Sustainability Law

From my experience, South Korea is mostly unknown to most Americans. Before living and teaching there for nearly a month in January, 2014, I had mostly heard about the country in connection with its contentious history and relationship with its neighbor to the north. But while almost all information about the Korean Peninsula to penetrate the greater American consciousness is connected with Kim Jong Un’s haircut and his country’s erratic behavior, the last couple of decades have witnessed South Korea’s meteoric rise to world prominence on the basis of substantial political reform, a world-class – and fiercely competitive – education system, and almost unparalleled infrastructure and industrial development. Note that for the remainder of my posts I’ll refer to South Korea as simply Korea, trusting that day-to-day headlines will ensure that no readers forget North Korea or recognize that sustainability is not a huge priority in the north.

Considerations of at least the environmental component of sustainability are now important part of both Korean law and policy, though sometimes critics charge that politicians and government agencies deliberately use explicit references to sustainability to greenwash environmentally questionable projects motivated more by economic and political aims. I’ll give specific examples of this later.

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I’ll continue my discussion of Korea later, but I thought I’d mix it up a bit with a post about our visit to New Zealand.

Like many islands, New Zealand harbors unique biodiversity. The country separated from the Gondwana land mass about 80 million years ago, so evolution has been going its own way ever since. Fast forward to a millennium ago — before humans discovered the place — and New Zealand was home to a fascinating array of species found nowhere else on the planet. Denizens included tuataras, a foot-long lizard that is the last survivor of an entire family of dinosaurs, and a variety of giant insects. But biodiversity in New Zealand was most prominently marked by a conspicuous absence — no mammalian ancestors hitched a ride from Gondwanaland, so no native mammals inhabited the island — and a profusion of weird and wonderful bird life. The latter included giant moas, the largest and heaviest birds that ever lived, and the huge Haast’s eagle, the only thing that could take down a moa. A huge variety of other endemic birds also evolved, among them a wide variety of flightless birds. Kiwis, a few species of cute flightless nocturnal birds that poke around in the leaf litter for insects and other edibles, would later come to symbolize modern New Zealand and provide a nickname for its human inhabitants.

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I’ve had the very good fortune to teach or co-teach (with Professor Amy Bushaw) the seminar at Lewis and Clark Law School entitled Sustainability in Law and Business. While I cannot co-teach the seminar this semester, I have the chance to travel to a variety of places around the world while I am on sabbatical. I’m using this opportunity in part to observe first hand how different countries and places are incorporating sustainability into their cultures, their everyday life, their ethos, and their laws and policies. I plan to share my observations in a series of blog posts.

While I’ll do some research to provide background and context for my posts, I’ll mostly provide my thoughts from the perspective of a keenly interested and – at least when it comes to issues related sustainability – relatively knowledgeable observer. While this no doubt introduces a significant element of subjectivity into my posts and makes my observations more anecdotal than systematic, I hope my approach will give readers an accessible “big picture” overview of sustainability in select places around the globe. Along the way, I’ll try to highlight issues and trends that readers might want to look into themselves.

Though there are enormous debates about exactly what constitutes “sustainability,” most commentators analogize the concept to a three-legged stool, which includes economic, social/community, and environmental aspects. While my posts will comment on all three components of sustainability, I’ll focus more on it environmental attributes since these topic correspond most closely with my expertise and interests.

I always appreciate and comments and feedback!

The Food and Drug Administration (FDA), after decades of approving systematic application of antimicrobial drugs to food-producing animals, issued recommendations to phase out nontherapeutic use of these drugs. Historically, antimicrobial drugs were routinely introduced to livestock feed and water as a preemptive measure to preserve animal health. This ostensibly prudent practice, however, produced the unintended consequence of generating antimicrobial-resistant bacteria. The scientific community agrees that these mutant bacteria pose a significant threat to public health. Though the FDA’s nonbinding guidelines aim to curb this risk, they decidedly fall short of ensuring its elimination. As is often the case, the guidelines demonstrate government’s preference for incrementalism over sweeping transformation.

 For those like myself, unfamiliar with microbiology, some basic background information may be helpful. The term “antimicrobial” refers generally to drugs that destroy or inhibit the growth of microorganisms, especially those which are pathogenic. Bacterial resistance arises because antimicrobial drugs kill non-resistant bacteria, while resistant bacteria survive and self-propagate. The likelihood for developing an antimicrobial-resistant bacteria corresponds to the frequency of drug use—each time a drug is used, the probability increases for producing antimicrobial-resistant bacteria.

Antimicrobial-resistant bacteria, sometimes referred to as “nightmare bacteria,” present a significant risk to people around the world. Public health leaders, including the Center for Disease Control (CDC), have expressed concern about the specific threat to human health posed by antimicrobial-resistant bacteria found in livestock facilities. As far back as 1970, an FDA Task Force concluded “treated animals might serve as a reservoir of antimicrobial-resistant pathogens that could produce human disease.” In 2013 the CDC issued a report finding the use of antibiotics, generally speaking, the single most significant factor contributing to antimicrobial resistance around the world. In the United States, each year two million people experience infections that are resistant to antimicrobial drugs designed to combat the specific bacterial infection. More strikingly perhaps, 23,000 Americans perish each year as a direct consequence of these antimicrobial-resistant infections.

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The threat of climate change pushes sustainable development and reducing urban footprint.  Cities are revitalizing urban cores, increasing urban housing, developing walkable neighborhoods and reducing vehicle miles traveled.  However, sustainability does not just involve changes to benefit businesses and the environment.  Sustainability also involves the promotion of social values, such as diverse and inclusive communities.  An unfortunate byproduct of economic development can be gentrification.

Gentrification occurs when reviving or growing business districts become more popular and landlords decide to raise rents.  The increased demand for the area attracts developers who develop vacant lots or redevelop older properties.  The end result is higher rents than were traditional for the area, attracting wealthier businesses and residential renters.  As each area improves, chains or larger businesses move in, and developers build newer, more expensive buildings.

These price increases disproportionately impact smaller, local businesses who provide services for the lower income families and individuals who live in the neighborhood.   Local business and lower-income residential renters may be forced to move out of the neighborhood that they helped develop, unable to afford the increased prices.[1]  They can no longer benefit from the community they helped to create and are forced to live in underdeveloped and underserved areas further out from the urban core, with reduced walkability and access to services.

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The Capabilities of Energy Storage

Battery energy storage is an emerging technology within the electric power industry that has the capability to solve a number of challenges in achieving a more sustainable system.  In one instance, energy storage could be used to solve the problem of the intermittency of renewable energy sources, allowing for the scheduling of this power to be more definitive.  Alternatively, electric energy storage could be used as an energy time-shift by storing electric power produced during off-peak periods when prices are low, to be used for later use or sale when demand and prices are high.  This would also apply to renewable sources, and storage facilities could store energy when, for example, the wind is blowing at night but demand is low, and discharge the energy during the day when the wind is not as strong, but demand is high.  The Department of Energy declared that, “developing technology to store electrical energy so it can be available to meet demand whenever needed would represent a major breakthrough in electricity distribution.”

Ancillary services are the services necessary to support the transmission of electric power from seller to purchaser to maintain reliable operations of the interconnected transmission system.  This power is used to help with the scheduling of electricity transmission, control voltage, and prevent energy imbalance that is caused when there is a difference between actual energy delivered to a load and the energy scheduled to that load.  Energy storage has the capability to supply ancillary services because it can quickly provide energy to respond to changes in load or fluctuations in production from power plants.  In contrast, for most energy sources it takes utilities considerable time to “ramp-up” or “ramp-down” production.  Energy storage could improve transmission by enhancing reliability and compensating for disturbances on the system (such as outages or error), and alleviate congestion by storing energy and discharging during peak demand periods.  These are just a few of the potential uses of energy storage.

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In recent years a commonly-used ingredient in processed foods, soaps, and other products gained worldwide attention from environmentalists.  Palm oil, once marketed as the healthy, trans-fat free alternative to other oils, started headlining negative news reports.  Initially companies like Nestle, Kraft, and Cargill sought palm oil for its low price.  These companies could substitute trans-fat filled oils for oil that cost less, kept solid at room temperature, and was safer for customers’ waistlines.

This cheap commodity pricing came at a cost.  Palm oil originates in Africa, but now grows mainly in the deforested rainforest land of Indonesia.  The palms need hot, rainy climates to thrive.  Indonesia presents an ideal climate for palms.  Buyers such as Cargill and Archer Daniels Midland (ADM) quickly invested in this cheap commodity.  Now palm oil is the second most widely produced oil behind soybean oil.[1]

Why is palm oil such a problem?  Because palm oil is found in so many products and can be bought quite cheaply, it is causing environmental devastation around the globe, but most acutely in Indonesia.  The palm production process involves clear cutting rainforests, usually followed by burning the remaining vegetation.  Burning is an easy clearing option that also prepares land for planting oil palm plantations.  This turns rainforests – which effectively sequester massive amounts of carbon — into palm plantations, in the process emitting huge amounts of greenhouse gasses.   Rainforest clearing caused Indonesia to jump to the third largest carbon emitter on the planet.[2] Products with palm oil thus have a strong likelihood to have contributed to this large scare environmental degradation.

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Columbia River salmon have long been an iconic symbol of the Pacific Northwest.   Salmon were used from time immemorial by American Indian tribes throughout Oregon, Idaho, and Washington, providing subsistence and spirituality.  Columbia River Indians pulling giant salmon from the swift moving water would dip-net from the banks above rapids at Celilo Falls.  But, with the development of the canning process, salmon became a targeted commodity because of its abundance and new transportability. As demand began to increase, salmon populations began to decline. In addition to increased consumption, salmon populations also declined because of environmental change.  Throughout the 1900’s numerous dams were built by the Bureau of Reclamation and Army Corps of Engineers to generate power, sold and traded by the Bonneville Power Administration.  The new Federal Columbia River Power System (FCRPS) provided the necessary electrical infrastructure for the young, and quickly growing, northwest.

The FCRPS arguably provides the cleanest, cheapest, and most reliable energy in the United States.  In addition, Bonneville Power Administration is a self-funded agency that is not dependent on federal appropriations, but instead is independently funded through rate payers and ultimately customers.  Despite these benefits, the dams have caused some salmon populations to near extinction, but over the past 30 years, tribes, state governments, and federal agencies have worked cooperatively to revitalize salmon populations.  This revitalization has occurred through habitat restoration, improved salmon passage at dams, protection of downstream navigating fry, and supplementation programs.

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Throughout history, societies have developed along our oceans’ coastlines, flourishing from its seemingly endless bounties of fresh food and navigational access to distant lands. The influence of the oceans in development of human societies was so great, that it was often reflected in the religions and spiritual beliefs of the people themselves, such as the Hawaiian god of Kanaloa or the Roman god Neptune.

Though the oceans may no longer take on such a mythical connotation in today’s societies, they are no less important. As of 2003, over half the U.S. population called the coast home, even though coastal areas only cover about 17% of U.S. land. Coastal development, commercial and recreational fisheries, oil and gas extraction, aquaculture, shipping, and offshore wind electricity generation are all booming (and frequently competing) interests that are mounting pressures on both the limited space and resources that define our world’s oceans. But how does one balance and manage these multiple uses to ensure a sustainable future for our coastal resources?

The answer is nothing new. Ancient Hawaiians understood the need to manage their resources; records indicate that they implemented many strategies that we now consider cornerstones of ocean management, such as marine protected areas and limited fishing quotas. But yet this idea of designated multiple-use zoning to manage ocean resources still seems novel in some circles. We have been zoning and managing our land uses for nearly a century, but the transition to bringing this strategy to the oceans is still in development.

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