COAL

Posted on October 8, 2019 by Donald Stever

My blog posts have, in the past, largely focused on this or that regulation or some legal development or other dealing with chemical regulation or environmental statutes or rules in general. This one is different.

I grew up in Pennsylvania coal country. Well, actually on the border between the coal mines on the Piedmont Plateau (CO2 precursors) and the big dairy farm (methane emitters) region in the wide valleys that stretched along the Allegheny Mountains. My father was a veterinarian. As a kid I was his unpaid assistant. One vivid childhood memory I have is of going down into a deep shaft coal mine with my father; I lay on my back in an electric rail car, traveling nearly a mile into the earth where my father was called to treat an injured mule. You see, mules pulled the coal cars from the active extraction shafts to the main mine shaft. Oh, and the mules were blind. They were blinded intentionally because (a) there was no light anyway and (b) they learned to know the labyrinth by senses other than sight. Then there was the coughing. The mules coughed. The miners coughed. All were covered with coal dust. My father returned to the mine from time to time. I demurred.

Which brings me to my point. When I retired from my full-time litigation-heavy law practice I started to read books, a pastime that I had largely been denied for lack of time during the fifty-odd years of environmental law practice. Not pulp novels. Mostly not “best sellers.” Nope. I read science-based books, many of which address the environment. Two of these dealt in part with the subject of coal.  Peter Brannen, in The Ends of the World: Volcanic Apocalypses, Lethal Oceans, and Our Quest to Understand Earth's Past Mass Extinctions, neatly explains the primary cause of the last five extinctions of nearly all life on Earth, discernable from analyses of geologic strata. The culprit? Carbon dioxide emitted by the combustion of coal (fossil vegetable matter accumulated over eons of time) caused by massive flows of volcanic magma which ignited enormous coal deposits, which in turn heated up the atmosphere, which in turn heated up and acidified the oceans. So, burning coal pushes carbon dioxide into the atmosphere, which traps solar heat, heats up the earth and oceans and every complex living thing (or almost every living thing) dies.

Sound familiar? In his most recent book, Falter, Bill McKibben points to irrefutable scientific analyses concluding that human combustion of coal and its cousin oil, abetted by human agricultural emissions of methane, is on track to raise carbon dioxide levels in the  atmosphere to a concentration that is higher than the carbon dioxide levels that triggered all of the prior mass extinctions.

I have to ask: are the Trumps and the Wheelers and the McConnells and their counterparts in Asia and South America who simply deny the obvious consequences of their refusal to deal with the issue of runaway combustion of fossil carbon unable to read? Obviously, they can read, but I dare say that inability to read would at least give them an excuse for denying my three-year-old granddaughter a habitable planet on which to live.

Singer-songwriter and distinguished member of the New Hampshire Bar John Perrault perhaps says it best in his song, Carbon the Garden:

There is the Capitol floatin’ away

Congressmen wailing “it’s a mighty fine day”

Tell me, how long does it take to investigate

Oh, the oceans in the kitchen and the desert’s at the garden gate.

Song lyrics by John Perrault © 2013 John Perrault

The ACOEL Foundation - An Exciting ACOEL Relationship

Posted on October 4, 2019 by John Cruden

Co-authored by Jim Bruen

As you likely know, ACOEL has created a related but separate entity known as the ACOEL Foundation. This charitable, non-profit, tax-exempt foundation was inspired by ACOEL Fellows who saw a need for a non-political foundation to advance environmental and natural resource goals and objectives consistent with the mission and vision of the College.  Through the work of many, the Foundation has gone through the laborious but important transformation from inspiration to creation, to legal authorizations and finally, to implementation.  The Foundation was first incorporated in Delaware and by-laws were approved. Then, just last year the Internal Revenue Service approved our status as a 501c (3) organization. Because the home of the Foundation is the District of Columbia, we next had to gain the District’s approval to locate there and achieve tax exempt status.  Approval came this Summer. 

Once the Foundation attained the status of an approved charitable, non-profit ,tax-exempt organization, it proceeded to apply for written permissions from each of the thirty-eight states which require such approval before allowing charitable solicitations within their borders. Much of this year has been doing the laborious process of gaining such permissions.  Multiple forms had to be submitted, responses notarized, and explanations given.  As the current President,  John is pleased to report that we have the required permissions from all but one state (Virginia), and anticipate its approval in the near future.  We are therefore ready to proceed with the Foundation’s work. We will now be able to receive and utilize volunteer labor, such as law students, support overseas environment and wildlife programs, partner with other organizations to improve the environment, or fund studies of use to the profession.

The ACOEL Foundation is, of course, linked to the College.  The only member of the Foundation is the College, and they share most of the same leadership.  The President, however, is the immediate past president of the College.  John became the President at the annual conference in the Grand Tetons last October, and Allan Gates will become the President at the Williamsburg conference this October.  And, our first President, Jim Bruen, who set all of this in motion, remains an important part of the life of the Foundation.

Thus far the Foundation operates through grants from the College and a few significant donations by past and current Foundation leadership.  That money was vital to get us to where we are now, but we will clearly need more help in the future. We will soon be initiating a limited donor campaign, to obtain the resources necessary to give the Foundation the financial support so that it can operate effectively.

Our vision is that the Foundation will be initiating, supporting, encouraging, or partnering on environmentally significant projects in the future.  We will be able to do so independently, or in partnership with others.  While there are limitations on what we can do, either by the IRS, state laws or by our own desire to avoid any significant administrative overhead, we strongly believe that there is a great array of projects that we can do which will benefit the environment and natural resources.  The projects will be proposed by ACOEL Fellows,  will be reviewed in detail, and then submitted for approval to the Foundation leadership. At the annual conference John Cruden and Jim Bruen will provide a comprehensive update of the Foundation’s status and preview the type of projects that can be considered in the future.   We fully expect they will make a real-world difference.

If You Need the Money I’ve Got the Fine

Posted on October 3, 2019 by Kevin Finto

With apologies to Lefty Frizell, that is a terrible suggestion on how to fund environmental programs.  But, we need to figure something out.  As environmental lawyers, we spend a lot of effort discussing the substantive and procedure aspects of the statues and regulations that protect the environment, but little time on the appropriations bills that make them work.  We are all familiar with environmental regulations that have wide-scope, strict requirements, but inadequate funding for their implementation.  This deficiency results in the unintended consequences of providing a false sense of protection to the public and frustration to the regulated community. 

The problem is becoming more acute as political-based belt-tightening on environmental issues continues at the Federal level and directly affects budgets of the state environmental agencies, where most of the implementation occurs.  The Environmental Council of the States (“ECOS”) reported in 2017 that federal funding of state government programs declined by 2.5 percent between 2013 and 2015.  While some states were able to meet the short fall, many states, faced with ever-increasing demands for education, security and social welfare are not keeping up with environmental funding as their economies grow out of the great recession.  For FY 2020, EPA proposed a budget decrease of 31 percent.  Where this ends up is yet to be seen.  On September 26, ECOS sent a letter to EPA Administrator Wheeler, which did not expressly identify budget issues, but demanded a meeting to discuss “serious[] concern[s] about a number of unilateral actions by U.S. EPA that run counter to the spirit of cooperative federalism and to the appropriate relationship between the federal government and the states who are delegated the authority to implement federal environmental statutes.”

So what do we do?  I think three steps might be helpful.  First, there needs to be greater focus and participation on the budgetary process to evaluate the need, priority and allocation of available resources rather than simply updating a prior year’s budget.  I am suggesting reevaluation from the bottom up of many agency budgets by the regulators, lawmakers, the regulated community and environmental non-governmental organizations.  Of  particular concern is how agencies can meet basic long-existing requirements such as monitoring environmental quality and training of personnel while dealing with expenses of new requirements related to communicating through social media, data storage and cyber security.  The second is to evaluate the efficiency with which the agencies operate and to share best practices.  As documented by ECOS, in many instances, state agencies, in particular, have become increasingly efficient as they have had their budgets repeatedly slashed and cuts have been necessary in order to provide the essential services.  Third, there needs to be advocacy in Congress and our state legislatures, from relevant stakeholders –government agencies, the regulated community, and environmental non-governmental organizations. 

In some states, the latter has already occurred.  A good example is VIRGINIAforever, a unique, diverse coalition of businesses, environmental organizations, and outdoor enthusiasts that advocates for increased government funding for water quality improvements, land conservation and improved agency performance and funding across the Commonwealth.  It is the only statewide organization that has a primary focus on increasing funding for natural resources protection.  This has taken the form of collaborative and very active lobbying for adequate funds in the Virginia General Assembly to promote land conservation and water quality.

VIRGINIAforever representatives meet regularly with agency heads to discuss budgets.  It promotes activities to educate lawmakers on the importance of environmental protection and it lobbies for adequate funding.  It is in the process of releasing its latest five-year plan to obtain those resources.  The group also recognizes those who promote its goals.  For example, each year it holds a Bridge Builder dinner honoring those who work with both environmental groups, government agencies and the business community to promote land conservation and water quality.  By design, VIRGINIAforever also provides a forum for fostering relationships among those with diverse perspectives on environmental issues. In sum, if we want to promote sound and efficient environmental programs, we need to think not only about the substance and the procedure, but also identify and advocate for the sources of adequate funding.

CARB Continues Global Leadership Role on Climate with Adoption of Tropical Forest Standard

Posted on October 2, 2019 by Kevin Poloncarz

After nearly a decade of work, on September 19, 2019, the California Air Resources Board (CARB) endorsed its much anticipated Tropical Forest Standard (TFS). The TFS is a first-of-its-kind framework for assessing jurisdiction-scale offset credit programs that reduce emissions from tropical deforestation and degradation. It is widely expected to serve as a replicable model for adoption by other international greenhouse gas mitigation programs that utilize tropical forest reductions as offsets, including the International Civil Aviation Organization (ICAO) Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA).

The TFS framework ensures that reductions produced by a subnational jurisdiction’s systemic efforts to conserve its tropical forests are real, quantifiable, permanent, additional and enforceable – the hallmark criteria to ensure the environmental integrity of offset credits within emissions trading schemes, such as California’s Cap-and-Trade Program. It requires rigorous, independent third-party verification of both the emissions avoided by the jurisdictional plan and the jurisdiction’s adherence to social and environmental safeguards designed to protect indigenous communities.

Under the TFS, subnational jurisdictions wanting to issue offset credits for their overall forest conservation efforts must adhere to guiding principles endorsed by indigenous community leaders and state and regional governments whose territories include more than one-third of the world’s tropical forests. These principles mandate that indigenous communities are involved in plan development and implementation and share in the resulting economic benefits.

CARB’s endorsement of the TFS does not authorize emitters to use tropical forest offsets for compliance with its Cap-and-Trade Program at this time; CARB would need to amend its regulation to authorize such use and has no immediate plan to do so. Advocates for indigenous communities and environmental justice nevertheless opposed CARB’s action, arguing that it made it all but inevitable that CARB would soon adopt such an amendment and that doing so would allow emitters to continue emitting and consuming fossil fuels in California.

Against such opposition, leading scientists and environmental groups strongly supported CARB’s endorsement of the TFS as a critical near-term step to slow the loss of tropical forests and limit global warming to no more than two degrees Celsius. According to recent estimates, tropical deforestation now amounts to more emissions each year than 85 million cars over their entire lifetime, dwarfing California’s own anthropogenic emissions and those of all nations but the U.S. and China. As a consequence, no serious effort to mitigate climate change can exclude measures to avoid continued deforestation and degradation of tropical forests.

CARB’s action comes at a timely moment, as the impacts of climate change and slash-and-burn agriculture are resulting in an unprecedented surge in uncontrolled fires throughout the Amazon rainforest. Although the political situation in Brazil may make it difficult to crack down on illegal burning and deforestation, CARB’s adoption of the TFS may amount to one small step towards counterbalancing the incentives that promote deforestation.

Extending Fundamental Rights to Lake Erie?

Posted on October 1, 2019 by Steve Miano

An interesting legal battle is playing out in the United States District Court for the Northern District of Ohio over whether the City of Toledo’s establishment of a “Lake Erie Bill of Rights” passes constitutional muster.  On one side are the citizens of Toledo and environmental groups.  On the other, the State of Ohio and farming interests. 

Backdrop:

A recent amendment to the City of Toledo’s city charter, approved by 61% of its citizens, established the Lake Erie Bill of Rights (“LEBOR”). https://beyondpesticides.org/assets/media/documents/LakeErieBillofRights.pdf  The LEBOR sets out several fundamental rights of Lake Erie, including the “right to exist, flourish and naturally evolve.”  The LEBOR also establishes the right of the citizens of Toledo to a clean and healthy lake and lake ecosystem, and authorizes citizens to enforce this right through an action against dischargers to the lake brought in the name of the Lake Erie Ecosystem. 

The LEBOR was enacted in the context of algal blooms and other threats to drinking water supplies and the lake’s ecosystem from chemical and nutrient discharges.  Proponents of LEBOR describe these discharges as assaults which continue to occur in spite of state and federal environmental laws.  The City claims that both the state and federal governments have failed to protect the lake.

Interestingly, the provisions of LEBOR conferring fundamental rights on Lake Erie and the citizens of Toledo are based on two broadly worded articles of the Ohio constitution, Articles 1 and 2, which provide: (1) “[a]ll men are, by nature, free and independent, and have certain inalienable rights, among which [include]… seeking and obtaining happiness and safety” and (2) “[a]ll political power is inherent in the people … and they have the right to alter, reform, or abolish the same, whenever they deem it necessary…”  These articles do not expressly address environmental rights, in contrast to the constitutions of states that have adopted environmental rights amendments.

The LEBOR further provides that “it shall be unlawful for any corporation or government to violate the rights recognized and secured by this law,” and “[n]o permit, license … issued to a corporation, by any state or federal entity, that would violate the prohibitions of this law or any rights secured by this law, shall be deemed valid within the City of Toledo.”  The law also provides for strict liability for civil and criminal penalties against dischargers, and the recovery of legal fees and expenses of those citizens bringing suits to enforce LEBOR.

Perhaps most significantly, the LEBOR states that corporations that violate the law “shall not be deemed to be ‘persons’ to the extent that such treatment would interfere with the rights or prohibitions enumerated by this law.”  Perhaps going beyond what a municipality is empowered to adopt, it provides that such violators shall not have the right to assert that federal or state laws preempt the LEBOR or that the City lacks the authority to adopt the law.  Finally, it provides that laws enacted by the State of Ohio or any agency will not apply in the City of Toledo if they violate the LEBOR.

Unsurprisingly, the LEBOR is being challenged by the State of Ohio and farming interests.  The challenges include claims that the law violates the US Constitution, including:  (1) the right to freedom of speech and the right to petition the courts under the First Amendment; (2) the right of equal protection; (3) Fifth Amendment protections against vagueness, and (4) the right of due process.  Moreover, the challengers argue the law exceeds the City’s authority and intrudes on powers entrusted to state and federal governments by, inter alia, invalidating state and federal laws and permits.  Interestingly, the petitioners also argue that since Lake Erie borders Canada, the law impermissibly interferes with international relations.  (See, e,g., https://www.courthousenews.com/wp-content/uploads/2019/02/DrewesErie.pdf)

The State of Ohio, in response to the LEBOR, also enacted legislation that bans “legal actions on behalf of or by nature or ecosystems.”  The bill, signed by the governor, states: “[n]ature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas. No person, on behalf of or representing nature or an ecosystem, shall bring an action in any court of common pleas.” https://www.nationalreview.com/corner/ohio-bans-nature-rights/

The legal challenges are playing out in the US District Court for the Northern District of Ohio. Drewes Farm Partnership v. City of Toledo, Ohio, No. 3:19-cv-00434-JZ.

Many legal observers believe the LEBOR is unlikely to survive the constitutional challenges.  Nevertheless, it is an interesting case to watch.  This law is part of a trend to try to impart legal rights to nature.