Environment Silent Victim of War in Ukraine, for Decades to Come
Author
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue
September-October 2023
Issue
5

One of the silent victims of the war in Ukraine is the environment. Artillery shells and rockets fired by both sides are exploding in the thousands every day, distributing pollutants into the soil, water, and air. Secondary releases include asbestos and other harmful substances from the industrial facilities and civilian buildings that Russian shells and rockets target. These armaments have leveled cities and critical infrastructure, including water and power supplies, and disrupted entire ecosystems. Tanks and other tracked vehicles chew up the countryside and take out trees that impede them. Lately, Ukraine’s tanks have been firing armor-piercing shells containing depleted uranium, a heavy metal that poisons the soil.

All told, munitions, targeting choices, and collateral damage in Ukraine will leave “a toxic legacy for generations to come,” in the words of the UN Environment Programme. “The mapping and initial screening of environmental hazards only serves to confirm that war is quite literally toxic,” says UNEP Executive Director Inger Andersen. “The environment is about people: it’s about livelihoods, public health, clean air and water, and basic food systems. It’s about a safe future for Ukrainians and their neighbors, and further damage must not be done.”

Russian troops have seized the Zaporizhzhia Nuclear Power Station in southeastern Ukraine, encouraging fear among locals and the world community that the invaders may cause a deliberate nuclear crisis. Meanwhile, Russia has launched attacks from the facility, effectively weaponizing civilian nuclear energy generation.

And Russia is presumed to be behind the bombing last spring of the Kakhovka hydroelectric dam in southern Ukraine, an action that could run afoul of the law of war. It was “an outrageous act of environmental destruction that will have profound humanitarian consequences,” according to the U.S. State Department. “The Russian Federation’s willful disregard for civilian life and infrastructure has been a hallmark of its military campaign since the very beginning of its war on Ukraine.”

After the dam burst, “thousands of people were displaced by flooding from one of the world’s largest reservoirs, which was vital for irrigating farmland considered the breadbasket of Europe,” according to the New York Times. Adding to that problem is the fact that Moscow failed to renew the agreement that allowed grain vessels free passage to Ukraine’s Black Sea ports, pushing up global wheat prices and exacting an economic toll on the world’s poor, for whom grain is a principal part of their diets.

Worst of all is the possible use of nuclear weapons. Russian President Vladimir Putin has on several occasions since the invasion began threatened to deploy “tactical” atomic devices. NATO, including the United States, has carefully calibrated its support of the regime in Kyiv to not force Moscow’s hand. The use of a tactical nuclear bomb—a weapon designed for the battlefield, not to take out enemy cities and thereby force a surrender—would be a first in history. These weapons were developed by the United States starting in the 1950s for use in an all-out land invasion in Europe by the Warsaw Pact. The Soviets too had thousands deployed in Eastern Europe for a showdown with the West. The end of the Cold War eased tensions, and there hadn’t been a nuclear saber-rattling until Putin’s army got bogged down.

At this writing, Kyiv’s long-heralded counter-offensive is making little progress against dug-in defenses of seized territory in eastern Ukraine. The Russians have used thousands of mines to slow down any enemy advance of infantry and armor. The Anti-Personnel Mine Ban Convention proscribes the use of these devices, which are difficult to disarm, making land unusable for decades. Kyiv too has made use of mines, but only in a limited manner. Ukraine is a party to the mine convention; Russia and the United States are not. The convention does not bind either of the two non-signatories.

Also worrisome are U.S. shipments of cluster munitions to Ukraine. Cluster bombs break apart and release dozens of submunitions, which fly off in all directions and explode on their own. In addition to the immediate effect on enemy soldiers, many of the submunitions fail to detonate but are still live, creating an environmental danger for generations to come. Because of this threat, the Convention on Cluster Munitions came into force in 2010 and has been ratified by 110 countries—but not Ukraine, Russia, nor the United States. Again, there is no binding law on the combatants here.

Experts predict it will take literally centuries for teams of sappers to rid Ukraine of these deadly munitions. According to the Washington Post, “President Biden had to invoke special national security grounds to bypass U.S. law that prevents the transfer of cluster bombs with a dud rate—that is, the share of unexploded bomblets that may remain in the ground—greater than 1 percent.” The newspaper notes that “current shipments are at a dud rate of 2.35 percent, though some experts believe the true rate is much higher.”

Even as the environmental damage grows, there are unprecedented efforts to document it. With the blessing of the UN General Assembly, more than 40 EU states, the United States, Japan, and Canada are creating a “register of damage.” Stay tuned: the United States has pledged to rid Ukraine of unexploded cluster submunitions, and there will be more developments to hold Russia accountable for wrongful environmental damage.

Mea Culpa

“Something Was Messing With the Earth’s Axis. The Answer Has to Do With Us.” I have to take that headline in the New York Times personally, as a potentially responsible party more at fault and liable for damages than most.

“Accelerated melting of the polar ice sheets and mountain glaciers had changed the way mass was distributed around the planet enough to influence its spin,” according to the article. Worse, scientists have now “identified another factor that’s had the same kind of effect: colossal quantities of water pumped out of the ground for crops and households.” We are all part of the problem, of course, but what followed singled me out: “Scientists knew the planet’s centerline could move. But it took a sharp turn sometime around the start of the 2000s.”

You see, I had stood exactly at the Earth’s axis and in fact had been witnessed to give it “a sharp turn.” In fact, it was also exactly at the start of the 2000s. I was visiting the South Pole to celebrate the millennium. It is the only place on Earth where you can select which time zone you want to bring in the new year, and do so in broad daylight. Indeed, all the time zones come together there, and if you want you can celebrate 24 times.

Surprisingly, there are ordinarily three South Poles to pick from, and on New Year’s Eve, when I arrived, for a few hours there are four. All are confusingly within yards of each other and the nearby housing, labs, and offices of the U.S. National Science Foundation.

The least important of the South Poles is the only impressive one. It is a three-foot-tall segment of barbershop-striped cylinder stuck in the ice, topped by one of those mirrored spheres sold as lawn ornaments. At a respectful distance around this odd monolith are flag poles displaying the banners of the principal members of the Antarctic Treaty. The problem is that it isn’t really at the South Pole. Another lies a very short distance away and has a better claim at authenticity. Rather, it’s just the colorful spot you go to for the usual snapshots.

The real South Pole, the spot where all lines of longitude converge, is marked by two sections of pipe sunk in the snowpack about four feet apart. The pair hold a sign commemorating the arrival of the first humans to that spot. The longitudinal confluence lies vaguely between these two pipes. So it’s not a very satisfying marker.

And that lack of precision was not all that was wrong with this alleged South Pole: the Antarctic ice cap, which is 8,000 feet thick at that point, moves laterally by an inch a day. So this marker only lasts a few hours as the legitimate South Pole. And in fact there is an annual tradition to respot the pipes and sign on New Year’s Day.

We had arrived in our little Twin Otter plane eight hours before the millennium. We found a group of technicians using a highly accurate GPS device with a huge parabolic antenna to mark where the South Pole was at exactly that time. When they were done they pushed a foot-long bamboo stick into the snow, with a red ribbon tied to its top. It was indeed a weak reed for such a momentous occasion.

After midnight passed, as technicians moved the metal sign and its two pipes to straddle the bamboo stick, a physicist told me he understood my concern about not finding an accurate and impressive marker for the convergence of longitude. And then he showed me the fourth South Pole—more real than any of the others. It was twenty feet away and consisted of a foot-high tapered metal spike stuck in the snow. It marked the axis of the Earth’s rotation, which no longer coincides with the lines of longitude laid down centuries ago due in part to the wobble resulting from human activities.

I put my hand on the top of the spike and gave it a twist.

Notice & Comment is the editor’s column and represents his opinions.

A Striking Indicator That Climate Change Is in Progress

Over the past several Major League Baseball seasons, home run numbers have climbed dramatically, including Aaron Judge’s record-breaking 62 homers for the New York Yankees in 2022.

[This outburst has] prompted speculation from the media about the connection between climate change and home runs.

But while scientists . . . have shown that balls go farther in higher temperatures, no formal scientific investigation had been performed to prove that global warming is helping fuel baseball’s home run spree – until now. . . .

In our study, published in the Bulletin of the American Meteorological Society . . . we used data from over 100,000 Major League Baseball games and 200,000 individual batted balls, alongside observed game day temperatures, to show that warming temperatures have, in fact, increased the number of home runs. —The Conversation

The start of industrial-scale seabed mining to extract car battery metals from the bottom of the Pacific Ocean has been delayed after the international agency charged with overseeing the work concluded . . . that it needed more time to finalize mining rules. The action by the International Seabed Authority . . . came after pressure from environmentalists and nations that oppose the effort. —Eric Lipton/New York Times

Environment Silent Victim of War in Ukraine, for Decades to Come.

Deforestación y Derecho
Author
Carl Bruch
Kristine Perry
Date Released
July 2023
This is the cover of a report titled "DEFORESTACIÓN Y DERECHO"

El presente Manual Judicial proporciona recursos que los jueces pueden aplicar para decidir casos relacionados con la deforestación en Colombia, y esta introducción proporciona un contexto para el desarrollo del manual, reconoce a los socios y a los individuos responsables del desarrollo del mismo, y proporciona una breve descripción sobre cómo utilizarlo.

Tighter Loops Through Collaboration
Author
Carolien Van Brunschot - Circular Electronics Partnership
Circular Electronics Partnership
Current Issue
May-June 2023
Issue
3
Parent Article
Beyond Recycling
Carolien Van Brunschot headshot

It is common for organizations to start their circular transition journey with a focus on recycling. Recycling is a natural first step to reduce material wasted through burning or landfilling. It limits virgin resource extraction by reusing materials already in circulation. One can have the impression that as long as design allows products to be taken apart by recyclers, business can continue to run without too much interference. However, considering the purpose of circularizing industries, it soon becomes clear that recycling is really just the beginning.

Closing the loop of a product lifecycle is a good start; however, it is important to consider the size of the loop as well. For the electronics industry, for example, we could look at two key impact areas: a reduction in carbon embedded within products, and risk reduction concerning the availability of scarce materials.

Both these impacts make a case for the need to look further than recycling alone. Given the accumulated carbon footprint of processing and manufacturing an electronics product, cutting emissions from mining and other extraction is a big win. However, the wider the closed loop, the more reprocessing is required, the more value chain players are involved, and more logistics will be included in the process, all adding back to the carbon footprint.

Circularity in electronics is a means to preserve scarce minerals that are essential to the global energy transition. Recycling can provide an alternative sourcing channel for certain valuable metals like gold and copper. But many critical rare earths are still difficult to extract from the alloys in which they were used in their original product composition. And until separation technologies become available at scale, recovery rates will likely be less than one percent.

If we truly want to reduce our product carbon footprint and preserve critical minerals, we need to look at a form of circularity with the tightest possible loop. This requires remanufacturing and refurbishing, in which product parts and working components can be reused. The last can be seen as optimal since embedded carbon can be written off over a longer period. Additionally, this approach enables products to benefit from the intended composition of materials, such as difficult to recycle alloys containing valuable rare earths, for as long as possible.

A business model that includes extended lifetime for products through repair, maintenance, and upgrades asks for very different competencies from an organization compared to the more traditional linear sales model. While in the past companies focused mainly on the sales transaction, now they need to take a longer-term perspective and guide users throughout the product lifecycle. This involves directing customers toward the appropriate services and upgrade opportunities, as well as providing clear instructions for end-of-life disposal and ensuring products are collected and recovered.

This means a complete overhaul in how brands incorporate circularity through the full value proposition, where services drive value creation, thereby decoupling economic returns from material consumption. They will need to understand much more about the full lifecycle of their products and strategically plan how these will find their way back into the economy at end of life. It will not only change their relationship to the consumer, but also to the rest of the value chain.

For some of the world’s biggest tech giants, this circular approach to serving their customers is a massive shift at the heart of their operations. Fortunately this does not necessarily mean they need to vertically integrate to include all these additional business competencies. Many organizations already offer circular services across the product lifecycle.

Turning to this part of the industry to scale circular business models presents a significant opportunity. Understanding the landscape of circular service providers, and how they can be integrated effectively into the value proposition, could provide the next competitive edge. Cross value chain collaboration therefore is essential to the transformation to a circular electronics industry that looks beyond recycling.

Beyond Recycling
Author
Kathleen Sellers - ERM
Conor Grieve - ERM
ERM
ERM
Current Issue
May-June 2023
Issue
3
Partial recycling sign in the center of crushed plastic or metal

These stark words from the United Nations imply an economic and environmental catastrophe to come: “Consumption and production drive the global economy, but also wreak havoc on planetary health through the unsustainable use of natural resources. The global material footprint is increasing faster than population growth and economic output.” To address this problem, the authors of the 2020 UN Sustainable Development Goals declare: “Urgent action is needed to decrease our reliance on raw materials and increase recycling and ‘circular economy’ approaches to reduce environmental pressure and impact.” Moving toward a circular economy—one founded on the precepts of designing out waste and pollution, on keeping products and materials in use, and restoring natural systems—could limit the devastation of planetary health. But that is not enough. Even with 100 percent recycling, humanity’s consumption of virgin resources will continue to sustain ever increasing demand for products and services, including basics like energy. Without reducing consumption, scarcity will always loom for many key supports of our economy.

Some scientists believe that our efforts may come too late. A 2017 article in ACS Sustainable Chemistry & Engineering provides an analysis of mineral reserves which, for example, indicates that 10 essential metals are “very scarce” (less than 20 years of supply) and 11 are “scarce” (up to 40 years). These findings show that little time remains to change resource demand. Another research team, writing in Science, determined that pollution from chemicals and plastics already exceeds safe global operating levels for human societies to develop and thrive.

Activists outraged over images of ocean debris fields call for laws to ban single-use plastics and thus drive circularity. Many companies and individuals strive to make greener choices and to recycle packaging and other materials. There is much to praise in such behavior. But we argue that business and society must move beyond recycling to change consumption patterns if policymakers want to build a sustainable society within planetary boundaries.

We propose a resource efficiency approach to circular economy aspirations, enabled by rethinking value chains and increased transparency and traceability. To do so, we explore examples of innovation in circular business models and partnerships, highlighting opportunities for policymakers to support private firms and society in general in moving toward resource efficiency.

Pogo’s famous observation that “we have met the enemy and he is us” still resonates more than half a century later. The essential challenge of circularity is peoples’ demand for goods and energy. The United Nations tracks demand in terms of material footprint, which grew by 17 percent between 2017 and 2020. The footprint of a person in a high-income country is more than 10 times greater than that of a person in a low-income country, based on 2015 data. These figures illustrate in a general way the growing and unequal demand for resources. To examine demand in a less abstract way, let’s look at an essential part of this footprint, clean drinking water, and the current debate about single-use plastics.

Almost everybody in the United States—around 99 percent of the population—has access to safely managed drinking water. Access to clean water is not uniform for the 1 percent who are left out. A lack of safe water correlates to rurality, poverty, indigeneity, education, and age. Bottled water can be a necessary, if stopgap, solution to unsafe or inadequate private wells or public water supplies, if it is available and affordable.

However, many people in the 99 percent with access to safe and inexpensive drinking water still chose to drink bottled water. Between 2005 and 2015, demand for bottled water grew by more than 47 percent in the United States despite the widespread availability of safe public water supplies and wells. The International Bottled Water Association explains, “A 2019 Harris Poll conducted for IBWA shows that when asked about their general opinion of bottled water as a beverage choice, 84 percent of Americans had a ‘very positive’ or ‘somewhat positive’ opinion of bottled water. . . . This poll finding is supported by the fact that bottled water is the No. 1 packaged drink in the United States for the fifth year in a row (by volume).”

The Harris Poll also found 94 percent of Americans buy bottled water, and 91 percent want it available where other drinks are sold. If bottled water is not available, the survey found that 74 percent of people said they would choose another, less healthy, packaged drink—not water from a drinking fountain or tap, even if filtered.

A study of college students in the northeastern United States concluded that purchasing bottled water tends to be a habit that reflects perceptions about the quality of bottled water versus tap water. It relates to perceptions of convenience, taste, and health factors but, in the words of the authors, “objective knowledge about the environmental impact of bottle[d] water production and consumption is, at least in the current data set, irrelevant to purchase intention.”

Contrast such purchasing decisions with the way people in the United States talk to pollsters about single-use plastics, the material commonly used to package water. In a 2021 survey, 55 percent of respondents agreed that single-use plastics should be banned as soon as possible. A second survey found that 82 percent said they are concerned about plastic pollution and its impact on the environment and our oceans; 77 percent agreed that companies need to stop producing so much single-use plastic. Eighty-one percent of respondents broadly supported both national and local or state policies that would reduce single-use plastics.

In response to such concerns, multiple states and municipalities have taken up the cause of banning single-use plastic water bottles. But such concerns about the environmental impacts have not yet translated to effective recycling. According to EPA, using 2018 data, only about 29 percent of plastic bottles are recycled in the United States.

Bottled water is not alone. It is an example of the disconnect between consumption patterns and sustainable consumption preferences. Recognizing this gap, companies offer to produce recyclable single-use options to meet consumer expectations.

It’s an instinctive response to sustainability concerns to substitute out materials considered harmful and commit to recycling. But our instincts do not always lead to substantive solutions. Recycling comes at an environmental cost: no recycling process can be completely efficient and the transport and recycling of waste uses energy and generates greenhouse gas emissions. Its success depends on numerous factors, including consumer acceptance, adequate infrastructure, and economics, and even if well adopted will still have important environmental consequences.

Continuing with the example, bottled water is commonly available in plastic containers and sometimes available in paper cartons or single-use aluminum bottles. The actions of one company illustrate the types of actions taken to make products more sustainable and some of the limits of those actions. This company positions its product as particularly sustainable because of its use of “infinitely recyclable aluminum” bottles and cans and its partnership with RePurpose Global to remove one plastic water bottle from the ocean for each bottle of its product sold. The product embodies commitments to using more sustainable materials and action to remove pollution, wrapped in a strong brand image.

Dig into the details, however, and the sustainability benefits become less clear. Its bottles comprise 69 percent recycled aluminum, according to the company web site. But these single-use containers exert a demand for virgin resources for the 31 percent missing metal. The company offers its product on a monthly subscription basis, per its FAQs, a business model with ongoing resource demand and ongoing generation of waste. While aluminum is readily recyclable, and perhaps many consumers of this brand do, most consumers in the United States do not. According to EPA, only 17 percent of aluminum cans in municipal solid waste were recycled in 2018 (the most recent year for which data are available), well below the more than 50 percent figure the company cites.

Looking beyond the container, bottling water typically removes water from one watershed for transport around the country or the world. This company sources water from Bozeman, Montana, Montebello, California, and Norfolk, Nebraska. All three of these areas are under water stress. Bozeman is semi-arid and drought prone, receiving only an average of 16 inches of precipitation annually. The water department of the city of Montebello has posted an urgent warning: “The current drought conditions are SERIOUS and the need to reduce water use is REAL.” A meteorologist from the National Weather Service recently observed, “About 75 percent of Nebraska is in drought, with Norfolk this week extending its claim to its driest year on record.” Removing water from scarcity areas to send to other regions, many potentially rich in water, is not a sustainable solution. At the end of this aluminum product’s life, tying recovery of ocean plastics to the purchase of a single-use product links restoration of natural systems to consumption. At its heart, this link is not sustainable. We cannot consume our way out of pollution.

Finally, the price of this product puts it out of reach for most consumers and thereby limits the scale and impact of the circularity solution. Twelve 16-ounce cans of water from this company currently cost $27.99, or $0.15 per fluid ounce. In contrast, water in plastic bottles can cost $0.04 per fluid ounce, and consumers pay on average $0.00005 per fluid ounce from public water supplies (2019 data).

The point of this analysis is not to single out one brand, but to illustrate how well-intentioned efforts at circularity can have consequences that limit their benefits. The resource demands of “sustainable” solutions can still have significant impacts, and recycling may be limited in practice. And the scale of circularity efforts may not yet be large enough to materially address environmental problems. Changing our perspectives on consumption and circularity is essential to changing the impact we have as a species.

The low rate of recycling results from numerous factors: confusion over what can be recycled; lack of infrastructure; contamination of materials; and raw economics. EPA aims to improve the recycling rate to 50 percent by 2030 through a five-pronged strategy published in late 2021 aimed at increasing collection, reducing material contamination, enhancing circular policy, improving data collection, and developing secondary markets. The agency also calls for “designing products to be sustainable, reducing the creation of waste with local communities in mind, maximizing reduce, reuse, and recycle, and minimizing the impacts of waste management.” In doing so, EPA has acknowledged that recycling is only part of the solution.

Circular economy conversations too often center in the narrow recycling discourse and ignore the breadth of options available in the marketplace. Broadening circular economy aspirations beyond recycling to focus on resource efficiency better aligns with academic and thought leader perspectives calling for a focus on reducing waste rather than cycling it through input-intensive processes. Beyond the switch in mind-set to resource efficiency, companies and governments must rethink their value chains to fully utilize inputs through innovation, of course, but also less obviously through partnerships with other businesses, with governments, and with NGOs. Finally, transparency and traceability will enable these new value chains by breaking down information asymmetries critical to maximizing recycled material use in new products.

Through centering the circular economy on resource efficiency, consumers, companies, and agencies can address the fundamental issue of consumption habits, the key barrier to sustainability. Minimizing or stopping waste production requires the full use of resources, including what are traditionally defined as byproducts. To reduce waste, consumers, governments, and firms should focus on achieving maximum utility while minimizing the use of finite resources. While recycling may often contribute, a circular economy will move beyond recycling to consider durability, reuse models, and opportunities to value waste products.

Durability may be the simplest form of increasing resource efficiency through extending the useful life of products, preventing the need for additional processing and incentivizing reuse. A ceramic mug or metal bottle commonly found in many homes is a more durable product than a plastic water bottle, while offering more potential uses. While a simple example, this paradigm applies broadly across commonly consumed goods and most sectors. Durable models are simple yet effective in decreasing waste through extending product life.

Reuse models, inclusive of remanufacturing and recycling, rely on the restoration of end-of-life products to a state similar to—and often better than—new. Ikea is actively engaging in reinventing its business around reuse. Beginning with recycling, the vendor has changed its portfolio to achieve 60 percent of products with renewable materials and 10 percent with recycled materials. Ikea has also enabled repair models such as offering free fasteners to consumers to help them extend the useful life of their furniture. Finally, Ikea’s sell-back program explores re-use as a business model by providing store credit for returning built furniture to be remarketed to consumers. While these programs are in their infancy and may not yet have a large impact, the exploration of these three models demonstrates how business can restructure around re-use to support customers in avoiding waste—while generating new lines of revenue and higher quality of service.

Beyond reuse models, full use models aim to utilize all input materials. A full use model aims to value materials traditionally treated as waste to maximize production from raw materials—or, put simply, would aim to maximize use of raw materials while minimizing waste. Harsco Environmental has transitioned its business toward helping aluminum and steel producers maximize usage from waste, becoming an environmental services company. Harsco’s solutions aim to move traditional waste streams into useful materials. For example, the firm sells steel slag, a waste product traditionally discarded, to CarbiCrete, which manufactures cement blocks from the slag with lower cost (20 percent), better performance (30 percent) and negative CO2 emissions. Models and partnerships such as Harsco and CarbiCrete’s are essential to achieving the circular economy by fully using materials regarded as waste to displace virgin materials.

Indeed, these examples show that finding new partnerships is critical to making circular business models work. These changing value chains enable resource efficiency through providing new pathways to bring goods to and from consumers and the market or unlock opportunities to value waste. While individual companies can seek out these partnerships, this is often done through industry engagement including a breadth of initiatives such as Global Plastic Action Partnership, Circular Electronics Partnership, Global Battery Alliance, and many others.

As an example, the plastic partnership “brings together policymakers, businesses, civil society advocates and entrepreneurs to align on a common approach for addressing plastic pollution and waste in the most effective and sustainable manner.” While often perceived as superficial, industry associations can foster collaboration between different stakeholders critical to enabling broad action across the sector by enabling the exchange of information. They can also catalyze action. Since 2010, the Ellen MacArthur Foundation has developed resources for companies to adopt circular practices—cultivating a network of industry leaders including BlackRock, Ikea, Nestle, Coca Cola, and Unilever. While often intangible, these relationships can catalyze action and develop partnerships across industries.

Companies must be innovative on their own to find uncommon partners aimed at pursuing circular initiatives. These associations often center on repurposing one party’s waste to become an input for an unlikely industry. Timberland has partnered with tire manufacturer Omni United to recycle used tires into footwear soles containing 35 percent recycled rubber. Heineken, a brewer, uses a local sawmill’s waste heat to displace 40 percent of its needs. Both Timberland and Heineken demonstrate how uncommon partnerships across industry can foster new value chains to maximize resource efficiency. These partnerships are enabled through information sharing around what is considered to be waste and center on the needs of parties to generate mutually beneficial solutions.

Achieving a circular economy will rest in capitalistic incentive structures. In other words, and as illustrated by the example of single-use water bottles, can a company bring products to market such that a consumer values them more than their substitutes? Doing so requires traceability and transparency to break down information asymmetries that can create skepticism for consumers on the overall credentials of a product and limit buyers’ willingness to pay premiums for products aligned with their values. Breaking down asymmetry may address issues of stated versus revealed preferences by increasing consumer confidence they can achieve their choices. For example, consumers state they value longevity and durability but their purchasing decisions are often misaligned with these preferences. To counter this tendency, firms can leverage technology to demonstrate product credentials.

Rio Tinto, a global mining company, is leveraging internet blockchain technology with its START program to demonstrate the environmental intensity of their products. Data from each major event in the aluminum lifespan are stored in blocks, which are connected in a chronological chain. Each block receives a time stamp, verifying information and providing traceability and provenance on aluminum from mine to market. START has enabled partnerships with Ford, Volvo, and other auto manufacturers, circumventing metal exchanges and generating value for all parties. Volvo president and CEO Martin Lundstedt specifically called out the value chain opportunity linking material sourcing to solutions provided to customers. Identifying clear product credentials has broad applicability to circular opportunities and should aid in the valorization of end-of-life aluminum products produced under this program.

Substantial waste reduction can require traceability over generations. Material passports are an intervention aimed at addressing multi-generational transparency covering the full asset life cycle of a composite building—recognizing that materials can be used beyond the first structure’s endpoint. This intervention has a long life and its infancy limits analysis of its impact. Despite this, Metabolic, a circular economy thought leader, demonstrated in Amsterdam 2.6 million tonnes of building materials are released each year through renovation and demolition within the city, with a value of €688 million. The Building As Materials Banks, a 15 partner collaboration in Europe, is piloting material passports. Findings from these initiatives, among others, demonstrate that the increased transparency and traceability through material passports support sustainability objectives through enhanced material recovery—but require refinement before broad adoption.

As illustrated by the examples above, recycling is just a first step in re-imagining progress toward a circular economy. We must rethink consumption, from consumer buying patterns to resource efficiency. These advances will require fresh perspectives, new collaboration avenues, and traceability throughout value chains. Fundamentally, these solutions demand that we change the way we perceive, utilize, and value the material resources in our environment, and shift away from the idea of waste as an acceptable outcome.

Herein lies the solution to the initial question of how we can take action to reduce waste. Recycling models have been demonstrated to be ineffective in many instances when balanced with how consumption occurs. Moving beyond recycling to aim for zero waste through resource efficiency is essential for sustainable consumption. But how can policymakers and businesses support resource efficiency?

The answers to complex challenges of resource scarcity and environmental pollution are not as simple as, say, banning single-use plastic water bottles. Current regulations require accuracy in sustainable product claims. Policies to support more thoughtful choices—in the words of an economist, to integrate the cost of externalities—will achieve more good than simple product bans. In doing so, governments fulfill their role of maximizing societal good through helping consumers make informed choices.

The government, however, does not have all the solutions we need to these increasingly complex problems. Innovators are showing how to make products that support those claims: through designs that minimize waste; partnerships that enable creative synergies and break down market barriers; and material transparency and traceability. Policymakers can create space for innovators through funding programs, industry-based initiatives, and other forms of support, enabling a new generation of circular solutions.

In the words of Aldo Leopold, “The hope of the future lies not in curbing the influence of human occupancy—it is already too late for that­—but in creating a better understanding of the extent of that influence and a new ethic for its governance.” We have that opportunity now, to go beyond aspirations to make practical progress toward a more circular economy. TEF

CROSS-EXAMINATION While there are constraints, there are also solutions to meet the circular economy’s challenging aspirations. Going further, business and humanity as a whole must change consumption patterns to build a sustainable society within planetary boundaries.

Bird Poop and Sovereignty at Bay: The Strange Fate of Navassa Island
Author
Bruce Rich - Environmental Law Institute
Environmental Law Institute
Current Issue
September-October 2021
Issue
5
Bruce Rich

Imagine a tiny uninhabited islet in the Caribbean — smaller than Manhattan’s Central Park — where over two decades ago researchers were astonished to identify more than 650 species, discovering some 500 new insects and spiders, of which nearly a third are endemic. They found new lizard and fish species, and large colonies of seabirds. Navassa Island, 40 miles off the western coast of Haiti, is the longest continually claimed U.S. foreign possession.

But has Navassa ever legitimately belonged to the United States?

Christopher Columbus described it in his journals, joining Navassa to the Spanish Empire until 1697, when Spain conveyed to France the western third of Hispaniola with its adjacent islands. By the late 18th century the French colony St. Dominique exported nearly half the world’s sugar and coffee, produced by 500,000 slaves under such brutal conditions that average life expectancy for landed Africans was six years. The only successful slave revolt in history ensued, entailing the defeat of 50,000 of Napoleon’s troops in 1804.

The liberated Africans called the new nation Haiti, honoring the indigenous Taino Indian name meaning “mountainous land.” The Tainos numbered hundreds of thousands in 1492. They were totally exterminated by 1540 and replaced by black slaves. Every Haitian constitution in history but one (written under a U.S. Marine Corps occupation from 1915 to 1934) claims the adjacent offshore islands. Starting in 1825, France, Britain, and several other European countries officially recognized Haiti — but not the United States until Abraham Lincoln acted in 1862.

U.S. overseas expansion began with the seizure of Navassa under the 1856 Guano Islands Act. The law asserted the United States could occupy uninhabited, unclaimed islands with guano deposits anywhere in the world. Guano, the nitrogen-rich feces of seabirds, was then a prized fertilizer commodity. The act was ambiguous: guano islands would “appertain” to the United States, and claims could terminate when guano mining ended.

In 1857 an American sea captain arrogated Navassa under the act, working with a Baltimore company to extract the guano. Haitians had fished around the island for decades, and even built a small chapel there. The Haitian government sent two small vessels to stop the American activities, and the company appealed to President James Buchanan for help. Buchanan forcefully rushed to defend U.S. rights to bird excrement, sending a warship to threaten the Haitians.

Haiti’s commercial agent in the United States, a Boston merchant, wrote to Buchanan’s secretary of state, arguing the “perfect legal title” of Haiti’s sovereignty over Navassa, noting the 1825 French recognition of the new country and “all of its dependencies.” The State Department rebuffed him.

The Baltimore-based Navassa Phosphate Company hired former slave overseers to manage the guano workers. In 1889 abuse bordering on torture of 140 African American contract laborers led to a revolt and the killing of five hated overseers. A U.S. circuit court condemned three to death, and 57 others to prison. On appeal the Supreme Court in Jones vs. U.S. (1890) ruled against the defense argument that the United States had no jurisdiction over Navassa. The Court declared “it is not material to inquire, nor is it the province of the Court to determine, whether the executive be right or wrong [in denying Haitian sovereignty]; it is enough to know that in the exercise of his constitutional functions he has decided the question.”

The company went bankrupt in 1901. The island’s administration passed to the U.S. Navy, and later to the Coast Guard until 1996, when the Interior Department took over, designating Navassa in 1999 as a National Wildlife Refuge. Haiti’s claim gained Cuba’s support in 1958, followed later by Nicaragua, Venezuela, and Ecuador. In 1989 Haitian amateur radio operators briefly occupied the island, setting up a Radio Free Navassa transmitter, and in 1998 a Haitian oceanographer established the Navassa Island Defense Group.

Interior and the National Oceanic and Atmospheric Administration conduct valuable research on Navassa, and have on occasion invited Haitian scientists to participate. So is legal sovereignty a distraction with no real consequence? It’s not an edifying sight to behold the world’s richest country, wrote historian Ted Widmer in 2007 on the sesquicentennial of the United States’ Navassa claim, disputing with the Western Hemisphere’s poorest nation ownership of an uninhabitable rock covered with bird droppings. An international trust for research and conservation administered as a condominium by the United States and Haiti might be a solution. In practice, not much would change, but in a world rift by authoritarian rulers aggressively asserting contested territorial claims it would be an important gesture of soft power for the United States.

Bird Poop and Sovereignty at Bay: The Strange Fate of Navassa Island.

Infrastructure: The Rocky Path to a Carbon-Neutral Economy
Author
Craig M. Pease - Ph.D Scientist and Former Law School Professor
Ph.D Scientist and Former Law School Professor
Current Issue
July-August 2021
Issue
4
Craig M. Pease

Physical infrastructure is the backbone of modern society, as evidenced by the recent failures of the Texas electric grid and Colonial gas pipeline, and the temporary halt of Mississippi River barge traffic due to a cracked bridge. Critically, most of our existing physical infrastructure was designed for, or derived from, fossil fuels.

To transition to a carbon-neutral economy, we must replace most existing infrastructure. Many assume the proposed spending will facilitate a transition to neutrality. Yet infrastructure is also technology. And there lies the rub.

Consider the perennial darling of infrastructure spending — the ubiquitous two-lane undivided highway. Simple though it be, embedded in it are the technologies inherent in the manufacture and transport of asphalt, gravel, and culverts, and all the technologies present in the facilities that manufacture heavy equipment. That road’s civil engineering allows it to withstand rain, snow, ice, and the heavy trucks that transport goods for our supply chains. When we spend money on infrastructure, we simultaneously purchase technology, engineering, and institutions.

Infrastructure spending faces a Hobbesian choice. Fossil fuel technologies have a record of success but put society at risk of a climate catastrophe. Newer, more carbon-neutral technologies have no guarantee of success. Developing and deploying any new technology faces severe practical problems. Most novel technologies fail before full commercialization. I am not surprised that most of the proposed infrastructure spending relies on fossil fuel-era technology such as roads, with only a small slice directed to newer technologies such as lithium batteries and solar panels.

Human societies are limited in how rapidly they adopt new technologies. The environmental scientist Vaclav Smil identifies only three energy transitions in human history as momentous as the proposed transition from fossil fuels: fire (capturing energy in wood), agriculture (a new way to capture solar energy), and the industrial revolution (transition from wood to fossil fuels). The most rapid was the adoption of fossil fuels. It took over a century and played a central role in a world war.

The Technology Readiness Level scale, originally developed by NASA and now employed more widely, quantifies the long road a new technology faces, from initial proof of concept in a research laboratory, to full commercialization. At TRL levels 1 to 5, the technology is entirely within science and engineering laboratories (e.g., fusion and many novel battery technologies), while at TRL levels 6 to 9 the focus shifts to the real world, with pilot programs (e.g., carbon capture and storage), and increasingly broad commercialization (e.g., solar panels, and software to control residential electricity demand).

When initially deployed in the real world, new technologies are typically not economically competitive. Before reaching full market penetration, even superior technologies typically face substantial economic barriers. Each doubling of market size reduces cost modestly. Full commercialization entails many doublings, with a huge decrease in unit cost.

SunEdison founder and energy entrepreneur Jigar Shah now heads the Department of Energy’s obscure Loan Programs Office. It is critical to efforts to transition the United States from fossil fuels, by providing loans and loan guarantees to help overcome the economic barriers to commercialization.

Solar panels, modern batteries, wind turbines, silicon chips, and hard drives are incredibly complex technologies. They contain over 30 metals, some one-third of all metals in the Periodic Table of Elements, including tantalum, neodymium, terbium, gallium, cobalt, lithium, and molybdenum. Some of those metals are rare earths, and there is exactly one rare earth mine in the United States, with its relatively strong environmental and labor protections.

Most of the supply of those metals is sourced internationally, from Bolivia, Congo, Vietnam, Russia, and China, among many others. The metals underlying these “green” technologies carry a litany of problems, including human rights violations, immense water use, pollution, political corruption, lax labor protections, financing wars, and displacing Indigenous peoples.

Moreover, these green technologies would not exist without global supply chains, operated by multinational corporations and protected by the U.S. Navy, which institutions burn massive amounts of fossil fuels.

To address climate change, there is an alternative great technology that is readily available, reliable, and cheap. Using primarily the technology of 1900, augmented in small and critical ways with modern tech, we could provide everyone on Earth with a high quality of life. Before we ever try that, we will no doubt first make a futile attempt to transmogrify our existing fossil fuel infrastructure.

Craig M. Pease is a Ph.D. scientist and former law school professor based in New England. Email him at: pease.craig@gmail.com.

Infrastructure: The Rocky Path to a Carbon-Neutral Economy.

No Big News Yet From a Changed Court’s Environmental Docket
Author
Bethany A. Davis Noll - NYU Law’s State Energy & Environmental Impact Center
NYU Law’s State Energy & Environmental Impact Center
Current Issue
July-August 2021
Issue
4
Bethany A. Davis Noll

With the addition of Justice Amy Coney Barrett to the Supreme Court this term, environmental advocates are alert for inklings of how the Court’s new makeup will affect their work. What is notable is just how little has changed so far. Decisions this term show continued respect for states’ rights and a refusal to inject the Court into policy disputes.

Several cases settled disputes between states, in a way that emphasized the Court’s special solicitude toward state sovereignty and illustrated the heightened impact of climate change. In Florida v. Georgia, the two states argued over whether Georgia as the upstream state overused water from the Apalachicola River, causing the collapse of Florida’s downstream oyster fishery. The Court emphasized Florida’s high burden, given the “competing sovereign issues” in the case, and ultimately held that Florida had not carried its burden, given other significant causes for the collapse, including climatic factors such as seasonal rainfall changes.

In another case, New Mexico and Texas disputed implementation of their Pecos River Compact, after a tropical storm caused heavy rains. Texas had asked New Mexico to store water upstream to avoid flooding in Texas, but a significant amount of the water evaporated while stored. New Mexico then wanted credit for the evaporated water. Placing a strong emphasis on the agreement between the states, the Court gave New Mexico the credit.

With more severe storms and changing weather patterns a reality now, the Court’s natural resources docket is likely to continue to include more state-versus-state cases like these.

PennEast Pipeline Co. v. New Jersey also directly implicates states’ rights. The case is about whether a pipeline company can use delegated eminent domain authority under the Natural Gas Act to seize state land without the state’s permission. New Jersey has argued that the statute lacks a clear statement abrogating state sovereign immunity. Undecided at press time, the case is interesting because it pits gas interests against a state’s right to protect its parkland.

In another set of cases, the Court has so far declined the invitation to decide policy issues that are not squarely presented — or to rock the boat too much in general.

BP P.L.C. v. Mayor and City Council of Baltimore is one of many cases where a state or municipality alleges that oil and gas companies concealed environmental harms of fossil fuels, and defendants have removed the case from state to federal court. Ordinarily, a remand order is not appealable. But in 2011, a federal statute made remand decisions reviewable when the defendants relied on federal officer removal authority in the U.S. Code. In this case, after a remand order, the court of appeals held that reviewability applied only to the federal officer removal issue. But the Supreme Court reversed, holding that all the removal grounds could be reviewed. The companies had also asked the High Court to settle whether the case should be heard in state or federal court. The Court ducked that contentious issue though, deciding only the extent of appellate review.

Similarly, in Fish and Wildlife Service v. Sierra Club, the Court issued a Freedom of Information Act decision with the potential to affect environmental advocacy, but the ultimate holding will likely lessen its impact. FOIA requests are a significant source of pressure for environmental advocates. For example, Sierra Club FOIA requests uncovered former EPA administrator Scott Pruitt’s travel boondoggles and decision to enlist an aide to attempt to obtain a Chick-fil-A franchise for his wife, leading to ethics investigations and likely contributing to his mid-2018 resignation.

In this year’s case, the Sierra Club sought disclosure of a Department of the Interior analysis finding that a proposed EPA rule would jeopardize certain fish species. The Court held that the analysis was protected by the deliberative-process privilege because it was treated as a draft and concerned an option that “died on the vine.” Because EPA ultimately finalized a different rule, the Court analogized the analysis to an email or memorandum about a draft rule. Though advocates worried the case would allow agencies to withhold anything stamped “draft,” the decision is not likely to meaningfully extend the privilege.

Several petitions for certiorari that are pending seek review of the D.C. Circuit’s decision vacating the Trump administration’s Affordable Clean Energy Rule. Petitioners are asking the Court to settle how the Clean Air Act applies to greenhouse gases from existing power plants. But the Biden administration is still considering how to interpret the statute. Given the approach that this Court has taken so far to policy disputes, the bedrock rule that courts wait for an agency to take a position before ruling is unlikely to be thrown out anytime soon.

No Big News Yet From a Changed Court’s Environmental Docket.

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