The Future Is As We Now See It – Environmental Development Resiliency and Disaster Planning

Posted on June 17, 2020 by Kevin Murray

Successful real estate developers and development attorneys must effectively anticipate and manage risk. Management of visible and known risks seem simple; what separates the great from the good is the ability to anticipate, plan for, and develop contingencies for unknown risk scenarios. I have previously written about the importance of resilient development planning for extreme weather conditions and regional/national disasters. It is clear that extreme weather events affect the way we live and must be taken into consideration if we are to plan and develop our environmentally sustainable and resilient communities. Pandemic planning now finds itself a critical part of disaster planning and is likely to have a profound and lasting influence on environmental resiliency.

These environmental conditions affect physical, transactional, and legal aspects of real estate. Physical impacts appear as structural, corporeal, or earthly damages or modifications. Physical impacts present very real safety risks to site occupants such as failing structures and, exposure to life- threatening elements and hazardous substances. The recent pandemic has highlighted what was a subset of physical impacts, that is the health of the occupants as they live, work and occupy spaces.

Over the course of recent decades, mixed use developments became extremely popular with developers, municipal jurisdictions, and users. The notion of sustainable walkable communities has seen a proliferation of “self-contained communities” to support the growing desire for a more compact lifestyle where living, work and recreation coexist. The COVID Pandemic will result in the development of new regulation and a fresh look at development as a whole, but clearly with self-contained walkable communities and mixed use. Especially where users live on top of the commercial, retail, restaurant and recreational spaces they frequent.

Energy efficiency through sealed buildings had already begun to fade, air flow and fresh sources of filtered air will see increased interest and likely regulatory focus. The need to regulate how people congregate and the general flow through space may take on a regulatory aspect. Occupancy limits already exist for general safety, perhaps viral exposure may now factor into those calculations, and the imposition of formal requirements for table and general distancing in floor space. A demand for (and likely regulatory requirements), may extend into amenities that feature no touch surfaces, doors, toilets, sinks, retail checkout, retail goods selection, shelving, clothing racks, elevators, windows. Internet orders and drive up pickup may see a continued demand for convenience and safety. Ever-present hand sanitizer and disinfecting wipes will become required and as common place as a box of tissue.

The importance of all this however is to note that management of risk means mitigation. The traditional legal defenses like force majeure and impractability continue to erode in favor of reasonable foreseeability of extreme events. Successful developers and their attorneys will plan for these contingencies both to protect their uses and themselves in an ever changing regulatory environment. Proper engineering and design are necessary to protect the people that live and work in these communities and the companies and contractors that establish them. Resilient real estate development must adapt and engineer buildings and communities sustainable under foreseeable extreme conditions.

Earth Day 50: Have We Made any Real Progress?

Posted on April 22, 2020 by Christopher Davis

April 22, 2020 marks the 50th Anniversary of Earth Day. The coronavirus pandemic has consumed the world’s attention, and thus it seems likely that Earth Day and environmental issues will unfortunately get less attention than otherwise might have occurred.

The first Earth Day in 1970 changed my life. In particular, Garrett Hardin’s essay, The Tragedy of the Commons, and a little book called The Environmental Handbook, had a powerful influence on my thinking and career path.  I decided my calling was in solving environmental problems, stopping pollution and protecting nature. Over the last 50 years, this has taken me through a brief career in environmental engineering, a rewarding 30 years in environmental law, and most recently economic advocacy to leverage private sector solutions to climate change.

So where are we now, as we celebrate the 50th anniversary of Earth Day? There has certainly been progress in building environmental consciousness, institutionalizing environmental protection, developing environmental laws, building a global cadre of environmental professionals, reducing at least the most obvious forms of air and water pollution and cleaning up hazardous waste sites. In most places, at least in the developed world, the air and water are cleaner.

Yet on a macro scale, many indicators of environmental quality have declined significantly since 1970. Global greenhouse gas emissions continue to rise, the physical impacts of climate change are accelerating, and we are making little progress in implementing the Paris Agreement’s goal of limiting average global warming to well under 2 degrees Celsius. Deforestation continues to shrink the world’s tropical forests, biodiversity is being lost, species extinction is accelerating, wetlands are disappearing, and our oceans are becoming degraded. Groundwater and surface water resources are being depleted and nonpoint sources threaten water quality. Toxic pollutants are ubiquitous. By most accounts, the world’s ecosystems are in worse shape than they were in 1970. Our expanding human population has exceeded the carrying capacity of the world’s natural systems on which we all depend.

So, while we have won many battles in environmental protection and the implementation of environmental laws, we are losing the war. The imperatives of economic growth and resource consumption have overwhelmed the forces of environmental protection and conservation. Our generation has been responsible for many great technological and social advances. Yet as we mark the 50th Earth Day, our environmental legacy is troubling.

Perhaps the lessons of the coronavirus crisis—and the need for prevention, global collaboration, and commitment of resources necessary to anticipate and combat such crises-- will enable the kind of concerted action needed to successfully confront the systemic risks of climate change and global ecological degradation. We have the tools and knowledge to solve these problems; we lack only the moral imperative and collective political will to do so--and the sense of urgency that inspired me and so many others on that first Earth Day.

Nothing But Blue Skies?

Posted on March 31, 2020 by Robert Uram

As a result of the measures put in place to flatten the curve for the coronavirus pandemic, California is experiencing an unprecedented improvement in air quality. The combination of work from home, layoffs and reduced automobile travel by people sheltering in place has reduced vehicle miles traveled by as much as 70 percent.  Nearly everyone in California is now experiencing good air quality. Nearly everyone in California will wake up to bluer skies and cleaner air so long as the pandemic restrictions remain in place.

Californians have not seen this high level of air quality since before World War II. Even this brief improvement in air quality will help those who suffer from asthma, bronchitis, lung irritation and heart disease. As an added benefit, congestion has been reduced and there will likely be a significant decline in deaths and injuries from accidents. The reduced emissions are also a down payment on emission reductions desperately needed to address climate change.

In medicine, randomized studies are the gold standard for determining the efficacy of a new drug or device. In the air pollution arena, the California Air Resources Board can’t do randomized studies. It can’t order people not to drive so the Board can measure the effects of reduced vehicles miles traveled or substituting electric vehicles for fossil fuel vehicles. Instead, it does computer modeling to estimate these effects. But computer models are meaningless to most people. They can’t read a computer model and see how their lives will be better if they have bluer skies and healthier air. It’s too abstract. The crisis is not only giving the Board valuable information on the actual effects of less vehicle pollution, it is giving millions of people first hand experience of seeing and understanding how much better of their lives will be with less pollution clouding their sky.

What to do? How do we assure that Californians will see blue skies sooner rather than later once the crisis has abated? How do we assure that Californians will step up in the battle against climate change? And, how do we assure California will leap ahead and create jobs to ameliorate the devastating economic effects of the coronavirus pandemic.

California has roughly 24 million cars. California’s current goal is to have 1.5 million electric vehicles on the road by 2025. My hope is that the millions of Californians who are now experiencing better air quality will push the state to far exceed the current goal. California should place a moratorium on new fossil fuel powered vehicles as soon as possible and provide the regulatory climate and financial support conditions to build millions of electric vehicles here in California without delay. We all should enjoy blue skies and a better economy as soon as possible.

Plastic Planet

Posted on February 12, 2020 by Mary Ellen Ternes

Plastic is a remarkable material that has forever changed our societal expectations regarding the quality of our food, water, health care, safety and products that improve our lives every day. But all good things remain good within limits. For many years now there has been growing recognition that, because plastic does not degrade like natural materials, it is now present everywhere and our approach to plastic must change. As a result, we’ve seen China’s 2018 rejection of plastic shipments, the May 2019 Basel Amendments to list plastic waste, and while industry, DOE and NGOs have tried to get ahead of the issue, a recent global wave of single-use plastic bans.

We know that we need to turn off the tap of plastic waste leaking into the environment, both macro and micro plastic, through “reduce, reuse and recycle,” and then turn to mopping up the floor. First on the list for turning off the tap: single use plastics. They are ubiquitous in daily life, yet generally are not reused and likely, as a result, represent most of the ocean waste we see. Hence, the single-use plastic bans, though some sector stakeholders, like healthcare, may figure out how to capture post-single use plastics in sector-specific circular economies (managing material from cradle-to-cradle as in closed-loop recycling).

Other sources of environmental plastic are tougher to address, especially microplastics. Microplastics can be created when macroplastics fracture into smaller pieces, so all macroplastics potentially have a future as microplastic. However, the majority of microplastic appears to come from ubiquitous consumer products, such as shreds from tire wear, microfibers from polyester, rayon and other fabrics, and particles from latex and other coatings. The only way to reduce microplastics from these sources may be to reduce plastic in the source itself.

Moving on to recycling, it is evident that, even after collection, cleaning and sorting, recycling is a challenge. Single types of plastic are themselves heterogenous. For example, polyethylene terephthalate (PET) used for a soda bottle is quite different than the PET used for a take-out container. And then there are the additives. Post-use plastic’s variability would render it “inherently waste-like” pursuant to EPA’s “legitimate recycling” factors in Sylvia Lowrance’s 1989 RCRA guidance. Like most inherently waste-like material, post-use plastic currently lacks sufficient value to reliably support management as a product sufficient to keep it out of the environment. Turning off the tap will therefore necessitate different approaches for manufacturing and use, including potential reformulation of current products within defined circular economies to both mitigate sources, increase homogeneity and boost the value of post-use plastic to support financially viable recycling.

Turning to mopping up our floor, our environmental mitigation and remediation tools in the United States are generally triggered by acute or chronic chemical toxicity; plastic is generally inert and not recognized as posing such a threat. Potential imperfect approaches to addressing plastic pollution now, as simple categories of solid material, include: PM2.5 under the Clean Air Act (CAA); turbidity under the Safe Drinking Water Act (SDWA); total suspended solids or other pollutants under the Clean Water Act (CWA); solid waste under Solid Waste Disposal Act (SWDA) (though litter is generally left to municipalities); and as a source of hazardous substances, if not a hazardous substance itself, under the Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA). The Toxic Substances Control Act (TSCA) and the European Union’s Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) generally exempt plastics due to their high molecular weight and inert nature.

New policy and legal authority may be helpful, but we still have work to do in hazard assessment. Although generally chemically inert, plastics may still pose physical risk. Evaluating physical toxicity sufficient to define a reference dose, or exposure assessments similar to asbestos, may allow application of traditional risk-based approaches as we would other environmental pollutants. Progress is being made in this direction. In February, the National Academy of Sciences gathered international experts to discuss microplastics, potential effects on human health, options for mitigation, and ways to leverage new approaches to inform public health and policy decisions. As we learned, plastics break down into unique shapes, based on their molecular structure and use, which may pose different hazards based on their shape and size. Further research will allow development of approaches that can be used to develop action thresholds and reassure the public regarding acceptable concentrations. Defining the possible scope of potential harm, including when plastic may eventually break down completely and become “mineralized,” will assist in applying existing authority as well as developing new authority.

In addition to defining risk, there have been increasing commitments toward better defined circular plastic supply chains and technological innovation in plastic recycling (including electrifying plastic into instant graphene, which raises its own issues), as well as project funding and other federal and state legislative responses to the issue of plastic waste including public education. The push and pull of progress continues on all fronts, with consumer activism expediting the timeline.

Get Off of My Cloud – Online Storage is Not as Environmentally Sustainable as I Thought

Posted on February 5, 2020 by Jonathan Ettinger

I read an article last week in Fortune magazine (free registration required) about the large amount of energy actually consumed by cloud storage and thought that must only apply if you are actively uploading, changing, or downloading documents and pictures.  But I was wrong.  With a little digging, I was able to determine that all of those family photos and videos of your cats (not to mention huge folders of environmental analyses) automatically uploaded to iCloud, Google Drive, Box.com, DropBox, and Amazon actually consume lots of electricity even when they are just sitting idle.  Apparently the servers, which are energy hogs because they require lots of cooling, are actively managed on a regular basis to prevent loss or degradation of data, regardless of whether we are accessing the information or not.

According to one source, uploading data and storing it in the cloud consumes 3-7 kWh per gigabyte, roughly a million times more than storing it on your hard drive.  So storing 100 gigabytes of data in the cloud for one year (maybe a few thousand photos or a few hours of video) would result in the emission of roughly 0.2 tons of CO2

I am not suggesting we all stop using the cloud for storage.  After all, it is convenient, largely safe, and probably more environmentally sustainable than paper file storage.  It’s just that it isn’t carbon neutral.  Everything has trade-offs.  For me, I will keep uploading videos of my dogs playing (turn on the sound) – primarily because I am not sure how to stop it – and sending links to classic rock songs.

Jersey Girl ‘Cause down the shore everything’s all right, You and your baby on a Saturday night….

Posted on December 23, 2019 by Virginia C. Robbins

These lyrics from the Jersey Girl tune on Bruce Springsteen’s 1984 single echo the summers of his youth spent at the New Jersey shore.  I was reminded of Springsteen while reading the book “The Geography of Risk, Epic Storms, Rising Seas, and the Cost of America’s Coasts” written by the Pulitzer Prize-winning journalist, Gilbert M. Gaul, that was published earlier this year.  Gaul’s book makes clear that today everything is definitely not all right at the shore.

Gaul’s well-researched and engaging book presents, among others, the cautionary tale of development and post-storm restoration on Long Beach Island, a barrier island located midway along the 141-mile-long New Jersey coast. Gaul introduces us to an industrious New Jersey character, Morris Shapiro, a Lithuanian immigrant who arrived in the U.S. in 1899. In 1926 Shapiro bought 53 acres on Long Beach Island between the ocean and the bay. Over time, Shapiro, his sons, and others built thousands of small summer homes on Long Beach Island and along the bay coast behind the barrier island. These modest homes were not built for the wealthy, but for teachers, postal employees, and auto assembly workers in a nearby Ford plant. If a storm knocked one of the tiny houses down, it would be replaced with another small cottage.

By 1962 there were 5,361 homes on Long Beach Island. The tax base from this development allowed the local communities to flourish. On March 6, 1962, a mega-storm known as the Ash Wednesday Nor’easter obliterated much of the island. One thousand homes were severely impaired and 600 were destroyed. The storm caused $2 billion in damage in today’s dollars. In the immediate aftermath of the storm, rather than giving serious consideration to whether reconstruction in such a vulnerable location would be prudent and sustainable, town leaders wanted to know how quickly the homes could be rebuilt in time for Memorial Day weekend.

At the time, New Jersey’s Governor Hughes tried to slow down the redevelopment by proposing a 6-month moratorium on new building while a plan for protecting the coast was prepared. The U.S. Army Corps of Engineers agreed with the governor and suggested a 50-foot wide buffer along the barrier island to protect its sand dunes. But the beach-town mayors and other politicians would have none of this. They were focused on the economic disaster that would occur if the shore were not up and operating by the summer season.

Gaul says his book, in part, is a meditation on the question of risk: How much should be private; how much public? He states that the cost of storm damage that was once borne by beach towns and homeowners is now largely paid for by federal taxpayers. In the 1950s, the federal government paid for 5 percent of the cost of rebuilding after hurricanes. Today it covers 70 percent, or in some cases 100 percent. Federal government subsidies created a moral hazard by encouraging development and reconstruction in fragile coastal ecosystems not only in New Jersey, but also in North and South Carolina, Florida, Louisiana, Alabama and Texas. Gaul’s narrative includes insights on the political and business leaders in these states whose economic and political interests encourage reconstruction after storm events. In contrast, Gaul speaks with Duke’s Emeritus Professor of coastal geology, Orrin Pilkey, who describes the relentless development along our shores as “madness and hubris of unbelievable proportions.”

The author describes the hurricanes that have recently devastated the U.S. coast and how U.S. taxpayers living far from the coastline pay for federal programs that grant disaster relief, issue flood insurance and pay claims, and recreate beaches. Gaul explains that by law federal flood insurance premiums are not based on an assessment of the risks associated with the location of a particular insured property, but rather on national blended averages that overstate the risk for some inland homes and understate it for coastal homes. This makes little sense given that, since 2000, the federal program has paid more than $45 billion in claims for coastal floods, and many of these for second homes, but only $5 billion for all other types of floods. The federal flood insurance program is underfunded and owes the U.S. Treasury about $24 billion.

Gaul calls the failure to slow unrestricted coastal building one of the most costly and damaging planning failures in our history with about $3 trillion worth of property now at risk. To create resiliency to protect this property, there are funding demands being made now for extraordinarily expensive infrastructure projects: $20 billion to protect New York Harbor and lower Manhattan; and $61 billion for the coast of Texas, including Galveston and the Houston Ship Channel. But can we ever build enough surge gates, barriers and levees to protect our cities and industries in coastal areas or will the water win in the end? This book suggests that we have no choice but to attempt to protect the heavily developed and valuable properties in coastal areas. At the same time, we should consider a more equitable way of charging for the resiliency projects, rather than simply passing all the costs on to taxpayers.

What impact will this book have? It should prompt serious public debate and action at the local, state and federal levels to restore natural resiliency along our coasts, but I doubt it will. The history of government funding of reconstruction in fragile coastal ecosystems over the past 60 years leads me to believe that the forces profiting from the current policy are far stronger than wrecking-ball rain and wind. To avoid economic disaster, I believe coastal communities will continue their infrastructure resiliency efforts using local, state and federal funds (raising roads, elevating homes, constructing better bridges). That might be acceptable if we devise an equitable way of allocating the costs of these projects in large measure to those who benefit most from them. But sadly, this approach ignores any land ethic, as in the words of Aldo Leopold from his A Sand County Almanac: The land-relation is still strictly economic, entailing privileges but not obligations.

There are communities that appear to be reaching a sustainability breaking point because of rising sea levels. One example is the barrier island of Ocracoke, NC, at three feet above sea level. Hit hard by Hurricane Dorian, some residents retreated after being traumatized by rising flood waters. In a November 9, 2019 article about Dorian’s impact to Ocracoke, The Washington Post reported that local and state officials are committed to rebuilding the island even though they recognize that long-term recovery does not appear sustainable. Orrin Pilkey is right – madness and hubris.

No Right Way to Do the Wrong Thing

Posted on December 3, 2019 by Krista McIntyre

“If we lose all wild species we’re gonna lose ourselves,” Patagonia CEO, Yvon Chouinard, says at the close of the movie Artifishal: The Fight to Save Wild Salmon, produced by Patagonia Films. The film grabbed my attention for three reasons. First, Patagonia makes movies? Second, I live in Idaho and I eat a lot of salmon. And third, the film made me very mad.

Artifishal explores the extinction threat to wild salmon posed by fish hatcheries and fish farms. The unintended consequences to ecosystems of mixing fish hatchery populations with wild species populations extend far beyond the fish. Killer whales are threatened by declining wild salmon population and human communities are impacted by scarcity. It’s all connected and it’s all a big mess.

“The road to extinction is paved with good intentions,” reads the trailer for Artifishal. The good intentions to farm and restock hatchery fish among wild populations represent a twentieth century solution for a twenty-first century reality. This is the part that makes me mad. Although the data reveals that hatchery fish are devastating to wild populations and the data reveals that if left alone wild populations recover on their own, humans can’t get out of the way.

On the contrary, Artifishal reveals that we trust the controlled, engineered solutions conceived in modern times by humans more than we trust the repeated, demonstrated success of millions of years of natural evolution. Artifishal makes the case persuasively for scrapping taxpayer supported hatchery projects in favor of reestablishing natural conditions conducive to wild evolution. Chouinard effectively punctuates this theme of the film: “There’s no right way to do the wrong thing.”

Artifishal exposes deeper conflicts facing humans since the very beginning. Nature diversifies, humans simplify. Nature nourishes, humans consume. Nature evolves, humans engineer. Wild salmon populations cannot keep up with human population demands. And so far our solution to the problem we created are only creating new threats. So, what can we do to help?

Buy more Patagonia gear. Support the projects and organizations Patagonia supports. Years ago, the privately held company committed to support grassroots environmental organizations and the planet as the company grows. The company distributes one percent of annual sales to local organizations, it’s called the “earth tax.” Chouinard’s environmental values are woven into the company’s DNA. Artifishal is not a movie made to sell product, it was made to expand our thinking. Check it out on YouTube, iTunes, and Amazon Prime.

Over/Under—Great Environmental Fiction/Nonfiction

Posted on July 10, 2019 by Dick Stoll

I just finished reading two books that I would highly recommend to anyone concerned about the environment and global climate:

—  The Overstory, a novel by Richard Powers.  It won the 2018 Pulitzer Prize for fiction.

—  Underland, a 2019 non-fiction “deep time journey” by Robert Macfarlane.  

Each book is exceedingly sweeping in scope and chock full of scientific information and details that even I (a political science and English major) could essentially understand and find captivating.   An overriding theme of each book is that humans aren’t doing much good for this planet.  

Each book may fairly be called a magnum opus, and I can’t even begin to describe their full sweep in a blog like this.   So I urge you to do a little googling for reviews.   I am linking a good review of each here:

https://www.theatlantic.com/magazine/archive/2018/06/richard-powers-the-overstory/559106/

https://www.npr.org/2019/06/03/729156788/underland-connects-us-to-dazzling-worlds-beneath-our-feet

The Overstory is mainly about trees and people — how trees interact with each other, how people interact with each other, and how people interact with trees.   Lots of bad things get done by some people, some good things get done by some people, and lots of good things get done by trees.   

After reading the book, I am paying a heck of a lot more attention to trees than I ever did before.  In fact, my current iPhone wallpaper is a close-up of a beautiful redwood I recently photographed in northern California.  

Underland primarily focuses on what goes on under the earth’s surface — today, for millions of years before today, and projectively for eons to come. The author relates how humans have used the “underland” over history in various positive and negative ways for all kinds of storage, disposal, and extraction.  He describes intriguing and dangerous underground “journeys” of his own in several places around the world.  His last journey is to a repository being readied for nuclear waste way under Finland.  

Each book is laden with concerns about the future for the global environment and climate.   The Overstory hits hard on deforestation, Underland hits equally hard on melting ice.

I am retired now and have more time to read books like these.   But I encourage those of you still practicing to find the time.

“Happy [50th] Earth Day—Something to Crow About”

Posted on May 23, 2019 by Jeff Civins

In April of next year, the world will be celebrating Earth Day’s 50th anniversary. According to the ultimate source—Wikipedia—Earth Day is now celebrated in more than 193 countries. Among those celebrations is one held annually in Dallas, which this year drew a record crowd of 175,000 visitors. This particular celebration, formerly known as Earth Day Texas and rebranded as EarthX, was adopted by environmentalist Trammell S. Crow in 2011 and turned into the world’s “largest annual environmental exposition and programming initiative.” 

In describing its founder, EarthX’s website notes “[w]ith a focus on inspiring environmental leadership across sectors and party lines, Trammell has succeeded in bringing together people and organizations from all walks of life to explore and collaborate on solutions for some of today’s most pressing environmental [concerns].” For example, at one of EarthX’s events this year, Susan Eisenhower moderated a discussion on climate change by Senators Lindsey Graham (R. SC) and Sheldon Whitehouse (D. RI), and Secretary of Energy Rick Perry spoke about how innovation is revolutionizing the country’s energy production and consumption. Another of this year’s EarthX events was a Law and Policy Symposium, which, consistent with EarthX’s theme of water, was entitled “Water, Water Everywhere…” The Symposium brought together prominent thought leaders, including ACOEL fellows, representing diverse perspectives to discuss legal and policy implications of a range of pertinent topics.

The Symposium included discussions of: water issues facing Texas (“Don’t mess with Texas”); federal water quality issues (“A River Runs Through It”); coastal issues (“Surf’s Up”); water issues facing cities (“Going with the Flow”); and the water energy interface (Thirst for Power”). A luncheon presentation (“Making Waves”) included the showing of an excerpt from the Emmy-award winning  documentary—“The Sonic Sea”--on the threat oceanic man-made noise poses to marine life, presented by Stephen Honigman, a former general counsel of the U.S.  Navy who is one of the filmmakers.

The federal water quality panel was representative of the dialog the Symposium tried to foster and resulted in a lively discussion of “water of the U.S.” involving Matt Leopold, EPA’s General Counsel, and representatives from the National Wildlife Federation, the American Farm Bureau, the National Association of Clean Water Agencies, and a moderator and a panelist from private practice. Other prominent speakers at the Symposium included Senator Sheldon Whitehouse, on the topic of water energy interface, former DOJ official John Cruden, on water issues facing cities, and Texas Attorney General Ken Paxton, on cooperative federalism (“Keeping Both Oars in the Water”).

Last year’s Symposium entitled “Back to the Future,” also included a diverse array of prominent environmental thought leaders, and focused on the future of: environmental regulation; sustainable and ethical corporate decision-making; disaster response; and domestic energy production. Reflective of the diversity of speakers, the energy session included representatives from the Edison Electric Institute, the American Council on Renewable Energy, the Citizen’s Climate Lobby, and the Climate Leadership Council, as well as a private practitioner.

The Symposium the year before dealt with fundamental environmental issues that included: integrating science into regulatory decision-making; reconciling energy and economic development with protection of the public health and environment; facilitating resolution of environmental disputes associated development; and integrating sustainability into corporate decision-making.

Next year’s Law and Policy Symposium will focus on environmental developments over the past 50 years since the first Earth Day and on where we are, or should be, headed. The Symposium organizers hope that next year’s program will result in a dialog among diverse perspectives that results in the identification of points on which there might be consensus and of a range of paths forward to realize the objective of EarthX--and its patron and founder, Trammell S. Crow--“to inspire people and organizations to take action towards a more sustainable future worldwide.”

…To the Oceans White with (Styro)foam

Posted on May 16, 2019 by David Van Slyke

On April 30, 2019, Maine Governor Janet Mills signed into law An Act to Prohibit the Use of Certain Disposable Food Service Containers, making Maine the first state in the nation to ban polystyrene foam (more commonly called Styrofoam) use in disposable food service containers coffee cups, takeout containers, packaged meat trays, egg cartons and the like.  The prohibition, which takes effect on January 1, 2021, bans restaurants, convenience stores, farmer’s markets, nursing homes, food pantries and other businesses from using the containers.

While Styrofoam containers have many advantages over alternatives – they are comparatively easy to manufacture, light (cost-effective to ship), relatively durable, have good insulating qualities and (by some measures) are lower in production impacts – they are among the most common sources of litter in the United States, found “[f]rom the mountains to the prairies….”

Further, polystyrene foam is petroleum-based, floats, is prevalent in the marine environment, and photodegrades and physically breaks down into smaller particles that are ingested (to ill effect) by marine life.  Further, recent research suggests that chemicals associated with polystyrene foam debris transfer to marine life that attaches itself to the debris.

I, for one, applaud the Maine Legislature and Governor Mills, as well as the other states (Maryland, California and Hawaii) that have considered such a ban and the numerous municipalities across “this land that I love” that have already banned Styrofoam use.

However, there is still work to be done.  As a member of Red Sox Nation (and, yes, a devoted drinker of Dunkin Donuts® coffee), the next time I hear an awe-inspiring rendition of “God Bless America” at Fenway Park, I may have a tough time blocking the thought that it is actually trillions of bits of polystyrene that are making “…the oceans white with foam.”

What Happens When the Green New Deal Meets the Old Green Laws?

Posted on March 27, 2019 by JB Ruhl

Representative Alexandria Ocasio-Cortez and Senator Ed Markey made headlines when introducing the Green New Deal resolution to Congress. Within milliseconds, contesting waves of support and opposition flooded the news wires, social media, and blogs. Critics focused on the proposal’s perhaps overly hopeful (some say, delusional) absence of any accounting for the funding, political feasibility, and technological capacity needed to get to net zero greenhouse gas emissions by the Green New Deal’s target date of 2050 (some Green New Dealers advocate an even earlier date), especially under the other conditions they demand. After all, the Green New Deal movement is basically asking our nation to replace one national energy infrastructure with another, plus demanding that government also ensure social justice for present and future generations, provide millions of new jobs, install an awesomely sustainable economy, extend free health care, and the list goes on.

But let’s put all that aside. Let’s say we had a blueprint for the Green New Deal’s carbon goal and a whole lot of money to spend. The stark reality is that the Green New Deal is going to run smack dab into the wall of the Old Green Laws. I’m talking about the National Environmental Policy Act, the Endangered Species Act, Section 404 of the Clean Water Act, the National Historic Preservation Act, the Migratory Bird Treaty Act, the Clean Air Act, the…do I really need to keep going, because the list is really long.

What the Green New Deal movement simply does not seem to appreciate is that the nation’s existing energy infrastructure is a vast physical, social, and economic entity that has been defined in its geographic, technological, and economic dimensions largely by decades upon decades of lawsuits brought under those Old Green Laws by many of the interest groups now behind the Green New Deal. The infrastructure the New Green Deal envisions—particularly if it rules out hydropower and nuclear power—can’t just land where the existing fossil fuel energy infrastructure is located, as if we are just changing car tires. Wind power has to follow wind, and solar power has to follow the sun, and neither of those geographic footprints has much overlap with where the fossil fuel infrastructure is currently located. So, making the Green New Deal happen means putting vast new renewable energy production facilities on the landscape. And then, because our existing transmission grid is based on where fossil fuel generation occurs, which is generally not where solar and wind generation will occur, we’ll need to put new transmission lines on the landscape. Just looking at NEPA alone, it would take 25 years just to get the Environmental Impact Statements done and through the courts before the first shovel of dirt is moved!

To put it bluntly, this is going to be ugly. Environmental protection special interest groups already are attacking wind and solar energy projects around the nation, claiming they will kill too many bats, birds, and desert creatures. Yet, if you were to map out what would be needed to implement the Green New Deal, we’ll need to locate new wind and solar power generation infrastructure, and their transmission line infrastructure, on the landscape at a pace and scale unprecedented in our nation’s history. Believing that everyone will be behind that is naïve. Wherever this Green New Deal landscape transformation machine goes, it will face opposition by narrow-interest environmental groups, not-in-my-backyard landowners, states, local governments, and companies threatened by the new regime, and so on. To think otherwise is delusional. And their first weapon of choice is going to be the Old Green Laws. After all, look around and ask, what has for decades impeded and often stopped new fossil fuel infrastructure such as pipelines, processing facilities, and port facilities. It’s the Old Green Laws.

Looking into the Law 2050 future, the “green” interests that are promoting the New Green Deal sooner or later will have to come up with a convincing soundbite explanation for how they propose to comply with the Old Green Laws in a way and time frame that meets their 2050 deadline. Doing so without in some substantial ways relaxing the current Old Green Laws seems implausible, but relaxing any current regulations seems a nonstarter for Green New Deal politicians. In other words, the Green New Deal is between a rock and a hard place, and they can blame their predecessor “green” generations who designed and implemented the Old Green Laws that must be satisfied regardless of the climate virtues of the Green New Deal.

One can easily imagine that many industry and landowner special interest groups long pitted against the environmental protection special interest groups have grins on their faces, as the latter will seem to have been hoisted by their own petard. It is not hard to envision how the Green New Deal will splinter the environmental interest group universe—indeed, more than 600 groups recently signed a letter to Congress supporting the Green New Deal agenda, but a good number of leading national groups such as the Sierra Club and Audubon Society did not sign on.

There is perhaps a third path, however. To make its agenda complete, the Green New Deal could propose a new environmental law regime as well, one that does not tinker with the Old Green Laws and thus face the claim of “deregulation” or “backsliding.” The Green New Deal must acknowledge the environmental disruptions its infrastructure proposal will cause and design an environmental planning, assessment, permitting, and regulatory regime (perhaps even with--gasp!--market mechanisms like trading and taxes) built from scratch around concepts of resilience, adaptive management, and collaborative adaptive governance. This will mean dispensing with the Old Green Laws’ morass of comprehensive pre-decision studies and rounds of lawsuits. In short, the New Green Deal needs New Green Laws.

Delaware – The First State in Sustainability?

Posted on March 21, 2019 by Robert Whetzel

Long known as the corporate capital of the United States, Delaware is home to over 50% of publicly-traded U.S. companies, and approximately 1.3 million legally incorporated or formed entities representing companies large and small. Businesses choose to organize under Delaware law for many reasons, including its well-developed body of corporate and alternative entity law, flexible and enabling corporate and alternative entity statutes, and highly regarded business courts. Until recently, Delaware law was largely silent on issues of sustainability as they relate to corporate and entity governance. In an effort to support the global sustainability efforts of its entities, the State of Delaware recently enacted first of its kind legislation creating a path for Delaware entities to adopt and implement sustainability standards in a rigorous, systematic and transparent manner.

On October 1, 2018, the Delaware Certification of Adoption of Transparency and Sustainability Standards Act (the “Delaware Sustainability Act” or “DSA”) took effect. The Delaware Sustainability Act establishes a voluntary program for Delaware entities to adopt sustainability standards and to report on sustainability performance with the Delaware Secretary of State. Entities that satisfy the DSA’s requirements receive a certificate from the Delaware Secretary of State indicating compliance with the DSA.

Although many companies have adopted sustainability standards, there is no universal framework for identifying, evaluating or comparing the implementation of sustainability standards.  By and large, businesses are free to adopt standards of varying scope with no common approach to reporting or performance evaluation. As a result, there are widely varying degrees of transparency in the adoption and implementation of sustainability standards. Delaware has attempted to change that model (at least for Delaware entities) by adopting the DSA, which requires participating entities to report publicly on their sustainability standards and performance and establishes a centralized, public database of sustainability reports that those entities have generated.

A Delaware entity may elect (but is not required) to become a reporting entity under the DSA. To do so, its governing body must adopt resolutions setting forth its sustainability standards and assessment measures, and file a statement to that effect with the Delaware Secretary of State. The DSA defines “standards” as the “principles, guidelines or standards” that the entity adopts to assess and report the impacts of its activities on society and the environment; those standards must be based on or derived from third-party criteria. The DSA does not mandate the specific sustainability standards that an entity should choose to adopt. Instead the entity is free to adopt standards developed by a third-party organization, including both governmental and NGO sources.  Once standards are adopted, a reporting entity must file an annual report with the Delaware Secretary of State containing a summary of the standards and assessment measures, actions taken to meet the standards, and a description of any additional efforts that will be taken to improve performance.

Delaware has a long-standing tradition of leadership in matters of corporate governance, and has now developed a framework for its corporate citizens to adopt best practices in governance and sustainability.  The DSA is entirely optional and voluntary, and it remains to be seen whether Delaware will become the First State in Sustainability.

A LAWYER’S GUIDE TO ADDRESSING CLIMATE DISRUPTION

Posted on February 14, 2019 by John C. Dernbach

Co-authored by Michael B. Gerard

Recent scientific reports by the U.S. Global Change Research Program and the Intergovernmental Panel on Climate Change depict the present and future consequences of climate disruption in increasingly urgent terms.  At the same time, according to a new poll, record numbers of Americans believe that climate change is real, that it is human caused, and that it affects them personally. 

But there is good news.  It is possible for the U.S. to dramatically reduce greenhouse gas emissions.  We also have the legal tools to do the job—more legal tools, and a greater variety of tools, than we may have imagined. 

In 2014 and 2015, the Deep Decarbonization Pathways Project (DDPP)  published a technical report and a policy report on deep decarbonization in the United States—reducing U.S. greenhouse emissions by at least 80% by 2050.  The DDPP is a global effort to assess the technological and economic feasibility of deep decarbonization in 16 countries representing 74% of the world’s greenhouse gas emissions.

The U.S. reports conclude that “it is technically feasible” for this country to reduce its greenhouse gas emissions by 80% from 1990 levels by 2050.  They also conclude that the cost of this effort would only be one percent of U.S. gross domestic product, not including the many benefits that would come from doing so.   

Enormous changes would be required to achieve this level of reduction, the reports said.  The U.S. would more than double the efficiency with which energy is used.  Nearly all electricity would be carbon free or use carbon capture and sequestration.  Electricity production would also need to double because gasoline and diesel fuel for transportation, and oil and natural gas used for space heating and cooling and water heating, would be mostly replaced by electricity.  

These reports do not, however, discuss what legal tools would be necessary to achieve these outcomes.  In response, in late 2015, we began planning an edited volume to comprehensively analyze and explain the various laws that could be employed, building on the DDPP reports. The resulting book, Legal Pathways to Deep Decarbonization in the United States is being published by the Environmental Law Institute Press in March.  You can order a copy here.  In 35 chapters authored by 59 experts, adding up to 1,200 pages, the book identifies more than 1,000 federal, state, local, and private legal tools for deep decarbonization.   

To get the key messages of the book to the broadest possible audience, ELI has also published a Summary and Key Recommendations volume.  This book includes a thumbnail summary of each chapter, key recommendations by chapter, and a separate listing of recommendations organized by actor.  You can download this book here without charge.

Legal Pathways describes a dozen different types of legal tools.  As explained in greater detail here, these are not just the usual suspects (additional regulation, market-leveraging approaches, tradable permits or allowances), but also reduction or removal of legal barriers to clean energy and removal of incentives for fossil fuel use.  They also include information/persuasion, facilities and operations, infrastructure development, research and development, insurance, property rights, and social equity.  The wide range of types of legal tools provides great opportunity for building consensus.  One particularly important category, for example, is reduction or removal of legal barriers.

The book is thus a playbook for deep decarbonization.  In fact, various legal tools could be designed and combined to achieve quicker and deeper reductions than 80% by 2050, and even negative overall emissions.

This book is also a resource for lawyers because the laws it describes need to be proposed, drafted, and implemented on behalf of a wide variety of clients in many contexts.  The many types of tools also make clear that a variety of lawyers are important in this effort, including not only energy and environmental lawyers, but also finance, corporate, municipal, procurement, contracting, real estate, and other types of lawyers.

While both the scale and complexity of deep decarbonization are enormous, the book has a simple message: deep decarbonization is achievable in the United States using laws that exist or could be enacted. These legal tools can be employed with significant economic, social, environmental, and national security benefits.

Toward that end, we are launching a project to turn the recommendations into legal language—drafting federal and state statutes and regulations, model ordinances, guidance documents, transactional agreements, and the like.  We are well aware that a great many lawyers are already doing this kind of work, and that many more are feeling the need to respond to the challenges that climate disruption imposes.  We welcome lawyers from all backgrounds to join in our effort, and plan to work with ACOEL as well.  If you are interested, please contact us.

2018 STEPHEN E. HERRMANN ENVIRONMENTAL WRITING AWARD WINNER – EMILY HUSH

Posted on December 12, 2018 by JB Ruhl

Co-Author: Mary Ellen Ternes

For those Fellows who were not able to attend the Annual Meeting in Grand Teton National Park, this is to fill you in on the winner of the Herrmann Award this year, Emily Hush.  Emily is a recent graduate of Columbia University Law School and a student of our own Michael Gerrard (although we did not learn of the Gerard connection until after completion of the award selection process). The title of Emily’s winning article is Where No Man Has Gone Before:  The Future of Sustainable Development in the Comprehensive Economic and Trade Agreement and New Generation Free Trade Agreements, Columbia Journal of Environmental Law, Vol. 43:1 (link).

In the time Emily spent with us, she met many College Fellows and ably presented her winning article, which is an analysis of the recent trade agreement between Canada and the EU, the Comprehensive Economic and Trade Agreement (or CETA), as it pertains to sustainable development. As noted in the summary of the paper, in free trade agreements, a country’s power to protect the environment depends on the scope of its right to regulate, as interpreted by investment dispute resolution bodies. This right determines to what extent the State may regulate in the public interest without incurring the obligation of compensating investors for an indirect expropriation of their property. Some scholars have argued that arbitration panels and trade agreements define the sovereign right to regulate too narrowly, unduly favoring investor interests. In response, the EU has spearheaded the development of the so-called New Generation Free Trade Agreements. New Generation Agreements combine traditional free trade agreements with international investment agreements and add sustainable development as a guiding principle to create a new, all-inclusive type of bilateral agreement. These Agreements seek to recalibrate the power balance between investors and States by strengthening the right to regulate. CETA represents the culmination of the EU’s aspirations for New Generation Agreements thus far. Emily’s paper asks whether the right to regulate as granted by this progressive agreement will enable Canada and the EU to successfully defend regulation undertaken to further sustainable development against investor claims of indirect expropriation. She concludes that CETA provides a useful framework for expanding the reach of the principle of sustainable development and effectively shields the Parties’ right to regulate, without contradicting existing case law.

Emily earned her law degree from Columbia Law School in May 2018, where she was the winner of both the Harlan Fiske Stone Moot Court and the European Law Moot Court in Luxembourg. Prior to law school, Emily earned a Bachelor’s degree in French horn performance from McGill University. Emily is now an associate of Debevoise & Plimpton. She will be clerking for Judge Wendy Beetlestone in the Eastern District of Pennsylvania in 2021-2022, and for Judge Robert E. Bacharach in the 10th Circuit from 2022-2023. 

The Stephen E. Herrmann Environmental Writing Award is a prize presented to the author of a student article, note, case comment or essay published in a law journal during the current academic year, or scheduled for publication in the next academic year, that best presents a current topic in the field of environmental law.  Submissions are judged on the basis of originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law. The Herrmann Award includes a stipend of $3,500 to the author of the winning article, note, case comment or essay, and $500 to the submitting law journal. The winner of the Herrmann Award is invited to present his or her submission to the Fellows at the College at their Annual Meeting. Emily is the third winner in a row to attend.

The Rubber Begins to Hit the Road on Adaptation

Posted on November 6, 2018 by Seth Jaffe

I gave up some time ago on the idea that focusing on adaption was just a means of weaseling out of necessary measures to mitigate climate change.  As the extraordinary becomes commonplace, it’s evident that we’ve ignored the externalities of carbon longer than was prudent.

It’s thus great to see Boston’s Mayor Walsh release Resilient Boston Harbor.  Even for those who follow these issues for a living (and I have a personal stake, since my wife and I are about to move to Fort Point Channel, ground zero for climate change flooding impacts in Boston), what’s really amazing is the granularity of both the analysis and the recommendations.

If you want to understand just how granular the analysis must be in order to develop specific recommendations, you might take a look at this figure from the full Climate Ready South Boston report.  Don’t just skim the Executive Summary on this one.

I find this work both inspiring and discouraging.  There is so much to do.  Among other tasks, environmental lawyers have to figure out how to make these recommendations feasible in light of existing environmental regulations that would actually prevent implementation of some of the recommended adaptation measures.

I had thought of closing with a nice climate-inspired haiku.  Instead, I think I’ll leave you with this:

It is not your responsibility to finish the work of perfecting the world, but you are not free to desist from it either.

500-Year Flood, Last Straw, or Asteroid Strike? Metaphorically Testing the Resilience of Environmental Law.

Posted on August 28, 2018 by JB Ruhl

Regardless of your politics, it’s hard not to describe the environmental policies of Trump Administration as…very different. Indeed, that’s exactly what his supporters want and his opponents fear. But the question is how much different. Enough, I would say, to test the resilience of environmental law.

With origins in ecology, resilience theory has swept into the social sciences as a way of thinking about how social systems withstand forces of change, especially extreme events like the so-called 500-year flood—the flood so big it is expected on average only once every five hundred years. It’s now common to read commentary and proposals on how to build resilience of cities to natural disasters, resilience of corporations to consumer crises, and resilience of the financial system to economic shocks. Well, as I have suggested previously, legal systems are social systems, and they have either enough or not enough resilience to bounce back from extreme “pulse” disturbance events or from a long onslaught of less intense “press” events. If they don’t have enough then, just like an ecosystem experiencing desertification after prolonged drought, a legal system could experience a regime shift and look nothing like its former self on the other side.

One thing that’s entirely apparent now is that, after 35 years of arguing and name calling in environmental law between the “left” and the “right,” we’ve been playing between the 40-yard lines after all. We see that because there’s a new team in town, and they are trying to set up their offense on the 10-yard line, first-and-goal. But I shift metaphors. Back to resilience, and floods, though I may come back to football.

Had any other Republican who threw his or her hat into the ring back in early 2016 been the nominee instead of Donald Trump and won the White House, we’d all have expected “disturbance” events of some magnitude—some pushback on the Clean Power Plan, some softening on climate change policy, some pull-back on the WOTUS rule. Democrats would have waved arms and sounded alarms. But really, in retrospect it would have been just a bunch of 25-year floods and a rare 100-year flood here and there. Then a Democrat would eventually take over and we’d have more of the same in the opposite direction, with role reversal. Hey, that’s politics (or it was politics). The bottom line is that 45 years after the environmental law statutory big-bang of the early 1970s, all these disturbance events added up have never swamped environmental law as we have known it—the laws and agencies are still there, plugging away, albeit it with different playbooks (football again) from administration to administration. In short, environmental law had resilience to spare!

The Trump Administration, at the very least, is a 500-year flood—it’s intended to be that or more. 500 years is a long time, but 500-year floods happen. The smug complacency of the previous paragraph missed one little problem: when a 500-year “pulse” event flood comes along after decades of continuous lesser-magnitude “press” disturbances, it’s possible the resilience reserve just isn’t enough to stave off the assault and prevent a regime shift. Maybe it can, but maybe this 500-year flood is the last straw. And then there’s also the possibility that the Trump Administration is more like an asteroid strike—you know, like the one that wiped out the dinosaurs. Even when the resilience reserve after a long press assault is at three-quarters, that’s a challenge. As in, no way.

So which is it: a 500-year flood environmental law can withstand, the last straw, or an asteroid strike? Everyone has his or her own positions, and I’m not (in this post) trying to tell anyone what they should hope for. Rather, stepping back from the political fray, what’s the evidence? Here’s my take.

First, I don’t think this is an asteroid strike. Those happen fast, and are unequivocal impact events. For environmental law, that would mean something like we wake up one day and there is no Clean Water Act, Clean Air Act, Endangered Species Act, and so on—they went the way of the dinosaurs. There is no evidence that is in the cards, even if it were in the plans. The fact is that our governance system, notwithstanding the critiques, makes it immensely difficult for any new administration, regardless of its agenda and mandate, to accomplish an asteroid strike on environmental or any other field of law. Power is too dispersed, procedures are enforced, courts step in, the public pushes back, election cycles are short, politics can turn to molasses, and so on. Notwithstanding all the hype from both sides, the Trump Administration so far has not proven to be that big of an event. Arguably, though, asteroid strikes have happened in our not too distant past—the Great Depression and WWII were impact events that threw our entire governance system into a regime shift, leading to the dawn of the regulatory state. Were an external global event of that magnitude and threat to occur, its combined effect with the Trump Administration’s agenda could be a very hard blow indeed.

Rather, the evidence thus far is that the Trump Administration, for environmental law and many other fields, looks like a 500-year flood.  It has pushed really hard on all those resilience mechanisms just mentioned, but they are pushing really hard back. And I don’t see it getting near the last straw. I follow the Endangered Species Act very closely from a centrist position—I am no starry-eyed fan or red-eyed critic—and I from what I observe there is zero chance of it going away. But there is a 100 percent chance it will experience broad and deep regulatory and policy reform—it’s well underway already—and perhaps some legislative tinkering. This almost surely will be an outlier disturbance event, like a 500-year flood, and may deplete the resilience reserve more than usual, but it will not wipe it out.  As for other corners of environmental law, I leave that to their respective experts, but my sense is that it is largely the same story.

Again, I’ve tried not to imprint my own politics onto this analysis. Like an ecologist studying an ecosystem under disturbance, I’m simply asking, how big a disturbance to environmental law are the policies of the Trump Administration? We all agree they are big and intended to be so. But ten years from now, will we be playing between the ten, twenty, thirty, or forty yard lines on the football field, or will we be playing soccer on the pitch? I guess only time will tell, but I’m sticking with my seats on the 50-yard line for now.

ENVIRONMENTAL RIGHTS IN PENNSYLVANIA

Posted on July 13, 2018 by John Dernbach

One year ago—June 20, 2017—the Pennsylvania Supreme Court issued a landmark decision on constitutional environmental rights.  The case, Pennsylvania Environmental Defense Foundation v. Commonwealth (PEDF), has implications that will take decades to sort out, as subsequent litigation is making clear.  And it may contribute to re-imagining of environmental law.

Almost a half century earlier—May 18, 1971—Pennsylvania voters adopted by a four-to-one margin an amendment to Article I of the state constitution, which is the state’s Declaration of Rights.  Section 27 provides:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

Because Pennsylvania courts were concerned about its impact on development, and because the first two cases brought under Section 27 had weak facts, Pennsylvania’s Commonwealth Court in 1973 (Payne v. Kassab) articulated a three-part balancing test as a substitute for the text.  The test was easy to apply and, as a 2015 article shows, those seeking to vindicate environmental rights almost never won.  More fundamentally, the test had nothing to do with environmental rights, much less the text of Section 27. The Payne decision evinced the kind of judicial activism—or more precisely, judicial rewriting of the constitution—that the late Justice Antonin Scalia criticized.  But for more than 40 years, it was the law of Pennsylvania.

In PEDF, the petitioner challenged the state’s expenditure of hundreds of million dollars of funds from gas leasing on state forest land.  (Disclosure: I filed an amicus curiae brief in this case.)  PEDF argued that both state forests and the gas under them constituted “public natural resources” under Section 27, and that royalties and other money received from leasing must be spent to “conserve and maintain” those resources, and not used to balance the state’s budget.  A majority of the Supreme Court agreed.  In so doing, the Court held that the text of Section 27 is of primary importance in interpreting the Amendment, specifically setting aside the Payne v. Kassab balancing test.

The revitalization of Section 27 has led to a spate of environmental rights claims in litigation, much of it involving permits for shale gas drilling facilities and gas pipelines.  The Supreme Court appears to be charting a future course on Section 27 with caution.  In Gorsline v. Board of Supervisors of Fairfield Township (June 1, 2018), which was widely anticipated to further develop the law of Section 27, the Court instead decided the case based on the meaning of the township zoning ordinance.

A major outstanding question is what Section 27 means for day-to-day environmental permitting.  The large number of environmental statutes and regulations adopted and strengthened after 1971 provide much of the protection that Section 27 now also provides.  Here, Section 27 is most likely to make a difference when a litigant can demonstrate that the applicable regulatory program contains a significant gap (e.g., cumulative effects).

A broader question is what constitutional environmental rights can mean for environmental regulation as we know it, in which decisions are influenced by, and often based on, consideration of costs and benefits.  In Friends of Lackawanna v. Commonwealth, the Environmental Hearing Board (EHB), which hears appeals from decisions by the Pennsylvania Department of Environmental Protection, said in late 2017 that the people living near a landfill who are adversely affected by odors are not simply part of the costs and benefits calculus in municipal waste management; they have constitutional rights.   If DEP did not do a better job of protecting them, the EHB warned, it would.  And under the radar, I am told, the revitalization of Section 27 has caused some bad project proposals to quietly go away.

Widener University Commonwealth Law School has published a listing of available Section 27 resources with links. A lot is happening, and there is more to come.

The Power of Pension Funds: How to Win Friends and Influence Others

Posted on March 6, 2018 by Gail Port

While both tout their desire to reduce the State’s carbon footprint and address climate change,  New York Governor Andrew Cuomo and State Comptroller Thomas DiNapoli have  their differences when it comes to  New York State pension fund’s fossil fuel investments.   

The New York state pension fund (known as the New York State Common Retirement Fund) is the third largest pension fund in the United States, with an audited value as of March 2017 of $192.4 billion in assets.  The pension fund holds and invests assets of over one million state and local government employees, retirees, and beneficiaries. At issue are holdings of at least 50 oil and gas companies with significant carbon-intensive operations.  Comptroller DiNapoli is the sole trustee of the pension fund, and is advised by several independent advisory committees.

DiNapoli is under pressure from Cuomo, State Senator Liz Krueger, and certain environmental groups to divest the pension fund from fossil-fuel investments.  DiNapoli has pushed back on immediate divestment on several grounds, most importantly, that as a fiduciary his first priority is to earn a good return for the approximately 1.1 million New Yorkers who rely on the state pension system for their retirement security.  While recognizing that the effects of climate change represent a systemic risk to the returns of the pension fund, the economy and the welfare of the people of the State, DiNapoli believes that he can be more effective in managing those systemic climate change risks by the use of the significant power of the pension fund to influence the policies of oil and gas companies.  That includes shareholder activism (i.e., filing shareholder resolutions), voting proxies, investor collaborations and corporate engagement programs.

On the latter point, Comptroller DiNapoli has cited ExxonMobil’s agreement to implement a shareholder proposal, co-filed by the state pension fund and the Church of England, which caused ExxonMobil to agree to assess how it might be impacted by the Paris Agreement goals to reduce global warming. Duke Energy has responded to a similar shareholder resolution seeking to require it to analyze how the Paris Agreement will impact its business and plans to produce a climate risk assessment in the first quarter of 2018. DiNapoli asserts that because these oil and gas companies will not go out of business as a consequence of divestment of the pension fund’s holdings, he can be more effective by having a seat at the table as a shareholder to influence companies’ actions and disclosures.  Critics of this view, including State Senator Krueger, believe the shareholder influence is limited and that divestment sends a stronger message than does the Comptroller’s more nuanced and varied approach. 

Another investment strategy recently employed by the Comptroller was to double the pension fund’s investment-- to $4 billion-- in a low-emissions index designed by Goldman Sachs Asset Management.  That index is more geared toward stocks, such as Apple Inc. and Microsoft Corp., than higher carbon-emitters, such as ExxonMobil and Chevron.  DiNapoli has said that since 2016 the Goldman Sachs designed index has delivered returns comparable to the Russell 1000, thereby yielding strong investment returns with the benefit of significantly reducing the carbon footprint associated with that investment.

Although DiNapoli has expressed reservations about allowing pension fund investments to be influenced by political forces, he recently agreed to join forces with Governor Cuomo and others on decarbonization strategies for the pension fund investment portfolio.  While there are no immediate plans to divest the energy holdings of the pension fund, DiNapoli and Cuomo have agreed to create an independent advisory committee to develop a low carbon future roadmap for the fund.  In his January 2018 State of the State Address, Cuomo called for an end to fossil fuel related activities in the pension fund and stated his intent to work with DiNapoli so New York can “put our money where our mouth is.” Cuomo then asked for a round of applause for Comptroller DiNapoli and his efforts.

Regardless of whether DiNapoli takes immediate moves to decarbonize the portfolio, the movement towards divestment is gaining momentum. California ended its pension fund investments in coal companies in 2015 and is facing pressure to decarbonize its portfolio. On January 10, New York City Mayor Bill de Blasio and Comptroller Scott Stringer announced that NYC plans to divest its five pension funds from fossil fuel investments, which will be the largest divestment of any municipality to date. Stringer stated, “[T]his a first-in-the-nation step to protect our future and our planet – for this generation and the next. Safeguarding the retirement of our city’s police officers, teachers, firefighters and city workers is our top priority, and we believe that their financial future is linked to the sustainability of the planet.” De Blasio and Stringer were praised by environmental activists after the announcement and by State Senator Kruger who continued her call for State Comptroller DiNapoli to follow suit with respect to the New York State pension fund investments.

Lots of good intentions, lots of ideas and a bunch of strange bedfellows--only time will tell if these investment (and divestment) initiatives will continue to gain traction and make a difference. And what about us-- shouldn’t we too be employing low-emissions/decarbonization investment strategies with our portfolios?

Troubled Waters – Blue Lakes Turning Green From Toxic Algal Blooms

Posted on February 6, 2018 by Virginia C. Robbins

Frank DeOrio knows a lot about protecting drinking water.  For more than 25 years, Frank was Director of Utilities for the City of Auburn located in the pristine Finger Lakes region of Upstate New York.  He was responsible for the water supply drawn from Owasco Lake and the protection of the lake’s watershed.  During Frank’s tenure, the City won awards for the best water in the state and the U.S. 

Frank and I recently discussed his concerns about the potential impacts to drinking water from summer algal blooms in our region’s lakes.   Algal blooms can occur when spring rains flush nutrients, for example, phosphorous, into waterbodies.  Summer temperatures raise water temperatures, creating optimum growth conditions.    

Owasco Lake, September 18, 2017

Owasco Lake, September 18, 2017

Summer algal blooms now occur in more lakes, their duration has increased, and they are producing toxins that pose health risks to the public when ingested or during recreational contact.  These toxins are not easily treated by water suppliers because the technology to treat one toxin may not be effective for another.  And unlike bacteria, boiling water does not remove these toxins. 

In 2017, harmful algal blooms (HAB) occurred in all 11 of the Finger Lakes, reportedly for the first time.  Blue-green algae are cyanobacteria and they can produce several species of cyanotoxins.  What is disturbing about the recent HAB outbreaks is that some classes of these cyanotoxins (e.g., microcystins), are particularly toxic.  If present at high concentrations, they can be difficult or impossible to treat using the technology of most public water systems.  One of these is Microcystin-LR, a liver toxin that is considered one of the more toxic.  These toxins can also cause skin, digestive system and other health issues.

Mycrocystin-LR has been identified in raw water drawn from Owasco Lake and Skaneateles Lake, both jewels of the Finger Lakes.  And Owasco Lake provides drinking water to more than 50,000 customers.  In 2016, the City of Auburn was using filtration to treat its raw water.  When the level of Mycrocystin-LR increased, the City considered moving the location of its water intake away from the area of the lake containing the toxin.  But would the new intake remain safe if the toxin shifted location?  The City decided against moving the intake and instead added carbon filtration. 

Skaneateles Lake is the primary water supply for the City of Syracuse and surrounding communities.  The water authority operates under a “filtration avoidance” authorization.  After a severe storm on July 1, 2017, phosphorous levels in the lake rose, resulting in algal blooms, and Microsystin-LR was then detected in the raw water pumped from the lake.  The levels were low enough that treatment was not required and the toxin was not identified in the water that reached customers.  Nonetheless, the presence of this toxin in the raw water is a disturbing development. 

These examples are lakes in my area.  But similar algae toxins and blooms are occurring in New England states, including New Hampshire and Maine. 

The broader challenges?  The science around algae toxins is emerging.  Further, there are no federal or state drinking water standards for microcystins (though there are health advisory guidelines published by USEPA and some states).  Water treatment plants are generally designed to avoid taste and odor concerns and to manage the most commonly tested algae toxins.  The next generation of plants will need to have more flexible designs to accommodate advanced treatment technologies.  And water authorities will need to consider spatial needs, hydraulics, connections, utilities and process control for these technologies. 

Frank’s concerned.  So am I.  It may get worse before it gets better.  While we wait for science, regulatory efforts and focused treatment technology to develop, at least municipalities can take steps to control the potential for toxic algal blooms by a combination of runoff control, nutrient reduction and stream-bank restoration.  Why wait to build that bridge from troubled waters to cleaner lakes?

Cuba Delegation 2: ACOEL’s Possible Contribution to the Cuban Environmental Community and Other Observations from XI International Convention on Environment & Development (Part 2 of a Two-Part Series)

Posted on September 13, 2017 by Mary Ellen Ternes

As noted in yesterday’s post, David Farer and I recently went to Cuba as delegates to the XI International Convention on Environment & Development, specifically, the Congress of Policy, Law and Environmental Justice.  At the conference, on behalf of ACOEL, we presented our paper, “Lessons Learned:  Effective Environmental Regulation of Critical Infrastructure Development & Operation.” Let me share some of the “flavor” of our experience.  It is first worth noting that little English was spoken at this quite international conference, but participants got by with assistance by Google Translate.  Also worth noting is that many of the conference participants are familiar to us all.  For example, those with exhibition booths at the conference included the Environmental Defense Fund, which has made considerable efforts to protect Cuban fisheries; and the Harte Research Institute for Gulf of Mexico Studies, Texas A&M Corpus Christi, which is working closely with the Cuban Environmental Agency on research in the Gulf of Mexico.  Also exhibiting were Cuban administrative and educational entities, such as the Nuclear Agency and the Institutes of Geology and Paleontology, Physics and Astronomy, Ecology, Science, Sea and Climate, and Meteorology, as well as several entities focusing on sustainability, local food, and climate change adaptation and environmental protection.

Fellow speakers included environmental and energy professionals from the United States, Canada, and Mexico, as well as Columbia, Costa Rica, Brazil, Peru, Chile and Spain.  Topics ranged broadly from cultural heritage to mining law; the impact of climate change on urban agriculture; perspectives of ecofeminists; sustainability in urban areas; limits of rights, policy and environmental management; resolving water disputes; methods to establish legally protected areas, particularly coastlines; and approaches to protecting drinking water and defining solid waste for community waste management. Of particular interest to U.S. environmental practitioners were Cuban presentations on improving the regulation of environmentally responsible businesses, the test for environmental damage and its main problems, and approaches to a law of liability to resolve civil damages.  Toward the end of the Congress, attendees were invited to the Cuban Bar Association to participate in an analysis and discussion regarding foreign investment and the environment. 

The Congress ended with a presentation of the 2017 book: “Environmental Act, Twenty Years Later,” edited by Teresa D. Cruz and Orlando Rey.  This 120 page book reviews, in Spanish of course, the history of Cuba’s first framework environmental law of 1997: Law No. 81, the Environmental Law.  The story behind Law No. 81 –including information on Cuba’s rich biological diversity, the country’s depth in science and education, and the fact that the law was supported by Fidel Castro – are the subject of Oliver Houck’s excellent article, Environmental Law in Cuba, J. Land Use & Envtl. L. (Fall 2000).  Those appreciating Professor Houck’s description of the hard road Cuba traveled to recover its original astonishing beauty after tripping along a precipice of potential environmental ruin would have appreciated the XI International Convention and the passionate arguments by presenters.  They should also appreciate the new book commemorating Cuba’s environmental passage.

We are looking forward to ACOEL’s next steps toward pro bono projects with Cuba.

Hurricane Irma Note:  As of the date of this posting, the Cuban people  – like so many others in the Caribbean and our own country -- are facing a long and difficult road to recovery from the hurricane’s devastation.    We hope that the College’s efforts can aid in this process.

THE PRESIDENT’S CRUSADE AGAINST BIRTH CONTROL HARMS WOMEN AND THE ENVIRONMENT

Posted on June 14, 2017 by Leslie Carothers

Environmentalists have long debated the need to address links between population growth and environmental harm.   Perennial issues include whether excessive consumption by the rich contributes more to environmental degradation and deserves more attention than population growth in poor countries and the merits of governmental incentives and disincentives to alter birth rates in either direction. Six writers with different perspectives explore these issues in the March/April issue of ELI’s Environmental Forum.  

Professor Lucia Silecchia at Catholic University ably presents the case for focusing on poverty reduction and education, citing the warnings of Pope Francis against population control as a simplistic solution.  (However, the views of the Catholic hierarchy have not caused the great majority of Catholic women to refrain from use of artificial contraception).  None of the population experts joining the ELI debate, including Paul Ehrlich of Stanford and Joe Bish of the Population Media Center, supports coercive measures to reduce birth rates; but they generally agree that at a minimum, a much stronger effort to meet massive unmet needs for family planning education and service is essential to slow the rise in our numbers and make a meaningful difference.

Experts estimate that over 200,000,000 women in developing countries want to avoid pregnancy but are not using modern contraception.  Melinda Gates, Co-Chair of the Gates Foundation, reports that during her visits with African women to talk about vaccination programs for children, the women generally speak up for improving access to contraception.   Worldwide birthrates have declined from about 5 births per woman to 2.4 from 1960 to 2015 according to World Bank figures.  But many developing countries in sub-Saharan Africa remain at near 5.  If each of those 200,000, 000 women decided to have two fewer children, the result would be an appreciable reduction in population growth that would measurably increase family living standards and reduce impacts on scarce resources and the warming of the planet.    

President Trump’s recent decision to withdraw from the Paris Climate Accord was disappointing but not unexpected.  More bad news for people and the environment has been the Trump Administration’s extraordinary set of initiatives to slash access to family planning services internationally and here in the U.S.  The Administration has launched a veritable crusade to reduce women’s autonomy, increase family poverty, and derail progress toward lower birth rates compatible with environmental sustainability.  The Monday following his inauguration and the Women’s Marches, President Trump announced that he was reinstating the “gag rule” prohibiting federal funding for international family planning programs if they provide counsel, referrals, or do lobbying for abortion services even with their own funds.  This rule has been on and off as U.S. Presidents have changed over the years; but Population Action International (PAI), the leading advocate for international family planning support, describes the Trump version as the gag rule on steroids.  That is because the old rule applied directly only to family planning programs of about $600 million.   Flanked by a lineup of well-heeled white men, the President signed an Executive Order intending to apply the new gag rule to all “global health assistance programs” receiving 15 times more U.S funding than family planning programs alone.  The impact according to PAI will be greatly reduced access to birth control services for women in 60 low and middle income countries, especially in Africa.

Women in the United States are now in the cross hairs of the crusade to make access to birth control more difficult and costly.   The week before the President announced his intention to exit the Paris agreement, the online news site Vox reported that a regulation had been drafted and sent forward to the Office of Management and Budget to roll back the Affordable Care Act’s mandate that employers include cost-free contraception in their health insurance programs.  The Supreme Court’s decision in the Hobby Lobby case to allow a privately held firm to claim a religious exemption, as if it were a church, has not settled the issue of application of the religious exemption.  While further litigation and negotiations continue, the Trump Administration is preparing  regulatory action to greatly broaden the basis for objections by allowing any employer with religious or “moral convictions” against offering contraceptives without cost to opt out of providing insurance covering them.  This little change would be promulgated as an interim final rule entering immediately into effect before any public comment or hearings though it affects 55 million women who have benefited from the requirement.

Advocates for women’s health services such as the Center for Reproductive Rights will challenge the content and process for the rule if it moves forward.

And there is more.  The “health care” bill passed by the House of Representatives and celebrated by the President would allow states to seek waivers of required elements of the current Affordable Care Act such as offering prescription drug or maternity benefit among others, a further blow to women’s health programs.

The deep cuts in Medicaid contemplated by the House health bill together with the reduction levels floated in the Administration’s skimpy outline of its budget proposals dealing with other federal benefit programs would further burden access to birth control services by reducing insurance coverage and imposing higher costs on people least able to afford them.  In addition to eliminating all funding in support of international family planning programs as well as the UN Population Fund, the budget would slash U.S Medicaid funding that also supports reproductive health care for millions of women.

The continuing campaigns of the anti-abortion and now the anti-contraception factions to limit access to reproductive health care by other people have a grossly disproportionate impact on low income women and families.  Women with resources may be inconvenienced by new limitations but will rarely be prevented from obtaining contraceptives or even abortions as before.  

Perhaps psychologists or sex therapists can divine why the President and his minions seem so fixated on reducing women’s access to birth control.  Whatever their motivations, this is an issue environmental advocates should not ignore.  Improving the lives of women and their families and increasing women’s ability to participate in decisions in their communities are the primary goals of advocates for women’s reproductive rights.    But the benefits of lower birth rates to reduce pressure on natural resources and to help slow global warming are real and merit strong support.  

Categories:  Sustainability, Climate Change

Tags:  Population, Environment

 


Energy Benchmarking, An Idea Whose Time May Have Come (And Just May be Politically Palatable)

Posted on June 5, 2017 by James B. Witkin

Given the current political climate in Washington, environmental programs most likely to survive unscathed are those that rely on market principles, especially if they are enacted at the state or local level. Sustainability advocates may want to take a closer look at energy benchmarking programs, which pass both of those tests.  

The jurisdictions closest to me, the District of Columbia and its close-in neighbor to the north, Montgomery County, Maryland, have adopted mandatory energy benchmarking programs for many commercial buildings. Other cities with similar programs include Seattle, Philadelphia, Los Angeles, Kansas City and New York City. Many of those jurisdictions began requiring compliance for public buildings, then larger commercial buildings, and finally smaller buildings. In Montgomery County, buildings over 250,000 square feet had to start benchmarking last June; starting June 1, 2017, most buildings over 50,000 square feet must comply. In New York City, buildings larger than 25,000 square feet must benchmark by next May.

Although benchmarking programs vary from jurisdiction to jurisdiction, generally they require building owners to measure and report information on various types of energy and water usage. Some of that information may come from the owner’s own records; in tenanted buildings, landlords may need to obtain the information from tenants. Often the information is input into software such as the EPA’s Energy Star Portfolio Manager Program, which allows for uniform reporting and effective comparison of the data among buildings. That information is made available to the public.

There are several goals of benchmarking. First, it provides owners with information they may not have had, or understood—as one EPA benchmarking website states, you can’t manage what you don’t measure. By making owners focus on their energy costs, and see how those compare to their neighbors’, they should theoretically make efficient management and upgrade decisions.  Second, armed with this information, tenants looking to lease space (or buyers looking to purchase commercial properties) are better able to evaluate what their long term energy costs will be, and can make better leasing or purchasing decisions. Nothing like a lousy score to shame a landlord into making an upgrade decision that ideally is both cost effective and green.

While the programs are still young, some data indicate that they are working. (See the reports issued by the Institute for Market Transformation, and the studies cited by them.) Benchmarking seems like a concept that people on both sides of the isle should be able to support. 

The Latest Executive Order: Any Kind of Consistency Is the Hobgoblin of Little Minds

Posted on March 31, 2017 by Seth Jaffe

Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal.  Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules.  There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.

Regardless, though, it’s important.  Social cost of carbon?  Poof.  Gone.  Climate Action Plan?  Gone.  Consideration of climate change in environmental impact reviews?  Gone.

We already know all this, though.  I’d like to focus on a few details concerning the EO that might have gone unnoticed.

  • The order states that development of domestic natural resources “is essential to ensuring the Nation’s geopolitical security.”  I found this statement interesting in light of the recent statements by Secretary of Defense Mattis, who very clearly stated that climate change is real and is itself an important security risk.
  • The order states that environmental regulations should provide “greater benefit than cost.”  I found this statement somewhat odd, given that the President’s prior EO known as the 2-for-1 order, essentially requires agencies to ignore the benefits of regulations and focus solely on the costs that they impose.
  • Similarly, the Order requires agencies, in “monetizing the value of changes in greenhouse gas emissions resulting from regulations,” ensure that their analyses are consistent with OMB Circular A-4, issued in 2003.  The Order states that Circular A-4 embodies “best practices for conducting regulatory cost-benefit analysis.”

I’d be interested in knowing if a single one of the authors or peer reviewers of Circular A-4 have anything nice to say about the 2-for-1 Order?

Energy Storage and Transforming The Grid in New York

Posted on March 21, 2017 by Virginia C. Robbins

For those who support national and international climate change initiatives like the Clean Power Plan and the Paris Agreement, the news out of Washington is gut-wrenching.  Disengaging from these initiatives is harmful on geo-political, economic, and moral grounds.  Despite these expected actions by the current administration, there is good news in the renewables sector:  battery storage technology has the potential to be a strong contender in the fight against climate change. 

In October 2015, a leak at the Aliso Canyon gas storage facility outside Los Angeles caused it to shut down.  The leak reduced fuel supplies for area power plants.  In response, the California Public Utilities Commission (CPUC) mandated mitigation measures, including the expedited procurement of about 100 megawatts (MW) of local energy storage resources in the Southern California Edison (SCE) and San Diego Gas & Electric (SDGE) service territories.  Renewable and other types of energy stored during the day would be available when electricity demand increased in the evening, thereby avoiding the need for increased fossil fuel generation to serve that peak need. 

The CPUC order directed utilities in Southern California to identify storage projects that could be sited, constructed, and put into operation providing electricity to the grid in only a few months.  Within 6 months after the CPUC issued its order, two battery storage facilities were completed.  SDGE contracted for the installation of two energy storage projects totaling 37.5 MW.  The larger 30 MW project in Escondido is said to be the biggest lithium ion battery storage facility in service on a utility grid in the world and is capable of serving 20,000 customers for four hours.  Also, Tesla completed a battery storage facility for SCE at the Mira Loma substation capable of powering about 15,000 homes for four hours.

These California energy storage projects are providing valuable “lessons learned” about the efficiency of battery technology, its benefits and limitations.  For example, building on these lessons, New York has established aggressive goals for meeting its electricity needs through renewable sources.  New York’s Governor Cuomo established a goal for 50 percent of the state’s electric needs to be met by renewable sources by 2030.  The strategy is to transform New York’s electric industry by building a cleaner, more resilient and affordable energy system through investment in clean technologies like solar, wind and energy efficiency.  And because wind and solar sources cannot always generate power during times of high electricity demand, energy storage must be a key component of the state’s energy future and more needs to be done for system operators to understand it and to develop the business models that will work.      

In October 2016, the New York Department of Public Service issued a Staff Report and Recommendations in the Value of Distributed Energy Resources Proceeding.  The goal of the proceeding is to develop accurate pricing for clean distributed energy resources (DERs) that reflects the actual value created by technologies that produce power outside of the utility grid (e.g., fuel cells, microturbines, and photovoltaics) and technologies that produce power or store power (e.g., batteries and flywheels) as well as demand-side measures.

The staff report supports including projects that pair any energy storage technology with an eligible generation facility to receive compensation under a proposed tariff.  The report also identifies a utility-driven demonstration project supporting solar-plus-storage.  Consolidated Edison Company of New York is currently pursuing a demonstration project that combines multiple solar plus storage systems to improve grid resiliency and provide a dispatchable “virtual power plant” that Con Edison can control and rely on in real time.  Con Edison is also pursuing grid-scale energy storage through a request for information seeking to demonstrate how large-scale utility storage can improve company operations, and establish how a singular type of energy storage can offer multiple kinds of value.   

Also, at its March 9, 2017 session, New York’s Public Service Commission (PSC) enacted a new compensation structure to value DERs installed in New York.  The order establishes compensation values for the first time in New York for energy storage (battery) systems when combined with certain types of DERs.  In addition, the PSC directed the state’s utilities to significantly increase the scope and speed of their energy storage endeavors.  By the end of 2018, each utility must have deployed and begun operating energy storage projects at no fewer than two separate distribution substations or feeders.  The Commission tasked the utilities with striving to perform at least two types of grid functions with the deployed energy resources, for example, increasing hosting capacity and peak load reduction.  The Commission stated that these actions are both feasible and necessary to promote timely development of a modern grid capable of managing DERs.   

These developments promise good outcomes for the deployment of energy storage, for environmental protection and for consumers.  They may also play a role in the planned shutdown (by 2021) of the Indian Point nuclear power facility, that has the capacity to generate more than 2000 MW of electricity and that serves about 25% of the energy needs of New York City and Westchester.  At a recent legislative hearing on the Indian Point shutdown, state officials discussed making up for the lost energy by efficiency programs and by encouraging opportunities for renewable, non-polluting sources like solar, wind and hydropower.  Their focus on renewables bodes well for further investment in energy storage as a component of reliable service using a resilient distribution system.  The battery storage “lessons learned” in Southern California in resolving the gas leak crisis may be valuable to New York State in planning for the shutdown of Indian Point.

President Theodore Roosevelt: A Conservative for All Seasons

Posted on March 8, 2017 by Irma S. Russell

The debate on whether President Theodore Roosevelt was a conservative or a progressive experienced a recent uptick.  One example of the debate is the reception to Daniel Ruddy's new book, Theodore the Great: Conservative Crusader.  In Theodore the Great, Ruddy documents the Roosevelt presidency’s conservation achievements, including efforts to protect the Grand Canyon and other national wonders from exploitation.  Like most presidents since his time, Theodore Roosevelt had a goal of making America great.  His philosophy centered on increasing the political power of the American people and limiting the build-up of the “invisible government” of party bosses, corporate trusts, and corporate lobbyists.  President Roosevelt championed reforms that limited corporate interests and conserved public lands for future generations.  The book’s website indicates that TR “obfuscated his own legacy with populist speeches” and promises that the book’s focus on Roosevelt’s actions “clears the cobwebs and presents a real and convincing case for remembering Theodore Roosevelt as a great conservative leader.”  I am persuaded of this point without reading the book.

The term “conservative” is capacious and has many dimensions, and the model of Roosevelt as a conservative is thoroughly convincing.  The U.S. National Parks website presents the evidence of President Roosevelt’s legacy.  Among other things, he created 51 federal bird reserves that have now evolved into national wildlife refuges in every state.  But of even greater importance, he established the U.S. Forest Service in 1905 and set aside 230 million acres of public lands, with over 150 million acres of that designated as national forests.  The success and public acceptance of the Forest Service was laid out for the ACOEL by Timothy Egan in a presentation to our members about his book, The Big Burn, which chronicled the birth of the agency within the Department of Agriculture and the public’s acceptance of its value after a 1910 fire in Montana and Idaho claimed lives as well as acres of forest. Roosevelt and the USFS insured the future of our forests – both for commercial and for recreational use. As an advocate for the American people, Roosevelt worked to insure the sustainability of those resources. 

Today, conservatives seem to be taking a markedly different approach to conservation and public lands.  Last week Ryan Zinke was confirmed by the Senate as Secretary of the Interior, the principal manager of public lands.  Zinke, the former Montana representative has been compared to President Roosevelt and praised as a Roosevelt conservative.  Last fall, he resigned his position as a delegate to the Republican National Convention in protest to proposals to transfer federal lands to states and private entities. 

More recently, however, Zinke has changed his approach to the preservation of public lands.  Before vacating his seat in the House of Representatives to accept the top position in the DOI, he voted in favor of a bill that facilitates the transfer of large tracts of western state federal public lands to states, local governments and private entities.  Such transfers of federal public lands will enrich the new owners by millions if not billions of dollars in valuable land and the natural resources on the lands. 

Even if the transfers were made for a fair market price and assuming the uses of the land were to remain the same (with the same park rangers and the same memorial markers), there would be adverse consequences.  The legacy, access, and pride in the public treasures would be forever altered.  Disposing of public lands will take these assets from America and Americans to enrich commercial or state interests.  This will impoverish the country both fiscally and by severing the relationship of ordinary Americans with the lands they revere.  Such transfers may also limit public access and will inevitably deprive the country of the value of natural resources on the public lands and reduce the national security – an important rational for the creation of public lands. 

National forests, wildlife refuges and other lands provide a national conservation and recreation system like none other.  Transferring these assets from the public to other interests is a loss to America no matter what form is used for the disposition.  Private interests focused on the corporate bottom line will inevitably exploit such holdings for profit.  As corporate spokesmen often explain, the responsibilities of their corporations are to their shareholders, not the general public.  Ordinary Americans might have the ability to hike, camp, and hunt and fish, but such access is not insured, and the nature of the access would be far different if our citizens become ticket-holders to private attractions. 

The collective holdings of the nation’s public lands protect access for all to the most inspiring areas on earth.  Debating what label best describes President Roosevelt’s brand of conservative principles or conservationist zeal is trivial in comparison to the serious issue of preserving America’s heritage in public’s lands.  Even from a purely economic perspective, selling public lands would be the worst deal in history.