Barrack Obama’s iconic campaign platform of “change” helped earn him the Presidency. Yet, while the President has worked hard to reform a broken healthcare system, few other sweeping reforms have materialized. Naturally, President Obama cannot be denounced for failing to implement all of his legislative agenda, as the Founding Fathers intentionally formed an American government that would disperse and dilute political power. Similarly, a government’s value does not lie solely in its ability to implement sweeping and comprehensive change. If this were the case, totalitarianism would be much more efficient and desirable than its democratic counterpart.

However, many have recently criticized President Obama on the grounds that his campaign promise to transform America into a greener nation remains unaddressed and unfulfilled more than 20 months after his inauguration.

Several high profile organizations, such as Rolling Stone magazine and Greenpeace, have published scathing remarks regarding Obama’s failure to address today’s most pressing environmental issue, global climate change. Indeed, the Waxman-Markey bill, which for some appeared to be a promising administrative step towards curbing carbon emissions, remains only a vague and distant memory. Most allegations pertain to what the President is not doing and claim that Obama is dodging pressing issues.

These frustrations stem not only from the complete failure of the Waxman-Markey bill, which some argue the Administration failed to adequately support, but from Obama’s lenient approach to the BP oil spill. As the Rolling Stone political correspondent points out in his article, “Climate Bill, R.I.P”, Obama failed to take advantage of the greatest environmental catastrophe in American history. Although the public’s disapproval of large oil conglomerates soared, the president failed to initiate any meaningful discourse on ecological issues let alone forge environmental policies.

In short, Obama has adopted a relatively passive political stance on many environmental topics. Some claim this lack of conviction is all too reminiscent of previous presidencies and diverges from his promise of political change. This passivity has allowed opponents of environmental  legislation to easily preserve the status-quo. The problem of course is that most climate scientists tells us maintaining the status-quo jeopardizes the globe’s social, environmental, and economic health.

While the political will may not exist at the moment to implement a top-down remedy for climate change, it seems that recent pro-environment trends remain strong within American society. Many entrepreneurs and small-businesses have taken the opportunity to capitalize on the green movement and the increasing demand for sustainable products. Such market movements demonstrate that social preferences, which equate to economic opportunities, can facilitate a healthy relationship between the economy and the environment. Accordingly, these entrepreneurs should be supported as they help direct America towards a more sustainable future.

The Thomson Reuters Foundation subscribes to a similar theory. The foundation is the recent developer of TrustLaw, an online service designed to provide non-profits and social entrepreneurs with free legal services. It its own words, “TrustLaw believes clients have the potential to address many of the world’s environmental, humanitarian and social problems, but their effectiveness may be impeded by lack of legal resources.” This pro bono site offers a valuable service to small businesses and NGOs working to improve their communities. Such cooperation and communication is essential to the promotion of eco-friendly lifestyles and the realization of pro-environmental change.

Posted by Derek on October 22, 2010 at 4:28pm.

I was recently scrolling through Twitter when I came across this tweet from CNN breaking news: “BP abandons use of diamond saw, will return to using cutter on robotic arm.”

Wait a minute, I thought to myself. What? It took me a moment to realize the terminology was referring to the recent devastation in the gulf and not some perfect newly cut diamond ring or a national robotics convention.

For over a month now, after the BP oil spill began on April 20, the media has provided lists of solutions and methods to stop the oil in the gulf. But with the focus on words like “top kill” “junk shot” and “top hat”, many people in search of answers have been left with nothing more than confusion. Caught up on the newest solution being attempted (and the complex names) most failed to see the bigger picture.

With the BP oil spill now the largest offshore spill in U.S. history, the media and the U.S. government have turned their attention to question BP’s liability. But with something of this never before seen magnitude, where does responsibility fall? As a company, what liabilities does BP face? While everyone may have their favorite oil spill solution (BP received 8,000 suggestions from people worldwide) the clean-up jargon is the least of BP’s worries.

On June 1, the Justice Department announced a criminal investigation into the spill. The federal government says it is looking deeply into the incident to see if any laws were broken, including violations of the Clean Water Act and the Oil Pollution Act of 1990. Whatever they may find, they are ready to hold BP liable.

But with still no permanent solution in sight, who’s to blame? Is it true that BP might forever stand as “Biggest Polluter”? Should all those “Drill Baby Drill” supporters report to the gulf to help clean up? Although there seems to be no end to the blame game, 76 percent of Americans say they disapprove of the way BP is handling the oil spill, leaving BP in quite a sticky situation, both literally and metaphorically.

The first thing BP needs is to find a fast and effective solution to stop the ongoing leak. Although several preventive efforts have been attempted, the longer it takes to find a permanent solution the more anger, resentment and ultimate destruction will result. Secondly, if laws were broken, BP should come forward with full honesty and admit their mistakes. It makes no sense to try and cover up evidence or information when it will certainly get out anyway. BP must comply with all investigations to find out what really went wrong – and how we can prevent it from happening again. Lastly, they must take financial responsibility for both the environmental and economical damages to the region, some of which will be left completely devastated.

There is no question that the oil spill itself is a great tragedy. Lives have been lost, hundreds of animals and wildlife have been killed, and miles upon miles of ocean have been contaminated. Only time will tell if BP will step up to the plate and take on their full responsibilities as a company. This situation not only has the possibility to hurt BP’s public image but also land them with criminal charges. What do you think BP’s next move should be?

Posted by Rachel on June 7, 2010 at 2:15pm.

Courtesy of: eco+historical

In late April , the EPA’s new lead paint rules went into effect.  These new regulations impact homeowners, child-occupied facilities, and construction professionals.  The April 22, 2010 rules are composed of three main elements:

1. periodic training,
2. certification of companies and its workforce,
3. and lead-safe work practices.

This EPA program requires contractors and subcontractors to undergo training in dealing with lead paint before they work on houses, child care facilities or schools built before 1978. Why is this news if  the EPA already had a lead paint disclosure program in place?

Click here to view a video of frequently asked questions by real estate agents and brokers about lead paint renovation regulation compliance.

Because these new rules apply to homes and multi-family buildings built before 1978, they may impact as much as 80 percent of the U.S. housing stock, or approximately 79 million homes. These rules also apply to jobs as diverse as additions to existing homes or as small as window installations or painting because the rule kicks in whenever at least six square feet of interior space or at least 20 square feet of exterior space is affected. The fine for not having proper certification is an attention-getting $32,000 per offense and can range to a maximum of $37,500.

The rule is intended to curb exposure to lead, which is a health hazard. Ingesting or inhaling lead can lead to problems in vulnerable populations, especially among pregnant women and children under the age of 6, who are most susceptible to possible brain damage. Lead exposure has been linked to reduced IQ, learning disabilities, and behavior problems in children as well as high blood pressure and hypertension in adults. Lead poisoning is becoming less common, yet it is still a concern as just 10 micrograms of lead per deciliter of blood require medical intervention, according to the CDC.

Small businesses that perform renovation, rehabilitation, or painting work should refer to the EPA’s Compliance Guide which summarizes the requirements of the EPA’s April 22, 2010 Lead-Based Paint Renovation, Repair and Painting Program Rule.

Consumers should pay attention to this development as well.  Industry has been bellyaching over these new regulations for the past few months; yet, many small construction outfits may not be aware of the new rules or, if they are aware of them, may be planning not to follow them.  Others argue that they will get out of the rehab and renovation business in the pre-1978 building market.  Yet another contingent argues that they will have to pass on the costs of this program to the consumer and that these costs will range from several hundred to several thousand dollars per job.

What do these doom and gloom predictions mean for you?

• It may be harder to find a qualified construction firm willing to take on your painting, renovation, or rehabilitation project.
• Research your contractor.  Ask your professional to provide you with verification that she or he has undergone the EPA-approved training and received the proper certification.
• Pay attention to your invoices.  If your home was built after 1978, you need not be concerned with lead paint exposure.  Therefore, if you come across a Lead Safe Work Practice Fee (“LSWPF”) in your contractor’s invoice, beware.
• Pay attention to your contractor’s work practices.  Did the crew use specialized clothing, equipment, and cleaning procedures to reduce the amount of dist arising from the disturbance of lead paint?  Were you charged for the cost of EPA-approved paint test kits?

Kayla of the Calfinder blog summarizes:

While it’s hard to determine exactly how much these regulations will change the remodeling game, it is safe to say the extra money is going to have to come from somewhere.  The good part?  Improved health in our homes, schools and office buildings.

Posted by Krystyna on May 18, 2010 at 4:52pm.

Courtesy of The National Resources Defense Center

Following the breakout success of Rachel Carson’s book, The Silent Spring, environmental activism blossomed in the 1960s and early 1970s.  Numerous environmental legislation was passed, including the Clean Water Act in 1972.  For thirty years, that legislation allowed regulators to make great progress in cleaning up our nation’s waters. But these protections have been rolled back over the last decade.  Now, the Clean Water Act, which has long been considered one of the country’s most successful environmental laws, is failing to protect all of America’s waters.

Reduced to its essence, the Act’s mandates are quite simple.  The Act extends to all of the “waters of the United States.” It is structured to protect these waters in one of several ways.  The Act prohibits the discharge of pollutants from an unpermitted point source, it implements an oil spill prevention program, implements an impaired waters cleanup program, and creates a permit program with the intent to reduce the level of pollutants in waters over time.  Finally, the Act charges two federal agencies with implementing the Act’s mandates:  the Environmental Protection Agency and the Army Corps of Engineers.

For decades, agency regulations, which began implementing the CWA after its passage, reflected the intent of Congress to protect all of America’s waters, including among other things, tributaries of various waters, adjacent wetlands, and intrastate waters with linkages to interstate commerce. These regulations, together with the Act’s language extending the Act’s authority to “waters of the United States” is called its jurisdictional authority.  For decades, courts upheld that jurisdictional authority; and, when called upon to interpret the regulatory reach of the Act, have read the jurisdictional authority broadly.  These rules had been upheld by the vast majority of courts.

But, almost a decade ago, in January 2001, the Supreme Court issued its opinion in a case called Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (now affectionately known as SWANCC  and pronounced like the Oscar-winning actress Hilary Swank’s last name, but with a flat “a” as when you say “Aaaah”).

SWANCC was the first case to limit the jurisdictional authority of the CWA when it held that non-navigable, intrastate waters are not protected by the CWA solely because they could serve as habitat for migratory birds. Industry and the regulated community rejoiced.  They heralded this as a sign that the CWA-implementing regulations could be weakened.  And they were weakened.

Five years later, the SCOTUS further curtailed the reach of the CWA when it issued another opinion in Rapanos v. United States.  In Rapanos, the Supreme Court, by plurality, clarified that the term “waters of the United States”

includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] … oceans, rivers, [and] lakes.

In February, The New York Times published another in its series of Toxic Waters articles discussing the challenges facing American waters, entitled Rulings Restrict Clean Water Act, Foiling EPA.  The authors outline the practical realities facing our watersheds as a result of the SWANCC and Rapanos decisions, including:

• unwritten internal guidelines at the EPA steer lawyers away from filing cases where proving jurisdiction is too difficult (likely in an effort to limit additional attacks on the CWA’s jurisdiction).  As a result, approximately 117 million Americans get their drinking water from sources fed by waters that are vulnerable to exclusion from the Clean Water Act.
• as many as 45% of major polluters might be either outside regulatory reach or in areas where proving jurisdiction is overwhelmingly difficult. (And, that means, that as a practical matter, an enforcement action will not be filed.)
• Polluters now inform regulators that they consider their dumping activities outside the purview of the CWA, as in the case of the Cannon Air Force Base near Clovis, New Mexico.
• 200 oil spill cases were delayed in 2008, even as the number of facilities violating the CWA steadily increases, year over year.

What does that mean for the ordinary resident, drinking tap at home or at work?  Your water may be increasingly toxic.  See, for example, our recent coverage of the probable Crestwood, Illinois cancer cluster or the New York Times’ Clean Water Laws Are Neglected, at a Cost in Suffering article, published last September.

The EPA is proceeding cautiously.  It has not issued regulations clarifying its jurisdiction of the Clean Water Act.  I would hazard a guess that the EPA’s lawyers worry that any challenges to its clarifying regulations would only further limit its regulatory authority in the current judicial climate.

David M. Uhlmann, who led the environmental crimes section of the Justice Department during the Bush Administration put it best, when he commented, ”[c]ases are now lost because the company is discharging into a stream that flows into a river, rather than a river itself.”

So, the EPA Administrator Lisa Jackson instead urges Congress to resolve this issue.  And, Congress has listened.  It has taken a stab at introducing the Clean Water Restoration Act, which would restore the extent of the CWA’s jurisdictional statement to its pre-SWANCC and -Rapanos days.

The bill has stalled after emerging out of the Senate Environmental and Public Works Committee, amid lobbying and public media campaigns from opponents, including conservative pundit Glenn Beck.  Using fear-mongering tactics, the bill has been classified by its opponents as “a sweeping overhaul of the Clean Water Act that could threaten both physical land and jobs by wiping out some farmers entirely.”

I’d like to ask you, our readers, for one thing.  As stewards of the land, with a responsibility to leave that land to future generations, to become educated.  And, if after a bit of research, you believe that restoring the jurisdictional limits of the Clean Water Act would improve the water quality of our nation’s streams, lakes and rivers, contact your state representative or senator.  Ask him or her to support the Clean Water Restoration Act.

For resources, including studies on the safety of drinking water, please visit the New York Times’ Toxic Waters Project Resource section here.  Additional background information can be found at the EPA’s Clean Water Act: Definition of “Waters of the United States” page.

Posted by Krystyna on March 29, 2010 at 3:07pm.

There is a certain allure to the Hollywood sign.  Looming over Los Angeles in the center of what many Angelinos think is Griffith Park, it is a monument to one of the States’ greatest and most illustrious industry: moviemaking.

From: LAist's 'therealquarrygirl' on Flickr

The 138-acre parcel of land to the west of the sign was purchased in the 1940s by Howard Hughes as a gift for his fiancée, Ginger Rogers, with plans to build an estate on the Peak.  The plans fell apart, together with the relationship.  But, Hughes, and later his estate held on to the land until 2002 when a Chicago real estate investment group purchased the land and secured rights to build luxury estates on the Peak.   When the parcel was offered for sale in 2008 for $22 million, the Trust for Public Land got involved.

Having secured an option  to purchase the parcel by April and conserve its natural attributes, the TPL launched a campaign to Save The Peak, and unlike Ke$ha’s prank, actually managed to win the support of the public to raise funds.  If the TPL meets its fundraising commitment and exercises its option to purchase the prime parcel of real estate, it will turn it over to the Los Angeles Park Service so that it is conserved in perpetuity as a part of Griffith Park.

The TPL’s mission is important.  It is but one of  numerous land trusts across the country  that embrace the opportunity to preserve natural resources from land loss for future generations.  And, just as there are numerous land trusts, there are numerous methods of attaining the conservation goal and the benefits that inure to the donors.

The Land Trust Alliance explains:

The most traditional tool for conserving private land, a “conservation easement” (also known as a conservation restriction) is a legal agreement between a landowner and a land trust or government agency that permanently limits uses of the land in order to protect its conservation values. It allows landowners to continue to own and use their land, and they can also sell it or pass it on to heirs.

But, there are other methods available as well:

• Resale of land once a conservation easement is in effect
• Outright donation of land for conservation where ownership rights transfer to a land trust or other suitable owner, such as a government agency. Then, the full market value of the donated land is tax deductible as a charitable gift under the US Tax Code.
• Bargain sale where a land owner sells land intended for conservation to a land trust at less than fair market value.  Benefits include: cash transfer to the owner, elimination of some capital gains taxes, charitable income tax deduction based on the value of the land between the bargain sale price and the assessed fair market value.
• Donation with a Lifetime Income:  the donation results in the donor receiving charitable gift annuities or charitable remainder trusts.  This is not the preferred method unless the landowner owns property which is highly appreciated.

If you are concerned about the unmitigated loss of open space in your own community, contact a local land trust or an attorney to learn more. The United States is losing land at an alarming rate, with more than 2 million acres of land lost every year to inappropriate development, according to a 2005 USDA/NRCS Natural Resources Inventory.  Because once land is lost or a habitat fragmented, it may take decades if not centuries for the land to recover, conservation easements protect vulnerable and essential habitats.  But to ensure expectations are properly managed and that all rights and responsibilities are properly explained, conservation easement transactions can become complex and can involve multiple tax issues. Nevertheless, they offer greater flexibility to property owners and conservationists in achieving conservation goals, and as a result, remain an essential tool in ensuring our natural environments prosper.

Posted by Krystyna on March 1, 2010 at 10:51am.

I’m a bit of a treehugger.  I even have the pictures to prove it.  *wink*  But, how do I translate that interest in green causes and sustainable development into my less than altruistic motivation in investing my savings?  After all, I want to ensure that I actually make some money while investing.

If you invest, let’s talk investment strategy.  How do you decide where your money goes?  Do you have an articulated investment philosophy? Does that philosophy seek to maximize your profits while at the same time maximizing social good?

You might be scratching your head right now.  What do investments have to do with ethics?  Many people are increasingly engaging in socially responsible investing, or SRI.

SRI favors investments in corporations that promote some social good, be it environmental stewardship, human rights, or diversity.  Others, who choose to invest in a socially responsible manner, do so because of religious beliefs, and stay away from alcohol, tobacco, gambling, or abortion.  SRI’s tenets are broad but recognize three general areas:  (1) environment, (2) social justice, and (3) corporate governance.

In the past, SRI has influenced global situations.  For example, did you know that socially responsible investors pressured companies, such as General Motors, to divest their interest in South Africa during its apartheid era in the 1980s?  Or, that in the 1990s, investor pressure similarly lead companies such as Tiffany’s to refuse to buy conflict diamonds and for the diamond industry to create country-of-origin certification?  That same pressure in the 2000s, lead companies such as Tiffany’s to take on government regulators to  encourage sustainable mining standards for metals such as gold, silver, and copper.

Knowledge@Wharton recently reported that Wharton finance professors Robert F. Stambaugh, Christopher C. Geczy, and graduate  student David Levin recently published a study entitled, Investing in Socially Responsible Mutual Funds. The study found that when returns on investment are “adjusted for risk, index-style investors give up very little by using socially responsible funds, while investors who choose actively managed funds can pay a heavy price – losing more than 3.5 percentage points of return a year.”

But, as an investor and a consumer, how can I possibly learn which companies are genuinely interested in promoting social consciousness and which ones just greenwash their corporate image?  Quite easily, it turns out.

All publicly traded companies are required to file yearly annual reports , also called Form 10-K Reports, with the U.S. Securities and Exchange Commission (“SEC”).  The more recent of these annual reports are available online via the SEC’s Edgar Online database.  Prior to 2010, companies were required to include environmental liability disclosures and the potential such liability had for impacting the companies’ operations and financials.

In January 2010, the ability of an SRI investor to determine a company’s eco-friendliness expanded when the SEC passed new climate change disclosure standards, which were intended to inform investors of business risks derived from the increasingly complex climate change regulations and other environmental protection laws.

As Bloomberg reported on January 27th, the guidelines – approved by the SEC Commissioners in a 3-2 vote – require companies to “weigh the impact of climate-change laws and regulations when assessing what information to include in corporate filings.”

If you invest, how do you do it?  Do you chose funds?  Or, do you weed through company profiles to select your best bets?  Will these new disclosure standards aid you in your decision-making process?  What are some of your favorite SRI funds or companies?

Posted by Krystyna on February 9, 2010 at 12:15pm.

From: Scientific American

In 2005, a federal judge halted the planting and sale of genetically engineered (GE) alfalfa to hear arguments about whether the ban should stay in place while the government carries out an environmental impact statement (EIS) into the likelihood that bees will carry human-modified genes from one alfalfa field to another. This was one of many cases filed in an effort to prevent Monsanto from selling genetically modified seeds of alfalfa marketed under the Roundup Ready brand.

>> NPR reports about the genetically modified debate.

Now, flash forward to 2009. Having conducted its first ever EIS on genetically engineered products, the USDA released its draft EIS on December 14, 2009, and opened it to a 60-day public comment period.

It appears that the regulatory agency supports the release on GE crop seeds into the marketplace. But Zelig Golden, an attorney with the Center for Food Safety, has serious concerns about the quality of the evaluation and its impact on subsequent investigations into GE safety. He comments:

The EIS dismisses the significance that GE alfalfa will broadly contaminate non-GE alfalfa. Opinions, studies (published or unpublished), anecdotal stories, and testing data about how contamination will occur and /or demonstrating that contamination has in fact occurred are critical.

The EIS also dismisses the significant adverse economic effects that GE contamination will have on non-GE conventional alfalfa seed or hay growers (e.g., export markets), or dairy production that rely on non-GE and organic alfalfa hay for forage. Studies (published or unpublished), anecdotal stories, and economic analysis showing harm through contamination is essential, especially markets that are GE sensitive or reject GE outright.

Parker Wilde summarizes the conclusions of the draft EIS:

The draft EIS says the new technology is mostly safe for the environment, but it does acknowledge what it describes as a small probability that genetically modified genes will contaminate non-GMO [genetically modified organism] fields of alfalfa. This possibility threatens the markets for organic alfalfa and organic dairies that use alfalfa feed for cows, because the certified organic label requires using non-GMO technology. This possibility also threatens U.S. export markets for dairy, because consumers in other developed countries are reluctant to consume GMO foods.

The Missouri-based Monsanto disputes such concerns, stating that cross-pollination is unlikely and that the environment would benefit because less weed killer would be used.

But, courts were still concerned by the process the USDA took to evaluate the risks associated with disseminating these products in the marketplace. The decisions below were appealed to the Supreme Court, under the caption Monsanto v. Geerston Seed Farms. The SCOTUS has now acted on the case, saying it will consider overturning the court order that stopped Monsanto Co. from selling RoundUp resistant crops, including the alfalfa seed at issue in this case. Monsanto is also litigating the issue of GE sugar beets, and this decision will have broad impacts for the multinational agricultural biotechnology corporation, which has control over 90% of the GE seed market. The decision, however, will be issued without one of the most liberal voices on the bench. Justice Stephen Breyer has recused himself from the case because his brother, U.S. District Judge Charles Breyer issued the initial decision against Monsanto.

Anyone with an interest in conventionally-grown or organic crops should watch out for the Court’s decision. While Monsanto may be able to increase the production output of crops by making them resistant to the application of RoundUp in a laboratory, farmers practicing organic and conventional techniques will have to be especially vigilant of inadvertent contamination of their crops with Monsanto-pantented seeds. The consequences may be dire. For one, the farmer may have to pay Monsanto copyright infringement fines for the use of its patented products, as in the case of Candian farmer Percy Schmeister.  But, more importantly, the cross contamination may cause the farmer to lose his organic certification.

Posted by Krystyna on February 3, 2010 at 4:25pm.

Asian Carp

Last Tuesday, the Supreme Court (“SCOTUS”, for the uninitiated) denied a preliminary injunction sought by a coalition of Great Lakes states against Illinois to close navigation locks in the Chicago Sanitary and Ship Canal in an effort to curb the spread of the Asian Carp, an invasive fish species, into the Great Lakes. Issuing just a one-sentence opinion, SCOTUS denied the injunction while leaving open the possibility of a more thorough evaluation of the situation under Michigan’s petition to reopen a 1920s water diversion case.

The Asian Carp was imported to the United States from China to eat algae in aquaculture operations. The fish is a voracious eater and spread quickly up the Mississippi River to other ecosystems. Along the way, it decimated numerous native populations, including the zebra mussels. The London Times OnLine recently reported, “the carp munch their way through entire species of rival fish and devour 40 percent of their body weight in plankton every day.” As a result, the carp is not only an ecological threat but also a threat to numerous recreational and hobbyist pursuits.

The writers at the Daily Kos are skeptical of Illinois’ commitment to addressing the threat of Asian Carp in the Great Lakes. However, that state has an important economic interest in finding a solution to the Asian Carp’s presence in the CSSC and the Lakes. After all, according the the Daily Kos’ own reports, the Great Lakes fishery is valued at $7 billion per year and the State has an important and long-standing shipping industry, moving more than 14.6 million tons of commodities, valued at more than $1.7 billion worth in 2008, through the Chicago locks in 2008.

An injunction is a legal order or admonishment from the court. It is intended to either prevent an act (a “negative” or “prohibitory” injunction) or to force the performance of an act (“mandatory” injunction) in an effort to prevent a irreparable injury. To be granted injunctive relief, a petitioner must prove 5 things:

(1) The legal remedy is inadequate

(2) A property right or at least a protectable right is involved

(3) Enforcement of the terms of the injunctive relief would be feasible, practicable and effective to vindicate the petitioner’s rights

(4) The hardships, where relevant, balance in the petitioner’s favor, and

(5) No defenses are available

Why, then, did the SCOTUS deny the issuance of this injunction on the same day that researchers announced the presence of Asian Carp environmental DNA in Calument Harbor, on Lake Michigan? U.S. Solicitor General, Elena Kagan, posits that Michigan failed to demonstrate an immediate threat that justified the closing of the locks.

Doesn’t the presence of the DNA signal that the irreparable injury is already occurring? “History has repeatedly demonstrated that once invading species are established, they are virtually impossible to eradicate, so we should be pursuing every possible avenue now to keep these and future threats out of our Great Lakes,” states Terry Quinney, the Provincial Manager of Fish and Wildlife with the Ontario Federation of Anglers and Hunters (O.F.A.H.).

The Court might argue no, not necessarily. After all, the Army Corps of Engineers has controls in place. It has erected electric fish barriers at several points along the CSSC to prevent the carps’ migration into the Lakes. However, the fish likely breached the barriers because the electric current is periodically amped down and is not intended to stop fully matured fish during that time. That might be a problem, especially as these fish can grow up to 70 lbs. And, the barrier is periodically turned off for maintenance. So, yes, the DNA of this invasive species is present in the Lakes. But, the Court does not know if the DNA was from a live or dead fish, or in what numbers the fish is present in the Lakes. It appears that the Court did not deem the danger from the temporarily open locking gates to create an irreparable harm. Hence, its decision to deny the preliminary, or interlocutory, injunction. These types of injunctions are sometimes granted provisionally before a trial to maintain the status quo until the court can hear arguments from both sides and rule on the issue of granting a permanent injunction. Here, the SCOTUS has signalled that it will wait to rule on the matter and feels that its interference is not warranted. Michigan will now have to wait until the Court rules on its petition to have an old water diversion case re-opened to litigate the issue of invasive species.

Posted by Krystyna on February 2, 2010 at 2:10pm.

Every day, we are inundated with messages about the choices we make when it comes to nourishing our bodies.  So, have you thought about the water that you drink?  Do you prefer bottled or tap?  Can you tell the difference between the two?   When you’re thirsty, do you head for the nearest convenience store with its selection of branded bottled water?  Or, do you head for the sink to get some tap water?  Do you filter your tap water?  Does it matter?

It does. And, it matters not just because of the repercussions drinking contaminated water might have on your health, but also because Americans spend more money in one year on bottled water than on iPods or movie tickets: $15 billion in 2006 and an estimated $16 billion in 2007.

Bottled water is regulated – although that regulation is somewhat lackadaisical – due to the Food and Drug Administration‘s limited authority under the Food, Drug and Cosmetics Act (“FDCA”).  Municipal water sources are regulated by the Environmental Protection Agency under the Safe Drinking Water Act (“SDWA”).  Yet, essentially, whether you drink tap or bottled water, you are drinking the same water.  Your bottled water is likely sourced from a municipal water utility or rural groundwater source, as in the case of Pepsico’s Aquafina,  Poland Springs or Nestle.

From: rumplo.com

The differences between the two regulation schemes loom large.  Whereas municipal water utilities must provide annual public reports under the  Right-To-Know provisions of the SDWA, bottled water makers are under no such obligation.  The list of pollutants regulated under the SDWA hasn’t been updated since the act’s passage in the 1970s.  And, despite the fact that more than 6,000 pollutants can be found in our water sources, the SDWA regulates just 91 known carcinogenic pollutants.  So, does a more stringent regulatory scheme make tap water better than bottled?

No.  In fact, you might very well be paying a bottled water company to drink the exact same water flowing out of a faucet at home.  As the water market war escalated in the early to mid 2000s,  the source of  water seemed to multiply.  Simple categories of water expanded.  Suddenly, a consumer could purchase artesian water, purified water, mineral water, or spring water just to name a few.  But, whereas the Safe Drinking Water Act Amendments of 1996 require water utilities to issue Right to Know Reports to their customers before July 1 of each year, water bottling companies such as Poland Springs or Nestle do not.

As consumers, we balance various considerations:  convenience, cost, ethics.  If after controlling for pollutant content, bottled and tap water (or tap water purified with a filter) are identical, which will you choose to consume?

Posted by Krystyna on January 25, 2010 at 1:25pm.

New England is generally regarded as eco-friendly. Remember Massachusetts v. EPA, the Supreme Court case that ensured that the federal environmental protection agency regulate carbon dioxide and other greenhouse gases as pollutants?  The majority of the petitioners in that case were New England states and cities.  How is it, then, that a wind farm proposed off the New England coast which could power more than 420,000 households, is opposed so vociferously?

Enter a coalition of wealthy homeowners, a powerful lobby group, politicians and business owners with definite, self-motivated interests.  Enter NIMBYism.

From: Edinformatics.com

NIMBY is just one of a number of acronyms used in a belittling way to describe opponents of building projects or infrastructure developments. Most often, community groups will lobby to oppose the siting of a nuclear energy plant, a prison, or a landfill.  Here, the group opposing this green energy development project is composed of the recently deceased Sen. Edward Kennedy and William Cronkite, Sen. John Kerry, and a wind farm opposition group called the Alliance to Protect Nantucket Sound funded by Bill Koch, Doug Yearley , and other wealthy denizens of these summertime beach communities.

The controversy over this 25 square foot wind farm, which would be composed of 130 turbines located several miles from the Massachusetts coast, has garnered the attention of journalists and documentary filmmakers.  Why would an effort to secure America’s future energy security be so opposed?

Wendy Williams and Robert Whitcomb recently wrote a book about the project’s history called Cape Wind: Money, Celebrity, Class, Politics and the Battle for Our Energy Future on Nantucket Sound. In an interview, one of the authors states that the fight over Cape Wind is a case of a “a very small group of people, with more money than most of us can possibly imagine, who decided from the very beginning [...] that they didn’t want it there, it would upset their Martini time”.  Is that an accurate assessment?

The Cape Wind project – or any other project that is being opposed – may be challenged on two fronts:  common law and statute.  Under the common law, environmental litigation is predicated on six legal theories: nuisance, trespass, negligence, strict liability, prior appropriation, and riparian rights. The majority of the beach community residents who speak out against the Cape Wind project do so on the basis of aesthetic nuisance.

Let’s break this down, shall we?

Nuisance is a broad legal concept.  It includes anything that disturbs the reasonable use of your property or endangers life and health or is offensive.  And to be actionable, meaning that the court can grant you relief, the level of interference must be more than merely aesthetic.  Let me explain.  If I paint my house exterior a bright pink color and dot it with purple polka dots, you may think that it is an eyesore.  You might be annoyed enough to sue me in court and to ask the court to force me to paint the home exterior in a more pleasing or conventional color.  My painting of my home, however, does not create a nuisance for you.  Instead, some condition on my property or some action that I take on my property must interfere with your quiet enjoyment of your own property.  If I raise pigs in my garage, and the smell from their sty wafts over the fence dividing our property and causes you to gag every time you come outside, your claim for nuisance would likely be recognized on several grounds.

First, it may be recognized because as a matter of fact, the foul odor I created is invading your property and causing you to become physically sick. An alleged nuisance in fact is an issue of fact to be determined by the jury, who will decide whether the thing or act in question created a nuisance by examining its location and surroundings, the manner of its conduct, and other circumstances. A determination that something is a nuisance in fact also requires proof of the act and its consequences.

Second, and more rare, is a situation in which your claim might be recognized as a nuisance per se.  Nuisances per se rarely exist, because legislatures rarely deem an action or a structure to be unlawful or unauthorized.   There are few state or federal statutes or case law declaring actions or structures to be a nuisance in and of themselves. Nor are many activities or structures in and of themselves and under any and all circumstances a nuisance, which is how courts determine whether or not an action or structure is a nuisance per se.

Here, the beach community residents who oppose the siting of the Cape Wind wind farm argue – as Robert F Kennedy did in his New York Times Opinion Editorial -  that the presence of the farm interferes with the residents ocean views and nighttime star gazing.  Cape Wind’s President, Jim Gordon, paints a different picture.  Pointing out that the proposed location of the farm would be approximately 5 miles from the south coast of Cape Cod and almost 15 miles from Nantucket, he argues that the wind towers would be barely visible when viewed from the nearest beach.  A Massachusetts Superior Court, however, was not persuaded by that argument.  Which leaves the wind farm’s opponents with numerous challenges on statutory grounds.

A large wind farm project requires numerous local, state, and national permits and environmental reviews.  If just one permit isn’t issued, the project could stall indefinitely.  A statute outlines standards and criteria that must be met before a project proposal is approved.  The Cape Cod wind farm must pass review through each agency.   And, each review must be consistent with the standards enumerated in the statute, that means there has to be a reasonable basis for each decision that is made during the reviewing process. A partial list of the Cape Wind permitting and review authorities include:

• Minerals Management Service (lead agency)
• US Army Corps of Engineers
• US Environmental Protection Agency
• National Marine Fisheries Service
• US Coast Guard
• Federal Aviation Administration
• Massachusetts Executive Office of Environmental Affairs
• Massachusetts DEP—Division of Wetlands and Waterways
• Massachusetts Coastal Zone Management
• Cape Cod Commission

What is the lesson for anyone who wants to challenge a project?  There are numerous points during which an opposed project may be derailed by a diligent and passionate opposition group that understands the review process.

Posted by Krystyna on January 19, 2010 at 11:34am.