GreenLaw

I watched Bill McKibben’s movie about his “Do the Math” Tour last night, and got to watch some of my good friends and personal environmental heroes getting arrested for civil disobedience protests against the Project XL pipeline. McKibben’s “Do The Math” campaign draws on the civil rights protests against 1960s segregation as well as the 1980s divestiture campaign against South African apartheid as a model for the ultimate 21st century climate protest.

McKibben points out (as he did in his 2012 Rolling Stone article) that the world can only afford to burn another 565 GT of CO2 equivalent by mid-century if it is to avoid catastrophic climate change. Identified reserves held by oil and coal companies exceed this threshold by five times over, and the globe is on track to cross the mid-century threshold in just 15 years. McKibben points out the huge climate externalities of the fossil fuel powered energy system and lays these externalities at the fossil fuel industries’ feet. The fossil fuel industry is fouling the global atmosphere with its combustion products in pursuit of obscene profits without having to pay for its pollution impacts. McKibben hopes divestment from fossil fuel investments by universities and public pension funds will force the fossil fuel industry to limit its climate impact.

All of which I heartily agree with, but McKibben leaves out one important point: the fossil fuel industry can’t make its obscene profits and cause its huge externalities without the willing participation of its accomplices: everyone who burns fossil fuels. That is, pretty much all of us. While it may be fair to lay the environmental externalities of fossil fuel combustion at the feet of the fuel suppliers (who know and expect that that is the result of the end use of their product), these environmental externalities also lay at the feet of the fossil fuel consumers, who benefit from burning oil, gas, and coal without paying for the climate impacts that result. While it might be fair to blame the drug pusher for crimes committed by addicts to support their habit, it seems a little odd to hear the addicts blaming the pusher for their own crimes.

So, here is the simple math that Bill McKibben does not do: 565 GT of CO2 max the planet can burn in the 37 years between now and 2050 works out to a maximum of about 15 GT per year. There are some 7 billion people on earth. More simple math: 15 billion tons per year divided by 7 billion people equals roughly 2 tons per person per year, even assuming zero population growth.

Assuming that for most people their total carbon footprint is about twice their direct personal carbon footprint, that leaves about one ton per person per year globally as a maximum direct carbon footprint. That’s about 100 gallons of gasoline (20 lbs CO2 per gallon). That’s enough to drive the average car 2,100 miles, or a Prius hybrid 5,000 miles. Or it’s enough for a single one-way flight from New York to Los Angeles. Maybe one flight round trip, if one assumes the lowest carbon impacts presented by various carbon calculators.

I don’t know anyone living on that kind of a carbon budget. I try hard, but the best I can do is to aspire to limit my direct footprint to three or four tons per year. The austerity of a sustainable global per-capita carbon footprint forces one to confront one’s true feelings about global inequality: my three ton carbon footprint is only sustainable if one assumes six people elsewhere on the planet living with one-half the sustainable one-ton per capita limit to make up for it.

But, for the past week, as a personal challenge for Earth Week, I have given up direct fossil fuel consumption entirely: I am in the seventh day of completely avoiding using any fossil fuels for heating, lighting, cooking, or transportation. This meant turning off the heat and hot water in my house, and cooking with an electric crockpot and microwave. I pay a few cents extra for 100% wind electricity at my house, so I didn’t have to turn off the lights. Two days this week I biked and kayaked to work; three days this week I rode my electric motorcycle that is charged by solar panels at my house and at the E-House at Pace. The only thing I am really really missing is a hot shower!

Bill McKibben’s “Fossil Free” campaign means divestment. But, as McKibben points out, the technologies to eliminate fossil fuel use are already available. They just happen to be more expensive and less convenient, so consumers don’t choose them — a classic case of consumer environmental externalities. Why not a “Fossil Free” Campaign for a boycott of the fossil fuels? Now that would really bring the fossil fuel industry to its knees.

Tags: 350.org, Bill McKibben, climate change, Fossil Free, sustainability

In 1992, families with children predominated, creating a market for single-family, single-lot homes in suburban greenfields—the American Dream; 2013 sees a different market emerging of younger and smaller households, most of whom seek rental apartments or smaller for-sale homes in urban places, while cities learn to create sustainable neighborhoods to accommodate a new settlement pattern shaped by many American Dreams.

The forthcoming 5^th Assessment report of the Intergovernmental Panel on Climate Change, which contains for the first time a chapter on human settlements, infrastructure, and spatial planning.  Professor John R. Nolon participated in the expert’s meeting regarding this chapter and contributed his article, The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change, and an article by Meg Byerly, Staff Attorney at the Land Use Law Center, A Report to the IPCC on Research Connecting Human Settlements, Infrastructure, and Climate Change.  This chapter is still in draft and we anxiously await its circulation.

These issues are explored in my article for the Fordham Environmental Law Journal entitled Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development.

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David Cassuto (x-post from Animal Blawg)

There’s a story about a Canadian farmer who won a $100 million tax-free, lump sum payment in the Canadian lottery.  When asked what he would do with the money, he replied “I guess I’ll just keep farming until the money’s gone.”

Now let’s talk about animal law.

Asian elephants are endangered.  Elephants in circuses are brutally mistreated.  In 2000, a lawsuit was brought under the Endangered Species Act, claiming that the elephants’ treatment by Feld Entertainment (parent of Ringling Brothers) violated the “No Take” provision of the ESA and should be enjoined.  In late 2009, following a lengthy litigation a judge threw out the case after deciding that the former circus worker who was the lead plaintiff in the case lacked credibility and was paid for his testimony and that there was therefore no standing for the plaintiffs to sue.  The decision was a travesty on many levels (some of which I’ve blogged about elsewhere).  Perhaps most disturbing was the fact that the treatment of the elephants became wholly ancillary to a ridiculous debate about people.  Continue Reading »

Tags: animal law, animal suffering, circus animals, Endangered Species Act, Feld Entertainment, Ringling Brothers

David Cassuto (x-posted at Animal Blawg)

Agricultural animals are not covered by the federal Animal Welfare Act.  Many states also exclude them from their anti-cruelty laws.  As a result, they have virtually no legal protections at all and spend their short lives in horrific misery before being turned into salable flesh (or, in the case of laying hens, into compost).  However, there are a few federal regulations that still apply and some states do not exempt them from cruelty protections. The most powerful force for animal protection, though, is public outrage.  Most people do not know how animals are treated in agriculture and are outraged when they learn.  Consequently, activists sometimes chronicle some of the more egregious abuses in undercover videos.  The videos themselves document everything from standard procedures in factory farms to deliberate, conscience-shocking acts of sadism.

Faced with these abuses, how have state legislatures reacted?  By turning the videographers into criminals.  People who expose the animal abuses now face draconian penalties and felony status.  So-called “Ag-Gag” bills have become law in a dozen states with several more poised to make the leap.  Under one proposed law, named the Animal and Ecological Terrorism Act  (you can’t make this stuff up), those convicted of documenting animal abuse at agricultural facilities would potentially face felony charges and have their name added to a “terrorist registry.”  Continue Reading »

Tags: Ag-gag laws, animal abuse, animal cruelty, factory farming

While New York and New Jersey recover physically from Tropical Storm Sandy, law professors and practitioners are examining the adequacy of the legal system to respond to worsening storms associated with climate change.  Legal Issues in Managed Coastal Retreat was the name of a forum on the topic at Columbia Law School on March 28^th. The following week the Maurice A. Deane School of Law at Hofstra explored Recovery and Rebuilding After Superstorm Sandy – Legal Perspectives. One of several paradigm changes in environmental and land use law that I explore in an essay written for Fordham’s Environmental Law Review’s 20^th Anniversary issue is the shift in public opinion and legal policy between 1992 and 2012 regarding the safety and wisdom of development in vulnerable coastal areas, which has refocused the law from accommodating and controlling a rush to the shore to developing novel strategies for retreating from the sea.

These issues are explored in my articles for the Brooklyn Law Review entitled Land Use and Climate Change: Lawyers Negotiating Above Regulation, and for the Fordham Environmental Law Journal entitled Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development.

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No, this is not an early April-fools blog caption, though I realize it sounds like a bit of academic self parody. This week’s arguments in the constitutional challenges to the Defense of Marriage Act (banning federal recognition of state-recognized same-sex marriages) and California’s Proposition 8 (the ballot initiative that amended the California Constitution in order to ban same-sex marriage) really do have a connection to climate change law.

Both problems present a classic question of the extent to which law is capable of changing destructive social norms in a democracy. Marriage equality advocates seek law’s assistance in overcoming an ingrained historical social norm that condemned intimate same-sex relationships and deny individual fulfillment. Climate legislation advocates seek law’s assistance in changing socially ingrained fossil-fuel powered consumption patterns that are destructive to the global environment.

Frank Bruni’s column in yesterday’s Times argues that the social and political movement towards marriage equality is already inevitable — that the Supreme Court’s decision in the DOMA and Prop 8 cases may hasten or delay universal marriage equality (depending on which way, and how broadly or narrowly, the Court rules), but will not ultimately drive the social change. He compares the marriage equality cases to the Supreme Court’s failure to resolve the national debate on abortion rights in Roe v. Wade or gun control issues in Heller v District of Columbia.

But Bruni doesn’t mention the Supreme Court case that arguably had the biggest impact on changing American social and cultural norms — the school desegregation case, Brown v. Board of Education. One cannot imagine the U.S. political culture achieving desegregation in schools and in society at large without the huge push given by the Supreme Court’s holding that the Equal Protection clause forbade school segregation. This societal push by the Supreme Court (which was condemned at the time by such prominent legal scholars as Herbert Wechsler) helped set the political stage for the Civil Rights Act of 1964, despite the short term political backlash against Brown.

Similarly, the social movement towards marriage equality received a helpful judicial push in the state high-court cases in Massachusetts, Hawaii, California, and Iowa finding State-equal protection and fundamental rights interests in marriage equality. While the immediate political backlash in two of those three states was negative, the positive example of recognition of same sex marriages helped set the stage, ultimately, for political acceptance in those states that have now recognized same-sex marriage trough political means. If marriage equality is now a political inevitability, this political inevitability got some judicial help along the way, as it is hard to imagine the political system coming around to marriage equality without the judicial push.

I find it equally hard to imagine that the political system will come around to seriously addressing fossil fuel consumption without some external push. Entrenched social assumptions, patterns of settlement and employment, infrastructure investments, and cognitive biases favoring current consumption aver avoidance of future harm all work against a political consensus in favor of implementing the societal changes necessary to address climate change — which may be on the order of magnitude of the school desegregation upheavals. Is there room for a climate Brown v Board of Education? Like the NAACP Legal Defense Fund in Brown, Our Children’s Trust is sponsoring climate change litigation based on a constitutional Public Trust theory. Just as Brown v Board of Education helped to enlighten the polity that segregation is a destructive system that should not be tolerated, and Goodridge v Department of Public Health led to political acceptance of marriage equality in Massachusetts that might have been a long time coming otherwise, perhaps one of the public trust cases seeking to require a state response to climate change will perform a similar political function. One can only hope. On the other hand, when I suggested in my Environmental Law class the other night that the level of price incentive necessary to reduce U.S per-capita gas consumption by 80% might be as much as $25 per gallon, one student asked, “Wouldn’t that be a violation of the constitutional right to travel?”

By Law Professor Shi Hua, Pace Law Visiting Scholar

China is a big country (vast size, large population, rapidly developing economy and diversified climates and geographic conditions). It has 5,000 years of history, so it has much traditional culture. People were strongly influenced by the thoughts of Confucius, and always liked to live in a harmonious environment and sometimes didn’t know how to solve disputes. The philosophy of Confucius emphasized the relationship between people. That is why many of people think China is a “Guanxi society.” That means people tend to know “whom” and don’t know “how.” The law played little role in China’s past.

Today, it is totally different. After the economic reform and policy of openness, under the leadership of Deng XiaoPing, China has enacted many kinds of laws. We have different levels of legislative, judicial and administrative authority. The constitutional law is the fundamental law of the country. All other laws, such as civil law, criminal law, environmental law, and so on, are below the constitution and cannot conflict with it. The Environmental Protection Law of the People’s Republic of China is the first major environmental framework law. Below this law are the laws of anti-pollution, air, water, waste, noise, marine environment, mineral resource, grassland law, natural reserve law, species, water pollution law, clean production law, environmental impact assessment law and so on. So I think we have a good environmental law system. The problem now is how to implement these laws, how to balance the value of economic prosperity and the value of environmental protection, how to adjust the relationship between the government and enterprise, and how to carry out the law transparently, and how to eliminate local economic protectionism.

A characteristic of Chinese environment law is its circular economic law enacted in 2008. The circular economy promoted the harmony between the economic system and the ecosystem. Because China is a developing country, even though it has many resources, its rapid economic growth demands major supplies of all basic industrial commodities. The circular economic law requires people to reduce the consumption of resources, reduce the production and discharge of waste, and improve the reutilization and recycling level of wastes. I think the circular law is a creative action for China. After enacting this law, we have saved much natural resources and supplied many job opportunities for people.

In addition, with the change in climate and weather, China is pursuing a number of environmental policies that seek to mitigate greenhouse gas emissions. The chief efforts have focused on energy efficiency and conservation, renewable energy resources, industrial restructuring, and implementation of the Kyoto Protocol’s Clean Development Mechanism, even though I think there are many serious concerns about how they would be implemented and whether this goal could be effectively achieved.

What I’d like mention here is the development of environmental law in the law schools of China, especially in Tongji University in Shanghai, where I teach. Almost every university in China has a law school. The Ministry of Education requires every law school to have an environmental law course for law bachelors degree students. Ten years ago, Chinese law schools had 14 required courses, and environmental law was not required. Now, there are 16 required courses plus a required course in environmental law and a required course in labor and social insurance law.

The definition of circular economy is pointed out by Professor Zhu Da-Jian (an expert in circular economics at Tongji). China’s Circular Economic Law has used ideas from many of Dr. Zhu’s circular economic articles. Tongji University’s Institute of Environment for Sustainable Development (IESD, also called “sustainability oriented university”) was set up by UNEP in 2002. 2012 marked the 10th anniversary of the UNEP-Tongji partnership in the joint IESD in Shanghai. Over the past 10 years, IESD has played a key role in capacity building and facilitating China-Africa environmental cooperation. IESD has hosted an annual international student conference on environment and sustainability since 2010, bringing over 300 students, from Africa and other countries, each year to Shanghai. Capacity building and technology transfer through China-Africa research projects has been ongoing, including mobilization of financial resources for joint activities. IESD assisted with the translation of UNEP’s Green Economy report amongst other reports, and also supported the launch of the Global Universities Partnership on Environment and Sustainability (GUPES) on 5 June 2012, in the run up to Rio+20. IESD has a very close cooperative relationship in many fields (teaching, research and so on) with the Tongji law school. Tongji University puts an emphasis on academic cooperation in developing environmental law between IESD and our law school. In all, the prospects for environmental law in China and Tongji University are very bright.

Professor Hua Shi
Law School of Tongji University
Shanghai, P.R. China

Today’s decision in the Los Angeles County case is a quick read. So quick, I thought I was just reading the syllabus. Still looking for an explanation of exactly how the Ninth Circuit decision “cannot be squared” with the rule of the Miccosukkee case that a downstream flow cannot be a “discharge of a pollutant” triggering the NPDES permitting requirement. Just as everyone on the case agreed that downstream flows don’t trigger the permit requirement, everyone also agreed that the County did require a permit. The Ninth Circuit had simply enforced the permit. Several briefs tried to explain this to the Court (including an amicus brief filed by the Pace Environmental Litigation Clinic on behalf of sportsmen’s groups).

Of course, our infallible Supreme Court could not possibly have granted cert on a question not really presented by the case, could it?

From the Pace Law Newswire:

The National Resources Defense Council invited Professor Franz Litz to participate in a panel it convened this week to discuss the Clean Air Act. Representatives from the NRDC stated that President Obama could cut power plant emissions by a third by 2025 if he were to invoke the Clean Air Act. Furthermore, they said, the President would not need Congressional approval to do so.

Prof. Litz, Executive Director of the Pace Energy & Climate Center, said he had been invited to speak about how states would react to the proposal.

“There is inherent flexibility in this proposal,” Prof. Litz is quoted as saying in an article that ran in “USA Today.”

That article can be read here.

Tags: Energy; Climate Change; Policy; President; Obama; NRDC; Emissions; Clean Air Act

Franz Litz is a Professor of Law and the Executive Director of the Pace Energy and Climate Center. He is currently at the COP18 climate talks in Doha. Here is his on-the-ground perspective of the talks:

Greetings from Doha!

I wish this article from the Economist (Theatre of the absurd: After three failures, this year’s UN climate summit has only modest aims) were less true.

The city of Doha is the poster child for nearly all that is wrong with our drive to grow at any cost.  The city’s skyline—as architecturally interesting as it is to some–consists of skyscrapers that are at 50% occupancy with several more under construction. The Qataris seem to think that the economy isn’t using up resources fast enough, so they are building things no one needs in hopes the need will follow. Why would the UNFCCC lend its imprimatur to this place that is ready to put lots of carbon into the air just for a chance to be the convention center and sports destination of the Middle East? Can the road to a zero carbon economy go through this unsustainable city in the desert with its half-empty skyline built to rival Manhattan?

The Economist goes a bit far in suggesting that the COP18 meeting is as absurd as the city hosting it. COP18 is a carbon-intensive affair, for sure.  And no monumental breakthrough is expected to come out of this meeting. But what is the alternative?  Sit home and “phone it in”?  Wait for the climate to fix itself?

For my part, I am trying to justify the CO2 emitted to get me here by presenting a soon-to-be-released report I authored with a World Resources Institute colleague, Nicholas Bianco.  Our legal and technical analysis shows that the United States can meet its greenhouse gas reductions goal (17% below 2005 levels by 2020) if the Obama Administration pursues aggressive policies under the Clean Air Act to reduce carbon pollution.  This is an update of the report we did two years ago that was very well received across dozens of delegations and by the UN Executive Secretary herself in Cancun—the year that Congress failed to pass climate legislation and many other countries were ready to walk away from their commitments to act.

We’ve briefed numerous delegations again this year here in Doha. The study is still in the final stages of extensive peer-review. We hope the study will be a roadmap for U.S. advocates  and government decision makers on what policies to pursue, as well as a signal to the international community that the U.S. can do its part and so they need to do their parts as well.  (Spoiler alert: the biggest reductions come from regulating existing power plants, eliminating HFCs and preventing methane emissions from natural gas systems.)

There is no telling whether the carbon exhausted to get us here will prove carbon well spent.  I’d like to think that building confidence across other delegations that Obama has the power to move things in the right direction will lead to greater action in other countries, thereby more than offsetting my contribution to atmosphere. Probably just a rationalization. More likely is that I have to be one of the silly optimists who believes we’ll change course as a world community one of these years and take the steps necessary to reduce emissions across all economies everywhere.

Is this all “theatre of the absurd” as the Economist dubs it?  Time will tell.  If only we had more time.

Best,

Franz

Tags: climate change, COP18, Doha, Economist, Obama