Environmental Law

Turning the Sky Orange and the Lights Off: West Coast Wildfires Diminish Solar Power Generation

Isaac Foote, MJLST Staffer

On September 9th, 2020 social media feeds were taken over by images of the sky above San Francisco.  As if it was a scene out of Bladerunner 2049, the sky turned a remarkable shade of orange due to smoke from forest fires raging across the West Coast. The fires have had a devastating effect on the region; they have burned over five million acres of forest, forced over 500,000 people to evacuate their homes, and killed over 30 people. Further, the combustion of millions of trees has threatened air quality across the United States and has released over 83 million tons of CO2 emissions into the atmosphere. This is more CO2 than power plants in both California and Oregon release in a typical year and is another example of how climate change perpetuates itself.

In addition to CO2, when forests burn they also spew incredible amounts of soot (another name for black carbon) into the atmosphere. This soot can then join together with water vapor to create pyrocumulonimbus clouds in the stratosphere which, in turn, are very effective at absorbing light from the sun. Because carbon absorbs more blue light than red light, these soot clouds caused the ominous coloration of the sky above San Francisco on September 9th.

While most of the focus on forest fire smoke has (rightfully) been around its potential health effects, the absorption effect mentioned above can also have a significant impact on solar power installations. At a micro scale, the impact of forest fire smoke can be intense. One small scale solar installation in Cupertino, California saw a 95% reduction in energy generation on September 9th. Outside of California, a Utah study demonstrated that a single forest fire within 150 miles of a solar array reduced generation by 12.5% over a three day period following the start of the fire.

At the systemic level, California Independent System Operator (California ISO) reported that at times on September 10th statewide solar generation was reduced by ⅓ compared to typical summer levels. While this did not set off rolling blackouts (as California ISO was forced to implement in mid-August), a 33% shock to generation is a worrying sign for the future. After all, this wave of wildfires already resulted in significant strain on the California transmission system independent of solar disruption. California has a 100% clean energy generation target for 2045 (SB 100 (de León, 2018)) and projections estimate solar will need to constitute a large percentage of California’s energy production to meet this goal. While energy planners factor the instability of solar generation into forecasts of energy production, typical state-wide drops of this magnitude usually occur in winter, when energy demand is reduced due to lower temperatures. With the increased prevalence and intensity of forest fires, California grid operators must be wary of sudden smoke-related drops going into the future, especially during the hot and dry weather that corresponds with both forest fires and high energy usage.

According to the Solar Energy Industries Association, “[a] worst-case wildfire scenario could reduce annual solar-energy production from affected installations by as much as 2%.While this impact may seem small on the scale of the energy system, some back of the envelope math estimates this worst-case scenario would reduce California’s annual solar production by 569 gigawatt-hours or $94,340,000 in retail sales at current production levels. This calculation is not even considering additional maintenance costs and efficiency reductions that analysts worry may be necessary if soot settles onto solar panels after leaving the atmosphere.

Of course, none of this is to argue against the increased adoption of solar generation in California. In fact, rapidly moving from a fossil fuel based economy to one based on renewable energy is the most important step in preventing future large forest fires as “the link between climate change and bigger fires is inextricable.” Additionally, advocates of distributed solar argue that increased residential solar adoption may help mitigate the stresses that forest fires place on the electric grid. Instead, this should be treated as another example of the costs of climate change and, consequently, fossil fuel use. Even with aggressive reductions in greenhouse gas emissions, forest fires will continue in the American West and soot will continue to harm solar efficiency. The best solution is for grid operators (like California ISO) and government planners (like the California Energy Commission) to understand the risks forest fires pose to solar generation and factor that into their long term (like the Annual Planning Renewable Net Short) and short term planning processes.

COVID-19: Substantiating the Impacts of Environmental Racism

Jessamine De Ocampo, MJLST Staffer

The Coronavirus (COVID-19) Pandemic is highlighting the numerous socio-economic inequalities in America. Because of these inequalities minorities are dying at disproportionally high rates. In addition to various barriers to health care, minority communities are inequitably exposed to hazardous environmental conditions that may end up affecting their long-term health. Under-served communities, including communities of color and the poor, are disproportionately impacted by environmental problems. Under-served communities historically lack the political power to prevent new sources of pollution and eradicate existing ones. As a result, generations of inequity and unjust systems have placed certain communities at higher risk than others. For example, in Harris County, Texas, 40 percent of those who died from COVID-19 were African-American, though African-American’s accounted for only 20 percent of the county’s population. Similar COVID-19 fatality patterns can be seen in Georgia,  Detroit, Michigan, Minneapolis, Minnesota, and Chicago, Illinois. Environmental justice advocates have long argued that environmental racism is killing their communities, but COVID-19 brings new light into just how detrimental the severity of environmental racism can be.

Environmental justice advocates seek to shield low-income and minority communities from the worst impacts of air pollution and environmental degradation. A recent Harvard study analyzed thousands of US counties in order to find a link between air pollution and COVID-19 fatalities. The study reflects that coal plants, waste incinerators, refineries, landfills, mines, smelting plants, and other sites, often located in communities of color, have long emitted toxic pollutants into the water and particulate matter into the air, increasing air pollution which in turn leads to various pulmonary and cardiovascular diseases. These chronic health issues increase chances of contracting severe cases of COVID-19.

In Louisiana, between Baton Rouge and New Orleans, exists an industrial corridor stretching about 85 miles, containing more than 140 chemical factories and oil refineries. This area is commonly known as Cancer Alley. These chemical factories and oil refineries release large amounts of particulate matter, which has been listed as a known carcinogen by the International Agency for Research on Cancer. Cancer Alley is one of the most polluted places in America, and someone has died from cancer in almost every household in the area. In the community of Reserve, a predominantly African-American working class neighborhood nestled in the middle of Cancer Alley, the risk of cancer from air toxicity is 50 times the national average. Now, Cancer Alley has one of the highest COVID-19 death rates in the country.

Similarly, Native American Tribes have long held the burden of having their lands used for toxic dumping sites. Environmental injustice, among other facts, has led to varying risks of illness on Indian lands. Now, they are bracing for the worst impacts of COVID. Kevin Allis, chief executive of the National Congress of American Indians stated “When you look at the health disparities in Indian Country — high rates of diabetes, cancer, heart disease, asthma and then you combine that with the overcrowded housing situation where you have a lot of people in homes with an elder population who may be exposed or carriers — this could be like a wildfire on a reservation and get out of control in a heartbeat.” And then, there are the residents of Oakland, California where mainly low-income African American and Latino residents are exposed to a disproportionate amount of airborne toxins as compared to the rest of the surrounding Alameda County. East and West Oakland residents have higher rates of asthma, strokes and congestive heart failures and during the COVID pandemic, these communities are the hardest hit in Alameda County.

Robert Bullard, who some consider the “father of environmental justice” stated in a recent interview:

When you have poverty, lack of access to health care, [high rates of] uninsured, many who have no private automobiles and are dependent on the buses and public transportation, and neighborhoods in pollution sacrifice zones you’re going to get people who are vulnerable. The coronavirus is basically taking advantage of those vulnerabilities, and you’re seeing it play out in the deaths.

While the environmental movement has taken off in recent years with the growing certainty of climate change, environmental justice cases have almost slipped through the cracks. As organizations begin to plan for a new world shaped by lessons learned during the pandemic, the influence the environment has on health, and the disproportionate burden on minority communities, needs to bear a greater weight in our political discourse. As former democratic primary candidate and current Vermont Senator, Bernie Sanders stated, “access to a clean and healthy environment is a fundamental right of citizenship. To deny such rights constitutes an environmental injustice that should never be tolerated.” The death rates and disproportionate effect of the COVID-19 pandemic on minority groups only compounds the evidence that unhealthy environments are detrimental to society/humanity. In addition to monitoring the biological environmental consequences of our societies, we also need to be considering the social consequences.

A Rising Tool in International Climate Litigation: The Right to Life

Jessamine De Ocampo, MJLST Staffer

There has been a growing national and international trend placing environmental rights and environmental justice under the umbrella of human rights. The empirical data around climate change is vastly shaping the international human rights arena, allowing environmental rights to be considered and litigated amongst human rights. As of 2019, air pollution is estimated to have resulted in and continues to result in 7 million yearly premature deaths worldwide; of which 600,000 are children under the age of 5. Entire communities, particularly island nations, are being forced to relocate due to rising sea levels while climate variability and changing weather is resulting in severe food crises threatening food security.

Climate and environmental issues have been actively permeating the international human rights field. The UN Human Right Council entered a mandate for an investigation into the correlation between human rights and environmental rights, the Inter-American Commission of Human Rights commissioned their first special rapporteur on Economic, Social, Cultural and Environmental Rights, and the UN Human Rights Committee in a General Comment, recognized the relevance of climate issues in the context of the right to life. The Right to Life is a universally recognized fundamental human right. While it can be found in a multitude of international and regional doctrines, it is primarily referenced in relation to Article 3 of the United Nation’s Universal Declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights. The right to life doctrine essentially states that every person has a right, protected by law, to live.

In the international courts, climate litigation cases have been decided under the Right to Life doctrine with growing success. A Pakistani farmer sued his country for failing to implement environmental legislation and won; a family of rural workers sued their home country of Paraguay for failing to protect them from severe environmental contamination in which the court held “the link between environmental protection and human rights is ‘undeniable.’ ” Finally, in December 2019, the Dutch Supreme Court held that the Dutch government must reduce emissions immediately in line with its human rights obligations.

As climate change and environmental justice concerns continue to pose an ever-growing multi-layered effect on our societies, these new tools may prove to be crucial in implementing liability. As the link tying climate change and human rights becomes stronger, individuals have more than before to establish a claim. The right to life doctrine can, and should, be used to enforce government liability for failing to regulate the harmful effects of climate change.

Controversial Community Solar Garden Program is a Target of Minnesota’s 2019 Legislative Session

Hannah Payne, MJLST Staffer 

In 2013, Minnesota’s legislature opened the way for certain solar projects with the passage of the Community Solar Garden Program. The program requires Xcel Energy to purchase the energy created by Community Solar Gardens (“CSGs”) that are under a certain generation capacity. CSGs represent a middle ground between residential rooftop solar and large-scale, utility-owned solar. The idea is that medium-sized solar arrays are built in or near communities by developers, local residents buy subscriptions, and then the utility buys the energy from the array and credits the resident subscribers’ accounts. Solar developers sell subscriptions by highlighting the chance to save money and help the environment.

CSGs have been controversial since the inception of the program. Along with the significant growth of CSGs in Minnesota have come concerns about the sales practices of developers, who have been accused of misrepresenting the certainty of profit or stage of project development. The Attorney General warns consumers to “make sure they fully understand a subscription agreement and carefully consider whether they are willing to commit to its terms.” Opponents also decry that the majority of the capacity – 90% – of CSGs is purchased by commercial and other non-residential customers, undercutting the idealistic image of CSGs bringing renewable energy tangibly closer to communities. However, CSG advocates point out that the vast number of subscribers – 92% – are actually residential; they just use less energy than commercial customers.

At the heart of the controversy is the price issue. Opponents of the CSG program, including Xcel, say that it is far cheaper to produce solar energy in a large-scale setting. Xcel recently committed to going 100% carbon-free by 2050, and is likely focused on building renewable capacity efficiently. On the other side, proponents claim that Xcel’s lack of tolerance for competition has resulted in the undervaluation of CSGs because the social benefits and avoided costs have been ignored.

In any case, the CSG program looks poised to undergo change this year; several CSG bills have been introduced in the legislature. Senator Mike Goggin, a nuclear plant manager at Xcel, has proposed total repeal of the CSG program. Another bill would require Public Utilities Commission approval of CSG projects and cap the amount of capacity that may be built within the program annually at 25 Megawatts (there is currently no limit). Other proposals aim to improve developer sales practices, one listing detailed disclosures to be required in promotional materials, another calling for the state’s Clean Energy Resource Team partnership to develop a “disclosure checklist” for developers. Yet another bill would fund a study of “economic benefits to farmers” to investigate if the CSG program may be tweaked to be more farmer-friendly.

Minnesota is a national leader when it comes to CSGs; many will be watching to see how the legislation develops. As Xcel and others get more serious about renewable energy, conversations and controversies around renewables can only be expected to increase. Watching a debate like this unfold is a great way to keep a finger on the pulse of the energy world in this exciting time.


Will Dooling, MJLST Staffer

This February, students at the University of Minnesota fought record snowfalls and low temperatures. A lot of us are dreaming of running away to a tropical island somewhere, or buying one and starting our own country. Today, we explore “seasteading,” the practice of founding a sovereign nation on the high seas, usually on a floating platform, or a remote private island.

Sovereign nations have already claimed every large island, and every part of the ocean even remotely near shore. As such, seasteading requires a would-be nation-builder to either construct a new island on a deep ocean seamount or build a floating platform from scratch. Both are remarkably challenging and costly feats of engineering. Even very generous estimates put the cost of a freestanding deep-sea platform capable of supporting a few residents at $50 million. The other challenge, of course, is supplying the community’s inhabitants with food, water, and electricity. While a seasteader could try imaginative solutions ranging from self-sufficient algae farms to enormous solar-powered desalination systems, the practical startup cost of such an operation is utterly enormous.

The attraction is obvious, though, largely thanks to the persistent myth that once safely in international waters on a floating platform or a private island, no laws will apply. It is certainly true that Article 2 of the 1958 UN Convention on the High Seas prohibits any signatory from claiming sovereignty over the high seas, and Article 57 of the UN Convention on the Laws of the Sea limits the exclusive economic zone of any nation (the region of the sea over which that nation has total sovereign control) to no more than “200 nautical miles from the baselines from which the breadth of the territorial sea is measured.” However, these limitations have never seriously prevented the United States, for example, from carrying out law enforcement activities to prevent “acts done outside a geographic jurisdiction, but which produce detrimental effects within it[.]” United States v. Smith, 680 F.2d 255, 258 (1st Cir. 1982). This means that the most tempting uses of a seastead—an offshore casino, a drug den, or a tax haven—are unworkable. One of the only law review articles to seriously examine seasteading puts it bluntly: “Given the United States’ penchant for exercising jurisdiction thousands of miles from its coastlines, not even the territorial seas of other nations may be sufficient to protect a seastead from American jurisdiction.”

A few innovative souls have tried semi-serious attempts to start a sovereign nation on the high seas, but none have quite succeeded. In the 1970s, real estate tycoon Michael Oliver spent millions of dollars attempting to found a sovereign state on a cluster of reefs in the South Pacific, about 250 miles from the island nation of Tonga. He dubbed his project the “Republic of Minerva.” Oliver created his own currency, flag, and declaration of independence from Tonga, but his project ultimately failed when Tongan king Taufa’ahau Tupou, and a construction crew, arrived and dissembled Oliver’s early construction work on the reefs. Oliver then abandoned the project.

Similarly, from 1976 to 2010, pirate radio broadcaster Paddy Roy Bates made periodic attempts to claim a World War II era anti-aircraft platform situated in the North Sea as a sovereign nation. Sealand, like the Republic of Minerva, has its own currency, constitution, and even its own national anthem. Sealand also sells titles of nobility. British pop star Ed Sheeran, for example, is a Baron of Sealand. Unlike the Republic of Minerva, Sealand is still going strong, and purportedly celebrated its 50th anniversary in 2017, but only two people live there permanently.

Currently, the largest promoter of seasteading is the libertarian-aligned Seasteading institute, an organization that hopes to build utopian communities of artificial islands set in international waters, though critics charge that the project is largely an attempt to bypass regulation (and taxation) that its members find inconvenient. In 2017, the government of French Polynesia briefly flirted with the idea of allowing the Seasteading Institute to establish an experimental economic seazone in their territorial waters, though the deal ultimately seems to have fallen through.

While no one has successfully gotten a self-sufficient seasteading community afloat, the dream is completely understandable. Once we get better at deep-water construction and remote power generation, it may actually be possible. Until then, it remains a dream, though one that is relatable and understandable in the depths of a Minnesota winter, at least until Tonga invades.

Renewable Energy vs. National Parks

By: Bethany Anderson

That’s what happened in Animal Welfare Institute v. Beech Ridge Energy LLC, where a wind energy facility was curtailed because it stood in the migration pathway of an endangered species—Indiana bats. The court allowed the facility to operate, but with significant constraints. For instance, though construction on those turbines already under construction could continue, Beech Ridge could operate only after it applied for and obtained an Incidental Take Permit (“ITP”), which would immunize Beech Ridge from certain ESA penalties for killing and injuring bats. Moreover, construction of additional turbines was conditioned on obtaining an ITP. Additionally, the Court ordered the Fish and Wildlife Service (“FWS”) to determine when Beech Ridge could actually operate after Beech Ridge obtained an ITP, taking into account the migration and hibernation patterns of the bats (see this report for a brief discussion on the aftermath of the Beech Ridge case).

In a similar energy against nature context, significant outcry (see this article) over oil and gas drilling in and around national parks arose in the last year. The Trump Administration opened up more public lands for mineral leasing, and directed agencies to revise or rescind rules that burden domestic energy development. Environmental groups lamented the endangerment of pristine public lands, darkness of wilderness night skies, quiet of natural soundscapes, and tech- and industry-free experiences many visitors crave. These are all legitimate concerns because the experiences, sounds, and sights preserved in our national parklands are preserved relatively unspoiled only in these limited corners of the country. The groups’ sentiment seems to be “let’s just drill somewhere else, okay? It’s a big country. Preservation uses claim few acres in the scheme of things.”

The recent outcry misses, however, concern over greener energy projects that also threaten wilderness and nature values. Like in Beech Ridge, there are two sometimes competing goals here. Renewables serve climate change goals, displacing carbon-emitting energy sources like coal, natural gas, and oil. National parklands preserve land and culture in their natural and historical state. What happens when green energy development requires a huge expanse of flat land exposed to sun year round? A solar facility one mile from Mojave National Preserve presents an example. Is such a land use plan any less invasive than drilling? Maybe it’s quieter and lower to the ground, and maybe it serves a goal that those in the nature fight can get behind better than oil and gas drilling. In this instance, the solar facility still a mile away and does not in any way reach into the park through something comparable to directional drilling. But the facility uses land that was previously untouched and is still potentially visible from parks. As another example, what happens when the only way to get offshore wind online is to construct a high-voltage transmission line across a historic park? Developers say alternative energy sources that replace closing coal plants require a transmission line crossing a historic trail. Opponents say the line undermines the historic atmosphere of the trail and surrounding park area, and may open the floodgates to more industrialization in historic and pristine areas. In the same way as oil and gas drilling, these developments undermine some of the wilderness and historic values park advocates fight for.

So how do we balance these seemingly competing values? National parks are to be preserved unimpaired for the enjoyment of present and future generations. That mandate may conflict with climate change-combatting green energy tech seeking the most effective locations for new facilities.

The 9B regulations (“regulations”) that govern nonfederal oil and gas rights in and around national parks are a framework from which to balance renewables with the preservation mandate. The regulations require a plan of operations, plans in case of spills or other emergencies, a security bond in case of harm to park resources, and eventual restoration of the land, returning it as close to its original status as possible after operations conclude. Renewables are likely more permanent than an oil or gas well, so space and distance restrictions will need to be stricter. But a similar plan of operations, with mitigation strategies and emergency contingencies, is a good start, especially since the regulations are already in place in one piece of the energy sector. As energy technology develops, it constantly brings novel challenges into the existing legal context. The 9B regulations provide a starting point for the ever-growing green energy versus preservation debate.

In Space We Trust: Regulate the Race

By: Hannah Payne, MJLST Staffer

In 1999, the UN General Assembly launched “World Space Week,” an annual celebration observed from October 4th (the date of Sputnik’s launch in 1957) to October 10th (the day The Outer Space Treaty entered into force in 1967). This year’s theme was “Space Unites the World.” The UN said the theme “celebrates the role of space in bringing the world closer together.” Unfortunately, the words ring hollow in light of the U.S.’s Space Force plans, as well as the recent escalation of inter-planetary militarization by China, Russia and the EU. Additionally, activities of SpaceX and others raise concerns about privatization, space pollution and the plans of the uber-wealthy to leave the world behind. These forces threaten to marginalize the awe-inspiring exploration of space into a scheme concerned only with war, profit, and advancing inequality. The dominance of such interests calls for a coherent system of global space regulation.

Some have observed that many recent activities violate the 1967 Outer Space Treaty, which declared: “The exploration and use of outer space . . . shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” The treaty also states that space and all celestial bodies are unowned and open to exploration by all. The U.S. and over 100 countries signed and ratified it, and America did not reserve the right to alter its obligations, as it often does in agreements. However, with no real international enforcement mechanism and our ceaseless profit-seeking, countries have—and will continue to—disregard the goals of the 1967 agreement. Last year, Ted Cruz expressed excitement that “the first trillionaire will be made in space.” He proposed amending the treaty to foster commercialization – and correct its erroneous assumption that worthy goals exist besides wealth and power. His motive seems to be formalistic, as was Congress’ in 2015 when it declared in the Commercial Space Launch Competitiveness Act that “the United States does not, by enactment of this Act, assert sovereignty . . . exclusive rights . . . or ownership of, any celestial body[,]” but in the same act granted U.S. citizens the right to own and sell any “space resource.” Though the U.S. track record of treaty violations makes their disregard of the agreement perhaps unsurprising, the serious consequences of space militarization and privatization call for critical advancement in space regulation.

From an environmental law perspective, the language of the 1967 treaty evokes the seldom-used Public Trust Doctrine (PTD). Traced back to the Roman era, the Public Trust Doctrine is described as “requir[ing] government stewardship of the natural resources upon which society . . . depends for continued existence.” The PTD places the government/sovereign as the trustee, obligated to protect the rights of the public/beneficiary in the trust, which is comprised of things like navigable waterways. It has mostly been applied to water rights, and successfully reclaimed property for the “public good” in Illinois and California. However, in 2012 the Supreme Court suggested that the PTD is no stronger than state common law. Even so, the doctrine should be remembered by those who think the privileged cannot, by right, hoard or destroy resources – including those in space. In the 1970s, Joseph Sax argued for the PTD’s use as sweeping environmental common law. Some have since theorized about the extension of the PTD to space. These scholars identify issues such as the lack of a sovereign to act as trustee. That problem would not likely be solved by allowing every country to exert self-interested sovereignty in space. At least no one has been so bold as to outright claim the moon – yet.

The PTD is just one tool that may be useful in designing a peaceful move forward. The Expanse, a near-future science fiction series in which humanity has colonized the solar system, offers a thought-provoking look ahead. Earth and the moon are governed by the UN. Mars is a sovereign as well, and the asteroid belt a colonial structure with fractured governance. Space is highly commercialized and militarized, and personal opportunity is hard to come by – but humanity has avoided self-destruction. Their global governance allows for some cooperation between Earth and Mars in space. Depending on one’s dreams of the future, the situation represents an overpopulated, inefficiently run hellscape – or a less-bad option out of the possibilities that now seem likely. It begs the question – how do we expand while avoiding astronomical inequality and self-destruction?

Perhaps it is nearly impossible, but Earth needs real, global regulation of outer space. A weak U.N. cannot do it; private companies and wealthy countries should not be given free reign to try. Last month, the U.N. held the First United Nations Conference on Space Law and Policy.  It’s good to see the international community ramping up these discussions. Hopefully, the PTD’s underlying philosophy of equitable preservation will be central to the conversation. Done right, the exploration of space could be the most inspiring, community-building, and even profitable experience for humanity. If approached thoughtfully, inclusively, carefully –  we could have much more than just a Space Force.

Sulfur-Ore Mining in Minnesota: Are Near-Term Economic Gains Worth Long-Term Losses?

Sam Duggan, MJLST Staffer 

Mining copper and nickel from sulfur-ore in Northern Minnesota is different than mining iron from taconite, and the environmental consequences are orders of magnitude greater. Unfortunately, the public discourse around developing copper and nickel reserves largely fails to consider this. As a result, the public is not armed with information needed to rationally debate whether sulfur-ore mining is a good choice for Minnesota.   

Taconite is a relatively unreactive iron-containing mineral. Although miners exposed to asbestos-like compounds from taconite dust are likely at increased risk of mesothelioma, proper dust mitigation practices and sound environmental planning/reclamation can limit long-term consequences to a scarred landscape. However, as with other types of mining, there are consequences associated with boom-or-bust economics.   

In stark contrast to taconite, sulfur-ore is highly reactive and has a particularly insidious property. A decommissioned mine slowly fills with rain, snowmelt and ground water. Sulfur reacts with water and oxygen to produce sulfuric acid, which dissolves metals contained in the sulfur-ore. Like a liquid miner, this acid liberates geologically sequestered metals into a dissolved, bioavailable and toxic form. As metals dissolve from the mine walls, more sulfur is exposed to oxygen and water. This produces more sulfuric acid which dissolves more metals. Through this chain reaction, the mine “mines” itself for centuries or more after its decommission. Importantly, mining target metals (i.e., copper, nickel) never occur alone. They co-occur with non-targets (i.e., lead, cadmium, manganese, arsenic, sulfate) that also dissolve from mine walls. Over time, concentrations of toxic compounds grow higher. Once the mine fills, acidic and metal-rich water (acid mine drainage) leach down-gradient and poison the watershed. Similar processes also occur in tailings piles stored outside the mine.

Sulfur-ore mines are responsible for numerous Superfund sites, including the infamous Berkley Pit copper mine. In 2016, thousands of snow geese landed in Berkley Pit’s toxic water and died en masse. Consider also the 2015 Gold King mine spill. At Gold King, a mine entrance cap was accidentally ruptured during routine monitoring and 3 million gallons of acidic, metal-rich water poured into the Animas River in Southwest Colorado. Related lawsuits seek many millions in damages. The history of mining in the Western U.S. is replete with other examples of sulfur-ore mines contaminating watersheds.

Methods exist for mitigating sulfur-ore mine pollution including capping, chemical neutralization, and constructing water treatment facilities specifically dedicated to the mine. However, these options cost millions and must be perpetually maintained, as it is nearly impossible to prevent water and oxygen from entering a mine. The chain reaction can linger for millennia, continually dissolving metals from rock and leaching toxins into the watershed.

Notably, the mining corporations who reap the lion’s share of a mine’s economic benefit escape long-term environmental liability because bankruptcy law and parent-subsidiary corporate structure often shield parent corporations from their mining subsidiaries’ environmental liabilities. For precisely this reason, the mine permitting process often requires corporations to offer financial assurances for potential environmental damages. However, financial assurances underestimate damages, and taxpayers are left with the bulk of sulfur-ore mine cleanup costs for generations.

The long-term consequences of sulfur-ore mines were recognized by the Obama Administration, particularly regarding mining in Minnesota’s Boundary Waters watershed. In 2016, the Obama Administration instituted a 2-year moratorium on mining permits near the Boundary Waters to study effects of sulfur-ore mining. That study could have led to a 20-year permitting moratorium. However, in 2018, after only 15 months, the Trump Administration decided that the study did not reveal new information and lifted the moratorium. Now, parent companies such as Chile’s Antofagasta can apply for mining permits within the Boundary Waters watershed via their subsidiary company Twin Metals. The permitting process is already underway for Polymet — an open pit, sulfur-ore copper mine just outside the Boundary Waters watershed. Importantly, Minnesota’s sulfur-ore resources could support dozens of mines.  

Given that sulfur-ore mines are economically viable for a few decades and an environmental scourge for centuries or more, decision makers should consider whether near-term economic gains are worth long-term losses.

California’s Sport Venue Boom: A Weakening of CEQA?

By: Gabe Branco, Minnesota Journal of Law, Science & Technology Vol. 20 Staffer

The Los Angeles Rams, Sacramento Kings, Golden State Warriors, Los Angeles Clippers, and Oakland A’s are all seeking to build new stadiums in compliance with the California Environmental Quality Act (“CEQA”). CEQA subjects public and private agencies to a process focused on determining any significant environmental impact the proposed project may have and whether any suitable alternatives exist that may mitigate those significant impacts. The process takes some time, as the agency must complete several environmental impact reports (“EIR”), allow for adequate public notice and comment, and provide a period of time for environmental based claims to be litigated.

The Golden State Warriors have been successful in their CEQA process, but have been subjected to high costs in preparing the EIRs and combating lawsuits from environmental groups. The Los Angeles Rams have taken a different approach. CEQA allows for agencies to file for project “statutory exemptions” in order to cut down on the lengthy procedural process. One exemption of CEQA is the voter-sponsored ballot initiatives. In California, it is the right of the people to make changes to the law through these initiatives, which have the same effect as legislation. Land use decisions are subject to these initiatives, and thus projects that are approved through the initiative are not subject to CEQA. The Los Angeles Rams collected signatures from 15% of the population in Inglewood to qualify the development project for special election. The development project was then supposed to be placed on the ballot initiative, but the Inglewood City Council unanimously approved the project. The Los Angeles Rams do not need to complete an EIR, provide time for notice and comment, and are shielded from litigation. The Los Angeles Clippers, Sacramento Kings, and Oakland A’s have received or are in the process of receiving legislative exemptions with varying CEQA procedures somewhere in between the Golden State Warriors’ and the Los Angeles Rams’ processes. While the afore-mentioned franchises must still complete an EIR, they have considerably reduced (or eliminated) litigation and notice and comment periods.

The question becomes whether these exemptions given so willingly to sports teams weaken CEQA’s ability to force agencies to be more considerate of a project’s environmental impacts and alternatives. Sport stadiums do have a significant impact on the environment. Shortening or doing away with judicial review and notice and comment limits the number of alternatives an agency could be made aware of and limits public recourse for legitimate claims, leading to a less than efficient plan for limiting significant environmental impacts.

So far, the courts have held that past projects with CEQA exemptions do not conflict with CEQA’s purpose. Saltonstall v. City of Sacramento, 234 Cal.App.4th 449 (2015). The rationale may well be rooted in the desire for the Courts to limit the amount of environmental litigation on the Court’s docket, and push through stadium projects that may vitalize a California city’s economy. While state legislators have introduced a bill that would prevent future sports teams from gaining the exemption the Los Angeles Rams received, teams may still limit the procedures enforced by CEQA through legislative exemptions. Clearly, that as long as sports have a strong economic foothold in American culture, sports stadiums will continue to be built at the expense of the environment.

Farm Drainage Revisited: Will Tile-drain Effluent Be Considered A Point Source and Fall Under Clean Water Act Regulation?

Theodore Harrington, MJLST Managing Editor

For years, nutrients from farming operations have been leaking into the Raccoon and Des Moines Rivers, and ultimately arriving at the mouth of the Mighty Mississippi. These nutrients, most notably nitrate and phosphorus, are the result of both fertilizers and natural crop growth and have deleterious effects on humans and the environment. As these nutrients mix with groundwater just below the surface, a polluted effluent is created. This effluent is then drained through a grid of plastic piping a few feet below the soil.

Nearly two years ago, Des Moines Water Works (DMWW), a public water utility, sued the Drainage Districts in Sac, Buena Vista, and Calhoun Counties to recover monies spent treating the polluted effluent to make it safe for public consumption. Defendants contend that the polluted effluent does not fall under the jurisdiction of the Clean Water Act, and therefore DMWW is the appropriate entity to bear these costs, which approach $7,000 per day!

Where it stands: Summary Judgment briefs were traded in May and June of last year. Since then, oral arguments have been heard by the Iowa Supreme Court since September 14, 2016. (Click HERE to see John Lande arguing for the Board of Water Works and Michael Reck arguing for the counties.) A federal trial in front of Judge Leonard Strand is set for this coming June in the Northern District of Iowa. The trial will come two and a half years after the original filing, and lengthy appeals, possibly to the Supreme Court, are likely to follow. Though it will be years before we have an answer to the question titling this post, the judgment’s consequences will reach beyond individual farms to the heart of the industry.