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.

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.

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. 

A really insightful piece about the current state of the global climate change negotiations and politics.

As I have been looking for information about the current status of the negotiations on Article 6 of the Paris Climate Agreement in the ongoing UNFCCC climate change meeting in Madrid, Spain, a colleague pointed me to the blog of RINGO (Research and Independent NGOs), ringosnet.wordpress.com.  It has a link to a very useful paper by Axel Michaelowa, Aglaja Espelage & Benito Müller of the European Capacity Building Initiative on the Article 6 negotiations leading up to this climate change meeting and the significance of Article 6 (https://ecbi.org/sites/default/files/Article%206%202019.pdf).

Article 6 deals with ITMOs, i.e. Internationally Transferred Mitigation Outcomes, which is the “treaty-speak” for international market mechanisms, i.e. primarily emission trading. These mechanisms were more explicitly set out in the 1997 Kyoto Protocol (Joint Implementation mechanisms, Clean Development Mechanism, Emission Trading, and the so-called EU-Bubble).  [Now that I read the terms and my description of them being “explicit,” I realize that they are no less obscure than ITMOs.  At least when terms like Joint Implementation and Clean Development Mechanisms were introduced with the 1997 Kyoto Protocol, they had not independent meaning.  Score one for obscure (international treaty) legalese making it impossible for non-lawyers to understand the important concepts.]  Since the Kyoto Protocol (KP) commitments have expired, among the key questions for the Paris Agreement is how these activities under the KP will carry over into the Paris Agreement (especially the valuable credits that companies and countries have created or otherwise acquired under the KP).  So far, however, it’s been quite difficult to get a good read on what has been going on in the Madrid negotiations.  But with the meeting end in sight in just a couple of days, the world will know a lot more soon.

By Ally Romero.

As a particularly sensitive agricultural product, wine is a good marker for the effects climate change will have on rural traditions that have been in place for centuries. One interesting perspective of these changes is offered in a recent New York Times article by Eric Asimov, Asimov, Eric, How Climate Change Impacts Wine, The New York Times, available at: https://www.nytimes.com/interactive/2019/10/14/dining/drinks/climate-change-wine.html. 

One undeniable change is that the wine map is growing. Winemakers are now able to grow grapes in areas that were once considered too cold for fine wine. A great example of this is in England. Thirty years ago, an English sparkling wine did not exist. Today, England is home to a warmer climate and a booming sparkling wine industry. The soil was not a constraint. In fact, the chalky-white soil found in England is almost identical to the soils of the Champagne region of France and has been present in England for centuries. Now that the climate has warmed, winemakers are able to actually take advantage of the soil, and companies like Taittinger and Vranken-Pommery Monopole have invested in English vineyards. In fact, producers are now able to plant vineyards at altitudes that were once inhospitable to growing wine grapes. At higher altitudes, heat lasts for shorter periods of time, and temperatures at night tend to be colder compared to lower altitudes. In Spain, producers are planting vineyards at altitudes of 3,000 – 4,000 feet, whereas twenty-five years ago that would have been an impossibility. 

Climate change is not all beneficial for the wine industry, though. In some regions, producers are having to rethink the type of grapes that they or their family have grown for centuries and switch to varieties that will thrive in the changing climate. This process has already begun in some areas. For example, in Bordeaux (a region known for its cabernet sauvignon) wine makers have been looking at seven additional grapes to determine if they can help mitigate the effects of climate change. They will be used in small quantities only and closely monitored to account for their effectiveness. Further, climate change has made weather more unpredictable than ever before. Even the most experienced farmers no longer know what to expect. Producers note that hail has posed threats, unprecedented rain is now occurring in the summer, while winters have been dry. Moreover, increased moisture in the summer has caused vine pests to reproduce rapidly, creating four cycles of pests a year rather than the traditional two. In California, access to water is not always guaranteed, a challenge exacerbated by more frequent droughts. This has forced growers to consider either putting their existing grapevines on drought-resistant rootstocks, or using other grapes entirely.

In a nutshell, climate change is profoundly changing the wine industry. Some climate effects are widening the market and allowing new regions to benefit from producing more and better wine. Other changes are threatening the vitality of grapes that have thrived for centuries. For winegrowers, however, there is probably one overall lesson: success in the wine industry no longer seems dependent on how experienced a farmer is or how long a family has been in the business. Instead, the ability to adapt to changing conditions may be more important than ever to surviving and succeeding in the wine industry. In the Burgundy region, for example, producers have installed a system aimed at preventing the formation of hailstones by which particles of heated silver iodide are shot in the direction of storm clouds. Some farmers are covering their vines in bird netting to protect against the changes. Others have begun to employ environmentally friendly tactics in an effort to reduce their carbon footprint. California growers have started training owls and falcons to control pests, eliminating the need to use harsh pesticides. Incorporating innovative solutions like those listed above may be the key to achieving prosperity. 

Business is inherently rooted in competitiveness, so on the one hand it makes sense that in order to succeed, one needs to continuously work to modify and improve one’s product. However, on the other hand, it’s interesting to note that this need for adjustment is now embedded in climate change. While this might be a fairly new concept in the wine industry, the laws of success in business will not waiver. As time progresses, climate change will continue to impact the wine making process and serve as a differentiator between those who can adjust and succeed and those who cannot.  

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.

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.

Under 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.)

On 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!