Ecology Law Currents is the online-only publication of Ecology Law Quarterly, one of the nation's most respected and widely read environmental law journals. Currents features short-form commentary and analysis on timely environmental law and policy issues.
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Obsolescence, the process of becoming obsolete, is a staple
of our lives in the twenty-first century. As new and better technologies
develop at a faster and faster pace, our existing technologies—smartphones,
televisions, computers—become obsolete almost as
soon as they are released to the public. Entire technologies, like the fax
machine, emerge rapidly and then disappear just as quickly with the advent of a
faster and easier alternative. With respect to technology, we have come to
expect, even welcome, obsolescence, as it carries with it better alternatives.
The law, however, is another matter. By its very design, it
is meant to change slowly. Justice Benjamin N. Cardozo once said, “the encroachments [to the established common law] are so
gradual that their significance is at first obscured.”[1] As
a result, obsolescence is rare in the law. Once the law incorporates a
particular doctrine, it is slow to discard it. Indeed, legal treatises of tort
law published recently and those published hundreds of years ago show many similarities.
Surprisingly, one of the oldest and most utilized areas of
our legal system, environmental common law, is currently on the verge of obsolescence.
Environmental common law dates back to the seventeenth century.[2] It
survived the passage of seemingly comprehensive environmental statutes four
decades ago.[3]
Now, however, a series of court decisions from the past three years hold that
environmental common law actions, regardless of whether they are seeking
injunctive relief or monetary damages, are preempted and displaced by federal
statutes and regulations.
Sulfuric acid mist, also known as H2SO4
or SO3,[1]
is one of the least publicized air pollutants associated with emissions from
coal-fired power plants. Long overshadowed by nitrogen oxides, sulfur dioxide,
and carbon dioxide, sulfuric acid mist is typically not emitted in the
boundary-crossing and globe-altering quantities of the more frequently
discussed air pollutants. In the whirlwind of the United States Environmental
Protection Agency’s (EPA) recent air regulations of coal-fired power plants
including the Mercury and Air Toxic Standards for power plants (MATS), the New
Source Performance Standards and the Tailoring Rule for greenhouse gases, and
the recently vacated Cross-State Air Pollution Rule, sulfuric acid mist has
remained relatively untouched.[2]
But EPA’s regulations, which have imposed dramatic new emission limits on
sulfur dioxide, nitrogen oxides, greenhouse gases, mercury, and hydrochloric
acid, are likely to have a significant impact on sulfuric acid mist emission
control strategies at coal-fired power plants.[3]
Sulfuric acid mist emissions from coal-fired power plants, which creates tell-tale blue plumes (not pictured here), has increasingly been under scrutiny by the EPA over the past decade. Photo credit to ribarnica.
Hydraulic fracturing is a process whereby chemical additives, sand, and water are pumped into underground source rocks at high pressures in order to release natural gas and oil for fuel production.[1] There are a number of potential environmental impacts associated with this process, including risks of groundwater contamination, the mishandling of wastewater, and the potential migration of gases and hydraulic fracturing chemicals to the surface.[2] Despite these concerns, the Safe Water Drinking Act currently provides an exemption for the oil and natural gas industry and excludes the process known as hydraulic fracturing from regulatory efforts of underground injection controls.[3] This lack of regulation, coupled with the recent rise in domestic oil and natural gas production in the United States, has led to intense debate surrounding this controversial extraction process.[4]
When a country with a substantial population steers into an era of industrialization and urbanization, disequilibrium between energy demand and supply can become acute. Without intervention, the disequilibrium can trigger serious energy concerns. Today, China is at such a crossroads, experiencing bottlenecks in both technology innovation and effective legal regimes to regulate the industry.[1] At the turn of the millennium, many Chinese economists and academics began warning that China had lacked an energy planning and security strategy.[2] Today, researchers understand that a coordinated energy strategy is crucial to China’s development and security.[3] Some Chinese commentators have even asserted that an energy crisis could be the single greatest danger facing the nation, even more critical than a financial crisis.[4] In such an important era for China’s economic development, securing access to affordable, reliable, and clean energy is vital.[5]
Click here for videos of all sessions or on each session for its video.
All review authors attended the 2012 Water Law Symposium hosted at the University of California, Berkeley, School of Law on January 21, 2012. The panel reviews are based on their own observations and reflections. No citations should be attributed directly to the panelists themselves.
In 2003, the then European Community[1] adopted Directive 2003/87/EC, establishing a scheme for trading allowances of greenhouse gas (GHG) emissions.[2]Directive 2003/87/EC mandated the establishment of an emissions trading scheme (ETS) within the European Community “to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner.”[3] The preamble to Directive 2003/87/EC states that the establishment of such a scheme would contribute to the achievement of the European Community’s and its Member States’ commitments under the Kyoto Protocol.[4] In this regard, the Protocol is a mechanism enacted by the United Nations Framework Convention on Climate Change[5] to promote reductions in emissions associated with climate change. The Protocol entered into force in 2005 and requires participating Annex 1 countries—in effect, developed countries—to reduce certain GHG emissions by 2012 to at least 5 percent below 1990 levels.[6]The European Union pledged to reduce greenhouse gas emissions listed in Annex A of the Kyoto Protocol to 8 percent below 1990 levels in the period 2008 to 2012.[7]
Because of the European Union’s emissions reduction pledge, the ETS is considered “a cornerstone of European policy on climate change”[8] and is the world’s largest such scheme.[9]The ETS did not initially include emissions from aviation activities; however the omission of aviation activities from the ETS eventually came to an end on January 1, 2012 when Directive 2008/101/EC, which amended Directive 2003/87/EC,[10] entered into force.[11].The extension of the ETS to aviation emissions requires aviation operators to surrender emission allowances equivalent to the total number of emissions produced the preceding year, and applies penalties to operators who do not comply with this obligation.[12] Initially, 85 percent of emission allowances will be distributed freely with the remaining 15 percent auctioned, with a reserve fund of allowances being made available to new market entrants.[13]
While droughts and water supplychallenges have plagued California for decades, climate change will increase the strain on California’s water management system.[1]Seawaterdesalination—the process of removing salt and other minerals from seawater—is often hailed as the solution to the state’s water supply challenges.[2] However, proposals to build seawater desalination plants, which demand enormous quantities of energy, could be a shortsighted fix that will ultimately exacerbate climate change due to corresponding greenhouse gas (GHG) emissions. This article explores seawater desalination and alternative strategies for California to adapt to climate change, and concludes that an effective adaptation approach will require strategies to reduce GHG emissions.
Seawater desalination plant in South Korea. Photo credit to roplant.
Regulating pollution fromstormwater that flows over structures and paved surfaces, collecting waste and sediments and ultimately spilling into rivers and oceans, can be a true “administrative nightmare.”[1] However, on March 10, 2011, the Ninth Circuit clarified that, when stormwater pollution cannot be attributed to any particular polluter, liability under the Clean Water Act (CWA)[2] can nevertheless be imposed upon the entity that controls the discharge of stormwater into watercourses.[3]As such, the court in Natural Resources Defense Council v. County of Los Angeles held the Los Angeles County Flood Control District (District) liable for excess stormwater pollution detected by monitoring stations located in storm-sewer systems channeling stormwater to the Los Angeles River and the San Gabriel River. San Gabriel River. Photo credit to Eazylanish.
Confusion over what damages are recoverable as natural resource damages (NRD) under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and other federal statutes abounds, giving credence to the oft-repeated phrase that “CERCLA is not a model of legislative clarity.”[1] Among other things, confusion appears in discussions among the Department of the Interior, legislators, and courts regarding the recoverability of cultural resource damages as NRD under CERCLA. But the statute and caselaw are clear. As demonstrated here, CERCLA establishes that injuries to cultural resources,[2] no matter how they are described, are not recoverable as NRD.
Mount Rushmore in western South Dakota is an example of a resource with cultural significance. Photo credit to Nell Green Nylen.
Sea snot, tar balls, and designated oiled carcass holding locations are just a few of the many appalling and lingering consequences of the failure of BP’s Macondo well in the deep waters of the Gulf of Mexico. The catastrophe began on April 20, 2010 when the well’s blowout preventer failed and caused a fiery explosion aboard the Deepwater Horizon, the oil rig owned by Transocean and leased and operated by BP. The accident killed eleven rig workers and led to the largest oil spill in American history. Plugging the well took three months plus an additional two months to kill the well. Called an unprecedented environmental disaster by some and the Crime of the Century by others, BP’s oil spill resulted in an estimated total discharge of 4.9 million barrels (205.8 million gallons) of oil, largely unmitigated, into the Gulf of Mexico. While the precise cause of the well’s failure is still unknown, what has become evident is that the drilling plans for BP’s broken well never underwent full environmental review – a review that could have helped prepare the company and local and federal governments for such an eventual catastrophe.
Smoke plumes from spill-response crews gathering and burning oil in the Gulf of Mexico near the site of the leaking Macondo well. Photo taken June 22, 2010. Photo credit to Dr. Oscar Garcia / Florida State University.
The following articles are student responses and observations of a selected few panels at Berkeley Law’s 2010 Symposium “Empowered Partnerships: Participatory Action Research for Environmental Justice” hosted by the Thelton E. Henderson Center for Social Justice and co-sponsored by Students for Economic and Environmental Justice at UC Berkeley School of Law; the Center on Race, Poverty & the Environment; Communities for a Better Environment; Asian Pacific Environmental Network; West Oakland Environmental Indicators Project; ¡PODER! - People Organizing to Demand Environmental & Economic Rights; California Rural Legal Assistance, Inc.; Greenaction for Health and Environmental Justice; The Pacific Institute; Environmental Studies Institute at Santa Clara University; Cal Corps at UC Berkeley; La Raza Law Students Association at UC Berkeley School of Law; Berkeley La Raza Law Journal; Ecology Law Quarterly; Central Valley Air Quality Coalition; California Law Review; California Environmental Justice Alliance; and the Women of Color Collective at UC Berkeley School of Law.
The forum discussion on February 16, entitled “The Environmental Justice Movement: History & Skills Every Lawyer Should Know,” was a great kick off to the Sixth Annual Environmental Justice Symposium. For aspiring lawyers with very little experience or background in Environmental Justice (EJ) this introductory forum was the perfect place to learn more about the movement. The forum explored the EJ attorney’s role as an advocate.
Weed in the Wild: Environmental Consequences of Marijuana Cultivation on Public Lands Speaker: Chief Ranger Steve Shackelton, Yosemite National Park
Yosemite Chief Ranger Steve Shackelton has a lot on his plate. Together with only sixty rangers to cover Yosemite’s nearly 1200 square miles,[1] he oversees the safety of more than 3.5 million visitors annually.[2] Yet, an unprecedented problem threatens Chief Shackelton’s ability to meet his goals: illegal cultivation of marijuana within the park has recently turned his team of safety rangers into drug enforcement agents and taken them away from their other duties.
California is not unique among states by virtue of having both a sizable urban fishing population and environmental pollution leading to fish contamination. Nor is it alone when it comes to having both highly diverse communities actively engaged in fishing and a political and social tradition of elitist decision making about both protecting fish populations and the people eating the fish. In many ways consumption of contaminated fish in California is an example of a confluence of contemporary social and ecological problems, for which there is no adequate statutory or regulatory framework. I describe here a case study of contaminated fish consumption that reflects many of the environmental, social, and political conditions experienced by poor and disenfranchised communities in California and the United States.
China’s economy is the fastest growing in the world. Official Chinese government figures, from the National Bureau of Statistics, indicate that China’s economy grew 11.9 percent in 2007, the fastest rate of growth in more than a decade.[1] However, nearly thirty years of rapid economic growth coupled with a “pollute first, clean up later” mentality has devastated China’s environment.
As a nation of over 1.3 billion people, China faces some of the world’s greatest environmental challenges. Some 400 cities in China face severe water shortages,[2] and seventy percent of China’s rivers are polluted.[3] As one of the world’s largest green house gas (GHG) emitters, China was responsible for an estimated 6,200 million tons of carbon dioxide (CO2) in 2006 from fossil fuel combustion and cement production alone.[4] That represents a nine percent emissions increase over the previous year,[5] and is primarily due to the country’s reliance on coal as its main energy source.[6] As a result, pollution levels in Chinese cities often pose an enormous health risk to citizens. Because of China’s position as a developing nation with growing energy and resource needs, few nations have a more important role to play in making the urgent transition to sustainable development.
In 2007, the nuclear industry took the first steps toward a second generation of nuclear construction in the United States. Starting with a partial application in July 2007 for a new unit in Maryland, and followed by complete applications for multiple new units in Alabama, Virginia, Texas, and South Carolina in late 2007, new reactor licensing is now underway.[1] These applications are the first received by the U.S. Nuclear Regulatory Commission (“NRC”) in nearly 30 years.[2]
In some ways it may be helpful to discard older methodologies, which contributed to lengthy delays in licensing and construction that plagued the first generation of new plants. But in other ways, that experience and institutional knowledge may yet prove invaluable. The mistakes of the past began with the licensing process, which was cumbersome and unwieldy. Once again, new reactor licensing will set the tone for new nuclear, and success depends on a stable and predictable regulatory process. In light of the significant changes in the framework for licensing nuclear reactors, some background on the structure and roles of participants in the licensing process is critical to understanding the complex regulatory and adjudicatory functions of the NRC.
In the United States, opponents of new nuclear power plants argue that no new plants should be built until we are prepared to bury the spent fuel from power plants in a permanent storage facility.[1] In my opinion, it is unnecessary to resolve this issue before building new nuclear power plants. New plants can use dry cask storage as a safe and secure method of handling spent fuel for the next fifty years or more.[2]
The nuclear power industry has latched on to global warming as an argument for its renaissance. Although even industry proponents acknowledge that the problem of disposing of spent nuclear fuel remains unsolved, the industry routinely assumes this problem will be solved in the future. Unfortunately, this is the same assumption made by nuclear energy proponents at the beginning of the nuclear industry fifty years ago. We haven’t solved the nuclear waste problem in the past half century, and there is no reason to think we will be more likely to do so in the next one. Like the shipwrecked economist in the old joke, the nuclear industry continues to postulate that we should “assume we have a can opener” for the nuclear waste problem.[1]
Understanding relative risk is at the heart of America’s current debate over a revival of nuclear power. “Nuclear power is dangerous,” say the critics. “Dangerous compared to what?” should be the reply.
Commenting in early 2007, the president of Stanford University, John Hennessy, said, “Nuclear power has to be part of the solution [to global warming]. Can we really understand the notion of risk? Nuclear plants versus carbon emissions – which will kill and has killed more people?”[1] To this we should append a question about the relative risk of nuclear power versus America’s reliance on fossil fuels. Imported oil and natural gas can fluctuate wildly in cost or may be embargoed by hostile nations while domestic coal remains far from clean and burning any type of fossil fuel contributes to greenhouse gas emissions.
Should we put all of our high-level radioactive wastes into ordinary steel barrels that have perhaps 200-year expected containment capabilities in salt water, and then dump them all into the depths of the Pacific Ocean and forget about them? Such a policy would free the billions of dollars spent annually on radioactive waste storage for other pressing social needs. Despite these benefits, however, most would regard such a radically present-oriented policy as an egregious violation of our ethical obligations to distant future generations. There is broad consensus that we have ethical obligations to undertake policies that benefit distant future generations and to eschew policies that impose significant harms upon them, at least when these choices do not require excessive current sacrifice relative to the magnitude of long-term benefits.
However, it proves impossible to articulate a satisfactory rationale for this position solely on the basis of conventional secular and consequentialist ethical premises[1] (“conventional ethical premises”). The long-term consequences of radically present-oriented policies and the ethical questions they present are quite subtle and complicated by what I call the problem of person-altering consequences. The decision whether to undertake such a policy should be regarded as an empirical question and should be made solely on the basis of an assessment of the consequences for existing persons, and not upon any claimed ethical obligations to future generations distant enough from us in time for their members to all have had their genetic identities significantly altered by those person-altering consequences. We have no ethical obligations to these distant future generations based on conventional ethical premises to consider their rights or interests in making environmental or other policy decisions, because virtually nothing that we could possibly do would harm any specific future persons, counter-intuitive as this claim may seem.
More than thirty years ago, my now-deceased colleague David Comey was asked to make a presentation before the annual meeting of the Atomic Industrial Forum, then the major trade association backing expansion of nuclear power worldwide.[1] He was asked to deliver that speech because he had built credibility with the press and with key decision makers by being scrupulously careful with his facts and analyses. The industry understood that its reputation—particularly with the media—was poor, and they wanted to understand how David did it. In Comey’s view, there was an easy explanation—the nuclear industry regularly exaggerated and misled.
