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Environmental Law & Governance

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. 

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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
Monday, September 30, 2013
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Maria Trumpler To Present Webinar On Gender, and Feminism in Food and Agriculture

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

Maria Trumpler is a fitting contributor to YCELP’s webinar series Frontiers in Food and Agriculture. Here at Yale, she is the Director of the Office of LGBTQ Resources, and her teaching interests include gender and science, feminist critiques of science, scientific studies of sexuality, and food studies. During this workshop, Trumpler will address the impact of gender on agriculture as a practice, and she’ll discuss gendered discourses surrounding the consumption of food. Her expertise helps us explore the interconnections between theory and practice in food justice.

In 1991, Trumpler received her PhD from Yale in History of Medicine and Life Science. After completing her PhD, Trumpler spent eight years teaching at Middlebury, Harvard, and Wesleyan, but left the academic scene to experiment with artisanal cheesemaking in Vermont. Through this work, Trumpler began to relate her interests in feminism, and food and agriculture. Eventually, she returned to Yale in the Women’s Studies Department and currently teaches a lecture course on “Women, Food and Culture” and a seminar on the “History of Sexuality.” 

This expertise and these unique experiences will be an excellent addition to the third annual Policy Workshop Webinar Series: Frontiers in Food and Agriculture. You can register for Maria Trumpler's webinar by following this link: https://www4.gotomeeting.com/register/402736559

Co-sponsored by the Yale Center for Environmental Law and Policy, the Yale Sustainable Food Project and the Center for Agriculture and Food Systems at Vermont Law School, this third annual webinar series highlights emerging issues in food and agriculture policy. The series is designed for academic and policy communities as well as the general public and is available to everyone online. The webinar format enables interested parties to access and participate in these presentations from anywhere in the world. The series is free and open to the public; presentation recordings are available online approximately one week after they air live. Find out more about the entire series here: Frontiers in Food and Agriculture.

Avana Andrade is a first year 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 & Governance
Monday, September 16, 2013
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Tanya Fields, Executive Director of The BLKProjek, to Launch Webinar Series

By Guest Author, Jena Clarke, Yale F&ES '15

Tanya Fields is a mother, activist and entrepreneur in the South Bronx. She is the Executive Director of The BLK ProjeK, a non-profit organization that works to create a better food system for marginalized neighborhoods and demographics, especially underserved women and youth of color. And she will be the first presenter in this year’s Policy Workshop Webinar series on the subject Frontiers in Food and Agriculture, which starts on Tuesday, September 17 at 12:00 PM EDT.  

A young woman of color herself, Tanya feels that she came to her work as an activist out of necessity.  As a single mother living in a low-income community and putting herself through school, she was intimately familiar with the struggles and stresses faced by families without the resources to access healthy food and environments. The challenges she faced in her own life inspired her to take action, working first with on issues of environmental justice for organizations including Mothers on the Move, Sustainable South Bronx and the Majora Carter Group. This work, and the networks, knowledge and experience she gained, led her to create the BLK ProjeK in 2009 as a means of embodying her ethic through “real, tangible, effective action.”

The BLK ProjeK’s current initiatives include the South Bronx Mobile Market, a converted school bus that makes fresh, local, and organic vegetables available to communities in the South Bronx. The ProjeK organizes the Bronx Grub Meal Series, a quarterly community dinner that serves a sustainable low cost or free meal, while encouraging civic engagement and dialogue. The BLK ProjeK has an on-going initiative called Libertad Urban Farm, a movement that seeks to reclaim underdeveloped land to put to use as community gardens. Although the BLK ProjeK’s work is rooted in food issues, its impact extends much wider: by working at the intersection of race, class and gender, it is actively engaged in issues of community growth and development, representation and empowerment, public and mental health, and environmental stewardship. 

To learn more about Tanya Fields, the BLK ProjeK, and food justice in urban communities, tune into Yale Center for Environmental Law and Policy’s webinar “Frontiers in Food and Agriculture: A Conversation with Tanya Fields” on Tuesday, September 17 at 12:00 pm EDT. To register, visit www4.gotomeeting.com/register/941997655. Tanya’s presentation will be followed by an interactive Q&A session with the audience.

Jena Clarke is a first-year Master of Environmental Management candidate at the School of Forestry and Environmental Studies. She earned her B.S. in International Agricultural Development from the University of California, Davis in 2009. She is interested in agricultural policy, especially relating to livestock production and rangeland management. Her background is in cattle ranching in the US and Australia, where she worked as a cowgirl and later as a business analyst for a corporate agricultural funds manager.

Posted in: Environmental Law & Governance
Tuesday, September 03, 2013
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Climate Change and the ICJ: Seeking an Advisory Opinion on Transboundary Harm

By Guest Author, Halley Epstein, Yale Law School '14

The latest Intergovernmental Panel on Climate Change draft report—leaked late last month—warns that sea levels could conceivably rise by more than three feet by the end of the century. As analysts, including climate deniers, pore over various aspects of the report, island nations continue to wonder: is it too late to avoid catastrophic damage caused by climate change?

For people in low-lying nations, a sea level rise of three feet would wreak havoc on their ecosystems, territories, and ways of life. The New York Times notes that rising sea levels could affect “the world’s great cities,” including New York, New Orleans, Shanghai, Venice, and London. But the Times does not mention how rising seas are already affecting low-lying cities and nations not on their list – including the Republic of Palau.

Palau, and many others, are frustrated by the lack of binding international commitments to reduce greenhouse gas emissions. This ongoing political impasse inspired Palau, along with a multistate coalition, to draw attention to climate change on a different international stage. The coalition initiated an international campaign to secure an advisory opinion from the International Court of Justice (ICJ) on assigning responsibility for causing climate change. At the ICJ, all interested nations, regardless of political influence in international climate negotiations, would have the opportunity to voice their opinions on the matter.

Last fall, a group of Yale graduate and professional students worked directly on this campaign with some of the coalition’s organizers, including Palau’s Ambassador and Permanent Representative to the United Nations, Stuart Beck, YLS ’71. “At its core the Palau campaign simply seeks to bring the rule of law to the problem of global climate change,” said Professor Douglas Kysar, the Joseph M. Field ’55 Professor of Law at Yale Law School and one of the course instructors. “So for us, it offers an ideal pedagogical opportunity to study the power of law in an age of despairing politics.”

Our goal was to assemble the legal, political, and scientific justifications for the coalition’s request and detail why the ICJ should issue an opinion on state responsibility for transboundary harm caused by greenhouse gas emissions. Together with Ambassador Beck, Aaron Korman -- Palau’s legal adviser -- and Professor Kysar, we compiled our findings in a new report, Climate Change & the International Court of Justice.

Drawing on climate science, international and domestic legal authorities, and the international legal principles of transboundary harm, the rule of law, and human rights, we conclude that supporting an ICJ opinion on climate change responsibility is in all states’ interest.

As the campaign progresses, Korman said, "we hope others will find this report useful for its overview of the international legal principles and arguments that support the ICJ campaign and that it will serve to build broad support for the advisory opinion request, as well as for decisive action on climate change."

While an ICJ advisory opinion remains just that—advisory—a ruling on states’ rights and obligations under international law could shape international norms and influence future UNFCCC negotiations. Some industrialized nations oppose the campaign because of potential impacts on international negotiations. For island nations, though, the ability to obtain a ruling on international legal responsibility outside of the UNFCCC process is the most realistic way to fight for their right to exist.  


Posted in: Environmental Law & GovernanceEnergy & Climate
Monday, August 05, 2013
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Off Alaska’s North Slope: To drill or not to drill?

By Guest Author, Amy Mount, Yale F&ES '14

“This is good: now that we’ve got an adult with us, we can walk along the beach!” said the 9-year-old Inuit girl.

“Erm, why do you need an adult to walk along the beach?” I asked tentatively, wondering what I’d committed myself to when agreeing to hang out with the bunch of kids who’d been watching Nickelodeon in the cafe where I was eating lunch.

“In case there are polar bears,” she replied nonchalantly, slurping her garish blue Slush Puppie and flicking her hair behind her head.

We were in the tiny village of Wainwright, Alaska, roughly 70 miles from the northernmost city in the United States, perched on the coast where the great expanse of tundra that covers Alaska’s North Slope meets the chilly Arctic Ocean.  The sea ice had begun its springtime melt and three or four whaling crews had towed their boats using snow-machines across the land-fast ice to the patch of dark blue water that had opened up a mile or so from the shore. The rest of the village’s inhabitants had tuned into channel 12 on the CB radio to listen for updates from the whalers, pausing in their work or play occasionally to scan the sea through their binoculars, looking for tell-tale spouts of water.

I couldn’t help gazing out to sea. I’d never seen an ice-covered ocean before and something about it fascinated me: the way it had grown a temporary topography during the dark winter, the frozen layer exhibiting a kind of plate-tectonic behaviour, pushed and pulled by currents and tides, leaving not a smooth landscape but one of ridges and fissures. 

In the 19th century, whales were hunted in large numbers by non-indigenous commercial whaling boats, in what one Alaska Native described to me as the North Slope’s first “offshore oil rush.” The blubber was boiled to extract oil that, in turn, was burned in lamps. Commercial whaling (as distinguished from indigenous people’s subsistence whaling) has been illegal for some time now, but these days there is talk of a new offshore oil rush on the horizon. Decreasing Arctic sea-ice coverage and relatively high global energy prices have been drawing drillships northward in search of the fossilized hydrocarbons thought to lie beneath the sea bed.

I had been drawn north too, intrigued by the media narratives of an inevitable “opening up” of the Arctic. I was travelling around Alaska to research the decisionmaking process that determines whether or not drilling will happen in the Chukchi and Beaufort Seas; to learn about who makes those decisions, whose views are considered, and which factors are seen to be important. I have so far interviewed more than 40 people from a variety of backgrounds: oil companies, the Alaska legislature, federal and state agencies, environmental organisations, and Alaska Native institutions. 

Hours of analysis and writing await me in the coming academic year, so it would be rash of me to announce any conclusions just yet. I do, however, want to share one thought. The urban Alaskans from Anchorage and Juneau often alluded to the “bind” or difficult situation in which people up on the North Slope find themselves. Since oil began to flow from the onshore area around Prudhoe Bay in the 1970s, the villages dotting the Arctic coastline have become accustomed to a parallel flow of benefits in the form of greatly improved public services, infrastructure, and cash. Now that the onshore fields are producing less, some hope that offshore drilling could fill the gap and ensure the continued flow of cash to the local economy. 

At the same time, there is great concern for the wellbeing of the bowhead whales that are seen as essential to those communities’ food security, social practices and cultural heritage. Whales might be harmed or pushed away by the noise of drilling, seismic testing, or perhaps the mess of an oil spill – not to mention the impacts of fossil-fuelled climate change on the region as a whole, which indeed were not often mentioned by many of my interviewees but which are increasingly documented in scientific literature. 

No one seems to know a satisfactory way out of this apparent tension between the need for ecological integrity and the need for cash. People in the south sigh and shake their heads in pity at the situation of those in the north. Yet it seems to me that the tension on the North Slope is but an early indication of a condition that exists globally, in a world whose leaders declare their countries to be “addicted” to fossil fuels but whose security is undermined by the extraction and combustion of those very materials – due principally to global warming but also to more locally felt environmental impacts. Understanding the politics, policies and decisions that surround fossil fuel extraction is important not just for Arctic inhabitants but for us all.

Amy Mount, a joint-degree master’s of environmental management and international relations student, is studying the politics of offshore drilling in Alaska.

Posted in: Environmental Law & GovernanceEnergy & Climate
Friday, July 26, 2013
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Oceans: A rising tide of policy concern

By Guest Author, Omar Malik, Yale F&ES '13

Oceans are (figuratively) a hot topic these days—not least because they are, (literally), getting warmer due to climate change. Along with sea-level rise and ocean acidification, the changes to the oceans will affect the world’s coastlines by destroying coral reefs, threatening infrastructure, and flooding low-lying areas with salt-water.

The concern for oceans has galvanized action at the local scale. The Port of Los Angeles recently announced plans for a new oceans research center to help understand the impacts of sea-level rise on cities and sustainability—an important step for advancing the kind of science-based policymaking that is needed to implement effective climate change mitigation.

At the federal level in the United Sates, a body known as the Joint Ocean Commission released a new report, “Charting the Course: Securing the Future of America’s Oceans.” The Report calls for increased data collection, research activities, and inter-agency cooperation. It looks forward to 2015 when the U.S. will chair the Arctic Council, a position that will give the U.S. an opportunity to be more proactive in the polar region. And the Report encourages the Senate to ratify the Law of the Sea Convention—something that would likely help further international ocean cooperation.

Meanwhile, in other ocean news, civil society members, policy experts, and government representatives have launched the Global Ocean Commission, which is concerned with advancing oceans policies. At the United Nations, recent four-day talks on ocean acidificationtook place to raise awareness, and discussions outlining the Sustainable Development Goals (SDGs) have led the proposal for a specific SDG on oceans in the post-2015 agenda. The Republic of Palau, for example, has proposed an SDG that would include policy targets on ocean acidification, sustainable fisheries, and marine ecosystem health.

“Hopefully our collective efforts will serve as a banner to rally oceans advocates around the world,” said Ambassador Stuart Beck, representative of Palau to the United Nations, at a recent meeting on the issue in New York.

All of these efforts call for action, monitoring, and stewardship and will require the use of good data. Tools like the Ocean Health Index and the EPI can help track policy progress once countries get serious about such big environmental issues.

Posted in: Environmental Law & Governance
Friday, July 19, 2013
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Revisiting Florida Wetlands

By Josh Galperin, Associate Director

In a post last week I mentioned that I had made two particular predictions this past year. I was happily correct in one of my predictions, and I posted on that last week. I also promised to discuss my wrong prediction this week. I thought about breaking that promise because I don’t like being wrong, but the subject matter is too interesting to ignore.

At the end of January I blogged about an environmental case in the United States Supreme Court. The case, Koontz v. St. Johns River Water Management District involved (I thought) some very nuanced aspects of the U.S. Constitution’s Takings Clause. I discussed all the details in the earlier post, so I’ll give only a very brief recap here: Mr. Koontz wanted to develop some wetlands into commercial shopping. Local environmental officials asked Koontz to pay for restoration at wetlands several miles away or to reduce the size of his planned development. Koontz refused these conditions and the officials denied his permit.

Koontz’s lawsuit claimed that the state had effectively taken his property without compensation, in violation of the Fifth Amendment of the Constitution.  As my previous post explained, this argument is typically used when the government either physically appropriates private property—as in the example of Harvey and Phyllis Karan’s strip of beach in New Jersey—or regulates property so heavily that it is effectively unusable for private purposes—for example, when regulation prohibits all construction on the property. One thing that makes Koontz an interesting case is that the government never took Koontz’s property; they merely denied him a development permit.

I wrote above that “I thought” this was a case about the Takings Clause. In my previous post I argued that if the government had approved a permit for Koontz, and that permit required him to mitigate wetlands, then, perhaps, they would have effectively taken his property and would have to pay or change the permit. However, because the government denied the permit, no property ever changed hands. Therefore there could not be a taking, and Koontz would lose the case.

That’s where I was wrong.

As it turns out, the Court didn’t quite look at this case as one about taking property. Rather, they looked to the legal doctrine of unconstitutional conditions. The Court ruled in Koontz’s favor because they looked at the government’s proposed condition (Koontz only gets a permit on the condition that he pays to mitigate wetlands) and said that it would have been a taking if it had happened.

When the government says to a citizen “You cannot get benefit B unless you give up constitutional right C”, then there has been an unconstitutional condition. For instance, it would be unconstitutional for a state to tell a citizen that he cannot get his Medicare benefits unless he stops protesting the war. Protest is a constitutionally guaranteed right and the government cannot withhold a benefit on the condition that a citizen gives up that right. To my own surprise I foreshadowed this argument in my earlier post when I said Mr. Koontz might argue that he is effectively being forced to accept an unconstitutional permit if he wants a resolution, because if he doesn’t accept the permit then no property changes hands and he has no basis on which to sue.

Even though I thought of this argument, I reached a different conclusion from the Court. I reasoned that the right Koontz was being asked to give up—the right to keep his property—was not a constitutional right. The Constitution clearly permits the government to take private property. Where I fell short was in ignoring the requirement of just compensation. If the government did, in fact, demand property from Koontz, they demanded it without offering just compensation. In other words, (at least in theory, and I’ll come back to this) the government conditioned Koontz’s permit on his willingness to give up property without just compensation. It is unconstitutional to take property without compensation and a condition demanding property without compensation is therefore an unconstitutional condition. On this point the Court was exactly right and I was exactly wrong.

There are two important notes here.  First, it is important to realize that under this logic, the case really is not about takings law. Because the government never issued Koontz a permit, no property ever changed hands, nothing was taken. Koontz refused to accede to the unconstitutional condition. Since nothing ever changed hands, Koontz is not entitled to the constitutional remedy of just compensation. Nothing was taken so there is nothing for which to compensate him. If he gets any payment for his troubles it will not be payment demanded by the Constitution, but some payment that might be required by Florida law.

The second note brings us back to the underlying condition. The Court reasoned that the condition was unconstitutional if it required transfer of property without compensation.  So there was one last issue that the Supreme Court had to decide: Could there be a taking where the demanded property was money rather than physical or intellectual property? In other words: Could a requirement to pay, rather than a requirement to give up land, amount to a taking?

The Court found that transfer of money could amount to a taking. The Takings Clause is traditionally focused on physical or intellectual property, so expanding to general cash transfers is a dramatic shift, and to me, this shift seems to lead to absurd results. Suppose the government demands that Koontz remediate a wetland for the cost of $5,000 and that is deemed a taking. It therefore requires just compensation. It isn’t hard to calculate a fair compensation for taking $5,000. Unless there has been a dramatic economic shift, the fair value of $5,000 is $5,000. The government then gives Koontz his money back. Now there has essentially been no taking to begin with. Other than some transaction costs, everybody is back to exactly where they started.  Put differently, it is as if there had never been a taking in the first place. Nothing of consequence has happened.

This is absurd because the Constitution very explicitly allows the government to take property. This is exactly the point of the Takings Clause. The government can take property so long as the property is taken for a public use and the government pays just compensation. But if the Court views money as property for these purpose, then the government has effectively lost its constitutional ability to take this type of property even when necessary for a public use. Imagine if the Court ruled that government could take land to build a school, but only as long as the government returned the land as soon as they took it! In effect the government cannot take the property at all. This is a farcical reading of the Constitution but is an exact parallel to what the Court is setting up when cash can be the basis of a taking. The ruling also suggests that government may never be able to charge fees or levy taxes without immediately refunding them. The Court noted this fear and assured that the Koontz ruling does not infringe on taxes, but the Court gave no guidance on a distinction between charges that require refunds and those that do not.

That seems absurd to me, and unconstitutional, but I’ve been wrong before.

Posted in: Environmental Law & Governance
Thursday, July 11, 2013
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Revisiting the New Jersey Coast

By Guest Author, Josh Galperin, YCELP Associate Director

The problem with making predictions is that sometimes predictions are wrong. Over the past several months I made two predictions on this blog about two important environmental law cases. I ended up one-for-two.

That isn’t such a bad performance, but the consequences of being wrong are significant -- not just for my ego, but for the on-the-ground reality of environmental planning. Of course the consequences of being right are also important. This post addresses the good news. Stay tuned next week for the bad news.

In December I wrote about climate adaptation efforts in New Jersey. The town of Harvey Cedars, the State of New Jersey, and the federal government were cooperatively working to strengthen a dune system in order to protect against devastating storm surges like those associated with Hurricane Sandy. But bigger and better dunes can mean diminished views for some homeowners. Harvey and Phyllis Karan lost some of their view and a court initially awarded them $375,000 for the loss. Shortly afterward, Sandy came along and, because of the new dunes, didn’t destroy their home. So Mr. and Mrs. Karan had hundreds of thousands of dollars and an intact home thanks to the dune project.

I argued that this was an unreasonable result and if the law continues to require this sort of double-benefit whenever private property is hampered by climate adaptation projects, climate adaptation would become financially infeasible.

Luckily for the future of New Jersey’s beaches, the New Jersey Supreme Court ruled on Monday, July 8, that the lower court was wrong when it awarded $375,000 to the Karans. The lower court did not allow the jury to consider the fact that the dune project would give the Karans a significant benefit (saving their home!), and it should have. According to the New Jersey Supreme Court, the jury should consider the fair market value of the property before the governmental interference and compare that to the fair market value after the interference, including any potential increases resulting from the project.

This case now returns to the lower court where a new jury will consider how the home-saving benefits of dune replenishment will affect the value of the Karans’ home. Hurricane Sandy likely had some impact on the court’s decision in this case, even if only subconsciously. It is also likely that the memory of Sandy will influence the next jury to determine how much money the Karans should receive.

Sandy may or may not have a connection to climate change, but the storm is at least a demonstration of what climate change looks like. In my earlier post I suggested that the reality of climate change may drive changes to the strictures of property law, and this week’s decision from the New Jersey Supreme Court suggests this could be exactly what is happening.

 

Posted in: Environmental Law & GovernanceEnergy & Climate
Wednesday, July 10, 2013
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Environmental Law Alliance Worldwide in Eugene, OR: Where Lawyers Are Advocates

By Guest Author, Marissa Knodel, Yale F&ES '14

The next time I am asked whether I can be an advocate for people and places with the least information, access to, and ability to obtain a just, healthy, and resilient future, and have a career, I can confidently answer “yes!”

After my first day at Environmental Law Alliance Worldwide (ELAW) in Eugene, Oregon, I knew I found the type of dynamic, engaging, hard working, and innovative legal community for which I want to be part of for the long-term. As a dual J.D./M.E.M. candidate, I accelerated through law school and missed valuable opportunities to apply my learning to a “real-world” situation. Such omissions proved frustrating for my legal education because law is a skill-based discipline that requires an application, otherwise one is left with a bag of tools, raw material, and no directions.

Thus, adrift in my sea of legal reasoning and academic conceptions about environmental justice and community empowerment, I sought mentorship from lawyers working in the interconnected fields of environmental and public interest law. I was fortunate to discover ELAW, which was founded in 1989 at the University of Oregon Law School by a group of lawyers from ten countries who discovered they could promote environmental protection for their communities more effectively by sharing strategies and legal and scientific information. This cross-border collaboration has since expanded to include more than 300 public interest advocates from seventy countries. ELAW remains a nonprofit public interest and environmental law organization that “helps communities speak out for clean air, clean water, and a healthy planet” and promotes “grassroots efforts to build a sustainable, just future.”

I cannot disclose specifics, but my day-to-day assignments go something like this:

An advocate (lawyer) in ____ country is thinking about bringing a claim against ____ project or company on behalf of ____  community in defense of their human, environmental, and/or constitutional rights to a safe, healthy, and sustainable environment for present and future generations. Can you provide information about relevant laws, precedent cases, and advice about the viability of such a claim?

Then off I go onto the Internet and law library to research and write a memo in response, usually in collaboration with other ELAW law and science experts. For example, I’ve researched international financing of gold, copper and silver operations that are impacting a local community, investigated whether noxious odors constitute a violation of the right to a healthy environment, and summarized, for comparison, U.S. laws and regulations pertaining to wetland development and phosphate mining. I also help update and expand an online database of countries’ environmental impact assessment (EIA) legislation. Exploring how different countries articulate and enforce environmental laws, especially with regard to EIAs, is fascinating, and says a lot about the nation’s governance and rule of law, political and colonial history, economic development, and other socio-economic and socio-cultural issues. Environmental changes exacerbate existing social, political, and economic stressors, so there is a strong emphasis on the intersection between human and environmental rights.

Though difficult, I am learning that the “answer” to a particular request is often negative or unclear. In addition, I may or may not find out whether a particular memo made a beneficial difference in a case or not. The important part of my work, however, is not always about winning or personal recognition, but about aid through empowerment. ELAW’s philosophy and purpose is to provide legal and scientific assistance at the request of communities, with the goal of strengthening the rule of law and access to justice at the local level. The personal relationships established with the lawyers who represent these communities helps elucidate the elements that comprise environmental justice: recognition, participation, enforcement, and empowerment.

Non-profit work is not always romantic and certainly has its challenges. A great deal of time must be spent fundraising and writing grant applications. ELAW’s physical office space and amenities are limited, but the location is beautiful, and my co-workers are personable, friendly, and generous. Largely dependent upon volunteers and unpaid interns, the ELAW community is more value- than profit-driven. Non-profit legal work, in sum, is simultaneously rewarding and humbling in the most satisfactory way. ELAW has already taught me that to be a more effective environmental and public interest lawyer, one must first identify as an environmental and community advocate.

I find it difficult to believe that a month has already passed since my move to the west coast. At the same time, if my knowledge and list of amazing experiences continue at their current rate, I am looking forward to my remaining six weeks with enthusiasm and determination to take advantage of every exponential opportunity.

Marissa Knodel grew up in Rochester, Minnesota, and has been fortunate to live and study in a variety of other locations, including Alaska, Belize, South Africa, and France. She earned her B.A. in Environmental Studies and International Public Policy from Dartmouth College in 2009. After graduation, she worked as the Sustainability Programs Specialist at Dartmouth College and indulged her passion for food and wine with a summer internship at Jewell Towne Vineyards in South Hampton, New Hampshire. She enrolled in the dual degree program with Vermont Law School and the Yale School of Forestry and Environmental Studies in 2010 to explore her interest in the definition and intersection of justice and sustainable development in the climate change context.

Posted in: Environmental Law & Governance
Monday, July 08, 2013
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Grizzly Bear Delisting: What is it really about?

By Guest Author, Breanna Lujan, Yale College '14

Confined to less than 2 percent of their original habitat and threatened by the effects of development, population growth, and climate change, grizzly bears are facing a dismal future. Despite this, the grizzly, as much a biological wonder as a national symbol, is facing possible delisting from the Endangered Species Act.

As an intern for People and Carnivores, a project of the Northern Rockies Conservation Cooperative that aims to mitigate human-carnivore conflicts, I am investigating the complexities surrounding the status of the grizzly bear in the Great Yellowstone Ecosystem. The primary question: do we delist the grizzly bear or maintain its federal protection under the Endangered Species Act?

I am but one of a multitude of people grappling with this question. Ranchers, county commissioners, NGO members, outfitters, journalists, scientists and various other individuals all have a stake in the grizzly bear’s status. Through my work, I have been fortunate to gain insight into this complex web of interactions by interviewing some of the key players. The questions I ask focus on how people view the challenges facing grizzly bears, the threats to grizzly bears and their habitat, the effects of various groups on grizzly bear management, states’ ability to successfully spearhead grizzly bear management, and the role of science – among other topics.

The responses to these questions have been very telling of how these participants’ values, perspectives, worldviews and narratives shape their positions. By sorting through the points of convergence and divergence, I hope to gain a better understanding of these views and values to both inform and improve the development of future conservation strategies. 

The most interesting aspect of my work so far has been identifying if and how certain viewpoints align. This debate—like so many others involving conflicting interests—has been depicted as black and white, pitting ranchers and hunters against conservationists and environmentalists. Though some individuals believe this issue is overtly polarized, I have found that people from these “opposing” camps have a lot more in common with each other than they realize. For example, ranchers and conservationists—portrayed as having incompatible goals and visions—both have an appreciation for the land and hope to conserve its resources in a sustainable manner.

So the disagreement between these groups results not from differences in their ideologies of conservation, but rather from how to uphold those ideals, or in this case, how to best manage the land. Given the underlying commonalities, it seems collaboration between these groups would be simple. What I have come to realize, however, is that differences in personalities and agendas foreclose almost any possibility of collaboration.

And, unfortunately, it becomes very easy to forget the outcome of this debate will ultimately affect the grizzly bears. Instead, they become lost in this mire of politics and opinions, no longer viewed as living organisms but rather as vehicles to propel individual agendas.

I have another month with People and Carnivores, and I am excited to dig further into this issue. I hope that by gaining a better understanding of the underlying social and political complexities, I will not only be able to contribute to the wellbeing of the grizzly bear, but also facilitate much needed dialogue among the individuals entrusted with the safekeeping of the species.

Breanna Lujan is a rising fourth year Environmental Studies major at Yale College. She is concentrating on biodiversity conservation and sustainable development, especially as these topics pertain to environmental policies in Brazil.

Posted in: Environmental Law & Governance
Wednesday, June 26, 2013
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President’s Climate Action Plan is a Mixed Bag

By Josh Galperin, Associate Director

I want to make a few points about the climate plan President Obama spoke about yesterday. It’s the kitchen sink of climate policy, so there is a lot to say – but I’ll keep it brief.

Overall, this is a step in the right direction simply because the President stood up and gave a speech completely dedicated to addressing climate change. Climate was absent from the campaign trail and has only received piecemeal attention from the White House otherwise. While I have some concerns about the details of the plan, its mere existence is a starting point for a dialouge. Unfortunately, it is a dialouge that should be much further along.

MITIGATION

The President’s plan presents what he himself calls an “all of the above energy policy.” That’s a reassuring phrase. My concern is that one of the above—namely coal—is one of the top drivers of climate pollution. I am not suggesting that a better climate policy would require the immediate retirement of all the country’s coal plants; that is patently irresponsible. But a better climate policy would at least recognize that coal is part of the problem, not part of the solution.

Specifically, the White House plan proposes to support “clean coal” through loan guarantees for technologies such as carbon capture and sequestration (CCS) and “advanced fossil energy projects,” which presumably includes technologies like coal gasification. The words “clean coal” peppered through this plan is worrisome. There is “cleaner” coal, which emits less carbon, less sulfur, or has other pollutant reductions, but no coal is clean in the sense that wind, solar, or energy efficiency is clean.  Coal gasification can reduce pollutants and CCS can reduce carbon emissions to the atmosphere, but only if utilities can bring the technology to scale. But new technologies do not address the upstream impacts of coal, from mining to transportation, or the downstream waste storage problems.

Moreover, CCS may not ever be the technology that this plan envisions. When attached to a coal plant, CCS technology requires electricity to operate. That electricity comes directly from the coal plant to which it is attached, which means that CCS will reduce the amount of electricity that leaves the coal plant and goes to homes and businesses. Some estimate that CCS technology could require 40 percent of a coal plant’s electrical output. This means that a coal plant would need to increase its output by 40 percent to make up for the electricity that goes to the CCS process, thereby burning over 40 percent more coal.

The loan guarantee plan is a sort of fossil fuel subsidy, albeit a subsidy that will help reduce the cost of private borrowing for “advanced fossil energy projects” rather than offer direct payments to the industry. In fact, elsewhere in his plan the President promises to reduce direct subsidies.  Coal is king because it is cheap, and it is cheap, in part, because it has had help from the government. Reducing subsidies will help alternative energy sources compete.

One of the most valuable subsidies that coal power receives is permission to emit greenhouse gases, creating a significant social cost but bearing almost none of that cost internally. The new climate plan promises to remove this subsidy as well and that is an important highlight: President Obama promises to direct the Environmental Protection Agency to adopt carbon standards for new and existing power plants. The process is underway (albeit delayed) for new-plant standards but previous EPA statements indicated that the Agency would not address existing plants. Perhaps yesterday’s announcement will change that.

ADAPTATION

Everything I’ve so far discussed is aimed at reducing climate change. These issues, and many others, have been at the center of the climate change debate, in one form or another, since the beginning. Adaptation, however, has been mostly absent. Yet adaptation is critical. The climate ball is rolling and mitigation seeks to slow it. Adaptation helps us avoid getting flattened by it. Adaptation helps sure-up infrastructure and make society more resilient to change. Local governments have been working tirelessly to adapt and organizations such as Mayor Bloomberg’s C40 Cities Climate Leadership Group have been supporting urban resilience efforts. But adaptation has not been a major part of the national dialouge.

With respect to mitigation, the President’s plan largely works at the margin. But with respect to adaptation, whether it is strengthening coastlines or protecting hospitals from floods, the President has finally raised its policy profile and that will likely be the biggest achievement of this plan.

Posted in: Environmental Law & GovernanceEnergy & Climate
Wednesday, June 12, 2013
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Process and progress at the UNFCCC: A report from SB 38 in Bonn

By Guest Author, Omar Malik, Yale F&ES '13

I was just in Bonn for the mid-year meeting of the advisory bodies of the United Nations Framework Convention on Climate Change (UNFCCC). The purpose of these meetings is to work out the details of the agreements that came out of last year’s Conference of the Parties (COP), and to prepare for the next COP in Warsaw in November. The three groups meeting are the Subsidiary Body for Implementation (SBI), the Subsidiary Body on Scientific and Technical Advice (SBSTA), and the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP). Ultimately, the goal of these talks is to help transition from the Kyoto Protocol to a new international agreement on climate change that is supposed to be signed in 2015.

For those who follow climate change talks, many familiar themes emerged from this conference. For instance, the talks were an especially iterative process: meetings are started in a large plenary hall and then move to more focused and smaller contact groups. After that, they move to closed-door meetings, and then—where some argue the real substance of negotiations happens—the delegates go into bilateral discussions before returning to plenary meetings. It’s a cycle of refinement. Another major theme was the UNFCCC process itself. A point of debate that came up at one of last week’s meetings, for instance, was an accusation that Secretariat was speeding the talks along too quickly and perhaps single-handedly steering the process. This is an issue because sovereignty and consensus are both major parts of the negotiations. So while it is in the Secretariat’s interest to move things forward, there’s a catch-22 insofar as the UNFCCC Secretariat can lose credibility by trying too hard to get things done.

This brings up a question: Is progress measured by the process or the product?

To this end, indices are used to gauge various forms of progress in climate change policymaking. One slightly tongue-in-cheek example, above, is contained in the infographic shared by the Climate Action Network (CAN) at the Bonn conference, which shows the correlation between daylight in the conference’s host city and the “level of productivity” achieved. While leaving the future open to success, it implies that the negotiators who attend the conferences are simply subject to the rhythm of the solar-system.

Another—more serious--assessment by CAN along with Germanwatch, a climate change institute, is the Climate Change Performance Index (CCPI). The CCPI rates countries on their relative performance on a number of climate change indicators, including sector-specific carbon dioxide emissions levels, energy efficiency, renewables, and national as well as international policies. It’s interesting to note that part of the international policy score comes from surveys done at international conferences such as the SB 38 of the UNFCCC.

On a final note, please check out the accompanying photos of the conference below. During the conference eastern and southern Germany experienced major flooding. This is a reminder that the true measure of climate progress is preventing dangerous on-the-ground impacts, as extreme weather events are one of the underlying drivers for stopping climate change in the first place. 

Posted in: Environmental Performance MeasurementEnvironmental Law & Governance
Tuesday, June 04, 2013
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Heat Action Plan Ads Hit the Streets of Ahmedabad!

By Guest Author, Kathryn Wright, MEM '13 and Lauren Sanchez, MEM '14 and 2013 YCELP Moran Environmental Fellow
In mid-March, the Ahmedabad Municipal Corporation (AMC) in Ahmedabad, Gujarat launched the first comprehensive heat action plan in South Asia in collaboration with the Natural Resource Defense Council (NRDC) and its partners. Now that the heat season is just around the corner for Gujarat, 
the AMC will have the opportunity to put the heat action plan in motion. The heat action plan is composed of an early warning system and public awareness campaign about staying healthy during extreme temperatures and may be accessed online on the AMC’s website.
 
Climate scientists predict that extreme heat waves will increase in frequency due to climate change. A key component of NRDC's example materials and advertisements is to try and establish the link between extreme temperatures, health and climate change. NRDC, in partnership with the Indian Institute of Public Health
(IIPH), Public Health Foundation of India (PHFI), Mount Sinai School of Medicine, Rollins School of Public Health at Emory University, and Georgia Institute of Technology, was able to develop public service announcements, recommendations and protocols for heat waves and extreme heat events.
 
Advertisements and print-distribution are already picking up around the city. Billboards, as pictured below, are being put up around the city providing heat prevention tips. In the coming months, key stakeholders will continue to meet, discuss and revise the early warning system.
 
 Photo courtesy of Anjali Jaiswal, Director of India Initiative
(Photo courtesy of Anjali Jaiswal, Director of the NRDC India Initiative)
 
This billboard and other heat action plan advertisements are directed at several unique groups, vulnerable to the effect of increased heat:
  • Young and elderly populations – development stages contribute to increased vulnerability due to challenges maintaining homeostasis. These populations are at-risk because of lack of control of their surrounding environments

  • Slum communities - typically lack access to cooling facilities, healthcare and other amenities to help combat the heat 

  • Outdoor workers - physical exertion under the hot sun contributes to dehydration and susceptibility to other extreme heat illnesses

The heat action plan will be primarily disseminated throughout the city of Ahmedabad through public ads in a variety of media. The advertisements and publications were further tailored to address these unique groups. A separate easy-read version of the heat action plan was developed to reach a broader audience. There are also plans to place public service announcements on ambulances. Another exciting development is that the AMC printed health tip sheets for 6,000 school children to take home to their families! 
 
In addition to the advertisements around the city, NRDC and its partners are also providing health fact sheets for medical workers and community outreach groups around the city. Through these dissemination strategies, Ahmedabad residents will be able to properly prepare for heat season, and will begin to think about the impacts associated with climate change.

 
Diagram courtesy of NRDC and its project partners
(Diagram courtesy of NRDC and its project partners)
 
The heat action plan also involves coordination and cooperation between multiple different government responses to create an integrated emergency response system. The flowchart on the left details the coordinated action between government departments and other stakeholders. These agencies will work together to reach as many residents as possible. There are even plans to coordinate with key electric and water providers during the most extreme temperatures. 
 
In the coming months, key stakeholders will continue to meet, discuss and revise the early warning system and the heat action plan. Keep an eye on the India Initiative website for updates. 
Posted in: Environmental Law & GovernanceEnergy & Climate
Monday, May 20, 2013
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How eucalyptus trees are connected to denying climate change

By Guest Author, Eric Biber, Professor of Law, University of California Berkeley

I (Josh Galperin, Associate Director, Yale Center for Environmental Law and Policy) have two forthcoming publications that argue against the growing "eat the invaders" or "invasivore" movement. Invasive species are a serious ecological and economic problem. The invasivore movement supposes that we can control biological invasions with a fork and knife. My collaborators and I see several problems with this argument. One of the leading problems is that generating enough culinary interest in an invasive species to actually impact its population will lead to cultural endearment. There are examples of invasive species, despite manifest ecological and economic damage, becoming important cultural icons. Even though it has nothing to do with food, the eucalyptus tree in California is one such example. 

The following post, written by Professor Eric Biber and originally published on Legal Planet highlights problems of cultural endearment of invasive species by focusing on attempts to remove eucalyptus from the campus of UC Berkeley.

 


How Eucalyptus Trees Are Connected to Denying Climate Change

 

Here on Legal Planet, we talk a lot about climate skeptics/deniers, and we’re highly critical of them (for good reason!).  A lot of those climate skeptics/deniers are conservatives.
 
But there’s no monopoly on scientific ignorance on one end of the political spectrum.  An example of that is close to home here at UC Berkeley.
 
In 1991, a deadly firestorm raced through the Oakland/Berkeley hills, killing 25 people and destroying thousands of homes.  A key factor in the blaze were the groves of eucalyptus trees growing in the area.  Eucalpytus, which is native to Australia (not California) is an extremely flammable tree species, and native Californian plants are generally unable to grow and reproduce successfully in eucalyptus groves (in part because eucalyptus trees acidify the soil).  UC Berkeley is applying to receive federal funds to eliminate tens of thousands of these trees in order to reduce fire risk and help restore native plants and ecosystems to campus.  One would think that this would receive universal support.  One would think, but this is Berkeley, where conspiracy theories sprout profligately from the soil like mushrooms after spring rains…
 
It turns out that a few folks are outraged about this.  Some have simply latched onto the fact that the university is “clearcutting” trees as the basis for condemning the proposal – as if logging or clearcutting were inherently evil.  Others object to the “xenophobia” inherent in eliminating non-native trees in favor of native ones (see the comments following the article).  Still others have concerns about herbicide use – which is a reasonable concern, though it appears that the university is taking a lot of steps to make sure the usage is appropriate and the harms are limited.  And finally, a few seem to believe that anything that involves herbicide use must be part of a giant conspiracy by giant chemical companies to destroy the planet (again, see some of the comments after the original news article).
 
Let me be clear here.  Cutting down eucalyptus trees to reduce fire risk and restore native plants and ecosystems is generally an environmentally sensible thing to do.  It will help native plants and animals do better.  And it will keep people safer.  Those who argue otherwise are ignoring a lot of fairly clear ecological evidence, primarily because of other prior commitments they have (such as, logging is bad, or chemicals are bad).  Sounds a little like climate skeptics/deniers to me.
Posted in: Environmental Attitudes & BehaviorEnvironmental Law & GovernanceEnergy & Climate

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