The Broken Link Between Climate Change and Security
Volume 32, Number 3 • May/June 2015
The Environmental
FORU M
®
Advancing Environmental Protection Through Analysis • Opinion • Debate
Protecting Endangered Species
While Promoting Wind Power
Fresh Approach
The Z-Tranche
Undersea Aquifers Give Risk and Reward for
Chance for New Policy Development Banks
Mitigated Disasters
The Military Responds
to Global Warming
The Environmental Law Institute’s Policy Journal for the Environmental Profession
Our New Website...
The MIT Press
Why Are We WAiting?
The Logic, Urgency, and Promise
of Tackling Climate Change
Nicholas Stern
engAging the everydAy
Environmental Social Criticism
and the Resonance Dilemma
John M. Meyer
An urgent case for climate change
action that forcefully sets out, in
economic, ethical, and political
terms, the dangers of delay and
the benefits of action.
“This lively, eloquent, accessible
volume models the very style of
social criticism that it calls for in response to this dilemma: a ‘resonant’
environmental criticism that works
on (rather than against) everyday
practices.”
—Lisa Disch, author of Hannah
Arendt and the Limits of Philosophy
The Lionel Robbins Lectures series
376 pp., 21 illus., $27.95cloth
thinking like A MAll
Environmental Philosophy after
the End of Nature
Steven Vogel
“Can there be environmental
philosophy after the end of nature,
a philosophy without romantic
idealization of an authentic natural
order? Steven Vogel’s brilliant new
book offers just such a philosophy.
It is the environmental philosophy
for our time.”
—Andrew Feenberg, author of
Between Reason and Experience and
The Philosophy of Praxis
344 pp., 3 illus., $29 cloth
CiviC eCology
Adaptation and Transformation
from the Ground Up
Marianne Krasny and
Keith Tidball
“Civic Ecology is an inspirational
account of the ecological and
civic renewal of broken places,
such as areas of urban decline. It
describes how local people can,
through stewardship based on
sound social-ecological principles,
re-create sustainable communities
and environments where people
and nature thrive.”
—F. Stuart Chapin III, Professor
Emeritus of Ecology, University of
Alaska Fairbanks
Urban and Industrial Environments series
320 pp., 34 illus., $27 paper
280 pp., $24 paper
FAiled ProMises
Evaluating the Federal
Government’s Response to
Environmental Justice
edited by David M. Konisky
A systematic evaluation of the
implementation of the federal
government’s environmental
justice policies.
American and Comparative Environmental Policy
series • 288 pp., $25 paper
CheMiCAls Without hArM
Policies for a Sustainable World
Ken Geiser
A proposal for a new chemicals
strategy: that we work to develop
safer alternatives to hazardous
chemicals rather than focusing
exclusively on controlling them.
Urban and Industrial Environments series
464 pp., 19 illus., $30 paper
Consensus And
globAl environMentAl
governAnCe
Deliberative Democracy
in Nature’s Regime
Walter F. Baber
and Robert V. Bartlett
“A very valuable resource for policymakers and required reading for
scholars and students interested
in global environmental governance… the book instills hope in
the possibility of integrating placebased research with policymaking
at the global level through deliberative democratic approaches.”
—Maria Grazia Quieti, Dean of
Graduate Studies, The American
University of Rome
278 pp., 1 illus., $25 paper
The MIT Press mitpress.mit.edu
T H E
BR IE F
Offshore Aquifers
FEATURE ❧ The news of possibly vast reserves of groundwater trapped
under continental shelves only heightens the need for improved overall
governance of resource extraction and utilization. Our past exploitation of
global underground water reserves is mute testimony.
By Renee Martin-Nagle
University of Strathclyde
Ralph
Butler
Page 26
The Z-Tranche
FEATURE ❧ Getting people out of cars and trucks and off their mopeds
and into public transportation is not an easy sell. Thus a dynamic
new role for multilateral development banks in the climate change
mitigation saga.
By Michael Curley and Lindsay Haislip
Environmental Law Institute|Cambridge Associates, LLC
Page 32
Birds and Bats and Blades
FEATURE ❧ Long-standing federal laws protecting raptors and other
migratory birds plus rare flying mammals, all of which are challenged
species, are already affecting wind energy development in the United
States. New regulations and industry practices may help.
Henry
Payne
Page 36
By Gordon Smith
Verrill Dana
With a SIDEBAR by Michael Gerrard of Columbia Law School
Testimony: From Vicious to Virtuous
Circles
By Jon Barnett
Melbourne University
SPEECH ❧ We are misunderstanding the challenges that climate change
poses, and we are thereby missing opportunities. Climate change will
not naturally nor inevitably lead to armed conflict, and this is a risk that
is well within our purview to manage.
Page 42
T H E
BR IE F
The Debate: Climate Change Endangers
Security; Can the Military Help Humanity
Respond?
HEADNOTE ❧ As a consequence of the linkages between humanitarian disaster
relief, military organizations, human security, and environmental security, climate
change generates an ever-greater impetus for engagement between military and
civilian authorities. Involvement of both is necessary when disasters overwhelm
the capacity of civil authorities, as is increasingly likely because of the deadly
buildup of atmospheric greenhouse gases.
Page 46
bl o g s
The Federal Beat ...........................
10
By David P. Clarke
Fast Forward ................................... 18
By Ann R. Klee
The Clean Power Plan will produce huge benefits,
but opponents decry the costs.
So many competing ratings that they are
becoming an obstacle to sustainability progress.
Around the States .........................
Science and the Law ....................
12
By Linda K. Breggin
20
By Craig M. Pease
In a turnabout from traditional practice, states
are rejecting their role as laboratories.
Polar ice is disappearing ever faster, causing
sea-level rise and further temperature increases.
In the Courts ..................................
The Developing World...................
14
By Richard Lazarus
By Bruce Rich
No other state court has been as influential as
California’s — a pioneer in many areas of law.
The World Bank pulls back from public
environmental and social evaluations.
An Economic Perspective.............. 16
Notice & Comment .......................
By Robert N. Stavins
Climate negotiations: This is a moment of
considerable opportunity for reform.
22
By Stephen R. Dujack
Twenty-five years in and after 140 columns,
humanity’s survival is ever more at stake.
In the Literature: Oliver Houck on oil and gas development in Louisiana — Page 8
Movers & Shakers: Job changes, awards, and honors — Page 54
ELI Report: ELI moves to a new headquarters at 1730 M St. NW — Page 56
Closing Statement: Scott Schang on the profession’s need for diversity — Page 60
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M AY / J U N E 2 0 1 5 | 5
f o r u m@ el i.or g
16 U.S.C. §1,
R.I.P.; Reborn
In the twilight of its 2014 session, Congress enacted several substantive changes to conservation law,
particularly through riders in omnibus spending bills. But, a symbolic
shift in conservation law went largely
unnoticed. Congress divorced national park statutes from the rest of
conservation law.
The United States Code collects
and organizes federal legislation
by subject. When Congress enacts
a law, codifiers eliminate repealed
Code sections and insert new provisions where they belong within the
existing organization of prior laws.
The first official codification of
federal law in 1875, Revised Statutes, eventually evolved into the
1925 U.S. Code. In addition to annual updates incorporating new legislation, the Code requires occasional
restructuring to keep its subject matter organization tidy. As Congress
focuses attention on new concerns,
such as the space program, legislation
accumulates and the Code adapts by
adding new titles.
Conservation law grew large
enough by the 1925–1926 publication of the U.S. Code to justify its
own title, the sixteenth in the series,
containing 219 sections over 61
pages. Since that time, it expanded
to around 7,000 sections over nearly
2,500 pages, one of the largest of
all Code titles (but still smaller than
Title 42, “The Public Health and
Welfare,” host of most pollution
control statutes). Now Congress has
spun off laws relating to the national
parks into their own, brand-new
title. Welcome Title 54, “National
Park System”!
The adored national parks play
a prominent role in shaping conservation ethics. Wallace Stegner
famously argued that the national
parks are “the best idea we ever had.
. . . Absolutely American, absolutely
democratic, they reflect us at our best
6 | T H E E N V I R O N M E N TA L F O R U M
rather than our worst.” From a legal
perspective, nothing better encapsulated this American contribution to
“conservation” (the name of Title 16)
than Section 1, establishing “the fundamental purpose” of the park system. The purpose, enacted in 1916,
is “to conserve the scenery and the
natural and historic objects and the
wild life therein and to provide for
the enjoyment of the same in such
manner and by such means as will
leave them unimpaired for the enjoyment of future generations.”
This first section of the sprawling
title announced the first-order principle of conservation: manage resources
in trust for future generations (unimpaired for their enjoyment). With the
new, separate title for national parks,
this fundamental purpose has lost its
pride of place in conservation law.
I hope agencies implementing the
left-behind conservation legislation
will not lose sight of their connection to the trust ideal. I also hope that
separating national park laws from
other conservation statutes does not
weaken the coordination initiatives
among federal agencies that are universally recommended for adapting
to climate change and maintaining
ecosystem services.
On the bright side, the recodification arrives during the lead-up to
the 2016 centennial for the national
parks. Perhaps it will help focus attention on what is special about national parks, and their urgent need
for better funding and more protection. We can also celebrate that
United States conservation law has
grown to the point that the Code
now spins off the national parks from
other conservation subjects, such as
management of wildlife refuges and
national forests (two entirely separate public land systems), migratory
bird protections, endangered species
recovery, fisheries enhancement, and
wilderness preservation.
Alas, the new Title 54 starts not
with a Section 1, but with section
100101, a number that lacks the
symbolic resonance of the historic
role of the national parks’ mandate.
The senior counsel to the congressional office that maintains the U.S.
Code explained that, “in the case of
Title 54, the layout of the title required 6 digits.” The codifiers have
drained what little romance existed
in Title 16’s numbering scheme.
Although the recodification legislation does not make any substantive changes to the law, it missed an
opportunity to make national park
law easier to find. One reason for
the bulk of national park legislation
is that, unlike the other U.S. public
land systems, Congress established
every one of the 405 units in the
park system. Over time, Congress
increasingly addressed details of individual park unit management, such
as visitor services, hunting, fishing,
grazing, and planning procedures.
These mandates are important but
hard to find in Title 16, where they
are often relegated to footnotes. The
recodification of national park law
failed to incorporate these statutory
provisions into a more user-friendly
framework.
In the meantime, parks await
substantive legal reforms to address
funding, climate-change adaptation,
landscape-scale connectivity, and
threats from upstream and adjacent
land disturbance.
Readers whose hearts are enamored with many of the famous sections of the pollution control laws
should be aware that the House Judiciary Committee is currently considering a bill to recodify those as
well. So, EPA law mavens, prepare
your good-byes to Title 42 and parts
of Title 33. Get ready for Title 55:
“Environment”!
Robert Fischman
Indiana University
Maurer School of Law
forum@eli.org is the place for members
to reply to content in the magazine or
comment on issues confronting the
environmental profession. Our suggested length is 400-800 words.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
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Omni Shoreham Hotel
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In
the
LIterature
is existential, it continues long after
the activities cease, indeed it grows.
Louisiana wetlands are now scarred
by thousands of oil fields, shredded
by over 10,000 miles of pipelines and
By Oliver Houck
access canals, turning rapidly into
open water and sinking into the sea
… which is now rising. South Louin 1901 a wildcatter named W. wood forward were heroic, and their siana is disappearing.
Scott Heywood struck oil near feats in the Louisiana swamps and
The coast here is less a landscape
Beaumont, Texas, and changed marsh wetlands were a kind of hero- than a live body, an interconnectthe Gulf Coast South forever. The ism as well. At the same time, early ed web of root mass (going down
geyser shot 185 feet in the air and on, they also became aware that oil 20 feet and more) and biotic soils,
raged for seven days. It made for and gas development was changing tiny rivulets, plant life and critters
impressive photographs. Ambitions their landscape, which began to fall whose needs are dosed out in natural
flared.
apart. Hence Theriot’s title, includ- rhythms. Oil and gas transects deThat same year a group of Penn- ing energy and coast, embracing stroy the system, turning some areas
sylvania oilmen teamed up with both phenomena. It is as balanced a into stagnant ponds, starving others,
Heywood for a try in Louisiana, history of both of them as one can flushing in salt water, flushing out
targeting the rice plantation of one find until, at the end, he takes sides. the fresh, turning adjacent wetlands
Jules Clement, who knew there was That this reviewer takes another side into ever-expanding arms of an inpetroleum around. He could strike is beside the point. Theriot’s descrip- land sea.
a match and watch the ground go tion of what happened, while not
This simple fact has been the most
up in flames. Nonetheless, fearing complete in all regards, is indeed difficult for the industry, and the
his rice crop might be poisoned and what happened and is well told.
state, to accept. To this day both of
his cattle at risk, he refused the deal
What ensued is not terribly dif- them continue to characterize the
and padlocked his gates.
harm as the surface area
The consortium upped the
of the canals themselves,
American Energy, Imperiled
offer. Money ultimately
which constitute perhaps
Coast: Oil and Gas Development
prevailed, the well went in,
12 percent of the zone, and
in Louisiana’s Wetlands. By
struck oil, and was soon
which misses the point enJason Theriot. Louisiana State
producing several thousand
tirely. The offsite destrucUniversity Press; 271 pages;
barrels a day. In between it
tion is up to 10 times that
$38.00.
ran out of control for eight
figure. Estimate of total
hours and covered Clemcanal impacts range from a
ent’s rice fields with a lake
minimum of 35 percent of
of oil and sand. An apt
coastal land loss to close to
metaphor for what was to
90 percent, the implications
come.
of which would recently beJason Theriot’s book
come, to the oil and gas inAmerican Energy, Imperiled
dustry, terribly threatening.
Coast: Oil and Gas DevelopOne important element
ment in Louisiana’s Wetlands is a story ferent from the course of virtually Theriot contributes to the story is
of what happened next, some eighty all natural resource development in how early the industry knew of its efyears of a wild ride that has not yet America, eastern coal, western min- fects. By the early 1950s its own field
ended, and which breathes the di- erals, timber, cattle, buffalo, fisher- people were reporting it, oystermen
chotomous experience of Clement’s ies — and now the frenetic plays for were suing for damage to their leases,
farm from every pore. Theriot is well natural gas sweeping wherever it is state wildlife officials were complainplaced to write this history. A proud found. We’re never ready for it, the ing about the loss of fur-bearers, and
“product of the oil patch,” his family exploitation goes wild, impacts are then fisheries, and then the marshes
from grandfathers on down, includ- ignored, then denied, then grudg- themselves. Well before the big boom
ing his mother, including Theriot ingly regulated, often weakly and years (1960–1980) to come. Indeed,
himself, all worked in this industry often too late to remedy the harm, although not described in this book
sector, which supported everything and things stumble on. What is dif- a remarkable state biologist named
around them. Oilmen from Hey- ferent in Louisiana is that the harm Percy Viosca was openly warning
TOO BIG TO PAY?
Oil and Gas Development in Coastal Louisiana
I
8 | T H E E N V I R O N M E N TA L F O R U M
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
In
the
LIterature
None of which would read differently from the story of coal in
Kentucky or fracking in the Baaken
Shale, but for a new imperative, the
need to restore this same landscape
before it vanishes. Starting in the
1990s, the state began ambitious
plans for coastal restoration which
today reach astronomic levels of cost,
an estimated $50 billion for simply
holding much of the line as possible
rompted by the Clean Wa- (holding it all is no longer possible),
ter Act and the Coastal Zone and up to $100 billion for creating
Management Act, state officials sustainable deltas for a reasonable pebegan considering regulations for oil riod of time.
and gas development, including sitThe planning has two major chaling restrictions, use of directional lenges, the first of which is that the
drilling, and restoring old canals by measures proposed are not at all
backfilling them, all of which were certain to succeed (in the words of
easily within the ena high corps offigineering capacity
cial recently, it is “a
of the industry, and The industry could have moon shot”). The
modified its activities, second and equally
its financial capacity
as well. The corpopragmatic question
and left a more
rations involved inis, Who pays the bill?
sustainable landscape At which point, sudcluded some of the
wealthiest entities in
denly, the industry’s
the world. The industry could have responsibility for from 35 to 89 peracknowledged the facts, accepted cent of total land loss comes front
regulation, modified its activities, and center. Or, one would think it
and left a more sustainable landscape. would.
As Theriot writes, however, “Not
Oil and gas corporations, howsurprising, the industry went on the ever, have had another answer. They
defensive and successfully fought would form an organization, sevoff much of the criticism for its per- eral in fact, with names like Amerceived environmental footprint.” ica’s Wetland and America’s Energy
One supposes he is correct in not Coast, to sell the message that the
finding this reaction “not surprising.” American public should foot the bill
What industry in America has ever instead. To repair what their industry
been willing to straighten up on its in large part destroyed.
own? In this case, oil and gas went on
In a master stroke, the industry
to coopt state regulators (state legis- recruited several national environlators were already in the bag), defeat mental organizations to join in this
area restrictions, reject alternative effort, their publicity campaigns
access proposals, avoid backfilling, highlighting the values of this coast
deny pollution, and reduce its miti- to America, which a grateful coungation requirements (when required try, so enlightened, willingly pays to
at all) to insignificance. To this day safeguard and restore. One proposal
the state has yet to include offsite diverts existing offshore royalties to
losses when assessing mitigation Louisiana, taking these monies from
needs, and efforts by Army Corps of other states that now receive them.
Engineers officials to do so instead Industry pays nothing more. Other
have been stymied in Congress by, states pay instead. Much mention
of course, the Louisiana delegation. is made in these campaigns of the
Public law failed.
oil and gas infrastructure at risk.
of wetland losses back in 1925 (for
which Governor Huey Long fired
him). Starting in the 1960s scientists
in academia began publishing their
research on this same damage, its
mechanics, its legacy. All of which remained academic, however, until the
advent of environmental law. Then,
it began to matter.
P
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
No word is breathed of oil and gas
involvement in the collapse of the
zone.
At this point, the author and I
part ways. Theriot praises the collaboration here between these environmental groups and the oil majors as
“pragmatic,” a phrase he and quoted
spokesmen liberally use. In context
here, pragmatism means accepting
that the industry is too big to pay its
bills. I have difficulty with this proposition, which would not matter but
for one of the most audacious civil
lawsuits filed in Louisiana juridical
history.
In July 2013 the New Orleans levee board launched a claim against
97 oil and gas companies whose canals and pipelines between the city
and the gulf had destroyed its natural buffer, leaving it open to hurricanes and lesser storms. The damages
sought would be used to restore these
wetlands and bulk up city defenses.
The state, glued to the industry for
generations, reacted violently. The
governor (away campaigning for
president, even then) denounced
“greedy trial lawyers.” His point
man on the coast opined obediently
that the board “got drunk on dollar
signs.” The next session of the legislature saw 17 separate bills to kill the
case. A federal district court, meanwhile, has ruled adversely on the
case (finding inter alia that the harm
complained of was not “proximate”),
an appeal is being filed, and everything is in play.
Theriot’s book ends several years
before this lawsuit, but the conflict he
presents between oil and coast continues unabated. There is something in
the notion of paying for the harm you
cause that will not easily go away. Especially when it is enormous.
Oliver Houck is
professor of law at
Tulane University
in New Orleans,
Louisiana.
M AY / J U N E 2 0 1 5 | 9
T
By David P. Clarke
EPA Faces Clean
Air Act Headwinds
W
ith the rapidly approaching June
deadline for EPA’s final Clean
Air Act regulations governing existing
coal-fired power plants, Republican
opponents are using every opportunity
to assail and, if they can, halt the rules.
Senate Majority Leader Mitch McConnell went so far as to publish an op-ed
in the Lexington Herald-Leader urging
states not to submit compliance plans.
Arguing that Kentucky’s economy would shrink by $2 billion and
“countless” workers would lose their
jobs, McConnell wrote that “refusing to go along” with EPA’s proposal
“would give Congress more time to
fight back,” and lawmakers were “devising strategies now to do just that.”
But amid the attacks by McConnell and other GOP leaders came an
interesting appeal by a Republican
icon, Ronald Reagan’s secretary of state,
George P. Shultz, who in an op-ed of
his own published March 15 in the
Washington Post called for “a Reagan
approach to climate change.” That approach, Shultz argued — after citing
“simple and clear observations” pointing to the global warming threat —
would include significant and steady
funding for energy research and development and a revenue-neutral, escalating carbon tax. It would be an insurance policy.
As EPA Administrator Gina McCarthy told Senate Environment Committee members at a March 4 hearing
10 | T H E E N V I R O N M E N T A L F O R U M
h e
F
e d e r a l
B
e a T
on the agency’s budget proposal, how- testifying, Ohio and Florida, RGGI
ever, every time EPA proposes a rule faults the agency’s proposed rule for in“we hear the same arguments” about sufficiently crediting states’ early actions
the massive costs and minimal or even to achieve power system improvements.
non-existent benefits. McCarthy noted Ohio EPA Director Craig Butler comthat in the last 45 years, the United plained that the federal agency gives no
States has cut air pollution 70 percent credit for the pre-2012 improvements
while GDP has tripled.
and emissions reductions achieved by
In his opening statement, committee its coal-fired power plants.
Chairman James Inhofe of Oklahoma
Citing that and other criticisms —
said the Clean Power Plan will impose including projections that Ohio’s enunacceptable costs on states. Remark- ergy costs will be 39 percent higher in
ing that 32 states oppose the agency’s 2025 under the rules — Butler assured
plan, he claimed it will produce dou- lawmakers that his state would work to
ble-digit electricity price increases. As “prevent this likely illegal rulemaking
for benefits, he said the rules would cut from moving ahead.” Florida’s Public
CO2 concentrations by less than 1 per- Service Commission Chair Art Gracent, reduce global temperature rise by ham also cited various studies that have
less than 0.016 degrees Fahrenheit, and concluded Florida’s electricity prices
reduce sea-level rise by “the thickness of would climb, including one showing
three sheets of paper.”
that the state’s average electric bill may
But EPA’s $1.1 billion budget re- increase between 13 and 17 percent by
quest for climate change and air qual- 2030.
ity improvements is premised on a
EPA’s confidence in the economic
far different perspective, including benefits of its plan, however, also rethe agency’s calculaceived indirect suption that by 2030 the
The Clean Power Plan port from a March
Clean Power Plan will
12 Department of
will produce huge
generate an estimated
Energy report, “Wind
$55 billion to $93 bil- benefits, but opponents Vision: A New Era for
lion per year in health
Wind Power in the
decry the costs
and climate benefits.
United States.” NotThat compares with
ing that wind now
an estimated annual cost of $7.3 billion provides 4.5 percent of U.S. electricity,
to $8.8 billion. Moreover, EPA argues, the 289-page report states that 35 perits flexible approach, based on a view cent wind use by 2050 could lower the
of “the power system as a whole,” will electric sector’s cumulative expenditures
drive innovation and jobs.
by $149 billion and create 600,000
The agency’s perspective received jobs. Importantly, wind deployment
some support at a March 17 House provides “a domestic, sustainable, and
Energy and Power Subcommittee hear- essentially zero-carbon, zero-pollution,
ing on the legal and cost issues of the and zero-water use” electricity resource
proposed rules. The chair of the nine- viable in all 50 states,.
state Regional Greenhouse Gas InitiaBut will U.S. lawmakers ever share
tive’s board of directors, Kelly Speakes- the vision of a clean energy future that
Backman, testified that the region has EPA, DOE, and others are defining
cut carbon emissions more than 40 per- and defending? The answer may be
cent while enjoying 8 percent regional blowing in the headwinds.
economic growth. RGGI’s multi-state,
market-based system that includes elec- David P. Clarke is senior editor/writer with
tricity generation from coal, renewable the Scientific Consulting Group and has more
energy, and other resources would be an than 20 years’ experience in environmental
acceptable compliance strategy under policy as a journalist, in industry, and in
government. He can be reached at davidpaul
the Clean Power Plan.
However, like the other two states clarke@gmail.com.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
E L I
C L A S S I C S
The Art of Commenting, 2nd Edition
How to Influence Environmental Decisionmaking
With Effective Comments
By Elizabeth D. Mullin
Each business day, the government presents a dizzying array
of formal opportunities for public comment on environmental
decisions. Although many comments are submitted, few are
effective. They miss important issues and bury key points in a
dense body of text written in lawyer-ese.
This second edition of The Art of Commenting takes the
reader through a logical, step-by-step approach to reviewing
environmental documents and preparing comments. You’ll learn
how to prepare for a review, including details on obtaining the
right background materials to develop your perspective and
increase your expertise. This valuable guide also advises on the
present-day reality that most commenting occurs online.
978-1-58576-169-2 • $29.95
You’ll also learn how to organize and write your comments,
including specific examples of what to say, and more
importantly, what not to say. The Art of Commenting is designed
to level the playing field to help you learn the tricks of the trade
that will enable you to participate as effectively as possible in
the environmental decisionmaking process.
Fundamentals of Negotiation
A Guide for Environmental Professionals
By Jeffrey G. Miller and Thomas R. Colosi
Ninety-five percent of federal civil cases settle before trial,
making it essential for lawyers and other professionals
to sharpen their negotiating skills. Negotiating in the
environmental field is especially complex, with diverse
scientific, legal, economic, and political issues. Fundamentals
of Negotiation: A Guide for Environmental Professionals
outlines these techniques and shows you how to manage the
negotiating process to your best advantage.
978-0-91193-728-2 • $29.95
ELI members receive a 15% discount on all ELI
Press and West Academic publications.
To order, call 1(800) 313-WEST,
or visit www.eli.org or westacademic.com
a
By Linda K. Breggin
Stringency Laws
Widely Adopted
T
he intense partisan debate over
federal environmental regulations reached a high water mark with
the Senate majority leader’s recent
call for states to “hold back” on complying with the Clean Air Act rule on
greenhouse gas emissions from existing power plants that will be finalized
this year. With so much attention focused on imposing federal regulatory
standards on states, it seems appropriate to consider the converse — the
extent to which states may adopt regulations more stringent than federal
requirements.
States often have filled gaps left by
federal inaction and, as Justice Brandeis
recognized, can serve as “laboratories of
democracy” where new approaches can
be tried before they are adopted nationally. But the story may not be that
simple — at least when it comes to air
and water quality.
State legislatures across the country have limited the extent to which
regulators can impose environmental standards that are more stringent
than federal requirements. This reduces a state’s options for solving
pressing environmental problems
that federal regulators have not adequately addressed. A 2013 study
by the Environmental Law Institute
finds that 13 states have enacted laws
that contain a blanket prohibition on
adopting standards more stringent
than those in the federal Clean Wa-
12 | T H E E N V I R O N M E N T A L F O R U M
r o u n d
T h e
S
T a T e S
ter Act. In addition, 23 states have tional Conference of State Legislaadopted via legislation, regulation, or tures research, laws that limit the
executive order some type of “quali- ability of state regulatory agencies to
fied” approach that makes it “more adopt air regulations that are more
difficult for states to regulate more stringent than federal standards are
stringently than the federal programs in place in 19 states. Some laws apdo, but stops short of creating a bar ply specifically to air quality and othto state agency action.”
ers more generally to environmental
For example, regulators may be regulations. Similar to ELI’s findings,
required to provide notice and op- NCSL reports that these statutes may
portunity for public comment or impose either unconditional or condiprovide a written explanation that tional restrictions on state regulators.
addresses the environmental benefits
For example, some states simply
and economic implications of a more prohibit more stringent regulations,
stringent state regulation.
such as Kentucky, which requires that
The ELI study also characterized to “preserve existing clean air resources
laws as narrow or broad in scope. while ensuring economic growth”
For example, South Dakota’s law is state regulators may only issue regulabroad, as it applies to measures re- tions “no more stringent than federal
lated, for example, to water pollution requirements.” Similarly, Missouri law
control, livestock discharge control, requires that standards adopted by the
and management of water resources. state air conservation commission may
In contrast, Oregon’s law covers only not be more stringent than those reregulations for nonpoint source pol- quired under the federal Clean Air Act.
lutants from forest operations.
A separate Missouri law prohibits the
In many cases, these laws can state department of natural resources
limit states’ ability to
from adopting any
address a critical isrules more stringent
In a turnabout from
sue — the narrowed
than federal law on
traditional practice,
scope of waters that
emissions from power
are covered by the states are rejecting their plants fired by MisClean Water Act.
souri coal.
role as laboratories
The act applies to
The reasons for
“navigable waters”
enacting these laws
— a definition that has been the sub- undoubtedly vary from state to state,
ject of highly controversial Supreme but Professor Jerome Organ theorizes
Court decisions that have limited the that both economic and institutional
reach of the law, most notably with concerns drive stringency legislation.
respect to wetlands and streams.
Economic factors could include inIn the wake of these decisions, ELI dustry compliance costs, whereas
explains that in some cases waters institutional concerns could include
that previously were protected are no distrust of state agencies.
longer covered and in other cases it is
Although state laws vary considerunclear whether the Clean Water Act ably in purpose, scope and approach,
applies. According to Senior Attorney it is clear that many states are limited
Bruce Myers, “States that have strin- in their ability to raise the environgency laws on the books can still leg- mental protection bar and fill gaps
islate to protect vulnerable waters in that have resulted in part from the
the wake of the Supreme Court rul- partisan divide over federal environings, but state environmental agencies mental regulation.
in these jurisdictions may be hindered
or even prohibited from doing so, de- Linda K. Breggin is a senior attorney in
pending on the nature and reach of ELI’s Center for State and Local Environthe particular provision.”
mental Programs. She can be reached at
Similarly, according to 2014 Na- breggin@eli.org.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
Livelihoods,
Natural Resources,
and Post-Conflict
Peacebuilding
Edited by Helen Young
and Lisa Goldman
Series: Post-Conflict Peacebuilding and Natural Resource Management
Routledge • April 2015 • Paperback: 978-1-84971-233-0: $84.95
Sustaining and strengthening local livelihoods is one of the
most fundamental challenges faced by post-conflict countries.
By degrading the natural resources that are essential to livelihoods
and by significantly hindering access to those resources, conflict
can wreak havoc on the ability of war-torn populations to survive
and recover. This book explores how natural resource management
initiatives in more than twenty countries and territories have
supported livelihoods and facilitated post-conflict peacebuilding.
Case studies and analyses identify lessons and opportunities for the
more effective design of interventions to support the livelihoods
that depend on natural resources – from land to agriculture,
forestry, fisheries, and protected areas. The book also explores larger
questions about how to structure livelihoods assistance as part of a
coherent, integrated approach to post-conflict redevelopment.
Livelihoods, Natural Resources, and Post-Conflict Peacebuilding is part
of a global initiative to identify and analyze lessons in post-conflict
peacebuilding and natural resource management. The project has
generated six books of case studies and analyses, with contributions
from practitioners, policy makers, and researchers. Other books in
this series address high value resources, land, water, assessing and
restoring natural resources, and governance.
To find out more visit www.routledge.com/9781849712330 today!
Author Biography
Helen Young is a professor at the Friedman School of Nutrition Science and Policy at Tufts University
and a research director at the school’s Feinstein International Center.
Lisa Goldman is a senior attorney at the Environmental Law Institute.
www.routledge.com
I
By Richard Lazarus
California Dreamin’:
Court Is the Leader
W
hile the environmental law
docket of the U.S. Supreme
Court has been relatively quiet this year,
the same cannot be said of the California Supreme Court. As chronicled best
by U.C. Davis law school Professor
Rick Frank, whose expertise in California environmental law is legendary, the state’s high court currently has
21 environmental cases on its docket.
The sheer number and breadth of the
issues covered by those cases says a lot
about environmental law’s evolution
and serves as a ready reminder of California’s long-standing preeminence at
environmental law’s cutting edge.
Frank’s list includes 10 cases arising
under the California Environmental
Quality Act. The most recent addition
is Cleveland National Forest v. San Diego Assn of Governments, concerning the
relationship of CEQA to California’s
Sustainable Communities and Climate
Protection Act of 2008. CEQA is California’s version of the federal National
Environmental Policy Act, but, unlike
NEPA, has substantive teeth.
NEPA requires federal agency consideration of the environmental impacts of any major federal action significantly affecting the quality of the
human environment. However, NEPA,
as the U.S. Supreme Court has stressed,
is “essentially procedural” and does not
itself require an agency to avoid those
impacts. The same is not true under
California’s CEQA, and a state agency
14 | T H E E N V I R O N M E N T A L F O R U M
n
T h e
C
o u r T S
can approve a project lacking the nec- and Interior, the California Supreme
essary environmental mitigation only Court’s docket makes clear that it is
upon also detailing in writing the sub- state and not federal environmental law
stantive justifications for doing so.
where the rubber meets the road.
Much federal NEPA regulation,
To be sure, in many instances, fedmoreover, can be traced to CEQA, es- eral environmental law triggered the
pecially from those years in the Carter emergence of that state law in the first
administration when the President’s instance. But with the demise of sigCouncil on Environmental Quality nificant congressional environmental
was dominated by Californians, such lawmaking for more than two decades,
as Nicholas Yost, who championed the state environmental law is frequently
drafting of the first NEPA regulations. where the most exciting lawmaking inIf past is at all prologue, the California novations are occurring and where liticourt’s CEQA rulings may find later ex- gation naturally follows.
pression in federal NEPA law.
Second, California is not just any
The 10 CEQA cases just top the list. state for environmental law. No other
The California court’s environmental state has served as such an important
docket includes, among others, a pri- incubator of environmental lawmaking
vate property rights challenge to water for the entire nation. Much of federal
conservation diversion plans (Property environmental law, including the Clean
Reserve v. Superior Court), an industry Air Act and the Resource Conservalawsuit against inclusionary zoning tion and Recovery Act, finds its origins
(California Building Assn v. City of San in California, as do the laws of many
Jose), and a claim that federal mining other states. Both President Obama’s
law preempts a state criminal prosecu- hugely important greenhouse gas emistion for violating state mining law (Peo- sions standards for new motor vehicles
ple v. Rinehart).
and his Clean Power Plan for regulation
Nor is the stunning number of of existing power plants find inspiracases on the docket a
tion and substance in
mere expression of the
California’s innovative
No other state court
number of environGlobal Warming Sohas been as influential
mental law cases being
lutions Act of 2006.
litigated in that state’s
Finally, the Cali— a true pioneer in
lower courts. The California
Supreme Court
many areas of law
fornia Supreme Court,
is not just any state
like the U.S. Supreme
supreme court. No
Court, enjoys discretionary jurisdic- other state court has been as influential
tion. The state justices therefore get to — a true pioneer in many areas of law.
pick and choose which of many cases It is not surprising that according to a
are sufficiently important to warrant recent survey by LexisNexis, no other
their plenary review. And, never before state court has had its rulings followed
has that court applied that standard and as frequently.
decided to hear so many environmental
Governor Jerry Brown seems both
cases.
well aware and very much wanting to
The California court’s environmen- embrace that tradition of judicial actal docket’s significance is three-fold. tivism. He has appointed three of the
First, it confirms the extent to which Court’s seven justices, none of which
the action in environmental law is in- had any prior judicial experience and
creasingly occurring at the state rather two of whom were law professors. Not
than federal level. To most practitioners a typical recipe for judicial restraint.
of environmental law, this is hardly
headline news. But to law students, law Richard Lazarus is the Howard J. and Kathprofessors, and those used to thinking erine W. Aibel Professor of Law at Harvard
about environmental law exclusively University and can be reached at lazarus@
through the lens of Congress, EPA, law.harvard.edu.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
Environmental Justice 3RD Edition
By Barry E. Hill
nvironmental justice activists and advocates argue that
your race and socioeconomic status should not dictate
the environmental health risks you face. The environmental
justice movement is aimed at avoiding, minimizing, or
mitigating disproportionately high and adverse human
health and environmental impacts, including social and
economic impacts, on minority and/or low-income
communities, and at ensuring disadvantaged communities
are engaged meaningfully in the environmental
decisionmaking processes.
The 3rd edition of Environmental Justice: Legal Theory and
Practice provides an overview of this environmental and
public health problem and explores the growth of the
environmental justice movement. It analyzes the complex
mixture of environmental law and civil rights legal theories
adopted in environmental justice litigation.
About the Author
arry E. Hill is an Adjunct Professor of Law at Vermont
Law School, where he has taught an environmental
justice and sustainable development course for 20 years.
Mr. Hill is Senior Counsel for Environmental Governance,
Office of International and Tribal Affairs, U.S. Environmental
Protection Agency (EPA). Previously, Mr. Hill was Director of
EPA’s Office of Environmental Justice from 1998-2007. He
served as a Visiting Scholar at the Environmental Law
Institute from 2010 - 2012. Mr. Hill received his B.A. degree
in Political Science from Brooklyn College; M.A. degree in
Political Science from Howard University; and a J.D. degree
from the Cornell University Law School. He has published
numerous articles on environmental law and policy, and
environmental justice.
ISBN: 978-1-58576-159-3
$89.95 | Paperback
ELI members receive a 15% discount on all
ELI Press and West Academic publications.
To order, call 1(800) 313-WEST,
or visit www.eli.org or westacademic.com
“As a New York City Housing Court judge, I saw daily in my courtroom the negative effects
on minority and/or low-income communities of the relationship of zoning and land use
decisions to environmental injustices. Professor Hill’s examination of the citizen’s quest for
recognition of a human right to a clean and healthy environment in the United States is a
tour de force...an indispensable book for students, practitioners, and judges who can
benefit from this clear, comprehensively-researched, and well-written guide to an
exceedingly complex subject.”
—Pierre B. Turner, Judge, New York City Housing Court (ret.)
a
By Robert N. Stavins
The IPCC at
a Crossroads
T
he Intergovernmental Panel on
Climate Change plays an important role in global warming policy around the world. This is largely
because its reports enjoy a degree
of credibility that renders them influential for public opinion, and —
more importantly — because the
reports are accepted as a definitive
source by international negotiators
working under the United Nations
Framework Convention on Climate
Change.
But the IPCC is now at a crossroads. Its Fifth Assessment Report
is complete and largely successful.
But, like many large institutions, the
IPCC has experienced severe growing pains. Its size has increased to
the point that it has become cumbersome, it sometimes fails to address the most important issues, and
— most striking of all — it is now
at risk of losing the participation of
the world’s best scientists, due to the
massive burdens that participation
entails.
The good news is that this is a moment of considerable opportunity for
addressing these and other challenges, because the direction of future
assessments is now open for discussion and debate. In February, the 195
member countries of the panel met
in plenary session in Nairobi, Kenya,
to discuss — among other topics —
the future of the IPCC.
16 | T H E E N V I R O N M E N T A L F O R U M
n
e
C o n o m I C
P
e r S P e C T I v e
Just one week before the Nairobi raro served as vice-chair, and Kolssessions commenced, another, much tad and I served as coordinating lead
smaller meeting took place about authors, all of Working Group III of
4,000 miles to the northwest — in the IPCC’s Fifth Assessment Report,
Berlin. Twenty-four participants but our organizing of the workshop
with experience with the IPCC met and our authoring of this memoranfor a three-day workshop on the fu- dum were carried out in our roles as
ture of international climate-assess- researchers, and completely indepenment processes. The aim was to take dently of our former official capacistock and reflect on lessons learned ties within the IPCC.
in past assessments in order to idenAmong our recommendations
tify options for improving future as- were these: The IPCC should signifisessment processes.
cantly reduce the number and length
Participants included social scien- of meetings, and rely more on webtists who contributed in various ca- based communication among lead
pacities to the Fifth Assessment Re- authors; it should seek to improve
port and earlier IPCC assessments, the scoping process to better identiusers of IPCC reports (from national fy relevant policy questions; reports
governments to intergovernmental should be made more concise and
organizations), and representatives more accessible to policymakers; inof other stakeholder groups. Par- put from social scientists should be
ticipants came from both developed increased; opportunities for climate
and developing countries, and dis- scientists from developing countries
cussions were held under Chatham should be improved, independent of
House rules, with no public attribu- their current country of residence;
tion of any comments to individuals. and the IPCC would benefit from
The workshop (“Assessment and greater interactions with other reCommunication of the
search institutions.
Social Science of CliU n f o r t u n a t e l y,
This is a moment
mate Change: Bridgwhen the IPCC memof considerable
ing Research and Polber countries met in
icy”) was co-organized
February to discuss
opportunity
by four academic and
the future of the infor reform
research organizations:
stitution, few of these
Italy’s Fondazione Eni
concerns were adEnrico Mattei, Germany’s Mercator dressed concretely, if at all. As is ofResearch Institute on Global Com- ten the case with institutions, change
mons and Climate Change, and the is difficult.
United States’ Stanford EnvironmenOver the coming months, we
tal and Energy Policy Analysis Cen- will produce a comprehensive report
ter and Harvard Project on Climate from our Berlin workshop in time for
Agreements.
the IPCC’s next meeting, in October,
Now is a moment of opportunity, as well as the subsequent UNFCCC
because the future of the IPCC is meeting in Paris in December, where
open for discussion. In this context, a binding agreement is expected.
two of my co-organizers — Carlo When that report is available, I will
Carraro of FEEM and Charles Kols- bring it to the attention of readers of
tad of Stanford — and I wrote a brief this column.
memorandum, based on our reflections on the Berlin workshop discus- Robert N. Stavins is the Albert Pratt Profession. We described a set of specific sor of Business and Government at the John
challenges and opportunities facing F. Kennedy School of Government, Harvard
the IPCC, and provided options for University, and Director of the Harvard Enimproving the process of assessing vironmental Economics Program. He can be
scientific research. Note that Car- reached at robert_stavins@harvard.edu.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
Next Generation Environmental Compliance
and Enforcement
LeRoy C. Paddock and Jessica A. Wentz, editors
Next Generation Environmental Compliance and Enforcement is a
compilation of selected papers from a workshop held in December
2012 that convened EPA representatives and other stakeholders to
exchange ideas and develop strategies for implementing a “Next
Generation” approach to environmental enforcement and
compliance. These papers cover a broad array of topics, ranging
from relatively abstract comparisons of different compliance
approaches to focused case studies of regulatory programs.
Some of the specific mechanisms identified by the authors to
streamline enforcement and compliance include: advanced
monitoring technologies, self-certification programs, company
compliance management systems, environmental petitions,
insurance mechanisms, and regulatory approaches that leverage a
company’s internal economic interests to drive behavior.
“This book offers valuable insights needed to find smarter ways to
enforce environmental regulation. The kind of innovative thinking
represented here could not come at a better time, as government increasingly faces the need to address
environmental challenges under conditions of fiscal austerity.” —Cary Coglianese, Edward B. Shils Professor of
Law, University of Pennsylvania
“To its credit, EPA has acknowledged shortcomings in its efforts to promote compliance with the environmental
laws. EPA’s important 2012 conference … represents a creative initiative to grapple with these challenges. Next
Generation … will be of value to scholars, policy makers, and others interested in understanding the challenges
associated with promoting compliance, and traditional, and emerging, opportunities to address these challenges.”
—Dave Markell, Associate Dean for Environmental Programs and Steven M. Goldstein Professor, Florida State
University College of Law
ISBN: 978-1-58576-163-0 | Price $69.95 • 340 pp.
ELI members receive a 15% discount on all ELI
Press and West Academic publications.
To order, call 1(800) 313-WEST,
or visit www.eli.org or westacademic.com
F
By Ann R. Klee
Ratings Good for
the Environment?
E
very day, we make decisions based
on ratings, from the cars we drive
and appliances we buy, to the restaurants we eat at and movies we see. Increasingly over the past few years, the
theory has been that investors too could
be persuaded by so-called green ratings
for corporate sustainability. That has
led to a proliferation of green ratings
groups: CDP, DJSI, Bloomberg Sustainability Reporting Initiative, Newsweek’s Green Rankings, CK Capital,
Inrate, Oekom, etc.
The initial intent was a good one:
to encourage transparency and comparable metrics so that the relative “environmental, social, and governance”
performance of publicly traded companies could be meaningfully assessed.
Certainly, there is much to be said for
an independent review of a company’s
ESG metrics, and most companies
have voluntarily participated in the
green ratings process. An independent
review of ESG performance, if done
properly, can provide stakeholders with
meaningful information while also allowing companies to optimize internal
resources.
Unfortunately, there are now so
many competing ratings and rankings
that they are becoming an obstacle to
sustainability progress. Further, recent
research conducted by The Conference
Board suggests that institutional investors adjust decisions based on when
companies’ efforts gain media attention
18 | T H E E N V I R O N M E N T A L F O R U M
a S T
F
o r w a r d
rather than on how they reflect actual detail on its methodology and also help
measures of performance.
us to “improve” our score. The amount
There are three fundamental prob- of the fee depended upon how much
lems with the current state of green rat- detail we wanted. This kind of “pay
ings. First, companies today can spend to play” approach does nothing to adthousands of hours responding to the vance sustainable development and evsurveys that generate the ratings. Each erything to undermine the credibility
survey is different, and even questions of green ratings.
addressing similar topics — such as
Many companies are already takgreenhouse gas emissions — are often ing steps to address these issues. They
framed differently, requiring tailored are being much more selective on the
responses and adding to the burden. rating/ranking groups that they enIn 2014, for example, GE developed gage, focusing on those that are themresponses to more than 650 individual selves transparent and relevant to their
questions from ratings groups. The pro- industries or customers. Over time,
cess took several months and involved this will result in a shake out of rating
more than 75 people across the orga- organizations that charge for related
nization, with virtually no value to our consulting services or demand reams
customers or shareholders and even less of data that are not relevant to a comimpact on the environment. Having pany’s strategy.
too many competing rating groups diCompanies are also using their own
verts resources from activities that can performance measures and metrics, not
truly impact sustainability.
trying to redefine them just for external
Second, the granularity of data re- ratings. And they are focusing on those
quested by some surveys is also of ques- issues that are material to their operationable value. Some surveys, for ex- tions. For energy-intensive industries,
ample, ask for data on
that may be focusing
water usage by prodon greenhouse gas
So many competing
uct SKU or water disemissions and efficienratings that they are
charge by basin. These
cy. For forest products
data are difficult, if not becoming an obstacle to companies, it may be
impossible, to calcu- sustainability progress biodiversity. Materiallate and leave much
ity is a critical element;
to the interpretation
on this point, the
of the responder. Should water usage Sustainability Accounting Standards
include the supply chain? Who defines Board is working to develop metrics
the water basin? And why demand a and a reporting framework by indusper-product SKU measurement when try sector.
it is the total water use that is both more
Over time, I’m hoping a transparrelevant and more accurately measured? ent approach that facilitates public disThis is just one example of the detailed semination of comparable information
nature and questionable relevance of focused on metrics that matter to the
information requested in some surveys. ESG performance of the industry secFinally, and most perniciously, is tor as a whole will evolve. If we’re sethe inherent conflict of interest that rious about meaningful reporting on
underlies the business strategy of some ESG performance, the focus should
of even the more highly considered be on targeted, business-relevant metrating groups. Some organizations, for rics and a simple, transparent reporting
example, serve as both a rating entity process. The era of being part of a green
and then a provider of consulting ser- ranking just for the sake of being rated
vices. Several years ago, GE was rated has passed.
by one of these groups. When we asked
for further explanation on our “score,” Ann R. Klee is vice president, global operawe were told that for a consulting fee, tions — environment, health & safety, of GE.
the rating organization would provide She can be contacted at Ann.Klee@ge.com.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
Protecting the Environment Through Land Use
Law: Standing Ground
By John R. Nolon
John R. Nolon’s Protecting the Environment Through Land Use
Law: Standing Ground takes a close look at the historical struggle of local governments to balance land development with
natural resource conservation. This book updates and expands
on his four previous books, which established a comprehensive
framework for understanding the many ways that local land
use authority can be used to preserve natural resources and
environmental functions at the community level. Standing
Ground describes in detail how localities are responding to new
challenges, including the imperative that they adapt to and
help mitigate climate change and create sustainable neighborhoods. This body of work emphasizes the critical importance of
law in protecting the environment and promoting sustainable
development.
Nolon looks at the legal foundations of local environmental law
within the federal legal system, how traditional land use techniques can be used to protect the environment, and innovative
and flexible methods for protecting fragile environmental areas
and for making urban neighborhoods livable.
Standing Ground is both a call to action—challenging readers to consider how local law and policy can augment state and federal conservation efforts—and a celebration of the valuable role local governments play in
protecting our environment.
“When it comes to the subject of local environmental law, John Nolon is a passionate, inspirational, and
authoritative guide and teacher. The rest of us—lawyers, planners, professors, judges, public officials, and citizen
activists—have all benefited from his insights and have been challenged to think carefully and creatively about the
ways in which local law and policy can augment and improve upon federal and state efforts to protect our fragile
environment from a growing number of threats.”
—Michael Allan Wolf, Richard E. Nelson Chair in Local Government Law,
University of Florida Levin College of Law
To order, call 1(800) 313-WEST, or visit www.eli.org or westacademic.com
Price $69.95 • 628 pp.
ELI members receive a 15% discount on all ELI Press and West Academic publications.
S
By Craig M. Pease
Melting Ice and
Human Civilization
I
ce melts when it warms. And climate change driven by ever-increasing atmospheric carbon dioxide
levels is now melting hundreds of cubic miles (yes, cubic miles) of polar
ice each year. This amount of melting ice is almost inconceivable. Ponder for a moment a gargantuan ice
cube, a mile on each side, and then
think about hundreds of those melting each year. And if that is not bad
enough, this melting is accelerating.
The melting ice is found in the
Arctic Ocean, Greenland, and Antarctica, on both land and sea. The
Polar Science Center finds the loss of
70 cubic miles of Arctic sea ice each
year, going back to the late 1970s. In
their Science paper from earlier this
year, Fernando Paolo and colleagues
find that the modest five cubic miles
of Antarctica sea ice lost per year in
the 1990s and early 2000s has now
accelerated, to the loss of 70 cubic
miles per year. On land, V. Helm and
colleagues’ Cryology paper from last
summer documents the loss of some
90 cubic miles of ice each year from
Greenland, and the loss of 30 cubic
miles from Antarctica land each year.
Why should we be concerned
about the melting of polar ice? After
all, most all of human civilization is
found in the temperate zones and
the tropics. Most obviously and simply, the polar melting is a harbinger
of a warmer climate everywhere on
20 | T H E E N V I R O N M E N T A L F O R U M
C I e n C e
a n d
T h e
l
a w
Earth. Models consistently predict when that ice melts, it is replaced
more and faster initial warming in by open water, which absorbs the
the Arctic, exactly as we are seeing, sunlight that used to be reflected.
as evidenced both by direct measure- As Arctic sea ice melts, it accelerates
ments of temperature, and all that Arctic warming.
melting ice.
What happens in the Arctic does
More directly and specifically, as not stay in the Arctic. The melting
this polar ice melts, there are rever- polar ice is now altering winds and
berations, quite literally, across the currents.
entire surface of the Earth, impactStefan Rahmstorf and colleagues’
ing human societies everywhere, by Nature Climate Change paper from
causing rising sea levels, less reflec- earlier this year shows how melting
tion of sunlight back into space, and of Greenland’s ice has now slowed
shifts in the ocean currents and high the ocean currents that move warm
altitude winds that shuffle heat back water from the tropics to the North
and forth between the polar regions, Atlantic. At one level, their result
the temperate zones, and the tropics. is counterintuitive, as it rests on an
Sea level is currently rising by only observed cooling in one very specific
an eighth of an inch a year. Increas- rather narrow region of the North
ing sea levels would thus not seem Atlantic ocean, which cooling is beto be much of an immediate threat ing caused by Greenland’s meltwato the roughly half of humanity that ter.
lives within 100 miles of a sea coast.
Yet starting with this observed
Yet were the Greenland ice sheet to cooling, Rahmstorf shows how that
melt entirely, it would increase sea Greenland meltwater is now slowlevels by over 20 feet.
ing the thermohaline circulation that
There is a good case that the brings warm tropical water to the
Greenland ice sheet will melt slowly, eastern seaboard of the United States
taking say centuries or longer. But and to the British isles, allowing civithen, scientists were surprised to dis- lization to exist in regions that would
cover that melting water lubricates otherwise be much colder and more
the ice-rock interinhospitable.
face, facilitating the
Meanwhile, in the
sliding of the land- Polar ice is disappearing air, Jennifer Francis
ever faster, causing
based ice into the sea,
and Stephen Vavrus,
which greatly speeds sea-level rise and further in their paper from
the melting. More
earlier this year “Evitemperature increases dence for a Waiver
generally, as James
Hansen and others
Jet Stream in Rehave argued, it is plausible that other, sponse to Rapid Arctic Warming,”
both partially known and unknown link the recent bizarre warmth in
processes could make Greenland ice Anchorage, Alaska, to increased jet
melt much faster.
stream meandering caused by the
Moreover, it is not just average sea rapid warming of the Arctic as comlevel that matters. As the experience pared to the temperate zone, which
with Hurricanes Katrina and Sandy differential warming will only inshows, the damage from storm surges crease as more Arctic ice melts.
can be immense, and increased averAs the Arctic, Greenland, and
age sea level increases their reach and Antarctic ice melts, so too does hudamage.
man society.
Melting Arctic sea ice is also decreasing Earth’s albedo. When sun- Craig M. Pease, Ph.D., a research scienlight hits Arctic sea ice, much of it tist, teaches at the Vermont Law School Engets immediately reflected back into vironmental Law Center. He can be reached
space, like light hitting a mirror. But at cpease@vermontlaw.edu.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
TSCA Deskbook 2ND Edition
Carolyne R. Hathaway, William K. Rawson,
Julia A. Hatcher, and Ann Claassen
T
he Toxic Substances Control Act
ct (TSCA)
of 1976 provides EPA with authority to
require reporting, record-keeping and testing
requirements, and restrictions relating
elating to
chemical substances and/or mixtures.
tures. The
TSCA Deskbook is your one-stop resource
esource for
f
understanding and managing these complex
chemical regulation issues. This second
outlining the rules and regulations
tions passed
since its printing in 2007. It is an essential
resource for attorneys and environmental
onmental
managers working in the ever-changing
changing
area of chemical regulation that highlights
regulatory language.
ISBN: 978-1-58576-143-2
$119.95 | Paperback | 806 Pages
To order, call 1(800) 313-WEST,
or visit www.eli.org or westacademic.com
ELI members receive a 15%
discount on all ELI Press and
West Academic publications.
T
By Bruce Rich
A Flight From
Sustainability
W
orld Bank efforts to weaken
environmental and social safeguard policies are provoking international concern. These measures date
back thirty years and have played a
critical role in promoting the adoption
of similar policies at other multilateral
development banks. And they have
catalyzed environmental and social assessment procedures at export credit
agencies and in the project finance of
major commercial banks.
Last July the bank released proposed new safeguards that in effect
abandon requirements for preparation and public disclosure of environmental assessments before project approval. Numerous loopholes
permit degradation and destruction
of legally protected natural areas and
allow projects to proceed with inadequate measures to protect resettled
populations and indigenous peoples.
The changes incited protests not
just from civil society, but also from
27 leading human rights experts and
officials associated with the UN High
Commissioner for Human Rights, as
well as from six Nobel peace laureates.
The UN experts wrote bank President
Jim Yong Kim expressing their dismay
that “the bank’s proposed new safeguards seem to view human rights in
largely negative terms, as considerations
that, if taken seriously, will only drive
up the cost of lending.” They also identified, like many other commentators,
22 | T H E E N V I R O N M E N T A L F O R U M
h e
d
e v e l o P I n g
w
o r l d
the bank’s de facto abolition of mandaThe bank’s internal audit vice presitory environmental and social assess- dency found that for 53 percent of the
ment, since the proposed policy allows bank’s 2,355 investment projects ongoprojects to go forward even if they do ing as of February 2014, even elemennot meet environmental and social safe- tary mandatory environmental and
guards. In fact, the draft qualifies virtu- social risk assessment simply had been
ally every key operational decision with ignored. The study quotes bank staff
opt-out phrases.
observing that “safeguards are irrelevant
Email comments of World Bank for managers” and “management views
vice presidents on the draft safeguard candid communications as creating
revisions were leaked to the press last problems rather than solving them.” It
summer. One wrote that “it might concludes, “Nobody is accountable for
appear that the bank is interest[ed] safeguard risk management results.”
[in] lending more, hence lowering the
These documents had not been
ex ante standards.” Another VP com- shared with most bank management
mented on the lack of consultation on nor with the bank’s country executive
the safeguard revisions with bank envi- directors, even as the proposed saferonmental and social specialists.
guard dilutions were drafted and cirThe mounting criticisms led the culated for public consultation. The
U.S. Congress to enact legislation last documents’ abrupt release was acDecember, included in the 2015 Om- companied by a hastily put together
nibus Appropriations Act, that requires six-page “action plan” and a press rethe U.S. executive director at the World lease with apologetic statements from
Bank “to vote against any loan, grant, Kim that seemed to indicate that he
policy, or strategy,” if “any environ- was surprised by what was going on.
mental and social safeguard relevant” It appears that investigative journalto such loan or grant provides “less ists obtained the documents from
protection than World Bank safeguards internal whistleblowers and queried
in effect on September 30, 2014.” The bank managers on the findings, leadlegislation is a not particularly subtle ing external relations staff to advise
threat that U.S. conthe bank to release
tributions to the bank
the documents to atThe World Bank
could be cut if the ditempt to manage the
pulls back from public story.
luted safeguards were
to replace those curThe safeguards dienvironmental and
rently in force.
lution is a misguided
social evaluations
In March, hours
effort to ensure the
after public comment
bank can move monand consultations on the proposed ey more quickly, in larger amounts,
safeguard changes closed, bank man- and with fewer procedures to avoid
agement let drop a policy bombshell — being marginalized by the growing
releasing three draft internal studies, all volume of loans from public lenders
prepared before July 2014, that point- in China, Brazil, and other emerging
ed to grave social and environmental economies, as well as from private
harm caused by bank neglect over two international banks. But the World
decades in implementing its existing Bank cannot prevail in such a race to
safeguard policies. The reports revealed the bottom. It will only remain relthat some three million people were be- evant by refocusing on the environing adversely affected or physically dis- mental and social quality of its lendplaced by bank-financed projects, but ing, rather than abandoning it.
in the majority of cases bank management had not ensured economic and Bruce Rich, an ELI Visiting Scholar, is an
social rehabilitation of the dispossessed attorney and author who has served as senior
as required by the safeguard policy on counsel for major environmental organizainvoluntary resettlement.
tions. His email is brucemrich@gmail.com.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
Wetlands Deskbook
4TH Edition
By Margaret "Peggy" Strand and Lowell M. Rothschild
Wetlands law operates at the junction of private-property rights
and natural resource protection. While wetlands provide rich and
diverse species habitat, protecting and promoting water quality,
the vast majority of U.S. wetlands are on private property. Federal
law addresses wetlands protection and development in a complex
manner. Those interested in protecting wetlands or developing
wetland property must navigate challenging legal waters.
The Wetlands Deskbook organizes wetlands law for the novice and
expert. This must-have reference book combines insights from two
of the nation’s premier wetlands experts and provides all the
background materials needed. This Fourth Edition includes
updates on the most recent court decisions, agency policies, and
regulations, such as implications for endangered species and U.S.
Department of the Interior mitigation strategies. The authors have
also added a new section identifying practical tips and pitfalls for
attorneys practicing wetlands law.
Margaret “Peggy” Strand is a partner at Venable, LLP in Washington, D.C. Ms. Strand has substantial experience advising on the regulatory requirements of federal and state law,
including wetlands, natural resources, protected species, climate change, and pollution control. She was Chief of
the Environmental Defense Section in the U.S. Justice Department, Environmental and Natural Resources
Division, from 1984 to 1991, and served as a Justice Department trial attorney and supervisor since 1976.
Lowell Rothschild, Senior Counsel at Bracewell & Giuliani LLP in Washington, D.C., is an environmental litigator
focusing on natural resource issues such as wetlands, endangered species, and environmental review. For over
20 years, he has represented private, public, governmental, and quasi-governmental clients working in the oil
and gas, natural resource extraction, and infrastructure development sectors in obtaining and defending permits
and responding to allegations of legal noncompliance, through both internal investigations and litigation.
ISBN: 978-1-58576-172-2 | Price $119.95
ELI members receive a 15% discount on all ELI
Press and West Academic publications.
To order, call 1(800) 313-WEST,
or visit www.eli.org or westacademic.com.
Notice & commeNt
25 Years: What a
Long, Strange Trip
T
his issue marks a quarter century
since I joined ELI as editor of The
Environmental Forum and began this
column. I never would have predicted
how long, nor how much has changed,
and yet how much has remained the
same.
To start with how much has
changed. When I began, articles were
sent as manuscripts in large manila
envelopes. If an article was accepted,
negotiations would commence over
getting the article onto a disk. Many
manuscripts were produced on typewriters, so somebody had to keyboard
the article. Disks were then over five
inches in diameter and required special
mailers. ELI didn’t have a network yet,
so even folks in adjacent offices had to
walk a disk to his or her colleague when
working on a common project. Our
computers were Leading Edge Model
Ds, operating at 4.77 megahertz and
with 30 megabytes on the disk.
Today’s computers are nearly a thousand times as fast and ten thousand
times as capacious. Articles, artwork,
photographs, advertisements, galleys,
and page proofs shuttle to and from my
computer and the twenty or so contributors in each issue, and eventually
the entire 100 megabytes of the Forum
itself go to our printer all via the internet. The Forum as a digital product has
been available on the ELI website since
1999. Members can access back issues
and, soon, an index.
When I started, staff didn’t have
their own phone numbers; rather ELI
had two lines and a receptionist. Email
and the web didn’t exist nor did voicemail. We relied on phone calls and letters. Today I get maybe one phone call
a day but send and receive fifty emails
in that time. I can’t remember the last
time I sent somebody a letter. The email
system is so much better. I am able to
keep the pulse of individual contributors and land each on my desk when
time is available, and send back a proof
via the same method in just a few days.
I used to get galleys back by fax. Now,
my fax has died from lack of use. Proofs
are scanned and emailed. Even technologies as revolutionary as the fax, then
new when I started, have fallen by the
wayside in the internet era.
When I started, the buzz was that
Congress would continue the environmental revolution by reauthorizing the
Clean Air Act. President George H.
W. Bush was behind it, and so where
leading lights in the Congress, then in
Democratic hands. The two parties
worked together to create the act’s innovative permitting program and an
experimental trading system to reduce
acid rain. Meanwhile, the Forum was
“Think twice before submitting
a state plan — which could lock
you in to federal enforcement
and expose you to lawsuits —
when the administration is
standing on shaky legal ground
and when, without your support,
it won’t be able to demonstrate
the capacity to carry out such
political extremism.
“Refusing to go along at this time
with such an extreme proposed
regulation would give the courts
time to figure out if it is even
legal, and it would give Congress
more time to fight back.”
Senate Majority Leader Mitch
McConnell (R-KY) on EPA’s
climate regulations in the
Lexington Herald-Leader
observing the 20th anniversary of the
enactment of the bedrock laws in a series
that ran all year called “From NEPA to
CERCLA.” Everyone knew the revolution was continuing. When the Clean
Air amendments were passed, the Forum marked the occasion with a cover
story under artwork by Henry Payne
showing an exhausted horse collapsing
with its nose across the finish line. That
followed a motif introduced by founding editor Bud Ward, who in each is-
Four Republican Icons Call for Climate Action Now
Each of us took
turns over the past
43 years running the
Environmental Protection Agency. We served
Republican presidents,
but we have a message that transcends
political affiliation: the
United States must
move now on substantive steps to curb climate change, at home
and internationally.
There is no longer
any credible scientific
debate about the basic
facts: our world continues to warm, with the
last decade the hottest
in modern records, and
the deep ocean warming faster than the
earth’s atmosphere.
Sea level is rising.
Arctic Sea ice is melt-
24 | T H E E N V I R O N M E N T A L F O R U M
ing years faster than
projected.
The costs of inaction
are undeniable. The
lines of scientific evidence grow only stronger and more numerous. And the window of
time remaining to act is
growing smaller: delay
could mean that warming becomes “locked
in” . . .
President Obama’s
. . . climate action plan
lays out achievable actions that would deliver
real progress.
— William D.
Ruckelshaus, Lee
Thomas, William K.
Reilly, Christine Todd
Whitman in the New
York Times
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
Notice & commeNt
sue printed an artwork showing a horse
race with the various bills in progress in
the Congress. The Forum kept to this
theme with debates on reauthorizations
of the Resource Conservation and Recovery Act and the Clean Water Act.
Needless to say, none of that happened.
The horse race was over.
But as Congress ceded its lead role in
environmental policymaking, the pace
of regulation continued. And as editor
of the magazine for environmental professionals, I had a front-row seat. The
existing statutes were continually rolled
out in rulemakings and enforcement
actions, and many laws demanded
tightening of standards every few years.
And the judiciary was an active partner
in ensuring that rules came out on time
and were enforced. Oddly, since it was
state recalcitrance that led to passage of
federal statutes (based in many cases on
laws and programs from outliers like
California and New Jersey), the states
were in many cases enthusiastic in their
roles. And give the federal EPA credit:
it put pressure on the states and stepped
in where necessary to avoid backsliding.
A
mixture of progress and frustration would be my summary of the
last quarter century. My very first column dealt with an example of climate
change denialism which, sadly, continues to this day. Majorities of Americans
want to see action on global warming,
but only minorities are willing to make
the necessary adjustments. Just look at
the blossoming of sport utility vehicles,
which basically didn’t exist in 1990;
today half of all vehicles sold are light
trucks.
Progress has been made in the past
25 years, but not fast enough to deal
with global threats. I am glad that our
readership, the environmental profession, has been instrumental in those
gains. I hope when I leave this post
that I can say in looking back that the
profession was instrumental in cementing those gains, erecting a platform for
further progress and saving the planet.
Notice & commeNt is written by the
editor and represents his views.
N E WS
T H AT ’S
Pollution solution: The Water
and Environment Journal has a novel
method for testing water for pollution,
in this case raw sewage stemming
from homes’ septic systems near
streams and lakes.
“Researchers at the University
of Sheffield in England are using
tampons’ absorbent properties to
science’s advantage,” according to a
writeup in This Week. “Their study
. . . found that tampons absorb ‘optical brighteners’ found in common
cleaning products, and the particles
make the tampons glow under ultraviolet light. By dipping tampons into
rivers, the researchers believe they
can detect where sewage is seeping
into the water stream from nearby
households.”
According to the magazine, scientists left tampons attached to rods in
waterways in and around Sheffield.
After three days, several of the tampons glowed under ultraviolet light, indicating pollution, and the miscreants
were apprehended, or in this case told
to retrofit their pipes.
Grist for the mill: It’s okay to pee
in the ocean, according to the online
magazine Grist, known for its irreverent approach to environmental matters. And boy did they ever look into
the situation.
Its report notes that urine is mostly
saltwater, not unlike the ocean. In
fact, the only real pollutants are urea
and creatinine, present only in tiny
amounts. They then run through the
numbers. It turns out if everyone in
the world relieved themselves simultaneously in the Atlantic Ocean,
it would be scarcely detectable by
chemists’ most precise instruments.
That sounds good, but they also
point out that ocean-going mammals,
many of them huge, disgorge gallons
of urine, and nobody is concerned
about their activities. At least till now.
More barnyard humor: For some
time now, this column has reported
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
R E U S E D
on the global warming potential of
bovine flatulence. But we didn’t realize till we read the following item
just how dangerous cow farts really
are.
According to Agence FrancePress: “Flatulence from 90 cows in
a German barn sparked a methane
gas explosion that damaged the
building and left one cow slightly injured with burns . . . . In the barn for
90 dairy cows, methane built up for
unknown reasons and was probably
ignited by a static discharge, exploding in a darting flame.”
And more funny beavers: If
we recall correctly, it was Michigan
DEQ that first began taking beavers
seriously in floodplain management.
And now this: “More than 60 years
ago, Idaho Fish and Game dropped
beavers out of a plane and parachuted them into the state’s backcountry,” according to Boise State Public
Radio. “Idaho Fish and Game has
always struggled with problem beavers; those critters who get too close
or too used to city life. Trapping and
re-homing them into the wild can be
tough. It’s expensive and it’s hard to
find good habitat for the beavers.”
A plucky public servant decided
that a local wilderness area was a
perfect spot for miscreant beavers,
but there were no roads and packing
the beavers in by mule was also out
— mules don’t like beavers.
But it was just after World War
II, and Fish and Game decided to
make use of an army surplus item:
cloth parachutes. It ran through
a cost-benefit analysis. Placing a
breeding pair of beavers by parachute was only $30. Some 76 were
successfully emplanted, and the
wilderness area was protected and
blessed with some prime habitat.
The beavers that couldn’t give a
damn for good behavior found they
could indeed give a dam for the
environment.
M A Y / J U N E 2 0 1 5 | 25
26 | T H E E N V I R O N M E N T A L F O R U M
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
Offshore Aquifers
The news of possibly vast reserves of groundwater trapped under continental shelves only
heightens the need for improved overall governance of resource extraction and utilization.
Our past exploitation of global underground water reserves is mute testimony
Renee Martin-Nagle is a Ph.D. Researcher in transboundary aquifers at
the University of Strathclyde in Glasgow, Scotland, and a visiting scholar at
the Environmental Law Institute.
M
any of us have heard that there is a
global water crisis looming in the
near future, but the facts supporting that concern may be murky in
our minds. Are too many demands
being placed on already over-stressed supplies? Is
our water too polluted? Are we truly running out of
fresh water? The answer to all of these questions is
“Yes,” which should be a troubling response, since
land-based species like humans cannot live long
without potable water. In the United States, safe
drinking water has flowed freely from the taps for
so long that we have assumed its eternal availability. Recent droughts in the Midwest and California
have ushered water scarcity into the headlines, and
the reaction has been to seek more sources. Similar
shortages are showing up around the world, with
the same reaction to find more water. Where can
additional resources be obtained?
Surface waters, such as rivers, lakes, and wetlands, provide water for domestic, industrial, agricultural, and ecosystem needs. However, fresh
water lying in underground aquifers exceeds the
volume of potable surface water by many times.
Contrary to common beliefs, groundwater does not
lie in pristine underground lakes but rather flows
within and among porous rocks. Aquifers are normally characterized as either recharging or non-recharging. Recharging aquifers, as the name implies,
enjoy a permeable relationship with the surface that
allows water reserves to be replenished by rainwater,
streams and rivers, or runoff. Usually lying close to
the surface, recharging aquifers are more accessible
and thus more vulnerable to over-use and pollution
— ask any Superfund lawyer.
Non-recharging, or confined, aquifers generally
lie deep beneath the surface, and their porous rocks
are cordoned by impermeable layers such as sedimentary limestone or dolomite rock. Occasionally,
the water in confined aquifers became trapped as
tectonic plates shifted, especially during the Pliocene Age, allowing them to remain undiscovered
until recent technology permitted deep drilling.
These so-called fossil aquifers have sheltered their
liquid treasure for thousands to millions of years
and are especially valuable because they contain
pristine water that requires little to no treatment
before use. Interestingly, the presence of fossil waters is confirmed by testing for the absence of radioactive elements that spread to all surface waters
after detonation of the first atomic bombs in the
1940s.
Any extraction (or abstraction, in water jargon)
from a confined aquifer is akin to mining a nonrenewable resource, so exploitation should be governed with care and prudence. Unfortunately, fossil aquifers that have been discovered to date have
been subjected to such intense extraction that their
reserves are expected to be exhausted within the
next few decades.
As water tables in many areas around the world
are retreating to ever-greater depths due to over-
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
M A Y / J U N E 2 0 1 5 | 27
extraction, predictions of newly discovered offshore
aquifers containing vast quantities of brackish or
slightly saline but treatable fresh water have been
proffered. In particular, in late 2013 a group of
scientists announced that numerous fossil aquifers
may be lying under continental shelves around the
world. The global press immediately reacted, issuing gleeful announcements that the water crisis had
been resolved, an event that presumably would allow us to continue utilizing the resource without
significant limitations and without much regard for
the needs of future generations.
needs. The fresh water flowing through rivers, lakes,
and wetlands constitutes a very small percentage of
surface water — far less than 1 percent. However,
a volume perhaps a hundred times greater than the
amount of fresh water on the surface lies in groundwater aquifers, largely out of sight and difficult to
measure accurately or regulate effectively in the
public interest.
The human population has now surpassed seven
billion persons, each one needing water to quench
thirst, support food production, and provide for
hygiene. Almost a billion people, called the bottom billion, currently have physical scarcity of fresh
water, due to a combination of drought, overuse,
mong the topics being discussed as a
and pollution, and that number is expected to
result of the recent debates over global
double in ten years. Projections indicate that by
shortages and possible new reserves is
2030 there will be a 40 percent shortfall between
the interesting question of how water
water demand and water availability, largely due to
arrived on our planet in the first place.
increasing need for agricultural production to feed
Under the prevailing theory, waour burgeoning population. Beter came to the Earth during its
cause of its volume, groundwater
formation via collisions with iceis being sought more urgently in
bearing asteroids. Comets were
order to meet current and future
Should undersea aquifers
also suspected of being waterneeds. For this reason, predicbe found, then scholars,
bearers to the young Earth, but
tions of offshore seabed aquifers
politicians, and diplomats
isotope tests conducted by the
were greeted with great enthusiwill have to determine
European Space Agency’s Rosetta
asm.
spacecraft last year disproved
Should supplementary wawhich legal regime(s)
that theory by showing that the
ter
reserves be found to exist in
should guide access to
chemical composition of waundersea aquifers, then scholars,
and utilization of an
ter on comets differs from the
politicians, and diplomats will
unexpected cache of a vital
chemical composition of water
have to determine which legal
on Earth. Also recently, a group
regime(s) should guide access to
resource
of scientists has postulated that
and utilization of an unexpected
hydrogen and oxygen stored in
cache of a vital resource — surthe Earth’s mantle could comface water treaties, groundwater
bine into water under certain conditions, providing
practices, marine law, or a hybrid of all of them.
a significant boost to planetary reserves. But unless
Additional complications will naturally arise where
Earth meets with another celestial traveler carrying
offshore aquifers straddle the marine territories of
frozen water crystals or we crack the nut on submore than one nation. Regardless, considering the
surface H2O formation and abstraction, the quandire predicament that has resulted from our current
tity of water on the planet will not increase. Many
philosophies and methods of water use, the discovoutside the water profession may not realize that
ery of potential new resources should be seen as an
the amount of fresh water on and in our planet is
opportunity to make a fresh start in our attitudes
therefore basically finite.
toward and usage of the most critical of resources.
The vast bulk of water on the Earth — ninetyA new, more thoughtful approach to water goverseven percent— circulates around the globe in our
nance would provide for the future instead of focusoceans and seas, unusable for domestic or agriculing only on the present. Due to a lack of a conduit
tural purposes without undergoing expensive desalto the land surface and unlike recharging aquifers,
ination treatment. Of the remaining three percent,
confined fossil aquifers and offshore aquifers do not
slightly more than two-thirds is frozen in glaciers
serve ecosystems, so their use can be planned withand ice caps, and is thus not accessible for our
out concern for effects on other species.
A
28 | T H E E N V I R O N M E N T A L F O R U M
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Reprinted by permission from The Environmental Forum®, May/June 2015
Offshore aquifers have a different gestation proindustrial use. Expected brackish water would have
cess from land-based fossil aquifers. The Earth has
to undergo a series of treatments, such as filtration,
experienced several glacial periods, during which
chemical processing, and perhaps desalination.
fresh water on the planet was concentrated in ice
Logically, the treatment facilities would be located
caps and glaciers. Since much of the existing water
close to shore, producing their own environmental
supply was frozen and thus trapped on land, sea
impacts, and the means for transporting the water
levels were much lower, revealing more surface area
to its ultimate destinations — tankers, pipelines,
than we now see. During the last glacial maximum,
aqueducts, etc. — would have to be designed and
which was about 20,000 years ago, the seas were
implemented, creating additional environmental
over 400 feet below current levels, allowing humans
impacts.
to migrate from Asia into the Americas on the Siberian land bridge. Continental shelves were exposed
rior patterns for utilization of land-based
to the elements, allowing them to accumulate wafossil aquifers have consistently led to
ter through rain and runoff. Scientists theorize that,
over-abstraction and should provide cauwhen melting glaciers caused seas to rise and lands
tionary examples to guide future practo shift, vast stores of water were trapped in contitices. Since the water in fossil aquifers
nental shelves and now await discovery, treatment,
such as the Ogallala Aquifer in the United States,
and utilization.
the Nubian Sandstone Aquifer System in northAccessing the water in offshore aquifers will not
ern Africa, and the North China
be simple. Since the aquifers are
Plain Aquifer is pristine enough
located away from shorelines and
for domestic and agricultural use
under seawater, techniques simiwithout treatment, city manlar to those developed for offPrior patterns for
agers and farmers have tapped
shore oil and gas exploration and
utilization of landthem to support immediate and
extraction will doubtless have
based fossil aquifers
ever-increasing demands. The
to be employed, using knowlhave consistently led
reserves in the four aquifers of
edge gained from the more than
the Nubian system, which were
5,000 offshore platforms off the
to over-abstraction
confined 13,000 to 38,000 years
coast of the U.S. alone. Platand should provide
ago, are estimated by the Libyan
forms supporting large, comcautionary examples
government to last for 4,625
plex operations would have to
to guide future
years, but other sources estimate
be constructed and may include
that the aquifers will be unproa mix of bottom-founded drillpractices
ductive in 60–100 years at curing rigs, floating platforms, and
rent rates of abstraction. Estideep-water mobile units. All of
mates are even more dire for the
these operations would have improductive lives of both the Ogallala Aquifer, whose
pacts on ocean flora and fauna, including physical
discovery turned the Dust Bowl into the Farm Belt,
disruptions to the seabed, water pollution from the
and the North China Plain Aquifer, which likewise
petroleum products used to lubricate the machinirrigates China’s breadbasket. As a result of overery, and air pollution from diesel-powered operause, water levels have been dropping precipitously
tions. Since they are enclosed units, fossil aquifers
in these and other newly discovered fossil aquifers.
are extremely sensitive to contamination, so any
If crops feeding millions of people can no longer
drilling for exploration or abstraction will have to
be produced in the next few decades due to lack of
be carefully conducted to preserve the water quality.
water, one must wonder how nutritional needs will
Next, the water would have to be transported to
be met, and whether civil unrest will arise.
shore, either through pipelines installed from the
The Ogallala and North China Plain fossil aquidrill site or through tankers filled at the site of abfers are within the borders of a single country,
straction. Assuming that the presence of water is
meaning that, under generally accepted practices,
confirmed and demand for the resource supports
domestic laws govern them. The Nubian system lies
the effort and cost of abstraction and transport,
under Libya, Egypt, Chad, and Sudan, making it
treatment facilities will have to be available to rena transboundary resource. These four nations have
der the water suitable for domestic, agricultural, or
P
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M A Y / J U N E 2 0 1 5 | 29
established a joint authority with a goal of findTherefore, the international customary water law
ing common policies to address development and
pertaining to surface water systems has been exutilization. Meanwhile, Libya’s Great Man-made
tended to recharging aquifers; uses must be equitaRiver Project continues to withdraw millions of cuble and reasonable, and no significant harm should
bic meters from the aquifer daily in an attempt to
be allowed to occur to the aquifer or its waters. Exachieve agricultural self-sufficiency for the nation.
cept for the rare instances of multi-state agreements
Other transboundary fossil aquifers include the
like the Nubian joint authority, fossil aquifers fall
Continental Interclaire Aquifer underlying Libya,
outside of bilateral and multilateral frameworks.
Algeria, and Tunisia and the Qa-Disi Aquifer under
Offshore aquifers are not land-based, so an arguJordan and Saudi Arabia. In each case, the resource
ment could be made that principles governing seais being mined profligately, resulting in lower water
based resources should apply to them. Legal princitables and salt water intrusion from adjoining seas.
ples for marine resources have evolved according to
Unsustainable abstraction with no regard for future
customary practices as well. For centuries, a nation
generations should probably not serve as a model
controlled the sea as far as a cannon ball could be
for utilization of offshore aquifers.
shot, which was generally agreed to be about three
Legal regimes for land-based fossil aquifers folnautical miles. In the 20th century, President Harry
low rules and practices developed for land-based
Truman declared that the United States has soverresources, giving a state full sovereignty from the
eign rights to the resources in its continental shelf,
land surfaces within its borders down to the depths
which included substantial oil and gas deposits. A
accessible by existing technology.
few years later Chile and Peru
Utilization of resources crossing
assumed sovereignty over all
one or more boundaries either
seabeds that were two hundred
benefits the most rapid developer
miles from their shores, and
Some practices for surface
or is governed by some sort of
that practice rapidly became a
sharing agreement between the
norm that was adopted by all
water have appeared often
states.
coastal nations and was codienough in agreements,
Some practices and norms for
fied in the 1982 UN Conventreaties, conventions, and
surface water have appeared often
tion on the Law of the Sea. In
jurisprudence to have
enough in agreements, treaties,
UNCLOS, nations have full
conventions, and jurisprudence
sovereignty within their 12-mile
become characterized as
to have become characterized as
territorial sea, as well as soverinternational customary
international customary water
eign rights over the resources
water law
law, whose principal tenets reflect
that lie in the seabeds within two
attempts to resolve the traditional
hundred miles of their shores, an
conflict between upstream states
area that is called the Exclusive
and downstream states. The acEconomic Zone. Thus oil, gas,
cepted principle of equitable and reasonable use
and minerals within a state’s EEZ all belong to that
seems to favor upstream states, because those states
state, for it to access and utilize as it desires.
will often argue that any of their planned uses are
equitable and reasonable in light of national rehile oil, gas, and minerals fall within
quirements. On the other hand, the equally acceptthe jurisdictional rules of the EEZ,
ed principle of “no significant harm,” which is akin
water is much more critical to life,
to the precautionary principle, would seem to supand perhaps is deserving of its own
port the position of downstream states that need
regime. Within UNCLOS exists a
water in sufficient quantity and of sufficient quality
mechanism that could serve as a guide for a new
to serve their own needs. Other principles, such as
system. Much of the ocean bottom lies outside of
prior notice of actions that could affect the waterthe two hundred mile EEZ, and the UNCLOS neway and an exchange of scientific data, have also
gotiators agreed that any resources existing beyond
found their way into the lexicon of international
the EEZs would be treated as “the common hericustomary water law.
tage of mankind” and shared for the benefit of all
Aquifers that recharge through a connection to
nations. UNCLOS created an International Seabed
the surface often belong to a river basin system.
W
30 | T H E E N V I R O N M E N T A L F O R U M
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
Authority to make decisions about allocation of the
nations determining as a group how and when the
resources in what it called “the Area.” As of August
water resources should be used. Priority should be
2013, 165 countries and the European Union have
given to nations with the most need, and those naadopted UNCLOS, although the United States,
tions with a role in abstracting, treating or transwhich brokered its key principles during the neporting the water should be compensated, either
gotiations mostly to secure sovereign rights to sea
financially or through trade concessions.
lanes for naval ships, remains a very visible nonparty.
he presence of new sources of water must
Other UN-generated scholarship supports the
not be seen as a license to continue with
approach of treating water as a unique and prebusiness as usual. Rather, given the finite
cious resource. In 2003 the UN International
nature of the freshwater reserves, their
Law Committee undertook the task of designing
utilization should be carefully considered,
a model treaty that would address shared natural
with great weight being given to the needs of future
resources such as oil, gas, and fossil water. However,
generations. Indeed, perhaps the offshore aquifers,
in 2007, the visionary Special Rapporteur Chusei
once their existence has been confirmed, should be
Yamada officially recommended that the work on
left untouched for awhile, while our species adopts
transboundary fossil aquifers proceed separately,
better habits of conservation and management with
reasoning that “water is the life-supporting resource
respect to the water resources we
for mankind and there exists no
currently have.
alternative resource. While oil
Due to the confined structure
and natural gas are important
of fossil aquifers, every abstracresources, they are not essential
An argument could be made
tion is unsustainable. Should
for life and there are various althat principles governing
predictions of vast offshore
ternative resources.” Thus, oil
aquifers of semi-fresh water be
and gas were dropped from the
sea-based resources should
proven to be true, and should
scope of the model treaty, and
apply to offshore aquifers.
technical, financial, and dipdrafting of the UN Draft AquiLegal principles for marine
lomatic barriers to abstraction
fer Articles proceeded, with reresources have evolved
and utilization be overcome,
chargeable aquifers added to the
then humanity would be given
scope as well. Unfortunately,
according to customary
a rare opportunity to revise its
although the UN adopted the
practices
attitudes and behavior toward a
Draft Aquifer Articles without
precious commodity.
vote in 2008, the articles have
Since water is vital to all landnot received much attention or
based life forms, then perhaps
acceptance. Further, the nations
the old notions of sovereignty should be revisited.
involved in the negotiations expressed concern that
Rather than ownership of water following national
the water in aquifers not be viewed as a common
boundaries and territorial seas, a new regime might
heritage of mankind, desiring to retain whatever
be constructed whereby the reserves would be
sovereignty they may have over the resource.
viewed as a common asset belonging to all peoples.
In spite of past practices and attitudes toward
Under this new regime, decisions regarding the timgroundwater resources, we can hope that a more
ing, volume, and allocation of withdrawals would
altruistic approach will be taken with respect to offbe made not by one nation alone but by the comshore aquifers, whose waters have not yet begun to
munity of humankind. Having the water remain
fulfill any demand. The UNCLOS provisions rein place during what may be protracted negotiagarding shared resources could provide a starting
tions could be the greatest gift to our children. By
point, with the offshore aquifers being shared by
allowing concern for the human species as a whole
the nations of the world. Not every nation has the
to overcome parochial interests, nations might use
technological or financial ability to access, extract,
the fresh start provided by offshore aquifers to take
treat, and transport the water in the aquifers, and
a prudent, measured, and communal approach to
those nations without such abilities may be the
what may be among the last water reserves on the
ones most in need. A body similar to the Internaplanet. TEF
tional Seabed Authority could be established, with
T
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Reprinted by permission from The Environmental Forum®, May/June 2015
M A Y / J U N E 2 0 1 5 | 31
The Z-Tranche
Getting people out of cars and trucks and off their mopeds and into
public transportation is not an easy sell. Thus a dynamic new role for
multilateral development banks in the climate change mitigation saga
Michael Curley is a lawyer who specializes in environmental
finance. He is currently a visiting scholar at the Environmental
Law Institute. Lindsay Haislip has her degree in economics
and works in international finance and asset management at
Cambridge Associates, LLC
I
n 2010, the Asian Development Bank estimated the continent’s infrastructure needs at over
$3 trillion. With total outstanding loans of
about $80 billion at the end of 2011, the ADB
has thus far become only a marginal player in
the Asian development game — a role it is not
happy with.
Meanwhile, planet-wide, a major, unaddressed
need in the effort to reduce greenhouse gas emissions is to convince people to rely on, and perhaps even prefer, modes of transportation other
than automobiles and other private vehicles. Asia
accounts for 19 percent of global CO2 emissions
from the transportation sector. According to the
ADB, this number will rise to 31 percent by 2030.
Unfortunately, the cost of getting people out of
cars — and off their motorbikes and tuk-tuks -—
and onto urban mass transit is estimated in the
hundreds of billions of dollars. This is a daunting
number, and too rich a game for the ADB to play
a major role.
But numbers alone will not get people onto
buses and trams. To do this, public transportation systems must be safe, reliable, and inexpensive. This article will leave the important safe and
reliable aspects of this issue to the engineers and
traffic experts. It will look, instead, at the inexpensive side. We suggest a dynamic new opportunity
where the ADB and its sister multilateral development banks, or MDBs, can play a major role
despite their limited resources.
32 | T H E E N V I R O N M E N T A L F O R U M
The first task is to identify where the money
will come from to pay for mass transit projects
and their daily operation and maintenance. There
are two sources of transport revenue: fares and
subsidies. Together they constitute a zero-sum
game. If fare income goes up (more people abandon their private vehicles and take transit), fewer
subsidies will be needed. On the other hand, if
fare income declines, more subsidies will be needed. This means that the subsidies will have to be
diverted from other local government needs such
as housing, education, public health, and sometimes even food.
The converse side of this requirement is that
the more transit projects cost, the more pressure
they put on the finite resources of fares and subsidies. If costs are high and fares are increased to
cover them, then the mass transit alternative will
be less attractive and fewer people will take buses
and trams. The more costly the project, the more
the transit system — or city government — is
shooting itself in the foot. And, again, if raising
fares is not a political or economic option, then
the city must steal money from other vital programs.
Out of this financial conundrum, an ethical
mandate arises: if we are going to reduce GHGs
by getting people onto mass transportation, then
everything humanly possible must be done to
reduce the costs of transport projects; safe and
reliable systems must operate at the lowest pos-
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
sible cost to their riders and to the city they serve.
of getting $100,000, he gets $98,000. Both A and
Since MDBs alone lack the capacity to finance
B shared proportionately in the loss.
these expensive projects, a variety of private finanNow let’s look at the same situation with a difcial institutions are already participants alongside
ferent kind of partnership. This time we have A
MDBs, which substantially increases the volume
and Z who are the partners. And, again, this time
of projects able to be funded. When flogging mass
A has a 90 percent share and Z has a 10 percent
transit bonds to their sophisticated clients, bankshare. But this time, the partnership is not quoers put some stock in the fact that an MDB is a
ta share or share and share alike; rather it is risk
partner in the transaction. Sophisticated clients,
based. In this case, Partner A is entitled to the first
yes; but it doesn’t work for grandmothers and or900 rent payments and Partner Z is entitled to
phans. There is, however, a way to structure these
the last 100 payments. This is what the reinsurbonds as safe and still maintain the same or inance industry would call an excess or excess of loss
creased financing capacity.
position.
Bonds can be divided into categories of risk. The
As you can see, the excess concept in this exfinance mavens on Wall Street
ample refers to time. In total,
and in the City of London call
980 tenants pay their rent. Of
these subdivisions tranches, afthese 980 payments, A is entiter the French word for “slice.”
tled to the first 900 payments.
If we are going to reduce
So, what does this mean?
So, A gets the full $900,000.
Think of two investors who,
Z, on the other hand, is entigreenhouse gases by
together, own 1,000 aparttled to the last 100 payments,
getting people onto mass
ments that each pay $1,000 a
only 80 of which materialize.
transit, then everything
month in rent. That means the
This means that, instead of
humanly possible must be
two investors should receive
getting $100,000, Z only gets
$1 million a month. The key
$80,000.
done to reduce the costs
word in the last sentence is
In this example, in Wall
of transport projects
“should.” What do you think
Street or City parlance, A has
are the probabilities that all
an A-Tranche and Z has the Z1,000 tenants will pay their
Tranche. In our example, it is
rent fully and on time in any
the Z-Tranche that carries the
given month? What do you think are the probvast majority of the risk of loss. That is the usual
abilities that some won’t pay their rent at all?
terminology. In any investment paradigm, there
Now, what do you think the probabilities are
can be many tranches; but the Z-Tranche is always
that 500, or 50 percent, of the tenants will pay on
the one that carries this highest risk of loss.
time? Pretty good. What about 60 percent? Still
good. What about 90 percent? Probably okay.
hat is the practical effect of this
What about 99 percent? Definitely not. There are
risk-based tranche-ing and what
many reasons why a near-perfect payment score is
does it have to do with MDBs?
unlikely.
Typically, each tranche carries a difLet us say that A and B are partners in this real
ferent credit rating. Ratings from
estate enterprise. They are not equal partners. A
the three major credit rating agencies — Standard
is a 90 percent partner; B is a 10 percent partner.
& Poor’s, Moody’s, and Fitch — are based on risk
But they are equal partners in terms of risk. They
of loss, or non-payment. Ratings (using the Stanare share-and-share-alike partners, or what would
dard & Poor’s scale) range from AAA, the highbe called in the reinsurance industry quota share
est, to D, which are securities very likely to be in
partners. Now let us say that 20 tenants miss their
default. Ratings from AAA to BBB– are called inpayment this month, totaling $20,000 in lost
vestment grade. These are suitable investments for
income. This means that A and B are both out
grandmas and orphans. Securities with ratings of
some money. A is out $18,000, or 90 percent of
BB+ or below are called speculative investments or
the missing money. Instead of getting $900,000
junk. These investments are definitely not for the
this month, A only gets $882,000. B is also out
average person.
money, 10 percent of the missing rent. So instead
W
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M A Y / J U N E 2 0 1 5 | 33
Let’s say Standard and Poor’s will issue its highvestment horizons vary, but generally, private eqest AAA rating on 80 percent of a bond issuance
uity investors want out in a relatively short period
for an urban mass transport project. This bucket
of time, usually five to seven years. This doesn’t
is considered the A-Tranche, and (barring a global
work well with climate change projects such as
economic meltdown) is the least likely to default
urban mass transportation, which have a timeline
and most secure of the tranches. The remaining
of 20-plus years. Hedge funds are not generally as
20 percent can be split up into two tranches: the
time sensitive. As long as the underlying project
first 10 percent of the total can be considered the
is performing according to plan, and throwing off
B-Tranche portion, carrying more default risk
the projected ROI, then the hedge fund manager
than the A-Tranche, but still has a great deal more
will hang onto it.
security than the final 10 percent of the investPrivate equity funds and hedge funds get their
ment, which is, of course, the Z-Tranche. Grandmoney to invest from wealthy individuals and
ma and other risk-averse investors do not want to
large institutions such as pension funds, which are
invest in a bond that carries the risks associated
some of the major players in these sophisticated
with the Z-Tranche portion. But depending how
investment vehicles. The California Public Emfinancially risqué grandma is,
ployees Retirement System is
she might even invest in the
the largest pension fund in the
B-Tranche. The risk of loss is a
United States. It has $294 bilbit higher, but so is the interlion of assets, of which $31.3
This is a win-win-win
est rate.
billion, or a little over 10 persituation. The public gets
The point here is that the
cent, is invested in private eqcredit rating closely correlates
uity. Its benchmark return rate
the secure investments. The
with the interest rate on the
for its private equity investmultilateral development
security in an inverse way: the
ments for the fiscal year endbanks get to play a major role
higher the rating, the lower
ing last June was 15.4 percent.
in climate change. And riders
the interest rate. Although the
Contrast the private equity
correlation is not quite as clear
annual
payments with an Aget access to reliable, safe,
when it comes to term, in genTranche
ROI on the same inand inexpensive mass transit
eral, the higher the credit ratvestment. For a $1 million ining, the longer is the term for
vestment at a 10 percent interwhich average investors will
est rate, a five-year private eqinvest. Lowest interest rates
uity (Z-Tranche) term would
and longest terms result in the lowest possible
require annual payments of $263,797. With a
payments on debt for projects like urban transseven-year term, the annual payments would be
port. This is the direction climate change projects
$205,406. The A-Tranche, on the other hand, will
like mass transit need to go.
only require a 5 percent rate and a 20-year term.
As such, the A-Tranche annual payment would
be $80,243. You can see why a large Z-Tranche
ow to get there? Let’s look at the opis a real problem for climate change projects like
posite side of this example. This is the
urban mass transport. Z-Tranche payments are
Z-Tranche situation, where the risk of
2.5–3.3 times more expensive.
loss is very high and the credit rating
This is where the MDBs come into play; it is by
is very poor. Here again, the converse
buying the Z-Tranche that the MDBs can forge a
of the rule obtains. If the higher the credit rating,
major new role in climate change and create hunthe lower the interest rate, inversely the lower the
dreds of billions of dollars of safe investments for
credit rating, the higher the interest rate. In short,
risk-averse investors, and subsequently more cacertain investors are willing to accept more risk in
pacity for financing environmental and developreturn for a greater return on investment, or ROI.
ment projects.
These are typical Z-Tranche investors.
If an MDB took the Z-Tranche, there would
If grandma doesn’t invest in the Z-Tranche,
be little to no risk of loss on payments to other
who does? Z-Tranche investments are the realm of
investors. These other tranches would carry much
the most sophisticated investors, including private
lower interest rates. Furthermore, the increased seequity funds or hedge funds. For both of these
curity on the bonds with the removal of the risky
sophisticated investors, high risk of loss is not a
Z-Tranche means longer-duration bonds, even
problem as long as the ROI is high enough. Infurther decreasing the project sponsor’s financial
H
34 | T H E E N V I R O N M E N T A L F O R U M
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
obligation to investors. The lower the financial obligation to investors, the more they can afford to
lower fares for riders. This is a win-win-win situation. The public gets the secure investments. The
MDBs get to play a major role in climate change.
And finally for riders, access to reliable, safe, and
inexpensive mass transit systems will entice them
out of their cars and off their tuk-tuks, while making significant reductions in GHG emissions.
of 7 percent as their ROI. The ADB, however, is not
limited to a five-year term. It can go 20 years. This
means that the annual payment on the Z-Tranche —
if it were bought by the ADB under these terms and
conditions — would be $9,439,293.
If the private equity fund bought the ZTranche, the total annual debt service that the
city’s transport authority would have to pay
would be $103,027,099. If the ADB bought the
Z-Tranche, the total annual debt service payment
would be $82,351,819. As you can see, the private
et’s apply our theory to a transport projequity deal is 25 percent more expensive. As we
ect. Think of a $1 billion urban mass transaid at the beginning, our overarching goal is to
sit system in a major Asian city. Let us say
reduce project payments as far as possible so that
that the bankers structure the financing in
we can achieve the greatest reductions in GHGs.
three tranches: The A-Tranche, which is
As you can see from the math in the above
80 percent or $800 million; the B-Tranche, which
example, having the ADB take the Z-Tranche
is 10 percent or $100 million;
saves over $20 million a year,
and the Z-Tranche, which is
or over $400 million over the
also 10 percent or $100 mil20-year term of the financing.
lion.
That $400 million would othThe executive boards of
Let us say that the Aerwise come out of the pockets
Tranche carries an interest
of transit riders or out of the
directors, who represent the
rate of 5 percent and a term
subsidies that Asian cities give
country shareholders of the
of 20 years. The annual paytheir people for other vital sermultilateral development
ment required would be just
vices. In short, if the ADB inbanks, need to step up to the
$64,194,070. Let us say that
vested in the Z-Tranche there
the B-Tranche also has a 20would be $400 million less
type of investments that can
year term but has a slightly
poverty in Asia.
mean a real difference to the
higher interest rate of 6 perThe MDBs have been tipnations they serve
cent. The annual payment on
toeing around the GHG rethe B-Tranche (one eighth the
duction game for several years
size) would be $8,718,456.
now. They have taken to issuNow let us contrast a purchase
ing green bonds, the proceeds
of the Z-Tranche by a private equity fund with the
of which they invest in environmentally friendly
same purchase by the ADB.
projects, including urban transit. But the investLet us say the private equity fund in the
ments they have been making are the old-fashCalPERS portfolio buys the Z-Tranche. To meet
ioned quota share, share-and-share-alike loans.
their self-imposed hurdle rate of 15.4 percent and
They have not yet joined the ranks of sophisticatwith a five-year term, the Z-Tranche would have
ed institutional investors. Why should they? Why
to have an ROI of $30,114,573. This is almost 3.5
would the ADB (for example) be willing to accept
times the ROI on the B-Tranche. Furthermore, it
a lower-than-market rate on its investment in the
is just less than 50 percent of the ROI on the Arisky Z-Tranche? It’s because the Asian DevelopTranche, which is eight times bigger.
ment Bank’s middle name is “development.” It’s
Now, as we observed above, the ADB doesn’t
not just another bank but a development bank.
want to be marginalized. It wants to continue to
It can take some risks that are consistent with its
play a major role in the development of the reoverriding responsibility to support the developgion. It cannot furnish a major part of the vast
ment of the countries of the continent. The same
sums of money needed for development; but it
applies to the other MDBs.
can supply a critical part. Here’s how.
The MDBs have the full legal authority to make
If the ADB were to purchase the Z-Tranche, the
Z-Tranche investments. The executive boards of
ADB’s cost of funds — at AAA rates — is about
directors, who represent the country shareholders
5 percent (about the same as the AAA-rated Aof the MDBs, need to direct their staffs to step up
Tranche). Let’s add in another 1 percent for expenses
to the type of investments that can mean a real
and another 1 percent for profit, for an overall rate
difference to the nations they serve. TEF
L
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
M A Y / J U N E 2 0 1 5 | 35
C OV E R
S TO RY
C
Birds and
Bats and
Blades
Long-standing federal laws protecting
raptors and other migratory birds plus
rare flying mammals, all of which are
challenged species, are already affecting
wind energy development in the United
States. New regulations and industry
practices may help
Gordon Smith is counsel at Verrill
Dana in Portland, Maine. His work
focuses on environmental and
energy law, land use regulation
and appellate litigation. Gordon
has represented wind power
developers in all phases of project
development, from local, state, and
federal permitting to appellate work before local, state, and
federal tribunals.
36 | T H E E N V I R O N M E N T A L F O R U M
ompared with say, house cats and windows, wind turbines are responsible for
a tiny sliver of bird and bat deaths in the
United States. According to a variety
of sources, wind turbines account for
100,000–400,000 bird deaths annually. That may
sound like a lot, except that most sources estimate
that some 500 million birds are killed annually by
cats and almost a billion birds are killed every year
by flying into windows in houses and other buildings. Bird and bat fatalities in the United States associated with wind power are regulated and minimized by avoiding potential sites that are inherently
too “birdy” and by instituting operational measures
in which turbine blades don’t spin in conditions
when risk to birds and bats is highest. Nevertheless,
liability for the death or injury of birds and bats
remains a potentially significant hurdle for wind
power developers because, unlike noise and scenic
impacts, which can be largely quantified, described,
and analyzed prior to permit issuance and construction, actual bird and bat fatalities can only be quantified over the operational lifespan of the project.
Bird deaths and injuries can be prosecuted under the Migratory Bird Treaty Act, which protects
over 1,000 species of birds. Death and injury to
bald or golden eagles can be prosecuted under the
Bald and Golden Eagle Protection Act. In addition, the Fish and Wildlife Service is currently
evaluating whether to list the northern long-eared
bat, which is found in 39 states and Canada from
the Atlantic Coast to eastern British Columbia, as
threatened or endangered under the Endangered
Species Act. If the species is listed, wind power
projects within the northern long-eared bat’s
range will be exposed to liability under the ESA.
However, under the MBTA, BGEPA, and the ESA
there are strategies available to wind power projects that will lessen the risk of potential liability
and enforcement action.
The MBTA was enacted in 1918 because of
concern that migratory bird populations were in
serious decline due to the demand for bird feathers
used to decorate women’s hats and other fashions
of the time. As such, the MBTA is one of the earliest federal environmental statutes and is something
of an anachronism, currently lacking a mechanism
that would permit incidental take by a wind power
project and giving FWS a great deal of prosecutorial discretion in its enforcement.
The MBTA establishes that it is “unlawful at
any time, by any means or in any manner” to harm
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
or kill a protected migratory bird unless FWS has
enacted a regulation that exempts the otherwise
prohibited activity. Nearly every bird native to
the United States is covered by the law. Take of a
single migratory bird in violation of the MBTA is
a misdemeanor crime punishable by a fine of up
to $15,000 and six months’ imprisonment. The
breadth of the law and the fact that FWS has not
created an exemption for wind power means that,
under a literal reading of the statute, wind power
projects will almost inevitably “violate” the MBTA.
Despite the difficulties presented by the breadth
of the MBTA, wind power developers can take
comfort in FWS’s development of its March 2012
Land-Based Wind Energy Guidelines and the relat-
ed April 2013 Eagle Conservation Plan Guidance.
These guidelines create a tiered approach for assessing potential impacts to protected species and identifying measures for minimizing and mitigating
risks, including initial site evaluation, field studies
and impact prediction, and post-construction surveys and mitigation strategies when appropriate. In
essence, the guidelines provide a framework for developers and FWS to determine whether a particular site is appropriate for wind power or whether
it poses too great a risk to wildlife resources. The
guidelines are the result of a multi-year process that
included extensive public review and comment and
participation by a range of stakeholders, including
federal and state agencies, tribes, conservation organizations, and the wind energy industry.
A
lthough the guidelines are voluntary,
FWS says that compliance constitutes
an effective method of minimizing harm
to birds protected by the MBTA and
BGEPA. Accordingly, there is significantly less risk that FWS would enforce these
acts against a wind power project that has been
developed and operated consistent with the
guidelines.
The only two instances of MBTA enforcement
actions brought against wind power projects corroborate FWS’s emphasis
on compliance with the
guidelines. In December,
FWS and the Department
of Justice enforced the
MBTA against Portland,
Oregon-based PacifiCorp
Energy in connection with
the deaths of 38 golden eagles and 336 other migratory birds at the company’s
Seven Mile Hill and Glenrock/Rolling Hills projects
in Wyoming. Together
the projects consist of 237
wind turbines. In the plea
agreement entered in U.S.
District Court in Wyoming, PacifiCorp agreed
to pay fines that add up
to $2.5 million. The two
projects at issue were developed between 2006 and
2008. Neither project required federal permitting,
nor were they reviewed by FWS prior to operation.
The Service contends that the projects were built
contrary to agency guidance in effect at the time
and with the knowledge that preconstruction surveys indicated that take of golden eagles and other
protected migratory birds was likely.
In the PacifiCorp plea agreement, FWS reiterated its position that it “focuses its resources on
investigating and prosecuting those who take migratory birds without identifying and implementing reasonable and effective measures to avoid take,
exercising enforcement and prosecutorial discretion
regarding individuals and companies that make
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
M A Y / J U N E 2 0 1 5 | 37
good-faith efforts to avoid the take of migratory
incidental take that stems from otherwise lawful acbirds.”
tivity. If these projects had been located within the
The MBTA enforcement action against Pacifijurisdictions of the Eighth or Ninth Circuits (i.e.,
Corp Energy is the second of its kind, following a
much of the western and central United States),
November 2013 plea deal entered by Duke Energy
which have held that the MBTA does not prohibit
Renewables in connection with the deaths of 14
such non-intentional harm to migratory birds,
golden eagles and 149 other protected migratory
FWS may have faced an uphill battle enforcing the
birds, also at two Wyoming wind power facilities.
statute against otherwise lawfully operating wind
The fines in the Duke Energy case totaled $1 milpower projects. A number of circuits have yet to
lion. The birds were killed at the company’s Campaddress whether the MBTA only prohibits huntbell Hill Wind Energy Facility and
ing and other intentional take of
Top of the World Wind Energy
migratory birds, or whether it also
Facility, which together consist of
prohibits incidental take from ben132 wind turbines. Neither Duke
eficial activities such as renewable
The Service has
project required FWS sign-off prior
electricity generation.
investigated 17 wind
to operation; however, the comIt is likely that we will continue
power projects and
pany voluntarily consulted with
to see enforcement actions against
referred seven of
FWS during the pre-construction
wind power projects under the
resource analysis and voluntarily reMBTA. During an oversight hearthose investigations
ported bird mortality to the Service
ing held by the House of Repreto the Department
once the project was operational.
sentatives Committee on Natural
of Justice for further
In the plea agreement, FWS noted
Resources in March 2014, FWS
investigation and
that at the Top of the World project
Director Dan Ashe testified that the
alone, predictive modeling indicatService was investigating 17 wind
potential prosecution
ed that the facility would cause 20
power projects and had referred
raptor deaths per year, with golden
seven of those investigations to the
eagles facing the most severe imDepartment of Justice for further
pacts. FWS also stated that the pre-construction
investigation and potential prosecution under the
surveys Duke conducted were inadequate to deterMBTA, BGEPA, or the ESA.
mine appropriate turbine siting to minimize take of
migratory birds. Further, a recently active golden
ne positive development for wind
eagle nest was located half a mile from the nearpower proponents is a recent collecest proposed turbine. Once the Top of the World
tion of federal district court decisions
project was operational, it had reported to FWS the
rejecting claims that federal agencies
death of 105 migratory birds, including 11 golden
that authorize wind power projects vioeagles within its first 12 months of electricity genlate the MBTA and BGEPA because the projects
eration.
would almost inevitably result in take of protected
The similarities between the PacifiCorp and
birds during their operational lifespan. The most
Duke cases are instructive. Both cases targeted projvisible of these cases is Public Employees for Enviects that FWS apparently believed were inconsisronmental Responsibility v. Beaudreu, which is part
tent with contemporaneous agency guidance. Both
of the 13-year-long chain of litigation brought by
cases involved very high golden eagle mortality.
opponents of the Cape Wind project proposed for
And both cases enforced the MBTA against projconstruction off the Massachusetts coast. The U.S.
ects located in Wyoming. That all the projects were
District Court for the District of Columbia granted
in Wyoming may be related to the fact that federal
summary judgment in favor of the federal Bureau
courts in some parts of the country have limited
of Ocean Energy Management and developer Cape
the reach of the MBTA to apply only to intentional
Wind Associates on plaintiffs’ claim that BOEM
take due to hunting and other activities specifically
violated the MBTA by approving the Cape Wind
intended to kill birds.
project, even though it was acknowledged that the
Wyoming is located in the jurisdiction of the
project, once operational, was likely or even assured
U.S. Court of Appeals for the Tenth Circuit, which
has extended the scope of the MBTA to prohibit
Continued on page 40
O
38 | T H E E N V I R O N M E N T A L F O R U M
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
Sidebar
Save Birds Now or Birds Later
D
ue to a combination of climate change, habitat loss,
water diversions, pesticides
and other toxics, and other factors,
the Earth is now facing the sixth
mass extinction event in its geological history, on a par with the asteroid that killed the dinosaurs and
much else.
The international goal for fighting climate change, as adopted
and reaffirmed at several United
Nations climate conferences, is to
keep global average temperatures
from rising more than two degrees
Celsius above pre-industrial conditions. Even an increase at that
level would have very negative consequences to humans as well as
other species — the low-lying island
nations and large chunks of Bangladesh would be under water, for
example — but staying within this
range is a colossal challenge.
Every scenario for staying below
two degrees includes a massive increase in the use of renewable energy, on top of major improvements
in energy efficiency. Most scenarios
also rely heavily on nuclear power
and on the continued use of fossil
fuels but with carbon capture and
sequestration; those that do not rely
even more heavily on renewables.
One of the most detailed quantitative examinations of possible
scenarios is from the Deep Decarbonization Pathways Project
of the Sustainable Development
Solutions Network and the Institute
for Sustainable Development and
International Relations. In November, this group released its report
on pathways for the United States.
Its numbers show that, even with
an aggressive efficiency program
and a considerable increase in
nuclear and carbon capture, it will
be necessary, every year from 2016
through 2050, for the U.S. to add
2,500 megawatts of wind energy
and 1,400 megawatts of solar en-
ergy. That’s like five Cape Winds
we will be able to come close to the
and four Ivanpah solar projects for
Deep Decarbonization scenario for
each of the next 35 years.
added renewables. If most large
Alas, we have zero Cape Winds.
projects must endure years of deThat project was proposed in 2001; lay, and if many project developers
struggled through a decade and
are scared away by the uncertain
a half of permitting and litigation
outcomes, it is hard to imagine how
delays (some of them concerning
we will achieve the magnitude of
species impacts); and may have
project construction that is needed
suffered a fatal blow this year when to meet our climate goals.
the companies that had agreed
Thus the questions arise: Is slowto buy much of its power output
ing down or stopping renewable
pulled out, frustrated by all the deprojects in order to protect certain
lays. So far there is no commercial- bird and bat populations ultimately
scale offshore wind generation at
harmful to avian and other species
all in the United States.
overall? If there are mass extincAs Gordon Smith’s accompanytions due to climate change and
ing article recounts, the impacts
other factors, won’t some of the
of wind turbines on birds and bats
animals we are trying to protect be
have posed major problems for
gone anyway, together with untold
wind developers, both in securing
numbers of others?
the necessary permits to build and
This raises the further question:
in operating the turbines.
Should we create special
Several large wind projexemptions or at least
ects other than Cape
expedited procedures for
Wind have been delayed
renewable energy projor cancelled due to avian
ects, and allow them to
impacts.
go through even if they
Large-scale solar
are bad for some birds
development is facing
and bats? This is a tragic
similar challenges. The
choice, but it may be
Michael Gerrard
Ivanpah solar project in
compelled by society’s
California has problems because
failure to come to grips with the
birds are killed if they fly into the
climate problem two decades ago,
concentrated solar rays. California
when scientists were already soundis preparing a Desert Renewable
ing the alarm and there was still
Energy Conservation Plan for the
time to act and avoid either tragic
Mojave Desert, which would seem
choices or environmental disaster.
to be an ideal place for large-scale
The current system of U.S. ensolar facilities. However, the draft
vironmental law, with its multiple
plan would deem only about 2 mildelays and veto points, may be inlion acres of the 22.5-million-acre
compatible with the scale and pace
desert environmentally suitable for
of the transformation of the energy
solar and wind development, and
system that is needed to meet the
about half of that was tentatively
climate problem. It is high time
rejected based on other issues.
that we live the slogan: think globThe U.S. Environmental Protection
ally, act locally.
Agency has asserted that even this
is too permissive of renewable proj- Michael B. Gerrard is Andrew Sabin Professor of Professional Practice and director
ects, partly due to avian impacts.
of the Sabin Center for Climate Change Law
At this pace and with these conat Columbia Law School.
straints, it is questionable whether
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
M A Y / J U N E 2 0 1 5 | 39
to result in take of protected migratory birds. The
a listed species. A take is broadly defined and means
Court found that there was not a sufficiently rea“to harass, harm, pursue, hunt, shoot, wound, kill,
sonable certainty that take under the MBTA would
capture, or collect.” Within that definition, the
occur because the project has yet to be built, statterm “harm” includes “significant habitat modificaing: “Even if the taking of migratory birds takes
tion or degradation where it actually kills or injures
place at some point in the future, it is clear that
wildlife by significantly impairing essential behavno such taking has yet occurred and is not immiioral patterns, including breeding, feeding, or shelnent at this point because construction of the Cape
tering.” If the northern long-eared bat is listed as
Wind project has not begun and the wind turbine
either threatened or endangered, any unauthorized
generators that might take migratory birds are not
take could result in stiff penalties under the ESA,
operational.”
including criminal fines up to $50,000 and a year
There has also been a trio of MBTA cases dein prison per violation.
cided in the Southern District of California, where
The ESA also includes mechanisms that allow
courts have ruled against wind power opponents’
FWS to authorize otherwise lawful activities that
claims that federal agencies violated the MBTA
may result in an incidental taking to proceed. Secby authorizing wind energy projects without first
tion 7 and Section 10 of the ESA allow the govobtaining take permits from FWS. Those three
ernment to authorize individual entities to proceed
decisions have been appealed to the Ninth Circuit
with projects or activities that may incidentally
and consolidated on appellate review under docket
harm listed species, as long as certain conservation
number 14-55666. Briefing in the appeal was commeasures are put in place. Section 4 of the ESA aupleted at the end of January and a ruling should
thorizes FWS to exempt by rule entire categories
be forthcoming this spring or sumof activities from the prohibition
mer. Similarly, the U.S. District
on take when a species is listed as
Court for Maine recently granted
threatened. Section 4 authority for
summary judgment on MBTA and
FWS to exempt take by rule does
Courts have ruled
BGEPA claims in a pair of cases
not extend to species that are listed
against wind power
brought against the Army Corps
as endangered.
of Engineers for issuing Clean WaIn January, FWS proposed
opponents’ claims
ter Act Section 404 permits to two
a
Section
4 rule that would exthat federal agencies
wind power projects. This group
empt all incidental take of northviolated the MBTA by
of recent cases coming out of disern long-eared bat in areas that
authorizing projects
trict courts in the First, Ninth, and
have not been affected by white
D.C. Circuits suggests that the
nose syndrome. If FWS adopts
without first obtaining
proposition that federal agencies
this regime, wind power projects
take permits
can violate the MBTA or BGEPA
in areas unaffected by white nose
by merely authorizing the activities
syndrome would not be subject
of third parties is unlikely to gain
to liability for incidental take of
much traction in the court system.
northern long-eared bats. For the
In any case, another and possibly bigger ispurpose of the proposed rule, areas affected by
sue going forward for wind power projects is the
white nose syndrome means any area within 150
proposed listing under the ESA of the northern
miles of a county or district where white nose synlong-eared bat. In 2013, FWS proposed to list the
drome has been detected. White nose syndrome
northern long-eared bat as an endangered species
has been detected in parts of states and provinces
due to a massive decline in population associated
from the Atlantic Coast to the Mississippi River,
with white nose syndrome, a fungus that has spread
as far south as Georgia and as far north as the
rapidly through bat species that hibernate in caves.
Gaspe Peninsula in Quebec. In areas affected by
FWS estimates that the number of northern longwhite nose syndrome, the proposed rule would
eared bats in the Northeast, the heart of the speexempt logging and some related forest managecies’ range, has declined by 93 to 98 percent since
ment work from the take prohibitions of the ESA
the appearance of white nose syndrome in 2006. A
as long as the activities are protective of known bat
final decision on listing is expected by press time.
roosting areas. Although there has been discussion
The ESA prohibits the “take” of any member of
of including wind power in the Section 4 exemp40 | T H E E N V I R O N M E N T A L F O R U M
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
T
he listing of the northern long-eared
tion, nothing formal has yet been proposed. If the
bat is not an unprecedented event, nor
northern long-eared bat is listed as endangered
a death knell to wind power develop(rather than threatened), FWS can only authorize
ment. The Indiana bat, which is found
incidental take through Section 7 consultation or
throughout most of the eastern U.S., has
the Section 10 incidental take permit process.
been a listed endangered species since 1967. The
As the proposed listing of the northern longgray bat, with a range throughout the southeasteared bat has proceeded, FWS and wind power
ern United States, has been a listed endangered
developers and operators have been attempting
species since 1976. Both the Indiana bat and gray
to reach some agreement on steps to minimize
bat are cave-dwelling bats and therefore at risk
the risk of take. Foremost among these strategies
from white nose syndrome, which
is curtailing wind turbine operaattacks bats in their hibernacula.
tions during times and conditions
In 2009, a federal district
when northern long-eared bats are
court in West Virginia enjoined
most likely to be near spinning rothe construction of the Beech
tors. Most bats, including northern
The listing of the
Ridge wind power project unlong-eared bats, prefer to be airnorthern longder the ESA because the facility
borne during low-wind conditions
eared bat is not
would likely result in take of Inand during the warmer months
diana bats. However, the project
of the year. And, of course, bats
an unprecedented
subsequently went through the
are nocturnal. So spinning wind
event, nor a death
ESA Section 10 incidental take
turbines are only likely to pose a
knell to wind power
process with FWS and in 2013
danger to northern long-eared bats
development
FWS issued an ITP to Beech
on low-wind nights during the late
Ridge, allowing the project to
spring, summer and early fall. By
go forward. The terms of Beech
curtailing wind turbine operations
Ridge’s ITP required the project
to higher cut-in speeds (i.e., the
to institute initial curtailment at
wind speed at which turbines be4.8 meters per second and to conduct certain
gin to spin and generate electricity) during times
off-site conservation measures.
when northern long-eared bats would be present,
Going forward (assuming the northern longwind power projects lower the likelihood of harm
eared bat gets listed), FWS and wind power deto the species.
velopers will likely reach some equilibrium on
Much of the current conversation around curtailcurtailment speed and other measures that will
ment is aimed at determining the appropriate cut-in
be adequately protective of northern long-eared
speed. The higher the cut-in speed, the more marbats while allowing for continued operation and
gin of safety for bats but also the greater the decrease
growth of wind energy generation facilities. We
in electricity generation and the greater the impact
will also likely see more MBTA enforcement acto financial viability of the wind power project. In
tions taken against wind power projects, although
interim guidance issued by FWS in January 2014,
these actions will almost certainly be focused on
the agency recommended a turbine cut-in speed of
facilities with the highest golden eagle mortality
6.9 meters per second in order to avoid mortality of
rates and the lowest level of compliance with FWS
northern long-eared bats. In more recent comments
wind energy guidelines.
on wind power projects, FWS has recommended a
Like any other form of energy generation,
cut-in speed of 6 meters per second. Wind power
wind power facilities create impacts that must
developers have argued that curtailment at 5 meters
be balanced against the benefit of being able to
per second will yield the best balance of protection of
turn on the lights, charge our smart phones and
northern long-eared bats and electricity generation,
do the hundreds of other daily energy-depenand have proposed that curtailment be required only
dent activities that we take for granted. That
when certain temperature thresholds are exceeded, as
means finding the appropriate balance between
bats are not active in colder weather. If the species is
regulation that is protective of birds and bats,
listed, curtailment at some cut-in speed will almost
and is also supportive of a robust wind energy
certainly be required as part of any incidental take
industry. TEF
authorization issued by FWS.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
M A Y / J U N E 2 0 1 5 | 41
T E S T I M O N Y
W
From Vicious to
Virtuous Cycles
In ELI’s second Al-Moumin
Distinguished Lecture on Environmental
Peacebuilding, JoN BarNett of
Melbourne University said we are
misunderstanding the challenges that
climate change poses, and we are thereby
missing opportunities. Climate change
will not naturally nor inevitably lead to
armed conflict, and this is a risk that is
well within our purview to manage
42 | T H E E N V I R O N M E N T A L F O R U M
ithin the scope of climate
change and security there are
many undesirable outcomes.
They range from the impact on
poverty to the sovereignty of
small island states. Within this
pantheon we seem obsessed
with climate change and violent conflict. Yet this is the
security risk where theories of causality are weakest. We
have almost no explanation as to how climate change
might lead to civil war or war between states. We have
been thinking about this for more than twenty years.
World population has massively increased in that time,
as has consumption of resources. But there hasn’t been
a conflict caused by environmental change.
There are two problems with this. One is that if
we say that the world is going to be more dangerous, then institutions respond in ways that make
that more likely. Two is that there are countries
whose existence is at risk, and there are billions
of people whose basic needs are at risk. There are
many countries, including the United States, whose
ability to provide energy, water, and public health
are compromised by climate change, but we’re still
worried about the next war in sub-Saharan Africa
that might be caused by rainfall variability.
Climate science is advanced primarily through the
use of mathematical models. They are good at describing large-scale oceanic and atmospheric processes. But
their power diminishes when they depict social outcomes. We geographers bend ourselves out of shape as
to whether it’s possible that a change in environmental
conditions changes the behavior of social systems. But
humans do not behave like billiard balls.
When the Intergovernmental Panel on Climate
Change sought to gauge the science on global warming
and security in its assessment published last year, these
issues about climate science and social science came together. The authors of Chapter 12 on human security,
of which I was one, were all social scientists. The chapter
cites only peer-reviewed literature, per our instructions.
This matters because if you review the body of work on
climate change and security that includes think tank
reports, media reports, and non-peer-reviewed papers,
you would come to different conclusions.
Most of the peer-reviewed literature suggests that
changes in climate can exacerbate major political
changes, given certain conditions, including a predominance of subsistence producers in society, preexisting conflict, autocratic systems of government, and
empires that are losing power in their peripheries. So
under conditions of stress, climate events do seem to be
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
Jon Barnett is
professor and
Australian Research
Council future fellow
in the Department
of Resource
Management
and Geography
at Melbourne
University, a lead
author for the
Fifth Assessment
Report of the
Intergovernmental
Panel on Climate
Change (Working
Group II, Chapter
12), and coeditor of Global
Environmental
Change.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
M A Y / J U N E 2 0 1 5 | 43
associated with the collapse of civilizations. But these
are historical cases, and the lessons are not directly
transferable to modern society.
There is consistent evidence that climate change will
slow economic growth and impede efforts to grow per
capita income in some already low-income countries,
particularly in Africa. There is evidence that extreme
events can produce economic shocks that can sometimes be associated with an increased risk of political
instability. And studies suggest that changing environmental conditions can undermine institutions that
provide public goods and thereby weaken states. These
are factors that increase the risk of armed conflict within some countries, and they are factors that can be exacerbated by climate change. This is the best theory we
have about how climate change might lead to armed
conflict, and there is no smoking gun. There is instead
a tenuous chain of causality: climate change may exacerbate some factors that can increase the risk of armed
conflict in certain circumstances. Most societies manage to deal with environmental change without violence and that’s the norm. The principal controls here
are not climate, they are robust institutions that alleviate poverty and protect livelihoods.
Under some circumstances, efforts to mitigate or
adapt to climate change can alter the distribution of access to resources that can then have potential to create
and aggravate armed conflict. There is some evidence
that efforts to increase production of biofuels, appropriating common property resources and dispossessing
people, are causing conflict in parts of Southeast Asia.
There’s some evidence to suggest that
programs involving land use changes to
The effect of
sequester carbon are increasing conflict
violent conflict
in some circumstances. There is some
evidence to suggest that in some places
on vulnerability
resettlement is being justified under the
to climate change
auspices of climate change.
is a much bigger
This is an emerging issue. It is imporproblem than the
tant that we screen climate change programs for the possible effects on conflict
vague possibility
that climate change risk, and to enhance their contribution
to peacebuilding. In many ways, adapmay cause conflict
tation is like development. There are
now big bags of money being promised, burning holes in the pockets of donors, being
implemented by green groups that don’t have much
of an idea about conflict or about development.
Governments and development banks are looking
to do something, and they are not necessarily following good principles for the implementation of
development projects. The parties to the Copenhagen Accord committed to spend $100 billion dollars
per annum on mitigation and adaptation by 2020.
While such a sum has the potential to do an awful
44 | T H E E N V I R O N M E N T A L F O R U M
lot of good, it also has the potential to cause conflict
if it is not done well.
We know that natural resource management and by
extension, potentially, climate change adaptation can
help build peace, and can help avoid conflict. There is
a pretty good body of evidence that groups and countries will cooperate on managing the risks of climate
change, where they might not cooperate on other issues. River basin management is an obvious example.
I think it’s important that in post-conflict reconstruction, issues about property rights, access to land, and
distribution to resources are included. This is important not just for building peace but also for reducing
vulnerability to climate change.
This implies that for any national policy agenda
about the need to reduce emissions and of course
about targeting adaptation efforts in places that have
a higher risk of violence, ending armed conflict is always a good thing, and that we need to mainstream
adaptation into post-conflict reconstruction and screen
climate change projects for their conflict-risk potential.
Places affected by violent conflict tend to be places that
are highly vulnerable to climate change. The effect of
violent conflict on vulnerability to climate change is a
much bigger problem than the vague possibility that
climate change may cause violent conflict.
C
limate variability and climate extremes are ubiquitous, but most
countries are not in conflict. Knowing the causes of violence doesn’t
necessarily explain the causes of
peace. We might also want to study
peace under the conditions of climate variability and change, where violence is likely
but does not occur. We could study places where
the risk factors are high, where there have been
things that we know potentially increase the risk
of armed conflict: forced migration, a history of
violence, governments dependent on rents, populations dependent upon climate-sensitive resources,
low per-capita incomes, and extreme events — all
these things are there, but armed conflict doesn’t
happen.
The Marshall Islands have had massive amounts
of nuclear weapons testing, huge problems of forced
migration, and enormous social problems arising from
that. The government is very heavily dependent on
rents. There are big problems with drought, and you
can’t drink the groundwater. You might conclude that
they should be at each other’s throats, but they’re not.
By some estimates, the international occupation of
East Timor was, on a per-capita basis, the most violent episode in history. In 1999, about 70 percent of
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
the population was uprooted, and many were forcibly
moved across the border. There are massive problems
of drought, which are affected by El Nino, and there
is an underlying climate pattern that causes drought
every four years. Through most of these dry periods,
most of the kids in East Timor eat just one meal a day.
If you studied the literature, there is absolutely every
reason that you’d think these guys must have been killing each other since 1999, but they haven’t.
We should study why this is. What is it about the
Marshalese and the East Timorese that makes them
not fight, and what can we learn from that if we are
serious about maintaining peace in the face of climate
change? This is what I mean about a “resilient peace.”
Isn’t it our objective to make sure that we can keep and
build peace despite climate change? And if we want to
do that, science should lead us to study peace and not
just study conflict.
Armed conflict requires a labor force. It requires
people to pick up a weapon and be willing to kill
other people. Where does the labor force come from
and how does that happen? It happens under conditions where the opportunity costs of joining an armed
group are very low and people have nothing to lose. It
seems possible that being in an armed group will get
you something better than nothing. People join armed
groups when they don’t have many choices, when the
opportunity costs are low.
A very short version of a theory of vulnerability to
climate change is that people don’t have choices. They
can’t get out of the way of a climate event; they can’t
migrate because they’re too poor. They can’t deal with
their water resource problems because they haven’t got
the capital, or technology, or the social resources. The
most vulnerable people are people who cannot move
out of harm’s way, who have little money, who do not
have insurance, who have little property, and so who
can do little to avoid the impacts of climate change. So,
the people who are more likely to join armed groups
share the same kinds of circumstances as the people
who are most vulnerable to climate change. Helping
them to expand their choices can both build peace and
reduce vulnerability to climate change.
Nobel laureate Amartya Sen’s work talks about
freedoms and opportunities based on the economic
successes of the East Asian economies, which tend to
be peaceful. For Sen, development is something that
people do for themselves, given sufficient economic
opportunities, political liberties, social powers, and
enabling conditions about access to health care, education, and so on. Economic opportunities include, for
example, the freedom of women to seek work, the freedom of individuals to interact, and to seek mutually
advantageous outcomes in terms of consumption and
production. Political freedoms include having a voice
in the political system, social opportunities, and access
to basic health care.
A
daptation and peace and development are alike, and are best served
when people have choices to avoid
violence, and to pursue meaningful
lives. Getting kids to
school, making sure
The fact that states
you have basic health
are talking about
services, social protection programs
to assist in times of emergencies and
climate change is
crisis, trying to grow jobs, respecting
encouraging. You
human rights — they serve all those
could argue that
goals at the same time. There are very
climate change is
strong synergies here that will build
peace as well as reduce vulnerability doing more to build
to climate change. Adaptation isn’t
peace than cause
necessarily about building desalinizaviolence
tion plants or sea walls.
We see the international relations of
climate change as a failure because it hasn’t reduced
greenhouse gas emissions. But you can see it another
way. You might look at something like the Kyoto Protocol and say, “Actually, that’s pretty amazing that you
got the most industrialized countries in the world to
agree to a legally binding agreement to reduce their
emissions.” And reducing emissions means tackling
one of the fundamental cornerstones of modern society, which is cheap fossil-fuel-based energy. 39 countries said, “Yes, I understand that, and I will go into a
legally binding agreement to do it.”
The level of rhetoric and the degree of cooperation
is significant. You’ve got a carbon bubble in the EU
that has strengthened the project of building peace
in Europe. The ASEAN countries have a memorandum on the security implications of climate change.
They’re talking about cooperation regimes, so that the
logistics support of their militaries might intervene in
each other’s states during times of crisis. They’re talking
about agreements and plans to protect people’s rights
and needs should they cross borders during times of
disasters. They’re talking about sharing financial instruments and monitoring regimes across Southeast Asia.
It’s all very interesting and very positive.
So you could credibly make the case that climate
change is a strong force for confidence and cooperation
among states. At least it looks that way where I come
from. And in these dark times, even if we are not seeing big reductions of emissions, the fact that states are
at least continuing to talk about climate change and
make an effort is encouraging. In fact, you could argue
that climate change is doing more to build peace than
cause violence. TEF
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
M A Y / J U N E 2 0 1 5 | 45
THE DEBATE
Climate Change Endangers Security;
Can the Military Help Humanity Respond?
T
he growing threat of climate-related disasters
creates new risks to human and environmental security. It constitutes both an accelerant of instability and a threat multiplier. As is well
known, in many countries, responses to floods, cyclones, droughts, and other climate-related disasters are impeded by limited capacity, insufficient
planning and preparation, and lack of coordination
between government actors. As Hurricane Katrina
demonstrated, even a rich country can exhibit
such symptoms, as it did previously in the Dust
Bowl 80 years ago. In both cases, prior action
greatly exacerbated a natural threat to create a
human security disaster. This is exactly what is increasingly on display and predicted with respect to
climate change.
As a consequence of the linkages between humanitarian disaster relief, military organizations,
human security, and environmental security, climate change generates an ever-greater impetus
for engagement between military and civilian authorities. Involvement of both is necessary when
disasters overwhelm the capacity of civil authorities, as is increasingly likely because of the deadly
buildup of atmospheric greenhouse gases.
46 | T H E E N V I R O N M E N T A L F O R U M
Civil authorities are often tasked, and taxed,
while dealing with disasters from a variety of settings — the crisis over Ebola in Africa is a recent
example of an acute one, generating responses
around the world. Desertification in northern Africa (and elsewhere) and a years-long drought that
threatens water security in the American Southwest are examples of long-scale problems.
These challenges call for collaborative, wholeof-government disaster risk management efforts,
including disaster prevention, planning, preparedness, response, and recovery, as well as new policies recognizing linkages between climate, disasters, and security. These collaborations can help
to create more resilient, self-sufficient societies
that are better equipped to adapt to a changing
climate and are therefore more secure.
What kinds of new challenges are emerging at
the nexus of environmental, human, and regional
security, and how should we respond to them?
What are the biggest obstacles to effective disaster risk management, and what strategies can
we use to overcome them? How can military and
civilian authorities work together to address the
growing risk of climate-related natural disasters?
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
“The United States should
enter into the necessary
treaties and make the
resource allocation for its
Navy and Coast Guard
to protect U.S. interests in
the Arctic.”
“Mainstreaming disaster
risk management into
peacebuilding can
improve the resilience of a
conflict-affected country
to the risks of disasters
and conflict relapse.”
Carl Bruch
Leo Goff
Co-Director, International Program
Environmental Law Institute
Military Advisory Board
CNA
“The military is a very
expensive asset, so it is
important to know when
it should and should not
be used.”
Marcel Lucaciu
President
Marcel Lucaciu
“The creation of
sustaining and enduring
partnerships between
civilian and military
entities is vital to
alleviating disaster
risks.”
“It is not only the obvious
disasters like tsunamis
and earthquakes
that cause avoidable
suffering. Technological
disasters strike when
least expected.”
Rene Nijenhuis
Humanitarian Affairs Officer
UN Office for the Coordination
of Humanitarian Affairs
Swathi Veeravalli
Physical Scientist
U.S. Army Corps of Engineers
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
M A Y / J U N E 2 0 1 5 | 47
T HE
Peacebuilding
Should Improve
Resilience
Carl Bruch
C
ountries emerging from conflict are particularly susceptible
to disasters. Such states tend to
have less institutional, technical, and
human capacity to prevent, respond
to, or recover from disasters. Many
people have expended their reserves to
survive, and are thus more vulnerable,
and the public often harbors great distrust of the government.
Steve Garrison and Daniel Lowe
examined the effect of natural disasters
on political stability. Looking at experiences in 201 countries from 1945 to
2001, they found that the ability to
minimize disaster-related deaths was
critical to the survival of democratically elected leaders. They also found
that droughts and other slow-onset disasters, if addressed properly, provided
leaders with opportunities to increase
political survival. The post-conflict
period provides a window in which
countries can rebuild, and even build
back better. Post-conflict peacebuilding provides opportunities to build a
more resilient society.
There are four broad pillars of
peacebuilding: security; economics
and livelihoods; basic services; and
reconciliation and governance. Each
provides opportunities for managing
disaster risks.
Within the security pillar, demobilization, disarmament, and reintegration programs can provide shortterm employment opportunities
for ex-combatants. These include
rebuilding vulnerable, degraded infrastructure to make it more resilient
to droughts, floods, and other disasters — even as the ex-combatants
receive training for longer-term
employment. For example, the Afghan Conservation Corps engaged
thousands of former combatants to
replant deforested regions, rebuild
48 | T H E E N V I R O N M E N T A L F O R U M
DEBAT E
reservoirs, and construct retaining
walls.
Security-sector reform seeks to professionalize armed forces. It presents
an as-yet underutilized opportunity
to introduce National Guard–type
functions to reforming militaries. This
would empower civilian governments
to better make use of military assets in
responding to floods and other disasters, as well as taking measures to help
prevent and mitigate damage from
disasters such as sandbagging rivers.
Restoring livelihoods and rebuilding the economy usually rely on a
wide range of natural resources for
agriculture, forestry, mining, and
manufacturing. In most conflictaffected countries, 50 to 80 percent of
livelihoods historically have relied on
farming, and post-conflict initiatives
often focus on agrarian reform. With
the best land already claimed, farming
is often pushed onto marginal lands.
These countries are already feeling
the effects of climate change, though,
and an emphasis on business-as-usual
undermines livelihoods — and creates
conditions for recruitment by rebel
movements.
The better approach is to diversify
livelihoods beyond agriculture, focus
on building local industries, and put
in place early warning systems to
identify potential drought years and
support farmers in making the necessary adjustments to their cropping
patterns.
Peacebuilding efforts emphasize
basic services (such as the delivery of
electricity, water, and sanitation) as a
means of improving welfare. Restoration — and in some cases, the installation of those services for the first time
— is a priority. When successful, basic
services generate peace dividends;
when unsuccessful, such initiatives
undermine government legitimacy. In
Afghanistan, Sudan, and other waterscarce environments, efforts to generate peace dividends by drilling wells
proved short-lived as the water table
fell and wells ran dry. Climate-proofing efforts to provide basic services
starts with an assessment of the long-
term situation (including projected
changes in precipitation, temperature,
and extreme weather events), and then
considers how to design the effort appropriately (through location of the
services and the technologies used).
Disaster risk management can also
support efforts to promote reconciliation and improve governance after
conflict. The shared risks present an
opportunity for dialogue and cooperation. Moreover, efforts to prevent and
mitigate disasters (as well as to prepare
for, respond to, and recover from
them) can be opportunities to support
local governance through land use
planning and zoning.
The post-conflict period is fluid
and dynamic, characterized by a
profound need to act quickly and on
imperfect information. While often
beyond human control, disasters can
undermine or even undo peacebuilding investments if they have not been
undertaken with due consideration for
the risks. To make peacebuilding more
resilient, it is important to mainstream
disaster risk identification and analysis
into peacebuilding planning. These
efforts can be enhanced through participatory processes of risk identification and analysis as well as in the planning and implementation of disaster
prevention, mitigation, preparedness,
response, and recovery.
Indeed, one of the most effective
ways to improve both peacebuilding and disaster risk management is
through participatory processes. They
engage more stakeholders, improve
the information upon which decisions
are made, improve governance and
government legitimacy, and can bring
additional resources to bear (for example through in-kind labor).
Through these measures, mainstreaming disaster risk management
into peacebuilding can improve the
resilience of a conflict-affected country
to the risks of both disasters and conflict relapse.
Carl Bruch is the co-director of the Environmental Law Institute’s International
Program.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
T HE
Ill-Prepared for
Climate Change
in the Arctic
Leo Goff
T
he impact of the world’s changing climate is most obvious in
the Arctic. The ice is melting
and the open ocean and a bounty of
hidden resources are becoming accessible. 2015 had the lowest winter
ice coverage in 40 years of satellite
monitoring. What was once a frozen
wasteland is now lively with ships, oil
companies, and eco-tourists. Polar nations and others that want to use the
region’s resources are staking claims on
a complicated geography. The unprecedented pace of environmental change
and geopolitical posturing raises security concerns.
The military often explores future
security through scenario-based planning like the vignette which follows.
The year is 2025. A Chinese ship,
operating in the ice-free area north of
the Bering Straight, moves seven tons
of rock from the sea floor to develop
the final piece of their newly formed
artificial island, New Xi’an. Including those built in the Spratly Islands
in 2014, the Chinese now have eight
artificial “landlets.” Over U.S. objections, artificial islands were defined
as landlets in the 2020 update to the
UN Convention of the Law of the
Sea, which included assigning them
underwater economic zones. Since the
United States was not a party to the
original UNCLOS, it had little say on
the 2020 update.
By 2025, climate change has made
the waters surrounding the Bering
Strait ice free for most of the year.
Thousands of ships now transit the
Arctic each year with nearly half bringing oil and gas to China or moving
Chinese exports. In 2021, China began construction of an Arctic landlet in
the shallow water, north of the Bering
Strait and above the Arctic Circle. By
2025, New Xi’an was inhabited and
DEBAT E
completion of a runway would certify
the landlet under UNCLOS 2020.
With a Chinese landlet in the Arctic
Ocean, Beijing could claim fully that
China is an Arctic nation with legal
access to the resource-rich ocean floor
of the polar sea.
Four ice-hardened Russian warships
shadow the landlet. The president of
Russia said that he would take military
action to prevent the completion of
another Chinese landlet in Moscow’s
backyard. This could be the start of
the third Russo-Sino Arctic battle in as
many years. The U.S. Navy could not
intervene, because over the last decade
Congress failed to invest in cold-water/
ice-hardened ships.
This scenario might seem farfetched in just ten years, but so too was
the 2001 coordinated terrorist attack
on the United States using commercial
airliners. We were ill-prepared then
and we are ill-prepared now for the
climate-induced changes already happening in the Arctic.
Over the past decade, satellite imagery shows the old ice in the Arctic decreasing rapidly. Because of this changing ice coverage, the Arctic is already
seeing increases in maritime transit,
resource extraction, fishing, and tourism. Over the last five years over a
hundred ships have transited through
the Arctic to reduce their sailing distance between Asian ports and Europe
by 40 percent. Oil companies are now
exploring new areas of the Arctic seafloor, where geologists estimate that
more than one-tenth of the world’s
undiscovered oil and one-third of the
undiscovered natural gas lie. We worry
about competition for these resources
and the legal responsibility to respond
to oil spills or other man-made disaster
in this fragile ecosystem.
Although security experts think the
likelihood of near-term conflict in the
Arctic is low, the geopolitical situation
is complex, nuanced, and never certain. Maritime issues involving existing
and potential claims of the extended
outer continental shelf and shipping
routes already exist. Denmark recently
laid claim to the North Pole, as earlier
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
did Canada and Russia. The competition is not just between Arctic nations.
China is now an observer to the Arctic
Council, claiming its 1.4 billion people
gives them a vested interested in
“world” resources.
As a warming planet affords increased access to the Arctic, we should
expect new disputes over natural
resources and control of lucrative
shipping lanes. In the spring of 2015,
Russia will demonstrate its ability to
resolve disputes with force by conducting a major military exercise in the
Arctic involving over 40,000 troops,
ships, and submarines.
While the U.S. government has
an Arctic Strategy and the Navy and
Coast Guard have planning documents, there is insufficient budget to
build a force capable of keeping pace
with today’s rate of change in Arctic
operations. To those in the know, the
Arctic is beginning to look at lot like
the wild West; lawless and filled with
early settlers staking claims. It is in desperate need of a good sheriff.
One mechanism that could establish some law and order into the pending Arctic chaos is UNCLOS, a treaty
for resolving complex maritime issues.
It provides the framework for broad
naval partnership and cooperation.
Since the United States is not a party
to UNCLOS, it will be more difficult
for Washington to have much say in
the evolving geopolitics of the Arctic.
With rapid changes already happening in the region it is time for the U.S.
Senate to ratify UNCLOS.
The United States is ill-prepared
for the pace of change in the Arctic. It
should enter into the necessary treaties
and make the resource allocation for its
Navy and Coast Guard to operate in
the area and protect U.S. interests and
peace in the region. It’s time for the
United States to saddle up.
Leo Goff is a retired Navy captain with 30
years of experience in national security planning, futurecasting, and mission execution.
He serves as program manager for CNA’s
military advisory board, working on climate,
energy, and national security issues.
M A Y / J U N E 2 0 1 5 | 49
T HE
Disasters: How
Predictable Is
Unpredictable?
Marcel Lucaciu
E
urope is a very crowded geographical space where more
than 740 million people live in
50 countries. In such a geopolitical
environment, natural disasters often
cause loss of lives and property damage
despite measures enacted to diminish
impact and vulnerability. The combination of high hazard and vulnerability
leads to complex, cascading effects.
There are signs that climate change has
begun to intensify this problem.
To improve the level of communities’ resilience and to harmonize
different states’ approaches in dealing with risk assessment and disaster
management, the European Union
has started to ask member states to
adopt common standards, methodologies, and intervention structures.
Starting in 2007 a coordination
mechanism (the Civil Protection
Mechanism) was put in place and a
Monitoring and Information Center
(now the Emergency Response Center) established to mobilize resources
and provide support to any affected
state. The mechanism has continued
to evolve and grow stronger, and its
efficiency was increased by putting
together intervention teams with the
necessary funds to support an affected country or region.
The EU endeavor has been difficult to achieve, as the norms,
laws, and regulation governing risk
management are different from one
country to another. There is political
will, however; coordinating structures have been put in place, and
preventive and intervention activities are being considered.
But there are some questions to
be answered as we plan and mobilize
to respond to climate change.
First, how can we modify our
emergency management structures to
50 | T H E E N V I R O N M E N T A L F O R U M
DEBAT E
be sure that we can deal with the new
threat? It took 10 years for Romania to
implement a new management system
and it’s already obvious that it has to be
improved. The German disaster organization started to develop a concept
five years in advance of its implementation, and it began another one immediately after putting the new one in
place. This question begets additional
ones: Is this the time to adopt emergency management structures to deal
with climate change? At what cost?
Second, how can we respond to
the details of risk assessment? A small
example: Romania finished its national
flood risk maps three years ago. Geographical information systems were
used to provide the details for each
river basin and maps were accessible
to communities on the website of the
Romanian Water Authority. These
data are used in planning communities’ development and increasing their
resilience. This year, because of climate
change, severe floods happened in the
areas where flood risk had previously
been close to zero. As a result, affected
communities were totally unprepared.
A huge public debate followed as the
media questioned the money spent for
the flood risk assessment maps. We
should ask ourselves how much money
can we afford for such risk assessment
and how accurate are these assessments
when experiencing the influences of
climate change.
Third, how can we improve the
connection among professionals in
emergency management and politicians? All prevention measures and
associated financial resources needed
for emergency management require a
political decision. In Romania much
time and energy and many arguments
are needed to promote a legal act
related to prevention and emergency
management. Disasters do not happen every day and memories related to
such catastrophic events are short.
Fourth, How can we better integrate scientific research into risk assessment and how can we improve the
accuracy of forecasting? Science can
provide powerful tools in emergency
planning and management. GIS technology is now an “old” technology
and an international standard but,
even so, it has not been adopted in all
countries.
In terms of forecasting, recall snow
predictions for New York City this
past winter, when a huge storm was
forecast, disaster teams mobilized, and
only a little snow fell. Contrast that
situation with the one of Hurricane
Katrina, where forecasts were accurate
but government response was lacking.
Finally, how can we harmonize
the needs of a resilient community,
which has some resources, with the
requirement for additional resources
to deal with catastrophic phenomena
due to the onset of climate change?
How can we increase resources at the
regional level? The resource problems
are related to how much money a
community can mobilize to increase its
safety. These costs involve equipment,
materials, and manpower. The military
has important resources but not all
societies can easily use them for disasters. Additionally, the military is a very
expensive asset, so it is important to
know when it should and should not
be used. Similar debates exist about the
appropriateness of use of the military
and about the use of volunteers.
It is obvious that climate change is
a challenge, and there are a variety of
approaches in dealing with its varying
manifestations. In some situations,
approaches have extended beyond
national boundaries and also the
boundaries of past approaches. Based
on my experience I favor simplicity,
a collective approach, and integrated
efforts. The EU provides one example,
but certainly not the only one. The
solutions will require the right balance
between financial resources, preventive
and protective measures, and appropriate interventions.
Marcel Lucaciu, a retired army colonel,
heads an emergency management consultancy under his name. Previously, he was
head of Romania’s General Inspectorate for
Emergency Situations under the Ministry of
the Interior.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
T HE
“Technological
Disasters” Now
Loom Large
Rene Nijenhuis
T
he humanitarian system, built
on our instinct to help one another when in need, is facing
an ever-increasing number of people
to support, often repeatedly, and often
for longer periods of time. In 2014,
an astonishing 52 million people required humanitarian assistance. The
cost of humanitarian aid has more
than trebled over the last ten years.
At the same time, we have come to
a realization that the business model
for humanitarian assistance necessitates a paradigm shift from a reactive
“response only” model to a pro-active
“disaster/risk management” approach,
with greater investment in prevention
and preparedness.
Let me use the example of environmental emergencies, as a sub-set
of humanitarian crises. We can expect
an increase in “technological disasters” and their impacts in the years to
come. We can now see the interplay
of climate change, urbanization, and
industrialization becoming a determining factor in both developing and
developed countries. This interplay
adds up to more vulnerable people
being exposed to environmental emergencies. In that vein, vulnerable megacities continue to grow — with a large
number of them being exposed to
sea-level rise and other climate-related
disasters.
Economic development has
brought prosperity to many who need
it, but at the same time, safety standards, urban planning, and emergency
preparedness have not always been
able to keep up with rapid industrialization and growth.
The recent World Conference on
Disaster Risk Reduction held in Japan addressed for the first time at the
highest level the challenges created
from human-made, technological haz-
DEBAT E
ards and risks. Until then, the focus
had solely been on natural disasters.
To me it is apparent that the lessons
from the triple disaster that struck
Japan in 2011 — an earthquake,
followed by a tsunami and then a
nuclear disaster— are quickly finding their way onto the international
policy agenda.
It is not only the “big and obvious”
disasters like tsunamis and earthquakes that cause avoidable suffering
to communities. Technological disasters strike when least expected, as in
Japan sometimes hidden as collateral
damage of larger natural disasters. Following Supertyphoon Haiyan in the
Philippines last year, authorities and
international humanitarian responders
were confronted with an “emergency
within the emergency”: An oil-spill
off the coast of an already heavily impacted island displaced hundreds of
typhoon survivors — at some point
they even outnumbered the displaced
people on the island from the typhoon itself.
While ten years ago, countries and
the United Nations were primarily
focused on responding to environmental emergencies, I can now see a
collective effort to integrate environmental considerations in risk reduction and collaborative initiatives between development and humanitarian
actors to prevent and better prepare
for these types of accidents.
For example, following the 2004
Indian Ocean tsunami, we designed a
scientific rapid environmental assessment tool for industrial accidents for
international humanitarian responders
who were being deployed to provide
assistance. Ten years later, this same
methodology is being used by countries like Armenia and Kenya to identify and prioritize industrial hazards as
part of their national efforts to reduce
disaster risks. This way, we have managed to adapt existing response tools
and risk-proofed them to allow for
wider uptake and application in disaster risk management.
The political commitment attained
at the world conference now needs
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
to be translated into concrete actions
at the country and community level.
Tools to do so already exist. But more
is still needed for the paradigm shift
to take place. Studies have shown that
between 1991 and 2000, only a meagre 0.5 percent of all international development aid was used for preparedness and prevention. This funding
situation needs to change drastically.
Dedicated budgets for preparedness
and prevention need to be established,
and instead of having strictly separate
budgets for humanitarian response
and for development aid, budgets
need to be more flexible.
While it is never a problem for
countries to nominate responders for
a humanitarian emergency mission, it
is still challenging to find experts for
preparedness and capacity-development activities. Sometimes, different
budget holders are in charge, sometimes entirely different organizations
are responsible. Humanitarian response is led by the humanitarian imperative and principles. Preparedness
and prevention activities are driven by
competing and more political criteria.
Here we see the first glimmers of
hope. The European Union recently
adapted its legislation concerning
civil protection to now address both
response and preparedness. The Sahel
countries are now benefitting from a
regional approach to the challenges
they face, as well as a multi-year humanitarian support plan.
This is an enormous step forward,
as it breaks with the yearly bandage on
the wounds and allows countries and
the international community to build
resilience in those communities taking
the brunt in what has been dubbed
the ground-zero of climate change.
Now, we need to keep the momentum and ensure that the sum of
our collective efforts really becomes
more than the total of its parts.
Rene Nijenhuis works for the United
Nations Office for the Coordination of Humanitarian Affairs in the fields of emergency
preparedness and environmental emergency
response.
M A Y / J U N E 2 0 1 5 | 51
T HE
The Military Can
Enhance Readiness
and Resilience
Swathi Veeravalli
D
espite scientific uncertainty
as to precise effects, there
are general trends that we
can expect from climate change
in the future: increased frequency
of extreme events. These extreme
events, or disasters, are composed
of changes in warm and cold temperature extremes, an increase in
sea-level rise, and increases in heavy
precipitation.
Both military personnel and civilians agree: climate change threatens
security and stability. A country’s
capability to deal with these shocks
depends on its ability to concurrently respond to the disaster while
resuming normal functions. There
is an important linkage between
the short-term imperatives of immediately resuming essential services
during a disaster with longer-term
objectives of stability. Building redundancies into global governance
systems allows them to quickly recover from disaster-induced shocks.
Redundancies can be defined as
shock absorbers that duplicate various system functions in order to resume stability.
Partnerships between civilian and
military stakeholders can help create this redundancy and allow an
affected region to return to stability.
Such partnerships are critical, given
the increased frequency of disasters. The development of effective
civilian-military partnerships must
occur prior to the onset of extreme
events. Waiting until catastrophes
occur is too late, with response efforts targeted solely to humanitarian
assistance, at which point state stability may be threatened. Preparing
for disaster presents opportunities
for civilian-military partnerships to
create redundancy and consequently
52 | T H E E N V I R O N M E N T A L F O R U M
DEBAT E
increase resilience and decrease vulnerability.
The U.S. military is undergoing
a paradigm shift, creating new capabilities to shape the security environment. As a result, the military needs
increased resources to understand
how climate change impacts cause
vulnerabilities within the security
environment and endanger military
readiness and response capabilities.
Dealing with climate change
presents a complex operational planning problem. As disasters are intensifying, often requiring large-scale,
multinational responses, the military
must understand the dynamic relationship between vulnerability and
resilience when planning for and engaging in disaster risk management.
Vulnerability can be described
as a system’s susceptibility to harm
caused by changes in the environment and the absence of the capacity to adapt to those changes. Resilience then becomes the capacity
of systems to absorb disturbances
while reorganizing to preserve the
essential function and structure of
the system. Resilience cannot occur
without redundancies built in to
ensure duplicate system components
exist to prevent system failure.
Dialogue between civilians and
the armed services is essential not
only to facilitate resilience but also
ensure appropriate response. Employing the wrong type of disaster
response can actually create failure.
Additionally, a system may become
so tuned to a particular type of
shock that it becomes in essence vulnerable to other, unknown shocks.
Both occur if the only choice is to
apply textbook plans in the hope of
dealing with the aftermath of disasters. Coordination and collaboration
between civilians and the military
can ensure that risk response is
diversified, thereby ensuring that
negative trade-offs increasing risk
and instability do not occur.
Despite institutional and operational differences, civilian-military
collaboration is an untapped re-
source to mitigate disaster risk.
Increasing such collaboration is
especially critical in areas already
threatened by instability. When
disasters occur in such regions, it
is almost impossible for response
and assistance to occur without a
strong military presence. Last year’s
Typhoon Haiyan exemplified how
successful disaster risk management
depends on coordination between
civilians and various global militaries. Response would have been even
more successful and timely if coordination prior to the disaster had
occurred.
More global civilian-military exercises are key. Replicating the success of military-to-military exercises
by adding a civilian component is
vital. Begun almost 33 years ago,
Cobra Gold began as a bilateral
military training exercise between
the U.S. and Thai militaries. It expanded more than a decade ago to
bring together the United States,
Thailand, Japan, South Korea, Indonesia, Malaysia, and Singapore.
Adding a civilian component is
vital. Participating nations could
then practice multinational and interagency planning, design, control,
and evaluation.
The creation of sustaining and
enduring partnerships between civilian and military entities is vital to
alleviating disaster risks. Elevating
climate change to an international
security issue highlights the need for
increased global approaches to mitigate threats.
Swathi Veeravalli is a physical scientist
at the Geospatial Research Laboratory, Engineer Research and Development Center,
U.S. Army Corps of Engineers. She focuses
on developing the capability to better understand the impact of climate variability upon
humans and their environment. She serves
on the Advisory Board of the Center of Climate and Security.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
Movers & shakers
Move rs
Former Portland, Oregon,
mayor Sam Adams has
joined the staff of the
World Resources Institute,
where he will lead the U.S.
Climate Initiative.
Jim Bennett is the
new chief of the Office
of Renewable Energy
Programs in the federal
Bureau of Ocean Energy
Management. He moves
up from the Division
of Environmental
Assessment.
The Aspen Institute has
named Michael Boots
a senior fellow. He had
been head of the White
House Council on
Environmental Quality.
Tricia Caliguire has joined
the law firm of McCarter
& English. She moves
over from her position
as energy adviser to New
Jersey Governor Chris
Christie.
Expanding its energy
practice, Clark Geduldig
Cranford & Nielsen
LLC, a Republican lobby
firm, has hired Michael
Catanzaro as a partner,
who comes from his
job as deputy staff
director for the Senate
Environment and Public
Works Committee.
Patricia Doersch
Megan Ceronsky, who
had been an attorney
at the Environmental
Defense Fund working
on the Clean Power
Plan, has been named a
senior policy adviser for
the White House Office
of Energy and Climate
Change.
Hogan Lovells announces
that Aaron Cutler,
former advisor to former
Representative Eric
Cantor, has been hired as
a partner of the firm.
Longtime Obama aide
Brian Deese has replaced
White House climate guru
John Podesta with the
title senior adviser. He had
been deputy director of
the Office of Management
and Budget.
Sidley Austin LLP is
expanding its energy
practice. It has hired
three lawyers. Karen
Dewis is an expert in
mergers and acquisitions.
Kenneth Irvin and Daryl
Rice are experienced in
energy and commodities
transactions.
ELI’s Jordan Diamond
is now at University of
California
at Berkeley
School of Law’s
Center for
Law, Energy,
and the
Environment,
were she serves as
executive director.
54 | T H E E N V I R O N M E N T A L F O R U M
has moved to the
Washington, D.C., office
of Squire Patton Boggs
as of counsel. She had
been a staffer on the
House Transportation
and Infrastructure
Committee and a lobbyist
with the American
Public Transportation
Association.
Ducks Unlimited’s new
chief policy officer is
Margaret Everson, a
former assistant attorney
general of the state of
Kentucky and general
counsel for the state
Department of Fish and
Wildlife Resources.
Ben Grumbles has been
confirmed as Maryland’s
secretary of
environment. A
former assistant
administrator of
the EPA Office
of Water, he
has been the
founding leader of the
U.S. Water Alliance.
Environmental Defense
Fund has named John Hall
as Texas director of clean
energy.
Abigail Ross Hopper
has been appointed
director of the federal
Bureau of Ocean Energy
Management. She moves
over from her job as an
energy aide to Maryland
Governor Martin
O’Malley.
Andy Katell has
joined Entergy Corp.,
where he takes over
communications for the
company’s northern U.S.
nuclear power plants.
Michael Kehs has
been promoted by
Hill+Knowlton Strategies
to the position of global
energy practice leader.
Leaving H+K is Chris
Gidez, who moves to
Caterpillar Inc.
John Kotek has been
named the Department
of Energy’s principal
deputy assistant secretary
in the nuclear office. He
had been staff director of
President Obama’s blue
ribbon commission on
nuclear waste.
Carlton Fields Jorden Burt
announces the addition
of Matthew Z. Leopold,
former general counsel of
the Florida Department of
Environmental Protection,
as of counsel in its
Tallahassee office, where
he will be a member of
the Government Law and
Consulting practice group.
Pennsylvania Department
of Environmental
Protection business
management and finance
chief Jeffrey Logan has
joined the energy practice
of Harrisburg-based Bravo
Group Inc.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
Movers & shakers
Timothy Male is the new
deputy associate director
for wildlife at the Council
on Environmental
Quality.
Henry May Jr., who for
20 years was the head of
Vinson & Elkins LLP’s
energy regulatory group,
joins Caldwell Boudreaux
Lefler PLLC in Houston,
which works with the
pipeline industry.
Catherine McCabe
moves to EPA Region 2
as deputy chief, leaving
her post as a judge on
the environmental appeals
board.
David McCray joins
Beveridge & Diamond
PC in its San Francisco
office as of counsel. He
leaves his post as assistant
chief counsel of the
California Department of
Transportation.
Beth Mullin has joined
the District of Columbia
Department of the
Environment as
deputy general
counsel. She
previously
served as
executive
director of the Rock Creek
Conservancy and is the
author of ELI Press’s The
Art of Commenting.
Carlos Pascual is the new
global energy issues and
international affairs vice
president of IHS. He
had been ambassador
to Mexico and Ukraine
and founder of the State
Department’s Energy
Resources Bureau.
William C. Pericak is a
new partner in the firm
of Jenner &
Block. He
has a quarter
of a century’s
experience
with the
Department
of Justice, including most
recently as director of the
Deepwater Horizon Task
Force.
Mario Piana has joined
the firm of Chadbourne
& Parke LLP as an
international partner
in the Corporate
Department, resident in
Mexico City.
Joining the Kennedy
School as a senior fellow is
Daniel Poneman, former
deputy secretary of the
Department of Energy.
John Richels is stepping
down as CEO of
Oklahoma-based Devon
Energy Corp. He will be
replaced by Dave Hagar,
the firm’s chief operating
officer.
Former ELI researcher
Ethan G. Shenkman has
joined EPA’s
headquarter
staff as deputy
general
counsel. He
leaves the
Department of
Justice, where he served as
deputy assistant attorney
general.
Barry Smitherman has
joined the Austin, Texas,
office of Vinson & Elkins
LLP. He is a former
chairman of the state
Railroad Commission
and the public Utility
Commission.
The new president of
the Texas
Oil and Gas
Association is
Todd Staples,
formerly
the state’s
agriculture commissioner.
Sidley Austin LLP
announces that Robert
Stephens has joined
the firm as a partner in
the global finance and
energy practices. He leaves
Cadwalader, Wickersham
& Taft LLP.
Steven Strah is the
new vice president of
FirstEnergy Corp and
president of FirstEnergy
Utilities, replacing
Charles Jones, who was
promoted to president and
CEO of the Ohio firm.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
The Natural Resources
Defense Council
announces a new
president: Rhea Suh. She
leaves her post as assistant
secretary for policy,
management, and budget
at the Department of the
Interior.
Sutherland Asbil &
Brennan LLP adds
energy attorney James
Thompson Jr. in its DC
office. He previously
served as of counsel at
Pepper Hamilton LLP.
Frank Young has
moved up to deputy
superintendent of Rock
Creek Park. Young has
served the Park Service for
27 years in the nation’s
capital.
Shak ers
Former ELI Award
winner Jane Lubchenco,
professor of marine
biology at Oregon
State University, is the
recipient of the Tyler
Prize for Environmental
Achievement.
Writer Daniel Yergin has
been awarded the first
James R. Schlesingner
Medal by the Department
of Energy. He is vice
chairman of IHS Inc.
M A Y / J U N E 2 0 1 5 | 55
ELIREPORT
Making Law Work for People, Places, and the Planet
New Headquarters
Honoring
Iraqi Minister
ELI moves
| Michael
to new
L. Ross
offices,
delivers
with expanded
inaugural Al
Moumin
and
updated
Lecture
convening
on Environmental
space and communications
Peacebuilding technology
Spring is in the air! After
a bitterly cold winter filled
with snow, wind, gray skies,
and heavy clothing, most
staff at ELI have been more
than ready for a change —
in more ways than one. Not
only have we finally seen
some warmer weather on
the horizon, spring has also
meant the long-awaited
move to our new home in
Dupont Circle, at 1730 M
Street N.W.
With the National Geographic Society’s headquarters a block to the
east, and Dupont Circle
two blocks north, and K
Street just two blocks to
the south, our new home
is ideally situated for ELI
members, visitors, and
staff members alike. After
10 years in our previous location at 2000 L Street, we
finally decided that rather
than renew our lease in
West End, it was time to
refresh ELI’s space.
And refreshing it has
been! While technically we
have less space, the FOX
Architects team ushered in
a new aesthetic — giving us
a retro-modern design that
blends bold and exciting
colors with more dynamic
functionality that creates the
illusion of greater square
footage. Complementing the
new look are parallel walls
of windows ensuring a con-
tinuous light flow across the
entire suite.
Like most large-scale
moves, it was not without
its ups and downs. ELI staff
spent months purging the
L Street offices of furniture
well past its useful life and
divided physically by department. With more conference
space and modern audiovisual equipment, we are
better situated to convene
the meetings that are so
critical to our work. Overall,
the new space will help ELI
St. Michael’s Cathedral provides a dramatic backdrop as Research
Assistants Patrick Woolsey, Talia Fox, and Michael Lerner confer in
the Rachel Carson room in the new ELI offices at 1730 M St. NW.
an ocean of paper for recycling. Meanwhile, the endeavor required meticulous
amounts of planning by staff
from all areas of the organization.
“The move was quite an
undertaking for the entire
organization,” says Acting
President Scott Schang.
“It brought staff together
not only to design our new
space and to plan the move,
but in our new space we
are literally all together, not
56 | T H E E N V I R O N M E N T A L F O R U M
meet its mission while also
being a great morale booster
for staff.”
The main lobby greets
visitors with a spacious
seating area featuring a flatscreen TV portraying scenes
of ELI staff at work in the
field. Among the other highlights of the new suite are
a series of rooms named
after iconic figures in the
environmental world: the
Acadia and Yosemite main
conference room, a state-
of-the-art facility enabling
greater capacity for live
streaming of our events;
Shenandoah, an adjacent,
smaller conference room;
and the Rachel Carson and
Aldo Leopold rooms for
breakout meetings. Looking
onto the M Street side of
the suite reminds us of the
vibrancy of our central location, including a full-on view
of the majestic St. Matthew’s Cathedral.
One of the most exciting
changes for ELI staff is the
kitchen, where staff can
enjoy their meals around a
communal table while benefiting from the amenities of
a full-size kitchen.
The new location brings
ELI back almost literally
full circle to our first home
in the 1970s, at 1346
Connecticut Ave. NW, looking directly onto Dupont
Circle during a time of many
protests, including those
against the Shah of Iran;
then on to 1616 P St., a
building which we shared
with Resources for the
Future and other organizations; and finally migrating
to our most recent facility at
2000 L Street.
It is only fitting that the
move coincided with our
newly redesigned website
— and that address has not
changed. Check it out at
www.eli.org!
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
ELI Report
ELI in Action Summit on National Environmental Policy Act
On December 2 and 3,
ELI, the Nicholas Institute
for Environmental Policy
Solutions at Duke University, and Perkins Coie
LLP sponsored a two-day
conference on the National
Environmental Policy Act.
Entitled the Cohen NEPA
Summit, the conference
honored the work and
lifelong service of William
M. Cohen, who before his
death in 2010 was one of
the nation’s leading NEPA
practitioners, instructors,
and mentors.
Cohen litigated NEPA
cases for the federal government as an attorney in the
General Litigation Section of
the Environmental and Natural Resources Division of the
Department of Justice from
1965-2000, serving as chief
of the General Litigation Section during his last 14 years
at DoJ. Upon his retirement,
he continued to practice
NEPA law as of counsel with
Perkins Coie.
Cohen was a frequent lecturer and instructor on NEPA
at the Nicholas School, and
was a frequent speaker on
NEPA topics for ELI, ALI-CLE,
and other institutions.
The dual purposes of the
conference were to examine how and whether NEPA
has achieved its objective
for the federal government
in cooperation with state
and local governments and
public and private organizations “to use all practicable
means and measures . . .
to foster and promote the
general welfare, to create
and maintain conditions
under which man and nature
can exist in productive harmony, and fulfill the social,
economic, and other require-
ments of present and future
generations of Americans”
and to identify possible improvements in implementing
NEPA.
Approximately 45 NEPA
experts attended the conference. The participants represented a broad spectrum of
stakeholder interests, including the federal government,
states, private companies,
non-profit groups, and academia.
Facilitated by Tim Profeta,
director of the Nicholas Institute, and Professor Michelle
Nowlin of the Duke University School of Law, the conference considered topics
including creative concepts
for resourcing NEPA, improving document preparation
and accessibility, increasing
effective agency and public
involvement, ensuring accountability for mitigation
and monitoring, expanding
use of adaptive management, and retooling environmental impact statements
and assessments for the
21st century.
Possible improvements
to NEPA implementation
emerged from the conference, such as reconnecting
agency leaders at agencies responsible for NEPA
to the evaluation process,
organizing within and across
agencies for efficiency and
improved analysis, maximizing the flexibility of the NEPA
regulations, new guidance
to improve agency performance, and ways to enhance
the transparency of federal
decisions.
A report of the conference is being prepared and
could serve as the basis for
a follow-up conference and
reform agenda.
ELI in Action Ocean Program report on marine protected areas
The ELI Ocean Program
released a report in February that will help lawmakers in the Caribbean
achieve a stronger, more
uniform approach toward
enforcement in marine protected areas. The report
reviews and compares MPA
laws based on the regulated activities allowed and
the enforcement powers
they provide.
Legal Frameworks for
MPA Enforcement in the
Caribbean: Challenges and
Opportunities fulfills a recommendation by regional
practitioners that emerged
during a peer-to-peer workshop organized by the Gulf
and Caribbean Fisheries
Institute and hosted by the
Florida Keys National Marine
Sanctuary. Twenty-two MPA
managers from 14 countries
and territories attended the
workshop, where participating MPA managers identified
a common need to better
understand best practices in
MPA legislation. ELI’s work
identified model approaches
as well as gaps where laws
and regulations could be
strengthened.
“ELI is excited to help
Caribbean nations with the
legal challenges associated
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
with their new marine protected areas,” said Senior
Attorney Read Porter. “We’re
proud that our work will not
only help protect important
fish stocks and coral reefs,
but also the livelihoods
that depend on a healthy
ocean.”
Identifying the similarities
and differences in statutes
across eight Caribbean nations, the study also looks
at how violations are prosecuted and the penalties
available. The report provides a basis for individual
countries and the Caribbean
as a whole to improve the
legal foundations for MPA
enforcement.
M A Y / J U N E 2 0 1 5 | 57
ELI Report
Panelists from presentation on state authority in Toxic Substances
Control Act reform included David Goldston, Judah Prero, Keith Matthews, and Martha Marrapese.
The reception area at ELI’s new headquarters at 1730 M St. NW
makes good use of the Institute’s logotype and design scheme, setting the tone for visitors and ELI partners.
More than 30 participants attended the 2015 Western Boot Camp
on Environmental Law in March, held in Seattle, Washington, for
the first time.
The ELI Ocean Program has produced a Restoration Projects Map highlighting where Deepwater Horizon restoration and recovery projects are
taking place. See following page for full story.
ELI’s monthly networking event attracts over 40 some young attorneys for a lively meet and greet.
Prof. John Nolon, left, at ELI for the launch of his new book, Protecting the Environment Through Land Use Law: Standing Ground. Seen
here with Brenden McEneaney and Julia Anastasio.
58 | T H E E N V I R O N M E N T A L F O R U M
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
ELI Report
Policy Brief
Gulf of Mexico Restoration Projects Map
proves quite an adventure
David Roche
Staff Attorney
ELI’s Gulf of Mexico project began in the aftermath
of the Deepwater Horizon oil
spill. We work with local and
national partners to develop
materials and host training workshops designed to
help people in the gulf understand and participate in
the different processes that
were set in motion by the
spill — processes that are
expected to fund billions of
dollars of restoration projects. A primary goal of our
work is to provide information that is responsive to
community needs.
Along those lines, in
early 2015, ELI’s Teresa
Chan was checking in with
one of our community-based
NGO partners in Louisiana.
The conversation turned to
our Restoration ProjectsDatabase, which tracks
restoration and recovery
projects that have been approved under the Deepwater
Horizon processes. Our
partner said something like
this: “It’s been very useful
for us. But can you provide
a visual?”
Then, in the spirit of creative problem-solving that
underlies all of what we try
to accomplish at ELI, we
came to a conclusion that
we all have heard a lot in
these hallways: “But we can
try!”
So we tried. An hour
of experimenting proved
hopeful enough to lead to
a few more hours, then a
weekend, then another few
weeks of beta-testing. A
month or so after the original conversation, the map
was ready. Now, anyone
with an internet connection
can go to our map to see a
snapshot of gulf recovery
and find details about specific projects. (See map at
left.)
The journey from conversation to concept to final
product was by no means
direct. It was more of an
adventure — set a few
lawyers loose with HTML
coding, and you’re bound
to have some interesting
wrong turns. But the indirect adventure that led to
the map allowed us to take
a step back and ask ourselves, “What would make
this visual display most useful?” Most importantly, ELI’s
mission to support communities encourages us to
ask our partners the more
essential question: “What
do you need?”
The Restoration Projects
Map we devised is not what
we originally envisioned. Instead, it tries to provide our
community partners with
what they need to engage
with the oil spill processes,
rather than providing all of
the information we could
find. What we heard is that
folks wanted a simple display that would show where
the restoration dollars are
being spent.
Responding to what
we heard, the final map is
color-coded by restoration
process, and allows users
to zoom in and interact with
each project icon. Click
on an icon and a text box
pops up showing the project
description, project cost,
and a website for more
information. Click on the
website link to take a deep
dive down the rabbit hole
and open the project page
in our Restoration Projects
Database (which started
this conversation in the first
place). There, users can
see everything they need to
begin engaging with oil spill
restoration, with categories
ranging from status of environmental impact review
to public participation and
contact information.
Where do we go from
here? Well, to start, the gulf
team will keep the Restoration Projects Map and Database up to date. At a more
general level, the team will
continue talking to people
in the gulf states and beyond about how we can support effective restoration
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
and recovery that builds
upon meaningful input from
residents and communities.
Zooming out a bit further,
the Ocean Program will
continue supporting ocean
and coastal management
systems that are based on
local priorities, inclusive
and effective processes,
and best available information. The development of
straightforward, interactive
tools like the Restoration
Projects Map is a primary
way we convey information
so people can engage in law
and policy processes.
When I joined ELI a
couple of years ago, Ocean
Program Director and Senior
Attorney Kathryn Mengerink
said to me, “We’re going to
make a difference, and it’s
going to be an adventure.”
Kathryn is true to her word.
Experiences like the development of the Restoration
Projects Map have made me
confident that communitydriven environmental solutions are the best way to
make law work for people,
places, and the planet.
But, for that model to
work, we have to listen. So,
if you have any ideas you’re
pondering or questions you
think should be answered,
ask us. We’re listening, and
we’re ready for an adventure.
M A Y / J U N E 2 0 1 5 | 59
ELI Report
Closing Statement
Turning Ivory Towers Into Grassroots Flowers
Scott Schang
Acting President
F
or the past three years, ELI has
been conducting oral histories with
founders of modern environmental
law. One commonality struck me when
I asked Russ Train, Bill Ruckelshaus,
and Bill Reilly why environmental law
was able to take off in the early 1970s.
They all said, to paraphrase: Because
the public saw and related to environmental degradation and demanded
change, at a time politicians from both
parties thought they could win votes by
acting.
Today, both elements in that winning
combination are missing. The most
obvious pollution has faded from sight
while the pressing threats of climate
change and larger scale environmental
degradation such as biodiversity loss
are largely invisible and occur over long
time scales.
And environmental protection is
largely the province of one political
party while the other party has little
prospect of winning over environmental voters. The pyramid that existed
in the 1970s, with a broad base of
grassroots support demanding action
of leaders at the top of both parties,
has become inverted in the 2010s.
60 | T H E E N V I R O N M E N T A L F O R U M
A relatively small cadre of scientists,
environmentally aware citizens, and
policy professionals, ivory tower denizens, so to speak, are trying with very
limited success to convince the public
and politicians of the need for action.
One of the symptoms and a key
cause of this problem is the lack of
diversity among environmental professionals. Although diversity is often
discussed from an employment perspective, it is less well understood as
a reason environmental issues have
lost the public’s understanding and
support.
As the profession has morphed
into a highly specialized, insular
group, we fail to reflect the true diversity of the American populace and
thus lack the skills to understand and
articulate environmental issues in a
way to reflect and motivate our fellow
citizens.
An important report by Dr. Dorcetta
Taylor prepared for Green 2.0 explains
that diversity is crucial because it
reflects the strength and foundation
of America: its melting pot of perspectives, life experiences, and cultural
understandings. Looking at ELI’s senior
management and its board, looking at
the average ELI program participant, or
to broaden the horizon, looking at the
ABA spring meeting, the profession is
a small, closely knit group of people
largely from the same race, class,
educational institutions, and life experiences.
No wonder the public has lost sight
of environmental issues — the issues
our profession focuses on are those
things our professional consensus
identifies as the most pressing. Few
environmental professionals live in
lower income neighborhoods or grew up
in them. Few know what it is to work a
field, live from paycheck to paycheck,
believe in “creation care,” or live in fear
of being fired because of whom they
love. Few of us can speak with people
outside our profession in a relatable
way about why the things we care about
are vitally important to their lives, and
therein lies the key weakness.
This divide between our profession
and today’s populace means that environmental professionals’ perspectives
are too narrow, that our communications are targeted to each other, and
that we continue to hire and collaborate with people like ourselves. When
we ask each other to give our friends
and colleagues informational interviews, we unthinkingly establish another link in the “good old environmentalist network,” usually with no thought
to how we might expand the network to
reflect a rapidly changing America.
To address this, thanks to funding
from Beveridge & Diamond, ELI has
a paid summer law clerk position for
law students from traditionally underrepresented backgrounds. But the pool
of candidates is far too shallow. ELI
is working to conduct outreach to colleges and law schools to communicate
why the work of our profession is more
important than ever to advance public
health, the environment, and human
rights. ELI’s Environment 2050 project
also seeks to identify the common
environmental ethics shared by Americans that can be used to rebuild public
support for environmental progress.
As an organization with broad support across political perspectives
from all parts of the profession, ELI
is uniquely situated to undertake the
vital work to help knit together a broadbased environmental consensus to
support future progress. As demonstrated by Staff Attorney David Roche’s
PoLIcy BrIef on the previous page, ELI
staff have decades of experience working with diverse communities around
the United States and the globe to
understand their environmental and
public health needs and translate them
into action. It is critical for ELI and the
profession to continue to build this
core competency; success in our joint
mission depends upon it.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2015
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