The Controversy of “Sue and Settle” Gone For Now, But For Good?

The Controversy of “Sue and Settle” Gone For Now, But For Good?

By: Seth Todd

Scott Pruitt is not a well-liked man in the environmental community, and especially was not their first choice to head the Environmental Protection Agency whenever President Trump took office. We recently learned why. Scott Pruitt dropped a bombshell on the environmental community recently, announcing, “The days of regulation through litigation are over. We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the Agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress. Additionally, gone are the days of routinely paying tens of thousands of dollars in attorney’s fees to these groups with which we swiftly settle.”[1] While Scott Pruitt seems to be putting an end to “sue and settle” could it eventually make a comeback?

Pruitt is attempting to change the way that the EPA handles lawsuits, laying out guidelines for how the suits will be conducted and how they will be released to the public for transparency.[2] This ends the tradition that was occurring, of so called “friendship” suits, where the EPA would not defend itself in lawsuits and essentially acquiesce to the desire of whichever environmental group filed suit. [3] By settling with the group, the change that they sued to implement would essentially become law through a consent decree. [4]

Those that opposed the practice of sue and settle claimed that it was a way for politicians to make law, without any of the accountability. Instead of writing the laws themselves, outside environmental groups were being allowed to dictate the law. If the general public complained, the members of Congress could simply point to the consent decrees and claim there was nothing they could have done. [5] It was also an effective way to remove oversight from the executive branch, while possibly binding their successors. [6]

While many people rallied against the policy of “sue and settle”, many environmental groups acted as if it never existed. In defending the practice, the Sierra Club looked to clarify the practice stating that to, “understand the lies behind the false concept of “sue and settle,” one must understand the two main types of negotiated settlements in environmental law: decision-forcing settlements and substantive settlements.” [7] The statement went on to differentiate between settlements that forced Congress to take action on missed deadlines (decision-forcing) and settlements that effectively created law (substantive settlements). [8] The Sierra Club claimed that the end of the “sue and settle” was an attempt to try and restrain environmental groups from filing suit, proclaiming, “If Pruitt thinks that by frivolously litigating deadline cases, he will deter the Sierra Club or other citizen groups from holding him accountable in court, he should think again: We will not be deterred.”[9]

                  Groups are both sides are very passionate when it comes to where they stand on the issue of “sue and settle”. Some view it as a shady backroom way of creating new law, while others view it as an effect way to get Congress to do their jobs. Lucky for both of these groups, we have the Administrative Procedure Act (APA). The APA gives agencies and Congress a set of requirements to follow whenever new regulations are created. Typically, notice agency is required to give public notice of the rulemaking procedure, by posting it in the Federal Register.[10] The notice must include the date the rule is effective, the authority under which it was created, and the substance of the rule.

                  After the agency has given notice, a public review period is started that can last anywhere from 30 days to a year. The public review period can also be reopened if the agency believes longer was needed to hear all public comments. The agency is then required to consider all of the comments in crafting the final rule that will eventually go into effect.[11] By allowing public comment, interested parties are allowed to directly take part in the rulemaking effort. All of the rules created are judicially reviewable, which gives groups an avenue to challenge any rule they believe to be unlawful.[12]

                  If the government began following the standards set in the APA, it would seem to appease both sides of this debate. The APA requirements allow for transparency and public comment, which appeases those that believe “sue and settle” was a shady way of enacting new law. The public comment period and ability for judicial review should satisfy those who believed “sue and settle” was an effective way to get Congress to simply do their jobs. While it may not guarantee environmental groups complete success as they seemed to enjoy under “sue and settle”, it provides a more transparent way to actively effect change.

                  A point to watch going forward is how this will actually play out. Yes, Pruitt pointed out that environmental groups were using “sue and settle” to their advantage, but it remains to be seen the effect it will have on industry groups. Effectively “sue and settle” is only a bad way to create policy if you are on the other side of the aisle. Under the Obama administration “sue and settle” was used to strengthen environmental protections in a time where a Republican controlled Congress fought every move he made. Under the Trump administration does ending “sue and settle” mean it is gone for good? Or, given the inability to effectively push through any real policy in the current Congress, does “sue and settle” revive itself later on down the road? Industry groups could start using the tactic to hold President Trump to his campaign promises. The pro-coal groups could start filing suits in order to repeal stricter laws that were put in place during the Obama administration. Will Scott Pruitt valiantly defend those cases, in front of the same industries that helped push him into the head EPA administrator?

                  While “sue and settle” may be ending, there is still effective ways to create change through following the APA requirements that are mandated under federal law. Transparency will increase through the use of the guidelines, and realistically environmental groups will not be able to guide policy as much as they previously had in the “sue and settle” era.  The question remains, after frustratingly being unable to enact new regulations to reduce the laws governing industries such as coal, does the Trump administration bring back a version of “sue and settle” that favors polluters? 

 

[1] Administrator Pruitt Issues Directive to End EPA "Sue & Settle", Environmental Protection Agency, https://www.epa.gov/newsreleases/administrator-pruitt-issues-directive-end-epa-sue-settle (last updated October 16, 2017).

[2] Id.

[3]Phil Golberg, Christopher Appel, Victor Shwartz, The Liability Engine that Could Not: Why the Decades-Long Litigation Pursuit of Natural Resource Suppliers Should Grind to a Halt,  12 J.L. Econ. & Pol'y 70 (2016).

[4] Id.

[5] Andrew Grossman, Regulation Through Sham Litigation: The Sue and Settle Phenomenon, The Heritage Foundation (Feb. 25, 2017), http://www.heritage.org/crime-and-justice/report/regulation-through-sham-litigation-the-sue-and-settle-phenomenon.

[6] Id.

[7]Pat Gallagher, Scott Pruitt and the Myth of “Sue and Settle”, Sierra Club (October 18, 2017), http://www.sierraclub.org/sierra/scott-pruitt-and-myth-settle-and-sue. 

[8] Id.

[9] Id.

[10] The Administrative Procedure Act (APA), EPIC.org, https://epic.org/open_gov/Administrative-Procedure-Act.html (last visited Oct. 26, 2017).  

[11] Id.

[12] Id.

Better Ingredients, Better Food [Security]: A Conversation with a Brandeis Alum about Global Food Production and the Debate Between GMOs and Organic Foods

Better Ingredients, Better Food [Security]: 

A Conversation with a Brandeis Alum about Global Food Production and the Debate Between GMOs and Organic Foods

By: Anesha Blakey

Earlier this month, Brandeis School of Law alumnus, Marshall L. Matz, was honored by the University of Louisville as the 2017 Law Alumni Fellow.[1] After celebrating this honor at the 2017 Wilson Wyatt Alumni Awards luncheon and banquet dinner, Mr. Matz kindly took the time to visit with students, staff, and faculty at his alma mater. I had the pleasure of attending this speaking engagement, during which Mr. Matz elaborated on his illustrious and varied career path.

Originally hailing from Connecticut, Mr. Matz began his legal career in South Dakota after graduating from Brandeis in 1971.[2] Although South Dakota seemed like an unlikely starting place, Mr. Matz’s 40+ year-long career has taken him all over the United States and numerous countries around the world. In addition to private practice, Mr. Matz has also worked in various government positions, including the opportunity to serve as the Chairman of the Agriculture Committee of the Obama for America presidential campaign.[3]

As a result of his dedication to food research and agriculture law, many students and faculty concentrated their questions in response to Mr. Matz’s most recent opinion article, entitled “The Missing Link in Global Food Security.”[4] In this article, Mr. Matz provides a wealth of information related to global food production by detailing the findings provided in the 2018 Senate Agriculture Appropriations Report and the World Food Program’s 2017 report on World Food Assistance.[5] One such staggering statistic noted in the 2018 Senate Agriculture Appropriations Report provides that “global food production will have to increase by 60 percent to meet the needs of 9 billion people forecast for 2050.”[6] As a result of such facts, questions and conversation generated by attendees turned to the debate between GMOs and organic food.

Before delving into the details of how the GMO vs. organic food debate plays into global food security, some additional information may be helpful. The term “GMO” is an acronym for genetically modified organisms.[7] GMOs are also referred to as “GE,” which means genetically engineered.[8] Contrastingly, organic foods are foods that “do not contain any hormones, antibiotics, sweeteners, food colors, or flavorings” that do not naturally exist in the food.[9] By definition alone, organic foods may seem healthier. However, that is not necessarily true, nor is it the overwhelming general consensus from consumers.[10] According to a nationwide poll conducted by the Pew Research Center, 55 percent of adults said that “organically grown produce is healthier than conventionally grown produce, while 41 percent said there’s no difference.”[11] Thus, although it is clear that there is a distinction between the production of GMOs and organic foods, both methods of food production have similarities that may result in an answer to global food security.  

GMOs were introduced into the food supply in the 1990s.[12] However, it was not until 2000 that the United States Department of Agriculture banned GMOs from certified organic acres.[13] As a result of its implementation, the ban seemingly gave rise to the GMO vs. organic food debate, which has promulgated a further discussion centered on labeling.

Outside the United States, GMOs are banned as food ingredients, particularly throughout Europe.[14] In fact, at least 64 countries, including many developed nations, require labeling of GMOs.[15] In the United States, however, it was not until recently that Congress passed a law requiring a GMO labeling bill.[16] As a result, prior to 2016 many individual states took it upon themselves to educate their citizens about labeling the ingredients in their food. “In 2013, Connecticut and Maine passed GE labeling laws” and in 2014, 35 bills were introduced throughout 20 states.[17] Now, after passage of the labeling bill, GMO ingredients will be available via a QR code, which consumers may scan to learn more information about the ingredients.[18]

For lack of a better phrase or term, GMOs get a bad label. However, for the sake of global food security, it’s time to reinvent the negative stereotype and find commonalities between GMOs and organic food. Scientifically, genetic engineering is an extension of a DNA process.[19] In the past, however, genetic engineering has resulted in “superweeds,” which are crops that developed an immunity to certain herbicides and thus, result in the use of an abundance of chemicals on crops that negatively affect the environment. As such, we must change the debate from GMOs vs. organic foods and instead, educate consumers on good vs. bad GMOs.[20] In fact, genetic engineering can be a “powerful tool that can help us farm responsibly and sustainably by minimizing damage to the environment and prioritizing the health of both people and animals – the precise goals of organic farming.”[21] Thus, the agricultural solution to solving global food security may be the organic GMO.[22] With this type of food production, genetic engineering does not have to result in superweeds that negatively affect the environment. On the contrary, crops may be genetically engineered to adhere to agriculturally challenged environments, while preserving the natural and organic elements of the crop.[23]

Another aspect of global food security that could benefit from the organic GMO solution involves reducing food loss and waste. As you may have read in last week’s blog post, America is the world’s biggest culprit when it comes to food waste, discarding “$160 billion worth of produce annually.”[24] The blog post goes on to provide the astonishing comparison that with all of that food wasted, 41 million Americans suffer from hunger.[25] On a global scale, the United Nations Food and Agriculture Organization reports “that one third of food produced for human consumption [] – approximately 2.9 trillion pounds per year – is lost or wasted,” resulting in almost 800 million people suffering from hunger around the world.[26] Furthermore, the Environmental Protection Agency adds that massive amounts of food waste, including the 133 billion pounds of food supply wasted annually in the United States, “produces methane, a greenhouse gas with 21 times the global warming potential of carbon dioxide.”[27] However, the production of organic GMOs would result in less bruising and browning of crops, which would likely lead to a reduction in the significant number of unaesthetically pleasing food that is unnecessarily discarded.[28]

For some, labeling may be an issue. However, for everyone, global food security may be a problem in the not-so-distant future. So, whether your diet strictly consists of organic food only, or if you prefer to purchase foods with a non-GMO label, or quite frankly, even if you think GMOs add a little something extra to your favorite dish, the truth is that the future of global food security requires a new attitude about methods of food production. Thus, instead of continuing to draw lines in the sand and labels in the grocery aisles, let’s rewrite the narrative, educate ourselves on various forms of genetic engineering, and reap the benefits of organic GMOs for our health and our environment.

[1] Law Alumni Fellow to Visit the Law School, Brandeis L. Intranet, http://louisville.edu/law/intranet/events/law-alumni-fellow-to-visit-the-law-school (last visited Oct. 25, 2017).

[2] Marshall L. Matz, OFW Law, https://www.ofwlaw.com/attorneys/marshall-l-matz/ (last visited Oct. 25, 2017).

[3] Erica Walsh, Alumni Association Honors Outstanding Graduates, UofLNews.com (Oct. 5, 2017), http://uoflnews.com/post/uofltoday/alumni-association-honors-outstanding-graduates/.

[4] Marshall Matz, Opinion: The Missing Link in Global Food Security, Agri-Pulse (July 27, 2017, 9:45 AM), https://www.agri-pulse.com/articles/9639-opinion-the-missing-link-in-global-food-security.

[5] Id.

[6] Id.

[7] Organic vs Genetically Modified Foods, Morgellons Aid, https://morgellonsaid.wordpress.com/diet-nutrition-2/organic-vs-genetically-modified-foods/ (last visited Oct. 25, 2017).

[8] Id.

[9] Id.

[10] Brian Barth, GMO vs. Organic, The Growler (Feb. 27, 2017), https://growlermag.com/gmo-vs-organic/.

[11] Robert Preidt, How Americans Feel About Organic and Genetically Modified Foods, CBSNews.com (Dec. 2, 2016, 4:27 PM), https://www.cbsnews.com/news/organic-genetically-modified-non-gmo-food/.

[12] GMO Education, Inst. for Resp. Tech., http://responsibletechnology.org/gmo-education/ (last visited Oct. 25, 2017).

[13] Ferris Jabr, Organic GMOs Could Be the Future of Food – If We Let Them, Wired (Oct.7, 2017, 12:00 AM), https://www.wired.com/2015/10/organic-gmos-could-be-the-future-of-food-if-we-let-them/.

[14] GMO Education, supra note 12,

[15] Labeling Around the World, Just Label It, http://www.justlabelit.org/right-to-know-center/labeling-around-the-world/ (last visited Oct. 25, 2017).

[16] Dan Charles, Congress Just Passed a GMO Labeling Bill. Nobody’s Super Happy About It, NPR (July 14, 2016, 5:34 PM), http://www.npr.org/sections/thesalt/2016/07/14/486060866/congress-just-passed-a-gmo-labeling-bill-nobodys-super-happy-about-it.

[17] GE Food Labeling: States Take Action, Ctr. for Food Safety (June 10, 2014), http://www.centerforfoodsafety.org/fact-sheets/3067/ge-food-labeling-states-take-action#showJoin.

[18] Charles, supra note 16.

[19] Jabr, supra note 13.

[20] Barth, supra note 10.

[21] Jabr, supra note 13.

[22] Id.

[23] Id.

[24] Adam Chandler, Why Americans Lead the World in Food Waste, The Atlantic (July 15, 2016), https://www.theatlantic.com/business/archive/2016/07/american-food-waste/491513/.

[25] Hunger & Poverty in America, Food Res. & Action Ctr, http://frac.org/hunger-poverty-america (last visited Oct. 25, 2017).

[26] Kate Hall, How GMOs Help Us Reduce Food Waste & Its Environmental Impact, Forbes.com (Nov. 18, 2016, 9:25 AM), https://www.forbes.com/sites/gmoanswers/2016/11/18/gmos-help-reduce-food-waste/#4900e4c43bce.

[27] Id.

[28] Id.

Cultural Perspectives: French Environmental Initiatives that America Should Take Note Of

Cultural Perspectives: French Environmental Initiatives that America Should Take Note Of

By: Madison Mantz

At the beginning of the Summer, I ventured across the pond to the rural city of Privas, France, located in the heart of the French Alps. My sister is currently teaching English there, so I decided to go and visit her. There were some things that I expected on this trip… for example, the winding hillsides and vineyards were captivating, as expected… the language barrier was rough, as expected (I got yelled at by Train Security and had not a single clue what they were asking of me)… and it was full of adventure, as expected (long story short, but Megan convinced me to hitch hike). Something I was not expecting, however, was the extent of environmental awareness embedded in the French culture. I gleaned this from the fact that every individual I encountered was waste conscious; from the types of energy efficient cars they drove to the types of all-natural food they consumed. This sparked my interest to learn what large-scale green initiatives have encouraged this societal mindset. I discovered three unique legislative enactments that I think the US should consider replicating: the Green Roof decree, Government funded monetary incentives, and a Waste Management Law.

One thing that can definitely be said of the French is that they like their Independence. Within the realm of energy, this fact forces them to be creative since their land produces little oil and gas.[1] Instead of being reliant on Middle Eastern Countries, they have turned primarily to utilizing Nuclear energy and other alternative energy sources.[2] One such alternative source of energy is harnessing solar energy through panels on commercial buildings. Although you might be thinking that this isn’t very novel, they actually gave this idea the force of law. In March 2015, the French Parliament passed a decree, requiring “all rooftops on new buildings to be either partially covered in plants or solar panels”.[3] Utilizing these “green roofs” as they are called, decreases the amount of energy needed to heat the building in the winter, cool it in the summer and it has the added benefit of retaining rainwater. Collecting rainwater lowers the problem of runoffs and promotes biodiversity, as birds have a place to nest in an otherwise busy, urban area.[4] Not too long ago, I observed the Solar Eclipse from the rooftop of Louisville’s Fiscal Court Building and I remember looking around and observing all the plain, vacant, surrounding roofs. It’s hard to imagine preferring an ordinary roof after learning about all of the pleasant environmental effects that accompany the “green roofing” movement. This is one trend that US cities should definitely keep on their radar.

“Bribery”…, “encouragement”…, whichever way you slice it, this next initiative involves the French government actually paying people to be more energy efficient. As a disclosure, I am not actually a proponent of replicating this in America because I think that considering the host of problems we are currently facing, it is not the best use of tax-dollars. However, it is a unique, radical program that is interesting to know about. In September 2017, France’s Environment and Energy Minister Nicolas Hulot, submitted a proposal for the 2018 budget that includes an allotment of subsidies and incentives for car owners to switch to vehicles with low carbon dioxide emissions, as well as for home owners to transition to renewable energy heating systems.[5] One of the provisions provides “all car owners who switch to an electric vehicle will receive a 2,500 euro switching incentive on top of a 6,000 euro subsidy if the measure is approved”.[6] This may seem like a pretty radical method to employ but decreasing their carbon footprint is something the French clearly prioritize. Plus, when you tax your citizens for enjoying the commodity of television (yes, this is a thing), you are sure to find the revenue for such an incentive.

Lastly, in 2016, France implemented a Waste Management Law that bans supermarkets from throwing away or destroying unsold food, forcing them instead to donate to charity or food banks.[7] Apparently the latter part of this law refers to the fact that some stores were locking their binned food in warehouses prior to collection, as well as dousing food with bleach in order to deter foragers from dumpster diving.[8] Under this law, supermarkets will have to enter into contracts with charities or face penalties of €3,750.[9] Now, America is no stranger to food waste, in fact, studies suggest that America leads the world, throwing away a staggering “60 million tons (or $160 billion) worth of produce annually”.[10] Pair this statistic with the alarming fact that 41 million Americans suffer from hunger annually and you realize that there is a grave problem with our societal priorities. Speaking of food priorities, one that has contributed to this waste is our focus on aesthetic food.[11] Just the other day, I heard someone talking about what a great deal they got on fruit from the “ugly food” section at Kroger. I had no idea such a section existed, but after thinking about it, I realized I too am guilty of being the occasional food snob, steering clear of the ones with minor dents and bruises. With this in mind, that we are actively wasting such a needed product, I think laws compelling food donation should be paramount. America must not only take note of this law, but there should be reforms to replicate it. Without this kind of enforcement, as is seen in America where donating is voluntary, stores will continue to toss and too many people will continue to go hungry.

These are just a few of the many unique measures the French government has adopted to build a more self-sufficient, sustainable infrastructure. They have instilled these values in their citizens in an effort to become a full circle society; one that consumes, but also one that replenishes their resources to combat this consumption. In America, a country that prides itself on opportunity and advancement, it only makes sense to follow suit.

[1] John Palfreman, “Why the French like Nuclear Energy”, Frontline, http://www.pbs.org/wgbh/pages/frontline/shows/reaction/readings/french.html (last visited Oct. 16, 2017).

[2] Id.

[3]France Decrees New Rooftops Must Be Covered in Plants or Solar Panels”, The Guardian, (March 19, 2015) https://www.theguardian.com/world/2015/mar/20/france-decrees-new-rooftops-must-be-covered-in-plants-or-solar-panels.

[4] Id.

[5]France plans new incentives to phase out polluting vehicles, Reuters (Sep. 18, 2017)”, https://www.reuters.com/article/us-france-autos-tax/france-plans-new-incentives-to-phase-out-polluting-vehicles-idUSKCN1BT0PZ.

[6] Id.

[7] Angelique Chrisafis, “French Law Forbids Food Waste by Supermarkets”, The Guardian (Feb. 4, 2016), https://www.theguardian.com/world/2016/feb/04/french-law-forbids-food-waste-by-supermarkets

[8] Id.

[9] Id.

[10] Adam Chandler, “Why Americans Lead the World in Food Waste”, The Atlantic (Jul. 15, 2016), https://www.theatlantic.com/business/archive/2016/07/american-food-waste/491513/.

[11] Suzanne Goldenberg, “Half of US Food Produce is Thrown Away, New Research Suggests”, The Guardian (Jul. 13, 2016), https://www.theguardian.com/environment/2016/jul/13/us-food-waste-ugly-fruit-vegetables-perfect?CMP=share_btn_tw.

 

What’s the Buzz?: The push to save the bees from extinction

What’s the Buzz?: The push to save the bees from extinction. 

By: Sarah Ortkiese

            The heat is sweltering as you sit outside waiting for the sun sink in the horizon and the temperature to start to cool down. While you’re waiting, you reach over for an ice-cold soda, only to hear an angry buzz emitting from the soda can right before you are to take a drink. Peaking inside you see a bee trapped. Frustrated, you simply set the can aside and wait for the trapped bee to find its way out.

            This was a familiar situation for me growing up in Kentucky. Whether it was the exact scenario described above or simply some uninvited bar-b-q guests in the form of a swarm of bees in the summer time; bees were ever present in my day to day life. Today, we might encounter them walking to class, work, or at lunch and probably even wished they disappear at times. But what would happen if the bees disappeared? Would we simply be able to work in the garden without running the risk of getting stung? Or would we even have a garden to work in? These are the questions we are now facing.  

            The threat of the disappearing bees even inspired thriller screen writer M. Night Shyamalan. In 2008, he wrote a movie called The Happening.[1] This movie opening innocently enough with a science teacher lecturing his class, but turns sinister as a mysterious disease breaks out.[2] What was at the crux of the storyline? The bees disappearing. In the opening minutes of the movie, you discover that the bees have mysteriously disappeared from the planet, and from that disappearance starts a downward spiral for the human race.[3]While the movie is simply a work of fiction, and a dramatization seemingly based on the disappearance of the bees, the question remains, what will happen to the human race if the bees disappear? To figure out that answer, which is currently being debated, we have to look at what it is exactly that the bee does for our communities.

 

The importance of the bee extends past the pollinating of flowers in personal gardens that is most commonly attributed to the bee. In the United States alone, the honey bee accounts for the pollination of one-third of the diet.[4] Monetarily that means that the honey bee accounts for $17 billion of pollination in the agricultural market.[5] Outside of the food industry, bees support the local ecosystem of their habitat through pollination of the native plant species, which in turn helps with erosion and water control in the area.[6]

 

The decline in the bee population over the past two and a half decades has been described as a “severe decline. . .with no evident prospect of a natural reversal.”[7] The drastic nature of the decline prompted the President in 2014 to create a task force whose purpose was to assess the situation of native bees and why their numbers have started to decline in such a rapid state.[8] The reasons behind the disappearance were listed by the White House Task Force as:

 

-       “habitat loss…;

-       poor nutrition…;

-       pests and disease;

-       pesticides and other environmental toxins; and

-       migratory stress from long distance transport.”[9]

 

An additional study conducted by the Center for Biological Diversity, looked at the native bee populations of North America and Hawaii.[10] The Center for Biological Diversity discovered that 52% of the native bee populations are declining and even more are at the risk of being destroyed.[11] In 2016, seven species of bees were named to the endangered species list by the United States Fish and Wildlife Service.[12] These were the first ever bees named to the endangered species list and are not the last.[13] In March of 2017, the rusty pathed bumblebee was added to the endangered species list.[14]

 

The Endangered Species Act allows for the protection of animals and their habitats in an effort to rehabilitate their numbers.[15] To be classified as endangered under the Endangered Species Act, a species must be “in danger of extinction throughout all or a specific portion of its range.”[16]The species, once added to the Endangered Species List, is automatically protected from “harassment, harm, pursuit, hunting, shooting, wounding, killing, trapping capture, or collecting,” and any agency action is scrutinized to make sure that it will not negatively impact the habitat of the endangered species nor the actual species itself.[17] The goal for placing the seven species of bees of the Endangered Species List is to allow for their current habitats to be preserved from any further harm in hopes that it will allow for their numbers to being to stabilize and hopefully rise.[18]

 

The next time I decided to sit and enjoy a coffee or lunch outside in between classes and a bee decides to fly around my table, I will appreciate all that the bee does for the agricultural market and my local ecosystem. Even though I may decide to move inside to enjoy my lunch.

 

[1] The Happening (Twentieth Century Fox Film Corporation 2008).

[2] The Happening (Twentieth Century Fox Film Corporation 2008).

[3] The Happening (Twentieth Century Fox Film Corporation 2008).

[4] U.S. Gov’t Accountability Off., GAO-16-220, Bee Health (2016).

[5] U.S. Gov’t Accountability Off., GAO-16-220, Bee Health (2016).

[6] U.S. Gov’t Accountability Off., GAO-16-220, Bee Health (2016).

[7] Complaint for Injunctive and Declaratory Relief, Natural Resources Defense Council v. U.S. Dep’t of the Interior, et. all. (2017), NRDC, www.nrdc.org/sites/default/files/suit-filed0by-nrdc-to-protect-rusty-patched-bumblebee-20170214.pdf

[8] U.S. Gov’t Accountability Off., GAO-16-220, Bee Health (2016).

[9] U.S. Gov’t Accountability Off., GAO-16-220, Bee Health (2016).

[10] Pollinators in Peril, Biological Diversity, http://www.biologicaldiversity.org/campaigns/native_pollinators/pdfs/Pollinators_in_Peril.pdf (last visited Sept. 26, 2017)

[11] Pollinators in Peril, Biological Diversity, http://www.biologicaldiversity.org/campaigns/native_pollinators/pdfs/Pollinators_in_Peril.pdf (last visited Sept. 26, 2017)

[12] Christine Dell’Amore, For the First Time, Bees Declared Endangered in the U.S., National Geographic, http://news.nationalgeographic.com/2016/10/bees-endangered-species-hawaii-yellow-faced0/ (Last visited Sept. 26, 2017)

[13]Michael Greshko, First Bumblebee Officially Listed As Endangered, National Geographic, http://news.nationalgeographic.com/2017/03/bumblebees-endangered-extinction-united-states/ (last visited Sept. 26, 2017); Christine Dell’Amore, For the First Time, Bees Declared Endangered in the U.S., National Geographic, http://news.nationalgeographic.com/2016/10/bees-endangered-species-hawaii-yellow-faced0/ (Last visited Sept. 26, 2017)

[14] Michael Greshko, First Bumblebee Officially Listed As Endangered, National Geographic, http://news.nationalgeographic.com/2017/03/bumblebees-endangered-extinction-united-states/ (last visited Sept. 26, 2017)

[15] Endangered Species Act (ESA), NOAA, http://www.nmfs.noaa.gov/pr/laws/esa/ (last visited Sept. 26, 2017)

[16] Endangered Species Act (ESA), NOAA, http://www.nmfs.noaa.gov/pr/laws/esa/ (last visited Sept. 26, 2017)

[17] Complaint for Injunctive and Declaratory Relief, Natural Resources Defense Council v. U.S. Dep’t of the Interior, et. all. (2017), NRDC, www.nrdc.org/sites/default/files/suit-filed0by-nrdc-to-protect-rusty-patched-bumblebee-20170214.pdf (pg. 16-17)

[18] See,  Complaint for Injunctive and Declaratory Relief, Natural Resources Defense Council v. U.S. Dep’t of the Interior, et. all. (2017), NRDC, www.nrdc.org/sites/default/files/suit-filed0by-nrdc-to-protect-rusty-patched-bumblebee-20170214.pdf ; U.S. Gov’t Accountability Off., GAO-16-220, Bee Health (2016).

Ensuing Hurricane Legal Issues Facing Survivors

Ensuing Hurricane Legal Issues Facing Survivors

Written By: Seth Todd

Hurricanes Harvey and Irma have wreaked havoc over the Texas coastal region and the entire state of Florida. As relief efforts are in full swing and everyone pitches in to help, many people forget the legal troubles that may await the victims of these devastating storms. As victims begin to rebuild their lives, the legal battles could well outlast the physical rebuilding of the towns and cities they call home. While physical donations pour in to help those effected, legal assistance will be needed to help regain the monetary losses victims suffered. The hurricanes themselves will become after thoughts before the legal fight has even really begun. Legal issues that arise following hurricanes range from insurance claims, FEMA disaster relief grants, mortgage issues, and landlord-tenants problems, just to name a few.

Insurance claims are the most glaring issue that pops out to you when you see the miles and miles of devastation left by hurricanes. However, roughly twelve percent of Americans actually have flood insurance. [1] Many people still need to call insurance carriers and begin the process, as damage caused from rain and wind may be covered under their home insurance policies. [2] Victims wait too long to begin the filing process, and this could be exceptionally detrimental in Texas. Texas recently passed legislation that limits the amount of interest a plaintiff may receive from insurance companies that fail to pay claims, and makes plaintiffs give more advanced notice when suing insurance companies. [3] While insurance inspectors are unable to review damages until water has receded, it still benefits victims to call in advance in order to get a place in line because most insurance companies work on a first come-first served system. [4] Courts will be flooded with insurance claims for years to come, so victims will have to wait their turn in order to get justice.

Everyone sees that FEMA tents and calls for aid whenever disaster strikes, but is it really just FEMA passing out money to help rebuild communities? Actually in order to qualify for a FEMA disbursement, you actually have to file for a Small Business Loan beforehand.[5] If you meet the criteria to be granted a Small Business Loan, you may not be eligible for a FEMA grant. This leaves you in the sticky situation of whether to take a loan out or try to rebuild all alone. Survivors of Hurricane Sandy were faced with the dilemma of taking on a loan with a $900 monthly payment on top of the mortgage for the house they rebuilt.[6] While the Small Business Loan may help victims get on their feet, it could come back to haunt them and possibly lead to bankruptcy. If a victim is unable to qualify for a Small Business Loan, then they could be eligible for a FEMA grant. However, after fighting through the process of actually applying and receiving the money, the victim may not be home free. After Hurricane Katrina FEMA actually requested for money BACK from indigent victims who had been granted rebuilding loans. [7]

After a hurricane wrecks a city or town, habitable shelter may be hard to come by. If you are a tenant, do you still have to pay rent? Based on Texas law, tenants may have to. [8] Depending on the lease terms tenants may be able to opt out of their lease or try to negotiate lower rental amounts.[9] It still may be hard to return home, as many places are still too water damaged to enter and will be uninhabitable for some time. [10] The good news for victims with a mortgage is that a 90 day grace period has been announced for those unable to pay their mortgage after being displaced by the hurricanes.[11] While victims owning homes may be fine, renters face an uphill battle in finding sustainable housing given the devastation that occurred, and even if they are able to break their own leases, it may be hard to find housing going forward.

Many renters may face a landlord that is unwilling to negotiate on price, but by law they may be required to lessen the rent based on the damage that was sustained.[12] Other tenants may also run into the landlord essentially kicking them out due to family or friends needing a place to stay. By law, landlords are unable to do so. They must first give written notice of the eviction to the tenant, and then take the action to eviction court. [13] If they are allowed to return to their rented homes, renters might run into damaged tangible property that is unsalvageable do to damage caused by the hurricane. If they have renter’s insurance it should cover any items they may have lost. If not, the landlord may also have coverage that could help offset some of the cost of rebuilding all of the victim’s tangible property.[14]

Returning to normalcy is easier said than done. As people begin to attempt to rebuild their lives, they will face many legal struggles on the road ahead. With appropriate legal help, the rebuilding process can be run more efficiently and ensure that victims get what is rightfully theirs. The items discussed above are only a few of the legal problems that could arise. It will take years to clean up from the hurricanes that have devastated Texas and Florida, and even longer to clear up the numerous legal issues that were left in the wake of Harvey and Irma.

If you are currently an attorney and are wanting to help in the disaster relief efforts and what is surely going to end up being years of legal battles, there are a variety of resources and ways in which you can help! The American Bar Association has set up numerous relief resources that detail how you can help in various capacities. If you or an attorney you know would like to get involved a great starting point is www.americanbar.org/groups/committees/disaster/disaster_relief.html .

 

[1] Kelli Grant, How to navigate insurance claims, post Hurricane Harvey, CNBC (August 28, 2017 1:53PM), https://www.cnbc.com/2017/08/28/how-to-navigate-insurance-claims-post-hurricane-harvey.html

[2] Id.

[3] Vann R. Newkirk II, The Legal Crises to Follow in Hurricane Harvey’s Wake, The Atlantic, (August 30, 2017), https://www.theatlantic.com/politics/archive/2017/08/seeking-legal-help-in-the-middle-of-hurricane-harvey/538488/.

[4] Grant, supra note 1.

[5] FEMA Letter: Houston FEB Update #3 (September 7, 2017), https://www.doi.gov/sites/doi.gov/files/uploads/feb_update_3_7-sep-2017.pdf

[6] Stacy Cowley, Harvey Victims Face Hurdles, and Maybe Bills, in Getting Aid, The New York Times (August 30, 2017), https://www.nytimes.com/2017/08/30/business/harvey-aid-sba-disaster-loans.html

[7] Davida Finger, FEMA Recoupment of Grants from Hurricane Survivors, (July 2012),  http://povertylaw.org/clearinghouse/stories/finger

[8] Greg Allen, After Hurricane Harvey, Many in Houston Struggle With Apartment Rent Dilemma, NPR, (September 2, 2017), http://www.npr.org/2017/09/02/548175755/after-hurricane-harvey-many-in-houston-struggle-with-apartment-rent-dilemma

[9] Id.

[10] Id.

[11] Id.

[12] Disaster Information for Renters, FloridaLawHelp.org, https://floridalawhelp.org/files/3B1F73BC-C552-0FCC-AA24-7BF0B1FEB224/attachments/5303A5E8-53B2-448A-B290-C298A1FCB73C/am-11-disaster-information-for-renters.pdf

[13] Id.

[14] Id.

Who Let the Dogs Out?: The “Snowball” Effect of Natural Disasters on PETS

Who Let the Dogs Out?:

The “Snowball” Effect of Natural Disasters on PETS

By: Anesha Blakey

            Not too long ago, a friend of mine had convinced herself that I was afraid of dogs. On the contrary, I tried to explain that I am definitely not afraid of dogs [for the record, many of my friends and family members have pets that I am extremely fond of], I am just not a dog person. But I am also not a cat person. Instead, it’s more like when I see an animal out for a walk with its owner, I am not going to cross the street to avoid the dog. However, I am also not going to go out of my way to pet it either. If you ask me where this ambivalence, not fear, towards pets stems from, I think has to do with growing up without a pet. Nevertheless, no matter who you are or whether you are a dog, cat, or non-pet person, there are some things that hit us all in the feels. For instance, when you hear Sarah McLachlan sing “In the Arms of an Angel,” you can’t help but feel the pull on your heart strings when you see the horrifying images of abandoned and neglected animals. But lately, you don’t have to stay up until 3 a.m. to hear that harrowing melody between infomercials. Instead, following the recent destruction caused by the current hurricane season, the all too familiar images of displaced people and pets have been plastered across our television, computer, and cell phone screens on a perpetual live feed[RMA1] .

            While Hurricanes Harvey, Irma, and Jose may be fresh in our minds, the most significant hurricane that resonates in the memories of many millennials is Hurricane Katrina. In August 2005, Hurricane Katrina bombarded many states in the Gulf Coast with devastation. The storm even meandered its way north, berating land-locked states, such as Kentucky, with torrential downpours. As a result, more than eighteen hundred people lost their lives, millions of people lost their belongings, and billions of dollars’ worth of damage was sustained during the storm and aftermath of Hurricane Katrina.[1] However, one figure not often reported was the thousands of animals that lost their homes, their owners, and their families. It is estimated that 250,000 pets were abandoned as a result of Hurricane Katrina, with 150,000 of those animals dying before help could arrive.[2] As for the animals who did survive the storm, many were displaced and never reunited with their owners.

One image that captured the hearts of many during Hurricane Katrina was that of a 9-year-old boy being separated from his pet dog, “Snowball.”[3] Upon seeing how Snowball was tragically separated from its young owner, Congressman Tom Lantos said:

The scene from New Orleans of a 9-year-old little boy crying because he was not allowed to take his little white dog Snowball was too much to bear. Personally, I know I wouldn’t have been able to leave my little white dog Masko to a fate of almost certain death. As I watched the images of the heartbreaking choices the Gulf residents had to make, I was moved to find a way to prevent this from happening again.” [4]

 

Unlike the commonplace rigmarole of empty promises from politicians in a time of crisis, Congressman Lantos was in fact so moved that he and another Congressman, Christopher Shays, created a bi-partisan legislation entitled PETS.[5]

PETS, the Pets Evacuation and Transportation Standards Act, was signed by then-President George W. Bush in 2006.[6] PETS is actually an amendment to the Stafford Disaster Relief and Emergency Assistance Act, which is a federal law designed “to provide an orderly and continuing means of assistance by the Federal Government to State[BB2]  and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from [natural] disasters.”[7] However, after Katrina, it became quite apparent that the responsibility afforded to citizens under the Stafford Act did not extend to the pets of the citizens the Act sought to protect. Thus, the main purpose of PETS is “to ensure that State and local emergency preparedness operational plans address the needs of individuals with household pets and service animals following a major disaster or emergency.”[8]

For non-pet people, it may be difficult to understand just how deep the bond is between a pet and its owner. However, even the Centers for Disease Control and Prevention recognizes that the bond between pet owners and their pets is so strong, it cannot be easily broken by Mother Nature.[9] As a result, in the midst of storms and evacuations, many pet owners do not evacuate disaster areas, particularly if the shelters and/or rescuers do not accept pets.

It may be too early to tell how PETS will affect animals after Hurricanes Harvey, Irma, and Jose. However, one thing is for certain, almost 11 years after its passage, PETS has had a “snowball effect” on social media and how people evacuate natural disaster areas with their pets. For instance, once evacuation recommendations were released as Hurricane Irma approached the States, a popular post appeared on various social media outlets, erroneously advising Florida residents about PETS. The post read,

ATTENTION: If you are evacuating to a hotel/motel and they say they DON’T accept pets, don’t get ugly, but simply tell them that is against the law & FEMA established that after Hurricane Katrina!

 

The Pets Evacuation and Transportation Standards Act (PETS) was a bi-partisan initiative in the United States House of Representatives to require states seeking Federal Emergency Management Agency (FEMA) assistance to accommodate pets and service animals in their plans for evacuating residents facing disasters.”[10]

 

Although the post was likely made with the best of intentions, it was misleading. This is because while PETS mandates that the needs of pet owners are considered in developing evacuation plans and providing funds and assistance to shelters, the Act does not mandate that hotels and motels must accept animals.[11] This minor distinction between what privately-owned vs. publicly-funded facilities are and/or are not mandated to extend to animals during emergency situations shed a light on a class issue that haunted the aftermath Hurricane Katrina.[12]

During evacuation efforts for Hurricane Katrina, many hotels and motels actually did accept pet owners and their pets.[13] Shelters, however, and other publicly-funded accommodations prohibited pet owners from entering facilities with their animals.[14] Such disparate treatment between pet owners brought national attention to an appalling class distinction that ultimately had a devastating effect on the animals. Imagine the relief felt by many families as they were rescued from their rooftops, only to be heartbroken seconds later when they were told that their beloved pet must stay behind to fend for itself. Or worse, reports surfaced that even service animals were not permitted into shelters by law enforcement. Although service animals are usually exempt from pet policies and protected by regulations set forth under the Americans with Disabilities Act, “it cannot be denied that many poor people [died] as a result of ‘no pets’ policies.”[15]

Since PETS was passed in 2006, more than 30 states have adopted plans that address the orderly evacuation of animals as a result of natural disasters.[16] Local communities are also assisting with animal rescue assistance. Currently, “the Kentucky Humane Society is waiving adoption fees for pets that came from hurricane zones.”[17] However, local pet shelters must be cognizant of potential litigation. Back in 2006, cases were litigated after seemingly abandoned pets were adopted following Hurricane Katrina.[18] The original owners of the pets, however, filed suit against the adoptive owners, claiming that the animal shelters mistakenly and unrightfully transferred possession of the displaced pets to the new owners.[19]

Hurricane Irma is leaving behind it its own threats of litigation, but this time against the pet owners. During the final hours of evacuation and rescue attempts before Irma hit West Palm Beach, Florida, animal control officers rescued more than 50 dogs and cats. Sadly, these animals were not only abandoned by their pet owners, but some of the animals were left in ill-equipped cages or worse, tethered to a tree to wait out the storm.[20] Such actions were not only extremely dangerous, but may result in animal cruelty charges against the owners.[21]  

Also, what about the animals who cannot evacuate in the arms of their pet owners? Farm animals, for example, are not only extremely cumbersome to evacuate, they are also not protected under PETS.[22] Another example is wild animals, who present a completely different evacuation obstacle. Last week, as Hurricane Irma barreled towards the state of Florida, employees and the wildlife at the Miami Zoo “bunkered down” as they prepared to endure the storm.[23] In their decision to wait it out, several factors were taken into consideration. First and foremost, as natural disasters, specifically hurricanes, are unpredictable and rapidly changing, it requires significantly more work than may actually be necessary to relocate the zoo animals, especially if the path of the hurricane changes.[24] Ultimately, that leads to the second consideration, which is the potential effect of the relocation on the animal. In the past, evacuating wildlife resulted in the death of some of the animals.[25] As such, during Hurricane Irma, the Miami Zoo chose to scale down its staff and amp up the provisions with back-up, back-up supplies for the animals.[26] As a result of this well-learned lesson, zoos seem to be one of the most adaptable protectors of animals, learning from previous storms and persistently modifying their systematic order of safeguarding animals during natural disasters.

It has been said that “[w]hile [Hurricane] Katrina showed a failure to build, [Hurricane] Harvey might come to represent a warning about climate change.”[27] However, what is most important is that we cannot just wait around for the next natural disaster to teach us another lesson. Instead, no matter who you are or whether you are a dog, cat, different-kind-of-pet, or non-pet person, we should all be the arms of an angel and help out our fellow man, as well as man’s best friend.

 

 

 

 

[1] Shaila Dewan & John Schwartz, How Does Harvey Compare With Hurricane Katrina? Here’s What We Know, N.Y. Times (Aug. 28, 2017), https://www.nytimes.com/2017/08/28/us/hurricane-katrina-harvey.html?mcubz=0.

[2] Ali Berman, Hurricane Katrina prompted a shift in pet rights, Mother Nature Network (Aug. 19, 2015, 12:24 PM), https://www.mnn.com/family/pets/stories/why-hurricane-katrina-was-shift-pets-rights.

[3] Sad story of little boy and his dog grips U.S., NBCNews.com (Sept. 6, 2005, 2:43 PM), http://www.nbcnews.com/id/9223167/ns/health-pet_health/t/sad-story-little-boy-his-dog-grips-us/#.Wb0kyK3Myt9.

[4] Berman, supra note 2.

[5] Gina Pace, House Passes Pet Evacuation Bill, CBSNews.com (May 22, 2006, 8:04 PM), https://www.cbsnews.com/news/house-passes-pet-evacuation-bill/.

[6] President Bush Signs H.R. 3858, the “Pets Evacuation and Transportation Standards Act of 2006”, The White House (Oct. 6, 2006), https://georgewbush-whitehouse.archives.gov/news/releases/2006/10/20061006-15.html.

[7] Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121.1-101 (2016).

[8] Pets Evacuation and Transportation Standards Act of 2006, Pub. L. No. 109-308 § 2, 120 Stat. 1725 (2006).

[9] Berman, supra note 2.

[10] Kim LaCapria, Are Hotels Required to Accept Pets During Natural Disasters?, Snopes (Sept. 7, 2017), http://www.snopes.com/fema-pets/.

[11] Id.

[12] Karen Dawn, Best Friends Need Shelter, Too, Wash. Post (Sept. 10, 2005), http://www.washingtonpost.com/wp-dyn/content/article/2005/09/09/AR2005090901824.html/.

[13] Id.

[14] Id.

[15] Id. See also, LaCapria, supra note 10.

[16] Cynthia Hodges, State Emergency Planning Laws for Animals, Mich. St. U. (2011), https://www.animallaw.info/intro/state-and-federal-disaster-planning-laws-and-pets.

[17] Taylor M. Riley, Now you can rescue a hurricane pet for FREE at the Kentucky Human Society, Courier J. (Sept. 13, 2017, 10:56 PM), http://www.courier-journal.com/story/news/local/2017/09/13/adopt-hurricane-pet-free-kentucky-humane-society/661076001/.

[18] Hodges, supra note 14. See also Augillard v. Madura, 257 S.W.3d 494 (Tex. App. 2008), and Arguello v. Behmke, 2006 WL 205097 (N.J. Super. Ct. Ch. Div. Jan. 26, 2006).

[19] Hodges, supra note 14.

[20] Merris Badcock, More than 50 Animals found tethered to tress in Florida county as Irma approaches, ABC Action News (Sept. 9, 2017, 3:48 PM), http://www.abcactionnews.com/weather/hurricane/more-than-50-animals-were-found-tethered-to-trees-in-palm-beach-county-as-irma-approaches.

[21] Id.

[22] Berman, supra note 2.

[23] Danny Nett, Flamingos In The Men’s Room: How Zoos And Aquariums Handle Hurricanes, NPR (Sept. 7, 2017, 7:02 AM), http://www.npr.org/2017/09/07/548981618/flamingos-in-the-men-s-room-how-zoos-and-aquariums-handle-hurricanes.

[24] Id.

[25] Id.

[26] Id.

[27] Dewan & Schwartz, supra note 1.

Hurricanes and Global Warming: Why Climate Change Can No Longer Be Ignored

Hurricanes and Global Warming: Why Climate Change Can No Longer Be Ignored

By: Abigail Lewis

            August of 2017 ended with countless reports on once-hurricane-then-tropical-storm Harvey and warnings of its successor, hurricane Irma. You could not turn on the radio or peruse the internet without seeing reports of celebrities donating generous amounts of money or calls to action asking for the general public to donate to help the people of Houston. Hurricanes can be devastating. Hurricanes harm humans and the environment. Hurricanes are expensive. And thanks to climate change, hurricanes are worsening. However, we are not helpless. America can act to help with the aftermath of Harvey and Irma, as well as to prevent devastation from future hurricanes.

Hurricanes cause great harm to humans as well as the environment. Hurricane Harvey resulted in mass flooding in Texas between Houston and Louisiana.[1] As of September 4, at least 60 people had been reported dead.[2] A chemical plant exploded, and others are leaking into the flood waters.[3] Sewers have flooded, releasing at least 12 sources-worth of excrement and other sewer contents into the flood waters.[4] Tens of thousands of people have had to wade through unsanitary and dangerous waters containing oil, chemicals, and feces to reach safety, triggering health and environmental problems.[5] Hundreds of thousands of people in the area who depend on private wells for their drinking water no longer have a safe source of water. The environmental toll of Harvey is not limited to water; millions of pounds of hazardous chemicals have been released into the air due to damaged oil refineries.[6] While our current knowledge of the extent of Harvey’s damage is limited due to its ongoing nature, we can look to the damage inflicted by devastating hurricanes of the not-so-distant past for a reference point. 

Hurricane Katrina is considered to be the worst natural disaster in the United States in recent history. Hurricane Katrina, hitting in August of 2005, resulted in severe flooding including 80% of New Orleans, damage to levees, and damage to shelters including the Superdome where 10,000 people waited out the storm. 1,833 people died either directly or indirectly from Katrina, most whom died in Louisiana. Of Louisiana deaths, 40% resulted from drowning, 25% resulted from injury or trauma, and 11% resulted from heart failure. Almost half of the people who died in Louisiana were over the age of 74. Of those who did not die, more than one million residents of the Gulf region became homeless.[7] We cannot continue to sit idly by as hurricanes like Harvey and Katrina destroy lives and entire cities.

            The severity of recent hurricanes has resulted in high costs to assist survivors and repair destroyed cities. Hurricane Katrina resulted in an estimated $108 billion in damage (not accounting for the expenses of assisting displaced people), making it the most expensive hurricane in America’s history. $41.1 billion of the costs were covered by various insurance companies. $16.3 billion was covered by the National Flood Insurance Program. $21.7 billion came from the Federal Emergency Management Agency (FEMA), $1 billion of which were determined to be fraudulent. And the federal government spent $120.5 billion, the majority of which went to emergency relief operations.[8] Continuing to do nothing as amplified hurricanes cause billions of dollars in damage does not make economic sense.

            Why are Katrina, Harvey, and other hurricanes from recent years so devastating? An increase in warm ocean water, an essential ingredient in hurricanes, comes with the temperature increase of the planet in general. More warm moisture pumping into hurricane systems results in more rain—giving us situations like Harvey.[9] In addition, storm surges (the flood of ocean water rather than rain that accompanies hurricanes) are worsened by rising sea levels.[10] It is not speculation that global warming is worsening the severity of hurricanes and tropical storms—the Clausius-Clapeyron equation shows that as the world warms by half a degree Celsius, atmospheric moisture content needed for storm rainfall resulting from the evaporation of warm ocean waters increases by approximately 3%.[11] Harvey came to be when warmer-than-usual water from the Gulf of Mexico evaporated and joined the storm system, resulting in intensified rainfall. An absence of upper-atmosphere wind resulted in Harvey stalling over Texas and depositing record-breaking rain. Galveston Bay rose due to the massive amount of rain, leaving nowhere for the floodwaters to drain.[12] Climate change helped make this possible.

            However, leaders in Congress, along with our president, refuse to acknowledge the threat of climate change. Congress refuses to recognize that global warming contributes to the severity of natural disasters such as hurricanes, primarily by insisting that global warming does not exist.[13] There is a greater-than-95% probability that increased global warming is caused by human activities.[14] Congress is currently betting on a less-than-5% chance that the world’s leading scientists are wrong.

In addition to denying the existence of a scientifically-accepted phenomenon, Congress decided to consider cutting funding from FEMA, the agency that played such a huge role in the aftermath of Katrina and which will play a huge role in the aftermaths of Harvey and Irma. Apparently, we can’t afford natural disasters right now, and natural disasters better respect the budget. H.R. 3354-Department of the Interior, Environment, and Related Agencies Appropriations Act would remove $876 million in funds from FEMA’s Disaster Relief Fund. This money is meant to go towards Trump’s boarder wall to keep out people from the country that is currently offering Houston aid.[15] Maybe it will be such a big-league wall that it will also keep out hurricanes. 

            America can act to help the victims of Harvey and to prevent further victimization from future severe storms. Congress needs to fund climate change research, stop denying human responsibility, and regulate the various emissions that contribute to global warming. In the meantime, Congress also needs to properly fund FEMA and other disaster relief programs, as well as fund research on how to better prepare for hurricanes and fund infrastructure to make those protections a reality. Finally, the American people need to stop voting climate change deniers into office. Climate change is not an issue that can be pushed to the back burner while we argue about the morality of undocumented immigration, reproductive rights, and the contents of Clinton and Trump Jr.’s emails. Support the lives of the millions of people who live in regions vulnerable to hurricanes. Support an end to climate change.

 

[1] Niraj Chokshi and Maggie Astor, Hurricane Harvey: The Devastation and What Comes Next, The New York Times (Aug. 28, 2017) https://www.nytimes.com/2017/08/28/us/hurricane-harvey-texas.html?mcubz=0.

[2] Claudia Lauer, Death Toll from Harvey Rises to at Least 60, ABC News (Sept. 4, 2017) http://abcnews.go.com/US/wireStory/death-toll-harvey-rises-60-49617198.

[3] Chokshi, supra note 1; Justin Worland, Hurricane Harvey’s Environmental Toll Will Only Get Worse, The New York Times (Aug. 31, 2017) http://time.com/4923245/hurricane-harvey-arkema-group-explosion/.

[4] Worland, supra note 2.

[5] Chokshi, supra note 1; Worland, supra note 2; Hiroko Tabuchi and Sheila Kaplan, A Sea of Health and Environmental Hazards in Houston’s Floodwaters, The New York Times (Aug. 31, 2017) https://www.nytimes.com/2017/08/31/us/houston-contaminated-floodwaters.html?mcubz=0.

[6] Tabuchi, supra note 5.

[7] CNN Library, Hurricane Katrina Statistics Fast Facts, CNN (Aug. 28, 2017, 6:10 PM), http://www.cnn.com/2013/08/23/us/hurricane-katrina-statistics-fast-facts/index.html.

[8] Id.

[9] Lisa Friedman, How Hurricane Harvey Became So Destructive, The New York Times (Aug. 28, 2017), https://www.nytimes.com/2017/08/28/climate/how-hurricane-harvey-became-so-destructive.html.  

[10] John Schwartz, The Relationship Between Hurricanes and Climate Change, The New York Times (Aug. 25, 2017) https://www.nytimes.com/2017/08/25/us/hurricane-harvey-climate-change-texas.html?mcubz=0 citing Andrew Dessler, professor of atmospheric sciences at Texas A&M University.

[11] Jonathan Watts, Is Tropical Storm Harvey Linked to Climate Change?, The Guardian (Aug. 29, 2017) https://www.theguardian.com/environment/2017/aug/29/how-did-climate-change-worsen-hurricane-harvey.

[12] Friedman, supra note 9. 

[13] Coral Davenport and Eric Lipton, How G.O.P. Leaders Came to View Climate Change as Fake Science, The New York Times (Jun. 3, 2017), https://www.nytimes.com/2017/06/03/us/politics/republican-leaders-climate-change.html?mcubz=0.

[14] Climate Change: How do we Know? Global Climate Change: Vital Signs of the Planet https://climate.nasa.gov/evidence/ (last updated Sept. 5, 2017).

[15] Sophie Tatum and Deirdre Walsh, Congress Switches Gears on Proposed FEMA Cuts Post-Harvey, CNN (Aug. 30, 2017) http://www.cnn.com/2017/08/30/politics/donald-trump-congress-fema-disaster-relief/index.html; Leyla Santiago, Mexico Readies Relief Aid for Texas Flood Victims, CNN http://www.cnn.com/2017/09/03/americas/mexico-aid-texas/index.html (last updated Sept. 4, 2017).

Out of Sight, Out of Mind: The Eastern Kentucky Environmental and Health Crisis

Out of Sight, Out of Mind: The Eastern KY Environmental and Health Crisis

By: Madison Mantz

Despite the Commonwealth’s motto, “United we stand, divided we fall”, Kentucky is no stranger to division. Perhaps our most highlighted divide is within the realm of sports; the renowned Kentucky Wildcat or Louisville Cardinal rivalry that on game night, tears apart families. However, there is another stark division in Kentucky that has come to the forefront over the last year; the urban-rural divide. In the words of Louisville Metro Councilmember Brandon Coan, “Louisville is not Kentucky, sir.” Coan made this statement in response to California’s travel ban that was imposed on Kentucky and his sentiments were shared across social media as citizens decried the rest of the bluegrass state.[1] The thing is, the metropolitan areas of Kentucky, namely Louisville and Lexington, are very different than their less populated counterparts. Rural Kentucky, specifically rural Eastern Kentucky, faces several unique challenges and is currently in the midst of an Environmental and Health Crisis that is not plaguing urban Kentucky.

Just this Month, the Appalachian Regional Commission released a report depicting health disparities throughout the Appalachian region. The news was not good for Eastern Kentucky; one of the major findings was that although death comes earlier in Appalachia compared to the rest of nation, it comes even earlier in Eastern Kentucky (Central Appalachia)[2]. Check out these startling figures:

·      Heart Disease Mortality Rates

o   The Appalachian Region’s heart disease mortality rate (204 per 100,000) is 17 percent higher than the national rate (175 per 100,000). Central Appalachia’s heart disease mortality rate (249 per 100,000) is 42 percent higher than the national rate[3].

·      Cancer Mortality Rates

o   The Appalachian Region’s cancer mortality rate (184 per 100,000) is 10 percent higher than the national rate (168 per 100,000). Central Appalachia’s cancer mortality rate (222 per 100,000) is 32 percent higher than the national rate[4].

·      Years of Potential Life Lost (YPLL) (measure of premature mortality; indicative of less healthy communities)

o   The Appalachian Region’s YPLL is 25 percent higher than the rest of the nation. Central Appalachia’s YPLL is 69 percent higher than the national mark[5]. The study specifically stated, “Appalachian Kentucky (10,880 per 100,000 population) has the highest YPLL rate in the Region, a mark 34 percent higher than the rate in non-Appalachian Kentucky (8,095).”

It is overwhelmingly obvious from these results that something is causing the people of Central Appalachia, primarily Appalachian Eastern Kentucky, to die at a rate exponentially higher than the rest of the world. One can acknowledge several reasons for this discrepancy; including high poverty levels, below average healthcare, and raging tobacco usage. However, in an article entitled “Unintended Consequences of the Clean Air Act: Mortality Rates in Appalachian Coal Mining Communities”, Michael Hendryx and Benjamin Holland traced the connection to the practice of mountain-top removal mining[6]. Not only is mountain-top removal a practice concentrated in Central Appalachia, but it didn’t become popular until the 1990 Amendments to the Clean Air Act promoted it as a cleaner alternative to reduce pollution. This harsh process involves the use of heavy machinery and explosives to blast through hundreds of feet of rock to strike coal layers. Hendryx and Holland found that respiratory-related mortality rates increased post-1990 Amendment and grew in proportion to the growing industry of mountain-top removal[7]. Now, this is just one study, but doesn’t a connection such as this warrant further research?

The new administration apparently does not think so. The Interior Department has recently halted a study by the National Academies of Sciences, Engineering and Medicine that sought to study the harmful health effects that living near surface mining may cause[8]. In the words of U.S. Representative John Yarmuth, “The fact that mountaintop removal permits have been approved when there has never been a federal study on the health effects of mountaintop removal mining is shameful enough. To now prevent this study from being completed would be reprehensible.”[9] Furthermore, with the data released by the Appalachian Regional Commission, this decision is even more outrageous.

Reprehensible, shameful, outrageous… these are all words that I feel should be used universally to describe the Central Appalachian crisis. People are dying at a rate far higher than the national average and resources aren’t being invested into getting to the bottom of the problem! Its really sickening. Yet, a widely expressed belief that I have seen on social media instead, is more along the lines of “backwoods Kentucky has made their bed and now they have to lay in it”. The irony is not lost on me that the very administration rural Kentucky helped elect is the one which seeks to evade the answers and keep it stagnant. While it may be true that Louisville and Lexington are the only areas in Kentucky that did not vote conservative in this past year’s election; this kind of divisive blame-game talk only augments the feelings of isolation and betrayal felt in more rural areas. From my experience, those are the very reasons that they wanted such a radical government departure in the first place.

As someone who grew up in a town of 1200 people, with one-stop light, on the border of West Virginia, I have grown up seeing opportunity dwindle along with the coal-mining industry. On the flip side, I have witnessed how hazardous and unsustainable it is, my next-door neighbor with black lung could tell you all about it. In times such as this when rural Kentucky is at its most vulnerable both environmentally and in regards to health, Kentucky sure could use a lot more unity and a lot less division.

 

[1] Jacob Ryan, ‘Louisville, Not Kentucky:’ Dissecting the Commonwealth’s Urban-Rural Divide, WFPL, (July 1, 2017), https://wfpl.org/louisville-not-kentucky-dissecting-commonwealths-urban-rural-divide/.

[2]Bill Estep, “Death comes sooner in Appalachia. But it comes much sooner in Eastern Kentucky.”, Lexington Herald Leader, (Aug. 24, 2017), http://www.kentucky.com/news/state/article169037857.html; referencing Health Disparities in Appalachia, Appalachian Regional Commission, (Aug. 2017), https://www.arc.gov/research/researchreportdetails.asp?REPORT_ID=138.

[3] PDA, INC., Health Disparities in Appalachia, Appalachian Regional Commission, (Aug. 2017), https://www.healthy-ky.org/res/images/resources/Health_Disparities_in_Appalachia_August_2017.pdf.

[4] Id.

[5] Id

[6] Michael Hendryx, Benjamin Holland; Unintended consequences of the Clean Air Act: Mortality rates in Appalachian coal mining communities, Environmental Science & Policy, (Sep. 2016), http://ac.els-cdn.com/S1462901116301137/1-s2.0-S1462901116301137-main.pdf?_tid=b78ccfe0-8e89-11e7-a755-00000aab0f26&acdnat=1504210960_85c664c1231d0bdd2c126c40fc054550.

[7] Id.

[8] James Bruggers, Trump Administration halts strip-mining health study across Central Appalachia, Courier-Journal (Aug. 21, 2017),  http://www.courier-journal.com/story/tech/science/environment/2017/08/21/trump-agency-halts-strip-mining-health-study-across-appalachia/586800001/.

[9] Id.