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Environmental Law & Governance

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
Wednesday, April 02, 2014
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Advocate for Future Generations and Climate Change Policy to Speak at Yale Law School

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

The state of the world is at a crossroads, and according Rajendra Pachauri, Chairman if the Intergovernmental Panel on Climate Change (IPCC), "in view of [the current] impacts [described by the IPCC’s Fifth Assessment Report], and those that we have projected for the future, nobody on this planet is going to be untouched by the impacts of climate change."  Related, the United Nations World Meteorological Organization said that 2013 was the sixth-warmest year on record. Thirteen of the fourteen warmest years were in the 21st century alone, showing how human activities have warmed the planet. 

U.N. scientists that met last week in Japan to discuss these findings underscored how humans are vulnerable to a changing climate, which can mean more extreme weather events and spiral into related disasters.  They cited that without anthropogenic emissions of fossil fuels, it would have been “virtually impossible for Australia’s record hot calendar year of 2013…illustrating that some extreme events are becoming much more likely due to climate change.”  And it’s likely to get worse, which does not bode well for future generations who will have to deal with the impacts as emissions continue to increase.

That is why I’m pleased that someone who has tirelessly advocated for future generations and a new way of thinking on climate change policy will be coming to Yale Law School on Thursday April 3rd.  Mary Christina Wood is the Philip H. Knight Professor of Law at the University of Oregon as well as Founder and Faculty Director of the nationally acclaimed Environmental and Natural Resources Law Program at the University of Oregon School of Law. She will be discussing her recent book, Nature’s Trust: Environmental Law for a New Ecological Age, which defines the frontiers of public trust law and maps out a full paradigm shift for the way government agencies around the world manage public resources.  It reveals the dysfunction of current statutory law and calls upon citizens, government employees, legislators, and judges to protect the natural inheritance belonging to future generations as part of the public trust.  Professor Wood’s talk begins at 6:10 PM on Thursday, April 3rdin Yale Law School’s Room 128 (127 Wall Street); it is free and open to the public and refreshments will be served.

The talk, co-sponsored by the Yale Center for Environmental Law & Policy and Yale Climate and Energy Institute, is part of the Climate and Energy Bookshelf speaker series featuring new publications by renowned environmental policy thinkers including Brian Keane, Todd Wilkinson, and Tom Kizzia.

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 & GovernanceEnergy & Climate
Tuesday, February 25, 2014
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Brian Keane Kicks off Bookshelf Series with Discussion of Renewable and Efficiency Solutions

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

On Wednesday, February 12, SmartPower President Brian Keane kicked off Yale’s Climate and Energy Bookshelf spring 2014 speaker series. Mr. Keane is president of SmartPower, a company dedicated to reducing greenhouse gas emissions, and author of the recent Green is Good: Save Money, Make Money, and Help Your Community Profit from Clean Energy. His lecture at Yale F&ES, titled “50 Shades of Green” outlined strategies to help increase the use of renewable energy, to encourage behavior changes toward energy efficiency and other relevant public education initiatives to fight climate change. 

Mr. Keane uses a multi-prong approach in his advocacy to tackle climate change. In the book, Mr. Keane outlines why adopting green technology is not only good for the environment, but can increase savings for individuals, businesses and society. His book shows that using renewables like solar energy is much easier than many people realize, and it is more acceptable to use in today’s society. It is becoming a norm for people who once consumed old greenhouse gas emitting technologies to make the switch toward greener technologies. For example, the US Department of Energy has also made it easier for Americans to achieve this goal, outlining other ways to save money and to find rebates and tax credits in individual states

As president of SmartPower, Mr. Keane explained the approaches that his company uses to achieve their goals. SmartPower uses a form of community-based campaigning to encourage behavior change over the long term, and shows people that they truly can be part of the ‘50 shades of green’ movement as part of their efforts to reduce emissions. The main approach is called COR. It stands for efforts on Community outreach, Online platforms and social marketing (person to person outreach) and Rewards and Incentives. One example is SmartPower’s role in Solarize Connecticut, a partnership between Keane’s organization, the Connecticut Clean Energy Finance and Investment Authority and the John Mercke Fund, to increase the use of solar panels by homeowners, businesses and others in Connecticut. The organization provides countless workshops and other tools to help people understand the benefits and logistics of using solar energy. It keeps in touch with clients regularly and provides online assistance to encourage collaboration.

SmartPower is not looking at energy solutions in Connecticut alone. During the lecture, Mr. Keane discussed the Arizona Solar Challenge, which is an effort that seeks to increase the number of owner occupied homes using solar energy to at least 5 percent in sunny Arizona by 2015. If 5 percent of the total homes in a community reach this goal, SmartPower calls it an “Arizona Solar Community." So far, six communities throughout the state have been award this title, and a handful of others are heading that way. If the trend continues, it will mean a higher renewable energy profile for the whole state of Arizona. The Energy Information Agency ranks each state in terms amount of renewable energy capacity and generation, and partly by the efforts of SmartPower and others, Arizona already ranks in the top ten for renewable energy capacity. Everyone can check renewable energy usage statistics on their state here.

Renewable energy won’t be enough to reduce emissions though.  Mr. Keane pointed out that despite living in homes and having infrastructure that is more energy efficient compared to the past, we are all still using more energy than we ever did before.  Humans have to do more.  Behavior changes at both the individual level and on the societal level will be key if we are ever to get serious about climate change.  One of the behavior changes is to ensure that we understand why we are using more. 

In his book and lecture, Mr. Keane called on consumers to become more “energy smart” and to reduce energy waste. One of the wastes that he wants to tackle is called “phantom load”. It is wasted energy by everyday household items such as microwaves that use more electricity by just sitting in the house and idly being plugged into an outlet. That means more energy is used to power the microwave clock than for the purpose of actually heating food. The Carbon Fund, a 501(c) 3 non-profit also dedicated to reducing emissions, has plenty of tips on how to reduce your individual energy waste including reducing phantom load. It also lists practical steps to reduce emissions, such ways to lessen the amount of junk mail sent to you which would reduce paper use and mail distribution costs.

All of this highlights a debate on what is the most effective way to combat climate change. It is a question of whether to work towards more command and control regulations, or to focus on voluntary measures such as encouraging more energy efficient industrial and consumer behavior. Here in the US, the EPA is confronting a new Supreme Court challenge from industry groups that say EPA is overstepping its authority on regulating greenhouse gas emissions. This new case will test whether or not the EPA has the authority on a new rule that would only permit expanding new industrial energy facilities if companies also come up with ways to reduce their greenhouse gas emissions. If the EPA wins, Mr. Keane’s efforts to increase energy efficiency and renewable energy use will become all the more important. It will require one of the largest greenhouse gas emitting nations and its citizens to look at the efforts of businesses such as SmartPower before bringing more energy on the line. If that were the case, it would be a win-win situation for both Mr. Keane and the world on efforts to reduce greenhouse gas emissions.

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 Attitudes & BehaviorInnovation & EnvironmentEnvironmental Law & GovernanceEnergy & Climate
Monday, February 24, 2014
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The View Without Supermarket Vision: Thomas Berry and the “Great Work”

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

Right after high school graduation my friend Emily and I took a road trip to Taos, New Mexico. We were on our way to a friend’s bed and breakfast to stay and enjoy the desert sun before facing the rest of our lives. We stopped at the Rio Grand Gorge Bridge and, as we left the car to admire the gorge, a homeless man pushed a cart across the bridge, gestured toward us and, from under a beard and baseball cap, called us “supermarket girls.” I grew up working for the family gardening business and, having grown many of my own vegetables and plants, I resented his comment and thought, “I am NOT a supermarket girl!” Although hardly the type of comment to raise one’s defenses, I have never forgotten his words. For some reason, that phrase has taken on new meaning over the years.

What was this man commenting on? He was, perhaps, pointing to some truth about where Emily and I were coming from, and what kind of life we had presumably led. Along our road trip in Colorado and New Mexico, Emily and I came face to face with expressions of our national agricultural production in the West: vast irrigation systems, dams, highways, satellite towns propped up by a fossil fuel economy, and drought-prone landscapes heavily irrigated or roamed by cattle. Indeed, despite both of our families’ humble origins, Emily and I were accustomed to going to the grocery store and unquestioningly buying produce for our families without any conception of how the system really functioned. So maybe we were, in a way, “supermarket girls.” I have never been comfortable with the phrase and am now exploring the implications of being part of a “supermarket society.” Of course, beneath the supermarket façade is the story behind the polished apples, shiny peppers, and perfect potatoes—this story is as illuminating as it is alarming. The tons of topsoil rushing downriver, the nationwide bee colony collapse, the already vanished forms of plant and animal life call for a better way or, as Thomas Berry calls it, the “Great Work.”

In his February 12 talk, “Creating a New Food Future,” Andrew Kimbrell highlighted the ways in which industrial agriculture exhausts our soils, imperils our pollinators (the critical key to fertility), and eradicates our rich history in seed biodiversity. We are now reckoning with a system that undercuts the very foundations upon which it rests. The specter of drought across the West reveals the unfortunate fact that our water law is based on data from an unusual wet spell. Now climate change will likely reduce the Colorado River’s flow even further, the source of all that is green in much of the West and Southwest, leaving regional planners and farmers clamoring for solutions. The current water crisis in California and the likely reality of a long-term drought, points to the need to re-align our agricultural regime.

The water crisis that threatens agriculture in states like California, Arizona, and Colorado is but one of many problems embedded in an agricultural system that exhausts farmland and natural resources without replenishing them. This system, as Kimbrell reminds us, is completely unregenerative and the consumers’ “supermarket vision,” or disconnection with their own food sources, is one of its symptoms. 

According to Kimbrell, as we begin to realize the vulnerability and danger involved in industrial agriculture, we should see the organic movement in the United States as the starting point, our conceptual baseline from which a greater transformation of American agriculture can occur. That is, the organic movement cannot, by itself, solve all of the problems associated with the food system as it is, but it is a worthy and necessary launch pad. Part of this change is certainly related to policy, technology, and consumer habits, to name a few, but it also has to do with the way that Americans view nature.

Many social scientists have long examined American attitudes towards nature. Thinkers such as Henry David Thoreau, John Muir, Rachel Carson, Lynn White Jr., and Thomas Berry have all observed and decried a disjointed and extractive relationship with the natural world. This, in turn, shapes the manner in which we use nature for sustenance. Historically, westerners have understood nature to be a wilderness in need of taming, unsanitary and dangerous, or a static source of goods that exist to serve humankind. People have paid too little attention the long-term effects and viability of monocropping, mass chemical and pesticide use, or cotton farming in the desert. The industrial form of agriculture and of modern life has devastated the healthy functioning of ecosystems around the globe and academics have anticipated the need not only for economic and legal change but for a far more fundamental change in perception. The historian Thomas Berry has referred to the next significant human movement as the “Great Work,” or the “transition from a period of human devastation of the Earth to a period when humans would be present to the planet in a mutually beneficial manner” (The Great Work: Our Way into the Future). Berry asserts that we must begin to recognize and reclaim our responsibility not as commanders and takers of natural resources but as members in a community that we depend on and depends on us. Americans have little sense of reciprocity between nature and their communities, and this is borne out in exhaustive forms of modern agriculture.

Perhaps, to some this may sound either bizarre or unrealistic, but the evidential need for a change in attitudes is compelling. We are losing topsoil up to forty times faster than the land is regenerating it, we continue to massively overdraw 20 percent of the world’s aquifers, we’ve already lost 75 percent of crop biodiversity, and we’ve seen a 50-percent decline in pollinator populations in a single year. We must consider the underlying reasons for this trend.

Values, it would seem, are as much of our common heritage as the land. The Great Work that Berry articulates so clearly, and which others like Rachel Carson, have made movements toward, expand our cultural view to recognize that "in reality there is a single integral community of the Earth that includes all its component members whether human or other than human” (The Great Work: Our Way into the Future). Our intellectual, emotional, and economic capacity for a sense of relatedness will be a central component in our response to a faltering food system and as we learn more about our launching pad, the organic movement. Kimbrell’s talk was practical and illuminating as he highlighted both the promise and limitations of the organic movement in confronting industrial agriculture—it cannot solve everything—but it is our first step out of the trench we’ve collectively dug. 

A recording of Andrew Kimbrell’s webinar, “Creating a New Food Future,” is available at https://vimeo.com/87359019

Posted in: Environmental Attitudes & BehaviorEnvironmental Law & Governance
Wednesday, February 12, 2014
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BMPs for Shale Gas Development. A Path Forward

By Josh Galperin, Associate Director

Note: This post was originally published here, by the Yale Climate and Energy Institute.

Handing down its decision in Robinson Township v. Commonwealth, the Pennsylvania Supreme Court put Pennsylvania’s municipalities back in charge of regulating the land use impacts of shale gas development. Whether or not the court’s decision is sound, and whether or not municipal governance is desirable, substantial authority again lies with Pennsylvania’s municipalities, as it does in most other states. The pressing question, therefore, is what happens now.

Several months ago, researchers at the Yale Center for Environmental Law & Policy, and the Land Use Law Center at Pace Law School, with support from the Yale Climate and Energy Institute, began asking this very question, anticipating the state of governance that now prevails in Pennsylvania. Regardless of opinions on the pros and cons of “fracking”, it is undeniably a central part of America’s energy sector. Consequently it is important to understand fracking’s positive and negative local impacts and how local governments will capitalize on and manage those impacts.

Federal and state laws are well situated to address many risks of shale gas exploration, including, for example, climate impacts, some air and water pollution risks, contract terms, and royalties. However, federal and state laws do not cover other issues that are uniquely local in nature such as traffic, public safety, visual blight, reduction of property values, noise pollution, and the integrity of the land use plan. Likewise, the benefits of gas exploration—increased municipal revenue, economic development, and potential energy impacts, for instance—require local control to ensure that net benefits result.

Our research is finding interesting examples of local control of fracking.  Apart from the hundreds of localities that are banning the practice, others are regulating where it can be located within their borders and controlling uniquely local impacts. Peters Township, Pa., for example, adopted a zoning regulation that permits drilling on parcels 40 acres in size or larger and requires seismic testing prior to drilling. Longmont, Co. adopted an ordinance that excludes oil and gas operations in hazard areas and residential zoning districts, which includes planned unit development districts and mixed use zoning districts. A local law adopted in Oklahoma City, Ok. creates an oil and gas zone, defines permitted uses for the zone, requires permits for drilling, requires the drillers be insured, regulates the location of wells, has enforcement provisions, and regulates fencing, screening, landscaping, equipment, storage tanks, noise, and other nuisance effects. Finally, Santa Fe, N.M. established an oil and gas overlay district governing oil and gas exploration, drilling, production, transportation, abandonment, and remediation. It prohibits any oil or gas facility in the county as of right and requires the owner to apply for and obtain an Oil and Gas Overlay Zoning District Classification, a Special Use and Development Permit, Grading and Building Permit, and a Certificate of Completion, which may require other local, state, and federal development approvals.

In his dissenting opinion in the Robinson case, Justice Saylor wrote that natural gas is “essential the Commonwealth’s economic longevity and growth.” Conversely, Chief Justice Castille stated that removing local authority overfracking, and permitting the practice in any part of a community “compels exposure of otherwise protected areas to environmental and habitability costs associated with this particular industrial use: air, water, and soil pollution; persistent noise, lighting, and heavy vehicle traffic; and the building of facilities incongruous with the surrounding landscape.”

Our research is premised on the idea that fracking will proceed more safely, more efficiently, and with more actualization of benefits if local leaders are trained to confront the complexity, and address it in a way that best suits their constituents. To that end, Robinson is a positive development because it has returned authority to local governments. Both New York and Ohio are dealing with similar legal proceedings to determine the division of responsibility for local impacts. This state of play makes the empowerment and preparation of local decisionmakers even more important.  Regardless of one’s position on shale gas exploration and the best level of governmental control, there is no question that local leaders cannot promote benefits nor manage costs without preparation, and preparing local leaders is exactly what the Yale-Pace research team aims to do.

Our research began with a simple hypothesis that federal and state actions related to hydraulic fracturing would leave a local-governance gap. In December 2013 we hosted an expert workshop and panel in White Plains, New York. With representatives of industry, academics, environmental groups, and local government, we reached a consensus that this gap does, in fact, exist. With that assurance, we are preparing a second workshop in New Haven for March 28, 2014. At this workshop we will begin collecting best practices for governing fracking at the local level. Our expectation is that we can identify best practices that involve regulation, but also non-regulatory ideas that promote opening dialogues between communities and industry, establish community benefit agreements, or other flexible options that allow localities to identify and manage negative impacts while capturing the positive outcomes of new industry and a new energy option.

Based on the information we gather at these two expert events, we will develop model planning documents, non-regulatory templates, and ordinances to help us offer a robust training program to equip local leaders, and the professionals who serve them, to deal confidently with the growing role of hydraulic fracturing.

In his opinion in Robinson, Chief Justice Castille wrote: “By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” On the other hand, Justice Eakin dissented, stating: “our unique shale resource can benefit all citizens; indeed the resource already has resurrected many local economies, though not without cost.” We agree with both of these perspectives, and the best way to rectify them is to train those who are most impacted to make informed decisions based on complete information.

Posted in: Environmental Law & GovernanceEnergy & Climate
Sunday, January 26, 2014
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Professor Beyranevand to Speak on GMOs, the Farm Bill, and Monsanto

By Guest Author, Avana Andrade, FES '15

On Tuesday January 28th, Professor Laurie Beyranevand will begin Part III of the Frontiers in Food and Agriculture webinar series with her talk, “The [In]significance of the Monsanto Rider to the Farm Bill.” Speakers in our third webinar topicwill focus on GMOs, or genetically modified organisms and intellectual property, and will explore how these topics relate to our broader conversation on transforming food systems in the US.

Professor Beyranevand is the Associate Director of the Center for Agriculture and Food Systems and an Associate Professor of Law at Vermont Law School, where she teaches Food Regulation and Policy, Public Law, Communications, Advocacy and Leadership, Interviews, Counseling and Negotiation, and Advanced Writing for Dispute Resolution.

Professor Beyranevand’s talk on Monsanto, a leading producer of genetically modified seeds, is driven by her research and scholarship, which focuses on the connections between food and health, and specifically considers issues arising from food safety and regulation. On Tuesday, January 28th, Beyranevand will address the “Monsanto Rider” to the 2013 Farm Bill, which would have extended legal protection to the companyin producing and distributing genetically modified seeds to farmers. Although the rider expired last year, it fanned the flames of an already heated nation-wide conversation about genetically engineered foods. Beyranevand will focus on the text of this controversial provision, its potential consequences, and its significance within the larger regulatory scheme that governs genetically modified foods in the US.

Her talk is particularly relevant given the controversy surrounding the 2013 Farm Bill as well as increasing public concern about the use of bio-engineered seedsand consumer’s potentially unwitting consumption of genetically modified food. Furthermore, the regulatory terrain is less than straightforwardsince there is no one regulatory agency governing biotechnology and since relevent laws were written well before biotechnology emerged. Therefore, Beyranevand’s webinar will be instrumental in clarifying the role of federal regulation in modern, “high-tech” agriculture.

To register for Professor Beyranevand’s talk please see the following link: https://www4.gotomeeting.com/register/458356783.

For more detailed information on each webinar see YCELP’s calendar of upcoming events: http://envirocenter.yale.edu/events.

To register for the rest of the webinar’s in Part III please see the following links:

Creating a New Food Future

Andrew Kimbrell, Executive Director of the Center for Food Safety

Wednesday, February 12, 2014 | 12:00 PM EST

Registration: https://www4.gotomeeting.com/register/650444167.

 

GMO Labeling Laws: Constitutional Considerations

Lauren Handel, counsel in the firm of Jason Foscolo LLP

Thursday, February 27, 2014 | 12:00 PM EST

Registration: https://www4.gotomeeting.com/register/804265159.

Posted in: Environmental Law & Governance
Monday, December 30, 2013
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The Fractured State of Shale Gas Development Regulation

By Guest Author, Eric Ellman, Comm. Dir., Yale Climate and Energy Institute
 
Five years into a prolonged recession the economic benefits of shale gas development are compelling.  American shale gas reserves have buoyed the U.S. economy, reduced reliance on foreign oil and helped reduce greenhouse gas emissions. In 2012 alone shale gas and tight oil put $74BB into state and federal coffers and created 2.1 million jobs.(1) A broad-based shift from coal to natural gas has had the unforeseen effect of allowing the United States to reduce its CO2 emissions to Kyoto Protocol levels without even being party to the convention.(2)
 
At the local level, however, the potential negatives associated with development are less clear.  Lacking that clarity, and without federal or state regulations to control the many adverse local impacts ranging from depleted groundwater to contamination, deteriorated roads and rising crime,(3) communities have responded the only way they know how, by passing moratoriums on development of the resource.  And because local ability to use police and zoning laws originates with the State, there is a constant fear that courts will preempt the local action, allowing development to proceed and disregarding local concerns.
 
[The recent] 12th annual Land Use and Sustainable Development conference at Pace Law School included a YCEI-sponsored panel discussion developed with Yale Center for Law and Environmental Policy (YCELP) students and staff.  YCELP identified 36 potential local impacts from gas shale development identified by communities around the nation not addressed by higher levels of government.  The list and the workshop were intended to help communities develop planning and regulatory practices that protect them while allowing safe development of what could be a critical bridge fuel that lets the world meet its energy needs while minimizing atmospheric build-up of carbon dioxide.
 
At a pre-panel workshop to discuss that challenge, conference organizer Professor John Nolon suggested an ideal outcome: a model ordinance that financially strapped communities could use as the basis for safe and reasonable regulation, protecting them from impacts that are beyond the scope of state and federal regulations.
 
“A model ordinance would have made my job a lot easier,” responded panelist Stephen Ross, County Attorney from Santa Fe, New Mexico, where residents had urged a moratorium to prohibit fracking in the scenic Galisteo Basis.  Now the framework for drilling in Santa Fe County is established, and both residents and drillers know what to expect.  For some, the new law is effectively the same as a ban:  The company whose plans to drill had prompted passage of the Santa Fe Land and Gas Amendment to the Santa Fe County Land Development Code chose to explore for oil and gas elsewhere. For others the law may create new opportunities.
 
Santa Fe was enjoying the benefit of a strong economy at the time of their skirmish over hydrocarbons.  That’s not the case in New York towns that could be the scene of a land rush if and when the state lifts its fracking moratorium.  “Many local governments have limited professional staff, few resources”, was a common refrain among participants.  Consequently, it’s easy to imagine small communities embracing fracking when they see it’s near-term benefits.  While it’s not a universal refrain, Dan Raimi, a researcher with Duke University’s Energy Initiative quotes a local official telling him, “I wish we had a well on every road because the roads are so much better.”
 
That echoes the experience of Joe Greenberg, co-founder with Todd Mitchell of Alta Resources, one of the first companies to find the sweet spots of key shales including the Marcellus and applied good engineering and hydraulic fracturing to develop them.  In Joe’s experience, it’s communities that don’t stand to benefit where opposition is strongest.  Those likely to benefit from the resource, and those in states like Oklahoma and Texas where drilling is part of life’s fabric, are least likely to have objections and most likely to have an efficient and centralized regulatory structure.
 
Others are less sanguine.  Cornell Professor Susan Christopherson cited her survey showing that 67% of New York residents had low to no confidence that New York State officials will protect the economic and social stability of their communities.(4)  Kate Hudson, Watershed Manager for River Keeper, a non-profit dedicated to safeguarding the Hudson River and its tributaries, is concerned about the nation’s distribution network for gas shale products.  Albany, New York has already become a major transshipment center for trains carrying North Dakota’s Bakken oil to refineries on the Eastern Seaboard.  Last December the Stenna Primorsk, an oil tanker carrying about the same 12,000,000 gallons of crude as the Exxon Valdez, ran aground en route to its destination of New Brunswick, Canada.  Thanks to the double-hull design that became a requirement after the Valdez spill, no oil escaped.  But, says Hudson, the accident revealed that despite the surge in tanker traffic no emergency management plan for responding to such an event on the Hudson currently exists.(5)
 
Panelist Jim Saiers, a Yale University hydrologist and expert on fracking offered the opinion that the most frequently vocalized concerns about water quality impacts from hydraulic fracturing can be addressed by appropriate regulations such as those conference organizers envision.  A bigger question, he suggested, relates to the potential escape of methane, an even more powerful greenhouse gas than CO2, during the drilling and production process.
 
A recent study published in the Proceedings of the National Academy of Sciences summarizing data from 12,700 atmospheric samples collected over the United States in 2007-08 found methane levels 1.5 times higher than previously assumed by the EPA.(6)  Levels over Texas and Oklahoma were up to 2.7 times higher with livestock and the oil and gas industry identified as primary contributors. Five years later, however, a joint study by the Environmental Defense Fund and the University of Texas indicates that companies following proposed new EPA “green completion” strategies reduce methane escape from natural gas wells by up to 99%.(7) 
 
Successful reduction of fugitive methane – critical to capitalizing on natural gas’s potential to satisfy energy demands with minimum contributions to greenhouse warming – is an example of how good regulations can reconcile the needs of the nation with local concerns.  With climate change an issue for every community, a comprehensive model ordinance to help regulate gas shale development might include measures to assure compliance with methane management too.
 
***
 
 
***
 
1.     America’s Unexpected Jobs Boom.  Daniel Yergin.  http://features.blogs.fortune.cnn.com/2013/09/05/energy-us-jobs/
 
2.     Rise in U.S. gas production fuels unexpected plunge in emissions. http://online.wsj.com/news/articles/SB10001424127887324763404578430751849503848.
 
3.     Controlling the local impacts of hydrofracking. Facilitated Discussion Outline. Yale Center for Law and Environmental Policy
 
4.     Confronting an uncertain future.  How US communities are responding to shale gas and oil development.  Susan Christopherson and Ned Righter.  National Agricultural and Rural Development Policy Center Brief 18, November 2013
 
5.     Kate Hudson, personal communication
 
6.     Emissions of methane in US exceed estimates study finds.  Michael Wines.  New York Times. November 11, 2013.
 
7.     Study delivers good, bad news on climate impacting methane gas. Lisa Song and Jim Harris.  Center for Public Integrity.  September 13, 2013.
Posted in: Environmental Law & GovernanceEnergy & Climate
Tuesday, December 10, 2013
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After Warsaw Climate Negotiations, Individual Nations Must Lead the Way on Climate Change

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

It was my first time attending the annual Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change. This 19th COP was held in Warsaw this year from November 11 to 23. As a Yup’ik Eskimo from Alaska whose family has seen the impacts of climate change firsthand, it was an honor to attend this international convention on behalf of Yale University. I learned about the process of international negotiations, and heard what the world leaders who populate the COP are planning to do to address climate change.

The outcome of the COP will affect my family and my future personally.  In my home state of Alaska, my village of Dillingham is one of nearly two hundred Alaskan Native villages at risk of coastal erosion from lower sea-ice levels and rising seas.  My family’s salmon fish camp has lost a warehouse to erosion already. We’ve seen invasive species invading our forests and infecting our salmon because warmer temperatures are allowing them to survive in Alaska. People have fallen through the abnormally thin ice on the rivers, lakes and oceans we use for transportation during the winter, because the ice has not been thick enough for us to do traditional ice fishing and hunting. Warmer temperatures are changing our way of life in a way that our elders say they have not seen before.

So I went to Warsaw with a personal stake. I was both heartened and taken aback to learn that many other people around the world have similar concerns and also have seen changes to their livelihoods. While at the COP, I worked with the Red Cross Climate Center, whose efforts help ensure that vulnerable communities become more prepared to adapt to a changing climate, and face reduced risks from climate disasters such as deadly hurricanes and severe drought. I helped with the Center’s Development and Climate Days (D&C Days) side event, which invited policymakers and other leaders from around the world to a two-day conference to learn more about climate change and how to prepare for it.

I was also involved in the deliberations of Arctic peoples and states, the Indigenous Caucus, the US delegation, and the younger generation’s caucus, or “YOUNGO.” They all had a similar message: our leaders must produce strong mitigation and adaptation measures to reduce the impacts of climate change.

Some highlights include meeting with former President of Ireland Mary Robinson, who is a strong advocate for helping people vulnerable to climate change.  I was also able to meet some youth delegates from the Arctic and the Caribbean Islands, who had a side event called “Portraits of Resilience” to show their own pictures and stories of how climate change is affecting their communities and their future. I witnessed a walkout protest by non-governmental organizations that said the COP delegates were not doing enough to take strong measures against climate change. I was involved with both the YOUNGO and Indigenous Caucus while they passed resolutions urging leaders to address the threats of climate change. And I was able to chat and ask questions with top US delegate officials while attending their high-level negotiation events.

I was at COP for its second week, when the high-level negotiations between the nations occur. This year’s COP was supposed to lay the groundwork for a groundbreaking 2015 COP in Paris, which is expected to achieve big results in emissions reductions. While some believed that the negotiations did not achieve this, nations did agree to finish making plans for their  “contributions” to reduce climate change emissions by the 2015 conference, to the best of their ability. The “contributions” language was weaker than what  the US delegation wanted. The US asked nations to make firm “commitments” on how much they would reduce their greenhouse gas emissions.

Since it will be up to the nations themselves to come up with this “contribution” level, I went to the side events and negotiations of the US delegation as much as I could, to see what our leaders were saying. At one of the side events, I was able to meet with Council for Environmental Quality Chair Nancy Sutley, who is a top environmental advisor to President Obama. The US delegation stated that the US is on target to reduce their greenhouse emissions by at least 17 percent by 2020.

Since it is unlikely that the US will institute new emissions rules by passing legislation through Congress, it will be up to the Environmental Protection Agency (EPA) to control emissions through new regulations. The US Supreme Court handed the EPA a victory in 2007 when it ruled that EPA could regulate greenhouse gases as air pollutants. Now, new EPA rules on emissions may be central for the US to achieve its greenhouse reduction goals. In October, I was able to go to the first of 11 listening sessions across the US by the EPA on proposed rules to reduce emissions from power plants. This effort could cut emissions and help with America’s commitments, since power plants contributed 40 percent of the US carbon emissions in 2012. The new set of proposed rules will be subject to a forthcoming ruling by the Supreme Court though, which will determine how much authority the EPA has to regulate certain emissions.

Moving forward, it will be important for US officials to better understand the emissions science in order to achieve our emissions reductions goals. A new study released in late November found that methane emissions are perhaps 50 percent higher than the EPA had anticipated. Methane is emitted from agriculture sources and from fossil fuel sources such as natural gas, and though it does not remain in the atmosphere as long, it is four times as potent as carbon dioxide as a greenhouse gas. Emissions of methane may increase due to large finds in hard-rock natural gas deposits in the U.S. The increased use of fracking may pose a challenge to America’s ability to achieve its emissions goals as stated in Warsaw.

It will be interesting to watch what regulations the Obama Administration will propose moving forward. With the new study on methane, as well as another study released this week that says Arctic methane is leaking into the atmosphere at an alarming rate, a reduction in carbon emissions cannot be the only answer.  One thing is certain: a legal framework by the US and individual nations must lead the way to reduce climate emissions, as nations agreed to in Warsaw.

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 & GovernanceEnergy & Climate
Monday, December 09, 2013
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From Adaptation to Resilience: Climate Change in Megacities

By Guest Author, Amy Weinfurter, Yale F&ES '15

At first it sounds like the set-up of a joke or a riddle: “What has 8 percent of the world’s population, a GDP the size of China’s, and the potential to take a billion-ton bite out of the world’s carbon emissions?” These statistics characterize the 63 cities of the C40 Cities Climate Leadership Group, which brings mayors from around the world together to share strategies for climate change mitigation and adaptation. Rit Aggarwala, the former director of long-term planning and sustainability for New York City, serves as special advisor to Michael Bloomberg in his role as chair of the C40 Cities Climate Leadership Group. During his November 21 visit to the Yale School of Forestry and Environmental Studies, Dr. Aggarwala discussed some of the driving forces behind cities’ leadership on climate change, and explored the ways different cities apply adaptation strategies to fit local needs and resources. 

The success of the C40 Cities Climate Leadership Group reflects urban areas’ growing leadership in climate change adaptation. A number of factors have spurred and enabled cities to act on climate change. To start, urban dwellers are more likely to see global warming as a real issue; 90 percent of cities stand near coasts, and city residents tend to be more dependent on the infrastructure that climate change threatens. For instance, an urban resident who relies on an elevator to leave his apartment or on public transit to commute to work may be especially affected by a blackout. Mayors typically face fewer political roadblocks than state and federal politicians, and the day-to-day responsibilities of managing a city provide both the tools and the practice for implementing pragmatic solutions. 

Dr. Aggarwala highlighted heat and drought; sea level rise and flooding; storms and extreme precipitation; and changes in the geographic distribution of disease as five key themes driving cities’ preparations. As cities implement policies to protect their citizens and their infrastructure, they face a diverse and sometime counter-intuitive array of challenges. For instance, London, a city close to the coast, and famous for its rain, is actually more concerned about heat than water. A sea wall currently keeps flooding at bay, while buildings and public transportation often lack air conditioners, fans, and other means to deal with hot weather. While rising sea levels and flooding do threaten Vietnam’s Ho Chi Ming City buildings, a sea wall here would pose significant financial challenges. So, instead of trying to keep water out, the city is experimenting with strategies to minimize the damage water causes when it comes in. 

Identifying the right solution is often far easier than figuring out how to implement the fix on a megacity scale.  For instance, a SmartCity partnership between IBM and Rio de Janeiro, Brazil, uses microclimate data to predict landslides up to an hour before they occur. Landslides jeopardize some of the city’s most vulnerable communities, and as storms and precipitation increase, landslides are expected to become more frequent as well. By altering community leaders of danger via text messages, IBM’s technology saves lives. However, Dr. Aggarwala noted, its success ultimately depends on strong community networks, effective community leaders, and safe evacuation routes and centers. In responding to climate change, technology only makes up half the battle.  Effective management plays an equally important role. 

Sometimes, the best solution does not rest on innovative technology, but on new applications for something as simple as a water fountain. That’s the approach London used to help address rising rates of heat stroke on its subway platforms. Similarly, New York City plans to explore the use of window screens to help combat expected increases in insect-borne illnesses. Dr. Aggarwala pointed to examples like these as he distinguished climate change adaptation from resiliency.  He worries that the framework of climate change adaptation can narrow cities’ efforts, by focusing on new challenges and tools. In contrast, resiliency involves both preparing for new threats, such as rising sea levels, and responding to new levels of severity in existing challenges, like extreme storms and heat.

Dr. Aggarwala’s presentation concluded a semester-long speaker series, From Mitigation to Adaptation: Regional Responses to Climate Change. The series, co-hosted by the Yale Center for Environmental Law and Policy and the Yale Climate and Energy Institute, highlighted regional and local approaches to climate adaptation, and how those strategies fit within the larger context of climate change mitigation. His final remarks, in response to an audience question about the future of urban adaptation, offer a fitting end to this semester-long conversation.  As populations trends continue and “everything becomes urban,” Dr. Aggarwala suggested that urban adaptation will become less of a hot topic, and more of an integrated part of city’s management frameworks.

Amy Weinfurter is a first-year Masters of Environmental Management (MEM '15) candidate at the Yale School of Forestry and Environmental Studies, focusing on the intersection between environmental communication and policy. Before arriving at Yale, she studied English and environmental science at Colby College, and worked with non-profit organizations in  Colorado and Washington, D.C., on communication, watershed management, and community outreach and engagement initiatives.

Posted in: Innovation & EnvironmentEnvironmental Law & GovernanceEnergy & Climate
Wednesday, November 27, 2013
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Where’s the Law?

By Guest Author, Jennifer Skene, Yale Law School '14

“Where’s The Finance (WTF)?” That was the question posed repeatedly the past two weeks during the UNFCCC’s 19th Conference of the Parties (COP) in Warsaw. But this simply leads to another question: “Where’s the Law?”

In other cases of environmental damage for the past seventy years, under international law the question of “Where’s the Finance?” has been comparatively easy to answer—it lies with the countries to blame for the harms caused. This is known as the polluter pays principle (PPP), and it is now a widely recognized tenet of international law. Yet the PPP has yet to materialize in any UNFCCC agreements, meaning that developing countries, which are the hardest hit by climate change, are left with minimal financial assistance.

Ironically, it was a case brought by the United States that provided the initial foundation for the PPP. In the 1941 Trail Smelter decision the United States won a dispute against Canada for compensation for pollution damages caused to the U.S. by a Canadian smelter.

With climate change, however, the U.S. and other developed countries are successfully keeping compensation out of the picture, and this COP in Warsaw was no different.  The “Warsaw international mechanism for loss and damage (IMLD)” is the compromise States reached during their overtime negotiations on Saturday, November 23. Despite the calls of developing nations to create a separate loss and damage mechanism, the IMLD will be housed under the existing adaptation mechanisms. Essentially this means that funding provided by developed nations, if and when it should materialize, will come in the form of financial assistance, not compensation for harm caused by greenhouse gas emissions. And this financial assistance will almost certainly be far from adequate.

It may be up to other international legal institutions to bring compensation into the picture. In 2011 and 2012 the island nation of Palau sought an advisory opinion from the International Court of Justice (ICJ) on whether the world’s largest greenhouse gas emitters are responsible for harm caused to developing countries. While an advisory opinion would not be binding, it could offer sufficient legal support to compel States to create a loss and damage mechanism based on compensation. However, developed countries, led by the United States, stymied Palau’s campaign, and it is, for now, dead in the water.

So Where’s The Finance? Until we answer the question of “Where’s the Law?” finance may remain elusive. As the latest COP further demonstrates, answering the question of “Where’s the Law” may take the authority of a body outside the UNFCCC altogether—like the ICJ. Until the entire international community understands compensation to be a legally binding obligation that they cannot negotiate away, developing countries will likely be left asking “WTF?”

Jennifer Skene is a third-year law student at Yale from Tallahassee, FL. She is the chair of the Native American Law Students Association, a board member for the Yale Environmental Law Association, and a Features Editor on the Yale Journal of International Law. Jennifer is active in Yale's Environmental Protection Clinic, and this past summer she received a Ford Fellowship to work at the Center for International Environmental Law. 

Posted in: Environmental Law & GovernanceEnergy & Climate
Friday, November 22, 2013
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Down the Drain—Water Metering in the Home

By Guest Author, Rachel Lipstein, Yale College '15

Superstorms and costal flooding may grab headlines, but water scarcity is emerging as our most immediate environmental concern. The Intergovernmental Panel on Climate Change’s recent assessment highlights the increasing risk of water scarcity in this age of climate extremes and skyrocketing populations. Another recent study finds that if, by the end of the century, 500 million people are subjected to water scarcity, it will be the result of an optimistic warming scenario. Even now, the droughts plaguing many of the world’s most arid regions—including parts of western United States—are contributing to economic fragility and social unrest.

Water meters, small devices that track water usage, could play a key role in helping people understand the reality of water as a limited resource. Because they allow utilities to bill by volume, meters encourage customers to conserve—often with dramatic results. In this series, we will examine metering's effect on water consumption, its intersection with cultural norms and individual rights, and its impact on communities.The first installment highlighted water metering policy in Chile.

***

In 2009, only 55 percent of the homes in California’s San Joaquin Valley had water meters installed. That low percentage was not the result of a naturally slow adoption process. It was a result of aggressive resistance to the devices, which were billed as “taxing machines.”[1] When the city of Fresno, in the heart of the arid valley, attempted to install 8,000 meters in a pilot program, a group of taxpayers fought fiercely and successfully to amend the city charter, banning residential meters.

The United States isn’t the only developed country with popular opposition to metering. In southern England a renewed compulsory metering drive has been met with indignation. Some customers claim that volumetric pricing is a tax on children, as larger families might now pay more.[2] Financial concerns are colored by a popular distrust of England’s private utility companies. In the past decade, water prices have increased 84 percent, while the utilities profits have jumped up to 200 percent.[3]

With correct regulation, however, residential metering encourages individual conservation. When coupled with grace period and gradual price increases, metering can be rolled out fairly. In Denmark, the transition to residential metering and volumetric billing were correlated with a 12.6-percent decrease in consumption between 1996 and 2007.[4]

Metering also improves equity. When customers pay by volume, the implicit subsidy that high-volume users receive at the expense of low-volume users is eliminated. Although most residences in the United States are metered, regulations differ by state and even by district. Water is not always billed volumetrically. Many meters are never even read.

In the past, Fresno utilities charged a flat rate regardless of usage. For a city that averaged just under 290 gallons per person per day—almost triple the national average of 100 gallons—this was a problem.[5] In light of diminishing aquifer levels and excessive usage, the California legislature mandated that any city drawing from federal dams install water meters by 2013.[6]

Today, Fresno is almost completely metered, and the results have been positive. Patrick Weimiller, Fresno’s director of Public Works, told local news affiliate KFSN that he has already seen a reduction in usage. “Our actual numbers are showing we're about 17 percent below where we were with the fixed rate, with some room to grow.”[7]

This post is the second in a series on water metering. The next installment will look at agricultural metering in the United States.


[7] http://abclocal.go.com/kfsn/story?section=news/local&id=8934000

Rachel Lipstein is a junior at Yale College majoring in English major with a concentration in Writing. She is interested in sustainable agriculture and enjoys spending time on farms. Previously, she worked on the 108-foot sloop, Clearwater, which is dedicated to protecting the Hudson River through education, advocacy, and celebration.

Posted in: Environmental Performance MeasurementEnvironmental Law & GovernanceEnergy & Climate
Thursday, November 14, 2013
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Rit Aggarwala to Speak on Megacities’s Leadership in Climate Change Adaptation

By Guest Author, Amy Weinfurter, Yale F&ES '15

Amidst the frustration surrounding national and international action to address climate change, cities are increasingly emerging as leaders in both adaptation and mitigation. As the C40 Cities Climate Leadership Group notes, “City mayors are directly accountable to their constituents for their decisions, and are more nimble than state and national elected officials to take decisive action—often with immediate and impactful results. What … cities do individually and in unison to address climate change can set the agenda for communities and governments everywhere.”

Cities’ leadership in addressing global warming has potentially enormous impacts: the world’s larger cities consume two-thirds of the world’s energy, or over 70 percent of global carbon dioxide emissions. From the development of glow-in-the-dark bike paths to the increasing use of green infrastructure and green spaces to buffer storm events, urban communities are especially adept seeing opportunities for change through existing infrastructure. This makes their innovations rapidly scalable, enabling the kind of fast-moving change needed to reduce or respond to climate change.   

As the former director of long-term planning and sustainability for New York City and the current special advisor to Michael Bloomberg in his role as chair of the C40 Cities Climate Leadership Group, Rit Aggarwala works at the center of this activity.  He visits Yale next week to discuss how implementing meaningful and sustainable climate-related actions locally will help address climate change globally. His talk, “Climate Change Adaptation in Megacities,” takes place on Thursday, November 21, at 5:00 PM, in Kroon Hall's Burke Auditorium. The talk is free and open to the public.

His presentation concludes a semester-long speaker series titled From Mitigation to Adaptation: Regional Responses to Climate Change. The series, co-hosted by YCELP and YCEI, highlights regional and local approaches to climate adaptation, and how those strategies fit within the larger context of climate change mitigation.

Amy Weinfurter is a first-year Masters of Environmental Management (MEM '15) candidate at the Yale School of Forestry and Environmental Studies, focusing on the intersection between environmental communication and policy. Before arriving at Yale, she studied English and environmental science at Colby College, and worked with non-profit organizations in  Colorado and Washington, D.C., on communication, watershed management, and community outreach and engagement initiatives.

Posted in: Environmental Law & GovernanceEnergy & Climate
Thursday, October 24, 2013
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Maxine Burkett and the “Ex-Situ Nation” as a New Home for Climate Refugees

By Guest Author, Amy Weinfurter, Yale F&ES '15

During a recent presentation at Yale Law School, Maxine Burkett noted that her scholarship often focuses “on the edge of what is possible.”  Professor Burkett, Associate Professor at the William S. Richardson School of Law at the University of Hawaii, and the former director of the Center for Island Climate Adaptation and Policy (ICAP), visited campus Friday, October 18, as part of the fall speaker series From Mitigation to Adaptation: Regional Responses to Climate Change speaker series, co-hosted by the Yale Center for Environmental Law and Policy and the Yale Climate and Energy Institute. Her scholarship tackles a problem that indeed seems unimaginable, but increasingly threatens island and coastal communities across the world: how states might continue to exist, even after climate change has made their physical territories uninhabitable. 

For island and coastal nations, rising sea levels pose an urgent threat. Saltwater intrusion can damage water supplies, and ruin soil’s ability to support agriculture.  More frequent and intense storms can damage infrastructure, and accelerate coastal erosion, a phenomenon creating tough decisions for coastal Alaskan communities. For island nations, such as Tuvalu, the threat is so complete that it is difficult to truly comprehend; rising sea levels are likely to completely flood low-lying countries, creating scores of climate refugees.  

The toll of climate change on communities is already heavy, though the many people do not always recognize the link between migration and global warming.  Professor Burkett noted that in the continental United States – an area that might not seem to be at risk for climate-change-driven migration – Hurricane Katrina temporarily or permanently displaced 1.1 million people from communities in Louisiana and Mississippi. In addition to the impact of extreme weather events, like hurricanes, a more subtle and long-term exodus is also underway. Many residents of Pacific islands have begun what Professor Burkett terms a “slow-moving migration,” leaving now in anticipation of the future threat of rising seas.  This process threatens to create “empty states,” by draining communities of skills and tax revenue even before the full physical impacts of climate change hit. 

This migration poses challenges that existing legal tools cannot easily meet. As a closely watched court case in New Zealand demonstrates, human rights laws do not account or make provisions for victims of climate change. In New Zealand, as in most states, the “legal concept of a refugee is someone who is being persecuted, which requires human interaction.” Climate change, which depends on so many different decisions and decisionmakers, is difficult to fit into this framework, despite the clear threat it poses to the future of vulnerable communities. Additionally, in countries like the United States, the political difficulty of accepting the presence of global warming may prevent conversations about climate refugees. 

Professor Burkett argues that the unique threat climate change poses to vulnerable communities – and the current legal system’s inability to tackle it – requires a radical rethinking of the definition of a nation. The current legal framework for a state requires a permanent population, defined territory, functioning government, and capacity to enter into relations with other states. Professor Burkett envisions a new type of “ex-situ state” that could operate without a physical territory. These nations would use virtual networks to maintain a sense of culture and identity among a citizenry spread across the globe. They would also act as important intermediaries and advocates for citizens who have immigrated to – but not yet received full citizenship in – other countries. Her proposal draws on current alternative models of the state, such as the Tibetan Government-in-exile; the Sovereign Order of Malta, which operates out of Rome after losing access to its island territory; dual citizenship models; and the networks that link post-colonial diaspora populations to their home countries. 

Professor Burkett’s talk highlights the environmental injustice inherent in climate change; a major brunt of its impacts will be born by island nations with tiny carbon footprints. While adaptation strategies often call to mind engineering or urban planning initiatives, climate change also has the potential to radically alter political framework and boundaries.  Professor Burkett’s work eloquently illustrates the need to more fully plan for the human and sociopolitical impacts of climate change, and the moral imperative to invest in mitigation strategies, to make such drastic measures less necessary.  

Amy Weinfurter is a first-year Masters of Environmental Management (MEM '15) candidate at the Yale School of Forestry and Environmental Studies, focusing on the intersection between environmental communication and policy. Before arriving at Yale, she studied English and environmental science at Colby College, and worked with non-profit organizations in  Colorado and Washington, D.C., on communication, watershed management, and community outreach and engagement initiatives.

Posted in: Environmental Law & GovernanceEnergy & Climate
Tuesday, October 22, 2013
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Introduction to Metering: Spotlight on Chile

By Guest Author, Rachel Lipstein, Yale College '15

Superstorms and costal flooding may grab headlines, but water scarcity is emerging as our most immediate environmental concern. The Intergovernmental Panel on Climate Change’s recent assessment highlights the increasing risk of water scarcity in this age of climate extremes and skyrocketing populations. Another recent study finds that if, by the end of the century, 500 million people are subjected to water scarcity, it will be the result of an optimistic warming scenario. Even now, the droughts plaguing many of the world’s most arid regions—including parts of western United States—are contributing to economic fragility and social unrest.

Water meters, small devices that track water usage, could play a key role in helping people understand the reality of water as a limited resource. Because they allow utilities to bill by volume, meters encourage customers to conserve—often with dramatic results. In the upcoming series, we will examine metering's effect on water consumption, its intersection with cultural norms and individual rights, and its impact on communities. 

***

In urban areas of Chile, people know exactly how much water they use. The country’s regulatory agency pegged average usage in 2009 at 44.9 gallons per capita per day, nearly half the United States’ average consumption. They know with such a high degree of certainty because 96 percent of households across the country—100 percent in urban areas—have water meters, small devices that track consumption. Meters allow for volumetric billing, charging consumers for the water they actually use, which encourages them to pay attention to how long they run the tap.

Outside of Chile, where meters are sparse or nonexistent, households pay for water at a flat rate, which encourages users to ignore how long they run the tap. With flat rates, lower-volume users subsidize higher-volume users, and neither has an incentive to curb consumption.

Urban Chileans pay for water by the cubic meter. The more they use, the more they pay. Poor Chileans are protected by a direct subsidy that has money going directly into citizens’ pockets to help pay the bills. To maintain fairness and equity, and to ensure that utilities charge a fair rate, tariffs are set by an independent regulatory body.

Despite success stories like the one in Chile, many countries have been slow to accept meters. Chile has a remarkable degree of meter coverage, particularly for Latin America (according to the World Bank). For the sake of comparison, Ireland hovers just above 0 percent. For most countries without a history of utility centralization and regulation, such as the United States, metering policy may vary widely from region to region. It seems high levels of development or GDP are no indicator of coverage.

Chile’s exceptional performance is a result of a series of transitions that began with a 1974 military coup headed by Augusto Pinochet. As a component of sweeping centralization, Pinochet implemented a national public water and sanitation company, extending coverage dramatically through the 1970s and 1980s. Meters were installed in most new connections, paving the way for a mandatory metering policy.

After the 1988 transition to democracy, Chile adopted a spate of laws that divided the national company into several public and private corporations. Mandatory metering was implemented, and a powerful state regulatory agency was established to oversee it all. New progressive policies ensured that no household spent more than 5 percent of its average monthly income on water and sanitation. While customers have an incentive to conserve water, no one is denied access due to price. Utilities are incentivized to maintain good quality water and reliable systems.

Chile, the UN’s Economic Commission for Latin America and the Caribbean reported, has created the perfect public-private model. Privatization has increased in recent years, accompanied by a private service provision that maximizes efficiency and quality. Meanwhile, an autonomous public regulator ensures fair prices and equitable service. [1][2]

Bolivia is a counterpoint to Chile’s success. In 1997 and 1999, the government awarded two major contracts to foreign private utilities, granting them the right to provide water in La Paz and Cochabamba. These contracts resulted in skyrocketing prices and water cut-offs, along with mandatory meters. Multi-city riots ensued in a conflict known as the Cochabamba water wars. Thousands took to the streets, erected roadblocks, and defied police. Within the span of three days in April 2000, several protesters were killed, including a 17-year-old boy. Then-president Hugo Banzer declared martial law. The government finally agreed to grant water control to the grassroots coalition of protesters with the promise of dissolving the private contract.

The memory of that conflict remains in the hearts of many Bolivians. “In a lot of Latin America, there is a hesitancy to talk about metering due to its association with the water wars,” said Kim Lemme, of the international non-profit, Water for People. The mention of metering, she said, often elicits murmurs of “Bechtel,” one of the despised private water companies. “Being able to get people used to the idea of metering,” she concluded, “is powerful.”

Bolivians are still adjusting to the idea of meters. However because of innovative funding plans and the example set by model projects, several communities have already made the switch. According to Kate Fogelberg at Water for People, over 120 rural communities in Bolivia now have metering systems. While Chileans enjoy 96 percent metering, they still face challenges in their water sector, particularly in the over-allocation of rural water rights that leaves remote, arid, downstream households dry.

A progressive metering policy, accompanied by careful regulation, has made Chilean cities standout sites of clean, affordable water in Latin America. Because of its broad implications, water metering can act as an indicator of both water conservation policy and practice. However, spotty data coverage may hamper the development of a metric to assess how much water consumption is metered in countries, mainly because information is self-reported by the utilities themselves and only in selected countries. Representing the status of water resources, describing systems, and guiding policy meaningfully is an Augean task, one in which metering will play a part.


[2] http://www2.udec.cl/~mquirog/OECD%20Water%201.pdf

This post is the first in a series on water metering. The next installment will look at residential metering in the United States and other developed countries.

Rachel Lipstein is a junior at Yale College majoring in English major with a concentration in Writing. She is interested in sustainable agriculture and enjoys spending time on farms. Previously, she worked on the 108-foot sloop, Clearwater, which is dedicated to protecting the Hudson River through education, advocacy, and celebration.

Posted in: Environmental Performance MeasurementEnvironmental Law & GovernanceEnergy & Climate
Tuesday, October 15, 2013
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Climate Law Expert and Climate Justice Champion to Speak at Yale Law School

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

In the vast Pacific Ocean lie thousands of islands with rich cultures and histories. One of them is the country of Tuvalu. The country, with a population of about 12,000 people, is the fourth least-populated nation in the world.  Tuvaluans have called their island home for thousands of years and depend on fishing as well as their islands for food and livelihoods. As an Alaska Native I can relate to their culture. It shares a tradition of hunting and fishing for survival, as well as a deep connection to the sea. This island and my own home face a similar threat from the impacts of climate change.

Tuvalu and many other Pacific Island nations are low-lying. The tallest point in Tuvalu is fourteen feet above sea-level. This is problematic, since studies show sea levels will continue to rise as a result our changing climate. In late September, the United Nations Intergovernmental Panel on Climate Change (UN IPCC) released its fifth assessment on the impacts of climate change, and their report predicted that oceans would rise by at least a foot or two this century. This is a larger increase than predicted in the IPCC’s previous report, and raises the stakes for small island-nations such as Tuvalu.

One or two feet may not seem like much, but in Tuvalu the average elevation is just about six feet above sea level. That means that infrastructure – homes, schools, workplaces – will be compromised. When this happens, Tuvaluans may be among the first nations forced to completely desert their homeland, creating a state of climate refugees. In Alaska, Shishmaref is facing a similar fate. The small Arctic village is located on a barrier reef. When I visited the Alaskan island last year, while working for the World Wildlife Fund, many people told me how reduced sea ice and increased storms had already carried away one home in their village. It struck me to hear of their experience and plea for action.

Stories like this illustrate the importance of Maxine Burkett’s work. Professor Burkett is an Associate Professor at the William S. Richardson School of Law at the University of Hawaii, and the former director of the Center for Island Climate Adaptation and Policy (ICAP). She is an expert on climate change law and policy, and her previous work includes advising Pacific Island nations like Tuvalu on how to move forward. Her lecture, titled “Climate Refugees and the Challenge of Statehood: Defining the Problem, Identifying Solutions,” is on Thursday, October 17, at 12:30 PM in Yale Law School's Room 121. The Yale Center for Environmental Law and Policy and the Yale Climate and Energy Institute are honored to host her while she explores the issue of climate justice and regional adaptation and mitigation measures in the Pacific. All are welcome to be a part of this important discussion.

Posted in: Environmental Law & GovernanceEnergy & Climate

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