Environmental Litigation - American Bar Association

Transkript

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.
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© 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]).
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,
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
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).
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
Maine
New Hampshire
New Jersey
New York
Vermont
Massachusetts
Rhode Island
Maryland
Table 2
Years 2009–2014
Year 2015
Year 2016
Year 2017
Year 2018
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.
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.
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
committees/environmental,
along with other materials
related to the articles
in this issue.
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.
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10
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
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
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
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).
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.
15
Committee Information
Committee on Pretrial Practice & Discovery
Summer 2008
Environmental Litigation
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