By Sarah Speis
Environmental issues are not followed very closely in the news. The big ones of course are discussed – climate change, natural disasters, and droughts – but are quickly forgotten about as celebrity marriages and cute YouTube videos become the focus. Pace Environmental Law Review is bringing articles that deal with both the big issues, and smaller ones, to the forefront. In the recent edition, two articles discuss major environmental issues, climate change and water/groundwater, but take a different spin on them. Elizabeth Ann Kronk Warner and Sarah J. Meyland take those issues respectively and show us different ways to think about them.
Elizabeth Ann Kronk Warner – Looking to the Third Sovereign: Tribal Environmental Ethics as an Alternative Paradigm
Being an Environmental Law student, I would say that I am familiar with many types of environmental issues, concerns, and potential solutions to environmental problems. However, I can say with almost 100% certainty, I have never thought to look to Native Indigenous cultures, and how they deal with environmental issues. In Elizabeth Ann Kronk Warner’s article, this is precisely what she does. Native Indian tribes have been, and will continue to feel the effects of climate change, just as non-native communities will. Kronk Warner suggests that in determining possible solutions to climate change, or in looking to environmental policy as a whole, we should follow the lead of many Native tribes and form our policies the way they do – with the environment as the sole focus.
Climate change is a global problem, which requires a global solution. It has become more important in recent years as many more people fully comprehend just what will occur if nothing is done. Kronk Warner mentions the Paris Conference of the Parties 21 which was recently held to discuss, and complete, an agreement between countries to limit the harmful activities which lead to climate change. Many people have many different views on what needs to happen to halt climate change, and exactly how to do it.
I believe that the goal which Kronk Warner discusses throughout her article of changing the non-Native view of environmental ethics from one of anthropocentrism to one of ecocentrism, while admirable, is not realistic. The Native ethics regarding their environment have been a part of their culture since it began. It is common knowledge, although Kronk Warner suggests that most public school curricula fail to teach on contemporary tribes, that Native cultures value their environment and their land to the highest degree; they grow around their land, they live off of it, they are the epitome of ecocentrists. Non-Native cultures, on the other hand, do not necessarily view the environment as a worthy priority. This has been the non-Native way of life for decades, centuries. To change the larger view on environmental ethics in such a way as to effect change seems almost impossible. Recently, I was writing a paper on wind and alternative energy systems and laws implementing them. I looked back to the beginning of environmental regulations regarding these systems and as time progressed, the one commonality between them was money. The energy laws changed from their inception of focusing on clean energy, to providing subsidies and increasing the job market. The center of non-Native attention seems to fall more towards innovation and progress – and money – than it does to the environment. I think that if Native environmental ethics were to take hold in non-Native communities it would take years, possibly decades, and the environment doesn’t have that long.
One of the most interesting points in her article, I believe, was the examples of the Tribal innovations which are already in place. Again, it is widely known that Native tribes take their environments seriously, but to hear of specific examples of it was intriguing. Many nations base their constitutions around their cultural views of the environment; they specifically state that their constitution is being established in order to “sustain and promote our cultures, languages, and way of life, protect our religious rights, establish and promote justice for all People, promote education, establish guidance and direction for our government, respect and protect our natural environment and resources, and advance the general welfare for ourselves and our posterity.” To have such a forceful statement right in the constitution is amazing. Even when this type of environmental ethic isn’t explicitly stated in a hard law, many tribes instead create vision statements that reflect their commitment: “The Muscogee Nation will protect and preserve the environment and be accountable to the people.” Similarly, it is the mission of the Osage Nation’s Congress to “[p]reserve and protect the Nation’s environment.”
Lastly, as a law student, it was interesting to read Kronk Warner’s discussion on professional ethics as they applied to tribal lawyers. I never would have thought of the different ethical dilemmas that tribal lawyers would face, and that the ABA Model Rules wouldn’t have addressed them. One of my friends told me recently that in one of her classes, a student suggested that lawyers should learn “all” of the languages so as to better serve their clients. This seemed ridiculous to me at first, but after reading this article, it doesn’t seem as crazy as I thought. You may now know exactly where you will end up as a lawyer, but once you are in a situation it may make sense to absorb your client’s culture. The legal issues that tribal lawyers face are not easily remedied, and a better understanding of the tribal culture may make decision making easier.
Sarah J. Meyland, Understanding the Lloyd Moratorium and the Science that supports it
When we think about water issues (or at least when I think about water issues) I always picture California, or Arizona – basically a desert like environment with dried up rivers, cacti, and dirt. It is rare that people on the East Coast worry about whether there will be enough water to water their lawns, or even to drink. Water issues in this area, especially in the New York area, are not very prominent. Sarah J. Meyland, however, rips that view apart. In her article on the Lloyd moratorium, she discusses the real issues that have been going on, and are continuing, in the Long Island area in terms of groundwater. This is an issue that hits close to home for New Yorkers.
The beginning of this article is very technical. Meyland discusses the background of the Lloyd aquifer, and aquifers in general, to get a better understanding of just how important it is – the recharging, discharging, saltwater intrusion. I think she does a very good job of simplifying very scientific and difficult systems. Looking back to Earth Science and Environmental classes in high school and college, I remembered the major terms, but could not tell you the processes even if you paid me. The very straightforward and basic way that Meyland describes what happens in an aquifer would have helped me a lot back then. Again, one of the things I found most interesting while reading this portion of her article was that very often we don’t think about where the resources we are using come from. We turn on a faucet and there it is; showering us, hydrating us. We never think about where it is coming from, or that it could stop coming. To have such a intricate system right beneath many of our feet sort of puts into perspective our place in the environment.
In my discussion on the Kronk Warner article, I will admit I was a bit of a pessimist. However, after reading this article, I am happily proved wrong. Throughout the first half of this article, Meyland discusses the evolution of the Lloyd aquifer and the passage of the Lloyd moratorium. Initially, the threshold to pump from the aquifer was “public necessity.” That could mean many things. As evidenced by the application from the Roosevelt Field Water District in 1980, fear of falling short of the “summer peak demand” seemed to them to be enough to pump – and it was. The New York State Department of Environmental Conservation granted the application. Only after public outcry was the decision reviewed. The pessimistic side of me thought it would be upheld – summer water usage was important. But the application was denied by the Commission of the DEC and that decision was upheld by the courts. With further review of the Lloyd aquifer and the standards to be applied when determining whether or not more water can be pumped away, the need for “extreme care” in deciding applications emerged – “public necessity” was no longer enough to meet the needs of the aquifer, and the future needs of the communities who use it. That is a much higher standard to meet. I found it extremely interesting that even back then, in the 1980s, head officials, like Administrative Law Judges, saw the need to care for such an important natural resource for future generations. That is a huge deal. Many environmental critics support using resources in the present, and do not think it is within our responsibility to care for those in the future. I was pleasantly surprised by the stringent standards promulgated for such a vital resource.
Going back to my pessimistic point of view, I really enjoyed the realistic approach that Meyland took when recommending approaches to our groundwater. She put it into perspective – it takes up to 500 years for many aquifers to fill, that sort of time requires more than a “public necessity” standard. She advocates for comprehensive groundwater management. Aquifers are very sensitive systems and putting together a management entity which deals solely and directly with groundwater may be the only way of maintaining them. By having a dedicated agency to develop scientifically based policies, groundwater, and specifically groundwater in Long Island, will not have to be an issue.
 Constitution of the Cheyenne and Arapaho Tribes, Cheyenne & Arapaho Tribes, http://www.c-a-tribes.org/cheyenne-arapaho-tribes-constitution (last visited April 9, 2016) (emphasis added).
 Muscogee (Creek) Nation Vision, http://www.muscogeenation-nsn.gov/Pages/13April/visionsstatement.html (last visited April 9, 2016).
 Legislative Branch Mission Statement, The Osage Nation, http://www.osagenation-nsn.gov/who-we-are/congress-legislative-branch (last visited April 9, 2016).