On the Environment
Wednesday, July 10, 2013
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.
Monday, July 08, 2013
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.
Friday, July 05, 2013
By Susanne Stahl
The Yale Center for Environmental Law and Policy team shares suggestions for summer reads that look at the environment from a variety of perspectives from the grasslands of South Dakota to the islands of the South Pacific, and including such classics as Moby Dick and Moby Duck. Happy reading!
Revolution on the Range: The Rise of a New Ranch in the American West by Courtney White
I am spending the summer in Montana interviewing people to gage public perception of the grizzly bear delisting debate in the Yellowstone Ecosystem. Ranchers have figured prominently in my research as they are very much at the heart of the issue. One of the ranchers I spoke to recently suggested that I read Revolution on the Range to better understand the relationships between ranchers and conservationists and how they align on various levels.
--Breanna Lujan, YCELP Research Assistant
State of Wonder by Ann Patchett
This compelling story follows scientist Dr. Marina Singh, who travels far into the Amazonian rainforest to find a missing researcher. During her journey, she encounters native tribes and must learn to live in their "harsh" realities. Despite the small hint of a love story, Patchett provides a powerful tale that has many of her readers weighing the prices of discovery and science.
The Sex Lives of Cannibals: Adrift in the Equatorial Pacific by J. Maarten Troost
Troost tells the story of his journey to a remote South Pacific island, where everything is the opposite of paradise. A friend sent me this book while I was doing research in a remote jungle of Costa Rica. During my months away, I missed the comforts of home and struggled to accept some of the downsides of living in such a wild and chaotic environment. Troost's encounters literally had me laughing out loud and helped me realize just how good things actually were.
-- Laura Johnson, YCELP Research Assistant
The Quest: Energy, Security and the Remaking of the Modern World by Daniel Yergin
The Quest tells the gripping story of the modern energy system.
-- Joanna Dafoe, YCELP Research Assistant
Joanna interviewed Daniel Yergin for the Center’s On the Environment podcast series this spring. You can listen to the episodes here and here.
Moby Dick by Herman Melville
It’s important to understand the history of oil and its impacts on a large scale. The Quest is a good synthesis of the usually disparate areas of energy policy. Moby Dick is a fun way to look at how our civilization's relationship with oil goes back even further -- to the original "biofuel!" It's another epic quest about oil, just in an earlier century.
--Omar Malik, YCELP Research Assistant
Moby Duck: The True Story of 28,800 Bath Toys Lost at Sea and of the Beachcombers, Oceanographers, Environmentalists, and Fools, Including the Author, Who Went in Search of Them by Donovan Hahn
Since Omar offered Moby Dick, I'll add Moby Duck by Donovan Hahn. This is the story of a container ship carrying thousands of rubber ducks (and other small rubber creatures) that lost its precious cargo in a storm. Years later rubber ducks started turning up all over the world. The author decided to track the ducks, which turns into a great story about how the oceans work, trash, crazy people, and quite a bit more.
I'll also recommend The Death and Life of Great American Cities by Jane Jacobs. This is the seminal work of urban planning last century and has some of the most intuitive analysis of how cities work that I've ever read. Some people claim that the book has a very narrow view of land use and planning, but I think the opposite is true. I think this book can teach a lot of lessons about urban as well as suburban, exurban and maybe even rural areas.
Last but not least, I recommend The Greatest Show on Earth or The Selfish Gene by Richard Dawkins. Dawkins is brilliant and a great writer. Anybody interested in humankind or the environment should understand something about evolution, and these books both cover the topic well. The former is broader and more accessible, the latter is more technical and scientific and focused more specifically on genetic replication than broader questions about evolution.
--Josh Galperin, YCELP Associate Director
The Children’s Blizzard by David Laskin
It’s a book about weather that reads like a thriller. In January 1888 a violent blizzard swept unexpectedly across the Northern Plains, killing hundreds of people – many of them children on their way home from school. The book tells the story of several pioneer families, entwined with the history of the Army Signal Corps weather service as well as the meteorology of the storm itself. It’s a book best read on the beach, in the sun, with winter a distant possibility.
Also, Windbreak: A Woman Rancher on the Northern Plains by Linda Hasselstrom
Linda Hasselstrom is a writer and rancher from South Dakota. Windbreak, first published in 1987, documents a year on her family’s working cattle ranch near Hermosa in the southwestern part of the state. “Ranch work, like most jobs, has it’s routine, it’s repetition,” she writes in the introduction. “Our drama comes with the cycles of nature; with the endless absorption with birth and death; with the lives of neighbors and friends; with the weather, which is a character in the story of our lives. Only the details vary.” And Hasselstrom – a poet – has a keen eye for detail. Her writing, whether it’s her essays or poems, is always a challenge to see better and notice more.
For more of her poetry, check out Bitter Creek Junction.
--Susanne Stahl, YCELP Program Coordinator
Wild Ones: A Sometimes Dismaying, Weirdly Reassuring Story About Looking at People Looking at Animals in America by Jon Mooallem
In Wild Ones Mooallem wonders about our recent cultural history of looking at animals and how the animal imaginary contributes to our collective myths of wildness, extinction, and ourselves.
--Jason Schwartz, YCELP Research Assistant
Encounters with the Archdruid by James McPhee
Encounters chronicles McPhee’s trips into the American wilderness with the legendary conservationist, David Brower. The book is divided into three essays, each dedicated to contrasting Brower's ardent preservationism with the utilitarianisms of three philosophical adversaries. McPhee objectively imparts the opposing ethos of two conservation paradigms, providing a foundation for the reader to decide her own philosophy on the "appropriate" manner of human extraction and use of natural resources.
--Sara Kuebbing, Plant Ecologist and Ph.D. Candidate, University of Tennessee
I have so many on my reading list, but I'll narrow it down to five with different themes:
Pilgrim At Tinker Creek by Annie Dillard
Slow Violence and The Environmentalism of the Poor by Rob Nixon
Taking Back Eden: Eight Environmental Cases That Changed the World by Oliver Houck
Flight Behvavior by Barbara Kingsolver
Eating Animals by Jonathan Safran Foer
--Marissa Knodel, YCELP Research Assistant
Wednesday, June 26, 2013
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.
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.
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.
Wednesday, June 12, 2013
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.
Tuesday, June 04, 2013
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 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)
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
Monday, May 20, 2013
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.
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.
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.
Wednesday, May 15, 2013
By Josh Galperin, Associate Director
The United States Supreme Court didn’t do anything particularly interesting on Monday, May 13. All they did was issue a sound ruling on a reasonably simple legal question. The problem is that the facts of the case deal with thorny social issues that fuel the blogosfire: genetically modified foods and the role of multinational corporations.
The case, Bowman v. Monsanto, is about the use and re-use of genetically modified soybeans. Monsanto developed and sells Roundup Ready soybeans. The genetically modified (GMO) beans are pesticide resistant, allowing a farmer to spray the Roundup pesticide without harming the crop. Monsanto sells Roundup Ready soybeans with a license that allows the farmer to plant and harvest the first generation of beans but explicitly prohibits the farmer from saving seeds and planting a second generation. With this restriction Monsanto assures that any farmer who wants the benefit of Roundup Ready beans will pay for that benefit each year.
Vernon Bowman bought Roundup Ready soybeans each year for his full-season crop – but not for the late-season crop he planted after harvesting his winter wheat. Roundup Ready seeds cost 300 percent more than traditional seeds and because the yield of a late-season planting is lower, Bowman did not want to invest such a large sum. Instead he bought beans from the local grain elevator and planted them. Nearly all soybeans grown in the United States are Roundup Ready, so when Bowman sprayed Roundup on his late-season crop, nearly all the beans survived. In addition to selling these beans, Bowman saved seeds and used them on his double crop acres in following years.
Monsanto sued Bowman, arguing that its patent on Roundup Ready beans allows the company to restrict copying. Bowman countered that the legal doctrine of patent exhaustion protects him. Patent exhaustion prohibits a patent holder like Monsanto from controlling the use of its patented product after the patent holder’s initial sale. It is permissible, Bowmen therefore argued, to plant the offspring of patented soybeans because the patent exhausts after a farmer buys the seeds from Monsanto.
The Court disagreed.
As the Court explained, it is well settled law that the purchaser of a patented item may use that item as he wants, either using it directly, reselling it, or letting it rot in the basement. It is not, however, permissible to copy the patented item, which is what Bowman was doing by planting second-generation seeds. Emerging 3D printing technology provides a good example. If I purchase a 3D printer I can use that printer to print widgets or I can sell the printer to somebody else, but I cannot use it to print an identical 3D printer. Patent exhaustion allows a buyer to do what she will with the purchased article, but not with the intellectual property that is embedded in that article.
Bowman also argued that this case is not an example of simple copying, as it would be with the printer, because the seeds grow naturally, without his initiative. The Court called this the “blame the bean” defense. Perhaps they would have been more sympathetic if Bowman could have argued that preventing growth of a second generation was a significant burden but in fact, it took significant effort—including planting, watering, spraying, and harvesting—to get the descendant generations.
The Supreme Court was in unanimous agreement about the extent of the patent protection in this case, which should blunt public outrage. Nonetheless, the ruling has sparked hyperbolic and ideological arguments about the role of GMOs and corporate farming. Monsanto itself hailed the ruling as evidence that the Court recognizes that Monsanto’s GMO creation “feeds people, improves lives, creates jobs, and allows America to keep its competitive edge.” On the other hand the Center for Food Safety, an organic and non-GMO advocacy group says the “Supreme Court Rules against Farmers.” The patent protection given to the “agrochemical giant” is “destructive to farmers, agriculture as an industry, food security and consumer health and safety” according to the Center.
I tend to agree with the general positions of organizations like the Center for Food Safety. The hegemony of firms like Monsanto and the rapid spread of products like Roundup Ready soybeans are troubling from a social, economic, and environmental perspective. However, Bowman v. Monsanto is not about these larger issues. This is a case about patent law, not genetic modification or corporate dominance. The question presented to the court was not whether a company can patent genes or whether traditional farming practices trump organic agriculture. The question was whether a farmer may reproduce a patented seed without the patent holder’s permission.
Patent protection allows firms to invest in research and development with the knowledge that when they make a breakthrough they can profit from their investment without fear that after the first sale they will no longer control their intellectual property. Although this protection might seem dubious when it protects the genetic modifications of agrochemical giants, it is the same incentive that helps spur methane digesters, solar panels, smart meters, and other important technological advances that can benefit the environment and small farmers.
Tuesday, April 23, 2013
By Bruce Ho
In the Yale Center for Environmental Law and Policy’s second annual Policy Workshop Webinar Series, we looked at “Emerging Issues in Shale Gas Development” with the help of a distinguished group of experts from multiple sectors and fields. In case you missed any of our events this year, or would like to review a presentation, I have catalogued our shale gas webinars and interviews below, including links to summary blog posts and video recordings as well as additional readings, videos, and audio clips so that you can learn more about the issues that each of our speakers discussed.
The Policy Workshop Webinar Series will continue next academic year, 2013-2014, with an examination of environmental law and policy issues in the area of food and agriculture.
Emerging Issues in Shale Gas Development
September 18, 2012: Economics and Risk Assessment (Interview): As a prelude to the webinar series, Sheila Olmstead, a Fellow at Resources for the Future, discussed some of the implications of the shale gas boom. Read more and watch this interview here.
October 10, 2012: Overview of Environmental Impacts: Dr. Jim Saiers, Professor and Associate Dean of Academic Affairs at the Yale School of Forestry and Environmental Studies, presented an overview of shale gas development and its implications for the environment. Read more and watch this webinar here.
November 8, 2012: Climate Impacts: Dr. Ramón Alvarez, a senior scientist at the Environmental Defense Fund (EDF) presented research from a paper he recently co-authored on natural gas use and its implications for climate change. Read more and watch this webinar here.
December 5, 2012: Overview of the Current U.S. Regulatory Framework: Florida State Law Professor Hannah Wiseman provided a comprehensive overview of the current legal regimes governing shale gas development, including state and federal statutes, local zoning, agency directives, and the common law. Read more and watch this webinar here.
January 23, 2013: An Industry Perspective: Mark Boling, President of V+ Development Solutions, a division of Southwestern Energy Company, presented on “Balancing Environmental, Social and Economic Impacts of Shale Gas Development Activities.” Read more and watch this webinar here.
Additional viewing: Mr. Boling’s presentation at the MIT Enterprise Forum of Texas.
February 12, 2013: Electricity Markets and Clean Energy: Jeffrey Logan from the U.S. Department of Energy’s National Renewable Energy Laboratory (NREL) presented on “Natural Gas and U.S. Electric Power Futures.” Read more and watch this webinar here.
March 5, 2013: Measuring Greenhouse Gas Emissions (Interview): Dr. Garvin Heath, a senior scientist at the U.S. Department of Energy’s National Renewable Energy Laboratory (NREL), discussed research that he recently completed on the lifecycle greenhouse gas emissions from shale gas produced from Texas’ Barnett Shale. Read more and watch this interview here.
March 7, 2013: A State Perspective: Tom Hunt from the Colorado Energy Office presented on “The Future of Oil and Gas Production in Colorado.” Read more and watch this webinar here.
March 29, 2013: Community Impacts: Susan Phillips from public radio station WHYY in Philadelphia discussed Marcellus Shale gas development in Pennsylvania. The stories that she presented were originally reported by Ms. Phillips and her colleagues as part of StateImpact Pennsylvania, an award-winning collaboration between WHYY, National Public Radio (NPR), and WITF in Harrisburg. Read more and watch this webinar here.
April 12, 2013: An Environmental Perspective: Kate Sinding, Senior Attorney and Deputy Director of the Natural Resources Defense Council (NRDC)’s New York Program, discussed fracking from the perspective of an environmental organization. Read more and watch this webinar here.
By Bruce Ho
On Friday, April 12, Kate Sinding, Senior Attorney and Deputy Director of the New York Program at the Natural Resource Defense Council (NRDC), discussed fracking from the perspective of an environmental organization as part the Yale Center for Environmental Law and Policy’s Policy Workshop Webinar Series on “Emerging Issues in Shale Gas Development.” Ms. Sinding’s webinar, which was the final event in this year’s webinar series, can be viewed below. Her slides are also available for download here.
State and Local Regulatory Issues for Fracking from YCELP on Vimeo.
In her webinar, Ms. Sinding discussed the many concerns that NRDC and others in the environmental community have about fracking and oil and gas development more broadly, including pollution of aquifers and surface water, air pollution, contributions to climate change from both use of fossil fuels and their production, public health impacts, and impacts on communities where oil and gas drilling occurs. She noted that there are many holes in our current understanding of these impacts – particularly in the area of public health – as well as in the the regulatory regimes needed to adequately protect communities from these impacts in both the short- and long-term. While some states are doing a better job of addressing fracking impacts than others, Ms. Sinding said that NRDC does not believe that any state currently provides an effective model for regulating in this area.
Due to the uncertainty surrounding fracking and other oil and gas impacts, Ms. Sinding noted that NRDC’s national position on fracking is that “NRDC opposes expanded fracking until effective safeguards are in place.” She described this position as:
Pragmatic – working to achieve the necessary transition to a clean energy economy while simultaneously recognizing that fossil fuels are likely to continue to play a role in our energy portfolio for the foreseeable future and working to address the adverse environmental impacts from this oil and gas development.
Flexible – designed to operate across the various political realities in the U.S. and abroad, including states where fracking is not yet occurring (e.g., New York) and states where oil and gas production is occurring and needs more effective environmental safeguards (e.g., Pennsylvania).
Protective – emphasizing that the current regulation of fracking and oil and gas production as a whole is inadequate – due to both numerous exemptions under federal law and a patchwork of state responses – and that more effective regulations and scientific research are needed to protect communities.
In response to these needs, NRDC recently launched a Community Fracking Defense Project, which Ms. Sinding discussed both in her presentation and during the subsequent audience Q&A. More details on this initiative and other NRDC efforts in this area are available on the organization’s Natural Gas Drilling webpage.
Series Recap: Emerging Issues in Shale Gas Development
Ms. Sinding’s webinar concludes the Yale Center for Environmental Law and Policy’s 2012-2013 Policy Workshop Webinar Series on “Emerging Issues in Shale Gas Development.” For a recap of the series, including links to summary blog posts and video recordings from each of our speakers, please click here.
The Policy Workshop Webinar Series will continue next academic year, 2013-2014, with an examination of environmental law and policy issues in the area of food and agriculture.
Friday, April 19, 2013
By Guest Author, Angel Hsu, Project Director, Environmental Performance Index
Roger Peng, an Associate Professor in the Department of Biostatistics at the Johns Hopkins Bloomberg School of Public Health, recently spoke at the Yale School of Forestry & Environmental Studies about his research estimating the health benefits of reducing particulate matter air pollution. He discussed common study designs for understanding environmental pollution health impacts as well as the ways reducing air pollution may improve human health.
I sat down for a brief chat with Dr. Peng on air quality indicators for human health and their policy relevance. Our interview is available here. On another note – Dr. Peng co-authors the Simply Statistics blog – a really excellent resource for those interested in data and statistics!
Monday, April 08, 2013
By Bruce Ho
On Friday, March 29, as part of our Policy Workshop Webinar Series on Emerging Issues in Shale Gas Development, the Yale Center for Environmental Law and Policy invited Susan Phillips from public radio station WHYY in Philadelphia to discuss Marcellus Shale gas development in Pennsylvania. The stories that she presented were originally reported by Ms. Phillips and her colleagues as part of StateImpact Pennsylvania, an award-winning collaboration between WHYY, National Public Radio (NPR), and WITF in Harrisburg.
You can watch Ms. Phillips’s full presentation below, in which she tells the story of Pennsylvania shale gas through interviews with local community members who are experiencing the effects, both good and bad, of shale gas development firsthand.
Community Impacts of Marcellus Shale Gas from YCELP on Vimeo.
In addition to watching her presentation, I highly recommend that you visit the StateImpact Pennsylvania website to learn more about the issues and individuals whom Ms. Phillips introduced. You might also be interested in watching “The Frontlines of Fracking: Community Voices from Southwest Pennsylvania,” a video produced by graduating Masters student and Yale Center for Environmental Law and Policy research assistant Omar Malik last summer.
Next Time in Emerging Issues in Shale Gas Development
On Friday, April 12, from 1-2pm EDT, the Emerging Issues in Shale Gas Development webinar series will host Kate Sinding from the Natural Resources Defense Council (NRDC) to discuss “Fracking: State and Local Regulatory Issues.”
To register for this webinar, please click here. As always, the webinar will be free and open to the public, but registration is required to participate.
By Guest Author, YCELP Staff
Mike K. Thompson is brightening the halls of Yale Law School, quite literally. The associate dean recently launched, with the help of David Barillari, YLS ’15, a pilot program to replace incandescent lighting in the school’s dining hall and auditorium with dimmable LEDs, which are actually brighter than the 100-watt tungsten bulbs currently in use.
While almost all of the lights at the law school are now compact fluorescents (CFLs), the dining hall and auditorium still use the energy-intensive tungsten bulbs. But manufacturers have recently released LEDs capable of replacing them, and Thomspon and Barillari are testing samples to see which ones will best meet the school’s needs.
Thompson also installed the law school’s first Brita hydration system to help reduce the use of single-use plastic bottles. In 2011 – the last year for which statistics are available – total bottled water sales in the US reached 9.1 billion gallons, or 29.2 gallons per capita, which translates into roughly 220 half-liter bottles for every person in the country.
Leaving questions of bottled water safetyand expense aside, the recycling rate for PET, the plastic commonly used in water bottles, is only 29 percent. The Brita system, according to company statistics, can replace as many as 36,000 half-liter, single-use bottles every year.
Or, considering the 220-bottle-per-person statistic, the Brita could offset bottled water use for 163 people annually – nearly the entire YLS class of 2015.
“The Brita makes it a lot easier for students to avoid buying bottled water and do their small part to make the law school more sustainable,” said Halley Epstein, YLS ’14.
Dean Thompson recently received the Yale Center for Environmental Law & Policy’s Environmental Stewardship Award in recognition of these new initiatives and for his leadership in forging new frontiers in sustainability at the school.
“Everyone who spends time at YLS knows that Dean Thompson is the heart and soul of the place,” said Doug Kysar, Joseph M. Field ’55 Professor of Law at YLS. “He is keenly aware of the impacts of everything we do here – on students, on the community, and on the environment – and he works tirelessly to ensure that those impacts are positive and enduring.”
Monday, March 18, 2013
By Susanne Stahl
The Yale Center for Environmental Law & Policy is a joint initiative between Yale Law School and the Yale School of Forestry & Environmental Studies, and we see a lot of interesting and inspiring people come through the doors of both schools throughout the course of a year.
These visionaries will stay a few days, give a lecture or two, and then be on their way again—sometimes with very little record of their visit, the insights they’ve shared, or the passion they’ve breathed into the community inspiring action, change, and possibility.
We launched On the Environment, a podcast series hosted by Center staff and students, to better document these visits and, most importantly, to invite the larger community into the conversation we’re having here about key issues in environmental science, law and policymaking.
The first six podcasts are linked below, but please keep your eye on the On The Environment iTunes or SoundCloud sites, because we will update frequently.
We hope you enjoy the podcasts and the speakers as much as we’ve enjoyed producing the series.
Episode 1: Marissa Knodel, a research assistant at the Center, visits with Andrew Guzman about his new book Overheated: The Human Cost of Climate Change, which explores the real-world consequences of climate change.
Episode 2: (part 1 and part 2): Marissa Knodel talks with Julian Aguon, a writer, activist and attorney, about his work on human and indigenous rights under international law.
Episode 3: (part 1, part 2, and part 3): Aaron Reuben, a Center research assistant, talks with Rolling Stone Contributing Editor Jeff Goodell about his work, the future of environmental journalism, and geoengineering.
If you have comments or suggestions, please don’t hesitate to contact us at firstname.lastname@example.org.
By Josh Galperin, Associate Director
Every year U.S News & World Report ranks the best collages, graduate schools, and professional schools across the country. There is no place in this list for a program as unique as the masters degrees at the Yale School of Forestry and Environmental Studies (FES). This does not mean, however, that the rankings do not speak very highly of opportunities at FES.
For instance, FES offers—and the Yale Center for Environmental Law and Policy supports—a joint program for students of environmental law and policy. This program allows students to earn a law degree and a masters degree at the same time, rather than spending five years pursing the degrees independently.
This joint program is open to students attending FES as well as Yale, Vermont, or Pace law schools, and that is where U.S News comes in. This year the publication ranked Yale Law School as the nation’s top overall law program. Vermont Law School ranked as the top environmental law program, and Pace Law School ranked third in environmental law. These rankings highlight the great educational opportunity for students in the joint JD/FES program. Not only will students have access to the one-of-a-kind resources at FES, should they undertake the joint degree program, they will also have access to three of the best law schools in the United States.