Posted on February 13, 2017
Have any of you been feeling like this lately? I certainly have! Which is why, after struggling to come up with a topic for this blog, I decided not to write about the uncertain future of the US EPA or the man who has been nominated to lead that agency, concerns about the US withdrawing from the Paris Agreement, the frightening implications of climate change and unchecked global warming, the erosion of the Chevron doctrine, or the increasing disrespect for the judiciary. Instead, I chose a topic that made me smile.
On February 1, 2017, the organizers of the Tokyo 2020 Olympics and Paralympics announced that the Olympic medals for the 2020 Games will be made entirely out of recycled materials from computers, mobile phones and other small electronic devices. This public initiative is in direct response to Recommendation 4 of Olympic Agenda 2020, which states that sustainability must be integrated into all aspects of the planning and execution of the Games. The organizers have partnered with mobile phone operator NTT DoCoMo and the Japan Environmental Sanitation Center for a nationwide collection effort to gather 8 tons of metal from recycled electronics. It will involve over 2,000 collection boxes placed at offices and stores throughout Japan beginning in April 2017. The donated electronics will undergo chemical processing to separate out various metals to provide enough gold, silver and bronze for 5,000 medals. The chemical production process is expected to result in 2 tons of metal: 42 kg of gold, 4920 kg of silver and 2944 kg of bronze.
Olympic host cities traditionally have purchased the precious metals needed to make Olympic medals from mining firms. A few host cities previously used recyclable materials in their medals. Thirty percent of each of the silver and bronze medals from the Rio 2016 Olympics were made from recycled materials and the ribbons on which the medals were hung were made 50% from polyethylene terephthalate (PET) plastics. The recycled silver came from mirrors, waste solders and X-ray plates while the bronze came from waste from the Brazilian Mint. The gold was mercury free and in compliance with sustainability standards from extraction to refining. At the Vancouver 2010 Olympics, a local mining and metals company processed 6.8 metric tons of recycled circuit boards for materials for medals. The Japanese initiative, however, is the first to involve extensive public participation and, if successful, will be the first to have medals composed entirely of recyclables. Japan has scant mineral resources, so apart from being sustainable and raising public awareness about waste minimization and the multitude of opportunities for e-waste beneficial reuse, this project will also result in cost savings.
As technology continues to advance and drive the electronics market forward, electronic products—and particularly smart phones—quickly become outdated and are discarded for the next model or generation. And, the life cycle of an electronic device ends at the consumer. While recycling and disposal of e-waste is regulated in Japan, enforcement can be lax and public awareness and compliance low.
Of course, we face similar obstacles in the United States. On the federal level, while EPA has some authority to address e-waste under the Resource Conservation and Recovery Act, it does not have broad authority to implement a comprehensive federal program covering recycling of e-waste. The EPA relies largely on voluntary compliance programs, which are not well publicized. Given the current political climate, we are unlikely to see significant advancement in addressing the e-waste problem, even though having one comprehensive set of rules regarding e-waste recycling and beneficial reuse likely would be more efficient for the manufacturers and distributors of electronic products as well as for the public.
At least in New York, things on the e-waste recycling front are more optimistic. New York has been praised for its e-waste recycling program under the Electronic Equipment Recycling and Reuse Act, which provides comprehensive regulation impacting manufacturers, retailers, consumers and recyclers throughout the life cycle of electronic devices. The New York State Wireless Recycling Act requires wireless telephone providers that sell phones to accept up to 10 old cell phones per person per day. At the local level, New York City is participating in an initiative to contribute zero waste to landfills by 2030. As part of this initiative, NYC urges consumers to donate old electronics through donateNYC, or to participate in the take-back or drop-off program mandated by the Wireless Recycling Act.
Regardless of whether an e-waste program is voluntary or mandatory, at the foreign, federal, state or local level, the public must be educated, engaged and willing to comply with the program for it to be effective. While it’s too early to tell how effective Japan’s Olympic initiative will be, it certainly is a smile-worthy, innovative way to engage the public.
Posted on February 3, 2017
On his way out the door, former Director of the U.S. Fish and Wildlife Service Dan Ashe issued an order to establish procedures and a timeline for expanding the use of nontoxic ammunition and fishing tackle to conserve wildlife. The order sets forth policy to require the use of nontoxic ammunition and fishing tackle “to the fullest extent practicable” for all activities on Service lands, waters and facilities by January 2022, except as needed for law enforcement or to address health and safety issues. The order also provides for collaboration with state fish and wildlife agencies in its implementation.
In addition to continued education and research, Ashe set forth three basic steps to achieve this policy. To provide more consistency, the Service is to identify existing state, Federal or tribal requirements to use nontoxic ammunition or tackle and, through amendment of Service hunting and fishing regulations, to apply and enforce those requirements on Service lands. Second, Regional Directors must take steps to require the use of nontoxic ammunition and tackle when available information indicates that the lead content negatively impacts sensitive, vulnerable or trust resources. It also directs the Service, in consultation with National Flyway Councils, to establish a process to phase in the use of nontoxic ammunition for hunting mourning doves and other upland birds. In other words, the order is a measured plan to be implemented through collaboration, consultation and rulemaking over the next five years.
The phase-out of lead ammunition is nothing new. The Service phased out the use of lead shot for hunting waterfowl starting in 1986, but rejected an alternative that would have extended to all migratory bird hunting based on insufficient data. For decades, scientific evidence regarding the detrimental effect of lead ammunition on wildlife has been mounting. A recent Service assessment concluded that numerous lines of evidence in the scientific literature point to spent lead ammunition as the primary pathway for widespread lead exposure to scavenging birds such as bald and golden eagles and the California condor in the United States, that reducing this route of exposure will result in the greatest alleviation of mortality and other adverse effects to these species from lead in the environment, and that lead can be replaced in ammunition by alternative metals that are currently available and present limited environmental threats.
Unfortunately, Ashe’s timing was terrible. Predictably, the National Shooting Sports Foundation and the National Rifle Association characterized the order as government overreach, unchecked politics and not based on sound science. They called for the next Director to rescind the order, and Representatives Jason Chaffetz and Blake Farenthold, Chairman of the House Subcommittee on the Interior, Energy, and the Environment, have instructed the Acting Director of the U.S. Fish and Wildlife Service to produce all documents referring or relating to issuance of the order by February 13, and to provide a briefing on the Service’s outreach efforts to the states and the “sportsmen’s community” in anticipation of the order’s issuance. Montana Congressman Ryan Zinke, poised to become U.S. Secretary of the Interior, is likely to ensure that the order is very promptly rescinded.
Waterfowl hunters have successfully used nontoxic shot for over twenty-five years. Absent further leadership from the U.S. Fish and Wildlife Service, some states are phasing out lead ammunition. Hunters currently have a reasonable choice to avoid unintended harm – wildlife does not.
Posted on January 24, 2017
On December 28, 2016, President Obama by Proclamation under the federal Antiquities Act designated 1.35 million acres of federal lands in southeastern Utah as the Bears Ears National Monument. That action culminated nearly a century of efforts to protect this unique, canyon-country site, which is archaeologically rich, ecologically diverse, and the ancestral homeland of a number of southwestern Indian tribes.
Immediately after this designation, the Utah governor and congressional delegation, some local officials, and various conservative pundits railed that the designation was an illegal and inappropriate “federal land grab,” was done without proper public input, will unduly impede traditional tribal and local activities, and can and should promptly be reversed and rescinded by the incoming Trump Administration.
Each of those claims has no factual or legal merit. The most recent Bears Ears proposal was initiated several years ago by local Navajo leaders and formally endorsed by the Navajo Nation and four other tribes whose ancestors inhabited this area, as well as other local and national Indian and conservation groups. It has been thoroughly vetted for several years and was the subject of a number of public meetings throughout 2016, including several local meetings attended by Interior Secretary Jewell. As a result of that extensive public input, the Obama administration excluded over 600,000 acres of initially-proposed lands that contain oil and gas leases, existing and prospective uranium mining sites, limestone quarries, grazing areas, local water supply watersheds, and other objected-to areas. The designation also expressly protects all valid existing rights, preserves access by Native Americans for traditional uses such as sacred ceremonies and gathering plants and firewood, and creates an Advisory Committee of state, local, and tribal representatives and private landowners to provide information and advice to BLM and the U.S. Forest Service in their joint administration of the monument and development of appropriate management and transportation plans. As a result, the principal existing activities that will be restricted within the designated Monument are the ongoing illegal theft and vandalism of federal and tribal archaeological sites.
The Proclamation also uniquely creates a Bears Ears Commission consisting of an official from each of the five Native American tribes with historic ties to the area, to provide guidance and recommendations on the management of the Monument and related plans. This is the first, and long-overdue, instance of Native American tribes being directly involved in coordinating with federal agencies to manage a monument that protects sacred sites on their ancestral homelands.
Regarding whether this action is a proper use of the Antiquities Act, it is widely acknowledged that this area contains one of the densest and most significant concentrations of archaeological and paleontological sites and specimens in North America. It is also uncontroverted that historic sites in the area have been extensively looted and vandalized over the last century. The FBI has conducted major enforcement actions against illegal “pot-hunters” in this area, including as recently as 1986 and 2009. Complaints that state and local officials can better protect against such theft and vandalism ignore that most illegal pot-hunters have been local denizens and that, until fairly recently, the University of Utah museum was a major purchaser of the pilfered artifacts. Providing federal protection to these highly-jeopardized antiquities on federal public lands is precisely what the Antiquities Act was designed and intended to do. Far from being improper, this protective measure is long overdue.
In terms of timing and process, the Administration waited patiently until a long-pending legislative alternative proposal to protect the area failed in Congress. That bill, introduced by Utah Congressman R. Bishop and dubbed the Public Lands Initiative (PLI), would have put 1.4 million acres into two National Conservation Areas (NCAs) and a separate wilderness area, but it provided less protection and increased state and local control over uses in the NCAs, with no direct tribal involvement. But that bill failed to move through Congress before it adjourned. In addition to waiting for completion of that legislative process, by reducing the monument designation from the initially proposed 1.9 to the final 1.35 million acres, the Obama Administration also largely aligned the boundaries of the final monument designation with those of the failed PLI proposal and excluded the central areas of objection.
Regarding the proposal for the incoming Trump Administration to administratively rescind this designation, there is no legal authority for the President to do so. The Antiquities Act authorizes a President to designate an area as a national monument on federal lands when necessary to protect the appropriate sites and resources. It does not authorize a President to rescind a designation made by some predecessor, and no President has ever done so in the 111-year history of the Act. The Attorney General in 1938 formally opined that the Act does not provide for such rescission, and nothing has changed that would alter that conclusion. The Congressional Research Service recently confirmed the absence of any such authority or precedent. Republican Party members would also do well to recall that the Antiquities Act was signed in 1906 by its own conservation hero, Teddy Roosevelt, who used it to designate 18 monuments in three years, seven of which later became popular national parks, including at the Grand Canyon. All but three presidents since that time have done the same. As was the case with all those actions by Teddy and others, after all the immediately-following outrage and uproar, this measured Bears Ears designation will no doubt later be acknowledged as a brave, innovative, and critical action to protect this long-vandalized and currently-threatened area.
In sum, the recent designation of the Bears Ears Monument was the right decision at the right time for the right reasons, and there is no legal basis to rescind or restrict it without an act of Congress. The incoming Administration and Congress should not heed recent partisan, emotional calls to try to undo it and should instead work with the new tribal Commission and all affected stakeholders to develop a fair and appropriate management plan for the new Monument.
Posted on December 8, 2016
In preparing the curriculum for my first environmental law class this coming semester, I thought it would enrich my students’ experience to read certain of the important antecedents of the modern era of environmental statutory, regulatory and case law. Aldo Leopold’s A Sand County Almanac, a classic of conservation literature, came immediately to mind. As a result, I have returned to a book that kindled my appreciation for ecology and the outdoors and, thereby, reinforced my interest in environmental law.
I began by reading the chapter in which Leopold muses about activities that take place during November at his sand farm on the Wisconsin River. (Since my blog is due in early December, jumping in here seemed to make sense.) Leopold recounts a myriad of activities in the mere twelve pages he devotes to describing this month’s developments. One section is devoted to the unintended beneficial consequences that result from diseases that afflict his trees. Various animals take advantage of the shelter and, especially, the food that these diseased and rotting trees provide. Leopold’s insight is to look beyond the misfortune of losing trees; not only is this destruction a natural part of life, but - if only we are able to recognize it – death is offset by the sustenance the dying and dead trees provide to local animals. While this “circle of life” approach is easily understandable these days, such an idea was radical when Leopold was writing in the 1940s.
The heart of the November chapter finds Leopold considering whether to chop down a white pine or a red birch. Indeed, he considers conservation to be “a matter of what a man thinks while chopping, or deciding what to chop. A conservationist is one who is humbly aware that with each stroke he is writing his signature on the face of his land.” Leopold thoughtfully explores his motives in selecting to fell one tree or the other –which of the trees he planted, which is more scarce, which is likely to stand longer if untouched, which wood will fetch more money upon sale, the impact the tree would have upon animals and other plants if left standing … even his ancestors’ tree preferences.
Leopold casually reveals the many species that coexist in a deceptively simple sand farm. He also educates his audience by gently illustrating the interrelatedness of the plants and animals and describing the seasonal impacts of cold and wind on each. The descriptions of vegetation and, especially, the birds that nest in his trees and bushes, are enchanting. One wishes to have Leopold take us by the arm and show us all that he observes and understands.
Leopold’s skill as a stylist, especially his use of a languid and folksy style, masks his considerable scientific knowledge. We know that he was a college professor and that, among other fields, he understood evolutionary theory. While it is obvious that this training informs his many observations and conclusions, yet, Leopold serves up this technical information so lyrically that readers whose experiences with botany and zoology were less than happy will feel at home.
A word about the philosophical aspect of the Almanac is warranted. While Leopold’s observations are presented on the “micro” level, he carries a far broader message. Leopold laments the loss of our natural environment but with an approach that educates more than criticizes. “What is the value of wilderness?” is one of the many deeper questions lurking just beneath the surface. Leopold believes that its value lies in and of itself, but also in its contribution to our wellbeing; the natural world is essential to the moral and spiritual welfare of humanity.
Environmental law began to catch up with Leopold’s ecological vision in the early 1970s. Since then, it would be easy to focus our legal training on the interplay among various elements of so-called “positive” law in the protection of our natural world. But omitting Leopold and others like him from the education of our future lawyers would be a costly error, as doing so would ignore the conservation and ecological ethic that lies at the very root of environmental protection. Rereading Leopold reminds us of how and why our field of law first arose and why practicing it continues to hold our interest. I urge my colleagues in the College to dip (back) into this resonant and loamy book. I’ll bet dinner in Charleston if you, too, don’t come away with a refreshed appreciation of our natural world and a reminder of the part our professional activities play in preserving it for future generations.
Posted on December 1, 2016
After the smoke clears, damage still emerges from last spring’s wild and vast fires around Fort McMurray in Alberta. The NYT Science Times (August 9, 2016) reported how fires like these are destroying Earth’s peat deposits, releasing volumes of greenhouse gases into the atmosphere. Long-dead plant material in peat holds ancient carbon, which photosynthesis removed from the air. Worldwide, buried peat holds 30% of all carbon dioxide.
Most know peat only as dried “peat moss” used to enrich flowerbeds. Canada harvests 40,000 acres of peat moss, exporting 90% to the USA for gardeners. Peat is dried when mined. Exposed to the air, the peat oxidizes and its stored carbon is released. In Alberta, peat covers 65% of the oil sands. Cleared to permit surface mining, Alberta’s peat releases upwards of 47.3 million tons of stored carbon into the air. The wild fires ignited this exposed peat, and set peat in the ground ablaze. Fires are still smoldering, awaiting winter rains and snows.
Peat fires burn all around the world until rains extinguish them. Beyond billions of dollars in economic damage, natural systems are impaired. NASA provides an online observatory revealing the extent of these fires. This summer’s Siberian wild peat fires burn on.
Companies unlawfully burn peat in Indonesia to convert wet peat forests to palm oil and pulp plantations. Indonesia’s greenhouse gas emissions from burning peat are today equal to all the climate-changing emissions of China or the USA. Each year since 1997, the smoke from these fires causes air pollution locally in Riau and across the Straits of Malacca in Kuala Lumpur and Singapore. Southeast Asia’s peat emissions are adding one gigaton of carbon dioxide a year. The Indonesian “Haze” is well documented, as in NASA’s 2014 recorded images.
Although peat deposits exist in all Earth’s regions, peat covers only 3% of the land surface. Peat has accumulated to depths of 30 feet or more. While drained or degraded peat areas are found today on 0.4% of the lands, these areas currently contribute 5% of total greenhouse gas emission. Their volume of emissions grows daily.
Mining of peat is an additional cause of the destruction of peat deposits and carbon emissions. Peat is mined like coal in Ireland and in each Scandinavian country to fuel electricity generating plants. A new peat-fired power plant has opened in Uganda. The untapped peat in Central Africa is huge. Peat bogs in the Congo exceed the entire landmass of Great Britain.
Some countries are taking steps to limit disturbance of peat deposits. Finland, New Zealand and Great Britain are debating ending their exploitation of peat in order to help stop global warming. Since 1989, Kew Botanical Garden in London has banned the use of peat, although the U.K.’s annual emissions of carbon dioxide from mining peat for use in compost remain at 400,000 tons. To stop air pollution of Moscow and halt ongoing greenhouse gases releases, Russia is re-wetting peat areas drained in the 1920s by the USSR. Russia’s protected wilderness areas hold the world’s largest preserved peat habitats. Peat is protected in federal parks lands of Alaska.
Alternatives exist for every use of peat. Countries could legislate to ban peat sales and restore damaged peat deposits. States like New York or Massachusetts have already done so by adopting strict wetlands laws. The need to reduce greenhouse gas emissions provides a strong reason to ban sales of peat moss, and prohibit peat mining in Minnesota and nationally. Emission-trading schemes can help finance transitions from peat abuse to peat preservation.
Peat preservation is critical. Paleoecologists mine peat for knowledge, learning how plants thrived and died over the 11,000 years since the last Ice Age. Peat reveals how climates change. Accumulating slowly at 1 mm/year, peat is an irreplaceable record of life on Earth. Peat areas also host essential biodiversity. Indonesia’s peat loss jeopardizes its Orangutan and Sumatran tiger habitat. In less than ten years, the Kampar Peninsula lost 43% of its peat, releasing 1.9 gigatons of greenhouse gases. Indonesia has lost 18.5 million hectares of forests, an area twice the size of Ireland.
United Nations climate negotiators so far have ignored the plight of peat. At the 2015 Paris climate negotiations, Singapore stated that, “emissions of these fires by errant companies in Indonesia are more than the total CO2 emissions of Germany. This is comparable to the emissions of Japan.” It is sobering to reflect that Southeast Asia’s peat emissions are matched by those in Canada and elsewhere.
This month, the World Conservation Congress of the International Union for the Conservation of Nature met in the USA for the first time. The 5,000 IUCN delegates in Hawai’i adopted a call for the worldwide protection of peat. Some efforts have begun. The United Kingdom is studying a “Peat Code” to finance peat restoration and preservation by payments to offset other gas emission. In Germany, “MoorFutures” are being offered in Bavaria for investors to finance peat offsets.
Much is at stake. If the climate warms and the peat is allowed to dry and burn across Africa, Asia, Siberia and elsewhere, run-away emissions can result. Aware of mounting environmental degradation, a year ago the nations in the UN General Assembly adopted a new Sustainable Development Goal, to “protect, restore and promote sustainable use of terrestrial ecosystems” by 2030. For peat’s sake, let us get on with it.
Posted on June 6, 2016
Who knew? On May 19 those wild eyed environmentalists on the Senate Appropriations Committee unanimously (no misprint) passed a FY 2017 agriculture and rural development bill that includes significant funding for conservation work. The bill now goes to the full Senate for a vote and, if it passes, back to the House for reconciliation.
Of particular interest, the bill breathes new life into the moribund Watershed and Flood Prevention Operations Program. This little known program is supposed to fund land and water conservation efforts at the watershed level, but has long gone unfunded and unloved. The new bill would appropriate $150 million, which would be the first appropriation since 2010. Less than the Administration proposed—and not nearly adequate, of course—but nevertheless, new money that could serve important purposes.
Oregon Sen. Jeff Merkley, a member of the Appropriations Committee, sees an opportunity for addressing habitat needs for fish and wildlife, particularly the spotted frog, as well as aiding rural communities. The U. S. Fish and Wildlife Service listed the spotted frog and designated critical habitat in Central Oregon. Indeed, irrigation districts in the area are making plans to compete for the funding to help with irrigation equipment upgrades and replacement of open canals with pipes. Such efficiency and conservation efforts reduce pressure on habitat for the spotted frog and other species.
It will be interesting to see if a sister program, the Land and Water Conservation Fund, established by Congress in 1965, can find a receptive ear as well. As described by the LWCF Coalition:
It was a simple idea: use revenues from the depletion of one natural resource - offshore oil and gas - to support the conservation of another precious resource - our land and water. Every year, $900 million in royalties paid by energy companies drilling for oil and gas on the Outer Continental Shelf (OCS) are put into this fund. The money is intended to create and protect national parks, areas around rivers and lakes, national forests, and national wildlife refuges from development, and to provide matching grants for state and local parks and recreation projects.
Unfortunately, for many years Congress has diverted the funds for other purposes, leaving a multi-billion dollar backlog in maintenance and enhancement projects. There’s no direct connection between the LWCF and the Watershed and Flood Prevention Operations Program, and no particular reason why funding of one would lead to funding the other. Still, Sen. Merkley, if you are reading, this one might be added to your to-do list!
Posted on May 20, 2016
August 25, 2016 is the 100th anniversary of the National Park Service. The many planned celebrations and observances provide an opportunity for everyone to become reacquainted with these great outdoor spaces and reflect on the world around us. As your summer plans take shape, be sure to visit FindYourPark.com and try to visit at least one national park. I invite you to share photos of your travels in the comments section of this post, and perhaps ACOEL can find a place for the collection of images of its members enjoying these national treasures.
As I reflect on the Park Service’s anniversary, I observe that it presents a chance for me – and for all environmental lawyers – to take stock of where we have been as a profession. Why – and how – we do what we do? What challenges will the next 100 years hold?
I issue this charge, in part, to carry on the conservation legacy of Henry L. Diamond. Henry was a founder of my firm, Beveridge & Diamond, and a great environmental lawyer and mentor to many (including myself). Sadly, we lost Henry earlier this year.
Henry and many others like him paved the way for our generation to be stewards of the planet and the environmental laws that govern our interactions with it. We have made progress, but new challenges have emerged. Easy answers, if they ever existed, are fewer and farther between. So what, then, does the future hold for the next generation of environmental lawyers?
Future generations of lawyers would do well to focus on the funding mechanisms that are critical but often overlooked components to achieving our most important environmental and sustainability goals. As an example, we can look to the past. Early in his career, Henry Diamond assisted the Chairman of the Outdoor Recreation Resources Review Commission, Laurance Rockefeller, in editing the Commission’s seminal report, Outdoor Recreation for America, that was delivered to President John F. Kennedy in 1962. Among the Commission’s more significant recommendations was the idea to use revenues from oil and gas leasing to pay for the acquisition and conservation of public lands. Congress took action on this recommendation, creating the Land & Water Conservation Fund in 1965 as the primary funding vehicle for acquiring land for parks and national wildlife refuges. While the fund has been by all accounts a success in achieving its goals, much work remains to be done and the fund is regularly the target of budgetary battles and attempts to reallocate its resources to other priorities. Today, the four federal land management agencies estimate the accumulated backlog of deferred federal acquisition needs is around $30 billion.
I expect climate change will dominate the agenda for the young lawyers of our current era. They will need to tackle challenges not only relating to controlling emissions of greenhouse gases, but also adaptation resulting from climate change. Sea level rise, altered agricultural growing seasons, drought and water management, and other issues will increase in prominence for this next generation.
We can expect our infrastructure needs to continue to evolve – not only replacing aging roads, bridges, tunnels, railroads, ports, and airports, but also the move to urban centers and the redevelopment of former industrial properties. Autonomous vehicles and drones also pose novel environmental and land use issues. These trends will require us to apply “old” environmental tools in new ways, and certainly to innovate. As my colleague Fred Wagner recently observed on his EnviroStructure blog, laws often lag developments, with benefits and detractions. Hopefully the environmental lawyers of the future will not see – or be seen – as a discrete area of practice so much as an integrated resource for planners and other professions. Only in this way can the environmental bar forge new solutions to emerging challenges.
The global production and movement of products creates issues throughout the supply chain, some of which are just coming to the fore. From raw material sourcing through product end-of-life considerations, environmental, natural resource, human rights, and cultural issues necessitate an environmental bar that can nimbly balance progress with protection. As sustainability continues its evolution from an abstract ideal to something that is ever more firmly imbedded in every aspect of business, products, services, construction, policymaking and more, environmental lawyers need to stay with their counterparts in other sectors that are setting new standards and definitions. This area in particular is one in which non-governmental organizations and industry leaders often “set the market,” with major consequences for individuals, businesses, and the planet.
Finally, as technology moves ever faster, so do the tools with which to observe our environment, to share information about potential environmental risks, and to mobilize in response. With limited resources, government enforcers are already taking a page from the playbooks of environmental activists, who themselves are bringing new pressures for disclosures and changes to companies worldwide. With every trend noted above, companies must not underestimate the power of individual consumers in the age of instantaneous global communication, when even one or two individuals can alter the plans and policies of government and industry.
Before Henry Diamond passed away, he penned an eloquent call to action that appeared in the March/April edition of the Environmental Law Institute’s Environmental Forum (“Lessons Learned for Today”). I commend that article to you. It shares the story of the 1965 White House Conference on Natural Beauty and how a diverse and committed group of businesspeople, policymakers, and conservationists (some of whom were all of those things) at that event influenced the evolution of environmental law and regulation for the decades to come. Laws such as the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, and others have their roots in that Conference. In recognition of his lifetime of leadership, Henry received the ELI Environmental Achievement Award in October 2015. The tribute video shown during the award ceremony underscores Henry’s vision and commitment to advancing environmental law. I hope it may inspire ACOEL members and others to follow Henry’s lead.
These are just a few things I think the future holds for environmental lawyers. What trends do you predict? How should the environmental bar and ACOEL respond?
Posted on March 16, 2016
Federal tax policy greatly influences the donation of conservation easements and thus the contribution to habitat and natural resources that such easements provide. Recently enacted and proposed federal changes go in two somewhat opposite directions on this important tool for environmental protection .
The Good News: Enhanced tax benefits for conservation easement gifts made permanent: After a number of years of temporary extensions, Congress passed and the President signed in December, 2015 a permanent extension of the enhanced Federal income tax benefits for gifts of conservation easements. Enacted in Section 111 of Division Q of the “Protecting Americans from Tax Hikes Act of 2015” (PATH Act) (P.L. 114-113, 12/18/2015) this now permanent tax incentive provides a cost-effective way to help private landowners protect much more land through the use of conservation easements. Since 2006 when the provision was first established, it has helped landowners conserve more than 2 million acres of America’s most important natural, scenic and open lands and historic resources. Considered by many to be the most important conservation legislation in 20 years, the tax incentive:
- Raises the deduction a donor can take for donating a conservation easement from 30 percent to 50 percent of his or her adjusted gross income in any year;
- Allows qualifying farmers and ranchers to deduct the value of the donated easement up to 100 percent of their income; and
- Extends the carry-over period for a donor to take the easement tax deductions from 5 to 15 years beyond the tax year that the gift was made.
These changes apply to easement donations made at any time in 2015 and to all donations made after that. This will be a powerful tool to enable modest-income donors to receive greater financial benefit and thereby encourage them to donate a very valuable conservation easement on their property.
The (Sort of) Bad News: President's budget proposes major changes to conservation easement deductions: Released on February 9, 2016, the President's budget blueprint for Fiscal Year 2017 contains proposals to modify the now-permanent tax deduction for donations of land conservation easements. Although these are only proposals at this time, should they be enacted it is generally considered that they would significantly constrain land conservation efforts. The proposals are:
- Increasing the standards for being a “qualified conservation organization.” This replaces the four current “conservation purposes” for deductible easements with one: that any easement must be pursuant to a clearly delineated federal, state or tribal conservation policy and yields a significant public benefit.
- Making land trusts liable for any misreporting of the conservation purpose, public benefits and fair market value of an easement by the donor.
- Requiring additional reporting to IRS and public disclosure of easement purposes and valuations.
- Eliminating deductions for easements on golf courses.
- Prohibiting deductions for historic building easements attributable to the development potential above the existing profile of the building.
- A proposal for a new “pilot program” in which an interagency federal board distributes tax credits to land trusts, with the land trusts then allocating them to donors based on the importance of the easement for the mission of the land trust.
Although the Obama Administration has been supportive of land conservation generally, it has sought for a number of years to make changes in the tax administration of conservation easement deductions to place a greater burden on land trusts to police the conservation merits and proper valuation of easements. None of these items currently have support outside the Treasury Department however, and therefore are unlikely to be acted on by the current House of Representatives or Senate in the near future. Stay tuned to see if the balance of burdens and benefits on conservation easements sees major changes.
Posted on March 8, 2016
For many of us, the only “drone” we knew of growing up probably was that boring, monotonous lecture late on a sunny afternoon. Or if you were expert in biology, you would have known that a “drone” is a stingless male bee whose sole job is not to gather nectar or pollen, but to mate with the queen. Today, however, everyone over the age of 5 knows that drones are a hot gift item, anything that flies without a pilot onboard but controlled remotely. A “drone”, in government parlance, is generally termed a UAV (Unmanned Aerial Vehicle), or a UAS (Unmanned Aerial System) -- which is a UAV, plus the ground-based controls.
UAVs have spawned a wide range of legal and regulatory issues, including not only Federal Aviation Administration (FAA) licensing but significant privacy, tort and property rights matters. Given the existing and potential use of UAV-collected information about environmental conditions, the next big fight in environmental enforcement will be the admissibility of UAV-collected evidence. Many may not know of the growing use of, and potentially expanding realm for, drones in the environmental arena. The World Wildlife Fund has been using UAVs for several years for such disparate activities as 1) monitoring prairie dog colonies for potential habitat for one of North America’s most endangered mammals, the black-footed ferret. 2) undertaking surveillance activities to reduce poaching of elephants and rhinos in Africa and Asia, and 3) monitoring the three main species of marine turtles in Suriname to combat poaching of their eggs. Likewise, the Nature Conservancy has tested drones to monitor the sandhill crane population in the U.S. And a new NGO, Conservation Drones, has been working with groups all over the “developing tropics to use UAVs for conservation.”
It is not a big leap from use of UAVs for wildlife conservation purposes, to enforcement efforts against unlawful pollution of waterways and illegal logging. For example, a drone can obtain imagery of discoloration suggestive of discharges of hazardous substances; can detect differences in water temperature using thermal sensors to detect illegal discharges; can film illegal mining or deforestation activities; or can even collect small volume water samples from remote areas. But in the US, if one of your clients is the target of such surveillance, is the evidence admissible in an enforcement proceeding?
The answer is—maybe. It depends. The type of answers clients hate to receive from their trusted legal counsel. It is beyond the scope of this post to discuss all of the ongoing machinations of the Federal Aviation Administration as it attempts to develop final rules for the commercial (non-hobby) operation of UAVs. But while the federal government attempts to preempt the field, States have stepped in and, in conflicting ways, attempted to respond to the growing drone game. In 2015, 45 states considered 168 drone bills, and 20 states enacted legislation. In some states, use of a drone over the private property of another person, without prior consent, could result in criminal or civil prosecution or damage claims—even if the drone is used for the environmentally beneficial uses described above. Thus, one must become familiar with her or his state’s laws, as well as monitor the ongoing FAA and Congressional activities, to best effectively prepare and advise clients on this brave new world.
China currently is using UAVs to track excessive air and water pollution is China. In one city with 40,000 sources of industrial pollution and 900 industrial parks, drones are using “high-resolution digital cameras, infrared and laser scanners, and magnetometers…. Some UAVs are also fitted with an infrared thermal imaging unit that shows the operation of facilities at night.” How this information will be used in China remains to be seen.
At home in the US drones are going to fuel more and more back-and-forth legal maneuvers of environmental regulators and NGOs against companies and their lawyers. The gathering and use of drone-generated information may be as intense a fight as the sport use of the UAVs themselves. To get a preview of that emerging arena, check out the more recent “Flight Club” aka Game of Drones—the “bad boys” who want to be the next big sports league. Coming soon to a screen near you.
Posted on February 24, 2015
In a decision lauded by local residents, Alaska Native tribal and business interests, the commercial and sport fishing communities, and conservationists, President Obama recently withdrew the Arctic waters of the North Aleutian Basin (also known as Bristol Bay) from future oil and gas leasing. As President Obama noted, Bristol Bay is a national treasure, one of Alaska’s most powerful economic engines, and home to one of the world’s largest salmon runs. At the same time, the Obama Administration is working on the next outer continental shelf leasing program, and will soon be making critical decisions about whether and how to include within it leasing in the U.S. portion of the Arctic’s Chukchi and Beaufort Seas.
Industry interest in the area is led by Shell, which holds leases in the Chukchi and Beaufort Seas, and as detailed in an article I recently co-authored and in a dramatic cover story in the New York Times Magazine, has experienced a stormy effort to drill there. Not content, however, to focus on the on-the-water challenges of drilling in the Arctic, Shell also pursued a novel legal strategy by preemptively suing its critics in an effort to smooth the waters for its drilling.
After receiving approval from U.S. agencies for various aspects of its drilling plans, Shell filed lawsuits against conservation groups alleging that the groups were engaged in an “ongoing campaign to prevent Shell from drilling in the Arctic” and that it was “virtually certain” that the groups would challenge the federal approvals. Shell sought a declaration from the courts that the approvals were legal.
The Ninth Circuit Court of Appeals recently issued an opinion rejecting Shell’s strategy on the jurisdictional ground that the Declaratory Judgment Act, on which Shell had based its strategy, “does not create new substantive rights, but merely expands the remedies available in federal courts.” The court noted that the law underlying Shell’s request for declaratory judgment was the Administrative Procedures Act (APA), which allows a party aggrieved by agency action to seek judicial review of that action, and that since it is only the agency that can be sued under the APA, “it would be odd to conclude that a [jurisdictionally-required] case or controversy exists merely because Shell seeks to know who would prevail if the environmental groups asserted an APA claim against the [agency].” Indeed, as the court found, were it to hold otherwise, its “holding would create several unusual consequences,” two of which it found “particularly noteworthy”:
First, it would allow a district court to declare the [agency]’s actions unlawful under the APA in a judgment that is not binding on the [agency] itself. ... Second, absent agency intervention, such a lawsuit would allow the lawfulness of agency action to be adjudicated without hearing the agency’s own justification for its actions.
I would suggest that two other “unusual consequences” of a ruling for Shell would have been the upsetting of the historical body of administrative law guiding judicial review of federal agency action and an illegal limit on the First Amendment right of citizens to petition the government.
Posted on August 5, 2014
On September 3, the Wilderness Act turns 50 years old. This milestone marks the beginning of the golden anniversaries for the golden age of environmental statutes. During the next dozen years we will celebrate the 50th anniversary of the National Environmental Policy Act (1970), the Clean Air Act (1970), the Clean Water Act (1972), the Endangered Species Act (1973), the Resource Conservation and Recovery Act (1976), the National Forest Management Act (1976), the Federal Lands Policy and Management Act (1976), and soon after, the Superfund statute (1980). These 50th anniversaries are a time to reflect on the success and failures of each statute, as well as their capabilities to adapt to environmental issues that were hardly contemplated a half century ago. Although the Wilderness Act does not receive the air time as its media-specific cousins, it still is a useful model to evaluate an environmental statute as it reaches this vintage.
Today it seems almost incomprehensible that any federal statute of significance could pass a house of Congress with only one dissenting vote. Yet that’s what occurred when the House passed the bill in 1964 after eight years of debate and countless revisions. The Act probably never would have reached its current form were it not for the tireless work of Howard Zahniser and the decades of support dating back to legendary figures such as Bob Marshall and Aldo Leopold and others. With this legacy, it's not surprising that Act’s language defining “wilderness” borders on prose:
A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and community of life are untrammeled by man, where man himself is a visitor who does not remain.
The Wilderness Act is elegant in its simplicity, yet enormous in geographic scope. On the day of its enactment, the Act immediately designated 9.1 million acres, mostly in National Forests that already were managed as primitive areas. Since 1964, formal wilderness designation has grown to nearly 110 million acres in more than 750 different named areas.
Structurally the Act sets criteria for wilderness, reserves to Congress the authority to designate wilderness, and sets guidelines for management. The guidelines take the form of rigid categories of what can and cannot occur in a wilderness area. Generally that means no roads, few structures and no forms of mechanical transportation. The Act’s guidelines do not contain numeric standards, detailed permitting, or stringent enforcement regimes. This is not surprising because, unlike the media specific statutes like the Clean Air Act and Clean Water Act, the Wilderness Act was not intended to correct problems of the past, but instead is designed to preserve for the future a resource that was perceived to be vanishing.
*Click here to read full article*
Posted on July 9, 2014
I was surprised by a recent piece on National Public Radio. California is in an historic drought, as we all know. The story reported that Sacramento, the capital city of California, is now-- just now!--installing residential water meters. Water meters are the simplest of all water conservation devices, and yet, the story reports, more than 250,000 households in California receive unmetered water. Sacramento and other California cities are working now to remedy this obvious shortcoming.
The story invited a comparison to metro Atlanta. As you may remember, metro Atlanta was the poster child for drought in 2007. Lake Lanier, Atlanta’s primary source of drinking water, was at historically low levels. Both Florida and Alabama accused metro Atlanta of taking more than its fair share of the streams that rise in Georgia and flow to our neighboring states. The assertion that metro Atlanta was not managing its water resources wisely was trumpeted loudly and often repeated. And even today, you’ll find “experts” opining that metro Atlanta has done “nothing” to address its water supply use.
But are these claims true? Hardly. The fact is that metro Atlanta has been working hard for the past fifteen years to become a conservation leader, and its efforts are paying off. From 2000 to 2010, total water withdrawn from streams and reservoirs by metro Atlanta decreased by almost 10% while the population increased by almost 25% (1 million people). Total per capita use in metro Atlanta is now just 106 gallons per day. This is on par with the best of the best, and it is far better than peer cities in the Southeast. Per capita usage in Birmingham, Alabama, for example, is more than 160 gallons per day.
This progress is the result of aggressive conservation planning at the State, regional, and local levels. For example, the Metropolitan North Georgia Water Planning District has required local providers to do the unthinkable, which is not only to require metering, but also to put those meters to good use by charging more per gallon as usage increases. 99% of the population of the District is now subject to conservation pricing. The impact has been dramatic. Meanwhile, at the State level, the Georgia Water Stewardship Act of 2010 has helped to establish a culture of conservation statewide.
On top of these and many other efforts to reduce the amount of water withdrawn from the environment, metro Atlanta water suppliers have spent more than $2 billion on advanced systems to recycle the water withdrawn. The District now recycles over 60 million gallons per day by discharging highly treated wastewater directly into area drinking water reservoirs.
In short, metro Atlanta is way beyond meters. Are you surprised?
Posted on July 7, 2014
From guano of seabirds, national treasure springs. The treasure is the Pacific Remote Islands Marine National Monument in the south-central Pacific Ocean, and it contains some of the most pristine tropical marine environments in the world. It is way out there and mostly under water. The Monument was initially created by George W. Bush in 2009, days before leaving office, pursuant to his executive authority under the Antiquities Act of 1906. But recently, on June 17, 2014, President Obama announced his proposal to expand the Monument nearly tenfold, from the existing area of almost 87,000 square miles to a new total area of 782,000 square miles. Although the size of the Monument will not be finally determined until after this summer’s comment period, the proposal would create the largest protected area on earth and essentially double the area of the world’s oceans that is fully protected. The Monument would be off limits to fishing, energy exploration, and various other activities. Again, the Antiquities Act is the basis of President Obama’s action. The announcement came at the “Our Ocean” conference, hosted by the State Department on June 16 and 17, where other marine conservation initiatives were also announced. The guano that made it possible came at a different time and venue, which I will describe shortly.
Since the presidency of Theodore Roosevelt, the scope of executive power exercised by presidents under the Antiquities Act of 1906 has prompted both needed conservation and heated criticism. For some, criticism of Obama’s proposal aligns with the “Imperial Presidency” moniker. Indeed, the scope of Obama’s proposal is enormous. But many other presidents have used the Act as well, and George W. Bush leads the league in number of marine monuments created by any president under the Act. He created four. The reach of executive powers under the Antiquities Act is told in history that ranges from the Grand Canyon to the Statue of Liberty.
As elegant as the tradition of the Antiquities Act is to the cause of conservation, the Pacific Remote Islands Marine National Monument was made possible in part by a less glamorous law -- the lowly Guano Islands Act of 1856. It is guano as much as antiquities that support much of what may become the largest protected area in the world. And, as an example of an ambitious stretch of governmental authority, the Antiquities Act has nothing on the Guano Islands Act either. The Antiquities Act gives presidents the right to preserve American antiquities with the stroke of a pen. But the Guano Islands Act gave American citizens the right to take possession of and claim for the United States any island in the world that was unoccupied and not under the jurisdiction of another country – so long as the island held guano deposits.
Enacted in a time of global exploration and exploitation, the Guano Islands Act was inspired by tales of vast island deposits of guano, a valuable source of fertilizer. The Act gave any enterprising guano company the green light to become an American Midas, turning guano into big profits in the fertilizer business. In the mid-1800s, most of the tiny islands around which the Pacific Remote Islands Marine National Monument is based were apparently known as “guano islands”. There were also many other guano islands. Under the authority of the Guano Islands Act, the remote guano islands of the present day Monument were claimed for the United States, and the islands became territories of the United States. It is largely that “territory” status that creates the modern-day jurisdiction of the United States over the islands of the Pacific Remote Islands Monument.
The seven islands and atolls of the Monument are tiny. How then could these specks in the ocean provide authority to the United States to require preservation for an underwater realm of 782,000 square miles? It is because each of the scattered islands now comes complete with a U.S. Exclusive Economic Zone (“EEZ”) which surrounds it for 200 miles in all directions from its shore. In 1983, in accord with the United Nations Convention on the Law of the Sea, a Presidential Proclamation by President Reagan (which was unrelated to the Antiquities Act) created this 200 mile EEZ for the United States and its territories. The EEZ provides the United States with rights to conserve and manage resources within the 200 mile zone. The remoteness of the islands causes pristine environments and minimizes commercial activity, two factors that work in favor of creating a reserve of this size.
The Pacific Remote Islands National Monument bears the fingerprints of at least five presidents, reaching across the aisle and the passage of time. Franklin Pierce signed the Guano Islands Act of 1856 into law. Theodore Roosevelt is responsible for the Antiquities Act of 1906. Ronald Reagan created the 200 mile EEZ for territories of the United States. George W. Bush created the Pacific Remote Islands Marine Monument out to 50 miles from the shores of each of the Monument’s islands. Now, President Obama is going for the whole enchilada by expanding the Monument to the full 200 mile limit around each island.
The moral of the story is that the thing you cheer or fear is often not the thing that matters most in the end, and sometimes conservation comes from unheralded sources. Executive authority under the Antiquities Act is a perennial topic in the conservation conversation, but the Guano Islands Act is a sleeper. Its original mining purpose no longer pans out in the remote Pacific, but the Act is a federal foot in the door for a very different conservation purpose over a century and a half later. These days, the gold in the guano islands is their marine environment. It extends offshore for a very long way, and this time the President wants to bank it.
Posted on June 16, 2014
Conservation easements have a long been an effective tool for private efforts to protect land in the United States. But we may not be aware that there is a growing private lands conservation movement in other countries. Conservationists in those counties are adapting the conservation easement as we know it here in the United States to conservation needs in their jurisdictions. Two recent examples highlight this growing trend, one in Micronesia and one in Chile.
As you will recall, a conservation easement is a legally binding agreement between a landowner and the easement holder whereby the landowner agrees to limit the use of his or her property to protect outdoor recreation, natural habitats, open spaces, scenic areas, or historic lands and buildings. Easements have been on the rise in the United States since the 1980s because of important federal and state income tax, federal estate tax, and local property tax benefits that are available to donors of conservation easements. Easements are usually a less expensive conservation approach than government acquisition, ownership, or land use regulation.
Conservation Easement in Micronesia
One conservation-minded family and a state agency in the small island of Kosrae State in Micronesia has just recently recorded the first conservation easement outside of the Americas and in a form that other Micronesian countries and even the United States could model.
Once a United States Trust Territory, Kosrae is one of three states that comprise the independent nation known as the Federated States of Micronesia (FSM). Its legal system is based on the United States legal system. Kosrae’s Attorney General issued an opinion that a conservation easement is a legally viable option for land protection in Kosrae, analogizing to legal principles established in the United States.
This particular conservation easement is designed to permanently protect a rare freshwater swamp forest comprised primarily of the ”ka” tree. The entire forest, named Yela, comprises approximately 400 acres and is the largest remaining ”ka” forest in the world. The undeveloped valley forest has been and will continue to be used for traditional harvests. Eels, nuts, wild pigs, and taro leaves for underground ovens or “ums” are gathered there. The easement will prevent development on the property.
The Yela deal is innovative not only because it introduces a new conservation tool to the region but it is “a new and improved” version of that tool from which states in the United States could benefit. Instead of the grantor who signs the easement sale agreement solely benefitting from the sale proceeds, as is often the case in the United States, the family in this case has invested that income into a trust fund managed by the Micronesia Conservation Trust and from which the family will derive payments over time.
The Kosraean conservation easement deal is being eyed by both Micronesians and other Pacific Islands because, unlike an outright government purchase of the land, the conservation easement model will accommodate the needs of traditional land uses and generational changes while compensating the owners for keeping the land in its natural state.
Conservation Easement in Chile
The largest and third ever conservation easement was recently created in Chile between The Nature Conservancy as the owner of the 123,000 acre Valdivian Coastal Reserve and Fundación de Conservación (FORECOS), a land trust in Chile. FORECOS will hold a conservation easement over nearly all of the acreage comprising the Valdivian Coastal Reserve, one of the world’s last temperate rainforests. To be enforceable under Chilean law, this easement is structured as an easement appurtenant. TNC will give FORECOS fee title to a small parcel of Valdivian acreage to serve as the ‘benefitted’ parcel of land which will be protected by a reciprocal easement held by the Conservancy.
The Reserve is one of the last intact temperate rainforests along the Valdivian Coastal Mountain Range. It is home to outstanding examples of endemic flora and fauna species, including two of the world’s longest living tree species, the alerce — which can live for more than 3,600 years — and the olivillo — which can live up to 400 years — as well as to numerous imperiled species of mammals, birds, reptiles, amphibians, and fish. The Reserve also contains an important marine coastal ecosystem of scrubland, coastal dune, sandy beaches and rocky coasts. In addition, there are eight river basins and five estuary systems within the Reserve that support numerous globally threatened species of plant and animal life.
At the same time that this easement was created, the Chilean Congress is continuing to consider the Derecho Real de Conservacion (DRC) legislation, which would establish a legal framework to enable the easier use of conservation easements in gross for conservation in Chile (by removing the need for the appurtenancy requirement). The completion of this first Chilean conservation easement may encourage the enactment of the legislation. This legislation, along with a proposed Unified Donations Law that will provide tax incentives for conservation donations and make donating to conservation non-profits easier in Chile, has received strong backing from many community and political leaders in Chile.
Easements have also been used in conservation projects in Australia (there called “conservation covenants”), Canada, Guatemala, Costa Rica, and Mexico. While these two most recent examples of conservation easements may differ in detail, they both represent the beginnings of what are likely to be increasingly noteworthy initiatives in countries other than the United States to find and develop new conservation tools to address the needs of both conservation and compatible community development.
Posted on May 2, 2014
Before environmental law existed, David Sive knew that the law could protect forests and fields, abate pollution of air and water, and restore the quality that humans expected from their ambient environments. He fashioned legal arguments and remedies where others saw none. His commitment to building a field of environmental law is exemplary, not just historically, but because we shall all need to emulate his approach as we cope with the legal challenges accompanying the disruptions accompanying climate change.
David Sive learned to love nature by hiking and rambling from parks in New York City to the wilderness of the Catskill and Adirondack Mountains. He carried Thoreau’s Walden into battle in World War II in Europe, and read William Wordsworth and the Lake poets while recuperating from wounds in hospitals in England. He had a mature concept of the ethics of nature long before he began to practice environmental law.
His early cases were defensive. He defended Central Park in Manhattan from the incursion of a restaurant. He rallied the Sierra Club to support a motley citizens’ movement that sought to protect Storm King Mountain from becoming a massive site for generating hydro-electricity on the Hudson River. Scenic Hudson Preservation Conference v. Federal Power Commission [FPC] (2d Cir. 1965), would become the bell-weather decision that inaugurated contemporary environmental law. The case was based on the multiple use concepts of the Progressive Era’s Federal Power Act. The FPC (now FERC), had ignored all multiple uses but the one Con Edison advanced. When the Court of Appeals for the Second Circuit held that citizens had the right to judicial review to require the FPC to study alternative ways to obtain electricity, as well as competing uses for the site, the court laid the basis for what would become Section 102(2)(c) of the National Environmental Policy Act (NEPA).
When Consolidated Edison Company decided to build a huge hydroelectric power plant on Storm King, the northern portal to the great fiord of the Hudson River Highlands, citizens and local governments were appalled. This was no “NIMBY” response. Con Ed had forgotten that these fabled Highlands inspired the Hudson River School of landscape painting. This artistic rendering of nature in turn inspired the birth of America’s conservation movement of the late 19th century. The Hudson also instrumental to the historic birth of this nation; here the patriots’ control of the Highlands had kept the British from uniting their forces, and here soldiers from across the colonies assembled above Storm King for their final encampment as George Washington demobilized his victorious Army. The Army’s West Point Military Academy overlooks the River and Storm King.
David Sive and Alfred Forsythe formed the Atlantic Chapter in the early 1960s, despite heated opposition from Californians who worried the Club would be stretched too thin by allowing a chapter on the eastern seaboard. David Sive chaired the Chapter, whose Conservation Committee debated issues from Maine to Florida. He represented the Sierra Club, pro bono, in its intervention in the Storm King case, and other citizens brought their worries about misguided government projects or decisions to him.
David Sive represented similar grassroots community interests in Citizens Committee for the Hudson Valley v. Volpe (SDNY 1969), affirmed (2d Cir. 1970). Transportation Secretary Volpe had approved siting a super-highway in the Hudson River adjacent to the shore in Tarrytown and Sleepy Hollow, to accommodate Governor Nelson Rockefeller’s proposal to connect his Hudson estate to the nearby Tappan Zee Bridge. Without the benefit of NEPA or any other environmental statutes, which would be enacted beginning in the 1970s, and relying upon a slender but critical provision of a late 19th century navigation law, after a full trial in the US District Court for the Southern District of New York, David Sive prevailed against the State and federal defendants. He won major victories on procedure, granting standing to sue, and on substance, a ruling that the government acted ultra vires. David Sive saved the beaches, parks and marinas of the Hudson shore.
Public interest litigation to safeguard the environment was born in these cases. Public outrage about pollution and degradation of nature was widespread. In September 1969, the Conservation Foundation convened a conference on “Law and the Environment,” at Airlie House near Warrenton, Virginia. David Sive was prominent among participants. His essential argument was that “environmental law” needed to exist.
On December 1, 1970, Congress enacted the NEPA, creating the world’s first Environmental Impact Assessment procedures and establishing the President’s Council on Environmental Quality (CEQ). The CEQ named a Legal Advisory Committee to recommend how agencies should implement NEPA chaired by US Attorney Whitney North Seymour, Jr. (SDNY). This Committee persuaded CEQ to issue its NEPA “guidelines” on the recommendation of this Committee. That year launched the “golden age” of NEPA litigation. Courts everywhere began to hear citizen suits to protect the environment.
David Sive went on to represent citizens in several NEPA cases, winning rulings of first impression. In 1984, he reorganized his law firm, Sive Paget & Riesel, to specialize in the practice of environmental law. From the 1970s forward, NEPA allowed proactive suits, no longer the primarily defensive ones of the 1960s. “Citizen suits” were authorized in the Clean Air Act, Clean Water Act and other statutes.
David Sive knew that without widespread support among the bar and public, these pioneering legal measures might not suffice. He became a founder of the Natural Resources Defense Council (NRDC), which became one of the nation’s pre-eminent champions of public environmental rights before the courts. To continue the Airlie House conference precedent, he institutionalized the established professional study of environmental law, as a discipline, through creation of the Environmental Law Institute (ELI). With ALI-ABA (now ALI-CLE) he launched nationwide continuing legal education courses to education thousands of lawyers in environmental law, a field that did not exist when they attended law school. He devoted an active decade to teaching law students in environmental law, as a professor at Pace Law School in New York.
This month, the Intergovernmental Panel on Climate Change (IPCC) released the second part of its Fifth Assessment Report. The IPCC summaries of peer-reviewed scientific investigation suggest that law will confront problems even more challenging than those that David Sive addressed. New legal theories and remedial initiatives will be needed that do not exist today. The wisdom of ecologist Aldo Leopold can inform the next generation. Globally, others carry on David Sive’s role, such Attorney Tony Oposa in the Philippines or M. C. Mehta in India. The law can cope with rising sea levels, adaptation to new rainfall patterns, and other indices of climate change, but it will take individual commitment to think deeply about environmental justice in order to muster the courage to think and act tomorrow as David Sive did yesterday.
Posted on March 4, 2014
I sit on the board of a land conservation organization. Recently, the Director of Land Preservation for our board made a presentation in which she lamented the negative impact that the 2008 recession continues to have on land conservation activities at the organization. Funding by governments, grant-making organizations and private donors have been reduced, and local governments – one key source of land preservation – are themselves cutting their conservation budgets. Our organization has preserved a steadily decreasing amount of acreage since 2008, and the amount of funds spent on acquiring lands has been diminishing.
Many questions presented themselves following this sobering presentation, including whether a similar situation obtains at other land conservation groups, and what might be done until the economy turns the corner and, hopefully, funding is restored to pre-recession levels.
My research has been neither exhaustive nor scientific, and my sources largely anecdotal, but land conservation in other areas of the country seems to have been a mixed bag during this recessionary period, with some regions able to preserve a significant amount of land. In areas as diverse as the Chesapeake Bay, western North Carolina and large swathes of the West, for example, conservation has been robust in recent years. According to the Land Trust Alliance, more land has been preserved in recent years in states such as California, Colorado and Montana than has been developed. Following the housing crisis of 2008, development has been substantially reduced, lowering land prices and thus presenting an opportunity for conservation organizations to purchase land at lower prices.
Yet, at the same time, many conservation groups lack the resources to take advantage of these opportunities. Government-funded trust funds have been depleted by reduced federal and state budgets, and land conservation organizations’ endowments similarly have dropped as a result of fewer donations and, at least until recently, a depressed stock market. Thus, while land is less costly, less money may be available to take advantage of the opportunity, a classic catch-22. What a shame to be losing the chance to preserve environmentally sensitive land while development pressures are reduced. It is only a matter of time before the economy improves, increasing land values and making preservation more costly.
A recent article in The Wall Street Journal illustrates one impact of tightening local budgets on conservation. As noted in that article, cases are pending before state supreme courts in Maine and Massachusetts in which local governments have assessed real estate taxes on land held for conservation, arguing that they provide insufficient public benefit to warrant full tax exempt status. One or more judgments in favor of the municipalities, while nominally increasing their coffers, would have a further negative impact on conservation by imposing an additional financial burden on conservation organizations.
Until the economy improves, and monies again become available for preservation, land trusts need to become creative in their strategies. For example, conservation easements are less costly than acquiring the fee itself, and often come without management costs because the landowners typically continue to use their land for timber, grazing or agriculture. Instead of purchasing larger tracts, our organization has been shifting its resources in recent years to buying largely residential properties that are subject to frequent flooding. Preservation of these parcels, while typically small in size, serves a vital function by allowing families to relocate to higher and safer grounds and by returning flood-prone areas to a relatively undeveloped state, thereby reducing both human impacts and further downstream flooding.
Let’s hope funding for land conservation – government as well as private and non-profit – increases in the coming years to enable the preservation of sensitive and ecologically-valuable lands for years and years to come.
Posted on December 6, 2013
The recent tornado in the Philippines and forecasts of severe weather events ranging from floods to fires and drought, not to mention the global loss of 50 soccer fields of forest every minute, have again focused attention on the Climate Change debate. However, there is little consensus on what to do about it, as evidenced at the recent Warsaw Climate Change Conference and by Japan’s decision to forego participation in the eight year second commitment period (from 2013) under the Kyoto Protocol. Indeed, one U.S. study indicates that even labeling an energy efficient product as promoting environmental protection can reduce its appeal among some U.S. citizens.
With little chance that Climate Change legislation will be adopted in the near term, the federal government will have to rely on existing laws and regulations when it seeks to address the issue. One law that may receive some attention is the Lacey Act, 16 U.S.C. §§ 3371-3378. First passed in 1900 to prevent poaching of game and wild birds, the Act was later expanded to encompass plants that are not common food crops. Since 2008, it has included wood products.
The Lacey Act prohibits the import, transport, sale, acquisition, or possession of illegally harvested timber. In addition, it requires the preparation of import declarations giving information about the species of wood and country of harvest. Noncompliance with its provisions is subject to administrative fines, as well as forfeiture of the timber, with forfeiture being enforced on a strict liability basis. In addition, both civil and criminal penalties can be imposed by a federal court for certain knowing violations or where there is a lack of “due care”.
The federal government has already used the newly expanded Act in an effort to address illegally harvested timber. In addition to a criminal enforcement settlement agreement between the Justice Department and Gibson Guitar involving the import of Madagascar ebony, there was a federal government investigation in September of two Lumber Liquidator facilities in Virginia concerning wood imported from eastern Russia.
In the latter case, this effort tapped into public concern about preserving the forest habitat of the Siberian Tiger, an endangered species, and it also had the secondary effect of addressing Climate Change. When the lack of enthusiasm for tackling Climate Change efforts is contrasted with the public sympathy and favorable publicity for protection of iconic endangered species like the tiger, the Lacey Act may be an interesting addition to the federal government’s Climate Change enforcement arsenal.
And so the real question is what endangered or threatened species in an illegally logged forest is waiting in the wings for face time in the next Lacey Act enforcement effort, and how many soccer fields of forest will that save?
Posted on July 16, 2013
Back in the 1950s and early 1960s, many feared that Canada geese were following – or perhaps waddling would be more apt - in the footsteps of the carrier pigeon. Until rediscovered in the wilds of Minnesota, the giant Canada goose, one of several subspecies, was thought to be extinct. Now the concern in much of the United States is the overabundance of resident Canada geese. These geese do not migrate to Canada and have flourished in both urban and suburban environs where there is abundant short grass to eat, plenty of water, and few predators. Averaging a pound of droppings per bird each day, increased numbers of such geese frequent our public parks and beaches, as well as golf courses, farm fields, and backyards, and are often viewed as a nuisance. Canada geese can also interfere with aircraft takeoffs and landings, as occurred in 2009 when US Airways flight 1549 was forced to land on the Hudson River in mid-town Manhattan.
While the solution to the overpopulation problem might seem obvious, it turns out that control of resident geese is subject to a number of regulatory requirements administered by the U.S. Fish and Wildlife Service, in addition to those imposed at the state and local level. Such federal authority is said to derive from the Migratory Bird Treaty Act , 16 U.S.C. §§ 703–712, adopted in 1918 to implement the provisions of a 1916 treaty with Great Britain signed on behalf of Canada (Convention Between United States and Great Britain for the Protection of Migratory Birds, Aug. 16, 1916, U.S.-U.K., 39 Stat. 1702). That treaty protects three categories of “migratory birds”. One category, entitled “Migratory Game Birds”, encompasses a subcategory identified as “Anatidae or waterfowl, including brant, wild ducks, geese, and swans”. Under the Act, the hunting, taking, or killing of such migratory birds, as well as their nests and eggs, is only allowed under regulations issued by the Secretary of the Interior. While the treaty references geese that are migratory game birds, the U.S. Fish and Wildlife Service regulations identify protected birds by their species, thereby encompassing each and every Canada goose, regardless of whether that bird actually migrates.
In recent years, many nonlethal measures have been implemented to address unwanted numbers of resident Canada geese. These have included relocating such geese or chasing them away (such as with border collies and even hovering balloons with an evil eye depicted on them) and efforts to make an area less accessible or attractive (such as fencing and netting, as well as more “exotic” approaches like the application of grape flavored Kool Aid). However, as the population of resident Canada geese – and complaints about their presence - continued to grow, the U.S. Fish and Wildlife Service issued a final rule in 2006 to expand the methods for controlling their numbers.
Those new measures include categorical orders allowing airports and farms, as well as governmental authorities dealing with a public health threat, to implement various control actions without obtaining permits if specified procedures are followed, including the submittal of reports. Those actions encompass hunting, taking, and killing of resident Canada geese, as well as removing their nests and preventing their eggs from hatching (typically by coating them with corn oil), generally during the time period when their migrating cousins are “out of the country”. In addition and after filing a registration, landowners, municipalities, and other governmental authorities may remove Canada goose nests and oil their eggs from March through June in accordance with similar requirements. Expanded hunting opportunities and methods are also provided for, along with a state-regulated, “managed take” hunting program during August.
Although such measures were intended to reduce the overall population of resident Canada geese by about one third over a ten year time period, their success in many areas of the country – including in my neighborhood - is not readily apparent (e.g. I, II, III, IV). Moreover, they can require the commitment of significant management resources over the long term. As a result, there have been calls for less fragmented, regulation-focused measures. For example, New Zealand has removed Canada geese from its list of protected species and allows them to be hunted and killed at any time of year without a license by “humane means” (which at present would not include poison). While such an approach may not work in this country, particularly in urban and suburban areas where hunting is unlikely to address unwanted concentrations of the geese and vocal constituencies oppose any significant culling of the resident geese population, “something’s gotta give”.
Perhaps the place to start is to carefully consider whether resident Canada geese fall within the purview of a treaty and implementing statute that provide for protection of birds that migrate from one country to another, particularly where the stated premise for doing so is the concern that the migratory birds are subject to potential extinction due to lack of adequate protection. In that regard, the pertinent part of the 1916 treaty refers to migratory birds “of great value as a source of food . . . [that are] in danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds.” The Act in turn declares it unlawful, unless permitted by regulation, to hunt, take, or kill migratory birds or their nests or eggs covered by the treaty, with the Secretary of Interior authorized to allow such activities to the extent compatible with that treaty, giving “due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds”.
By making such a distinction between resident and migrating Canada geese, it would then be possible to develop a scientifically based methodology for more effectively managing overpopulation of resident Canada geese, one that may not rely so heavily on the granting of hunting licenses or the removal of nests and egg oiling with all the bells and whistles now attached to such privileges. Moreover, distinctions could be made between control strategies utilized in urban and suburban areas and those best suited for use in rural or sparsely populated areas. And here’s hoping that this can be done expeditiously, before more of our public water supplies are threatened, and our parks and beaches are despoiled.
Posted on July 11, 2013
The year 2013 marks the tenth anniversary of the establishment of a global network of legal educators dedicated to improving the teaching of environmental law and promoting its conceptual development throughout the world. The IUCN Academy of Environmental Law (“the Academy”) was created in 2003 by a small group environmental law professors from several countries, with the endorsement of the International Union for Conservation of Nature. Today the Academy has 168 institutional members from 53 countries in all corners of the globe. Pace Professor Nicholas Robinson, a fellow member of the American College of Environmental Lawyers, was the moving force behind the founding of the Academy. I am most grateful to him for recruiting me to be one of its founding members, and I have been delighted to participate in the Academy’s rapid growth.
Each year the IUCN Academy holds a Colloquium in a different part of the world at which the top academic experts in environmental law from all over the world gather to examine developments in the field. From June 24-28, 2013, the 11th Colloquium of the Academy was held at the University of Waikato in Hamilton, New Zealand. Despite the remote location, more than 200 environmental experts from 30 countries participated in this event in person. A particular highlight of the colloquium was a plenary session on access to justice that featured presentations from some of the world’s top judges.
The annual distinguished scholar lecture at this year’s colloquium was presented by Mas Achmad Santosa, Deputy Minister and Deputy Head of the President’s Delivery Unit for Development Monitoring & Oversight of the Republic of Indonesia. He discussed how Indonesian environmental officials are using satellite monitoring technology to locate the sources of massive fires in Sumatran palm oil plantations that have blanketed Singapore and Malaysia with record air pollution. Santosa was remarkably candid in discussing the challenges corruption poses to environmental enforcement in the developing world.
In addition to the distinguished scholar lecture, many other environmental experts make presentations at the colloquia. This year more than 160 presentations were made at the University of Waikato gathering. Abstracts and PowerPoint slides of the presentations can be viewed here. In recent years graduate students have been participating in the colloquia in greater numbers. Five of my top Maryland environmental law students presented papers at the University of Waikato gathering last month on topics as diverse as adaptation to climate change, the challenge of phasing out fossil fuel subsidies in different countries, legal strategies for holding multinational corporations accountable for environmental harm, and trans-national differences in risk analysis.
The colloquia also feature day-long workshops on environmental law research and the teaching of environmental law. The Academy has devoted considerable resources to improving the capacity of universities to teach environmental law. Week-long “Training the Teachers” courses have been developed by Academy faculty and are presented regularly in developing countries. The Basic Course, which addresses the needs of professors who are new to teaching environmental law, covers the scope and substance of environmental law and it explores teaching methodologies and approaches to student assessment. The Advanced Course seeks to prepare senior environmental law professors to deliver the Basic Course to junior colleagues. During summer 2013 these courses will be given to a group of Chinese professors in Chongqing, China.
To keep the global community updated on the latest developments in environmental law, the Academy publishes an online journal that is updated twice a year. This e-journal includes articles, book reviews, and reports on developments in environmental law in many different countries. The latest issue of this e-journal includes 30 different country reports, each authored by a local expert.
The IUCN Academy of Environmental Law has helped create a truly global network of academic experts specializing in environmental law. They will gather again next summer for the Academy’s 12th Colloquium at the Universitat of Rovira y Virgili in Tarragona, Spain from June 30-July 5, 2014.
Posted on March 18, 2013
Governmental and non-governmental actors in the conservation field increasingly face the issue of “exit” from initiatives that they have undertaken. This is good news, because the issue of exit typically arises when their interventions have achieved their conservation goals and they respond to the need to register wins and move scarce regulatory, technical, and financial resources to new problems. For example, upon recovery of a species listed as threatened or endangered under the Endangered Species Act, the Fish and Wildlife Service will consider delisting the species, thus removing the strict legal protections afforded by the Act. Similarly, non-governmental organizations that have intervened to ensure or provide funding or expert assistance for protection of species or ecosystems will want to move on when their goals have been met.
But success leaves a tough question: what happens when they withdraw? Will their successes persist, or will their withdrawal lead to the same failure that brought them to intervene in the first place? What factors affect the “stickiness” of successes achieved through governmental or philanthropic involvement? The challenge is to ensure that conservation initiatives generate durable institutional arrangements that continue to yield success after the initial movers have left or reduced their presence. And the challenge is pervasive. For example, it is estimated that 80% of listed species are “conservation-reliant,” requiring ongoing conservation effort after delisting because threats to the species’ existence cannot be wholly eliminated.
Conservation practitioners and scholars are beginning to tackle this issue in earnest and are coming together to discuss it in forums such as a recent conference at the University of Virginia on Making Conservation Sustainable: Institutional Design and the Natural Environment. The work of designing sustainable conservation arrangements is inherently interdisciplinary, involving lawyers, economists and finance experts, social psychologists, political scientists, and ecologists. It is further complicated by the wide variety of physical, biological, economic, political, and social settings in which conservation occurs. Experts agree that there is no one-size-fits-all solution, with well-tailored arrangements likely to include a mix of approaches. For example, some level of residual government involvement may be combined with collaborative community-based institutions, such as “friends” groups or landowner cooperatives. The long-term success of these institutions will require that they be compatible with the history, economy, and values of the affected communities.
Confronting the challenges of exit may lead to improved understanding of the potential of private and public-private undertakings to provide long-term solutions to conservation challenges. And that understanding could help usher in a new generation of environmental law and policy.
Posted on March 8, 2013
Is the Lesser Prairie Chicken (“LPC”) dancing its last dance? The little grouse, noted for stomping its feet and inflating the bright orange air sacs at the side of its neck, while emitting an eerie “booming” sound that echoes across the short grass prairie, has seen its numbers drop sharply in recent years. On November 30, 2012, the U.S. Fish and Wildlife Service ("USFWS") proposed listing the LPC as "threatened" under the Endangered Species Act of 1973 ("Act"). Read Donald Shandy's December 13 post on possible impacts of the listing on the energy industry. The LPC 's range, includes tens of thousands of acres in Oklahoma, Texas, New Mexico, Colorado and Kansas.
The Act prohibits all activities that would harm ("take") a species listed as endangered, unless the activities are otherwise exempted or permitted by the USFWS. For threatened species, Section 4(d) of the Act gives the USFWS authority to tailor the take prohibitions to the particular conservation needs of the species. Typically, that tailoring involves addressing habitat preservation. Habitat fragmentation, modification and degradation within the species' range are the major threats to the LPC. Historic agricultural and livestock grazing land use, and more recent land uses related to wind energy, transmission development, and oil and gas production present challenges to the LPC. Uncontrollable forces, such as the persistent drought in the area, also impact the LPC’s habitat.
For more than a decade impacted stakeholders have created and used voluntary tools to implement conservation actions that preserve the LPC’s range hoping to avoid a listing. A Candidate Conservation Agreement ("CCA") is a voluntary conservation agreement with the USFWS to identify and implement measures designed to address threats to the candidate species. Candidate Conservation Agreements with Assurances ("CCAAs") provide non-federal landowners with assurances that, as long as the landowners continue habitat conservation efforts, they will not be asked to undertake more than the agreed-upon conservation measures even if the candidate species is later listed or the CCAA is later modified. The USFWS recently approved a CCAA for Oklahoma which is available through the Oklahoma Department of Wildlife. The CCAA is free and voluntary, not dependent on the presence of LPCs on the enrolled property, and landowners may opt out at any time.
CCAs and CCAAs may help avoid the listing, but if the LPC is listed, then the conservation measures undertaken through these agreements are already tailored to the particular conservation needs of the species and can become Section 4(d) requirements. Either way, enrolling in voluntary programs and taking advantage of the opportunity to provide public comment and new ideas for preservation of the LPC may allow the LPC to keep on dancing.