<h4><em>Under review</em></h4>
<p>In the United States, environmental law has <a href="#evolution-environmental-law-policy">evolved</a> into a combination of federal, state, and local laws, regulations, and policies. Environmental laws include <a href="#international-environmental-law">international treaties</a> as well as statutory law made by <a href="#role-of-congress">Congress</a><a href="http://live-eli.pantheon.io/#_msocom_3"></a&gt;, <a href="#role-of-states-and-tribes">state legislators, and tribes</a><a href="http://live-eli.pantheon.io/#_msocom_4"></a&gt;, administrative regulations promulgated by state and <a href="#role-of-federal-agencies">federal government agencies</a>, <a href="#local-environmental-law">local ordinances</a> created by municipal bodies and case law created by <a href="#role-of-courts">judges</a> deciding legal disputes. These environmental laws create a complex and interconnected web of rules intended to protect the environment and public health.</p>
<p>For a discussion of how environmental professionals work, watch a recent ELI seminar on <a href="http://www.eli.org/summer-school-introduction-careers-environmental-law… Introduction to Careers in Environmetnal Law and Policy</a>.</p>
<h3><a name="evolution-environmental-law-policy"></a>Evolution of Environmental Law and Policy</h3>
<h5>Common Law Origins</h5>
<p>The <a href="#" title="For a thorough discussion of the history of environmental law, see Law of Environmental Protection chs. 1-9.">roots of environmental law</a> in the United States can be found in our common law tradition. Common law is a body of judicially-created law that has developed over time through court decisions issued to resolve lawsuits brought by parties in conflict. The common law system is based on a respect for precedent that requires courts to render new decisions in conformance with past decisions. This respect for prior case law provides consistency and predictability in the law.</p>
<p>Environmental law largely grew from the common law doctrines of public nuisance and the public trust doctrine. <a href="http://www.nuisancelaw.com/learn/historical#ELM&quot; target="_blank">Public nuisance law</a> protects public safety and welfare by placing restrictions on uses of and activities permitted on private land. The public trust doctrine established the cultural and legal understanding that certain natural resources should be reserved for public use and the common welfare. This doctrine has been used to<a href="https://supreme.justia.com/cases/federal/us/161/519/case.html&quot; title="Greer v. Connecticut, 161 U.S. 519 (1896)."> ensure access to navigable waters</a> for all citizens, conserve federal lands for uses compatible with the public interest, and to protect wildlife for the public benefit. While both the law of <a href="https://web.archive.org/web/20131206110455/http://nuisancelaw.com/sites…; target="_blank">public nuisance</a> and the <a href="http://lawschool.unm.edu/nrj/volumes/51/1/35-94.pdf&quot; target="_blank">public trust doctrine</a> are still used as tools in modern environmental litigation, in most areas, early common law doctrines have been supplanted by enforcement efforts under our complex regulatory system of state, federal and local laws passed by legislators. Statutory law passed by legislative bodies usually <a href="#" title="For example, the Supreme Court found that the Clean Air Act displaced federal common law claims for climate change damages in American Electric Power Co. v. Connecticut: “’[W]hen Congress addresses a question previously governed by a decision rested on federal common law,’ the Court has explained, ‘the need for such an unusual exercise of law-making by federal courts disappears.’ Milwaukee II, 451 U. S., at 314 (holding that amendments to the Clean Water Act displaced the nuisance claim recognized in Milwaukee I).” See generally AEP. v. Connecticut—Global Warming Litigation and Beyond.">displaces</a> common law.</p>
<p>For a discussion of displacement of common law and the use of nuisance in climate change cases, listen to and download materials from the ELI seminar <a href="http://www.eli.org/Seminars/past_event.cfm?eventid=609"><em>American Electric Power Co. v. Connecticut</em>: The Next Landmark Supreme Court Climate Case</a>. These issues are also discussed in the following ELR articles: Kevin Gaynor, <a href="http://elr.info/news-analysis/40/10845/challenges-plaintiffs-face-litig… Plaintiffs Face in Litigating Federal Common-Law Climate Change Claims</a>.</p>
<p>A series of cases filed in all 50 states seeks to use the public trust doctrine to force action on climate change, for example. See also <a href="http://www.eli.org/eli-press-books/creative-common-law-strategies-for-p… Common Law Strategies for Protecting the Environment</a> edited by Cliff Rechtschaffen and Denise Antolini for a discussion of innovative ways to use common law to address environmental issues.</p>
<h5>The Beginnings of Modern Environmental Law</h5>
<p>The origins of our current system of environmental laws can be traced back to the mid-1800s when the federal government first began to take steps to protect, catalogue, and regulate the natural environment. The Department of the Interior was founded in 1849 and tasked with the management of federally owned lands and the creation of geological surveys of the western territories. Yellowstone was established as the <a href="http://www.nps.gov/yell/naturescience/index.htm&quot; target="_blank">first National Park</a> in 1872. The first federal environmental statute, the <a href="https://www.law.cornell.edu/uscode/text/33/407">Rivers and Harbors Appropriation Act</a> was passed in 1899.</p>
<p>Environmental law and policy began to gain momentum under President Theodore Roosevelt. The first <a href="http://www.fws.gov/refuges/">National Wildlife Refuge</a> was established at <a href="http://www.fws.gov/pelicanisland/&quot; target="_blank">Pelican Island, Florida</a> in 1903. The <a href="http://www.doi.gov/whoweare/history.cfm&quot; target="_blank">National Park Service</a> was created within the Dept. of the Interior in 1916. During the Great Depression, a work relief program called the <a href="http://www.ccclegacy.org/&quot; target="_blank">Civilian Conservation Corps</a> provided federal funding for projects focused on conservation and development of federally owned agricultural and park lands. The focus of environmental laws passed during the first century of environmental law focused primarily on the conservation of natural resources.</p>
<p>For a timeline of environmental protection efforts, see <a href="http://www.factmonster.com/spot/earthdaytimeline.html">http://www.factm…;
<p>A good list of environmental laws organized by date of passage is available here <a href="http://en.wikipedia.org/wiki/Timeline_of_major_U.S._environmental_and_o…; &nbsp;and a history of environmental policy is available here <a href="http://en.wikipedia.org/wiki/Environmental_policy_of_the_United_States"…;
<h5>The Rise of Modern Environmental Law and Policy</h5>
<p>Historically, most pollution control concerns had been left to the states to resolve -- air and water pollution were largely seen as subject to the states’ <a href="#" title="According to Black’s Law Dictionary, police power “is the exercise of the sovereign right of a government to promote order, safety, security, health, morals and general welfare within constitutional limits and is an essential attribute of government.”">police powers</a>. As a result of rapid economic and technology growth, the federal government began to address pollution control after World War II. In 1948, the first federal law addressing water pollution, the <a href="https://www.law.cornell.edu/uscode/text/33/chapter-26">Federal Water Pollution Control Act</a>, was passed. Then, in 1955, the<a href="http://www.gpo.gov/fdsys/pkg/STATUTE-69/pdf/STATUTE-69-Pg322.pdf"&gt; Air Pollution Control Act</a><a href="http://live-eli.pantheon.io/#_msocom_21"></a&gt; was passed as the first federal air pollution law. A growing public awareness of pollution’s impact on public health and the environment in the 1960s led to the strengthening of federal pollution control laws in the 1970s, when for the first time the federal government was given the leading role in pollution control.</p>
<p>President Richard Nixon <a href="http://www.epa.gov/aboutepa/history/topics/epa/15c.html&quot; target="_blank">created the Environmental Protection Agency (EPA)</a> in 1970 through a <a href="http://www.epa.gov/aboutepa/history/org/origins/reorg.html">Reorganizat… Plan</a>. This signaled a boom in environmental law reform during the1960s -1980s which resulted in passage of the majority of our current federal environmental statutes including <a href="http://live-eli.pantheon.io/keywords/natural-resources#national-environ…;, the <a href="http://www.eli.org/keywords/air-1">Clean Water Act</a>, the <a href="http://www.eli.org/keywords/air-1">Clean Air Act</a>, and <a href="http://www.eli.org/keywords/waste-0#CERCLA">CERCLA</a&gt;, to name a few.</p>
<p>The history of modern environmental policy is told in Richard Lazarus’ “The Making of Environmental Law,” <a href="http://www.press.uchicago.edu/ucp/books/book/chicago/M/bo3629140.html">…;, and Richard Lazarus and Oliver Houck’s “Environmental Law Stories,”&nbsp;<a href="http://store.westacademic.com/s.nl/it.A/id.1789/.f">http://store.westac…;
<h3><a name="role-of-congress"></a>The Role of Congress</h3>
<p>The U.S. Constitution does not directly empower Congress to govern environmental issues. Congress’s authority to enact laws regulating the environment instead derives primarily from the Commerce Clause, found in Article I § 8 of the <a href="#" title="The Congress shall have Power …To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…">U.S. Constitution</a>. The Commerce Clause reserves to the federal government the right to regulate interstate commerce – or commerce between states. There is a constant tension between state and federal power when Congress uses its authority under the Commerce Clause. Cases testing the definition of interstate commerce and exploring the <a href="https://web.archive.org/web/20080705051224/http://www.endangeredlaws.or… of federal power under the Commerce Clause</a> have been extensively litigated throughout our history continuing up to the present day. For example, the extent of federal power over surface water pollution is currently in dispute and quite unclear. Similarly, several cases have addressed whether the federal Endangered Species Act (ESA) can govern species found only in one place, although all courts to date have found that it can.</p>
<p>The evolving understanding of the limit of federal jurisdiction over water pollution is putting wetlands and other valuable resources at risk, according to an <a href="http://www.elistore.org/reports_detail.asp?ID=11416&amp;topic=Wetlands"… report</a>. The interplay between the Clean Water Act and the Constitution is discussed in Robin Kundis Craig, <a href="http://www.eli.org/eli-press-books/clean-water-act-and-the-constitution… Clean Water Act and the Constitution, 2d ed</a>. For a discussion of the seminal Rapanos decision, see William Want, <a href="http://elr.info/news-analysis/36/10214/us-supreme-court-review-rapanos-…. Supreme Court Review of “Rapanos v. United States and Carabell v. United States Army Corps of Engineers”: Implications for Wetlands and Interstate Commerce</a>&nbsp; and Calvert Chipchase, <a href="http://elr.info/news-analysis/33/10775/clean-water-act-whats-commerce-g… Clean Water Act: What’s Commerce Got to Do With It</a>.</p>
<p>In addition to its power under the Commerce Clause, Congress also has authority over environmental law and policy through its constitutional <a href="#" title="The Congress shall have Power … to pay the Debts and provide for the common Defence and general Welfare of the United States…">spending</a> and <a href="#" title="[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur….">treaty</a> powers. In the division of powers between the three branches of the federal government, Congress holds the power of the purse. Using this power, Congress can offer states incentives to enact environmentally friendly provisions and <a href="#" title="The Supreme Court’s decision in National Federation of Independent Businesses v. Sebelius No. 11-393 (June 28, 2012) calls into question the scope of Congress’ power to withhold existing funding to states.">withhold funding</a> when states act in environmentally irresponsible ways. The federal government can also regulate migratory species and other environmental issues using its exclusive right under the Constitution to enter international treaties.</p>
<p>For a discussion of the current state of Commerce Clause and spending powers jurisprudence in relation to environmental law, as well as a discussion of Congress’ power to withhold funding from the states, listen to a recent ELI teleconference <a href="http://www.eli.org/Seminars/past_event.cfm?eventid=660">What Does the Healthcare Ruling Mean for Environmental Law</a>.</p>
<h3><a name="role-of-federal-agencies"></a>The Role of Federal Agencies</h3>
<p>Federal agencies are responsible for implementing and enforcing federal environmental laws. The <a href="http://www.epa.gov">EPA</a&gt; is responsible for the preponderance of federal environmental regulatory and enforcement activities. The Department of the Interior implements and enforces most natural resource laws, while the Departments of <a href="http://www.commerce.gov/">Commerce</a&gt;, <a href="http://www.usda.gov/wps/portal/usda/usdahome">Agriculture </a>and <a href="http://www.justice.gov/">Justice </a>and the<a href="http://www.usace.army.mil/"&gt; Army Corps of Engineers</a><a href="http://live-eli.pantheon.io/#_msocom_29"></a&gt; also play important roles.</p>
<p>For a discussion of administrative law generally, see <a href="http://www.law.cornell.edu/wex/administrative_law&quot; target="_blank">http://www.law.cornell.edu/wex/administrative_law</a&gt;. For a discussion of how to research administrative law generally, see <a href="http://www.loc.gov/law/help/administrative.php&quot; target="_blank">http://www.loc.gov/law/help/administrative.php</a>.</p&gt;
<p>The National Environmental Policy Act (NEPA) created the <a href="http://www.whitehouse.gov/administration/eop/ceq/&quot; target="_blank">Council on Environmental Quality</a> (CEQ). The CEQ is the first and only cabinet-level council of environmental advisors to the President. The CEQ is responsible for promulgating regulations under NEPA and mediating disputes between agencies regarding the sufficiency of NEPA compliance efforts and other environmental matters.</p>
<p>When empowered to implement a statute, agencies promulgate regulations, which appear in the <a href="http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR…; target="_blank">Code of Federal Regulations</a>. In addition to promulgating regulations, federal agencies are responsible for enforcement of environmental laws using civil enforcement, criminal enforcement, and compliance assurance activities.</p>
<p>The Administrative Procedure Act (APA) is an important procedural statute that helps to enforce environmental laws and regulations. The <a href="http://www.epa.gov/lawsregs/laws/apa.html&quot; target="_blank">APA</a> establishes the procedural framework for agencies to make decisions, such as provisions requiring agencies to seek public comment during the decision-making process. The APA also establishes a framework for <a href="#role-of-courts">judicial review</a> over agency actions. For example, after an agency has promulgated a regulation, persons affected by the regulation can seek judicial review to ensure the agency’s rules are consistent with the law and are not arbitrary or capricious.</p>
<p>The process for an agency to promulgate a rule or regulation can be quite complex and can involve many layers of review within the Executive, Legislative and Judicial Branches. A Congressional Research Service report provides a good overview of this process here. <a href="http://www.thecre.com/pdf/20120422_RL32240.pdf&quot; target="_blank">http://www.thecre.com/pdf/20120422_RL32240.pdf</a&gt;. Another CRS report addresses the rulemaking process and judicial review here <a href="http://www.wise-intern.org/orientation/documents/CRSrulemakingCB.pdf&qu…; target="_blank">http://www.wise-intern.org/orientation/documents/CRSrulemakingCB.pdf</a…;
<p>A key component in administrative law is the requirement that agencies propose actions for public notice and comment and respond to the comments before taking final action. This helps to ensure that agencies take well-informed actions and that the public’s views are taken into account. An excellent guide to commenting on agency actions is available in Elizabeth Mullins, <a href="http://www.eli.org/eli-press-books/art-of-commenting%3A-how-to-influenc… Art of Commenting: How to Influence Agency Actions with Effective Comments</a>. For a discussion of the important role the National Environmental Policy Act has played in ensuring citizen involvement in government decisionmaking, see <a href="http://www.elistore.org/reports_detail.asp?ID=11405&amp;topic=NEPA">NEPA Success Stories: Celebrating 40 Years of Transparency and Open Government</a>.</p>
<h3><a name="role-of-courts"></a>The Role of Courts</h3>
<p>Where congressional legislation and agency regulation end, litigation in the courts begins. When a case is filed alleging a violation of a federal environmental law, it usually is filed in the district court located where the alleged violation occurred. In some environmental lawsuits, called “<a href="http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Fed…; target="_blank">judicial review</a>,” disagreement is over whether federal regulations are consistent with statutory requirements and whether federal agencies are acting within the limits of the law. To resolve these conflicts, interested parties such as NGOs, corporate interests, and private individuals file lawsuits in federal court. In such cases, initial review of the agency action often begins directly at the appellate level in the <a href="http://www.cadc.uscourts.gov/internet/home.nsf//content/home+page#&quot; target="_blank">United States Court of Appeals for the D.C. Circuit</a><a href="http://live-eli.pantheon.io/#_msocom_35"></a&gt;. As a result, the D.C. Circuit is one of the busiest, and arguably most influential, federal appellate courts in the country on environmental regulatory matters.</p>
<p>A good overview of the federal court system is provided here <a href="http://www.law.cornell.edu/wex/federal_courts&quot; target="_blank">http://www.law.cornell.edu/wex/federal_courts</a>.</p&gt;
<p>Judge Douglas Ginsburg, a long-time judge on the D.C. Circuit, describes the court’s role in administrative law in a 2011 speech here <a href="https://www.law.georgetown.edu/academics/law-journals/gjlpp/upload/zs80…;
<h5><a name="standing"></a>Standing to Sue</h5>
<p>Before a case will be heard in court, a plaintiff must demonstrate <a href="http://www.justice.gov/usao/eousa/foia_reading_room/usam/title4/civ0003… to sue</a>. This is because Article III of the U.S. Constitution limits federal court jurisdiction to actual “cases or controversies” that arise between adverse parties. The U.S. Supreme Court has outlined three requirements that must be met by a petitioner to establish Article III standing: (1) injury directly suffered by the petitioner (2) that is caused by the conduct petitioner complained of and (3) that is redressable by a favorable court decision. This seemingly straightforward standing test has become a contentious issue in environmental lawsuits where courts have been faced with the question – who has standing to complain about air pollution or harm to endangered species?</p>
<p>Two ELI seminars on standing issues, one <a href="http://www.eli.org/events/access-courts-after-massachusetts-v-epa-who-h… and <a href="http://www.eli.org/events/access-courts-after-massachusetts-v-epa-who-w…; the <em>Massachusetts v. EPA</em> decision, offer a discussion of and insights into the standing issues.</p>
<p>To better understand the jurisdiction of federal courts, read this <a href="http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jur…; target="_blank">http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jur…;
<h5><a name="citizen-suits"></a>Citizen Suits</h5>
<p>Many federal environmental laws allow concerned citizens to sue and enforce environmental protections by empowering citizens to act as “private attorneys general” to protect natural resources. These “citizen suits” are somewhat unique to environmental laws. For example, under the Clean Water Act, a citizen who enjoys recreational activities in a local river would be able to sue a polluter who is illegally dumping into the river if the local, state or federal agency had not sought to end the dumping. They have been somewhat controversial, with accusations of people suing just to recuperate attorneys fees, but others believe they serve a useful check on agency inaction (See <em>ELR</em> articles <a href="http://elr.info/news-analysis/33/10704/now-more-ever-environmental-citi…;, <a href="http://elr.info/news-analysis/33/10721/environmental-citizen-suits-thir…;, and <a href="http://elr.info/news-analysis/16/10162/citizen-suits-defense-perspectiv…; for three different perspectives).</p>
<p>For an understanding on how to bring citizen suits, see <a href="http://www.eli.org/research-report/citizens-guide-using-federal-environ… Citizen’s Guide to Using Federal Environmental Laws to Secure Environmental Justice</a>.</p>
<h3><a name="role-of-states-and-tribes"></a>The Role of the States and Tribes</h3>
<p>States remain primarily responsible for implementing pollution control requirements. In establishing the EPA and passing the new federal environmental protection statutes, Congress relied on the model of cooperative <a href="http://www.cliffsnotes.com/more-subjects/american-government/federalism…; title="See this page for a discussion of types of federalism.">federalism</a>. Under cooperative federalism, states are asked to implement and enforce federal laws while retaining the power to create laws more stringent than federal laws. The vast majority of federal environmental laws are thus implemented by the states. The same is largely true with Indian tribes, who remain sovereign over their lands.</p>
<p>For a discussion of the role of Native American tribes in environmental enforcement, see David Coursen, <a href="http://elr.info/news-analysis/23/10579/tribes-states-indian-tribal-auth… as States: Indian Tribal Authority to Regulate and Enforce Environmental Law and Regulations</a>, Joe Stuckey, <a href="http://elr.info/news-analysis/31/11198/tribal-nations-environmentally-m… Nations: Environmentally More Sovereign than States</a>, and &nbsp;Jane Kloeckner, <a href="http://elr.info/news-analysis/42/10057/hold-tribal-sovereignty-establis… On to Tribal Sovereignty: Establishing Tribal Pesticide Programs That Recognize Inherent Tribal Authority and Promote Federal-Tribal Partnerships</a>.</p>
<p>An example of cooperative federalism can be seen in the Resource Conservation and Recovery Act (RCRA). RCRA governs solid and hazardous wastes. The EPA issues federal regulations under RCRA. States can establish their own waste statutes and regulatory schemes based upon RCRA’s requirements. If EPA finds these state regulatory efforts to be consistent with the federal requirements, then state agencies are given approval to implement and enforce RCRA and state agency action “has the same force and effect” as <a href="#" title="42 U.S.C. § 6926(d)">EPA action</a>.</p>
<p>Cooperative federalism can also be more deferential to state authority. The <a href="http://elr.info/legislative/federal-laws/surface-mining-control-and-rec… Mining Control and Reclamation Act of 1977</a> (SMCRA) establishes a federal framework that regulates mining activities in the absence of state regulations. A state may avoid the federal requirements entirely by establishing its own laws to substitute for SMCRA’s requirements.</p>
<p>For a discussion of federalism and how it operates in environmental law, see Douglas Kendall, <a href="http://www.eli.org/eli-press/redefining-federalism-listening-states-sha… Federalism</a>. For an interesting article on cooperative federalism in both the pollution control and natural resource realms, see Robert Fischman, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=824385">Cooperative Federalism and Natural Resources Law</a>.</p>
<p>In general, federal environmental laws create minimum standards. They do not prevent the states from enacting more stringent environmental protections. For example, <a href="http://www.arb.ca.gov/research/aaqs/caaqs/caaqs.htm&quot; target="_blank">California has adopted air quality standards</a> for ozone and particulate matter that are more protective than the federal standards under the Clean Air Act and has a <a href="http://www.dtsc.ca.gov/&quot; target="_blank">chemical regulatory system</a> that is broader in scope than the federal program.</p>
<p>See the ELI Research Report <a href="http://www.eli.org/sites/default/files/eli-pubs/d7-07.pdf">Federal Regulations and State Flexibility in Environmental Standard Setting</a> for a discussion of how states can be more nimble than the federal government in implementing environmental law.</p>
<p>Additionally, many state legislatures have adopted state laws modeled after federal laws such as NEPA. In California, the <a href="http://ceres.ca.gov/ceqa/&quot; target="_blank">California Environmental Quality Act</a><a href="http://live-eli.pantheon.io/#_msocom_43"&gt; </a>(CEQA) was based on NEPA, but its focus is on ensuring that state, rather than federal, government agencies take environmental impacts into account prior to taking action. In New York, the <a href="http://www.dec.ny.gov/permits/6208.html&quot; target="_blank">State Environmental Quality Review</a> (SEQR) law serves the same purpose.</p>
<p>The differences between federal and state court systems are discussed here <a href="http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jur…;
<h3><a name="local-environmental-law"></a>Local Environmental Law</h3>
<p>Local environmental laws are probably the least visible form of environmental law, but at the same time they are some of the laws felt most directly by average citizens, such as <a href="http://www.eli.org/research-report/planning-development-and-sewage-infr… use and planning</a>. Most localities have a zoning code that outlines permissible uses for private land depending on its location. Zoning laws are used to <a href="http://www.eli.org/eli-press-books/smartcode-solution-to-sprawl,-the">g… development</a>, protect areas important to the public interest and to limit unfavorable results of certain land uses.</p>
<p>For a fascinating exploration of local environmental law, see John Nolon, <a href="http://www.eli.org/eli-press/new-ground-advent-local-environmental-law"… Ground: the Advent of Local Environmental Law</a> and <a href="http://www.eli.org/eli-press/open-ground-effective-local-strategies-pro… Ground: Effective Local Strategies for Protecting Natural Resources</a>.</p>
<p>In addition to zoning, local governments make infrastructure planning decisions that affect the environment. The new <a href="http://www.smartgrowth.org/&quot; target="_blank">smart growth movement</a> has led to local governments emphasizing development and infrastructure plans that minimize environmental impacts by supporting development of pedestrian and cyclist-friendly communities, privileging public transportation options over highway development and upgrading older less environmentally friendly storm water management infrastructure. Cities have helped spur new environmentally friendly trends and initiatives by passing local ordinances in support of urban agriculture, recycling programs, and creating local funding sources to support green roofs, solar panel installation or preservation of historic buildings. Similarly, many cities are on the front lines of taking action to reduce climate change. Other environmental functions carried out by local governments include managing waste removal and recycling, managing city parks and managing the local water and utility systems.</p>
<p>For an example of how localities can use local ordinances to protect the environment and preserve biodiversity, see James McElfish, <a href="http://www.eli.org/eli-press-books/nature-friendly-ordinances">Nature Friendly Ordinances</a>.</p>
<h3><a name="international-environmental-law"></a>International Environmental Law</h3>
<p>Many environmental issues are international in nature as they transcend boundaries: some forms of air pollution, like greenhouse gas emissions, international trade in chemicals, international transportation of hazardous wastes, etc. While domestic environmental law in the United States has taken root since the 1960s, so has international environmental law. Several major treaties address <a href="http://ozone.unep.org/new_site/en/index.php&quot; target="_blank">stratospheric ozone destruction</a>, <a href="http://www.cites.org/&quot; target="_blank">endangered species</a>, <a href="http://www.cbd.int/&quot; target="_blank">biological diversity</a>, <a href="http://www.basel.int/&quot; target="_blank">hazardous waste</a>, <a href="http://www.pic.int/&quot; target="_blank">chemical regulation</a>, and many other important topics.</p>
<p>For a good overview of the operation of international environmental law, see this article <a href="http://www.ucar.edu/communications/gcip/m3elaw/m3pdfc1.pdf&quot; target="_blank">http://www.ucar.edu/communications/gcip/m3elaw/m3pdfc1.pdf</a>.</p&gt;
<p>Most of these negotiations are conducted among nations through the United Nations. The <a href="http://www.unep.org&quot; target="_blank">United Nations Environment Programme</a> and other international bodies have responsibility for environmental issues. Periodically, nations gather to forge a path forward on environmental and sustainable development issues as well.</p>
<p>Ecolex, <a href="http://www.ecolex.org&quot; target="_blank">www.ecolex.org</a&gt;, is a terrific gateway to international treaties and laws. The American Society of International Law also has a helpful overview and research guide here <a href="http://www.asil.org/erg/?page=ienvl&quot; target="_blank">http://www.asil.org/erg/?page=ienvl</a>.</p&gt;

Of Walls... and Windows
Scott Fulton - Environmental Law Institute
Environmental Law Institute
Current Issue
Scott Fulton

“For everything there is a season,” says the old Pete Seeger song, quoting the much older still book of Ecclesiastes. It seems that we are currently in the season of walls. The physical manifestation of this particular period may be the issue of the wall on our southern border. But there are other walls, and some of them have law as their concrete or steel.

In some instances, law is designed to operate as a barrier. In other circumstances, law operates more like a window with a screen, allowing things to pass through, but in a controlled way. Most of our environmental laws are designed to operate like the latter. But what happens when they operate like walls instead of windows?

This is on my mind coming off a gathering of environmental thought leaders at the Wingspread Retreat Center in Racine, Wisconsin — a collaboration by ELI and George Washington Law School around the idea of “reimagining environmental law.”

A good deal of discussion centered around an important new book just published by ELI Press entitled Legal Pathways to Deep Decarbonization in the United States. The book is premised on the idea that while a number of technologies and other methods are available to achieve radical reductions in greenhouse gas emissions, there are numerous impediments to implementing these technologies and methods at the necessary scale and speed. >Legal Pathways is an effort to identify these impediments and devise ways to overcome them.

Essentially a playbook for policymakers and lawyers, the book outlines over 1,000 recommendations or law-based pathways for reducing U.S. greenhouse gas emissions by at least 80 percent from 1990 levels by 2050. This 80x50 target is often described as “deep decarbonization,” in the sense that it would require systemic changes to the United States’ energy economy.

While the book is a bit of a beast (around 1,000 pages), and while the scale and complexity of deep decarbonization are enormous, the book has a fairly straightforward message: deep decarbonization is achievable in the United States using laws that exist or could reasonably be enacted.

So, on this question of walls versus windows, there was a particularly spirited debate at the Wingspread event about how to deal with the use of federal statutes like the National Environmental Policy Act and the Endangered Species Act, as well as state counterpart laws, to fuel local opposition to wind and solar projects. The concern behind the debate was that the energy transformation needed to respond to the climate challenge is being impeded in part by use of these legal tools.

Even when local opposition can ultimately be overcome, such opposition can slow project progress and, because of delay or other risk factors, put project financing and viability at risk. The net of this is a fairly slow progression to our energy future. For those who see rapid transformation of our energy system as pivotal to a successful climate change mitigation strategy, the rub is obvious.

It was fascinating to hear a group of lawyers who would likely in any other circumstance be staunch defenders of NEPA and the ESA questioning out loud whether these statutes should yield in the face of the climate dilemma. How should local environmental impacts be balanced against a mega-challenge like climate change? If the environment nets out to the positive through transformation to more renewable energy, should this be a sufficient response to localized environmental opposition? If, as climate scientists suggests, broader biodiversity collapse may attend anticipated changes in temperature, should incidental taking of species at the hands of wind or solar projects be seen as an unavoidable necessity? If there is a need to open the window more fully, how should that be accomplished?

Exceptions to these laws could be created, but this may be difficult to do in a way that does not open the door to other efforts to work around these foundational statutes for other kinds of development without compensating environmental positives.

Are there ways to use the existing framework so that the values of public engagement, alternatives analysis, and mitigation of localized impacts are honored rather than abridged? Could we, for example, frame up the broadest programmatic EIA in history, with the United States’ energy transition serving as the “major federal action” under review? Could a nation-wide EIS and wildlife conservation plan fashioned around such a review serve to overcome, legally and politically, local opposition to wind and solar projects?

As you can see, the event at Wingspread brought forward more questions than answers about whether and how to open the window, but the questions always come first.

Scott Fulton on law as a window and law as a wall.

Weeding Out Pollution: ELI Innovation Lab makes headway with new industry on promoting sustainable growth of legal cannabis
Anna Beeman - Environmental Law Institute
Environmental Law Institute
Current Issue

The burgeoning legal cannabis industry continues to be a hot button topic across the nation, especially as the environmental implications of cultivation emerge. David Rejeski, Kasantha Moodley, and Azi Akpan, the team behind ELI’s Innovation Lab, are building partnerships with stakeholders to advance the environmental performance of this new industry.

In 2017, the first industry estimate of energy use was made, 4.1 million megawatt-hours in one year, with demand set to increase by 162 percent in just 5 years. There are also several environmental and public health implications associated with the industry’s nutrient-rich water discharges, air emissions, pesticide use, plant waste, and packaging waste.

A total of 33 states have legalized marijuana for medical use. 10 of these states and Washington, D.C., have also legalized it for adult recreational use. With no federal oversight and a fragmented regulatory system, states and industry alike are challenged with addressing these concerns.

The Lab’s podcast series “Conversations with Environmental Disruptors” has brought together a diverse set of weed visionaries. ELI’s Akpan interviewed Kaitlin Urso on her role at Colorado’s state government Cannabis Environmental Assistance Program. Urso consults with cannabis cultivators on sustainability, and brings awareness about potential permitting requirements. Her job is to support cultivators in their compliance efforts, without imposing requirements or restrictions on these new and growing businesses.

She also promotes voluntary actions such as the installation of water collection and re-use systems and waste management systems. Air emissions are also a concern — terpenes emitted from cannabis plants are volatile organic compounds and can affect ozone levels when accumulated on a large scale. Urso strongly emphasizes the necessity to gather baseline data, quantify impacts, and determine benchmarks to inform environmental approaches to tackling these problems.

In a recent podcast titled “A Cannabis Cultivator — Breaking the Grass Ceiling,” Jesse Peters, founder of EcoFirma Farms, shows visitors to the ELI website his 23,000-square-foot, indoor, carbon-neutral farm operation in Portland, Oregon. The farm utilizes sensors and automation systems linked to a software platform that monitors and regulates the nutrient feed, light, and water needed for optimal plant growth.

Peters has made significant capital investments and explains how the added technology transformed the financial and environmental sustainability of EcoFirma Farms. He touts that automation and tracking has made EcoFirma much more successful and accountable, has saved costs on labor, and has successfully maintained the quality and quantity of products at a competitive price. Peters believes that technology development will play a crucial role in the sustainable growth of the industry.

Beyond these episodes and at the forefront of current efforts, the ELI Innovation Lab is developing and disseminating informative and accessible materials to promote understanding of industry-wide impacts and the actions (regulatory or voluntary) that could be taken to address them.

In April, ELI staff attended the National Cannabis Festival in D.C., where they distributed materials to raise awareness on lawful pesticide use for the cannabis industry. The materials were developed in collaboration with the American Bar Association’s Pesticides, Chemical Regulation, and Right-to-Know Committee.

The Lab will continue this work in the future through a series of educational materials focusing on the full spectrum of environmental challenges facing the industry.

Conference, ELR special issue showcase year’s best articles

In late March, ELI held the 12th Environmental Law and Policy Annual Review Conference in Washington D.C. Each year, Vanderbilt Law students work with an expert advisory committee and senior staff from ELI to identify the year’s best academic articles that present legal and policy solutions to pressing environmental problems, some of which are then presented at the conference.

In a panel on federal energy leasing, winning author Jayni Foley Hein of the Institute for Policy Integrity at NYU School of Law argued that the Department of the Interior should update fossil fuel leasing and royalty rates on federal lands to maximize public benefit and social welfare. Panelists Tommy Beaudreau of Latham & Watkins and Rebecca Fischer and Daniel Timmons of Wild Earth Guardians delved into how Hein’s proposed reforms could result in less fossil fuel production, fewer greenhouse gas emissions, and more revenue than under existing rules.

In another panel discussion, author Richard Schragger of University of Virginia Law School proposed that in order for cities to fight against state preemption of environmental laws they should forge alliances with national interest groups, powerful corporations, and metropolitan regions to preserve their power to regulate and promote their interests. Gus Bauman of Beveridge & Diamond, Kim Haddow of Local Solutions Support Center, and Lewis Rosman from the City of Philadelphia Law Department provided their perspectives on the challenges cities face in passing environmental legislation.

In the final panel, on free trade and selective enforcement of environmental laws, author Timothy Meyer of Vanderbilt University Law School argued that the World Trade Organization investigations of trade remedies should be reformed by creating a centralized enforcement procedure. Jay Campbell of White & Case, Sharon Treat from the Institute of Agriculture and Trade Policy, and Steve Wolfson of the Environmental Protection Agency discussed their analysis of the proposal based on their practitioner and policymaking experience.

The winning articles by Professor Hein, Professor Schragger, and Professor Meyer, as well as the comments from this year’s panelists, will be published in a special issue of ELR in August.

ELI 50th anniversary celebration rolls out series of policy events

Special programming in ELI’s 50th anniversary year recently featured themes of compliance and re-imagining governance.

In February, ELI co-hosted with Greenberg Traurig, LLP, a discussion about the foundational objectives of the Superfund law. Panelists from the firm and Exponent and the Chesapeake Legal Alliance delved into how these objectives have evolved over time. They talked about issues surrounding the remediation and cleanup of Department of Defense sites, approaches to working with regulatory agencies, and cutting-edge and emerging technologies for damage assessments and remediation.

The same month, ELI held a webinar that explored the opportunities presented by increased state autonomy in environmental protection. Moderated by Donald Welsh, executive director of the Environmental Council of the States, it featured experts in interstate environmental coordination and attorneys with compliance experience.

In line with the theme “re-imaging environmental governance,” ELI hosted a conversation in March about UN General Assembly Resolution 72/277, known as “Toward a Global Pact for the Environment.” While many experts agree that the measure could help fill the gaps in international environmental law by providing guidance and transparency for adjudication in courts, bolstering the importance of human rights in environmental protection, and promoting a greater integration of environmental principles in non-environmental fields, questions still remain.

Moderated by ELI’s Xiao Recio-Blanco, panelists discussed principles needed to realize the potential impact of the pact on the developing world. Panelists included Justice Antonio Herman Benjamin, minister of the National High Court of Brazil, Roy S. Lee, professor at Yale University School of Forestry and Environmental Studies, and Nicholas Robinson, professor at Elisabeth Haub School of Law at Pace University.

Programming in May will highlight wetlands protection and in June will feature gender and the environment. Join the Environmental Law Institute in discussing the forefront of policy issues as we celebrate 50 years of environmental progress.

Field Notes: 30th annual National Wetlands Awards on May 7

This year marks the 30th edition of ELI’s annual National Wetlands Awards. Since 1989, over 200 champions of wetlands conservation have been honored.

The program recognizes individuals who have demonstrated exceptional effort, innovation, and excellence in wetlands conservation at the regional, state, and local levels.

Please join the Environmental Law Institute at this year’s National Wetlands Award Ceremony, taking place on Tuesday, May 7, from 6 to 8 p.m. at the U.S. Botanic Gardens in Washington, D.C.

This year’s awards include the 30th Anniversary Lifetime Achievement Award, to be presented to Richard Grant of Narrow River Preservation Association at the ceremony. Categorical awards will go to Greg Sutter of Westervelt Ecological Services for the Business Leadership award, Joel Gerwein at California State Coastal Conservancy for the Conservation & Restoration award, Robert Thomas for the Education & Outreach award, Tom and Mary Beth Magenau of Tri-State Marine for the Landowner Stewardship award, Robert Gearheart of Arcata Marsh Research Institute for the Science Research award, and hydrologist Angela Waupochick of the Stockbridge-Munsee Band of Mohicans for the State, Tribal, and Local Program Development award.

ELI congratulates these awardees on their achievements in advancing wetlands protection through their outstanding leadership.

In January, expert panelists explored in an ELI public webinar how focused efforts in states of the upper Mississippi River that bring together farming, wastewater treatment, and state financing agencies can provide new funding for on-farm polluted runoff projects.

Panelists from Iowa, Illinois, and the National Association of Clean Water Agencies discussed how flexible funding structures that pair farmland with wastewater treatment providers can achieve targeted nutrient reduction in their respective states, and what they plan to achieve in the future.

Recent experience has shown that water and sewer financing programs can provide additional flexible funding for projects on farms while meeting the nutrient management goals of wastewater treatment authorities.

In an effort to improve communication and environmental compliance globally, the International Network for Environmental Compliance and Enforcement, whose secretariat ELI hosts, has created Compliance Conversations, a network and capacity-building tool to support those working in the environment, development, or justice spaces. Through webinars launched in February, INECE convenes individuals from all over the world to discuss the cutting-edge environmental challenges their communities are facing.

The goal of the platform is to connect participants with experts from a variety of different backgrounds, experiences, and disciplines.

The first set of compliance conversations explored how stakeholders in off-grid communities can work to facilitate greywater treatment and reuse standards, led by Clive Lipchin, director of the Center for Transboundary Water Management at the Arava Institute.

Since shortly after the 2010 Deepwater Horizon oil spill, the Environmental Law Institute has received support from the Walton Family Foundation to work with communities throughout the Gulf Coast region on advancing sustainable and inclusive restoration.

A primary focus of ELI’s work is on supporting public participation in the processes that govern disbursement of restoration funds under the Natural Resource Damage Assessment process and the RESTORE Act, as well as through the National Fish and Wildlife Foundation.

ELI’s Gulf Team regularly hosts training sessions and workshops for communities throughout the region. In February, ELI experts met with community leaders and local government officials in Gulfport, Biloxi, and Moss Point, Mississippi, to elucidate the process of developing and submitting proposals for restoration projects.

Legal weed means legal means to reduce pollution.

Cuyahoga's Myths and Urban Justice
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue

The famous Cuyahoga River fire of June 22, 1969 — the spur that started debate on pollution across the nation, and led to passage of the Clean Water Act three years later — is lodged more in legendary storytelling than in reality. The fire was actually fairly minor, causing only $50,000 in losses to the Republic Steel Mill located along the river, damaging some wooden trestles. Moreover, no photograph of the event exists — the photo reproduced here, like the one a month later in Time magazine, was from a much larger 1952 blaze.

According to Cleveland Historical, the river actually caught fire several times before the 1969 event went viral. So concern was not new. In fact, in 1881, “the mayor of Cleveland had called the Cuyahoga ‘an open sewer through the center of the city,’” as quoted in Teresa Opheim’s excellent write-up in EPA Journal on the event’s 20th anniversary. The river picked up effluvia from Akron to Cleveland and dumped it into Lake Erie, creating a cesspool.

In Opheim’s account, the “spiritual damage” reported by local newspapers was far greater than the actual damage when the river, covered with oil and debris, ignited for 20 minutes that summer day. Cleveland soon became a national punch line. Its fabled industry, the economic underpinning of the region, kept visitors away from the city and kept the locals surrounded by water pollution, not to mention foul air.

Ironically, according to Cleveland Historical’s Michael Rotman, “the city and its residents were beginning to take responsibility for the cleanliness of the river” in the decade preceding the famous fire. In fact, “residents overwhelmingly passed a $100 million bond initiative to fund the Cuyahoga’s cleanup” a year before the blaze. And in an extended blog post titled “Fables of the Cuyahoga: Reconstructing a History of Environmental Protection,” Case-Western law professor Jonathan Adler lists numerous actions in response to the stream’s pollution taken prior to the fire.

Adler would presumably agree with Rotman’s conclusion that the 1969 conflagration “was not really the terrifying climax of decades of pollution, but rather the last gasp of an industrial river whose role was beginning to change.”

Today, burning pollutants on an urban river would bring up issues of environmental justice, so it is worth noting that the fire is a good example of the impacts often faced by poor and/or minority communities. The blaze took place just yards from the city’s first African American neighborhood. Into the breach stepped Carl Stokes, the dynamic mayor and the man responsible for the river cleanup bond campaign a year previously.

Stokes was the first black elected to head a major American city. As a result, “the national press had their reporters here 24 hours a day,” resident Ben Stefanski would later observe. “They were living here so they had to tell the story” when the infamous fire broke out.

As Rotman reports, Mayor Stokes “became deeply involved with the issue, holding a press conference at the site of the fire the following day and testifying before Congress — including his brother U.S. Representative Louis Stokes — to urge greater federal involvement in pollution control.” The mayor demanded funding from Washington as well as changes in the law to stop allowing facilities to discharge into the Cuyahoga with impunity. “The Stokes brothers’ advocacy played a part in the passage of the federal Clean Water Act of 1972,” Rotman concludes.

Though the Stokeses successfully leveraged environmental concern to help a polluted African American neighborhood, the cleanup was slow. Today, the stream’s health, while vastly improved in terms of industrial discharges, is still impaired by non-point sources not easily regulated by the federal law. Thus, although the Cuyahoga was designated an American Heritage River in 1998, the watershed is one of 43 Great Lakes Areas of Concern in EPA’s classification. Cuyahoga Valley National Park was established in 1974, but it begins upriver from the neighborhood where the blaze occurred. That community still includes a dredged working river flanked by a cement plant, gravel pits, abandoned sites, and a steel mill.

Notice & Comment is written by the editor and represents his views.

First Time a Natural Resource Granted Legal Status in U.S.

On [March 1], the citizens of Toledo, Ohio, granted legal rights reserved for people to Lake Erie, the 9,940-square-mile body of water on which their city depends. According to Sigal Samuel at Vox, the passage of the controversial ballot measure marks the first time a natural resource has been granted legal status in the United States, though a precedent for doing so has been established by other countries in recent years.

The saga of Lake Erie’s personhood began in the summer of 2014, when a toxic algae bloom in the lake, powered by agricultural runoff and other pollution, led the city to turn off the spigots. The incident caused a state of emergency declaration, leaving half a million people without water for three days.

Toledoans for Safe Water, an advocacy group that works to clean up and protect the lake . . . partnered with the Community Environmental Legal Defense Fund to bring the Lake Erie Bill of Rights Charter Amendment, which states the lake has the right to “exist, flourish, and naturally evolve” to a vote this week. The referendum passed with 61 percent approval . . .

The legislation entitles the lake certain rights and empowers citizens to advocate for those rights when they are being violated, like bringing legal suits against polluters. . . .

The Lake Erie Bill of Rights is part of what’s being called the Rights of Nature legal movement, an idea first floated by environmental lawyer Christopher Stone in the Southern California Law Review in 1972.



The case adds to a growing roster of legal losses for Mr. Trump’s efforts to undo Mr. Obama’s environmental legacy. Experts in environmental law estimate that the Trump administration has now lost about 40 environmental cases in federal courts.

— Coral Davenport in the New York Times, on the U.S. district court decision overturning Trump’s order rescinding Obama’s ban on drilling in the Arctic and Atlantic


The Pelican Brief

Did you hear the story about the single iconic sea bird that was recently awarded more than a million dollars in compensation for injuries suffered from the 2010 BP Deepwater Horizon blowout in the Gulf of Mexico? It was not, as Forum readers might expect, a matter of a bad NOAA NRDA. No, it was the NBA at issue, and the alleged lost income of a power forward on its franchise now named the Pelicans, who play in New Orleans.

To clarify, at the time of the spill, the team was called the Hornets, but they are an invasive species in Louisiana. So that mascot was supplanted in 2012 for a favorite local bird just removed from the endangered list. In fact, the pelican’s trials resulting from its status as a favorite source of feathers for ladies’ hats had led to the formation of the National Refuge System in 1903.

But there was no trial for the 21st century Pelican who claimed damage from the BP oil spill, because his brief was unpersuasive to a reviewing court. It all came down to basic contract interpretation and looking up a few terms of art used in tort lawsuits.

What happened was David West saw his success in claiming losses suffered from the oil spill reversed by an unimpressed panel of the Fifth Circuit Court of Appeals, which forcefully cited precedent and plain meaning in declining as a judicial waste of time to remand the case to the district court for reconsideration.

The Pelican’s brief claimed that he had experienced a diminution in salary after the catastrophe, a fact that the NBA star could prove through his tax records. He was awarded almost $1.5 million in lost wages by the settlement claims administrator, which was affirmed by the settlement appeal panel, even though he was paid the full amount of his $45 million contract.

As is the case with many superstars paid such sums, for tax purposes the total was front-loaded, with progressively smaller amounts paid the athlete each year. So West, who negotiated the contract four years before the blowout, was able to show that the year after the spill he earned less than the year before. For reasons the Fifth Circuit doesn’t go into, the federal district court then denied discretionary review of the settlement adjudicator’s award decision.

But the appeals jurists reversed the district judge in a terse decision. “The fact that West received less money in 2010 than in 2009 does not mean he ‘lost’ anything or was ‘damaged’ in any way,” their decision reads. “It means only he agreed to a front-loaded contract. And he did so many years before the Deepwater Horizon catastrophe.”

The settlement agreement is a contract, the judges quickly conclude in their decision, and therefore its interpretation is a “question of law” and the appeals court can review de novo. The court takes an excursion into Black’s Law Dictionary to uncover the true meaning of “loss.” The court then cites precedent in saying a claimant must have suffered “actual losses” and “harm” caused by the activity for which the compensation is to be paid. The damages must therefore be “unexpected.” The settlement documents make that clear, the reviewing court said.

Notably, for reasons not elucidated in the decision, the appeals court states it had previously said that proof of loss could substitute for proof of causation in awarding compensation under the settlement agreement. Still, under the court’s own precedent, “We must give ‘some weight’ to ‘what damages recoverable in civil litigation actually are.’” But since West was paid what he expected to be paid, that makes the issue of causation and financial evaluation irrelevant.

Thus the settlement claims panel and the district court erred in granting the compensation, the Fifth Circuit panel concludes.

50 years ago series: The Cuyahoga fire and urban justice.

ECOS Chief Strives for "Efficient" Alignment of State, Federal Roles
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Linda K. Breggin

Donald S. Welsh, who is the new executive director of the Environmental Council of the States, came out of retirement to take the job. Usually, folks who do that have some sort of inspiration, and indeed that’s the case here. In an interview, Welsh told us that he was impressed with the association of state environmental commissioners when he served as a deputy secretary of the Pennsylvania Department of Environmental Protection and as an EPA regional administrator during the George W. Bush administration. What appealed to him most were both the ECOS mission and the people who are carrying it out.

The press release announcing his appointment states that Welsh will be “instrumental in helping member states develop consensus while preserving states’ diversity in environmental policy.” In our interview, we ask first off how he planned to achieve this ambitious goal. Welsh allows that ECOS represents both very liberal and very conservative states, which presents a serious challenge.

He observes that in the past ECOS spent “a fair amount of time trying to reach consensus,” and it can be “futile for members to try to convince each other when politics and policies are dictated” by their states. But the “real center” of ECOS’s work is in sharing success stories and lessons learned. This outreach can thus enable a state to “capitalize on the pioneering work of another state.”

Furthermore, according to Welsh, the mechanisms by which federal and state governments deliver environmental protection involve “many common challenges” shared by both liberal Democratic and conservative Republican states. He emphasizes that ECOS plays an important role in related “process improvements” and in trying to ensure that “resources are put to the most efficient use.”

To this end, a new ECOS project asks states to report on 14 measures of program performance, in an effort to develop more robust ways of measuring success that avoid bean counting and the “ensuing arguments over what the numbers mean.” He points out, however, that new technologies such as sensor drones and big data management may bring the ability to report measures in ways that are not as burdensome but effectively “tell the story of what is happening in the environment.”

Welsh also wants to address cooperative federalism, which can be “misunderstood as a tug of war over who should be the leader,” but “rightly understood it is an effort to align the work of the federal and state governments so they are both pulling on the same side of rope to move environmental protection forward.” In fact, when asked what he would most like to achieve, Welsh offers that he wants to institutionalize the realignment of roles in a way that provides states with a permanent seat at the table, thereby ensuring that EPA and the states do in the end “pull the rope together.”

He asserts that in the past it was as if “states were crying in the wilderness” about the problem of overlapping efforts. Welsh describes past concerns about “phantom delegation,” whereby EPA continued to run a program even after it was delegated. Welsh points to considerable progress in addressing states’ concerns today. He notes as a for instance that their agencies are now consulted on EPA’s proposed regulatory changes to national program guidance.

We asked which environmental challenges are front and center for ECOS members. First, Welsh points to per- and poly-fluoroalkyl substances and notes that ECOS hosts a working group on risk characterization that addresses these and other emerging contaminants of concern. He says the biggest challenge is talking to the public: risk communication and the need for consistent interpretations of the science. Second, Welsh names nonpoint source water pollution as a continuing challenge for states because, rather than working mainly with a few large national companies, states must work with a wide array of stakeholders, which is much more resource intensive.

Finally, we ask about the status of state environmental budgets. Although ECOS no longer conducts a comprehensive analysis, Welsh was unequivocal: “Everybody is under budget pressure at the state and federal level.” ECOS has weighed in on cuts to State and Tribal Assistance Grants. Recent federal budgets have restored funding going to states, but Welsh acknowledges that they are still concerned.

In closing, Welsh identifies what may be a key to his organization’s ability to develop a membership-driven agenda in this partisan era. He points out that a strength over the years has been the involvement of the secretaries and commissioners themselves, rather than only their staff, in setting ECOS priorities.

ECOS chief strives for "efficient" alignment of state, federal roles.

Foiling the Resource Curse
Lisa Dale - Columbia University Earth Institute
Columbia University Earth Institute
Current Issue
Foiling the Resource Curse

Sustainable development — the buzzword for humanitarian aid organizations, assistance agencies, academics, and conservation groups — is facing an identity crisis. The term was introduced into the mainstream in the 1987 Brundtland Commission report. It famously urges intergenerational equity as a guiding principle for economic development. Adding environmental and social supports to the traditional economic leg of the development stool, the commission argues that advancement based on all three legs will not only provide long-term stability but will in effect raise the height of the seat. To improve humanity’s lot on a bountiful planet, the challenge, then, of sustainable development involves reconciling seemingly contrary goals, of ensuring that each leg truly supports the stool.

The 2015 Sustainable Development Goals capture our current rendition of the concept. An update themselves to the Millennium Development Goals, which were established in 2000 as a tool for focusing international attention on less-advanced countries, the 17 SDGs are more comprehensive and offer a decisionmaking framework that applies to all countries, rich and poor. Critics are quick to note that the SDGs are in no way legally binding. They aren’t a treaty. Indeed, the UN-brokered SDGs don’t compel countries to do anything at all. They are voluntary, with aspirational targets such as “no poverty” and “gender equality.”

No single goal can be seen to be more or less important than the others, and in the absence of an admittedly impossible prioritization scheme, sustainable development effectively can mean all things to all people.

Further confounding the operationalization of the SDGs is climate change. While the SDGs include “climate action” as one of the 17 goals, in fact today we understand the concept of sustainable development almost entirely within the context of a warming planet. As the complex dynamics of development in a carbon-constrained world have emerged, the very notion of whether it is possible to have sustainable development is at stake.

But perhaps there is no other time in recent history that better reminds us how important statements of shared priorities can be. They may lack legal force, but the SDGs represent nothing less than agreed-upon principles for human advancement. They help focus broad efforts that are invariably under-resourced by offering touchstones to guide trade-offs. And they provide a mechanism for flagging actions that don’t meet the standards. Countries with wildly different approaches to economic development and politics now routinely integrate language from the SDGs to align their efforts with global norms.

But to be useful on the ground, the SDGs must be subject to place-based analysis. Without field-testing, we might value the shared set of concepts but cannot assess whether in fact the goals are actionable and achievable. The discovery of a massive natural gas deposit off the coast of Mozambique presents a compelling case study. As part of an inter-disciplinary team of students and researchers from Columbia University’s Earth Institute, I had the opportunity to visit the country in 2018.

The Republic of Mozambique is a former Portuguese colony located along Africa’s southern Indian Ocean coastline, across from the island of Madagascar. The country achieved independence in 1975, and 16 years of civil war followed. Reconstruction efforts ushered in a period of rapid growth, both economically and politically. The new constitution, established in 1990, created democratic political structures, and subsequent amendments emphasized a decentralized system, with local elected provincial assemblies. Perhaps as a consequence of this recent political upheaval, institutional development has lagged. The Ministry of Land, Environment and Rural Development was created only five years ago.

Most Mozambicans rely on rain-fed subsistence agriculture for survival, with an estimated 25 percent of GDP coming from that sector. International donors have largely funded the country’s economic growth; one outcome of this support is high levels of national debt. While natural resources are abundant, with more than a thousand miles of coastline supporting fishing and trade, poverty remains the persistent reality for more than half of the citizenry. Fully 70 percent of the country’s 29 million residents live in rural conditions, with an estimated literacy rate of 58 percent nationwide. Women and those who live far from the capital city of Maputo are especially unlikely to have any formal education beyond primary school. Health care is similarly scarce. The country ranks among the poorest in the world.

In 2014, geologists discovered 85 trillion cubic feet of natural gas in the Rovuma Basin off the coast of northern Mozambique. In addition, there are known oil deposits that include the Pande and Temane fields, with exploration that began during colonial times and has continued in earnest since independence. The new gas discovery has sparked international interest; Anadarko is now leading a consortium of global energy companies in exploring and developing the vast deposit. Plans include extraction, onshore processing, and an industrial mega-zone located in the remote far northern region of the country.

The company has drafted a lengthy and detailed environmental impact assessment, but questions remain. Among the most pressing is whether the public will benefit from the discovery of such valuable resources along their country’s coastline. If new energy resources can be a trigger for improved livelihoods and a more resilient national development pathway, then we might see progress toward the SDGs. But historical evidence cautions that when an impoverished country is the site of abundant petroleum, the opposite happens.

Decades of study on the resource curse has yielded some consistent results that planners in Mozambique would do well to remember as they chart a different path. In the short term, a sudden spike in mineral wealth can trigger violence. Civil conflict frequently persists when such wealth is concentrated in the hands of elites at the expense of workers. Ongoing violence in Sierra Leone has accompanied the profitable diamond trade there. Nigeria’s oil abundance is similarly paired with persistent militant activity. Not coincidentally, prominent and bloody incidents of terrorism in the northern region of Mozambique have accompanied the early stages of infrastructure for natural gas development in the country.

Over the longer term, researchers find a strong correlation between mineral wealth and a decline in democracy. Revenue from extractive industries tends to support incumbent leaders, and that can be a stabilizing force. However, in countries with fragile governments, resource wealth often erodes democratic institutions and leads to autocratic rule. Today, 23 countries generate more than 60 percent of their exports in the form of oil and gas; none of these are stable democracies. Wealthy nations like the United Arab Emirates have clearly benefitted from their reliance on minerals, but the growth strategy that stems from oil abundance has rendered democracy a non-starter. Newer democracies and countries with high corruption profiles fare especially poorly. Sub-Saharan Africa in particular has been a veritable showcase for the resource curse, as recently independent countries find themselves ill-equipped to juggle the myriad indirect impacts associated with resource wealth.

Mineral abundance also correlates with declining performance on a range of indices that track human development and sustainability. Sudan, the Democratic Republic of the Congo, and Gabon are just a few of the most well-known examples. In each of those cases, the country is a major exporter of valuable minerals, and all rank high in corruption and low in literacy, health care, education, and lifespan.

How can Mozambique do better? The resource curse is not a monolith, and policymakers have learned some valuable lessons over time. Still, easy solutions don’t exist. Despite the extensive literature on the causes and outcomes of the curse, very little attention has been devoted to solutions. Without identifying the resource curse explicitly, the SDGs provide potential guidance. Most directly, SDG #7 identifies affordable and clean energy as key. Indirectly, several other goals form a nexus with the challenges facing Mozambique. For example, SDG #9 urges innovation and industrial growth; SDG #11 seeks sustainable communities; and SDG #14 focuses on life below water, clearly a matter of concern for off-shore energy development and fisheries.

Within the scientific literature generally and the SDGs explicitly, one place of agreement is that institutions are key. Resource-rich democracies provide a useful guidepost. In Norway, for example, a stable system has fostered a durable institutional structure. No resource curse has befallen the oil-soaked European nation; to the contrary, Norwegians enjoy some of the highest incomes in the world. Citizens are among the happiest on Earth.

As the foundation of a legal and policy framework, institutions need to reflect national values like an intolerance for corruption, support for the rule of law, and a priority for capacity building. Civil society — already weak in Mozambique, as in many newly democratic states — should find safe avenues for participation. Local governments are especially critical for community services when a national government is captured by industrial triumphalism; they should be empowered. Since steady revenue from minerals tends to insulate national governments from accountability — especially when it eliminates the need to tax residents — Mozambique will need to be particularly attentive to opportunities that can expand the authority held by local administrators.

Some research suggests that strong property rights can help to fortify residents against the negative effects of industrial dominance. Mozambique’s Land Law, passed in 1997, retained ownership of all land in the hands of the national government. Residents are granted use rights, and notably the law explicitly recognizes customary rights. While this provision is a victory for indigenous groups, who may hold land for generations without legal title, it is likely to be insufficient in the face of nationally backed industrial mandates for expansion. The vast majority of small-holders in the country still lack formal title to their land.

While property rights and strong institutions can meaningfully contribute to sustainable development, most of the solutions to the resource curse can be found in transparency. With an eye toward improved accountability, the argument for transparency suggests that government watchdogs and civil society can provide an essential check on centralized power only if governments and the private sector are forced to showcase their actions. Today, many transnational companies acknowledge the importance of transparent operations; in this instance, Anadarko has already completed the massive environmental assessment and made it publicly available. But still the challenges are deep, complex, and inextricable from the promise of new mineral wealth.

For example, how much of the new energy resource should remain in domestic hands rather than be exported? Can an influx of natural gas improve energy availability in a rural country with a nearly non-existent power grid outside of its urban cores? Some have argued that a more sustainable approach to energy development might mean leap-frogging a traditional grid designed for fossil fuels entirely, in favor of focused development for local renewable sources like solar and wind.

Today, most communities rely heavily on charcoal for cooking and heat. One outcome of this widely available fuel source is deforestation. Also worrisome are well-documented negative health impacts associated with breathing indoor air over a charcoal stove. Many communities in northern Mozambique avoid exposure by cooking in communal kitchens that are located outside the main dwellings. Still, switching to propane, which can be developed from the rich natural gas deposits — it is a favored rural fuel in the United States — would seem to be an appealing choice.

But our visit to the area revealed some unexpected reasons for persistent charcoal preferences. One explanation is cultural. Families that have cooked over wood and charcoal stoves for generations simply don’t trust propane (or natural gas). Generalized unfamiliarity combined with a sharp fear of explosions has rendered many communities reluctant to consider the fuel source. Another reason is financial. Many families can’t afford to buy an entire tank of gas at once, but since charcoal can be sold in much smaller units, they can purchase enough to cover immediate needs. These forces are rational and deep-seated, and should not be misunderstood to mean rural residents are hostile to modernity. At one roadside charcoal stand, my traveling team saw the business owner charging his flip phone in the corner through a small-scale solar battery charger.

Sustainable infrastructure development necessitates attention to these multi-layered and inter-disciplinary dynamics. For the incoming energy companies, there are both structural and non-structural elements. Climate change has altered the planning landscape in myriad ways, rendering new development risky in ways traditional engineers might not grasp. The Intergovernmental Panel on Climate Change defines risk as a function of hazard, exposure, and vulnerability. Hazard refers to a physical event like a flood. Exposure highlights assets of value, including communities that may be in harm’s way. Vulnerability offers a measure of how susceptible the location is to harm. For energy companies seeking to build new large-scale infrastructure on Mozambique’s coastline, sea-level rise presents a clear hazard for the new construction and its investors. Meanwhile, local communities are already highly vulnerable. Early speculation about industrial development has focused on the likelihood of mangrove destruction during the building phase. Should that come to pass, the elimination of natural buffers will further expose low-lying villages to inundation. Sustainable development here means careful consideration of these dynamics, including focused investments that can improve local resilience and reduce vulnerability.

Operationalizing sustainable development ideals in the context of rural Mozambique illustrates the many ways in which countervailing forces can undermine even the best intentions. If engineers want to ensure resilient infrastructure development in the face of projected sea rise and amplified disaster risk, they need to have access to current, place-based science and an ability to apply it to every phase of planning and construction. Representatives from Exxon — part of the consortium descending on the country to participate in the natural gas boom — told me their assessment of risks is based largely on past climate patterns and data, not on anything that projects likely future hazards. Insufficient site-specific data impair every element of Exxon’s analysis, and what limited data the company does have are not easily integrated into planning. Simply put, energy firms and government planners lack both access to data and the human expertise to apply them and modify plans accordingly.

Longer-term sustainability requires built-in monitoring and evaluation along with the human capacity to respond to new technical information. Governments need to establish indicator systems, informed by local knowledge, feeding iterative results into ongoing operational reforms. Throughout, actions should address distributive justice and improve equity. In a place like Mozambique, independent for only 44 years, these already daunting process goals must be pursued thoughtfully to avoid validating existing power structures through neocolonialism.
Already, institutions such as the African Development Bank have tremendous control over allocating scarce resources within the country; any influx of new foreign money will, by default, flow mostly to the elite, who then take on the tasks of planning for the entire nation. This pattern disempowers the masses and imposes a western model on an African land base.

These non-structural concerns tend to have more to do with process than outcomes. Strong, transparent leadership, robust stakeholder involvement, and a focus on capacity building are attributes of governance for sustainability. But those are guidelines that only have value if they are deployed in pursuit of larger, more concrete objectives like improved health care or more vocational training. Even when governance is transparent and the process includes opportunities for public involvement, an illiterate, dispersed, rural population has limited avenues for meaningful participation.

As the expected industrial footprint overlaps existing communities, incoming energy companies have also had to consider planning for resettlement. Anadarko’s preliminary EIA includes a draft resettlement plan for 2,733 individuals in 743 households. Among the principles driving this analysis is a stated commitment to the internationally recognized free, prior, and informed consent standard. Those who are likely to be displaced as new energy infrastructure spreads are promised compensation and even improved living standards. But subsistence farmers in remote Mozambique may not have the same metrics as Anadarko planners for what amounts to better conditions.

When we visited subsistence fishermen, they told us the biggest challenge they face is the roving hippos and crocodiles in the lagoon where they fish. Nobody mentioned a need for better education or health care, and broader national economic development seemed irrelevant. And yet, we know quite clearly that sustainable development planning will not control the predators that threaten their daily catch. This is an important disconnect, as it highlights the gulf between what centralized development planners know and what locals experience. Resettlement planning faces this same gulf. If new settlements do in fact offer dramatically different facilities than what is otherwise available in the region, moving a sub-set of the local population into those dwellings risks exacerbating inequities and potentially creating a migratory crush. Such development initiatives are not sustainable, and in fact may result in increased social conflict.

As countries scramble to adapt to early impacts of a changing climate, they often discover that those efforts have unintentionally negative byproducts. The term malad-
aptation refers to a range of ill-conceived climate change responses. Building a new sea wall to guard against rising oceans, for example, may mean an intensive construction project that itself emits greenhouse gases, thereby exacerbating the problem. If that sea wall serves to protect high-value infrastructure, the project may thereby leave lower-income communities at risk. In this way, maladaptation can serve to intensify existing vulnerabilities and even create new ones. Resettlement planning is particularly susceptible to these perils. Dismantling local villages to move residents into sparkling new modern settlements would be both jarring and inappropriate; but, perhaps the alternative is equally problematic. Moving villagers into replicas of their current homemade huts, perhaps with a new plot of land for farming, also does little to advance the region and consigns those individuals to a life of subsistence, all while surrounded by massive oil wealth.

Part of the challenge is the spatial and temporal mismatch that characterizes much of environmental policy. Spatially, our political and administrative boundaries do not align with the way resources are distributed in the landscape. Temporally, our natural resources do not obey a lifecycle that aligns with politics — an officeholder with a limited term to govern a designated territory will face powerful disincentives to impose costs associated with long-term benefits. There is also an element of urgency. Many impoverished countries can’t wait for a decade of environmental analysis before new services are made available, and yet we know that rushing development yields unsustainable results.

What is happening in Mozambique offers a case study in how implementing the ideals contained within sustainable development can be tricky. Solutions may have to come in reconceptualizing what we mean by the term. The all-encompassing Sustainable Development Goals succeed when they remind us that the challenges facing Mozambicans are interconnected. An energy or mineral discovery may open doors to improved education, reduced poverty, and enhanced environmental protection. But without dutiful and rigorous attention to both process and outcomes, such improvements are unlikely. TEF

CENTERPIECE ❧ Mozambique faces the destabilizing influence of sudden mineral wealth as it simultaneously grapples with adapting to climate change. Can the principles of sustainable development guide communities toward equitable, resilient outcomes?

Plugging the Rule of Law Gap
Scott Fulton - Environmental Law Institute
Environmental Law Institute
Current Issue
Scott Fulton

I write this on a plane returning from Beijing, where ELI convened the China International Business Dialogue on Environmental Governance. This is an innovative project brought to the Institute by ELI Leadership Council member Paul Davies of Latham & Watkins’s London office.

The idea is for ELI and our local partner, the Policy Research Center on Environment and Economy, to broker a conversation between Chinese regulators and multinational companies that are either trying to make a go of it in that country or are deeply reliant on supply chains that originate in the Middle Kingdom.

Our dialogue brought a number of companies together with senior Chinese regulatory and enforcement leaders at the national and provincial levels. The research center’s director general and I co-led and moderated the convening. The group discussed a good number of things, from how to build a compliance cultural in China’s regulated community, to the importance of compliance assistance, to the potential value of recognition programs for high-performing companies.

But perhaps the most striking feature of the meeting was the convergence of thought around the importance of effective environmental enforcement and accountability under the law, with the multinationals and regulators alike repeatedly reinforcing the importance of rule of law to China’s progress in addressing its environmental challenges. The multinationals’ commitment to this idea was underscored by their offer to provide sector-specific expertise in training Chinese inspectors, permit writers, and enforcers, to help lift up performance and ensure accountability within the country’s regulated community more broadly.

Many of the ideas expressed echoed the observations in an important ELI study that was released in January by UN Environment titled “Environmental Rule of Law: First Global Report.” In United Nations vernacular, environmental rule of law has emerged as a short form for describing the fundamental importance of rule of law to achieving environmental goals.

If you would like to understand better the importance of ELI’s work abroad, please give this study a read. The report begins with a tutorial on rule of law, reminding readers that it has two essential ingredients: the presence of laws that reflect fundamental rights and values and the observance of and adherence to those laws throughout society. On point one, the report reviews the progression of environmental law development around the world, expressed perhaps most poignantly in the dramatic increase in constitutional rights to a healthy environment.

But the most telling are the findings in the report concerning point two — the degree to which laws are observed in practice. While there has been a 38-fold increase in environmental laws put in place around the world since 1972, effectuation of those laws has lagged well behind, leaving a significant rule of law gap. Neither aid nor domestic budgeting has led to pervasive establishment of strong environmental agencies capable of effectively enforcing laws and regulations. Multiple factors contribute to poor enforcement of environmental rule of law, including lack of coordination across government agencies, weak institutional capacity, little access to information, corruption, and stifled civic engagement.

One chapter in the report speaks to the increase in violence around the world in the environmental context, and in particular the uptick in the assassination of environmental activists. Just to give you a sense, in 2010, there were 87 such “hits”; in 2017, there were 197. To say that this is an alarming trend is an understatement.

These statistics are about more than thuggish behavior, although this surely is, and in its most reprehensible form. It’s more fundamentally about the failure of the justice system and the failure of governance in the environmental context. In the absence of trusted, law-based mechanisms for transparently ventilating and resolving natural-resource disputes and the problems caused by pollution, lawlessness and violence fills the void.

The work that we are doing with your support to build environmental governance and rule of law around the world not only helps to save the natural environment, and to create a level and predictable playing field for commerce, but it also serves to save lives.

As secretariat for the International Network for Environmental Compliance and Enforcement, ELI is working with the government of Scotland and other partners to plan the 10th INECE conference for September, to be held in Edinburgh. The title of the conference is, “Are the Rules Enough?” In view of the first global report on environmental rule of law, the question is a rhetorical one. Plainly, the answer is no.

Scott Fulton on gap in environmental rule of law.

Earlier Laws Had Lessons for CAA
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue

It was a half century ago that the federal government for the first time went to court “to close down a plant for polluting the air.” The quote is from the February 8, 1969, edition of the New York Times. The facility at issue was a chicken rendering plant in Bishop, Maryland, whose emissions were wafting into neighboring Delaware, thus allowing newly installed Attorney General John Mitchell — who would go on to play a major role in the Watergate scandal — to initiate the history-making suit.

The filing came more than a year before debate was to begin in Congress on the Clean Air Act of 1970, which would authorize all sorts of federal suits against offending facilities, even if the pollution were local, including suits by ordinary citizens. But its predecessor, the Clean Air Act of 1963, was not a totally impotent tool. And neither were its predecessors, dating back to the first federal air pollution statute, passed during President Eisenhower’s first term. That is the conclusion of Christopher D. Ahlers, writing in Environmental Law, a journal published by Lewis & Clark Law School.

Furthermore, says Ahlers, the events of 1970, such as Earth Day and the founding of the Environmental Protection Agency, although inspirational, were not the main factors driving congressional passage of the new air amendments.

“Although the events of the Year of the Environment played a role in motivating the passage of the Clean Air Amendments of 1970, they do not explain how Congress actually constructed the CAA,” Ahlers writes. “Contrary to the traditional view, the modern CAA was the product of a long, plodding legislative process over the course of 15 years, in which Congress grappled with the problem of addressing a complex problem within contemporary legal and political constraints.” Ahlers believes that “far from being weak and ineffectual, the federal air pollution laws of 1955, 1963, 1965, and 1967 laid the legal and conceptual framework for the modern CAA.”

Is Ahlers correct? A look at the unrelated events that coincidentally closely followed the first federal air pollution suit shows that the earlier legislation was indeed setting the paradigm for the 1970 amendments.

Three days after Mitchell’s filing, the New York Times noted that the Robert H. Finch, the secretary of health, education, and welfare, published “guidelines [which] set forth minimum levels at which air pollutants are considered harmful to health.” The newspaper quoted a departmental spokesman who said that “a major air pollution control effort would be required” in many areas if the levels were adopted. But the National Air Pollution Control Administration quickly noted that the pollutant numbers were “‘guidelines’ rather than ‘standards.’” A key upgrade of the 1970 amendments, of course, is the requirement that the federal government set ambient air pollution standards requisite to protect public health, but this was an important first step.

On March 16, the Times reported another development in the war against pollution: a successful test of scrubbers and a bag filter at a power plant owned by Southern California Edison. “All the particulate matter and most of the SO2 from an oil-fired burner’s flue gas was removed,” according to the paper. The journal also reported that a coal plant in Reading, Pennsylvania, had been running for two years with electrostatic precipitators able to remove 99.5 percent of fly ash. The 1970 legislation and successors would eventually require such technology.

On March 23, more clean air progress was announced, this time against the oxides of nitrogen that form smog. The California Air Resources Board found that an adjustment on car engines reduced emissions of the ozone precursor by one third. The 1970 clean air amendments would of course require controls to be installed on car engines, including catalytic convertors.

The 1970 CAA and its successors are powerful laws, but significant progress was being made before they passed, highlighting the opportunities for pollution reduction while also showcasing the legal limitations Congress would need to fix in amending the statute.

Notice & Comment is written by the editor and represents his views.


Where Obligations are Longstanding and Broadly Supported

Protection of the environment and keeping ecological balance unaffected is a task which not only the government but also every individual, association and corporation must undertake. It is a social obligation and fundamental duty enshrined in Article 51 A (g) of the Constitution of India. The concept of environmental protection is an age old idea imbibed in the Indian cultural ethos since time immemorial. To understand the present-day legal system for environment protection and conservation of natural resources, it is important to look into the past Indian traditions and practices of protecting the environment.

In the early years of Independence there was no precise environmental policy . . . . However, the concern for environmental protection was reflected in the national planning process and forest policy.

Environmentalism is not a fixed concept, but is always evolving influenced by its context. This also applies to Indian environmentalism, which has devel-
oped and changed throughout the years.
. . . From ancient environmental rules including Buddhism and Jainism to medieval and then from British era to
. . . the coming of modern legislations on environmental laws in India, a great sense of concern has been shown by the legislature and even the Indian judiciary [has] shown a great concern regarding the environment with its landmark judgements.

— Tanay Akash in Legaldesire.com


“It’s been no secret the [Trump administration’s] disdain for EPA and our policies. So we were demonized and when you add in the combination of sequestration, budget cuts, pay freezes, buyouts, realignment, the agency’s refusal to backfill positions when people leave, and increased work assignments, it has led to a situation of low morale.”

— EPA employee Gary Morton, as quoted in the Washington Post during the government shutdown



More than 20 people died and dozens more were injured when a wall of molasses “raced — yes raced — through Boston’s North End” 100 years ago, according to the Boston Globe’s Sunday magazine. The newspaper likened the scenario to a Roger Corman B-movie, but of course for environmental professionals it is an early story of an emergency response to a hazardous release. One can only imagine had EPA been around at the time what the federal officials would have made of Bean Town’s sugar-coated catastrophe.

The tragedy was a result of the explosion of a 50-foot-tall tank the Purity Distilling Company had built on Commercial Street in 1915. The Boston facility processed molasses arriving from Puerto Rico to produce industrial alcohol. On January 15, 1919, the huge tank, containing 2.3 million gallons of the sticky sugar, “suddenly ruptured, releasing a torrent of syrup that strangled and destroyed everything in its path in a matter of minutes,” the Globe relates.

It was an early example of an environmental injustice. The tank was built hastily during World War I to supply a munitions plant in Cambridge in “a precinct populated, not coincidentally, by poor Italian immigrants powerless to prevent such a thing from being shoehorned into their neighborhood.”

Additionally, the “profit hungry” company dispensed with engineering tests that would have revealed the giant tank’s flaws. Leaks showed up immediately; street urchins scraped he tank’s exterior to make primitive lollipops. The company responded by painting over the ooze to disguise it. Neighbors complained about the noise — the flimsy metal was groaning under the stress.

Then the tank exploded. A wall of sticky sugar “moving at a rate of 50 feet per second . . . leveled buildings and buckled the steel girders of the elevated railway, overwhelming everything and everyone in its wake.”

Then came the emergency response. “It was a hideous scene, and when the temperature plunged overnight, the dead became entombed in the hardened sugar, forcing frantic workers to use saws and chisels to clear wreckage and retrieve bodies,” the Globe relates.

“Unsuspecting men, women, and children were smothered — asphyxiated, really — by a tsunami of viscous brown syrup,” according to the Globe. “And when the bodies were finally recovered, the Suffolk County medical examiner said they looked ‘as though covered in heavy oil skins . . . eyes and ears, mouths and noses filled,’” according to the centennial account.

“More than 100 lawsuits were filed against the United States Industrial Alcohol Company, the owner of Purity Distilling, whose lawyers tried, perhaps cynically, to blame Italian anarchists for the disaster, claiming that radicals had bombed the tank,” according to the newspaper. “But the judge wasn’t buying it. The accident, he ruled, was the result of shoddy design and construction — the same type of brittle steel had been used on the Titanic, which sank seven years before the flood — and USIA was ordered to pay about $630,000 in settlements.”

Boston responded by tightening regulations governing industrial development, and many other cities around the country followed suit. “The molasses flood did for building construction standards what the Coconut Grove fire did for fire safety,” according to the author of a 2003 book on the great sugar rush of 1919.

The book has been optioned by a Hollywood producer, but writer Stephen Puleo is “not sure if his book will ever make it to the big screen. ‘To do this thing justice, the special effects would be really costly,’ he says. “And, really, would anyone believe it anyway?”

Earlier laws had lessons for CAA.

EPA’s Bid to Drop Rule Co-Benefits Pushes Trump Deregulatory Agenda
David P. Clarke - Writer and Editor
Writer and Editor
Current Issue
David P. Clarke

When EPA in December proposed to reject the agency’s Obama-era conclusion that it was “appropriate and necessary” to regulate mercury and other hazardous air pollutant emissions from coal-fired power plants, some observers were comforted that it nevertheless wasn’t repealing the existing standards. But, even if the standards remain for now, the mercury proposal is just one of several moves the Trump EPA has made to abandon widely accepted cost-benefit procedures, with the aim of limiting environmental regulations across the board.

At the heart of the agency’s deregulatory strategy is how best to calculate the costs and benefits of regulatory proposals. In its basic mercury analysis, EPA calculated that the annual direct public health benefits of controlling the HAPs would be $4-6 million, compared with much greater yearly compliance costs of $7.4-9.6 billion. However, when the “co-benefits” of controlling pollutants that form fine particulate matter via the required control technology were factored into the calculation by the Obama EPA that made the rule that Trump aims to repeal, the benefits amounted to $37-90 billion a year, swamping the compliance costs.

But the agency now says it is inappropriate to give HAP and non-HAP co-benefits “equal weight” in the mercury rule. In several other contexts EPA is testing ideas of excluding co-benefits per se, which would radically depart from years of cost-benefit practice.

According to internationally renowned Vanderbilt University law and economics professor Kip Viscusi, “all benefits are benefits, whether co-benefits or not,” and the goal should always be to comprehensively assess both benefits and costs. Because the particulate co-benefits in the mercury rule are so dominant, it is a legal or policy question “whether this should have been a mercury rule or something else,” he adds. But from an economic perspective, “You wouldn’t want to set a precedent of excluding co-benefits generally,” because regulations always have diverse effects on the economy.

But excluding co-benefits generally is precisely “the broader and more disturbing context” of the mercury proposal, says Union of Concerned Scientists economist and Policy Director Rachel Cleetus. She maintains Trump is trying to undermine the very well-established practice of including significant co-benefits in the analysis of numerous regulations. For example, as part of EPA’s proposal to repeal the Clean Power Plan, targeting carbon dioxide emissions from the generating sector, the agency conducted four cost-benefit analyses. One excluded all co-benefits and two discounted those benefits.

More broadly, last year in an advance notice of proposed rulemaking for cost-benefit analysis reform, then-administrator Scott Pruitt touted EPA’s improved CPP cost-benefit analysis focused on the “targeted” pollutant, CO2, and derided the fact that 80 percent of “the purported benefits” of all Obama EPA clean air rules were based on particulate co-benefits. The proposal asked whether EPA should publish a general rule on how to weigh co-benefits.

In comments on the proposal, the American Chemistry Council, representing U.S. chemical manufacturers, cited the mercury rule in asserting that co-benefits “should not be considered” in calculating benefits because they “can be inappropriately used to override the direct costs of a rule.”

By seeking to ignore the huge public health co-benefits of its mercury and other regulations, says Cleetus, EPA is aiming to violate the practice of assessing co-benefits that is used across multiple federal agencies and has informed many hundreds of cost-benefit analyses.

Ultimately, the issue is not about “an accounting process” but about public health. EPA’s efforts to downplay or eliminate co-benefits would have large nationwide and local public health consequences, she says. UCS and other organizations are tracking the issue closely and predict it will be fought in courts and in Congress, where activists hope the new House will provide scrutiny. The public needs to know who is influencing EPA’s decisions and who is responsible for them, Cleetus says, adding that industry, not public health, is the beneficiary of axing co-benefits.

Commenting on the agency’s 2018 proposal on cost-benefit analysis reform, the National Association of Clean Air Agencies, representing state and local air quality professionals, cautions that EPA “must not eliminate or diminish any consideration of co-benefits.” More than thirty members of Congress similarly urged the agency not to “reduce consideration of benefits.”

The Trump EPA seeks to roll back regulations across the board. By eliminating co-benefits, the deregulatory task is made that much easier.

EPA’s bid to drop rule co-benefits pushes trump deregulatory agenda.

A Transition in Energy Use Is a Moral Imperative
Mike Quigley - House Sustainable Energy and Environment Coalition
House Sustainable Energy and Environment Coalition
Current Issue
Parent Article

It didn’t take the recent release of the fourth National Climate Assessment or the Intergovernmental Panel on Climate Change’s latest report to alert us to the not-so-slowly unfolding ecological and economic catastrophe that is anthropogenic climate change. I’ve witnessed these impacts firsthand through my climate change tours in our national parks. Anyone observing the world and following the science with even a shred of intellectual honesty has long known the dangers that a rapidly warming world presents to modern civilization, and supporting ecosystems, around the world. It has become even clearer that the transition to a climate-resilient, low-carbon economy is a moral imperative.

Recent enthusiasm behind the concept of a Green New Deal, a massive legislative effort to create clean energy jobs, modernize the electric grid, decarbonize the transportation sector, and transition to renewable energy sources, stems largely from dissatisfaction with the federal government’s response to the climate crisis, especially during the Trump era. In addition to his withdrawal from the Paris Agreement and rollback of keystone protections for clean air and water, President Trump has spent an inordinate amount of time and money propping up shrinking fossil fuel industries at the expense of good-paying jobs in clean energy. He has been a singularly damaging figure, standing in the way of responsible environmental stewardship and improved public health.

But bad environmental policy did not start in 2016. Congress has long been an impediment to a proactive approach, and the Republican Party’s hostility to even the most marginal action to reduce emissions is both irresponsible and dangerous. However, the new Democratic House majority is in a strengthened position to stop the current backsliding on environmental protection and clean air regulation.

It is my hope that the recent dire reports of coming climate impact help galvanize the energy needed to achieve a sweeping, economy-wide policy solution: namely, pricing carbon.

Taking a free market approach to emissions reductions, and supplying regulatory certainty by putting a price on carbon pollution that reflects its social cost, is the most effective way to deal with greenhouse gasses across the economy. It lets firms find the emissions solutions right for them. Perhaps more importantly, a carbon price makes the costs of climate change more real and more relevant, which will undoubtedly inform consumer choice and inspire behavioral change from the world’s largest emitters. If consumers start making purchasing decisions based upon the global impacts of those purchases, we’ll see the economy reform much more quickly than through regulation.

Luckily, pricing carbon isn’t the only solution on the table.

As we continue to produce greenhouse gases at an unsustainable pace, the likelihood that we will need to rely on technology to help dig us out of this mess increases. Through its annual appropriations, Congress, frequently in a bipartisan fashion, has provided substantial funding for crucial R&D programs within the Department of Energy. These include the energy efficiency and renewable energy office and ARPA-E, the energy equivalent of the Pentagon’s advanced innovation incubator that spawned, among other things, the internet.

More focus on fostering innovation is needed, and the public sector is best positioned to make the investments necessary to get that done. With government support, private companies have led the way on innovations like direct air carbon capture, grid efficiency, and clean power generation to great effect. U.S. emissions have successfully decoupled from GDP growth, thanks in large part to a reduction in power consumption despite an increase in the number of users.

Perhaps more than any other potential innovation, improved energy storage can revolutionize our approach to climate change. Battery technology has only improved at the margins for nearly a generation, but significantly improved storage can open the door to massively scaling up of variable power generation sources like wind and solar, make electrification of the transportation sector more viable, and provide the energy reliability that proponents of fossil generation claim only resources like coal can provide.

One of our most important assets in the fight against climate change is our ability to attack the problem from multiple angles at once, and improved technology is an important piece of the puzzle.

It should be abundantly clear that we are well past the time for equivocation and inaction on climate change. 2018 was an abject failure in both policy to address the climate crisis and in real-world emissions reductions to combat it, both in the United States and globally. We cannot afford another year like that. Behavior change, perhaps spurred by a price on carbon, is the ultimate goal and the long-term solution, but technological advancements, funded by Congress and overseen by scientists and inventors in the federal government, can give us more time to take the steps needed to curb emissions in the direction of a low carbon, high-growth economy.

The Grid Is a Force Multiplier for Decarbonization
Anne Pramaggiore - Exelon Utilities
Exelon Utilities
Current Issue
Parent Article

Deep decarbonization is no pipe dream. But it demands a focus on the most powerful lever for transformation in our energy system: The electric grid.

Electricity is responsible for 28 percent of U.S. greenhouse gas emissions. Much of the rest comes from other sectors now powered by fossil fuels. But vast swaths of these sectors can be electrified.

As the electricity system gets cleaner, so too does every car and appliance connected to it. The integrated and networked grid that delivers this electricity can be a decarbonization force multiplier.

In an era dominated by platform businesses, the electric grid is the ultimate platform: capable of rationalizing assets, matching consumers and producers of energy, and animating new markets.

A decarbonized electricity system requires more affordable carbon-free resources and energy storage technologies with expanded capacity. We are on our way. Twenty percent of U.S. electricity demand is already met by carbon-free nuclear energy, and the prices of solar, wind, and storage are all down more than 70 percent since 2009. The size of the global energy storage market is projected to double six times over by 2030.

But accelerating these trends — in the most optimally economic and socially equitable way — will require even more ambitious and creative policymaking.

In this energy transformation, technology may lead, but policy rules. Decisions made by policymakers and regulators will direct hundreds of billions of dollars in capital investment and determine whether deep decarbonization is achievable in the time frame our climate challenge demands.

Let’s be clear about what’s required: We are reinventing and redesigning the energy system that fueled the U.S. economy and our quality of life in the last century to ensure the success of our nation’s economy and quality of life in the 21st century. If the United States gets it right, we can be a model for the world.

An economic, equitable, and ultimately carbon-free reinvention requires more connection, not less. We need the power of networks. We need to drive change at scale. In a world where more power sits on roofs and batteries sit in basements; where there are more electric vehicles on the road; and where power is coming from and going to many different places, the grid becomes the most important platform in the economy.

The policy to spur this energy reinvention is tough. The politics can be even tougher. Witness the street protests that wracked France last year over the government’s proposed fuel tax increase. One way to mitigate this kind of backlash could be returning funds raised from a national carbon tax back to the public as a dividend. Exelon announced our support for such a proposal last year.

Many states and cities have committed to reduce carbon emissions 80 percent by 2050 and are taking varying regulatory approaches to get there. California has relied on policy mandates to incentivize the transition to renewables, smart grids, and distributed energy resources. New York has relied more on market incentives. Illinois’s approach falls somewhere in between.

Each state will find the model that works best for its citizens. But every state should see the grid as indispensable to its decarbonization goals.

Exelon has developed a multi-step maturity model that envisions the evolution of the grid from the starting point of functional modernization to a future where the grid is the essential connective tissue for communities taking on the interrelated challenges of climate change, economic development, and improved quality of life.

Many utilities — empowered by innovative regulatory frameworks — have already made the foundational investments in smart-grid infrastructure to progress through the first two stages of this model: modernizing for reliability and improving resiliency and security against threats likes cyberattacks and extreme weather events.

Now, a new wave of policy innovation is needed to enable utilities to take the next steps to expand customer choice and accelerate the adoption of distributed resources — and to achieve decarbonization through growing amounts of carbon-free supply resources and more rapid electrification of transportation and manufacturing.

When Thomas Edison devised a power-distribution system for lighting bulbs in millions of homes, he remarked there “was no precedent for such a thing.” Over 100 years later, the IPCC described our climate challenge in similar terms, saying it requires a scale of economic and societal transformation with “no documented historical precedent.”

Over a century ago, the right technology and policy enabled us to invent a new energy system. Today, with the right technology and policy, we can reinvent it, to achieve deep decarbonization.