Archive for the ‘Environmental Law’ Category
Braking Away
posted by Naomi Cahn
One of the benefits of being at GW is that I get to talk to Dan Solove in person. When I saw him on Wednesday, he reminded me that blogging doesn’t always have to be about my past books or future projects. Thanks, Dan!
Depending on where you live, today or tomorrow is “Bike to Work” Day. Bicycles have been around the US since at least 1866, when Pierre Lallement received patent no. 59,915 for a velocipede. I’ve been an avid year-round bike commuter for 8 years now (aside from my 2 years in Kinshasa, Congo, when I couldn’t walk around the block without an escort), and, like most zealots, I like to proselytize. Now that I’ve converted to a bike commuter, I extol the economic and environmental benefits of riding: bicycles don’t use any fossil fuels to get you from one place to another; an 8-mile bicycle trip keeps out about 15 pounds of pollutants from the air we are breathing; and somewhere between 6-20 bikes can be parked in one car parking space (mine is parked as a piece of art in my office). Just as importantly, however, bike commuting is really fun. It is fast: even at my pace on the bike of 10-15 mph, I breeze right past people in cars. And it’s wonderful for my mental health. One of my friends interviewed me for a story she wrote for Good Housekeeping magazine (!) about how people find serenity. I told her I find serenity through writing articles and blog posts, but she wasn’t convinced; not until I told her about my bike commuting did she put pen to paper. So, as one corporate sports giant might say, Just do it!
May 14, 2009 at 7:00 am
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Posted in: Environmental Law, Feminism and Gender, Technology
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Environmentalism by Breach of Contract
posted by Nate Oman
Tim DeChristopher, a Utah-based environmental activist, has discovered a new tactic in the war on global warming: intentional breach of contract. The Washington Post reports:
Instead of joining his protester friends on the snowy sidewalk outside the Bureau of Land Management office in Salt Lake City, Tim DeChristopher took a seat inside. In a room milling with oil and gas men who knew one another by sight, he was the unknown in a red parka, registering as a bidder in an auction for the rights to drill on 149,000 acres of federal land. DeChristopher was handed a red paddle bearing the number 70.
Half an hour later, he was raising it.
“I leaned forward to one of my colleagues and said, ‘This guy behind us is just running up the prices,’ ” said David Terry, a Salt Lake City oil-land man who routinely attends the BLM auctions. “And my friend said, ‘Yeah, he’s going to get stuck with a tract.’ ”
The University of Utah economics student got stuck with 13. Promising the federal government $1.8 million he does not have, DeChristopher emerged holding leases on 22,000 acres in the scenic southeast corner of Utah.
DeChristopher, of course, is judgment proof. Unlike the strategy of say the Nature Conservancy, which seeks to preserve wilderness through purchase or other contractual arrangements, DeChristopher’s goal seems to have been disruption and the running up of oil lease prices. He’s also apparently under investigation by federal agents. Not being a government contracts geek, I don’t know what federal statutes he may have broken by participating in the auction on a bad-faith basis. As an ordinary matter of contract law, however, his case creates some interesting issues.
January 13, 2009 at 11:16 am
Posted in: Contract Law & Beyond, Environmental Law
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Philadelphia Inquirer Series on Bush’s EPA
posted by Frank Pasquale
Someone should be calling the Pulitzer Committee to nominate the Philadelphia Inquirer’s fantastic series of articles on the Bush administration’s environmental policy, titled “Smoke and Mirrors: The Subversion of the EPA.” Here’s just one part of one story that sets the tone for the series:
In January 2005, residents near the chlorine plant here discovered that it was the biggest mercury emitter in the state. Environmentalists warned them against eating fish from their beloved Hiwassee River. They appealed to the plant’s owners, Olin Corp., to do what 100 other chlorine producers had done: abandon a 19th-century process that emits tons of the dangerous neurotoxin. Olin refused.
In fall 2005, the Environmental Protection Agency weighed in – but not to take up the cause of residents. Instead, EPA called Olin with an offer. Would the Charleston plant like to be enrolled in Performance Track, an elite green club of the nation’s most environmentally progressive companies?
In return, Olin could expect regulatory breaks, such as fewer inspections and loosened requirements on hazardous waste disposal, not to mention positive publicity. Sherry Neidich, who has lived half her life a mile downriver from Olin’s plant, was stunned. “The EPA is a toothless dog,” she said. “What right does someone have to ruin my river? To poison our playground?” . . .
[The Inquirer has found that] the EPA has recruited companies with mixed – even dismal – environmental records to become Performance Track members. Despite offering members regulatory breaks and promoting the program as one that improves environmental performance, the EPA fails to independently verify that Performance Track companies actually reach their goals.
According to the series, there is widespread exasperation in the courts (even among very conservative Republican nominees) about Bush-era extremism. As James R. May, (a Widener University lawprof and chair of the American Bar Association’s annual Environment and Energy Resources conference) puts it, “All across the spectrum, judges are finding that virtually every environmental initiative of the Bush administration is illegal.”
December 15, 2008 at 9:00 am
Posted in: Environmental Law
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Midnight Regulations
posted by Frank Pasquale
There was a good discussion of end-of-term regulations we can expect from the last days of the Bush Administration on the Diane Rehm show. Now the Washington Post has foreshadowed the lasting environmental impact the Bush agencies are planning:
Many of the rules that could be issued over the next few weeks would ease environmental regulations, according to sources familiar with administration deliberations. A rule put forward by the National Marine Fisheries Service and now under final review by the OMB would lift a requirement that environmental impact statements be prepared for certain fisheries-management decisions and would give review authority to regional councils dominated by commercial and recreational fishing interests.
Two other rules nearing completion would ease limits on pollution from power plants, a major energy industry goal for the past eight years that is strenuously opposed by Democratic lawmakers and environmental groups. One rule, being pursued over some opposition within the Environmental Protection Agency, would allow current emissions at a power plant to match the highest levels produced by that plant, overturning a rule that more strictly limits such emission increases. According to the EPA’s estimate, it would allow millions of tons of additional carbon dioxide into the atmosphere annually, worsening global warming. A related regulation would ease limits on emissions from coal-fired power plants near national parks. A third rule would allow increased emissions from oil refineries, chemical factories and other industrial plants with complex manufacturing operations.
Though these moves may be reversed under the terms of the Congressional Review Act, it has not proven to be very effective in the past. Senate holds may permit just one senator to keep in place a particularly retrograde rule–and the notice and comment needed to reverse it within the executive branch may take a long time. If the hold practice remains robust, Sens. Inhofe or Coburn of Oklahoma may simply block Congressional reversal of any of these moves.
October 31, 2008 at 5:01 pm
Posted in: Administrative Law, Environmental Law
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Unintended Consequences Watch: Food Crisis
posted by Frank Pasquale
Could a misguided response to global warming be the main reason for current global food shortages? That’s the apparent conclusion of an incendiary internal study at the World Bank recently leaked to the Guardian:
Biofuels have forced global food prices up by 75% – far more than previously estimated – according to a confidential World Bank report obtained by the Guardian. . . . [P]roduction of biofuels has distorted food markets in three main ways. First, it has diverted grain away from food for fuel, with over a third of US corn now used to produce ethanol and about half of vegetable oils in the EU going towards the production of biodiesel. Second, farmers have been encouraged to set land aside for biofuel production. Third, it has sparked financial speculation in grains, driving prices up higher.
If this report is true, it should be a sobering reminder for progressives that “raising consciousness” about a particular problem is useless in the context of “politics-as-usual.” Many voices warned about the consequences of food/fuel competition for grains, but were dismissed as Cassandras and neighsayers. Consider this view from Lester Brown in 2006:
Now, almost everything we eat can be converted into automotive fuel. And once the price of oil surpassed $60 a barrel last year, the business of transforming wheat, corn, soybeans and sugarcane into fuel for cars instead of food for people became hugely profitable. As crops that have long sustained us are diverted to provide fuel, we [are setting up] a battle between the world’s 800 million automobile owners, who want to maintain their mobility, and the world’s 2 billion poorest people, who simply want to survive.
$60 a barrel–would that were possible now! In any event, the food/fuel crisis is a stark indicator that go-along, get-along politics in Washington (and the corn/car/oilman alliance that drives our energy policy) can have deadly consequences. It also teaches that inequality is the most important narrative frame and context for major policy decisions. Neoclassical economic thought tends to treat the fact of inequality as secondary, and it certainly isn’t comfortable for average drivers to recognize their complicity in troubling trends worldwide. But if progressives don’t keep the harsh facts of inequality foremost in their environmental advocacy, they risk creating sham crises which provoke “cures” that are worse than the disease they purport to cure.
July 8, 2008 at 8:37 am
Posted in: Environmental Law
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The Greening of Venture Capital
posted by Darian Ibrahim
It seems that everyone is going green these days, and venture capital is no exception. VCs are directing lots of money to start-ups developing more efficient solar panels, synthetic ethanols, and other clean technologies. Some see this sector as the next Internet. There is huge market potential and a favorable political climate on both sides of the aisle.
There also appears to be widespread agreement that measures aimed at existing energy sources (like carbon cap-and-trade systems) might be useful in the short term, but that innovations in clean tech are our best long-term solution. President Bush repeatedly mentioned the need for clean technologies in a recent speech on climate change, and Al Gore made headlines when he joined the leading venture capital firm of Kleiner Perkins last November. According to the Financial Times, KP just tripled its set aside for future clean tech investments.
Yet for all the VC dollars being funneled to clean tech, there is a healthy dose of skepticism about its market potential. Some think that the real story here is liberal, rich-enough VCs like KP’s John Doerr using their market power to direct investors’ money to serve an environmental cause regardless of whether the investments will turn a profit.
Am I a clean tech believer or skeptic? Answer below the fold…
July 2, 2008 at 11:05 am
Posted in: Corporate Law, Environmental Law, Technology
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Floods and Agricultural Conservation
posted by Steph Tai
Today’s Washington Post has an article on suggestions by natural resources professors that the recent flooding in Iowa have some manmade bases. Some of the human-related causes include increased wetlands development, increased use of subsurface drainage pipes, lowered crop rotation (away from crops that put down deep roots, and towards shallow-rooted crops like corn), and additional generation of sediment due to agricultural and development practices.
Many of these causes of flooding relate to agricultural practices. But whether the 2008 Farm Bill–the remainder of which was passed last night over an earlier presidential veto (complicated story)–will happen to address some of these potential problems will probably be in debate. A focus on growing corn is still likely to increase, given some of the biofuels production incentives contained in the 2008 Farm Bill.
Moreover, as environmentalists critical of the new Farm Bill have pointed out, the enrollment cap in the Conservation Reserve Program (in which farmers are given incentives to take environmentally sensitive lands out of crop production) is reduced from 39.2 million acres (in the earlier version of the bill) to 32 million acres in the current Farm Bill. And the enrollment cap for the Wetlands Reserve Program (in which farmers are given incentives to reserve wetlands) is reduced by 25%. And the 2008 Farm Bill didn’t contain the stronger of the contemplated Sodsaver provisions, which would have created disincentives for farmers to plow up native prairie grasses.
On the other hand, the Farm Bill also contains the first federal energy crop program to encourage the growth of cellulosic energy crops like switchgrass, which have deeper roots, And some of the payouts for the different voluntary conservation programs have increased, potentially increasing the incentives for farmers to enter these voluntary programs (in an attempt to address earlier criticisms that too often, farmers would find it more financially rewarding to opt out, rather than in).
Me, I’m still going through the various relevant provisions of this massive +200 page document to see what I think. But I’m interested in hearing from those of you who are more immersed in the agricultural side of things!
June 19, 2008 at 4:52 pm
Posted in: Environmental Law
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Hypermiling and EPA vehicle efficiency estimates
posted by Steph Tai
Thanks for the welcome, Daniel!
I’m just getting settled into being back in Madison after a long road trip to Texas and back, during which my partner D was generous in driving the entire time, because I am a wimpy (and not particularly skilled) driver. We decided to drive partly to reduce travel costs, and partly to lower our carbon footprint.
To make the drive more interesting, my partner (during stretches of little or no traffic) decided to practice some hypermiling techniques. The idea of hypermiling is to use various driving practices, like pulsing and gliding in order to exceed the US EPA’s estimated fuel efficiency on one’s vehicles. Some of the techniques used by hypermilers are are relatively noncontroversial (like keeping your car maintained), while others (like drafting off trucks to avoid wind resistance) are much more controversial (and many hypermilers avoid them). According to D, some of these techniques are more “fun” (like thinking about ways to use hills to one’s advantage, and planning one’s routes to avoid using the brake as much).
So what’s this foray into hypermiling accomplished? In our blue ‘05 Prius, we managed to get over 70mpg (EPA’s combined city/highway estimate is 46 mpg), which is still nowhere near the over 100mpg that some hypermiling marathoners have achieved. In his defense, D’s just starting. But he still might need more practice before being anywhere near competitive in the upcoming 2008 Hybridfest MPG Challenge.
One interesting thing is the relationship between hypermiling and official estimated fuel efficiencies for vehicles. If gas prices keep increasing, will more people adopt some of the more efficient driving techniques of hypermiling? After all, there’s already been studies that suggest that the amount of driving has decreased as a result of high gas prices. So what if the amount of driving not only goes down, but the actual driving is done with gas efficiency in mind? Is there a point at which the EPA must change its techniques for estimating vehicle efficiency to adapt to changing driver practices?
Update: As commenter Jon Garfunkel points out, there’s a lot more nuance to this.
The historically cheap price of gas in the U.S. (and vast size of the country, and commutes) hadn’t encouraged enough drivers to think about buying fuel efficient cars. So the Energy Tax Act of 1978 added the “gas guzzler tax” to push the disincentives up front to the purchase of a new car (strictly speaking, it’s assessed to the manufacturer, who duly passes it along in the total sticker price.) After all, even the most economically rational consumer can best weigh in the cost of gas today, not in the future, when they’ll be buying most of it.There’s one twist: the gas guzzler tax is calculated based on the EPA mileage estimate. And the EPA in fact changed their formula a year ago. They changed it not to reflect the obscure hypermileage subculture*, but instead some more real world factors of like the A/C, quick acceleration, etc. And thus it increased the number of cars subject to the gas guzzler tax. If fellow liberals here are looking for administrative measures over the last eight years to celebrate, this could be one of them.
June 9, 2008 at 6:09 pm
Posted in: Environmental Law
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Suing Big Energy for Global Warming?
posted by Frank Pasquale
The Tom Ashbrook show features two innovative (and perhaps quixotic) attorneys who are suing “24 oil, coal and electric companies” for global warming on behalf of the “tiny fishing village of Kivalina,” which is “falling into the sea.” I predict the defense will be reading David Dana’s paper “The Mismatch between Public Nuisance Law and Global Warming” very closely.
Meanwhile, Dean Saul Levmore of Chicago predicts a “battle of the generations” on the issue, while Eric Posner and Cass Sunstein discuss what justice requires the US to do here. I was disappointed that these discussions did not adequately focus (or perhaps ignored–but I can’t claim to have listened to every minute) on the extraordinary waste of energy in much of the US (and some other parts of the developed world). Autos in Europe & Asia routinely get much better mileage; just consider these stats on fleetwide standards for new vehicles:
Japan: 46 MPG
EU: 43 MPG
China: 36 MPG
US Cars: 27.5 MPG
US Light Trucks: 22.2 MPG
Since 1980, consider how the following countries’ oil consumption moved:
Denmark: Down 33%
Sweden: Down 32%
Germany: Down 20%
France: Down 14%
Finland: Down 14%
Italy: Down 13%
Japan: Up 0.2%
UK: Up 2%
US: Up 21%
Now there’s a real triumph for the US’s resistance to “central planning” for a sustainable future.
I’m sure that many great and good legal analysts will be mocking the Alaska nuisance suit against big energy. But they might want to consider first what alternative exists given the apparent stranglehold of big energy over the US political process, and the warped priorities that predictably brings. It’s all very well to sign up for a “Pigou Club,” but when you’re inextricably tied to politicians who oppose even the most minimal steps toward energy independence, it’s a bit disingenuous to claim that you really care about the problem.
May 16, 2008 at 8:31 am
Posted in: Environmental Law
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Dilemmas of the Cheap Aesthetic
posted by Frank Pasquale
I’ve frequently taken aim at “expensive tastes” on this blog. It seems like the corollary of that critique would be praise for inexpensive tastes, or a cheap aesthetic. This may well be the cheapest music video ever made (American Princes, Never Grow Old):
Here’s the band’s (promoter’s) description of the video on YouTube:
Take a moment and think back to the younger years. All you have is a pen, notebook paper, and an imagination. No distractions to interrupt you, just you and the music in your head. How would you envision your new favorite rock band? American Princes captures this innocent moment with their music video, Never Grow Old. It will effortlessly and entertainingly take you back to simplicity . . . . It’s new, fresh, ingenious, and original.
The simulations here are not merely simple (unlike, say, Justice’s graphics-dominated video for DVNO), but are quite a lot less resource-intensive than, say, real drums, guitars, stages, etc. Never Grow Old reminded me of Albert C. Lin’s article Virtual Consumption: A Second Life for Earth (2008 BYU L. Rev. 47), which provides a creative response to the Malthusian dilemmas I was discussing yesterday.
April 8, 2008 at 7:47 pm
Posted in: Current Events, Cyberlaw, Economic Analysis of Law, Environmental Law, Politics, Technology
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On the Colloquy: Jurisdiction and Climate Change
posted by Northwestern University Law Review
This week, the Northwestern University Law Review Colloquy published a response by Professor Scott Dodson regarding the Supreme Court’s decision in Bowles v. Russell. He responded to critiques by Professor Elizabeth Chamblee Burch, Mr. E. King Poor, and Professor Perry Dane and defended his position that the Court disrupted prior precedent in Bowles. To see all of the pieces in the series, click here.
Last week, Professor Howard M. Wasserman responded to Professor Dodson’s Article In Search of Removal Jurisdiction, 102 Nw. U. L. Rev. 55 (2008). His Essay examines the connections between jurisdiction, merits, and procedure, when the connections come into play, and how to separate them out.
On February 11, Professor Robert L. Glicksman participated in the ongoing debate on climate change legislation. He discussed which federal agencies should be responsible for implementing climate change regulation, the proper measure of discretion that Congress should afford these various agencies, and whether the regulation should trump state and local initiatives. To see all pieces in the series, click here.
For more, go to the Colloquy archives page, and remember to check back each week for new content.
February 26, 2008 at 9:57 am
Posted in: Criminal Procedure, Environmental Law, Law Rev (Northwestern), Law Rev Forum
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Tex-ternalities and the China/Europe Spectrum
posted by Frank Pasquale
I’ve recently come across these three facts about Texas:
1) About 60% of US executions occur in Texas.
2) About 20% of children in Texas do not have health insurance–almost twice the national average.
3) Texas produces more greenhouse gas emissions than California and New York combined.
When I first saw these figures, I thought that Texas may be burdening the US with some “reputational externalities” abroad, manifest in books like Vernon God Little. The judges who awarded it the Booker Prize called it a “coruscating black comedy reflecting our alarm but also our fascination with America.”
Some economic theories predict that these externalities will eventually be internalized. For example, there are many stories about a European condo-buying boom in New York; I haven’t seen as much on residential real estate purchases by overseas buyers in Texas. According to Anup Malani, “The value of a law [may] be judged [in part] by the extent to which it raises housing prices.” So perhaps more highly valued laws elsewhere in America will push up housing prices, comparatively enriching those property owners.
On the other hand, perhaps Texas’s policies are a bid to flatter China by imitation. Pollution in places like Shenzhen is a big problem (and that’s just the tip of the iceberg). Executions are common. And China’s decisions about health care in the 1980s and 90s might warm many laissez-faire hearts: “From 1978 to 1999, the central government’s share of national health care spending fell from 32 percent to 15 percent [and] the central government drastically reduced its ability and commitment to redistribute health care resources from wealthy areas to poor areas.”
Looking at world trends, a modern-day Tocqueville might think that the US’s future lay in political development of either a Chinese or EU variety. Texas appears to be a red state in more ways than one.
December 26, 2007 at 8:57 pm
Posted in: Capital Punishment, Criminal Law, Current Events, Economic Analysis of Law, Environmental Law, Politics
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What I Want for Christmas (Sort of)
posted by Deven Desai
Popular Mechanics has a fun piece about a car company called Aptera. It looks cool and is made here in the U.S.A. In fact it is made up the road from me in Carlsbad, CA. The hybrd prototype will cost $30K according to the company. It can get a claimed 300 mpg. The available all electric gets, well it is not mpg, but has a 120 mile range. That one seems like the same problem all electrics had before: short range and need to plug in. Still the vehicle looks like fun. Apparently it handles well too. Why do I want it? Well honestly I love the idea that such a cool car is designed and built in the U.S. The price seems right too. If the company does well I hope some massive U.S. automaker buys them (making the Aptera people as rich as they may deserve to be) and regains some leadership in the car market. In addition, the company and the approach reminds me of the small, dedicated aerospace companies of California’s past. They went on to greatness. Maybe these folks or others like them will enjoy that type of success too. So that is what I really want for Christmas and having the car is just a proxy for the idea. Then again if someone wanted to give me one, I wouldn’t object.
Here’s the video:
December 23, 2007 at 6:33 pm
Posted in: Environmental Law
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Cherry Pies, Candy Bars, and Chocolate Chip Cookies: The Nobel Peace Prize Concert
posted by Deven Desai
Al Gore and Rajendra Pachauri, the head of and representing the Intergovernmental Panel on Climate Change, accepted the Nobel Peace Prize for their work on climate change. Yes, it is an important issue. Here are Gore’s speech and Pauchari’s speech on behalf of the IPCC. Gore pulled out the stops and invoked Churchill and Hitler. The IPCC speech detailed many problems including one I recall from years ago when I took a class called the Water Planet at Berkeley. The professor had a few lectures on the science and then hammered water policy. This was around 1990 and I remember thinking his points about wars and conflicts turning on water policy were quite persuasive. Today they seem prescient. Gore’s and others’ calls for legislation and ways to address an event that will shape our future pose numerous fascinating and complex questions that require much thought. Maybe that is why I was distracted by the gala aspect of the Prize. I had always thought of the Nobel ceremony as a somber event when I read some of the speeches in high school. Apparently things are bit more festive than I realized.
First there is a banquet, “an event many would pay a fortune to attend.” (seriously right there at the home page) The banquet page details all the themes and history behind the dinner. As if that were not enough there is a big show that was almost thwarted until Kevin Spacey stepped in to cover for Tommy Lee Jones as co-host with Uma Thurman at the Nobel Peace Prize Concert. Yes, folks, the Nobel Peace Prize concert. The Web site looks more like an Academy Awards event than I expected. Alicia Keys, Annie Lennox, Kylie Minogue, Earth Wind & Fire, Melissa Etheridge, Morten Harket, KT Tunstall, Juanes, Junoon, Nick Davies (conductor) and the Norwegian Radio Orchestra perform. Wikipedia has a nice entry about the history of the concert which dates from 1994. Take a look there are some impressive names in there not to mention some Nobel Prize winners. (Sinead O’Connor singing in front of Arafat, Peres, and Rabin must have been surreal. Boyz II Men performed one year. The list is fascinating.)
Now although I do think that the issue is important I think that the committee erred. Maybe Earth Wind & Fire were a nod to the elements and the environment or maybe people miss that fat horn section (I do). Regardless the obvious choice should have been a reunion of Talking Heads and the song has to have been (Nothing But) Flowers. It was 1988 and environmental commentary with intelligent, witty satire flew. (Here are some choice lines but listen to the whole thing. “The highways and cars were sacrificed for agriculture … We used to microwave, now we just eat nuts and berrries. This was a discount store now it’s turned into a corn field”). Not to mention the world music aspect of the song seems to fit with the Nobel Prizes. The album is Naked (I also recommend Remain In Light arguably a masterpiece). You ask where is this song? As Talking Heads might say you got it.
image: Wikicommons
cross-posted at Madisonian
December 11, 2007 at 3:24 am
Posted in: Culture, Environmental Law
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Law Talk: Linda Malone on Litigating Global Warming
posted by Nate Oman
In this episode we hear from my colleague Linda Malone, at William & Mary Law School. Linda is an expert on international law, national security law, and the legal issues surrounding global warming. In this episode Linda discusses new litigation strategies that are using domestic courts as a way of enforcing international norms on global warming, as well as forcing action by domestic regulators. Her remarks were originally delivered as the St. George Tucker Lecture at William & Mary, which is given each year to honor the scholarlly accomplishments of a senior member of the law faculty.
You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.
December 3, 2007 at 9:42 am
Posted in: Administrative Law, Environmental Law, Law Talk
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Why did the US try to Undermine EU Safety Regulation?
posted by Frank Pasquale
As a website relates, “Mark Schapiro’s new book Exposed: The Toxic Chemistry of Everyday Products investigates how corporations intent on thwarting stricter environmental and health guidelines here in the U.S. are forced to meet new demands by the European Union.” An excerpt from the book compares the U.S.’s oft-toothless Toxic Substances Control Act to the EU’s scheme for Registration, Evaluation and Authorisation of Chemicals (REACH). Schapiro notes that “REACH amounts to a revolution in how chemicals are managed, and in how production decisions around the world will be made from now on.”
As REACH was being crafted, the U.S. decided to intervene decisively:
[A]s REACH was being debated in the European Parliament from 2003 to 2006, the U.S. government and the nation’s industries teamed up to undertake an unprecedented international lobbying effort to kill or
radically weaken the proposal. The assault came from an assortment of government and industry offices.
A memo that circulated at the State Department’s Bureau of European and Eurasian Affairs denounced REACH as too “costly, burdensome, and complex” for industry to follow. . . [A] Commerce Department brief warned, “hundreds of thousands of Americans could be thrown out of their jobs.” U.S. Trade Representative Robert Zoellick submitted a protest to the World Trade Organization asserting that REACH amounted to a “non-tariff” barrier to foreign exporters.
Though REACH promises to become a world standard, the U.S. may soon see itself in the position that Larry Summers recommended for LDC’s: “our nation’s steady retreat from environmental leadership means it may soon become a dumping ground for chemicals deemed too hazardous by more progressive countries.” Schapiro suggests that the bottom line will be an relative increase in European power and quality of life: “American consumers are more at risk than their European counterparts[;] the European Union is . . . gaining the upper hand in regulating the behavior of multinational corporations; and [the EU] is thus amassing more economic power.”
December 2, 2007 at 12:05 pm
Posted in: Administrative Law, Environmental Law, Politics, Sociology of Law, Technology
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Yoshida Battles the Pink Jellyfish
posted by Frank Pasquale
The WSJ has a great story on a jellyfish invasion in Japanese waters:
Fisherman Ryoichi Yoshida pulled in his nets before dawn one morning, hoping for lots of yellowtail and mackerel. But the fish were overwhelmed by a heaving mass of living pink slime. The creatures, called Nomura jellyfish, can measure six feet across and weigh up to about 450 pounds.
Fish poisoned by jellyfish tentacles die with their mouths agape. That mars their appearance and reduces their value by as much as 20%. “When their mouths are wide open, it means they’ve died going, ‘I’m in pain! I’m in pain!’ ” explains Mr. Yoshida.
The jellyfish could lead to an international incident–either over Chinese industrialization, or global warming:
[A] computer model of ocean currents suggests the jellyfish are breeding off the Chinese coast near the mouth of the Yangtze River. One theory is that pollution, perhaps linked to industrialization in China, is helping create more algae in the sea. The algae are food for plankton, which is food for jellyfish. . . . [But the] dean of the Ocean University of China [says] “Floating jellyfish are mostly in the Sea of Japan….That’s Japan and Korea’s problem.”
One fear among scientists is that the creatures are multiplying in a “jellyfish spiral.” Shinichi Uye, a leading jellyfish researcher at Hiroshima University in western Japan, thinks overfishing off China has led to fewer plankton-eating fish, leaving more plankton for the jellyfish to suck up. This growing army of jellyfish then also eats fish eggs, resulting in even fewer fish.
If China is helping to generate giant pink jellyfish, it will be interesting to see if any international body can do anything to control the problem. On the other hand, the new popularity of “vanilla-and-jellyfish ice cream” shows that the industrious can turn even the most noxious pests into a blessing in disguise.
Photo Credit: Flaming Lips, Yoshimi Battles the Pink Robots.
November 29, 2007 at 8:57 pm
Posted in: Environmental Law, Weird
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Whom The SUV’s Help
posted by Frank Pasquale
I was recently listening to a podcast of Peter Singer at the University of Chicago Law School. He recounted a story about a 2001 press conference with Ari Fleischer, where the President’s spokesman was asked if the administration would ask Americans to “change lifestyles” in order to conserve. Here’s the answer:
That’s a big no. The President believes that it’s an American way of life, and that it should be the goal of policy makers to protect the American way of life. The American way of life is a blessed one.
Now the blessings of our liberty are subsidizing some of the most repressive regimes on the planet:
[About] $700 billion a year are flowing to the world’s oil-exporting countries [due to recent price rises]. Two of those nations — Iran and Venezuela — may be better able to defy the Bush administration because of swelling oil revenue. . . . .Russia, the world’s No. 2 oil exporter . . . . is trying to reclaim former Soviet republics as part of its sphere of influence. Freed of the need to curry favor with foreign oil companies and Western bankers, Russia can resist what it views as American expansionism.
Might the great oil wealth redistribution lead to the end of knee-jerk libertarian defenses of SUV’s? Or is there some Schumpeterian “creative destruction” story to be told here, whereby the short-run costs speed the development of transformational energy technologies? I’ll believe the latter story when I see real venture capital money behind it.
Photo Credit: Hugo Chavez, Dictator of the Month.
November 10, 2007 at 1:12 pm
Posted in: Economic Analysis of Law, Environmental Law
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Suing the EPA to Act
posted by Deven Desai
Several states including California and a block of states in the Northeast are preparing to sue the EPA to act. The issue is the EPA’s delay in granting waivers so that states can use their power under the Clean Air Act to regulate automobile emissions. California has been waiting two years for the waiver. The idea is to ensure that the agency acts, but it appears that the agency could rule that the state action is not authorized. As David Doniger, an attorney for the National Resources Defense Council, put it “The real issue is, will [the EPA’s administrator] block the states or let the states go forward?” In addition, a group of 10 states are issuing regulations regarding power plants under a Regional Greenhouse Gas Initiative. New York is part of that group. Its regulations are to take effect next year. That strategy helps wind and solar power producers and will make it harder for coal-based producers. The Times article noted that the largest investor-owned energy producer in New York backs the idea and does not operate coal plants in the state. In contrast the Independent Power Producers of New York, a trade group that includes coal-based power producers, opposes the state regulations. This quote from the group’s CEO is interesting for its use of fear and the idea that some other state would gain from the regulations.
“We don’t want to put more burden on the rate payers of New York, and the last thing I would think this governor wants to do is send the message that investment should go in other states,” said Gavin J. Donohue, the group’s chief executive. “You can build plants in other states and send the electricity back into New York.”
If one wanted to study a simple way to try and hit the people this quote offers a decent, albeit transparent, example. First claim that costs will go up for individuals. That may be true, but the long-term as opposed to short-term cost question is lost in this framing not to mention that these are elected officials who just might have accounted for the perception of near-term rate increases. Second, indicate that investment will flee. Sure, coal-based and other methods of power production that generate greenhouse gases may leave. Then again, those companies interested in areas favorable to other energy production may rush in and invest more. Furthermore, they will have to build new plants just to be able to offer their energy; that may require investment. Third, suggest that one’s business is impervious because there is always a market and others will take in the producers only to allow them to sell back to New York. This last point raises an issue of whether some states lack the ability, will, or interest to stop the coal producers and thus they will allow the energy producers to generate negative effects in any event. If so, then the argument seems to be let us produce in your state and at least get the investment benefit, because we will pollute elsewhere, further global warming, and still sell our energy so nyah (imagine a tongue sticking out here). It is unlikely that the last analysis is exactly what the group wanted to say, but it seems to be a possible interpretation.
Last, I am not an environmental law person so any thoughts about the issue from the regulation to the implications of suing the EPA to act to the negative externality issues in this context are appreciated.
Hat Tip: Slashdot
(Image Source: Wikicommons)
October 24, 2007 at 11:20 pm
Posted in: Environmental Law
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Charismatic Mini-Fauna
posted by Frank Pasquale
Anyone interested in the Endangered Species Act might enjoy reading D.T. Max’s story on Squirrel Wars in England. The gray squirrel is rapidly displacing the red squirrel because it carries a virus–squirrelpox–to which it is immune (but which kills the reds in a gruesome manner). Given the virulence of squirrelpox, I’m sympathetic with a quarantine effort, but some members of the House of Lords believe something more is at stake:
Lady Saltoun of Abernethy, the 21st to hold that title in Scotland, [has] point[ed] out the inherent superiority of the red over the gray squirrel: “Red squirrels,” she said, “are rather like quiet, well-behaved people who do not make a nuisance or an exhibition of themselves or commit crimes and so do not get themselves into the papers in the vulgar way gray squirrels do.”
And who brought these vulgarians to England’s green and pleasant land? The “first gray squirrels came to Britain to amuse the rich, probably in the early 19th century,” having been imported from America. As Max quotes one Oxford squirrel authority, “I know of more than one patriotic Englishman who has been embittered against the whole American nation on account of the presence of their squirrels in his garden.”
October 6, 2007 at 3:10 pm
Posted in: Environmental Law
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