Environmental Litigation - American Bar Association
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Environmental Litigation - American Bar Association
Winter 2009 Volume 20 Number 1 Section of Litigation American Bar Association Environmental Litigation Committee Permitting Rising Seas in a World That Is Flat: An Environmental Dilemma By Joseph Z. Fleming S Contents ea levels may be rising, but are we rising to the occasion and raising the levels for necessary protection? Most global warming energy legislation is based on the assumption that we are impacting the atmosphere, changing the climate, and causing rising seas. Such legislation seeks to prove incorrect Mark Twain’s remark that “everyone complains about the weather, but no one does anything about it.” However, the following “climate” storms appear to be forming: (i) While energy legislation may reduce carbon emissions, and assist in curbing what appears to be a cause of global warming, whether effective legislation can be enacted is being debated. Some pending proposed legislation—if it meets its goals—may also increase prices and cause potentially detrimental effects in other areas. (ii) While some states have promoted executive and legislative action aimed at curbing energy use and fighting global warming, there are limits on what such governmental efforts can accomplish. (iii) Increasingly, there are those who maintain that, in addition to solving global warming issues, for reasons of national security and environmental protection, consuming less energy will be important. While there may be a consensus among some developed nations for reducing energy consumption, many emerging economies desire to consume cheaper, pollution-causing forms of energy. Even if all pending legislation now being considered were implemented and reached desired results, it would not solve the problem of global warming and resulting rising sea levels. Rather, it may be necessary to evaluate additional ways of responding to global warming and rising sea levels. We may need to evaluate the type of legislation that would enable us to remove our coastal resources (not only wetlands, water supplies, and environmental resources, but also our urban coastal communities) from harm’s way. Current solutions being discussed do not raise our endangered coastal levels above anticipated increases in sea level. A Flat World May Encourage Coastal Zone Population For the most part, the decision to populate an area is a personal one, but it also involves certain collective impulses and needs. Many desirable coastal areas are going to be increasingly populated. Because of the Internet—and the reality that the world really is “flat”—you can live anywhere and have access to communications and necessary reference materials.1 Not too long ago, you had to be in, or move to, a particular urban center for resources access (including markets). Even if you could travel to distant locations, you needed communications systems and access to information when you got there. The result prevented the type of freedom to populate that we now have. There is no longer much need to be in London, New York, or Tokyo solely to have data, or to be in a city with an international communications center, as a requirement for transacting many businesses. Even people living in large urban areas and working in large offices may not need to meet. They may be able to coordinate better, even within the same office building, by sending emails that reach numerous people simultaneously and allow numerous instant responses. Global outsourcing is also becoming a part of business because of the ubiquitous access to information and the instantaneous ability to respond. Others, less fortunate, may lack ability to move from endangered coastal areas. The result has been, and will continue to be, an increase in populations in desirable coastal climates. However, there are new climate considerations. Just a few decades ago, due to fewer inhabitants in (Continued on page 11) Message from the Cochairs.............................................................................................................................................2 Fitting Animals into Environmental Law: A Subversive Litigator’s Guide..........................................................................3 Regional Regulation of Greenhouse Gas Emissions: Carbon Cap-and-Trade Programs Finally Arrive ................................6 The Higher Cost of Drinking Water...................................................................................................................................9 Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Winter 2009 Volume 20 Number 1 Committee Cochairs Kevin J. Bruno Charles M. Denton Coeditors Matthew P. Coglianese Kenneth K. Kilbert Matthew F. Prewitt Associate Editor J.R. Haugen Art Director Amanda Draper The Environmental Litigator (ISSN: 19372868) is published quarterly by the Environmental Litigation Committee, Section of Litigation, American Bar Association, 321 N. Clark Street, Chicago, IL 60654; www.abanet.org/litigation. The views expressed within do not necessarily reflect the views or policies of the American Bar Association, the Section of Litigation, or the Environmental Litigation Committee. Copyright © 2009 American Bar Association. All rights reserved. For permission to reprint, contact ABA Copyrights & Contracts, 321 N. Clark Street, Chicago, IL 60654; fax (312) 988-6030; email: [email protected]. Address corrections should be sent to the American Bar Association, c/o ABA Service Center, 321 N. Clark Street, Chicago, IL 60654. www.abanet.org/litigation/ committees/environmental © 2009 American Bar Association. Produced by ABA Publishing. 2 MESSAGE FROM THE COCHAIRS By Kevin Bruno & Charlie Denton W elcome to another outstanding edition of our Environmental Litigation Committee newsletter. You may notice various improvements, both in format and content, due in part to our transition to the ABA production model, and in large part to the continuing excellent efforts of our coeditors: Kenneth Kilbert, Matt Coglianese, and Matthew Prewitt. They deserve special congratulations for receiving the Outstanding Newsletter Editors award from the ABA Section of Litigation in September. Following the ABA Annual Meeting in New York, it is official: Kevin Bruno is now cochair of the Environmental Litigation Committee. The related news is that Paul Nettleton has been elevated to a Director of Division V (meaning he is our boss). Under the leadership of Doug Arnold, and with the assistance of Sandra Kearney and others, planning for our annual joint CLE seminar is going well. Among the programming will be the session “Evidentiary Issues Relating to Technical Data,” which will include perspectives from the U.S. Department of Justice, a court of appeals judge, and an expert witness from Exponent. We will also have an extra “Environmental Enforcement Update” program with the deputy director of the Office of Civil Enforcement of the U.S. Environmental Protection Agency, and the assistant chief of the Environmental Crimes section of the U.S. DOJ. Also, one of the exciting plenary sessions addresses “Best Practices for Handling the Trial and Appeal of the Ever-Present Punitive Damages Case” with the U.S. Supreme Court advocates from the recent Exxon Valdez case. The setting for this year’s joint CLE seminar is also outstanding: Vail (Colorado) Cascade Resort & Spa (www.vailcascade. com). So, save the dates of January 22–24, 2009, and watch for registration information with the brochure in your mail, and on our website: www.abanet.org/litigation/ committees/environmental/home.html. We are also pleased to announce that our committee has had a three-program environmental litigation issues track accepted by the Section of Litigation for the Section’s annual meeting (Atlanta, April 29– May 1, 2009), as well as an environmental program as part of a products liability track with the Products Liability and Business Torts Litigation committees. Our programming cochairs Dave Erickson and Jeff Pollock have been spearheading that effort. Our subcommittee chairs are also working hard, including our Subcommittee of Women Environmental Litigators (SWEL) led by Maggie Tindall. Additionally, we are planning a committee membership drive this year, with a focus on diversity and young lawyers, to which all of you can contribute. Stay tuned. Kevin Bruno Robertson Freilich Bruno & Cohen [email protected] Charlie Denton Barnes & Thornburg LLP [email protected] If you would like share recent cases of interest to environmental litigators, we encourage readers to submit brief case summaries for our Committee’s website. Please send submissions to our web editors, Andy Mauck ([email protected]), Ryan McKain ([email protected]), and Ted Warpinski ([email protected]). Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Fitting Animals into Environmental Law: A Subversive Litigator’s Guide By Mark J. Bamberger A s we, who have spent a long time in the environmental industry in general and the environmental practice specifically, see some of our hopes and dreams come to fruition with greater societal awareness of the importance of environmental issues, litigators of animal law struggle to fit the protection of nonhumans into the greater perspective of protecting the planet. However, many of us are now more familiar with the sustainability, carrying capacity, and ecocentric arguments about the importance of saving more than just our own species, and can explain how issues may be successfully litigated for the legal rights of animals.1 Where Animals Fit Typically, the concept of litigating animal law is far down the list of topics important to environmental litigators, but there have been a few recent public concerns that might change that trend. These include the reported loss of polar bear habitat due to global warming, groundwater contamination from concentrated animal feeding operations (CAFOs),2 and the mistreatment and over-injection of our meat supply in factory farmhouses. Even in the heady days of the Progressive Era of the early twentieth century in America,3 or the environmental awareness era of the 1960s, the idea of providing legal protections to animals was not part of the mantra. There was growing vegetarianism during these times, but not a push toward legal protections that resembled those for humans. We Protect the Cute There has always been a bias toward the cute. Just as studies have shown that “attractive” women and men get more advantages in our society, so too do the nonhuman animals. We find it repugnant for other cultures to kill dogs and cats for food, but think nothing of slaughtering cows and pigs by the tens of millions to feed our lust for meat. We pick and choose the animals we find important, often based on their aesthetic or utilitarian value. We always have. Obviously, those advocating the mass killing of cows have never looked deeply into their beautiful, brooding brown eyes. This bias, though unfortunate, is natural. Instead of trying to change human nature, the environmental litigator should harness its power for the best interests of those who cannot speak for themselves in our legal system. It is far easier to make the argument that we should protect animals because they are aesthetically pleasing than because they fill important niches in a local, regional, or even global ecosystem. Though this does not do much for the animals who we think were hit with the ugly stick, we can build persuasive legal arguments for the preservation of those creatures in the greater context. As a long-time scientist, I can tell you what most litigators already know. There is little place for complex scientific concepts in the courtroom, at least not without a lot of basic introduction and a nice, straightforward presentation. It is absolutely true that extinctions have gone on for a couple of billion years now; after all, Darwinian evolution has more to do with failure than with success.4 However, the important point to emphasize is the pace of extinction. Extinction is a natural, and necessary, aspect of micro-, if not macro-evolution. But the pace at which we are making species go extinct is unprecedented. In the debate over global warming, most naysayers mention that the planet has heated and cooled with or without us for eons. Of course this is true. What is deceptive about that statement is that the operative issue is not the action, but the pace at which it is taking place, which by all geologic analysis is also unprecedented. This is a subtle, yet critical, differentiation. Like a sealed beaker, the planet is a closed system. Le Chatelier’s principle tells us that the amount of instability brought to a system is directly proportional to the amount of time that system will need to re-equilibrate. In the case of global warming or extinction, the dramatic and fast-paced changes we are seeing now will have long-term effects, perhaps not in geologic time, but certainly in human or animal time. Witness the Polar Bear The two biggest factors contributing to the rise in environmental awareness in our culture, which are directly related to each other, are global warming and skyrocketing energy prices. The poster child for global warming is the polar bear, which we tend to view as a large, cuddly teddy bear, possibly gulping Coca-Cola while riding sleds down arctic slopes. Though in truth they are fierce hunters who could gut a human with one swipe, they are furry and cute, and they have cute cubs, so we strive to protect them. The campaign has focused on how adorable polar bears are, not on what the loss of that species signifies for the overall wellness of their habitat. Even lawsuits filed on their behalf5 are based more on the importance of being able to see this majestic animal in its natural habitat than protecting the habitat itself. Further yet down the list of importance is the ecocentric consideration of the right of the species to exist in and of itself, a school of thought termed “intrinsic value.”6 Is there a polar bear moan if no human is there to hear it? The answer is yes, and the sheer arrogance in even posing that philosophical question pinpoints the anthropocentric mountain we must scale. This issue presents both a challenge and an opportunity. The challenge is one of education, because like so many environmental issues, the polar bear is geographically remote and obscure to most Americans. The opportunity is that polar bears, at least from a safe distance, are cute and cuddly. They can be used as stalking horses (or stalking bears, as it were) for less furry, less cuddly animals, Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 3 such as the snail darter or snowy owl. The logical argument can be made that the less attractive creatures, big and small, are also necessary for human survival. If juries see the value of protecting the polar bear, it is reasonable for them to grab onto the concept that, by extension, protecting the bear’s habitat is important, protecting its food source is important, etc. Remember the old environmental adage: “It does not matter why people protect the environment, as long as they do it.” dying) conditions for animals on factory farms, it can be easily and efficiently couched in terms of societal and especially children’s safety. Litigating for Animals Emergent litigation strategies for animals have often been avoided, given the inherently humanistic bent to our legal system. Our jurisprudence is based on evolving human protections. Cases going back to Johnson v. M’Intosh9 laid the foundation I t d oe s n ot m at te r w h y pe opl e prote c t th e e n v i ron m e n t, a s lon g a s th ey d o i t. Factory Pharmaceuticals Myriad articles and studies have been published about the massive volumes of antibiotics and growth hormones that are injected on a daily basis into the animals composing part of our food supply. There is justifiable concern about the safety of our water supply, either due to natural contamination, industrial or other pollutants, or terrorist attack. However, there has been little discussion of contamination of our food supply by legalized medication of farm animals. Studies are only beginning to bubble to the surface regarding a direct linkage between our children’s diet and earlier puberty.7 There has also been little scrutiny about the fact that many medications are necessary for these animals to even survive in the hostile and unnatural environment of the factory farm.8 Although this is a shame on our culture of gargantuan proportions, as discussed above, litigating this issue on animal ethics alone is often a non-starter. However, the concepts of food supply safety and the long-term health and happiness of our children are surefire angles that any decent environmental litigator should be able to work to great success. Though we may be subversively fighting for better living (and 4 for the use of the American legal system for humans. The idea of extending those same protections to nonhumans has been seen by many attorneys as a non sequitur to the entire English common law framework. Yet, modern environmentalists know that making arguments based on pure ecocentrism and the rights of animals to exist is an impossible undertaking. A better approach (legally if not morally) is what is termed “enlightened anthrocentrism.” In simple terms, this means couching animal rights in the shell of human-centered (anthropocentric) arguments.10 We explain that it makes sense to protect and extend legal rights to animals because we as humans need animals around. This goes back to the old idea of carrying capacity. How can we humans enjoy this planet if all the food sources we like, including animals, are gone? One inherent flaw in the “Lifeboat Ethic” is that we need diversity of ecosystem to keep that boat afloat.11 The idea that we can make it alone, either biologically or economically, is a fantasy that failed so many times in the past as to be whimsical. Any realistic carrying capacity model mandates a healthy ecosystem replete with humans, along with fauna and flora. Even without making the “Earth First!” argument12 that the planet would be better off without humans, which will likely impress no jury in any jurisdiction, we can make the argument to anyone that we need animals more than they need us. Realistically, it is hard to imagine a day in the foreseeable future when the members of any jury will consider the intrinsic value, and thus the natural rights, of animals as a viable reason to make a human pay huge damages or go out of business, let alone go to prison. However, given the recent growth in environmental awareness tied to global warming, it is a good time to plant the seed. If we begin thinking of animals as vital to our survival, then we can begin educating the masses as to the complexities that fauna, along with flora, fill in the ecosystems on which we depend for our survival. Invasive species can be seen as a threat to the environment just as illegal immigration is currently seen as a threat to our national security. Those of us in litigation of any form know that winning a case is as much about sales and marketing as it is about law. Changing Attitudes As a number of recent and high-profile cases have shown, animal law is becoming more “mainstream.” No longer is it the practice of the “left-wingers” or “treehuggers.” Much of the recent litigation in the past decade has focused on animal cruelty in agriculture and food production,13 animal domestic abuse,14 animals in research,15 constitutional issues,16 and endangered species and qualifications of the Endangered Species Act.17 Many jurisdictions are finally beginning to take animal law more seriously, namely in the form of animal rights, animal cruelty, and more humane living conditions for animals. It is hard to identify the root cause of this enlightenment. Is it merely utilitarian (we need them for us) or is there a small ecocentric seed beginning to take root (we need to protect them for them)? Some years ago, the state of Ohio established the first Environmental Division, residing within the Franklin County (Columbus) Municipal Court. This is the first environmentally based bench in the state’s history. Although this court deals with a wide-ranging variety Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. of cases, one of its primary focuses is prosecution of animal abuse and animalrelated crimes. Other jurisdictions in Ohio are taking similarly aggressive actions in the name of animal law.18 More politically and environmentally progressive states like California and New York are doing even more by reforming their statutory code. Conclusion It is unrealistic to believe that there will be a day anytime soon when nonhumans have the same legal standing as humans. Actually, this argument was proffered, perhaps not entirely seriously, by some well-known environmental thinkers and writers.19 However, if even for selfish utilitarian reasons, making the legal arguments that providing basic legal protections to all nonhumans is a way of extending the life and lifestyle of humans is a first step in greater protections for all species. Mark J. Bamberger, Ph.D., J.D., is an attorney at Baver & Bookwalter Co., LPA in Miamisburg, Ohio. He extends special thanks to Professor Barbara Lynne Frye, his editor and companion. Endnotes 1. For a more detailed discussion of ecocentrism, see, e.g., M. Humphrey, The Foundation of Ecocentrism (Oxford Univ. Press 2002); H. Rolston III, The Land Ethic at the Turn of the Millennium, in Environmental Ethics 392–99 (S.J. Armstrong & R.G. Boltzer eds., McGraw-Hill 2004); and D. Foreman, Confessions of an EcoWarrior (Crown Publ. Group 1991). 2. CAFOs are regulated under the Clean Air Act for their emissions, and the Resource Conservation and Recovery Act for their manure waste issues. 3. For some additional background on the environmental thinking and awareness of the Gilded Age and early twentieth century, see, e.g., M.J. Bamberger, The Emerald Thread: An Examination of the Environmental Impact of the American Presidents, Their Administrations, and Their Times (Union Inst. Press 1995). 4. For discussions of the importance of failure in evolution, see S.J. Gould, Wonderful Life: The Burgess Shale and The Nature of Evolution (Norton Press 1990); and C. Zimmer, Evolution (WGBH Educ. Found. 2001). 5. See notes 13–17 for a survey of recent animal law litigation. 6. The concept of animal intrinsic values traces at least as far back as Saint Francis of Assisi, who has been called the patron saint of ecology. For more on Assisi, see G.K Chesterton, Saint Francis of Assisi (Doubleday Press 1957). For more on intrinsic value, see L. Vilkka, The Intrinsic Value of Nature (Rodopi Press 1997); N. Agar, Life’s Intrinsic Value: Science, Ethics, and Nature (Columbia Univ. Press 2001); and L. Gruen, Refocusing Environmental Ethics: from Intrinsic Value to Endorsable Valuations, 5 Philosophy & Geography 153–54 (2002). 7. For more discussion on the scientific link between diet and puberty rates, see, e.g. L.F. Palmer, Coming of Age in America (Much Too Soon) (1999); and Dynamic Chiropractic & HermanGiddens et al., Secondary Sexual Characteristics and Menses in Young Girls Seen in Office Practice: A Study of the Pediatric Research in Office Settings Network, 99 Pediatrics 505–12 (1997). 8. See J. Fauber, The Perils of Antibiotics, Milwaukee Journal-Sentinel, Nov. 4. 2001, at C1; J. Bonner, Hooked on Drugs, NewScientist, Jan. 18, 1997, at 24. 9. 21 U.S. (8 Wheat.) 543 (1823). For a better discussion of John Marshall’s decision in Johnson v. M’Intosh, see J. Purdy, Property and Empire: The Law of Imperialism in Johnson v. M’Intosh, 75 Geo. Wash. L. Rev. 329-71 (2007). 10. Greater detail on enlightened anthropocentrism can be found in J. Cheney, The Dusty World: Wildness and Higher Laws in Thoreau’s Walden, Ethics & Environment, v. 1, no. 2, at 1 (1996); S.J. Gould, The Golden Rule—A Proper Scale for Our Environmental Crisis, in Environmental Ethics 288–93 (S.J. Armstrong & R.G. Boltzer eds., 3d ed. McGraw-Hill 2004). 11. For more on the “Lifeboat Ethic,” see G. Hardin, Lifeboat Ethics: The Case Against Helping the Poor, Psychology Today, 1974, at 48. 12. For more history of Earth First!, see, e.g., M.F. Lee, Earth First!: Environmental Apocalypse (Syracuse Univ. Press 1995); and D. Wall, Earth First! and the Anti-Roads Movement (Routledge 1999). 13. See, e.g., Deason v. State, 881 So.2d 58 (Fla. Dist.App. 2004); Cotton v. State, 589, S.E.2d 610 (Ga. App. 2003); People v. Sanchez, 114 Cal. Rptr.2d 437 (Cal. App. 2001); Sirmans v. State, 534 S.E.2d 862 (Ga. App. 2000); State v. Gadreault, 758 A.2d 781 (Vt. 2000); State v. Larson, 941 S.W.2d 847 (Mo. App. 1997); State v. Sheets, 677 N.E.2d 818 (Ohio App. 1996); Com. v. Barnes, 629 A.2d 123 (Pa. Super. 1993); State v. Lapping, 599 N.E.2d 416 (Ohio App. 1991). 14. See, e.g., People v. Garcia, 29 A.D.3d 255 (N.Y. App. Div. 2006); People v. Alvarado, 23 Cal. Rptr.3d 391 (Cal. App. 2005); State v. Witham, 876 A.2d 40 (Me. 2005); Hall v. Indiana, 791 N.E.2d 257 (Ind. App. 2003); People v. Soliday, 729 N.E.2d 527 (Ill. App. 2000); Missouri v. Roberts, 8 S.W.3d 124 (Mo. App. 1999); State v. Hill, 996 S.W.2d 544 (Mo. App. 1999). 15. See, e.g., ALDF v. Glickman, 204 F.3d 229 (D.C. Cir. 2000); Altern. Res. & Dev. Found. v. Glickman, 101 F. Supp.2d 7 (D.D.C. 2000). 16. See, e.g., Bakay v. Yarnes, 431 F. Supp.2d 1103 (W.D. Wash. 2006); Doris Day Animal League v. Veneman, 315 F.3d 297 (D.C. Cir. 2003); Brown v. Muhlenberg Twp., 269 F.3d 205 (3d Cir. 2001). 17. See, e.g., Center for Biological Diversity v. Lohn, 483 F.3d 904 (9th Cir. 2007); Defenders of Wildlife v. Martin, 454 F.Supp.2d 1085 (E.D. Wash. 2006); Defenders of Wildlife v. Secretary, U.S. Dept. of Interior, 354 F.Supp.2d 1156 (D. Or. 2005); Fund for Animals, Inc., v. Hogan, 428 F.3d 1059 (D.C. Cir. 2005); Animal Rights Front, Inc., v. Jacques, 869 A.2d 679 (Conn. App. 2005); Alaska Center for Env’t v. Rue, 95 P.3d 924 (Alaska 2004); In re Adopted Amendments to N.J.A.C., 839 A.2d 60 (N.J. Sup. App. Div. 2003); State v. Sour Mountain Realty, Inc., 276 A.D.2d 8 (N.Y. App. Div. 2000); Barnes v. Dept. of Nat. Res., 516 N.W.2d 730 (Wis. 1994). Of particular interest to this author is the case of the gray wolf (Canis lupus), which was taken off the endangered list only to be nominated for the list again when ranchers started slaughtering the animal by the hundreds. See, e.g., Defenders of Wildlife v. Norton, No. 2003CV1348BR (D. Or. 2003) (complaint). 18. For more detail about the Ohio Environmental Court, refer to www.fcmcclerk.org. In Ohio, there is also aggressive prosecution of animal rights cases in (at least) Butler County (Hamilton) and Cuyahoga County (Cleveland). 19. See, e.g., C.D. Stone, Should Trees Have Standing? And Other Essays on Law, Morals and the Environment (Kaufmann, Inc. 1972); G. Harding, Toward Legal Standing for Natural Objects, 25 BioScience 220-331 (1975); M. Starik, Should Trees Have Managerial Standing? Toward Shareholder Status for Non-Human Nature, 14 J. Bus. Ethics 207–17 (1995). Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 5 Regional Regulation of Greenhouse Gas Emissions: Carbon Cap-and-Trade Programs Finally Arrive By Lisa M. Hodes I nvisible and intangible, greenhouse gas (GHG) emissions—and the carbon credits that measure and value them— are now global business. In 2008, the international market for carbon dioxide emissions rights will be worth about $92 billion, up from about $60 billion in 2007.1 Europe will remain the focus of carbon activity this year with an estimated $68 billion in transactions.2 But the United States, a nascent player, may not be far behind. Although there is no firm federal action on the horizon, the states are moving quickly to fill the void with regional cap-and-trade programs. Chief among them is the Regional Greenhouse Gas Initiative (RGGI), a coalition of the northeastern and mid-Atlantic states, which comes into force in 2009. RGGI was the first coalition of its kind in the United States. In preparation for the 2009 deadline, RGGI participant states, such as Massachusetts, have recently published regulations implementing RGGI, and RGGI successfully held the first-ever auction of carbon dioxide emission allowances in the United States on September 25, 2008. Although no other regional coalition is yet ready to officially launch its cap-and-trade program, more cap-and-trade programs like RGGI are on the horizon. Formation of RGGI In December 2005, seven New England and mid-Atlantic states united to form the first regional coalition to stabilize and reduce greenhouse gas emissions. RGGI members committed to reduce carbon emissions to 10 percent below 2009 emissions by 2018. Currently, 10 states compose RGGI: Massachusetts, Rhode Island, Maryland, Connecticut, Delaware, Maine, New Hampshire, New Jersey, New York, and Vermont. These states have expressly acknowledged in a memorandum of understanding that climate change and the increase of GHG emissions pose a serious threat to human health and the global environment.3 6 RGGI will come into force on January 1, 2009. RGGI applies to fossil-fuel-fired electric generating units serving a generation of 25 MW or larger (covered unit). Whether a unit is fossil-fuel-fired depends on the date that the unit commenced operation. A unit that commenced operation on or after January 1, 2005, is fossil-fuelfired if fossil fuel composes more than 5 percent of its total annual heat output. A unit that commenced operation prior to January 1, 2005, is fossil-fuel-fired if fossil fuels provide more than 50 percent of its total annual heat output. Through analysis of historical emissions and extensive negotiations, the RGGI states created a regional annual emissions budget that creates an emissions cap for each state. The regional base annual emissions budget is about 188 million short tons. Each RGGI state’s initial base annual emissions budget can be found in Table 1. The RGGI states have committed to allocate at least 25 percent of their allowances to support consumer benefit programs, which will lead to lower electricity demand and overall compliance costs of the RGGI program. The remaining 75 percent of each state’s allowances may be freely allocated. Within the first six years of the program, the RGGI states are required to stabilize emissions at their respective base annual emissions budget. Between 2015 and 2018, the RGGI states will decrease their annual emissions at a rate of 2.5 percent per year, resulting in a 2018 annual emissions budget that is 10 percent below the 2009 annual emissions budget, as shown in Table 2. At 188 million short tons, the current regional emissions budget is 4 percent higher than regional emissions from 2000 to 2004. Implementing RGGI To ensure consistency across the RGGI states regarding issues such as applicability, allowance allocation, and offset allowances, the RGGI member states developed the Model Rule, which was based on the EPA’s NOx and SO2 trading programs.4 The Model Rule outlines the governing mechanisms and infrastructure for the regional cap-andtrade program. It provides the requirements for, inter alia, permits, compliance certification, allowance allocations, the allowance tracking system, allowance transfers, monitoring and reporting, and offset allowances. As a condition of participation in RGGI, each state’s regulatory agency must implement rules that are materially consistent with the Model Rule. The Massachusetts Department of Environmental Protection (DEP) recently published its RGGI-implementing regulations, titled the Massachusetts CO2 Budget Trading Program (Trading Program), 310 CMR 7.70, which largely adopt the provisions of the Model Rule, including Table 1 Connecticut 10,695,036 short tons Delaware 7,559,787 short tons Maine 5,948,902 short tons New Hampshire 8,620,460 short tons New Jersey 22,892,730 short tons New York 64,310,805 short tons Vermont 1,225,830 short tons Massachusetts 26,660,204 short tons Rhode Island 2,659,239 short tons Maryland 37,503,983 short tons Table 2 Years 2009–2014 188,076,976 short tons Year 2015 183,375,052 short tons Year 2016 178,673,127 short tons Year 2017 173,971,203 short tons Year 2018 169,269,278 short tons Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. the provisions governing violations and liability. For example, in accordance with Subsection 7.70(1)(e), each ton of carbon that is emitted in excess of the cap constitutes a separate violation of the regulations and applicable state law.5 In the case of a covered unit whose emissions exceed its cap, the covered unit will forfeit certain allowances (in some cases in amounts equal to three times the number of excess emissions), be assessed a fine or penalty, and possibly be subject to an enforcement action. Owners and operators of covered units are equally exposed to liability in that any provision of the Trading Program that applies to a covered unit also applies to the owner or operator. A DEP determination that excess emissions were too high may be challenged, and where it is found that the determination was in fact too high, the regulations authorize DEP to distribute back allowances to the covered unit. DEP also maintains the authority to conduct audits based on any submission to the Trading Program. Finally, the Trading Program’s regulations provide for extensive monitoring, recordkeeping, and reporting requirements, and incorporate those applicable requirements of the NOx and SO2 trading programs.6 Allowance Allocation and Auctions Each allowance permits a “regulated source” to emit one ton of carbon dioxide. Unlike some cap-and-trade programs, such as Europe’s Emissions Trading Scheme, that have provided regulated sources with free allowances to start, the RGGI participant states will sell a significant portion, if not all, of the initial allowances through a quarterly regional auction.7 The RGGI members chose a regional auction rather than free distribution of the allowances because, in a competitive wholesale market, the generators pass the cost of the allowances through to the consumer, whether or not the allowances were received or purchased. The first auction was held on September 25, 2008. For this first auction, the reserve price per allowance was $1.86, which represented 80 percent of the anticipated price per allowance of $2.32, and all 12,565,387 allowances offered for sale were sold at a clearing price of $3.07. With 59 participants from the energy, financial, and environmental sectors, an estimated 51,000,000 allowances were in demand—a very strong showing for the first auction, especially considering only Connecticut, Maine, Maryland, Massachusetts, Rhode Island, and Vermont offered allowances for sale. These states netted about $38,500,000 in proceeds. (Massachusetts netted about $13 million.) The proceeds from the auction will be invested in energy efficiency, renewable energy technologies, and programs to benefit energy consumers. The format for the auction was a single-round, uniform-price sealed bid, and only 2009 allocation year allowances were sold.8 Though certainly not the case in the first auction, in the future, any unsold allowances for a particular vintage will be sold in future auctions in the same control period. The first control period is from January 1, 2009, through December 31, 2011, inclusive.9 However, if the price of carbon hits a certain threshold (roughly $7 or $10), then that is considered a “trigger event” that will extend the first control period through December 31, 2012, inclusive. In the Model Rule and as demonstrated by the first RGGI auction, the RGGI members welcomed all market participants to bid provided they met certain criteria, including a financial security requirement. However, to ensure fairness, an auction participant may not purchase more than 25 percent of the allowances offered for sale in a single auction. To ensure compliance, the auctions will be closely monitored by Potomac Economics, an independent market monitor who will observe the auctions and subsequent market activity. The RGGI participant states will receive a report from the monitor regarding whether the auction was conducted in accordance with the relevant regulations and procedures. In its first report, Potomac Economics stated that “the liquidity contributed to generating a clearing price that is consistent with the underlying supply and demand fundamentals governing the CO2 allowance market. It is also encouraging that compliance entities or their affiliates, which should value the allowances most highly, purchased most of the allowances in the auction.”10 The RGGI participant states must approve the auction outcome before any allowances will be transferred to a successful bidder. Massachusetts, like the other RGGI states, auctioned 100 percent of its allowances. The auctions will be administered by the Massachusetts Division of Energy Resources (DOER). To complement DEP’s regulations, DOER published rules for the conduct of auctions in Massachusetts.11 DOER regulations largely parallel the mutual understandings of the RGGI participant states discussed above and with built-in flexibility to respond to the market. Offset Allowances Offset allowances may be used to satisfy 3.3 percent of a source’s compliance obligation, though this limit may expand to 5 percent or 10 percent of a source’s obligations if the price of carbon reaches a certain threshold. Offsets are awarded for emissions reductions or carbon sequestration that are real, additional, verifiable, enforceable, and permanent. Only five categories of projects are eligible for offset allowances: • landfill methane capture and destruction, • reduction in emissions of sulfur hexafluoride, Copies of the RGGI Memorandum of Understanding, the RGGI Model Rule, the Massachusetts CO2 Budget Trading Program, and other RGGI documents are available on the Environmental Litigation Committee website, at www.abanet.org/litigation/ committees/environmental, along with other materials related to the articles in this issue. Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 7 O t h e r R e g ional I nitiatives In addition to RGGI, other regional and state collaborations have been created to address climate change. These include: • The Western Climate Initiative (WCI), whose goal is an aggregate reduction of 15 percent below 2005 levels by 2020. The WCI partner states include Arizona, Montana, California, Utah, New Mexico, Oregon, and Washington. Manitoba, Quebec, Ontario, and British Columbia are also WCI members. Several states and Canadian provinces are WCI observers, including Alaska, Colorado, Idaho, Kansas, Nevada, and Wyoming, and Saskatchewan. Sonora, a Mexican state, is also a WCI observer. • The Midwestern Greenhouse Gas Accord (MGA), a regional coalition formed by the governors of Minnesota, Wisconsin, Illinois, Indiana, Iowa, Michigan, Kansas, Ohio, South Dakota, and the Canadian province of Manitoba. The MGA partner states and provinces are committed to (1) establishing greenhouse gas reduction targets and time frames consistent with MGA member states’ targets; (2) developing a market-based and multi-sector cap-and-trade mechanism to help achieve those reduction targets; (3) establishing a system to enable tracking, management, and crediting for entities that reduce greenhouse gas emissions; and (4) developing and implementing additional steps as needed to achieve the reduction targets, such as a low-carbon fuel standards and regional incentives and funding mechanisms. • The Southwest Climate Change Initiative of 2006, a partnership between Arizona and New Mexico, establishes a framework for the two states to collaborate on strategies to address the impacts of climate change in the Southwest and reduce greenhouse gas emissions in the region. • The West Coast Governors’ Global Warming Initiative of 2003, which includes California, Oregon, and Washington, resulted in a joint set of recommendations and strategies to resolve and address the impacts of global warming. • The Western Renewable Energy Generation Information System, a voluntary system, tracks renewable energy credits across 11 western states. • Powering the Plains, a regional initiative among North Dakota, South Dakota, Minnesota, Iowa, Wisconsin, and the Canadian province of Manitoba, aims to develop strategies regarding alternative energy sources, technology, and eco-friendly agriculture. • sequestration of carbon from afforestation, • reduction or avoidance of carbon dioxide emissions from natural gas, oil, or propane end-use combustion due to end-use energy efficiency in the building sector, and • avoided methane emissions from agricultural manure management operations. These eligible offset projects may be located in any RGGI state, or any other U.S. state or jurisdiction that has executed an agreement with the RGGI states for oversight support. The RGGI states plan to develop methodologies to evaluate new categories of offset projects. Emissions Leakage “Emissions leakage” is the idea that electricity generation will shift from a source regulated under RGGI to an external 8 unregulated source. The problem is specific to regional cap-and-trade programs because neighboring states may opt out, thereby providing a readily available supply of presumably cheaper electricity from across the state border. To combat the threats posed by emissions leakage, the RGGI states authorized a working group to study emissions leakage and propose mitigation mechanisms. The working group released its final report on April 1, 2008. That report concluded that, based on the emergence of nationwide support for a federal cap-and-trade program that would eliminate the threats posed by emissions leakage, the RGGI states should monitor emissions leakage and further evaluate its effects. Any mitigation approach should include measures with a short-term implementation time frame. These measures may include aggressive investments in energy efficiency market transformation programs, as well as policies that accelerate the implementation of end-use energy efficiency technologies, such as building energy codes and equipment efficiency standards. The Climate Registry Each of the RGGI states has joined the Climate Registry, which is a voluntary greenhouse gas emissions reporting and verification program that seeks to establish a high level of integrity in measuring emissions and reductions data. As part of the third-party verification process, the Climate Registry seeks consistency with international competency standards such as ISO 14064-3 (specification with guidance for the validation and verification of greenhouse gas assertions), ISO 14065 (process for accreditation of verification bodies), and ISO 14066 (personnel certification). Conclusion Climate change initiatives at the regional level are rapidly developing. With the recent presidential election, and the fact that both candidates supported a federal carbon cap-and-trade program, it is only a matter of time until the federal government creates its own cap-and-trade program. Until then, all eyes are on RGGI, which will certainly influence any federal program and serve as a testing ground for future trading programs. Lisa M. Hodes is an associate in the Chicago office of Greenberg Traurig, LLP. (Continued on page 15) We welcome Young Lawyer submissions to The Environmental Litigator and the Committee website. For more information about other opportunities available for our Young Lawyer members, please contact Matthew Klein ([email protected]) or Meaghan Boyd (meaghan.boyd@ alston.com), the cochairs of our Young Lawyers Subcommittee. Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The Higher Cost of Drinking Water By Jessalyn Zeigler and Wendee Hilderbrand T he U.S.Army Corps of Engineers (the Corps) has an interesting interpretation of an old statute, an interpretation that is very expensive to those nationwide who have been drawing their water supply from reservoirs operated by the Corps. The Corps’s Nashville district never charged municipalities who were withdrawing water from Corps reservoirs, but starting a few years ago began seeking to impose water supply storage contracts upon such municipalities with a hefty price tag for water attached. This included at least one town (Smyrna) that had been withdrawing its water from a Corps reservoir for decades. Smyrna filed suit, and in a case of first impression, was granted summary judgment that the Corps exceeded its statutory authority in seeking to charge Smyrna for the original construction costs of the reservoir increased to present day dollars.1 While this decision, as described below, ultimately was vacated for settlement purposes, the challenge Smyrna made provides a road map for a successful litigation strategy for other municipalities. The Water Supply Act of 1958 (WSA)2 is a short statute with the stated goal of facilitating cooperation between federal and local interests in the creation of multipurpose water projects. Prior to passage of the WSA, federal water projects were only authorized when the cost of the project was fully justified by the benefits that would be realized by the federal government. There were numerous proposed projects that the federal government had an interest in building, but not a strong enough interest to justify 100 percent of the costs. At the same time, there were often local municipalities and utilities that also had an interest in these projects being built so that they could use a portion of the water for water supply. The WSA was aimed at allowing for both of these interests—federal and local—to be considered in determining whether the costs of a project were justified by the benefits. Accordingly, if local needs were considered in justifying the costs of the project, the WSA required that the local entities involved sign an agreement, before initiation of the project, to pay for their proportionate share of the construction costs. Recently, the Corps has moved beyond seeking agreements with local interests during the planning stage of projects. The Corps decided that it could use language from the WSA to recover construction costs from any user of a federal water project for water supply, at any time, including decades after construction, and where the costs had long since been justified and paid with federal funds. For instance, in Tennessee, Congress had determined that the federal benefits of a Corps reservoir fully justified the project’s costs and had appropriated federal funding for those costs decades ago. Then a few years ago, the Corps sought to force a local municipality to pay for the same costs. This small Tennessee town had been withdrawing its water supply from a Corps reservoir for more than 30 years and was surprised by its receipt of a $3 million bill from the Corps. The Corps sent a water supply storage agreement for Smyrna to sign along with the bill. The Corps demanded that Smyrna pay this amount, in addition to ongoing operation and maintenance expenses, or risk having its water supply terminated. This amount represented what the Corps calculated to be Smyrna’s proportionate share of the original costs of constructing the reservoir back in the 1960s, which the Corps then increased to present-day dollars. The town immediately questioned the Corps’s authority to demand such an amount. In this federal lawsuit, the bases the Corps offered to support its authority for the charge were its own interpretation of the 1958 statute and “regulations” it issued. These regulations are in fact a guidance document drafted by the Corps never subject to public notice and comment; they are not promulgated, and in fact there are no regulations implementing the WSA. The specific language upon which the Corps relies is limited to situations where the Corps seeks and obtains a cost-sharing agreement with a local interest before construction of the project. Specifically, after authorizing “the reasonable value” of local water supply needs to “be taken into account in estimating the economic value” of a federal water project, the WSA requires that, “before construction or modification of any project including water supply provisions for present demand is initiated, State or local interests shall agree to pay for the cost of such provisions in accordance with the provisions of this section[.]”3 A federal judge in Tennessee granted partial summary judgment against the Corps finding, as a matter of law, that the WSA required local interests to contribute a proportionate share of construction costs only when an agreement was sought and entered before construction commenced. That did not end the debate. In its response to Smyrna’s motion for summary judgment, the Corps pointed to the “or modification” language in the pertinent sentence and argued that “modification” could include the Corps’s reallocation of water rights from one user to another. Therefore, according to the Corps, by officially allocating a certain amount of water A copy of the district court’s opinion is available on the Environmental Litigation Committee website, at www.abanet.org/litigation/ committees/environmental, along with other materials related to the articles in this issue. Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 9 for Smyrna’s water supply, the Corps was “modifying” the project. It could therefore force Smyrna to enter an agreement, prior to this modification, by which the town would commit to paying a proportionate share of the original construction costs incurred in building the reservoir nearly a half a century before. The Corps never explained where it derived the authority to increase that original construction cost to present-day dollars, such that what would have been one or two hundred thousand became more than $3 million. Though the Tennessee court was a little more receptive to the Corps’s interpretation of “modification,” indicating that the statute may allow for some sort of costsharing agreement prior to the reallocation of water uses, the judge foreclosed the notion that the Corps could demand that new users pay for the original construction costs associated with the project. The question of what amount and what types of costs the Corps could seek under such circumstances was left for a later day, as it had not been briefed by the parties and was not yet before the court. Before this question could be addressed, the parties settled the case. Driven by a compelling need to secure future water supply for its citizens, Smyrna agreed to pay a sizeable, though significantly reduced, lump sum. Driven by a compelling need to avoid the damaging effect of the Tennessee court’s holding that it had exceeded its statutory authority, the Corps conditioned the settlement on Smyrna’s agreement to jointly move the court to vacate the order. In the end, Smyrna secured its water storage rights, and the Corps avoided some damaging legal precedent. Though the Tennessee order may have been vacated, the record of the case remains a road map for challenging similar charges sought to be imposed by the Corps. It makes clear that while the Corps has required numerous other local interests across the country to retroactively pay for the construction costs associated with federal water projects before granting them rights to use excess water, the Corps’s authority to impose these charges is questionable if not entirely lacking. Jessalyn Zeigler and Wendee Hilderbrand are with Bass, Berry & Sims PLC, Nashville. They represented Smyrna, Tennessee, in its suit against the U.S. Army Corps of Engineers. Endnotes 1. Town of Smyrna, Tennessee v. United States Army Corps of Engineers, 3:06-CV-0675, M.D. Tenn., Order and Memorandum (J. Trauger), September 26, 2007. 2. Water Supply Act of 1958, 43 U.S.C. 390(b). 3. Id. Register Now for the 2009 ABA Section of Litigation Environmental, Mass Torts, and Products Liability Committees JOINT CLE SEMINAR January 22–24, 2009 Vail Cascade Resort & Spa Vail, Colorado REGISTRATION DEADLINE: TUESDAY, JANUARY 6, 2009 www.abanet.org/litigation/jointcleseminar 10 Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. An Environmental Dilemma (Continued from page 1) the coastal zones, the areas where storms hit might make the difference between a major impact and an insignificant event. Today, however, more coastal zones are heavily populated. Any hit in most coastal zones by a major storm can cause millions, if not billions, of dollars of damage, and increased personal disasters. This is true in other nations as well as the United States. Because of increased coastal populations, we are more at risk than ever. Our coastal areas are increasingly valuable and vulnerable as they become increasingly inhabited. For example, coastal communities for years have been warned about the dangers of arming, bulkheading, and hardening their coasts; now they increasingly are having difficulties.2 Beaches are being (or have been) washed away. There are continuing reports that the distance is decreasing between structures and the lapping of the seas. There have been debates in some states about the need to move away from coastal areas. However, shoreline states are supporting the concept of re-nourishment of beaches and increasing protection of shorelines.3 Permitting often defines those areas available for future development, and it also can control density in such areas. However, the reality is that controls over permitting the filling of the wetlands, or waters, do not prevent population growth. Controls over structural heights do not prevent population growth, although they may actually cause expansion of a population over more territory. Whether houses and businesses are stacked vertically to increase density and reduce land use or, alternatively, pushed out horizontally to cover more space but not create as much density, permitting laws do not effectively control populating coastal areas. To a greater extent, population moves the laws to readjust. If you cannot fill a bay or a wetland, then you can just expand into an agricultural area or an area that had been previously deserted. Ironically, if you examine fragility of the coastal areas, you could reach the conclusion that current laws regulating development and proposed laws curbing carbon contamination are the equivalent of rearranging deck chairs on the Titanic. If seas are rising, then coastal areas may indeed be “sinking,” in terms of their relationship to sea level. To extend the comparison, if a rising tide lifts all boats, it also increases the level of water and the risk of submersion for surfaces that cannot also be lifted or augmented. We May Have Been Permitting Global Warming There is an incredibly complex debate at this point regarding global warming. For years, many people, especially in the United States, were in denial. The concept of global warming was something that scientists could debate, but there was no consensus. Conclusions of scientists were contested by other scientists. To a degree, the debate still continues.4 A recent shift suggests scientists have concluded that there is indeed global warming, and increasingly there are reports suggesting that global warming is having effects now. For example, certain species seem to be migrating into areas where they are not supposed to be—but are predicted to be because of global warming.5 Also, certain locations are being submerged, and litigation is naming and blaming entities for the submersion.6 Cities around the country are analyzing what, if anything, they should do to react to global warming; most of the reactions, however, involve cutting down on consumption of energy sources attributed to be causing global warming.7 Few, if any, are proposing legislation to physically protect existing coastal areas from flooding and the potential disaster that global warming and increased seas levels may have on coastal population centers. There are no comprehensive federal, state, regional, county, or local laws being proposed—nor preparations being made— to dike, or raise, levels of the existing infrastructure, which may be necessary if global warming occurs as some predict. Most concerns related to this area involve permitting new projects.8 But “raising” of existing fixed coastal communities and infrastructure needs to be addressed, too. It is appropriate, and there may be time, to create controls to reduce the type of pollution that may cause global warming. However, if the global warming cannot be stopped, adequate fail-safe mechanisms that need to be in place have not yet been proposed. Our permitting system is designed with the basic premise that we can regulate what occurs, primarily in the future. While that is necessary, there is no permitting system organized, or proposed, to enable the type of massive actions that would have to be taken to raise the existing ground levels we take for granted. Our permitting system needs a way of stopping, and anticipating, rising seas. Our Permitting System Enabled Us to Populate Coastal Zone In the beginning, coastal wetlands were mostly water—too much water. And so it was decreed that the official policies for the natural state of coastal areas was to eliminate water that caused swamps and prevented civilization. This is not a new concept—think of Venice, Holland, Chicago, or Florida. Florida is an interesting contrast because the ditching and draining was followed—as in other U.S. locations in the recent past—by imposition of regulatory restraints. In the “ditch and drain” era, the first environmental laws involved public and private infrastructure designed to drain water off wetlands so that they would dry and become uplands. Ironically, our problems and permitting system have come full circle.9 When it became obvious that, for a variety of reasons (including the advent of air conditioning), people might be coming to coastal areas, it was easy to justify ditching and draining more lands for habitat. Community developers used drainage concepts to reclaim lands and create additional amenities. Because homeowners wanted to have access to water, one concept that developed was enabling waterfront homes near ditches to drain the land and create the fill for the uplands. The “ditches” became “canals,” which could then lead into navigable waters and create waterfront lots. In many coastal areas, the idea of the canal, which would enable waterfront property, also created fill that raised adjacent waterfront lots, and augmented draining that occurred. Where more fill was needed, a shallow estuary often enabled dredges Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 11 to pump sand to adjacent areas. Wetlands were excavated. They became bays. Bays were excavated. They became navigable waters—with deeper intercoastal channels. Large communities were developed where none had been before. In the 1960s, it became clear that the waters of the United States (the oceans, bays, or wetlands) were becoming polluted. Some of those living on the “waterfront” lots became constituents for environmental law reforms. Regulatory shifts in the late 1960s, 1970s, and 1980s included the following: First came the increased application of Section 10 of the Rivers and Harbors Act of 189910 for land use purposes. The act was primarily designed to enable the U.S. Army Corp of Engineers to remove obstructions, such as sunk vessels and other barriers to water transportation. But its “waters of the United States” provision became a term of art; dumping something (such as fill) into the waters of the United States could be illegal and the subject of federal civil, or criminal, litigation. The concept of “environmental permitting” was born. No longer was depositing fill into waters of the United States promoted; it became, in most cases, prohibited. The process of removing fill from the waters of the United States, which might drop back into the waters as it was being transported, also became regulated and prohibited.11 Subsequently, the Federal Water Pollution Control Act Amendments of 197212 established a more comprehensive permitting system for discharges into waters of the United States, involving the Environmental Protection Agency as well as the Corps of Engineers. In 1969, the National Environmental Policy Act (NEPA)13 was passed. It seemed to be an innocuous statute, basically designed to declare a congressional intent to protect the environment. Who could be against that? However, the language of NEPA could be used to evaluate, through an environmental impact statement (EIS), the wisdom of federal permitting decisions, and permits were essential for dredging and filling and many other activities that enabled development. While NEPA was initially used primarily as a “study” or “evaluationforcing technique” used to stop a project 12 where there had not been an EIS, as the sophistication of those involved increased, NEPA was used to challenge the sufficiency of the EIS. Objectors found ways of delaying or stopping projects by pointing to the failure to prepare an EIS, or to the insufficiency of the EIS, which precluded permitting.14 Further, the evidence in an EIS can be used to challenge permits and projects pursuant to the Administrative Procedure Act, which can serve to stop projects or delay them sufficiently long enough to prevent them from being cost-effective.15 The permitting system we have is relatively comprehensive. In certain situations, permitting can stop, or redirect, the development of land. However, our current permitting system will not stop global warming and rising seas. Permitting to Respond to Global Warming What if the new reality is that we may have to adjust to the recognition that global warming may require new needs for fill―for supporting and enabling continuing existence of old structures and our coastal communities? Our permitting system does not now facilitate dredge-and-fill activities, as noted. However, as also noted, many of our coastal communities were developed by dredge-and-fill activities. We should consider whether the permitting system that we have is adequate to enable appropriate dredge-and-fill activities if necessary—not so that we can expand by creating new land, but so that we can just maintain our existing “uplands.” As noted below, there may be ways to reverse (or retrofit) the permitting system to provide the protection that is necessary. The Ecosystems Recent articles have discussed the fact that those involved with the environmental care and defense of the ecosystems have recognized that the fresh water of wetlands will be threatened by the rising seas: Conservation organizations that work to preserve biologically rich landscapes are confronting a painful realization: In an era of climate change, many of their efforts may be insufficient or beside the point. Some scientists say efforts to reestablish or maintain salmon runs in Pacific Northwest streams will be of limited long-term benefit to the fish if warming makes the streams inhospitable. Others worry about efforts to restore the fresh water flow of the Everglades, given that much of it will be under water as sea level rises. Some geologists say it may be advisable to abandon efforts to preserve some fragile coastal barrier islands and focus instead on allowing coastal marshes to migrate inland, as sea level rises.16 Scientists are not sure how to deal with these potential issues. There are new concepts for moving species such as “assisted migration.”17 Plans contemplate raising levels of land for environmental protection of species and habitat.18 The debate is not just about whether ecosystems should be saved at this point but whether, if there is going to be global warming and rising seas, we have additional obligations to solve problems in other areas, too. Urban Areas Cities are increasingly creating mechanisms to try and understand how to resolve these problems.19 Most reported solutions involve stopping the use of the pollution sources that contribute to global warming (as opposed to dealing with the sea rise that will be caused by global warming). However, it is not enough that we plan for the future, in terms of our future building codes. Unlike some species, we cannot solve our problems by “assisted migration.” We have constitutional characteristics and provisions that will cause coastal communities to stay fixed, by choice and rights. We have a sizeable economic and social investment in our past and current structures. There is no reason to abandon existing infrastructure and structures and the heritage and the property rights we have. Some areas are historical, while other areas (while subject to risk) are still going to be places people will want to continue to live in and move to.20 The reality is the earth has always been changing, and if you move to the mountains, you may not have Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. hurricanes, but you may encounter rock slides and earthquakes and other conditions of risk. What if your city would be under water as sea levels rise? Would building dikes and berms protect the city? Or would the sea water just penetrate anyway? Or worse, would the dikes and berms put land levels in a position where they are even more vulnerable to hurricanes and high storms, because land levels will be below a level that would be flooded if the breach of the dike or the berm occurs? Even in current areas of the United States. where we have levees, we may not have the type of protective structures that are safe enough.21 Thus, raising the floor level of a house and the level of the surrounding urban area may be necessary. In such cases, where will you select the fill from? Will you cannibalize your community to obtain fill, and make more drainage ditches or canals? Will you try to go into the waters of the United States and borrow fill? If you do engage in such cannibalization and you take from the source that is the cheapest― which will usually be the waters of the United States, assuming you can reverse the permitting requirements―do you ultimately destroy the habitat and accelerate the salt water intrusion? Can you find property that is dry, but not used, and convert open land areas into lakes, and dig so that you obtain sufficient fill to raise the level of the surrounding land?22 To return to the metaphor of a rising tide lifts all boats, James Agee had a character in The African Queen note: “Nature, Mr. Allnut, is what we are put into this world to rise above.” How can we enable our coastal areas and resources to “rise above” rising sea levels? Here are some ideas: • Now our laws protect the environment. If we shift the intent to protect the so-called man-made environment (or the communities as we know them that are and were uplands so that they remain uplands), it would be fairly easy to fine-tune the permitting requirements. The dredgeand-fill regulatory concept presupposes dredging and filling. While it is now prohibited for natural resource purposes, to enable it for protection of the total environment including the man-made environment could be an option. • Now we have analysis-forcing statutes, such as NEPA. An EIS is a way of analyzing choices and results. If the choices and results involve standards that protect the human environment, then NEPA could be a tool for minimizing adverse affects to achieve that result, or weighing what is cost-effective in the deliberative process. • Now the Constitution of the United States and the constitutions of some states allow “takings,” or condemnation with compensation for public purposes. Certainly sustaining civilization is a public purpose. There have been questions as to whether government should take property to “eliminate a slum and make a Ritz” as was discussed in Kelo vs. City of New London.23 Kelo caused a great deal of debate―as to whether private property should be taken for governmental transfer to private entities. However, the debate was prior to the realization about global warming issues and impacts. Private property may be taken by inundation, as opposed to condemnation; in such a situation, you would not necessarily be building a Ritz but, rather, just retaining your existing system that enables populations to remain where they are. These are not only complex issues, but also important issues that are not being debated. When you learn that you are about to die because of some rare medical disease that is diagnosed through some scientific method, you can go through stages: denial, anger, negotiation, depression, and, perhaps, resignation. The world seems now to be functioning in the denial stage. Those who believe in global warming and recognize the science may also believe that they can cure the problems. They may be environmentalists who do not want to start losing what they maintain that they have gained over the past 50 years. Alternatively, there may be those who would not mind losing environmental laws and gaining the rights to engage in more development; they currently may be focused on denying the existence of threats of global warming. When, and if, the situation eventually changes, environmentalists may admit that while they were right, they did not plan for what they predicted. The deniers of global warming may admit that while they were wrong, they may have the tools to correct their mistake. In addition to the current investment in green economics, there may be a potential for some to claim vast stakes that have been off-limits. There may be a phenomenal switching of scientific positions. Developers may recognize rising seas as a way to expand and not just protect territory but raise land and money. Others may use rising seas as a way to Th e wor l d se e m s to be f u n c t ion i n g i n th e de n i al s tage . take property improperly. But there will still be a continuation of the conflicts that we have experienced in the past. The advantage in assessing the landscape, in terms of the permitting and understanding of the existing requirements, is that whether we agree or not, we are all going to be on the same planet, or in the same boat, perhaps literally and figuratively speaking, if there are rising sea levels. Conclusion John McPhee, describing the changes that occurred in nature, once noted that: When the climbers in 1953 planted their flags on the highest mountain, they set them in snow over the skeletons of creatures that had lived in the warm clear ocean that India, moving north, blanked out. Possibly as much as twenty thousand feet below the seafloor, the skeletal remains had formed into rock. This one fact Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 13 is a treatise in itself on the movements of the surface of the earth. If by some feat I had to restrict all of this to one sentence, this is the one I would choose: The summit of Mt. Everest is marine limestone.24 What we regard as the highest ground in the world was once below the waters of the sea. Over a period of geologic time, the bottom of the sea was thrust up, to become the highest mountains. Thus, we do not need to panic, because the “global warming” process that we are observing may be accelerated, but it is not new. We may have some major problems that we need to encounter. But we should not go to an extreme—and either ignore the problems or overreact to them. There is nothing wrong with wanting to live in a beautiful environment. As we realistically evaluate what we need to do to protect our ability to live in the coastal populated zones, we need to recognize that there must be a balance. Some will try to use “rising seas” as way of objecting to any development, or as a way of filing objections to obtain goals that are self-serving. Others may take advantage of the opportunity to change systems to exploit resources. Since our legal system is rather developed, the environmental laws, such as NEPA, show a way of evaluating for the balance and to enable the proper conclusion. It is true that the term “glacial movement” once referred to something moving very slowly. Today the actual glacial movement may be faster than rush hour traffic and may (if we do not plan properly) cause traffic to rush from coastal areas. But just as we have to deal with oxymorons and changes of vocabulary, we may have to fine-tune our permitting system. Based on situations now in coastal communities and other locations that are not that far above sea level, we now have to solve problems that relate to increasing grade. Unlike other species, we have the ability to impact the environment. We can do so in ways that cause, but also in ways that solve, problems. We also have shown that we know how to regulate to protect the environment and achieve the ultimate resolution of issues. Joseph Z. Fleming is an attorney with Greenberg Traurig, LLP in Miami. The views 14 expressed are solely those of the author and should not be attributed to the author’s firm or its clients. Endnotes 1. Thomas L. Friedman, The World Is Flat 1-175 (Farrar, Straus, and Giroux 2005). 2. See Jordan Schrader, Beach Residents Face Loss of Homes Without Barrier: Engineers, Environmentalists Battle Over Whether to Build Structure in NC, USA Today, Feb. 25, 2008, at 14A, noting “pressure on policymakers for protection has grown with the wealth of coastal residents nationwide,” that “Florida stepped up its approval of erosion-fighting structures after the hurricanes of 2004 and 2005,” and that Florida is one of the states in which there are increased projects and willingness to consider barriers that protect residents’ homes. 3. Id. 4. For an example of the continuing debate, see Andrew C. Revkin, Reporters Notebook: Cool View of Signs at Meeting on Warming, N.Y. Times, March 4, 2008, at A-20, discussing scientific differences in interpreting data and noting that scientists at one gathering “repeatedly attacked the idea that there was a consensus on the danger of human influence on climate. Some tried to convey the impression that their view represented an emerging and opposite consensus that humans were not warming the world—or that if they were, it was not a problem.” 5. Elizabeth Weise, Pythons Have Us in Their Grasp: Giant Snakes Could Colonize Lower OneThird of the USA, USA Today, Feb, 21, 2008, at 1, noting: “As climate change warms the nation, giant Burmese pythons could colonize one-third of the USA, from San Francisco across the Southwest, Texas and the South and up north along the Virginia coast, according to U.S. Geological Survey maps.” 6. Felicity Barringer, Flooded Village Files Suit, Citing Corporate Link to Climate Change, N.Y. Times, Feb. 27, 2008, at A16, noting: “Lawyers for the Alaska Native coastal village of Kivalina, which is being forced to relocate because of flooding caused by changing Arctic climate, filed suit in federal court arguing that 5 oil companies, 14 electric utilities and the country’s largest coal company are responsible for the village’s woes.” 7. See Judy Keen, Communities Move Beyond Debate and Prepare for Climate Change, USA Today, Feb. 18, 2008, at 1, noting: “A growing number of communities and states concerned about climate change are planning ways to cope with rising tides, severe weather, less snow, and even ‘climate refugees’ from coastal areas.” However, the article also notes that these plans were primarily focusing on cutting back on emissions. See also Jim Carlton, Nine Cities, Nine Ideas: Local Governments Around the Globe are Coming Up with Some of the Most Innovative Ways to Cut Energy Use. There Are Lessons Here for Places of All Sizes, Wall St. J., Feb. 11, 2008, at R1, discussing various energy-saving approaches. 8. See, e.g., Center for Biological Diversity v. City of Desert Hot Springs, No. RIC464585 (Cal. Super. Aug. 8, 2008), described in Carolyn Whetzel, California State Court Rejects Environmental Review for Project, Cites Global Warming Potential, Daily Env’t Rep., Aug. 12, 2008, at A-9 (“the court made it clear that global warming must be addressed in land use decisions”). 9. See Michael Grunwald, The Swamp: The Everglades, Florida, and the Politics of Paradise 1-216 (Simon & Schuster 2005), describing the history of the drainage of the state of Florida and current corrective needs. For information on the drainage and reclamation of Venice, see Deborah Howard, The Architectural History of Venice 26 (Yale Univ. Press 2002); and for information on Chicago’s “being literally raised several feet” from a swampy setting , see Carl Smith, The Plan of Chicago 6 (Chicago Press 2006). 10. “That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven harbor, canal, navigable river or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.” 33 U.S.C. § 403. 11. See Notice of Lodging of Consent Judgment Pursuant to the Rivers and Harbors Act, 62 Fed. Reg. 3527 (Jan. 23, 1997)(an example of the continued use of that law, notwithstanding other environmental laws). 12. See Federal Water Pollution Act, 33 U.S.C. §§ 1251–1387. 13. 42 U.S.C. §§ 4321–4370(f). 14. See, e.g., Florida Wildlife Federation v. United States Army Corps of Engineers, 401 F. Supp. 2d 1298 (M.D. Fla. 2005) (invalidation of a Corps environmental assessment). Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 15. Id. Other laws were passed in the 1970s and 1980s that regulated air, waste, and land use. What was previously dumped into the “waters of the United States” could not be just buried underground. There was a new emphasis on evaluating chemicals and wastes. The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601–9675 (also known as CERCLA or Superfund), dealt with hazardous substances. The Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901–6992k, dealt with hazardous wastes― “from the cradle to the grave.” The Clean Air Act, 42 U.S.C. §§7401–7671, regulated what was emitted into the atmosphere. When underground storage became regulated, solutions for cleaning up the underground contamination included removing certain pollutants by air stripping—a way of taking a substance such as gasoline, a volatile organic compound, and aerating, or basically spraying, the gasoline so that it could cascade down a structure like a waterfall. The volatile organic chemical would transfer from a liquid state and move into the air, which could create air pollution. Since the Clean Air Act could prohibit air pollution, the environmental process would come full circle—the pollution that was dumped into the water, then the ground, then the air, eventually could not be dumped at all and had to be treated or remediated. 16. Cornelia Dean, The Preservation Predicament, N.Y. Times, Jan. 29, 2008, at D1. 17. Id., noting: “This term ‘assisted migration’ is gaining some traction,” said Dr. Wilcove, who formerly worked with the Wilderness Society and Environmental Defense. But “it’s a tough call,” he added. “What you are basically doing is moving species to places where they do not occur but where you think they will be suitable. But we often get into trouble translocating species for all kinds of unexpected reasons that come up.” 18. Coastal ecosystems are likely to be the first to pose difficult conservation problems, as sea level rise inundates protected areas or makes them more vulnerable to damage in storms. For example, Asbury H. Sallenger, an oceanographer at the United States Geological Survey and an expert on coastal hazards, said conservationists had been considering massive sand-pumping efforts in hopes of restoring a bird habitat on the Chandeleur Islands, barrier strands off the coast of Louisiana that were severely damaged in Hurricane Katrina and other storms. But with sea level rise accelerating, Dr. Sallenger said in an e-mail message, “there is reason to believe these islands may disappear much more quickly than we thought just a few years ago.” Id. As a result, Dr. Sallenger said, the agency was working to estimate the projected lifespan of the islands, should they be rebuilt to their configuration of the late 1990s. “In other words,” he said, “will the time gained be worth it.” But while many realize that ocean beaches are threatened by climaterelated sea level rise, they do not understand that coastal wetlands—crucial nurseries for fish and shellfish—are at least as vulnerable, much less likely to be preserved and, in many areas, penned in by development and unable to migrate inland, as they would naturally as seas rise. “We need to be preserving upland areas to allow for the landward expansion of wetlands,” Robert S. Young, director of the Program for the Study of Developed Shorelines at Western Carolina University, said in an e-mail message. “Sadly, this isn’t happening in any serious way.” Dr. Young said his program was beginning an effort to get this point across to the public. 19. See Keen, supra note 8, which notes some of the increasing discussions of ways to eliminate emissions and conserve energy. However, as the article notes, some planners state that is not enough because it is just a half of the picture and there needs to be “adaptation planning.” The article notes that Miami-Dade has a task force developing new standards for building roads, courts, airports, and bridges and assumes that there will be “sea level rise, salt water intrusion and severe weather.” 20. John McPhee, The Control of Nature (Farrar, Straus, and Giroux, 2003). 21. Alex Prud’homme, who coincidentally was the coauthor with Julia Child of “My Life in France,” is writing a book about water and prepared a recent editorial, There Will Be Floods: The U.S. Can No Longer Depend on Its Antiquated Levees, N.Y. Times, Feb. 27, 2008, at A27. The article noted that, not only in New Orleans, but throughout the United States, there had been studies confirming that many levees are at risk. He noted that “there are more than 100 antiquated earthen berms across the country in danger of collapsing;” over 1,000 miles of levees in the Sacramento-San Joaquin River Delta alone, which are fragile. As a result, we should rethink, and Congress should have a chance to rethink, land and water use and, not only how and where we build, but ways of obtaining protection for those areas that have populations. Prud’homme notes that “After all, experts say, there are only two types of levees; those that have failed, and those that will fail.” 22. Lesley Clark, Beaches to become foreign soil, Miami Herald, Dec. 13, 2007, at 3B, noting that “Miami Dade County, just about out of native sand to shore up a rapidly eroding coastline, now can go shopping for the finest imported varieties.” This is because the “U.S. Army Corps of Engineers signed off on allowing the County to import foreign beach sand.” The article discusses a “sand skirmish” between areas in Florida for fill due to lack of sand. 23. 545 U.S. 469 (2005). 24. John McPhee, Annals of the Former World 124 (Farrar, Straus, and Giroux, 1978). Regional Regulation of Greenhouse Gas Emissions (Continued from page 8) Endnotes 1. Keith Johnson, Market Making: Carbon Keeps Growing, Wall St. J., February 28, 2008. 2. Id. 3. The Memorandum of Understanding is available at www.rggi.org. 4. The Model Rule is available at www.rggi.org. 5. Interestingly, an allowance does not constitute a property right. 6. See 40 CFR Part 75. 7. See Design Elements for Regional Allowance Auctions under the Regional Greenhouse Gas Initiative (Regional Greenhouse Gas Initiative, March 8, 2008), available at www.rggi.org/ docs/20080317auction_design.pdf. 8. Allowances are identified with a vintage corresponding to the allowances’ respective allocation year. An “allocation year” is the calendar year in which the award is allocated and for which the allowance can be used to demonstrate compliance. 9. RGGI also provides for early reduction allowances (ERAs). ERAs provide facilities with an incentive to reduce GHG emissions prior to the RGGI launch date of January 1, 2009. These allowances are awarded directly to the regulated facility, are not included in the auction, and are in addition to the cap. Eligible ERAs must demonstrate (1) an absolute reduction in carbon dioxide emissions during the early reduction period (2006–2008) relative to the baseline period (2003–2005); and (2) a reduction in the average carbon dioxide emissions resulting from electric energy output and useful thermal energy output during 2006–2008, relative to 2003–2005. Facility shutdowns are ineligible for ERAs. 10. See Memorandum from the Regional Greenhouse Gas Initiative (September 27, 2008), available at www.rggi.org/docs/Auction_1_PostSettlement_Report_from_Market_Monitor.pdf . 11. See 225 CMR 13.00. Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 15 Committee Information Committee on Pretrial Practice & Discovery Summer 2008 Environmental Litigation Committee Home Page: www.abanet.org/litigation/ committees/environmental Newsletter Archive: www.abanet.org/litigation/ committees/environmental/ newsletter.html Subcommittee Page: www.abanet.org/litigation/ committees/environmental/ subcommittees.html Non-Profit Org. U.S. Postage PAID American Bar Association American Bar Association 321 N. Clark Street Chicago, IL 60654-7598 Published in The Environmental Litigator, Volume 20 Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. 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