The Environmental - Environmental Law Institute

Transcription

Remembrance: Stewart Udall, Founding Father
Volume 27, Number 3 • May/June 2010
The Environmental
FORU M
®
Advancing Environmental Protection Through Analysis • Opinion • Debate
Perchlorate: Not Only Rocket Science
Footprints
Five Steps to
Lower Toxics
Moral Limits
State Versus Feds
On Clean Air Policy
Upsetting Offsets
Just a Way for Rich
To Avoid Change?
The Policy Journal of the Environmental Law Institute®
Endangered Species Deskbook
Second Edition
SPRING 2010
By Lawrence R. Liebesman and Rafe Petersen
The Endangered Species Deskbook is a comprehensive
reference to one of the most complex and heavily
litigated environmental statutes ever enacted by the U.S.
Congress. The Endangered Species Act, passed in 1973,
requires all federal departments and agencies to
conserve endangered and threatened species by utilizing their authorities in furtherance of the act’s purposes.
Because the ESA takes a broad approach to species
protection, it has had major impacts, especially on
private property rights and economic development. It
has also been a lightning rod for debate over human
impacts on the biodiversity of the U.S. ecosystem. More
recently, the effects of climate change on imperiled
species have become hotly contested as Congress
considers legislation intended to combat global warming.
ELR
THE ENVIRONMENTAL LAW REPORTER
R
ENDANGERED SPECIES DESKBOOK 2ND EDITION
Lawrence R. Liebesman
This new edition of the Deskbook updates the previous
edition’s comprehensive discussion of the law by
adding a new chapter on climate change and addressing the latest ESA-related developments, such as the
listing of the polar bear under the ESA. This second
edition also includes appendixes that detail key laws,
policies, regulations, and contact information for easy
reference.
Holland & Knight
Rafe Petersen
Holland & Knight
ENVIRONMENTAL LAW INSTITUTE
By explaining the ESA’s complicated history and implementation—along with ensuing agency regulations
and court decisions—the Deskbook provides a practical guide for interpreting the Act. It is particularly
valuable in outlining the steps that are needed for compliance with ESA and agency regulations. Like its
predecessor, this new edition offers a wealth of information for practitioners, policy makers, and all citizens
interested in the issues surrounding species conservation.
Biographies
Lawrence R. Liebesman, partner with the law firm of Holland & Knight, has more than thirty years experience as an environmental attorney and litigator. He is a frequent author and lecturer on environmental
topics and has participated in landmark Supreme Court cases under the Clean Water and Endangered
Species Acts. Rafe Petersen, also a partner with Holland & Knight, primarily practices in the area of environmental compliance and litigation, with an emphasis on the Clean Water Act, the Endangered Species Act, the
National Environmental Policy Act and resource issues.
To order, call 1-800-621-2736, or visit www.eli.org
Price $109.95 • 350 pp.
ELI Associates receive a 15% discount
T
h e
B
r i e f
Unseen Hand | Reducing Footprints
❧ Headnote: Science, regulation, and environmentally preferable
purchasing programs are intensifying, driving the move toward greener
chemicals. A multi-part benchmark can help companies reduce business
risk as they manage the transition.
By Richard Liroff
Investor Environmental Health Network
Ralph
Butler
With Another View by Kathy Gerwig of Kaiser Permanente
Page 24
Geography | The Moral Limits of Jurisdiction
❧ Headnote: As the states and the public face new rules on emissions
under the Clean Air Act, the authors find that environmental policy devoid
of economic feasibility equals ethical bankruptcy by policymakers to the
detriment of citizens and their economic liberty.
By Harold G. Leggett and Beau James Brock
Louisiana Department of Environmental Quality
Page 32
Cover Story | It’s Not Only Rocket Science
❧ Headnote: The perchlorate story follows the arc of other major
controversial chemical management challenges, such as dioxin, where
the initial focus on end-of-pipe controls missed key sources in the
environment.
By Andrew Rak
Noblis Center for Sustainability
Henry
Payne
With Another View by Samuel Kounaves of Tufts University
Page 38
Remembrance | Founding Father
❧ Headnote: Stewart L. Udall, who died on March 20 at the age of 90,
was one of the prime movers of the modern environmental movement,
building a firm legal and policy foundation.
Page 44
T
h e
B
r i e f
The Forum | The Upset About International Offsets
Page 48
❧ Headnote: The notion of offsets for global warming pollutants is a perfect
win-win for the environment, or so it seems at first glance. The Clean Development
Mechanism of the Kyoto Protocol allows emitters in the rich countries, which face
mandatory reductions in greenhouse gasses, to finance projects in the developing
world, which has no required cutbacks and where reductions can often be made
more cheaply. But early on analysts pointed out that a key need is to prove that the
reduction would not have occurred in a business-as-usual context. Another problem
is to monitor the offsets to ensure that they continue over time, which particularly
affects forestry-based projects. And some have criticized the practice at a basic
level, accusing developed countries of evading reductions at their facilities and thus
undermining a global movement.
Colu m n s
The Federal Beat.................................
8
By Margaret Kriz Hobson
An Economic Perspective ................. 16
By Robert N. Stavins
All of the parties in the chemical safety debate agree that
the time has come to revamp TSCA.
South Korea and Mexico will host meetings that could
help climate policy.
Around the States.............................
Science and the Law ......................... 18
10
By John Pendergrass
By Craig M. Pease
A high level official for economic development would
be something new in the states.
In California, a web of natural and human processes
has also ensnarled science.
In the Courts..................................... 12
The Developing World ..................... 20
By Richard Lazarus
By Bruce Rich
Environmentalists have lost all 16 NEPA cases on the
merits, boding ill for this term’s decision.
When having a sustained supply of elephants was a
matter of state security.
The Business of Environment............ 14
Notice & Comment.......................... 22
By Elliott P. Laws
The view that the school was putting children
at risk turned out not to be the case.
By Stephen R. Dujack
Counting on scientists to save the world from climate
change misunderstands the history of technology.
In the Literature: Tracy Mehan on science, the environment, and political reality — Page 6
ELI Report: Bringing together resource managers in former warzones — Page 54
Closing Statement: Leslie Carothers on Earth Day at 40, and a Look Ahead — Page 60
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M ay / J une 2 0 1 0 ❧ Page 5
I
n
t h e
L
i t e r a t u r e
and International Environmental
and Scientific Affairs from 1985 to
1994.
In Negotiating Environment and
Science: An Insider’s View of InternaBy G. Tracy Mehan III tional Agreements, from Driftnets to
the Space Station, Smith relates the
story of eight talks with which he
unching with a former col- not make sense. The stark choice is was intimately involved, including
league, I mentioned that I was between privatization/regulation, or the London agreement to amend
going to teach a course on in- no action at all.
the Montreal Protocol on Substances
ternational environmental law.
Attempts to create a property that Deplete the Ozone Layer, the
My friend’s quick response: “Is rights regime in fisheries, through international space station agreethere any?”
transferable individual fishing quo- ment, the U.S.-Canada acid rain
Good question. With marine fish- tas, have been successful, but these agreement, and two pacts relating to
eries crashing, mercury pollution cy- programs have usually been within a marine fisheries management. These
cling around the globe, and a variety nation’s sovereign borders. Yet, many last include the so-called “Bering Sea
of mega-fauna going extinct in all the global commons issues still require a Donut Hole,” a decimated pollock
seven seas, one could be forgiven for regulatory approach, which is where fishery outside the exclusive economtaking such a dim view. The global international diplomacy and law ic zones of both the United States
commons is threatened by the lack of come into play.
and Russia.
settled, enforceable norms in terms
The modern environmental era is
He also guided to completion
of stewardship or sustainable devel- still very young in the great scheme agreements on scientific cooperation
opment or exploitation.
of things, no more acutely than in with the Soviet Union, management
The traditional textbook respons- international environmental law. It is of the Porcupine caribou herd which
es to the Tragedy of the
migrates in and out of the
Commons have been either
Arctic National Wildlife
Negotiating Environment and
privatization or regulation
Refuge and across the borScience: An Insider’s View of
of the resources, although
der into Canada, and an
International Agreements, from
the research of Elinor Osagreement linking human
Driftnets to the Space Station,
trom of Indiana University
rights and environmental
by Richard J. Smith. Resources
has revealed that there are
issues.
for the Future; 167 pages;
actually a plethora of colSmith discusses each
$27.95
laborative approaches to
negotiation in a separate
resources management alchapter, within which he
ready in play around the
also divines lessons from
world.
each case. He concludes the
Ostrom, who earlier
book with a summing up of
this year became the first
all the lessons learned and
woman to win the Nobel prize in fortuitous that Richard J. Smith, one offers some critical observations on
economics, has demonstrated that of America’s most experienced prac- the handling of negotiations on the
user-managed fish stocks, pastures, titioners in the field of international Kyoto Protocol that are of timely
woods, lakes, and groundwater ba- environmental and scientific diplo- import. To that end, Smith’s story
sins, in many countries and cultures, macy, has written his account of the is quintessentially political, but not
often work out better than standard negotiations for several recent break- partisan, in the service of sound scitheories predict. Resource users are through agreements and treaties that ence, policy, and law.
able to establish norms of behavior, paved the way for new approaches to
“To conclude a viable environsophisticated rules for decisionmak- managing global resources.
ment or science agreement, all sides
ing, and enforcement mechanisms.
Smith served in the U.S. Coast in a negotiation need to be convinced
Scale, however, does matter, be it Guard for four years before joining that the commitments being undergeographic, demographic, or indus- the Foreign Service. He held a variety taken are based on sound science as
trial. In the case of transboundary of permanent and acting positions it is understood at the time of the neatmospheric pollution or ocean fish- at the State Department, eventually gotiation, while recognizing that in
eries, implementing a strategy of col- becoming principal deputy assistant most instances the relevant scientific
laborative management simply does secretary in the Bureau of Oceans knowledge is still evolving,” he says.
A HEALTHY RESPECT
Science, the Environment, Political Reality
L
The politics is both antecedent to
and inherent in the intergovernmental process leading up to the negotiations with other nations. Sustained
interaction with stakeholders such as
fisheries interests, NGOs, industrial
companies, and congressional staff is
essential.
“Much of the most important
work in reaching an international
agreement takes place before a U.S.
negotiator begins formal talks with
his or her foreign counterparts,”
Smith says. “It helps greatly if the
U.S. negotiator is named early and is
engaged throughout the interagency
process.”
Smith believes that keeping in
touch with both Alaskan fishermen
and concerned environmental groups
proved critical to maintaining Senate
support in the case of the driftnet
agreement with Japan, even in the
face of hostility from the imposing
senator from Alaska, Ted Stevens.
Smith detected trouble for the
Kyoto Protocol from the very beginning. “For example,” he notes, “before the Kyoto meeting, a designated
U.S. chief negotiator did not develop
over time a productive dialogue with
Congress and with the domestic
groups that would be affected by the
protocol.”
Smith’s approach to international
negotiation counters the stereotype
of diplomats who do not care about
or understand public attitudes. Instead, he offers a how-to-manual on
conducting high-level diplomacy in a
democratic mode with integrity and
a healthy respect for science, the environment, and political realities.
Nineteenth Annual ELI
Eastern Boot Camp
on Environmental Law®
November 10-12, 2010
Offices of K&L Gates
Washington, DC
“The faculty and
curriculum are top
notch. I am going back
to my firm to find out
why more environmental associates have not
been to Boot Camp.”
“A very good course
that will be greatly
helpful to me in
beginning my environmental law practice.”
G. Tracy Mehan III
is Principal with The
Cadmus Group, Inc.,
an environmental consulting firm. He is also
an Adjunct Professor
at George Mason University School of Law.
He may be contacted
at tracy.mehan@cadmusgroup.com.
M ay / J une 2 0 1 0 ❧ Page 7
Th e
By Margaret Kriz Hobson
Finally, Real Toxics
Safety Regulation?
A
t a time when the climate change
debate has nearly eclipsed congressional interest in other environmental
issues, Senator Frank Lautenberg (DNew Jersey) is putting the finishing
touches on a bill aimed at protecting
the public from potentially dangerous
chemicals found in everyday products.
Lautenberg is proposing to overhaul
the Toxic Substances Control Act, the
34-year-old law that contains so many
loopholes, according to the Government Accountability Office, that federal regulators have been unable to use
it to control hazardous chemicals.
The toxics law allows chemical makers to market new substances without
first proving that they are safe. As a
result, roughly half of the applications
for new chemicals that the Environmental Protection Agency receives under TSCA contain no scientific safety
studies, according to a February report
by EPA’s inspector general. Once a
chemical is in commercial use, regulators can’t require companies to test
the substance unless they can prove
it presents a significant risk to public
health. Roughly 80,000 chemicals are
in commercial use, but only 200 have
been required to be tested.
The law’s impotence has been apparent since 1989, when EPA tried
to ban some uses of asbestos based on
dozens of studies linking the chemical to deadly respiratory illnesses. Two
years later, however, a federal court
Fe de r a l
Be at
ruled that ambiguities in TSCA pro- to use that data to determine which
hibited the ban. At the time, Congress chemicals should be extensively tested
shrugged off calls to strengthen the for safety. The public advocacy group
law, leaving EPA regulators with little Safer Chemicals Healthy Families
power.
wants lawmakers to phase out the use
But in recent years, Americans have of a category of chemicals known as
become increasingly alarmed about “persistent, bioaccumulative, and toxthe dangerous chemicals found in ic” substances, which include dioxin,
consumer products. “The American mercury, lead, and cadmium.
people are more and more concerned
Meanwhile, the bad publicity trigabout chemicals ending up in their gered by the reports has convinced
bodies,” Lautenberg, the chairman chemical makers and oil and natuof the Senate Subcommittee on Su- ral gas companies that provide the
perfund, Toxics, and Environmental building blocks for most chemicals to
Health, argued at a recent hearing. support changes to TSCA. Industry
“And parents in particular are dis- executives also worry that EPA’s inmayed that the government is power- ability to regulate problem chemicals
less to require testing of chemicals that has opened the door to state and local
are going into our children’s bodies.”
governments, who are passing a patchThose fears were heightened late work of conflicting laws that will be
last year when the Centers for Dis- expensive for the companies to meet.
ease Control and Prevention reported However, the manufacturers favor a
that hundreds of potentially danger- more-limited, chemical-by-chemical
ous chemicals used in fire retardants, approach to controlling hazardous
plastic hardeners, and
substances.
non-stick
coatings
At the recent
All of the parties in the hearings, Lautenberg
were found in huchemical safety debate described his upcomman blood and urine
samples.
agree that the time has ing bill, known as the
All of the parties
Kid-Safe Chemicals
come to revamp TSCA Act, as “an invitation
involved in the chemical safety debate agree
for all to play a part.”
that the time has come to revamp He called on Republicans to come
TSCA and the Obama administra- to the table to help negotiate a final
tion ranks modernizing the chemical package. A similar measure is expectsafety law as one of its top priorities. ed to be introduced in the House
Last fall, EPA Administrator Lisa by Representative Bobby Rush (DJackson announced a set of principles Illinois), who chairs the House Enfor modernizing the statute. Jackson ergy and Commerce subcommittee
asked Congress to require manufac- on commerce, trade and consumer
turers to prove that their chemicals are protection.
safe before being allowed to market
Lobbyists from both sides of the
them. She also asked for the authority issue had hoped to begin hammering
to regulate chemicals that do not meet out compromise chemical safety legisscientifically set safety standards.
lation early this year. But they concede
Public health groups and environ- that the climate change debate has
mentalists cite studies on the failings made it nearly impossible for Congress
of the toxics law as evidence that the to concentrate on other environmenCongress should give the agency even tal priorities. As a consequence, expect
more powers to control chemical safe- the chemical safety bill to be waiting in
ty. At a February hearing, Kenneth the wings for next year.
Cook, president of the Environmental
Working Group, called on Congress Margaret Kriz Hobson is the environment and
to authorize extensive monitoring of energy writer for the National Journal. She can
chemicals in adults and newborns and be reached at mkriz@nationaljournal.com.
COMING SOON
AIR POLLUTION CONTROL LAW
2ND Edition
Arnold W. Reitze, Jr.
The most comprehensive, up-to-date guide to and analysis of the Clean Air Act (CAA) will be published in 2010 by the
Environmental Law Institute. Authored by University of Utah Prof. Arnold W. Reitze, Jr., this second edition of Air
Pollution Control Law explains the legislative provisions, regulatory requirements, and court decisions that comprise
the body of air pollution control law.
In 20 detailed chapters, with over 20,000 useful references, Professor Reitze provides a thorough, understandable guide to the legal, technical, scientific, and policy
issues surrounding the CAA. No other book so
thoroughly summarizes in one volume the complex yet
vitally important maze of statutory provisions, regulations, and permitting requirements that characterize CAA
implementation. Every aspect of air pollution control
policy and law, including contemporary implementation
issues and developments, is discussed in detail, and
numerous practice and compliance tips are provided.
The book is designed and organized to both facilitate an
understanding of the Act and its requirements and to
provide guidance on methods of compliance and
enforcement. The book includes completely up-to-date
discussions of current controversial issues such as:
greenhouse gas controls;
utility emission regulation;
the "grandfathering" of existing facilities; and
mobile source emissions.
Arnold W. Reitze Jr. is a professor of law and a member of the Institute for Clean and Secure Energy at the University
of Utah. He has had a distinguished career consulting and representing for governments and professions within a
broad range of environmental law. He was formerly the J.B. and Maurice C. Shapiro Professor of Environmental Law
and Co-Director of the Environmental Law Program at George Washington University Law School.
To order, call 1-800-621-2736, or visit www.eli.org
ISBN: 978-1-58576-153-1
800pp
$109.95
ELI Associates receive a 15% discount.
A rou n d
By John Pendergrass
Growth and Agency
Roles in the States
N
ew Jersey’s new commissioner of
environmental protection, Bob
Martin, is planning to appoint an assistant commissioner for economic
development, which has stimulated
discussion in the state about whether
it is appropriate for DEP to have a
high official focused on growth. Martin acknowledges that the “primary
role of DEP is to protect the environment and natural resources in the
state; that’s our No. 1 role, and I see
economic development as a secondary
role. In the past, the DEP has hindered
economic growth in a lot of cases and
. . . everybody has a DEP story.” His
vision of the role of the department
in promoting economic development
is through green energy and issuing
DEP permits as quickly as possible.
Some have a different perspective.
The head of the environmental section
of the Office of Legislative Services, an
arm of the New Jersey legislature that
drafts bills and whose staff is nonpartisan and prohibited from taking positions on matters before the legislature,
notes that the law authorizing the
department says nothing about promoting the economy. The law directs
DEP to protect the environment, prevent pollution, and conserve natural
resources. In fact, DEP was created
on Earth Day in 1970 when the Department of Conservation and Economic Development was split up and
the economic development functions
t h e
Stat e s
were given to other agencies. This can failed to find any other environmental
be viewed as an indication that eco- agencies with a similarly high official
nomic development was intended to whose duties are primarily devoted to
be removed from DEP’s authority.
economic development. Nor did this
Martin’s vision of the department’s search reveal environmental agencies
role in economic development does that have economic development as a
not appear to be inconsistent with its primary program. An assistant comhistory or authorizing language. He missioner of environmental protecexplains the new assistant commis- tion for economic development will,
sioner’s role in terms of existing DEP therefore, be something new.
programs and responsibilities — green
It may not be all that different,
energy, permitting, and policy.
however, from what some other
One of his previously announced state environmental agencies are
initiatives is a one-stop office to assist doing. Many agencies promote
permit applicants with the process, smart growth and virtually all proa function that one DEP employee mote cleanup and redevelopment of
said currently exists but is far down brownfields. Neighboring Pennsylvain the bureaucracy. Nor is permit nia, under Democratic Governor Ed
reform necessarily a partisan issue; Rendell, has two deputy secretaries
the previous governor, a Democrat, with duties that include economic
had established a task force to review development — one for commuDEP’s permitting process and Gover- nity revitalization and local governnor Chris Christie, a Republican who ment support and one who heads
appointed Martin, is considering the the Office of Energy and Technology
recommendations of the task force.
Development. The former manages
As further evidence that linking large scale community revitalization
permitting and economic develop- projects while the latter is responsible
ment is not a radical
for developing state
concept, New Jersey A high level official for energy policies and
Future, a nonpartifor supporting ecosan organization ad- economic development nomic development
vocating for smarter
initiatives related to
would be something
growth, sponsored
energy, among other
new in the states
a panel on how to
duties.
achieve meaningful
The title assistant
permit reform at its recent statewide commissioner of environmental proRedevelopment Forum.
tection for economic development
Martin emphasizes linking the may at first seem odd, but Commisenvironment and the economy. “I re- sioner Martin makes a good case for
ject the premise that we must choose the value of such a post and how it
between a healthy environment and can fit within the statutory mandates
a vibrant economy,” he says. Many of DEP. His explanation of the assisenvironmentalists agree with this sen- tant commissioner’s duties suggests
timent, including Richard Webster, that they will be within the broad amlegal director of the Eastern Environ- bit of existing department activities, if
mental Law Center, a nonprofit public elevating some of those to new promiinterest law firm in Newark. “There is nence. But that is certainly among the
no dichotomy between a good envi- prerogatives of an agency head. This
ronment and a good economy,” he is another state experiment that keeps
says. “A good environment goes with environmental policy vital.
a good economy, and you can’t have
a good economy if you don’t have a John Pendergrass is Director of ELI’s
good quality environment and an ef- Center for State, Local, and Regional Envifective DEP.”
ronmental Programs. He can be reached at
A quick review of other states pendergrass@eli.org.
I n
By Richard Lazarus
40 Years Without
Scoring a Win
M
y first essay in this space, published 15 years ago this spring,
had a title that could be used again for
this column: “A Lean Green Docket
This Term.” Then, as now, the Supreme Court followed up a term that
was marked by a disproportionately
large number of environmental cases
with a term with almost none. On
April 27, the second to last oral argument day, the Court will have heard
argument in Monsanto v. Geertson
Seed Farms, which is the one and only
classic “environmental law” case that
the Court will be hearing during the
entire term. (Disclosure: I am serving
as co-counsel for the environmental
respondents.)
At issue in Monsanto is the award of
a permanent injunction based on a violation of the National Environmental
Policy Act. Greens, led by the Center
for Food Safety, challenged the federal
Animal Plant Health and Inspection
Service’s decision to deregulate genetically altered alfalfa seeds without first
preparing an environmental impact
statement. The district court agreed
that the federal agency had violated
NEPA, and both vacated APHIS’s
decision and issued a permanent injunction. Neither the federal agency
nor industry appealed the merits of
the NEPA ruling or the vacatur, and
instead challenged only the validity of
the permanent injunction.
If history were to repeat itself in
t h e
C ou r t s
Monsanto, there is not much doubt es, however, offer the possibility of a
where Las Vegas oddsmakers would different outcome this time. First, one
be establishing the betting lines. The reason given for the federal governSupreme Court has previously decid- ment’s perfect record in NEPA cases is
ed 16 NEPA cases on the merits since the care that the solicitor general has
President Richard Nixon signed the taken to seek Supreme Court review
law 40 years ago. Environmentalists only in cases that are not only imporhave been the respondents in each of tant, but also winnable. In Monsanto,
those cases, having won in the lower however, the SG did not seek certiorari
courts, and therefore they had every- on behalf of the federal agency, which
thing to lose in the High Court. And, had lost below. Industry intervenors
that is precisely what has happened. filed the only cert petition, which the
They have lost all 16 cases. And, add- government opposed. To be sure, the
ing insult to injury, environmentalists SG agreed with industry intervenors
did not receive the vote of a single jus- that the lower courts had erred, and
tice between 1976, when the Court now joins industry in the briefing on
decided Kleppe v. Sierra Club, and No- the merits. But the federal governvember 2008, when the Court decid- ment’s opposition at the jurisdictional
ed Winter v. Natural Resources Defense stage may also say something about its
Council.
views of the strength of petitioners’ leNow, that’s quite a streak. It re- gal arguments.
minds me of the Uni High School
Another advantage enjoyed by enbasketball team’s losvironmental responing streak of 96 games
in Monsanto is
Environmentalists have dents
between
February
expert Supreme Court
lost all 16 NEPA cases counsel (present com1974 and November
1979 — a streak that on the merits, boding ill pany excluded). The
I prefer not to recolrefor this term’s decision environmental
lect because I was not
spondents retained
good enough to play
as pro bono counsel
on the Uni team. But even Uni High for the preparation of the merits brief
did not lose all those games without and the presentation of oral argument
scoring a single basket.
Larry Robbins, who is the lead partner
Nor does the appellate court of ori- of a small D.C. boutique law firm that
gin, standing alone, suggest a different specializes in appellate and Supreme
outcome. The Monsanto case hails from Court advocacy. As I have reported
the Ninth Circuit, and the Supreme in prior columns, the federal governCourt in recent decades has seemed al- ment has long enjoyed the advantage
most to take extra pleasure at reversing of being represented in the Court by
Ninth Circuit rulings favorable to en- the SG, and industry has in recent
vironmentalists. Making matters even years increasingly retained expert priworse, the environmental respondents vate sector counsel to their significant
in Monsanto will not have the potential advantage in environmental cases. In
support of Justice Stephen Breyer, who Monsanto, the playing field will be
while on the First Circuit wrote favor- evened some.
ably about the availability of injuncThe Court will likely decide the
tive relief for NEPA violations. Justice case during the final weeks in June,
Breyer is not participating in the case just before recessing for the summer.
because his brother, Charles Breyer, Then we will learn whether environwas the district court judge who ruled mentalists lose No. 17 or instead make
in favor of the environmental plaintiffs history.
and awarded them permanent injuncRichard Lazarus is Justice William J. Brennan
tive relief.
Differences between the Monsanto Jr. Professor of Law at Georgetown. He can be
case and prior High Court NEPA cas- reached at lazarusr@law.georgetown.edu.
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Th e
By Elliott P. Laws
Expecting the
Unexpected
W
hen dealing with environmental issues you should prepare
yourself for surprises. That this has
also been an axiom of human existence for centuries is clear when we
read the words of the pre-Socratic
Greek philosopher Heraclitus (c. 535
BC–475 BC), who wrote, “If you do
not expect the unexpected, you will
not find it.” I learned that early in my
tenure at EPA in the 1990s when results that were expected by me and my
staff turned out to be quite different
when they came in. Two cases spring
immediately to mind.
The first involved the Brio Superfund Site in Harris County, Texas.
Brio was a classic example of some of
the earlier sites listed on the National
Priorities List. It was a refinery that
reclaimed petrochemicals from tank
bottoms, tars, and residues from other
off-site sources. Materials for reclamation as well as the wastes from Brio’s
own processes were stored in open pits
at the site. When I became assistant
administrator for the Office of Solid
Waste and Emergency Response, the
Record of Decision had long been
signed. The remedy called for the use
of a rotary kiln incinerator and was
about to be implemented. We were receiving community complaints about
odors emanating from the site around
the time excavation of wastes from one
of the pits began. Temporary enclosures were built over the waste pits to
Bus i n e s s
of
E n v i ron m e n t
contain emissions during excavation. of clean fill. A series of yard and road
This material was stockpiled for the cleanups ensued, but the expectation
trial burn incineration of the wastes.
that the school was putting children at
I had been assured by the region risk turned out not to be the case.
that all tests had been performed to enWhat led me to remember these
sure that the surrounding community long-ago instances is that we have
would be safe during the incineration recently seen EPA embark on efprocess. However, we had just institut- forts to take new or fresh looks at the
ed a major commitment to enhanced chemicals and the practices where
public involvement and an organized the weight of scientific evidence
community was presenting convinc- points convincingly to a “no enviing evidence that they could be at risk. ronmental impact” conclusion. The
Add to this the strong objections to recently announced Chemical Aconsite incineration at Superfund sites tion Plan for Bisphenol A and EPA’s
which had been sweeping the nation, congressionally mandated study into
and I felt we needed to do more.
the hydrofracking process for oil and
Sending EPA’s Emergency Response natural gas extraction (and carbon
Team from Edison, New Jersey, to the sequestration in the future) come to
Brio site with its mobile air monitor- mind as examples.
ing equipment gave us our first surCaution should be the watchword
prise: the community was right. I still for the advocates of regulation, deremember the exact words of the mes- fenders of the status quo, and EPA,
sage I received: “You can’t put a shovel which must ultimately decide what to
into those waste pits without setting do. I urge all of these parties to take
off the neighborhood air monitors.” to heart the lessons I learned: from
This led to further characterization of Brio — the predictions of the experts
the waste material onsite, and in 1997 sometimes turn out to be wrong; from
a capping remedy was
Agriculture Street —
instituted. I had been
most obvious exThe view that the school the
told to expect that
pectations sometimes
was putting children
nothing would come
turn out not to be
of the trip except conat risk turned out not realized.
firmation of the seIt will either be the
to be the case
lected remedy.
advocates for change
The other case inor those supporting
volved the Agriculture Street Landfill the current condition in how BPA and
in New Orleans. Here, again, due to hydrofracking are addressed who will
public comments and environmental likely experience Heraclitus’ unexpectjustice concerns, we were looking at a ed result. I do not know where EPA
site that the community wanted placed will ultimately come out on these two
on the NPL. Lead in soil at residents’ issues; however, the agency is clearly
homes had been documented, but indicating that it believes a different
across the street from those houses was direction is warranted — and that
an elementary school that had been could be where the surprises surface.
constructed directly on top of the old Perhaps Oscar Wilde’s slightly more
landfill. We were concerned for the modern version should be the agency’s
safety of children in the school and on mantra in these instances: “To expect
the playground and put in place an ex- the unexpected shows a thoroughly
pedited testing regime in order to fast- modern intellect.”
track the site for NPL consideration.
Contamination was found sufficient E l l i o t t P. L a w s , f o r m e r E P A
to justify a listing. However, there were Assistant Administrator and former President
no health or environmental problems for Safety, Health & Environment of Texaco, is
detected at the school, which had Senior Counsel at Crowell & Moring. He can
been built on top of three to five feet be reached at elaws@crowell.com.
FALL 2009
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by Tom Mounteer
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outstanding work. Hopefully it will be the first of many editions
that will be needed as the field expands and matures.”
— Arnold W. Reitze, Jr., Professor of Law, S.J. Quinney College of Law,
University of Utah, and Professor of Law Emeritus,
The George Washington University Law School
About the Author
Tom Mounteer is a partner in the Washington, DC, office of Paul
Hastings, where he co-chairs the firm’s environmental practice.
Since 1997, he has been an adjunct professor at the George
Washington University Law School’s Master in Environmental Law
Program.
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A n
By Robert N. Stavins
Two Countries Key
To Progress in 2010
M
y travels over just the past two
years on behalf of the Harvard
Project on International Climate
Agreements have taken me (in alphabetical order) to Bali, Beijing, Bonn,
Brussels, Canberra, Copenhagen,
Geneva, London, Mexico City, New
York, Paris, Poznan, Rome, Tokyo,
Seoul, Venice, Warsaw, and Washington, among many other locations.
Along the way, I have met with senior
government officials, business leaders, academics, and representatives of
green NGOs to talk about opportunities for the design and implementation of a post-Kyoto international
climate regime that is scientifically
sound, economically rational, and
politically pragmatic.
Of course, over this same time period, there have been many ups and
downs for the prospects of establishing a reasonable post-Kyoto international climate policy architecture.
Most recently, the 15th Conference of the Parties of the UN
Framework Convention on Climate
Change, which met in Copenhagen
in December, produced two significant outcomes. The key substantive
outcome, of course, was the Copenhagen Accord. The key institutional
outcome was speculation that the
UNFCCC may not be the best venue
going forward for productive negotiations on climate change.
These dual results point to the
E c onom ic
P e r spe c t i v e
special importance of two nations in account for nearly 90 percent of
international climate policy develop- global carbon dioxide emissions, may
ments, especially this year. I’m not be somewhat limited by the fact that
referring to China and the United is was created by and is chaired by
States (despite the fact that they are, the United States, a nation with conof course, the world’s two leading strained credibility on climate issues
emitters of carbon dioxide). Rather, among some countries, particularly
I am referring to South Korea and in the developing world.
Mexico. Why?
The G20, which brings together
First, these two nations are unique the world’s largest economies, focuses
in being both long-time members on economic as well as other global
(South Korea since 1996, Mexico issues and consists of almost the same
since 1994) of the Organization of set of nations as the MEF, likewise
Economic Cooperation and Devel- accounting for about 90 percent of
opment and members of the group global emissions. The G20 could
of non-Annex I countries under the thus be an exceptionally promising
Kyoto Protocol, which have no direct supplementary venue for meaningful
commitments under that interna- and realistic climate discussions.
tional agreement. The OECD comes
And in November of this year, the
as close as anything to defining the G20 will be hosted by South Korea.
set of industrialized nations.
This gives the Seoul government a
Thus, South Korea and Mexico special role in setting the agenda for
have their feet planted firmly both the discussions and presiding at the
in the developed world and the de- sessions. The meetings there will come
veloping world (a fact
just two weeks before
that is readily apparent
the 16th Conference of
South Korea and
on even brief visits to
the Parties of the UNthese nations). This
FCCC, which will take
Mexico will host
gives them remarkmeetings that could place in Cancún, Mexable credibility with
ico. Thus, the Mexican
help climate policy
the two key blocks in
government is also in a
international climate
key position this year.
negotiations. That, on its own, would
Add to this the fact that both South
be of considerable importance, but Korea and Mexico have been particuthere is another reality that makes larly creative in their domestic climate
this of even greater significance (and policy initiatives and international
opportunity) this year.
proposals over the past year.
Coming out of Copenhagen,
Together, South Korea and Mexico,
many participants in the interna- share credibility in the developing and
tional climate negotiations (as well developed worlds, and likewise share
as informed observers) noted that the unique international legitimacy as the
UNFCCC has real limitations as the hosts and presidents of the G20 and
sole venue for future climate nego- COP-16 in 2010. This is why these
tiations: too many countries (192), two countries have a remarkable opexcessively stringent requirements for portunity to provide leadership of the
agreement (unanimity), and a distinct international community and make
tendency to polarize debates between real progress on negotiations to address
developed and developing countries. the threat of global climate change.
Two other, potentially supplementary venues stand out as promising: Robert N. Stavins is the Albert Pratt Profesthe Major Economies Forum and the sor of Business and Government at the John
F. Kennedy School of Government, Harvard
G20.
The MEF, which has hosted pro- University, and Director of the Harvard Enductive discussions among 17 key vironmental Economics Program. He can be
countries and regions that together reached at robert_stavins@harvard.edu.
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ANNIVERSARY
2009
2000 L St., NW
Suite 620
Washington, DC 20036
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S c i e nc e
By Craig M. Pease
Mixing Smelt,
Salmon, and People
I
n California’s Sacramento–San
Joaquin Delta, natural ecosystems
and human institutions have become
hopelessly intertwined. The delta is
habitat for the endangered winter-run
chinook salmon and threatened delta
smelt, and it also provides drinking
water for two-thirds of California’s 38
million people. Natural processes (e.g.
snowpack in the Sierras) and the management actions of government agencies and courts (administering a complex system of dams, canals, and levees)
simultaneously control the water flows
critical to both fish and people.
The entanglement of the natural
and human greatly increases the complexity of managing the delta. This was
brought home forcefully in two recent
decisions from the Eastern District of
California, one earlier this spring in
the Consolidated Salmonid Cases, and
one last fall in the Delta Smelt Consolidated Cases. Both disputes arose when
the Bureau of Reclamation wanted to
make management changes in the Central Valley Project, its sprawling hydrological system. But first, as required by
the Endangered Species Act, it had to
formally consult with the U.S. Fish and
Wildlife Service (for the smelt) and National Marine Fisheries Service (for the
salmon). The services’ reviews found
that the bureau’s planned changes
would jeopardize these fish and, as required by the ESA, they recommended
reasonable and prudent alternatives to
a n d
t h e
L aw
mitigate the harm. Not surprisingly, on both continues to evolve.
these alternatives would restrict water
Especially instructive are two earlier
withdrawals for human use.
cases, also in front of Judge Wanger, and
Several California districts that pur- also involving ESA consultations bechase water from the bureau and supply tween the bureau and services over the
it to municipalities and agricultural us- impact on smelt and salmon of planned
ers sued, on the grounds that no envi- changes in the Central Valley Project.
ronmental impact statement had been In 2007, in NRDC v. Kempthorne, the
completed. They complained particu- court ruled illegal the opened-ended realarly of the lack of any analysis of the sonable and prudent alternative recomimpact of the recommended reasonable mended by the Fish and Wildlife Serand prudent alternatives on the hu- vice, whereby a team of scientists would
man environment. In both cases, Judge periodically review delta smelt data and
Wanger ruled in favor of the water dis- recommend management changes, but
tricts. The agencies started out focused which provided no guarantees of any
on fish, but found that the law required real and enforceable agency action if
them to look simultaneously at fish and smelt numbers decreased. This was too
human needs.
much management flexibility. Then just
This web of natural and human pro- a year later, in Pacific Coast Federation of
cesses has also ensnarled science. In the Fishermen’s Associations v. Gutierrez, a
delta, it is no longer sensible or even parallel case involving chinook salmon,
possible to study entirely natural phe- the same court found that a reasonable
nomena (e.g. delta smelt distribution and prudent alternative establishing
under natural water flow and salinity fairly broad upper and lower bounds on
regimes). Rather, most relevant science permissible agency actions (e.g., on wais done against a backter flow rates) passed
drop of water flow
muster, even though
In California, a web
regimes controlled sithe bureau reserved
multaneously by natuof natural and human some
management
ral processes and huflexibility within these
processes has also
man institutions (e.g.
bounds.
ensnarled science
effect on delta smelt of
Alas, there is one
withdrawing a certain
critical, if somewhat
amount of water, from a certain loca- ancillary point. In theory, increased
tion, at a particular time of the year). management flexibility should lead to
Science has merged with adaptive man- improved science, more knowledge,
agement, characterized succinctly by and better results. In practice, it often
Kai Lee: “Policies are experiments; learn also opens the door to political influfrom them.”
ence on natural resource management.
Strictly from the standpoint of sci- This all too frequently runs counter to
ence, adaptive management is emi- good science.
nently sensible. Both natural and huAs the natural and human worlds
man systems are hugely complex. It is have become increasingly entangled, so
impossible to know a priori what man- to have science and law. Now scientists
agement options are best. But just how work, not surrounded by nature, but
much management flexibility does the deep within human institutions. The
law allow, and in exactly what circum- evolving case law that sets limits on the
stances?
decisionmaking flexibility of human
In the delta, the ability of the agen- institutions is having a wider impact on
cies to pursue adaptive management is science than is commonly understood.
limited both by standards on agency action imposed by environmental statutes Craig M. Pease, Ph.D., a research scienand by binding enforceable provisions tist, teaches at the Vermont Law School Enof water delivery contracts between the vironmental Law Center. He can be reached
bureau and water districts. The case law at cpease@vermontlaw.edu.
Th e
By Bruce Rich
The First Habitat
and Species Laws
W
e like to think that environmental protection is a recent invention, and that the United States has
been a pioneer, establishing national
forests and parks more than a hundred
years ago, then the Endangered Species
Act 37 years ago. But in India in the
4th and 3rd centuries B.C. there were
arguably more advanced provisions
for habitat and species protection than
anything in the U.S. until the 1970s.
The great Indian Emperor Ashoka
(his reign was from 268–239 B.C.)
commanded a huge empire that included most of today’s India, Pakistan,
and Afghanistan. Following a particularly bloody war, Ashoka converted to
Buddhism and promulgated a series of
edicts based on non-violence, religious
tolerance, and protection of animals
and habitat. These laws were inscribed
in stone throughout his realm. Many
can still be seen.
Ashoka’s Fifth Pillar Edict is nothing
less than a species and forest protection
law. It lists all of the kinds of animals
declared as exempt from slaughter —
including turtles, bats, ants, ducks,
geese, swans, doves, porcupines, squirrels, deer, lizards, rhinoceroses, and pigeons. In fact, all four-footed animals
“which are not eaten and of no utility”
were to be protected. He promulgated
what we would call measures for habitat protection, declaring that “forests
must not be set on fire either wantonly
or for the destruction of life,” and that
De v e l opi ng
Wor l d
the chaff in fields “must not be set on Service and of America’s first gradufire along with the living things in it.” ate school of forest management at
On numerous fixed days other kinds of Yale, was a close friend of Theodore
animals may not be destroyed and el- Roosevelt. He is widely viewed as the
ephant forests and fish ponds are not to most eloquent spokesperson of his time
be harvested.
for multiple use management of natural
Many of Ashoka’s species and for- resources. Pinchot literally coined the
est protection measures were actually term conservation, defining it as “the
first enacted by Kautilya (c. 350–283 use of the earth for the good of man.”
B.C.), the chief minister of Ashoka’s This definition almost paraphrases the
grandfather, the Emperor Chan- title — and underlying principle — of
dragupta. Kautilya wrote a treatise on Kautilya’s great treatise, which views the
statecraft and economics (the Arthasas- management of material wealth, detra, literally the “science of wealth”) in fined as “the earth inhabited by men,”
which he advocates the establishment as the underlying priority of society and
of protected woodlands, “one for each the state.
kind of forest produce.” These include
The essence of Pinchot’s approach
hardwoods, reeds, fibers, leaves used for was rational use of resources for ecowriting, flowers used in dyes, and me- nomic and other ends, with careful atdicinal plants.
tention to their stewardship. His friend
Kautilya also advocated the creation John Muir later became his greatest
of protected reserves “where all animals opponent, for Muir was one of the
are welcomed as guests and given full first of what we would today call deep
protection.” Of great importance too is ecologists, advocating the protection of
the setting aside of special reserve forests nature as a value in itself. Ashoka’s apfor elephants, with the death penalty for proach to conservation builds on that
poaching. Having a sustained supply of of Kautilya, but also transcends it in a
elephants was a matter of state security, higher ethos of respect and care for all
for military victory
life, regardless of eco“depends principally
nomic utility, an ethos
When having a
on elephants.”
with which John Muir
sustained supply of
Kautilya enumerwould have agreed.
ated a list of species elephants was a matter
Interestingly,
in
“which should be propractice, the species
of state security
tected from all danand forest protection
gers of injury.” These
measures advocated by
include, besides cattle, various kinds of both Kautilya and Ashoka are mostly
birds and deer. Beyond the protection identical — showing that at least in anof specific species, Kautilya prohib- cient India, utilitarian economic manits cruelty to animals, forcing the of- agement and an ethical commitment to
fender to pay fines and money for the protect animal life and habitat largely
treatment and recovery of the injured coincided.
beast. Even individual plants and trees
—
enjoyed protection, and if the scale of
This column is adapted from Bruce
fines is indicative, in urban areas they Rich’s new book from Beacon Press,
rank higher than animals. All of this is To Uphold the World: A Call for A New
to be overseen by special departments Global Ethic from Ancient India, with a
of government, including a chief super- foreword by Nobel economist Amartya
intendent of forest produce, a chief el- Sen and an afterword by Peace Prize
ephant forester, and a chief protector of winner the Dalai Lama.
animals and controller of slaughter.
Kautilya’s approach might be com- Bruce Rich is an attorney and author who
pared to that of the utilitarian conserva- has served as senior counsel for major
tionists of the Gifford Pinchot school. environmental organizations. His email is
Pinchot, the founder of the U.S. Forest brucemrich@gmail.com.
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40 Years Ago and
40 Years From Now
T
he past few months have
been a time of important
commemorations. Last December 22 marked the 40th
anniversary of the National
Environmental Policy Act. On the same
day we observed ELI’s 40th birthday.
The 40th anniversary of the Clean Air
Act followed in January, then in April
four decades since the first Earth Day.
On December 2 we will mark 40 years
since the founding of the Environmental Protection Agency (which will be
honored for its achievements at the ELI
Annual Dinner on October 19).
The past few months have marked
two relevant anniversaries for me. Forty
years ago, I wrote an article on high
school dress code reform for the Ridgewood, New Jersey, Sunday Post, the first
time I was paid to write on public policy. And with this issue, I mark 20 years
in this space.
I actually began writing for the Sunday Post before my dress code article. I
was hired in October 1969 to cover high
school football. The editor had engaged
me over the telephone, not realizing I
was still a student who had to be driven
to the office by his mother.
I remember well the first time I entered the newsroom and was shown to a
desk with an Underwood No. 5 manual
typewriter and given 45 minutes to peck
out a 1,000-word game story. When I
finished, my copy was turned over to
the sports editors, who smoked stubby
cigars and cut and paste with long shears
and pots of rubber cement.
Having survived that initiation, I was
waiting for my mother to pick me up
when Jim Jones, the editor-in-chief, put
a fatherly arm around my shoulder and
took me upstairs to the press. It was a
noisy composing room with clacking
linotype machines containing cauldrons
of smoldering lead that was cast into
type. Playing the mentor, Jim showed
me how stories were made into the page,
with the pieces that didn’t fit set to the
side by the compositor for him to cut.
o t i c e
&
C
o m m e n t
Jim could read the type even though it
was in reverse. I swore to myself that I
would learn how to read mirror-image
type as an first step in my profession.
As it turned out, I never learned to
read in reverse. When I joined the Daily
Princetonian two years later, the newspaper had just switched to what was called
cold type. Keyboardists entered our
copy onto punched ribbons, which were
then fed into a machine that used gears,
lenses, and translucent plastic strips to
etch type onto photographic film. We
developed the film in a darkroom and
then pasted the long strips onto page
mechanicals. When copy didn’t fit, it
was an easy job to cut because the type
wasn’t mirrored.
But learning how to make paste-up
mechanicals didn’t last, thanks to the
personal computer revolution. By the
mid 1980s, desktop publishing started
taking over the industry, another paradigm shift. And by the mid 1990s, the
internet began to put the printing press
itself into retirement.
Forty years ago, computers were
huge main frames, used by major banks
and universities, and code was entered
into them using punched tape or cards;
output was on wide striped paper with
sprocket holes on the side. The very notion of using a keyboard and monitor
to directly access a computer didn’t exist until the Apple II went on the market in 1976. Applications like spread
sheets and word processing didn’t come
around until later in the 1970s.
Today, equivalent computing power
can be had with a device that fits into
your pocket and also can communicate
with anyone in the world, instantly and
for free, with pictures, text, and sound.
High school sports stories are available
on the web within minutes of the final
gun, with no typesetter (nor newsroom
editor) in the pipeline. The manual
typewriter has been supplanted by the
electric typewriter, then the desktop,
then the laptop, then the netbook, and
now the iPad. And the smoke filled
room is only a memory. I doubt if any
of these paradigm shifts could have been
anticipated.
Thank you for indulging me in this
reminiscence, but there is a lesson in the
tale of these last 40 years that is relevant
to environmental law and policy. Forty
years from now is the time horizon envisioned in international agreements and
congressional legislation for the longterm goals of carbon reduction measures
meant to ameliorate global warming.
By 2050, humanity will need to operate with only 10 or 20 percent of the
fossil-fuel-based energy input needed
today, a huge reduction especially with
projected increases in population. How
we can do so is anybody’s guess, but it
will have to depend on a paradigm shift
in the economy and the technology that
supports it.
Forty years is a long time, and whether technology will make the necessary
leaps — and, in particular how — is impossible to say. Paradigm shifts are revolutions, and revolutions are notoriously
difficult to predict. Even when they can
be anticipated to some extent, their contours are only visible in retrospect.
During an ELI management retreat
in 1993, we were shown a short film
on paradigm shifts in technology. A
main point of the video was the laughable slowness of Swiss watchmakers to
convert to digital models. The Japanese
were taking over the industry.
Today, however, digital watches can
be had for pocket change whereas Swiss
chronometers sell for hundreds if not
thousands of dollars, the more primitive and complicated — watchmakers
actually use the word “complication”
in a positive context to mean an added
feature, like moon phases — the more
expensive. And despite the trend toward
miniaturization in almost everything
else, the most popular watches are larger
and heavier than average. They need to
be wound daily and have windows so
owners can ogle the archaic mechanism
inside. The lesson here is that whereas
in science paradigm shifts are always
toward simpler models (the principle of
Occam’s Razor) and become accepted
by all, in society and the technology
that enables it, shifts are not necessarily simple, nor obvious, nor linear, nor
publicly supported.
That knowing a revolution is in pros-
N
pect is not enough to predict the future
is a lesson for climate diplomacy and
policymaking. There are numerous examples of paradigm shifts in technology that were unpredictable, either in
assuming that a revolution was in store
or not seeing one about to happen. In
the 1800s, the telegraph and then the
telephone created instant communication using the medium of wires. Then
radio and later television leapfrogged
those technologies by switching to
broadcast. But in the 1970s, television
moved to cables and in the 1980s telephones moved to cellular communication. In the 1990s radio and TV began
to move to satellites. Now the latest
revolution is completing the circle: high
capacity fiber optic cables running into
businesses and homes for TV, radio, and
the internet.
The video we saw in 1993 was on
a VHS cassette, which supplanted the
superior Betamax system, the opposite
of what was expected. Going back a full
40 years puts us in the era of the 8-track
tape, which was replaced by the cassette,
then by the CD, then by the iPod. The
iPod itself has evolved dramatically in
the few short years since it was invented; now most models also have video
and other capabilities, such as making
phone calls and taking photographs.
Phones with cameras and recorded music seemed an odd combination that
wouldn’t catch on, but today they are
standard.
A final observation on technology:
Forward leaps as described above not
only are not linear nor predictable but
sometimes fail to happen. The passenger airline industry began in 1929,
and in 1969 the first jumbo jet went
into service. But in the 40 years hence
virtually nothing has changed in basic
airliner design except refinements of the
art. The Supersonic Transport passenger
plane was shot down before it got off
the drawing board — due to environmental reasons — and only a handful
of SSTs were built. Congress killed the
U.S. program in 1971.
The year 1969 also saw the first moon
landing and the release of 2001: A Space
Odyssey. But in 1973 the spacefaring
o t i c e
&
C
o m m e n t
nations abandoned manned trips beyond low earth orbit. Today the movie
is laughably out of date. The paradigm
shifts in air travel and aerospace both
failed to happen.
F
Legislative branches during those years,
continuing today.
The judicial branch was also part of
the mix, prodding rulemaking, filling
out legislative and regulatory actions
through case law, and affirming the role
of agencies to implement Congress’s
mandates in the Chevron decision. Today, we are in the curious position of
possibly basing the most profound leap
in technology imaginable by addressing
global warming through EPA action
based on a single court decision, Massachusetts vs. EPA, and language written
in the Clean Air Act in 1970.
Some analysts, like the authors of Super Freakonomics, expect technology to
come to the rescue against global warming. They point out how in the early
1900s, “horseshit” threatened public
health in American cities, but in a few
years the advent of the automobile (then
a fringe technology) completely eliminated the problem. The same will happen with regard to atmospheric greenhouse gases, they write.
What they don’t admit, however, is
that the automobile depended on enlightened policy, which funded the first
highways in the 1930s and then the Interstate system in the 1950s. Whether
car culture would have taken over otherwise is open to conjecture. Similarly,
the airline and aerospace industries that
made such leaps between 1929 and
1969 depended on a strong federal role
in airport management and airspace
regulation, plus the Apollo program.
Now 40 years old, the Environmental Law Institute is embarking on a long
range strategic planning exercise that
will look forward to the next 40 years,
called Environment 2050. Sensibly, ELI
is unsure about being able to predict the
far future and it is limiting the detailed
plan to fleshing out a vision of the years
ahead in the period from now until
2030. You can read about how successful that plan is in this magazine 20 years
from now, but whether it still will be
printed on paper or even edited by a human being is anyone’s guess.
orty years from now, the year
2050, marks the time when
humanity will have to largely
abandon fossil fuels. Will technology be up to it? Will law be
able to foster and manage such change?
Sadly, as history shows not only can we
not easily predict the advances in energy
technologies that may or may not happen, we cannot predict the advances in
what might be called the legal technology needed to foster needed technological leaps. After all, 40 years ago, modern environmental law didn’t exist, and
40 years before that, the very ability of
the federal government to regulate the
market was in doubt until there was a
paradigm shift in the makeup of the Supreme Court. Something equivalently
epochal needs to happen if humanity is
to be able to face down climate change.
The spate of environmental legislation that began 40 years ago was definitely epochal — the NEPA to CERCLA phase that lasted from 1969 to
1980. We then began a phase of reauthorization and fine tuning of these statutes, with major changes to the Clean
Water Act, Endangered Species Act, Resource Conservation and Recovery Act,
Superfund, and the Clean Air Act.
That ended 20 years ago. I remember
in 1990 holding a series of conclaves on
which statutes would be reauthorized in
the months following the CAA amendments. Both RCRA and the CWA
seemed up for renewal and Superfund
too, but we’ve gone 20 years without
major environmental legislation, something no one would have predicted.
Congress began taking itself out of
the game with the first environmental
laws, ceding to the new Environmental Protection Agency the promulgation of the rules that would carry out
congressional mandates, and the speed
of rulemaking became a major bone of Notice & Comment is written by the editor
contention between the Executive and and represents his views.
M ay / J une 2 0 1 0 ❧ Page 23
U
n s e e n
h a n d
Reducing Footprints
Science, regulation, and environmentally preferable purchasing programs are
intensifying, driving the move toward greener chemicals. A multi-part benchmark can
help companies reduce business risk as they manage the transition
Richard A. Liroff
R
educing the toxicity of manufactured
products should be a core element of
business strategy. It can lessen reputational and litigation liabilities, help
avoid “toxic lockout” from the marketplace, and spur innovation. It can drive sales for environmentally preferable products, lower overhead
costs when products subject to government hazardous waste laws are eliminated, and contribute to
enhanced employee safety and productivity.
Five years ago, the initial version of this benchmark was published as concern about toxic chemicals in consumer products and supply chains was
beginning to coalesce. The measure was intended,
as I wrote then, “to be an iterative benchmark, elaborated and refined over time [since] as companies
develop innovative approaches to safer chemicals
and substitution policies, they will raise the bar for
acceptable and outstanding performance.”
Companies can use this revised benchmark to
develop an initial assessment of where they stand.
For a deeper dive, more detailed guidelines will be
available in 2010 from the Business-NGO Working Group for Safer Chemicals and Sustainable Materials. The Working Group has produced a set of
“guiding principles for chemicals policy” whose eleRichard A. Liroff, Ph.D., is founder and
director of the Investor Environmental
Health Network. IEHN is a collaboration
of investment managers that advocates
for safer corporate chemicals policies
to grow long-term shareholder value and
reduce financial and reputational risks
to companies. This article is adapted with permission from
greenbiz.com.
ments include “know and disclose product chemistry,” “assess and avoid hazards,” “commit to continuous improvement,” and “support public policies and industry standards.” The Working Group’s
forthcoming guidelines will provide detailed suggestions for implementing the principles.
The updated Corporate Toxic Footprint/Green
Chemistry Benchmark has five core elements:
First, corporate commitment. Firms need to signal the company’s commitment — preferably via
a statement from the CEO — to lowering product toxicity by reducing or eliminating known or
suspected high priority toxicants and promoting
development of products created according to the
principles of green chemistry.
Second, data development. Companies need to
adopt standard procedures for systematically reviewing the chemical composition of products and
promote generation of toxicity data by suppliers.
Third, capacity building and greening the supply chain. Companies should create information,
training, and incentive programs to help implement safer alternative ideas. They should add “reduce inherent hazards” as a criterion for product
formulation and chemical procurement, including
a commitment to continuous improvement in use
of safer chemicals.
Fourth, investor and public accountability. Firms
should analyze in annual and quarterly SEC filings
the material risks and opportunities for the company associated with toxic chemicals and with safer
alternatives and cleaner production processes.
Fifth, public policy positions. Companies should
encourage progressive trade association stances on
toxics reduction. They should speak with an independent voice and organize ad hoc coalitions to
advance toxics reduction, involving businesses and
consumer and environmental groups.
1. Corporate Commitment to Toxic
Footprint Reduction and Green
Chemistry
The principles of green chemistry should inform
and drive chemical substitution programs. As summarized by Clean Production Action: “The goal of
green chemistry is to create better, safer chemicals
while choosing the safest, most efficient ways to
synthesize them and to reduce wastes.” SC Johnson
stands out for having made its Greenlist process of
toxicity reduction a core part of its corporate strategy. While this reflects the strong social ethic of the
Johnson family, significant commitments have also
been made by publicly owned companies. For example, Nike has been working on toxicity reduction since the 1990s and in 2004 declared a corporate-wide goal of “proactively targeting, removing,
or replacing chemicals that, while not legislated as
illegal, fit the scientific definition of toxic.”
Kaiser Permanente’s Environmentally Preferable
Purchasing Policy adopts a precautionary approach
to substances, acknowledging that federal and state
regulations and standards do not always address
critical issues concerning public and environmental
health. The policy lists 10 specific chemicals and
classes of chemicals that the company is working
to avoid, including persistent bioaccumulative tox-
ic compounds, halogenated flame retardants, and
phthalates.
More commonly, however, companies’ safer substitution commitments are not presented in standalone statements, but are captured in the tools
companies adopt that have explicit substitution
elements. For example, Steelcase has been pursuing
“cradle to cradle” certification for its product portfolio for many years. Competitor Herman Miller
likewise has been deploying cradle-to-cradle design
principles in its “design for environment” protocol.
Companies may be reluctant to make such commitments for several reasons. These include uncertainty about the performance, availability, scalability, cost, and hazard profile of alternative materials;
reluctance to reveal corporate strategy to competitors; a lack of knowledge about the chemicals in
their supply chain and their suppliers’ reluctance to
disclose them; an absence of regulatory drivers; and
insufficient customer demand.
Furthermore, companies may open themselves
up to criticism if they establish a goal and then fail
to meet it. The risk was recently illustrated when
Greenpeace hung a banner on a Hewlett-Packard
office building because of H-P’s retraction of deadline commitments it had made for phasing out certain toxic chemicals.
Companies may also be reluctant to make such
M ay / J une 2 0 1 0 ❧ Page 25
commitments because of their corporate cultures.
But undue caution can cut against a company in
the court of public opinion. Apple is well-known
for its tight-lipped culture, but this silence made it
seem a laggard when other electronics companies,
such as H-P and Dell, were making public commitments to toxic phaseouts. A concerted effort
by Greenpeace ultimately led Apple CEO Steve
Jobs to release a statement in 2007 captioned “A
Greener Apple.” The statement noted that the firm
does not generally trumpet its plans, but this had
left both employees and outsiders in the dark about
Apple’s desire to become greener. “Our stakeholders deserve and expect more from us, and they’re
right to do so,” Jobs commented. Apple had already
told its suppliers in 2006 of its goal to eliminate all
bromine- and chlorine-based compounds. A 2009
Clean Production Action case study, “Greening
Consumer Electronics,” describes the substantial
success Apple subsequently achieved based on innovative engineering and close collaboration with
its suppliers.
Some companies are fearful that making public
commitments may compromise their competitive
position. This needs to be carefully considered on
a case-by-case basis. But contrary to this notion,
properly conceived and implemented public commitments can actually strengthen their competitive
position and the overall health of the enterprise.
These declarations invite innovations; align and
sustain internal efforts; forewarn producers of hazardous chemistries they had better innovate themselves; convey corporate responsiveness to consumer concern; trigger a competitive race to the top
toward safer chemicals; and reassure investors that
the company is working systematically to reduce or
eliminate a potential liability.
2. Data Development
“If it’s not measured, it’s not managed” is a core
tenet of sound business operations. The data development portion of the benchmark has two principal components:
First, adopt standard procedures for systematically reviewing the composition of products and
promote generation of toxicity data by suppliers.
Second, assess the composition of products against
published lists of known or suspected high priority
chemicals, with particular emphasis on such categories as persistent and bioaccumulative substances, carcinogens, mutagens, reproductive toxicants,
neurotoxicants, and hormone disruptors
Dealing with your company’s carbon footprint is
challenge enough — starting with your stack emisPage 26 ❧ T H E E N V I R O N M E N T A L F O R U M
sions and then extending to the carbon embedded
in your products’ and your operation’s own carbon
demand. So at a cursory glance it might seem nearly
impossible to take on the hundreds if not thousands
of chemicals in your company’s supply chain. And
how do you weigh these chemicals’ diverse environmental health impacts, from acute human toxicity
to cancers to impacts on aquatic ecosystems?
There’s no perfect answer to this metric question, but leadership companies have begun to devise responses. For example, SC Johnson’s Greenlist
rates the materials in its products based on their
impact on the environment and human health.
Wal-Mart has developed another scoring system
called the GreenWERCS Chemical Screening Tool.
The tool, developed in a collaborative process involving suppliers, nongovernmental organizations,
and software company TheWERCS, is intended to
identify chemicals’ potential environmental impact
and drive green chemistry innovation. The system
assesses products based on ingredient information
provided by suppliers. It generates a score for each
product based on chemical composition and allows
comparisons among products in the same category.
Numerous companies have developed less comprehensive yet nevertheless useful approaches to
lowering their toxic footprint. These generally involve the creation of restricted substances lists.
Clean Production Action and the Healthy Buildings Network have collaborated to offer a “Red
List” — a compendium of official lists of chemicals
of high concern. The Green Chemistry and Commerce Council has provided a useful overview of
such lists, noting they are driven by regulation,
by marketing considerations (will Wal-Mart buy
my product, or is there consumer concern about
A
a chemical?), and advocacy by nongovernmental organizations. Companies can measure their progress
in reducing their toxic footprint by
reporting on reduced use of particular chemicals of concern. They
can also work with certifiers such
as McDonough Braungart Design
Chemistry to receive cradle-to-cradle certification of products.
Leadership companies are eager
to share their tools. SC Johnson
has made Greenlist available for
licensing at no cost, though companies would incur costs in adapting it to their own product stream.
Likewise, Wal-Mart has signaled its
willingness to have other retailers
engage GreenWERCS. Wal-Mart,
with other companies, is working
on a Global Data Synchronization
Network Product Ingredient Reporting Project that would enhance
movement of product ingredient
data within supply chains.
These activities in the United
States complement data development systems in the European
Union, where numerous consultancies are assisting companies in
addressing the demands for chemical disclosure, hazard data development, and enhanced supply
chain communication required by
the EU’s newly enacted chemical
management legislation, known as
REACH.
Many industry trade associations are also contributing constructively to the chemical tracking
effort, forging progressive industrywide lists that member companies
should address. For example, the
American Apparel & Footwear Association has developed a restricted
substances list, and a multi-company apparel industry working group
has created a kit for suppliers that
builds on the AAFA’s work. The
electronics industry has developed
its own guide. Within the automotive industry, the Suppliers Partnership for the Environment is using
the SciVera Lens system for assessing and managing chemicals.
n o t h e r
V
i e w
Prescription: Sustainability
A
Climate. Global warming will
t Kaiser Permanente,
we know that healthy cause health effects that will directneighborhoods and a ly impact Kaiser Permanente’s abilhealthy environment ity to fulfill its promise of quality,
are critical to the health affordable care. We are taking pracof every person. Environmental tical actions to limit our emissions
sustainability and social equity have of greenhouse gases and helping
direct, positive effects on individu- to reduce the carbon footprint of
al wellness and the wellbeing of the the communities we serve. We are
communities we live in. Since the expanding our supply of renewable
organization was founded in 1945 energy through on-site installations
we have worked to curb our impact of solar power. We also make use
on the environment by using safer of new technologies to minimize
chemicals, building greener hos- member and patient travel, includpitals, reducing waste, purchasing ing mail-order pharmacies, e-visits,
locally grown food, and using sus- and telemedicine.
Food. We support a food systainable energy.
Striving for sustainability in- tem that is ecologically sound,
cludes understanding the dispro- economically viable, and socially
portionate impacts of environ- responsible. We sponsor 37 farmers markets at our
mental pollutants. In
hospitals and medical
the United States today,
offices, in some cases
the health of ethnic miproviding the only
norities, poor people,
source of fresh food
and other disadvanin the neighborhood.
taged groups is worse
On an annual basis 60
than the health of the
tons of the produce
overall population. ExKathy Gerwig
served in Kaiser Perposures to air pollution
manente’s hospitals in
and harmful chemicals
in the environment have greater Northern California comes from
health consequences in disadvan- local farms.
Waste. We are reducing and
taged communities, where lack of
nutrition, limited or no access to where possible eliminating waste
preventive health care services, and through source reduction and reinadequate opportunities to exer- cycling to promote individual and
community health. In 2009 we recise are the norm.
Kaiser Permanente’s environ- cycled over 60,000 pieces of elecmental stewardship activities focus tronic waste using certified U.S.based specialists.
on four priorities:
Companies should reduce their
Chemicals. Kaiser Permanente
seeks to advance an economy where environmental footprint because
the production and use of chemicals it is smart business and mitigates
are not harmful for humans as well risk. But it is also about health.
as for our global environment. In ad- And without our health, nothing
dition to a robust environmentally else matters.
preferable purchasing program, we
have testified before Congress twice Kathy Gerwig is Vice President, Environon the need for federal mechanisms mental Stewardship Officer, at Kaiser Perto reduce harmful chemicals in the manente, one of America’s leading health
products and materials consumers care providers and not-for-profit health plans
serving 8.6 million members.
and corporations buy.
M ay / J une 2 0 1 0 ❧ Page 27
Confidential business information is one of the
largest barriers to the sharing of data. Trade secrets
have historically been an obstacle to information
sharing, but companies have found creative ways to
address them while working toward safer chemicals.
For example, since Wal-Mart sells its own private
label brands, national brand competitors have an
understandable reluctance to share their ingredient
information; Wal-Mart has built protections into
its system that permit toxicity comparisons among
products and spur reduced toxicity, but also shield
especially sensitive information from disclosure.
3. Capacity Building and Supply
Chain Greening
The capacity building and greening the supply
chain portion of the benchmark has four core components. First, information, training, and incentive
programs. These are central to toxicity reduction,
just as they are to achieving any corporate goal. At
SC Johnson, “an appreciation for sustainability and
the Greenlist process in particular is integral to staff
training, procedures, and motivation or rewards.
. . . New employees are trained on Greenlist within
a few months of joining the company. . . . Goals are
set annually for the company, and personal performance and pay also are linked to progress on the
Greenlist goals.” Just imagine if reducing product
toxicity across the board and a concomitant commitment to designing substitute chemicals to the
maximum extent practicable consistent with the
principles of green chemistry was a core value of
the world’s major chemical manufacturers, infused
this way into their corporate cultures!
Second, reduce inherent hazards in product formulation. Many initiatives fall within the rubric of
Design for the Environment and can specifically
include highly detailed lifecycle assessment or more
qualitative lifecycle “considerations.” What counts
most in these processes is their expansiveness. For
example, if the chemical component of a design for
environment program focuses only on compliance
with various regulatory requirements, that’s far different from a program designed to drive down the
total toxicity footprint of a product irrespective of
its chemicals’ regulatory status.
Third, develop collaborative activities with suppliers or other companies, including research and
financial risk sharing. Europe’s implementation
of REACH is forcing unprecedented collaboration within supply chains on chemical assessment.
Europe’s implementation of its earlier Reduction
of Hazardous Substances Directive, aimed at the
electronics sector, has similarly driven supply chain
collaboration there, but collaborative activity in the
electronics sector has been addressing chemicals of
concern even beyond those named explicitly in the
RoHS directive. For example, the High Density
Packaging User Group International, which focuses
on electronic assemblies and sub-assemblies, has
been developing a halogen-free materials database.
Companies should themselves explore how they
can provide incentives to their suppliers, or share
risks, to encourage greener chemistry. One collaborative model that companies might consider is
the American Chemical Society Green Chemistry
Institute Pharmaceutical Roundtable. Through the
roundtable, major drug companies are working to
implement green chemistry and green engineering.
The companies are collaboratively funding research
consistent with green chemistry, targeting chemical
reactions and production methods that are especially in need of green alternatives.
In its inaugural corporate social responsibility
report last year, Campbell’s declared sustainable agriculture to be one of its four core priorities. When
Campbell’s began its program about 20 years ago,
as a way of reassuring its growers, it agreed to share
the economic risks from adopting new Integrated
Pest Management techniques. Its growers would
manage both conventional plots and IPM plots,
and Campbell’s agreed that if there were shortfalls
in yield or quality in the pilot plots, it would make
up the difference. In fact, yield and quality were
not issues, and costs dropped. Across a wide range
of crops, Campbell’s now reports that the need for
synthetic pesticides has dropped by 50 percent.
In 2008, Wal-Mart announced that HewlettPackard was the winner of the Home Entertainment Design Challenge. The contest was open to
all of Wal-Mart’s suppliers of consumer electronics,
who were asked to submit products having attractive designs, innovations that reduced their environmental impact, and packaging that facilitates
reuse and recycling, reduces waste, and reduces or
eliminates the use of toxic materials. Hewlett-Packard responded with a design — the “H-P Protect
Messenger Bag” — that reduced product packaging
by 97 percent.
Fourth, supplier codes of conduct, auditing, and
related supply chain approaches. In 2001, Sony was
unable to sell Playstations during the winter holiday
season in the Netherlands because regulators found
cadmium in connecting cables. A more recent and
widely known example of supply chain toxicity is
Mattel’s massive recall of toys in 2007, with attendant costs, litigation, and reputational damage,
because some of its toys sourced from China were
coated with lead paint. Hasbro then launched an
advertising campaign promoting its own safety record. In an on-line chat, Hasbro’s CEO commented, “We believe that our high standards and robust
testing and inspection process have allowed Hasbro
to avoid any of the lead paint recalls.” Indeed, Hasbro had significant staff in China and incorporated
an extra step in its testing regimen that enabled it to
avoid Mattel’s problems.
4. Investor and Public Accountability
As the fabled U.S. Supreme Court Justice Louis
D. Brandeis wrote nearly 100 years ago, “Publicity is justly commended as a remedy for social and
industrial diseases.” Companies need to take several
steps to foster investor and public accountability.
First, investor disclosures. IEHN has made enhanced disclosure to investors a core focus. We have
produced two reports based on reviews of corporate
financial filings with the Securities and Exchange
Commission and advocated filing reforms in direct discussions with SEC staff and with staff of the
Financial Accounting Standards Board. IEHN’s
2008 report “Toxic Stock Syndrome: How Corporate Financial Reports Fail to Apprise Investors of
the Risks of Product Recalls and Toxic Liabilities”
is based on searches through thousands of SEC filings and detailed review of more than 25 companies’ reports. The report concludes that major industrial sectors are doing a poor job of informing
shareholders of market risks they face due to toxic
chemicals in their products. It urges companies to
provide shareholders with additional information
on chemical supply chain issues. It also urges SEC
staff to issue guidance to companies requiring them
to more specifically report their product lines vul-
nerable to regulation under REACH and to report
more fully on credible adverse scientific findings
that may impact their company.
IEHN’s 2009 report “Bridging the Credibility
Gap: Eight Corporate Liability Accounting Loopholes that Regulators Must Close” observes that existing regulations do not require companies to sufficiently disclose the potential liabilities associated
with production and use of nanomaterials. Currently applicable accounting rules are the very same
ones that permitted companies to legally understate
their potential liabilities from asbestos litigation until the moment that they declared bankruptcy and
wiped out shareholder value.
The report recommends that companies be
required to disclose on a summary basis what is
known about hazards of products as these become
understood in the laboratory, particularly when
these are recognized by “significant institutes,
task forces, institutions or agencies anywhere in
the world, such as government research or regulatory bodies, insurers, reinsurers, think tanks,
prestigious bodies, etc.” Companies would then
provide brief descriptions of measures the firm
is taking to minimize or eliminate the issue, and
indicators of the potential severity of the scale of
the problem.
Second, sustainability reporting. Sustainability
reporting has really taken off. A survey published
by the consultancy KPMG in 2008 concluded
that corporate responsibility has “gone mainstream.” Globally, 80 percent of the Fortune 250
are producing corporate responsibility reports.
These are often supplemented by more-detailed
internet-based disclosures. Companies are increasingly producing reports according to the
consensus-based reporting standards of the Global Reporting Initiative. Regrettably, despite their
positive impact the GRI standards are very slim
regarding chemicals in products, so they don’t
drive corporate reporting on this issue. Nevertheless, examples of such discussions appear in reports from, Dell, Ikea, Sony, SC Johnson, Sara
Lee, and Levi Strauss.
Third, effective consumer disclosure practices.
Ingredient disclosure has been a very sensitive topic
for many years and a centerpiece for activist campaigns around both cosmetics and cleaning products. Companies have begun to take dramatic steps.
In 2008, Seventh Generation, long a proponent of
ingredient disclosure, created an online label reading guide listing various ingredients found in common cleaners and providing information about
how the ingredients are used and any potential side
effects to people.
M ay / J une 2 0 1 0 ❧ Page 29
5. Public Policy Positions
The public policy portion of the benchmark has
two components: Encourage progressive trade association stances on toxics reduction and speak with
an independent voice and organize ad hoc industry
and industry-NGO coalitions to advance toxics reduction
The U.S. Chamber of Commerce, one of Washington’s most powerful lobby organizations, has
seen major U.S. companies cancel their memberships, resign from its board of directors, or issue
strong statements distancing themselves from the
chamber because of its strident objections to federal
legislation on climate change. Firms have multiple
reasons for joining and receiving benefits from trade
associations, but at some point companies must decide when they’ll part company if the association
crosses the line on basic corporate principles in a
manner that risks reputational damage or is contrary to the company’s core business interests.
There’s about to be a major debate on federal
toxics policy reform in the United States. Companies must decide how to position themselves.
A core group of businesses and investment groups
have already endorsed the four Guiding Principles
for Chemicals Policy of the Business-NGO Working Group for Safer Chemicals and Sustainable Materials.
The American Chemistry Council, representing manufacturers, said a few years ago that the
existing federal chemical policy framework “works
well.” ACC has now acknowledged change is in
order, although this 180-degree shift has been met
with skepticism from environmental health advocates. SOCMA, the trade association of small and
mid-size chemical companies, opposes substantial
overhaul of the existing regulatory framework. The
Soap and Detergent Association and the Consumer
Specialty Products Association both participated in
the 2009 release of the ACC’s principles, though
both joined with the Grocery Manufacturers Association in releasing their own “Building Blocks
for U.S. Chemicals Management Policy” later that
year.
Environmental health advocates have set forth
their own principles under the umbrella of the Safer
Chemicals, Healthy Families campaign. The campaign coalition includes, for example, The Autism
Society, Breast Cancer Fund, American Nurses Association, the Learning Disabilities Association, the
Natural Resources Defense Council, and the Environmental Defense Fund.
Seventh Generation has already aligned itself
with the environmental health advocates, launchPage 30 ❧ T H E E N V I R O N M E N T A L F O R U M
ing the “million babies crawl,” an on-line campaign
“to attract a million or more crawlers to dramatize
the wide public support” for overhauling national
chemicals policy. The company’s crawl website
states flatly that “the federal law that should protect us from health-harming chemicals just doesn’t
work.”
So where does your company want to be? Especially if you’re on the board of your trade association, do you want to tilt it toward the environmental health community or toward the chemical
industry? In lobbying on specific provisions of
newly proposed legislation, think hard about your
reputational risks, especially if you market children’s
products or to mothers. Data continue to mount
on chemicals in bodily fluids, such as umbilical
cord blood, amniotic fluid, and breast milk. Data
also are accumulating on chemical links to learning
disorders and asthma among young children. With
scientists discerning new links of chemicals to diabetes and other chronic health disorders, will your
company be on the side of those who routinely
say “more research is needed” and “no cause-effect
linkages have been established,” or will you tilt toward your customers’ concern about their families’
health?
Companies should think hard about reputational risks, extra overhead costs, roadblocks to moving
to safer chemicals, obstacles to assuring customers
products are safe, and the increased health care costs
and reduced productivity from employees’ exposure
to toxic chemicals. Your core business interests are
better aligned with your customers downstream
than with the upstream manufacturers of the toxic
chemicals in your products. Your public positions
on chemical policy reform should similarly align. •
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The Moral Limits of Jurisdiction
As the states and the public face new rules on emissions under the Clean Air Act, the
authors find that environmental policy devoid of economic feasibility equals ethical
bankruptcy by policymakers to the detriment of all citizens and their economic liberty
Harold G. Leggett
Beau James Brock
A
ny policy that seeks to improve the quality
of life must spring from the hearty trunk
of the community in order to support the
diverse boughs and flowering crown of society. This isn’t only metaphor but reality:
the Environmental Protection Agency is attempting
to reduce emissions of ozone, particulate matter, and
greenhouse gases using standards developed without
real consensus and without fully understanding their
impact on citizens and on states charged with maintaining compliance with the Clean Air Act. The agency is driving initiatives through the its own internal
policy process to achieve a political end, potentially
causing our citizenry’s limbs to break under the weight
while undermining its root principles.
The American people do not see our republic as infallible. An early example came in 1798, when both
Virginia and Kentucky passed resolutions of protest to
meddling from Washington, declaring, “The rightful
remedy against all unauthorized acts done under color
Harold G. Leggett, Ph.D., is Senior
Manager of Harold Leggett & Associates,
an environmental & resource management
consulting firm, after previously serving
as Secretary of the
Louisiana Depar tment of Environmental Quality. Beau James Brock serves as
Confidential Assistant to the Secretary of
the department (Peggy Hatch) after serving
in the same capacity for Harold Leggett. This
article reflects only the personal opinions of the authors does not
consititute an official position of the state of Louisiana.
of [law] against the states was a nullification by those
sovereignties.” These protests took on heightened implications in 1832 when South Carolina, in decrying
the economic inequities caused by the protectionist
tariffs designed to support fledgling northern manufacturers, passed a nullification ordinance. John C.
Calhoun detailed the political and legal basis of nullification and what it meant for the state and the rest
of the country: “The crisis stemmed from the ‘radical
error’ that the general government ‘is a national, and
not, as in reality it is, a confederated government.’”
This sectional economic struggle reached fever
pitch when the governor of South Carolina called for
volunteers to defend the state in case of invasion, and
President Andrew Jackson responded with equal swiftness, declaring, “Nullification [is] treason against the
United States.” The felling of the tree that is our republic was derailed by a political compromise on the
amount of the tariffs.
But “states rights” is no longer a code phrase for
denial of civil liberties, and nullification has returned
as a real weapon in defense of environmental federalism. According to the Tenth Amendment Center, as
of last October some 37 states have introduced “state
sovereignty resolutions” and seven have passed them.
Clearly, to return to our metaphor, boughs are about
to break.
The lack of full public participation in environmental policymaking, which includes not only contributions from citizens but from corporations as well,
has never been more evident than in the ongoing unilateral agency actions to strengthen National Ambient Air Quality Standards for two criteria pollutants,
ozone and particulates, and to restrict emissions of
greenhouse gases for the first time.
The last action may be the most troubling. Last year
EPA declared under Section 202(a) of the Clean Air
Act that “greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health
and to endanger public welfare.” The agency claimed
it issued its endangerment finding as an administrative
requirement to the order posed by the Supreme Court
decision in Massachusetts v. EPA in 2007. However,
the Court did not require such a finding. In fact, the
Court held that “we need not and do not reach the
question whether on remand EPA must make an endangerment finding, or whether policy concerns can
inform EPA’s actions in the event that it makes such
a finding. The statutory question is whether sufficient
information exists to make an endangerment finding.
We hold only that EPA must ground its reasons for
action or inaction in the statute.”
Bitter protests follow finding
After the agency’s proposed endangerment finding
in the spring of 2009 and before it finalized the finding last December, it did accept comments from the
public concerning possible action. However, review
of the agency’s responses to those comments shows an
utter disregard for any policy determination except for
the path it had ordained. In perfunctory responses to
questions concerning the economic impact of regulation, EPA smugly stated, “Commenters should take
up their concerns with Congress.”
But there were bitter protests from not only the
energy industry, which might be expected, but also
affected states. Texas Governor Rick Perry voiced his
strong opposition to the endangerment finding, stating, “EPA relied most heavily on the major assessment
reports of both the Intergovernmental Panel on Climate Change and the U.S. Climate Change Science
Program. EPA took this approach rather than conducting a new assessment of the scientific literature.”
He further stated, “I vehemently disagree that these
reports ever provided a sufficient legal basis for the
EPA to find that natural gases, such as carbon dioxide, present any danger to public health or welfare.”
He went on to cite the most recent findings of fraud
and data manipulation in these reports and the need
to maintain the integrity of the process.
Despite a clear need to proceed with the utmost
caution in this important area, EPA has recently proposed a series of rulemaking and other policy actions
addressing greenhouse gas emissions that will likely
have dramatic and far-reaching negative impacts on
the states. Even under EPA’s conservative estimate
of the stationary source universe impacted by its actions, in Louisiana alone there are approximately 757
affected CAA Title V permits and more than 6,000
additional minor sources that would now be subject to
increased regulation. In a letter to EPA Administrator
Lisa P. Jackson, the Louisiana Department of Environmental Quality questioned the agency’s proposed use
of administrative processes as appropriate mechanisms
to address global warming, noting, “The CAA requires
EPA to identify specific pollutants. While precursors
of specific pollutants may be regulated, carbon dioxide
equivalents are not precursors and no specific criteria
pollutant has been identified.” Prior to the promulgation of any rule or final policy action that could result
in the regulation of greenhouse gas emissions at stationary sources, LDEQ requested EPA to quantify the
costs and benefits.
But in the case of ozone and smog, EPA has stated
in a fact sheet, “The Clean Air Act prohibits EPA from
considering costs in setting or revising National Ambient Air Quality Standards.” When the agency came
out with a “range” of acceptable NAAQS it placed political expediency above sound science. How can the
agency expect the public to maintain confidence in its
scientific expertise and its implementation strategies
with hyperbole that “the sky is falling” and a closed
fist as to the fiscal realities of such pronouncements?
We must understand the moral limits of environmental jurisdiction that impact every American citizen.
Instead, EPA issued this proposed rule with the time
worn cliché of “protecting the children.” At the end
of the day, environmental policy devoid of economic
feasibility equals moral bankruptcy by policymakers
and the detriment of all citizens and their economic
liberty.
The level playing field
The sectionalism along geographical lines that confounded our founders (and persists to this day) is being
replaced by diverse special interest lobbying. This parallels the rise of the corporation and non-governmental
public interest organizations. Upon Teddy Roosevelt’s
ascension to the presidency, he directly confronted the
issue of corporate hegemony encroaching ever more
upon the fabric of our society. In a speech delivered
a year into his first term, Roosevelt said the United
States must address business’s impacts with evolutionary, not revolutionary, means. “If we are to accomplish
any good at all it must be resolutely keeping in mind
the intention to do away with any evils in the conduct
of big corporations, while steadfastly refusing to assent
M ay / J une 2 0 1 0 ❧ Page 33
to indiscriminate assault upon all forms of corporate
capital as such. The line of demarcation must always
be on conduct, not upon wealth.” In environmental
policy, our initiatives must always be cognizant of this
maxim and set our path toward justice through evolutionary means without debasing our cause in flailing
at capital itself.
Here then is the question of the level playing field
which confronts us now in the policy considerations
of new Clean Air Act rules for greenhouse gases and
tighter air quality standards for criteria air pollutants.
Will our nation consent to new environmental rules
that will diminish our citizens’ quality of life and jeopardize the economic viability of our industrial base?
Our American form of government is a highly
complex machine that daunts the uninformed, challenges the enlightened, and castigates those whose
rhetoric is found to be without substance. Regardless
of the cynical talking heads who dominate our airwaves, our nation is not a paternalistic oligarchy, and
our citizens will not tolerate any attempts to convert
its workings to make it so.
However, is the fear of environmental socialism a
rational one? One cannot discount the Obama administration’s public agenda on health care, the socialist form of delivery, and its precedents in Great Britain and Canada. Great Britain, under a Labor Party
government, embraced these socialist reforms during
the post-war 1940s as their nation devolved from great
power to the brink of a commercial collapse of confidence. Churchill, for the Conservative Party minority,
spoke out against the revolutionary specter of socialism, stating, “Unless we free our country while time
remains from the perverse doctrines of socialism, there
can be no hope for recovery.”
There is no question we must advance environmental standards that improve every American’s quality of
life, but we must not succumb to blind adherence to
political rhetoric devoid of sound science. The citizens
of this land will not idly procrastinate when their livelihoods are impacted, when transportation costs tear
through supermarket aisles, and high fuel costs chill
their homes and deprive them of basic freedom of
movement in their vehicle.
A commercial bill of rights
If the federal government persists on a path of
greater and greater abridgement of commercial liberties, the response from the people of this country may
be a call to action and defend their right to work in a
free society through a commercial bill of rights. The
establishment of clearly defined boundaries of federal
power may be the only true protection for economic
predictability, and thus, viability for American corpoPage 34 ❧ T H E E N V I R O N M E N T A L F O R U M
rations and by inference the American worker. This list
may include the following:
• Congress shall make no law concerning environmental quality standards unless they are based on
sound science and are practical, consistent, and manageable in their implementation;
• Any laws to be established by Congress shall fully
account for due process, the mechanisms for just and
fair enforcement, and the critical need to update existing standards which no longer are protective of human
health and the environment;
• All environmental permits issued by or under the
auspices of the federal authority shall, henceforth, be
analyzed and considered, including fee structure, not
by the size of the facility, but by the risk of potential
harm posed to the public by emissions or discharges
during its ordinary operation;
• All emissions and discharges from any facility shall
be accounted for in annual reporting to governmental
authorities, and facilities that successively reduce the
footprint of this pollution will qualify for administrative extensions of their existing permits;
• Incorporated municipalities and county governments shall not be subject to unreasonable civil penalties issued by governmental authorities which are only
borne by innocent citizens;
• All corporations operating under articles of incorporation filed in our country, regardless of their commercial wealth or size, are entitled to protection from
frivolous lawsuits filed by governmental officials or
third parties suing under the color of environmental
legal authority and thereby are entitled to recover any
and all legal fees in defending any suit found by a court
to be frivolous, vexatious, or devoid of good faith;
• Corporations and sectors of business shall not be
targeted for civil enforcement by our government and
are entitled to fair and equitable enforcement in maintaining a level playing field for all;
• No corporation that voluntarily discloses environmental violations, even knowing ones committed by its employees, shall be criminally liable if said
disclosure is complete, forthright, and made in waiver
of any and all legal privileges, and made prior to the
official opening of criminal investigation by the government concerning the violations. All individual employees must be turned over in the disclosure and are
subject to criminal prosecution to the full extent of
the law; and
• The citizens of any state shall exercise their sovereign right to nullify any environmental law or rule of
the federal government which imposes any standards,
duties, or obligations upon its commercial interests
that undermine the economic viability of its state and
violate the sacred compact between sovereigns as proscribed in the Constitution. To ensure full democratic
participation, the proper mechanism for any nullification question shall only be by plebiscite or referendum
by all eligible voters within the state.
This commercial bill of rights may signal the pendulum reversal that will ensue if the proposed environmental policies of the Obama administration are
implemented without consensus. Leadership from the
bully pulpit certainly has its place in our country, but
a bold vision without due consideration of the cascading affects upon our nation’s commercial infrastructure is the very definition of economic anarchy. Only
three months after assuming the presidency, Theodore
Roosevelt, the original bully pulpit president, began
our nation down the path of conservation of natural
resources, and urged federal authorities to take a hand
in protection of flora, fauna, and waters of our country. President Obama likewise has begun his tenure by
stating, “Global warming is not just the greatest environmental challenge facing our planet — it is one of
our greatest challenges of any kind. Combating global
warming will be a top priority of my presidency, and
I will attend to it personally.” But the citizens of Louisiana in particular will bear a heavy economic burden
if the Obama administration’s air emission policies are
enacted as presently advertised. According to economist Loren Scott, stockholders and taxpayers, often
one and the same, would pay the heavier costs in depleted investment returns and higher gas pump prices.
“That the people would fall for this is a great tribute to
the economic illiteracy of Americans,” Scott says.
The Supreme Court, and its institutional obligation of final legal review, is designed since Marbury
v. Madison to interpret, not make new laws or regulations, and within this obligation is the inherent decision whether to hear a case at all. These decisions do
not come without great consideration and review, and
when a writ of certiorari is granted by the Court, a
ruling fundamentally should provide not only a final
answer, but clarity to a host of similar and possibly
divided issues around the country.
A recent Supreme Court case of much debate is
Rapanos v. United States, a case involving wetlands and
whether the EPA maintained the jurisdiction to bring
civil enforcement proceedings against Rapanos for the
alleged illegal filling of wetlands under the Clean Water Act. The resulting votes on the case were a highly
divided court with a celebrated concurrence by Justice
Kennedy that has unleashed a flood of unpredictability on both the regulatory and commercial development side of the debate on jurisdictional waters of the
United States.
It cannot be said the Court has done its duty by our
nation if it resigns itself to intellectual machinations
that not only fail to provide clarity, but instead subject all environmental stakeholders, regulatory bodies,
and yes, even our courts themselves in to a significant
vortex of confusion on a matter as fundamental as jurisdiction.
Emperor’s Clothes or Stone Soup?
In moving forward with impending major environmental initiatives, we as Americans must decide the
path we will travel. Will we choose to marvel at the
new coat of the emperor, and not dare to interject,
even if we perceive it to exposing our commercial livelihood to the elements? Or, will we strive together, with
government, industry, and environmental activists to
feed our hungry village by combining our intellectual
and social yields to produce practical, consistent, and
manageable environmental solutions?
The answers we seek are only ones which will provoke more questions, such as to how clean can our
waters be? How clear can our skies become? These are
unanswerable without debate, without the ability to
differ in opinion, and possibly without practical applications for everyone even today. For example, when
the Clean Water Act was established, the policy spiriting the effort was to be made whole by the NPDES
system. Most people do not even know what NPDES
stands for, or simply get it wrong. Courageously, it
stands for National Pollutant Discharge Elimination
System. Its original purpose was to eliminate all pollutant discharges into waters of the United States in
twenty years.
Instead, we have added countless unanticipated new
point sources under the regulatory ambit and worked
to identify sources of water degradation and systematically reduce pollutant loads through a complicated
system of permitting, enforcement and modeling.
How will the law of unintended consequences
affect future endeavors to reduce greenhouse gases
and new standards for criteria air pollutants? If we
do not engage on these issues and understand all
stakeholders’ special needs and their critical value
to our nation’s infrastructure, we may suffer the fate
of tyrants. Never hearing the voice of the individual
worker, we may eventually be overridden by the
screams of the mob.
The choice is ours as citizens of this democracy. Do
we continue to do our duty to actively participate in
our democratic processes, and challenge environmental policy in Washington, or do we skulk away from
the field, and abdicate our rights to a small band of
elites (who may be wrong)? It is in the democratic process, conducted around a table where no prince sits
at its head and no citizen sits at its foot, that policy
will be effectively formulated that raises the quality of
life for all Americans and emboldens the public confidence of our nation. •
M ay / J une 2 0 1 0 ❧ Page 35
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C
o v e r
S
t o r y
T
It’s Not Only
Rocket Science
The perchlorate story follows the arc
of other major controversial chemical
management challenges, such as dioxin,
where the initial focus on end-ofpipe controls missed key sources in the
environment
By Andrew Rak
Andrew Rak is a Manager within
N o blis’s C en ter fo r S us t ain a bili t y.
Noblis is a nonprofit science, technology,
and strategy organization based in Falls
Church, Virginia.
he ongoing debate over the potential
health effects from exposure to low levels
of perchlorate is overshadowing an equally important dialogue on the sources of
contamination. Perchlorate first became
a headline concern when it was discovered that it
entered the environment from rocket fuel and munitions at Department of Defense sites — seemingly just another legacy of the Cold War — but
it can also be found in fertilizer, bleach, fireworks,
road flares, and blasting compounds. It can be
present as an ingredient or impurity in lubricating
oils, matches, and automotive airbag deployment
initiators. It is associated with aluminum, rubber,
dye, and paint manufacturing, leather tanning,
and pulp processing. Solutions used in water and
wastewater treatment plants for disinfection have
also been identified as a potential problem.
While some research has addressed the relative importance of multiple sources, the perception that military activities are the overwhelming
contributor to the environment may be hindering
appropriate and effective regulation. While perfect knowledge about the sources of perchlorate is
unobtainable, continuing to focus solely on a few
point sources will not adequately spur effective
public health regulation.
Extensive toxicological studies have been undertaken related to the potential health risks from
exposure to perchlorate, including a National Research Council review of the Environmental Protection Agency’s toxicity assessment. The chemical
may pose a health risk if taken up by the thyroid,
where it disrupts the production of hormones and
affects metabolism and neurodevelopment. But
toxicity is only part of a risk-based approach to
public health. As the NRC famously declared in
1983 in the Red Book — more properly “Risk Assessment in the Federal Government: Managing
the Process” — only by combining toxicity data
with information about the sources of exposure to
a contaminant can a thorough risk-based approach
be constructed. In other words, the same scientific
rigor and expertise applied to the investigation of
a chemical’s toxicity should be applied to the identification of sources that lead to significant exposures.
A thorough examination of the sources of exposure to perchlorate has not been completed, and
this lack of knowledge hinders attempts by regulatory agencies to provide an effective risk-based
approach for protecting public health. Through an
understanding of sources in the environment and
role of point and non-point sources of perchlorate
releases to the environment, regulatory agencies
should be displaced.
can take appropriate steps to directly reduce expoThe perchlorate story follows the arc of other masure and control public health risk.
jor controversial chemical management challenges,
While defense activities have often been assumed
such as dioxin, where the initial focus on end-ofto be the dominant fraction of perchlorate’s envipipe controls from incinerators and chlorine, and
ronmental presence, military contributions alone
pesticide production proved to miss key sources
cannot be the explanation for the geographically
in the environment. During the multi-decade indispersed detection of the compound. Nor can
teragency and public debate over the appropriate
military sources be responhealth risk estimates for disible for the perchlorate
oxin, EPA issued a pivotal
detected in a wide variety
emissions report. In 2000,
of food stuffs, including
the emissions inventory
dairy items and produce.
analysis for dioxin found
Sampling of dairy prodthat backyard burning of
ucts from Maryland and
plastics and other waste in
organic lettuce from Wisrural areas was a major reconsin have found trace
maining non-point source
amounts of perchlorate;
of deposition to soil. This
however, any direct consurprising finding shifted
nection to military point
the regulatory debate and
sources at these locations
highlighted areas where the
is lacking, thereby sugtraditional focus on point
gesting the importance of
sources and end-of-pipe
other contributors.
enforcement approaches
Early impressions about
could not be applied. Any
perchlorate sources helped
new reduction strategy for
To holistically address the risks a more
federal and state regulators
dioxin emissions would
develop preliminary plans
likely have to include mulcomprehensive assessment of the sources
for addressing contaminatiple non-point sources in
contributing to exposures is necessary
tion. However, more comorder to be effective. The
plete evaluations may increase the focus on newly
same dynamic appears to be developing for peridentified sources. In a 2005 letter to the federal
chlorate.
Environmental Protection Agency, state regulatory
officials wrote that “none of the nine water supplies
hile early data helped regulatory
that have tested positive for perchlorate in Massaagencies focus on perchlorate as an
chusetts appear to have any connection to military
emerging problem, to holistically
bases or activities.” The use of perchlorate-containaddress its risks a more compreing explosives in construction activities, and even
hensive assessment of the sources
in bleach, were among the new sources identified
contributing to environmental exposures is necesby the state. Earlier this year, Maine Drilling and
sary. With improved sampling technology and the
Blasting agreed to contribute $1 million to the city
additional data that are being generated relating
of Westford, Massachusetts, for remediating perto dietary and other exposure routes, food safety
chlorate associated with construction explosives.
regulators, environmental agencies, and local govGrappling with the risk from other sources is just
ernments will be able to more effectively regulate
a matter of time.
the use, disposal, and cleanup of perchlorate, and
The advent of new scientific fingerprinting
reduce public exposure. Information on unusual
methods that distinguish natural from man-made
suspects will increase the government’s grasp of the
sources will allow regulatory managers to tackle this
problem and enhance risk mitigation as our undermulti-faceted source challenge with targeted risk
standing advances.
reduction measures. As new sources are identified
At the federal level, EPA has elected to address
and quantified, lingering misperceptions about the
W
M ay / J une 2 0 1 0 ❧ Page 39
exposure to perchlorate in groundwater and drinking water using authorities under Superfund and
the Safe Drinking Water Act. Although the agency
has yet to make a final regulatory determination for
perchlorate in drinking water, some state regulatory agencies have already promulgated regulations,
with California and Massachusetts setting enforceable limits of 6 parts per billion and 2 parts per
billion, respectively. However, it is not clear if these
regulations will result in a meaningful public health
benefit because we do not know what role drinking water plays in overall exposure to perchlorate.
Addressing the need for appropriate regulation requires a more complete understanding of the sources (and relative amounts) of synthetic and natural
perchlorate in the environment.
While EPA has elected to address perchlorate
in groundwater and drinking water, other regulatory agencies and researchers have paid attention to
potentially more widespread exposures in the diet.
Ongoing food monitoring surveys have found perchlorate in mothers’ milk and cows’ milk, as well as
in infant-formula. Perchlorate has also been found
in lettuce, spinach, cantaloupe, cabbages, and beets.
The Food and Drug Administration has completed
studies of the occurrence of perchlorate in food
items, but has yet to issue any health advisories.
Likewise the Department of Agriculture conducts
monitoring through its National Residue Program.
But an analysis of the relative sources of perchlorate
and how these sources may influence entry into the
food chain has not been conducted. In the future,
the NRP may generate key opportunities for risk
reductions should trends related to perchlorate in
food warrant mitigation.
A continued focus on military sources will not
provide a complete analysis of the sources of perchlorate. The defense establishment uses perchlorate
in numerous items as an oxidizer. While the military
continues to purchase large amounts of perchlorate
for solid rocket motors and other items (6.2–8.1
million pounds per year from 2004–2006), solid
perchlorate inside a rocket motor casing is unavailable for release to the environment. Industrial recycling of rocket motors, which previously released
wash water into the environment, is now a closed
loop system. Annual military training uses of perchlorate in detonators, initiators, and ground burst
simulators, which are confined to certain ranges, is
approximately 1.6 million pounds, and substitutes
are now being employed for some of these uses. As a
result of remediation activities, substitution efforts,
best management practices, and compliance with
Clean Water Act permits, defense-related releases of
perchlorate should be diminishing.
In California, one of the states thought to be
most contaminated with perchlorate, the military
collaborated with state officials to investigate reports of widespread contamination. In 2003, the
Defense Department and state regulators established a partnership to investigate the presence of
perchlorate throughout California to locate previously unidentified threats to public water supplies. More than 900 military sites were screened
using a consensus-based protocol; 870 of these sites
were deemed to be not of concern. State regulators
agreed that military installations and formerly used
defense sites did not appear to be significantly impacting California public drinking water wells. As a
result of the collaboration, California also adopted
many of the department’s best management practices for perchlorate.
The department began an extensive perchlorate monitoring program and, by 2008, had collected more than 47,500 samples at 309 locations
nationwide to define the scope of its perchlorate
contamination problem. The results of this monitoring program — posted and annually updated on
the Defense Environmental Network Information
Exchange website — show that the vast majority
of perchlorate samples from military locations were
below 4 parts per billion, and large groundwater
plumes of perchlorate exist at only a limited number or military sites.
W
hile the military appears to be defining and controlling many of its
potential sources of perchlorate, it
is unclear what controls are being
put in place elsewhere. Recent research announced in the Fourth National Report
on Human Exposure to Environmental Chemicals
by the Centers for Disease Control and Prevention
together with a number of academic findings suggest that exposure to perchlorate is widespread, indicating there may be many undocumented sources. These sources should be thoroughly evaluated in
order to better understand total human exposure.
The contribution of perchlorate from the use of
sodium hypochlorite for various household, drinking water, and commercial disinfection purposes
may be an important non-point source contributor
to total perchlorate exposure. Sodium hypochlorite,
a bleach, generates perchlorate in storage and when
it is exposed to sunlight. The compound is used
in a variety of household applications (household
bleach is a 3–6 percent solution) and industrial applications (water and waste water disinfection solutions are 12–15 percent solutions) related to disin-
A
fection. Nearly $3 billion of sodium
hypochlorite bleach is sold globally
each year. In a 2008 study, perchlorate contamination was found to
occur in more than 90 percent of
sodium hypochlorite samples.
The most recent part of the perchlorate source picture to come
to light is the volume of the compound entering the United States
in fireworks. Recent data from the
Department of Commerce indicate
a large increase in firework imports
over a five-year span, from 174.7
million pounds in 2002 to 271.2
million pounds in 2006. Potassium perchlorate constitutes up to
70 percent of the chemical fraction
in fireworks. Based on these data,
the American Pyrotechnics Association estimates that 14.2 million
pounds of perchlorate entered the
country in fireworks in 2002, and
21.8 million pounds in 2006. Imports represent about 90 percent of
fireworks used in the United States.
For 2006, the amount of perchlorate imported in fireworks represents nearly three times the amount
purchased by the military. While
importation does not necessarily
equate with amounts released into
the environment, these data highlight an important potential nonpoint source.
Recent field studies also support
focusing on perchlorate discharges
from fireworks. EPA analyzed water in an Oklahoma lake before
and after fireworks displays. Testing
performed 14 hours after an event
showed that perchlorate levels rose
24 to 1,028 times above the predisplay baseline. The agency found
that concentrations of perchlorate
peak about 24 hours after a display
and then decrease to the baseline
within 20 to 80 days. Thus, Fourth
of July activities and sporting events
may be important in future efforts
to define sources and routes of exposure. Efforts to restrict and manage releases at the local level may be
able to control exposure.
The millions of emergency road
n o t h e r
V
i e w
Perchlorate Will Accumulate
I
n 2008 NASA’s Phoenix best explanation for its changing
Lander found perchlorate distribution in the soil when movin three different Martian ing from the upper to lower valleys
soil samples. That discovery is the difference in the amount of
prompted a re-analysis of the liquid water present and its effect,
soil samples we had brought back leading to depletion or concentrafrom an expedition a year earlier to tion of the perchlorate. In the highAntarctica’s Dry Valleys, a site used lands the atmospheric deposition
as a Mars analogue for training be- of perchlorate is left undisturbed,
cause of the subzero temperatures while in the lower wet valleys its
and extreme aridity. For both Earth distribution becomes chaotic.
Combining our findings with
and Mars, the evidence implies that
given the right conditions and a those for the Arctic, North Amersource of chlorine, perchlorate will ica, and other regions provides an
emerging picture for the global
accumulate.
Free of anthropogenic influenc- presence of natural perchlorate. In
es, the Dry Valleys provide an ideal addition, our results from Antarclocation for such studies.The Ant- tica clearly point to the conclusion
arctic soil samples had been collect- that even though natural perchlorate is atmospherically
ed from pits dug in three
and homogeneously
types of Dry Valley mideposited, over time it
croclimate zones: coastal
will accumulate at high
(wet), inland (arid), and
levels at some locations
highland
(hyperarid).
while it will be nonSamples were collected
existent at others.
from every identifiable
Our results supsoil horizon (boundaries
between different kinds Samuel Kounaves port the hypothesis
that perchlorate must
of soil) down to the icecemented soil. All the samples were also have a variety of long-term,
widely, and irregularly distributed
reanalyzed for perchlorate.
To our amazement, perchlorate sinks. Since aqueous perchlorate
was found in all the highland soils, is chemically stable in the natuin all the horizons from the surface ral environment, its lack of accuto the ice-cemented soil. Its concen- mulation in the ocean or aquifers
tration ranged up to 630 parts per may also be attributable to microbillion and in a continuous vertical bial utilization in anaerobic or low
profile. In contrast, for the inland nitrate media.
To help us understand the full
valley soil horizons, it was found
to vary with a more heterogeneous impact of perchlorate, we need to
distribution, while in the coastal more accurately determine its globvalleys it appeared very randomly al distribution and accumulation
distributed, approaching 1,100 patterns, its interactions with terppb in one isolated soil horizon, restrial ecology, and its atmospheric
and totally absent in others, with formation mechanisms.
no regular or discernible pattern.
How the perchlorate is deposit- Samuel Kounaves is a Professor in the
ed in these valley soils is clearly evi- Chemistry Department at Tufts University.
dent from its correlation to nitrate For more information see: S. P. Kounaves,
and chloride, both of which have et al., Environmental Science and Techbeen shown to be atmospherically nology, 2010, 44, 236-2364, doi:10.1021/
formed and deposited. Thus, the es9033606.
M ay / J une 2 0 1 0 ❧ Page 41
flares sold annually contain significant concentrations of perchlorate, which is often released into the
environment. A study in Santa Clara, California,
found that 88,184 pounds of road flares are used
in the county annually with a corresponding perchlorate content of 5,732 pounds. Field testing has
shown maximum concentrations of perchlorate in
runoff leaving highways of 314,000 parts per billion after road flare use. Considering the volume
nationwide, discarded or partially used emergency
flares may be another important non-point source
of exposure. Communities could take steps to consider the use of alternative safety-lighting systems
such as those adopted by Seattle and other local police organizations to reduce the contribution from
flares.
Natural sources of perchlorate from geological materials, such as potash ore, playa crust, and
hanksite, also contribute to environmental perchlorate. Natural deposits have been found in the Texas
panhandle and north-central New Mexico. Other
research suggests that perchlorate may be produced
via atmospheric processes, then enters the food
chain through rainfall. Atmospheric formation may
explain the discovery of perchlorate in soil and ice
from the Antarctic [See Another View, page 41]
where concentrations reach up to 1100 micrograms
per kilogram. Finally, there is a possible connection
between tropospheric ozone and the formation of
perchlorate in plants, a factor that could in part
explain the presence of perchlorate in agricultural
products.
One source of perchlorate in the environment
that is receiving some additional attention is the
over 100 million pounds of Chilean nitrate fertilizer
— which contains perchlorate at levels of 100,000
parts per billion —that have been applied in the
United States. There are over 400,000 pounds still
being applied annually to commercial agricultural
land and homeowner gardens. In 2006, Texas Tech
University scientists reported in the journal Environmental Science & Technology that perchloratecontaining Chilean nitrate fertilizer likely accounts
for more low-level contamination in the United
States than all military and industrial sources put
together.
P
erhaps the most important development
driving the understanding of sources of
perchlorate in the environment is new forensic fingerprinting technology that can
help differentiate man-made and natural
types of perchlorate. Isotopic methods are powerful
tools when applied to the intractable problems of
source attribution for groundwater contaminants.
Elements in compounds can have widely different
isotopic ratios based on their mode of formation.
Stable ratios have a fingerprint, allowing scientists
to distinguish sources from one another. The isotopic method for perchlorate is available for use
through some university and Department of Energy laboratories. Scientific validation of the new
method is underway.
The new clarity made available through forensic
inquiries into sources may provide a much better
understanding about the proportion of contributions of perchlorate in the environment from
commercial, consumer, agricultural, and military
sources. Forensic methods distinguished synthetic
from natural sources of perchlorate at contaminated sites in southern California and elsewhere, and
proved helpful in disentangling possible sources.
A 2009 study by the U.S. Geological Survey used
forensic isotopic methods to identify historic use
of fertilizer as the most likely cause of groundwater
contamination in areas of Long Island and concludes that these findings may have national implications.
The growing concern over the possible health
effects of exposure to low levels of perchlorate
should not overshadow the investigation of perchlorate sources. There appears to be a growing
body of evidence that perchlorate sources should
be reappraised, particularly in light of findings that
perchlorate in fireworks, bleach, safety flares, and
Chilean fertilizer may outweigh military-industrial
uses. The new data on sources in the environment
and releases to the environment should be used to
better inform regulatory decisions on controlling
exposure. More importantly, the application of fingerprinting methods that distinguish natural from
man-made sources will empower regulatory managers to tackle this multi-faceted source challenge
with tailored risk reduction measures. As consumer,
natural, military, and agricultural sources continue
to be identified and quantified, misperceptions
about the role of point and non-point sources
should be displaced.
While early data allowed regulatory agencies to
focus initially on perchlorate as an emerging problem, to holistically address the risks from exposure a
more comprehensive assessment of sources is necessary. More information about the unusual suspects
among perchlorate sources will enhance risk mitigation and protect public health. With improved
sampling technology, food safety regulators, environmental agencies, and local governments will
be able to control the use, disposal, and cleanup of
perchlorate to reduce public exposure. •
The MIT Press
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into the role of coalitions
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N O W AVA I L A B L E
ENVIRONMENTAL JUSTICE
Legal Theory and Practice
By Barry E. Hill
Environmental risks and harms affect certain areas more than others.
The environmental justice movement is aimed at redressing this
disproportionate burden of risk and exposure to pollution in minority and
low income individuals, communities, and populations.
Environmental Justice provides an overview of this defining problem and
explores the growth of the environmental justice movement. It analyzes
the complex mixture of environmental laws and civil rights legal theories
adopted in environmental justice litigation. Teachers will have online
access to the more than 100 page Teachers Manual.
Barry E. Hill is currently the senior counsel for environmental
governance in the Office of International Affairs of the U.S.
Environmental Protection Agency. He has taught environmental justice
at the Vermont Law School for 15 years, where he serves on the board
of advisors for the Environmental Law Center. He has published
numerous articles on environmental law and policy, and environmental
justice.
March 2009 • 800 pp.
978-1-58576-124-1 • $89.95
R
e m e m b r a n c e
B
Founding Father
Stewart L. Udall, who died on March
20 at the age of 90, was one of the prime
movers of the modern environmental
movement, building a firm legal and
policy foundation
efore the first Earth Day, before
the vast outpouring of legislation
whose implementation and administration is our profession’s daily
bread and butter, Stewart L. Udall
came to Washington and changed
the way the nation views its environmental heritage and the ability of government to
preserve it, helping to make all that followed both
natural and necessary.
Following three terms as a U.S. representative
from his native Arizona, during which time he served
on the House interior committee, he was named secretary of the interior by President John F. Kennedy in
1961. During the eight years that followed, continuing in the administration of President Lyndon Johnson, he championed measures that forever changed
the country’s view of the federal role in conservation, preservation, and pollution prevention. He also
helped to safeguard millions of acres of federal land
as national parks, seashores, and wilderness areas.
As President Obama put it on learning of Udall’s
death on March 20, he “left an indelible mark on
this nation and inspired countless Americans who
will continue his fight for clean air, clean water, and
to maintain our many natural resources.” Or as one
of his successors at the Department of the Interior,
Bruce Babbitt, put it, “Stewart Udall, more than any
other single person, was responsible for reviving the
national commitment to conservation and environmental preservation.”
“That was a wonderful time,” Udall said recently
of his tenure at the Department of the Interior, “and
it carried through into the Nixon administration,
into the Ford administration, into the Carter administration,” embracing the 30 years of progress from
the natural resources laws of the 1960s, to the NEPA
to CERCLA legislative burst in the 1970s, and to
their strengthening amendments in the 1980s. “I
don’t remember a big fight between the Republicans
and Democrats in the Nixon administration or under President Ford and so on,” he said. “There was a
consensus that the country needed more conservation projects of the kind we were proposing.”
Udall played a critical role in forming that consensus. In recent years, however, according to his son
Tom, now a Democratic senator from New Mexico,
the senior Udall often lamented the change in tone
in Washington that has stalled environmental progress, including the end of bipartisan support for pollution and natural resources legislation. In his latter
years he became a fierce critic of President George
M ay / J une 2 0 1 0 ❧ Page 45
W. Bush. “The Bush administration, determined to
ransack public lands for the last meager pockets of
petroleum, has turned my old department into a
servile, single-minded adjunct of the Energy Department,” he said.
S
tewart Lee Udall was born in 1920,
the scion of a family already famous. His father was Arizona Supreme Court justice Levi S. Udall
and his grandfather had founded
the Mormon community in which
he grew up, St. Johns. But his early
life was not one of privilege, observed the Arizona
Star. “I grew up on the tail of the frontier. I plowed
fields with horses and worked as a hired hand in high
school for 50 cents a day,” he told the newspaper.
Udall interrupted his studies at University of Arizona for service in the military during World War
II, when he was a tail gunner on B-24 bombers in
the Italian theater, and as a Mormon missionary,
returning to finish his bachelor’s degree. He played
as a guard on the university’s basketball team that
went to the National Invitational Tournament, the
sport’s championship of the time. He continued on
to a law degree at Arizona, then he and his brother
Morris, who would succeed him in Congress, where
he established his own environmental legacy, formed
a firm in Tucson.
During Udall’s six years in Congress he became
a civil rights champion and fought for home rule
for the District of Columbia, both unpopular measures but ones to which he was deeply committed. In
1960 he campaigned for candidate John F. Kennedy,
helping to secure Arizona for the senator from Massachusetts.
When Udall joined the Kennedy administration
in 1961, he persuaded the new president to call a
White House conference on conservation, the first
since the Theodore Roosevelt administration. During his tenure, Udall declared, “nature will take precedence over the needs of the modern man.” A fan
of Rachel Carson, whose 1962 book Silent Spring
launched the contemporary concern about pollution, Udall responded with his own book, The Quiet
Crisis, a year later. Like the Carson book, it became
a bestseller. In his book, he called for a nationwide
“land conscience” to preserve America’s wild places.
“We cannot afford an America where expedience
tramples upon esthetics and development decisions
are made with an eye only on the present.”
During his tenure at Interior, he launched a fullcourt press against untrammeled development, scoring numerous victories. He helped to secure passage
of the Wilderness Act of 1964, the Land and Water
Conservation Fund Act of 1965, the National Historic Preservation Act of 1966, the Wild and Scenic
Rivers Act of 1968, and early legislation to combat
air and water pollution and preserve endangered
species. At Interior, he was instrumental in the fight
to preserve the Grand Canyon from a series of dam
projects that would have flooded much of the natural
wonder. He was not afraid to buck the powers that
be. “My own people from Arizona were desperate to
build those dams,” he told National Public Radio in
1996. “Some of them still dislike me.”
Udall was responsible for the acquisition of 3.85
million acres to the federal estate, including four
national parks, six national monuments, nine national recreation areas, 20 historic sites, 50 wildlife
refuges, and eight national seashores. “From the
Cape Cod seashore in Massachusetts to the untamed
wilds of Alaska, Mr. Udall left a monumental legacy
as a guardian of America’s natural beauty,” the New
York Times declared. He persuaded Lyndon Johnson
to make the environment a key part of the Great Society, and worked with Lady Bird Johnson on the
Keep America Beautiful program. He was a staunch
friend of the First Lady, who helped to smooth his
passage from the Kennedy administration to her
husband’s cabinet despite differences between the
two men. As an indication of his wide-ranging influence and concern, Udall is credited with integrating
the Washington Redskins, the last holdout of the
formerly all-white National Football League, whose
stadium was on leased National Park Service land.
Udall left public service in 1969 but remained active in his favorite causes for the rest of his life. Along
with other members of his family, he championed
the cause of atomic weapons workers and citizens
exposed to radiation from weapons manufacturing
and above-ground testing. He won the case in 1984,
but it was overturned on appeal. He then turned to
his friends in Congress, including Republican Orrin
Hatch of Utah and Democrat Ted Kennedy of Massachusetts, to secure passage of the Radiation Exposure and Compensation Act of 1990, which was
signed by President George H. W. Bush. In addition
to compensation for the afflicted, the law formally
apologized to those who were “subjected to increased
risk of injury and disease to serve the national security interests of the United States.”
Stewart Udall and Morris Udall received the ELI
Award for career achievement in advancing environmental law, policy, and management in 1992. Mo
Udall died in 1998. Stewart’s son Tom Udall, now
the junior senator from New Mexico, and Mo’s son
Mark Udall, now the junior senator from Utah, received the Award in 2009. — S.R.D.
THE FORUM
The Upset About
International Offsets
T
he notion of offsets for global warming
pollutants is a perfect win-win for the environment, or so it seems at first glance.
Offsets enable emitters who face reduction mandates and concomitant costs to
pay other emitters who can reduce more cheaply to
do so, resulting in the same cutback but at a lower
price. An early version occurred in Central Europe
after the downfall of communism, when western
plants and facilities along the border realized that
there was low-hanging fruit in the former controlled economies. There, because the government
owned the capital it had been lenient on pollution,
which affected countries in the West.
Beyond the problem of transboundary pollution is the global warming context. Offsets were
enshrined in the 1997 Kyoto Protocol to the U.N.
Framework Convention on Climate Change as the
Clean Development Mechanism. The CDM allows
emitters in the rich countries, which face mandatory reductions in greenhouse gasses, to finance
projects in the developing world, which has no required cutbacks.
But early on analysts pointed out that a key need
is to prove that the reduction would not have occurred in a business-as-usual context. Another
problem is to monitor the offsets to ensure that
they continue over time, which particularly affects
forestry-based projects. And some have criticized
the practice at a basic level, accusing developed
countries of evading reductions at their facilities
and thus undermining a global movement to phase
out carbon-based fuels and other pollutants that
contribute to climate change.
“Programs like the
Climate Action
Reserve have helped
set a high bar for
the voluntary
carbon offset
market.”
“Offsets make
economic sense for
emitters seeking to
limit compliance
costs, who may
face stranded
investments.”
Derik Broekhoff
Laura H. Kosloff
Vice President for Policy
Climate Action Reserve
Consultant, Attorney at Law
“The key immediate
challenge of the
Clean Development
Mechanism is the
weeding out of
business-as-usual
projects.”
Axel Michaelowa
“Offsets should be
part of the climate
solution as long
as they reflect real
reductions and do
not undermine
global reductions.”
Marty Spitzer
Senior Founding Partner
Perspectives
Legislative Director
Center for Clean Air Policy
“Carbon markets
are not an end in
and of themselves.
Stakeholders need
to be confident
that offsets are
contributing to
mitigation.”
Mark Trexler
Director of Climate Strategies and
Markets
Det Norkse Veritas (U.S.A.)
“Needed is an
appellate process
that grants
standing to
interested parties
and that creates
binding precedents.”
Michael Wara
Assistant Professor
Stanford Law School
M ay / J une 2 0 1 0 ❧ Page 49
T
Offsets Allow Us
to Go Further,
Faster
Derik Broekhoff
C
arbon offsets have been a
central element of nearly
every market-based
program for controlling
greenhouse gas emissions proposed or implemented
around the world over the past 20
years. It is easy to understand why.
Offsets help lower the cost of achieving GHG emissions reductions,
channel investment and resources to
countries (or sectors of the domestic economy) that would otherwise
face no incentive to reduce emissions, and, as a consequence, build
political constituencies in favor of
more comprehensive and aggressive
emissions targets. Yet despite their
embrace by policymakers, carbon
offsets have been greeted with skepticism by many critics of emissions
trading.
On one level, this skepticism is
understandable. Carbon offsets are
the epitome of an intangible commodity. Their value and effectiveness
depend entirely on how they are
defined, quantified, and guaranteed.
Such guarantees require the establishment of standards and a regulatory infrastructure to consistently
enforce those standards. What many
critics of offsets overlook is how
robust these standards and infrastructure are today, based on years
of work under both regulatory and
voluntary carbon offset programs.
Programs like the Climate Action
Reserve, for example, have helped
set a high bar for the voluntary carbon offset market, developing standards through public engagement,
overseeing verification activities, and
maintaining a publicly accessible
registry of offset projects. Nearly
all offsets openly traded today are
certified by programs that perform
h e
F
o r u m
these three functions. And while
some programs, including the Clean
Development Mechanism under the
Kyoto Protocol, have come in for
criticism recently, most are upholding reasonable standards for offset
quality when viewed objectively.
With any carbon offset program
there will always be lurking questions: Would particular projects
that receive credit have been implemented anyway? What level of
emissions would have occurred over
time in the absence of specific projects? These are questions that can
never be answered definitively. For
offsets to be valuable and effective
at achieving overall emissions reduction goals, however, absolute certainty is unnecessary. The Climate
Action Reserve and other carbon
offset programs have developed tools
to answer these kinds of questions
credibly, analytically, and robustly
while recognizing the inherent uncertainty.
It is a hard fact that the most
cost-effective near-term options for
reducing global GHG emissions
are likely to come from sources that
will not be covered by regulatory
emissions caps. Carbon offsets allow
trading systems to take advantage of
these options, creating flexibility, liquidity, and the ability to go further,
faster in reducing overall emissions.
The problem is not that we do not
know how to set effective standards.
Rather, the challenge is for policymakers to clearly and transparently
explain the need for offsets, to confront the uncertainties and tradeoffs
involved, and to adopt rules accordingly. It is only by demonstrating
this kind of leadership that we will
achieve the very significant reductions in global emissions that are
necessary to address the urgent challenge of climate change.
Derik Broekhoff is Vice President for
Policy at the Climate Action Reserve.
Why? Because
Offsets Are
Important!
Laura H. Kosloff
O
ffsets make economic
sense for emitters seeking to limit compliance
costs, particularly in the
near-term when they
could lead to stranded investments.
Those emitters have been seen as
key to politically acceptable climate
change policy, which is why offsets
have grabbed such a high profile.
A well-designed offset can be
characterized as a win-win. The potential for advantage is particularly
true at the global level, where offset
funding could provide revenues for
energy and natural resource programs in developing countries, supplementing dwindling international
assistance.
This has become lost in some
recent debates — offsets really can
make sense economically and environmentally. Facts:
• The atmosphere doesn’t care
where emissions or reductions occur.
GHGs are the perfect tradable commodity.
• Since we do not have to worry
about pollution hot spots with
GHGs, there is no need for healthbased trading restrictions.
• The cost of achieving emissions
reductions varies by gas and region,
which increases the potential value
of market mechanisms in reducing
the cost of achieving targets. Reducing emissions at power plant smokestacks is often far more expensive
than reducing methane emissions
from landfills. We should not abandon technological solutions, but it
in the interim we need to push costeffective approaches.
What kind of numbers are
involved? $10–20 billion could
mitigate a gigaton of CO2 emissions annually through international
T
offsets (about 5 percent of current
global fossil fuel emissions). This
would increase total resources available for sustainable energy, forestry,
and land-use management efforts in
developing countries. Such activities are crucial to long-term climate
change mitigation efforts. Climate
change mitigation simply can’t be
seen as a national or regionally constrained effort.
The theoretical potential of carbon offsets is enormous. Our ability
to transfer more efficient energy
supply and demand technologies to
developing countries than otherwise
would be possible is undisputed.
In principle, such a transfer could
reduce projected long-term carbon
emissions from developing countries
significantly. There is little doubt
that incremental financing of desirable energy and forestry measures
around the world could reduce future GHG emissions.
I am not arguing that offsets are
the answer. They are not. There is no
silver bullet, no magic wand. Solving this issue will require more effort
than any other environmental effort
to date. And yes, offset programs
need to be designed appropriately;
not all offsets are created equal. They
must be actions that actually reduce
emissions (or increase sequestration)
from what otherwise would have
been the case (without the carbon
market, or in business as usual conditions). The fact that it’s difficult
should not mean we give up. Offsets
are one step on the path to climate
change mitigation — a crucially
important piece, for economic and
political reasons. That’s why the
push for offsets hasn’t gone away,
and won’t.
Laura H. Kosloff, former Senior Counsel
for EcoSecurities Group plc., consults on
climate, energy, and environmental policy
issues.
h e
F
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An Indispensable
Piece of the Global
Jigsaw Puzzle
I
Axel Michaelowa
n just five years, the Clean Development Mechanism of the
Kyoto Protocol has mobilized
more than 5,000 greenhouse
gas reduction projects in over
60 developing countries. Project developers estimate the volume of pre2013 emissions offsets from these
projects at over 2.5 billion tonnes of
CO2 equivalent. Reductions come
from a wide variety of technologies
— ranging from thermal destruction
of industrial gases in large chemical
plants to distribution of efficient
charcoal stoves in rural Africa.
In the aftermath of the Kyoto
negotiations, most analysts had seen
the CDM as the Cinderella of the
protocol’s market mechanisms. They
felt that project-based offsets would
entail prohibitive transaction costs
due to the need to check whether
the project actually makes a difference compared to business as usual.
The revenue from selling offsets
would be insufficient to mobilize
entrepreneurs in the highly risky
business environment of developing
countries. Direct emissions trading between governments or offsets
from projects in industrialized countries would be much more attractive
than the CDM.
This pessimistic worldview had
underestimated the entrepreneurial
spirit in developing countries. Once
regulators had clarified that projects
could be developed “unilaterally,”
i.e., would not need the involvement
of a company from an industrialized
country, a real gold rush started.
Obviously, project developers first
looked for the nuggets lying on the
ground — and found them in the
form of projects destroying the industrial gases HFC-23 and nitrous
oxide, which generate huge volumes
of offsets at costs that are a fraction
of the sales revenue. Critics argued
that it would be much more efficient
to just pay the costs of installing
the abatement equipment through
public subsidies. In hindsight, this is
easy to say — but no public agency
discovered these abatement options
before the CDM market did. Moreover, it is only fair that developing
countries receive a substantial share
of the benefits from mobilizing
emissions abatement.
The availability of cheap offsets
leads to more stringent emissions
commitments in industrialized
countries than in the case where
only costly domestic reductions are
available. Without the access to the
CDM, European industries would
have never accepted the tightening
of their emissions cap under the EU
emissions trading scheme.
The key immediate challenge
of the CDM is the weeding out of
business-as-usual projects. While
regulators introduced thoroughly
refined additionality tests, still too
many projects are slipping through.
Regulators should resort to methods used by financial institutions
to find out which projects are really mobilized by the revenue from
offset sales. And in the long run,
advanced developing countries have
to be weaned off the CDM to take
up commitments. This could be
achieved by discounting offsets from
such countries.
Project-based offsets in developing countries are the success story
of the Kyoto Protocol. They show
that the market is able to discover
and implement emissions reductions
even under difficult circumstances.
This is heartening given the slow
progress of climate policy in industrialized countries.
Axel Michaelowa is Senior Founding
Partner of the climate policy consultancy
Perspectives and a researcher at the University of Zurich.
M ay / J une 2 0 1 0 ❧ Page 51
T
A Good Idea,
Given a Few
Basic Reforms
I
Marty Spitzer
t is time again to debate the role
of international offsets. Much
has changed since the U.N.
adopted the Clean Development Mechanism as part of the
Kyoto Protocol, allowing developing
countries to sell offsets to developed
countries. The CDM has been beneficial to both poor and rich countries
by bringing financing to the former
and helping to reduce compliance
costs for the latter.
Today our goals have changed and
international offsets policy must also
change. While we still need to lower
our compliance costs by purchasing
offsets from developing countries, to
avoid a 2°C rise in global temperatures we must also reduce our own
emissions and simultaneously accelerate the pace at which major developing countries reduce theirs.
The oft-heard rhetoric in Washington and among businesses —
that the United States needs a large
pool of offsets to lower costs and
should not act before China and
India — may feel good but creates
a dilemma. If we continue paying
developing countries to reduce emissions to meet our own reduction
goals, what incentive will they have
to undertake and finance their own
emissions reductions? Moreover, our
energy-intensive and trade-sensitive
industries (e.g., steel) should also be
concerned with current offsets policy
because their competitors in developing countries profit from selling
credits to us.
Large developing countries are
also beginning to see a problem with
the current CDM. Countries like
China know they must eventually
reduce their absolute emissions, but
worry that selling us their lowest cost
reductions will leave them paying for
h e
F
o r u m
more expensive ones.
So what should offsets policy look
like? First, it should build on agreements by developing and developed
countries in the international negotiations. Developing countries have
now agreed they will reduce their
emissions in exchange for financial
and technological assistance from the
developed countries. Offsets could
only be earned for emissions reductions that go beyond these commitments.
Another important reform would
move away from the current projectby-project CDM, where it is possible for some firms to reduce their
emissions and sell offsets even as net
emissions from their sector increase.
Instead, sectoral crediting allows
offsets to be sold only after emissions
are reduced for the entire sector (e.g.,
steel again), fostering environmental
integrity and protecting U.S. jobs.
On deforestation, we need
a staged approach. Developing
countries should first prove their
readiness and capacity to measure,
report, and verify reductions before
receiving credits. Government-togovernment funding should also
be made available to build capacity
and to purchase offsets before they
are completely market ready. The
House-passed Waxman-Markey bill
includes both approaches.
Ultimately, offsets should be part
of the climate solution as long as
they reflect real reductions in emissions and do not undermine global
emissions reductions — including
required reductions from developing
countries — necessary to ward off
the worst impacts of climate change.
If we build on the emerging international framework and contribute
our fair share of financing to help
developing countries meet their
commitments, we will foster a robust
offsets program that will help meet
the climate challenge at the lowest
possible cost.
Marty Spitzer is the Legislative Director at
the Center for Clean Air Policy.
We’ve Been
Looking for
a Free Lunch
Mark Trexler
T
here’s little question that
offsets can be an important
component of climate
change strategy, primarily because of their ability
to moderate near-term mitigation
costs. Today’s ruckus is not really
about whether offsets can contribute
to mitigation, however; it’s about
how they’ve performed to date, and
how to integrate offsets into legislation. But carbon markets are not an
end in and of themselves. Stakeholders need to be confident that offsets
are actually contributing to mitigation.
Any effective offset strategy requires balancing two objectives:
lower cost compliance and environmental rigor. Too much focus on
costs, and rigor goes out the window
(because too many reductions are
credited as offsets). Too narrow a
focus on rigor, and costs go sky-high
(because too many real offsets are
excluded from the offset pool). In
looking for the perfect rules that let
in all the low-cost real offsets but
none of the impostors, we’re dreaming an impossible dream. It’s crucial
that policymakers define a politically
acceptable balance between these
two objectives.
The key analytical issue here is
“additionality,” perhaps the most
misused and misunderstood word
in climate change mitigation. In a
regulated market an offset ton allows another ton to be emitted from
a source that otherwise would have
been capped. To keep net emissions from exceeding the cap, offsets
brought into the system have to be
additional. Being additional means
that the reductions are attributable
to the existence of a carbon offset
market (since if they’re not the re-
T
ductions would presumably have
occurred anyway, meaning they can’t
offset other emissions). The same
conclusion applies to voluntary markets, even though they’re not technically capped.
Additionality is not rocket science, but applying it effectively
requires a policy decision about how
to balance the inevitably competing objectives. Policymakers have
too often taken the free lunch way
out of assuming we can design a
perfect system, inadvertently setting
a hurdle that no offset program can
ever meet. Critics then play gotcha,
searching out questionable offset
projects, and characterizing the
whole program as fraudulent. That’s
not necessarily any more appropriate
than condemning home pregnancy
test kits because they occasionally
give an incorrect result. The idea of
perfect policy offers a free lunch and
makes for good rhetoric, but lousy
climate change mitigation.
In 1998 we lost the opportunity
to incentivize companies through
federal early-action legislation to
pursue GHG reductions in advance
of regulations. Many in industry
wanted credit for many things they
clearly would have done anyway.
Many environmental groups, fearing
too loose a policy, wanted to allow
credits for virtually nothing. The net
result was a failure to enact policy
that could have materially contributed to climate change mitigation
efforts.
Are we on the same path with offsets, where players concerned almost
exclusively with compliance costs
push to count almost everything as
an offset, while players primarily interested in environmental perfection
push to allow almost nothing to be
counted? Climate change is too serious a problem for us to again accept
an outcome that serves neither business nor environmental interests.
Mark Trexler is Director of Climate Strategies and Markets at Det Norske Veritas
(U.S.A.), a global risk-management firm.
h e
F
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Offset Developers,
Critics Could Both
Benefit by Fixes
Michael Wara
C
arbon offsets, especially
international offsets, offer the promise of reducing the cost of developed
country greenhouse gas
reduction goals. While promising in
theory, real international offsets produced by the Clean Development
Mechanism have failed to deliver
because of persistent doubts about
their quality. Are the claimed reductions real? Have they been verified
properly? There has been enormous
debate around these issues but so far,
not much resolution.
Environmental organizations are
justified in criticizing a slew of projects that have made it through the
system despite serious questions as
to whether they would credit business-as-usual behavior. At the same
time, offset developers are rightly
outraged about high and uncertain
regulatory risks to their projects created by a shifting legal and regulatory landscape. There is cause and effect here: doubts about quality lead
to changing standards. Ultimately,
since demand for compliance grade
offsets is a political decision, these
doubts need to be addressed if the
CDM or a successor is to endure.
The good news is that both
problems — lack of environmental
credibility for NGOs and high and
unpredictable regulatory risk for
offset project developers — might
be addressed by one change to the
CDM. What the mechanism needs
is a fair and transparent appellate
process that grants standing to a
wide array of interested parties and
that creates precedents that will bind
future decisionmakers.
Today, environmental groups participate in the CDM in two ways:
by commenting at the validation
stage of project applications and
by taking pot shots at the overall
quality of the CDM in the arena of
public opinion, often to devastating
affect.
Comments during validation can
be and are routinely ignored. Criticism of already registered projects
cannot create a better system, except
indirectly, and may undermine support for international solutions to
greenhouse gas emissions. A healthier offset regulatory process, both for
the environment and for project developers’ profitability, would foster
buy-in on the part of NGOs while
at the same time creating a body of
precedent that would reduce regulatory risk for project developers.
Access to an appellate body for
NGOs would give them a real stake
in the CDM and create a sense of
ownership that is currently lacking.
Having NGOs in the system would
also, of necessity, increase offset
quality by providing a powerful
check to project developers and by
empowering the third-party verifiers
in their employ.
Offset developers worry about
opening a floodgate of challenges.
Evidence from the Forest Stewardship Council and the Marine Stewardship Council, both of which have
appellate review with broad standing, indicates otherwise. NGOs
have limited resources. Assuming
that appellate decisions would bind
future decisionmakers, the more
likely result is a system with clear,
albeit tougher, rules that would lead
to higher quality offsets created with
lower risk and hence, lower transaction costs.
The NGO and the offset developer communities would both
be better off in such a system. The
alternative is continued erosion of
public confidence in offsets as a tool
of climate mitigation.
Michael Wara, Ph.D., is an Assistant
Professor at Stanford Law School, where he
teaches environmental and property law.
M ay / J une 2 0 1 0 ❧ Page 53
Making the Law Work for
People, Places, and the Planet
Peacebuilding ELI and partners examine how businesses and
resource managers can cooperate in former war zones
In February, Senior
Attorney Carl Bruch and
Research Associate Sarah
Wegmueller traveled to
Japan, where ELI partnered with the University
of Tokyo and the Global
Infrastructure Fund Research Foundation Japan,
to convene a symposium,
Improving Natural Resource Management in
Post-Conflict Countries:
The Roles of Businesses
for Human Security.
“The sound management of natural resources
is critical to post-conflict
peacebuilding, and businesses can play a central
role in rehabilitating these
resources and contributing
to the recovery process,”
said Professor Mikiyasu
Nakayama of the University of Tokyo’s Graduate
School of Frontier Sciences.
The symposium drew a
diverse audience of more
than 80 practitioners,
researchers, and students,
who participated in an
animated dialogue about
the role of businesses and
natural resources in postconflict peacebuilding.
Some of the most important players in postconflict peacebuilding
are businesses, as they are
often drawn to high-value
natural resources such as
diamonds, oil, timber, and
gold in former war zones.
Ranging from largescale multinational corporations to micro-enterprises, they can create jobs
for local citizens, generate
government revenues,
increase investment in infrastructure, and even help
meet basic needs.
of Tokyo, Päivi Lujala of
the Norwegian University
of Science and Technology, and Siri Aas Rustad
of the International Peace
Research Institute Oslo
composed the first panel,
which examined experiences with the Kimberley
ELI’s Sarah Wegmueller addresses the meeting on natural resource management in post-conflict societies.
Moreover, the private
sector can aid in rehabilitating natural resources,
making them more productive and developing
infrastructure and human
and physical capacity to
rebuild processing facilities.
The first keynote address, delivered by Prof.
Yasunobu Sato of the University of Tokyo, focused
on the dynamics between
businesses and human
security in post-conflict
countries. Kazumi Kawamoto of the University
Process Certification
Scheme, a procedure created to ensure that diamonds do not come from
conflict areas, and its relevance to other resources
in post-conflict countries.
Carl Bruch delivered
the afternoon keynote
address, in which he explored the overarching lessons learned for businesses
and natural resource management in post-conflict
countries.
The second panel of
speakers — Diana Klein
of International Alert,
Miko Watanabe of University of Tokyo, and ELI’s
Sarah Wegmueller —
highlighted multinational
corporations’ experiences
in extractive industries,
ecotourism, and in enabling economic recovery.
The symposium adjourned with remarks by
Professor Masahiko Kunishima of the University
of Tokyo’s Department of
International Studies.
“This symposium successfully brought together
researchers and field experts to discuss how businesses can act as vehicles
for post-conflict economic
recovery,” said Wegmueller.
The symposium was
supported by a Grantin-Aid for Scientific Research on Priority Areas
(21200047) of the Ministry of Education, Culture,
Sports, Science and Technology of the government
of Japan and the Alliance
for Global Sustainability of the University of
Tokyo. It was held as a
part of a global project
spearheaded by ELI to
strengthen post-conflict
peacebuilding through
improved natural resource
management.
More information
about the project and
symposium is available at
www.eli.org/Program_Areas/PCNRM/.
ELI Report
Constitutional Law Debating
response to new line of attack
As the health-care debate showed, federal regulation is increasingly subject
to constitutional attacks
— a trend that also has affected environmental law.
On February 26, ELI
convened Environmental
Protection in the Balance:
Citizens, Courts, and the
Constitution, co-sponsored
with UC-Berkeley Law
School’s Center for Law,
Energy and Environment and Georgetown
University Law Center’s
environmental protections
are consistent with both the
Constitution and sound
legal practice.”
A standing-room-only
audience of over 120 listened intently as expert
panels analyzed trends
in the federal courts that
affect the future of environmental protection.
Key constitutional and
structural issues that were
covered included citizen
standing and access to
courts, the scope of congres-
An audience member at the ELI-Berkeley-Georgetown Law conference asks a question.
Environmental Law and
Policy Program.
The symposium brought
together an impressive
range of legal scholars,
practitioners, and policymakers to explore topics at
the intersection of constitutional and environmental
law. “The last decade has
seen a number of court
challenges to the bipartisan
1970s consensus that laid
the foundations of modern
environmental law,” said
Jay Austin, director of ELI’s
Endangered Environmental
Laws Program. “Through
their scholarship and advocacy, these lawyers are
demonstrating that broad
sional authority to protect
the environment, the constitutional status of state and
regional climate initiatives,
and emerging constitutional theories that support
or threaten environmental
law.
Keynote remarks were
provided by Professor
Richard Lazarus of Georgetown Law School, who
identified four distinct
eras of constitutional environmental law, and Judge
Peter W. Hall from the
U.S. Court of Appeals for
the Second Circuit, who
discussed his court’s role in
the Connecticut v. American
Electric Power global-warming case.
Snowmageddon Weather fails
to halt Hill climate conference
Not even the famous
blizzard of 2010 prevented
nearly 100 participants
from attending an ELI
conference on, ironically,
the climate.
Shortly before snowfall
began on the morning
of February 5, the doors
opened on Capitol Hill to
Implementing Climate
Change Policy: Looking
Forward to the Hard
Part. The event was cosponsored by ELI, along
with Columbia University
Law School, University of
Virginia Law School, and
Vanderbilt University Law
School.
It was a very cold day
for the discussion of a very
hot topic: U.S. climate
change legislation. Such a
bill would likely be one of
the longest and most complex federal statutes passed
in decades, and would affect almost every corner of
the economy. Until then,
EPA and perhaps other
agencies may adopt rules to
the same end.
Implementing the new
regulatory scheme will be
a massive and difficult undertaking. Billions of dollars will hinge on each of
numerous implementation
decisions. The conference
brought together leading government officials,
academics, public interest
attorneys, and private practitioners to explore these
issues:
The dozens of rulemakings required of the
Environmental Protection
Agency, the Department of
Energy, and other agencies;
creating the machinery for
markets and offsets; managing the transition for key
sectors (fossil and renewable energy, agriculture,
forestry); linkages to the
international climate and
trade systems; state and local roles; affecting individual and corporate behavior;
equity and environmental
justice issues.
The conference cochairs included Professors
Jonathan Z. Cannon,
University of Virginia
Law School; Michael B.
Gerrard, Columbia Law
School; and Michael P.
Vandenbergh, Vanderbilt
Law School.
Vandenbergh noted that
“although there is much we
don’t know about the final
outcome of policy development at the global, federal,
and state levels, the conference provided a chance to
give serious attention to
implementation issues.
“The weather didn’t
impede a very productive discussion of the
implementation challenges
confronting climate policy
at the global, federal, and
state levels,” he said.
The conference attendees
weathered the blizzard on
Saturday, but held the conference via telephone rather
than appearing in person.
Fortunately, E&E News
interviewed ELI’s Vice
President of Climate and
Sustainability, Scott Schang,
about the conference the
following week. The transcript of that interview is
presented on the following
pages.
M ay / J une 2 0 1 0 ❧ Page 55
ELI Report
Climate Change Vice President Scott Schang on the impact of
congressional legislation and agency rulemaking
Monica Trauzzi: Scott,
ELI recently held an event
focusing on the issues surrounding the implementation of a cap-and-trade
bill. [See preceding page.]
It assumes that one will
eventually pass, but it’s an
important discussion to
have because billions of dollars will be at stake once we
have a cap-and-trade system
in place. So, what are the
primary challenges you see
associated with the implementation of cap and trade?
Scott Schang: The
conference focused on
implementing climate policy broadly in the United
States. So, cap and trade
was the reason we actually
decided to have the conference. Back in the summer
we thought, Look, Waxman-Markey has gone fairly
well. We think by February
2010 we’ll probably have
a fairly good sense of what
the Senate bill will look
like. That didn’t happen.
So the conference did
talk about cap and trade
and how you could implement it and the fact that
implementing a program
like this is really key in
order to do the design.
Lori Schmidt and people
from the Hill talked a little
bit about how they had
thought about enforcement
and the need for monitoring and the need for other
tools to be available and
built into the legislation
so you could actually do a
cap-and-trade program that
worked on the ground once
it was implemented.
Trauzzi: So, where do
we start? I mean, if and
when Congress does pass
legislation, what are the first
steps that need to take place
in order to get the wheels
turning and some motion
going on this?
Schang: The first steps
have already happened.
One interesting thing that
came out of the confer-
states. The states, obviously,
have already been well
down the road, and they
will no longer sit idle if the
Congress continues to stay
stalled.
Trauzzi: So, do the same
challenges exist if EPA regulates versus if we have capand-trade legislation?
Schang: Those present
at very different levels and
the need to use all the different tools that we have in
our toolkit to actually make
progress.
Mike Vandenbergh gave
an interesting talk about the
impact of individuals on
climate and how what we
really have to do here, up at
the federal, state, and local
ELI Vice President for Climate and Sustainability Scott Schang discusses climate change with
E&ETV’s Monica Trauzzi.
ence was the notion that,
while we don’t yet have a
U.S. action plan for climate
change, guide stars are starting to appear. For example,
the president did say in the
annex to the Copenhagen
Accord that the U.S. would
try to reduce greenhouse
gas emissions by 17 percent
if Congress acted. But the
U.S. has, we’ve seen in
Waxman-Markey, those
same goals. So, in a broad
sense, the United States is
starting to move down the
road.
We also have the EPA
starting to move in terms
of implementing some
rulemakings surrounding
climate and we have the
very different challenges,
but one of the messages
that came from the conference was that, one way or
another we’re going to get
this done. There was a real
consensus that we need
federal legislation, and that’s
really the way that would be
the most efficient and the
most effective for regulating
greenhouse gases.
But people also said,
Look, if we don’t get federal
legislation we’re still going
to move. Gina McCarthy
made the point that EPA
does have a legal duty to
move on greenhouse gases.
But we also heard about
the states and individual
actions, what you can do
level, is to change behavior.
Cap and trade is just one
tool to try to change behavior.
Trauzzi: There’s a lot of
money at stake here. How
do you avoid corruption
and scandals from taking
place?
Schang: That’s hugely
important, and that’s actually one of the reasons I
think we are having some
trouble politically with cap
and trade. The WaxmanMarkey legislation was written in a somewhat different
time. It was before the
economy met significant
difficulties. It was before
Wall Street lost a lot of the
confidence of the American
ELI Report
public. And so when you
have a system that was
built around a market,
and it’s going to try to give
significant allowances to
large interests, as Dan Esty
has pointed out, you have
some real concerns about
cap and trade that weren’t
there a year or so ago.
That’s been a significant
issue for us to handle.
On the other hand,
implementing at the EPA
level, as we all know,
would require a lot of difficult rulemakings. It’s a very
poor fit to try to actually
do what we’re trying to do.
You can make it work, but
it will be very inefficient,
probably expensive to do.
Trauzzi: Are there previous regulatory schemes
that we can sort of look
to for examples of how to
make cap and trade work?
Or is this uncharted territory?
Schang: There are
some. Everyone has talked
about the acid rain program, which is definitely
a beginning, but, as other
people have also pointed
out, acid rain only addressed a single pollutant
and it came from a single
type of source that was continuously monitored.
Regulating 13,000
sources in a variety of industries around the country
without monitoring is a
real issue. So, I think the
key ideas that I heard at the
conference that are really
important are monitoring
and reporting. That’s a concern for us at ELI as well —
because if you’re going to
have a system like this, you
have to have the data made
available to the public.
And that’s really important, because if the public
doesn’t understand what’s
happening at their local
level, who’s emitting what,
how are certain companies
and industries meeting
their goals, then they can’t
understand the system and
embrace it. Also, you can’t
have people enforce the
system. You need the reporting and the monitoring
in order to have enforcement, and that’s a concern
we’ve had at ELI — making
sure that you can actually
enforce the system once it’s
put in place.
We also have to make
sure that we can have citizen suits. It’s been very important in many of our federal statutes to have citizens
stand behind the federal
government and the state
governments and retain the
ability to bring enforcement
actions to make sure that all
the different things are happening that need to happen
at the actual implementation level. If you don’t have
that reporting and monitoring being very transparent,
you can’t have these citizen
suits.
The other concern about
citizen suits is that you need
to have standing. In other
words, you need to have
the ability of a citizen to be
able to get into the courtroom to bring his or her
case. And with greenhouse
gases having such a broad
impact, it’s not clear that
standing is going to be easily shown.
Trauzzi: This is complex stuff, clearly, through
this discussion that we’re
having. Will a cap-and-
trade czar even be possible,
someone who knows all the
ins and outs of the system,
who can sort of oversee
everything that’s happening
or will it sort of need to be
broken down bit by bit?
Schang: That’s the
important thing about
legislation and one thing
that we’ve heard at the
conference is that it won’t
be one thing that will happen. There will be cap and
trade, but if you read the
Waxman-Markey bill it has
four main titles, only one
of which is cap and trade.
There are three other titles,
and that’s really important.
So, again, going back to
the toolkit analogy, we’re
going to have all these different tools that need to be
used. Cap and trade is one
of them. There will be one
person, probably at EPA,
maybe with some help
from the Department of
Agriculture, who will make
the cap-and-trade system
work and maybe the Commodities Future Trading
Commission will also be
involved. And they’ll know
how to do that. I don’t
think that’s too difficult.
M ay / J une 2 0 1 0 ❧ Page 57
ELI Report
Workshop
Seminars
Skills Workshop in
Public Interest Environmental Law, held on
March 26-27, was ELI’s
first program dedicated to
skills training for junior
attorneys and professionals
who work for public interest organizations.
The group of 40 participants displayed great
enthusiasm throughout the
session and gave the course
rave reviews. According
to one participant, “The
course was outstanding: I
February marked the
final two seminars of
ELI’s 13-part series cosponsored with ALIABA, Understanding the
New Climate and Energy
Legal Landscape, a weekly telephone and webcast
series that explained the
real world impact of the
fast moving developments
surrounding climate and
energy.
The Economics of Climate and Energy Policy,
held on February 17,
Law professor Richard Lazarus, an experienced Supreme Court
scholar and litigator, at the public interest workshop.
feel fortunate to have been
part of this pilot project.
The subject material was
very rich and relevant.”
Another expressed great
admiration for the faculty:
“A breadth of experience
with nearly everyone at
the top of their game.
Despite how busy I’m
sure each and every one of
them is, they all seemed
excited to be presenting at
this workshop.”
The workshop was made
possible by a grant from
Rockefeller Philanthropy
Advisors, which was awarded to ELI in partnership
with the Natural Resources
Council of America.
discussed the potential impact to the U.S. economy
of various climate and
energy regimes. Litigating
Climate Change, held on
February 24, addressed
the implications of federal
climate legislation and
regulation for existing and
future common law claims
and cases as well as actions
under federal and state
statutes.
ELI’s Ocean Seminar
Series featured a conference on March 11, Arctic
Coastal and Marine
Spatial Planning and the
Role of the Arctic People,
co-sponsored by the
Alaska Eskimo Whaling
Commission. The meeting was made possible by
support from the Naomi
and Nehemiah Cohen
Foundation and the Oak
Foundation.
The conference brought
together representatives
of Arctic communities
and federal agencies to
begin a national conversation about U.S. arctic
coastal and marine spatial
planning. The discussion
centered on the rights, traditions, and experiences of
the Arctic people; existing
co-management practices;
competing management
imperatives; and how to
build from the existing
system toward an Arctic
marine spatial planning
framework.
On February 18-19,
George Washington University Law School hosted
the 2010 J.B. and Maurice C. Shapiro Environmental Law Conference:
Next Generation Energy
And The Law, which was
co-sponsored by George
Washington University Law School, ELI,
the George Washington
Environmental Law Association, and the Journal of
Energy and Environmental
Law.
ELI co-sponsored a
number of other events
in February and March,
many outside the beltway.
Sustainable Practices
in 2010: What Private
Companies are Doing
and Requiring and Why
was held on March 11
with Venable, LLP, in
Washington, D.C.
On March 19, ELI cosponsored Meet the New
U.S. EPA Regional Administrator: Curt Spald-
ing with WilmerHale in
Boston.
ELI and the Environmental Law Committee
of the New York City Bar
co-sponsored two events
in New York.
The first was the annual
New York Environmental
Law Year in Review on
February 17, a discussion
of the year’s most significant New York judicial,
regulatory, and administrative developments.
The second event was
Marcellus Shale: Shall
We Drill? held on March
10, a panel discussion of
proposals to drill for natural gas in the shale formation spanning several
eastern states.
ELI held an Associates Seminar on March
25, NEPA and Climate
Change: CEQ’s Draft
Guidance. Tom Jensen,
Sonnenschein Nath &
Rosenthal LLP, was the
moderator, joined by Ted
Boling, White House
Council on Environmental Quality, William
Malley of Perkins Coie
LLP, and Noah Matson,
Defenders of Wildlife.
March ended with
an event hosted by
Georgetown University
Law Center. Adapting
to Climate Change:
Problems and Solutions
was co-sponsored by the
Georgetown International
Environmental Law Review, the Georgetown Climate Center, and ELI. The
symposium addressed the
role of laws and policies
for climate change adaptation in the areas of natural
resources, human impacts,
and institutional and regulatory design.
ELI Report
The Profession
ELI Is An Association of
Many Facets
Scott Schang
Vice President
Climate Change and Sustainability
“ELI must not conduct
this seminar.”
That was the closing
line of an e-mail received
just days before our new
Skills Workshop in Public
Interest Environmental
Law, held on March 2627. [See preceding page.] A
member was upset that we
were planning a training
session for public interest lawyers on skills such
as negotiating, litigating,
commenting, building coalitions, and working with
the media. She had two
concerns: ELI was teaching
opponents to sue her clients, and we were doing it
behind closed doors.
The workshop was made
possible by a $25,000 grant
from the Natural Resources
Council of America. The
contours of the grant proposal were shaped to meet
the funder’s requirements:
networking among environmental activists, raising
awareness of environmental
justice, and making people
more effective advocates on
behalf of America’s natural
resources. We applied for a
grant because it allowed us
to meet two long-term ELI
goals: to offer more professional training and to do
more for our public interest
members.
For many years, ELI has
been talking about offering
training on the skills of being an effective advocate. It
would complement all the
substantive environmental
law training we do through
our Boot Camps and ALIABA courses.
The workshop also offered something of value
to the non-profit sector of
ELI’s membership. Virtually all of our Associate Seminars and programs are done
with private practice issues
in mind. I had often heard
that Boot Camp, which
includes sessions on how to
conduct due diligence and
transactional practice and is
taught mostly by law firm
attorneys, is too focused
on corporate issues to be
useful to those in the nonprofit world.
We took the ELI member’s concerns seriously. We
discussed the objections
with other ELI members
and advisors and with the
member who wrote the
email. Although I don’t
believe we resolved her
concerns, we concluded it
was appropriate to conduct
the workshop.
We all understand that
teaching people how to
sue companies was not the
primary purpose of the
workshop. ELI’s Associate
Seminars seek to increase
the knowledge, skills, and
ability of all environmental
professionals to do their
jobs. It may help you defend a company, advance a
government position — or
yes, even sue someone.
That portion of the skills
workshop entitled “Building a Case” spent much
time discussing how to
select the right case to take
and the right clients with
which to work. It taught
people how to avoid frivolous suits and to recognize
issues better addressed
through administrative or
legislative venues. And it
covered how to be a more
effective advocate in those
matters that do wind up in
court.
By teaching these skills,
we made workshop participants better professionals, inside and outside the
courtroom. The people on
the other side of these newly trained professionals will
benefit by working with
better rounded, more seasoned practitioners. Skills
training is not a zero-sum
game: all parties benefit
when you have the luxury
of working with smart,
well-trained opponents.
There is no doubt a
closed door session made
this program especially effective. According to work-
shop participants, they felt
more comfortable talking
about what they did not
understand and asking
open-ended questions,
which would not have happened if potential adversaries were in the room. Further, the session was able to
target the issues of concern
unique to public interest
environmental advocates.
Finally, the ELI member may have felt the
Institute was singling out
environmental groups
for special treatment not
afforded other ELI members. In fact, we hold
annual closed door meetings of the ELI Corporate
Environmental Network,
where we invite the environmental leaders from
ELI member companies to
meet and discuss issues of
common concern.
We conduct other
training sessions, such as
international sessions for
judges, in closed door settings. We limit attendance
when we think it will serve
the interests of the participants, not because we are
forming cabals or helping people devise grand
schemes against other ELI
members’ interests. At the
same time, we appreciate
that ELI’s role of nonpartisan convener can be
called into question when
we use invitation-only
sessions, and we use them
judiciously.
We hope to find funding for the workshop again
next year, and to use the
experience gained to create skills training programs
for other ELI members
to further our mission of
strengthening all environmental practitioners.
M ay / J une 2 0 1 0 ❧ Page 59
ELI Report
Closing Statement
Earth Day at 40, a Look Forward
Leslie Carothers
President
T
his year’s Earth Day celebration
inspired a number of special occasions to reflect on where the environmental movement has been and
where it is going. These included
the first annual meeting of the EPA
Alumni Association and a White
House Conference on America’s
Great Outdoors. Here at ELI, we
held a Board of Directors meeting
to review our mission and an Earth
Day reunion of over 100 veteran
staff and supporters.
Headlining the EPA alumni gathering was William Ruckelshaus, the
agency’s first and fourth administrator. As an agency alumna who served
under him in the early days, I enjoyed
hearing Ruckelshaus reflect on taking
over a new organization responsible for
carrying out a stack of laws comparable
in their economic and social impact
to the New Deal. In his trademark
dry and humorous style, Ruckelshaus
recalled learning early on that EPA’s actions made almost everyone — except
on good days the public — mad about
something. President Nixon’s business
supporters did not much like what
was coming out of EPA. Even Walter
Cronkite complained about having to
install a holding tank on his boat.
On the positive side, Ruckelshaus
cited his ability to hire the best people,
without much interference from the
White House; the advent of color TV
to bring home to citizens the ugly
impacts of pollution; and the ability
to deploy major public funding as well
as tough legal duties and deadlines to
move foot-dragging municipalities toward cleanup of their wastewater.
He also stressed the importance of
leadership at all levels. Ruckelshaus
serves as Chair of the Puget Sound
Partnership, a broad-based organization promoting collaborative solutions
to protect the waterbody from the
impact of coastal and watershed development. He pointed to the example of
two local leaders who came together
to help their community hammer out
a plan to control runoff in one of the
ecosystems affecting water quality and
habitat in Puget Sound. Of course, his
own leadership in and out of government sets a fine standard.
At the White House Conference,
Interior Secretary Ken Salazar, the
host, was happy to be upstaged by his
boss, President Obama, who thrilled
the audience of 500 conservationminded individuals and leaders of
organizations from around the country
by “just showing up,” as one of them
put it. But he also had a message for
the group. Remembering President
Theodore Roosevelt’s White House
meeting on conservation a century
ago, Obama called for action and
collaboration to protect our national
landscape, to increase opportunities for
outdoor recreation for everyone, and
to reach out to Americans to reconnect
them to their natural heritage.
Like Ruckelshaus, the president
stressed the role of leadership, especially grassroots leadership in all sectors, in
finding solutions and opportunities for
consensus. Even in times of crisis, he
concluded, we are “called to take the
long view.” Salazar and Agriculture Department Secretary Tom Vilsack moderated panels on conserving working
lands and energizing citizens, followed
by small group discussions to exchange
ideas on how to form the necessary
partnerships to make progress.
Many of these same themes
were prominent in the discussion
of ELI’s vision and mission at the
recent meeting of our board, which
included several staff members. The
participants wrestled with various
formulations of a vision statement
incorporating goals of environmental
health, economic prosperity, and
social justice. And they focused on
what ELI has contributed and should
contribute to bringing about the desired future state.
Much of ELI’s agenda in fact responds to the continuing needs highlighted in Ruckelshaus’s remarks. We
strive to provide the highest quality of
education and publications for people
in the environmental profession; to
foster dialogue about environmental
law, science, values, and choices with
the profession and the broader public;
and to perform research and analysis
drawing upon the best thinking in
all sectors, to come up with practical
governance tools — those carrots and
sticks — that can change the behavior
of individuals and institutions in a
positive direction.
As Ruckelshaus and Obama agreed,
what the country needs are more leaders who are ready and able to work
with others to bring about change. A
big part of ELI’s continuing mission is
to equip those leaders with the ideas,
and the experience of working with
other stakeholders, necessary to be effective. ELI’s own remarkable band of
alumni, board members, staff, partners,
and volunteers who came together
to celebrate this Earth Day are living
proof that we are helping to foster that
kind of leadership both inside our hallways and outside our doors.

The Environmental - Environmental Law Institute

Transcription

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