Earlier today, I watched new EPA Administrator Scott Pruitt’s Welcome Address to EPA employees (mostly senior career civil servants), streamed live on EPA’s website.   After a cordial welcome by Catherine McCabe (Deputy Regional Administrator for Region 2 and long-time career civil servant) who served as Acting EPA Administrator for the transitional period until Pruitt’s Senate confirmation, Pruitt gave a surprisingly earnest set of remarks about the priorities for his leadership of EPA.  I say “surprisingly,” because the tone of his remarks stood in stark contrast to the combative and divisive speeches and comments of President Trump and because Pruitt’s words came across (at least to me) much more conciliatory than much of what we have heard from and about Pruitt’s views and positions of EPA in the past.  Of course, the substance of the agenda remains to be seen, and the speech did not appreciably step back from key criticisms by Republicans of EPA’s work.  A couple of examples included his admonishment against “regulation by litigation,” i.e. the (false, in my view) perception that EPA changes statutory requirements through the litigation process and consent decrees, and “regulation by guidance,” i.e. using guidance documents to promulgate substantive regulatory requirements — both standard but unfair criticisms of EPA’s work.

His substantive speech outlined three themes for his agenda at EPA:  1) process, 2) rule of law, and 3) federalism.  In regards to process, his view is that EPA must engage in more dialogue with other stake-holders (presumably industry) and compromise.  With respect to the rule of law theme, he emphasized his desire to stick more closely to statutory language.  Here is also where he gave his admonishment against “regulation by litigation,” and regulation by guidance.”  His last theme, federalism, focused on EPA being more respectful of the states’ role in environmental regulation.  (The immediate question that came to my mind is whether he will take this seriously with respect to states, such as California, that want to pursue more protective and progressive environmental policies, including on climate change.  If this is just rhetoric, that would be too bad.)

Interestingly enough, he mentioned the Assumption (of war debt) issue that arose during the founding of the United States, based on his reading of Chernow’s Hamilton book. (I just read Chernow’s book as well, so that part of the book is also fresh in my mind.)  He also quoted John Muir, though not a passage that I was familiar with.  If he is an engaged reader, I genuinely hope that his reading is not only backward-looking in time but also forward-looking, extending to works addressing the big environmental challenges of our times, such as climate change.

Overall, the conciliatory tone of the speech seemed quite appropriate given that he will need the help of all of the career staff in order to accomplish whatever he and the White House have in store.   For the sake of the career staff and the institution, that is a positive development.  At the same time, I did not get the impression that policy-wise, there will be any effort to step back substantively from the plans for rolling back regulations, especially on climate change regulation and the Waters of the United States regulation (i.e. defining the reach of the EPA’s Clean Water Act jurisdiction), or to fundamentally restructure or drastically cut back EPA.  (I have not yet seen the Executive Orders that the White House appears to be ready to release shortly regarding the EPA.)   And ultimately, that is what will matter most.

Here are links to a couple of articles on the speech already, Bloomberg and Forbes.

Many strawberry farmers in California have relied on methyl bromide because it is considered “the most effective chemical to control soil-borne pathogens and weeds.” But using this pesticide also comes at a cost: the pesticide is hazardous to humans and the environment, namely because of its negative impact on the ozone layer. Although these consequences have been known since 1987, and its’ use has been restricted in the United States, California farmers continue to depend on the pesticide legally as a result of EPA’s “critical use exemption.” To qualify for the “critical use exemption,” methyl bromide users must believe they have “no technically and economically feasible alternatives” and fill out the required application.

However, California strawberry farmers who continue to use methyl bromide need to consider alternatives to this pesticide because it can no longer be used after this year. Some California famers are considering going organic because of the profitability of organic produce, but they worry about the increase in costs associated with going organic while not reaping the benefits during the requisite transition period and the lack of affordable land in the area.

One option that addresses both issues is for strawberry growers in the Bay Area to acquire land that has a conservation easement attached to it. Many NGO’s, including Peninsula Open Space Trust (POST), purchase land and resell it subject to a conservation easement in order to ensure that the land continues to be open space and undeveloped. The restrictions placed on the land allow land users, including farmers, to purchase or rent it at a reduced price. Other organic farmers have utilized this approach and find it beneficial and cost-efficient. Acquiring land at a reduced price will also lessen the financial issues associated with transitioning to organic farming because money is being saved on land-use costs. Strawberry farmers who are considering going organic should work with NGO’s in order to secure affordable land in the Bay Area.

-Courtney Eggleston, SCU Law 3L

Recently, Whole Foods, a health foods grocery chain was fined $3.5 million for violating hazardous waste reporting requirements under the Resource Conservation and Recovery Act. The company failed to adequately record and catalog its hazardous waste in stores in Texas, Arkansas, Louisiana, Oklahoma, and New Mexico. The store issued a statement explaining that it failed to properly report some of the returned products, which qualify as hazardous waste (nail polish, bleach, hand sanitizer, etc.). The company has agreed to pay the fine, in addition to implementing training and providing funding to educate other businesses.

Although this fine may seem harsh or unwarranted, given that the company was not accused of improperly disposing of hazardous waste, and the violation was limited to inadequate record keeping, the fine is warranted nonetheless given how the hazardous waste statute was designed to work. In order to protect human health and the environment from improper treatment or illegal dumping, as well as to reduce the amount of hazardous waste that is generated nationwide, the Resource Conservation and Recovery Act (RCRA) gives the EPA (Environmental Protection Agency) the power to regulate hazardous waste “from cradle-to-grave.” This means that hazardous waste is tracked throughout its life-cycle, primarily by way of record keeping by multiple parties, including generators and transporters of the hazardous waste.

For this tracking safeguard to work effectively against illegal dumping or other improper disposal, fines must be sufficiently serious to ensure compliance and to discourage a company’s choice to simply opt for paying the fine. Otherwise, RCRA’s “cradle-to-grave” approach would fail. In the Whole Foods case, the substantial fine issued unambiguously signals to other entities the importance of record-keeping and the significant costs they may face if they do not comply with RCRA’s reporting requirements.

Courtney Eggleston, 3L

Tseming Yang, Christopher Bacon

October 11, 2016 | 4 – 5:15pm
St Clare Room, Library/Learning Commons, Santa Clara University

Almost 35 years have passed since protests in Warren County, NC against the siting of a toxic waste disposal facility in a predominantly African-American community trained nationwide attention on the emerging environmental justice movement.  Even as the term of the country’s first African -American President comes to an end, however, the goal of environmental justice remains unfulfilled.  The talk will review the history of the movement, how it has changed perspectives on the role of race and equity in environmentalism and regulatory policy, and some of the remaining key challenges that face the next Administration.

The 2016-2018 Bannan Institute: Is There A Common Good in Our Common Home? A Summons to Solidarity will explore pressing issues of racial and ethnic justice, economic justice, gender justice, and environmental justice facing our world today, and advance the Jesuit, Catholic vocation of SCU, building a more humane, just, and sustainable world.   

Yesterday, Wednesday October 5, was a big day for the Paris Climate Agreement.  With 10 countries and the European Union depositing instruments of ratification , the Agreement’s second key threshold for entry-into-force has now been satisfied. The 10 countries were Austria, Bolivia, Canada, France, Germany, Hungary, Malta, Nepal, Portugal and Slovakia. Per the UNFCCC website, the Agreement’s current total number of 74 parties now account for 58.82% of the world’s greenhouse gas emissions, more than the 55% threshold for entry-into-force under Article 21.  (The first key threshold, 55 parties, was crossed a couple of weeks ago.)

Just as a point of general interest: for purposes of satisfying the entry-into-force threshold, the EU’s ratification does not count, though it was critical for allowing the EU member countries to ratify the Paris Agreement (here Austria, France, Germany, Hungary, and Slovakia).  The simple reason for that is to avoid double-counting.  At the same time, EU ratification of (and membership in) the Paris Agreement is necessary per the internal structure of the EU and the types of government authorities that have been transferred from the member states to the EU.

Crossing the second and final threshold also means that the 30-day countdown to the entry-into-force, i.e. the legal effectiveness of the treaty, has now been triggered.  The Agreement’s provisions will become legally effective on November 4, just in time for the next scheduled international climate change meeting in Marrakech, Morocco, starting November 7 (referred to as COP 21 because it will also serve as the 21st annual meeting of the original UN Framework Convention on Climate Change parties).

And finally, it also means that the United States and all other current parties are now locked into the Paris Agreement for at least three years, starting November 4, 2016 (per Article 28).  [Edit:  As it was kindly pointed out by Steve Wolfson and others, Article 28.3 provides that withdrawal from the underlying UN Framework Convention on Climate Change automatically also withdraws a party from the Paris Agreement. (“Any Party that withdraws from the Convention shall be considered as also having withdrawn from this Agreement.”)  The Convention only has 1 year waiting period for withdrawal.  Hence, using the Convention’s  withdrawal process could allow a country to withdraw from the Paris Agreement within 1 year, rather than 3 years.]

Hip hip hooray for the Paris Agreement!

Although 43 years later, the current pipeline protests at the Standing Rock Sioux Reservation in North Dakota parallel the activism that spurred the environmental justice movement in Warren County, North Carolina. These protests have additional distinctions aside from their difference in time and location. For example, the minority group that faces or faced immediate harm from development (African Americans in Warren County and Native Americans in North Dakota) and the type of land alteration proposed (construction of a landfill in Warren County and a pipeline in North Dakota). However, aside from these differences, both instances of activism share an important similarity.

Both groups utilized other contemporaneously occurring groups and movements to strengthen the effectiveness of their demonstrations. In Warren County, civil rights groups and religious leaders joined local residents. In North Dakota, the Sioux tribe has the support of other Native American tribes, environmentalists, and leaders of the Black Lives Matter Movement among others. The Black Lives Matter organization issued a statement on their website equating the threat of contamination into the Missouri River by the proposed pipeline to the current lead contamination in Flint Michigan drinking water.

In this way, both instances of activism gained momentum and power by banning with movements and groups with complimentary beliefs and ideologies. These sets of protests demonstrate the power of unity, particularly for minority groups; when able to unite, minority groups can enact change that might not be possible individually.

The Black Lives Matter organization goes a step further in their statement on the Standing Rock activism. They assert that the protest in North Dakota is a protest for all of us because it is “[a] movement for the recognition that water is life.” By framing the issue in such general terms, the Black Lives Matter Movement has made the Standing Rock movement a human-rights issue and by doing this will likely garner even more widespread support. Both the Warren County and the North Dakota movement have drawn upon support of others to effect change, specifically in the form of environmental awareness. The Sioux tribe should utilize environmental arguments that frame the pipeline issue in broad terms, such as the right for all to have access to clean water, in order to maximize their support.

Courtney Eggleston, 3L

Wilderness areas around the world are declining in alarming rates. South America and Central Africa experience the largest losses. South America is home to the Amazon, an ecosystem consisting of the world’s largest diversity of species, and the most deforestation. Today, only 20% of Earth’s surface is covered in wilderness.

It is important to note that the loss of most ecosystems and their essential services are irreversible. Some ecosystems services are reproducible, but only at a great cost. The loss of ecosystems includes the extinction of species, many of which had yet to be discovered. Thus, their loss may never fully be realized. On a larger scale, the destruction of wilderness contributes to global warming. Deforestation results in less carbon dioxide filtration and production of oxygen. Thus, the loss of wilderness will eventually erode the health of the entire planet.

The destruction of wilderness raises both issues of environmental justice and international law. The majority of wilderness destruction occurs in third world countries for the benefit of first world countries. Essentially, the resources of the poor are used for the benefit of the rich. Furthermore, communities near the destruction of ecosystems experience harm disproportionately to those who ultimately benefit from it. Often, the pressure of economic development overrides concern for the environment or human health.

Therefore, international cooperation and policies are needed to overcome the problem of wilderness destruction before it is too late. First, it must be acknowledged that wilderness destruction is a global issue that spans national boundaries. Further, loss of wilderness must be closely monitored to prevent unacceptable wilderness destruction. Last, enforcement should be aim to be preventive, not reactive. In all, our planet’s remaining wilderness requires protection more now than ever.

Christopher Klapperich, 2nd Year Law Student

Per the UN, 31 countries ratified or accepted the  Paris Climate Agreement today, September 21.  That means that with the previous ratifications/acceptances, the Paris Agreement has now 60 parties, crossing the 55 party threshold that is necessary for the agreement to enter into force, i.e. become legally effective. Since today’s ratifications/acceptances included some large countries who are significant GHG emitters, such as Brazil, it also means that the agreement now covers 47.76% of the world’s GHG emissions (per the Paris agreement tracker of ratifications).  That puts the agreement within striking distance of reaching 55% coverage of worldwide GHG emission, the second critical threshold for entry-into-force.

If this second threshold is met before the next President enters office, it could make the Paris Agreement’s legally effective before that time.  With the Agreement legally in effect, it would become significantly more difficult for any subsequent President opposed to the Agreement to withdraw immediately from it (as GOP Presidential candidate Trump has previously suggested he might do).  Per Article 28, a three year waiting period would then apply.  [Edit:  As it was kindly pointed out by Steve Wolfson and others, Article 28.3 provides that withdrawal from the underlying UN Framework Convention on Climate Change automatically also withdraws a party from the Paris Agreement. (“Any Party that withdraws from the Convention shall be considered as also having withdrawn from this Agreement.”)  The Convention only has 1 year waiting period for withdrawal.  Hence, using the Convention’s  withdrawal process could allow a country to withdraw from the Paris Agreement within 1 year, rather than 3 years.]

However, for the agreement to be effect on January 20, 2017, when the next President is inaugurated, that second, 55% threshold would have to be crossed (by additional countries depositing ratifications/acceptances) by December 22, 2016.  That is due to the 30 day delay for entry-into-force imposed by Article 21.  Hence, December 22, 2016 will be the day to watch for this contingency.

I had a wonderful Saturday morning with my daughter Gwen-Zoe and the Santa Clara Law School Environmental Law Society students at the Natural Bridges State Beach for the California Coastal Clean-up Day (September 17). In the picture above are Shelby Rogers, Devin, Jessica Atwood, Jojo Choi with dog Bobo, and Gwen-Zoe and me.  Unfortunately, I have not gotten the group picture with all the participants yet, but the turn- out was great! Some 25-30 students from the ELS, my torts course, and friends.  I will post that group picture when it becomes available to me.  By my estimate, we must have collected more than 50 pounds of trash.

Here are 5 haikus I wrote in honor of the terrific effort by the next generation of Santa Clara lawyers toward helping to fix the environment, as well as that of the following generation of my daughter

Natural Bridges Beach
Coastal Clean-up Day
Students pick much trash

Daughter Gwen helped out
Garbage found is plentiful
Use less packaging

Many strange objects
Bong on the beach? Rocking chair!
Yard sale potential?

Check nearby places
Finding homeless encampments
Unknown waste galore

Garbage on the cliffs
Devin is a daredevil
Liability?

**** Update – group picture, but I think a few students are still missing