Volume: 53-1

Vol. 53-1 Federal Update

Federal Update

Deep-Sea Mining and the Two-Year Rule

The seabed of the Pacific Ocean is one of the richest remaining sources of untapped raw minerals used to make batteries for electric vehicles, including cobalt, copper, and nickel.[1] The minerals are scattered 15,000 feet below sea level on the ocean floor in the form of polymetallic nodules, which are fist-sized rocks that have formed over millions of years.[2] The nodules are collected through deep-sea mining by using a vehicle that vacuums up the top four inches of sediment and separates out the nodules for harvesting.[3]

Although the collection technology needed for deep-sea mining is relatively new, the existence of mineral deposits on the seabed has been known for decades.[4] The first nodule was discovered in 1873 by a British naval ship, but it took another hundred years for developed nations to seriously begin exploring the seabed of the Pacific Ocean as a possible resource.[5] Those early explorations identified the Clarion-Clipperton Zone, which is a section of ocean located between Hawaii and Mexico that has an “especially large volume of nodules.”[6] The area is estimated to have “six times more cobalt and three times more nickel than all known land-based stores, as well as vast deposits of manganese and a substantial amount of copper.”[7]

The United Nations established the International Seabed Authority (ISA) on November 16, 1994 under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (1994 Agreement).[8] Ratified by 167 countries and the European Union, the ISA controls activities relating to mineral resources in around 54% of the total area of the world’s oceans for “the benefit of mankind as a whole.”[9]  The ISA’s duty is to adopt appropriate regulations that “ensure the effective protection of the marine environment from harmful effects that may arise from mineral exploration and exploitation.”[10]

As of mid-2019, the ISA has granted fifteen-year exploration contracts to thirty governmental and private entities.[11] However, the ISA has never granted an exploitation contract.[12] The reason for this discrepancy is that exploitation contracts cannot be granted until the ISA develops comprehensive exploitation regulations, which it has yet to do—despite working on the regulations for over twenty years.[13] This state of affairs might change in the very near future: Nauru, a Pacific island nation with a population of around 10,0000 people[14] invoked the “two-year rule” in June 2021.[15]

The two-year rule is a provision in the 1994 Agreement that allows member states to request that the ISA “‘elaborate and adopt’ the exploitation regulations” within two years of the request.[16] If the ISA fails to meet this deadline, it must provisionally approve the exploitation request in accordance with other sections of UNCLOS and the 1994 Agreement.[17] The ISA has until July 2023 to finalize exploitation regulations.[18]

If the finalized regulations allow industrial deep-sea mining to begin in earnest, the environmental consequences could be far-reaching. The major environmental concern with deep-sea mining is that it “poses unknown risks to the ocean, the climate, valuable fisheries, biodiversity, and the people that depend on the ocean.”[19] At the moment, very little is known about the short- and long-term environmental effects of deep-sea mining, although researchers are working to uncover the potential consequences.[20] One of the key concerns is that sediment accumulates on the ocean floor “at a glacial pace. . . of 1 millimeter every millennium.”[21] This slow growth rate means that mined areas of the seabed will be unlikely to recover within any reasonable timeframe.[22] As a result, both organisms and geographic features like water columns that exist on the seabed today could be irreparably damaged.[23]

In light of such significant environmental concerns, it would be a serious problem if the two-year rule forces the ISA to rush its exploitation regulations and consequently causes it to produce sub-standard regulations that inadequately protect the marine environment. One researcher, Pradeep Singh, has suggested that the two-year deadline “could largely prove inconsequential” because the ISA could choose to take “a measured, calculated risk” by advancing creative legal arguments to delay or frustrate the elaboration and adoption of exploitation regulations.[24] Yet other environmental lawyers, like Duncan Currie, who advises the Deep Sea Conservation Coalition, are convinced that the ISA will be forced to provide a decision by July 2023 as to “whether to go down what is a very one-way street toward deep-sea mining at the enormous expense of the marine environment, or whether…to continue to take a cautious view.”[25]

Critics of deep-sea mining are also concerned about Nauru’s motivations for triggering the two-year rule in the first place.[26] Nauru triggered the rule on the basis that it is sponsoring a company called Nauru Ocean Resources, Inc. (NORI), that wants to apply for a contract to begin exploiting the seabed.[27] But while NORI is incorporated and registered in Nauru, it is a wholly owned subsidiary of a private Canadian company, the Metals Company.[28] Both Nauru and the Metals Company portray deep-sea mining as essential to cutting carbon emissions because it can provide metals that are necessary to facilitate the switch from gas to electric vehicles.[29] While this potential environmental benefit is real, it is arguably offset or canceled out by the environmental costs of disrupting the seabed.[30] It is also true that deep-sea mining could be incredibly lucrative; the Metals Company estimates that it will earn at least $31 billion over the course of its 25-year mining project.[31] As a small island nation without a lot of resources, Nauru has “no ability of its own to pursue such an undertaking” like deep-sea mining, but still wants to benefit from it.[32] The solution is to partner with a foreign firm, potentially for as little as “half of one percent of the firm’s total estimated value of the mined mineral.”[33]

While it is understandable that Nauru would seek to boost its own economic situation given the circumstances, the fact remains that it has unilaterally put the ISA in an uncomfortable position. For almost twenty years the ISA has been maintaining a delicate balance between promoting industry and protecting the environment by allowing the exploration of the seabed while delaying the exploitation of it. It remains to be seen next summer whether that balance could be permanently upset if exploitation regulations are formalized.

Amy Rodriguez is an attorney at Montage Legal. She primarily handles civil litigation and her previous work centered on advancing environmental goals through negotiation and administrative hearings. She is a 2017 graduate of the University of Texas School of Law.

Camille Richieri is a J.D. Candidate, Class of 2024, at The University of Texas School of Law. Camille joined TELJ in Fall 2022. She was born in New York and studied public policy and economics at Duke University.

 

[1]      Eric Lipton, Secret Data, Tiny Islands and a Quest for Treasure on the Ocean Floor, N.Y. Times (updated Aug. 30, 2022), https://www.nytimes.com/2022/08/29/world/deep-sea-mining.html#:~:text= to%20the%20Future,Secret%20Data%2C%20Tiny%20Islands%20and%20a%20Quest%20for%20Treasure%20on,to%20the%20green%20energy%20revolution.

[2]      Mary Beth Gallagher, Understanding the Impact of Deep-Sea Mining, MIT News (Dec. 5, 2019), https://news.mit.edu/2019/understanding-impact-deep-sea-mining-1206.

[3]      Id.

[4]      Christina Ochoa, Contracts on the Seabed, 46 Yale J. Int’l L. 103, 106 (2021).

[5]      Id. at 114.

[6]      Lipton, supra note 1.

[7]      Gallagher, supra note 2.

[8]      About ISA, Int’l Seabed Auth., https://www.isa.org.jm/index.php/about-isa (last visited Jan. 2, 2022).

[9]      Id.

[10]     Frequently Asked Questions, Int’l Seabed Auth., https://www.isa.org.jm/frequently-asked-questions-faqs (last visited Nov. 29, 2022).

[11]     Ochoa, supra note 4, at 109.

[12]     Elizabeth Kolbert, Mining the Bottom of The Sea, The New Yorker (Dec. 26, 2021), https://www. newyorker.com/magazine/2022/01/03/mining-the-bottom-of-the-sea.

[13]     Id.; About ISA, supra note 8.

[14]     Kolbert, supra note 12.

[15]     Pradeep A. Singh, The Invocation of the ‘Two-Year Rule’ at the International Seabed Authority: Legal Consequences and Implications, 37 The Int’l J. of Marine & Coastal L. 375, 385 (2022).

[16]     Id. at 379 (quoting Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, Annex, sec. 1, ¶ 15, July 28, 1994, 1836 U.N.T.S. 3, 54 [hereinafter 1994 Agreement]).

[17]     Id. at 398–99 (citing 1994 Agreement, supra note 16, at 54).

[18]     Id. at 385.

[19]     Laura Berglan et al., The Clean Energy Dilemma: How the Push for Clean Energy Could Threaten Indigenous Communities and an Exploration of Potential Alternatives, 33 Colo. Env’t. L. J. 285, 296 (2022).

[20]     See Gallagher, supra note 2.

[21]     Id.

[22]     See id.

[23]     Id.

[24]     Singh, supra note 15, at 412.

[25]     Kolbert, supra note 12.

[26]     Lipton, supra note 1; Kolbert, supra note 12.

[27]     Singh, supra note 15, at 385.

[28]     Id.; Kolbert, supra note 12.

[29]     Kolbert, supra note 12.

[30]     Lipton, supra note 1.

[31]     Id.

[32]     Id.

[33]     Id.

Vol. 53-1 Recent Publications

Recent Publications

Kelsey Peden’s “Stuck in the Net: Promoting Global Shark and Ray Populations Through National Sustainability Import Laws”

Introduction

Shark and ray populations—known together with skates as “elasmobranchs”—have been on the decline over the past fifty years, subject both to high levels of intentional fishing and high levels of accidental catch.[1] In January 2021, scientists from around the globe noted that some shark and ray populations were in danger of extinction, and therefore deserved strong legal protection from the international community.[2] In her article “Stuck in the Net: Promoting Global Shark and Ray Populations Through National Sustainability Import Laws,” Kelsey Peden attempts to answer the question of how to achieve the necessary protection.[3] While noting the benefits of current international conservation and trade laws, she ultimately finds the existing international framework lacking.[4] Instead, Peden argues that the most promising avenue is for countries that she considers conservation-friendly, like the United States, to design their domestic trade laws in a manner that promotes sustainable seafood harvesting.[5]

International and Regional Conservation Law

Peden paints a disappointing picture of the international conservation scheme for oceanic wildlife. While acknowledging that the United Nations Convention on the Law of the Seas (UNCLOS) and subordinate agreements include language that protects “highly migratory species,” which includes many elasmobranchs,  this language is broad and lacks specific goals or terms.[6] Additionally, these agreements are largely voluntary and without specific enforcement provisions.[7] Universal conservation agreements are ultimately the wrong avenue for shark and ray preservation, as continued unsustainable fishing practices have demonstrated.[8]

Regional agreements and conventions like the Regional Fish Management Organizations (RFMOs) may be a more promising path forward. Promoted by UNCLOS and related agreements,[9] these arrangements allow for intergovernmental cooperation on a more local level.[10] However, much like the broader UNCLOS, these agreements face problems from nations that value profit over conservation.[11] The inadequate measures taken to protect bluefin tuna at the regional level, for example, demonstrate that RFMOs are susceptible to recalcitrant member states that wish to maximize the profitability of marine life at the expense of sustainability efforts.[12]

International Trade Law

Peden next turns to international trade law as a more productive avenue for shark and ray preservation.[13] At the center of these sustainable international trade regulations is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).[14] CITES works largely by classifying species into appendix groups, adapting the convention into national laws, and providing for enforcement.[15] The level of protection afforded to species varies depending on which appendix they are placed in. Appendix I offers the most protection, with trade being generally prohibited outside of exceptional circumstances.[16] Appendix II, the most populous appendix with 34,419 species listed, maintains less strict but still tight regulations on trade.[17] Finally, Appendix III requires sellers to obtain a certification of origin to be eligible for trade.[18] In addition to these specific guidelines, CITES also has enforcement provisions, including sanctions and the suspension of trade.[19] Peden specifically looks at language in Article XIV of CITES, which allows nations to develop “stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II and II, or the complete prohibition thereof.”[20] Through this language, Peden sees in CITES a way for party nations to engage in unilateral enforcement of the convention, providing the enforcement mechanism that is critically lacking in other conservation agreements such as UNCLOS and the RFMOs.[21]

Unfortunately for sharks and rays, the author does not see CITES as a cure-all for elasmobranch protection. She notes that the first shark was not introduced to a CITES Appendix until 2003.[22] While there are now forty-six shark and ray species listed in the CITES Appendices, the author notes the comparative paucity next to the nearly 1000 shark and ray species currently alive.[23] Ultimately, she notes that this comes down to the same profit-motivation driving countries to block and obstruct other conservation efforts.[24] While the author finds that “CITES’ emphasis on trade and preventing profit-based interests from harming endangered species is the most direct and effective approach to international ocean management,”[25] she ultimately looks to other sources of law to supplement that regime and hopefully improve elasmobranch conservation.[26]

Domestic Conservation Law

Lastly, turning to domestic law, the author sees significant promise for shark and ray conservation.  She notes that the U.S. has its own suite of fishing sustainability laws.[27] For example, under the Federal Shark Conservation Act, shark finning has been largely banned within U.S. jurisdictions.[28] The use of driftnets—the type of net most associated with the accidental catch of elasmobranchs—is similarly banned throughout most of the U.S.[29] While these stricter laws are beneficial, the author notes that U.S. international trade law still has gaps that allow for the import of elasmobranchs with fewer protections than those provided by domestic law.[30] Peden believes that filling these gaps in import restrictions can support shark and ray sustainability.[31]

Peden finds the use of domestic import restrictions particularly worthwhile since it leverages the U.S.’ outsized market power.[32] As the author notes, the U.S. imported more than $20 million worth of seafood in 2016;[33] by using domestic import controls, Peden believes that the U.S. can promote shark and ray preservation on a global scale. The author notes that the U.S. has already enacted promising import controls for some species under several pieces of legislation, including the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA).[34] She finds the MMPA’s framework, which requires countries exporting fish to America to have equally strong marine mammal protections as the U.S., particularly interesting.[35] Promisingly, some states have contributed to the conservation effort, with several including Texas, California, and New York having outright bans on the sale and possession of shark fins.[36] Peden concludes that these import restrictions should be expanded to cover elasmobranchs and suggests several options: banning the import of elasmobranchs,[37] improving by-catch import regulations and labeling requirements,[38] and increased supply chain monitoring.[39]

The first path the author explores is banning the import of elasmobranchs, which she calls the “most simple and direct method of promoting elasmobranch population growth.”[40] Peden notes that the U.S. was the unintentional middleman to between 650 and 772 tons of shark fin exports from 2010–2017, “accounting for as many as 1.29 million sharks.”[41] The Shark Fin Sales Elimination Act, which would ban shark fin imports on a national level, represents a positive first step but has yet to be passed.[42] Recognizing the existing double standard that shark finning is illegal domestically but importing those same fins is legal, the author promotes a dual-track solution: First, to pass a federal ban on elasmobranch import; second, to adopt a federal reciprocity requirement for elasmobranch imports similar to the protection marine mammals receive under the MMPA.[43]

Next, the author explores improving by-catch regulations and labeling requirements. Identifying by-catch as one of the main sources of elasmobranch population decline, Peden examines several techniques that could be used to reduce by-catch.[44] Calling for U.S. import laws to prioritize existing practices and technologies, the author recommends establishing an MMPA-like regime that mimics its mandate to ban seafood “caught with commercial fishing technology which results in the incidental kill or incidental serious injury” of protected animals in excess of U.S. standards.[45] Additionally, the author recommends establishing a labeling regime similar to the one Congress enacted for dolphins in the Dolphin Consumer Protection Act.[46]  While acknowledging that these kinds of labeling acts are unlikely to prevent the by-catch problem entirely, Peden contends that these efforts would be a worthwhile first step towards reducing the accidental death of sharks and rays.[47]

Lastly, the author recommends imposing traceability requirements on imports to promote elasmobranch population growth.[48] Currently, there is no way to know where most shark and ray imports are coming from or what methods were used to catch them.[49] While some sharks and rays covered by CITES and the ESA do have traceability requirements, this covers only a minor portion of shark and ray species.[50] Peden notes that setting up such a traceability system is critical to the success of any other import regulation.[51] While the author does not offer any specifics as to what such a traceability system would look like, she notes that traceability systems exist for several other species, including those covered by the MMPA, and that there is no reason they could not also be implemented for more elasmobranch species.[52]

Going Forward

The author’s proposed solutions offer a hopeful path for improving elasmobranch protection. We live in an era of rising international tensions, where international cooperation seems increasingly difficult.[53] In this context, taking advantage of the market power of the U.S. seafood industry to target both intentional and unintentional killings of elasmobranchs is sensible.[54] However, the rise in global international deadlock has been mirrored by similar partisan tensions in the United States.[55] It can be a tall order to ask both houses of Congress and the President to agree on legislation.[56] Even regulatory action runs the risk of changing with administrations.[57] For all of its strengths, Peden’s article does not grapple with these questions.

Regardless, Peden offers a worthwhile path toward preserving sharks and rays. As she notes, international agreements have not stopped their population decline. Domestic law, and particularly import restrictions, presents a worthwhile avenue for the U.S. to promote shark and ray preservation abroad. By highlighting this, Peden’s article is a valuable addition to conservation efforts.

Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.

Trevor Mathes is a J.D. Candidate, Class of 2023, at The University of Texas School of Law. Trevor joined TELJ in the Fall of 2020 and serves as a Staff Editor. He was born in Abilene, Texas and studied History at William & Mary.

 

[1]      Kelsey Peden, Stuck in the Net: Promoting Global Shark and Ray Populations Through National Sustainability Import Laws, 46 William & Mary Env’t L. & Pol’y Rev. 781, 782–84 (2022).

[2]      Id. at 782.

[3]      See generally Peden, supra note 1.

[4]      Id. at 785.

[5]      Id. at 785–86.

[6]      Id. at 788; United Nations Convention on the Law of the Sea art. 64, Dec. 10, 1982, 1833 U.N.T.S. 397.

[7]      Peden, supra note 1, at 786.

[8]      Id.

[9]      Id. at 786, 788.

[10]     Id. at 789.

[11]     Id.

[12]     Id. at 789–90.

[13]     Id. at 792.

[14]     Id.

[15]     Id. at 792–93.

[16]     Id. at 793.

[17]     Id. at 794.

[18]     Id.

[19]     Id. at 794–95.

[20]     Id. at 795; Convention on International Trade in Endangered Species of Wild Fauna and Flora art. XIV, para. 1(a), Mar. 3, 1973, 993 U.N.T.S 243.

[21]     Peden, supra note 1, at 795.

[22]     Id.

[23]     Id. at 797.

[24]     Id at 797–98.

[25]     Id. at 798.

[26]     Id.

[27]     Id. at 799.

[28]     Id. at 801.

[29]     Id. at 802. The only U.S. jurisdiction where the use of driftnets is still allowed is in California Federal Waters. Id. A bill to expand the driftnet ban to California Federal Waters passed Congress in 2020 but was vetoed by former President Donald Trump. Id.

[30]     Id.

[31]     Id.

[32]     Id.

[33]     Id. at 799.

[34]     Id. at 799–801.

[35]     Id. at 800–01.

[36]     Id. at 801.

[37]    Id. at 802.

[38]     Id. at 804.

[39]     Id. at 808.

[40]     Id. at 802.

[41]     Id. at 803 (quoting Jason Bittel, The Surprise Middleman in the Illegal Shark Fin Trade: The United States, Nat’l Res. Defense Council (Nov. 20, 2019), https://www.nrdc.org/onearth/surprise-middleman-illegal-shark-fin-trade-united-states).

[42]     Id. While the Act passed the House of Representatives, it never passed the Senate. Id. at 804.

[43]     Id. at 804.

[44]     Id. at 805–07.

[45]     Id. at 807 (quoting 16 U.S.C. § 1371(a)(2)).

[46]     Id. at 808.

[47]     Id.

[48]     Id.

[49]     Id. at 808–09.

[50]     Id.

[51]     Id. at 809.

[52]     Id. at 809–10.

[53]     See Tiziana Stella & Campbell Craig, Is International Cooperation Possible?, Wash. Post (Apr. 18, 2022 6:00 AM), https://www.washingtonpost.com/outlook/2022/04/18/is-international-cooperation-possible/ (noting rising tensions globally).

[54]     See supra notes 24–25, 32–33 and accompanying text.

[55]     Michael Dimock & Richard Wike, America is Exceptional in the Nature of Its Political Divide, Pew Rsch. Ctr. (Nov. 13, 2020), https://www.pewresearch.org/fact-tank/2020/11/13/america-is-exceptional-in-the-nature-of-its-political-divide/.

[56]     See supra notes 29, 42.

[57]     See Ankur K. Tohan et al., Three Steps Forward, Two Steps Back: The Biden Administration’s Revised NEPA Rules, K&L Gates (Apr. 29, 2022), https://www.klgates.com/Three-steps-forward-Two-Steps-Back-the-Biden-Administrations-Revised-NEPA-Rules-4-29-2022 (showing the regulatory back and forth that can happen as a result of a different party winning the White House).

Vol. 53-1 Waste

Waste

From Red Lines to Tall Pines: Roadside Vegetation Buffers as an Environmental Justice Strategy

In January 2021, President Biden signed Executive Order 14008, which “created the first-ever White House Environmental Justice Advisory Council.”[1] In doing so, the Biden Administration brought renewed attention to a decades-old question: What is the most effective way to address the government’s continued mismanagement of land, air, and water in low-income communities and communities of color?[2] To date, thirteen states have also taken steps to establish offices and commissions with an eye toward pursuing environmental justice.[3]

While conversations about environmental justice are many and varied, pollution is a central theme. It has become increasingly clear that low-income communities and communities of color are disproportionately exposed to the harmful effects of environmental pollution.[4] What’s worse, this phenomenon was no accident—officials have repeatedly approved permits to locate facilities with major sources of pollution in Black and low-income neighborhoods.[5] In many cities, noisy and polluted highways stand as monuments to these historic injustices, and the surrounding residents are still forced live with the consequences of past siting decisions.[6] As state and federal officials show a renewed interest in finding ways to advance environmental justice initiatives, they could do worse than to focus their efforts on addressing roadside pollution.

The Human Cost of Living Near a Highway

The adverse impacts of roadway pollution on human health are well-documented.[7] This article’s scope is limited to the risks and harms of living in close proximity to the poor air quality and noise pollution that highways create in heavily populated areas.

Individuals who live and work close to a busy roadway are at a higher risk of developing illnesses related to air pollution exposure.[8] Our highways are designed to carry a high volume of traffic, and most of those cars are still burning fossil fuels and pumping exhaust into the air. Data from a 2020 study shows that transportation contributes to 27% of the greenhouse gas emissions in the U.S., and light-duty vehicles are responsible for over half of these transportation emissions.[9] Among those emissions, ozone, nitrous oxide, and a whole class of chemicals known as mobile-source air toxics (MSATs) have been measured in high concentrations within an area of up to 500m (approximately 1/3 mile) of a roadway.[10] Particulate matter is also of great concern because it is another byproduct of traffic that can impair respiratory function.[11] The presence of these chemicals as ambient air pollution correlates with increased frequency of cardiovascular and respiratory disease, impaired lung function, and overall mortality.[12] Studies have found that majority-White neighborhoods are associated with less ambient air pollution exposure than majority-Hispanic neighborhoods.[13] A wealth of data also suggests that communities of color are also generally more likely to be located near highways than White communities.[14] If the task at hand is to address the environmental factors that disproportionately impact certain communities, taking steps to clean up the air they’re breathing is a great place to start.

Noise pollution presents a separate set of risks and challenges for those who live within earshot of a major roadway. The constant whir of cars and trucks rushing past, during all hours of the day and night, is first and foremost an annoyance. But as our understanding of the effects of elevated noise levels advances, we are beginning to see that there may also be health risks associated with noise pollution; for example, research has linked noise pollution to an increased incidence of heart attacks.[15] Noise pollution has also been linked to sleep disruption, decreased academic performance, and even shortened life expectancies for those who live close to the source.[16]

Roadside Vegetation Buffers as a Multi-Purpose Mitigation Measure

A variety of technologies and strategies have been proposed and implemented to combat the harmful impacts of vehicular traffic through urban areas, including air filtration, noise-reduction walls, and even plans to move entire highways underground.[17] While they are effective and certainly valuable tools to utilize as we seek to remedy environmental injustices, they are often expensive and can take years to implement.[18] Such mitigation strategies pose a major disruption to the lives and routines of the very people who are supposed to benefit from them.[19] It is therefore essential that we look for ways to mitigate these harms quickly and effectively. The installation and expansion of roadside vegetation buffers (RVBs) has emerged as a promising option and should be leaned on more heavily as a means for making incremental progress toward environmental equity.

In recent years, as the effects of living with vehicular air pollution have become better understood, a number of studies have concluded that plants and trees are some of the most effective tools for cleaning up the mess that cars leave behind. It is important to consider certain species-specific characteristics; deciduous trees, which lose their leaves in fall and winter, are not as effective when their branches are bare. Therefore, there is a preference toward coniferous trees whose efficacy does not respond to the seasons.[20] Additionally, the effectiveness of a given RVB setup in clearing pollutants from the air is largely determined by the height and density (or thickness) of the vegetation buffer.[21] Taller vegetation tends to force polluted air upward, rather than directly outward from the roadway; once at a higher altitude, the pollutants are more easily dispersed to a lower concentration.[22]

While the height of a barrier serves to reduce the concentration of pollutants through dispersion, the goal of density is to reduce pollution by directly filtering the air.[23] Plants consume carbon dioxide through photosynthesis, and their porous surfaces allow them to pull some other toxic compounds out of the air as it passes through them.[24] Certain kinds of vegetation can store airborne chemicals permanently, while others act more as a physical filter for particulate matter by providing an adherent surface that particles can temporarily stick to before being washed into the soil or blown away by the wind during a storm.[25] The effect of these mechanisms is to reduce the amount of pollution in the air while it is close to the road, so that it is less heavily contaminated when it flows outward and reaches the lungs of people living nearby.

Considering height and density together allows for a high degree of flexibility in the design of an RVB, so that it can be optimized to meet the needs of a given location by combining taller plants like trees with shorter, denser shrubs.[26] The EPA’s research into RVB design is ongoing, but it has found that when properly implemented, a combination vegetation buffer can reduce particle pollution by up to 50%, and other pollution by as much as 30%.[27]

Insulation from the high levels of noise that highways produce is another important consideration in reducing the harm of highways on our communities. This has been traditionally accomplished by erecting walls as sound barriers between roadways and residential properties.[28] In addition to their ability to clean the air, RVBs show promise as another way to fight noise pollution: “If it is high enough, wide enough, and dense enough that it cannot be seen through,” roadside vegetation is capable of reducing traffic noise by half.[29] It may not always be feasible to introduce enough tree coverage to achieve that level of noise reduction, but in such instances vegetation can be combined with man-made sound barriers in order to reap the benefits of both sound reduction and air filtration.[30]

There may be no more elegant of a solution to the problem of traffic pollution than the introduction and/or expansion of RVBs. Trees, shrubs, and other vegetation are highly effective at removing pollution from the air, and certain plants can also provide insulation to dampen traffic noise. RVBs are cheaper and can be installed more quickly than some of the more advanced technologies emerging today, and in situations where those more intensive solutions are already being considered, RVBs can serve as an intermediary mitigation step to begin improving conditions immediately until those next steps are implemented.[31] To write them off as a stop-gap measure would be a mistake, however, because nothing could be farther from the truth. In fact, perhaps the greatest strength of RVBs as a mitigation strategy, particularly when held up against technological solutions, is that they will never be rendered obsolete. As electric cars become increasingly commonplace, and traffic no longer necessitates harmful emissions, the trees will continue to improve and beautify the spaces they occupy.[32]

Increased vegetation provides a wide array of additional benefits to a community as well, from the visual appeal of more greenery to relief from the “heat island effect.”[33] And in addition to reducing pollution and acting as carbon sinks, long stretches of vegetation along our urban corridors also provide refuge for local wildlife and act as a habitat for woodland bird populations.[34] Runoff pollution from road surfaces is beyond the scope of this article, but it is worth noting that the soil in RVBs acts as a natural filter, trapping some potentially toxic compounds close to the roadway and preventing them from leaching into local watersheds.[35]

NEPA’s Role in the Path Forward

Since the National Environmental Policy Act (NEPA) became law on January 1, 1970, federal agencies have been required to consider the environmental impacts of the projects they pursue and the decisions they make.[36] On February 11, 1994, President Clinton signed Executive Order 12898 which further directs each agency to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”[37] In the cover memorandum for that order, President Clinton directly invokes NEPA as a means to that end:

Each Federal agency shall analyze the environmental effects, including human health, economic and social effects, of Federal actions, including effects on minority communities and low-income communities, when such analysis is required by the National Environmental Policy Act of 1969… Each Federal agency shall provide opportunities for community input in the NEPA process, including identifying potential effects and mitigation measures in consultation with affected communities…[38]

Taken together, these documents establish a useful framework for the federal government to put a greater emphasis on environmental justice in future projects. Fifty years on, federal agencies are well-acquainted with the requirements of NEPA and the process of crafting environmental impact statements, making them a convenient vehicle for spreading the principles of environmental justice to federal projects across the country. Major interstate highways, themselves products of federal initiatives, fall squarely within the scope of this initiative to pay more attention to community impacts.[39] It is impossible to know whether this collaborative mindset would lead to the creation of more RVBs across the country, but in a way that is precisely the point: acknowledging the people whose quality of life is at stake, and allowing them a role in deciding which mitigation measures would serve them best.

Conclusion

For the millions of Americans who live near major roadways, the formation of an environmental justice council at the White House is of little comfort. Their health will remain at risk until action is taken, and justice should not mean continuing to suffer while politicians wring their hands in Washington. NEPA set the stage for environmental justice to be a major consideration in our roadway construction projects, and in the decades since its value in this fight has become increasingly clear. Where mitigation measures are being considered, roadside vegetation buffers stand as a proven strategy which can alleviate some of the worst health effects of living close to major roadways. They clean toxic chemicals and particulate matter out of the air, dampen the noise that heavy traffic produces, and can be customized to fit the needs of a given space. They are relatively low-cost and can be implemented more quickly than the alternatives, allowing communities that have long borne more than their fair share of environmental harm to finally breathe a little easier. As the saying goes: The best time to start planting these trees was thirty years ago; the second-best time is today.

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

Alex Brenner is a member of the Class of 2023 at The University of Texas School of Law. Alex joined TELJ in Fall 2021 and currently serves as a Senior Editor. He grew up in Connecticut and completed his undergraduate degree at Brandeis University, where he majored in Neuroscience, Biology, and Psychology. After graduation he will be moving to Seattle, WA, to practice environmental law and get lost in the Cascades.

 

[1]      Exec. Order No. 14008, 86 Fed. Reg. 7,619, 7,630 (Jan. 27, 2021); see White House Environmental Justice Advisory Council, The White House, https://www.whitehouse.gov/environmentaljustice/ white-house-environmental-justice-advisory-council (last visited Dec. 22, 2022).

[2]      Fact Sheet: A Year Advancing Environmental Justice, The White House (Jan. 26, 2022), https:// www.whitehouse.gov/briefing-room/statements-releases/2022/01/26/fact-sheet-a-year-advancing-environmental-justice/.

[3]      State and Federal Environmental Justice Efforts, Nat’l Conf. of State Legislatures (Jan. 13, 2022), https://www.ncsl.org/research/environment-and-natural-resources/state-and-federal-efforts-to-advance-environmental-justice.aspx; Learn About Environmental Justice, Env’t Prot. Agency, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated Sept. 6, 2022) (“Environmental justice (EJ) is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”).

[4]      EPA Research: Environmental Justice and Air Pollution, Env’t Prot. Agency, https://www.epa. gov/ej-research/epa-research-environmental-justice-and-air-pollution (last updated Nov. 29, 2022).

[5]      Texas Has Refused to Fix Problems in its Air Permitting Program That Affect Environmental Justice and Public Participation, Tex. RioGrande Legal Aid (June 28, 2022), https://www.trla.org/press-releases-1/texas-has-refused-to-fix-problems-in-its-air-permitting-program-that-affect-environmental-justice-and-public-participation; see also Christopher Dunagan, Why Is So Much Pollution Found in Disadvantaged Communities?, Salish Sea Currents Mag. (Apr. 12, 2021), https://www. eopugetsound.org/magazine/IS/pollution-disadvantaged-communities.

[6]      Katherine Coombs, Highways and Environmental Justice, Env’t Educ. Ctr. (May 16, 2022), https://elecenter.com/1394/highways-and-environmental-justice/; Wendy Q. Xiao, The Road to Racial Justice: Resolving the Disproportionate Health Burden Placed on Communities of Color by Highway Pollution, 52 Colum. Hum. Rts. L. Rev. 911, 955 (2021), https://hrlr.law.columbia.edu/ files/2021/02/911_Xiao.pdf.

[7]      How Mobile Source Pollution Affects Your Health, Env’t Prot. Agency, https://www.epa.gov/ mobile-source-pollution/how-mobile-source-pollution-affects-your-health (last updated Dec. 16, 2022).

[8]      Id.

[9]      Fast Facts on Transportation Greenhouse Gas Emissions, Env’t Prot. Agency, https://www.epa.gov/greenvehicles/fast-facts-transportation-greenhouse-gas-emissions (last updated July 14, 2022); see also Light Duty Vehicle Emissions, Env’t Prot. Agency, https://www.epa.gov/ greenvehicles/light-duty-vehicle-emissions (last updated June 29, 2022) (explaining that “light-duty vehicles” include cars, SUVs, and light duty trucks).

[10]     Health Effects Inst. Panel on the Health Effects of Traffic-Related Air Pollution, Traffic-Related Air Pollution: A Critical Review of the Literature on Emissions, Exposure, and Health Effects 5 (2010), https://www.healtheffects.org/system/files/SR17Traffic Review_Exec_Summary.pdf.

[11]     Id. at 3.

[12]     Id. at 10.

[13]     Miranda R. Jones et al., Race/Ethnicity, Residential Segregation, and Exposure to Ambient Air Pollution: The Multi-Ethnic Study of Atherosclerosis (MESA), 104 Am. J. Pub. Health 2130, 2132–33 (2014).

[14]     Xiao, supra note 6; EPA Research: Environmental Justice and Air Pollution, supra note 4.

[15]     Mette Sørensen et al., Road Traffic Noise and Incident Myocardial Infarction: A Prospective Cohort Study, 7 PLoS One, issue 6, 2012, at 3.

[16]     Leena Muralidharan et al., Noise Pollution of Local Train and Its Impact on Students Residing Nearby Railway Station, 5 J. of Emerging Techs. & Innovative Rsch. 592, 593 (2018); Haneen Khreis et al., The Health Impacts of Traffic-Related Exposures in Urban Areas: Understanding Real Effects, Underlying Driving Forces and Co-Producing Future Directions, 3 J. of Transp. & Health 249, 249 (2016); Charlotta Eriksson et al., Burden of Disease From Road Traffic and Railway Noise – A Quantification of Healthy Life Years Lost in Sweden, 43 Scandinavian J. of Work, Env’t & Health 519, 519 (2017).

[17]     See, e.g., Andy Hirschfeld, Can Burying Urban Highways Undo Decades of Racial Inequity?, The Daily Beast (May 18, 2022), https://www.thedailybeast.com/the-growing-cap-and-cover-movement-that-wants-to-bury-american-highways-to-undo-racial-inequities?.

[18]     See Eric Moskowitz, True Cost of Big Dig Exceeds $24 Billion With Interest, Officials Determine, Boston.com (July 10, 2012), https://www.boston.com/uncategorized/noprimarytagmatch/2012/07/ 10/true-cost-of-big-dig-exceeds-24-billion-with-interest-officials-determine/.

[19]     See Chris Ingalls, Unexpected Costs Added Nearly $58 Million to SR 99 Tunnel Project Price, KING5 News (Jan. 31, 2019), https://www.king5.com/article/news/how-change-orders-added-58-million-to-the-cost-of-the-highway-99-tunnel/281-1fd81e38-4729-455a-8c8b-cfebdc0c14bf.

[20]     Rich Baldauf, Env’t Prot. Agency, Recommendations for Constructing Roadside Vegetation Barriers to Improve Near-Road Air Quality 6 (2016), https://cfpub.epa.gov/si/ si_public_file_download.cfm?p_download_id=528612&Lab=NRMRL.

[21]     Id. at 12.

[22]     Id. at 3.

[23]     See id.

[24]     Id. at 1.

[25]     See id.

[26]     Baldauf, supra note 20, at 3.

[27]     Researchers Assess Roadside Vegetation Barriers with a Suite of Air Monitors, Env’t Prot. Agency, https://www.epa.gov/sciencematters/researchers-assess-roadside-vegetation-barriers-suite-air-monitors (last updated Apr. 19, 2022).

[28]     See, e.g., Fed. Highway Admin., U.S. Dept. of Transp., Keeping the Noise Down: Highway Traffic Noise Barriers (2001), https://www.fhwa.dot.gov/Environment/noise/noise_barriers/design _construction/keepdown.pdf.

[29]     Traffic Noise & Transportation, Ctr. for Env’t Excellence, https://environment.transportation. org/education/environmental-topics/traffic-noise/traffic-noise-overview/ (last visited Dec. 22, 2022).

[30]     See Baldauf, supra note 20, at 1.

[31]     Id.

[32]     See Susan Barton & Rebecca Pineo, Human Benefits of Green Spaces, Univ. of Delaware, https://www.udel.edu/academics/colleges/canr/cooperative-extension/fact-sheets/human-benefits-of-green-spaces/ (last updated Jan. 31, 2009).

[33]     Id.

[34]     Mark Hall et al., At the Crossroads: Does the Configuration of Roadside Vegetation Affect Woodland Bird Communities in Rural Landscapes?, 11 PLoS One, issue 5, 2016, at 1.

[35]     Erosion, Sediment and Runoff Control for Roads and Highways, Env’t Prot. Agency (Dec. 1995), https://archive.epa.gov/water/archive/web/html/road_runoff.html.

[36]     What is the National Environmental Policy Act?, Env’t Prot. Agency, https://www.epa.gov/ nepa/what-national-environmental-policy-act (last updated Oct. 26, 2022).

[37]     Exec. Order No. 12898, 59 Fed. Reg. 7,629 (Feb. 11, 1994).

[38]     William Clinton, Memorandum for the Heads of All Departments and Agencies on Executive Order on Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (Feb. 11, 1994), https://www.epa.gov/sites/default/files/2015-02/documents/clinton_ memo_12898.pdf.

[39]     Farrell Evans, How Interstate Highways Gutted Communities—And Reinforced Segregation, History.com (Oct. 20, 2021), https://www.history.com/news/interstate-highway-system-infrastructure-construction-segregation.

Vol. 53-1 Washington Update

Washington Update

Environmental Justice Action Plan for Land Protection and Cleanup Programs

Introduction

On September 30, 2022, the U.S. Environmental Protection Agency’s (EPA) Office of Land and Emergency Management (OLEM) finalized the Environmental Justice Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs (EJ Action Plan).[1] The Plan focuses on advancing environmental justice in OLEM’s programs, including Brownfields, Emergency Response, Superfund, Solid Waste Management and Corrective Action, and Underground Storage Tanks.[2] The OLEM will work with the newly created Office of Environmental Justice and External Civil Rights (OEJECR)[3] to implement the plan.[4]

Background

The EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”[5]   Environmental justice has been a focus in the Biden Administration.[6] Within days of taking office, President Biden issued two executive orders intended to lay the foundation for the administration’s environmental justice goals.[7] Together, these two executive orders—Executive Order 13985 and Executive Order 14008—direct federal agencies to “promote and work toward proactively achieving environmental justice.”[8]

In January 2022, OLEM released a draft of the EJ Action Plan to further effectuate the administration’s goals.  After hosting multiple public engagements sessions and reviewing comments, OLEM finalized the EJ Action Plan in September 2022.

Overview

The EJ Action Plan lays out various projects, as well as tools and practices, to apply to OLEM’s existing programs.[9] For each project, the EJ Action Plan provides a brief description of how the project will operate, the goal(s) of the project, and the potential environmental justice benefits.[10] Additionally, the plan also provides an approximate timeline, including next steps and expected partners required for implementation of the project.[11]

The recommended projects are grouped into one of four parts—each part corresponding to a different priority set out by the EPA and the Biden Administration.[12] These priorities and stated goals are outlined below.

Strengthen Compliance

The EPA’s stated goal is “[t]o strengthen compliance with cornerstone environmental statutes in communities overburdened by pollution.”[13] Further, to properly monitor compliance with, and subsequently enforce, environmental statutes, it “is necessary to ensure communities get the environmental and human health benefits intended by environmental statutes and EPA’s regulations.”[14]

Incorporate Environmental Justice Concerns

The EPA’s stated goal is to “[t]ake immediate and affirmative steps to incorporate environmental justice considerations into our work, including assessing impacts to pollution-burdened, underserved and tribal communities in regulatory development and to maximize benefits to communities.”[15]

Improve Community Engagement

EPA’s stated goal is to “[t]ake immediate and affirmative steps to improve early and more frequent engagement with pollution-burdened and underserved communities affected by agency rulemakings, permitting decisions and policies. Following President Biden’s memorandum on strengthening the nation-to-nation relationship with tribal nations, EPA staff should engage in regular, meaningful and robust consultation with tribal officials in the development of federal policies that have tribal implications.”[16]

Implement Justice40

EPA’s stated goal is, “[c]onsistent with the Administration’s Justice40 initiative, [to] consider and prioritize direct and indirect benefits to underserved communities in the development of requests for grant applications and in making grant award decisions, to the extent allowed by law.”[17]  The Justice40 initiative is memorialized in Executive Order 14008,[18] with the aim to ensure that at least “40 percent of the overall benefits of certain Federal investments flow to disadvantaged communities that are marginalized, underserved, and overburdened by pollution.”[19]

What’s Next

Implementation

The OLEM and OEJECR will work together to implement this Plan.[20] Specifically, the OEJCR is tasked with ensuring that any actions under the Plan comply with federal civil rights laws.[21] Funding from the Bipartisan Infrastructure Act will significantly impact the success of the EJ Action Plan.[22] The Act allocated a total of $3.5 billion to Superfund clean-up programs and an additional $1.5 billion for brownfield revitalization.[23] The first $1 billion is expected to be used “to initiate cleanup and clear the backlog of 49 previously unfunded Superfund sites and accelerate cleanup at dozens of other sites.”[24] The EJ Action Plan is further intended to be a “working document,” to be updated to reflect any progress made, as well as any future environmental justice efforts undertaken by OLEM.[25]

Challenges

The EJ Action Plan is dependent on cooperative actions by the EPA, state and local governments, and tribal nations. Further, the federal government is limited in what actions it can take and must rely on state and local governments to effectuate policies, which may also complicate the implementation of the Plan. Legal challenges to environmental justice efforts are also likely—if not inevitable. With these potential challenges in mind, EPA published a document extensively laying out federal statutes and regulations that serves as a basis for many of the actions and tasks contemplated by the EJ Action Plan.[26]

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Austin, Texas, office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Alex Anderson is a J.D. Candidate, Class of 2023, at The University of Texas School of Law. Alex joined TELJ in Fall of 2021 and serves as Senior Editor. He was raised in Tulsa, Oklahoma and studied Government at The University of Texas at Austin. After graduation, he plans to practice bankruptcy and restructuring.

 

[1]      EPA Finalizes Environmental Justice Action Plan for Land Protection and Cleanup Programs, Env’t Prot. Agency (Sept. 30, 2022), https://www.epa.gov/newsreleases/epa-finalizes-environmental-justice-action-plan-land-protection-and-cleanup-programs.

[2]      Id.

        [3] EPA Launches New National Office Dedicated to Advancing Environmental Justice and Civil Rights, Env’t Prot. Agency (Sept. 24, 2022), https://www.epa.gov/newsreleases/epa-launches-new-national-office-dedicated-advancing-environmental-justice-and-civil. The new office is a result of merging the Office of Environmental Justice, External Civil Rights Compliance Office, and Conflict Prevention and Resolution Center. Id. 

[4]       Finalizes Environmental Justice Action Plan for Land Protection and Cleanup Programs, supra note 1.

[5]      Learn About Environmental Justice, Env’t Prot. Agency (Sept. 6, 2022), https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.

[6]      See generally Hana Vizcarra & Hannah Perls, Biden’s Week One: Mapping Ambitious Climate Action (2021), http://eelp.law.harvard.edu/wp-content/uploads/Bidens-Week-One-Report_030321. pdf.

[7]      Id.

[8]      Off. of Land and Emergency Mgmt., Env’t Prot. Agency, EPA 502/P-21/001, EJ Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs 2 (2022).

[9]      Environmental Justice Action Plan for EPA’s Land Protection and Cleanup Programs, supra note 1.

[10]     OLEM Environmental Justice Action Plan, supra note 8, at 2–3.

[11]     Id.

[12]     Id.

[13]     Id. at 7.

[14]     Env’t Prot. Agency, FY 2022-2026 EPA Strategic Plan (2022), https://www.epa.gov/system/ files/documents/2022-03/fy-2022-2026-epa-strategic-plan.pdf.

[15]     OLEM Environmental Justice Action Plan, supra note 8, at 14.

[16]     Id. at 35.

[17]     Id. at 42.

[18]     Exec. Order No. 14008, 86 Fed. Reg. 7,619 (Feb. 1, 2021).

[19]     Justice40, The White House, https://www.whitehouse.gov/environmentaljustice/justice40/ (last visited Jan. 14, 2022).

[20]     EPA Finalizes Environmental Justice Action Plan for Land Protection and Cleanup Programs, supra note 1.

[21]     Id.

[22]     Id.

[23]     FACT SHEET: EPA & the Bipartisan Infrastructure Law, Env’t Prot. Agency (Nov. 6, 2021), https://www.epa.gov/infrastructure/fact-sheet-epa-bipartisan-infrastructure-law.

[24]     EPA Finalizes Environmental Justice Action Plan for Land Protection and Cleanup Programs, supra note 1.

[25]     Id.

[26]     See Env’t Prot. Agency, Pub. No. 360R22001, EPA Legal Tools to Advance Environmental Justice (2022), https://www.epa.gov/system/files/documents/202205/EJ%20Legal%20Tools%20May %202022%20FINAL.pdf.