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Will Sodsaver Save the Prairie Pothole Region?

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Joe McCartin, MJLST Staff

In recent years, high crop and farmland prices, in combination with technological advances in agriculture, have pushed crop producers to convert virgin prairie at an alarming rate. Minnesota, for example, was once covered in prairie. Yet, today only 1% remains of the 18 million acres that once covered the state, and that too has come under threat. Exacerbating the problem is the fact that federal subsidies and crop insurance treated crops equally even if they were being grown in an ecologically destructive manner. A crop producer received taxpayer support even for corn and soybeans grown on virgin prairie that had just been plowed-under. These were often areas once considered marginal for crop production, but they held enormously high value for wildlife and helped protect water quality from other agricultural erosion and pesticide and fertilizer pollution.

The recently passed Farm Bill, the Federal Agricultural Reform and Risk Management Act of 2014, included a new program, Sodsaver, proposed by Ducks Unlimited and advanced by a diverse array of organizations, from the Theodore Roosevelt Conservation Partnership and Trout Unlimited to the Union of Concerned Scientists and the World Wildlife Fund. The program aims to shift the incentives that make the plowing of virgin prairie so appealing. It works by preventing farmers from enrolling virgin prairie, land that has not been planted with crops previously, in the federal crop insurance program. Since subsidies will slowly be phased-out for most crops, preventing access to crop insurance will prevent taxpayers from footing the bill for the ecologically damaging process of planting on virgin prairie. By forcing farmers to rely entirely on free-market forces for crops grown on this land, Sodsaver hopes to make the often lucrative decision to plow the prairie riskier for crop producers. Unfortunately, the program was only implemented in a limited number of states that make up the Prairie Pothole Region - Minnesota, Montana, the Dakotas, Iowa, and Nebraska.

Because the program does not mandate that crop producers preserve their native, virgin prairie, but merely withholds taxpayer support if the decision is made, it is forecast to save taxpayers nearly $120 million over 10 years. These savings could grow substantially if the program had not been limited to a handful of states. However, the important question remains unanswered, will this change the behavior of crop producers. While removing crop insurance coverage seems to be a logical first step in stemming the tide of prairie loss, it is only a first step. Whether it will be enough will depend heavily on crop prices and actions by grassland states to protect and restore these priceless ecological resources. A diverse array of migratory waterfowl and songbirds very survival depends on the success of Sodsaver in these trial states, and the program's expansion into all grassland states.

The author served on the Policy Council of the Theodore Roosevelt Conservation Partnership, one of the supporters of the Sodsaver program.

Daniel Schueppert, MJLST Staff

With the recent celebration of Mardi Gras not long past, Louisiana and other southern coastal states are once again making national news. Meanwhile, in the background of these festivities, lawyers and the courts are toiling away at ongoing litigation arising from the Deep Water Horizon oil spill: a spill that began almost four years ago, lasted at least eighty-seven days, and caused the deaths of eleven people.

In 2012 Daniel Farber published an article titled The BP Blowout and the Social and Environmental Erosion of the Louisiana Coast in vol. 13 of the Minnesota Journal of Law, Science & Technology. In his article, Professor Farber analyzed the pre-spill, post-spill, and anticipated condition of the oil-affected coastal states. Many of the issues identified in his paper continue to be troubling in light of the disruption caused by the oil spill. In addition to the environmental and regulatory issues that face these states, the Eastern District of Louisiana is embroiled in a prolonged legal battle related to destruction of digital evidence that might have made a difference before or during the well blowout.

Kurt Mix was a drilling engineer for BP assigned to the Deep Water Horizon at the time of the blowout off the coast of Louisiana in April, 2010. In the course of his work, Mix had access to, and a degree of control over the production of, internal BP data about the rate and amount of oil flowing out of the damaged Macondo Prospect well upon which the Deep Water Horizon was sited. BP publicly issued statements that the well had a flow rate at the time of about 5,000 barrels daily, but during the same period, BP and Mix's team allegedly knew that the rate was closer to 64,000 to 146,000 barrels per day, according the government's related complaint against BP directly.

In May, 2012 "Mix was charged by the United States in a two count indictment with obstruction of justice in violation of 18 U.S.C. § 1512(c)(1). . . . based on his allegedly deleting certain iPhone texts to BP's then-Drilling Engineering Manager . . . ." for the region and a third party contractor who was assisting with the spill and blowout response. U.S. v. Mix, 12-171, 2012 WL 2420016 (E.D. La. 2012). Mix was found guilty on this obstruction charge despite having previously released that information to U.S. government representatives, and according to a Forbes article, Mix's disclosures were a primary source comprising the basis of the government's claims against BP. He is the only natural person to have had claims related to the oil spill stick. The content of the texts themselves have so far not been recovered despite his conviction, which raises questions about the procedural management and prosecutorial discretion used in this collection of cases related to the Deep Water Horizon blowout. Following Mix's conviction, there has been a procedural dance of more than twenty actions between the United States and Mix, touching on issues of attorney privilege, judicial conflicts of interest, criminal and civil procedure, and proportional liability for allegations based on extinct digital evidence.

by Myanna Dellinger, JD, MA - Associate Professor at Western State College of Law and Director of the Institute for Global Law and Policy

Extremely cold weather conditions still haunt the American North and Northeast. Meanwhile, California is suffering through July temperatures in January and the worst drought since 1895. No doubt about it, we are witnessing ever more frequent extreme weather events. Since nations still can't agree on what to do about this urgent problem, it may be up to local actors such as cities, states, companies, and NGOs to take the required action now.

Nations have agreed to "try" to limit global warming to 2° C and to agree on a new climate treaty by 2015 to take effect by 2020, but in reality, we are headed towards a 5.3° C increase. Even if the 2° degree target were to be met, vast ecological and economic damage would still occur in the form of, for instance, severe economic disruptions to our food and water supply.

Disregarding climate change is technologically risky too: to meet the target of keeping concentrations of CO2 below the most recently agreed-upon threshold of 500 ppm, future generations would have to literally pull CO2 out of the air with either machinery that does not yet exist and may never become technically or economically feasible, or with bioenergy crops that absorb CO2, which would compete with food production.

My article "Localizing Climate Change" argues that effective and urgent action is likely to come from the local and not the national or international levels.

Making it Personal: The Key to Climate Change Action

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by Brandon Palmen, UMN Law Student, MJLST Executive Editor

Climate change is the ultimate global governance challenge, right? It's an intractable problem, demanding a masterfully coordinated international response and a delicate political solution, balancing entrenched economic interests against deeply-discounted, diffuse future harms that are still highly uncertain. But what if that approach to the problem were turned on its head? We often hear that the earth will likely warm 3-5 degrees centigrade (+/- 2 degrees), on average, over the next hundred years, and we may wonder whether that's as painful as higher utility bills and the fear of losing business and jobs to free-riding overseas competitors. What if, instead, Americans asking "what's in it for me?" could just go online and look up their home towns, the lakes where they vacation, the mountains where they ski, and fields where their crops are grown, and obtain predictions of how climate change is likely to impact the places they actually live and work?

A new climate change viewing tool from the U.S. Geological Survey is a first step toward changing that paradigm. The tool consolidates and averages temperature change predictions based on numerous climate change models and displays them on a map. The result is beautiful in its simplicity; like a weather map, it allows everyday information consumers to begin to understand how climate change will affect their lives on a daily basis, making what had been an abstract concept of "harm" more tangible and actionable. So far, the tool appears to use pre-calculated, regional values and static images (to support high-volume delivery over the internet, no doubt), and switching between models reveals fascinatingly wide predictive discrepancies. But it effectively communicates the central trend of climate change research, and suggests the possibility of developing a similar tool that could provide more granular data, either by incorporating the models and crunching numbers in real time, or by extrapolating missing values from neighboring data points. Google Earth also allows users to view climate change predictions geographically, but the accessibility of the USGS tool may give it greater impact with the general public.

There are still challenging bridges to be crossed — translation of what "N-degree" temperature changes will likely have on particular species, and "tagging," "fencing," or "painting" of specific tracts of land with those species — but it is plausible that within a few years, we will be able to obtain tailored predictions of climate change's impact on the environments that actually matter to us — the ones in which we live. Of course those predictions will be imprecise or even wholly incorrect, but if they're based on the best-available climate models, coupled with discoverable information about local geographic features, they'll be no worse than many other prognostications that grip everyday experience, like stock market analysis and diet/nutrition advice. Maybe the problem with public climate change debate is that it's too scientific, in the sense that scientists know the limitations of their knowledge and models, and are wary of "defrauding" the public by drawing inductive conclusions that aren't directly confirmed by evidence. Or maybe there's just no good way to integrate the best climate models with local environmental and economic knowledge ... yet.

Well, so what? Isn't tackling climate change still an intractable global political problem? Maybe not. The more that people understand about the impacts climate change will have on them personally, the more likely they are to personally take action to ameliorate climate change, even absent meaningful top-down climate change policy. And while global governance may be beyond the reach of most individuals, local and state programs are not so far removed from private participation. In her recent article, Localizing Climate Change Action, Myanna Dellinger examines several such "home-grown" programs, and concludes that they may be an important component of climate change mitigation. Minnesotans are probably most worried about climate change's impact on snow storms, lake health, and crop yields, while Arizonans might worry more about drought and fragile desert ecosystems, and Floridians might worry about hurricanes and beach tourism. If all of these local groups are motivated by the same fundamental problem, their actions may be self-coordinating in effect, even if they are not coordinated by design.

Mucking Up the Clean Air Act

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by David Tibbals, UMN Law Student, MJLST Staff

When does "mobile" mean "stationary"?

Noah Webster's response should be obvious. But it appears the U.S. Supreme Court is preparing to weigh in on that very question.

Just last week, the Court granted certiorari in the case of Utility Air Regulatory Group v. Environmental Protection Agency, an amalgam of six separate lawsuits questioning the authority of the EPA to broaden its regulation of greenhouse gases. At issue is the EPA's decision to begin enforcing regulatory and permitting programs against stationary producers of greenhouse gases, such as coal-fired power plants.

The case can be viewed as a direct descendant of 2007's Massachusetts v. EPA, in which the Court held that the EPA can regulate greenhouse gases, despite the fact that they weren't actually recognized as "air pollutants" covered under the Clean Air Act. The Court's ruling, however, was limited to greenhouse gases emitted by mobile sources, namely new automobiles.

Although the Court's grant doesn't challenge the general characterization of greenhouse gases as "air pollutants," it poses a single question, the answer to which could effect a dramatic change in agency rulemaking. Is the EPA allowed to "trigger" permitting requirements for stationary sources based solely on its past regulation of mobile sources?

In essence, does "mobile" mean "stationary"?

The only prudent answer to that question is an emphatic "no." Allowing the EPA--or any agency, for that matter--to premise broadened jurisdiction in such a manner vests an inordinate amount of power in a body well-nigh immune from the political process. Although it's heretical to mention in a post-Chevron world, Locke and Montesquieu urged the incompatibility of such extra-legislative lawmaking power with democratic principles.

But a more eye-opening reason for answering in the negative is the adverse economic blow such expanded regulation will strike. Expanding regulation to "stationary" sources--an incredibly equivocal characterization--will inevitably result in increased compliance costs. This increase is already being realized by producers and consumers alike; a power company in Mississippi has raised electricity rates by 15% this year to fund a new, fully-compliant plant.

By the way, that new plant has already run $1.4 billion over budget.

The Court is expected to announce its judgment next summer. If it is interested in relying on democratic principles and catalyzing a languid economy, it will overrule expanded regulation and prevent the EPA from further soiling the Clean Air Act.

by Chris Evans, UMN Law Student, MJLST Executive Editor

Thumbnail-Chris-Evans.jpg Less than 200 miles from the site of 2010's Horizon Deepwater blowout, another environmental disaster threatens a community in the Gulf Coast region. In early August, 2012, a massive sinkhole opened up beneath the Bayou Corne near a small residential community in Assumption Parish, Louisiana. Filled with brine, oil, and natural gas, the sinkhole has since grown to 8 acres, forcing the evacuation of 300 residents, and officials apparently don't know when (or if) the area will again be habitable.

Assumption-Parish-Sinkhole-large.jpg

Below the Bayou Corne, the country's largest independent brine (used in a variety of industrial processes) producer, Texas Brine, had been removing brine from an underground salt cavern for over twenty-five years up until June 2011, when it plugged the cavern. Texas Brine also, with the permission of Louisiana Department of Natural Resources, deposited naturally-occurring radioactive material in the cavern. The USGS has determined the collapse of the cavern caused the sinkhole. Although Texas Brine has been working with authorities to monitor and remedy the disaster, the company sought an injunction against an order to drill new wells to install additional monitoring equipment. Texas Brine dropped that lawsuit when Louisiana agreed to instead require the company to perform 3D seismic imaging to evaluate the cavern.

Juggling GMOs: Balancing Benefits, Risks, & Unknowns

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by George Kidd, UMN Law Student, MJLST Staff

Thumbnail-George-Kidd.jpgThe recent multi-billion dollar loss as a result of the 5th worst drought ever recorded in U.S. history adds fuel to an already raging debate over genetically modified organisms ("GMOs"). Amanda Welters, in "Striking a Balance: Revising USDA Regulations to Promote Competition Without Stifling Innovation," delivers a fantastic overview of key issues in the GMO debate while also introducing novel legislative ideas garnered from the pharmaceutical industry. Ms. Welters' article provides important insights into the continuing struggle to provide society with an optimal outcome.

by David Hanna, MJLST Lead Article Editor, UMN J.D./M.S. in Chemistry Joint Degree Candidate

Thumbnail-David-Hanna-II.jpgDuring a time when environmental issues flood the headlines of newspapers, magazine covers, and television broadcasts, it is hard not to come across sustainable efforts by concerned companies and institutions trying to proactively tackle these environmental issues. While these pointed campaigns and programs deserve some recognition, there is plenty of room for improvement and this improvement needs immediate legal and regulatory acknowledgment.

Being Green by Helping the Giants Beat the Eagles

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by Nathanial Weimer, UMN Law Student, MJLST Staff

Thumbnail-Nathanial-Weimer.jpgSporting events are a nightmare in terms of the environment. The vast number of spectators involved--over 16 million paying fans attended NFL games last year, according to NBC Sports--leave behind massive amounts of trash, while stadiums face huge challenges with water conservation and electricity consumption on game days. Fans also have to transport themselves to and from the event, using large quantities of fuel. And, of course, the problem extends to all stadium events, whether professional or college, football or a different sport. Such a widespread problem needs a powerful solution, one that goes beyond merely suggesting that teams "do the right thing". The fact is, teams that effectively deal with this problem must be rewarded, and those rewards must contribute to on-field success. By linking sustainability to team performance, the green movement can benefit from the competitive spirit that drives sports.

Got GMOs?

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by Ude Lu, UMN Law Student, MJLST Staff.

Ude-Lue.jpgGMOs, genetically modified organisms, have long been a part of our daily diet. For example, most of the soybeans and corn on the supermarket shelves are GMOs. Currently, the issue of whether these GMOs should be labeled so that customers can make informed purchases is in a heated debate in California. California Proposition 37, which would require labeling of GMOs, will soon be voted in November this year. Proponents from both sides have poured millions of dollars into the campaign.