The Public Interest Environmental Law Conference: Friday Afternoon

Afternoon Keynotes
Following our morning panels, we attended two keynote lectures.  While all of the keynote speakers had significant accomplishments within the environmental legal field, and had interesting things to share, we found both their designation as “keynotes” and their pairings a little odd, since there were so many of them throughout the conference (our understanding of the term had led us to expect something different), and we were often unable to discern what the relationship was between any two speakers presented together.  Nevertheless, we attended all of these lectures, and will summarize their main points for you all.

First, we heard from Bruce Nilles about his Beyond Coal Campaign.  During the recent Bush administration, Vice-President Cheney apparently communicated to the EPA that there would be essentially no regulation of the coal industry, and instead, widespread coal-fired power plant construction would occur (an attempt to grandfather in the industry, as these plants have an approximately 40 year life cycle).  However, with state action and grassroots movements, resistance to this construction proved successful. The movement’s goal is to leave no coal plant unopposed, and at a time when scientists say that we need drastic change to maintain a recognizable planet, it doesn’t make sense to do much else.

Starting with a single plant in Muhlenberg, Kentucky, activists were able to halt the expansion of this industry.    Slowly, they were able to persuade local governments and judges to oppose coal-fired power plant construction; their efforts to date have stopped around 150 plants from moving forward.  It has been 28 months since construction on the last plant of this type broke ground, and in that time, 30,000 megawatts of wind and solar power have gone online.

Nilles says that the next steps for this movement are to move beyond pre-construction opposition, and begin to force the shut down of existing plants.  He recognizes the international implications of the climate change problem, and calls for America to lead by example in cutting our emissions by closing these plants.  This can be done, he insists, through a combination of national coordination of grassroots activism; top-down pressure on the industry in the form of EPA regulations of mountaintop removal, coal ash, and air; and bottom-up pressure from state and regional associations on specific plants.  His goal is to force the retirement of the 500 existing coal-fired power plants by the year 2030, and to replace these with more sustainable alternatives (i.e. offshore wind, solar power, and building efficiency).

Next, Lori Caramanian (a Pace Law School Alum, whose first legal job was with Riverkeeper!), the current Counselor to the Assistant Secretary of Water and Science at the Department of the Interior, spoke about water consumption and renewable water supplies in the Colorado River Basin.  Under the “Law of the River”, the United States has an obligation to manage its dams in such a way as to ensure delivery of water to all seven basin states and to Mexico.  This frequently implicates the US Geological Survey, the Department of the Interior, and the Fish and Wildlife Service, among other organizations that are affected dam operations.

One issue that Caramanian brought up in connection with the Glen Canyon Dam’s effects is the destruction of the Colorado River-dwelling humpback chub. The humpback chub is a unique and endangered fish whose existence is being threatened not only by the building of dams, but also by the presence of non-native predators such as the rainbow trout. There is currently a ten year proposed action plan, which includes the removal of trout from the Little Colorado River to save the humpback chub population.  However, this is being met with opposition from local tribes, who object to the killing of fish in this area, a sacred location to them  The United States has a trust obligation to these tribes, and must attempt to resolve this conflict on a nation to nation basis.

Caramanian is a supporter of small hydropower, and spoke briefly about the existence of fish-friendly turbines that can be incorporated to reduce environmental impacts of this prospective power source.  She believes that this should be considered as a part of the country’s renewable energy decisions.

Injecting Community Voices and Accountability into Tribal Governance: The Emerging Role of Indigenous Environmental Organizations
This next panel focused on public interest litigation for tribal nations. We learned a little about the issues surrounding the Navajo people.

The Navajo government was essentially formed for the purpose of signing leases with mining companies who were seeking to mine coal and oil from the Navajo Black Mesa region. This illustrates the deeply rooted dependence the community has on fossil fuel consumption for their modest economy, since they not only receive (meager) royalties, but many of the people also work in these mines. Some of their community organizations, such as the 2008 Navajo Green Jobs Initiative, are working on ways for them to transition to a way to support America cutting back or eliminating fossil fuel consumption.

As one panelist put it, “Navajos were green before green was sexy” and their initiative really focuses on getting back to traditional ways of doing things, and instilling the traditional ethic into younger generations.

There are also many environmental justice issues surrounding tribal nations. The heavy mining has led to major health issues, especially for parts of the Navajo nation where Uranium mining has wrecked havoc. In discussing the environmental justice issues, one panelist is an attorney for the Navajo, and he gave some tips on representing tribal communities, but I find the applicable to any type of public interest law:

  • Don’t over-promise, be reasonable
  • Create opportunities for communities to speak for themselves
  • If you have to speak – know the story and tell it
  • Seek outside expertise and partner w/ other organizations
  • Keep your clients informed
  • Working in coalitions is difficult – use joint defense agreements, & cooperative agreements
  • Don’t be afraid of retainer agreements
  • Give your client options and let them decide
  • Use all available forums.

Museum Visit
The University of Oregon recognizes a strong connection to the Native American heritage in the area.  In addition to several panels at the conference on Indigenous rights and Native American themes, the University runs a Museum of Natural & Cultural History on their campus.  After this panel, we walked through the museum, which bears the tagline “where past is present,” and is home to a number of fossils and artifacts collected from throughout Oregon’s history.  In its anthropology collection, the museum has four large dioramas which depict Oregon’s native populations in different seasons and eras.  Along with these exhibits, there are displays of items used at the time, lists of vocabulary in these local languages connected to how these words are used today (some have become the names of Oregon towns and counties), and modern-day depictions of each location.  We appreciated the associations made between old and new, historic and current–this allowed us to put these exhibits into perspective, and see the influences of these populations on life in the area.  We also were very excited about the presence of a museum like this on the University’s campus.  It serves as a tangible supplement to academic perspectives on these issues, and made us appreciate both the community and the conference even more.

Clearing Air Everywhere
This panel discussed the issue of greenhouse gas regulation under the Clean Air Act, and went through in detail both what current priorities should be in terms of regulation promulgation, and what actions to take to effectively regulate emitters.  Generally, NAAQS for NO2, SO2, Ozone, and PM2.5 were brought up as priorities for the achievement of cleaner air.

Three main federal statutory schemes were discussed as causes of action for effective CAA enforcement.  NEPA imposes procedural safeguards, allowing suit for failure to consider alternatives that would reduce emissions and other air quality impacts.  The Federal Land and Policy Management Act imposes a substantive mandate to comply with existing state and federal air quality statutes, and the National Forest Management Act requires consistency with forest plans, including protection of air quality and visibility.  However, NEPA does not result in a real duty to mitigate or adopt alternatives–something else is therefore required to ensure compliance–and compliance with the CAA through these land management statutes is an indirect requirement that often results in uncertainty.

One thing that Jess found interesting is that Clean Air Act section 110(l) prohibits the EPA from approving a State Implementation Plan if it will interfere with the attainment of the NAAQS–this means that, even if a SIP is designed in view of older, less stringent NAAQS, once new standards have been promulgated, any SIPs still pending cannot be approved if they are inconsistent with these new requirements.  This requires SIPs, in certain circumstances, to meet NAAQS in fewer than the three years from promulgation otherwise required, and forces additional state proactivity in updating their SIPs to reach attainment.  States do not enforce their SIPs unless approved by EPA.  If EPA does not approve, a FIP will then be imposed, and generally will be more stringent; it is therefore in a state’s interest to adequately regulate their pollution causing activities.

Evening Keynotes
Friday evening’s speakers were again very dissimilar, but both interesting.  First, we heard from Oregon Congressman Earl Blumenauer, whose platform was “saving the world, one bicycle at a time.”  Transportation is the second most expensive item in a family’s budget (the most expensive in less affluent families).  He urges his communities to rely on bicycles for transport, and secondarily streetcars and other means of public transportation, rather than single family cars.  With more choices come less costs expended in this sector, and as a result, a better standard of living.

Bicycling seems to be a hot topic at this conference, as is elimination of  typical American overconsumption practices in general.  In “Deep Green,” we heard about what can be eliminated from the typical American’s daily life to reduce our carbon footprints. In the panel on urban sprawl, we heard about efforts to reduce the size of cities, making them more walkable and easily traversed.  Our panel on Indigenous environmentalism discussed their increasing reliance on traditional means. What is being suggested, through a number of different fora, is essentially a return to a simpler lifestyle, one which was premised on our actual needs, rather than our ever-expanding ‘wants.’

Next, Dr. Arjun Makhijani of the Institute for Energy and Environmental Research presented his plan for a carbon and nuclear free United States energy policy.  Dr. Makhijani began his research, the findings of which he presented to us, not believing that a 100% renewable and efficient energy system was possible at this time, at least not at reasonable cost.  However, his studies led him to the opposite conclusion, and he now feels that it is possible for the nation to rely only on solar and wind power at prices equivalent to, if not less expensive than, the prices of electricity generation today.

Dr. Makhijani recognizes that he speaks of an eventuality, and that the first step is to take the planet out of “intensive care.”  To do so, he recommends that 70% of the energy footprint of buildings be eliminated by increasing energy efficiency.  He advocates solar power as a safer alternative to nuclear power, in which a similar process occurs, but the reactor (the sun) is millions of miles away.  He explains that with widespread wind technology, more than three times the required electric generation for the country can be produced.  He hesitantly mentions that biofuels will assist in getting out of this critical stage of dependence, but cautions that this should be a temporary measure, with fire completely eliminated from energy production eventually.  He, too, urges bicycling, walking, and public transportation as means to cease our reliance on oil, and land use regulations and zoning to make cities more accessible. With a combination of all of these production and reduction activities, the future of power generation will be changed, and our planet will have a chance at survival.

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