ENVIRONMENTAL LEGAL BLOGS

MORE ON THE POLITICIZATION OF HURRICANE KATRINA

"The hurricane that struck Louisiana and Mississippi on Monday was nicknamed Katrina by the National Weather Service. Its real name is global warming."  Ross Gelbspan, The Boston Globe, August 31, 2005

"By neglecting environmental protection, America's president shuts his eyes to the economic and human damage that natural catastrophes like Katrina inflect on his country and the world's economy."  Jurgen Tritten, Germany's environmental minister, in an op-ed in the Frankfurter Rundschau (as quoted by columnist James K. Glassman on the blog Tech Central Station).

However, on August 30, 2005 The New York Times carried the following politically incorrect article :

Storms Vary With Cycles, Experts Say

Because hurricanes form over warm ocean water, it is easy to assume that the recent rise in their number and ferocity is because of global warming.

But that is not the case, scientists say. Instead, the severity of hurricane seasons changes with cycles of temperatures of several decades in the Atlantic Ocean. The recent onslaught "is very much natural," said William M. Gray, a professor of atmospheric science at Colorado State University who issues forecasts for the hurricane season.

...

Global warming may eventually intensify hurricanes somewhat, though different climate models disagree.

In an article this month in the journal Nature, Kerry A. Emanuel, a hurricane expert at the Massachusetts Institute of Technology, wrote that global warming might have already had some effect. The total power dissipated by tropical cyclones in the North Atlantic and North Pacific increased 70 to 80 percent in the last 30 years, he wrote.

But even that seemingly large jump is not what has been pushing the hurricanes of the last two years, Dr. Emanuel said, adding, "What we see in the Atlantic is mostly the natural swing."

     Perhaps, then a little caution is in order before we throw the American economy into a tailspin.   As even blame-everything-on-global-warming columnist Gelbspan comments:

... To allow the climate to stabilize requires humanity to cut its use of coal and oil by 70 percent. That, of course, threatens the survival of one of the largest commercial enterprises in history [the oil and coal industries].

     This is an amazing admission, which Mr. Gelbspan apparently does not recognize, against his own argument that global warming must be reversed because it threatens life-as-we-know-it on planet Earth.  Most rational people are aware, even if Mr. Gelbspan is not, that a reduction of oil and coal use by 70 percent would send the economy into a depression-- also ending life-as-we-know-it on planet Earth. 

     I guess that's OK with Mr. Gelbspan because at least the depression would be colored green.

HURRICANE KATRINA-IT'S ALL BUSH'S FAULT-PART 2

     More "It's all Bush's fault":

Well, George and I are leaving Crawford today. George is finished playing golf and telling his fables in San Diego, so he will be heading to Louisiana to see the devastation that his environmental policies and his killing policies have caused.  Recovery would be easier and much quicker if almost ½ of the three states involved National Guard were not in Iraq. All of the National Guard's equipment is in Iraq, also. Plus, with the 2 billion dollars a week that the private contractors are siphoning from our treasury, how are we going to pay for helping our own citizens in Louisiana, Mississippi, and Alabama? And, should I dare say "global warming?" and be branded as a "conspiracy theorist" on top of everything else the right-wingers say about me.

Cindy Sheehan in The Huffington Post

     The problem with this "analysis" is that it lacks any factual support.  First of all, the problem with relief efforts is not that there are too few assets available but that there often is no way to get those assets to the affected areas because roads, bridges and communications are down.  Second, even a brief glance at TV reveals that not "[a]ll of the National Guard's equipment is in Iraq."  Are those military vehicles we see on rental from Hertz?

      Regarding Bush's "responsibility" for global warming, see my previous Post.  Ms. Sheehan and the environmentalist fringe might recall that the Kyoto Treaty was unanimously rejected by the United States Senate--and Bush wasn't even President yet.  I guess to this crowd all that shows is Bush's (and Karl Rove's) incredible Machiavellian powers over the United States government even before Bush became President.

     It's always all Bush's fault.

   

WETLANDS COMEDY FOR MID-WEEK: IT'S ALL BUSH'S FAULT

     Amid the tragic stories from Hurricane Katrina, some mid-week comic relief.  On the blog, "Seeing the Forest", we are lectured under the heading "Why does Bush hate Louisiana?":   

       It Takes A Hurricane

If it takes a hurricane to wake up the American people, I will not be apologetic for pointing out the obvious. Red state voters have no one but themselves to blame for the excess hardship that will be caused by years of callous neglect from the Bush administration.

 Hmmm... at the same time, USA Today reports in its August 31 edition that:

Decades of flood-control efforts to protect New Orleans and other places, combined with the region's huge oil and gas investments, have contributed heavily to the destruction of coastal wetlands that can help tame the fury of storms like Hurricane Katrina, say scientists and government officials.

(emphasis supplied).

     Gee, I didn't know that President Bush had been in power for "decades", did you?

 The USA Today article goes on to point out that "... in recent decades, development and natural causes have compromised what oceanographer Abby Sallenger of the U.S. Geological Survey calls the 'first line of defense.'"  (emphasis added).  I wonder if the "Seeing the Forest" bloggers blame Bush for "natural causes" or for displeasing God, too?

     Well, even if those bloggers don't, their ideological soul-mate, Robert F. Kennedy, Jr., does.  In an article, "For They that Sow the Wind Shall Reap the Whirlwind", posted on The Huffington Post, Kennedy has these words of Biblical-type wisdom:

As Hurricane Katrina dismantles Mississippi’s Gulf Coast, it’s worth recalling the central role that Mississippi Governor Haley Barbour played in derailing the Kyoto Protocol and kiboshing President Bush’s iron-clad campaign promise to regulate CO2.

...

Well, the science is clear. This month, a study published in the journal Nature by a renowned MIT climatologist linked the increasing prevalence of destructive hurricanes to human-induced global warming.

Now we are all learning what it’s like to reap the whirlwind of fossil fuel dependence which Barbour and his cronies have encouraged. Our destructive addiction has given us a catastrophic war in the Middle East and--now--Katrina is giving our nation a glimpse of the climate chaos we are bequeathing our children.

In 1998, Republican icon Pat Robertson warned that hurricanes were likely to hit communities that offended God. Perhaps it was Barbour’s memo that caused Katrina, at the last moment, to spare New Orleans and save its worst flailings for the Mississippi coast.

     As always, it's all Bush's fault.

FLOURISHING WETLANDS

     In an article entitled "Drought proves bonanza for wetlands, waterfowl", Pentagraph.com carries the following AP report:

A lingering drought that stymied Illinois' grain crop has helped wetlands thrive along the Illinois River and that could mean bigger flocks of waterfowl during hunting season, officials said.

Wetland plants that drown in standing water during typical summers have flourished during the state's sixth-driest March through July on record, providing food for migrating ducks, geese and other waterfowl, said Josh Stafford, a research scientist with the Illinois Natural History Survey.

    Do we need wetlands?  Yes.  Are the wetlands in the United States under universal assault, justifying prosecution of folks such as Mr. Rapanos, who have only the most tangential connection to the issue (see "WETLANDS" under "CATEGORIES" on the right-hand side of this page) ?  No.  Yet we hardly ever read, in the "mainstream media", stories like this one.  Kudos to the AP for, at least in this instance, balanced coverage of the status of wetlands.

KYOTO PROTOCOL ON THE ROPES?

  From news.com.au (Australia) today:

A coalition of 22,000 New Zealand businesses, under the auspices of the New Zealand Chambers of Commerce and Industry, called on both parties in the New Zealand election to start talks on pulling out of the Kyoto Protocol by 2008 - the earliest possible date to do so.

The chief executive of the Employers and Manufacturers Association of New Zealand, Alasdair Thompson, said compliance had cost companies much more than the Government predicted. It has been estimated that New Zealand may have to spend between $600million and $1.2billion to meet its Kyoto commitments on greenhouse gas emissions instead of gaining carbon credits.

"The Government's carbon credit calculations were incorrect to begin with, and business concern is growing that the latest calculations on the extent of the liability are still wrong," Mr Thompson said.

Germany's industry bodies said last week "the hopes on the Kyoto Protocol were unfortunately not fulfilled" and that consideration for all countries to join the recently agreed six-nation Asia-Pacific Clean Air and Development partnership "after the expiration of the Kyoto Protocol in 2012".

The industry group president, Juergen Thumann, said "we could fully use our potential on new climate conversing technologies in international competition with such an alliance".

"DOING MY PART FOR THE PLANET" by ANDY STONE

Reprinted with the permission of the author, Andy Stone; credit to The Aspen Times.  The column as originally posted on The Aspen Times' website can be found here.

Doing my part for the planet

By Andy Stone
August 25, 2005

I don't mind saving the planet, but what the heck am I going to do with all these TV sets? And the miniature coffee makers? I'm running out of storage space.

Let me explain.

It all started with those annoying little cards that show up in almost every hotel room these days (except, of course, for really nice hotels).

You know, they're propped on the bathroom counter and they explain how the hotel is deeply concerned with the fate of the planet. And because of that deep, deep concern, the hotel is horribly depressed about the tragic waste of the millions of gallons of hot water that are used every day to wash hotel towels.

And so, the card implies, if you're any kind of halfway decent human being, if you have any concern whatsoever for the future of the planet, you certainly won't expect the hotel to wash your towels every day.

Come on! Think of poor Mother Earth!

I admit I find it curious that 1. Every hotel in the world has suddenly become environmentally conscious, and, 2. The only way they can think of to save the planet somehow involves saving themselves a lot of money.

Is that really all they could think of?

I mean, right off the top of my head, it occurs to me that a lot of hotels could help the environment by improving the food they serve at their lousy restaurants - which would cut way down on customer flatulence and thus reduce emissions of dangerous greenhouse gases.

But you never see a hotel bragging about that, do you?

And what really gets me is the last line on those little cards, the official "instructions":

If you hang your towel on the rack, that means you don't need it replaced. If you leave the towel on the floor, that means you want a fresh towel.

In other words, "If you don't give a damn about the planet, act like a raging slob and throw your towels on the floor. That's just what we'd expect from someone like you."

I can imagine where all this is heading:

"Dear Guest: Every year, timber harvesting clears millions of acres of forests, depriving wildlife of shelter and damaging the air we breathe by destroying chlorophyll. To help preserve our vital forestland, we no longer put furniture in our rooms. If you want to join us in our effort to save the planet, please sleep on the floor. If you selfishly insist on furniture, please call the front desk and tell the operator, 'I am an evil despoiler of the planet.' A cot will be sent to your room. Please don't ask for sheets. (See the card on your bathroom counter for an explanation of why we no longer provide sheets or towels.)"

Next step: a sign on the door of your favorite restaurant, saying, "Dear Patron: Every year, a shameful portion of the planet's resources are devoted to providing scandalous quantities of food to overweight Americans, while millions starve in other lands. If you want to join us in our efforts to save the planet, please just slide $100 under the door and go home."

Do I sound bitter? Sure. But, hey, I want to save the planet as much as the next guy (or even more than the next guy - if the next guy is, for example, Dick Cheney).

So I've decided to help hotels in their campaign to conserve our vital resources. I've focused my efforts on saving electricity. And nothing wastes as much electricity in a hotel room as the TV set and that little mini-coffee maker.

So now, whenever I stay at a hotel with one of those "save the planet" cards, I do my fair share by taking the TV set and the coffee maker home with me. Yeah, it's a lot of work, but I'm willing to do my part.

But now I'm running out of storage space for those TVs and coffee makers.

Not to mention towels. I take those home too - that way the hotel doesn't have to wash them.

No need to thank me. I'm just a concerned citizen, doing my part.

Andy Stone is former editor of The Aspen Times. His e-mail address is [email protected]

---

 

AB 1341 AS RESURRECTED IS A COMPLETELY DIFFERENT BILL

     As I posted yesterday, AB 1341 has been resurrected; however, the new version of the legislation has nothing to do with its original subject matter.  Rather, the bill was amended in the State Senate on Monday, Aug. 22, and no longer deals with the recycling of major household appliances.  Here is how the amendment is reflected in the Legislative Counsel's Digest:

AB 1341, as amended, Committee on Environmental Safety and Toxic Materials  Hazardous waste: major appliance disposal.
California Pollution Control Financing Authority:
grants and loans.
   Existing law, until January 1, 2007, authorizes the California Pollution Control Financing Authority to provide grants and loans, not to exceed $5,000,000, to cities and counties deemed eligible by the authority, to assist in the development of various programs and policies to, among other things, reduce pollution hazards and the degradation of the environment, or promote infill development to revitalize communities. The authority is required, until that date, to annually report to the Legislature regarding the grant and loan program.
   This bill would extend the operation of these provisions until January 1, 2012, and would increase the amount of the grants and loans under the program to $7,500,000. It would also repeal an obsolete provision of law. 
   Existing law prohibits the disposal of materials that require special handling from a major appliance at a solid waste facility, pursuant to the hazardous waste control laws, and requires those materials to be removed from major appliances in which they are contained before the appliance is crushed, baled, shredded, sawed or sheared apart, disposed of, or otherwise processed.
  Existing law requires a person who transports, delivers, or sells discarded major appliances to a scrap recycling facility, after January 1, 2006, to provide evidence that the person is a certified appliance recycler, except as specified, and prohibits a scrap recycling facility from accepting a discarded major appliance, after January 1, 2006, from any person who is not a certified appliance recycler.    This bill would make technical nonsubstantive changes to those provisions. 

     As pointed out in previous Posting re AB 1341 (see "RECYCLING" category to the right), the fate of the legislation does not affect the fact that as of January 1, 2006 the State is imposing more restrictive requirements on the disposition of household major appliances.

BIBLICAL MARSHLANDS IN IRAQ RECOVERING FROM SADDAM

     This from the Associated Press today:

The marshlands of southern Iraq, reputed inspiration for the biblical Garden of Eden, have recovered rapidly since the fall of Saddam Hussein, whose regime turned much of the lush waterscape into arid salt flats, the United Nations said Wednesday. New satellite imagery shows a rapid increase in water and vegetation cover in just the past three years, with the marshes rebounding to about 37 percent of the area they covered in 1970, up from about 10 percent in 2002, the United Nations Environmental Program said.

***

Saddam drained much of the Mesopotamian waters between the Tigris and Euphrates rivers by building dams, dikes and canals to punish the Marsh Arab inhabitants for supporting a Shiite Muslim rebellion following the 1991 Persian Gulf War. He also ordered thousands killed.

The marshes had been the source for fishing, boating and small agriculture that once sustained a population of up to 500,000 people.

Of almost 3,600 square miles of marshes in 1970, the area shrank by 90 percent to 304 square miles by 2002.

     While the mainstream media highlights every homicide bombing and supposed US-setback in Iraq, why hasn't this positive environmental news received equal coverage?

AB 1341 RESURRECTED

     As readers of this Blog know, I have been tracking the fortunes of AB 1341, a bill makes some technical amendments to already-existing legislation (AB 2277) requiring that, as of January 1, 2006, commercial recyclers of major household appliances obtain State certification.  See the category "RECYCLING" on the right-hand side of this Blog.

     My last couple of Posts indicated that AB 1341 had been placed in the "inactive" file and that I was unable to get explanations from the pertinent legislators as to why this had occurred.  As of yesterday, however, the bill has been resurrected and now appears on its way to passage.

GAO REPORT ON MAKING THE POLLUTER PAY--INFORMATIVE BUT DISAPPOINTING

     On August 17, 2005, in response to inquiry from Sens. Leahy (D.-Vt.), Jeffords (I.-Vt.), Boxer (D. Calif.) and Cantwell (D.Wa.), the Government Accountability Office ("GAO") issued a "Report to Congressional Requesters" entitled "ENVIRONMENTAL LIABILITIES EPA Should Do More to Ensure That Liable Parties Meet Their Cleanup Obligations".  The full text of the Report can be found here.

    Specifically, according to the GAO, the above-mentioned Senators asked that it

(1) determine how many businesses with liability under federal law for environmental cleanups have declared bankruptcy, and how many such cases the government has pursued in bankruptcy court;

(2) identify challenges the Environmental Protection Agency (EPA) faces in holding bankrupt and other financially distressed businesses responsible for their cleanup obligations; and

(3) identify actions EPA could take to better ensure that such businesses pay for their cleanups.

     I found the Report informative but also disappointing.   The GAO provides a wealth of information regarding the effort by EPA to assert claims against bankrupt Responsible Parties and the challenges faced by the agency in so doing.  The GAO also provides an informative overview of the interaction of America's bankruptcy and environmental laws, correctly noting that the two sets of laws frequently conflict-- the bankruptcy laws are in substantial measure designed to enable debtors to discharge their obligations and get a fresh start, while the environmental laws in substantial measure seek to hold those same debtors (if "Responsible Parties") responsible to pay for the environmental harm they have caused.

     This collision of legal purposes has resulted in the various Circuit Courts crafting conflicting rules as to when an environmental liability is and is not dischargeable by the debtor declaring bankruptcy.  For example, the Report points out, the Second Circuit-- where, for the reasons discussed in the Report, many such debtors file for bankruptcy protection-- has a relatively debtor-favorable dischargeability rule.

     The Report also is useful in setting out the historical and existing sources of Superfund clean-up funding and the existing, and potential, mechanisms by which EPA might assure itself that Responsible Parties demonstrate adequate financial capability to respond to pollution they cause as opposed to leaving the financial response cost to the government.  The Report provides a series of vigorous recommendations for EPA to enhance/expand these mechanisms to ensure that the "polluter pays".

     The Report is disappointing, however, in unquestionably accepting the premise that we are always better off when the polluter, rather than the government (or, as the Report puts it, the "taxpayer"), does pay.  The truth is that the taxpayer always pays--the real issue is the distribution of the payment burden among taxpayers.

     When the government is forced to pay for environmental response action because of a Responsible Party's bankruptcy, as the Report states that payment is for the most part these days really being made by all of us taxpayers (since the response-action funding is coming out of the government's general fund).  On the other hand, where the Responsible Party itself can be successfully tagged to pick up the bill, taxpayers are not mythically relieved of the financial burden.  Hypothetical examples:

     1.  If the automobile industry has to fund $1 billion in environmental response, the industry will, if it can, tax consumers for that cost in the form of higher car prices;

     2.  If the industry cannot pass on the cost, then auto company's shareholders-- who are also taxpayers-- will bear the financial burden of lowered corporate profits;

     3.  If a given company in the industry is too weak even to fund the cost (e.g., think of Chrysler years ago when the government provided bail-out loans), then that company may fail-- laying off employees and shorting company creditors (who in turn may have to lay off employees).

     Thus, the real issue is the distribution of environmental response costs among taxpayers.  In any given situation, should taxpayers as a whole pay for environmental response from the government's general fund or should certain categories of taxpayers (e.g., auto workers) pay the cost (e.g., through job layoffs)?

     The Report was narrowly restricted in scope because the Senators requesting the report limited their inquiry simply to how much more EPA can force the polluter to pay.  The Senators did not ask the GAO to comment, for example, on any loss of revenues the government may suffer in the event any of the above hypotheticals were to occur.

     Nonetheless, although not the fault of the GAO, one still comes away from reading the Report with a sense of disappointment that the document is so narrow in perspective.  A large portion of the Report is, after all, spent acknowledging the fallout that exists from the fact that, as discussed above, Congress has enacted two sets of laws--bankruptcy and environmental-- with largely competing purposes.  The Report's recommendations, narrowly geared as they are to ensuring the "polluter pays", do not at all advance the important discussion of how to resolve these competing purposes.