Patrick Parenteau *
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In a recent speech, former Vice President and Nobel laureate Al Gore challenged the nation to produce 100 percent of its electricity from non-carbon sources within ten years.[1] Linking the issues of climate, energy, economy and national security, Mr. Gore stated: “We’re borrowing money from China to buy oil from the Persian Gulf to burn it in ways that destroy the planet. Every bit of that’s got to change.”
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Trains carry goods 94 percent more efficiently than do trucks. California should therefore encourage firms to ship goods on trains, not trucks. Yet the California Air Resources Board (CARB), in its draft Scoping Plan, ignores the huge gains the state could enjoy if it simply used more trains.[1]
Catherine J. LaCroix *
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The immediate and short answer to the question in the title is no. It will never be time for an articulated federal land use policy; the tradition of local control of land use is simply too strong. But consider, for a moment, what this local control policy has produced: a legacy of massive, auto-dependent suburban sprawl nationwide. When we consider that more than one-third of greenhouse gas emissions in the United States come from transportation[1] and that land use patterns perpetuate auto-dependency,[2] we may find that it is time to raise the question: might there be value in a federal land use policy, set by Congress, to attempt to turn the tide of sprawl? The idea deserves consideration.
Continue reading "Land Use and Climate Change: Is it Time for a National Land Use Policy?" »
Lo Sze Ping *
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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.
Ruidong Jin and Fan Rui *
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This was the question asked by Natural Resources Defense Council (NRDC) when we first entered China early in 1998. To our surprise, we found few people interested in energy efficient buildings. In contrast with the aggressive energy standards for buildings in the United States, few Chinese provisions expressly pertained to energy efficiency in its numerous building codes and standards. At that time, the whole country had only one national building standard dealing with energy savings, which covered only residential buildings in the northern zone and was poorly implemented in any case.[1]
The lack of concern about energy use was endemic, apparent not only in the building sector, but also in most of China’s industrial sectors. The only good news was that a few innovators within the Ministry of Construction were able to create and promote a few efficient building pilot projects in Beijing and Tianjin, but none of these projects were successful enough to bring policy makers’ and the public’s attention to the need for energy efficient buildings.[2]
Consequently, our first question was answered rather quickly: China’s buildings were inefficient and little progress was being made to change this. From here, we began to ask another question: how can we develop sufficient support in China for building energy efficiency programs?
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China’s economic and social development has had severe environmental impacts: from land and water resource deterioration to becoming the world’s largest greenhouse gas emitter, pollution has resulted in total losses equivalent to 3.05 percent of China’s Gross Domestic Product (GDP).[1]
Under a strategic plan to pursue a sustainable development path, China has passed a plethora of environmental laws, standards, and regulations in recent years, and adopted ambitious targets aiming at reducing major pollutants by ten percent and improving GDP energy efficiency by twenty percent in its Eleventh Five Year Plan (2006-2010).[2] These ambitious goals were set despite clear evidence that China’s environmental governance system has struggled with enforcement, especially at the local level. Due to a lack of enforcement, less than one percent of China’s urban residents live in cities that meet World Health Organization air quality standards.[3] Failure to enforce environmental regulations has also contributed to rapid motorization and the growth of polluting and energy-intensive industries, undermining GHG mitigation achievements made in other countries of the world.
A breakthrough in dealing with the problems of China’s high speed growth occurred in March 2008. In recognition of the economic and humanitarian need to improve environmental governance, the National People’s Congress upgraded the vice-cabinet level State Environmental Protection Administration (SEPA) to the cabinet level Ministry of Environmental Protection (MEP).[4] This promotion establishes a basis for building environmental governance capacity through increasing staffing and budgets; increases attention paid to environmental and energy policy integration at all levels of government; and continues efforts to internalize the economic impacts on human health and environmental externalities caused by traditional fuels combustion. This paper discusses institutions which are responsible for environmental governance in China and opportunities to restructure these institutions to integrate environmental concerns into China’s national policy-making process and increase enforcement and compliance.
Continue reading "Enhancing China’s Environmental Governance: Challenges and Opportunities" »
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Earlier this year, the U.C. Berkeley School of Law’s California Center for Environmental Law & Policy (CCELP) sponsored and hosted a major conference, “California & the Future of Environmental Law & Policy.”[1] The purpose of this successful event, which brought together government policymakers, practicing attorneys, scholars and students, was to explore California’s leadership role—regionally, nationally and globally—in formulating and implementing effective environmental policy.
The CCELP conference focused on the most critical environmental challenges facing California, the United States and the international community. Panels of experts debated issues of climate change regulatory policy, alternative energy resource development, ocean and coastal issues, necessary linkages between regional land use and transportation policy, water allocation in an era of increasing scarcity, the so-called “Green Chemistry” movement’s efforts to reform hazardous waste policy, and the potential and limitations of litigation as a tool of climate change policy.
Another highlight of the conference was the diverse group of plenary speakers: Peter Gleick, president of the Pacific Institute, who spoke on the role water conservation can play in addressing looming domestic and international water shortages; Jared Huffman, environmental lawyer and advocate-turned-state legislator, who shared his environmental vision and platform; and Nobel Prize winner Stephen Chu, director of the Lawrence Berkeley Laboratory at U.C. Berkeley, who offered his sage commentary on the energy-related challenges facing California and the world.
Several of the stimulating and insightful presentations from this conference are distilled in the articles, authored by conference participants, found in this issue of Ecology Law Currents. I commend them to your attention.
In the same spirit, I offer these introductory comments to summarize my own thoughts—first presented at the conclusion of the CCELP conference[2]—as to how well (or poorly) California has served as national and international leader when it comes to environmental law and policy. The bottom line: in some instances, California has more than lived up to its billing as environmental pioneer and visionary—the envy of the national and international community. In other environmental policy contexts, California gets better marks than the federal government and many of its sister states, but is merely keeping pace with much of the international community. In still others, the State of California has underperformed and, indeed, has much to learn from other states and nations.
Continue reading "California & the Future of Environmental Law & Policy" »
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The title of the speech is from a presentation titled “Can California’s Water Problems Be Solved?” but, in retrospect, this rhetorical question seems a bit ridiculous.[1] Of course California’s water problems can be solved. The important questions to ask here are not about the possibility of finding a solution, but rather the probability of and strategy by which to do so: a more accurate title may have been “Will California’s Water Problems be Solved?” or “How to Solve California’s Water Problems” or “Does California Have a Water Problem?” or “A Sustainable Vision for California’s Water” This short article will touch on all of these permutations.
Continue reading "Can California’s Water Problems Be Solved?" »
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Climate change litigation is booming. The past five years have witnessed a proliferation of global warming lawsuits brought under an array of novel legal theories.
This article focuses on the subset of global warming cases involving “public nuisance” claims. In those cases, various plaintiffs (including state governments, environmental groups, Mississippi landowners, New Yorkers, and Alaskan villagers) have brought tort claims against members of the oil, automobile, and electric utility industries under the theory that the targeted defendants’ carbon dioxide (“CO2”) emissions contribute to the public nuisance of global warming. To date, these lawsuits have proved uniformly unsuccessful. Four federal district courts have entertained such claims, and all four courts have dismissed for lack of justiciability.
Continue reading "Global Warming Tort Litigation: The Real “Public Nuisance”" »
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Accelerated climate change is the preeminent environmental and economic issue of our time. Unless we change course now, it will be the preeminent issue for the next generations also. Recognizing the situation, the Legislature passed Assembly Bill 32, California Global Warming Solutions Act of 2006.[1] This law put California at the forefront of taking action to combat global warming by establishing aggressive goals for reduction of greenhouse gas (GHG) emissions. The goal of AB 32 is to reduce our greenhouse gas emissions to 1990 levels by the year 2020. We cannot just slow down the rate at which GHGs are being emitted—we must go further and in effect turn back the clock.
William M. Chamberlain *
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Once again, Boalt Hall’s Ecology Law Quarterly is breaking new ground in the provision of timely and useful legal analysis on environmental topics. We are pleased to introduce Ecology Law Currents, an online journal that will provide the opportunity to see the views of several authors on topics of current interest. This first issue, exploring the important question whether nuclear power can and should be part of the solution to climate stabilization, allows ELQ to provide a variety of views without requiring the many months that normal law journal writing and editing consumes. The new format will provide access to this interesting debate more quickly, and regular updates of this sort of debate are also possible as new information becomes available. Plainly the purpose is not to displace more rigorous legal analysis of important environmental legal topics, but rather to provide a new and more accessible introduction to current issues, some of which may then be followed up with more traditional articles in ELQ or other journals.
Tyson Smith *
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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.
Continue reading "Licensing the Rebirth of Nuclear Power: A Primer" »
Fred Bosselman *
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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]
Continue reading "Resolving the Spent Fuel Issue for New Nuclear Power Plants" »
Karl S. Coplan *
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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]
Continue reading "The Externalities of Nuclear Power:
First, Assume We Have a Can Opener . . ." »
California State Assemblyman Chuck DeVore *
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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.
Continue reading "Relative Risk: Global Warming and Imported Fossil Fuels vs. Nuclear Power" »
Peter V. Allen *
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The recent enactment of SB 97[1] has codified the California Attorney General’s argument that increased greenhouse gas emissions and their effects constitute an environmental impact that must be considered by a permitting agency under the California Environmental Quality Act (CEQA).
This new measure will make many CEQA reviews more complex, and will require more costly mitigation measures for many projects, but it also provides some potential opportunities, particularly for renewable energy developers. This Article looks at the implementation of SB 97 and some of its possible ramifications.
Continue reading "Greenhouse Gas Emissions under CEQA – Costs and Opportunities" »
Gregory Scott Crespi *
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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.
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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.
Ecology Law Currents welcomes submissions from academics, practitioners, policy makers, and students. Submissions should be on current environmental issues or cases. All submissions must be original, previously unpublished works and can be in the form of articles, essays, commentaries, or responses to articles published in ELQ. All pieces are searchable on Hein Online, LexisNexis and Westlaw, and available in PDF reprint format as well as on the Currents website.
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