California Wildfires

            In a rare acknowledgment of corporate wrongdoing, Pacific Gas & Electric (PG&E) recently pled guilty to 84 counts of involuntary manslaughter arising out of its failure to maintain a transmission line that sparked the devastating Camp Fire in 2018.  In the aftermath of the public backlash against PG&E, and faced with increasingly severe wildfires in the state, the California Public Utilities Commission (CPUC), hosted workshops in August of this year to seek the public’s input on the safety practices of the state’s three largest investor-owned electric utilities (IOUs), including PG&E, to mitigate California’s evermore devastating wildfires.  Implementation of the workshop results, titled the 2021 Wildfire Mitigation Plan, has been tasked to the CPUC’s newly created Wildfire Safety Division.  Among the most impactful action items of the Plan will be (1) to standardize data collection across utilities, while (2) increasing local outreach efforts to better direct the public during such a dangerous time (D.20-05-051).

Given that 15 of the 20 most destructive wildfires in California’s history have occurred since the year 2000, engagement of utilities and the public through these workshop was both laudable and long overdue.  However, the Division’s focus on data collection and local outreach to enhance preparation for an exacerbated fire season fails to address the root cause of the mess we are in: climate change.  As a warming climate produces longer and hotter summer dry seasons and more frequent droughts, wildfires during California’s fire season will become more severe and destructive.

            Even though the Wildfire Mitigation Plan will provide a more structured response to exacerbated wildfire risks, it will be insufficient to prevent future fires.  Given that the Camp Fire caused $8.5 billion of damage, developing action items on preventative measures in addition to reactive processes would be time and effort well spent.

As a concerned citizen within PG&E service territory, I will continue to be an advocate for the CPUC to be involved in one of the best preventative measures currently undertaken by the California Department of Forestry and Fire Prevention (CAL FIRE): controlled burns. This fire management method prevents serious wildfires by burning in a controlled manner the excess brush and foliage that otherwise would otherwise serve as fuel for more serious uncontrolled fires. This method was in fact widely used in pre-historic California and was largely successful up until the 1980s.  However, budget cuts and failure by Congress to renew the requirements allowed the lapse of this fire control method.  Interestingly, controlled burn strategies to maintain forest health continue to be lobbied for at the national level, but systematic implementation continues to remain elusive. However, as the regulatory body overseeing the safety of utility operations, it is well within the CPUC’s authority to require electric utilities to work more closely with CAL FIRE to get us back on track to a time before California became known as the wildfire state.

Wesley Clark

Stratospheric Ozone Protection & Mario Molina

By coincidence, we just discussed protection of the stratospheric ozone layers in my environmental law course this week when I saw the obituary for Dr. Mario Molina yesterday, a Mexican-American scientist. His research on damage to the ozone layer by CFCs and other ozone depleting chemicals was awarded a Nobel Prize and eventually prompted the negotiation of the Ozone Treaties (Vienna Convention and Montreal Protocol). These agreements have become among the most successful international environmental treaties to date and continue to serve as models for modern environmental treaty-making. In his later days, he used his role to speak out on these broader environmental policy issues, including in the context of climate change. What a loss.

https://www.sciencemag.org/news/2020/10/nobel-laureate-who-helped-save-ozone-layer-dies

“Advancing Racial Justice Means Advancing Environmental Justice,” Environmental Forum Nov./Dec. 2020

See the last piece (“Complainant Rights and Civil Rights Act Title VI”) in this collection of opinion pieces in the Environmental Forum’s (Nov./Dec. 2020) Debate “Advancing Racial Justice Means Advancing Environmental Justice” for my contribution.

“Advancing Racial Justice Means Advancing Environmental Justice,” Environmental Forum Nov./Dec. 2020

Environmental Forum: “Emergence and Convergence” Essay

In following the developments and emergencies related to the novel coronavirus around the world and helping to determine responses to the impacts on our campus, I forgot to post this essay that came out last month in the Enviromental Forum:  “Emergence and Convergence.”

Bitcoin mining and its environmental footprint

By Ashley Kang

In 2009, a new mode of financial transactions came into the hands of consumers worldwide through the creation of Bitcoin, the first cryptocurrency. Bitcoin is a digital payment currency that utilizes cryptocurrency and peer-to-peer technology to create and manage monetary transactions without the intervention of banks and outside the scrutiny of government entities. Individuals can get bitcoins in several ways including purchasing them with ‘real’ money, accepting payment in bitcoins, and participating in bitcoin mining. While most people are aware of about Bitcoin’s significant presence and success in the financial market, many are unaware of the impact bitcoin mining has on the environment.  

Bitcoin mining is performed by high-powered computers solving complex computational math problems. When a computer solves a puzzle, it then stores that information in a blockchain. A blockchain is a database storing bitcoin transaction records that is distributed across peer-to-peer network. When bitcoin miners add a new block of transactions to the blockchain, they are awarded bitcoin. As simple as that sounds, bitcoin is only awarded to the miners that solve the puzzles first. The competition surrounding bitcoin mining led to individuals seeking out more powerful computers, faster internet connection, and cheaper infrastructural services, especially electricity, to maximize the possibility of profiting from bitcoin mining.

Unfortunately, there is a darker side to that modern treasure hunt for riches. Computers must be run continuously and as a result, create significant demands on the energy sector. A typical server consumes approximately 1.5 kilowatts of energy. Multiply that by the hundreds of thousands of machines engaged in Bitcoin mining, and the environmental impact is significant. Bitcoin miners have also started to locate their computational mining equipment in geographical locations that have less restrictive environmental regulations and that offer cheap energy in order to enhance their profits. As a result, cryptocurrency mining has relied on both dirty energy sources, such as coal, as well as renewable energy. Depending on the energy source, researchers estimate that crypto mining can produce up to 15 million tons of global carbon emissions annually. Yet, local and federal governments have not created regulatory oversight mechanisms to address these new environmental issues caused by crypto mining. Undoubtedly, as new kinds of cryptocurrencies emerge and gain popularity, new regulations directing actions of bitcoin miners will have to be considered in the near future.

Unfortunate Comparisons between Ozone and Climate Treaty Systems

Looking for information on the (unhappy) outcomes of the Madrid climate change negotiations, this NY Times Editorial Board piece from a week ago caught my eye.  There is not anything specifically inaccurate in it.  But it just continues to buy into the conventional wisdom that the UN climate change negotiation system is a good process that, like the ozone treaties, will eventually yield success.  Unfortunately, the ozone treaties (the Vienna Convention and the Montreal Protocol) were much simpler treaties.  When they were first created, they involved far fewer countries and were not nearly as ambitious.  There is one other issue that I wish people talked more about.  Climate change is, as a practical matter from the carbon emission perspective, not really a “global” problem, even though the global negotiation process pretends it to be.

Twenty countries account for more than 80% of the world’s carbon emissions; the top 10 countries account for 71%; and the top 5 for 61%.  (Take a look at the Union of Concerned Scientists carbon emission chart as well as the statistics of the International Energy Agency.) Imagine having a negotiation among these 5 countries, China (29% of world emission), US (16%), India, Russia, and Japan (instead of the 200 within the UNFCCC),  where the outcome would address almost 2/3 of the world’s carbon emission.  Heck, if you threw in the European Union (EU-28), you would have a whoppy 6 party negotiation and capture an additional 10% of carbon emission for a total of 71% of world emission.  Of course, negotiating among these countries would be no cake-walk.  But at least, the negotiators would no longer be able to hide in the crowds and behind the facade of semi-anual gigantic international conference with an enormous carbon footprint.

 

The Reach of the Clean Water Act

By Ally Romero

The County of Maui v. Hawaii Wildlife Fund case has produced a fascinating argument that is currently pending before the Supreme Court. The case considers the reach and limitations of the Clean Water Act, and presents a debate on how the legislation applies to pollutants that contaminate the ocean by traveling through groundwater. Adam Liptak, a writer for the New York Times, has written a piece that focuses on some of the liveliest aspects of that debate. Liptak, Adam, Supreme Court Weighs Limits on Water Pollution Law, The New York Times, available at: https://www.nytimes.com/2019/11/06/us/supreme-court-clean-water-act.html

For background, the case centers on a wastewater treatment plant on Maui that has used injection wells to dispose of sewage by pumping it into groundwater. This groundwater is hydrologically connected to the Pacific Ocean, and the pollution thus eventually drains into the ocean, creating a potential threat to the marine environment and beach users. The Clean Water Act stipulates that “point sources” of pollution must obtain permits or else polluters can be subject to fines upwards of $50,000. Elbert Lin, counsel for Maui County, has argued that his client does not need to obtain a permit since the pollution passed through groundwater, and groundwater is not a point source. He stated that, “The law only applies when the point source is the means of delivering pollutants to navigable waters.” Another lawyer for Maui County presented an illustrative analogy. He said, “If at my home I pour whiskey from a bottle into a flask and then I bring the flask to a party at a different location and I pour whiskey into the punch bowl there, nobody would say that I had added whiskey to the punch from the bottle.” A lawyer for the environmental groups countered with another analogy by saying, “When you buy groceries, you say they came from the store, not from your car, even though that’s the last place they were before they entered your house. Likewise, the millions of gallons of treated sewage entering the Pacific Ocean off West Maui every day come from petitioner’s wells under any understanding of the term.” 

A number of justices expressed concern that a narrow interpretation of the Clean Water Act would allow polluters to evade the goals of the legislation. However, they also seemed bothered by how difficult it would be in other situations to determine the source of the pollution, if many different people could be the culprit. Chief Justice Roberts expressed his dissatisfaction by saying, “So all you have to do is get a bunch of neighbors and all put the septic tanks in, and then you’re scot-free? … It’s an Agatha Christie novel. You have 20 people and they shoot the gun at the guy at the same time.”

While this is a heavily debated topic, I can understand the logic from both County of Maui and the Hawaii Wildlife Fund. However, the arguments put forth by the environmental groups are especially persuasive. Counsel for Maui County relies on the definition of a point source as “any discernible, confined and discrete conveyance, including pipes, tunnels, and wells” as well as another provision that bars “any addition of any pollutant to navigable waters from any point source.” A decision that is based on those provisions exactly may be in line with the text of the Clean Water Act as it exists today, but may not necessarily be in line with the intent. Some have pointed out that since this litigation has been pending, the coral reef in the area of the ocean off West Maui has started to die as a result of this pollution. Allowing polluters to harm the environment without suffering any consequences, based on a technicality, seems contradictory to the goals of the Clean Water Act. Chief Justice Roberts’ point about struggling to discern who is to blame in future situations is surely relevant as this decision may set future precedents. However, in the case that is before the court now, it is obvious who and what is to blame. I will not try and predict how the Supreme Court will decide this matter, but I do think that in situations such as this, where the environment is being damaged and experts can trace that damage directly to certain pollution, those polluters should have to obtain permits or pay the necessary fines per the Clean Water Act. This approach seems to conform more to the intent of the Clean Water Act, which is to restore and maintain the integrity of national waters. 

Position: Pace Law School, Visiting Assistant Professor in Environmental Law (Deadline: Dec. 20, 2019, White Plains, NY)

From my emails:

Visiting Assistant Professor (VAP) in Environmental Law at the Elisabeth Haub School of Law at Pace University

The Elisabeth Haub School of Law at Pace University seeks applicants for a Visiting Assistant Professor (VAP) in Environmental Law. The VAP in Environmental Law will hold a one-year appointment, renewable for a second one-year term. The appointment is designed to mentor and train future environmental law professors and prepare them for the law school teaching market. Pace defines environmental law broadly and welcomes candidates with interdisciplinary interests and approaches to environmental law.

The VAP will have a teaching load of one course per semester and the opportunity to focus on scholarly research and writing. The VAP will receive the same office and administrative support as other faculty members, is invited to participate fully in faculty activities, and will receive a small travel and research fund. Additionally, the VAP will present a work-in-progress at Pace Law’s Future Environmental Law Professors Workshop, receive feedback and mentoring from other scholars, and present a finished manuscript to the faculty at our weekly scholarly colloquium.

Candidates will be selected based on their prior work and educational experience, and teaching and scholarly potential. Pace is committed to achieving equal opportunity in all aspects of University life.  Applications are encouraged from people of color, individuals of varied sexual and affectional orientations, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of the law school.

Applicants should submit:

  • Cover letter (discussing qualifications and interests)
  • Curriculum Vitae (that lists three references and law school courses the candidate would be interested in teaching)
  • Law school transcript
  • One published scholarly article or an unpublished paper draft or prospectus that reflects the candidate’s scholarly interests and potential

Applications should be received by Friday, December 20, 2019, but will be considered thereafter until the position is filled.

If you would like to be considered for a Visiting Assistant Professor in Environmental Law appointment beginning in the Fall of 2020, please send your application materials via email to Jennifer Chin at jchin2@law.pace.edu. Please direct any questions to Professor Margot Pollans at mpollans@law.pace.edu.  Only electronic submissions will be accepted.