Sustainability Law

Wetland mitigation banking is often touted as a happy medium between the interests of private developers, natural resource managers, and environmentalists, in which developers are allowed to offset unavoidable impacts on wetlands by purchasing “credits” from a designated mitigation bank—a wetland area that is restored, created, or preserved, then set aside to compensate for future impacts on wetlands due to development activities. The value of these “credits” is determined by quantifying the wetland function or by the acreage of wetlands restored or created.[1] Wetland mitigation banking is a tool used to achieve compliance with the “no net loss” goal mandated by section 404 of the Clean Water Act, [2] and is often regarded as a win-win situation that allows economic development while mitigating harmful impacts to the environment. Mitigation banks also create an incentive for landowners to preserve wetlands on their property, rather than viewing development as the only way to generate value from the land.

However, research has shown that mitigation banks fail to achieve the “no net loss” goal, both on a regulatory and ecological level.[3]  On a regulatory level, a Government Accountability Office (GAO) report published in 2005 found that the Corps of Engineers—which oversees compensatory mitigation—performed little oversight to ensure that compensatory mitigation was occurring.[4] More specifically, the GAO found that only 15% of the 152 permit files evaluated contained proof that a compliance inspection was completed. Further, despite the range of enforcement actions that the Corps could take for violations of compensatory mitigation requirements, the agency opted for negotiation, and in some cases was limited in recommending legal action because the agency did not specify mitigation requirements in the permits it issued. In response to the report, the Corps developed new regulations governing compensatory mitigation, including new minimum monitoring requirements.[5] The substance of the monitoring report, however, is left to the individual Corps district office to decide, so there is still the potential for compliance variability between different mitigation banks.[6]

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“Clean coal.”  Much of the U.S. energy industry has adopted this oxymoronic slogan in an attempt to support a power source that is under attack for its harmful environmental and public health effects.  In our “green” age, the ugly side of energy needs to be forgettable, so a $35 million a year ad campaign has magically transformed coal’s properties.  And ta-da!  Now we have a buzzword that the country can’t stop passing around.  However, the term “clean coal” needs a lot of clarification.  We need agencies to help clarify this term by exposing and reducing the extremely unclean side of coal.

“Clean” refers mostly to the emissions of coal-fired power plants, but the more accurate term would be “cleaner.”  Yes, the types of coal we currently extract have properties that make it burn more efficiently than other types.  And yes, coal-fired power plants now have boilers and scrubbers that help reduce emissions.  Nevertheless, the phrase “clean coal” largely ignores the process needed to get the coal to the plant: mining is left out of the equation.

One of the best ways to debunk the “clean coal” myth is to place more focus on the consequences of mining operations.  This heightened attention needs to be visible in agency actions, specifically approval of mining projects and promulgation of regulations governing the industry. Coal will not seem so “clean” when it becomes clear that mitigation cannot fully compensate for the extensive damage caused by mining.

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1.      Ecosystems as people promotes sustainable development.

One of the biggest challenges facing sustainable development law is valuing natural systems on the same level as anthropocentric systems (economics and society).  There are many methods to value the environment and maintain its integrity (i.e. ecosystem services).  This blog argues that expanding legal concepts of the rights of nature and the environment provides another potential option to level the three-legged stool.  Specifically, standing should be expanded to include ecosystems themselves.  Currently the best method for achieving this goal is through treaty negotiations between sovereign governments. Expanding standing to nature is not a new concept.  See Sierra Club v. Morton, 405 US 727, 741-55 (1972),where the modern concept of standing was described.  This blog examines expanding the rights of nature through a treaty at the intersection of sustainability and indigenous rights.  Greater environmental standing is necessary to achieve sustainability.  In a world where corporations, are considered people, so too should the natural environment.

First, this post examines current standing requirements for environmental plaintiffs and why expanding those requirements promotes greater sustainability.  Next, this blog examines New Zealand’s recent move to recognize the personhood of the Whanagui River and the possibilities for applying this concept in the United States.  Next, this blog compares environmental personhood to corporate personhood, a recognized concept in American law.  Finally, this blog examines why altering normative choices is critical for the development of sustainability law.

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Tragedy of the common is not novel to marine fisheries. People have always recognized the susceptibility of fisheries to overexploitation.[1] The current quota-based management regimes such as the individual transferrable quotas (ITQ) have achieved notable success, but they are not perfect.[2] While fishermen do not have incentives to catch as many fish as they can due to numerical limitation under quota-based management, they do have incentives to be more efficient. Fishermen may focus their efforts towards sites with high fish abundance in order to minimize time and efforts.[3] However, these areas of high abundance may also be critical breeding grounds for the species.[4] Prolong and concentrated fishing in specific sites can diminish the quality of those sites for such targeted species.

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The Sustainability in Law and Business Seminar held its final meeting of the semester on Earth Day. As part of the final day, some class particpants provided entries to a Sustainability Haiku contest. Here are some of the entries:

Drive an S.U.V

That runs on snail darter blood?

Not sustainable.

                Marie Burcham

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A sustainable business is one that operates in an environmentally responsible way. It is one whose products and processes do not result in a negative environmental impact.[1] A sustainable businesses demand an extra attention to some aspects besides profitability.

In certain cities, there is a demand for goods produced by sustainable business. That means that there are people willing to pay some extra money for products that are made by sustainable businesses. These people know that they are paying for something else besides just a good product. That is the reason why markets like New Seasons can afford to sell similar products at a higher price and still be in business.

Starting a sustainable business in a city like Portland might not be too hard because there are lots of people who like green products and are willing to pay the extra cost to buy them. These people are a green demand. If there is green demand, then green products are more likely to be sold.

The question is what would happen in another city. What would happen if there were no a green demand? What would happen if there were no consumers willing to pay more for a green product? What would happen with New Seasons if there were not environment friendly consumers? Is it possible to have a successful sustainable business without a green demand?

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As new social benefit concepts emerge and gain popularity in the private sector, they result in new programs and entities.  Often these programs and entities cause confusion, and as more of them are unveiled, the confusion only increases.  Much of the confusion comes from lack of knowledge about what these things are, why society needs them, etc.  Some of the confusion comes from distrust and skepticism as to the motivations of the private sector to provide social benefits.  In order to dispel some of the confusion, at some point, someone will have to define, or at least clarify what these programs and entities are. In order to provide some basis for trust, at some point accountability will have to be provided for.

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Traditionally, players in the world’s economy fall into one of three sectors: private for-profit businesses, not-for-profit organizations, and governmental entities.  According to one view, a fourth sector, the players and programs of which are known by terms such as corporate social responsibility, sustainable business, microfinance, social enterprise, and venture philanthropy – to name just a few – has emerged over the last few decades.[i]  This view holds that players in the traditional sectors have introduced programs that have, in effect, blurred the characteristic lines between the sectors.[ii]  It additionally holds that in the last few decades new players have emerged that also blur those characteristic lines.[iii]  However, a look at the defining characteristics of both the traditional and the new players reveals that a fourth sector has not emerged; that in fact, the blurring of lines and the emergence of new players is merely part of the continued development of the traditional sectors.

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Flexibility in the Kyoto Protocol, while a good idea in principle, creates perverse incentives that thwart the purpose of the Protocol, and create a question of whether or not it can be an effective method of curbing the effects of anthropogenic climate change.  First, before even getting to the Flexibility Mechanisms, allowing non-Annex II countries (former Soviet bloc countries) “hot air” starts the program off on the wrong foot.  Second, the Clean Development Mechanism has been abused by companies seeking to take advantage of loopholes within it.

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It is safe to assume that most Americans will never drink the water from their toilet – so why does that water need to be potable? The short answer is it doesn’t. For that reason, innovative states are passing laws allowing greywater to be used to flush toilets and irrigate landscaping.^[1] Generally, greywater is defined as untreated household washwater that has not come in contact with flushed toilet water (called black water).^[2] States that allow greywater reuse are realizing that water that has already been used to wash laundry, dishes, and hands can safely be applied to other narrowly defined household uses as an effective way to reduce overall water consumption. 

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