After a VERY long day of travelling, three tired law students finally made it to Eugene, Oregon. We got to the hotel with just enough time to change and head to the conference (but not before stopping at a very cute local coffee shack on the way). So far, we all love the area, its great eco-friendly vibe, and the conference.
Today, we were able to choose one of four panels to go to for the opening session, followed by two keynote speakers and a documentary screening. We chose to lean about something new during this panel, and attended “Forest Service Travel Management: Litigation Trends and Next Steps,” organized by Jane Steadman, and featuring Sarah Peters and Cyndi Tuell.
Forest Service Travel Management consists of regulating vehicular travel through the United States’ national forests. This includes everything from RVs and pickup trucks to ATVs and dirt bikes. There is a huge problem in our national forests of “cross-country driving,” and we don’t mean road tripping from New York to Yosemite. Many people decide to take their vehicles off the designated roads and through our protected parkland, and as more people take these same paths, man-made roadways through the wilderness are created. These unauthorized roads carry the dangers of destroying plants, soils, watersheds, animal habitats, and cultural resources.
The legal tools that environmental attorneys are using to help protect restore our forests from this devastation include: Executive Orders 11644 & 11989; The Road Rule, 26 C.F.R. 212.5(b); and NEPA. The objective of the executive orders is to minimize the impacts this type of recreation has on our forests, and the goal of the Road Rule is to have a minimum road system in the forest. However, there are exceptions eating away at the effectiveness of the rule. Under this rule, driving off road in national parks is prohibited (according to a motor vehicle use map put out by the Forest Service which designates roads), with the exceptions of traveling to dispersed camping in designated areas and large game retrieval. In some parks the latter exception allows people to drive up to a mile off road to retrieve game they’ve shot.
Although these exceptions are supposed to be applied sparingly, in recent years this has not been the case. What’s worse is that the exceptions are capable of expanding themselves. As more people use a path, and wear down the terrain to the point that it looks to the outside observer like any other road, the Forest Service can declare it a road, and include it in forest trail maps. Then, the one mile exception would apply to this road as well, until this develops a recognizable road, and so on. This is where attorneys are using NEPA to help them by pointing out that this expansion process fails to consider NEPA impacts, because when the Forest Service does NEPA assessments, not only are they usually doing EAs instead of EISs, they don’t count the destruction already in place.
We found this area of environmental law to be very interesting, because this is a problem caused by like-minded outdoors loving folks. How many “environmentalists” are guilty of contributing to this problem? How many people love to recreate outdoors, like all of us, but fail to think about what they’re doing to the forests? We were also surprised to learn about this area of law, and how lenient it seems to be on violators, especially considering the strict laws we have in place for recreation in New York for our Forest Preserve lands.
The panelists also mentioned their fight to develop beneficial case law in this arena. They mentioned a very recent decision they were part of, Idaho Conservation League v. Guzman, No. CV 4:10-26-E-REB, 2011 WL 447456 (D. Idaho Feb. 4, 2011). The case deals with the Forest Service and their creation of the motor vehicle use maps. We haven’t read it yet, but if you find this area of law interesting, you should check it out.
After this, we attended the first night’s keynote speeches. First, we heard from Lynn Henning, the 2010 North American Goldman Environmental Prize Winner in the field of Environmental Policy. The Goldman Environmental Prize is awarded to grassroots environmental activists whose work exemplifies sustained and significant efforts to protect the world and its natural resources. Lynn spoke about her struggle to force regulation of the CAFOs that are destroying her home state of Michigan. She discussed her journey from initial detection of the issue to present, where her work has begun to influence local legislators and regulators.
Lynn is a family farmer turned activist. She has lived in this rural area of the country her whole life, and currently lives and works on the farm where her husband’s family has been for years. She began to notice the presence of factory farming and dangers that accompany as early as 2000. She found her family members taking ill, and prompted by accusations by the nearby CAFO operators that she had alerted state officials of waste discharges, she began to do just that. She formed the Environmentally Concerned Citizens of South Central Michigan (ECCSCM), and along with her group, started sampling the water in a 125-mile area. They used the results of these samples informing state and federal officials that the CAFOs were discharging large amounts of highly toxic wastes into nearly all local water bodies, as well as polluting the ground water supply.
As a result of Lynn’s efforts, the Michigan DEQ has issued hundreds of citations against these CAFOs for violation of permits and environmental standards, and in 2008 denied a permit to a proposed new farm. Her investigative techniques have been adopted both by the DEQ and by EPA Region 5. However, the State of Michigan is not entirely on board with this regulatory strategy—they intend to exempt some of the operations of these CAFOs from Clean Water Act regulation. Lynn suspects that this proposed legislation will succeed, which may result in Michigan’s program becoming antithetical to the CWA itself, and enforcement returned to EPA.
Next, filmmaker Matt Briggs spoke about (and screened) his film, “Deep Green.” Matt urged that, in order to fight climate change, we need to have more options for consumers, as behaviors can only be changed if there is something to change to. He spoke of the droughts, floods, and food shortages of the world today, and suggested that the revolutions and upheaval in the Middle East stem from the fact that people are unable to feed their families—all of this is traceable to global climate change. He referenced an MIT study, which indicated that by 2100, the world will be too hot to grow food on any of its surfaces, sea levels will have risen by six feet, ocean acidification will make it increasingly difficult for animals to retain their shells, and deserts will have significantly expanded.
Matt proposes that we need to change in three areas to keep temperatures down. First, we must lower our numbers, through elimination of poverty and female empowerment. Second, we must consume less, and shift to reduction and restoration tactics. Finally, we must reduce the pollution caused by fossil fuel burning and the release of carbon dioxide and greenhouse gases coming from deforestation.
The film tracks international efforts to curtail the effects of global warming. He visits scientists, entrepreneurs, authors, engineers, and government officials, and hears their proposals to increase energy efficiency and incorporate renewable energy techniques into the world. China, France, Germany, and Sweden emerge as international leaders. China has built wind farms, solar panel producing factories, and electric cars, and is heading towards a green energy future. France has high-speed rail with an incredibly small carbon footprint. Germany has approved a smart grid that would be able to supply renewable energy to Europe and North Africa. Sweden is home to the “greenest city in Europe,” with a recycled biomass power plant, carbon neutral buildings, and a great deal of social consciousness. Overall, Matt’s message is that “we can fix this”—we just need to try. To learn more about this film, go to http://deepgreenmovie.com/ (and to see it, come to the ELS Retreat! We’ll be screening it there).
More to come…thanks for listening!
– Jess and Kate