Forty-nine Years Ago Today: Bill Ruckelshaus Sworn in as first Administrator of US EPA

Last week, Bill Ruckelshaus, the first Administrator of the US Environmental Protection Agency, passed away.  He was one of the great leaders of modern American environmentalism, leading US EPA twice (1970-1973 and 1983-1985), appointed as Deputy US Attorney General by President Nixon in 1973, and then forced to resign soon thereafter in the famed “Saturday Night Massacre” which ultimately precipitated Nixon’s resignation from the Presidency because of Watergate.  Coincidentally, today marks an important historical milestone for him and EPA – forty-nine year ago, Bill Ruckelshaus was sworn in as the first Administrator of EPA.

Even though he was one of the great heroes of our times, for all he has done, his work was not without blemishes.  One area of concern was his leadership and direction of EPA on environmental justice issues.  As has been widely reported over the years, and acknowledged by EPA itself, the Agency’s enforcement of Title VI has been one of its most troubled and criticized programs.  In June 1971, early in his first tenure as EPA Administrator, Bill Ruckelshaus testified before the US Civil Rights Commission about the Agency’s stance on enforcement of Title VI of the Civil Rights Act of 1964.  While Ruckelshaus readily acknowledged the applicability of the requirements of Title VI to EPA, he also described his perception of tension between vigorous Title VI enforcement and the achievement of the objectives of federal environmental statutory objectives, such as federal water quality standards. At the time, he seemed to attribute that tension to the role of EPA as a regulatory agency and the attendant difficulties of applying the funding suspension remedy of Title VI in the event of a violation.

One can’t help but wonder how much of his ambivalence about the relationship of civil rights enforcement and environmental enforcement might have filtered down to the rest of the Agency.  Regardless, for many years following its creation, EPA failed to enforce the requirements of Title VI as vigorously as it did the requirements of the federal environmental statutes.  And the rise of the environmental justice movement with its claims of environmental racism and discrimination, including its criticisms of EPA’s handling of these issues, is now well-established history.

Of course, all of that potential criticism must be seen in light of the enormous task that he faced in leading a brand-new federal agency under the close scrutiny of Congress and a whole nation in the early 1970s.  A passage from an EPA history article written in 1993 sums it up well:

When sworn in as administrator of the new Environmental Protection Agency on December 4, 1970, William D. Ruckelshaus shouldered the massive responsibility of organizing and leading the federal government’s most recent effort to protect the American people from the effects of pollution. He approached his task with the optimism and high expectations of someone setting out on a new endeavor. By the end of his initial term in 1973, he could identify with Sisyphus–the ancient Corinthian king forever condemned to pushing a boulder up a hill, only to have it roll down just short of the top. Ruckelshaus and his successors experienced the sisyphus effect every time the American people demanded a healthy and beautiful environment, but expressed uncertainty about the extent to which the federal government should act to achieve those ends.

Dennis Williams, The Guardian:  EPA’s Formative Years, 1970-1973 (1993), https://archive.epa.gov/epa/aboutepa/guardian-epas-formative-years-1970-1973.html

The passage still rings true today in the work of the dedicated career staffers at EPA and other environmental agencies who remain committed to their institutional mission regardless of changing political winds.  It is that spirit that marks today, December 4, 2019, as the 49th anniversary of the swearing-in of the late Bill Ruckelshaus as the first Administrator of the US Environmental Protection Agency.

Chamizal National Memorial, El Paso

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Last week, I drove with my parents from Houston to San Jose.  About 2000 miles in 3 days.  We did a couple of great side trips to White Sands National Monument and Chamizal National Memorial in El Paso.  Chamizal was particularly interesting.  It used to be located in Mexico, but is now part of the U.S.  Why?  The 1963 Treaty of Chamizal.

IMG_9692Under the 1848 Treaty of Guadalupe Hidalgo, the Rio Grande River is the formal boundary between the U.S. and Mexico for much of the US-Mexico border.  However, rivers naturally change their course over time, whether because of erosion, floods, or other natural events.  A serious flood in 1864 altered the course of the Rio Grand in the El Paso area, creating a land dispute between the US and Mexico that remained unresolved for nearly 100 years.  The land that now constitutes the Chamizal National Memorial had originally been located south of the Rio Grande; however, with the change of the Rio Grande’s course, it was suddenly located north of it.  Given that the Treaty of Guadalupe Hidalgo designated the north side as US territory, that might seem to make the Chamizal land US soil.  (Similar things happened, but in reverse, on other parts of the Rio Grande.)

IMG_9015On the other hand, under long-standing doctrines governing land ownership related to rivers, ownership should not have changed.  Gradual changes of the course of rivers, usually due to gradual erosion of river banks and gradual deposit of land on other parts of river banks (a process referred to as accretion), is deemed to change property boundaries (and thus land ownership).  However, as the late Professor Joseph Sax taught me in law school many many years ago, sudden changes of the course of a river, for example when a flood suddenly and drastically changes a river bed and thus the course of a stream (a process referred to as avulsion), do not alter property ownership and land boundaries.  Hence, given that the change in the course of the Rio Grande was due to a sudden flood, land ownership was not altered.  (There were of course other legal issues involved in the dispute.)

The question of land ownership and the international boundary took almost a hundred years to resolve.  Under the Chamizal Treaty, the US and Mexico formally relinquished claims to lands that had switched sides due to the 1864 flood.  The US created the Chamizal National Memorial on portions of the land that changed nationality, but left the original boundary markers.

My parents have one foot in Mexico and one in the U.S., had the boundary been there as it was originally negotiated in 1848.  (On a more sober note, the current border slat-fence is easily visible and provides an unsettling sight of our current relationship with our neighbors to the South.)

End of short lesson about water law! Below are some additional photos of our visit to White Sands National Monument – a highly recommended park!

Fellowships/Internship: Earthrights International (Washington, DC)

 
From an email announcement (both opportunities are in Washington, DC):
 
EarthRights International is currently looking to hire post-graduate legal fellows (two-years, paid) and summer legal interns. Please consider forwarding to any interested students.
 
Bertha Justice Legal Fellow  – This two-year paid fellowship fellowship is geared towards recent U.S. law school graduates and LLM degree holders hoping to practice in the United States. Deadline for submissions is December 15, 2019.
 
Legal Intern (Summer, 2020) – EarthRights legal interns will have the opportunity to participate in various projects associated with our cases, including legal research and writing and assistance in all phases of litigation, as well as other legal work including development of new cases, monitoring and exploring developments in international human rights and environmental law, researching and utilizing other mechanisms of corporate accountability.  Deadline for submissions is January 15, 2019.
 
Interested candidates should visit the EarthRights International careers page for more information about these opportunities.
 
EarthRights International is an equal opportunity employer that does not discriminate in its hiring practices, and actively encourages people of color, women, people with disabilities, and LGBTQI people to apply.
 
For more information on the work of EarthRights International visit www.earthrights.org

2019 2d East Asia Forum on Climate Change Adaptation and Disaster Management Law and Policy at the National University of Kaohsiung, Kaohsiung City, Taiwan, October 17 & 18, 2019

I am looking forward to be joining this climate change conference later this week, which is organized by Professor Hsing-Hao Wu, Director of the International Relations Research Center at NUK, and honored to give one of the keynote speeches.

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EBMUD Wastewater Treatment Plant

IMG_0122.JPGVisiting the EBMUD Wastewater Treatment Plant near Emeryville was a a fascinating experience.  (Thank you EBMUD for helping train the next generation of environmental lawyers!)  The facility services about 750,000 residents in the Berkeley Oakland area and sits right in the middle of the interchange of I-580, I-80, and the approach to the Oakland Bay Bridge Toll Plaza. The tour took us through the entire facility, including the on-site distillation plant that produces oxygen to help speed up decomposition of the sewage, the intake of the wastewater into the treatment plant, the 8 settling tanks, and the biosolid digesters that decompose the remaining sludge. 

Among the interesting features of the facility – it is a net-zero energy user of PG&E power, oftentimes feeding electricity back into the grid!  That is the result of the plant’s collection of methane gas produced by the sewage sludge digesters.  The methane is fed into several diesel turbines and a gas turbine that can generate enough power to run the entire plant. So, not only does the facilitate reduce the GHG emission contribution to climate change (as measured on a carbon equivalent basis) but it actually eliminates (mostly) the need for electric power generated elsewhere (by the PG&E) to run the plant! 

We also saw the intake pump house of the plant, a place where large objects are screened out to protect the pumps from damage.  What kind of large objects?:  pieces of lumber, cable, and lots of debris caught on those items. Plant workers even discovered an entire motorcycle caught in the screen once! They speculate that somebody must have opened up a manhole and dropped it into the sewer instead of bringing to the landfill.  [The screens, by the way, are essentially grates with a 5-6 inch gap spaces, so an object would have to be pretty large to get stuck.] The intake system is also where a lot of other debris ends up getting removed.  Among the top items (maybe the top item) to be removed from wastewater – “flushable” wipes.  This has been reported in various media.  “Flushable” wipes can be flushed into the sewer, but they do not decompose and simply get collected in the screening systems of wastewater treatment plants.  What’s worse is that they not only increase the amount of debris that treatment plants have to remove before the wastewater can be treated, but because of the nature of the wipes (essentially cloth rags), they catch on or collect other debris, creating larger debris, such as the legendary “fatbergs” that have been reported about in recent years.  

IMG_0155 (2)There was a particularly interesting machine that visibly helped settle the solids from the wastewater stream.  The end result of the treatment process was a black biosolid that could be handled and had the consistency of clay or dough — in wastewater engineering parlance, a “cake.”  The most disturbing  aspect of our tour were probably the common usage of food and cooking terminology, invoking images that made some of us queasy:  “wet weather primary sludge thickeners” (don’t remember this one at Thanksgiving when making turkey gravy), the biosolids cake, and even a “juicer” used for the high-COD wastes (chemical oxygen demand, wastes that have a high content of organic materials, from example wastes from slaughter houses or wineries) brought in by truck and designed to separate the waste liquid from the solid materials . . . yum.  Yet, in spite of these metaphors and the images they evoked, we still managed to have lunch afterwards.

A final bit of trivia about the plant. It provides recycled water!  I did not get a chance to ask how pure the water is, but in its current form it is  usable for irrigation, toilet flushes, and industrial cooling.  Sufficient purification can actually make recycled water suitable for human consumption and for specialized industrial processes, such as semiconductor manufacturing.  Unfortunately, significant psychological barriers remain to getting people to drink such water (“toilet to tap”).  I learned about the same issue in Singapore, when I took students to Singapore’s NEWater recycled water facility last year.  The other challenge of greater recycled water utilization is the supply infrastructure – since recycled water needs to be kept separate from traditional potable water, a separate system would need to be constructed (though that would be unnecessary if recycled water were pure enough to be mixed with other potable water).

 

One other tidbit – if this information about wastewater treatment has (bad food pun coming) whetted your appetite for more information about sewage issues, I found episode 1 of the new Netflix documentary series “Inside Bill’s Brain” to be interesting.  It is all about his project of addressing childhood mortality linked to contaminated water, which is in turn directly linked to the challenge of managing the sanitation needs of human populations.  (Of course, the sanitation-public health connection is not new to people who work on environmental and/or human development issues in other parts of the world. But it was nice to see how somebody with lots of money was able to leverage that wealth to change the economic calculus of the marketplace and to help overcome the barriers to finding new solution for these issues.)  Kudos to Bill on that.