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.
Showing posts with label Environmental Law. Show all posts
Showing posts with label Environmental Law. Show all posts
Friday, September 20, 2013
Sunday, January 6, 2013
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.
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.
Wednesday, December 26, 2012
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.
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.
Thursday, November 8, 2012
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?
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?
Wednesday, November 7, 2012
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.
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.
Monday, October 29, 2012
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!
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.
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.
Friday, October 26, 2012
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.
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.
Thursday, October 18, 2012
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!
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!
Sunday, October 14, 2012
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
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
Saturday, October 13, 2012
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.
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.
Monday, October 8, 2012
Supreme Court Grants Cert on Exactions
Hi Everyone--
I know I've been writing about all things criminal here, but now I am getting back to my first love: environmental law. I don't always have the luxury of following cases purely because they interest me, but at least now there's a headline grabber in the environmental law field.
Most of you are probably familiar with the general idea of a governmental "taking." The idea is that if the government deprives you of your property directly, you are entitled to compensation. Well, the same is also true in situations where the government does not take your property from you, but denies that you can use your property in a certain way. In such circumstances, you may be entitled to compensation as well.
So, what if you own land that is protected by state or federal law, because of the presence of an endangered specie, or because it is critical habitat for a wetland, etc? Perhaps you would like to develop this land, but the state or federal government has told you either that you can't, or that you have to meet certain criteria before you can act? This is the realm of takings, mitigation, and exactions.
An exaction is essentially a condition that is placed on the property, requiring the property owner to mitigate the expected harm caused by the development of their property. In two landmark cases (Nollan & Dolan), the U.S. Supreme Court has ruled that their had to be a logical connection between the restriction on the land, and the environmental harm the agency is seeking to avoid--this is the "essential nexus" test. Also, there must be a "rough proportionality" between the development's public benefit, and the burden being imposed. These criteria have been the basis for many takings cases in environmental law.
However, real property is unique, so any environmental impact, and each proposed restriction necessarily varies. This area of the law is not entirely settled, and new cases present new legal challenges. This past Friday, October 5, the Court agreed to hear the Koontz v St. John's River Water Management District case. The Supreme Court does not agree to hear many takings cases, so this is something somewhat special in environmental law. Here, the Court will decide two important issues: 1) whether or not an exaction occurs when the governmental agency has proposed the exaction; and 2) whether the Court's Nollan/Dolan test applies in cases beyond those that involve the public occupation of private lands.
I have not yet seen a date for when this case will be presented to the Court. However, it is likely that this will be a "hot topic" in environmental law circles. Perhaps this won't be met with quite the same excitement and press coverage as Health Care reform, but some of us will be watching to see what the Robert's Court decides.
I know I've been writing about all things criminal here, but now I am getting back to my first love: environmental law. I don't always have the luxury of following cases purely because they interest me, but at least now there's a headline grabber in the environmental law field.
Most of you are probably familiar with the general idea of a governmental "taking." The idea is that if the government deprives you of your property directly, you are entitled to compensation. Well, the same is also true in situations where the government does not take your property from you, but denies that you can use your property in a certain way. In such circumstances, you may be entitled to compensation as well.
So, what if you own land that is protected by state or federal law, because of the presence of an endangered specie, or because it is critical habitat for a wetland, etc? Perhaps you would like to develop this land, but the state or federal government has told you either that you can't, or that you have to meet certain criteria before you can act? This is the realm of takings, mitigation, and exactions.
An exaction is essentially a condition that is placed on the property, requiring the property owner to mitigate the expected harm caused by the development of their property. In two landmark cases (Nollan & Dolan), the U.S. Supreme Court has ruled that their had to be a logical connection between the restriction on the land, and the environmental harm the agency is seeking to avoid--this is the "essential nexus" test. Also, there must be a "rough proportionality" between the development's public benefit, and the burden being imposed. These criteria have been the basis for many takings cases in environmental law.
However, real property is unique, so any environmental impact, and each proposed restriction necessarily varies. This area of the law is not entirely settled, and new cases present new legal challenges. This past Friday, October 5, the Court agreed to hear the Koontz v St. John's River Water Management District case. The Supreme Court does not agree to hear many takings cases, so this is something somewhat special in environmental law. Here, the Court will decide two important issues: 1) whether or not an exaction occurs when the governmental agency has proposed the exaction; and 2) whether the Court's Nollan/Dolan test applies in cases beyond those that involve the public occupation of private lands.
I have not yet seen a date for when this case will be presented to the Court. However, it is likely that this will be a "hot topic" in environmental law circles. Perhaps this won't be met with quite the same excitement and press coverage as Health Care reform, but some of us will be watching to see what the Robert's Court decides.
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