Thoughts on Garbage & Recycling

Fascinating discussion on garbage and recycling policy featured on the Tuesday, February 21 episode of the Diane Rehm Show. The takeaway: the U.S. is falling behind other OECD nations in the scope and effectiveness of our recycling policies. Emerging as the most ecologically sound solution are policies that seek to transfer responsibility for disposal of consumed products from the taxpayer onto product producers. In broader terms, a shift is required from the current "cradle to grave" approach of manufacturing and disposal to a "cradle to cradle" approach that reuses discarded products and components thereof in lieu of landfill disposal.

Allen Hershkowitz of the Natural Resources Defense Council:
"[Japan and Europe] limit the amount of material that goes to landfill. They have landfill taxes...[and] a policy called producer responsibility which requires the consumer products companies to help pay for the infrastructure to collect the material and send it to a recycling facility. Right now, municipal waste is [entirely] financed by taxpayers or consumers...Producer responsibility rationalizes the price signals, and helps support municipal programs financially and directs more material to recycling."

"[The Japanese] prohibit the deposit into landfills of certain types of plastics and paper. Their bottles are standardized size so that they could be refilled. They combine deposit laws with producer responsibility laws with bans of certain material going to landfills."

Another innovative solution are "bottle bills", as currently exist in 10 U.S. states. In my personal experience as a native Michigander - home of the 10 cent deposit* - I can attest to bottle bills' efficacy in commodifying waste. Discarded beverage containers that would be litter elsewhere possessed economic value and were likely to be retrieved by enterprising individuals with free time, and redeemed for cash value.** Samantha McBride, author of Recycling Reconsidered:

"[Under bottle bills] the consumer [returns] the container to the point of purchase...it maintains its economic value. And research has shown very high rates of [recycling] -- much higher than in curbside recycling scenarios...[If] we could promote a national bottle bill and extend it to more plastics and glass container we could have a very different scenario of recycling that would be more economically advantageous and ecologically relevant."

Allen Hershkowitz further noted that of the 25-26 percent of plastic water and soda bottles currently recycled, 70 percent come from the 10 states with bottle bills.

(*Recall the classic Seinfeld episode where Kramer and Newman schemed to return 5 cent NY bottles for the 10 cent MI deposit.)
(**Something of a euphemism for the homeless and vagrants. There exist (probably apocryphal) legends in Ann Arbor of entrepreneurial homeless men able to afford upmarket bicycles through collection and return of ubiquitous college town beer bottles/cans.)

The crux of our inefficient, linear approach to production and recycling:
"[We] subsidize pollution. We subsidize the virgin extraction industries and we subsidize the energy industry. And that makes recycling less cost competitive. One of the major benefits of recycling is energy savings...[If] we're subsidizing electricity by subsidizing oil and coal we're making the economic benefit of recycling diminished...The same goes for virgin paper making. We give away wood below market rates on national forest land...and this makes recycling paper less cost competitive...[The] marketplace is thoroughly distorted against environmental progress."
--Allen Hershkowitz, February 21, 2012 broadcast of the Diane Rehm Show*

(*I'd like to highly recommend listening to the broadcast in its entirety; other topics discussed include recycling e-waste, disincentives for excessive product packaging and organizing to demand better recycling programs from food providers. As mentioned earlier: fascinating.)

The Hershkowitzian view conforms neatly with the ethic espoused by Paul Hawken, Amory Lovins and Hunter Lovins in the environmental economics work Natural Capitalism. By neglecting to assign economic value to "natural capital' (exploited natural resources), traditional capitalist accounting does not fully adhere to its own principles - extracted resources injected into commerce are considered "income" and not liquidated capital. Consistent with Hershkowitz's points on recycling and underutilization of already harvested/produced products, Hawken, Lovins and Lovins posited that radical increases in resource productivity through a cyclical conception of product life could lead to tremendous economic gain if employed.

Ecosophy & Rick Santorum

"I was talking about the radical environmentalists," Santorum said. "That's why I was talking about energy. This idea that man is here to serve the earth, as opposed to husband its resources and being good stewards of the earth, and I think that is a phony ideal."

--Rick Santorum, as reported by David Lerman in Business Week

There is an implicit critique in Santorum's remarks that Environmentalism must confront: the misanthropic tendency to degrade humanity for the environmental harm it has caused. It is likely this strain of Environmentalist thinking that Santorum referenced in the quote above. Of course, humanity, through the act of living alone, cannot help but to have some degree of impact on the Earth. The modern pattern of post-industrial life, however, creates a greater than tolerable impact. When man's consumption of resources veers towards a more extreme level of ecological disturbance, Environmentalism ought to respond critically towards such disturbance - without denigrating humanity itself as the villain.

In reality, man is neither less than nor greater than nature; man is an integrated part of an interconnected whole. Put another way, we must operate from a world view that sees man as a part of nature, not apart from it. Humanity cannot survive - let alone thrive - independent of the Earth. All life depends upon the delicately balanced, nurturing presence of a healthy environment.

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"We are good stewards and have a responsibility as good stewards. Why? Because unlike the Earth, we're intelligent and we can actually manage things. Leaving things to nature, as those on the radical environmentalist would like to do, don't touch anything, leave it alone. Nature will take care of itself. Yes it will, but it won't be pretty. We can actually manage and husband things."

--Rick Santorum, as reported by Juana Summers in Politico

To live is to affect nature; doing "no thing" is not congruent with living. Man has a greater ability to affect nature and the environment than any other species. In this context, "stewardship"* should include the responsibility for this generation to ensure that environmental integrity and ecological health are conserved to guarantee the well-being of future generations. Indeed, our quality of life depends upon preserving environmental quality - clean air, clean water and a stable climate. Any planned consumption of natural resources should only be undertaken in a manner consistent with maintaining a sustainable, high-quality environment for future life. Contrary to this view, what Santorum actually seems to propose is the extraction and harvest of any accessible natural capital, and the transfer of public resources to private industry. Living sustainably in a symbiotic relationship with the Earth does not pre-suppose totalitarian government control of life and the economy.** Increased efficiency of resource use - consumption harmonized with ecology - offers entrepreneurial opportunity. To serve the Earth and preserve its natural capital is, in essence, to act as a good steward for humanity and all life.

(*Stewardship: "the careful and responsible management of something entrusted to one's care.")
(**On the topic of climate change, Santorum has stated that: "[Climate change is] an absolute travesty of scientific research that was motivated by those who, in my opinion, saw this as an opportunity to create a panic and a crisis for government to be able to step in and even more greatly control your life...I for one never bought the hoax." Climate science knowledge here. A future post will further chase the "Environmentalism: government control vs. entrepreneurial opportunity" issue.)

Environmental Law Clinic Kerfuffle, Redux: An Open Letter to Maryland Governor Martin O'Malley

Governor O'Malley: I was dismayed to learn that you have attacked the efforts of the University of Maryland Environmental Law Clinic to uphold Clean Water Act protections.

As a former student attorney with the Tulane University Environmental Law Clinic - which has similarly been the subject of misguided state government attacks - I know first hand what a valuable service such institutions provide. Where government fails to enforce environmental laws, law clinics often provide an essential public service: filling the gap left by government* to ensure that our shared natural environment receives the protection it deserves. While I also sympathize with the plight of the small, family run business - particularly in these challenging economic times - such sympathy does not include turning a blind eye to flagrant ecological abuse. I will always enthusiastically support small family farms - so long as they comply with longstanding legal norms and conduct their business in an ecologically sound manner.

(*A gap which is understandable in some instances, since government must represent multiple stakeholders with often-conflicting interests.)

Additionally, I am sure you are aware of the Chesapeake Bay dead zone. This is an environmental calamity caused in no small part by excess phosphorous run off from farms in Maryland and other Chesapeake Bay Watershed localities. The original purpose of the Clean Water Act was to prevent and mitigate impacts such as the current, polluted state of the Bay (which polluted state, incidentally, has a tremendous negative impact on the livelihoods of Maryland fishermen). By opposing the work of the Maryland Environmental Law Clinic, you are subverting the Clean Water Act and potentially threatening Maryland's long term ecological well-being.

I encourage you to allow the courts to decide the merits of the Waterkeeper Alliance's claims, without undue interference from your office or the state legislature. If Hudson Farm is found to have been violating the law, then surely they must pay the consequences for their actions. This is an opportunity for you to provide courageous leadership in support of the environment. Thank you for your time and attention.

[End open letter bit.]

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Student-staffed Environmental Law clinics offer would-be lawyers the opportunity to represent real clients in real cases, under the supervision of barred, experienced attorneys. When these clinics are too successful in prosecuting legal claims against government and industry defendants, they risk retaliation from their bested adversaries.

In Louisiana, Senate Bill 549 targeted the Tulane University Law School Environmental Law Clinic*, proposing to block university law clinics at any school receiving state funding from suing a government agency or representing a client suing a private defendant for monetary damages. The Louisiana Chemical Association - a backer of the bill - essentially admitted that the legislative intent was to punish the Tulane Environmental Law Clinic for "two decades of lawsuits filed against chemical companies by clients represented by Tulane law clinic students and attorneys."** Amidst the still-developing Deepwater Horizon catastrophe in May 2010, the Louisiana Senate Commerce Committee deferred consideration of the bill. Presumably, the Tulane Environmental Law Clinic's record of past success against government and industry defendants prompted the thwarted legislative response.

(*Disclosure: I am an alumnus of Tulane University Law School and its Environmental Law Clinic.)
(**Louisiana Chemical Association executive director Dan Borne further charged that the clinic's "mission seems to be to attack business development...in this state." Meanwhile, the bill's sponsor in the Louisiana Senate described Tulane as a "billion-dollar industry that recruit out-of-state kids to come in and sue us.")

Apart from the controversy surrounding Environmental Law clinics, they do provide an invaluable legal service to traditionally underserved communities. At Tulane, the law clinics represent indigent plaintiffs - individuals and associations who would otherwise be hard-pressed to obtain counsel. Ethical standards are rigorous - only meritorious claims are brought. Understandably, government and industry dislike being cast as defendants in litigation. Less understandable are their imprudent efforts to legislatively bar prospective plaintiffs from seeking justice under existing law. As former Tulane Law School Dean Lawrence Ponoroff remarked: "The clinic is neither anti-business nor pro-business...It is in the business of representing clients with legitimate claims under the law."

In Maryland, a Senate bill introduced by Senator Richard Colburn on February 13 would require the environmental law clinic at the University of Maryland Francis King Carey School of Law to "pay an amount not to exceed $500,000 to reimburse the Hudson Farm for legal expenses incurred as a defendant." The proposed bill is a direct response to a lawsuit the Maryland Environmental Law Clinic brought against Perdue Farms Inc. and Hudson Farm, on behalf of the Waterkeeper Alliance. Separately, in November 2011, Maryland Governor Martin O'Malley wrote a letter to Maryland law dean Phoebe Haddon which decried the clinic's involvement as an "ongoing injustice." Apparently Governor O'Malley and Senator Colburn are motivated by a fear that such lawsuits brought by the clinic have the potential to damage the local economy and force small, locally owned enterprises like Hudson Farm into bankruptcy.

Of course lawmakers are well within the scope of their duties to consider the impact of litigation on local businesses that form a part of their constituency. They would be derelict to do anything less. On the other hand, the Waterkeeper Alliance lawsuit alleges serious legal claims against Hudson Farm that cannot be ignored - the complaint avers that the farm is illegally discharging pollution into several waterways. Moreover, the judicial system is the appropriate arbiter on the validity of legal claims; not the legislative or executive branches. Tellingly, the legislative retaliation against the two clinics is wholly grounded in the economic harm clinic lawsuits allegedly cause local business - not the merits of the actual litigation. Legislative and executive interference in the inner working of the legal system is the true injustice here. To wit: the Maryland Environmental Law Clinic case against Hudson Farm was brought under the Clean Water Act - the legislative purpose of which is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Reinforcing the protective purpose of the Clean Water Act, the "citizen suit" provision effectively allows impacted individuals and associations to step in as trustee for clean water where the government fails to uphold its obligation to enforce the law. Environmental Law clinics provide a crucial means for citizens to vindicate the protective principle of the Clean Water Act.

Barack Obama & Keystone XL: The Right Decision for the Wrong Reason

"This announcement is not a judgment on the merits of the pipeline, but the arbitrary nature of a deadline that prevented the State Department from gathering the information necessary to approve the project and protect the American people,” Obama said in a statement. “I’m disappointed that Republicans in Congress forced this decision, but it does not change my administration’s commitment to American-made energy that creates jobs and reduces our dependence on oil."

--Barack Obama, as reported by Darren Goode in Politico.

Some time ago, TransCanada proposed to build a 1,700 mile pipeline for transporting Alberta tar sands crude southward into the U.S., from the Canadian border down to Texas and the Gulf of Mexico. They called this project the Keystone XL and applied to the U.S. State Department for the necessary permit to approve construction across the border between the U.S. and Canada. Last month, President Obama denied TransCanada's permit request, agreeing with the State Department's conclusion that the project would not "serve the national interest." In reaching this decision, the President declined to address the elephant in the room - development of the Canadian tar sands play requires a method of extraction that unduly depletes our remaining natural capital, burdening future generations with the likelihood of ecological poverty. Rather than send a clear signal that such a program of resource development is incompatible with the public interest, President Obama blamed the decision on Republicans in Congress and offered to consider a revised application from TransCanada, if it would alter its planned route.* This was not a bold act of decisive leadership, it was a punt.

(*As originally planned, the Keystone XL pipeline would have traversed the Ogallala Aquifer, which underlies eight central U.S. states and supplies drinking water to the region. Given the risk of spills associated with oil pipelines such as Keystone XL, the Ogallala Aquifer was thus threatened with potential contamination by the original pipeline route.)

As described by the U.S. Bureau of Land Management, tar sands “are a combination of clay, sand, water, and bitumen, a heavy black viscous oil.” The mining process involves both extraction and separation operations – in order to separate out the bitumen, which is processed into synthetic crude oil. Using current processes, two tons of tar sands yield one barrel of oil; in addition, extraction methods can require large amounts of both energy and water. Presently, the only large-scale commercial tar sands extraction industry is in Alberta, Canada.

In a lawsuit brought to enjoin construction of a similar Canadian tar sands pipeline into the U.S.  –  the Alberta Clipper pipeline – the Sierra Club noted that:

“[T]ar sands extraction operations [in Alberta] require large quantities of water and...draw down surface water flow, adversely impacting stream habitat for migratory fish and other species dependent on local water resources.  Drilling one well consumes 5.5 acre-feet of water each year, and the production of one gallon of oil requires 35 gallons of water.  Water used in tar sands processing is discharged into toxic tailings ponds so large that they are visible from space.  In May 2008 over 500 migratory birds dies in a single incident after landing on a tailings pond.”*

The Sierra Club further observed that “NEPA** directs federal decision-makers to ‘recognize the worldwide and long-range character of environmental problems.” A report issued by the Waters Matter Society of Alberta describes in detail many of the environmental problems associated with tar sands extraction in Canada. According to the report, as of June 2008, “720 million cubic meters of toxic water were contained in tailing ponds covering 130 square kilometers,” producing 200 million liters of contaminated water each day. The wastewater contained in the tailing ponds is so toxic that it cannot be re-introduced into the aquatic environment. Even so, tailing ponds do seep toxins into groundwater and surface water – amounting to 11 million liters of contaminated water per day, based on industry data. In addition, tar sands mining operations are permitted to divert 445 million cubic meters of water per year from the Athabasca River – “roughly the annual water needs for a city of three million people.” There are also concerns that sulfur dioxide and nitrogen dioxides emitted by tar sands mining operations could lead to increased acid rainfall and acidification of lakes in Northern Saskatchewan.

(*See Sierra Club v. Clinton)

(**The National Environmental Policy Act directs the environmental review process required for all “major federal actions” – including projects such as the Keystone XL pipeline. The end product of this review process is an Environmental Impact Statement, or EIS. A Council on Environmental Quality memorandum on EIS preparation for international projects provides that “NEPA requires agencies to include analysis of reasonably foreseeable transboundary effects of proposed actions in their analysis of proposed actions in the United States.”)

Reporting in the New Yorker, Elizabeth Kolbert described the impacts of tar sands mining on nearby First Nations communities in Alberta. Writing about the native village Fort Chipewyan (Fort Chip), Kolbert detailed local concerns – including a “peculiarly high number of cases of a rare cancer.” Consequently, the villagers in Fort Chip believe that toxins from the tailing ponds have migrated into Lake Athabasca, which borders the village and provides it with “drinking water [and]…staples like whitefish and pike.”

Consistent with the impacts described above and the understanding that environmental review of federal projects should consider transboundary impacts, EPA analyzed the State Department’s draft environmental impact statement (DEIS) for the Keystone XL in July 2010 and found it deficient. EPA asserted that the State Department DEIS should have considered the greenhouse gas emissions associated with tar sands extraction in Canada, as accounting for the greenhouse emissions associated with the long term importation of oil sands crude from Canada was an essential component of disclosing the “reasonably foreseeable environmental impacts” of the Keystone XL project. EPA also noted that “extraction and refining of Canadian oil sands crude are GHG-intensive relative to other types of crude oil;” and that there was a “reasonably close causal relationship between issuing a cross-border permit for the Keystone XL project and increased extraction of oil sands crude in Canada intended to supply that pipeline.” In addition, EPA found the State Department’s analysis of pipeline safety from oil spills and the impact of tailing ponds on migratory birds to be wanting.

Perhaps most importantly, EPA criticized the State Department’s narrow definition of the project’s need and purpose. In fact, the State Department’s characterization of the “purpose and need” of the Keystone XL pipeline rendered much of the environmental review process presumptive. According to the State Department, the primary purpose of the Keystone XL is to “provide the infrastructure necessary to transport [tar sands] crude oil from the border with Canada to delivery points [in the U.S.] in response to the market demand of [U.S.] refineries for heavy crude oil.” As EPA correctly contends, a more appropriate project need would reflect the broader goal of the Keystone XL pipeline: “meeting national energy needs and climate policy objectives.” In concert with this broader perspective, EPA suggested that the State Department’s Keystone XL analysis also include consideration of different demand scenarios for crude oil over the course of the project’s proposed fifty year life.  Such consideration would presumably include the possibility of a significant decline in oil demand, driven by higher fuel efficiency standards and more widespread adoption of clean energy generation.

Environmental impacts aside, construction of the Keystone XL was also touted as a “jobs generator” – obviously no small deal in the current economic climate. Creation of new jobs is certainly a laudable goal. However, it is equally important that this generally supportable goal not be used as a pretext for adopting ecologically unsound natural resource development policy. The demonstrated long term environmental impacts associated with tar sands extraction render the job generation argument nugatory; it is highly unwise to pursue an ecologically uneconomic path merely to create short term work during tough times.

Blaming Republicans for forcing him to make a hasty decision might make sound political sense for Barack Obama, as he defends himself from attacks by leading Presidential contenders Mitt Romney and Newt Gingrich.* In ecological terms, however, President Obama's rationale illustrates a potential new road in environmental policy not taken.

(*Mitt Romney’s reaction: “If Americans want to understand why unemployment in the United States has been stuck above 8 percent for the longest stretch since the Great Depression, decisions like this one are the place to begin.” Gingrich: “President Obama’s decision to reject the XL pipeline weakens America’s national security and kills thousands of well paying American jobs.”)

A Statement of Purpose

"STOP WRITING ABOUT BASKETBALL. No one gave a flying poop about the lockout, and people give even less of a flying poop now that it's back. If you want to write an entire book about something no one cares about, try environmentalism or something."*

--Sam, Edison (Taken from Bill Simmons's January 6, 2012 Mailbag on Grantland)

(*Stipulated: I generally enjoy reading Bill Simmons and many of the other talented writers employed at Grantland; the above quote actually came from a reader.)

This forum is birthed by a fear that Environmental Law and Policy issues will not be a part of the 2012 Election conversation. Or, more to the point, the "environmental problem" will not be discussed in the proper framework: it will be subsumed under the heading of "Energy," where the focus will be on jobs and growing the economy. The state of the natural environment itself will be relegated to a niche concern; "something that nobody cares about," as Sam from Edison calls it.

Obviously, Sam overstates the case - at least one person cares about "Environmentalism", otherwise these words, sentences, paragraphs and ideas would not be here. On the other hand, Sam also makes a trenchant observation - even if only by inartful implication: wide swaths of the public view Environmentalists as humourless scolds. Most Americans - weaned on the tradition of "rugged individualism" - do not appreciate being told what to do. Coming across with a self-righteous-sounding message about changing ecological consciousness can alienate people and influence them to tune that message out, particularly when the implication is that they must "fundamentally change" the way they have always lived. That such change is greatly needed and that a fairly major shift in consciousness is required are difficult points to get across in a consumer-oriented politco-economic culture.

This space operates under the assumption that continuing the current level of U.S. natural resource consumption is ecologically untenable - compounded by the (presumed) desire of developing nations to attain similar status. Thinking optimistically, my hope is that through discussing patterns of resource use and questioning the dogma of perpetually increasing economic growth, true persuasion may occur. The point is not to chide and induce feelings of guilt, but to use facts (such as they exist in the present climate) and reasoning to find workable solutions. With any luck, we can find our hover board or tricked-out DeLorean before its too late.

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Themes & Ideals: An Environmental Ethos

In thinking about the intersection of the Environment and the 2012 election, the following ecosophical prinicples and goals will guide discussion in this space:

• No exhausting debates on climate change science. I am not a climatologist by avocation and therefore do not feel confident to act as an arbiter of competing scientific theories. This forum accepts the consensus view of the International Panel on Climate Change to reflect the current state of scientific reality. On the other hand, consideration of competing policy arguments on how the U.S. should cope with climate change* is clearly within the purview of this forum.
• I do not intend to use loaded, prejudicial terminology such as "Big Oil", "Big Coal", or "Big (fill in the blank)". It is understood that these euphemisms are intended to draw attention to the powerful corporate industrial influences driving natural resource use. I would rather we carefully consider the factual consequences of current resoruce extraction policy than artificially tilt the debate one way or another through language alone.
• Eroding the idea that Environmentalism is a clever liberal ruse to increase governmental control of the economy. The command economies of Soviet Russia and the Eastern Bloc resulted in terrible environmental degradation in those countries; total government control of the economy would therefore seem incompatible with the goals of Environmentalism. In a legal sense, government has the duty to act as trustee of natural resources on behalf of the people. This duty as trustee should be seen to include the responsibility to promote natural resource use that ensures the long term health of the natural environment, for the benefit of the greater public good. In some instances, legislation provides an outlet for public participation to ensure that the government upholds its duty as trustee. The distinction between government's role as natural resource trustee and communistic environmental policy will likely be explored in greater thematic detail in later entries.
• This forum will demonstrate that Environmentalism is more than a "luxury" for bourgeois indulgence; it is an essential component of any program seeking to increase overall standards of living. Tautologically speaking, "environment" subsumes all other issues under its umbrella, in that the natural environment constitutes the setting where all life takes place. In contrast to Sam from Edison's credo, we all care about environmentalism, even if we don't know it.

(* Also including the argument that the U.S. should do nothing about climate change, for policy reasons.)