Now As Then, Rivers Are Crucial to Our Prosperity
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue

One of the first civilizations to arise after humankind left Africa was in a nearby region that is in present-day Iraq and parts of neighboring countries stretching to the Mediterranean Sea. It has been dubbed by chroniclers Mesopotamia, Greek for “the land between two rivers.” The Tigris and Euphrates valley was the setting for the biblical Garden of Eden and is aptly named the Fertile Crescent in history books today.

Rivers have been a tremendous boon and resource for humanity, offering drinking water, food, waste disposal, irrigation, fertilizer, and a medium for personal transportation, commerce, and recreation. Even in ancient times, many of these uses ended up in conflict and often required coordination to fully exploit, fostering the beginnings of government and its role in preserving the public trust. Later in history, the public trust attributes of rivers were adopted by Roman law and English law before coming to us.

Many of the world’s early civilizations were founded on the banks of great rivers—the Yellow River in present-day China, the Indus in India, the Nile in Africa, and the Mesopotamian culture that began about six thousand years ago and lasted for millennia. These cultures’ trajectories overlapped, there was intercourse even among distant lands, and many of the same inventions emerged in more than one of these and the other great civilizations that eventually arose on all the habitable continents.

The ancient Mesopotamians took full advantage of the two large streams flowing through their settlements. According to Amanda H. Podany, professor of ancient history at California State Polytechnic University, it was a region that was kind to human advancement, with predecessors of today’s goats, sheep, pigs, dogs, and cattle and wild seed crops like barley and wheat that were easy to harvest and, eventually, domesticate.

Over centuries, the hunter-gatherers who subsisted on these leavings developed agriculture, built one of the world’s first cities, Uruk, and created the first written language we know how to read, which is when we can really begin to know them and see in their problems, and opportunities for advancement, some of our key drivers today.

Known as Akkadian, this writing was inscribed on clay tablets—mud being the only abundant resource in the river valleys—and is a form of cuneiform. It was primarily used to keep track of business and governmental records, documenting the rise of bureaucracy and the administrative state. Included in these clay tablets are some of the first contracts and accounts of court decisions, and numerous property records, deeds, and other legal instruments. They knew the importance of these documents—they fired key tablets to ensure they would endure, and indeed a quarter million have been unearthed by archeologists.

Even more durable is stone. The Babylonian King Hammurabi, who created the first large-scale Mesopotamian empire in the 18th century BCE, had his famed legal code engraved on rock monoliths placed in vassal states, thus creating the predecessor to the Federal Register. According to the site, Hammurabi is also the father of government’s role in what we today call “promoting the general welfare,” through public works such as irrigation canals to help farmers by tapping water from the two rivers.

The Babylonians also used the abundant mud to perfect pottery, a huge advance that facilitated the storing and use of food and other substances. According to W. Bernard Carlson, professor of engineering at the University of Virginia, potters copied Akkadian scribes who fired their cuneiform tablets, devising in turn high-temperature kilns based on a new invention, charcoal made from trees, to melt glazes and make their wares more waterproof.

The advent of mass-produced pots by Mesopotamian artisans spawned an industrial revolution. Charcoal-fired kilns proved useful to smelt copper from ore, creating the first pure metal not found in nature. Copper was used as currency, for tools, for armor and weapons, and for jewelry. Ancient smiths eventually added arsenic to the smelting recipe to launch the Bronze Age and another leap forward in technology, enabling better tools for agriculture and weapons for warfare.

According to Cal State Poly’s Podany, evidence exists that arsenic was abandoned and replaced with tin in bronze-making because it had proved toxic in production—thus, in our view, becoming the first industrial process change as the result of an OSHA violation. Charcoal became critical to ancient societies for making not only pottery and bronze but eventually lead, iron, gold, and silver. The University of Wisconsin’s Gregory S. Aldrete says this need for high-temperature ovens accounts for much of the deforestation in the Mediterranean basin evident today.

But that’s not the end of the story. Mesopotamian artisans also developed the pottery wheel, which stores and releases rotational energy in a uniform manner, simplifying the manufacture of storage vessels and foodware. Engineers then used the potters’ invention of controlled motion around an axle to make the first chariots for warfare and carts for produce and raw materials.

Wheeled vehicles required real roads, creating another obligation of government in providing for defense and the general welfare. According to John. W. I. Lee of University of California, these incentives spawned the road system of the Persian Empire that supplanted Babylonia. These roads projected central control and facilitated tax collection, in addition to fostering commerce. The network was run on a cooperative federalism model not unlike the U.S. Interstate System, and with the same defense and economic justifications. In the end, the advent of wheeled vehicles and roads in ancient societies meant that people and goods could readily travel away from rivers, allowing humanity to expand into new lands.

And all these technological advancements occurred because a riparian society was rich in just one resource—mud.

This is all leading up to the fact that today we are as dependent on rivers as ever. Last fall, the Mississippi became unnavigable in certain areas due to a persistent drought in the Midwest. Thousands of barges carrying food and raw materials were stranded—at one point equivalent to 210,000 container trucks—putting pressure on markets when inflation is high and global grain markets are in stress due to the war in Ukraine. Some 60 percent of U.S. corn and soy exports begins its journey on the Mississippi.

In the West, the Colorado River, which serves one American in ten, is failing to meet the needs of cities and agriculture. The region is experiencing a 22-year-long drought—the worst in 12 centuries, New Scientist calculates—lowering dam-formed Lake Mead and Lake Powell to unprecedented levels and endangering hydropower generation. Meanwhile, downstream users are experiencing water shortfalls.

In Europe, what another alarming article in New Scientist terms a once-in-500-year drought is affecting riparian commerce. Water levels in the Rhine River, which transports 80 percent of Germany’s ship-borne goods, are dangerously low. At one point hydropower generation was down 20 percent across Europe, where electricity production is already stressed due to cutbacks on Russian gas.

According to Brown University environmental scientist Laurence C. Smith, writing in the New York Times, “Economic powerhouse rivers . . . are being sucked dry not only by climate change but by fast-growing cities and farming operations that need more water. Agriculture is the single largest consumer of fresh water, and global food demand is still rising.” Yet another water-shortage report in New Scientist says that England—a land with few major rivers or lakes—will need four billion liters of drinking water per day in additional capacity at the same time as it experiences the effects of climate change. Or as Brown’s Smith puts it, “There are no new rivers left to tap. We must learn to do more with less.”

It is not surprising that humanity’s engagement with rivers is today fertile ground for advancing environmental justice. Rivers offer the same amenities they always have, if they are clean and are accessible to local communities. In cities, riverside parks are great places to spend an afternoon picnicking, boating, playing sports, and fishing. This is especially so in rental neighborhoods, where parks offer valued living space. Sadly, EJ communities along riverfronts often don’t have this standard suite of recreation lands and, in fact, have large industrial plants, warehouses, and refineries. People need to be connected to the streams flowing through their communities, as they were in ancient times. Humans have always thrived on the offerings of local waterways.

“Throughout history, societies have grown and prospered along rivers,” as Smith puts it. “Today, nearly two-thirds of us live alongside them. The ways in which societies use rivers have changed drastically over time, giving rise to cities, powering the Industrial Revolution, and populating the world’s arid lands through massive dams and water diversion schemes, among other transitions. It’s time now to reimagine our relationship with rivers once again.”

—Stephen R. Dujack

Notice & Comment is the editors’ column and represents the signatory’s views.

In a World First, New Zealand Plans to Tax Bovine Burps

Farmers across New Zealand took to the streets on their tractors [October 20] to protest government plans to tax cow burps and other greenhouse gas emissions, although the rallies were smaller than many had expected.

Lobby group Groundswell New Zealand helped organize more than 50 protests in towns and cities across the country, the biggest involving a few dozen vehicles.

Last week, the government proposed a new farm levy as part of a plan to tackle climate change. The government said it would be a world first, and that farmers should be able to recoup the cost by charging more for climate-friendly products.

Because farming is so big in New Zealand—there are 10 million beef and dairy cattle and 26 million sheep, compared to just 5 million people—about half of all greenhouse gas emissions come from farms. Methane from burping cattle makes a particularly big contribution.

But some farmers argue the proposed tax would actually increase global greenhouse gas emissions by shifting farming to countries less efficient at making food.

—Associated Press

Some of the dirtiest cars in America are owned by less affluent Americans. The reason? They can’t afford newer, cleaner, more fuel-efficient ones. Consequently, if using EVs to lower emissions is the name of the game, adoption should be encouraged where it would matter most.

—Boston Globe

Now As Then, Rivers Are Crucial to Our Prosperity

The Floods and Drought of Climate Change Call for Local Institutions
Craig M. Pease - Former Law School Professor
Former Law School Professor
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Craig M. Pease

The past summer saw flash floods in the U.S. Southwest, a region locked in a multi-decade drought. Elsewhere, monsoons flooded swaths of Pakistan and displaced millions, while low water levels on the Rhine, Thames, and Mississippi disrupted residential water use and commercial shipping.

Could climate change bring both more rain, and more drought? It seems contradictory. The answer is not so obvious. There is a long record of monsoons bringing abundant rain in some years, to some locations, but not others. Likewise, all rivers with commercial shipping have records of droughts.

Even without climate change, fresh water is sporadically distributed. Deserts have little, rain forests a lot. There is low rainfall in the western United States because of the rain shadow of the Sierra Nevada. In the Southeast, high rainfall leaches nutrients out of agricultural soils, impoverishing them. Near Phoenix, the Gila River has abundant fish, yet only meters away on the desert floor there is cactus.

Climate change exacerbates this baseline of huge temporal and spatial variability in rainfall. A 2022 analysis of data from the Long-term Agroecosystem Research Network found, “Historical data showed increased peak daily flows and number of zero flow days.” A 2018 paper on Indian monsoons found “Projected [climate change impacts] show widespread increase in wet days over most of India and reduction over Western Ghats.” [Emphases added.]

The global water cycle provides a useful perspective on the enormousness of the problem humanity faces. Solar energy evaporates water from oceans. Winds then transport it to continents, where rain falls on land. Rivers return some water to the ocean. Evaporation returns some directly to the atmosphere. Terrestrial plants transpire some into the air as well.

These water flows are beyond gigantic. Each year, about 120,000 cubic miles of water evaporates from the oceans, lakes, rivers, and streams, or is transpired by plants, moving into the atmosphere and through the global water cycle. In contrast, total residential, industrial, and farming water use per year in the United States is roughly 100 cubic miles, a minuscule fraction of that total. There should be more than enough fresh water.

That perspective is deceptive, however. The already present 1.2 Celsius degrees of warming has increased evaporation of water into the atmosphere, with roughly 10,000 more cubic miles of water now flowing each year through the global water cycle. This indirect impact of humans on the global water cycle dwarfs our water consumption.

In altering global water flows so massively, humans have acquired the power of gods, which we have deployed with the sentience of a potted plant. Going back literally millions of years, humans and our hominoid ancestors evolved exquisite cultural and social mechanisms, adapting their societies to this extreme temporal and spatial variability in freshwater supply. We seem intent on destroying every last bit of this ancient cultural heritage.

The nomads that formerly followed herds of wildebeest and buffalo were moving to find fresh water. Those herd movements were themselves driven by rainfall that made forage abundant at distant locations. More recently, but still before the advent of fossil fuels, the landscape was populated with locally adapted, and intricate, institutions for managing water. See, for example, Elinor Ostrom and Roy Gardner’s classic 1993 study of irrigation systems in the mountains and lowlands of Nepal.

Our modern institutions for managing fresh water have no real cultural heritage, and were instead created out of whole cloth, a deal cut by politicians, industrialists, farmers, ranchers, and city dwellers. Like most modern institutions, and unlike ancient water management approaches, they strive for short-term results and efficiency, at the cost of reduced system robustness in the face of novel challenges. Climate change now alters the supply of fresh water on which these institutions were built.

It is not just lack of robustness and too large a spatial scale. Critically, the dams, aqueducts, statutes, and legal contracts of the Three Gorges Dam, the California Water Project, and their ilk destroy the embedded local social institutions of the human communities that they flood, displace, or make economically unviable. In so doing these large-scale water management systems destroy the small-scale systems where we might look for a solution, and they thwart the evolution of new local water institutions.

The sensible approach is to match the scale of our institutions with the scale of the problem. To manage freshwater regimes that inherently exhibit extremely local idiosyncrasies in rain, drought, and available supply, we need thriving local institutions.

The Floods and Drought of Climate Change Call for Local Institutions

Trump's Coal Mandate Ignores the Real Threat to National Security
David P. Clarke - Writer and Editor
Writer and Editor
Current Issue
David P. Clarke

Scientists understand that climate change looms ever more urgently as a cataclysmic threat to both the Earth’s biodiversity and human society. Rejecting the issue, however, the Trump administration isn’t content to merely halt or weaken Obama-era carbon regulatory programs and to withdraw from the global Paris climate agreement. In June we learned that the Department of Energy is weighing a proposal to help prop up failing coal and nuclear power plants that market forces would shut down, a policy DOE suggests is needed to avoid a power-generation shortage that might threaten national security.

But the closure of uneconomical plants “is not a national security issue,” says retired Vice Admiral Dennis McGinn, an advisory board member of the Center for Climate & Security, a nonpartisan institute guided by military and security experts. While perhaps once vital to U.S. national security, coal-fired power is no longer essential, and skewing markets to help the fossil-energy sector is generally a bad idea for the U.S. power portfolio and overall economy, McGinn says.

The Defense Department has long recognized climate change as a genuine threat to national security, McGinn adds. In the West, multi-year droughts and resulting possible wildfires hamper the ability of Army and Marine Corps bases to conduct realistic live-fire training. West Coast beach erosion and shifting harbor contours also constitute a threat. At the Hampton Roads military complex in Virginia, sea-level rise as well as the growing frequency and intensity of mid-Atlantic hurricanes are top concerns. Globally, climate change is a threat multiplier for instability, as recognized by the CNA Military Advisory Board in 2007 and again in 2014, when 11 retired generals and admirals concluded climate-related national security risks are “as serious as any challenges we have faced.”

When it comes to national security, DOD civilian and military leaders need the best possible data and objective analyses to understand security environments in which the military will have to operate five to 20 years into the future, McGinn says. For example, when various stresses destabilize societies, para-military groups, drug cartels, terrorist organizations, and others exploit the resulting power vacuum, and a U.S. military engagement could result or resources vital to national security could be threatened.

Regarding the proposal to bail out failing coal and nuclear plants, McGinn notes that an overlooked consequence of DOE’s reliance on the 1950 Defense Production Act’s authority as a basis for supporting the continued operation of uneconomical electricity plants is that billions of dollars would likely be diverted from defense budgets under such a policy, siphoning off more traditional national security funds.

While the Federal Energy Regulatory Commission’s June 12 hearing made clear that no grid reliability emergency exists, and diverse groups including conservative think tanks, Big Oil, and other energy organizations oppose DOE’s proposal, activists remain concerned that it nevertheless could have traction.

It is troubling that the administration has wrapped its proposal “in the national security flag,” says Gillian Giannetti, staff attorney with the Sustainable FERC Project, a clean-energy coalition, because “certain deferential standards can come with that.” But, even if DOE’s security assertions could make immediately defeating the proposal more difficult, the proposal lacks factual and legal support that ultimately will make it untenable, she adds.

According to Giannetti, dozens of reports have shown that grid outages are the result of distribution system weaknesses and grid elements outside of FERC’s direct authority that could be addressed at state and regional levels. Fuel security is not the reason the lights go out, she says, noting that less than 1 percent of outages were caused by fuel shortages. Real security issues, such as climate change impacts and cyber invasions, could take out distribution systems. But grid resilience and security could be enhanced by encouraging a broader, robust energy system that fully integrates distributed resources, such as wind and solar, with large-scale power generation, Giannetti says. DOE’s proposal would divert finite government resources from the real issues, she concludes, and ultimately consumers and taxpayers would pay for any bailout.

As DOD seeks objective information to understand the climate threat, a recent report by the progressive Center for American Progress, “Burning the Data,” finds that Trump requests would have cut federal climate and energy data and research funding 16.8 percent. Thankfully, appropriators rejected those cuts, though Trump is still trying.

Meanwhile, according to the National Oceanic and Atmospheric Administration, in 2017 the U.S. spent $306.2 billion on weather and climate-related disasters.

Almost no security or energy analysts support the president’s generation policy.

Pollution’s Death, Destruction Huge
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue

Pollution’s Death, Destruction Huge

As the world mourns deaths from opioid overdoses, gun violence, terrorism, and killer storms, a study reveals that “environmental pollution is deadlier than all the world’s wars, and it kills more people every year than a plethora of other ills, from smoking and hunger to natural disasters,” as E&E News reports. The research, published in The Lancet, “found that 1 in 6 premature deaths in 2015 was attributable to pollution and toxic exposure. That adds up to about 9 million deaths, with a financial cost of $4.6 trillion — more than 6 percent of the world economy.”

In Europe, “filthy air caused half a million early deaths” in 2014, reports New Scientist, citing the European Environment Agency. The biggest killer “by far” was PM2.5, which alone caused 428,000 deaths in 41 European countries. The main source of this pollution was domestic woodburning. Nitrogen dioxide from vehicles contributed another 78,000 deaths, and ground-level ozone accounted for 14,400 premature departures.

None of the deaths above is directly due to climate change, which adds to the total toll of dying and destruction. Extreme heat isn’t just an inconvenience — it can kill, according to Kim Knowlton, deputy director of the Natural Resources Defense Council’s Science Center. The organization found that 210 million Americans are potentially affected by hotter than normal days.

“Cities like New York, Philadelphia, Chicago, and Boston could each experience at least six times as many dangerously hot summer days by 2100 as they did, on average, from 1975 to 2010,” NRDC said in an email. “Collectively, 45 major urban areas in the United States could see about 28,000 more deaths each year due to extremely hot summer days by the 2090s.”

So much for deaths. As for destruction, the data crunchers at Zillow, the real estate website, are predicting that one home in fifty in the United States will be flooded if seas rise by six feet, as forecast for century’s end. The value of the affected properties, which surprisingly will be in suburbs more than the cities, is $916 billion. “While the damage caused by recent hurricanes is a devastating reminder of how quickly the weather can undo people’s lives and destroy their homes,” the report says, “the potential for damage from a slower-moving phenomenon could be even more destructive.”

Concerned about droughts, wildfires, hurricanes, and other natural disasters affecting the United States, Senators Susan Collins (R-ME) and Maria Cantwell (D-WA) requested that the Government Accountability Office assay the costs to American society. GAO found that the federal government spent $350 billion over the last decade on crop losses, extreme weather, and other natural disasters, much of the total attributable to climate change. That sum does not include the cost of the four destructive hurricanes that hit the United States last year nor the huge wildifres that plagued the West, which would push that total over $400 billion.

“These costs will likely rise as the climate changes,” the office said in its summary overview. “GAO recommends that the appropriate entities within the Executive Office of the President, including the Office of Science and Technology Policy, use information on potential economic effects to help identify significant climate risks and craft appropriate federal responses.” Good idea, but OSTP has largely been a “ghost town,” according to the New York Times, and the president has nominated a woman whose expertise is comparative literature and who believes that increased carbon dioxide is actually beneficial to head his Council on Environmental Quality.

In a report on the GAO study, E&E News found that “the document said the fiscal implications of climate change are likely to vary by region. The Midwest and Great Plains are likely to see a decrease in crop yields, while the West could suffer increases in drought, wildfire, and heat waves. The Southeast is at risk for coastal property loss from sea-level rise and coastal erosion. The Northeast is also at risk for storm surges.”

Representative Mike Quigley (DIL) summed it up: “The costs of climate change are staggering and will only continue to mount in the future.” Quigley, the vice chair of the Sustainable Energy & Environments Coalition, declared, “Climate change is a fiscal problem, an agricultural problem, a food and water problem, a housing and transportation problem. There is no area of society or sector of our economy that is immune to climate impacts.”

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


Federalism Down Under

“Referring to laws that protect the environment as ‘green tape’ is like referring to speed limits as transport inefficiencies. Environmental laws are there for environment protection. The regular attempts of state governments to put the environment last demands a federal role.”
— Opposition environment spokesman Tony Burke as quoted in The Australian


Polluter Pays, Precautionary Principle Pulled Out of Pullout Bill

The cornerstones of wildlife and habitat protection have been quietly left out of the withdrawal bill ripping the heart out of environmental law, campaigners say.

A key principle under EU law which provides a robust legal backstop against destruction of the environment — the precautionary principle — has been specifically ruled out of the bill as a means of legal challenge in British courts.

Based on the idea that the environment is unowned, the precautionary principle creates a bottom line forcing those who want to build or develop, for example, to prove in law what they are doing will not damage the environment.

Other key elements of EU legal protection, the polluter pays, and the principle that preventative action should be taken to avert environmental damage, have also been ruled out in the bill as a means to protect the natural world from damage by policymakers, development or industry after Brexit.

The withdrawal bill began to be debated in committee [in October] by MPs. Ministers are facing intense lobbying by Greener UK, an umbrella group of several leading environmental NGOs and backbench MPs, to ensure that the UK does not throw out these key protections.

Richard Benwell, head of government affairs at WWT, said: “Take out principles like precaution and polluter pays and you rip out the heart of environmental law.”
The Guardian


News That's Reused

The temperature was 97 degrees at the start of the World Series in Los Angeles, setting a record for the Fall Classic, reports E&E News. One thinks of managers and relief pitchers wearing team jackets as they go about their business during the games that begin in late October. But the Santa Ana winds roared down from the mountains to Dodger Stadium, where the LA squad faced off against the Houston Astros, a team immune to the weather in its signature dome.

A Peruvian farmer is suing German energy giant RWE for its role in melting a glacier above his town. The meltwater is overflowing a dam protecting the settlement, requiring the equivalent of $4 million in repairs to the aging structure. The suit seeks $20,000, an amount that takes into account RWE’s share of global greenhouse gas emissions, which the farmer calculates as .05 percent.

“The glacial melt is very fast there and some glaciers are about to disappear due to global warming,” Saul Luciano Lliuy told Reuters. “Those responsible are the big industries that have burned coal . . . that have burned petroleum. The main objective of what we want to achieve is that these businesses stop polluting.”

Another farmer, this one in China, is suing a local chemical plant for polluting his farmland. “Wang Enlin, an elderly farmer who left school when he was 10 years old and taught himself law armed with a single textbook and dictionary, makes for an unlikely eco-warrior,” reports The (U.K.) Daily Mail.

“Wang and other villagers from northeast Heilongjiang province have sued Qihua accusing it of contaminating their soil, rendering it untenable for crops, in a case that has stretched on for more than 16 years.”

A local court ruled in his favor, ordering the giant firm to clean up a waste site bordering the farmland and pay 55 affected households the equivalent of $120,000. “But that ruling was overturned on appeal, and Wang is now gearing up to fight back on another day in court.”

Climate change means a good recruitment climate for ISIS, the venerable National Geographic reports. “Across rural Iraq and Syria, farmers, officials, and village elders tell similar stories of desperate farmhands swapping backhoes for assault rifles.” ISIS has found the infertile fields ripe for induction. “Already battered by decades of shoddy environmental policies, which had hobbled agriculture and impoverished its dependents, these men were in no state to navigate the extra challenges of climate change.”

This would not be the first instance of resource stress or scarcity leading to armed conflict — tales go back millennia and include many current conflicts as well. But it is a harbinger of conflicts to come as millions of environmental refugees test receiving countries, and many end up as mercenaries as a means of survival.

California has fined a Russian consulate for burning trash presumed to be secret documents when the facility was ordered to close as part of a tiff between Washington and Moscow, according to Newsweek.

“The Bay Area Air Quality Management District issued the unspecified fine . . . in response to the mysterious plumes of black smoke that escaped the building’s chimney . . . two days before the staff was forced to abandon the post during the ongoing diplomatic spat between the United States and Russia.”

News on deaths from pollution, warming gets even worse.