Friday, the first traces of the plume of radioactive gas from the damaged Japanese reactors were reported to reach California. The cornerstone of international environmental law is often said to be the “prevention principle,” which says that states have “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States.” Does that mean that the transboundary radiation has put Japan in violation of international law?
In a word, No.
Although the quoted language, from the 1992 Rio Declaration, sounds as if any transboundary damage would violate international law, almost no one interprets the prevention principle so strictly. To be an obligation under customary international law, the principle would have to reflect states’ customary practice, and states don’t prevent all transboundary pollution. Last year, in a case between Argentina and Uruguay, the International Court of Justice characterized the principle this way: “A State is . . . obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.”
So the ICJ believes that a state is only required to prevent “significant” transboundary harm. That seems more likely to reflect state practice, although you might question whether states comply even with this lower standard, given the amount of transboundary pollution that still occurs. If the ICJ is right, Japan hasn’t failed to comply with the principle, since the radiation that has crossed the Atlantic is at low levels not expected to cause any significant harm. Even at higher levels, the transboundary radiation wouldn’t violate international law as long as Japan has done all it can to prevent it from occurring – a condition that the regulatory failures described in Rebecca’s post below may call into question. (Whether or not Japan has complied with the prevention principle, international law may impose liability for transboundary harm, but that’s an issue for another post.)
The obligation to prevent harm isn’t the only relevant international obligation, though. It’s also generally thought that states facing environmental emergencies with potential transboundary effects have an obligation to notify their neighbors and keep them informed. In this latter respect, Japan may be more open to criticism, for issuing general statements that do not provide other countries much detail about the problem. On Thursday, China urged Japan to be more forthcoming, a message that will likely grow louder as fears of radiation increase among the people of China and other nearby countries.
Full textThe twin natural disasters that struck Japan this month, earthquake and tsunami, left a trail of devastation in their path. Entire villages were lost. The death toll currently stands at more than 8,000 but is expected to rise much higher (more than 13,000 are missing). Even as survivors struggle for shelter, warmth and food, the natural disasters are being rapidly overshadowed by the unfolding nuclear disaster at the Fukushima Daiichi Nuclear Power Station. The key difference is that the nuclear disaster didn’t have to happen.
The earthquake, the tsunami, and the nuclear meltdown are all wrapped up together right now as one big human tragedy. But it is important not to blur the lines between risks that are inherent to living on planet earth, and risks that we have created for ourselves. Natural disasters like earthquakes, hurricanes or tsunamis are woven into the very fabric of the earth’s geological systems. There is no way to avoid them, though obviously we can take steps to minimize their impacts.
Anger after Hurricane Katrina was not directed at the hurricane for forming and coming ashore, but at the federal, state and local governments for failing to prepare and respond adequately, and at corporate priorities that devastated Louisiana’s (protective) wetlands in order to facilitate shipping. But for those human decisions—to channel the Mississippi in a fashion that prevented soil accretion; to cut channels through the marshes; to underinvest in the poorer parts of New Orleans; to neglect adequate evacuation planning—the natural disaster might never have become a human catastrophe.
Full textA decision issued on March 15 by a panel of the U.S. Court of Appeals for the Fifth Circuit vacated portions of EPA’s Clean Water Act (CWA) regulations, issued most recently in 2008, governing water pollution from concentrated animal feeding operations, or “CAFOs”. In National Pork Producers Council, et al. v. United States Environmental Protection Agency, the Fifth Circuit panel vacated those portions of EPA’s rule that required CAFOs to apply for National Pollutant Discharge Elimination System (NPDES) permits based on a potential to discharge rather than an existing discharge, and that imposed liability for failure to apply for a permit. (The Court upheld other aspects of EPA’s CAFO rule.) The Fifth Circuit ruling represents a particular setback for EPA’s efforts to regulate CAFO pollution because it follows a 2005 decision by the Second Circuit (Waterkeeper Alliance, Inc. v. United States Environmental Protection Agency) that vacated portions of an earlier EPA CAFO rule and EPA’s efforts to revise the rule in response to that decision.
Water pollution from CAFOs poses serious health and environmental problems around the country. CAFOs are large industrial livestock operations in which thousands to hundreds of thousands of animals are raised in confined circumstances. CAFOs generate millions of tons of animal waste a year, which contain pollutants such as nutrients (nitrogen and phosphorus), organic matter, bacteria and other pathogens, salts, and pesticides and other potentially toxic pollutants. CAFOs are one of the many reasons why pollution from agricultural operations remains the largest single source of water pollution nationally—a problem that EPA and the states have struggled to address for decades.
The Fifth Circuit decision is based on a textual analysis of selected provisions of the Clean Water Act, but ignores or fails to account fully for other important provisions of the statutory text. Moreover, it results in a statutory tautology that belies one of the CWA’s most important goals. Finally, I am not sure it is even in the best interests of the livestock industry—although obviously their lawyers disagree—because it eliminates the business certainty that environmental permits are supposed to provide, and subjects operators to significant potential administrative, civil and even criminal liability if discharges occur absent a permit.
Full textMy bet is that EPA Administrator Lisa Jackson will do a little victory dance in her office before going home this evening. She’s earned it. After 20 years of false starts, EPA is issuing today the first proposed rule to control poisonous mercury emissions from power plants. They’re doing it despite a concerted blast of coal company and electric utility lobbying at the upper levels of the White House. Jackson’s achievement is testimony to her exemplary leadership of EPA in difficult times, but more than that, it’s a huge win for the babies of America, an estimated 630,000 of whom are born annually with blood mercury levels in excess of what experts consider safe.
The Mad Hatter in Lewis Carroll’s Alice in Wonderland was the first widely recognized victim of mercury poisoning. When Carroll was writing, mercury was used to keep hats stiff, giving rise to the expression, “mad as a hatter.” Highly toxic in very small amounts, mercury poisoning disrupts the neurological development of babies in utero and breast-fed infants. Fish consumption is the primary pathway for such exposure, and mothers who are nursing or pregnant are counseled to watch their intake of fish at the higher end of the food chain—tuna, swordfish, and large-mouth bass, for example.
EPA was on the cusp of issuing a rule requiring power plants that burn coal to install equipment that would capture mercury before it vaporizes up the stack in 2005 when attorneys at Latham & Watkins persuaded their former partner, Bush EPA official Jeffrey Holmstead, to do a U-turn in the middle of the road. The result was a toothless rule allowing the plants to trade “allowances” to emit mercury beginning in 2018, at levels so high the problem would have persisted into the middle of the 2020s. The scheme was in flagrant conflict with EPA’s statutory mandate, so environmentalists sued. A three-judge panel that included Janice Rogers Brown, a controversial conservative Bush appointee, slapped the agency’s warped interpretation down very quickly, writing that EPA’s argument in defense of its rule “deploys the logic of the Queen of Hearts, substituting EPA’s desires for the plain text” of the Clean Air Act. (Readers may remember that the Queen of Hearts, another beloved Lewis Carroll character, marched around screaming “off with their heads, off with their heads” when aggravated.
Full textThis morning a House Agriculture subcommittee will hold a hearing to "review the Chesapeake Bay TMDL, agricultural conservation practices, and their implications on national watersheds." Observers should be prepared for a trip to an alternate world.
The Chesapeake Bay has suffered for decades now because of nitrogen, phosphorous, and sediment pollution. Once-abundant fish, blue crab, and oyster populations plummeted, and local economies built around them have paid the price. Repeated state pledges to reduce the pollution and restore the Bay have fallen short time and again. If fixing the problem were easy, we would have done it already. It's not easy. But it's possible.
The EPA's current effort to restore the Bay is unquestionably the most serious effort to fix the problem. Decreasing the pollution that's harming the Bay will require some changes in how we all do business, so it's hardly surprising that the EPA's efforts have drawn opposition. But the rhetoric we have been hearing, and will hear today, from defenders of the status quo, is simply divorced from reality.
Big agriculture's representatives say that they've reduced their pollution, and there are plenty of examples of where that is the case. But that's little comfort: today, agriculture is the largest single source of nutrient pollution in the Chesapeake Bay, contributing an estimated 38 percent of the nitrogen and 45 percent of the phosphorous. The Bay and all of us who enjoy it suffer the consequences.
Full textCPR Member Scholar Robert Adler has an op-ed in the Salt Lake Tribune looking at a series of developments in Utah -- administrative actions as well as pending legislation -- that could hinder citizen engagement in environmental decisions. The context, write Adler, is this:
Whether or not one agrees that Tim DeChristopher was legally or morally justified in his civil disobedience as “bidder 70” in Bureau of Land Management oil and gas leases, virtually everyone asks why he did it.
I do not presume to speak for him. But one possible reason was surely his frustration about what he perceived as the ineffectiveness of other avenues to influence public decisions that affect his health and the quality of his environment.
It is ironic, therefore, that at the very time Mr. DeChristopher and his attorneys have been fighting to highlight this frustration, multiple levels of Utah’s state government have been working to systematically shut the door to other citizens who want to raise — through entirely lawful means — important questions about the quality of our air and water, the use of our public lands and resources, and the nature of the world we will leave to our children.
Adler's full op-ed is here.
Full textCross-posted from Legal Planet.
Michele Bachmann has introduced legislation to overturn the statute requiring the use of energy-efficient light bulbs, according to E&E News. One feature of the bill is its escape valve:
Bachmann’s bill would allow the mandate to stand if the Government Accountability Office can prove the energy efficient bulbs would meet three criteria: that they provide real cost savings for consumers, significantly reduce carbon dioxide emissions and do not produce health risks for consumers. . .
“Frankly, I would be surprised if the GAO can prove these criteria, but at minimum, my bill will provide the opportunity to examine these important issues,” she added. “The American people want less government intrusion into their lives, not more, and that includes staying out of their personal light bulb choices.”
Why is this GAO escape-valve unconstitutional? The answer stems from the fact that the General Accountability Office is part of the legislative branch. As GAO’s website says:
Full textThis post was written by CPR Member Scholar Catherine O'Neill and Communications Specialist Ben Somberg.
The announcement from EPA Wednesday creating final standards for pollution from industrial boilers is being described by the press as “scale[d] back,” and “half the cost of an earlier proposal.” Those things are true, but the new regulation is no small matter. It will have a significant and positive effect on the health of people across the country and beyond.
Says the Sierra Club: "Though the announcement today is modest by comparison to the proposals put forth by the EPA last June, we urge Administrator Lisa Jackson to forge ahead to protect our children and families’ health." NRDC says: "EPA could have done more, but these standards accomplish long overdue, needed cuts in mercury, benzene, heavy metal and acid gas pollution from industrial plants. While the final biomass standards are notably relaxed in response to industry complaints, overall the safeguards still will save up to 6,500 lives, avoid 4,000 heart attacks, and prevent more than 46,000 cases of aggravated asthma and bronchitis every year. Americans deserve these tremendous health benefits without political interference by Congress."
"It appears that EPA has addressed many of the industry complaints while still putting out standards that would bring significant public health benefits," Frank O'Donnell of Clean Air Watch told Greenwire. "Let's hope that EPA stands its ground when industries argue for further changes."
The rule is long overdue. There are several air pollutants at play here, but let me focus on mercury for a moment. Industrial boilers as a category are the second largest domestic source of mercury, after coal-fired power plants. Mercury emitted to the air from boilers and other sources gets deposited to surrounding land and waters; ultimately, it makes its way into fish tissue in the form of methylmercury – a potent neurotoxin to humans. In fact, exposure to even small amounts of methylmercury in utero or during childhood can lead to irreversible neurological damage, placing the developing fetus and children at particular risk. Fish, in many areas a low-cost source of food, is being poisoned by mercury, and advisories suggest reducing or removing it from families' dinner plates as a consequence.
Full textCross-posted from Legal Planet.
The Supreme Court on Tuesday denied certiorari on two Endangered Species Act cases, Arizona Cattle Growers Association v. Salazar and Home Builders Association of Northern California v. US Fish and Wildlife Service. The cases were considered together because they raise the same issue: how the economic impacts of critical habitat designation should be calculated. Development and extraction interests hoped the Court would use the cases to force the U.S. to take a broader view of those impacts.
The ESA requires that the Fish and Wildlife Service designate critical habitat when it lists a species as endangered or threatened. The listing decision must be based solely on the species’ biological status. In determining critical habitat, by contrast, FWS must take into economic and other impacts into consideration and may exclude areas from critical habitat if it finds “that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat” unless including the area is necessary to prevent extinction.
FWS has adopted what it calls a “baseline” approach to the required economic analysis. It considers only the incremental costs imposed by critical habitat designation on top of any costs already imposed by listing alone. The costs imposed by ensuring that federal actions do not jeopardize the continued existence of a listed species, as section 7 requires, or by section 9′s prohibition on unpermitted take, do not factor into the agency’s determination of critical habitat. The resulting economic analyses generally conclude that the economic impacts of critical habitat will be fairly small. In its recent economic analysis of critical habitat designation for the polar bear, for example, FWS opined that critical habitat designation would not bring any additional conservation requirements. It concluded that the only costs added by critical habitat were a small amount of additional administrative costs associated with more complex section 7 consultation.
Full textIf you’ve ever visited the Great Smoky Mountains National Park—one of the most visited national parks in the United States—you have Horace Kephart and George Masa to thank. These two men, the first a travel writer, the second a landscape photographer from Osaka, Japan, each settled among those six-thousand foot peaks with intentions of starting a new life in the American wild. Unfortunately, the timber industry had gotten there first and was soon mowing down forests at the rate of 60 acres per day. Distressed by such calamity, Kephart and Masa organized a diverse grassroots campaign to raise millions of dollars to save the area. Fueled by church donations, high school fundraisers, and other activities, the campaign eventually enabled the federal government, through a public-private partnership, to set aside land for what would finally become by 1940, a protected, 814-square-mile expanse of America’s Great Outdoors.
On Wednesday, President Barack Obama invoked the memory of Kephart and Masa before a cheerful audience in the East Room of the White House, as he reported on his administration’s centerpiece conservation strategy known as the America’s Great Outdoors Initiative. I was there, squeezed between two-big shouldered men and surrounded by dozens of outdoor enthusiasts: ranchers, farmers, hunters, anglers, corporate executives, tribal representatives, backpackers, environmental activists, and two adorable grade school girls from the Washington area, wearing “Buddy Bison” T-shirts. I was not the only one to note the irony of celebrating the outdoors in an indoor venue (what, then, do you do with your cowboy hat?), but that point soon gave way to the just-released AGO Report which articulated for the first time the President’s strategy for a 21st century conservation and recreation agenda. (Disclosure: I recently served in the Obama Administration's EPA and contributed to the report.)
Open the executive summary to Chapter 1 and you learn that the most pressing challenge in the nation’s great outdoors is . . . Jobs! We need them! And fast! So the first recommendations center on streamlining federal career opportunities in nature conservancy and developing a Conservation Service Corps for young people interested in public lands and water restoration. Both fine ideas, particularly the second, which the President said would “encourage young people to put down the remote or the video games and get outside.” But the real meat comes in a later chapter on conservation and restoration.
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