Ecology Law Currents

Is It Really a Huge Mistake? Choosing Between Carbon Fees and Cap-and-Trade

A Commentary on “The Huge Mistake – Climate Change Solutions 2009”

Juan Arturo Iluminado C. de Castro*

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In the video, “The Huge Mistake – Climate Change Solutions 2009,”[1] Laurie Williams and Allan Zabel (two highly experienced attorneys from the Environmental Protection Agency) appeal to both emotion and reason to convince viewers that the cap-and-trade program, embodied in the Waxman-Markey climate change bill,[2] is a huge mistake, and that carbon fees are the way to go.

Harnessing the Potential of the Clean Water Act to Address Ocean Acidification

Miyoko Sakashita*

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In the halls of Congress and at the climate conference in Copenhagen, the question of how we can agree to reduce greenhouse gas pollution looms large. Under the sea’s surface, the question is whether the carbon dioxide (CO₂) reductions will come soon enough. Each day the oceans absorb another 22 million tons of CO₂ from the atmosphere, altering seawater chemistry and making it more acidic. Ocean acidification is rapidly advancing, with harmful consequences for marine life and ocean ecosystems on the horizon. Yet, ocean acidification has received far too little attention in the public and policy debate around climate change. We need a fresh approach to the problem of ocean acidification, and there is no need to wait for a new climate law or treaty. Instead, the Clean Water Act offers a framework with the potential to begin to address this dire problem.

Student Review of Selected Panels at the California State Bar’s 2009 Environmental Law Conference at Yosemite

 

 

Jessica Intrator, Lala Wu, Holly Wagenet, Sarah Barker-Ball,

Camille Pannu, & Emily Jeffers*

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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.

Colorado, Centennial State at the Headwaters*

Justice Greg Hobbs, Colorado Supreme Court**

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Circumference

We gather here to learn and celebrate,

to greet dear friends and meet new ones,

to recognize those among us who have gained

our admiration for the circumference of their views

and the bounty of their good-natured insight.

In this treasured land of scarcity and opportunity,

we seek the wealth of learning from each other

the strength of understanding what we cannot know alone,

to honor our differences, avoid rancor, bridge difficulties,

welcome one another’s accomplishments.

And when the prairie morning peeps into the eastern sky

and when the mountain evening breaks a westerly glow,

when unexpected storms crack our certitude and drought

parches our creativity, then may the waters from your

source to our mouths bless, keep, and sustain us.

Colorado’s Winter Snow and Spring Melt Law

In 1861 at the outset of the Civil War, Congress carved Colorado out of four preexisting territories at the headwaters of four great watersheds: the Platte, Arkansas, Rio Grande and Colorado. Today, eighteen states and the Republic of Mexico rely upon spring melt from the snows of Colorado winters. Nine interstate compacts, two equitable apportionment decrees of the U.S. Supreme Court, and two treaties between the United States and Mexico allocate the waters of the Great Divide.[1] As a result, Colorado has two primary duties: to deliver almost two thirds of these waters to places outside of the state and to make the optimal use of the one third the state is entitled to consume.

A Framework for Energy Independence via Solar Hosting Farms

Raymond Marshall*

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Introduction

Imagine for a moment that you live in an apartment building, rent commercial space in a shopping center, lease office space in a building, own a house in a densely wooded area, or manage a government agency in a building that does not receive much sunlight due to surrounding structures. Now imagine that you want to purchase solar panels and install them on your premises in order to have some degree of energy independence.

The scenarios mentioned above are real-life examples of barriers that make it more difficult for consumers to use solar panels at their home or business. The first three scenarios represent a barrier that is caused by a lack of ownership. Tenants must have a landlord’s permission to install solar panels on the landlord’s property. Even if the landlord were amenable to this arrangement, tenants will likely choose not to install solar panels if they plan to relocate in a few years. The last two scenarios represent another type of barrier: insufficient sunlight for energy generation.

Fishing for Justice or Just Fishing?

Fraser M. Shilling*

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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.

Gray Wolves in the Northern Rockies Again Staring Down the Barrel at Hostile State Management

Jenny K. Harbine*

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Introduction

Once abundant throughout the contiguous United States, gray wolves in the American West were brought to the brink of extinction by the 1930s through one of the most effective eradication campaigns in modern history. As a result, in 1974 gray wolves were protected under the Endangered Species Act[1] (ESA). Due to intensive conservation efforts that included wolf reintroduction to the greater Yellowstone and central Idaho areas, the current wolf population in the northern Rocky Mountains has rebounded to approximately 1650. However, extreme hostility toward wolves continues to threaten the species’ survival in the region. This hostility is expressed in the state laws that will govern wolf management in the absence of federal protection under the ESA. Nonetheless, for the second time in a year, the U.S. Fish and Wildlife Service (FWS) is eliminating federal protection for northern Rockies gray wolves and relegating wolf management to the states. In so doing, FWS has approved state laws in Idaho and Montana that commit to maintaining only 100 to 150 wolves per state. The result is that the northern Rockies wolf population could plummet to an unsustainable level, even in the short term.

Food Justice and Food Retail in Los Angeles

Mark Vallianatos*

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Food justice is the notion that everyone deserves healthy food and that the benefits and risks associated with food should be shared fairly. The concept borrows its distributional equity framework from the environmental justice movement, its focus on access to food from the community food security movement, and its interest in food environments from research in the public health and food systems fields.[1] Unfortunately, disparities in access and health mean that food justice is currently an aspiration rather than a reality in many low-income communities.

This article examines the food retail landscape in Los Angeles and briefly summarizes some programs that could increase food access and quality in underserved communities. In describing these opportunities, this article shows how L.A. residents, advocates, and policy makers have begun and can continue to survey their food environments, attract more supermarkets and hold food retail firms accountable; partner with corner stores to offer more healthy choices; limit fast food restaurants and improve nutrition information at chain restaurants; promote healthy mobile food vending; and establish farmers’ markets and re-envision these markets as hubs for local food distribution. Some of these efforts have been underway for years, while others are new experiments. Together they comprise a diverse set of interconnected measures to promote food justice by improving food retail in low-income areas.

Why 350? Climate Policy Must Aim to Stabilize Greenhouse Gases at the Level Necessary to Minimize the Risk of Catastrophic Outcomes

Matt Vespa *

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Introduction

After years of inaction, the possibility of substantive federal and international climate policy is finally in sight. With so much time already squandered, insufficient action today will foreclose the ability to prevent catastrophe tomorrow. If we are to avoid saddling future generations with extreme economic and environmental hardships, emerging climate policy must ensure a high probability of keeping future warming below dangerous levels.

Spreading the Water Wealth: Making Water Infrastructure Work for the Poor*

Patrick McCully and Lori Pottinger **

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Want of clean water, decent sanitation, and adequate food and energy strips people of their dignity and their most basic rights. Inequitable access to water, especially for growing crops, is a major factor in global poverty and a death sentence for millions each year.

According to the World Bank, “[t]he ‘easy and cheap’ options for mobilizing water resources for human needs have mostly been exploited.”[1] If the World Bank were right, this would be a depressing message for the 1.1 billion people without easy access to safe water.[2] The good news is, the Bank is wrong. Many technologically easy and relatively cheap options for water provision exist that can help lift hundreds of millions of people out of poverty, end widespread hunger, and reduce the daily workload of women and children. The bad news is that the World Bank-led large-dam lobby is aggressively supporting a resurgence in water mega-projects.[3]

An Argument For Placing Logging Roads Under the NPDES Program

Kevin Boston & Matt Thompson *

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Introduction

Recent judicial decisions addressing the impact of forest management on water quality suggest that EPA’s clarification of regulations under the Clean Water Act (CWA) may become increasingly important. Courts currently must decide whether water pollution from forest roads and their drainage systems meets the criteria for point source pollution, rendering such sources subject to National Pollution Elimination Discharge System (NPDES) permit requirements under the CWA. Two federal district courts recently reached conflicting decisions regarding this very issue. In Environmental Protection Information Center v. Pacific Lumber Co. (“EPIC”), the court found that ditches and culverts associated with a forest road drainage system fall within the CWA’s point source category.[1] However, in Northwest Environmental Defense Center v. Brown (“NEDC”), a case now on appeal in the Ninth Circuit, another district court reached the opposite conclusion.[2] Differences in the rulings center largely on whether the disputed pollutant—fine sediment generated from forest roads—is discharged into streams naturally or as a result of human activity.[3]

Restoring Public Trust in the Public Lands: An Agenda for the New Administration

Eric Biber, Holly Doremus, Dan Farber, Rick Frank, and Joseph Sax *

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Federally-owned and managed public lands occupy approximately thirty percent of the land area of the United States, and anywhere from forty-five percent to over eighty percent of the land area of many of the states of the West, including California.[1] Those federal lands are significant sources of economically important natural resources for the United States, including timber, rangeland, and minerals. In particular, they are an important source of energy resources for the United States, both fossil fuel (oil, natural gas, and coal) and renewable (wind, solar, geothermal).[2] Many communities in the West continue to rely on the extraction of these resources as important components of their economies.

But these lands are not only important for the exploitation of natural resources. They provide unparalleled recreational opportunities for a wide range of Americans, including fishing, backpacking, skiing, and off-road vehicle use. Indeed, those recreational opportunities have become central to the quality of life of many of the residents of rapidly growing Intermountain West cities such as Denver, Salt Lake City, Reno, Boise, and Missoula, and they are a significant reason why so many people have moved to those cities, as well as many rural areas in the West.[3]

A third quality of our public lands system, is the role that federal public lands play as a reserve system: perhaps to an extent unmatched in the rest of the world the federal public lands system protects open space, amazing scenery, functioning ecosystems, wilderness, and endangered species.[4]

A Challenge for the Obama Team: Put Science and Federal Scientists to Better Use

Holly Doremus *

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Introduction

It’s no secret that the outgoing George W. Bush administration has been hostile to environmental interests. By all accounts the Obama administration will be different on that score (as on many others).

Before it can concentrate on its own new environmental priorities, though, the new administration will have to root out the counterproductive work of its predecessor. To some extent that’s just politics as usual and expected. Some degree of “policy whiplash” legitimately accompanies every presidential transition.

But this transition will be more complicated than usual. As it works to reverse a large number of specific Bush administration decisions, the Obama environmental team will also be battling a systemic problem at key federal environmental agencies. Career federal environmental scientists at both regulatory and research agencies are thoroughly demoralized, and a wide range of observers agree that science is not being used effectively in environmental policy decisions. The morale problem will be helped by case-by-case reversal of some of the most extreme Bush-era anti-environmental actions, but morale will not be fully restored until institutional systems are in place to make better use of scientific evidence and scientific personnel. That sounds easy, but it will take more than simply declaring a commitment to scientific integrity.

Stopping the Conversation: Amended ESA Section 7 Regulations Put Species At Risk

Eric Biber and Cynthia Drew *

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The Endangered Species Act (ESA) is the primary legal tool in the United States for the protection of biodiversity. Since its enactment in 1973, it has played a central role in efforts to halt the decline of native species throughout the country. Central to the ESA’s regulatory structure is Section 7 of the Act, which requires federal agencies to consult with federal wildlife agencies to insure that their actions do not “jeopardize” the existence of species listed for protection under the Act, or “adversely modify” designated critical habitat for listed species.

The outgoing Bush Administration proposed significant changes to the regulations implementing Section 7 of the Act on August 15, 2008.[1] Those changes greatly reduce the scope of Section 7’s application in two major ways. First, they reduce the analysis of federal actions pursuant to Section 7 by making it harder to connect federal actions to potential harm to listed species. Second, they give federal agencies the ability to determine whether their actions might harm listed species and accordingly whether Section 7 consultation should occur at all.