Sustainability Law

Wind energy seems too good to be true.  The idea of replacing filthy power plants burning scarce fossil fuels with technology that harnesses electricity from a source as pure and renewable as the wind is calming and captivating.  So much so that many states mandate the procurement of wind power as part of the state’s renewable portfolio standards (RPS).  The federal government supports wind energy as well, and the Obama administration promotes wind growth as a big part of its “all of the above” energy policy.  But the wind industry would have to grow to over 25 times its 2007 capacity to achieve the federal government’s goal of 20% U.S. power from wind by 2030, according to a report prepared by the U.S. Dept. of Energy.  Such a lofty goal demands a lot of new turbines and power lines, and the country has responded with record growth in wind power over the past few years.  According to recent projections, though, we are still years away from achieving even 5% of electricity consumption from wind.  Nevertheless, the U.S. trend of investing heavily in wind is undeniable and continues today.

Despite such strong government support, an entire anti-wind movement has emerged full of activists spouting hundreds of claims that the cool and refreshing breath of fresh wind energy is illusory.  This movement is not confined to the U.S., either—one article notes 700 anti-wind groups in 28 countries.  Activists allege that wind energy is unreasonably expensive, ineffective at reducing greenhouse gasses (GHGs), and an unreliable and inefficient source of electricity generation.  Furthermore, there is evidence that wind turbines cause harm to people, animals, the environment, and the planet.  In other words, many believe that wind energy is economically, practically, and environmentally unsustainable.   

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As sustainability has become a product selling point for millions of customers, many businesses have marketed themselves as “green.” For some manufacturers it is logical to make a product more environmentally friendly. Perhaps unexpectedly, one emerging market for sustainable products is the apparel industry. Companies that have made efforts to hold themselves out as sustainable reveal the impact clothing can have on the environment. Regulation in this area is obsolete, and the margin for improvement is vast. Two clothing retailers have set the bar for combining sustainability goals with growth and continued marketplace success.

Patagonia is often hailed as the industry leader in advertising and creating a more sustainable product. Patagonia works to make the buyer aware of the supply chain.[1] The average customer is often not familiar with a products supply chain; in fact, many have probably never encountered the term. Patagonia has created an advertising campaign centered on customer awareness. It is open about its production factories, working conditions, and supplies used in its products. Patagonia markets its apparel as being made of responsibly sourced wool, organic cotton and down from humanely treated birds. Additionally, Patagonia calls attention to the lifespan[2] of each item of clothing it sells and asks buyers to recycle their apparel. Recognizing that clothing with a short lifespan (sometimes called fast fashion) easily becomes waste, Patagonia asks its customers to return old clothing they might otherwise throw away. It then fixes or recycles the donated clothes. Many Patagonia stores feature a used section where the store sells back the donated used clothing. This process reduces waste while still generating income for Patagonia.[3]  Patagonia aims to produce a more discerning and educated customer. Of course, it may make sense that Patagonia is so successful in its sustainability efforts because it is a company catering to those who love the outdoors. It follows that Patagonia’s target customer is one who cares about the environment.

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[3] http://www.patagonia.com/us/common-threads/reuse

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The U. S. Department of Agriculture (USDA) strictly regulates any food labeled as “organic”. [1] Unbeknownst to most consumers, cosmetics that use the word “organic” are not regulated by USDA. Cosmetics fall under the purview of the U.S. Food and Drug Administration (FDA). FDA defines cosmetics as “articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body…for cleansing, beautifying, promoting attractiveness, or altering the appearance.”[2] It is logical that such a broad array of products would be subject to their own regulations, but unlike USDA regulations, the laws and regulations that FDA enforces do not have definitions for “natural” or “organic.”

Several regulatory bodies working in concert should be able to create clarity for customers trying to buy organic cosmetics. However, this is not the case.  Because each agency has limited power over certain aspects of the industry, the process has become convoluted and filled with loopholes. The largest of these loopholes is centered around using the word “organic” on cosmetic labels. To consumers an “organic” label implies regulation by USDA. Yet USDA does not have the same power over cosmetics and personal care products as it does over food; the regulation of cosmetics lies squarely within the authority of FDA.

The term “organic” is familiar to anyone who spends much time in a grocery store. Recent years have seen exponential growth in the sale of organic fruits, vegetables and other food products. Grocery store shelves are littered with terms like “fair trade”, “sustainable”, “cruelty-free” and “green.” And the use of the word “organic” is not limited to food products. “Natural” and “organic” have become very important buzzwords words in the cosmetics industry. The same principles that lead the consumer to care about what they put in their body also guide them to be scrupulous about what they put on their body. And while it is more common to see news reports circulate about the dangers of food—GMOs, antibiotics in meat, and the use of pesticides—there is growing awareness about the dangers of cosmetics as well.[3]

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As the old adage goes, when the economy is down, drinking goes up.  Alcohol sales tend to increase steadily in times of recession.  It is fitting, then to question if companies that produce and/or sell alcohol are participating in the social and environmental responsibility that we are exploring in this class. It appears that alcohol manufacturers do not put as much focus on environmental or social responsibility as compared to other products we have explored in this seminar.  But why?  I propose that business owners are not yet demanding responsibility from manufacturers, and until they do, there is no incentive to develop more responsible practices.

After our trip to Bamboo Sushi, it seems that alcohol might just not be on business owners radar when it comes to responsible purchasing.  Kristofer Lofgren explained all of the sustainable components of the business, from the types of fish purchased, to special freezers to keep the fish fresh, special energy efficient lighting, and repurposed bar tops.  However, when I asked him if his liquor was purchased with the same environmental and social responsibility in mind, he said no, that it wasn’t feasible.  He reasoned that if a customer wanted Grey Goose, they weren’t going to care that it wasn’t as responsible as another brand.

So, should a business owner wish to stock his bar with liquors that he can feel good about, what does he need to know?  First, that almost all brands are owned by a handful of organizations.  For example, Pernod Ricard owns 29 brands of liquor and 11 brands of wine and champagne. (http://www.pernod-ricard-usa.com/BrandsLanding.aspx).  This would be helpful in deciding what brands to stock, i.e. choosing all Ricard products if that organization’s practices were up to your standards.  Second, that while most brand’s websites tout social responsibility, they are talking about promoting responsible drinking and preventing underage drinking.  (http://www.greygoose.com/en/global-content/social-responsibility) While those are undeniably important aspects of the business, they won’t be helpful here.  Last, business owners should educate themselves on the specific brand’s standards, if there are any questionable practices/motivations, and what monitoring, if any, is in place. 

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To most Americans, regardless of their ideological persuasions, the Obama Administration’s approach to combating climate change is controversial. Some characterize it as a lukewarm stream of disappointment; others a war on affordable energy, good-paying jobs, and American prosperity. The national discourse surrounding the significance of climate change is highly polarized, reflecting a longstanding chasm among our nation’s people. At the heart of the debate over President Obama’s climate action plan is whether the government should regulate carbon pollution through a source-based or system-based model. The ramifications of this choice are significant. This blog entry explores the arguments surrounding adoption of a source-based and system-based model for reducing carbon emissions in the United States.

On June 25, 2013, President Obama issued a memorandum directing the Administrator of the Environmental Protection Agency (EPA) to begin working on carbon pollution regulations for modified, reconstructed, future, and most controversially, existing power plants. That same day at Georgetown University in Washington, D.C., the President declared, “The question is whether we will have the courage to act before it’s too late. And how we answer will have a profound impact on the world that we leave behind not just to you, but to your children and to your grandchildren. As a President, as a father, and as an American, I’m here to say we need to act.” Seeking the moral high ground, President Obama invoked the significance of taking action today to safeguard the generations of tomorrow.

The Obama Administration’s clarion call for action targets the energy sector’s 1,500 power plants, which together constitute the United States’ largest source of greenhouse gases. The controversial crux of EPA’s anticipated regulations relates to their impact on an existing fleet of 600 coal-fired power plants, providing 40% of our nation’s energy supply. To date, these power plants have eluded significant pollution control technology due to a grandfathering provision under section 111 of the Clean Air Act. The Obama Administration is ending this longstanding exemption.

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People living in we now call Italy have a long history of recycling. Need some marble blocks for the new basilica you’re building as the principal place for the pope? No problem – there’s a lot of already quarried stone down at the old Forum. And what about a really spiffy high alter when St. Peter’s is finally finished? In 1623 Lorenzo Bernini just striped some of the bronze plates from the Pantheon and melted them down to cast his famous baldachin.

It turns out that Italians are still pretty good at recycling today, as well as other aspects of an environmentally sustainable lifestyle. It is quite common to see separate receptacles for garbage and recyclables in public spaces in towns big and small – though like virtually everywhere not everyone puts the correct material in the correct place.  And while there is not a lot of green marketing in Italy – the clothes, shoes, and leather bags on sale everywhere emphasize style– there’s quite a lot going on that is less visible.

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The American dream—the promise of upward mobility for hardworking individuals regardless of background or other factors—often gets defined by home ownership.[1] This ownership serves as a status symbol, separating the upper and middle classes from the poor in the minds of many. However, as the population increased and more people sought their own little fiefdoms, the emphasis on home ownership has presented some challenging problems. Urban sprawl and the ills that accompany it constitute some of the largest issues.

The growth of the middle class following World War II caused an increase in movement out of the cities as people sought to purchase their own homes. Federal policies in the form of subsidized home loans from the Federal Housing Authority and broad rezoning of the landscape intensified this problem. Innovations in transportation also exacerbated the issue by empowering people to move further from city centers while continuing to work in urban hubs. These policies and technological advances enabled, if not encouraged, the suburbanization of American cities.[2] This phenomenon, known as urban sprawl, is defined as “a situation in which large stores, groups of houses, etc., are built in an area around a city that formerly ha[d] few people living in it.”[3] Thus, urban sprawl represents the conversion of rural areas into suburban population centers with traditional distinctions among urban, suburban, and rural regions becoming increasingly less clear.

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For millennia, sports have represented a unifying force. They transcend race, ethnicity, nationality, and other characteristics to bring people together under one unifying principle: competition. The Olympics exemplify the unifying power of sports, as amply demonstrated throughout history. The egalitarian power of sports may partially be due to the fact that sports put all countries and people on equal footing. All factors besides athletic ability become irrelevant, even if only for a fleeting moment. Even the most socially and economically disadvantaged participants have the same chance at prevailing. The best man or woman wins, period. This equalizing power is traceable as far back as the first Olympics in 776 B.C. when a cook won the only event, a 192-meter footrace, becoming the first recorded Olympian.[1] The power of the Olympic Games to bring countries and citizens together is largely unrivaled by any other event. This unification provides a unique opportunity to open up dialogue between nations and establish precedents on a variety of topics, including sustainability.

The modern Olympic Games originated in 1896 when, after a 1,500 year hiatus, Athens, Greece hosted the first contemporary Games. That event featured 280 participants from 13 nations. Following the Athens Games, the Olympics have continued to occur every four years, albeit hosted by a different nation. In 1924, the Winter Olympics officially made its debut at the Paris Games. By the time the Games returned to Athens in 2004, the event had grown to include 11,000 athletes from 201 nations. In the past century, the Olympics have become a truly global event, bringing almost all the nations of the world together for two weeks of competition and celebration.

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Most people love elephants. These enormous, intelligent, and charismatic animals are ubiquitous in children’s stories, the subject of innumerable nature documentaries, and one of the most recognizable species in the world. Elephants are among the reasons we were excited to be in Cambodia – a country with both wild elephant populations as well as a history of using elephants as domestic animals that goes back thousands of years. We soon came to realize that these creatures also provide a tremendous opportunity to understand some of the environmental, sustainability, and animal welfare issues faced by both developing countries and the people who visit this part of the world in part to see elephants in places other than a zoo.

Unfortunately, however, the inescapable fact in Cambodia is that wild elephants have an extremely bleak future. Today there are perhaps 200 elephants that live in remnants of the country’s tropical forests. However, our “jungle trek” in Cambodia’s Mondulkiri Province gave us a first hand look at the reasons our grandkids will not likely see these animals in the wild if they visit Cambodia someday. Our first indication of the status of elephant habitat came before we even reached the town of Sen Monorom, jumping off point for the forays into northeast Cambodia’s forested hills. Watching the progress of our trip on our smart phone’s map function, I noticed that we were about to pass through a large area – of course mapped in green – that was labeled as the “Snoul Wildlife Sanctuary.” I eagerly peered out of the car window to see the rice paddies of the lowlands give way to the “ocean of trees” we read about in our guidebook.

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This is a hard post to write. I’ve taught a generation of law students about challenges faced by developing countries, as well as traveled in some of the poorest countries in the world, so none of the things I’ve experienced here in Cambodia come as a surprise. But it is always tough to see, smell, and experience the reality.

I’m not standing in a classroom; I’m not reading an article in my office in Portland. Instead I’m squeezed into a dusty bus with people who will never own a car, bumping along a rutted road past wooden shacks, piles of trash, and neglected street dogs. I’m buying a few postcards at a tourist site from a seven year old girl who should be in at a desk, but her school may not have enough teachers and her teachers may not get paid. I’m stepping over the charred trunks of trees where the forest was cut and burned to plant cashews in the charred red soil that people in the United States will buy at New Seasons in their trail mix.

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