Kill the Sharks, Destroy the Ocean

Over seventy-three million sharks are killed around the world to meet the demand for a product that is less than five percent of its body weight – their fins. The fins are used for “shark fin soup,” a delicacy so tasteless that chicken broth must be added to it in order to make it palatable. The soup has a lavish past as it was once reserved for Chinese emperors and noblemen who believed that shark fins increased vitality and possessed attributes capable of curing many diseases. It was later banned in China until the mid-1980’s because it was reminiscent of bourgeoisie imperialism. By the time the ban was removed, China’s middle class had exploded. The middle class embraced the soup for its symbolism of power and wealth, serving it at banquets and weddings to impress guests. The insatiable demand for the soup is met through the process of ‘shark finning.’ Fishermen catch the sharks, slice off their fins, and dump the shark back into the ocean. The shark itself has no value, so the fishermen do not want to waste their limited space storing the carcasses. This allows the fisherman to kill exponentially more sharks than they could if they were required to keep the rest of the shark. When thrown back into the ocean the sharks are almost always still alive. But without their fins, the sharks are unable to swim, a required activity to replenish the necessary oxygen to continue to live. Sharks that do not die in this manner are slowly eaten alive by other animals. But the cruelty involved in shark finning is not the only reason to regulate the practice. Sharks are apex predators, also known as the top of their food chain. When shark populations decrease, the balance of the ecosystem is thrown off as the uneaten prey vastly increase in numbers. For example, a large staple of the diet of some species of sharks are rays. In many waters were shark populations have decreased, ray populations have greatly increased. The rays then gorge on ‘bivalves,’ such as oysters and clams. This in turn has led to the closing of several clam and oyster fisheries. In addition, bivalves feed themselves by filtering through the ocean water and thus are imperative to the cleanliness and health of the ocean. Decreasing populations of bivalves in the ocean has been compared to removing the filter of a swimming pool. This causes algae to bloom, resulting in an oxygen-deprived dead zone and the end of most ocean life in the area. Recognizing the significant importance of sharks to the ocean’s health; laws and regulations both internationally and domestically have attempted to curve shark finning numbers. Recent international and federal laws aim at the shark finning process, requiring fishermen to carry the shark carcass as well as the fin to decrease the numbers of sharks harvested. Very recent state legislation in California, Hawaii, New York, Oregon, and Washington prohibit the possession and trade of shark fins altogether. Removing shark fins from the market of a state means less harvested sharks and a healthier ocean. But these efforts may be too late. The biology of most sharks prevents them from sexually maturing until they reach several years of age and even when they can reproduce, they give birth to only a few young. Therefore, it will take decades for shark populations to improve. Until then, the adoption of state laws parallel to those discussed above as well as uniform international agreements is of the utmost importance to the health of the ocean. -Corey Mishler, Legal Intern

Fracking 101

A recent article released by The Huffington Post (http://www.huffingtonpost.com/2012/10/18/fracking-pollution-pennsylvania_n_1982320.html#slide=1126240) discusses fracking in the state of Pennsylvania and some of the adverse impacts it is having on people and the environment. For those of you who have not yet heard of fracking, the term is shorthand for hydraulic fracturing. This is a process of drilling down to shale rock which contains natural gas and injecting water, sand, and chemicals in order to force the gas out of the shale and into the head of the well for extraction. The article tells the account of the McIntyre Family in Butler County, Pennsylvania who no longer drink the water piped into their home. Mrs. McIntyre stated that her family currently uses the water strictly for flushing the toilet and nothing more. She also alleges the water has caused her family to suffer health problems including vomiting and skin rashes. A group of 100 people, including the McIntyre family, was recently surveyed by the Oil and Gas Accountability Project at Earthworks, an environmental and public advocacy group based in Washington. A report was released by Earthworks suggesting that fracking has caused widespread water and air pollution and has led to many health problems including sinus, respiratory, and mood problems. One of the major concerns is that fracking activities have expanded quite rapidly, and there has been little time to study the impacts of its long term effects on the environment and people. These concerns are exacerbated by the growing demand for natural gas in the United States which has helped to drive down energy costs. Researcher’s biggest concerns regarding health effects are that there is so little information about how the chemicals and presence of natural gas in water supplies due to fracking adversely affect humans and the environment. Analysts of the science and surveys pertaining to fracking claim that there seems to be a heavy bias on both sides of the battle. While environmental groups urge to back the information that whatever is happening to the environment and people due to fracking is most likely harmful, the supporters of fracking argue that its track record is safe and the process is heavily regulated by applicable law. Earthworks stated that the lackluster government inspection of natural gas well operations, and the lack of imposition of fines for violations, is a loophole in enforcement that is necessary to change the behavior of the drilling companies. The McIntyre family has claimed that drinking bottled water and using a friend’s shower has reduced many of the symptoms affecting their family. They claim that there are still effects coming from the air by the drilling operations including breathing problems and headaches. The McIntyre family is among the 80 percent of survey participants who reported smelling foul odors from the drilling operations. Only time, scientific study, and objective analysis will be able to tell us what impacts fracking will have on the environment and people. Fracking is yet another example of the problems society must confront when engaging in energy, economic and human health policy. -Nick Porta, Legal Intern

Alaskan Village Denied Standing to Sue

The Alaskan village of Kivalina is a small town at the tip of a barrier reef about seventy miles north of the Arctic Circle. The Village is feeling the devastating effects of climate change which is shrinking the sea ice that once protected the Village against seasonal coastal storms. In recent years, waves that used to be blocked by the sea ice have caused devastating erosion and the land beneath the Village is literally disappearing. The Village, faced with imminent relocation or destruction sued several oil, coal, and power companies claiming that their greenhouse gas emissions at least in part led to the warming of the planet and thus their injury. The Village also used a federal public nuisance law to claim that the companies had together violated the law by “[C]ontributing to global warming and misleading the public about its consequences.” The Village sought damages to assist in their relocation efforts which are estimated to cost $400,000,000. U.S. District Judge Saundra Armstrong dismissed the case ruling that the Village did not have standing. Generally, standing is a legal concept in which a party must demonstrate to the court that it has suffered an injury from the other party and a favorable court decision will redress that injury. Armstrong’s ruling meant that the Village did not adequately demonstrate that their injury was a direct result of the energy companies’ emission of greenhouse gases. Since greenhouse gases are released by a variety of companies and individuals, the Village could not hold these particular parties accountable. The Village appealed and on September 21, 2012 the federal Ninth Circuit Court of Appeals unanimously affirmed the ruling, stating that the Village did not have standing to sue the companies. In addition, Judge Sidney Thomas stated that a fairly recent Supreme Court decision holding that “[F]ederal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action” defeated the Village’s federal public nuisance claim. Judge Thomas remarked that "Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea . . . . But the solution to Kivalina's dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law." -Corey Mishler, Legal Intern

New Zealand Grants Personhood to a River

With corporations having been granted legal personhood in the United States a few years ago, you may be asking yourself whether or not non-human animals or parts of the environment could be granted such a vast array of rights and protection. Although not in the United States, a designation of a river as a legal person was recently requested and granted in New Zealand. The Whanganui River is the third largest river in the nation of New Zealand. The River is of mass significance to the local iwi, indigenousness people, who have not only relied on the River as a resource for generations but have also enjoyed the River’s natural beauty and use for recreation. The iwi have been fighting to have the River protected by the government from relentless pollution and unauthorized exploitation since 1837. Recently, New Zealand’s longest-running legal case celebrated a huge victory. In late August the iwi and New Zealand’s Parliament reached a preliminary settlement agreement which recognized the River as a legal entity enabling it to have legal standing and its own independent voice. The River will be recognized as “Te Awa Tupua,” the name given to it by the iwi and will be recognized in the same way a company is, which will give it protectable rights. The agreement also appointed two guardians – one from Parliament and one from the iwi – to represent the interests of the River. The New Zealand Minister of Treaty for Waitangi Negotiations, Christopher Finlayson, said the agreement recognizes the “inextricable relationship of iwi with the River.” He notes that the “iwi have not sought to have their relationship with the river defined in these settlement negotiations in terms of ownership of the riverbed or water, but have focused on recognizing the mana of the River from which the iwi’s mana flows, and on its future health and wellbeing.” This appears to be the first time in history a single river has ever been granted legal personhood anywhere in the world.

Environmental Justice for the Navajo?

During World War II the United States needed uranium ore to ensure the success of the Manhattan Project. To meet their demand the United States reached out to the Navajo Nation to build five uranium mines. This was a dual benefit at the time because the United States received the uranium ore they needed to win the war and the Navajo received increased employment rates as their members worked, lived and raised their families at and near the mines. Now, over five decades later the Navajo Nation is feeling the unintended consequences of the uranium mines. The Navajo are mostly located in the Four Corners Area of the Southwest, along with the abandoned uranium mines, and the people are now feeling the effects of the mines. Navajo homes in the area have reported high levels of radiation in their drinking water and the adverse health affects resulting from radiation in the water supply include lung cancer, bone cancer, and kidney disease, to name a few. The United States tried to address the contamination problem in 1978 by enacting the Uranium Mill Trailings Radiologic Control Act. However, this Act required the tribe to waive its rights to hold the United States accountable for any future damages resulting from contamination in exchange for groundwater management by the U.S. Department of Energy. Although the United States enacted and implemented this Act followed by many other studies and attempts at cleanups (the most recent being the five-year plan beginning in 2012 to clean up the 520 known mines), there is still contamination in the water, which affects the livelihood of the Navajo people, their livestock, and their health. Recent federal actions concerning environmental justice may turn the tables for the Navajo. In September of 2010 the federal Interagency Working Group on Environmental Justice met and the following year the seventeen agencies that compromise the working group signed a “Memorandum of Understanding on Environmental Justice and Executive Order 12898” which hopes to ensure all Americans the right to live in communities not burdened with pollution or toxic chemicals. This will ensure enforcement and remediation for the Navajo and hopefully help to clean up the Navajo communities polluted with radiation. The only concern with the cleanup action is who will bear the costs. After a fraudulent corporate reorganization by the Ker-McGee Corporation and Tronox Incorporated (the current owners of the mines), the EPA and the U.S. Department of Justice initiated a settlement in which the government will receive $270 million plus 88% of Tronx’s interest in another pending fraudulent conveyance lawsuit against the corporation Anadarko. Hopefully with a favorable lawsuit outcome and the $270 million upfront the EPA will have enough funds to finally cleanup the Navajo lands from contamination. -Ashley Geary, Legal Intern

Corporate Social Responsibility

As our global market continues to expand, it seems countries are stressing the need for sustainable development. Sustainable development encourages economic growth by utilizing resources to meet human needs while preserving the environment for present and future generations. Corporate Social Responsibility (CSR) is one area where countries are particularly focused when it comes to sustainable development. CSR is a practice that encourages companies to act in a responsible manner, in order to protect social, environmental, and economic interests of the public. There has been a recent progression throughout the world, formally adopting CSR requirements and encouraging companies to practice environmentally responsible decision making. In the U.S. the “Leadership in Energy and Environmental Design” (LEED) certification system is utilized to encourage companies to meet specific “environmental benchmarks” in their development and manufacturing process. The U.S. Green Building Council gives a specific certification to companies depending on the level of environmental achievement. The New York Times reports that companies such as Volkswagen have strived to achieve this certification. Volkswagen’s plant in Chattanooga, Tennessee received platinum (the highest) certification in 2011. Other auto companies such as Chrysler, G.M. and Honda have also achieved certification for their plants throughout the U.S. This is just one example of programs in the U.S. encouraging corporations to implement environmental awareness into their business plans. Corporate social responsibility is not just a trend in the U.S., but has seen developments in other areas in the world as well. The LEED system is an internationally recognized certification and G.M. is also seeking to achieve LEED certification for its manufacturing plant in Brazil. The plant seeks to use environmentally innovative automobile manufacturing practices to achieve LEED certification at the end of 2012. The EU has also made progress with their “Renewed EU Strategy 2011-2014 for Corporate Responsibility,” issued by the European Commission. The EU has set objectives that include transparency and reporting requirements for corporations’ environmental activities and information. The EU has also set corporate social responsibility commitments that companies should strive to achieve. The EU, like the U.S. with its LEED program, encourages environmentally friendly behavior by creating an awards program for industries who meet certain objectives. Spain has adopted a law that requires state owned enterprises and businesses with over 1,000 employees to compile and submit an annual sustainability report. China has also shown an interest by issuing a corporate social responsibility guide for state owned enterprises so that these companies can initiate a socially responsible management system. Corporate social responsibility plans are one way in which countries implement sustainable development and these development programs continue to be hot topic issues in the global environment. The United Nations Conference on Sustainable Development will be held in Rio de Janeiro in June 2012. At this conference over 130 heads of state and government and approximately 50,000 business leaders, mayors, activists and investors will review the progress of sustainable development programs and address the issues countries have faced in implementing these programs. As the New York Times reports, “Rio offers a generational opportunity to hit the reset button: to set a new course toward a future that balances the economic, social and environmental dimensions of prosperity and human well-being.” -Whitney Wilson, Legal Intern

How Green is a Golf Course?

Each May the Jacksonville area becomes the center of the golfing world when the PGA Tour’s flagship event, The Players Championship, makes its annual stop at the TPC Sawgrass Stadium Course. Golf enthusiasts from around the region descend on Ponte Vedra Beach to get a glimpse of the game’s greats amongst a natural setting of lush pine forests, sparking lakes, and rugged swampland. Although it may appear that golf is a sport dependent on a pristine natural environment, there are many aspects of golf course construction, maintenance, and management that are not very green—regardless of the color of the fairways themselves. The construction of hundreds of new courses across America during the last real estate boom, beginning in the 1990s, required the destruction of thousands of trees located in formerly undeveloped, natural areas. The subsequent installation of non-native grasses preferred by the golfing industry requires heavy maintenance to keep healthy. This means a lot of water. As fresh water becomes scarcer it is becoming more and more difficult to supply the heavy demands of golf course irrigation systems. In addition, course superintendents use large amounts of pesticides, fertilizers, and other contaminants to keep the grasses green. This may lead to pollution of groundwater systems, as well as adverse health effects for those handling the chemicals. Chemical usage may also have negative impacts on wildlife around the course. Fortunately, growing concern for sustainability is starting to bring serious changes in the golf community. Golf course superintendents and the PGA Tour are adjusting practices to help decrease their environmental footprint. “Organic” golf courses that attempt to use no pesticides or fertilizers are emerging. Superintendents have massively changed their irrigation systems to limit freshwater usage on the course. Some courses designed recently have been constructed atop brownfield sites, such as the TPC Scottsdale, which was built over a trash dump. The PGA Tour now provides recycling programs at all its tournaments, and events such as The Players Championship support environmental causes as part of their charitable efforts. TPC Sawgrass is also a member of the Audubon Cooperative Sanctuary Program for Golf Courses. The program stresses the idea that courses should be used as a place for people and wildlife alike to enjoy the resources of our shared natural surroundings. These green initiatives are a positive step in making golf a sport that adds to, rather than retracts from, a healthy sustainable environment. -Nick Barshel, Legal Intern