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Environmental Law & Governance

Monday, March 09, 2015
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Conversation with Natalia Greene about the Rights of Nature in Ecuador

By Guest Author, Melissa Arias, F&ES '15

As part of a major restructuring of the country’s legal framework, in 2008 Ecuador adopted a new Constitution by means of a national referendum. The 2008 Constitution – the country’s 20th – had a special component that made it different from any other constitution worldwide: it was the first Constitution to grant essential rights to Nature. Under Article 71 of the 2008 Constitution, “Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and evolutionary processes.” Under this framework, Nature becomes a subject of rights and “any person will be able to demand the recognition of the rights of nature before public organisms.”

Seven years have passed since Ecuador adopted the 2008 Constitution and yet the actual implementation of the Rights of Nature in Ecuador continues to be widely debated. In an effort to clarify the current status of the Rights of Nature in Ecuador, the Yale Center for Environmental Law and Policy (YCELP) invited Natalia Greene to its webinar series on “Democratizing Environmental Protection”, held on February 6th 2015.

Natalia Green is an Ecuadorian environmental leader who played a monumental role in the adoption of the Rights of Nature in Ecuador’s National Constitution. Along with a group of Ecuadorian environmental activists and representatives from the civil society, Natalia voiced the plea for legally recognizing the protection of nature. Her efforts were rewarded when the Ecuadorian Government accepted the request, as part of a larger movement towards progressivism as embodied in the theoretical framework of the “citizen’s revolution.”

Natalia began her webinar presentation by describing the reasons why Ecuador was the first country to declare the Rights of Nature on its Constitution. As Natalia indicated, one of the main explanationsis the country’s outstanding biodiversity. In terms of number of species of both fauna and flora per hectare, Ecuador is considered one of the most biodiverse countries worldwide. And yet, most of this biodiversity is severely threatened by the expansion of human presence in natural areas. More specifically, one of the major threats to the country’s biodiversity is the construction of roads that give access to oil and mineral reserves located in the heart of the country’s Amazon. In particular, Natalia referred to the case of Yasuní National Park and Biosphere Reserve, an area that became globally recognized for its biodiversity and for the debate that originated around the conflicting interests of conservation and oil extraction inside the protected area.

Later in her presentation, Natalia described what the Rights of Nature represent, as indicated by the Ecuadorian Constitution, and how they fit into the country’s “Wellbeing Development Model”. This Model, advocated by the Ecuadorian Government, includes Nature as a transversal component of its development apparatus. For example, the Model is meant to guide the country’s development away from its heavy reliance on fossil fuels and natural resources and towards an economy that flourishes on the basis of knowledge, cultural richness and biodiversity capital.

Subsequently, Natalia recognized some instances in which the Rights of Nature were respected in Ecuador, even prior to the 2008 Constitution. Examples include the Galapagos Vilcabamba road case and the shark finning prohibition in the Galapagos Islands. However, Natalia expressed a deep concern for the cases where the Rights of Nature have been violated in the country, questioning the legitimacy and abiding power of the 2008 Constitution. The lack of protection of the Tangabana highlands in the province of Chimborazo, an ecosystem of great importance for water and carbon capture, became the first case of a lost demand for the Rights of Nature.

Another case is the open-pit mining project in El Condor Mirador, an area with many endemic specie. In this instance local communities pointed to the project’s environmental impact assessment, which confirmed the project’s contamination would cause extinction of at least three endemic amphibian species and one reptile species. Despite this risk, the project proceeded. This represented a direct violation to Article 73 in the Constitution, which asserts that “the State will apply precaution and restriction measures in all activities that can lead to the extinction of species, the destruction of ecosystems or the permanent alteration of natural cycles”. Moreover, Natalia included the decision to exploit Yasuní National Park as another example of the Government’s flexible interpretation of the Constitution.

Natalia’s presentation concluded with a reflection on how the Rights of Nature constitute an opportunity to change the paradigm and to rethink humanity’s development in harmony with Nature. The presentation was followed by questions from the webinar attendees, which centered around the speaker’s vision for the future of the Rights of Nature, the role that international courts can play, the results of actions by civil society groups in Yasuní and the characterization of the voluntarily isolated indigenous communities that live in the area. In answering these questions, Natalia showed her broad experience in the topic and her unique insights as someone who has committed her career to promoting environmental justice.

Ecuador’s adoption of the Rights of Nature in the National Constitution was a revolutionary move that embodies the country’s political transformation over the past decade. As shown by Natalia’s presentation, the implementation of the country’s new legal framework, including the Rights of Nature, is far from perfect and there is still much to be done to achieve a full recognition of the intrinsic value of Nature. However, as Natalia recognized, this bold move has opened up a space for a different discussion about the environment and conservation that was previously inexistent.

Moving forward, the challenge will be for Ecuador to continue on its path towards human wellbeing by truly acting in accordance to its new constitutional principles. Sincere commitment to protect Nature’s right to persist and to be maintained should not be conditional to capricious human needs and desires. Otherwise the concept of granting essential rights to Nature should be reconsidered in terms of the real capacity and willingness of the State to respect them. Ecuador has an opportunity to become a global example of development in the right direction, one that truly “loves life,”  as the country’s slogan claims. Will it take it?

You can watch a full video of the webinar here, or below:
 

The Politics of Rights of Nature in Ecuador: Natalia Greene from YCELP on Vimeo.

Posted in: Environmental Attitudes & BehaviorInnovation & EnvironmentEnvironmental Law & Governance
Tuesday, February 17, 2015
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Cataloguing Impacts of the Shale Boom: A Foundation for Local Governance

By Guest Author, Christopher Halfnight, F&ES '15

The shale boom has stirred deep controversy across the United States.  With vast domestic deposits of natural gas and tight oil now both geologically and economically accessible, many stakeholders, from developers to landowners, are seeking to gain.  But others are sounding alarms over contaminated wells, methane flares, and toxic spills.  Federal and state authorities, with slow regulatory responses and minimal stake in local impacts, are often leaving local governments to navigate this controversy – and the many impacts of “fracking” – with constrained budgets and limited capacity.

With support from the Oscar M. Ruebhausen Fund at Yale Law School, Yale Climate & Energy Institute, and the Yale School of Forestry and Environmental Studies, a research team at the Yale Center for Environmental Law & Policy and the Land Use Law Center at Pace Law School is working to fill this governance gap through a project titled Addressing the Local Impacts of Hydraulic Fracturing.  The team is building a suite of tools to empower local government decision-making on a range of shale-related local governance challenges.  The project’s stakeholder workshops and research to date have helped fashion the first significant resource in that toolkit: a comprehensive impacts framework cataloguing the potential local effects from shale oil and gas development.  The research team developed this framework of fracking impacts to help orient communities to potential risks and benefits of shale development.  The framework represents a major new resource to provide both a significant knowledge base for local government decision-making and a substantive legal foundation for regulatory and non-regulatory actions.

In the impacts framework, the research team has synthesized nearly 40 local impacts of unconventional oil and gas development across the environmental, socio-economic, and public health spectrum.  The team started with a spreadsheet of municipal fracking bans generously shared by Food & Water Watch, then scoured fracking-related local government resolutions across the country to assess the issues dominating communities’ concerns.  Building on this community-level survey, the team convened two stakeholder workshops and conducted significant research to identify and categorize key potential impacts.  Ranging from habitat fragmentation to visual blight and rising tax revenues to increased employment, the framework addresses both positive and negative impacts communities may face throughout the fracking development lifecycle.  The catalogue of impacts is inclusive but neither exhaustive nor predictive; it captures the range of challenges a community may face from a shale play depending on local context, including issues of concern to the scientific community, environmental advocates, industry, and local community members. Importantly, some of the identified impacts are quite likely to occur, while others are equally unlikely. The researchers are not making judgments about the probability or severity of these impacts. We are simply identifying issues that may arise in any given community in order to help prepare local decision-makers. 

For each impact in the framework, the research team has identified potential causes and resources linked to those causes that explain, document, contextualize, or substantiate the impact.  Wherever possible, the team has sought to provide links to authoritative, peer-reviewed journal articles with objective perspective on an impact and its cause.  Where peer-reviewed resources were not available, the framework provides either non-peer reviewed reports and studies or news reports with useful coverage of the impact.  With more than 150 resources and links that document and contextualize the potential local impacts, the framework represents a significant effort towards equipping local governments with a foundation to manage shale development. 

The impacts framework makes clear that the local effects of the shale boom are many and varied.  Most of the impacts the research team has noted span the entire geography of shale development – from Texas to Pennsylvania to North Dakota – though individual community experiences vary with unique environmental, economic, and other characteristics.  Some potential impacts, such as groundwater pollution from stray gas or fracking chemicals, are subject to scientific study and documented in peer-reviewed literature.  Other impacts, such as an increase in demand for local government services and a reduction in local government workforce retention, are not as well documented but still very real worries for local communities. 

The Yale/Pace shale development impacts framework represents a substantial step in the team’s efforts to empower local government decision-making.  This significant new resource will help local government leaders identify potential risks and economic benefits of fracking specific to their communities.  The framework will also provide the underpinnings for local action based on local priorities, while fostering productive engagement with industry and state regulators.

A static version of this impact list is available online now. In the coming weeks and months the Yale/Pace team will work to update this list with a robust menu of regulatory and non-regulatory governance options that local authorities might consider if any of these impacts raise concerns within their jurisdiction. The team is likewise developing more narrative explanations of the cause of each impact, which will allow local governments to tie their responses more effectively to the underlying problems. Finally, the team will soon release an updated version of this impact list in a dynamic, searchable, online interface.

Building on this initial resource, the team is engaging stakeholders from government, industry, and communities across the country to identify strategic options and alternatives for local governments to address each of the many potential impacts of unconventional oil and gas development.  The research team is creating a series of case studies illustrating local government capacity and identifying leading practices – from comprehensive plan amendments to road use agreements to noise restrictions – that will provide guidance to communities facing shale development.  Eventually, the team hopes to bundle these resources in a comprehensive training program for municipal leaders.  

Despite the recent turbulence in international oil markets, local governments across the country are struggling to keep pace with the shale boom.  Some communities are enacting bans that may be preempted by state governments, while others are welcoming development with inadequate safeguards.  The Yale/Pace research team is striving to find ground between the two, building tools for sound, balanced, and effective local law and policy that will empower the communities where many of the impacts of shale development are felt.

Posted in: Environmental Law & GovernanceEnergy & Climate
Thursday, February 12, 2015
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Land Tenure and Sustainable Agriculture

By Guest Author, Elias Kohn, F&ES '16

As I described on this blog two weeks agoAgroforestry offers numerous social and environmental benefits. Unfortunately, broad implementation faces restrictions, such as the challenges of secure land tenure (as described in last weeks posting). Three current strategies to conquer this problem include constructing clearer legal definitions of agroforestry, honoring multiple land ownership models, and refocusing project funding, especially international climate mitigation financing.           

Agroforestry blurs elements of forestry and agriculture, sometimes landing in a gray zone in between. This can make agroforestry practices difficult to recognize and define. Without clear definitions, promoting land tenure policies or tax exemptions for agroforestry practitioners is also a challenge. This is motivating community groups and government agencies to establish clearer definitions. The USDA, for example, recently put a working definition of agroforestry into official guidance. As different agencies within the US develop programs, the USDA guidance can become a reference point that provides a framework for future legal development and eventual incentives and protection for agroforestry project development.

This is a stepping stone for additional policy improvements and “another piece of the policy puzzle coming together to support agroforestry” says Kate MacFarland of the USDA Agroforestry Center.

A second approach to land tenure challenges involves pooling land under a public domain and then granting community access that is secure for the long term. One example is how local agencies in Indonesia encourage community forestry, such as the Hutan Desa, “village forest,” that is regulated through customary law. In this model, water from the forest is shared, the core area of the forest cannot be harvested, and the village cooperatively protects the forest to enhance communal flood resiliency. The secured land, protected through policies and customary enforcement, provides the land tenure security that appears helpful for agroforestry practices.

Long-term land access, even without legal ownership, can combat land tenure obstacles. In 2006, Peru enacted Law 28852, which holds the potential to grant concessions for  “reforestation and agroforestry” for up to 60 years. Such a long time scale solves many of the concerns that food producers have expressed (see the previous post in this series for some interviews with producers). Law 28852 has been met with high controversy, however, due to possible unintended consequences. A key aspect of the controversy relates back to the need for functional definitions; specifically, there is not a clear enough definition of what constitutes a forest. The problems are multifaceted, just as these solutions are complex and interconnected.

A third approach to improve land tenure is to refocus funding. REDD+ (Reducing Emissions from Deforestation and Forest Degradation) is a United Nations financial incentive program to reduce carbon emissions from forests in developing countries. Some REDD+ projects are controversial in Peru, for example, where critics accuse them of threatening indigenous peoples’ use of landand potentially undermining climate change mitigation. A refocused approach would cut out plantations, biofuels, or other large-scale agriculture projects within REDD+, and shift investment towards projects that establish local land tenure rights that fit within REDD+ goals. If the hypothesis that secure land tenure can promote agroforestry and climate smart land management is correct, then incentives that promote local land tenure could be a primary focus of redirected funds. Those projects might then naturally migrate towards long-term land management strategies such as agroforestry.

Agroforestry offers multiple benefits ranging from the social, economic, and the purely environmental. Similarly, by addressing policy restrictions such as land tenure, and by addressing land tenure in a manner that promotes community level decision-making and control, that course of action creates benefits outside of the actual agroforestry implementation.

A continual thought over the last few weeks, reoccurring when I crossed the Benjamin Franklin bridge in Philadelphia, or saw Manhattan’s skyscrapers from Coney Island, is the profound skill humans have to design and build. Now, it seems imperative to employ these skills to design ecological systems that also provide human needs. To make these systems accessible and maneuverable, like elevators rising effortlessly in the tallest of those skyscrapers, the policy tools and local governance structures require similar design skills and implementation. This task is especially suited for the individuals that inform legal and policy decisions.

Posted in: Innovation & EnvironmentEnvironmental Law & Governance
Thursday, February 05, 2015
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How Land Tenure Standards Prevent Better Agriculture

By Guest Author, Elias Kohn, F&ES '16

If agroforestry provides so many potential environmental and social benefits, why isn’t it more common?

Conversations with agroforestry researchers and growers seem to suggest that lacking long term access to the land, what we can refer to as secure land tenure, prevents greater implementation.

Roughly 40 percent of farmland in the US is rented or leased and “it is a lot harder to implement agroforestry practices if you are leasing the land,”Kate MacFarland of the USDA National Agroforestry Center told me. Without an amendable landlord, farming with trees and perennials is a challenge. It is therefore important to understand how renting land can impact land management decisions, and whether there are any best practices for establishing successful agroforestry practices on rented land.                       

Photo: E. KohnMy own experience renting a residential unit in South Los Angeles and attempting to install a small agroforestry design helps illustrate these challenges. With two freeways visible from the driveway and neighboring a gas station, I was excited to see my coffeeberry bushelderberries, yuccas and a white oak seedling add some color to the nearly constant backdrop of concrete and asphalt. Greywater from my sinks and showers irrigated all the plants that were growing great. When I added worm composting and a small aquaponics system (pictured at left) with tilapia and minnows, my attachment to the whole system grew even more

One day I hurried home to check on everything, only to find that the landlord’s landscapers had ripped apart my work. Verbal permission from the landlord to grow a garden did not matter. Once the disappointment wore off, I was fascinated that the landscapers left all the small annual crops, but killed every native and perennial tree and shrub, the ones that provide greater environmental services and form the foundation of more resilient and longer term agriculture systems.

Was it a coincidence? Maybe, but strikingly similar scenarios occurred in multiple locations for me. Perhaps the short-term and high input agriculture/landscaping model is somehow deeply embedded in the public consciousness. The traditional model is also promoted through policies that dictate what is appropriate to grow on rented land or in a communal garden space.

It might be a leap to compare my experience to the land tenure challenges of large-scale agroforestry systems, but the notion that land use policies undervalue long-term agriculture and agroforestry is a common story.

Travel a few miles down the road from that rental unit in Los Angeles to the site of the former South Central Farm, for example. At one time this was the largest urban garden in the US, packed full of fruit trees and edible perennials that provided food for around 350 families. After the city sold the property to a real estate developer, uninterested in promoting urban food systems, LAPD bulldozed the farm in 2006. Without a guarantee, or even a favorable chance of having the ability to make decisions for a land base beyond a few growing seasons, it is high risk developing crops that provide long term benefits but require higher initial expense, such as fruit and nut trees.

Many food growers and agroforestry proponents still take the risk, understanding the social and ecological benefits of climate smart tree farming. Ben Lawson (pictured at right), a brilliant permaculture designer and emergency/disaster preparedness instructor living in Oregon, lost projects in

 multiple locations because he did not own the land. After months of investing in a project, ownership of the land changed. New landlords held different visions for the property that did not involve food production or land rehabilitation through tree cover. Ben reflects that:

"The sad irony of being a permaculture designer is that so much use of the modernized landscape is temporary. Renters are confined to container gardening. Community gardens are a great model, yet are often at risk of redevelopment…the transient nature of the real estate industry makes long-term investment in establishing productive perennials and tree backyard food crops a marginal practice."

Logan Sander, a natural builder and Master of Forestry Candidate at the Yale School of Forestry and Environmental Studies explored land tenure and farming practices on fifty five farms and yards in Jamaica last summer. While his data analysis is still pending, his hypothesis is that successful agroforestry practices increase with land security.

“The idea is that as tenure is more secure, farmers are going to be planting more edible forestry tree crops and timber crops. Agroforestry elements will be stronger and move away from fast crops.”

While researching in Jamaica, Logan noticed that farmers with more secure land tenure planted long term timber trees among shorter-term crops. They considered this tree growth a safety net or retirement plan for future needs. On the other hand, Logan met farmers interested in agroforestry unable to pursue the practice because, as they explained, they would “have to wait for years and this is not our land.” From his research, Logan witnessed agroforestry implementation obstructed by lack of secure rights to the land.

Ruth Metzel, a teaching assistant for an agroforestry class and former intern at the World Agroforestry Center in Nairobi witnessed similar issues regarding land ownership policies: "Unstable land tenure can be a huge obstacle to practicing agroforestry, because in many cases, as in Costa Rica and Panama, governments have encouraged land clearing in the past in order to demonstrate possessory rights. When farmers and landowners must “prove” that they work the land through creating a clear distinction between their land in productive use and native ecosystems, agroforestry suffers precisely because at an initial glance it blurs the line between field and forest."

Perhaps it is that blurred line between a more “natural” state of a forest and the controlled grid layout of conventional agriculture that was unappealing to the landlord in Los Angeles that removed the trees and native shrubs but left the tomatoes and lettuce greens. Aversion to blurring the distinction between domesticate and wild may explain some of the challenges agroforestry proponents face.

Many policies prevent wider promotion of agroforestry systems, but a few current policies may start to change that trend. I will briefly explore these trends and policies in next week’s post.

A warm thanks to Kate MacFarland, Ben Lawson, Logan Sander and Ruth Metzel for their interviews.

Posted in: Environmental Law & Governance
Monday, January 26, 2015
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Agroforestry: Merging Human and Environmental Needs

By Guest Author, Elias Kohn, F&ES '16

It is no surprise that forestry was a major topic of conversation at the 20th Conference of the Parties to the UN Framework Convention on Climate Change that recently concluded in Lima, Peru. Deforestation and agricultural practices constitute a foundational climate and environmental problem. In the last century, human activity cleared roughly 350 million hectares (1.3 million square miles) of tropical forest and degraded an additional 500 million hectares of primary and secondary tropical forest. Agriculture and indirect impacts of land-use change contribute 52 percent of global anthropogenic methane, 84 percent of nitrous oxide and substantial CO2 emissions. Chemical applications, soil erosion, and altered nitrogen cycles compound the problems that current agricultural practices pose. 

Fortunately, there is an alternative to these damaging practices. In fact, in Lima, eight South and Central American countries agreed to join the 20X20 Initiative in an effort to restore a half billion acres of forest and farmland. Rather than only mitigating the negative impacts of deforestation, 20X20 endorses agroforestry, a climate smart type of agriculture that can transition problems into positive solutions for restoration. Silvopasture, for example, a type of agroforestry, combines trees or shrubs with pastures and can increase animal productivity and forest cover without the negative impacts frequently incurred by conventional grazing.

Photo by F. MontagniniSilvopastoral systems, such as this one (pictured) in Misiones, Argentina that combines hybrid beef cattle and loblolly pine, could be connected to additional agroforestry designs – windbreaks or riparian buffers – to create wildlife corridors on the ecosystem level. These multi-use corridors also sequester carbon, as agroforestry systems appear to surpass conventional agriculture sequestration and may even rival some natural forests. Additional benefits include manure as an organic fertilizer for yerba mate and a steady income between timber harvests.

Even with the Lima 20X20 announcement, agroforestry deserves more attention than it currently receives because it provides numerous environmental benefits while addressing socioeconomic concerns.

Consider the UN Millennium Development Goals. Agroforestry merges environmental sustainability (Goal 7) with human needs such as poverty and hunger alleviation (Goal 1). Reforestation through perennial fruit and nut bearing crops offers a safety net when conditions prevent a productive annual crop season and offer nutritional variety limited by certain monoculture cash crop production. Simultaneously, tree crops, such as cacao and tea production in Southeast Asia, are increasing incomes and economic growth for small landowners. The African Plum, along with a huge variety of additionally underutilized tree crops, offers similar income possibilities.  

Clean water, lower carbon emissions and reforestation should not require less food production, inequitable resource distribution, or staggered economic development.

Goal 3 of the UN Millennium Development Goals seeks gender equality and female empowerment. Interest in the African Plum is growing among women in Cameroon, as the need to pay school fees and buy uniforms overlap with the Plum marketing season. Women comprise sixty to eighty percent of developing world farmers and account for 75% of household food production, yet receive less than 10% of agricultural extension delivery. Long-term tree crops that coincide with growing market demand for new fruits and nuts may offer a way to shift this imbalance to a more equitable distribution.

Photo credit: F. Montagnini

 

 

This picture shows an agroforestry system of organic cacao, bannana, and Inga trees in Costa Rica. (Photo credit for this photo and above: F Montagnini).

 

 

Unfortunately, all of these potential benefits remain severely restrained. Agroforestry designs have proven their effectiveness, but current laws and policies obstruct greater implementation.

Of the major policy restrictions, land tenure stands out as one of the most daunting. Agroforestry is a long-term investment where property rights dictate decisions and management. Policy leaders could promote this design system that addresses environmental challenges and human needs by changing land tenure policies and allowing this practice to thrive.

Initiative 20X20 may bring attention, technical, and financial support to this issue, but will it bring the needed policy changes?

Next week, the second post in this series will address land tenure as a barrier to more widespread agroforestry practices. 

Posted in: Innovation & EnvironmentEnvironmental Law & GovernanceEnergy & Climate
Tuesday, November 18, 2014
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Yale Law students ask California Governor Brown to halt fracking

By Guest Author, Hillary Aidun, YLS '17

Last month I delivered a letter to California Governor Jerry Brown when he visited Yale Law School. Signed by twenty-two members of the Yale Environmental Law Association, the letter asks Governor Brown to place an indefinite moratorium on the use of unconventional oil extraction techniques such as fracking.

Governor Brown has made climate change a policy priority, but development of shale oil threatens to undermine his state’s progress. According to the California Air Resources Board, much of the state’s oil is more carbon intensive than the Alberta Tar Sands, one of the most climate-threatening reserves on the planet. Depending on whom you ask, we need to leave either two-thirds or 80% of proven fossil fuel reserves in the ground in order to restrict global temperature rise to two degrees Celsius. We should at least stop extraction of the most climate-disrupting energy sources, such as California oil.

Climate change threatens California in a number of ways, including by exacerbating drought. But unconventional extraction also contributes to drought in the immediate term by wasting at least two million gallons of water every day. Governor Brown has vowed to place water “front and center” as his state suffers from a drought so severe that cities are restricting residents’ water usage. He could save Californians enormous amounts of water by halting fracking and similar methods. These water-intensive drilling techniques are especially harmful because they permanently remove precious water from California’s supply; the chemicals employed and produced during fracking are so toxic that wastewater cannot be reused for other purposes.

Because fracking involves carcinogenic pollutants such as benzene and formaldehyde it poses enormous threats to human health and the environment through both air and water pollution. According to nationwide industry data, five percent of wells leak immediately, and more than half leak after 30 years. An investigation by the Associated Press has confirmed cases of water contamination in Pennsylvania, Ohio, West Virginia and Texas. In Los Angeles and Orange Counties, oil companies used 45 million pounds of air toxic materials for fracking and similar techniques between June 2013 and July 2014 alone. These toxins included crystalline silica, a known carcinogen, and hydrofluoric acid, which can cause severe damage to the eyes, skin and lungs. Californians have reported other health impacts in areas where fracking has been taking place for years.

Because fracking wastewater cannot be reused, operators dispose of it through underground injection. Federal seismologists have linked this practice to earthquakes. In the last five years Oklahoma has endured 2500 earthquakes, which scientistsblame on wastewater injection. More than half of California’s wastewater injection wells are within ten miles of a recently active fault line. Needless to say, California does not need to amplify its seismic risk.

Our letter—like fracking in California—focuses on oil, but it is important to note that most fracking in the United States takes place in pursuit of natural gas. Many consider natural gas a relatively harmless fossil fuel because it emits less carbon dioxide than coal when burned. But natural gas’s primary ingredient, methane, is up to 105 times more effective at trapping heat in the atmosphere than carbon dioxide. Studies have found that methane leakage rates can be as high as 10% — meaning that in many cases natural gas is even worse for the climate than coal. 

Pick your poison—fracking is extraordinarily dangerous for a number of reasons. That is why nearly 70% of Californians want a halt to all fracking, and communities around the state are moving forward to prohibit the practice or calling on the Governor to do the same. I hope that Governor Brown will take note of fracking’s threats, and lead the nation on this pivotal environmental and human health issue.

Posted in: Environmental Law & GovernanceEnergy & Climate
Wednesday, September 10, 2014
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A Post-Communist Landscape: Mother Latvia and her Sustainable Countryside

By Guest Author, Avana Andrade, Yale F&ES '15

Mother Latvia stands in the center of Latvia’s capital Riga and immediately evokes the people’s struggle for freedom from Russia, and alternating German and Soviet occupations. Liberty, a woman cast in copper, lifts up three stars representing different Latvian regions and her posture, head slightly bowed and both arms raised high, conveys a sense of sacrifice that Latvians still recall from a  not-so-distant past. Having gained independence in 1991, the country now pursues its own desired and expected development.

The Latvian government has committed itself to sustainable development. In the words of former Minister for Environmental Protection and Regional Development of Latvia, His Excellency Edmunds Sprudzs, Latvia is dedicated to “environmentally sound, sustainable policy and growth.” However, the definition of what “sustainability” means to the Latvian national identity, and in the face of increasing Western European influence, is up for debate.

After decades of invasion and occupation, rural landscapes are dotted by derelict farms, some of which may appear to be more wild than agricultural after decades of abandonment. The country is marked by large and eerily untouched sanctuaries of land and coastline, which, thanks to historic Soviet dictates that prohibited any access (fishing, farming etc.), now harbor multiple endangered species. As a result, ideas about wild and rural landscapes and how each evokes Latvian national heritage are sources of contention among government officials, rural communities, and international and domestic non-governmental conservation organizations. At the center of these debates is what “Latvianness” is and how landscapes might be managed in that image.

During the 1990s, for example, the fight over sustainable forestry within Latvia was largely driven by the politics of conservation and national identity, namely the tension between two opposing views, “liberal internationalism” and “agrarian nationalism.” Conservative forestry officials defended the sustainability of their forestry practices against the reformists’ arguments (including those of timber companies) that government practices were ecologically harmful and far from “sustainable.” The reform coalition argued for decreased state intervention, and endeavored to facilitate private and foreign owned commercial forestry, thereby revealing a distinct vision for Latvian development. That is, the reformists foresaw a future defined by involvement in international markets, private enterprise, and civil society. Just as the government foresters envisioned their traditional role as protectors of the forest for the Latvian people, so too did the reformists’ liberal sustainable development agenda rely on the idea of a peasant’s deep respect for nature. Both reflected a national consciousness of the Latvian people derived from a relationship with the land. In several ways, therefore, contention over national identity as embedded in the landscape shaped the debate over how to manage natural resources.

Having studied the emergence of national parks in the United States, I wonder, in creating reserves and attracting Western European tourists to experience its wild and “untouched” nature, will the ecological integrity of Latvia’s sanctuaries be jeopardized? And to what extent will Latvian culture (given the multiple definitions of what this is) be commodified by government administrators or non-governmental organizations (NGOs) for international consumption?

To help guide development, NGOs often come to play key roles in coordinating community-based conservation projects.  The role of the environmental NGO is complex, and one that I came to think critically on during my internship this summer at the Baltic Environmental Forum (BEF) in Hamburg Germany. The organization recently kicked off its multi-year VivaGrass project that will restore and maintain grasslands in Latvia, Lithuania, and Estonia.

The grasslands themselves are a quickly vanishing, an extremely rich ecosystem that has co-evolved with human activity along the Baltic coast over hundreds, perhaps thousands of years. Ancient and modern grazing and farming practices have kept shrub and tree growth in check and allowed a staggering diversity of plant and animal species to flourish. In recent decades, however, the local farming communities that once maintained these grasslands were destroyed by Soviet farm collectivization and have remained debilitated under the infusion of food and goods from Western Europe.

Since the VivaGrass project kickoff meeting in May, I came to appreciate how intertwined the environmental conservation goal of the project is with rural development and how, even though BEF’s primary issue is grasslands, it is inevitably acting within a much larger context of history, national identity, and national politics. Latvian, Lithuanian, and Estonian professionals within BEF, in close coordination with rural farmers and local government administrators, are the leaders of the VivaGrass project. Regardless of the heritage of BEF’s team, though, VivaGrass will deal with more than monitoring grassland health.

As BEF’s VivaGrass project begins to create socially and ecologically “sustainable” grassland management models for its Baltic project sites, it is inevitably involved in political and cultural discourses of rural landscape conservation and development. In its early stages, the project will involve rural stakeholder engagement and grassland rehabilitation (shrub and tree removal). Over time, and in coordination with farmers and municipal leaders, the project will establish long-term maintenance schemes. Such maintenance in other grassland conservation projects around Europe has typically entailed purchasing sheep or cows and a fencing or transporting system. These project often hire shepherds to tend to the animals or enlist local farmers to perform the work. Local farmers ideally would be able to sell meat or milk products for profit to local markets or tourists. In some cases, the products from the animals are coupled with the sale of other locally produced goods.

In remaking select Baltic grasslands, VivaGrass also will be re-fashioning the rural landscape, which is both a cultural and agricultural act. Although local stakeholders may not explicitly state the narratives embedded in the landscape, “liberal internationalist” and “agrarian nationalist” stances may nevertheless shape collective impressions about what is an appropriate appearance and form of grassland rehabilitation. BEF, therefore, is poised to advance a cultural and/or political vision of rural development. Even if it does not officially endorse a particular viewpoint, BEF’s awareness of the implications of either narrative is key in anticipating outcomes of the project as it proceeds and balances local and national developmental needs and desires. Furthermore, a sensitivity to the power dynamics associated with rural development and continually assessing to what degree local populations have control over their own development is a critical question that will impact the long-term viability of VivaGrass.

While Mother Latvia has been a central symbol for the country’s embattled path to independence, the history behind her image does not offer a clear path forward now that the Latvian people have rural landscapes and wild spaces of their own. Competing ideas about national identity and responsible socio-economic development create a backdrop against which any non-profit environmental organization’s efforts are organized. The protection of grasslands within the Baltic region are a particularly poignant case in conservation simply because these ecosystems actually rely on human activity. They are, in other words, biological expressions of an ancient human-nature relationship. As such, BEF’s efforts to protect endangered grassland ecosystems is as much cultural as it is ecological. After decades of war and foreign occupation, Latvian government officials, rural community members, and farmers face the socio-biological consequences of land abandonment and farming community collapse. Non-governmental organizations like BEF may be uniquely positioned to help bring about environmentally and socially sound paths of conservation and development.

Avana Andrade is a Master of Environmental Management candidate at the Yale School of Forestry and Environmental Studies. She earned her B.A. in International Studies and Western European History at Colorado State University in 2010. Before returning to school, she worked as a public historian and backcountry ranger with the Student Conservation Association and the National Park Service in both Northern Arizona and Southern Utah. Her work has focused on the history of grazing and cultural resource management in Glen Canyon National Recreation Area and Canyonlands National Park. Work and recreation on the Colorado Plateau motivates her primary interest in grad school, environmental conflict mediation. Avana is a Colorado native and an avid backpacker and gardener.

Posted in: Environmental Law & GovernanceEnergy & Climate
Thursday, June 19, 2014
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Homegrown Energy and Homeland Security

By Guest Author, Sara Kuebbing, Gaylord Donnelley Environmental Postdoctoral Associate, Yale Institute for Biospheric Studies

In a quest to reduce dependence on foreign oil, the United States government is increasing its mandatory minimum levels of renewable biofuel production each year. Because the US’s first large-scale foray into biofuels—corn for ethanol—was heavily criticized, many non-food plant species are now under consideration for biofuel production. However, this search for non-food biofuels has another, currently underappreciated, impact: The introduction and spread of invasive plant species across the US.

The problem with using nonnative plants for biofuel is that successful biofuel crop traits —short generation time, pest resistance, high growth rates, high water-use efficiency—are the same traits of many invasive plants.

Nonnative plants are those humans introduce into an area from far-off geographic regions. If these plants spread far beyond the place where they were originally planted, they are considered invasive. Not all nonnative plants turn invasive, but recent research indicates that the species the US government is considering for biofuels are three times more likely to be invasive than a random sampling of nonnative species. For more on the plants currently under consideration, see the sidebar Potential Invasives Awiting Approval below.

To address this, the National Environmental Coalition on Invasive Species brought invasive plant experts from around the nation to the Washington, DC last week to meet with members of Congress, congressional staff, and federal agencies The goal of the meetings was to dissuade policymakers from providing federal support for the use of nonnative, invasive plants as biofuel feedstock.

The Environmental Protection Agency gave the green-light nearly a year ago to businesses wishing to grow two well-known invasive grasses: giant reed (Arundo donax) and napiergrass (Pennisetum purpureum). Ironically, the EPA is not the only governmental agency thinking about these species. Giant reed, an aptly named grass that can easily grow stalks over 30 feet in height, is growing unabated along the US-Mexico border. This weed presents such a problem for border patrol agents with the Department of Homeland Security that DHS has commissioned the US Department of Agriculture’s help in coming up with a method to reduce the giant reed populations in Texas.

So why would the EPA approve the wide-spread planting of invasive species? It comes down to strict and literal adherence to laws passed by Congress a few years back. Currently, the EPA reviews potential biofuel feedstocks as part of the Renewable Fuel Standards (RFS) Program, created under the Energy Policy Act of 2005 and revised in the Energy Independence and Security Act of 2007. These laws, in short, demand that the transportation fuel must be a blend of traditional carbon-intensive oil as well as renewable fuels with lower carbon emissions.

EPA conducts a greenhouse gas (GHG) lifecycle analysis on potential biofuel feedstocks to determine if they have lower carbon emissions than traditional fuels. Biofuel producers and purchasers can (and must) petition the EPA to consider their specific biofuel “pathway” to see if it is eligible for renewable fuel standard credits. Because the only explicit requirement in the Energy Independence and Security Act is for EPA to perform GHG analysis, the EPA is sticking to this bare minimum in its environmental review, and has chosen to ignore other existing mandates, such as a presidential Executive Order requiring federal agencies to prevent the introduction and spread of invasive species.

Although EPA doesn’t explicitly consider the potential invasiveness of a plant species under the RFS program, the agency did respond to the unanimous outcry from scientists in 2012 when it first approved giant reed and napiergrass as RFS compliant. However, EPA’s concession did not signal a commitment to consider the ecological impacts of potential feedstocks. Instead, EPA determined that if these invasive plants spread beyond the original planting, necessary control and management efforts would increase their “carbon-costs.” In other words, EPA determined that in some cases, invasion may have climate implications.

EPA ended up withdrawing the original 2012 ruling, and replacing it in 2013 with a supplemental ruling that required producers to submit a “Risk Mitigation Plan” that lays out a plan for keeping these species from spreading beyond the biofuel plantations. So far, no company has submitted a plan. And the scientific community is skeptical about the effectiveness of any self-enforced plan.

For those of us who think using invasive plants for biofuels is a bad idea, the ultimate frustration is that many other plants could make excellent feedstock. There does not have to be a “business vs. environment” trade-off when choosing renewable biofuel plants. Although the traits of biofuels and invasive plants strongly overlap, scientists have a resoundingly solid track record of predicting what species are at “high risk” of becoming invasive, and they’ve developed many practical and useful Weed Risk Assessment tools that allow users to evaluate the potential invasiveness of a species. These tools are so accurate that some governments, including Australia and New Zealand, require that all plant species pass an assessment before introduction into the country.

The scientific recommendation is that Weed Risk Assessments are made a fundamental component of any federal decision on biofuel production. Plants that are considered “low-risk” should be prioritized and incentivized over those that are “high-risk” for invasive potential.  Last week, there was some indication that this could be a possibility. Scientists with the National Environmental Coalition on Invasive Species had positive reception from some agency staff, namely the Department of Energy’s Bioenergy Technologies Office that provided R&D funding for many potential biofuel feedstocks. These staffers were already aware of the invasive potential of some biofuel feedstocks, and seemed receptive to using more formalized assessment tools in their own internal decisions on what species should receive federal funding.

However, it appears that under the current status quo, ecological invasions are likely to increase. The passing of the Energy Independence and Security Act increased EPA’s workload without increasing staffing to complete the task. This has, in part, probably led to EPA’s decision to stick with only the limited consideration of lifecycle GHG emission. And, in another round of agency irony, the Department of Agriculture is touting the transformation of field pennycress (Thlaspi arvense) from “nuisance weed to biofuel” as if the new use will change its ecological properties or limit its invasion.

USDA has a long history of importing invasive plants into the United States. Through the Department of Agriculture Soil Conservation program, many nonnative species were promoted for preventing soil erosion and improving wildlife habitat. The most infamous of these species is kudzu (Pueria lobelata) “the vine that ate the south,” but also includes the highly invasive bush honeysuckle (Lonicera maackii), autumn olive (Elaeagnus umbellata) and Russian olive (Elaeagnus angustifolia).

Would it really be too much to ask for our federal agencies to learn from their past mistakes and avoid promoting kudzu’s successor?

Want to know more about invasive species and US biofuel policies? Check out these good reads:

Lewis KC and RD Porter (2014.) Global approaches to addressing biofuel-related invasive species risks and incorporation into U.S. laws and policies. Ecological Monographs 171. http://dx.doi.org/10.1890/13-1625.1

Quinn LD, Gordon D, Glaser A, Lieurance D, and SL Flory. (accepted, in press) Bioenergy feedstocks at low risk for invasion in the US:  A white-list approach. Bioenergy Research.

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Potential Invasives Awiting Approval

While it seems highly unlikely that the EPA will revise its final ruling on giant reed and napiergrass, more potential invasive plants are sitting in the EPA’s docket. Most of these petition listings are so vague that it is impossible to evaluate the invasiveness potential without further clarification of the exact species under consideration. Currently, the EPA has four different petitions for “grain sorghum,” one for “biomass sorghum,” one for “jatropha,” and one for “pennycresss.” Although scientists and taxonomists purposely use a consistent and widespread convention for naming plants and animals so that they can avoid confusion between different languages or even different regional slang, these petitions are most likely intentionally vague to protect proprietary information about the exact variety of the plant under consideration. 

For example—and using the proper conventional nomenclature—the plant genera Sorghum contains a few highly invasive plants species: Sorghum bicolor (which has a slew of common names including shattergrass, Sudangrass, and, sometimes, grain sorghum) is listed as a noxious weed in six states, and its close relative Sorghum halepense (Johnsongrass) is listed in a 19 states. Likewise, the genera Jatropha contains two members of the IUCN’s infamous “100 of the World’s Worst Invasive Alien Species.” Some proactive researchers have already red-flagged these species because of Weed Risk Assessment results: Jatropha curcas was resoundingly rejected by three different assessments, Sorghum halepense and Thlaspi arvense (field pennycress) by one, and Sorghum bicolor was recommended for further evaluation three times.

Posted in: Environmental Law & GovernanceEnergy & Climate
Thursday, May 29, 2014
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Acclaimed Author Tom Kizzia Closes YCELP Series with Papa Pilgrim and the Divine Land Battles

By Guest Author, Verner Wilson III, Yale F&ES '15

On April 23, during National Park week and just after Earth Day, Tom Kizzia, author of the acclaimed Pilgrim’s Wilderness: A True Story of Faith and Madness on the Alaska Frontier, concluded the Yale Center for Environmental Law & Policy’s 2014 Climate and Energy Bookshelf series sponsored by the Yale Climate and Energy Institute. Kizzia’s lecture, delivered to a crowd of more than 80 people, was titled “Frontier Gothic: Transcendentalists, Puritans, and Pilgrims in Alaska” and explored, in part, the implications of the biggest conservation act in world history.

In 1980, the U.S. Congress passed the Alaska National Interests Lands Conservation Act, or ANILCA, creating over 100 million acres of national parks, preserves, forests and wildlife refuges within the state, transferring ownership of about 60 percent of all lands in the state to the federal government, and setting up a fierce debate between state residents and federal bureaucrats on land ownership and authority.  One of the protected areas established was the Wrangell St. Elias National Park, an area about as large as Switzerland with one glacier alone the size of Connecticut and Rhode Island combined.   

The only town in the park is the village of McCarthy, a former mining settlement that had seen a boom and then bust copper operation in the 1930s. In early 2002, Robert Hale, who called himself Papa Pilgrim, purchased hundreds of acres near an old mine site outside of McCarthy and moved his wife and 15 children there to be away from what he considered a corrupted civilization. In the wilderness he was able to raise his children in his own, unique, religious faith and without the influences of the outside world.

To build up his property, Hale expanded and improved an old mining road. The environmentally destructive improvement lead to conflict with the National Park Service (NPS) – with its mission to preserve the park from development – and highlighted the tensions between private landholders within the park and the NPS

Enter Tom Kizzia, a respected Alaska journalist. Kizzia and his wife owned a cabin near McCarthy. Kizzia asked Hale if he could interview the “Pilgrim” family about the conflict and, in a rare move, Papa Pilgrim agreed after learning that Kizzia was a neighbor.  Soon “Neighbor Tom” spent long periods with the family, something he described as living in another world. Without revealing too much of how the story ends, eventually the sordid details of Papa Pilgrim’s ideal biblical living were exposed.

The story of the Pilgrims, who fought federal officials in order to build access to their property in the park, is one of many intriguing land conflicts within the United States, and especially in my home state of Alaska. I am from the Bristol Bay region, an area with two large national parks, a national wildlife refuge and the nation’s largest state park, and I know firsthand how questions of ownership and authority over lands in Alaska are still hotly contested, decades after ANILCA set off a firestorm between local Alaskans and decisionmakers in Washington, D.C.

One example is the proposed Pebble Mine, a copper and gold mine on state land located in an area between two national parks, Lake Clark and Katmai. The state of Alaska and the mining company, Northern Dynasty Minerals, contends that the Pebble deposit is in an area open for mineral exploration and development. They argue it would be worth $300-$500 billion given today’s mineral prices, provide thousands of jobs, and much revenue to the state. The federal government claims that the U.S. Environmental Protection Agency has the final authority on whether the mining activities can go forward. The EPA argues that because the mine will affect waters of the United States, the EPA has final authority through the 1972 Clean Water Act.  The Act allows the EPA to veto or restrict development activities that can impact drinking water, recreational, fishery or wildlife areas.  Through a final EPA study released earlier this year, EPA found the Bristol Bay region produces nearly half of the world’s wild sockeye salmon—salmon on which my family depends for our livelihood. EPA subsequently started a process to veto the development of the Pebble Mine. Religious leaders have also come out against the proposed mine because they fear it will pollute God’s creation in the region.

The use of religion for preservation is an interesting argument in both the cases of the proposed Pebble Mine and the Pilgrim family.  Yale Divinity School’s 2009 conference discussed this very issue.  It brings us back to the lessons learned from Tom Kizzia’s book and lecture at Yale, that religion can be used in cases of both development and preservation. Through the intriguing story of the Pilgrims, undeveloped wilderness was the reason that they purchased the land and subsequently why they fired off a thunderstorm of land conflicts when they tried to develop part of it.

 

Verner Wilson, III, is a rising second-year Master of Environmental Management candidate at the Yale School of Forestry and Environmental Studies. He is originally from Bristol Bay, Alaska, and obtained a bachelor’s degree in Environmental Studies in 2008 from Brown University. He previously worked for the World Wildlife Fund, as well as a coalition of Alaska Native tribes, on issues related to sustainable wild salmon fisheries, environmental justice, mining, oil and gas, and climate change.

Posted in: Environmental Law & GovernanceEnergy & Climate
Wednesday, May 28, 2014
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Update: The Yale-Pace Local Governance of Shale Oil and Gas Development Project

By Guest Author, Christopher Halfnight, Yale F&ES '15

Unconventional oil and gas development is fundamentally changing the U.S. energy landscape, bringing both new challenges and new opportunities.  Federal and state laws regulate some aspects of the shale oil and gas development life-cycle, but the pace and scale of shale plays in states from Pennsylvania to Texas to North Dakota risks a host of potential impacts at the local level – impacts that may fall through a governance gap without effective exercise of municipal land use and zoning authority.

Researchers at the Yale Center for Environmental Law & Policy and the Land Use Law Center at Pace Law School, with support from the Oscar M. Ruebhausen Fund at Yale Law School and the Yale Climate and Energy Institute, are leading an outreach, analysis, and guidance effort to help address this potential shale gas governance gap at the local level.  As outlined in the team’s White Paper, outright bans on fracking risk state preemption, while uncontrolled drilling risks negative community and environmental impacts.  The project team aims to support municipal leaders in developing sound, balanced, and effective local regulatory, non-regulatory, and planning practices to address the impacts of shale oil and gas development.  With the proper tools, local authorities can effectively govern many aspects of fracking by better interfacing with state regulators and industry, or exercising local powers to mitigate land use impacts and environmental damage, while ensuring safeguards for net economic, social, and community benefits.

As part of this ongoing effort, the Yale and Pace team recently convened a facilitated discussion at Yale Law School with diverse stakeholders from industry, advocacy, government, and academia.  Titled “Closing the Shale Gas Governance Gap,” the session in late March focused on local strategies and best practices for governing unconventional oil and gas development.  The team’s research is turning up novel and notable examples of local regulation of fracking – overlay zones, parcel size restrictions, insurance requirements, and noise limits, to name just a few.  We sought to enhance and expand our efforts through collaborative discussion with a group of experts from the field.

Professor Hannah Wiseman from Florida State University College of Law opened the discussion with an overview of current federal and state regulatory efforts, highlighting potential impacts and governance gaps at the local level.  Participants then heard from three distinguished speakers with firsthand knowledge of local government attempts to address the impacts of fracking.

John Smith, Solicitor for Cecil Township in Pennsylvania and attorney for the municipalities in the recent Pennsylvania Supreme Court case Robinson Township v. Commonwealth, spoke of a wide range of local challenges in the communities he represents, from water use to road traffic, and silica dust to seismic testing.  Attorney Smith also discussed unique strategies in Cecil Township, including local ordinances requiring sound walls around drill sites and advance notice of drilling.

Similarly, Terrence Welch, Partner at Brown & Hofmeister LLP, in Richardson, Texas, offered valuable perspective on crafting the Dallas local ordinance governing oil and gas development in an urban and suburban setting in the Barnett Shale region of north Texas.  Public attention in the nearby suburb of Flower Mound focused heavily on the issue of setbacks, and local government experience there highlighted the importance of property value studies to justify those setbacks, as well as the need to anticipate variance claims, the threat of takings lawsuits, and issues unique to parkland.

Lastly, Stephen Ross, formerly the County Attorney for Santa Fe County, New Mexico, discussed Santa Fe’s recent gas development ordinance, providing unique insight into the county’s efforts to facilitate public participation, initiate a temporary moratorium, draft general plan amendments, and build a collaborative interaction with state government.

Through these presentations and the discussion that followed – moderated by Professor John Nolon from Pace Law School – two clear lessons emerged: local governments have the legal capacity to address many impacts of hydraulic fracturing and they exhibit a wide variety of approaches and strategies.  The team is using these lessons to bolster and guide future efforts.  With the right tools, local governments can play a large role in filling the shale governance gap; leading practices and robust training will help prepare municipal leaders as they grapple with the challenges and opportunities of a shale oil and gas play.

The March workshop represented a key step forward in the project team’s ongoing efforts to help local governments address the impacts of hydraulic fracturing.  The discussion built on our December 2013 expert panel and workshop at Pace Land Use Law Center’s Annual Conference which aimed to test the governance-gap hypothesis: that federal and state regulatory schemes are failing to address a range of local impacts from hydraulic fracturing.

At that workshop, a diverse group of stakeholders collaborated to identify and discuss potential impactsand concerns at the local level, ranging from the positive effects of increased economic activity, to risks of water contamination, air pollution, and pressure on local roads and services.  The impacts of unconventional oil and gas development vary according to local factors.  But the group at the December session emerged with a strong a consensus that federal and state regulatory measures are often inadequately addressing those impacts – a consensus that helped transition the project toward identifying local strategies and best practices.

The Yale and Pace team is excited to continue building on our collaboration with expert participants from these two workshops.  As we refine our research on leading practices for local governments, the project team is shifting toward fashioning a comprehensive suite of tools and a robust training program to equip local leaders with the knowledge and capacity to deal confidently with hydraulic fracturing.  With multiple-stakeholder input, we aim to empower local communities to chart an informed and responsible path through the potential benefits and risks of fracking.

We expect to develop a variety of tools and programs in the coming months.  Expanding on our research and outreach to date, the team is creating a thorough guide to potential impacts and issues that local governments may face and may wish to address – including rising local government revenues from sources such as sales taxes, property taxes, or state-collected severance taxes, booming real estate markets, new bunk-housing, well fires, pipeline breakage, seismic testing, and flaring noise.  This substantive framework and checklist will help orient communities to the various benefits and risks of fracking, including potential environmental, health, and socio-economic impacts that municipal leaders will need to evaluate.  Grounded in research and case studies such as those discussed in the March workshop, this issues framework will also provide a substantive foundation municipalities can use to justify potential regulatory and non-regulatory actions.  With a solid knowledge base tailored to local conditions, municipal leaders will be better positioned to effectively manage gas development and to engage industry and state regulators in productive dialogue.

We also intend to continue building on the March workshop to complement the issues framework with detailed strategic options and alternatives for local governments tailored to each of the potential impacts.  We anticipate including leading practices for both regulatory and non-regulatory strategies, drawing from our previous facilitated discussions and further research and collaboration.  The procedural options framework may include model planning and zoning documents, such as comprehensive development plan amendments to address unconventional oil and gas development, special use permits, and draft ordinances focusing on setbacks, use restrictions, overlay strategies, insurance requirements, noise limits, and other aspects within the purview of local government.  As a counterpart to regulatory options, the framework will also include non-regulatory strategies and templates, such as policy statements, funding strategies, model road use agreements, community benefit agreements, processes for seeking better support from state regulators, and other means of securing local advantages from shale gas development while safeguarding against potential negative effects.  These non-regulatory strategies can help communities work collaboratively with industry to ensure baseline testing, high performance standards, post-development bonding, and other local needs.

Ultimately, the team intends to communicate the entire package as part of a robust training program for municipal leaders – first as a pilot project and eventually at large.  We also expect to develop new mechanisms – potentially online – to distribute project materials and to facilitate communication between municipalities, particularly in regional frameworks to address cumulative impacts of gas development.  In so doing, we hope to promote dialogue between communities and industry, and between municipal and state authorities.

Our work to date – and the generous support of experts and sponsors – has positioned the Yale and Pace team to move forward with the next phase of addressing the local impacts of hydraulic fracturing, and is already receiving positive media attention. For better or worse, the shale boom continues.  Unconventional oil and gas development brings the prospect of significant economic gain for often-frail local economies, and the specter of long-lasting environmental harm and community detriment.  With the proper tools and knowledge base, municipal leaders will be better equipped to navigate an effective path between those two poles, mitigating potential negative impacts, while securing net economic and social community benefits.

Posted in: Environmental Law & GovernanceEnergy & Climate
Wednesday, April 23, 2014
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Going the Distance: An Update on Efforts to Address Emissions in the Aviation and Maritime Sector

By Guest Author, Joanna Dafoe, Yale F&ES '14

Aviation and maritime transportation make up an important part of the transportation sector—so, too, are the emissions associated from their fuel use. This article reflects on the progress made to address greenhouse gas emissions within the International Civil Aviation Organization and International Maritime Organization, and presents a blueprint of activity within the coming year.

Member States to the International Civil Aviation Organization (ICAO) make decisions related to aviation emissions under the Organization’s sovereign body, the ICAO Assembly. ICAO’s 38th Assembly met on 13 October 2013, and its outgoing resolution on climate change summarizes the Organization’s progress and challenges addressing emissions.

Under ICAO Assembly Resolution A38-18, Member States agreed on, among other things, three elements related to greenhouse gas emissions. First, Member States repeated their resolve to work toward a global annual average fuel efficiency improvement of 2 percent until 2020 (with a long-run aspirational efficiency improvement rate of 2 percent per year from 2021 to 2050). Second, Member States requested the ICAO Council to develop a global CO2 certification Standard for aircraft (with a view to adoption by Council in 2016)—the purpose of which is to reduce aircraft CO2 emissions through fuel-efficient technologies in aircraft design. Third, the Assembly agreed to further its support for Member States’ action plans to reduce aviation emissions through capacity building and assistance. For an example of this capacity-building work, see our IISD calendar entry on ICAO States’ Action Plan Seminar for the South American Region and North American, Central American and Caribbean Region.

The second big topic of work within ICAO is related to market-based measures. During the 38th Assembly, this issue was the source of difficult and protracted debate between Member States. Paragraph 19(d) within Resolution A38-18 suggests a general roadmap of work before the 39th Assembly in 2016. Member States requested the Council to identify problems with, and corresponding recommendations for, market-based measures. Member States also requested the Council to identify the “mechanisms for the implementation of the scheme from 2020 as part of a basket of measures.” Thus, technical work remains for the coming year. This includes work on environmental and economic impacts and possible options for a market-based measure scheme. Finally, in the Annex of Resolution A38-18, Member States agreed on guiding principles for the design and implementation of market-based measures.

Just as ICAO had a busy year of work on climate issues, so too has the International Maritime Organization (IMO). Member States within IMO have been working to address greenhouse gas emissions from international shipping, which is estimated to make up approximately 2.7 percent of global emissions. IMO Member states address issues related to greenhouse gas emissions under the Martine Environment Protection Committee (MEPC).

This past year the Committee focused on technical and operational measures relating to energy efficiency for ships. In particular, the Committee focused on developing technical and operational energy efficiency regulations under the new chapter 4 of the International Convention for the Prevention of Pollution from Ships (MARPOL) Annex VI, which went into effect on 1 January 2013. This chapter includes requirements for new ships under the Energy Efficiency Design Index and the Ship Energy Efficiency Management Plan.

In addition to regulation, IMO has also been working on energy efficiency developments through research and capacity building. The 65th session of the Committee adopted resolution MEPC.229(65) on promoting technical cooperation and transfer of technology relating to energy efficiency of ships. The MEPC also approved the terms of reference to initiate a study to update emissions estimates for international shipping. Despite these areas of progress, the MEPC was unable to agree on a discussion for market-based measures and related issues. Member States thus decided to suspend this issue to future sessions. The 66th Session of the MEPC met from 31 March to 4 April. Among other items, the 66th Session considered technical and operational measures for enhancing energy efficiency of international shipping and reducing greenhouse gas emissions from ships.

Looking back on the past year, IMO and ICAO have both taken up important issues related to greenhouse gas emissions from fuel used for international aviation and maritime transport. Future meetings will largely focus on technical and operational issues related to emissions, but there is also room for important policy developments in the background. We will have to wait until future meetings to know what exactly is on deck—or, perhaps also, on the runway—for the rest of 2014.

A version of this blog entry initially appeared on the International Institute for Sustainable Development Reporting Services Climate Change Policy and Practice site.

Posted in: Environmental Law & GovernanceEnergy & Climate
Monday, April 21, 2014
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Pilgrim’s Wilderness: A True Story of Faith and Madness on the Alaska Frontier

By Guest Author, Verner Wilson, III, Yale F&ES '15

The last speaker in the Yale Center for Environmental Law and Policy’s 2014 Climate and Energy Bookshelf speaker series is a fellow Alaskan. I have been reading journalist and author Tom Kizzia’s stories since I first started following the news as a teenager. As a reporter for Alaska’s largest newspaper, the Anchorage Daily News, Mr. Kizzia has been on the front lines of our state’s most pressing issues for years.

His recent book Pilgrim’s Wilderness: A True Story of Faith and Madness on the Alaska Frontier, one of Amazon’s best books of 2013, details the strange (but true) journey of the self-proclaimed Papa Pilgrim, who established his wife and fifteen children in America’s largest national park in south-central Alaska. The Wrangell St.-Elias Park, at over thirteen million acres, is larger than the states of Connecticut, Massachusetts, Rhode Island and New Jersey combined. When the Pilgrims moved there in 2002, they challenged the National Park Service’s authority to conserve the nation’s protected areas, and their attempts to bulldoze thirteen miles of road and to develop their property inside the park touched off one of the most-visible controversies between environmentalists, government officials and local land-rights advocates in a generation.

The Pilgrims story will be the focus of Mr. Kizzia’s lecture "Frontier Gothic: Transcendentalists, Puritans, and Pilgrims in Alaska" on Wednesday April 23 at the Yale School of Forestry and Environmental Studies (also available for live stream at http://new.livestream.com/YaleFES/frontier-gothic). If you are interested in battles over national parks or protected areas, public land vs. private property disputes, religious connections to the wilderness, or Alaska’s many environmental debates,  this talk is for you.

Today Wrangell St. Elias Park, with about 25 percent of its land is covered by glaciers, is a hotbed not only for the land conflicts between the federal government and the region’s sparse inhabitants, but also a nexus between climate change and its impacts on wilderness areas.  The National Park Service and other organizations, such as the National Parks Conservation Association, are monitoring how climate change is impacting the area’s glaciers and weather.  They claim melting glaciers and ice within the region are uncovering many Native American and former mining industry artifacts that were left after the area’s early 1900s copper mining rush, artifacts that archaeologists are trying to preserve amidst global change. I look forward to seeing everyone at the lecture.

Verner Wilson, III, is a first-year Master of Environmental Management candidate at the Yale School of Forestry and Environmental Studies. He is originally from Bristol Bay, Alaska, and obtained a bachelor’s degree in Environmental Studies in 2008 from Brown University. He previously worked for the World Wildlife Fund, as well as a coalition of Alaska Native tribes, on issues related to sustainable wild salmon fisheries, environmental justice, mining, oil and gas, and climate change.

Posted in: Environmental Law & Governance
Monday, April 14, 2014
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The New Farm Bill + Sustainable Farming Systems: A Conversation with Ariane Lotti

By Guest Author, Avana Andrade, Yale F&ES '15

On Wednesday, April 16, we will continue our conversation about the farm bill and the future of farming with Ariane Lotti, assistant policy director at the National Sustainable Agriculture Coalition. Lotti will speak with us about how the 2014 farm bill shapes emerging alternative food systems and will give us insight into spaces for subsidy reform in the coming years.

farm subsidy is essentially a financial “safety net,” which is designed to help agricultural producers weather unstable markets from year to year. This security is intended to even out the fluctuations in market prices, demand, and weather and protect the agricultural community from collapse as a result of one or two bad years. These subsidies, however, are not disseminated broadly within the entire agricultural system of the United States. Rather, they are heavily weighted towards the five commodity crops: corn, soybean, cotton, and rice. Dairy and sugar producers are also bolstered by a separate market and cost control system.

These subsidies are government intervention in the food systems that began in the United States during the New Deal and Agricultural Adjustment Act of 1933 (though the United Kingdom has much earlier versions of such government action). Although these subsidies grew out of economic necessity, they have come under increasing attack in recent years. While proponents point to the need for subsidies in order to make domestic products competitive in the international market, others argue that they distort markets. This distortion, detractors hold, is not only detrimental to poor farmers in developing countries but also places excessive burden on domestic taxpayers, while incentivizing environmentally harmful agricultural practices, thereby leaving more environmentally friendly techniques underfunded.

Commodity programs dispense billions of dollars every year to farmers and in order to access these funds, farmers may put marginal land into production, a decision that can lead to overproduction, and a prompt price collapse as in the rice industry of the 1980s. Opponents of historic farm subsidies quickly point to the overuse of fertilizers and pesticides that farmers use to make marginal cropland more productive, a behavior incentivized by subsidies.  The resulting nutrient loading and pollution, they argue, creates an unnecessary environmental problem.

While the 2014 Farm Bill may have upheld historic trends in maintaining an agribusiness protected by farm subsidies, it does invest more than $1.2 billion over the next five years for programs for beginning farmers, local food, and organic agriculture. The Farm Bill also “reconnects crop insurance subsidies to basic conservation requirements,” a good sign for those concerned about the impact of modern industrial agriculture on U.S. ecosystems. However, as Ariane Lotti will demonstrate, the Bill’s persistent subsidy structure leaves much to be desired if truly innovative farming practices are to take hold.

Arianne Lotti holds a Master of Environmental Management from Yale University and, in addition to her work at the National Sustainable Agriculture Coalition, she has served as the policy director for the Organic Farming Research Foundation. Lotti is a published author and her research remains focused on organic and conventional farming in the US and in Europe. Lotti also serves on USDA’s National Agricultural Statistics Service Advisory Committee.

To register for Lotti’s talk, please see this link: https://www4.gotomeeting.com/register/576821455.

Our final speaker in our Frontiers in Food and Agriculture series is Sarah Carlson, research coordinator at the Practical Farmers of Iowa. Carlson will be concluding this series with her talk “Driving Sustainability: Empowering Growers with On-Farm Research.” For more information about her talk please visit our events page here:http://envirocenter.yale.edu/events. To register for this final webinar see this link: https://www4.gotomeeting.com/register/470665063.

Posted in: Innovation & EnvironmentEnvironmental Law & Governance
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How the Public Trust Doctrine Can Save Us from the Perils of Climate Change

By Guest Author, Verner Wilson III, Yale F&ES '15

University of Oregon environmental and natural resources law Professor Mary Christina Wood tries to minimize her personal travel to reduce her carbon footprint.   But as a professor, she believes that it is extremely important to constantly engage with future leaders who will have to deal with the growing impacts of climate change.  That is why she traveled across the nation to offer her expertise at the Yale Law School on April 3rd

Her message to the future leaders at Yale offered a glimmer of hope and a new way of thinking about how environmental law can help battle the perils of climate change and other environmental issues.  The paradigm shift that she urges the environmental community to undertake in order to help solve the climate and environmental challenges of our time is also eloquently stated in her new book Nature’s Trust: Environmental Law for a New Ecological Age.While reading her book, listening to her lecture, and having conversations with her throughout her visit at Yale, I was intrigued with this new way of thinking.

It’s no secret that the many current environmental statutes and the strategies that the environmental movement has used to try to reduce greenhouse gas emissions have failed in many ways.  It was all too evident this past week in Berlin, Germany, where the world’s governments along with its most expert and credible scientists met to finalize an updated scientific report by the United Nation’s Intergovernmental Panel on Climate Change (IPCC).  The report, released on Sunday April 13, is to be used for discussion at the 2015 United Nations Framework Convention on Climate Change (UNFCCC) conference in Paris where expectations are high for a strong international greenhouse gas reducing treaty.

In putting together the IPCC document, scientists agreed that humans are fuelingthe extreme storms and weather to which many parts of the world have fallen victim in the past decade.  They also agreed that there needs to be a global shift on how we get our energy, and that moving to renewable energy sources will be critical.  Yet many of the world’s political leaders used the IPCC process in Germany to try to hack away the strong language that scientists agreed on.  For example, Saudi Arabia’s officials did not want the report to contain scientific findings that declare that emissions need to go down 40 to 70 percent by 2050 for the world to stay below a warming of two degrees Celsius.  Saudi Arabia would stand to lose a lot if countries ultimately acted upon that language, since its economy relies heavily on the oil industry.  While the language remained in the scientific document, it is unlikely to be ratified at the UNFCCC because the process requires unanimous consent.

Here in the United States, a recent Supreme Court ruling also paved the way for wealthy special intereststo influence the political process even more, which will likely have a lasting impact on climate-related law and policy.  In the case McCutcheon vs. the Federal Election Commission, the Supreme Court ruled earlier this month that there can be no limits on how many candidates for federal office a single private donors can give to.  Under the previous rules, a donor could only give a maximum of $123,200 in federal races and parties in each two-year election cycle.  Now an individual donor can give up to $3.6 million in federal U.S. Senate and House races. Thisallows rich political donors connected to the fossil fuel industry, such as coal company CEO Shaun McCutcheon who brought the suit, to have more political influence. 

Professor Wood argues that because of the grip that fossil fuel interests hold on the political process, we must look at another way to fight climate change.  She argues that the Public Trust Doctrine surpasses legislative and regulatory environmental efforts that have thus far failed to curb greenhouse gas emissions.  The doctrine, enshrined in constitutional and common law, states that governments hold certain natural resources needed by everyone, such as clean air and water, in trust.  Government officials cannot just give those resources away for private ownership, and may not permit the demise of those resources.  Public officials also have a continuous duty to safeguard the long-term preservation of those resources for the benefit of future generations.  Professor Wood argued that the founding fathers recognized that the people rely on clean natural resources such as wildlife and streams to exist, and that our government must act as a trustee for these resources.

Use of the doctrine for environmental protections is reaching a critical point.  In a recent groundbreaking case, on December 19,2013 the Pennsylvania Supreme Court ruled that Robinson Township in eastern Pennsylvania was allowed to ban the practice of hydrologic fracturing or “fracking” for natural gas within their jurisdiction to protect their town’s water supplies.  In that decision, former Chief Justice Ronald Castille cited the Public Trust Doctrine and wrote that there are certain environmental rights that we all hold, such as a right to clean air and water, and in addition to being identified in the Pennsylvania constitution, these rights are inherent to the public at large. 

The Public Trust Doctrine is currently being tested in federal court by a group of young people who argue that their rights to clean air are being compromised by increased greenhouse gas emissions. The youth are trying to force the Obama Administration to create a comprehensive Climate Recovery Plan in order to protect the “Atmospheric Trust” that they argue young people and future generations are entitled to.  The Washington D.C. Circuit Court of Appeals will decide the case on May 2nd, and Professor Wood will undoubtedly be paying attention to what she believes will be a historic ruling. 

 

Verner Wilson, III, is a first-year Master of Environmental Management candidate at the Yale School of Forestry and Environmental Studies. He is originally from Bristol Bay, Alaska, and obtained a bachelor’s degree in Environmental Studies in 2008 from Brown University. He previously worked for the World Wildlife Fund, as well as a coalition of Alaska Native tribes, on issues related to sustainable wild salmon fisheries, environmental justice, mining, oil and gas, and climate change.

Posted in: Innovation & EnvironmentEnvironmental Law & GovernanceEnergy & Climate
Thursday, April 03, 2014
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National Environmental Law Moot Court Competition Puts Theory into Practice

By Susanne Stahl

The National Environmental Law Moot Court Competition at Pace Law School in White Plains, N.Y., is the largest interschool environmental moot court in the nation, regularly attracting over 200 students from various schools to compete and 200 attorneys to serve as judges. Halley Epstein, YLS ’14, and Sarah Langberg, YLS/FES ’14, participated in this year’s competition and made it through to the semifinal round—one of the top nine teams out of the 76 competing—and the only team without a coach to advance to the penultimate round.

They recently sat down with the Yale Center for Environmental Law & Policy to discuss their experience.

What is a moot court?

Sarah Langberg: The Pace competition simulates writing and arguing in front of an appellate court. Participants receive a prompt describing issues decided either by a state supreme court or a lower federal district court; they then argue those issues on appeal to a higher court.

The organizers generally pick an issue that’s heavily contested in the courts—one for which there’s no clear outcome; different courts may have decided in conflicting ways; it’s not clear which side is correct or what the best argument is. It’s for the students to then determine the best legal reasoning and policy arguments and ask themselves what they can bring to bear on these unresolved questions.

What issues did the competition highlight?

Sarah Langberg: The competition highlighted six key issues—two procedural, and four substantive. Each involved the jurisdictional reach of the Clean Water Act. The nuances of the Clean Water Act’s jurisdiction have been contested for decades, and a series of Supreme Court decisions in the early 2000s made these issues even more confusing.

Halley Epstein: Even though the Supreme Court addressed some of the nuances of our case, their past decisions left many unresolved questions in the field. The procedural issues we had to address dealt with who can bring suit and who can enforce certain rights in federal court.

Sarah Langberg: For the Clean Water Act in particular, jurisdiction is so important because once you say a water is protected under the Act, it’s clear cut what those protections are and how they’ll apply. But getting that water protected under the Act is the game, and people often heavily contest that jurisdiction.

How much time did you have to prepare?

Halley Epstein: We received the prompt in early October, and we had two months to research and write the brief itself. We then had another two and a half months to prepare for the oral argument part of the competition.

Sarah Langberg: There were three parties in case, and we had to choose only one party for whom to write our brief. But for the oral arguments, we had to argue all three sides.

Halley Epstein: The morning of the competition we drove from New Haven to White Plains.  We couldn’t find out which side we were arguing until we arrived, so we had a short amount of time to orient ourselves and get into the mindset of “this party’s right and here’s why.”

What was the competition itself like?

Halley Epstein: We argued five cases—three preliminary rounds, the quarterfinal round, and then the semifinal round. Each round is a full two hours, with three teams participating in a case. Each student is allotted 15 minutes (30 minutes per party, since two oralists represent each team in a given round) with the remaining time left for rebuttal.

Most teams had three students; only two argue per round, so one person typically gets a break. But as a two-person team, we did not have any breaks—the competition was non-stop. There were a lot of mental gymnastics going on in switching between the different parties each round.

Sarah Langberg: Fifteen minutes of arguing in front of the judges, by yourself—just you having a conversation with the judges—feels like a very long time. And that’s what it’s like in real appellate courts.

How does an experience like this shape or change your perspective on the practice of law?

Sarah Langberg: I’ve been thinking that I want to litigate. Successfully standing in the line of fire of the judges’ questions was definitely an affirming experience. I enjoyed the atmosphere. It didn’t feel like pressure, it felt exciting.

Halley Epstein: We’re both interested in litigation, but neither of us had participated in moot court before. The practice—even if we had gone home after the first round—gave us the opportunity to learn about our styles, things we want to work on, and the conversational aspects of our presentations that we want to continue to build.

Sarah Langberg: The brief writing aspect of it was also very valuable. We wrote briefs our 1L year, but that was just as we were coming into law school. Through various internships and practical experience, we’ve written a section of something here or there, so doing a whole brief ourselves was an invaluable experience.

Halley Epstein: And the team aspect of dividing the issues and then consulting with each other to ensure our lines of reasoning were consistent was also important because, in the real world, you may have primary responsibility for a motion or brief, but you mostly likely will be writing with someone else.

It was interesting to talk to students from the other teams and find out how they had prepared. The competition was a fun and unique way to connect with other people interested in environmental issues.

Sarah Langberg: Preparing the brief and oral arguments from three perspectives forced us to think about issues in various lights and put our education into practice in a way that we often don’t get to do in standard classes. It was a wonderful experience.

Halley Epstein: Because we had such a good experience, we’re encouraging students in the Yale Environmental Law Association to coordinate a more formal team next year. Even though our informal effort worked very well, a little more structure will help YLS field competitive teams in future years.

Halley Epstein, YLS ’14, will be clerking on the U.S. District Court for the Eastern District of Pennsylvania and the U.S. Court of Appeals for the Third Circuit after graduation.

Sarah Langberg,YLS/FES ’14, is a joint-degree student with the Yale School of Forestry and Environmental Studies. She will be clerking for the Chief Justice of the Alaska Supreme Court after graduation.

Posted in: Environmental Law & Governance

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