a little bit better.  I think now it is time to finally make good on that promise.  

Finally...Justice

Hello Everyone--

Yes, it has been another long gap since I have posted anything--sorry.  Suffice to say I have been busy both with work, and with family--but let's get on with more exciting news!  

Kareem Lane was finally found Not Guilty by a jury in Columbus, GA, for the tragic murder of school superintendent Jim Burns.  

• I say finally, because this was a cold case prosecution for a murder that happened in 1992.  
• I say finally because this was the second time Mr. Lane had been tried for this case.  In 2012 the jury had deadlocked 10-2 in favor of acquittal.  
• I say finally because Mr. Lane was arrested for this crime in 2009.  He was incarcerated for two and a half years, from the time of his arrest until the end of the first trial.  
• I say finally because the prosecution sat on this for another year+ before finally deciding this January to retry Mr. Lane.  
• I say finally because due to this case, Mr. Lane and his wife Carol have been unable to live anything approximating a normal life for over 5 years.  

If you have read some of my entries from 2012, you know that I played an active (albeit small, pro bono) role in Mr. Lane's defense.  Although I am not normally a criminal defense lawyer, I was uniquely situated to assist GA attorney Stacey Jackson defend Mr. Lane and fight this injustice.  In doing so, I became very familiar with the (lack of) evidence against Mr. Lane, and I was shocked that the DA's office even considered bringing this to trial.    

There's an expression that "Justice Deferred is Justice Denied."  I think that there is a lot of truth to that.  Mr. Lane, his wife, his entire family have had to live with this burden for years.  There is no doubt that this case has forever changed the course of his life.  However, I have to say that after 5 years of fighting, to finally hear the words "Not Guilty" was awfully sweet to me.  I can only imagine how it felt for the Lane family!  Justice may have been deferred for far too long, but in the end Mr. Lane was finally vindicated.  He can go home.      

Unfortunately this case will not draw much media attention outside of Columbus, GA.  This is a shame.  This is such a ridiculous example of prosecutorial overreach, perhaps even misconduct?  I know that is a strong assertion, and winning such a case is terribly difficult, but I have many reasons for saying this.  Perhaps this shall be topic of another blog entry?  Regardless of whether I ever decide to grind that ax publicly, I am happy to say that finally, after 5+ long years, an innocent man walks free.  I am so glad that I saw justice served.  Finally!  

Something Borrowed--MAP Pricing

This is a piece I wrote for an attorney friend of mine who contacted me for more information about the issues below.  This is an area I have a lot of experience in, and I was able to help him on this topic.  I am posting it here as it may be relevant to my own readers.  

MAP Pricing and Anti-competitive practices

The holiday season is nearly upon us, and retailers are battling to capture market share.  Although price is not always the most important factor in a shopper’s buying decision, new programs and phone apps that allow customers to easily price compare make it so much more important for any retailer to be competitive on price.  This has become and even more contentious issue as Internet retailers continue to grab market share from more traditional “brick and mortar” stores.

In recent years, “MAP pricing” has gained a lot of attention in the business community, and has both staunch advocates and outspoken detractors.  MAP stands for “Minimum Advertised Price.”  In practice, this means that if a manufacturer establishes a minimum price, anyone selling their product cannot advertise that item for less.

Often when people hear this, their thoughts turn to price-fixing and they begin considering anti-trust violations.   However, MAP pricing was legitimized in 2007 when the United States Supreme Court ruled in Leegin that no longer were such practices per se violations, but instead had to be reviewed under the rule of reason standard.  In other words, any particular MAP pricing might be reasonable, or it might be a violation, depending upon the particular circumstances.

 

Why would anyone support MAP pricing?  After all, the general outlook in market economics is that competition is good, and that price supports are generally bad.  The idea here is that not all competition is necessarily good for the manufacturer.  Two examples:

First, you have an Internet retailer with little overhead, no store front to maintain, and no or very little inventory.  They are competing with a brick-and-mortar store that sells shoes.  As a consumer, you may want to try on several different types of shoe to see what looks best, and of course try different sizes to see which fits your foot the most comfortably.  You cannot do this easily over the Internet, but of course you can walk into a store and try on shoes for hours.  The store cannot stay in business if it sells the shoes for less than $99, for example, but the Internet site has the same shoes advertised for $89.  You find the shoe you like best, walk out of the store, and then go buy it on-line.  Obviously it won’t take long for the retail location to go out of business.

 

Second example, you have a retailer that is dedicated to being a “full-line merchant” of your products, let’s say bicycles.  They stock all sizes, all models, they can do repairs, and they have spare parts.  You can bring your bike in to be fixed and maybe be out the door in an hour or two.  The store down the street, or another Internet retailer, only carries a few of the best-selling models, and they advertise them for 15% less.  They know they can do well on a few hot items, and they don’t care about supporting the rest of the line.  Soon enough, the full-line store will likely have lost a significant part of their business, and will be left selling the odd-ball “specialty” items—if they can stay in business at all.

Neither scenario helps the manufacturer or the consumer.  First, the manufacturer suffers when people cannot come see, touch, and try on their shoes—or when their selection of merchandise is limited to a few popular bikes.  Many manufacturers have a diverse product line, and they may want to have their items in both shops and sold on line.  If they have and enforce a MAP policy, both the Internet retailer and the brick and mortar store can sell the products on a level playing field

. 

But what about the consumer?  Do they not suffer by paying higher prices?  Three things: first, this is only a Minimum Advertised Price.   Retailers of all stripes can ultimately sell the products for less so long as they do not advertise them below MAP.  Second, this presumes that price is all that matters to customers, and that they do not also benefit from better selection & service at the stores they shop in.  Finally, consumers benefit from the choice of being able to shop on-line, go to stores, etc.  If all that exists is a race to the bottom on price, the only retailers left will be the ones with a few popular products, big discounts, and little service.

 

Thus, whether or not you have a legitimate claim of price-fixing or an anti-trust violation will depend a lot on just what the circumstances are surrounding the particular price structure, and industry, that will be scrutinized.  The Federal Trade Commission routinely investigates these issues.  I can review your unique circumstances and advise you whether or not you have a MAP issue.

Who's Yelping Now?

One of the reasons that I became an attorney is that I felt it was (is!) an honorable profession that helps make the world a better place. One of my law professors described my legal education as both a sword & a shield. The shield is so you can defend yourself, or your clients, from wrongs that may be committed against you or them. The sword is so you can go an actively smite wrong doers that may have harmed you (or them), or attempted to do so. I like that idea. While I am a live and let live person by nature, I cannot stomach people who try and take advantage of others. Someone needs to be willing to stand up to the wrong doer.

So, it always saddens me when I hear of lawyers behaving badly. As attorneys, we have ethical obligations to be honest, fair, etc. Because we are officers of the court, and due to the nature of our training, we must adhere to a higher standard. There's little that is very tricky--most of the ethical rules are pretty common sense. Nevertheless, every month there are new reports released of lawyers doing something fundamentally wrong.

The latest I saw (in The Daily Transcript this week) is a law firm that is being sued by Yelp for allegedly using its own employees posing as clients to write positive reviews on Yelp about their own firm. OK, back one step: you've heard of Yelp, right? It is a website that will give you the scoop on good restaurants, doctors, solar panel providers--you name it, Yelp may have a category for it. Moreover, Yelp reviewers (Yelpers?) are normal people who tell you about their experiences, and you get to take their opinion for whatever it is worth. Frankly, some of the reviews are pretty bizarre, but hey--give their opinion whatever weight you think it merits!

Now, if your a law firm, you might think that you'd know better than to write bogus reviews about your own firm, right? Right?

Something Old

Some of you--my faithful readers!--may remember that almost exactly a year ago I was up to my ears helping defend a man accused of murder. I can't believe it has been a year--it went so quickly!

Oh, the case had all of the drama of a movie, or something you'd see on TV. You may remember from my earlier posts that although we did not get the defendant acquitted, the jury was hung 10-2 in favor of acquittal. I think a very telling thing about that trial was that post-trial, the judge presiding over the case dropped the bail from $750,000 to $30,000, and waived any travel restrictions against the defendant. He was literally free to travel to any state or country he chose.

Now, the defendant has gotten on with his life. Without getting into too many personal details, let's just say that he and his wife are reunited again after his long incarceration, and they are happier then ever. I feel GREAT having played a role in helping end his two-year incarceration over a crime the evidence shows he did not commit.

Nevertheless, the District Attorney has neither refused to drop the charges, nor has she or her office pursued a retrial. This was a cold-case to begin with (1992!), and the DA has a reputation for trying to clean up old cases. However, it is unconscionable to me that in light of the DNA evidence, in light of all the testimony, that the DA should even consider retrying this particular defendant.

Maybe it is time to let this case become history--or else the DA needs a new theory on who actually committed the murder.

Something New

Six months--how they go by in a flash! Well, I may have taken a break from blogging, but the world is still moving. Happily, today's news indicates we're moving a step forward into the 21st century. The EPA just released NEW proposed rules for carbon limits for NEW power plants. This is good news. These rules would make it extremely difficult to get a new coal-fired plant approved, due to the amount of CO2 released from the burning of coal. Natural gas facilities, and of course renewables (wind, solar, etc) would have a much easier time passing the standards. The new rule caps CO2 emissions at 1100 lbs of CO2 emitted for each megawatt hour of electricity produced.

Why pick on coal? Simply put: coal is responsible for more CO2 emissions than other sources. In 2012, coal fired plants accounted for 18% of the energy consumed nationwide, but were responsible for 31% of energy related carbon emissions.

Anyone who watches television has seen ads for "clean coal technology." (Also known as Carbon Capture and Sequestration, or CCS). Unfortunately, CCS is an idea that hasn't really left the drawing board--yet. The problem with capturing and storing CO2 on a large scale is that it is currently unfeasible for two major reasons. First, from a logistical standpoint we lack the infrastructure to capture, transport, and store, significant amounts of CO2. Further, the energy required to do so negates most of the energy generated in the first place. It makes little economic sense.

Could that change in the future? Certainly. A few new coal-fired plants are being built in the U.S. and Canada that may be able to capitalize on technological advances. Interestingly the coal industry that promotes clean coal technology is fighting the new EPA rules--because even the coal industry cannot say if these new plants will actually be successful.

The EPA is doing what it can to limit the amount of CO2 entering the atmosphere, and it is going after one of the biggest sources of CO2 with these new regulations. The next step will be tightening the regulations on existing power plants, especially the handful of oldest, dirtiest plants that are responsible for such a disproportionate amount of the CO2 emitted in the US.

Something Blue

Hi Everyone--

Different people have different priorities. Thank God! Wouldn't the world be a boring place if we all wanted or liked exactly the same things? I don't think anyone wants a world with all the same clothes, music, food, etc. Well, I realize that fatherhood (or motherhood) isn't for everyone--and I respect that! I think the world would be better off with fewer parents, but that also if the people who chose to become parents were totally committed to raising good people.

Recently my wife gave birth to our first child--a boy. I can't say if he'll grow up to be smart, kind, healthy, athletic, artistic? I do know that he will grow up better if I take the time to be there for him, and for my wife, too. I am committed to being the best Dad I can be for this little man. So, I am taking a break from the blog for awhile. I don't think my vast readership will mind too much if I am not providing pearls of wisdom on trial strategy or environmental issues? Please understand: I've got diapers to change.

See you in six months or so?

Roll Mercury?

Living in Alabama for several years, I discovered just how much college football means to the population. With Alabama and Auburn sharing an incredible run of overall success and National Championships, there is no doubt that college football is king right now in "The Heart of Dixie." Even as I write this #2 Alabama is preparing to face #1 Notre Dame in the Orange Bowl for the right to be #1 again.

However, there's another #2 ranking that Alabama should not be so proud of: Shelby, AL, is home to the #2 largest source of mercury pollution in the United States, the Gaston Steam Plant. This power plant dumped 1244 lbs of mercury into Alabama's water and air in 2011, second only to the Martin Lake Steam Electric Station & Lignite Mine in Rusk County, TX, at 1501 lbs of mercury emitted.

Mercury is a heavy metal that can be toxic in high doses, and typically causes damage to the brain, kidneys, or lungs. Frequently you may hear that mercury is prevalent in fish, which is true. However, mercury is also present in grasses, insects, and livestock. It bioaccumulates, meaning that is becomes concentrated at ever-higher amounts as you move up the food chain. Fishing is off-limits in many rivers and lakes in the U.S., including Alabama, due to mercury contamination.

Humans are the source of approximately 50% of mercury releases worldwide, primarily from the burning of coal. The 10 "dirtiest" coal-fired plants in the United States account for approximately 18% of all U.S. based mercury emissions. Note: the other 4 of the top 5 dirtiest mercury-emitting plants in the U.S. are all located in Texas, and operated by Luminant Generation.

The technology exists to eliminate mercury emissions from coal fired plants by over 90%, yet often nothing is done because of the incremental increase in the cost of energy to consumers. I wonder though--what is the cost of illness and lost productivity? What is the off-set gain in the creation of jobs to retrofit the plants with cleaner technologies? Don't these costs and benefits also factor into the overall picture when deciding whether or not to clean up a "dirty" plant? If not, shouldn't they? Essentially the energy companies are externalizing their operating costs on the public at large, maximizing their own profitability.

It is common knowledge that Alabama consistently ranks near the bottom of all U.S. states whether considering education, health, poverty, income, or many other indicators of overall well-being. (As the saying in Alabama goes, "Thank God for Mississippi!)" It's great to have a college football team challenging for the National Title, and it gives many people something to cheer for. However, whether or not the Crimson Tide ends its season #1 or #2, I'm more concerned about the long-term consequences of that other #2: emitting mercury that we all may end up breathing or ingesting.

SMART Use of Transportation Dollars

Congress amended the Clean Air Act in 1990. One of the goals of these amendments was to attain National Ambient Air Quality Standards (NAAQS) by reducing vehicle tailpipe emissions. It was determined that one of the best ways to reduce these emissions was to link air quality and transportation planning. The Congestion Mitigation and Air Quality Improvement Program (CMAQ) was implemented to support projects that simultaneously relieved transportation congestion and improved air quality.

CMAQ is a potential source of funding not only for light-rail projects, but also other alternative transportation projects, such as bicycle lanes, pedestrian walking, hiking, or running trails, etc. Often CMAQ funds are one of the only sources that proponents of these pedestrian or bicycle based projects have available to them.

Recently, the Sonoma County Transportation Authority (SCTA) awarded the Sonoma Marin Rail Transit (SMART) $6.6M in CMAQ funds to purchase additional rail cars. While this is consistent with the type of projects usually funded by CMAQ, there has been some minor controversy. The heart of the issue appears to be how quickly the funding request was railroaded through the approval process. Other regional groups (such as the Sonoma County Bicycle Coalition) also dependent upon CMAQ funds for their projects were not given much warning or opportunity to prepare their objections, suggestions, or alternatives.

Proponents of the deal say that the rush was necessary because there were $10M in overall funds that would have been lost if SMART had not acted before the end of the year. The rail cars needed to be ordered, and if they had not acted quickly the window of opportunity would have been pushed back several years.

No one benefits if potential funding is lost because of a failure to act. Overall, light rail projects and other pedestrian or cycling projects work best when developed together. While it is a shame that this had to be pushed through at the last minute, to me it still seems smarter to act than to miss the opportunity entirely. Hopefully both groups will learn from this, and will plan ahead better to develop their mutual interests. With ever-tightening budgets and limited money available, groups like this need to maximize every dollar.

Sandy's Surge Sloshes Superfund Sites

So called "Superstorm Sandy" has made all kinds of news of late. The images of devastation along the Eastern seaboard, particularly in New York and New Jersey captured worldwide attention, and even got President Barack Obama and the (Republican) governor of New Jersey working together for common cause, setting aside politics while they focused on the needs of the people harmed by this storm.

As flood waters recede, the problems are many: people displaced by the storm, homes ruined, other homes inhabitable because of lack of power, possible gas leaks, flood damage, etc. However, one insidious little side-effect has largely escaped the public's notice: raw sewage, and hazardous and toxic chemicals "freed" by the storm.

The eastern seaboard does not lack for Superfund sites, such as the Gowanus Canal in Brooklyn, or Staten Island's North Shore. Just as homes, businesses, and subways were being filled with seawater, so were these sites. As the flood waters receded, they took pollutants with them--although these pollutants were not necessarily washed out to sea. They were deposited wherever the water went--into homes, businesses, etc.

Now, as people look to return home, they have multiple issues facing them--not the least of which is, "when the seawater retreated, what got left behind?" Cleaning out rotted drywall and basements full of sand is bad enough, but what if the debris also contains raw sewage, neurotoxins such as lead and mercury, radioactive materials, or other carcinogens?

Suffice to say that clean up is going to be expensive, hazardous, and very uncertain for these property owners who literally may have no idea what they're returning to. When people discuss the "costs" associated with environmental protection, where are these costs accounted for? Who will have to pay for this bill, especially when the responsible party will be unknown, and the specific harm caused may be outside the property owner's insurance coverage?

Alabama is Forever Wild--or at Least for Another 20 Years

Election Day 2012. National politics dominated the headlines. There were a lot of things at stake: the Presidency, control of the Senate, perhaps even a shifting in the balance of power in the House. Many people expect that 1 or more Supreme Court Justices will retire in the next term.

However, Alabama also had a little Amendment to the State's Constitution--one that would keep the funding mechanism in place to support the Forever Wild program for another 20 years. Created by constitutional amendment in 1992, Forever Wild is a land trust that purchases land for conservation and public use. Its 20 year charter was expiring. Essentially the people of Alabama could vote to continue funding Forever Wild, or let it drop by the wayside.

Some background. Alabama has the smallest percentage in the Southeast (less than 4%) of public conservation land. Forever Wild owns close to 166,000 acres permanently, or approximately 1/2 of 1% of Alabama's total land area. Forever Wild is active in the hunting, fishing, and boating communities. They act as a liason for reservations at State Parks. They have been instrumental in developing new recreational areas, such as the Coldwater Mountain bike trails, for public use.

Nevertheless, most of the people in Alabama aren't what you probably think of as "tree huggers." The state is reliably "red" in that it consistently votes Republican, and the general sentiment is not one of wanting more government regulation or intrusion into the rights of individuals.

Further, a friend of mine goes to a local Baptist church. Separation of church and state aside, his church issued "voter guides" on how the congregation should vote. (He gave me one of these guides). Stewardship of the Earth apparently did not rank with this group. They were told to vote AGAINST the Forever Wild extension. Similarly, the local Tea Party also opposed the extension.

Now, what's amazing is that in this economic and political climate, at a time when the country is more polarized, more distrustful of government than at any time I can remember, the voters of Alabama voted to KEEP Forever Wild! It wasn't even close. Roughly 75% of the electorate voted for extending Forever Wild's charter for another 20 years.

I'm not sure what to make of this? I'd like to think that somewhere, despite all of the political chattering and accusations (whether true or false), that people still have a connection to natural places. Perhaps this is even moreso in a relatively rural state like Alabama? You can talk about clean coal, or drill baby drill, or the energy technologies of the future, or government regulation, or... At the end of the day, people know that an unspoiled forest or stream has value. Maybe, just maybe, the message is getting through to people that we need to take care of this wonderful planet.

Climate Change 102: CA Water Issues

California has water issues. As a state, CA currently does not have enough water to meet all of our personal, agricultural, industrial, and recreational needs. We already import water from the Colorado River, and we have already drawn down our existing reservoirs in our underground aquifers to meet these needs. Probably none of this background comes as much of a surprise? Our water woes have been well-documented and publicized for decades, dating back to the days of Mulholland. The question is, what are we doing about it--and what does the future hold?

As I mentioned before, climate change has made predicting the future much more difficult. It used to be that historical models could be counted on to accurately predict what would happen in the future. Water planners have been able to rely on the concept of "stationarity": that you can use historical water flows to plan for future water availability. Sure, there have always been unusual events that happen once every 50 or 100 years, but our weather operated in a known range. This is no longer true. "Once in a lifetime" events now happen every 10 or 20 years. New and previously unforeseen events are occurring. We're in new territory, and although we have no crystal balls, we do have computer modeling. It allows us to make reasonable decisions on what might happen, and what is most likely to happen.

For example, the Department of Water Resources is expecting the water CA gets from the annual Sierra snowmelt to decrease by 25-40% in the next 50 years. Considering that this natural resource is an important source of water for CA in the late spring and summer months, DWR must decide not only how to replace this water supply, but also whether resources can/should be dedicated to capturing and retaining precipitation that may fall as rain (and quickly runs off) rather than slow-melting snow?

Further, what about sea-level rise? Sea levels have already risen over a foot in the last 50 years. They are expected to rise another foot by 2050. However, remember that slow but profound effect I mentioned before in the last post? Sea levels are projected to rise approximately 55 inches between 2050-2100! Imagine what this will do to low-lying areas such as Venice, Florida, New Orleans--and the Sacramento River delta. Literally thousands of acres of productive farmland could be inundated, and our existing levee system is currently not ready for sea-level rise of such magnitude. Further, salt water will encrouch up river many miles further inland, affecting fresh-water availability.

There are a few easy answers. For example, golf courses use (on average) over 300,000 gallons of fresh water a day. (Is the economic and/or recreational value of a golf course worth this cost in water resources?) We currently do very little with water recycling, and many of our reservoirs, pipelines, and other delivery systems are porous, leaky, or otherwise inefficient. We have made progress with low-flow shower heads and more efficient toilets. Much can still be done to improve our water infrastructure.

Unfortunately, although these answers will help, they will not begin to solve our water problems--especially for a state with a huge agricultural industry, and a population that is expected to increase another 10 million people by 2050. The good news, if there is good news, is that DWR is no longer using modeling based on historical averages, or wishful thinking. They're using the modern computer models to base their planning on the best science available, not history or hope. They have a hard task ahead, and unfortunately things may well get worse before they get better on this front. In the meantime--don't flush that toilet!

Climate Change 101

If you are reading this blog, or if you have listened to the news much in the past 20 years, you are probably already aware that there is a weather phenomenon known as Climate Change. Originally often referred to as Global Warming, climate change more accurately reflects the real-world consequence to humans.

As the planet warms, weather patterns become more severe. It may lead to hotter summers and drought. It may also lead to severe winter blizzards. Hurricanes, tornadoes and monsoons have more energy and are more frequent. In fact, the entire weather cycle has more energy overall, and all weather events become more pronounced.

Of course, depending on your source of news and your political leanings, you may not believe any of this is actually happening. Fortunately, most Americans, as with the vast majority of the world, now know something is amiss with our weather. The "controversy" over whether climate change is happening is largely a product of politics and fear-mongering. When 97% of the world's climate scientists agree with the U.S. Department of Defense, any practical debate of whether climate change is actually happening is essentially over. The debate still over WHY it is happening, how much of it is caused by humans and how much is naturally occurring, and what the consequences of this change will be is another story.

For long-term planning purposes including the investment of billions of dollars in infrastructure projects, we'd be crazy not to plan for certain known eventualities. Just as our military is making critical strategic decisions about how climate change will affect our ability to defend ourselves, our State and Federal planning boards must all make key decisions. Whether it is such projects as flood control in our rivers or coastal regions, planning and allocating water supplies, making improvements to our electrical grid, siting wind farms, protecting endangered or threatened species, locating crops, eradicating or minimizing the damage from agricultural pests, enacting fire suppression in our forests, or best determining how much CO2 can be released into the atmosphere, our governmental agencies must do their best to plan for effects that will not occur for twenty, fifty, perhaps even 100 years from now.

Modeling shows that the long-term effects of climate change have three very important components. First, they tend to be slow. Our planet is currently warmed from CO2 in the atmosphere that was released decades ago, and even if we stop burning fossil fuels today, the concentration of CO2 in the atmosphere will continue to rise for many years before the concentrations start to decrease. Second, these effects are profound. Although we cannot easily see them in our daily lives, the changes that have occurred over the last fifty years are dramatic. Whether it is the warming of the Earth as a whole, the dramatic warming of the North and South Pole, the migration of species to higher altitudes or different latitudes, the acidification of our oceans, coral reef bleaching, etc., the warming of our planet is affecting ecosystems world wide.

Perhaps the most important issue is that our computer modeling is imperfect. For example, 20 simulations of rainfall predicitions for California over the next 50 years may yield 1 result where California gets twice the rainfall that it has historically, 2 results where it gets less than half, and 17 results where CA gets 10-25% less. Which model is right? If you work for the Department of Water Resources, how do you plan your infrastructure projects? Does it make sense to plan for the worst-case scenario, or the scenario that is more statistically likely to happen? In this day of limited budgets and resources, can we afford to ignore the problem entirely, or just wish it away? In my next post, I will discuss some of the steps California is currently taking to prepare for its unknown water future.

Introduction to Food Law

The 2012 CA Bar Environmental Law Conference in Yosemite is in full swing, and I just had the pleasure of attending a session on food law. This is an up-and-coming area of the law, and you will probably be reading more posts from me on this. However, for now, I'll stick to the basics as many people are unfamiliar with this topic.

The production of the food we consume has changed dramatically over the last 100 years. Where a farmer used to produce enough food for 10 people, today a (U.S.) farmer can feed over 150! As the world's population has grown, these gains have allowed us to keep pace. This is important, as the world's population is expected to top 9 billion people by 2050. Also, these gains have allowed our society to become more urban, and for more people to focus on producing manufactured goods &/or providing services, but this "progress" hasn't been without a price.

First, let's consider the animals. Cows and chickens used to roam free, grazing on grass or hunting insects. Now, they're often raised in extremely close quarters. They may or may not live lives that even remotely resemble their ancestors--anything from what they eat to how they reproduce. Concentrated Animal Feeding Operations (CAFOs) may be rife with disease, leading to the use of antibiotics not only to keep the animals disease free, but also to fatten them up. It is estimated that 80% of all antibiotic use in the U.S. is for livestock, not humans. It is believed that the meat, eggs, and milk from these animals contains less nutrients and more pathogens than if the animals had been raised in a more "pastoral" setting. The disposal of waste from these operations can also be a huge issue, and sewage lagoon spills have wreaked havoc on nearby rivers.

The plants & crops being raised may also be less healthy. They are often grown in close proximity with more pesticides to prevent losses. These pesticides may be toxic, or (as in the case of methyl bromide, an ozone destroying gas), they may have other side effects. Significant amounts of fertilizer are also often used, resulting in the accumulation of nitrates and other chemicals in our rivers and aquifers. The large "dead zone" that occurs annually in the Mississippi River delta region of the Gulf of Mexico is a result of this overuse. Obviously this implicates both Clean Water and Safe Drinking Water issues.

Further, crops are being genetically engineered to make them more drought resistant, pest resistant, and/or to increase yields. While some of this engineering may ultimately prove to be harmless, there are concerns that we may not fully understand the consequences of such tinkering for years to come. Also, because this engineering goes beyond anything occurring naturally, companies have proprietary rights to these crops, and farmers may be subject to intellectual property claims.

I am not suggesting here, today, that any one farm, or any one company, has done something illegal or improper--although we know such things are currently occurring. The point of this post is to just give you an idea of the sorts of issues that farm law touches on. Environmental law and food law are inexorably entwined, especially in a state like California with such a large and diverse agricultural economy.

California has a special, perhaps even unique, opportunity to lead the world in this area of the law, and I am glad the CA Bar included this session in the 2012 Environmental Law Conference. I suspect that with issues such as Proposition 37 on the ballot, we will be hearing much more about this in the coming months and years.

A Job vs Your Passion

A lot of people have asked me, "Why environmental law?" After all, there are many areas of the law where you can do good work. Certainly working to free the wrongfully convicted is very rewarding. I would imagine that helping the victims of domestic abuse is also worthwhile. I am sure that helping people obtain justice in medical malpractice cases, or when someone has been the victim of someone's negligence can make you feel good inside about the work you do.

We've all heard (or told) the various lawyer jokes. We're sharks. The first thing to do is, "kill all the lawyers." (Missing the context of Shakespeare's quote, of course). However, when you say that you are involved in protecting the environment not only for people alive today, but for future generations, often people tend to view you a little differently. That's nice, but is it the reason to choose environmental law as a career path?

In my opinion, no. If you love what you do, you have to love it for yourself--not because other people think it is nice. In fact, I sometimes think that in many ways it may be easier to work in a field that you're NOT passionate about. It is easier to "let go" at the end of the day, and focus on your wife, your kids, or whatever you have in your personal life that you also care about. Many people I know believe that this is the key to retaining your sanity.

Maybe they're right--but I've never wanted my life's work to be dedicated to topics that I am relatively ambivalent about. Now, I don't practice environmental law full-time--far from it! However, my love of the environment started young: surfing, skiing, and especially backpacking on the John Muir trail. This is some amazing scenery: Yosemite Valley & the Ansel Adams Wilderness. I realized that if I wanted to be able to enjoy these places, and if my kids, and their kids were also to enjoy them, then we needed to exhibit more stewardship. Too often our natural resources were liquidated for immediate returns without regard to their value to future generations.

So, when I had the opportunity, I returned to school. I felt that studying the law would be the best way for me to contribute to this world in a positive way. Maybe I would leave things a little better than I had found them--or hopefully at least no worse! Tomorrow the 2012 California Bar Environmental Law Conference starts in Yosemite. It's one of my favorite places on this Earth, and over the next several days I'm hoping to learn a bit more about how I can help.

Politics v Justice

Well, election season is on us, and the good folks of Ohio may well be the people to decide for the entire country whether Barack Obama or Mitt Romney is President. I'm not going to dedicate time here tonight to argue whether the Electoral College is still the best plan. Instead, I will spend a few minutes talking about when politics affect legal decisions.

Last month I was deeply involved in a murder trial. If you read some of my posts, you know that it ended in a hung jury, 10-2 in favor of acquittal. As of yet no decision has been made as to whether or not the defendant in this case will be re-tried. He is out on a much smaller bond, but his future is still in limbo. Will he have to defend himself again? Should he even have to?

This case has always been political in nature. The victim was the Superintendent of schools in a smallish town, that had seen its share of racial division and corruption. He was an outsider that had been brought in to "clean up" the town, and also implement Brown vs Board of Education, which was long overdue. He had his run-ins with the School Board, and they wanted him gone. He ended up dead less than 24 hrs before a controversial meeting was to take place,

The defendant, a 17 year old high school student at the time, had no connection to the victim, the Board, or even the community. His family had recently relocated there. Neither he, nor his parents, were part of these controversies. Yet, due to some circumstantial evidence that placed him near the scene of the crime at approximately the same time as the murder, he became a person of interest. He was investigated, and dropped as a suspect, twenty years ago.

The problem is that now there is a D.A. that is aggressively trying to clean up cold-cases. The defendant was asked to give a DNA sample, which he did. The State got an arrest warrant on the strength of a "DNA match." This so-called match not only proved later to not be a match, it tended to show that the defendant could NOT have been the killer.

Nevertheless, the D.A. pursued this case with a fervor. She fought to make sure the defendant's bail was unattainable ($1M), and insisted in taking this matter to trial even when the lab that suggested there could be a match came back with a report saying there was not one.

Why would someone do this? Well, it may just be a coincidence, but the D.A.'s name has made a lot of headlines with her high-profile prosecution of this and other cases. Oh, and she is up for re-election in a couple weeks.

Since the hung-jury, she has kept silent about the case, and has let the Assistant D.A. who was the lead here take all the criticism. As for whether or not the Defendant would be re-tried? No word. No one is expecting anything until after the election. If her challenger wins, everyone expects the case will be dropped. If she wins, she may re-try it? Who knows?

The sad thing is that the victim's family is no closer to justice than they were twenty years ago. The defendant--a real person, with a wife, with hopes for a family, with hopes for regaining his life--sits and waits. This is not justice, and justice should never have to be put on hold due to someone's political aspirations.

Of Bosques and Men

Today I am blogging not about the law per se, although I will touch on to that, or even about anything I am involved in directly. Today I am writing because I am proud of something my Dad did this week. Dad lives in Albuquerque now, and in his retirement he's gotten (even more) involved in local community issues.

According to their own website, it seems that Walmart has a dozen or so stores in and around Albuquerque. There is nothing inherently wrong with this. They are a retail chain, and they have as much right as anyone to build a store and see if they can make a profit selling their wares.

Bosque is the name given to areas of forest found along rivers, streams, and riparian flood plains in the Southwest. The Paseo del Bosque is Albuquerque's premier multi-use trail system. Dad got involved when Walmart sought to build a store on private land that is not only adjacent to this recreation area, but also to a local prep school also known as the Bosque school. This land lacked adequate access to major streets that could handle both the truck and car traffic expected from a "big box" store. As it turns out, Walmart's bid to develop here was denied primarily because of the access issue. In my opinion, all of these issues are good reason to deny the permit in a location such as this.

Understand, I recognize that we need jobs. We all need retail locations where we can buy our toothpaste, anti-freeze, &/or sunglasses. I just don't buy the argument that one always implicates the other. Here, there are Walmarts within a couple miles in either direction from this site, and there are other retailers available as well. People will continue to shop--either here, or at the other retailers that service this neighborhood. People shall not want for inexpensive goods simply because there isn't another Walmart here. If the Walmart is built, probably other stores will close. It is not as if people will now buy more goods because of the Walmart, they'll simply buy them from someone else.

However, this habitat adjacent to the Rio Grande is rare. Special. Locating a store here would degrade what little of it remains--and this loss cannot be easily mitigated. Further, many the kids being educated nearby also spoke against locating a big box store (of any type) so close to their school.

I applaud the Albuquerque City Council for rejecting this proposal. Perhaps the city or a non-profit organization needs to step in and acquire this land so that the private land owner does not suffer financially from this decision. This is only fair. Depending upon what the City ultimately does, or does not, ultimately let them do with their land could lead to a takings issue later on. If the people of Albuquerque do value the unique nature of this land, they should take steps to preserve it in perpetuity for future generations to enjoy,

There's plenty of room for the Home Depot's, Macy's, and Wal Mart's of the world. Let's be sure not to lose sight of the forest--and especially the forest itself--in the meantime. Dad, I'm proud of you for lending your voice to this cause!

Changing Public Perceptions of Climate Change

A new study from the Yale Project on Climate Change Communication and George Mason University was just released last week. It appears that "a large and growing number of Americans" believe that global warming is affecting weather in the United States. This number is up 5% since March of 2012--from 69% to 74%.

Further, Americans were more likely to connect global warming to record high temperatures this summer, Americans said that climate change had made events such as the severe drought that struck the Midwest this summer worse, and Americans increasingly say that weather in the U.S. has been getting worse over the past several years.

I believe that too often laws and regulations are the result of politics, not sound science. Nevertheless, the public's willingness to accept or reject new environmental controls and standards strongly affects what laws/regulations may ultimately come to pass. Traditionally the American public has trailed other developed countries in accepting climate change as a real phenomenon. If public perception is indeed changing, we may be on the cusp of policy changes as well.

The report itself is far too long for this little blog. However, if you are interested in reading more:Click Here

Supreme Court also Checks in on Clean Water

As I mentioned several days ago (October 8), environmental law is a favorite topic of mine, and the U.S. Supreme Court doesn't take that many environmental law cases. Well, a friend and colleague reminded me that the Supreme Court is taking a look at another important environmental law issue this term in the clean water realm.

On December 4, 2012, oral argument will be held in the matter of Los Angeles County Flood Control District v. Natural Resources Defense Counsel, et al. This case involves polluted waters in Los Angeles County. Here the Court will decide whether the County Flood Control District is liable for Clean Water Act permit violations, for the simple reason that someone else's pollutants passed through its flood control channel.

In Southern California, we don't see a lot of rain. Pollutants accumulate on the roadways in all of the cities, on the parking lots of businesses, churches and schools, and on the driveways and rooftops of homeowners. When the occasional deluge comes, these pollutants wash into storm drains, and eventually make their way into the storm sewer system, which the Flood Control District operates throughout the County. These waters flow through the sewer system into the L.A. River and San Gabriel River, among others, and eventually wash into the Pacific Ocean.

Several years of testing within the Flood Control District's sewer system reveals high levels of pollutants (above permitted levels), and the Natural Resources Defense Counsel has taken legal action. Now, the Flood Control District, which did not generate these pollutants, faces sole liability for them because the pollutants passed through its sewer. It goes without saying that this ruling could have massive implications for cities, counties and flood control districts nationwide, which are invariably responsible for providing flood control and storm sewer systems within their jurisdictions.

A negative ruling against the Flood Control District could be a big win for clean water everywhere, as it will likely assure that sewer operators treat everyone's pollutants before final discharge. However, it could be a huge hit for sewer operators (who generally didn't generate the pollutants), and eventually for cities and their taxpayers that use storm drains upstream, as they will likely have to subsidize these new treatments and liabilities.

Suffice to say that this is a classic situation where the polluters have effectively externalized their costs on the public at large. While few would dispute the need to actually clean up the pollutants, this is another situation where government and the people are being asked to collectively carry the load when the identity of specific polluters is often unknown, and there may be no good way to effectively target appropriate clean-up measures at the source.