Ecology Law Currents

Salmon Lessons for the Delta Smelt: Unjustified Reliance on Hatcheries in the USFWS October 2019 Biological Opinion

Paul Stanton Kibel*

[ download PDF ]

I. Hatching a New Conservation Model

Pursuant to the Endangered Species Act, in October 2019 the United States Fish and Wildlife Service (USFWS) of the Trump Administration issued a new Biological Opinion (BiOp) for coordinated operations of the Central Valley Project and the State Water Project (2019 USFWS BiOp).[1] The Central Valley Project is operated by the United States Bureau of Reclamation (Reclamation), and the State Water Project is operated by the California Department of Water Resources.[2]

The Central Valley Project and the State Water Project both divert freshwater from the Sacramento River and San Joaquin River watersheds, and the reduced freshwater flow resulting from these diversions allows in additional ocean water, raising salinity levels.[3]

The 2019 USFWS BiOp issued by the Trump Administration found that anticipated water project operations would not jeopardize the survival of the endangered delta smelt, a fish species dependent on low-salinity conditions and found only in the brackish estuary where the freshwater of the Sacramento and San Joaquin Rivers mix with the seawater of the San Francisco Bay.[4] The “no jeopardy” determination in the 2019 USFWS BiOp contrasted with the previous 2008 USFWS BiOp, which found that anticipated water project operations would likely push the endangered delta smelt into extinction due to elevated salinity levels.[5]

In comparing the 2008 USFWS BiOp to the 2019 USFWS BiOp, two key differences stand out. The 2008 USFWS BiOp identified seawater intrusion and rising salinity as a primary driver of delta smelt decline and did not propose reliance on hatcheries to replace declining wild delta smelt populations.[6] In contrast, the 2019 USFWS BiOp downplayed seawater intrusion and rising salinity as a primary driver of delta smelt declines and instead focused on the potential role that delta smelt artificially propagated in hatcheries might play in increasing delta smelt populations.[7]

A Polymer Problem: How Plastic Production and Consumption is Polluting our Oceans

Abigail Hogan and Alexander Steinbach, Staff Editors, Vermont Journal of Environmental Law

This post is part of the Environmental Law Review Syndicate (ELRS).

I.          The History of Plastic Production

[ Click Here to Comment ]

Typically, when a new product comes on the scene, it takes several generations to evaluate its use and environmental impact. However, synthetic plastics really only began to take over around 50 years ago, and we’re already seeing a movement to ban, or at least drastically reduce, the material. Why has plastic made such a splash in so little time?

Plastic was originally developed from cellulose, or plant material. But in 1907, the first fully synthetic plastic was created.[1] The difference between these two materials is that plastics made from plant material can actually break down, whereas synthetic plastic will only ever break into smaller pieces.[2] In fact, “EPA reports that ‘every bit of plastic ever made still exists.’”[3] Today, plastic and rubber are formed by polymers consisting of smaller units known as monomers.[4] A vast majority of monomers are produced from petroleum and is therefore non-renewable.[5] Around 4% of the world’s oil consumption is used as raw material in plastic production, and a similar amount is used as energy in the production process.[6] In addition to the use of petroleum, plastic production requires the use of additives.[7] A few chemical additives are: plasticizers, flame retardants, heat and UV stabilizers, biocides, pigments, and extenders.[8] Several common additives are classified as hazardous according to the E.U. regulations and are classified as carcinogenic, mutagenic, harmful for reproductive health, harmful to aquatic life, or having persistent negative impacts on the environment.[9]

This first plastic was used for electrical insulation, but it sparked a revolution in materials. New plastics were continuously developed for a multitude of uses, particularly as World War II necessitated more military uses. Not long after, 1960 was the first-time plastic was noticed as a concern when seen in ocean pollution.[10] Besides polluting the ocean, plastics have negative health impacts on humans and the environment. Plastics harm human health because they release toxic chemicals throughout the life cycle of the product.[11] However, because experimental studies exposing humans to environmental contaminants are not allowed, it is difficult to establish indisputable causal relationships between exposure to the chemicals and adverse effects in humans.[12] In addition, the detrimental effects and disease produced from plastic exposure takes decades to produce adverse effects in human health.[13] In some instances, it may even take generations before disease manifests itself in the human population.[14] This makes pinpointing the exact chemical causing the disease difficult. However, there is overwhelming evidence that exposures to anthropogenic chemicals contribute to adverse effects in animals.[15]

 

Conduit to Tribal and Environmental Justice? Unpacking Washington v. United States

Mike Pease* and Christina White**

[ Click Here to Comment ]
[ download PDF ]

Introduction

Popularly referred to by the general public in Washington State as “the culvert case,” Washington v. United States[1] (“Washington V”) has ramifications beyond the removal of barrier culverts[2] precluding safe fish passage. This case brought together several lingering and hotly contested legal issues in the Pacific Northwest: the conflicts between federally mandated construction designs and Washington State’s infrastructure and the scope of tribal rights under the Stevens Treaties. Affirming the Ninth Circuit decision, the Supreme Court correctly protected tribal Treaty rights by requiring Washington to replace state-owned, high-priority barrier culverts. Though this decision can also be seen as a victory for salmon populations and tribal rights, arguably this decision could have broader impacts for the legality of dams precluding safe fish passage.

I. Background

A. Stevens Treaties

In 1854, Washington Territorial Governor Isaac I. Stevens entered into a series of treaties, now known as the Stevens Treaties.[3] Though a full analysis of the Stevens Treaties is beyond the scope of this article,[4] a contentious clause across the Treaties’ is the one reserving the Tribes’ right to off-reservation fishing.[5] This clause, which is essentially the same language used in each treaty,[6] reads:

The right of taking fish and of whaling or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands: Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens.[7]

B. Origins of Washington V

Following the signing of the Stevens Treaties, the Dawes Act[8] was passed in 1887, coercing more settlers to accept land grants of appropriated Indian land in the Columbia River Gorge.[9] Concurrently, the invention of canneries as a method of preservation quickly developed the salmon exportation business into a profitable endeavor.[10] This increased the demand for salmon fisheries, and competition for prime fishing sites ensued.[11] One Indian agent for the Yakamas stated: “‘[I]nch by inch, [the Indians] have been forced back until all the best grounds have been taken up by white men, who now refuse to allow them to fish in common, as the Treaty provides.’”[12] Inevitably, tribal members were blocked from their “usual and accustomed” fishing sites.[13]

A Blooming Problem: How Florida Could Address the Causes and Effects of Red Tide

By John Niedzwiecki, Senior Editor, Georgetown Environmental Law Review

Originally published on August 29, 2018 in the Georgetown Environmental Law Review Online: https://www.law.georgetown.edu/environmental-law-review/blog/a-blooming-problem-how-florida-could-address-the-causes-and-effects-of-red-tide/

An algae bloom in the Gulf of Mexico is wreaking havoc on Florida’s economy and environment. An effective state and local response can help provide a solution.

Florida’s southwest coast, once a haven to wildlife and tourists alike, is experiencing one of the worst red tides in recent memory. Red tides, harmful algae blooms (“HABs”) which often have a red hue which affect both inland and coastal waterways, are common occurrences in Florida, but they have increased in both intensity and frequency in recent years. This blog post will discuss the problems that red tides pose to communities in Florida and the legal structures that could help provide a solution to this growing problem.

First, this blog post will discuss the background of red tides in Florida, including their historical occurrence, effect on local economies, and effect on wildlife and the environment. Second, the blog will review the natural and man-made factors that contribute to the development of red tides in Florida. Finally, I will discuss the potential legal responses to red tide. Although this blog post limits the discussion of red tides to Florida, it is important to note that red tides are not limited to Florida, and HABs occur around the world.

Red tides in Florida present a large-scale, fast-changing environmental problem. The red tide currently impacting the state is having a dramatic effect on both the state’s economy, plant life and wildlife. It is likely that, in the future, state and local governments across the country will have a larger role in finding solutions to environmental problems that are not contained to one community or state. By finding a solution to the problem of red tides in the legal system, it is possible that Floridians, and people watching in other states, can see how activism on the local level can bring about positive change that impacts individuals, businesses, and communities.

 

State and Local Control of Federal Lands: New Developments in the Transfer of Federal Lands Movement

By Martin Nie* and Patrick Kelly**

[ Click Here to Comment ]
[ download PDF ]

Beginning in 2012, western state legislatures reinitiated old efforts to transfer federal lands into state ownership. What started in Utah with the Transfer of Public Lands Act quickly spread to every western state but California.[1] The Transfer of Public Lands Act called for legislation to establish actions to secure, preserve, and protect the state’s rights and benefits in the event that the federal government failed to transfer public lands to Utah.[2] But when other western states and their attorneys general conveyed skepticism about the legal arguments being made by Utah,[3] the movement pivoted to the federal arena, with a focus on a Republican-controlled White House and Congress.

The political strategy coalesced in 2017, when Representative Jason Chaffetz of Utah introduced legislation that authorized the disposal of 3.3 million acres of federal land.[4] The backlash to the “land seizure movement” was swift (e.g., #keepitpublic) and Chaffetz’s bill was widely condemned by a coalition of conservation, hunting, angling, and recreational interests.[5] The legislation was withdrawn a week after its introduction and it looked as though the transfer movement might be losing momentum given the unsuccessful attempts, at the federal and state levels, to transfer or privatize federal public lands.[6] 

But the story is far from finished and the threats to public lands are just as acute today as they were in 2012, when western states began demanding the imminent transfer of title of federal public lands to a state or introduced legislation calling for studies of a possible transfer.[7] These state-based efforts received considerable national attention.[8] But receiving less coverage, and discussed below, are a new spate of bills that do not transfer ownership of federal lands to the states or private interests, but rather give state and local governments control over federal lands and resources. In doing so, these bills radically alter the traditional paradigm of federal lands management, and the constitutional principle of federal preemption, by making federal law subservient to state authority. 

To understand how far Congress is pushing the boundaries of state power, some background in federal public lands and “cooperative federalism” is needed. This context shows that in the past, Congress fashioned a pragmatic balance between the national interest in public lands and providing state and local governments an important role to play in their administration.

Carbon Tax and Low-Income Grant Proposal to Encourage Low-Income Investment in Solar Technologies

 

By Elizabeth Doherty, 3L, Vermont Law School and Symposium Editor, Vermont Journal of Environmental Law

This post is part of the Environmental Law Review Syndicate (ELRS).

[ Click Here to Comment ]

I.  Introduction

Climate change is internationally recognized as the biggest threat facing the world today.^[1] This threat transcends politics, economics, and social views. In 2017 we saw historic flooding, hurricanes, wildfires, and now record snowfall in the southeastern United States.^[2] These and other natural disasters are exacerbated by anthropogenic climate change. While it may be too late to prevent global temperatures from rising two degrees Celsius, we must make whatever changes possible to prevent temperatures from rising even higher.

In the United States, almost one-third of total greenhouse gas (GHG) emissions come from the electricity sector alone.^[3] If we transition our electricity sector to renewable technologies, we will be able to eliminate a significant portion of our GHG contributions. Further, the transportation sector accounts for another 28% (in 2016) of U.S. GHG emissions.^[4] If we electrify the transportation sector and transition to renewable energy technologies, we will be able to eliminate more than half of our national GHG emissions. If we are to successfully combat climate change, the United States must become a global leader and make significant steps toward the transition to a clean energy economy.

The United States federal government has used the tax system to change behavior for decades and as our electricity industry introduces cleaner technologies, that system should be leveraged again to include all economic classes in the energy transition. The Energy Policy Act of 1992 created the renewable electricity production tax credit (PTC), which provides a per-kilowatt-hour credit for business investments in qualified renewable energies.^[5] Solar photovoltaic technologies were not added to this list until the American Jobs Creation Act of 2004 (AJCA).^[6]  In addition to the PTC, Congress also created the residential investment tax credit, also known as the residential energy efficient property credit, or “Section 25D credit,” which provides a 30 percent tax credit on investment for renewable energy equipment placed in service during the taxable year.^[7] These efforts, along with other federal and state initiatives, have led to dramatic increases in renewable technology deployment and integration over the past decade.^[8]

Despite the dramatic progress seen in recent years, legislatures have failed to include low-income residential consumers in the transition to clean energy production.^[9] The PTC is applicable only to businesses that produce electricity from renewable sources and the Section 25D credit is only accessible to those residential customers with enough tax appetite.^[10] This has contributed to a growing cost-shifting issue for residential solar photovoltaic investment.^[11] Cost-shifting occurs because most current state net metering policies allow residential rooftop solar customers to eliminate their electric bill altogether and avoid paying for the fixed costs associated with using the electric grid.^[12] With current ratemaking, this leaves the utility with a smaller pool of customers from whom they can recover those costs, thus raising the electric bills of non-solar customers and creating a cross-subsidy effect.^[13]

This paper explores the current status of federal incentives for residential photovoltaic investment, explains the negative externality associated with these incentives, and proposes a solution. The solution involves an environmental tax on electricity generators based on the carbon-emitting quality of the utilized resources. The revenue from the carbon tax will then be used to fund a low-income grant program for residential renewable solar photovoltaic investment.

State Clean Energy Polices at Risk: Courts Should Not Preempt Zero Emission Credits for Nuclear Plants

Ari Peskoe*

[ Click Here to Comment ]
[ download PDF ]

In 2016, the Illinois Legislature and New York Public Service Commission (PSC) enacted nearly identical policies to induce economically struggling nuclear power plants to continue operating. Competing power generation companies filed suits in federal district courts, arguing that the states’ policies are preempted by the Federal Power Act (FPA) and violate the dormant Commerce Clause. Both courts dismissed all claims,[1] and the generators have appealed those decisions to the Seventh and Second Circuit Courts of Appeal, respectively.[2] Decisions are expected in the first half of 2018.

The disputes over the states’ Zero Emission Credits (ZECs) for nuclear plants are just the latest controversies about the roles of states and the federal government in overseeing the electricity industry.[3] Recent federalism cases highlight the incongruity of applying the New-Deal-era FPA to today’s dynamic and evolving industry.[4] Fossil-fuels proponents have also seized on the increasing overlap between state regulation of the generation resource mix and interstate power markets to argue that state clean energy policies overstep the limits of state authority that the dormant Commerce Clause establishes.[5]

The ZEC cases are particularly significant for delineating the boundaries of authority between state and federal regulators. States designed the policies to adhere to the limits of state authority outlined in a trio of Supreme Court energy federalism cases decided in 2015–2016. This bounty of new case law has delighted energy law scholars and inspired voluminous interpretations,[6] but only three federal courts have applied their holdings to electricity regulation cases.[7] Decisions by the Second and Seventh Circuits on ZECs could set precedent that defines the industry’s governance for decades.

These decisions may also be consequential for the future of state climate action. A broad ruling against the states could invite litigation about state renewable portfolio standards and emission allowance programs, such as the Regional Greenhouse Gas Initiative cap-and-trade program that covers power generators in nine Northeastern states. If these well-established, market-based programs are found to be incompatible with federal regulation, states might retreat to “command-and-control”-type policies that entirely ignore the interstate nature of the electric grid and today’s power markets. This result would likely leave consumers, and the environment, worse off. On the flip side, decisions upholding the ZEC policies would implicitly affirm the legality of an array of long-standing state clean energy policies that have never been challenged on preemption grounds. It would also bolster the legal defensibility of more recent policies, such as Maryland’s offshore wind credit program,[8] and could encourage states to enact new clean energy policies.

The New(Clear?) Electricity Federalism: Federal Preemption of States’ “Zero Emissions Credit” Programs

Joel B. Eisen*

[ Click Here to Comment ]
[ download PDF ]

Two pending federal appellate cases involving Illinois and New York laws, Old Mill Creek v. Star and Coalition For Competitive Electricity v. Zibelman respectively,[1] involve the conflict between federal authority over the electric grid and state laws supporting nuclear power plants. The issues are nearly identical in both cases.[2] In Illinois, New York, and other states,[3] aging nuclear plants are struggling to stay in business. These plants generate electricity and sell it in regional wholesale electricity markets that grid operators known as “independent system operators” (ISOs) and “regional transmission organizations” (RTOs) administer.[4] Competition in these markets, primarily with low-priced natural gas but also with renewables, has lowered prices and left the nuclear plants short of recovering their high operating and capital costs.[5]

Concerned about this, the states are subsidizing these plants. The plaintiff-appellants in Star and Zibelman argue that the authority of the Federal Energy Regulatory Commission (FERC) over the wholesale electricity markets under the Federal Power Act (FPA) preempts these state subsidies.[6] This Article proposes and explains a test for resolving the upcoming appeals that turns on the state’s conscious disregard of FERC’s authority. If a state law explicitly and consciously aims to directly affect wholesale market prices, terms, or conditions, its subsidy program is impermissible as an intrusion on FERC’s regulatory turf. It further contends that only this test can harmonize three recent Supreme Court decisions on the intersection of state and federal jurisdiction over the electric grid, preserve valuable state policy experimentation, and set a narrowly defined preemption standard that avoids unintended consequences in future litigation. Applying the test to the state nuclear subsidies, this Article concludes that federal law preempts them and that the District Courts’ decisions to the contrary were in error.

The Electric Grid Confronts the Dormant Commerce Clause

by

Sam Kalen & Steven Weissman 

[ Click Here to Comment ]
[ download PDF ]

Many modern energy dialogues gravitate toward a conversation about the present status of the jurisdictional divide between state and federal authority over the regulation of wholesale sales of energy.  A March 3, 2017 Bureau of National Affairs (BNA) article began by observing how the utility industry believes the biggest challenges for the Federal Energy Regulatory Commission (FERC) will involve “[j]urisdictional battles between state and federal control in the energy markets.” And last fall, a joint report by centers at Duke University, University of North Carolina, and Harvard observed how “[t]he line between federal and state jurisdiction over the electricity sector is shifting.  FERC once played a limited role in sector oversight, but regionalization of the electric grid and development of interstate markets for electricity, electric capacity, and transmission development have expanded its responsibilities.”  A similar theme echoed in the Obama Administration Department of Energy (DOE) Quadrennial Energy Report.

This jurisdictional conundrum primarily has played out on two fronts: first, whether state-related energy programs are preempted by the Federal Power Act (FPA), and second, whether such state programs run afoul of the dormant Commerce Clause.  As the electric grid began expanding across state boundaries in the first quarter of the twentieth century, a similar question surfaced about which entities—whether states, the federal government, or regional agencies—ought to regulate sales and transmission of electric energy.  Indeed, Justice Frankfurter and James Landis published a landmark 1925 article on the potential use of interstate compacts for promoting regional electric “superpowers,” an idea supported by such notables as Herbert Hoover.[1]  The Federal Power Commission (FPC), which at the time only enjoyed jurisdiction over hydroelectric facilities, opposed the development of such interstate compacts and instead seemingly favored expanding its own jurisdiction over interstate transactions.[2]

CONDUIT FOR PEACE IN THE MIDDLE EAST: AN ANALYSIS OF THE RED SEA–DEAD SEA WATER CONVEYANCE PROJECT

By

Sarah L. Fine

This post is part of the Environmental Law Review Syndicate (ELRS).

 

As the old saying goes, whiskey is for drinking—water is for fighting over.

I. Introduction

The mythic Dead Sea—the highly salinated, low-altitude lake of international interest and importance—is drying up.[1] Although the Jordan Rift Valley, where the Dead Sea is located, is known for frequent droughts, the decline of the Dead Sea is primarily due to human intervention—namely, the diversion of the Jordan River, the main lake source which feeds the Dead Sea,[2] to provide potable water to increasing populations.[3] A water level drop of one meter per year has led the surface area to decrease from 960 km² to 620 km² in the last fifty years.[4] Today, the rate of decline is only increasing, giving rise to “extensive environmental degradation and damage to industry and infrastructure and . . . substantial intangible impacts and costs,” with an estimated direct cost to government and industry to be “some $2.9 billion over the next 60 years.”[5]

Despite the lack of stability between the Dead Sea’s three bordering entities—the State of Israel, the Hashemite Kingdom of Jordan, and the Palestinian Authority—a series of agreements between the groups have sought to address the problem of the disappearing Dead Sea alongside the problem of access to potable water.[6] Facilitated by the World Bank Group, the Red Sea­–Dead Sea Water Conveyance Study investigated the feasibility of reversing the environmental degradation of the Dead Sea by transferring seawater from the Red Sea. By introducing desalination into the transfer process, the hope of the three parties is that the Red Sea­–Dead Sea Water Conveyance will address the environmental degradation of the Dead Sea and the lack of affordable energy and drinking water in the Jordan Rift Valley, while increasing political goodwill and cooperation between the parties.[7]

Mitigating Greenhouse Gas Emissions in the Northeast and Mid-Atlantic Transportation Sector: A Cap-and-Invest Approach

James D. Flynn*

This post is part of the Environmental Law Review Syndicate (ELRS).

[ Click Here to Comment ]

 

I.      Introduction

In recent years, states in New England and the mid-Atlantic region have made significant progress in reducing climate change-inducing greenhouse gas (GHG) emissions from the electricity generation sector.[1] This has largely been the result of shifts in energy markets from coal to natural gas and renewable energy sources, and carbon pollution reduction, clean energy, and energy efficiency programs enacted at the state level.[2] The most prominent of these programs is the Regional Greenhouse Gas Initiative (RGGI), a cooperative effort among nine northeastern and mid-Atlantic states to reduce carbon dioxide (CO₂) emissions from the power sector.[3] RGGI employs a cap-and-invest approach in which the participating states set a regionally uniform, decreasing cap on CO₂ emissions from covered power plants, periodically auction off emission allowances, and invest auction proceeds in other programs including end-use energy efficiency, renewable energy, greenhouse gas abatement, and direct customer electric bill assistance.[4] One study estimates that CO₂ emissions in the RGGI region would have been approximately 24 percent higher in 2015 but for the program, which took effect in 2009.[5] At the same time, it is estimated that, through 2015, RGGI generated approximately $2.9 million in net economic benefits,[6] and that the investment of RGGI allowance auction proceeds in 2015 alone will return $2.31 billion in lifetime energy bill savings for consumers.[7]

Over approximately the same period of time, however, CO₂ emissions from the transportation sectors in RGGI states have remained relatively level or have increased. Transportation accounts for 44 percent total CO₂ emissions in the region, more than any other sector.[8] Each RGGI member state has adopted a long-term GHG reduction goal, set by statute or executive order, or in climate- or energy-related plans, “generally consistent with achieving an 80 percent reduction of GHG emissions by 2050 from 1990 levels.”[9] Most states’ goals do not include sector-specific emission targets, but because transportation is the largest source of emissions in the region, shifting to a cleaner transportation system is a “critical component of the action needed to meet economy-wide goals and to avoid further catastrophic harms of climate change.”[10] RGGI states already employ a variety of programs aimed at decarbonizing transportation,[11][N1]  but have been considering whether to employ a cap-and-invest approach similar to RGGI or California’s multi-sector cap-and-invest program, which includes the state’s transportation sector.[12]

This paper first discusses the mechanics of RGGI and California’s cap-and-invest program generally, including how auction proceeds are invested. It then discusses the potential to use a cap-and-invest approach to mitigate GHG emissions from transportation in the Northeast and mid-Atlantic and addresses two key policy considerations: the type of fuels to be covered and the point of regulation. It concludes that, if properly designed, a cap-and-invest approach could achieve significant GHG reductions from transportation in the region and generate substantial funds for other GHG mitigation and climate change adaptation initiatives.

Opportunities to Address Climate Change in the Next Farm Bill

 

Sara Dewey,[2] Liz Hanson,[3] & Claire Horan[4]

This post is part of the Environmental Law Review Syndicate (ELRS). Original article can be found here.

Introduction

The Farm Bill affects nearly every aspect of agriculture and forestry in the United States. Therefore, its next reauthorization offers an important opportunity to better manage the risks of climate change on farms, forests, and ranches by supporting resilience practices that also offer greenhouse gas (GHG) emission reductions.

Agriculture is vulnerable to the impacts of climate change, including rising temperatures, changes in rainfall and pest migration patterns, extreme weather events, and drought. In addition to being heavily affected by climate change, agriculture is also a significant contributor to climate change. Agricultural practices are responsible for about eight percent of U.S. GHG emissions.[5] Estimates of total food system emissions, which include the CO₂ emissions from energy use and transportation, increase the agricultural industry’s proportion of U.S. GHG emissions to between 19 and 29 percent.[6]

To better align their practices with their long-term interests, farmers and ranchers can adopt practices that enhance their resilience, while also reducing GHG emissions, and increasing carbon sequestration. Many of these practices improve the long-term productivity and profitability of farms. For example, farmers are already adopting practices that reduce emissions or sequester carbon in the soil and in woody biomass while also improving productivity and resilience on their land.

This paper proposes a suite of practices that should be considered during the next authorization of the Farm Bill to improve on-farm efforts to adapt to and mitigate climate impacts. It is organized into four main sections. Part I provides background on the Farm Bill and the ways that the U.S. agricultural system contributes to GHG emissions. Part II provides an overview of opportunities for on-farm mitigation and adaptation. Many of the practices we recommend can reduce on-farm emissions and build a more resilient agricultural system. Part III identifies a set of metrics that we used to assess potential proposals. Lastly, Part IV summarizes how climate practices can be incorporated across titles and highlights three policy options.

The Case for Cap-and-Trade: California’s Battle for Market-Based Environmentalism

Theodore McDowell*

This post is part of the Environmental Law Review Syndicate (ELRS). 

The California Cap-and-Trade program has been a beacon of success for market-based environmentalism. The program masterfully incorporated the lessons learned from previous cap-and-trade initiatives by more precisely allocating emission allowances and by setting higher price floors for auctions. The ambitious emissions reduction target and extensive range of gases covered by cap-and-trade have resulted in a substantial decrease in greenhouse gas emissions across the State. But the program has recently been involved in contentious litigation, with the chief concern being whether the emission regulations exceed the authority of the California Air Resource Board. The recent Morning Star Packing Company v. California Air Resources Board decision ultimately upheld the program, providing California Cap-and-Trade with a new lease on life.[1] However, with recent federal policy demonstrating a marked shift away from ecological conservationism, the survival of the nation’s best hope for free-market environmentalism still hangs in the balance.

FERC Relicensing and Its Continued Role in Improving Fish Passage at Pacific Northwest Dams

 Skylar Sumner*

This post is part of the Environmental Law Review Syndicate (ELRS). 

I. Introduction

The history of the American west is inextricably intertwined with damming rivers.[1] Whether for navigation, irrigation, or hydroelectric power, nearly every American river has been dammed.[2] In fact, stretching back to the day the Founding Fathers signed the Declaration of Independence, determined Americans have finished an average of one large-scale dam every day.[3] Currently, there are at least 76,000 dams in this country.[4]

While these dams have vastly contributed to America’s efforts to settle the west, they have come with significant costs. Although these dams’ harms are varied,[5] one of the primary concerns among advocates in the Pacific Northwest is the dramatic impacts dams have on species of anadromous fish, particularly salmonids.[6] In the Columbia River basin, dams block salmon and steelhead migration to more than 55% of historically available spawning grounds.[7] Since many anadromous fish species in the Pacific Northwest are listed as either threatened or endangered,[8] the Endangered Species Act[9] (ESA) can be a valuable tool to induce voluntary dam removals by requiring the Federal Energy Regulatory Commission (FERC) to include costly fish passage upgrades in any relicensing proceeding.[10]

Northwest salmon advocates rejoiced in 2014 when, following a lengthy campaign from a coalition of tribal and environmental activist groups,[11] construction crews completed the largest dam-removal project in American history by removing both the Elwha and the Glines Canyon Dams.[12] Removing these dams started the process of restoring seventy miles of the Elwha River to natural flows that had not existed since construction of the dams first began in 1911.[13] Since the dams came down, the river’s ecological quality has improved at an astonishing rate.[14] In fact, salmon and steelhead populations in the Elwha River have already reached thirty-year highs.[15]

The tremendous success of freeing the Elwha cannot be overstated, but the dams required decades of activist toil to remove.[16] In contrast, removing the Little Sandy and Marmot dams from the Sandy River in Oregon was accomplished in only eight years.[17] There are certainly many core differences between these campaigns that help explain this discrepancy, but chief among these is the fact that Federal Power Act[18] (FPA) amendments incentivized the owner of the Little Sandy and Marmot dams to privately fund the removal, while the Elwha removal languished waiting on federal funding for over a decade.[19]

This Essay will discuss the statutory changes to the FERC relicensing process that have worked to improve fish passage at hydropower facilities in recent decades and will continue to fuel upgrades and dam removals in the future. Part II lays out an overview of the environmental requirements of FERC relicensing and analyzes the Bull Run Hydropower Project as an example of a successful dam removal that was prompted as a result of its owner pursuing relicensing. Part III then reviews the relicensing schedule for several dams in Oregon and Washington to discuss how these fish passage improvements will continue occurring for the foreseeable future.

The SB 32 Scoping Plan Update, Waivers, and ZEVs

Garrett Lenahan

This post is part of the Environmental Law Review Syndicate (ELRS). 

I. Scoping Plan Background

Two prominent pieces of Californian legislation that seek to address climate change are Assembly Bill 32 ("AB 32") and Senate Bill 32 ("SB 32"). AB 32 required California to reduce its greenhouse gas ("GHG") emissions to the 1990 level by 2020. It tasked the Air Resources Board with creating a Scoping Plan for reaching those levels. The original scoping plan contained a range of programs that would reduce GHG emissions from cars, trucks, fuels, industry, and electricity generation. SB 32 now requires the Air Resources Board to ensure that statewide GHG emissions are reduced to 40 percent below the 1990 level by 2030. The proposed Scoping Plan Update builds on the programs from the original Scoping Plan under AB 32 and includes some new ones.[1] Programs under the Proposed Scoping Plan include the Cap and Trade Regulation, the Low Carbon Fuel Standard, the Renewable Portfolio Standard, the Sustainable Community Strategies, the Sustainable Freight Action Plan, and the Mobile Source Strategy, among others.

 

The proposed Scoping Plan Update is comprehensive and commendable. However, it does lead to a few potential questions and issues. This paper will address two potential concerns regarding the transportation sector in particular. The transportation sector emits the most greenhouse gases of any economic sector in the state, so it is vital to reaching the SB 32 goal.[2] The first concern is whether the new administration under President Trump will revoke California's waiver to regulate tailpipe emissions and how that affects the Scoping Plan. The second issue about the Scoping Plan is whether California will be able to install adequate infrastructure across the state to accommodate the increased number of zero emission vehicles.

MS4 Regulation and Water Quality Standards

Matt Carlisle

This post is part of the Environmental Law Review Syndicate (ELRS).  

I. Introduction:

Storm water is a major polluter. As one judge put it, “Storm water runoff is one of the most significant sources of water pollution in the nation, at times ‘comparable to, if not greater than, contamination from industrial and sewage sources.’”^[1] Storm water “runoff may contain or mobilize high levels of contaminants, such as sediment, suspended solids, nutrients (phosphorous and nitrogen), heavy metals and other toxic pollutants, pathogens, toxins, oxygen-demanding substances (organic material), and floatables.”^[2] When it storms or rains, “storm water runoff carries these pollutants into nearby streams, rivers, lakes, estuaries, wetlands, and oceans.”^[3] This creates an immediate and dire need to regulate effluent from polluting storm water systems.

Municipal storm water regulation has and is continuing to become a regulatory farce. Sloppy legislative language and short cited court rulings have dulled the tools necessary to curb polluted effluent from contaminating municipal storm water. Due to the legislative carelessness and misguided case law, municipal storm water regulation is treated as almost exempt from the Clean Water Act (CWA) because municipal storm water is not required to strictly comply with water quality standards. This paper proceeds as follows. In part one, the discussion will focus on the regulatory mechanisms of industrial and municipal storm water. Part two will discuss the judicial interpretations of industrial and municipal storm water. Part three discusses the counter arguments to the Ninth Circuit’s decision in Defenders. Finally, part four concludes with the common sense interpretation of municipal storm water regulation.

Repurposing Ecolabels: Consumer Pressure as a Tool to Abate Human Rights Violations in International Fisheries

Andrew Miller

Andrew Miller is the 2017-2018 Senior Articles Editor for Ecology Law Quarterly. This post is part of the Environmental Law Review Syndicate (ELRS). 

[ Click Here to Comment ]

[ download PDF ]

Introduction

In March of 2015, the Associated Press (AP) published AP Investigation: Slaves May Have Caught the Fish You Bought.[1] It was the first in a series of articles the AP would publish over the next eighteen months detailing the squalor and oppression faced daily by thousands of Southeast Asian fishermen.[2] What caught readers’ attention, however, was not merely the unmasking of abuse.[3] It was the reference to Safeway.[4] It was the reference to Wal-Mart.[5] It was the reference to Fancy Feast.[6] It was the allegation that American consumers were complicit in the exploitation of foreign workers, and it was the knowledge that there were photographs to prove it.[7]

To date, the AP’s investigative team has helped free more than 2000 slaves in Southeast Asian fisheries, and has even uncovered similar abuse on American-flagged vessels.[8] Nevertheless, it is evident that the AP’s reporting has only scratched the surface of a deeply entrenched issue.[9] While it is difficult to quantify the scale of labor abuse in fisheries, scholars and agencies agree that fishing industry workers comprise a substantial portion of the 20.9 million people trapped in forced labor worldwide.[10]

Unfortunately, legal protections for fishery workers can be challenging to implement. Where regulatory protections exist, the burden is typically on a vessel’s flag state to administer and enforce those regulations.[11] Where a flag state cannot or will not enforce national or international law, the absence of ratified, binding legal frameworks frequently renders a port state’s authority to intervene murky.[12] As a result, flag and port state enforcement challenges have tremendous capacity to impede upstream control of the fishing industry and frustrate efforts to invoke legal protections for industry workers.

Where upstream control is ineffective, downstream consumer pressure may provide an alternative means of control. The underlying assumption is that rational, informed consumers will “vote with their wallets,” buying goods and services from responsible suppliers while severing the financial umbilical cord to noncompliant or irresponsible suppliers.[13] In theory, noncompliant suppliers must then either become compliant or perish in a competitive market. Therefore, demand-side programs that effectively correct information asymmetry—as ecolabel programs attempt to do—allow the market to influence producers’ actions without the need for states to implement or enforce command-and-control regulations.[14]

This paper will explore the potential for market tools to exert demand-side control on human rights and labor abuse in international fisheries. It will specifically examine methods to incentivize American seafood importers to better manage supply chains and de-select imports that are either untraceable or that may otherwise be linked to illegal, unreported, or unregulated (IUU) fishing. To that end, this paper will consider how demand-side tools—such as modified ecolabels—could influence how fisheries operate.

Part 1 of this paper will provide an overview of human rights abuse in the seafood industry. After discussing the role of slave labor in modern fisheries, Part 1 will examine the market penetration of slave-caught seafood in the United States and analyze the capacity of American markets to control how fish are caught. Recognizing that international fishing regulations are notoriously difficult to enforce, Part 2 of this paper will apply best practices of supply chain management and industry certification programs to the problem of labor abuse in fisheries. It will draw upon existing efforts to combat human rights and labor abuse in order to illustrate how an effective, integrated consumer-based program could be designed. The goal of this paper is not to advocate for any particular program design, but rather to demonstrate how consumer choice at home could influence how fisheries operate abroad.

It bears repeating that labor abuse in fisheries is a complex and multifaceted issue. At its worst, it may manifest as human trafficking, child labor, indentured servitude, or slavery.[15] In its simpler forms, it may involve the mistreatment of workers or the proliferation of hostile or threatening work environments.[16] It is important to recognize that no one solution will have the breadth or nuance to address every type of labor abuse; as such, this paper will not pretend to propose a catch-all solution.[17] Rather, this paper will explore the efficacy of one particular tool that could complement and buffer more nuanced solutions to individual types of abuse.

Navigating with an Ocean Liner: The Clean Water Rule, Trump’s Executive Order, and the Future of “Waters of the United States”

Kacy Manahan*

Kacy Manahan is the a clinical student at Earthrise Law Center at Lewis & Clark Law School and the 2017-2018 Symposium Editor for Environmental Law. This post is part of the Environmental Law Review Syndicate (ELRS). 

 

I. Introduction

The scope of the Clean Water Act’s jurisdiction has been controversial throughout the statute’s history. Reconciling the extent of Congress’ Commerce Clause authority with the reality of vast hydrological connections across the United States has been an unenviable task delegated to the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (the Corps). This post is a comprehensive, though certainly not exhaustive, examination of EPA’s and the Corps’ efforts to define the jurisdictional scope of the Clean Water Act. The issue is once again embroiled in litigation, and regulation is in the hands of an Administration seeking to depart substantially from prior policies. For that reason, I also discuss potential outcomes of the litigation and President Trump’s Executive Order.

Funding Adaptation: Financing Resiliency Through Sea Level Derivatives

 

Sevren Gourley*           

Sevren Gourley is the Editor-in-Chief of the Virginia Environmental Law Journal. This post is part of the Environmental Law Review Syndicate (ELRS). 

Coastal municipalities are struggling to address the uncertain future risks created by sea level rise. Conventional models of ex ante protection and ex post relief are both too costly and often insufficient to mitigate the impacts of climate change. Sea level derivative instruments provide an alternative model for financing adaptation projects that allow municipalities to transfer the risk of climactic uncertainty to parties willing and able to take a counter position. Two sea level derivative instruments—a sea level default swap and a nuisance flooding futures contract—are proposed. They are designed to reduce the risk that a given sea-level rise adaptation project will be either under or over protective while providing additional capital for project development. Due to the lack of a ready counterparty with obvious need to hedge, markets for these sea level derivatives may be susceptible to excessive speculation. However, trading would be subject to regulation by the Commodity Futures Exchange Commission—facilitating a funding adaptation for coastal municipalities.

I. Introduction

Regardless of public debate on the anthropogenicity of climate change, the existence of sea level rise is not in dispute. Although models have predicted that the U.S. economy will receive a net benefit as global temperatures rise,[1] the costs of sea-level fluctuation will be born disproportionately by coastal governments facing local impacts. Nuisance flooding—tidal flooding of private property and public infrastructure caused by an exceedance of historic tide levels—has become commonplace in coastal municipalities and is projected to increase in frequency.[2] In addition, there is a strong correlation between sea level fluctuation and storm related property damage. Even modest sea level rise magnifies storm impacts. Climate prediction models project a range of future increases in coastal storm surge frequency and intensity.[3] This is likely to hit coastal communities hard.

The costs of relief and repair can easily exceed municipal or even state government capacity because flooding often involves widespread correlated loss. Currently, ex post flood response spending falls under the Disaster Relief Fund overseen by the Federal Emergency Management Agency (“FEMA”).[4] Expenditures from the Disaster Relief Fund have been increasing as weather events causing more than one billion dollars in damage become more frequent.[5] In addition, the National Flood Insurance Program (“NFIP”)—a public-private partnership that federally backs insurers willing to cover flood damages—has struggled under its massive debt to the U.S. Treasury in recent years.[6] The inability of NFIP to charge actuarial risk premiums to insureds and the increasing magnitude of sea level related weather damages have pushed the program to the brink of failure.[7] NFIP is currently indebted to the U.S. Treasury for more than twenty-three billion dollars and has net exposure in excess of 1.2 trillion dollars.[8] In addition, problems with claim settlement following Hurricanes Katrina and Sandy have eroded public confidence in NFIP.[9]

Adaptation projects that mitigate flood risk are economically preferable to ex post disaster relief through FEMA and/or NFIP. One widely accepted estimate approximates that each dollar spent on hazard reduction saves society an average of four relief dollars.[10] Again, the challenge is local. Municipalities have been slowed by the political drag of raising large sums of money for projects that deal with uncertain future risks. For example, the City of Miami Beach, Florida, has developed a storm water management plan to raise streets, install water pump systems, and build up sea walls to mitigate the impacts of nuisance flooding.[11] The plan comes with a price-tag of 400 million dollars and a lot of uncertainty, two factors that have generated political pushback.[12] Although the Miami Beach plan builds in a 10 million dollar adjustment for uncertain increases over predicted absolute sea level, the adjustment could be an unnecessary over-protection or it could be insufficient to cope with sea level rise within the 20-year lifespan of the project.[13] Its wisdom remains uncertain.

An Autopsy of the Clean Power Plan

John Copeland Nagle*

[ Click Here to Comment ]
[ download PDF ]

The Clean Power Plan (CPP) was supposed to be great. The Environmental Protection Agency (EPA) celebrated its regulation as “a historic and important step,” “fair, flexible and designed to strengthen the fast-growing trend toward cleaner and lower-polluting American energy,” providing “national consistency, accountability and a level playing field,” and a demonstration “that the United States is committed to leading global efforts to address climate change.”[1] President Obama applauded it, too. The Clean Power Plan, he remarked, is “the single most important step America has ever taken in the fight against global climate change.”[2]

We’ll never know. The fate of the CPP was sealed a little after midnight on Wednesday, November 9, when the election results indicated that Donald Trump will serve as the next President. Congress, moreover, retained its Republican majorities in both the House and the Senate. The seat on the Supreme Court that had been vacant since Justice Scalia died in February will be filled by President Trump’s nominee, rather than by executive and regulatory power supporter Judge Merrick Garland.[3]

One way or another, the CPP is doomed. Any branch could wield the death blow. Congress could repeal the provision of the Clean Air Act (CAA), which obligates EPA to regulate greenhouse gas emissions.[4] President Trump or his executive branch appointees could kill the CPP by refusing to defend it in court, by settling with the states and other parties who oppose it, by withdrawing the rule for agency reconsideration, or perhaps through other actions.[5] Or the D.C. Circuit or the Supreme Court could strike down the CPP.[6]

So why bother beating up on the dead? My conclusion is that the CPP was probably legal, but that was precisely the problem. Multiple legal doctrines needed to be stacked on top of one another in order to sustain the rule. In other words, the CPP rests on the understanding that a statute enacted 47 years ago to reduce harmful air pollution also delegates lawmaking power to an agency that did not exist at the time to choose between two conflicting statutory provisions to regulate emissions of a categorically different kind of pollutant. And all this even though those regulations displace traditional state authority over energy generation and even though Congress refused to enact such a statute specifically authorizing such regulations. I will examine each of these issues in turn, and then explain why they are especially troubling when combined.