Hullabaloo over the EPA’s “Strengthening Transparency in Science” Proposal

Last week, I joined 68 environmental and administrative law professors affiliated with 47 universities around the country in a comment letter, prepared by UCLA’s Sean Hecht and Julia Stein, that urged EPA’s Acting Administrator Wheeler to withdraw the “Strengthening Transparency in Science” proposed rule.  UC Berkeley’s Dan Farber wrote here and here about some of the proposed rule’s defects. Amanda Leiter and Justin Pidot also contributed to the comment letter. Stein blogs at the Legal Planet:

Under the auspices of promoting increased transparency, the proposed rule would make sweeping changes to the way that EPA uses science in regulatory decision-making processes.  More specifically, the rule, as written, would foreclose EPA’s ability to rely on important peer-reviewed scientific studies that inform key environmental protections, like safe drinking water standards and pesticide regulations, because the underlying data supporting those studies are not publicly available.  This approach overlooks a few critical facts: scientific studies are often supported by personal health data that cannot legally be disclosed; EPA must already follow robust peer-review and science vetting processes to comport with federal law, including the Information Quality Act, with which the proposed rule is at odds; and EPA failed to consult with scientists, including its own internal Science Advisory Board, before proposing the rule.  In fact, a group of nearly 1,000 scientists has commented that this rule is simply not the right way to approach transparency issues.

There are also legal deficiencies with the proposed rule, which, considering the magnitude of the changes it is proposing, is incredibly brief and vague.  EPA does not cite to applicable statutory authority for the rulemaking, and even asks commentors to supply suggestions as to where the agency might find authority to promulgate the rule—ironic, given that the rule was proposed by former Administrator Pruitt, who himself criticized the Obama Administration for what he perceived as a failure to ground EPA rulemakings in statutory authority.  Nor does the rule address the many inconsistencies between its language and the requirements of existing federal law.

And the rule also declines to address significant policy concerns associated with its proposed approach, like its lack of implementation phase-in time, the cost to taxpayers to set up additional data collection infrastructure, challenges in protecting personal and confidential business information, and, most importantly, the health and public safety costs of preventing EPA from using the best scientific information to regulate.

We believe that transparency is an important value, and we are aware that many in the scientific community, as well as legal scholars like Wendy Wagner and Rena Steinzor, are working on efforts to improve the use of science in agency rulemaking proceedings. But we find this proposed rule, issued in the name of transparency, to be troubling and ill-suited to improve EPA’s use of science.  It is our hope that EPA will withdraw the rule, and instead work productively with the scientific community to advance transparency goals in a way that respects existing federal law.

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Indian Independence Day

The buzz of the new semester abounds. Today marks the day India commemorates its independence from the British Raj. I’m fortunate to be able to celebrate the ouster of the British at least thrice per annum. As an Indian/Pakistani-American, the sense of freedom and its movements and callings are felt on this day.

In late May, I participated in the inaugural Margaret Montoya Writing Retreat at the Campo Sano compound in DeLeon Springs, organized by LatCrit luminaries Saru Matambanadzo, Tayyab Mahmud, Franciso Valdes, and the namesake of the program, Margaret Montoya. And I started writing…

So it seemed fitting, that I would end the summer by returning to Volusia County with a talk at the Center for Earth Jurisprudence’s Ecological Immersion Academy at Blue Springs State Park. Margaret Stewart and Kelli McGee spearheaded this program by partnering with Clay Henderson at the Stetson Institute of Water and Environmental Resilience, Jane Durocher of the St. Johns Riverkeeper, and Ginger Adair and Katarina Locke of Volusia County Environmental Management.

There is nothing to rue about the summer, as I did have a summer.  In early June, I was in Boston for IGLP to be a part of the book panel for Locating Nature: The Making and Unmaking of International Law, which will be out next year with Cambridge University Press. Usha Natarajan and Julia Dehm have been guiding this project along across the continents and seas, when I first met them at IGLP Doha in 2013.

Then I trekked out to the National Environmental Health Association’s Annual Meeting in Anaheim. Highlight of the trip was going to the grand opening of Pixar Pier in Disneyland. I’ve been to Disney World over 100 times. This was my first trip to Disneyland, where we visited California Adventure Land. (Word to the wise: check that you are not in the swinging gondala line before you get to the top of the ferris wheel and it starts swinging.)

So today is the last day of the Ecological Immersion Academy…

Turning Algae Blooms into Biofuels

Toxic blue-green algae blooms are ravaging through the delicate ecosystem of the Florida Everglades. As local, state, and federal officials are teaming together to address this issue (somewhat haphazardly), there is another possibility: turning the algae blooms into biofuels. Band-aid fixes on this issue will not offer long-term solutions. The answer would be an elimination of the fertilizer runoff that caused the problem. Point source conversion of algae biomass at the runoff site would provide another tool in the arsenal against this threat.

Lake Okeechobee, Florida’s largest lake is the epicenter of the latest outbreak. Governor Rick Scott has declared a state of emergency in seven counties. CityLab explores the severity of the threat to public health and the environment due to problems associated with cyanobacteria and how the algae blooms developed:

Pollution and warm water fuel the algae’s growth. Research from the U.S. EPA suggests that fertilizer runoff is introducing phosphorous and nitrogen to waterways, essentially fertilizing the algae.

Another factor is water flow. The Everglades, a wetland ecosystem, naturally flows from Lake Okeechobee south to Florida Bay. But since 1910, a series of more and more robust dikes have been built to contain that flow. The current dike system, called the Herbert Hoover Dike, is made up of about 143 miles of levees. Additional canals divert the flow to the east and west coasts.

With the natural flow of the Everglades staunched, water builds up when it rains. Then the algae blooms again, and like clockwork, the U.S. Army Corps of Engineers tries to relieve Lake Okeechobee’s water levels by discharging more water along the canals. This increases the concentration of fresh water in the estuary, giving the cyanobacteria even more opportunity to thrive.

Cyanobacteria. Image credit: Josef Reischig / CC BY-SA 3.0.
Josef Reischig / CC BY-SA 3.0

Postdoctoral fellow Zofia Taranu at the University of Ottawa published, “Acceleration of cyanobacterial dominance in north temperate‐subarctic lakes during the Anthropocene.” The piece looks at the impacts of algae blooms:

[C]yanobacteria can produce toxins that cause damage to the liver or nervous system. The most common symptoms of acute exposure to harmful algal blooms are skin rash or irritation, gastroenteritis and respiratory distress. Chronic, low dose exposures over a lifetime may also result in liver tumors or endocrine disruption.

Preliminary studies also suggest that a recently isolated cyanotoxin may become more concentrated across food chains and may be associated with the formation of progressive neurodegenerative diseases such as Alzheimer’s, Parkinson’s and ALS diseases.

Taranu shows how increase in cyanobacterial biomass is greatest under a combination of warmer water temperatures, increased intensity of thermal stratification, and elevated nutrient concentrations.

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Zofia Taranu

How Floridians respond to government subsidies to Big Sugar will determine the race for the governor’s mansion in Tallahassee.

This morning Chad Gillis at the Fort Myers News-Press wrote about four main options to address Florida’s algae’s crisis.

  1. Caloosahatchee Reservoir

  2. Everglades Agriculture Area Reservoir
  3. Lake Okeechobee Regulation Schedule

  4. Deep Well Injection

But there is a fifth option: Small Scale Algae Biomass Conversion at Runoff Point Source.

Two years ago, IPWatch Dog considered the potential of algae biofuel from agricultural runoff, Toxic algal blooms of today could become the biofuels, fertilizers and antibiotics of tomorrow:

[In March 2016], researchers from Western Michigan University (WMU) made a presentation at that year’s national meeting of the American Chemical Society (ACS) on how algae could be transformed into biofuels and fertilizer. The WMU system was optimized for use near small farms, sources of much of the agricultural runoff which contribute to algal blooms in bodies of water. A 3D printed substrate developed by the research team grows algae in a controlled environment. The algae, which can be produced at a rate of two to eight times faster than ethanol feedstocks, can be collected for conversion into biofuels or fertilizer.

Additional study into the potential use of cyanobacteria algae as a feedstock for biofuel was being conducted as part of lake pollution research taking place at the University of Buffalo. In 2013, an environmental engineering team had constructed a vacuum system incorporating two 40-foot flumes to pump algae-laden water out of Lake Erie. Although the project was largely focused on water quality remediation, the team was also constructing a database of the physical properties of blue-green algae which could be used to determine the commercial properties of cyanobacteria.

Not far down the New York State Thruway, the Rochester Institute of Technology (RIT) recently engaged in a three-month pilot project focused on growing microalgae in controlled conditions as a renewable energy feedstock. Conducted in coordination with local renewable energy firm Synergy Biogas, RIT researchers worked with an anaerobic digester in Covington, NY, capable of treating up to 52,000 gallons of wastewater each day. The team is looking to see how effective the microalgae is at converting digested biomass from agricultural runoff. Lab results show that the technology was capable of reducing phosphorus pollution from runoff by 90 percent, down to 0.1 parts per million. The algae grown by the team planned to convert microalgae into ethanol and biodiesel feedstock by isolating the lipids. Further conversion techniques using the anaerobic digester would further extract lipids and carbohydrates for fertilizer.

Algae production could provide environmental benefits beyond scrubbing agricultural runoff of excess phosphorus and nitrogen. In late January, the ACS journal Industrial & Engineering Chemistry Research published a paper resulting from a joint research project between a pair of Mexican universities. The paper suggests the use of algae production to reduce carbon dioxide (CO2) emissions in flue gas from industrial facilities. The system, developed by researchers from both the Universidad Autónoma de Sinaloa and the Universidad Michoacana de San Nicolás de Hidalgo, is primarily focused at reducing CO2 emissions. The system also had the effect of reducing the costs of growing algae for biofuel feedstocks by 90 percent, although researchers still felt that an algae-based biorefinery was still economically unfeasible at that time.

Some of the economic challenges in developing biofuels from algal blooms are outlined within a 2011 paper sponsored by the National Institutes of Health (NIH). At that time, algae-based biofuel production costs using conventional technologies were anywhere from $300 USD to $2,600 USD per barrel, much higher than the production costs of petroleum, which have since dropped dramatically in recent years. The economic disincentive associated with algae exploration when compared to petroleum is very real, but not the only challenge. Challenges preventing increased biofuel production from algae resources include the need to find more efficient algae harvesting techniques, more cost-effective oil extraction and effective use of land and water. Conquering these challenges should reduce the cost per barrel, but much research is still to be done.

UN #CoolingForAll Report: Chilling Prospects

Cooling is one of the wonders of the modern age. However, for hundreds of millions of people living in the hottest climates, the impact of not having access to modern cooling services is profound. Every year, millions of people die due to the absence of cooling that could help address hunger and malnutrition, preserve the efficacy of vaccines, and alleviate the worst of deadly heat waves. Cooling access can also help increase farmer incomes and lift people out of poverty by increasing the sales value of their produce when it meets the market.

Chilling Prospects: Providing Cooling for All shows there are over 1.1 billion people globally who face immediate risks from lack of access to cooling. Cooling underpins the ability of millions to escape poverty, to keep our children healthy, vaccines stable, food nutritious, and our economies productive. Access to cooling is now a fundamental issue of equity, and as temperatures hit record levels, this could also mean the difference between life or death for some.

These risks are both a development and climate change issue, as they pose challenges for the health, safety, and productivity of populations across the world – especially countries in Asia and Africa where access gaps are the largest. Yet this challenge also offers business and entrepreneurs the opportunity of major new consumer markets which want super-efficient, affordable technologies to meet their cooling needs.

Chilling Prospects also draws attention to the direct intersection between three internationally agreed goals: the Paris Climate Agreement; the Sustainable Development Goals; and the Montreal Protocol’s Kigali Amendment. One of the key goals of the Kigali Amendment is to limit consumption and production of hydrofluorocarbons (HFCs), a potent greenhouse gas used widely in air conditioners and refrigerators.

The report was written by Sustainable Energy for All, produced in partnership and supported by the Kigali Cooling Efficiency Program (K-CEP), as part of the Cooling for All initiative, which developed the report along with contributions from the Global Panel on Access to Cooling.

Full UN Report available here.

Summer Writing Projects

In a month, the flurry of the new semester begins with orientation and the hustle and bustle of fall classes. This summer I completed two law review articles, which will be published in a couple months or so.

Energy for Metropolis looks at municipal initiatives for advanced biofuels and will be published in the University of Miami Law Review (forthcoming 2018).

The role of municipal governments in climate change adaptation measures, natural resource conservation, and clean energy initiatives has increased dramatically in the past decade. Through energy efficiency measures and renewable energy mandates, cities are poised to have significant impacts in the reduction of greenhouse gas emissions and the mitigation of climate risks in the clean energy transition. This article addresses municipal regulation of advanced biofuels as an integral part of the clean energy transition. Existing laws and policies have critical design flaws. Specifically, the Renewable Fuel Standard (RFS) has proven to be burdensome and complex, producing more unintended consequences than desired outcomes. Problems in the implementation of the RFS indicate that Congress overestimated the capacity of the biofuel industry to produce energy and the ability of the retail gasoline market to accommodate ethanol. Consumer resistance to ethanol use and market pressures create problems for biofuel use. This research will analyze the loopholes in current regulatory systems for biofuels nationally and locally and consider how to overcome these social, economic, and environmental hurdles to harness the full potential of biofuels in urban systems.

“Mask Off” – The Coloniality of Environmental Justice, is a symposium piece, which will be appearing in Widener Law Review (forthcoming 2018).

This Article suggests a paradigmatic reversal in the sociolegal conceptualization of environmental justice and seeks to expand the notion of environmental justice to a disaster risk reduction modality. This legal narrative chronicles how those with power and wealth govern the lives, fortunes, and health of those on the bottom rungs through discriminatory environmental policies. I explore case studies of sudden onset water hazard events, energy access, and the use of advanced biofuels in the localities of Puerto Rico, Pakistan, and the Philippines to show the problematic configurations of environmental justice. These examples elucidate how environmental justice is perceived and how the legal framework for environmental justice is marginalized. In turn, I recommend reframing environmental justice through the lens of the Anibal Quijano’s “coloniality of power” and the International Strategy for Disaster Reduction by the United Nations. This Article is a fourth in a series on advanced biofuels and environmental justice. Previously, I examined international dimensions in Blood Biofuels (Duke Environmental Law & Policy Forum), federal efforts in Resiliency and Responsive Regulation for Advanced Biofuels (Virginia Environmental Law Journal), and municipal initiatives in Energy for Metropolis (University of Miami Law Review).

I also have to place the finishing touches on my chapter, Faith-Based Approaches to Environmental Protection, in Locating Nature: The Making and Unmaking of International Law (eds. Usha Natarajan and Julia Dehm) (Cambridge) (forthcoming 2019).

Baahubali Business Lessons

Image result for bahubali

Legal Scholar Osama Siddique, who is an Associate Fellow at the Institute of Development and Economic Alternatives (IDEAS), in Lahore, Pakistan tweets of last summer’s Baahubali blockbuster:

I agree about this assessment except the film would more likely be funded by the Asian Development Bank or financiers in the Middle East. If the World Bank had funded the project, it would have cast from Hollywood, not unknowns. That was one of the keys to success for the film was the use of local talent. Brazil has requirements for local content and local workers in its development projects.

NDTV shares five business/financial tips from the film :

Playing The Waiting Game
Baahubali forfeits his right to the throne but never loses sight of the kingdom. It took two generations to finally gain the kingdom. Similarly in the field of investing, the waiting game eventually pays off, Angel Broking said.

Spend Big To Earn Big
Baahubali pays a huge price throughout his life. He forfeits the throne. He also gives up a life of luxury to live among the commoners. Eventually, he also gives up his own life. While investing the same principles hold true as Most of us tend to trade and invest without understanding the actual costs and the opportunity costs. We hold on to our investments for a long time and get out at the wrong time.

Greed At The Wrong Time Can Be Your Undoing
Baahubali’s brother succumbs to greed and that eventually proves to be his undoing. Baahubali, on the other hand, was greedy at the right time. Similarly, in the investment arena you need to know when to be greedy and when to be fearful. Greed at the bottom of the investing cycle and fear at the top is positive. The reverse can be disastrous for you.

You Don’t Need Superstars
Baahubali proved that you do not need big stars to create a blockbuster movie. That is true of your portfolio too. You need star potential; not just superstars in your investment portfolio.

Never Let Emotions Cloud Your Judgement
This was the underlying theme of Baahubali; the character. Whether he was confronted by his affection towards his mother or his commitment towards his wife, Baahubali never allowed emotion to get the better of his judgement. Emotions are your biggest enemy while investing, says Angel Broking. You normally tend to follow the herd mentality and you tend to get swept away by emotions. Like Baahubali, your investment decisions must be driven by cold logic and incisive analysis.