Tuesday, June 20, 2006

Confronting Climate Change

Elections do have consequences. Yesterday, it looks like the two newest Supreme Court justices appointed by George W. Bush turned what was going to be a majority opinion upholding enforcement of the Clean Water Act into a polluted mess that will take years or even decades to iron out.

As the doyenne of the Supreme Court press corps, Linda Greenhouse, reports about Rapanos vs. United States, "it was plain that something went awry in the court's handling of its most high-profile environmental case in years."

The court was able to issue no real "majority" opinion. The structure and language of what became the court's official, though non-majority, decision has fingerprints all over it suggesting Justice Scalia originally intended it as his dissent. A lone concurring opinion by Justice Kennedy looks like it was drafted to be the majority opinion upholding the lower court decision enforcing the Clean Water Act. But something happened and he joined the Scalia faction, although only to vote for the same result of sending the case back to lower courts for more evidence (leading to years before the case can return to the Supreme Court, and much chaos for other cases in the meantime.)

Four other justices dissented from the result but agreed with several key points Justice Kennedy makes in his special opinion of one. As reporter Greenhouse writes:
The net effect of the most important Clean Water Act case to reach the court in recent years was thus neither the outright rollback of federal wetlands regulation that property rights advocates have long sought nor the reaffirmation of the Clean Water Act that environmental organizations had desired.

Instead, unless Congress amends the law or federal regulators change their rules, the likely outcome is more litigation in lower courts, with property owners, U.S. agencies and federal judges trying to figure out how to satisfy the standards sketched in Kennedy's solo opinion.
If you have the time and interest, all 104 pages of the various opinions can be accessed [in pdf format] on the court's web site here. As you will see there, more is at stake than just the Clean Water Act -- although in itself that is a weighty enough issue.

On the surface, the various justices appear to be debating dictionary definitions of words like "waterway," "adjacent," and "wetlands." But beneath these surfaces arguments there lies a deep philosophical fissure over the role the federal government constitutionally can, and scientifically should, play in regulating building, development, and pollution activities for environmentally sensitive areas of U.S. watersheds, lakes, streams, and coastal communities.

The legal issue insofar as the Constitution is concerned is as old as the Republic, as you can see by reading the venerable cases (and paying attention to the subsequent history) of Chisholm v. Georgia (1793) and Barron v. Baltimore (1833). The very conservative Scalia-Thomas axis, now buttressed by Justices Alito and Roberts, ideologically would prefer to strip the U.S. Congress of its power and leave such matters entirely up to states and local communities. They would do that, if they could, by ruling that Article I of the Constitution does not give Congress the power to regulate the nation's interior waterways.

The so-called liberal court faction, consisting of Justices Stevens, Souter, Ginsberg, and Breyer would conclude, contrariwise, that Congress' Article I powers are sufficient to allow the federal government the authority necessary to regulate development and dumping activities where that authority is necessary to protect public watersheds and waterways.

Yesterday, Justice Kennedy split the difference by writing that under the Clean Water Act federal regulatory authorities need to show a "significant nexus" between wetlands "that are adjacent to or connected with a navigable body of water" in order to save the Clean Water Act. Accordingly, he said that federal regulations implementing the Clean Water Act need to be re-written to better define "categories of tributaries" that are "significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters."

The net effect of Kennedy's apparent change of mind is to leave America's wetlands in limbo for years to come while the Corps of Engineers contemplates new wetland regulations or Congress undertakes to pass new legislation.

Apart from the legal issues, it's not much of an over-generalization to say that the policy question comes down to this: Who do you trust to save you from global warming -- your local county commissioner, the U.S. Corps of Engineers, or scientific experts on the environment?

Ironically, in the same newspaper today, science writer Cornelia Dean has an important article discussing the "nexus" between climate change and coastal waterways. In "Next Victim: The Beaches," she offers evidence that --
Though most of the country's ocean beaches are eroding, few coastal jurisdictions consider sea level rise in their coastal planning, and still fewer incorporate the fact that the rise is accelerating. Instead, they are sticking with policies that geologists say may help them in the short term but will be untenable or even destructive in the future.
Exhibit A is the state of Florida, where local governments increasingly are allowing hardened "armoring" of Gulf Coast beaches:
Until May 1, when turtle nesting season forced them to stop, they were also pumping hundreds of thousands of cubic yards of sand onto eroded beaches. Florida has relied on this approach for decades, but after the past few storm seasons, there has been an increase in applications for sea wall permits, many from Mr. Tomasello's clients.

* * *
Maintaining eroding beaches with artificial infusions of sand is difficult and costly, and as sea levels rise, it may become economically impractical or even impossible. "The combination of sea walls and rising sea level will accelerate the rate of land loss in front of those sea walls," said Peter Howd, an oceanographer who conducts shoreline research for the United States Geological Survey in St. Petersburg. "So people with a sea wall and a beach in front of it will end up with just a sea wall."

Many people "want to disagree" that global warming is a threat to the coast, said Daniel Trescott, a planner on the staff of the Southwest Florida Regional Planning Council, one of 11 such boards in the state. "But the first place you see these impacts is on the beach."

* * *
At present rates of sea level rise, Dr. Moore said, the computer model she is using "suggests the barriers can maintain themselves, if they are allowed to migrate." But if a sea wall or other infrastructure is in the way, the island is pinned down. Sand that would wash over is blocked as the island erodes. In time, rising water meets the wall and drowns the beach. Meanwhile, storm waves scour the wall's base and erode the underwater beach slope. "Eventually the sea wall collapses because the situation is so extreme."

Now the island is free to move, but it may be too late, she said. If water continues to rise, the island may just disintegrate.

To muddy the waters even more, it's probably true, as some of Dean 's sources say, that the U.S. Corps of Engineers, as the principal agency charged with enforcing the Clean Water Act, has been one of the chief proponents in the past of "beach armoring" and sand renourishment schemes. Asking them, as Justice Kennedy's opinion does, to rewrite wetlands regulations is rather like asking the foxes to write visiting rules for the hen house.

As Pensacola Beach residents will recall, six years ago it was the Corps of Engineers that ignored a near-record number of protest letters and authorized Portofino developers to destroy over 25% of the wetlands on its 40 acre condominium site at the eastern end of the beach -- wetlands of the kind that scientific studies show play a crucial role in muffling the destructive effects of hurricanes and preventing island erosion.

On the other hand, our Escambia county commissioners have been even worse when it comes to protecting the environment against well-heeled developers with lots of campaign contributions jingling in their pockets. They approved Portofino's plans to destroy the wetlands in the first instance. No one who pays attention trusts them to prevent destructive armoring of Pensacola Beach once politically powerful developers begin to demand it.

The Portofino struggle is over, now. But as Dean writes, "few coastal jurisdictions consider sea level rise in their coastal planning, and still fewer incorporate the fact that the rise is accelerating. Instead, they are sticking with policies that geologists say may help them in the short term but will be untenable or even destructive in the future."

So, if neither the Corps of Engineers nor local county politicians can be trusted to confront climate change, what is the solution? The 2003 Pew Ocean Commission Report titled, "America's Living Oceans: Charting a Course for Sea Change" points the way.

Every American living near a coast -- and that's now more than half of the nation's population -- needs to read the entire report. For that matter, it should be of interest to every fisherman, boater, beach tourist, and parent of a future American.

The Commission consisted of a bipartisan, independent group of experts appointed by Congress to assay the complex interaction and current state of our oceans, lakes, rivers, streams, and wetlands. It was the first comprehensive study of its kind since the Stratton Commission in the 1960's, a landmark in its time inspired by public concern generated largely by Rachel Carson's books, Silent Spring and The Sea Around Us.

The Pew report has found a "crisis" of both public perspective and "failure of governance" at every level of government. It concludes that all governments at every level need to "exercise... authority with a broad sense of responsibility toward all citizens and their long-term interests," not short-term profits.

The study was placed in the hands of Congress three years ago. It makes a powerful argument that the public has a responsibility to "change our perspective and extend an ethic of stewardship and responsibility toward the oceans." Although the final report advances a great many specific solutions, all of them require that the public recognize "this is not a decision about us. It is about our children, and actions we must take to bequeath them thriving oceans and healthy coastlines."

The immediate consequence of the Supreme Court's decision in Rapanos vs. United States is that everyone will have to go back to the drawing boards. On this all the justices seem to agree. As Roberts said, "Lower courts and regulated entities will now have to feel their way on a case-by-case basis." And as Justice Stevens wrote from the other side, the one sure result is that the case "will have the effect of creating additional work for all concerned parties."

Forcing a re-thinking of the nation's wetlands policies is not necessarily a bad thing when, as almost every credible scientist will tell you, we have entered an era of radical climate change. The environment and multitudes of species that depend on healthy oceans and wetlands are under enormous stress. But, in the meantime what are we as ordinary citizens in a democracy to do?

How about starting here: Confront every candidate for Congress and every U.S. Senate candidate with this question: What do you propose to do to implement the recommendations of the Pew Ocean Commission Report?

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