Post #71 –Should We “Balance” Threats to the Environment?

How does a US administration promote greater energy independence, protect its fragile environment, and make both oil executives and environmentalists happy?  President Obama’s answer is to give something to everyone, thus balancing pleasure and pain and hoping everyone will stay off his back.  Thus, he has decided to veto the Keystone XL project, greatly expand protected areas in the Arctic National Wildlife Refuge (“Anwar”), and restrict greenhouse gas emissions by federally owned facilities and vehicles. These actions make environmental groups happy and anger Republicans.  In the case of Anwar, however, Obama has thrown the Republicans a large bone: opening up significant Atlantic Ocean coastline to new oil and gas drilling.

To administration officials, this coupling of energy and environmental policy is responsible stewardship, a proper balancing of production and protection.  But is this stewardship or just plain politics?  Sure, it’s wonderful that the Anwar will be larger by millions of acres; I derived a certain pleasure watching Alaska’s Senator Lisa Murkowski go apoplectic on public television as she railed against Obama’s decision.  And the idea of pitting Republicans from different states against one another—Alaska’s “loss” is North Carolina’s gain—is a classic divide-and-conquer strategy.  But in the end, does this balancing act really balance?

First, opening up a huge swath of federally owned shoreline—from Virginia to Georgia—to oil and gas exploration risks another BP-type disaster.  This is no small bone to calm the savage dogs on the right. Department of the interior officials are quick to reassure us that safeguards will be in place before exploration begins and that the leased area is 50 miles from shore.  But we’ve been down that road too many times to feel reassured.  Recall, for one thing, that the Deepwater Horizon rig was 41 miles from Louisiana’s shore.  For another, since the BP spill, no new safety regulations have been enacted by Congress, and in the current climate, if they are issued, they will have to come from the administration itself.  Who will be president when the time comes?

Second, how does this trade-off square with a tougher approach to climate change?  There are literally trillions of cubic feet of natural gas and billions of barrels of recoverable oil in these federal lease areas.  When drilling finally gets underway, supposedly after 2020, what impact will all this new fuel have on the climate?

Third, Atlantic Coast governors anticipate a revenue windfall from the oil leases.  Will that actually happen?  Will the new riches really be used for education, environmental protection, development of “soft” energy sources, and other good purposes?  Or will the windfall mainly wind up in the producers’ pocketbooks?

Fourth, how will the oil and gas leasing decision affect the livelihoods of coastal people who rely on tourism, fishing, and other traditional industries?  We have only to look at the Louisiana bayou for one answer.  Oil drilling and thousands of miles of underwater pipelines to the Gulf of Mexico have contributed to enormous loss of bayou wetland.  Combined with all the levees that keep the Mississippi River’s rich sediment from reaching the delta, the oil companies’ operations threaten to end local people’s livelihood—trawling for shrimp, crab, and various fish—within a generation.   The bayou will be no more.  (See a gem of a book, Bayou Farewell by Mike Tidwell, for further detail, as well as www.mississippiriverdelta.org/discover-the-delta/what-went-wrong/.)

Looking for balance when tough choices must be made is certainly a challenge for any political leader, especially (as in Obama’s case) when faced with divided government.  But just as with the problem of protecting privacy while widening the government’s surveillance net—another contentious issue on which Obama seeks balance—the notion that somehow everyone can be satisfied or at least neutralized doesn’t always wash.  Protecting the environment at a time of looming catastrophe, like protecting civil liberties in the face of terrorism, must have priority.  Some values and objectives defy balancing, period.

Which brings me to a moving presentation in Eugene, Oregon by Mary Wood, Professor of Law at the University of Oregon and author of Nature’s Trust: Environmental Law for a New Ecological Age (http://law.uoregon.edu/wp-content/uploads/2011/11/City-Club-2-Jan.30.pdf).  She is a strong advocate for the public trust doctrine, which evokes “an ancient moral covenant that runs from one generation to the next, to protect natural bounty so that it will pass down the lineage of Humanity.”  Under this doctrine, she says, government officials are “strictly obliged to protect this natural wealth for the citizens.”  Applying the public trust doctrine means, for example, that the public has an enforceable right to protect forests, fisheries, and air from destruction and pollution, and therefore to stop every environmental assault that is creating irreversible climate change.  The Clean Air Act and the Clean Water Act have clearly been inadequate to protect our natural resources, Wood argues.  “A trust approach treats the resource as common property shared by all states and nations as co-trustees, each having the duty to protect the shared resource. . . . It offers a common platform of responsibility that citizens can use worldwide to hold governments accountable even absent an international climate treaty, which may never come about.”

The public trust doctrine is an important approach to dealing with climate change, one that actually has a long history in the US.  Shortly, a lower-level court in Lane County, Oregon, will hear a suit brought by two teenage girls to define the public trust when it comes to young people’s rights in an era of climate change.  Stay tuned.

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