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.

The end of tax season is almost upon us.  Have you filed yet?  I haven’t.  And, I’m betting quite a few of you are waiting until the last moment to file as well.  So, I’m going to help you out.  * I hope.*

You might have noticed I typically blog about environmental issues.  So, my take on the whole paying taxes topic will not shock you.  Prepare to be dazzled by a primer on ways the federal government is subsidizing your investments in energy efficiency.

Are your eyes starting to drift shut as you doze off?  Hold off for a few more paragraphs.  You might thank me later.  Especially when I tell you that simple home improvements can net you up to a $1,500 tax credit.  All it takes is filling out one extra form:  IRS Form 5695.

Ugh, what’s a tax credit?  Why, I’m so happy you asked.  A tax credit doesn’t work like an instant rebate.  Instead, it’s a rebate that you get on your federal income tax form at the end of your filing year.  The tax credit increases your tax refund or it reduces the amount you owe the government.

So, why am I so excited?  It’s because tax credits tend to be more valuable when compared to similar tax deductions.  Credits reduce the amount you owe or are due, dollar for dollar.  But tax deductions lower your taxable income.  Here is an example from the Tax Incentives Assistance Project (TIAP) that illustrates my point:

If you are in the highest 35-percent tax bracket, the income tax you pay is reduced by 35% of the value of a tax deduction. But a tax credit reduces your federal income tax by 100 percent of the amount of the credit.

So, here’s the lowdown.

In February 2009, Congress passed an economic stimulus package, The American Recovery and Reinvestment Tax Act of 2009 that included many elements that promoted energy efficiency and renewable energy.  That act included incentives for home-owners to improve the energy efficiency of their primary residences.  The three most essential elements of the incentives program, which covers upgrades to existing homes for 2009 and 2010 tax years, are:

• Home envelope improvements, as well as upgrades in heating, cooling and water heating equipment are covered.  The cap on the incentives is $1,500 for the two year period between 2009-2010 and labor costs are not covered.
• On-site renewables – solar power cells, small wind turbines, and geothermal heat pumps – are eligible for tax incentives of 30% of the total cost, without a cap.
• New incentives for plug-in electric vehicles and plug-in conversion kits.

Practically speaking, here is what this means for you.  If you installed:

• Exterior windows: Includes skylights and storm windows.
• Insulation, exterior doors, or roofs: Includes seals to limit air infiltration, such as caulk, weather stripping, and foam sealants, as well as storm doors.
• Central air conditioner, heat pump, furnace, boiler, water heater, or biomass (e.g. corn) stove: Starting in 2009, geothermal heat pumps are instead eligible for a separate tax credit

You may  be eligible for the federal tax credits if you also meet these conditions:

• Windows, doors, insulation, and roofs must be expected to last at least five years (a two-year warranty is sufficient to demonstrate this).
• Manufacturers can certify (in packaging or on the company’s web site) which of their products qualify for the tax credit. Retailers, contractors, and manufacturers should be able to help you determine what levels of insulation and what other products qualify.
• All the improvements must be installed in or on the taxpayer’s principal residence in the United States. Condo and co-op improvements are apportioned to the owners.

The Alliance to Save Energy publishes a helpful chart which summarizes the standards for these products, if you are seek to claim a tax credit.  We include it below:

If you don’t meet any of these categories, you may still be able to get some money back.  Check out the The American Council for an Energy-Efficient Economy’s (ACEEE) chart summarizing the various 2009 energy-star rebates, credits on hybrid vehicles, and other green tax incentives.  And, remember, states, utilities, and the Energy Star partners may have their own programs that incentivize energy efficiency and energy renewables.  Energy Star can generate special offers and rebates from its partners when you plug in your zip code here.  Finally, the Database of State Incentives for Renewables and Efficiency can provide you with helpful information about green tax incentives in your state.

Posted by Krystyna on April 14, 2010 at 3:44pm.

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.

Earlier this year, we discussed environmental crimes and the type of conduct that can result in criminal charges as a result of pollution.  In this entry, we will delve a little deeper and look at the result of environmental pollution using the example of Crestwood, Illinois.

Similarly to many other Northern Illinois municipalities, south suburban Crestwood relies on a mixture of well water and pumped Lake Michigan water to supply its residents with potable water.   Over a period of more than two decades, Crestwood residents unwittingly drank contaminated water.  The drinking water was tainted with carcinogens associated with kidney, lung, and gastrointestinal cancers.

For years, Crestwood officials lied to its residents and to regulators by representing that the village relied exclusively on treated Lake Michigan water. The truth was somewhat different.  At times, as much as 20% of the village’s potable water supplies came from a water well tainted with perc-related chemicals, including vinyl chloride.  In fact, the well wasn’t shut down until 2007.

Now, Crestwood’s mayor Robert Stranczek – who succeeded his father Chester after 38 years of service – and the village’s water official are under a federal criminal investigation and defending themselves from civil lawsuits, including one filed by the eco-minded Illinois Attorney General Lisa Madigan that accuses Crestwood officials of lying more than 120 times about their secret use of the well.

The village and its officials may be facing even more lawsuits.  A recent study shows that a cancer cluster exists in Crestwood.  Is this cancer cluster a result of the exposure to tainted drinking water?

Researchers determined it was possible that toxic chemicals in the drinking water caused Crestwood’s high incidence of cancer cases, but they could not make a definite link. Scientific causation is extremely difficult to prove because in this case, other factors could be involved or there could be a statistical blip in the working-class community of about 11,000.

As with nearly all studies of cancer clusters across the nation, specific causes are difficult, if not impossible, to determine. But the Crestwood situation is still different than most other cancer investigations.  Why?

The Ken Runkle, a state health department toxicologist, explains to the Chicago Tribune that,“We are dealing with a situation where we have known exposure. That means we can view these elevated cancer levels in a different light.”  Kidney cancer in particular is associated with exposure to perchloroethylene, also known as PCE or perc, a common dry-cleaning solvent that years ago leached into Crestwood’s well. Research also links lung and some types of gastrointestinal cancer to perc and related chemicals, which state officials first detected in the well water in 1985.

So, you  might be left scratching your head.  If there is a known source of pollution and exposure to the pollutant is correlated with the specific cancers found in Crestwood, what’s the problem?

It turns out the problem is causation.  Causation is defined as the “causal relationship between conduct and result,” which really means that there needs to be some link between a conduct and the resulting effect.

Our legal system is based on the notions of justice and fairness.  As a result, in order to establish liability for an injury – such as the cancer occurrence – a plaintiff must show that the defendant was the cause of the particular injury.  But the causation argument relies on predictability.  What I mean by that is that the greater the likelihood that a specific actor caused the injury or loss intentionally, the greater the likelihood of proving liability.

Causation in a legal context is most simply explained as:  Reasonable people try to avoid injuring others so if harm was foreseeable, there should be liability to the extent that the extent of the harm actually resulting was foreseeable.

Except, this issue is more complicated.  Causation of an event by itself is not sufficient to create legal liability.  In court, a plaintiff must show that there is a way to factually trace the causation but also to show proximate or legal causation.

Establishing causation is required to establish legal liability.  It involves a two-stage inquiry.

1. The first stage involves establishing ‘factual’ causation. Did the defendant’s act result in the plaintiff’s loss? This must be established before inquiring into legal causation.
2. The second stage involves establishing ‘legal’ causation. This is often a question of public policy: is this the sort of situation in which, despite the outcome of the factual inquiry, we might nevertheless release the defendant from liability, or impose liability?

As an example, if the cancer-stricken residents of Crestwood band together to sue the village, they can do so under one of several legal theories.  Let’s suppose that they choose to sue under tort principles, such as negligence.  To prove legal liability in negligence, the defendant must have (1) owed the plaintiff a duty of care; (2) breached that duty; (3) by so doing caused damage to the plaintiff; and (4) that damage must not have been too remote, i.e., that causal relationship must be close and without too many intervening events.

David E. Bernstein, a nationally recognized expert on the Daubert case and the admissibility of expert testimony and frequent contributor to The Volokh Conspiracy, wrote:

[T]o prove causation in a toxic tort case, a plaintiff must show that the substance in question is capable, in general, of causing the injury alleged, and also that exposure to the substance more likely than not caused his injury. When a plaintiff was exposed to a single toxin from multiple sources, to prove causation by a specific defendant the plaintiff must show that the actions of that defendant were a “substantial factor” in causing the alleged harm.

Traditional tort principles require that plaintiffs bear the burden of proving actual causation by a preponderance of the evidence,  not merely that they were exposed to a risk. To hold otherwise and essentially shift the burden to defendants to disprove causation would open the floodgates to all manner of speculative claims, with potentially devastating consequences for Americans’ well-being. Similarly, with regard to cases in which a plaintiff alleges injury after exposure to a toxin from multiple sources, a given defendant may only be held liable if the plaintiff proves by a preponderance of the evidence that exposure to that defendant’s products was a “substantial factor” in causing that injury. To hold otherwise would amount to an implicit adoption of a system of broad, collective liability that courts have rejected when the issue has been raised explicitly.

The take away message is this: Legal proof of causality and responsibility differs greatly in toxic tort cases and in fact that standard is sometimes looser than the standard that is required for scientific proof.  So, while the presence of a carcinogen and a resulting cancer cluster is a highly emotional issue, it also requires rigorous examination and involves numerous competing experts.  These trials often drag on for years and involve extremely complex scientific issues.  But, because the resulting injury (cancer) may be many years removed from exposure to the cancer-causing agent, proving the connection between the two may be extremely difficult.

Posted by Krystyna on March 19,2010 at 11:00 am.

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.

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.

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.