Trump Flails Again at Environmental Law and Policy

While we were distracted by a pandemic, a recession, and an uprising in the streets, Donald Trump attempted to upend decades of environmental law and policy with the stroke of his pen. In an executive order dated June 4, 2020, President Trump directed all federal agencies to use “emergency powers” to speed infrastructure work, specifically waiving or bypassing where possible the National Environmental Policy Act, the Endangered Species Act and the Clean Water Act. Trump justified this order on the basis of the “economic emergency” existing in the country created by the national COVID-19 response. This shouldn’t surprise us – Trump has used every excuse to undermine environmental regulations from the start of his Administration, often favoring oil, gas and coal interests. But the scope of this executive order is audacious.

Bypassing the National Environmental Policy Act (NEPA) by fiat is a big deal. NEPA was one of the first laws ever written establishing a broad national framework for protecting the environment. It requires all branches of government to consider environmental effects prior to undertaking any major federal action. It does not mandate or forbid any particular action. NEPA applies to the construction of airports, buildings, military complexes, and highways, parkland purchases, and other federal activities.

Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from all federal agencies when planning these large projects. NEPA regulations already call for speedy production of evaluative work and concise analysis, as well as reductions in paperwork and red tape.

Trump’s executive order identifies the types of infrastructure projects to receive this expedited treatment. These are transportation infrastructure projects, such as highways, “civil works” projects within the purview of the Army Corps of Engineers, and “infrastructure, energy, environmental and natural resources” projects on federal land.

The President’s executive order claims that agencies have been given by regulation “appropriate flexibility . . . for complying with NEPA” in emergency situations by consulting with the Council on Environmental Quality about alternative arrangements. This is true as far as it goes. But the regulation Trump’s order relies on goes on to say that “agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.” 40 CFR 1506.11. No mention is made in Trump’s order of any limitation on his power to waive the regulation, even though one clearly exists, and there is also no mention of a sunset for the emergency declaration.

Another target of Trump’s order is the Endangered Species Act (ESA). It requires federal agencies to consult with the Fish and Wildlife Service about the impact of proposed federal action upon endangered species. The ESA contains language permitting expedited consultations in emergencies. It does not authorize waiving or bypassing the consultation in emergency circumstances. Furthermore, “this provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.” On its face, it does not apply to an economic emergency of the sort Trump has declared.

The final statutory target of Trump’s executive order is the Clean Water Act. The order directs the heads of all agencies to identify planned or potential actions the permitting for which may be subject to “emergency treatment” under law by the Army Corps of Engineers. These agency heads are directed to use the emergency procedures to “the fullest extent possible and consistent with the law to facilitate the Nation’s economic recovery”

Trump’s efforts to roll back environmental regulations have been well documented. Harvard Law School students have created a Regulatory Rollback Tracker, which provides information on each regulation affected by Trump’s campaign and the consequences of the rollback to the environment. The list of such rollbacks covers several pages.

Trump’s hostility to environmental regulations can be traced to the strong relationship he has developed with the energy industry, and particularly wealth energy industry donors, and also the Republican Party’s historic aversion to regulation. But now he has a compelling new reason – the threat of a recession to his reelection chances. The June 4 executive order is sure to come under legal fire from environmentalists, but Trump’s anxiety about his reelection may have created a fatal flaw in the order. While he declared the COVID-19 pandemic to be a national emergency, he did not declare the economic recession that followed the pandemic a national emergency. It is doubtful that he could have done so.

Some observers are not convinced this order will have a large negative impact on the environment. They point out that federal agencies already have emergency procedures to permit expedited review, but none of these permit ignoring the statutes or waiving an otherwise required review. If the agencies fail to follow their own procedures, their actions will be invalidated.

In the end, the June 4 executive order may simply be more flailing on Trump’s part in a manner that gets maximum heat and light but does little damage. Constitutionally, the President does not have the authority to overrule or temporarily nullify acts of Congress that have become law. It is a certainty, however, that Donald Trump is the least environmentally sensitive President in modern history. He will do whatever damage he can. He has to go.

Solar Energy and the Legislature: A Power Play in Charleston

For a state beholden to the coal and natural gas industries, solar energy generated a lot of heat at the recent West Virginia legislative session. Two initiatives concerning alternative energy, including solar, were introduced. One survived and will become law. Unfortunately, the survivor is a timid effort to attract a specific hi-tech enterprise that will involve no new solar energy facilities unless that enterprise locates here. But progress on renewable energy in West Virginia will have to be made in small steps, and this was a start.

The unsuccessful initiative – SB 759 – contained a number of wonderful ideas that would have enabled commercial and individual property owners to develop alternative energy for their own consumption.  The bill would have accomplished this by authorizing municipalities to establish low-cost alternative energy revolving loan programs to assist the property owners. Interest rates charged on the loans from these programs would have been below prevailing market rates.

The alternative energy technologies eligible for loans from the municipal loan program included solar photovoltaic projects, solar thermal energy projects, geothermal energy projects, as well as wind energy, biomass or gasification facilities for generating electricity.

SB 759 was introduced by Democratic Senators Robert Plymale and Mike Woelfel, both from District 5 (Cabell and Wayne counties). It was referred to the Government Organization Committee, the place where bills of this sort go to die. At the end of the session 67 bills, including SB 759, had expired in that committee with no action.

The survivor of the two initiatives — SB 583 — was introduced by Republican Senator Patricia Rucker of Jefferson County, among others. This bill will authorize electric utilities in the state to construct or purchase solar energy facilities on sites that have previously been used for industrial, manufacturing or mining operations. Wind and other alternative energy sources are not covered.

Demonstrating how timorous this initiative is, solar facilities under the law can only be built in 50 megawatt increments. When 85% of the power from the first increment is under contract, facilities for the next 50 megawatts can be built. No single such facility can generate more than 200 megawatts and the state-wide cumulative generating capacity of renewable energy facilities can’t exceed 400 megawatts. Evidently, neither the utility industry nor the coal industry wanted a lot of excess solar power sloshing around that would require companies to reduce coal-fired power generation.

This bill surprisingly had the support of the West Virginia Department of Commerce. It seems that whenever the business recruiters at the Department tried to lure tech companies to the state, these companies insisted on the availability of solar energy. Well, of course, we have had no such capacity.

The particular focus of the Department’s recent efforts is a company that proposes to build a research and development facility in Preston County that will test ultra-high speed transportation systems. The provisions of SB 583 that enable utilities to recover their costs for constructing solar facilities will sunset in 2025, by which time this company will either have located in West Virginia or not. So despite the high-sounding rhetoric about the need for West Virginia to enter the twenty-first century world of renewable energy, the real driver of this legislation was immediate business development and not a long-term commitment to renewable energy.

A similar bill – HB 4562 – was introduced in the House and debated extensively in the House Energy Committee, where it appeared to be stalled by objections from the coal industry. When SB 583 was passed by the Senate and sent to the House, it sidestepped the troublesome Energy Committee and went straight to House Judiciary and then to the House floor. Debate there was contentious. Delegate Tom Bibby, a Republican from Berkeley County, grumbled 

If renewable energy and solar energy were so good they (the tech companies) could afford to pay for it themselves. Renewables may sound nice and good, but they are heavily subsidized. To say coal-fired power plants won’t suffer from this legislation is just sticking your head in the sand.

House environmental advocates were initially considering an amendment that would broaden SB 583 to include solar power purchase agreements (PPAs). These are contractual arrangements where a third-party developer designs, finances and installs a solar energy system on a customer’s property at little to no cost. The developer sells the power generated to the host customer at a fixed rate that is typically lower than the local utility’s retail rate.

However, the idea for an amendment allowing PPAs was dropped. Democrats favoring the amendment had little time to gather support and it was feared that complicating the process would threaten passage of the main bill. Karan Ireland, lead lobbyist for the West Virginia Environmental Council, lamented that “what we see is utilities calling the shots and getting everything they want in the process.”

So West Virginia will move forward with a solar facilities law limited in scope that was carefully managed by electric utility and coal interests to avoid any threat to the existing carbon-based power generation monopoly in the state. The motivation for this law had nothing to do with any recognition that burning coal is fouling our air and literally killing us. Nevertheless, it is a first step and progress will have to be made this way.

Drinking Water From Plastic Bottles. Or Not.

Here is the news my world-wide readers have been waiting for. The winners of the 30th Annual Berkeley Springs International Water Tasting for 2020 are in! A panel of twelve judges sipped over 100 entrants at the competition. Believe it or not, the principal criterion for success was that the water should have no taste. Three of the top five winners in the Bottled Water category were Japanese. The best bottled water in the world is Hita no Homare Cosmo Water from Japan. Of course I am going to run right out and buy some. Or not.

A member of my household who shall remain nameless (I have been married to her for many years and I’m pretty sure she has a name) occasionally will bring home Fiji water in those cute little square bottles. I think Fiji water is refreshing. But then I saw that it is actually bottled on the island of Fiji, 7,726 miles from where I sit writing this. In order to get to a local grocery, Fiji water has to be shipped on ocean-going vessels that spew diesel smoke into the air and have to plow through an ocean of discarded plastic bottles just like the ones on board. To buy this stuff you’d have to be insane. I gently, respectfully, said just this to my beloved. What happened next is the interesting part.

Tyler-Mountain-Old-TruckWater is, of course, necessary for life. So when water comes to us in packages of any kind, I think we need to be a little more tolerant than when some non-necessity is presented to us in single use plastic bags. Water in small plastic bottles can be just the thing when, for example, we are hiking away from a source of tap water. Water packaging has evolved into smaller, lighter containers. I grew up in Charleston, West Virginia and I can remember Tyler Mountain Water Company delivery trucks rolling through town with enormous green glass bottles on the back. This company is still going strong, mostly because in 1972 it began to package water in 8 oz. plastic bottles that are sold to coal companies for worker consumption.

Nevertheless, the bottled water industry is under assault, and with some justification. Part of this has to do with the source of the water. Water taken from natural springs or wells in unspoiled rural areas has big value from a marketing standpoint. What’s more, U.S. bottled water sales are enormous, reaching 14 billion gallons in 2017. Environmentalists worry that extraction of natural ground water from pristine mountain areas can lower the water table and deplete cold freshwater streams. The Washington state Senate recently passed a bill that would block new permits for taking water from natural sources. Similar measures are on tap in California.

Not all bottled water comes from natural springs and wells. One of the largest brands – Dasani – is a product of the Coca-Cola Company. It is bottled using “local water sources” that are subjected to a purification process called reverse osmosis. Then a special blend of minerals is added to give the water that “pure, crisp, fresh taste.” I guess Dasani is not interested in competing for the world title at Berkeley Springs. Dasani would not, however, trigger environmental opposition to tapping spring and well water as seen in Washington state. I noticed one other thing of interest on the Dasani website. The company recommends that consumers discard unopened bottles after one year.

This Dasani shelf-life advice may simply be a quality concern. Or it may instead be a health concern. Dasani bottles contain no BPA and a new package called a Plant Bottle contains 30% plant material. Nevertheless, all plastic water bottles are suspected of shedding plastic micro-fibers and leaching chemicals into the water when stored at high temperatures. The bottled water industry denies this and argues that the studies raising this issue are not peer-reviewed and rest on unsound science. But the health implications of plastic water bottles bear watching.

Although plastic water bottles are fully recyclable, perhaps 40% are not recycled. The litter problem caused by plastic water bottles in national parks caused the Obama Administration to ban them from the parks in 2011. This ban was lifted by the Trump Administration in 2017. The Administration’s statement lifting the ban noted that the ban had removed from 23 parks the healthiest beverage choice while still allowing sales of bottled sweetened drinks. But “fairness” was probably not the true motivation. The ban was lifted only after the International Bottled Water Association spent hundreds of thousands of dollars lobbying for this result. But what happens with plastic bottles in the national parks is only a tiny fraction of the plastic litter problem created by these bottles.

So back to the domestic discussion of Fiji water with my beloved. No, I did not spend some quality time in the hospital. The result was that she stopped buying water in plastic bottles of any sort. This is a big change around here because I used to lug the 36-bottle cases into the house every week or so. We are using well water purified through a Brita filter. These filters can get clogged up pretty fast and have to be changed out, but the promotional material that accompanies them says that one filter replaces 300 standard 17 oz. water bottles. These filters reduce chlorine taste and eliminate zinc, copper, cadmium and mercury – but not lead. The Brita company will recycle the spent plastic filters.

There is no perfect solution to the water packaging problem. We as a nation are drinking more water in plastic bottles and are not likely to change. In the absence of a top-down prohibition on these bottles, maybe the best that can be hoped for is a re-engineering of their composition toward biodegradable materials, and an assurance in the meantime that plastic bottles have no unhealthful effects. Water filtering of well and tap water can also achieve a purity objective without any bottles at all. But don’t, whatever you do, even think about buying water bottled in Fiji or Japan.

West Virginia’s Green Amendment

On February 11, 2019, thirty-two West Virginia legislators — all Democrats — introduced Resolution 25 in the West Virginia House of Delegates. The Resolution called for an amendment to the West Virginia Constitution creating a right to clean air, pure water, and the preservation of the natural, scenic, historic, and aesthetic values of the environment. Modeled on a similar amendment in Pennsylvania, the “Green Amendment” declares that these public natural resources are the common property of the people and appoints the State of West Virginia as trustee of those resources. These declarations would have sweeping legal consequences if the Green Amendment is adopted.

The Green Amendment reads like this:

The people have a right to clean air, pure water, and the preservation of the natural, scenic, historic, and esthetic values of the environment. West Virginia’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the State shall conserve and maintain them for the benefit of all the people.

It was referred to the House Agriculture and Natural Resources Committee from which it did not emerge during the 2019 regular session. That Committee was co-chaired by Del. Roy Cooper and Del. Martin Anderson, both Republicans.

The Green Amendment will be re-introduced in the upcoming general session. Eastern Panhandle Delegates John Doyle, Sammi Brown and Isaac Sponaugle are among the co-sponsors. The Resolution will once again be referred to committee, where its future is uncertain.

According to Article 14-2 of the Constitution, the Green Amendment must be reported out of committee and then supported by two-thirds of both the House of Delegates and the Senate before appearing on the ballot in November.

The Green Amendment would substantially change the legal landscape regarding environmental rights and law. Presently, any rights to environmental cleanliness are created by statute or regulation. For example, DEP regulations now govern the amount of various chemicals that are permitted in our drinking water. The determination of what is permissible is heavily influenced by the industries that are affected by the regulation.

With a Green Amendment, the people’s right to a clean and healthy environment would occupy a higher order of legal significance. Statutes and regulations would have to be consistent with the right or be subject to rejection in a court as unconstitutional. If the West Virginia Legislature or the DEP created a statute or regulation affecting the cleanliness of drinking water, they could to do so only after considering how the protected environmental rights could be preserved with the least impact. This is a feature of acting as a trustee of those rights. Where protected environmental rights would be destroyed, no governmental action could be taken.

The trusteeship feature is very significant. The beneficiaries of the trust are the current generation of West Virginians and all future generations. So the government actor would have to consider not only the immediate effect of an action, but its long-term effect. And as a trustee, the primary concern would be the preservation of the environment. Where job creation or some other competing policy objective conflicted with these rights and could not be reconciled, the competing objectives would have to give way.

Taking the Rockwool situation as an example, if the Green Amendment were in place a private citizen would not be able to sue the company directly for any industrial activity. Instead the private citizen would challenge the state for issuing the air quality permit. Perhaps even local governments, which are instrumentalities of the state, would be subject to suit for acts in the permitting process that unconstitutionally infringed the protected rights.

Pennsylvania’s Green Amendment was enacted in 1971. But through early judicial interpretation its impact was blunted. Instead of reading and enforcing the plain language of the Amendment, Pennsylvania courts treated it as a policy statement the meaning of which was determined by legislatively-created statutes and rules. This ended in 2012 with the case of Robinson Township v. Commonwealth, which successfully challenged the constitutionality of a one-size-fits-all zoning scheme that permitted drilling, fracking pads and gas wells in every zoning district, including residential districts, near schools, playgrounds and hospitals.

The Robinson Township court ruled that the people had withheld from government the power to trample environmental rights, which the Green Amendment had raised to the same level as the right to free speech or the right to be free from unreasonable searches and seizures. While the Green Amendment did not impose on the legislature a duty to enact affirmative statutes, a duty was created to avoid infringing those rights by legislative action.

Like West Virginia’s proposed Green Amendment, Pennsylvania’s placed on the Commonwealth the duty to preserve and maintain the state’s public natural resources. This duty was held by the court to mean that the government must prevent and remedy the degradation, diminution, or depletion of public natural resources and do so in a way that is consistent with the fiduciary obligations of a trustee, including the duties of prudence, loyalty and impartiality.

The principle of anti-degradation does not mean “no activity.” Instead it allows for sustainable development and activities that do not harm the quality and quantity of the water, air, fish and other aspects of the natural environment, now or in the future. Under this standard, it is hard to imagine how mountaintop removal mining could be given a permit by state authorities.

Pennsylvania is not the only state with a Green Amendment. The Montana Constitution declares a right to a “clean and healthful environment.” This is supported by other features of the state’s constitution. A section entitled Protection and Improvement reads like this:

The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

The Montana Supreme Court enforced these obligations against the Montana Department of Environmental Quality when it issued a permit to a massive open-pit gold mine to discharge polluted water into streams.

In fact there is a movement, called For the Generations, devoted to the passage of Green Amendments across the country. In advancing our own Green Amendment, progressive West Virginia legislators are out in front of many states. This Amendment would be a game-changer for us. Wish them luck.

Paper or Plastic?

Remember when grocery clerks would ask this question at the checkout counter? Now you practically have to leap over the counter to prevent your groceries from immediately going into plastic bags. I have always assumed that plastic bags became the grocery industry’s packaging of choice because of the cost savings to the grocers. This is basically true. I have also assumed that paper bags are both biodegradable in landfills and recyclable into other products, while plastic bags are not biodegradable and rarely recycled. But going beneath these assumptions a little further, the environmentally sound choice between paper and plastic bags is not at all clear.

Plastic bags started to appear nationwide in the 1970s and soon captured 80% of the bag market. The principal grocers in Jefferson County – Food Lion, Martins and Walmart all default to plastic bags at the checkout counter. Paper bags are available only on request at Food Lion and Martins, which are both owned by the Dutch company Ahold Delhaize. Walmart does not offer paper grocery bags at all. One won’t find any explanation of the default to plastic bags on the websites of these chains.

All the chains offer reusable bags for sale at around a dollar a pop, and these are probably a better alternative than either paper or plastic bags. But even this turns out to be debatable depending on what they are made from and how many times they are used. Most of these reusable bags are woven plastic of some sort.

There are several factors to consider when deciding whether paper or plastic bags are more environmentally friendly. First, whether the raw materials that go into the manufacture of the bag are renewable. Next, how much electricity and water are used to produce them and how much greenhouse gas is emitted in each manufacturing process. Then how readily each type of bag can be recycled. Finally, how biodegradable each type of bag is at the end of its life cycle.

On the question of renewability of resources, paper bags are the clear winner. They are made from trees. Paper bag manufacturers do not typically use trees from Amazon rain forests, but rather tree farms of fast growing species. While they are growing these trees capture carbon. Plastic bags on the other hand are made from petroleum, which is a non-renewable resource that produces greenhouse gas when burned.

But when considering the use of resources and the release of greenhouse gas in the manufacturing process, plastic bags are the clear winner.  Making a paper bag consumes four times as much energy and three times as much water as making a plastic bag.  And because 1000 paper bags weigh over nine times the same number of plastic bags, transporting them also consumes more energy.

It is difficult to pin down exactly how much more greenhouse gas is emitted by the manufacture of paper bags than plastic bags. But it is a certainty that paper bag manufacturing is dirtier. The Sierra Club reports that you have to reuse a paper bag four times to reduce its carbon footprint to that of a plastic bag. Another study from 2008 asserts that paper bag manufacturing emits 80% more of this gas. A plastic bag manufacturer asserts that “solids” emitted into the air in the manufacture of paper bags is roughly twice what is emitted in the manufacture of a plastic bag.

The question of recycling further adds to the muddle. While paper bags can be recycled into other paper bags, the recycling process is inefficient, often taking more energy than it would to make a new bag. Furthermore, it takes about 90% more energy to recycle a pound of paper than a pound of plastic. But plastic bags are a recycling nightmare – most curbside recycling operations are not capable of recycling these bags because the thin plastic melts and fouls the machinery. It is estimated that only 12% of plastic bags are recycled.

So plastic bags often end up in landfills, where they can sit for 500 to 1000 years.  And plastic bags don’t ever “biodegrade.” Instead they “photodegrade” when exposed to light into smaller plastic particles. The more serious problem with plastic bags is that they don’t end up being disposed of properly but end up as litter. They are everywhere, fouling land and water. Plastic waste is deceptive to birds and mammals, who often mistake it for food. This would lead you to think that paper is the better choice. But here is the big surprise. A paper bag that ends up in a landfill does not biodegrade much faster than a plastic one photodegrades.

So perhaps the way to avoid this bag conundrum is not to use either type of single-use bag. The reusable bags offered for sale by grocery stores are a good option – if you use them long enough.  Heavier reusable plastic bags and cotton bags also have the freight of energy and resource consumption in their manufacture and their own greenhouse gas emission problems.  A heavy-duty plastic bag must be used five times to reduce its carbon footprint to that of a single-use plastic bag. A reusable cotton bag must be used 173 times.

There might also be a political solution to the problem. Eight states—California, Connecticut, Delaware, Hawaii, Maine, New York, Oregon and Vermont—have completely banned single-use plastic bags. Some cities and localities have also instituted bans, including Montgomery County, Maryland. Jefferson County Delegates John Doyle and Sammi Brown introduced legislation in the 2019 Legislature that would ban single-use plastic bags in West Virginia. The legislation was referred to committee, where it awaits some sort of action in the next session.

Most likely, however, we will have to change our behavior voluntarily. That’s not to say we couldn’t use a nudge. The German grocer Aldi, which is a small player in the market, provides that nudge. That chain will happily sell you a plastic or paper bag for about 10 cents each. Aldi claims this saves them money that they return to customers in the form of lower prices. Perhaps.

But there is no doubt that Aldi’s price on single use bags acts as a tax with the predictable result of encouraging shoppers to come up with their own bags or reuse bags they have previously purchased at Aldi or elsewhere. While this approach doesn’t completely eliminate the problems associated with single-use bags, it gets us moving in the right direction without government intervention. My conservative friends like this.

Undermining the Endangered Species Act

We have just been treated to another example of what happens when conservation voters fail to go to the polls or, worse, when they vote for candidates who are antithetical to sound conservation values. On August 12, 2019, the Trump Administration announced its latest effort to modify the Endangered Species Act (ESA), not in the interest of the imperiled species the Act was designed to protect, but to satisfy the oil, cattle and mining industries who contribute so heavily to the Republican leviathan.

The ESA has been an enormously successful program to save endangered species and is the model for the rest of the world. Among its successes are the restoration of the California condor, the American alligator, the bald eagle and the gray wolf. Nevertheless, the Trump Administration is convinced the ESA is antiquated and needs to be brought “into the 21st Century.” Secretary of Commerce Wilbur Ross, that paragon of official candor whose reason for adding a citizenship question to the 2020 census was found to be a lie, said:

The revisions finalized with this rulemaking fit squarely with the president’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection and recovery goals.

The announcement was accompanied by supportive statements from 15 Republican lawmakers, and officials from the National Association of Homebuilders, the National Cattlemen’s Beef Association, and the Western Energy Alliance. The strong opposition of environmental groups wasn’t mentioned.

The ESA itself has remained untouched. Several attempts to amend the statute have failed, even though Republicans have controlled both houses of Congress. The Trump Administration has simply modified the regulations that control how the Interior and Commerce Departments will interpret and apply the ESA. A regulatory change of this type is easier to achieve — but also easier for the next administration to reverse. And no regulatory interpretation can contradict the actual statutory language.

What exactly are these regulatory modifications and what will they mean? The answers depend on an understanding of the way the ESA works. It creates a two-tiered approach to protecting plants and animals at risk. Species may be listed as either endangered or threatened. “Endangered” means a species is in danger of extinction throughout all or a significant portion of its range. “Threatened” means a species is likely to become endangered “within the foreseeable future.”

Economic Data on Industry Impact

The first Trump modification is to what factors may be considered when listing and delisting a species. The ESA says that such determinations must be made “solely on the basis of the best scientific and commercial data available” on the question of whether the species is in danger of extinction. The current regulation mirrors this language but adds the phrase “without reference to possible economic or other impacts of such determination.” The Trump modification eliminates this additional phrase.

This is a clear invitation to industry to bombard the Interior Department with data on the possible harm to the affected industries, which will certainly be exaggerated, when a listing or delisting issue is considered. But recall the statute says that listing and delisting decisions must be made solely on the basis of the best scientific and commercial data available concerning the extinction question. It does not include the economic impact on industry. Yet what purpose could collecting information on industry impact serve but to influence the ultimate decision? One commentator has likened this to considering cost before treating a patient who is having a heart attack. An obvious legal challenge is set up here because the modified regulation seems to contradict the statute.

Shrinking Critical Habitat

When a species is listed as endangered or threatened, a critical habitat must also be specified. This is the geographical area occupied by the species at the time of listing plus any additional area essential for the conservation of the species. The designation of critical habitat only affects federal agency actions or federally funded or permitted activities. Federal agencies are required to avoid destruction or adverse modification of critical habitat areas. Since the federal government owns enormous swaths of land in the West, a critical habitat designation could restrict the extent of federal land open for oil and gas drilling and mining.

Unlike on the question of potential extinction, the Interior Department must take into consideration the economic impact of a critical habitat decision. But this is not enough for the Trump Administration. The major change to this portion of the regulation relates to areas not occupied by the species at the time of listing, but that are deemed essential for the preservation of the species.  Now there will be a presumption that an unoccupied area is inessential unless there is a showing that without the unoccupied area the critical habitat would be inadequate. Moreover the Secretary will now be required to determine to a reasonable certainty that the area will contribute to the conservation of the species. The result of all this is that critical habitats will be smaller in the future.

Elimination of Climate Change When Determining Foreseeable Future

A species can be listed as threatened when it is likely to become an endangered species in the foreseeable future. Now the term “foreseeable future” will extend only so far into the future as the Secretary can reasonably determine that both the future threats and the species’ responses to those threats are likely. Under this new rule it would have been nearly impossible to designate the polar bear as threatened in 2010 because of the projected loss of sea ice. Officials then relied on climate models to predict the effect of warming on bear habitat 80 years into the future.

Writing in The New York Times, ecologist Carl Safina said

It used to be that animals did not need us. Now they do. Unless we value their existence, the modern tide will engulf and obliterate them. Their survival – like our great-grandchildren’s – is a moral matter. No religion has ever preached that our role on earth is to destroy, or leave less for those who’ll come after us. No wisdom teaches that it’s OK for a generation to drive the world to ruin. We are taught that we must safely pilot the ark.

This reference to the ark caught my attention. It is an apt metaphor, even if one is not inclined toward the scriptural view of the world. Noah carefully put all the animals on Earth into the ark, two by two, in order to preserve them from the deluge. We function as the modern day Noah. Except our current leadership in Washington is at the gangplank shouting “Hey! You two. Get out of line.”

Shareholder Resolutions: Another Tool for Fighting Climate Change

Those of us concerned about climate change in the United States have a right to be frustrated. The Trump Administration seems determined to undermine every hard-won diplomatic, legislative and policy success in the climate arena. Take, for example, withdrawing from the Paris Climate Accords, weakening targets for power plant emissions, and installing an implacable opponent of the agency to chair the EPA. The list goes on. While the federal government is in the grip of these science-deniers and climate change reactionaries, other governmental units and private citizens must find a way to make a difference. One tool available to many private citizens is to exercise their rights as shareholders of large corporations.

Over half the American population owns shares in public corporations, either directly or in their retirement savings plans. Public corporations are supposed to function as democracies of a sort in which each shareholder has influence in corporate governance according to the number of shares she owns.  Each shareholder can vote on who will sit on the board of directors and, in some cases, on non-binding resolutions affecting corporate policy and direction. These shareholder resolutions usually can be adopted by the vote of a majority of all voting shares.

There is a long history of shareholder resistance on environmental and social grounds. Shareholders pushed Dow Chemical to cease producing napalm during the Viet Nam war. Shareholders forced corporations to cease doing business with South Africa, or to divest, during the apartheid years. And shareholders have recently forced McDonalds to stop using polystyrene foam packaging.

The number of shareholder resolutions of all sorts introduced each year has been growing until just recently. But the number of climate-related resolutions at energy companies has dropped over the last three years. Some see this as a good sign that corporations are willing to take the issues more seriously without the need for shareholder resolutions. All of the resolutions for the last decade are collected at the website of the organization As You Sow.

Shareholder resolutions often call for reports to shareholders on the corporation’s plans to cut emissions or its adherence to the guidelines in the Paris Climate Accord. Here is a recent shareholder resolution at Amazon.

BE IT RESOLVED: Shareholders request that Amazon.com Inc. adopt a policy with quantitative companywide goals for managing greenhouse gas GHG emissions considering the objectives and timelines of the Paris Climate Agreement and report at reasonable cost and omitting proprietary information on its plans to achieve these targets.

Frequently, a shareholder resolution fails to achieve a majority of the shares voting, at least in the first year it is introduced. But resolutions can be resubmitted and many in the climate arena pick up support from year to year. An environmental proposal must obtain 3% of the total vote its first year to be resubmitted, 6% the second year and 10% the third year. If it fails to meet these minimum vote totals, it may not be resubmitted for three years.

Even a failed resolution, or one unlikely to succeed, can have positive effect. Shareholders should think of resolutions as a portal to open dialogue with corporate management. In many cases, management will confer with the shareholder group advancing a proposal and come to some agreement that satisfies the group. This is then followed by a withdrawal of the resolution before it is voted on by all the shareholders. So far in 2019, climate-related shareholder resolutions at General Electric, Amazon, Emerson, Kroger and J.P. Morgan, among others, have followed this “agreement then withdrawal” pattern.

The Securities and Exchange Commission has developed rules for submitting shareholder resolutions and adjudicates any objection by the corporation to a particular resolution. Any shareholder who owns $2,000 worth of company stock and has held it for one year prior to the annual filing deadline may file a proposal. Unless the corporation agrees to the resolution, it is inserted in the proxy statement issued to shareholders in advance of the corporate annual meeting. Proponents of the resolution are allowed only 500 words in the proxy statement to present their case.

Several shareholder activist organizations have produced FAQ sheets and downloadable guides to filing shareholder resolutions. The process is relatively easy, but recent climate-related shareholder resolutions at large U.S. energy companies have hit a speed bump. Resolutions calling for the disclosure of specific targets for emission reduction and adherence to the Paris Climate Accords have been blocked by the SEC at Chevron, Devon Energy, ExxonMobil, and Hess Oil.

In the Obama era, similar shareholder resolutions were allowed to proceed despite opposition from the corporations.  Now the Trump SEC has decided these resolutions are an attempt to micromanage the corporation, even though they are non-binding.  Since Trump took office the SEC has consistently ruled in favor of corporations that oppose these resolutions. One U.S. Senator has written to the SEC Chairman complaining that the use of the “micromanagement” concept is an unwarranted effort to reduce shareholder efforts to protect their investment from the effects of climate change.

The approach of the Trump SEC should come as no surprise, given the overwhelming power and influence that energy companies have purchased with their huge Republican campaign contributions. One commentator has suggested that when it comes to big energy companies investors may now be left only with the ax – divestment. Writing in High Country News, Carl Segerstrom reports that the divestment movement claims to have pulled more than $8.5 trillion out of fossil fuel companies. Massive divestment will certainly get the attention of corporate executives.

I continue to believe, however, that the swiftest and most certain method of returning corporations to the path of moral capitalism is to rid ourselves of the political leaders whose policies have allowed these corporations to subordinate our environmental future to short term profit in the first place. A political change at the top will signal that it is time to get serious about climate change in corporate boardrooms.

Electric Power Generation and the Environment: An Insider’s View of Successful Air Pollution Reduction and the Coming Transition to Low Carbon Power

From my childhood in southern West Virginia through my career with a large electric utility, I have experienced first-hand the environmental effects of unfettered industrial development. Yet I have also seen how a combination of strong environmental regulations and good faith compliance by industry over many years can result in remarkable and sustainable improvement.

Air quality in the U.S. has improved dramatically over the past 40 years even as energy consumption has increased many-fold. We enjoy some of the cleanest air in the world, but it took decades of sustained policies and regulations, technical innovation and costly investment to reach this point. That story deserves to be told and recognized. Looking ahead, it can provide a model for success as we confront the challenges of climate change and the transition to a low carbon world.

I grew up in Charleston, West Virginia, in the Kanawha valley, during the nineteen fifties and sixties. The Kanawha Valley was then known as “the Chemical Valley.” From the 1950s through the 1970s it was one of the largest producers of chemicals in the world, home to plants and research centers operated by Union Carbide, Dow, DuPont, Westvaco, and Monsanto, among others. Charleston was pleasant and prosperous but it had some of the worst air and water pollution imaginable.   Many days a chemical stench overwhelmed the valley. The Kanawha River was a chemically polluted “dead” river. In those days there were almost no federal or state environmental regulations, no EPA, no OSHA.

Growing up, many of my friends’ dads were engineers and scientists who worked for the local chemical companies.  As a good student with an engineer father and older brother, it was almost inevitable that I too would become a mechanical engineer. But I also absorbed the political environment of the ‘60s, becoming aware of the injustices in society and hoping to make a positive contribution to the causes I believed in.

After graduation I was drawn to the electric utility business. I was proud to help provide a vital public service and fascinated by the science, massive equipment and the almost romantic hundred-year legacy of the power industry. A combination of practical and academic experience along with a desire to make a difference eventually led to the job I was “born to do” — managing engineering for a ten-year, $2 billion series of air pollution control projects at the company’s large coal fired units.

These projects were in response to stringent new federal regulations that targeted the “acid rain” pollutants, primarily Sulfur Oxides (SOx), Nitrogen Oxides (NOx), and particulates. Electric utilities tend to be ethical companies that willingly comply with environmental laws and regulations, especially when the regulations are reasonable, based on sound science, and affect all companies equally.

The technology to capture power plant air pollution is massive, complex, and costly. For each generating unit, three types of equipment were installed in series, each targeting a specific pollutant. The result was the elimination of over 98% of SOx and particulate emissions, 90% of NOx emissions, and virtually 100% of particulate emissions for each generating unit. The improvement in ambient air quality was enormous while the cost of electricity was only minimally affected.

Each project required about four years from conception to start-up and costs for each were in the hundreds of millions of dollars. The project teams were led by the utility’s project manager and engineering manager, and also included research scientists, design engineers, equipment manufacturers, and constructors from many supplier companies. We were all well aware of the value of our work and proud of what we were accomplishing. At the completion of each project it was great to see the tangible results – a smoothly running plant with clean stacks, with the former pollutants being captured as beneficial byproducts. Meanwhile similar programs were taking place all across the country.

During the past ten years the world of power generation has changed enormously. The environmental emphasis has shifted from acid rain pollutants to carbon dioxide emissions. Coal is quickly being replaced by natural gas and by renewable sources such as solar and wind. Hundreds of coal fired units have been permanently shut down and demolished and many of the remaining ones will be gone within the next ten years. The pace of the transition away from coal would have been inconceivable only a few years ago, and it is accelerating. The old coal plants are massive monuments to a hundred years of brilliant innovation and development, but their days are numbered and the world will better for it.

Just as the drastic reduction of acid rain air pollutants seemed nearly impossible twenty years ago, so too the transition to a low carbon future is occurring at an unexpectedly rapid pace. The costs of renewable energy projects have been reduced to a point where they now successfully compete economically with fossil fuel generation. Natural gas and renewable energy sources are predicted to account for 85% of the world’s energy growth by 2040.  

Despite the continuing transition to lower carbon energy, serious challenges remain. Atmospheric carbon dioxide levels are the highest in human history. Developing countries are continuing to build new coal fired power plants. Meanwhile, global energy consumption is expected to grow by 28% by 2040, with most of this demand coming from the developing world.

Climate change is a serious issue, maybe even a crisis, and the future of power generation may be the single most important issue in the world. The challenges are enormous but there is much cause for optimism.  We stand on the brink of changes in the world of power as drastic as those that began with Edison and Tesla and Westinghouse at the turn of the 20th century. New and improved renewable energy technologies are emerging every day. The future of transportation will soon be electric zero-emission vehicles.

Someday in the near future the concept of burning fuels to produce heat and power may seem as outmoded as cooking over open fires, and carbon emissions will be much lower. With a concerted effort, a future of sustainable clean power can become the key to combating climate change, improving standards of living and reducing poverty throughout the world.

I am optimistic that we have the tools, and the know-how to achieve this positive vision.  Just look at the progress that has been made from Edison’s first practical light bulb to the electrification of the world during the 20th century, the dramatic reduction in air and water pollution in recent decades, and now the emergence of renewable energy.  The path to a better future will take political will, integrity, and huge investments in new equipment and technology.  I’m convinced that it can and will happen.

Bullying Nature

It is a bright spring day in Shepherdstown and I am gazing out my window at my self-inflicted folly – the swimming pool in my back yard. Nature wasn’t on board with the original happy plans behind this water-filled hole. Instead, nature wants to use it to grow all sorts of bacteria and algae, and allow mosquitos, toads and any other interested party to lay eggs and spawn their young. Ah, but we have the answers for nature, right? Engineering, pumps and chemicals. Every summer with much effort and money thrown at the problem, we win – temporarily. But let up a moment and nature inexorably overcomes our efforts. A swimming pool is a fool’s errand to push a large rock up a hill.

A swimming pool is an apt metaphor for what I am trying to say in this piece. Humans are the most intelligent animals ever to walk the earth. But at some point we got a little too impressed with our abilities and began to bully nature into doing what it didn’t want to do. That’s when the trouble started.

Most of our attempts to bully nature have involved water.  Although essential for life in the right amounts, water has developed a bad reputation.  It has the nasty habit of accumulating in huge amounts and sweeping away everything in its path. English and American common law alike have declared water a “common enemy.”

When our engineering know-how and the power of our machines reached a certain level in the 19th century, we engaged water in what amounted to an arm-wrestling match. This contest has not been without its fits and starts, its wins and losses on both sides. But we have begun to realize that when we overcome nature with brute force, there is always an unexpected price to pay.

I just returned from a short trip to the Everglades in southern Florida. The Everglades are really nothing more than the overflow from Lake Okeechobee, which flows in a sheet down a very slight grade to the Gulf of Mexico. Early Florida pioneers saw immediately that if the Everglades could be drained, thousands of acres of rich land would become available for cultivation.

The 19th century saw one failed scheme after another to drain “the swamp.”  But it looked like success was at hand until 1928 when a hurricane filled the Lake and caused it to burst through a dike, drowning 2500 people. Corpses were stacked and burned by the roadsides. The Army Corps of Engineers then changed the rationale for draining the Everglades from reclamation to flood control. The Hoover Dike was constructed, which cut off Lake Okeechobee from the northern Everglades. This solved the flooding problem but created many others.

What once was a swamp dried out and became like a desert. The absence of fresh water allowed salt water to invade the water table, ruining farms. The stress of low water wreaked havoc on the food chain. Sawgrass invaded water-lily sloughs, while other species invaded parched sawgrass marshes.  Populations of wading birds rapidly declined. Then in 1939 one million acres caught fire and burned. Now conservationists and environmentalists have a seat at the table and a serious effort is underway to restore the Everglades.

The April 1, 2019 issue of The New Yorker chronicled a similar example. For millennia, the Mississippi River has over-flooded its banks and deposited silt and soil debris all over southern Louisiana, building up and extending the land in all directions. Because these floods had obvious harmful effects for humans, we built levees along the river for hundreds of miles. Now there are few catastrophic floods that breach the levees. This is a good thing, right?

Well, yes and no. The problem is that there are no further soil deposits to build up the land. The land that was formerly deposited through flooding has begun to compact and subside, allowing the Gulf to retake large areas. At present southern Louisiana seen from a satellite is nothing more than the snake of the Mississippi bounded by levees and a few hundred acres of land on either side.

Believe it or not, the current solution to this problem is more engineering on a massive scale to be paid for with mountains of tax money. One part of this solution is to dredge up silt from the bottom of the river and use massive diesel pumps to redeposit it into areas that would otherwise subside into non-existence. Another part is to cut holes in the levees and during flood periods allow water and silt to inundate areas that have heavily subsided.  The New Yorker piece rightly concludes that humans have so altered nature in an attempt to take control that now we are attempting to take control of our efforts to take control.

All this says to me that when we consider the so-called problems that nature creates, we need less hubris and more wisdom.  We need fewer brute force solutions and a more harmonious approach that doesn’t struggle so much with the way nature works. Maybe through taxation and other policies we could encourage the depopulation of places like New Orleans and Phoenix, where people simply cannot be protected from nature. Brute force may succeed in the short run, but at a huge cost with harmful consequences to environmental balance. And because of entropy and our human fallibility, the brute force solutions always fail in the long-run.

But what could I possibly know? I’m the one who built a swimming pool. Could you excuse me while I go empty the skimmers?

Our Most Effective Tool for Fighting Climate Change: A Tree

You can’t avoid noticing the rapid development of housing in the Eastern Panhandle. Just blink and an old farm or wooded area has been replaced by a Dan Ryan development extravaganza. In my established farming neighborhood alone there are four homes under construction. But often these homes end up being naked structures with no landscaping and no trees. Evidently, new home buyers are more interested in square footage and amenities than saving or establishing wooded areas. More’s the pity. Trees add grace and beauty, provide protection against cold winter winds and blazing summer heat, prevent rainwater erosion, and create habitat for birds and other wildlife. Perhaps most importantly, trees remove prodigious amounts of carbon dioxide from the air.

In the not too distant past, West Virginia was covered with virgin forest. One estimate from 1870 was that of the 16,640,000 acres in the state “at least 10,000,000 acres are still in the vigor and freshness of original growth.” But between 1870 and 1920, the timber industry literally changed the face of the state. Timber was the first of our natural resources to be extracted, followed by coal and now gas.

Obviously the extraction industries in West Virginia have all contributed heavily to the production of carbon dioxide, the greenhouse gas chiefly responsible for climate change. Surprisingly, huge amounts of carbon dioxide are produced by the timber industry itself. A recent study in Oregon found that wood products generated about one and one-half times more emissions than the transportation and energy sectors in that state. Timber industry emissions come from the fuel burned in logging operations, hauling and milling and the ongoing decomposition of trees after they are cut. And, as wood is a carbon-based fuel, burning wood produces carbon dioxide, although not as much as burning more carbon rich fuels like coal, oil or gas.

But the main impact of the timber industry on the climate is the destruction of forest carbon sinks. Through the process of photosynthesis trees remove carbon dioxide from the air and release oxygen. A single tree can absorb as much as 48 pounds of carbon dioxide per year and can sequester one ton of carbon dioxide by the time it reaches 40 years of age. Large forests consume and store huge amounts of carbon dioxide.

In his recent book, Carbon Capture, MIT Research Engineer Howard Herzog identifies “negative emissions technologies” as one path toward stabilizing the amount of carbon dioxide in the atmosphere. These technologies actually remove carbon dioxide from the air, as opposed to preventing its emission in the first place. Among  emission prevention practices would be things like engineering controls on smokestacks, tax provisions that favor renewables, and tightening environmental regulations. The most important negative emissions technology is planting trees to fix atmospheric carbon in biomass and soils, termed afforestation and reforestation (AR).

Worldwide carbon emissions are approaching 40 gigatons per year. So to make any real difference AR must be able to operate on the gigaton per year level. Today AR is the only negative emissions technology deployed on a large scale, although it now functions only at the smaller megaton level of carbon dioxide removal. Still AR is the least expensive of such technologies — estimated at $10 per ton of removed carbon dioxide compared with $1000 per ton removed by direct air capture through engineering systems.

Under the Kyoto Protocols, industrialized countries can meet targets by developing carbon-reduction projects in third-world countries. Often these have been afforestation of unused agricultural land through plantations of fast-growing trees of a uniform type, such as Scotch pine. Critics of this procedure point out that the resulting biomass is more like a single-purpose tool than a true forest. Forests create a whole range of wildlife diversity, environmental and economic benefits that single species plantations do not. Replanting a depleted forest with diverse native species has worked better.

This brings me back around to how important trees are on small-scale private property. Deciduous trees, planted on the south and west sides, will keep a house cool in the summer and let the sun warm it in the winter, reducing energy use. Just three trees, properly placed around a house, can save up to 30% of energy use. Trees or shrubs planted to shade air conditioners lead to more efficient cooling. A unit operating in the shade uses as much as 10% less electricity than the same one operating in the sun.

Planting a row of conifer trees on the north and northwest sides of your property creates a wall against cold winter winds, saving on heating costs. The best protection from wind occurs when the windbreak is no more than the distance of one or two tree heights from the house. Most of the Eastern Panhandle is in hardiness zone 6, which makes Norway Spruce, Leyland Cyprus and Eastern White Pine perfect for wind breaks in our area.

Planting trees anywhere is a boon to the environment. Even planting them in rural areas is beneficial because, in addition to capturing carbon dioxide, they act as soil anchors, preventing erosion and rainwater runoff into streams. Particularly when planted strategically in groups, trees in rural areas create wildlife corridors linking streams, feeding areas and shelter. Native trees provide perfect food for native wildlife. In this area Red Mulberry, Serviceberry, Hawthorn, Hackberry, Cherry, River Birch, and Black Walnut thrive.

The magnitude of the climate problem is so huge and making a real difference so beyond the reach of any individual, that sometimes it seems hopeless. But, of course, this is no way to think about the situation. There are individual behaviors that when changed on a large scale can contribute to solving huge problems. Planting a tree – or better yet a bunch of them – is a low cost act that employs living things to do what they do best and what we desperately need them to do. And it is an act within the reach of everyone.