ELI Report
Author
Nick Collins - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
3

ELI helps U.S. efforts to address plastic pollution via coherent, comprehensive study of existing federal legal authorities

There is growing momentum in the United States and at a global level to address the problem of plastic pollution. ELI, in partnership with the Monterey Bay Aquarium, helped the conversation take a big step forward by identifying existing legal authorities to attack the externalities of this ubiquitous and useful material.

In March, ELI published <Existing U.S. Federal Authorities to Address Plastic Pollution: A Synopsis for Decision Makers. This report identifies legal means for the federal government to leverage in achieving the national goal of eliminating plastic released into the environment by 2040. Building on the legal framework established by a congressionally mandated report from the National Academies of Science, Engineering, and Medicine, the ELI report categorizes federal authorities—spanning executive orders, legislation, regulations, and associated programs—into specific “intervention areas” across the plastic life cycle.

The report arrays these intervention areas alongside relevant authorities and their implementing agencies. Through discussions of each authority’s text and traditional application, the report describes how the federal government’s existing authorities can address plastic pollution across various stages of the plastic life cycle. ELI and MBA presented the conclusions of the report at the World Wildlife Fund’s Plastic Policy Summit.

The various intervention areas outlined in the report include reducing plastic production and pollution from production, innovating material and product design, decreasing waste generation, improving waste management, capturing plastic waste from the environment, minimizing at-sea disposal, and supporting information and data collection.

For each of these intervention areas, the report identifies legal authorities and relevant statutes. For example, the report identifies EPA as having authority to reduce plastic production and pollution from production as “Under the Clean Air Act, EPA can consider microplastic as a unique ‘air pollutant.’” The other authorities identified to reduce plastic production and pollution from production include those possessed by the Council on Environmental Quality, Occupational Safety and Health Administration, and Food and Drug Administration.

In great detail, the report documents each of the remaining intervention areas and relevant legal authorities, including, but not limited to, Consumer Protection Safety Commission, Department of Energy, Internal Revenue Service, Department of Commerce, and Department of Agriculture.

Notably, major environmental laws are cited as legal pathways, including the Toxic Substances Control Act, Clean Water Act, Coastal Zone Management Act, Resource Conservation and Recovery Act, Clean Air Act, Endangered Species Act, and more.

The report can also be used to conduct a gap analysis to identify specific aspects of addressing plastic pollution on which no existing authorities exist. ELI will continue its partnership with the Monterey Bay Aquarium on this important work.

Preparing for environmental accountability in Ukraine war

Beyond the devastating human toll of the war in Ukraine, the natural environment has also been a significant casualty. There have been chemical releases from damaged industrial sites, the militarization of nuclear sites, destruction of Kakhovka dam and the ensuing flood damage, impacts on air quality from the devastated cities and burned forests, ecological consequences of damage to agricultural areas and natural resources, water pollution and destruction of water infrastructure, pillage of natural resources, and pollution of sensitive terrestrial and marine areas. These impacts extend beyond the borders of Ukraine. Addressing this damage is a critical part of accountability and recovery.

Since convening the First International Conference on the Environmental Consequence of War in 1998, ELI has been a leader in informing the operation of mechanisms for accountability and post-war recovery, particularly with respect to the law, science, and economics of wartime environmental damage. This includes the UN Compensation Commission through which Iraq compensated Kuwait for wartime environmental damage to its oilfields, desert, and marine environment.

In preparation for recovery efforts in Ukraine, ELI is working with its government and other international partners to prepare for accountability and recovery. ELI supported the International Working Group on the Environmental Consequences of War in the development of “An Environmental Compact for Ukraine” and is continuing to advise on the legal, scientific, and economic dimensions of accountability for wartime environmental damage, to facilitate this effort and improve the effectiveness of environmental claims.

Food for thought: ELI’s submissions to EPA on food waste

Earlier this year, ELI submitted comment letters to EPA responding to the agency’s Draft National Strategy for Reducing Food Loss and Waste and Recycling Organics. The Institute proposed updates to EPA’s Waste Reduction Model, known as WARM, a spreadsheet-based tool for analyzing the potential lifecycle emission and energy savings of various waste management practices.

These comments build on the work of ELI’s Food Waste Initiative, which conducts research and works with stakeholders to prevent waste, increase surplus edible food donations, and recycle the remaining scraps.

One comment regarding the Draft National Strategy is summarized on our blog at go.eli.org/qvh.

The remaining two comment letters emphasized the importance of developing the data and tools needed to conduct comprehensive lifecycle greenhouse gas impact assessments for zero-waste strategies of source reduction, reuse, and recycling, particularly for food waste.

ELI points out that climate action planning relies on GHG inventory accounting, in which waste-sector data only capture emissions from product end-of-life to final disposition—for example, shifting from landfill to composting or anaerobic digestion. Yet by one estimate, more than 85 percent of GHG emissions associated with food waste occurs in the supply chain upstream from the landfill.

The ELI comments commend the lifecycle framework of the WARM model: it projects avoided upstream GHG emissions from food waste source reduction and donation, and downstream carbon sequestration gains from land application of recycling food scraps. However, they recommend several model modifications.

These include adding in the impacts from avoided land use change, which is responsible for over half the GHG reductions according to some estimates, and differentiating where in the supply chain from farm to households the food loss or waste is prevented. They further recommend development of improved data identifying the extent of changes in prevention, edible food recovery and recycling attributable to specific policies and programs.

Existing Federal Authorities to Combat Plastics Pollution.

Food Waste Prevention Resource Guide Series
Author
Linda K. Breggin
Jordan Perry
Tori Rickman
Sarah Backer
Taalin RaoShah
Date Released
April 2024
Food Waste Prevention Resource Guide Series

ELI created the Food Waste Prevention Resource Guide Series (funded by Urban Green Lab with support from the Posner Foundation of Pittsburgh) to provide ready-to-use, vetted, and science-based resources for classrooms, households, and workplaces. The Guides provide a range of resources, such as lessons plans and research reports, on specific food waste prevention strategies, including: Date Labels; Packaging Design and Use; Meal Prepping and Kits; Plate and Portion Size; and Storage and Freezing. This PDF compiles all five resource guides into one document.

 

State and City Food Waste Reduction Goals: Context, Best Practices, and Precedents
Author
Carol Adaire Jones
Date Released
January 2024
Cover Page

ELI’s Food Waste Initiative is publishing a Research Brief Series to present takeaways from the Initiative’s research, spanning a range of topics important to food waste prevention, recovery, and recycling. To access other research briefs in the series, visit: https://www.eli.org/food-waste-initiative/publicationsState and City Food Waste Reduction Goals: Context, Best Practices, and Precedents reviews the status of food waste reduction goals in the United States.

ELI Report
Author
Nick Collins - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
6

Research Paper Filling the gaps in state programs to protect Waters of the United States in a post-Sackett world

The wake of May’s Supreme Court decision in Sackett v. EPA, combined with a rule change issued by the agency in August, has shifted the legal protections afforded to Waters of the United States, known commonly as WOTUS, under the federal Clean Water Act. These actions place a substantial burden on state and tribal regulators and legislators to protect waters within their jurisdiction.

In May, ELI published a research paper titled Filling the Gaps: Strategies for States/Tribes for Protection of Non-WOTUS Waters. The study identifies which states are reliant on the federal agency’s definition for protection of freshwater wetlands and tributaries from dredge and fill, which states have limited coverage for non-WOTUS waters, and which states have comprehensive permitting programs applicable to their waters that may fall outside of federal coverage under the act.

The report goes in depth into states with fairly comprehensive permitting programs applicable to their waters (i.e., wetlands) including those that fall outside the coverage of the federal CWA. These are California, Connecticut, Florida, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin. This section also makes comparisons between states in this category, demonstrating how the coverage of these programs varies.

The study includes a number of states that have adopted specialized laws and regulations, or in some states case-by-case review practices, that are expressly intended to fill identified gaps in federal CWA coverage. These states provide some regulatory protections for identified classes of non-federal waters, including certain of their nontidal wetlands.

Some states provide regulatory authority and funding to specific activities affecting protected waters. The seven states with limited or gap-filling regulatory coverage are: Arizona, Illinois, Indiana, North Carolina, Ohio, West Virginia, and Wyoming, plus the District of Columbia. The report includes a comparative analysis among all of these regulations.

In addition to statewide programs, the report looks at alternative or supplemental approaches that may protect non-WOTUS waters. These approaches include state or local regulations of activities to protect buffer areas adjacent to waters and wetlands; local regulation of wetlands/waters (as authorized by state law or by home rule); regulation of particular activities rather than of specified waters; conservation planning; water quality standards for certain non-WOTUS water; conservation banking with protection for wetlands/waters; voluntary conservation and restoration programs; and hazard mitigation or resilience.

The study also includes an analysis of tribal wetlands programs. The CWA authorizes EPA to treat tribes with reservations as similar to states, allowing these tribes to administer regulatory programs and receive grants under CWA authorities.

Tribes may also develop regulatory programs under tribal law and create non-regulatory programs to protect, manage, and restore wetlands on their lands. More than 40 tribes have submitted independent wetland program plans. Tribal wetland programs, as do state programs, vary widely.

A good deal of investment is needed at the state and local level to ensure that the critical functions provided by wetlands and other waters are not lost.

TSCA conference takes up reducing PFAS in the environment

The Toxic Substances Control Act Annual Conference is hosted by ELI, Bergeson & Campbell, P.C., and the George Washington University Milken Institute School of Public Health. Each year, the conference brings together premiere TSCA experts to reflect on challenges and accomplishments since the implementation of the 2016 Lautenberg Amendments.

This year, Lynn Bergeson and Bob Sussman started off the program with broad reflections on the current state of TSCA implementation. Following that, EPA Assistant Administrator Michal Ilana Freedhoff gave a keynote discussion, announcing the EPA Framework for Addressing New PFAS and New Uses of PFAS.

The first panel discussed various aspects of EPA’s risk evaluation of chemical substances. The panelists covered the agency’s potential use of European Union REACH data, EPA’s use of new approach methodologies, the effectiveness of a “whole chemical approach” to risk determinations, and the incorporation of cumulative risk assessment in TSCA risk evaluation.

The second panel discussed EPA’s authority under the Lautenberg Amendments to manage chemical risks. The discussion included how the agency manages workplace risks, enforcement mechanisms for risk management restrictions, whether EPA’s risk management rulemakings are adequately addressing environmental justice concerns, and potential legal challenges to final risk management rules.

This year’s conference featured five former assistant administrators who oversaw EPA’s toxics office.

The third panel discussed new-chemical review under the 2016 revision of TSCA. Panelists covered transparency, processes to guide new-chemical review, new approaches to assess chemical risks, concerns for workers and fenceline communities, and recent trends with EPA’s review of new-chemical substances.

The final panel discussion covered the unique role of TSCA, as compared to other EPA programs, in addressing the issue of PFAS. Experts discussed the agency’s working definition of PFAS, the effectiveness of TSCA implementation in addressing PFAS, whether PFAS should be regulated on a category or chemical-specific basis, and more.

Speakers included Shari Barash, Lynn Bergeson, Madison Calhoun, Jordan Diamond, Maria Doa, Emily Donovan, Alexandra Dapolito Dunn, Richard E. Engler, David Fisher, Michal Ilana Freedhoff, Eve Garnet, Lynn Goldman, Ben Grumbles, Rashmi Joglekar, Jim Jones, Jonathan Kalmuss-Katz, Matt Klasen, Pamela Miller, Jeffery Morris, W. Caffey Norman, Steve Owens, Steve Risotto, Daniel Rosenberg, Jennifer Sass, Robert Sussman, Brian Symmes, and Meredith Williams.

ELI members can access a recording of the entire TSCA conference and all associated materials as part of their membership on the ELI website.

Nashville signs order on reducing food waste

A new Model Executive Order on Municipal Leadership on Food Waste Reduction developed by the Environmental Law Institute and Natural Resources Defense Council can help localities reduce the amount of food wasted throughout municipal operations, highlight the importance of reducing food waste, and demonstrate food waste reduction measures that businesses and other entities may voluntarily replicate.

The model was developed as part of ELI’s Food Waste Initiative, which aims to help stakeholders meet U.S. food loss and waste goals by implementing public policies and public-private initiatives to prevent food waste, increase surplus food rescue, and expand scrap recycling.

Up to 40 percent of food in the United States is wasted. Local governments are well-positioned to address the problem. Given the large amount of food that some municipalities procure and the many people that they employ, the impact of food waste reduction measures in municipal operations can be substantial.

The model offers a range of municipal measures to reduce food waste that include staff training and hiring, procurement policies, and employee benefits.

Recently, Nashville adopted a resolution in support of two key measures in the model: a food waste reduction goal and adoption of best food waste reduction practices by municipal departments.

Filling the Gaps in State Programs to Protect WOTUS

ELI Report
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
6

ELI at the UN Institute advances rule of law, peacebuilding, and ocean conservation at key international conferences last summer

Fifty years after the United Nations’ first global Conference on the Human Environment, world leaders convened in Sweden this past June to take stock of environmental governance achievements and work toward the next era of sustainable development. At this year’s Stockholm+50 conference, ELI played a key role in two official side events and engaged in several other panels to promote environmental peacebuilding and environmental rule of law.

On June 2, ELI partnered with the Environmental Peacebuilding Association, Geneva Peacebuilding Platform, and PeaceNexus to convene an official side event on Improving Sustainable Development by Integrating Peace. The panel was moderated by ELI Senior Attorney Carl Bruch and featured Research Associate Shehla Chowdhury. Speaking to a full house, panelists discussed the connections among peacebuilding, sustainable development, and conservation by highlighting illustrative case studies and initiatives.

On the same day, ELI also co-sponsored an official side event on Judges, the Environmental Rule of Law, and a Healthy Planet Since the 1972 Stockholm Declaration. Participating judges included several long-time partners of ELI, including Justice Antonio Benjamin of Brazil, head of the Global Judicial Institute on the Environment, Justice Brian Preston of New South Wales, Australia, Justice Mansoor Ali-Shah of Pakistan, and Justice Michael Wilson of Hawaii—all leading champions of climate action.

Prior to the official Stockholm+50 conference, the Institute also co-sponsored a two-day Symposium on Judges and the Environment: The Impact of the Stockholm Declaration in Shaping Global Environmental Law and Jurisprudence. At the event, President Emeritus and International Envoy Scott Fulton presented ELI’s Climate Judiciary Project. The program is the only one in the world working to equip judges with the basic climate science education needed to administer justice in climate-related cases. Fulton shared that the project is now looking to pivot internationally, with the goal of sharing the same knowledge base with justices around the world.

Later in the summer, ELI Oceans Program Director Xiao Recio-Blanco and Visiting Attorney Patience Whitten joined the UN Ocean Conference in Lisbon, Portugal, from June 27 to July 1. As part of the summit’s events, ELI hosted the Future of Food Is Blue panel, in partnership with the Environmental Defense Fund, World Wildlife Fund, Rare, the Government of Iceland, and others. The event formally launched the Aquatic Blue Food Coalition, which promotes fish, shellfish, plants, and other aquatic foods to address food security and climate.

Recio-Blanco spoke at a reception immediately following to share ELI’s research on sustainable fisheries, highlighting the Law and Governance Toolkit for Sustainable Small-Scale Fisheries, published in 2020. The toolkit helps legal drafters develop effective policy mechanisms to sustainably manage small-scale fisheries.

Advancing migration with dignity through innovative research

Climate change, war, economic insecurity, and a myriad of other global issues have accelerated internal displacement and global migration. Yet migrants typically suffer many indignities during their transition to a new place, and existing institutions often fail to recognize their basic human rights. In response to this challenge, ELI and its partners have undertaken groundbreaking work on Migration With Dignity, a framework that offers legal and policy options for governments, policymakers, and nonprofits to uphold the dignity of migrants. The concept builds upon the policies of former President of Kiribati Anote Tong, who asserted the need for the people of Kiribati to maintain their autonomy and standard of living throughout the migration experience.

A recent special issue of the Journal of Disaster Research reflects a collaboration between ELI and the Dignity Rights Initiative, the Delaware Law School, the UN International Organization for Migration, and the Ocean Policy Research Institute. ELI Senior Attorney Carl Bruch co-authored two articles, Migration With Dignity: A Legal and Policy Framework, and The Methodology and Application of a Migration With Dignity Framework, along with Shanna N. McClain, NASA disasters program manager and former ELI visiting scientist.

Migration With Dignity: A Legal and Policy Framework considers a variety of migration contexts and identifies policies that work and gaps that exist for considering the dignity of migrants. Meanwhile, The Methodology and Application of a Migration With Dignity Framework provides a methodology for considering the social and legal dimensions of the Migration With Dignity framework. The issue also discusses the intergenerationality of immigrants in adapting or assimilating into their new environment, and how mass media affects perceptions of migrants in host countries.

ELI is continuing its work on Migration With Dignity through a new grant from the United Institute of Peace, which explores the potential of the framework to prevent and mitigate conflicts. Through research, dialogue, technical assistance, and capacity-building, the Institute seeks to strengthen legal protections for people displaced across national borders through its Environmental Displacement and Migration program.

Report on mining in Amazon identifies major corruption risks

In July, ELI and its partners contributed to Corruption in Artisanal and Small-Scale Mining in the Peruvian Amazon, a study prepared for USAID as part of the agency’s Prevenir Amazonías project. The Prevenir project aims to prevent and reduce the three greatest threats to the Peruvian Amazon: wildlife trafficking, illegal logging, and illegal mining. According to USAID, the project “works with the Government of Peru and civil society to improve the enabling conditions to prevent and combat environmental crimes.”

The guide represents the third in a series of reports developed by ELI for the project. The first, published in 2021, discussed the incorporation of wildlife trafficking into Peru’s organized crime law. Another, released in 2022, detailed best practices for prosecuting and sanctioning wildlife trafficking crimes.

The new report identifies corruption risks in the value chain of the gold derived from artisanal and small-scale mining in the Peruvian Amazon. In doing so, the report addresses the complex reality of mining in an analytical and evidence-based manner. Collaborating with local experts and professors, ELI analyzed interviews and conducted surveys of stakeholders involved in the gold mining value chain, including government officials, specialized prosecutors in environmental matters, and the chiefs of Amazonian Natural Reserves in which illegal mining often takes place.

The report then proposes regulations and governance mechanisms to mitigate these risks.

Sandra Nichols Thiam, ELI associate vice president of research and policy, served as project manager, and Elissa Torres-Soto, staff attorney, served as principal researcher and writer. Research Associate Georgia Ray, Staff Attorney Kristine Perry, and Visiting Attorney Vera Morveli also contributed to the research.

Geared toward policymakers, the study pinpoints the incidents where corruption is more likely to occur, and the factors that make corruption more likely. The Prevenir project is now focused on conducting outreach to spur dialogue and action on the report’s recommendations, especially to members of the Peruvian Congress who are beginning to address these issues.

ELI’s work on the Prevenir project situates within the Institute’s longstanding Inter-American Program. Since 1989, the program has worked in more than 20 countries in the region, with an extensive network of local partners to promote strategies of sustainable development and the conservation of natural resources.

In coming years, ELI plans to release another report under the Prevenir project on the use of amicus curiae in environmental crime cases in Peru, aimed at law students and members of NGOs.

 

ELI in Action Dialogue on the right to a healthy environment

In July, ELI partnered with Delaware Law’s Global Environmental Rights Institute, Barry University’s Center for Earth Jurisprudence, the American Bar Association Section of Environment, Energy, and Resources, the ABA Section of Civil Rights and Social Justice, and the ABA Center for Human Rights to produce a series of webinars about the right to a healthy environment.

Last year, the United Nations Human Rights Council in Geneva formally recognized the right to a “clean, healthy and sustainable environment” and recommended that the UN General Assembly do the same. In the first webinar of the series, a panel of international leaders from the United Nations and the Sabin Center for Climate Change Law at Columbia University discussed what it might mean for the UN General Assembly to adopt such a resolution. In the second installment, human rights practitioners reviewed the United States’ position on the issue, which continues to evolve. And finally, the third webinar, featuring experts in environmental rights and justice, examined the extent to which states in the United States have recognized or might recognize a right to a healthy environment.

ELI’s Food Waste Initiative is publishing a series of research briefs to present takeaways from the Initiative’s research, spanning a range of topics important to food waste prevention, recovery, and recycling. In May, the Initiative released Social Science Literature Review on Value of Measuring and Reporting Food Waste, authored by Research Associate Margaret Badding and Senior Attorney Linda Breggin. The brief provides an overview of relevant social science literature on the behavioral implications of measuring waste or emissions. Research indicates that simply measuring these components can motivate behavior change, due to increased awareness as well as reputational and financial concerns of measuring entities.

In June, the Initiative also published An Overview of Multilingual Outreach, Translation, and Language Justice Resources. Implementing environmental initiatives requires clear communication with affected communities—including those that speak languages other than English. Written by Research Associate Jordan Perry and Senior Attorney Linda Breggin, the brief highlights best practices for effective and inclusive multilingual outreach and document translation. To be most helpful to organizations with limited time and funds, these best practices are pulled from ready-to-use resources such as checklists and toolkits.

Under the Clean Water Act, states, territories, and tribes restore water quality in part by implementing Total Maximum Daily Loads (TMDLs), which set a maximum level of a pollutant allowed in a given body of water. Evaluating the effectiveness of TMDLs is challenging, yet vital for revealing whether a TMDL and implementation actions are working or should be revised.

In June, ELI published Evaluating the Water Quality Effects of TMDL Implementation: How States Have Done It and the Lessons Learned, a report highlighting the diversity of approaches to evaluating the water quality effects of TMDL implementation. The document explains some of those methods and conveys lessons learned. It also details terminology challenges and identifies relevant resource materials. By facilitating communication among water quality programs, the document aims to generate new ideas and ensure that future TMDL restoration efforts are more effective and efficient.

This past year, ELI hosted a workshop series on Communicating Complex Science: The Challenge of Sea-Level Rise. Funded by the National Science Foundation’s Paleoclimate Program and co-hosted with George Washington University Law School, these discussions brought together scientists, lawyers, and policy professionals to examine opportunities in communicating the science of sea-level rise.

The initial session, focused on explaining the science and attributing the impacts of sea-level rise, was held in November. The panel featured presentations by scientists Andrea Dutton from the University of Wisconsin-Madison and Ben Strauss from Climate Central. Robin Craig from the University of Southern California Gould School of Law facilitated a conversation to set the stage for subsequent sessions on the implications for law and policy.

In May, a follow-up session focused on the legal and policy landscape of sea-level rise included presentations from Astrid Caldas from the Union of Concerned Scientists, Jeffrey Peterson, author of A New Coast, Thomas Ruppert from Florida Sea Grant, and Robin Craig.

ELI Advances Peacebuilding, Ocean Conservation at UN.

ELI Report
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
6

Environmental Liability Using civil lawsuits to protect biodiversity and expand the policy toolkit for conservation

The harmful exploitation of resources — including illegal wildlife trade, fishing, and logging — is one of the top two factors devastating global biodiversity and driving species to extinction. It damages rural livelihoods, robs countries of badly needed revenues, and undermines conservation efforts.

Most countries rely on criminal and administrative enforcement to counter illegal wildlife trade. While these responses can impose fines and imprisonment, they are not focused on remedying the environmental harm.

An international group of conservationists, lawyers, and economists, including ELI Visiting Scholar Carol Adaire Jones and ELI Vice President for Programs and Publications John Pendergrass, is now advocating for the use of environmental liability suits to counter the illegal exploitation of resources and protect biodiversity. Unlike criminal and administrative procedures, these suits can hold responsible parties liable for remedying the harm they have caused, through actions including habitat restoration, species protection, public apologies, and education.

Funded by the U.K. Government’s Illegal Wildlife Trade Challenge Fund and led by Jacob Phelps of Lancaster University, the team advocates that conservation liability suits be used strategically against defendants involved in illegal wildlife trade with the financial means to provide remedies. These include corporations and organized crime groups who are held accountable for restorative actions, typically as a complement to criminal prosecution.

In addition to publishing a paper in Conservation Letters, the team released a guide, Pioneering Civil Lawsuits for Harm to Threatened Species: A Guide to Claims With Examples From Indonesia, which is intended to inform NGOs, government officials, prosecutors, academics, and judges.

Prior ELI research highlighted that laws providing a legal right to remedy for a wide range of environmental harms are already in place in many biodiversity hotspots, including Brazil, China, Democratic Republic of Congo, Indonesia, Mexico, and more. However, these laws are seldom used for a number of reasons. In some cases, governance challenges such as corruption may be a factor. Other impediments include a lack of awareness of the law and a dearth of implementing guidance. In particular, one of the problems cited is difficulty in valuing the damages.

To address this issue, the guide builds on what is called the restoration-based approach for valuing claims. This method values damages based on the cost of restoration projects to remedy the harm to biodiversity and compensate for losses incurred until the resources recover, rather than placing a value on the harm done. Following the 1989 Exxon Valdez oil spill and the subsequent passage of the Oil Pollution Act of 1990, the approach was pioneered in the regulations written to implement the OPA, for which ELI's Jones served as lead economist.

In the United States, the restoration-based approach to valuing damage claims — which has been widely adopted for other liability statutes — has been shown to expedite the restoration of resources after a case is resolved. This approach is also more readily transferable to developing countries than putting a dollar value on the harm.

The report guides practitioners and academics through key concepts and procedures for environmental liability lawsuits, including seeking, presenting, and executing legal remedies. The guide, journal article, and related policy resources can be found at conservation-litigation.org.

Cities can reduce food waste through climate action planning

Cities across the country have pledged to reduce greenhouse gas emissions and develop climate action plans that outline the steps they will take to achieve these goals. However, most existing plans contain few, if any, food waste-related actions. A report by ELI in partnership with the Nashville Food Waste Initiative, A Toolkit for Incorporating Food Waste in Municipal Climate Action Plans, provides model provisions for addressing food waste in local planning, enabling cities to reduce both food waste and greenhouse gas emissions simultaneously.

Climate action plans offer an ideal opportunity for cities to address food waste, a major — yet often overlooked — contributor to climate change. In 2019, 35 percent of food in the United States went unsold or uneaten, leaving a greenhouse gas footprint equal to 4 percent of U.S. emissions. Research by Project Drawdown has identified reducing food waste as one of the top three most impactful solutions for reducing greenhouse gas emissions worldwide.

Addressing food waste also garners many benefits beyond climate change mitigation. Reducing wasted food alleviates food insecurity, conserves natural resources, and saves money by decreasing food purchasing and waste disposal costs.

The toolkit provides a menu of options that includes measures to prevent food waste, rescue surplus food, and recycle food scraps. It is intended to facilitate the widespread adoption of food waste provisions in local climate action and sustainability plans by truncating the time and effort that would be required if a municipality had to start from scratch.

In addition to providing model provisions, the toolkit includes links to example provisions in existing sustainability plans. Strategies and approaches highlighted in the toolkit include policies and ordinances, public awareness and education, incentives and funding, leadership and recognition initiatives, and environmental justice-related efforts.

Nature-based solutions minimize the impacts of disasters

Natural disasters pose a huge risk to people, ecosystems, and property — a risk that will only increase with climate change. One solution is to invest in nature-based hazard mitigation strategies, also referred to as natural or green infrastructure. These actions conserve or restore nature, such as wetlands and floodplains, or use green infrastructure projects like rain gardens, all to minimize the negative impacts of natural disasters.

Nature-based solutions can offer a more cost-effective alternative to “gray” infrastructure, which also increases habitat and biodiversity. Recently, a growing number of funding opportunities through the Federal Emergency Management Agency aim to encourage such strategies. However, to date relatively few nature-based projects have been funded with available grants.

Government entities can develop a strong foundation to apply for this funding by including nature-based strategies in their hazard mitigation plans. These plans are required of states, tribes, and locales for certain kinds of disaster mitigation funding, including grants from FEMA. Plans identify natural hazard risks to communities, create goals for hazard mitigation, and outline actions to address risks.

This spring, ELI released Nature-Based Mitigation Goals and Actions in State and Tribal Hazard Mitigation Plans, a study evaluating to what extent plans are incorporating nature-based goals and actions. Based on a review of all 50 states’ mitigation plans and a small subset of tribal plans, the report identifies a range of practices across jurisdictions, and analyzes areas for improvements in developing nature-based strategies. The study also includes specific plan language that could be used by governments in the future.

In tandem, ELI published an accompanying report, Nature-Based Mitigation Goals and Actions in Local Mitigation Plans, based on an analysis of over 100 local hazard mitigation plans. Both reports identify a number of paths to greater use of nature-based strategies. Although many plans include nature-based goals and actions, government entities can focus on planning for realistic prioritization of these projects. Funding, implementing, and monitoring these projects are also important next steps. Among other recommendations, more demonstration projects, including assessing outcomes with data and monitoring, can also exemplify the benefits of nature-based projects and encourage others to follow suit.

Using Liability Lawsuits to Protect Biodiversity.

Food Waste Co-Digestion at Water Resource Recovery Facilities: Business Case Analysis
Author
Carol Adaire Jones, Craig Coker, Ken Kirk, and Lovinia Reynolds
Date Released
December 2019
Food Waste Co-Digestion at Water Resource Recovery Facilities: Business Case Ana

Co-digestion of food wastes with wastewater solids at water resource recovery facilities (WRRFs) can provide financial benefits to WRRFs as well as a broad range of environmental and community benefits. Co-digestion is a core element of the wastewater sector’s “Utility of the Future” initiative, which envisions a new business approach for pioneering WRRFs to create valuable energy and nutrient products via the recovery and reuse of residuals from the wastewater treatment process.

Real Benefits Fostering Food Scrap Recycling
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
3
Linda K. Breggin

Between 30 to 40 percent of food is wasted along the supply chain, from processing through in-home and dining-out preparation and consumption. Worse, only 5 percent of the waste is currently diverted to compost or anaerobic digestion facilities that can break down scraps and recycle them into the environment. The other 95 percent has considerable environmental, social justice, and cost implications. As a result, the federal government has set a goal of reducing food waste by 50 percent by 2030.

ELI’s Food Waste Initiative conducts research and collaborates with stakeholders to meet the federal goal by designing and implementing government policies and public-private initiatives to promote food waste reduction, edible-food donation, and diversion of remaining food waste from landfills and waste-to-energy plants toward productive uses.

In addition, I serve as the project coordinator for the Nashville Food Waste Initiative, a project of the Natural Resources Defense Council. In 2015, NRDC picked Nashville as its pilot city for developing high-impact local policies and actions to address food waste. NFWI works with the government of Nashville and Davidson County, as well as a wide range of business and nonprofit stakeholders, to create models for cities around the country.

NFWI’s efforts focus on preventing food waste and rescuing surplus food to feed those struggling with hunger — the two highest-priority strategies. But, NFWI also focuses on food scrap recycling which, although a lower priority, plays a key role in efforts to divert wasted food from landfills and prevent associated methane emissions and nutrient loss.

NRDC’s 2017 report “Estimating Quantities and Types of Food Waste at the City Level” found that as much as 178,920 tons of food are wasted annually in Nashville, and that industrial, commercial, and institutional generators are responsible for approximately 67 percent of this waste.

Motivated in part by these findings, ELI Research Associate Sam Koenig and I interviewed over 25 relevant Nashville stakeholders — including state, regional, and local government officials, waste management companies, advocates, and generators — in an effort to identify the barriers.

ELI recently published the findings in a Landscape Analysis of Industrial, Commercial, and Institutional Food Scrap Recycling in Nashville. The report outlines specific actions that key actors, such as local governments, businesses, and nonprofits, can take to build infrastructure and increase food scrap recycling in Nashville.

Our research found that Nashville’s existing infrastructure is limited (with only one nearby commercial organics composting facility and three organics haulers), meaning that increased capacity will be necessary if the area is to establish a robust and resilient food scrap recycling system.

NFWI points to several policies and practices that could foster sustainable food scrap recycling infrastructure. Interviewees suggested that government subsidies for organics recycling businesses or a government procurement policy that encourages the use of finished compost products in construction and landscaping projects could spur infrastructure growth. And, streamlining the state permitting process for new organics processing facilities could lower the barriers to entry for prospective processors. In addition, the creation of a solid waste authority that operates as an enterprise fund could make it easier for Nashville’s government to finance new infrastructure.

NFWI’s research concluded that in Nashville less than 1.5 percent of food scraps are recycled. Practices are limited by numerous barriers, including low awareness of the impact of food waste and benefits of food scrap recycling, the comparatively low cost of landfilling, the need for employee education and training, and the lack of space for food scrap bins in kitchens or on loading docks.

NFWI’s research, however, also identified several steps that can be taken to address these barriers, including education, financial incentives for industrial, commercial, and institutional generators, and limits on landfilling organic wastes.

The report comes at a pivotal juncture, as Nashville’s population is growing at triple the national average, and the landfill upon which it predominantly relies is quickly reaching capacity. Moreover, it recently joined the handful of cities that have set zero waste goals and is currently in the process of developing a long-term zero waste master plan.

The NFWI-ELI report will help motivate stakeholders to take action on food scrap recycling. Our study contains valuable information for other cities that would like to expand their food scrap recycling infrastructure and practices.

Real benefits foster food scrap recycling.

Let's Talk Trash
Author
John A. "Skip" Laitner - Economic and Human Dimensions Research Associates
Meagan A. Weiland - Economic and Human Dimensions Research Associates
Economic and Human Dimensions Research Associates
Economic and Human Dimensions Research Associates
Current Issue
Issue
5
Let's Talk Trash

As Americans we generate a lot of refuse, rubbish, runoff, garbage, trash, sewage, and effluvia of all kinds. For the most part, however, waste is a hidden problem. But hardly without impact. From a more critical perspective, waste creates an array of social, economic, and environmental consequences that will be harder and harder to avoid — unless we take preemptive actions to set targets or legislate goals that encourage a much greater scale of resource productivity, which is the root issue.

We can start to explore the many dimensions of a very big problem as we begin with perhaps the familiar metric of 4.4 pounds of municipal solid waste created each day for every inhabitant in the United States. That refers to the daily waste that is dumped into the local landfills. In 2014 that added up to just over 258 million tons. The bad news? That is only the tip of a vast waste iceberg.

In addition to the solid landfill wastes, what if we add in the dumping of energy-related greenhouse gas emissions, plus all of the hazardous and criteria air pollutants? What if we also add to the totals all the fecal matter not only from humans, but also from animals we eat? And finally, what if we include losses from soil erosion from cropland and rangeland? In that case, the total levels of waste would jump to about 280 pounds per person per day. Across the entire U.S. population, that adds up to a combined 16.6 billion tons of aggregate wastes in that year, the last one for which we have complete data.

Assessing the aggregate magnitude of waste is just one way to look at the problem. We can also explore the many unexpected ways that waste is produced every single day; and in turn, we can examine the various environmental burdens. We can then determine the lost economic opportunity arising from that waste. But a bigger question will arise when studying this issue in its full dimensions: Are we living more by waste than ingenuity?

But let’s back up a bit. . .

Unfortunately, we don’t have the time or resources to create a full accounting of what we might call the invisible burden of waste. Yet, we can still explore the likely magnitude of total wastes, and the full array of environmental and economic problems that result. And we can do this using a Fermi estimate for the year 2014. Enrico Fermi was both a theoretical and experimental physicist known for his ability to make good approximate calculations with little or no actual data.

The good news? There are reasonably suitable data from various government reports and research studies that we can tap into. At the same time, they are data that have not been previously totaled up in an aggregate way to reflect the scale of waste within the United States. So with the hope that this different perspective might lead to a more productive result, as did Fermi we are looking more for insight than precision.

With a preliminary accounting of waste in hand, we provide a “first look” investigation into the various impacts and costs of those wastes. We next generate a thought experiment of how those costs might impact or hamstring the U.S. economy. Finally, we draw some conclusions about what might be done to turn around the costs so that we might encourage a more robust and more sustainable economy in the years ahead.

For ease of convenience, tapping into a variety of available databases from the Environmental Protection Agency and the Energy Information Administration, we can start the tabulation with greenhouse gases and the criteria and hazardous air pollutants. The greenhouse gases, which contribute to the serious problem of global climate change, include energy-related carbon dioxide emissions from the combustion of fossil fuels. The six criteria pollutants regulated by the Clean Air Act include carbon monoxide, lead, ground-level ozone, particulate matter, nitrogen dioxide, and sulfur dioxide. Among the 187 hazardous air pollutants, also known as air toxics, are benzene (found in gasoline) and methylene chloride (used as a solvent and paint stripper by some industries). In the aggregate, these various air emissions sum up to about 6 billion tons per year.

Fecal matter from humans, cows, and pigs adds about 1.3 billion tons. That may seem more than we might otherwise imagine, but there are about 88 million cows generating perhaps 65 pounds of manure each day apiece, and about 68 million pigs producing about 13 pounds per day per animal. And there is the U.S. population of about 319 million inhabitants (in 2014) also producing about 1 pound per person per day. The math suggests, from a fecal material standpoint, we may have a population equivalent to 7 billion people. And that does not include any of the waste matter from dogs, cats, goats, sheep, poultry, and other domestic critters.

Losses from the erosion of our soils? That is also much bigger than we might imagine. According to the National Science and Technology Council, citing the latest data, for 2012, there are an estimated 1.9 billion acres of cultivated and uncultivated land in the United States. While management practices have improved erosion, we are still losing about 4.6 tons of soil per acre every year. That adds up to a total of 8.9 billion tons annually. And this accounting does not incorporate the loss of soil quality from our current pavement, landscaping, and agricultural practices.

Adding up these amounts altogether — the relatively small 258 million tons of municipal wastes, concurrently with the 6.1 billion tons of various air pollutants and emissions, the 1.3 billion tons of fecal matter, and the 8.9 billion tons of soil losses? It turns out we are now producing a minimum of 16.6 billion tons of various wastes per year. If we look at it another way, that is about 2.4 pounds of wasted matter for each dollar of personal income that we earn in the United States.

More interesting, the total of 16.6 billion tons does not include water or water losses, mining tailings, the degradation of soil quality, and the many other forms of waste at play in our economy. Indeed, those 16.6 billion tons are significantly bigger than the material footprint for the United States that researchers published in 2013. They estimate that the average American buys 50,000 pounds of raw materials annually for all the stuff we buy or use in any given year. Using the criteria for what researchers call the material footprint, clearly we are living more by waste than ingenuity.

It is not simply the huge quantities of materials that we consume, it is also the consequences that follow from the many forms of waste.

Let us first consider all the livestock manure that is dumped every single day on the many agricultural lands in the Midwest, along or near the Mississippi River. Gathering in what are euphemistically called large Concentrated Animal Feeding Operations, the wastes build up. In October 2017, there was a poisoning caused by dairy runoff in Dyersville, Iowa, in which an estimated 60,000 fish were killed along nearly seven miles of stream. Then in various ways, the feces, urine, and bacteria continue to wash away down The Big Muddy. As more and more of those wastes accumulate, they become a form of nutrient pollution, and are dumped at the mouth of the Mississippi and into the Gulf of Mexico. There they contribute to the Dead Zone, more properly the hypoxia zone, which occupies an area the size of New Jersey.

The Dead Zone is an area of low-to-no oxygen that can kill fish and other marine life. The agricultural nutrients, including manure, that flow downstream and into surface waters stimulate harmful algae. As one research study notes, although “farmers often claim a deep-seated knowledge of their land because they work it, the degree to which some farmers choose to not make the connection between how they farm and its impact on water quality is dispiriting.” But that might be said of all of us within the United States.

Even with the information technology revolution, paper is still very much a part of our everyday life. Every year, one estimate suggests, Americans use about 90 million tons of paper and paperboard. That includes more than 2 billion books, 350 million magazines, and 24 billion newspapers that are published on an annual basis.

Currently, about 64 percent of all paper products are recycled. This is the highest rate of recycling of any product. Even with this very high rate, however, paper and paperboard still make up 16 percent of all landfill space in the United States. What might not be known is that the paper and pulp industry is also the fourth highest contributor of greenhouse gases globally. It contributes to methane gas emissions from landfills all over the world. One kilogram of methane has the same heat trapping ability of 25 kilograms of carbon dioxide over a 100-year period.

Even with paper leading the way in recycling rates, the use of paper products still produces a high level of waste. Junk mail is a good example. With credit card offers, advertising specials, and other clutter, one in every five pieces of mail is considered instant trash by recipients. Over 90 percent of people say they do not even look at their junk mail before discarding.

Today, 100 million pieces of junk mail are sent out to homes each year and 44 percent of this mail will end up directly in landfills, making up 6.5 million tons of waste products entering our landfills each year. This means that junk mail alone contributes 16 percent of CO2 emissions from the paper and pulp industry every year.

As we discuss below, water is already wasted in huge amounts, and the paper industry is another example of this. It takes between 4,000 to 12,000 gallons of water to produce one ton of paper pulp. Moreover, the paper industry ranks fourth in hazardous chemical releases and ranks third in the releases of chemicals to surface water. So not only does it take a great deal of water to produce paper, the industry is also a leader in polluting the nation’s water resources.

Though they do their best to hide it from public view, American food retailers typically experience in-store losses of 43 billion pounds of food a year. Store managers routinely over order, for fear of running out of a particular product. Entire shelves of perfectly edible shell peas are transferred into dumpsters to make room for incoming peas; pallets of zucchini are rejected because they curve too much. If the affected wholesaler can’t quickly find another market nearby (a discount chain that tolerates curvy vegetables, for example, or a food bank with refrigerated space), the load will be dumped.

And there is more. The inefficient use of food is putting immense pressure on Earth’s resources. Just how much pressure? That is not well understood. When we begin thinking about it, however, we might immediately think of the food that is thrown away in our homes, or the food left behind on a large bowl or plate in a restaurant. But this, again, is just the tip of the iceberg lettuce.

Today, as much as 40 percent of all food produced in the United States goes uneaten. Indeed, one estimate suggests that, each year, 165 million tons of food is lost or wasted before it even reaches the household. Almost all food waste in the United States ends up in landfills, where it accounts for almost 25 percent of all U.S. methane emissions.

Most will quickly understand that wasting hefty amounts of food can have enormous detrimental effects, especially as the United Nations classifies two-thirds of the world’s population as “food insecure.” But the damage is not finished when food is thrown away. What is not seen are the resources wasted in the production process. An enormous amount of land, energy, water, and capital needs to be considered when calculating the full impact of wasted food. Consider some quick facts to put food wastage into perspective: four percent of all U.S. oil consumption and 25 percent of all fresh water used to grow food is for food that will go uneaten.

By one estimate, food-related packaging creates 580 pounds of CO2 emissions per person each year. If 40 percent of the food goes uneaten, then that percentage of the packaging that holds food is needlessly used. Adding up the U.S. population of 319 million people in 2014, we might attribute 37 million tons of CO2 emissions to packaging for food that is never eaten.

In addition, the food must travel. Red meat, for example, is transported as far as 13,500 miles before it reaches the consumer. That, in turn, requires fossil fuels that generate additional CO2 emissions. If Americans throw out a good portion of the meat that is purchased, then all those traveled miles are wholly wasted, even as they continue to generate additional carbon dioxide emissions.

As we already noted, water is another key resource that is unfortunately wasted at nearly every point in the food chain. By one estimate U.S. annual consumption of water is about 418,000 gallons per capita, or about 8 billion tons in the aggregate within the United States. About 70 percent of freshwater withdrawals goes to agricultural consumption and agricultural drainage. Another 24 percent goes to industrial and municipal wastewater use. With these percentages in mind, here we focus on agricultural uses to better understand water use efficiency.

The production of food or clothes takes an enormous amount of water. By one set of estimates, for example, it takes an average of 660 gallons of water to produce a single tee-shirt, and 2,000 gallons to make a single pair of jeans. However, these totals look incredibly small compared to the amount of water used to produce food.

It takes 33 gallons to produce a single apple, 42 gallons for a banana, and a whopping 634 gallons to produce a hamburger. It takes 441 gallons of water to raise, water, feed and process one pound of boneless beef and a shocking 198 gallons to produce one single ounce of chocolate. Again, thinking about that 40 percent of food produced in the United States is never eaten, we can begin to get a picture of how much water is wasted in the production and consumption of food.

Less thoroughly examined is the energy to produce all the food, paper, clothing, shelter and the many other necessities of life. If we add up all the coal, oil, natural gas, and other energy resources used within our economy, and compare them based on their corresponding heat values, it turns out that the U.S. consumes about 4.9 billion tons of coal equivalent to power our entire economy each year. But there is also a huge waste associated with the consumption of that energy.

Building on the work of Robert Ayres, Benjamin Warr, Reiner Kümmel, and others, we estimate that the U.S. economy is only about 16 percent energy-efficient. In other words, the United States has a corresponding energy waste of about 4.1 billion tons of coal. Much of that waste is found in the release of air pollutants and greenhouse gas emissions already referenced.

Other aspects of waste include fly ash from the coal burned in power plants or the waste heat from driving our cars or firing up our many industrial processes. At the same time, we can use energy — and especially what we can call energy productivity — as a basis to highlight how reducing waste might strengthen the economy.

In 1950, the U.S. economy generated about $1,200 of economic activity for every ton of coal equivalent consumed in the United States (based on constant 2009 dollars). By 2014 that grew to $3,200 per ton. That’s an annual improvement of about 1.5 percent. The question here is how much more social and economic well-being might have emerged had we been able otherwise to reduce the level of waste.

Last year a United Nations International Resource Panel suggested that reducing material consumption by 30 percent from current levels of use might increase global GDP by $2 trillion by 2050. If the United States follows that same trajectory, domestic annual GDP might increase by $750 billion above current projections. In effect, energy productivity would double to about 3 percent annually — reaching an output of nearly $10,000 per ton of coal equivalent in 2009 dollars.

While a 3 percent annual rate of improvement seems like a large jump, it is a rate that we exceeded 13 times since 1970. The key is to promote the right set of policies that set targets for waste reduction and greater levels of energy productivity. Solutions come hard, but they begin by recognizing the problem before us. Whether through incentives, performance standards, or waste targets, there are any number of studies which suggest it can be done. The outcome is a stronger, more robust economy, as well as a healthier environment.

And how might we begin to elevate the performance of our economy? Three things come immediately to mind.

First, we badly need dialogue. ELI could convene a national discussion about the scale of waste that burdens both the environment and the economy. Whether food, water, materials, or energy, the inefficient use of resources weakens and makes less-resilient our social and economic well-being.

Second, the dialogue would benefit from a thoughtful review of key legislation. Yes, we have the Solid Waste Disposal Act, the Soil Conservation and Domestic Allotment Act, and the Clean Air Act and Clean Water Act, among other national legislation. But they focus more on pollution control rather than greater resource productivity and waste reduction, constraining the larger opportunity. And how can they meaningfully integrate a common national purpose like resource productivity with other legislation like the Corporate Average Fuel Economy standards and the National Appliance Energy Conservation Act?

Finally, we need to develop new business models. Today’s economy and business revenues are primarily anchored to the sale of commodities such as tons of coal, steel, and paper. How can we move into new market and institutional arrangements that pull more revenues from value-added services that promote resource productivity rather than the sale of things like gasoline or electricity? And how can new technologies, including distributed electronic ledgers like blockchain, or digital enterprises like cloud computing, positively shape those business models? The opportunities are clearly there. The question is whether we will take advantage of them. TEF

Do we live more by waste than ingenuity? Americans generate a minimum of 280 pounds per person per day. Most of that is out of sight, out of mind. So solutions come hard, but they begin by recognizing the necessity.