Showing posts with label RMB. Show all posts
Showing posts with label RMB. Show all posts

Separating natural & environmental disasters

The twin natural disasters that struck Japan this month, earthquake and tsunami, left a trail of devastation in their path. Entire villages were lost. The death toll currently stands at more than 8,000 but is expected to rise much higher (more than 13,000 are missing). (Prior posts here and here.)
Even as survivors struggle for shelter, warmth and food, the natural disasters are being rapidly overshadowed by the unfolding disaster at Japan's Fukushima Daiichi Nuclear Power Station. (right) (photo credit)
The key difference is that the nuclear disaster didn’t have to happen.
The earthquake, the tsunami, and the nuclear meltdown are all wrapped up together right now as one big human tragedy. But it is important not to blur the lines between risks that are inherent to living on planet earth, and risks that we have created for ourselves. Natural disasters like earthquakes, hurricanes or tsunamis are woven into the very fabric of the earth’s geological systems. There is no way to avoid them, though obviously we can take steps to minimize their impacts.
Anger after Hurricane Katrina was not directed at the hurricane for forming and coming ashore, but at the federal, state and local governments for failing to prepare and respond adequately, and at corporate priorities that devastated Louisiana’s (protective) wetlands in order to facilitate shipping. (left) (photo credit) But for those human decisions—to channel the Mississippi in a fashion that prevented soil accretion; to cut channels through the marshes; to underinvest in the poorer parts of New Orleans; to neglect adequate evacuation planning—the natural disaster might never have become a human catastrophe.
Environmental disasters, by contrast, are catastrophes that flow directly from human-created risks.
In Japan, Reactor #3 may already be releasing MOX (mixed oxide), and all six reactors at the site are compromised, with at least three in partial meltdown. One of the most surprising aspects of this disaster has been our collective inability to get accurate information about the quantity of radiation that has been released, and how dangerous it might be. Turns out the radiation detectors were dependent on the same sources of power as the reactor cooling system, making them unavailable just when they matter most. While it may be unclear how much radiation has been released, both the Japanese government and Tokyo Electric have acknowledged that the released radiation is potentially fatal.
How does this disaster fit with industry assurances that nuclear power is safe and clean? It turns out the roots of this crisis date back to a 1973 decision by the Atomic Energy Commission (predecessor agency to the Nuclear Regulatory Commission) that
'the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant.'


In 1978, the U.S. Supreme Court upheld this decision—shutting the door to rigorous assessment of the environmental threats from spent nuclear fuel. At issue in the case, Vermont Yankee v. NRDC, was the AEC’s fuel cycle rule—which had concluded that the environmental effects of spent fuel rods would be so negligible that they could safely be disregarded. At a 1973 hearing on this fuel cycle rule, environmental groups raised the question of what would happen if a disaster caused the water cooling system for a spent rod storage facility to fail. Speaking for the agency, Dr. Frank Pittman responded that it would take a week for the cooling water to boil away, allowing time for “various corrective actions” to be taken. These corrective actions remained conveniently unspecified.
Now we see why.
In the wake of the earthquake and tsunami, all six of the Fukushima Daiichi reactors lost power, and the backup generators failed. Thus these reactors were left in exactly the plight environmental groups predicted in the 1973 hearing. With the risks of catastrophic meltdown looming, Tokyo Electric found itself with neither the time nor the capacity to implement “various corrective actions.”
In desperation, the Japanese military resorted to dropping seawater via helicopter, and Japanese police re-purposed water cannons from riot control to reactor cooling.
These last-ditch measures harken back to BP’s similarly flailing attempts to cap the gushing Macondo well. (right) The BP oil spill, which killed 11 workers and created one of the worst environmental disasters in United States history, flowed from a lethal combination of corporate greed, operational hubris and lax government oversight. (photo credit) I suspect we’ll find the same to be true in Japan. In both disasters, the economic, human and environmental toll is still being tallied, but will be immense.
Japanese regulators will inevitably face the same question American regulators faced after the BP oil spill: Why are we finding out that there is no Plan B only after disaster has struck?
It is foreseeable that a nuclear plant in an earthquake zone might lose power, and that its auxiliary backup generators might fail, just as it was foreseeable that a blowout protector might fail and thus not stem a gushing oil leak. In fact, not only were these disasters foreseeable, they were actually foreseen. It has been three decades since scientists inside the Nuclear Regulatory Commission first warned of design flaws in the Mark I reactors used in Fukushima. And, the scenario unfolding there is precisely the situation that Dr Pittman so blithely dismissed in 1973 -- that of a catastrophic accident causing the kind of containment system used at the Fukushima Daiichi facility to fail, subjecting everything and everyone nearby to dangerously high radiation. Similarly, almost a decade ago the Coast Guard began warning (p. 22-23) that oil companies were not developing adequate clean-up technology to keep pace with their newly acquired deep drilling capacities.
Yet, those warnings fell on deaf ears.
In both situations, regulators charged with protecting the public and the environment willingly accepted industry assurances not only that disaster would not happen, but also that it could be easily managed if it did. The corporations seeking regulatory approval made safety claims they could not back up, and the regulators too readily went along. This corporate equivalent of “don’t worry your pretty head about it” infects virtually every industry—leading to a dearth of worst case scenario planning. The local communities and the environment bear the brunt when things go disastrously awry.
It is the self-inflicted nature of the wounds that makes environmental disasters particularly galling.
► Yes, it was BP that cut corners in drilling the Macondo well.
► Yes, it is Tokyo Power that stored more than 11,000 spent rod assemblies at the Fukushima Daiichi site. (Incidentally, there are 23 boiling water nuclear reactors in the United States that share the same Mark I containment system design as the crippled Japanese reactors.)
► And yes, the corporate actors in charge of those facilities made these choices with an eye toward profit.
► But, to the extent that we demand cheap and reliable energy, we are all complicit.
The line of causation between the glittering lights of the Ginza and the unfolding Fukushima Daiichi disaster is fairly direct, as is the connection between the millions of U.S. automobile owners and the BP oil spill. In a very real sense, our insatiable thirst for more energy to power our growing collection of televisions, air-conditioners and electric toothbrushes is also responsible.
That means that fixing the problem has to proceed on both fronts at once.
► Clearly government agencies need to be re-invigorated and re-inspired. We can no longer allow politicians to dismantle our regulatory agencies under the false pretense that private actors, pursuing private ends will voluntarily safeguard the public interest. We must adequately fund oversight and enforcement of existing safety and environmental laws, and improve them where they are lacking. We must also stop the revolving door that corrupts agency values and leads regulators to confuse industry interests with the interests of their true client—the public. A hollowed out government cannot ensure public safety.
► At the same time, we also need to learn to slake our energy thirst, and thereby remove the political justification (and economic incentive) for these risky gambles.



(Cross-posted at CPRBlog)


Japan and the bugaboo of nuclear waste management

Poor Japan. Surely suffering a 9.0 earthquake and a devastating tsunami is disaster enough for one country to bear. At least 5,000 people are dead, and hundreds of thousands more are displaced. The scope and scale of the natural disaster is overwhelming. Yet, these twin natural disasters are rapidly being overshadowed (at least in the news coverage targeting those of us half a world away) by the unfolding nuclear disaster. (prior post)
A meltdown that was supposed to be “incredible” is happening before our eyes in prime time. A series of explosions and fires have created an industrial emergency of the first order. Units 1, 2 and 3 are in partial meltdown, while the spent fuel rods stored at Unit 4 exposed to the environment and releasing radiation. Worst of all, Unit 3 may be releasing MOX (mixed oxides). Radioactive cesium and iodine have been detected outside the Fukushima Daiichi The best case scenario at this point would be if authorities manage to pump, spray or airdrop enough seawater to cool the fuel rods, easing the crisis. In that case, the radioactivity released by this disaster would be limited to the unknown quantity already spewed into the air by explosions or controlled venting.
Yet, that best-case scenario is still pretty grim. The long-term effects of the radiation that has already been released are unclear. So far prevailing winds are directing the radiation plume toward the open ocean. That is surely good news for Tokyo’s 34 million inhabitants. But, the fact that no major human population centers are being directly affected (right now) does not mean that the radiation has gone “away.” There is no such place as “away.” The radiation is instead going into the sea where it will be yet another factor impacting an already stressed ocean ecosystem. We don’t know much about the risks to oceans and fisheries from radioactive fallout, or for that matter from more routine nuclear waste disposal.
Radioactivity will surely enter the ocean food chain, with unclear results. Indeed, Ireland and the UK have been locked in a bitter, decades-long legal struggle over the environmental effects of MOX contamination in ocean waters. Researchers have documented decreased wildlifepopulations and diversity, as well as increased animal deformities around Chernobyl. (the Fukushima Daiichi situation has not released anywhere near the radiation of Chernobyl, but it is not over yet.)
Shockingly, the environmental consequences associated with this kind of disaster were completely disregarded when regulators assessed the risks and benefits of nuclear power. Indeed, the key architect of the United States fuel cycle rule considered potential environmental effects to be a “bugaboo” based on unjustified fears. Based on his testimony, United States regulators dismissed negative environmental effects associated with radioactive releases from stored spent fuel rods as incredible. That decision, which focused on the Vermont Yankee nuclear facility approved the kind of boiling water reactor with above-ground spent rod storage used at the Fukushima Daiichi facility. So, even though the vulnerability of this kind of nuclear plant has been clear for decades, there are at least 32 such facilities continuing to operate around the world.

Blogging the Scott Expedition

Antarctica (right) is one of the most fascinating places on earth--both in terms of its legal regime and in terms of the place itself. Although it has recently become something of a prestige tourist destination, the harsh climate had until recently kept the human footprint relatively light. Yet, the Antarctic is one of the places where climate change is becoming extremely visible. And, illegal overfishing has decimated the Patagonian Toothfish, popularized as Chilean Sea Bass (left), which is on Greenpeace's Red List.
This year is the 100th anniversary of the doomed Scott expedition. For those of you who may not remember, Robert Falcon Scott led a British expedition (right) to the South Pole. His team reached the pole about one month behind the team of Norwegian explorer Roald Amundsen. None of Scott's team made it back to their base on the Coast (while all of Amundsen's team survived.)
To commemorate the 100th anniversary, my dear friend and former colleague Russ Miller (Washington & Lee School of Law) has created a fascinating blog. Each day, he is blogging based on Scott's journal entry for that day. Check it out!

Go On! AALS hot topic: "Cutting Edge of Extraterritoriality," featuring 2 IntLawGrrls

(Delighted to welcome back alumna Hannah Buxbaum, who contributes this Go On! guest post respecting the annual meeting of the Association of American Law Schools, which, as Rebecca Bratspies posted, begins today and includes many IntLawGrrls speakers)

Anyone attending the AALS and looking for an international-law related program to attend first thing Friday morning might try “The Cutting Edge of Extraterritoriality” (p. xxxi). This is one of the “Hot Topics” panels on late-breaking developments. The speakers are: yours truly, Hannah Buxbaum (Indiana) (left); another IntLawGrrls alumna, Chimène Keitner (California-Hastings) (middle); and our colleagues Anthony Colangelo (Southern Methodist) and Bill Dodge (California-Hastings).
The panel runs from 8:30 to 10:15 Friday morning in the Yosemite C Room on the ballroom level of the Hilton.
Here's the program description:
How far does (and should) U.S. law reach in regulating conduct or transactions that take place overseas?
This question of the “extraterritorial” application of U.S. law arises in a wide range of contexts, including the regulation of international economic markets, human rights litigation, jurisdiction over terrorist acts abroad, and the availability of constitutional protections in connection with the “war on terror.”
In its June 2010 opinion in Morrison v. National Australia Bank, which limited the application of antifraud provisions under U.S. securities law to transactions taking place in the United States, the Supreme Court articulated an unexpectedly expansive version of the “presumption against extraterritoriality,” a rule of statutory construction. Lower courts have already applied this revamped presumption to other statutes, such as RICO.
And, as IntLawGrrls posted here and here, the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum Co. recently addressed another issue with far-reaching implications; that is, the respective roles of national and international law in defining the scope of corporate liability under the Alien Tort Statute for human rights violations abroad.
The panelists will use Morrison as the starting point to address shifting understandings of the geographic reach of American law and the role of national law in an increasingly global system.
Hope to see you there!

Go On! IntLawGrrls at AALS

(Go On! is an occasional item on symposia and other events of interest)

The Association of American Law Schools will be holding its 2011 annual meeting in San Francisco from January 5-8th. This year's theme is: Core Educational Values: Guideposts for the Pursuit of Excellence in Challenging Times.
If you are attending, be sure to check out IntLawGrrls and IntLawGrrl guests/alumnae in action. As detailed in the annual meeting program, they are:

Wednesday, Jan 5th
► At 2:00 pm, Afra Afsharipour will be speaking at the Law and South Asian Studies Section's panel: Lawyers as Social Change Agents in South Asia.
► Also at 2:00, Michele Bratcher Goodwin will speak on the Biolaw Section's panel: Synthetic Biology Meets the Law, and Penelope Andrews will moderate the Africa Section's panel: U.S. Africa Policy at the Midpoint of President Obama's First Term.

Thursday, Jan. 6th
► At 9:00 am, Stephanie Farrior, Hari M. Osofsky, Christiana Ochoa, Annecoos Wiersema, Leila Nadya Sadat, and Cindy Galway Buys will be participating in the International Law Section's panel: International Law Year in Review.
► At 2:00, Penelope Andrews will be speaking on the Constitutional Law Section's panel: American Constitutionalism in Comparative Perspective.
► At 2:30 pm, Lisa R. Pruitt will take part in a panel on Class, Socio-Economics, and Critical Analysis.

Friday, Jan. 7th
► At 8:30 am, Caroline Bettinger-López and Alexandra Huneeus will present at the
New Voices in Human Rights panel of the Section on International Human Rights.
► At 10:30 am, yours truly, Rebecca M. Bratspies, and Hari M. Osofsky will be participating in the Hot Topics panel: The BP Blowout Oil Spill and Its Implications.
► Also at 10:30, Laurel S. Terry will be speaking on the Education Law Section's panel: Immigration and Higher Education.
► At 4:00, Michelle Oberman will be speaking on the Law, Medicine and Health Care Section's panel: Women's Choices, Women's Voices: Legal Regimes and Women's Health.

Saturday, Jan. 8th is an action-packed IntLawGrrls day:
► At 7:00 in the morning, Laurel S. Terry will be speaking at the AALS Workshop and Continental Breakfast for 2010 and 2011 Section Officers.
► At 8:30 am, yours truly, Rebecca M. Bratspies, will be speaking on the Animal Law Section's panel: Treatment and Impact of Farmed Animals.
► At 1:30 pm, Elizabeth L. Hillman will be speaking on the National Security Section's panel: The Relationship Between Military Justice, Civil/Military Relations and National Security Law.
► Also at 1:30 pm, Jenia Iontcheva Turner will be speaking on the Comparative Law Section's panel: Beyond the State: Comparative Approaches to Group Political Identity in the Age of the Transnational.
► At 3:30 pm, Christiana Ochoa, will be moderating the International Law Section's panel: Was Medellin Wrongly Decided?
► Also at 3:30 pm, Jennifer Kreder will speaker on the Section on Law and Anthropology panel entitled The Role of Cultural Property Across Cultures and Legal Regimes.

As always, I am struck by the wide range of interests that our fearless leader Diane Marie Amann has brought together under the IntLawGrrls umbrella.

FYI: Because the Hilton is embroiled in a labor dispute with UNITE HERE, Local 2 (the hotel's workers have been working without a contract for over a year), registration and most of the AALS events have been moved to other nearby hotels. There may be other last-minute changes, so be sure to go by the locations in the schedule you receive at check-in rather than the brochure that circulated last month. See you in San Francisco.

(credit for 2010 poster of San Francisco by Kevin Dart)

Imagine if 2010 hadn't been the Year of Biodiversity

"Biodiversity is life. Biodiversity is Our Life" That is the slogan of the United Nations International Year of Biodiversity, which draws to a close in just over a week. When Secretary-General Ban Ki-moon announced the opening of the Year of Biodiversity, he cautioned:

A failure to protect the world's natural resources is a wake-up call for people everywhere.
The U.N. General Assembly certainly ushered the International Year .of Biodiversity out with a bang-- voting on December 21 to establish the Intergovernmental Platform on Biodiversity and Ecosystem Services.
This new Intergovernmental Platform will be modeled on the Intergovernmental Panel on Climate Change, and is intended to be a mechanism for integrating scientific knowledge about biodiversity into policy-making.
The Intergovernmental Platform on Biodiversity and Ecosystem Services was established just in time for the International Year of Forests which begins in January 2011, and the International Decade of Biodiversity, also beginning in January 2011. Let us hope it has more success in galvanizing global action targeted at stemming our losses of biodiversity than the Intergovernmental Panel on Climate Change has had in getting global agreement on actions to stem carbon emissions.
Establishment of the Intergovernmental Platform was a bright spots in a year otherwise riddled with bad news for biodiversity.
Biodiversity loss is rapid and ongoing. Over the last 50 years, humans have changed ecosystems faster and more extensively than in any comparable period of time in human history. We are losing tropical forests, wetlands, coral reefs and grasslands at a rapid clip. Species extinctions are orders of magnitude over expected rates. The causes are clear:
►over-exploitation
►habitat loss
►invasive species
►climate change
Unfortunately, these drivers of biodiversity loss show no signs of abating. As a result, we are losing species at rates three orders of magnitude greater than would otherwise be expected.
The IUCN Red List (prior IntLawGrrls posts here, here, and here) reported that 1/5 of vertebrate species, ranging from 13% of birds to 41% of amphibians, are threatened with extinction. A similar report by the Kew Royal Botanical Gardens suggests that one-fifth of plants are similarly threatened. This is terrifying! As the Millennium Ecosystem Assessment documented, biodiversity is the foundation on which human life depends.
In 2002, the Convention of the Parties to the Convention on Biological Diversity adopted the Strategic Plan for the Convention on Biological Diversity. The Strategic Plan set what's come to be known as the 2010 Biodiversity Target -- a commitment by the 191 parties to the Convention to
achieve by 2010 a significant reduction of the current rate of biodiversity loss at the global, regional and national level as a contribution to poverty alleviation and to the benefit of all life on Earth.
This biodiversity target was subsequently endorsed by the World Summit on Sustainable Development, the United Nations General Assembly at the 2005 World Summit Meeting, and was incorporated into the Millennium Development Goals. These developments marked an official international recognition that biodiversity loss is closely associated with environmental degradation, poverty and ill-health. This prompted the General Assembly to declare 2010 the International Year of Biodiversity.
Unfortunately, the Convention of the Parties acknowledged earlier this year that it had failed to meet the 2010 Target for halting the losses of biodiversity. The European Union similarly missed its targets. The Global Biodiversity Outlook reports deforestation continues at an alarming rate, coral reefs show major declines, and abundance has plummeted for many species. This is not to say there have been no successes.
At the Cancun meeting earlier this month, delegates were cheered that Brazil announced it had reduced tropical rainforest destruction and CO2 emissions to record low levels, and that some species, mostly charismatic macrofauna, have shown signs of recovery. As the IUCN Red List reminds us, the news is not all grim. For the first time, scientists have documented that conservation can really make a difference in stemming biodiversity loss. There is still hope. But, the time for action is now!

Winning & losing (mostly losing) in Cancun

There is good news and bad news from the UN Climate Change Conference that just ended in Cancun, Mexico.
First the good news.
The conference produced some important steps forward:
► With one lone dissent, by Bolivia, the other 193 participants overwhelmingly endorsed the final agreement, which formalized the status of the Copenhagen Accord. That accord, about which IntLawGrrls posted here and here, thus has been officially integrated into the United Nations process.
► There was an agreement on preserving tropical forests (REDD+) that provides for compensation payments to tropical countries that reduce deforestation.
► There was also an agreement setting up a Green Climate Fund to provide financial assistance to help developing countries restrain their emissions and cope with the impacts of climate change.
These are important steps.
Given last year's failed Copenhagen meeting, expectations were very low for the Cancun meeting. So, the conference’s modest success was encouraging in that it restored faith in the possibilities of the multilateral United Nations process as a forum where climate progress can be made. Mexican Foreign Minister Patricia Espinosa (right) earned wide praise for her transparent and deft handling of the negotiations.
Now for the bad news. . . .
The talks failed to produce any agreement ensuring reduced carbon emissions. Without drastic cuts in carbon emissions, the world will soon run out of time to avert catastrophic climate change.
The scientific evidence is clear — human activities linked to burning fossil fuel are increasing carbon dioxide levels in the atmosphere. The resultant buildup of carbon dioxide is likely to warm the planet by several degrees Centigrade in the next half-century. International efforts have identified keeping that warming below 2 degrees Celsius (about 3.6 degrees Fahrenheit) as the goal.
The effects of global warming are already clearly visible in the Arctic, where drastically reduced summer sea ice threatens the continued existence of ice-dependent animals like Pacific walrus and polar bears, while melting permafrost jeopardizes the safety and livelihoods of Arctic residents. Coral reefs are bleaching and dying at an alarming rate.
Extreme weather events around the world, including floods and droughts are a harbinger of things to come. As the planet warms and the climate changes, we can expect disease, species extinction, water shortages, rising sea levels, and the disappearance of small island states.
In short, climate change is likely to cause conflict and dislocations around the globe.
In the face of this looming catastrophe, we need bold action. What we got is at most a modest step forward.
The Cancun Agreement calls on countries to take “urgent action” to keep global temperatures from increasing more than 2 degrees Centigrade above pre-industrial levels. It does not, however, specify what those actions should be. States have made no binding commitments to do anything. The Agreement does nothing to about the gaping chasm between the current voluntary emissions-reduction commitments that states have set for themselves under the Copenhagen Accord, and the kinds of reductions needed to meet this goal.
Alden Meyer of the Union of Concerned Scientists said it best:
World leaders must significantly raise their game if we're to meet the challenge of climate change. Time is running out, and the atmosphere doesn't negotiate with politicians.

U.S. Contact Point & corporate accountability

(Many thanks to IntLawGrrls for the opportunity to contribute this guest post.)

Corporate accountability for environmental and human rights abuses abroad is often elusive.
As IntLawGrrls Rebecca Bratspies and Naomi Roht-Arriaza have posted (here and here), recent court rulings now limit the scope of the Alien Tort Claims Act in some jurisdictions, at least temporarily. Non-judicial, ‘soft law’ mechanisms thus have become even more important.
Among the latter accountability mechanisms is the U.S. National Contact Point, or NCP, an office of the Department of State created to take complaints regarding corporate compliance with the Guidelines for Multinational Enterprise issued in 2008 by OECD, the Organization for Economic Co-Operation and Development.
The United States is required to maintain the NCP to resolve disputes about the OECD Guidelines, which cover human rights, environmental, labor, and consumer issues, as well as other topics. Like other countries' NCPs, the U.S. office is tasked not only with assisting to resolve disputes about corporate compliance with the Guidelines, but also with issuing Final Statements about compliance at the end of the process. In the language of international financial institution accountability mechanisms, this gives NCPs both a problem-solving and compliance review function.
To date, the U.S. NCP has never assisted in the resolution of a single case. In contrast, as IntLawGrrl Christiana Ochoa has posted in other countries like the United Kingdom, NCPs have successfully participated in the resolution of major global issues. If transformed, the U.S. NCP could be a valuable tool for communities around the world. Among those communities are clients of my organization, Accountability Counsel, which represents persons harmed by U.S.-headquartered multinational enterprises.
Over the past year, Accountability Counsel has led a coalition of civil society groups to reform the U.S. NCP. Our direct talks spurred the office to published its rules of procedure. As we had anticipated, those rules:
► Fail to meet basic standards for transparency and independence;
► Lack details sufficient to result in a predictable process; and
► Are unlikely to lead to effective results.
The official State Department review is under way, with a new policy governing the U.S. NCP is expected sometime in 2011. In Washington, a public meeting will be held today, November 2, and comments on the U.S. NCP will be accepted at input@state.gov until this Friday, November 5.
Accountability Counsel already has submitted its comments to the State Department regarding suggestions for reform of the U.S. NCP. Based on our work with similar mechanisms at the World Bank Group, the regional development banks, and study of other NCPs, we demonstrated that key elements that are needed to bring this accountability mechanism to the ‘best practice’ level that civil society groups have worked decades to create. Our recommendations focus on:
► Increasing transparency;
► Setting timelines and rules of procedure;
► Providing for review of decisions; and
► Monitoring and enforcement in the event of a finding of non-compliance.
Accountability Counsel is also working on these issues as a member of the State Department’s Advisory Committee on International Economic Policy, which will issue a report with recommendations for reform. Similarly, our group has worked with the United Nations' Special Representative on Business and Human Rights, Professor John Ruggie (prior IntLawGrrls posts), to create a page on the Business and Society Exploring Solutions site for the posting of comments and for debate about the U.S. NCP. The effort is aimed at improving transparency around this review.

Maybe rename it World Hunger Day?

Happy World Food Day.
In his 1964 Nobel Prize Acceptance Speech, the Rev. Dr. Martin Luther King Jr. challenged the world to confront the problem of hunger. He stated:

I have the audacity to believe that people everywhere can have three meals a day for their bodies, education and culture for the minds and dignity, equality and freedom for their spirits.
(Watch the speech here.)
Almost 50 years later, we are still waiting.
It's not like nobody else noticed that we had a Hunger Problem.
The right to food has been at the heart of international discourse as long as the international community has been discussing human rights:
► Article 25 of the Universal Declaration of Human Rights recognized the right to food as a basic human right.
► Article 11(2) of the United Nations Convention on Economic, Social and Cultural Rights recognizes the right to be free from hunger. (The United States is still not a signatory to that convention).
► The 1974 World Food Conference declared that "every man, woman and child had an inalienable right to be free from hunger and malnutrition." It committed the international community to eradicating hunger by 1984. (Report available here.)
► The World Food Summit of 1996 set a goal of halving the number of chronically people by 2015.
► The Millennium Development Goals set a target of halving the proportion of people living with food insecurity by 2015. (Notice how much less ambitious the goals have become over time.)
In 1979, the Food and Agriculture Organization declared its intention to designate October 16th -- the date of its founding in 1945-- to be World Food Day. The reason for World Food Day was to "heighten public awareness of the world food problem and strengthen solidarity in the struggle against hunger, malnutrition and poverty." In 1980, recognizing that "food is a requisite for human survival and well-being and a fundamental human necessity" the U.N. General Assembly, in Resolution 35/70, endorsed observance of World Food Day.
Today marks World Food Day's 30th celebration. The clock ticks ever closer to the 2015 deadline for achieving the Millennium goals and the World Food Summit Goals.
So, how are we doing?
In its report entitled the State of World Food Insecurity 2010, the FAO states that almost 1 billion people are undernourished. That is more, in absolute terms, than were undernourished in 1979, and roughly the same in percentage terms.
How can it be that in all those years, with all those international proclamations, and all that investment we have made, basically no progress?
Or, phrased differently:
We produce more food today than ever before in the history of the world. So, why are more people hungry today than ever before in the history of the world?
Perhaps the problem is that we are thinking about hunger the wrong way.
This year, the Agricola Medal was given posthumosly to Dr. Norman Bourlag, the man commonly credited with starting the Green Revolution. (prior post) Dr. Bourlag was right when he said that

the first essential component of social justice is adequate food for all mankind.
With all due respect to Dr. Bourlag, who devoted his life to eradicating hunger, no amount of new and better technology will solve this problem -- because it is not a food production problem. The problem with Dr. Bourlag's technology-based approach is that today's hunger is a food distribution problem. We already produce enough food to feed all the people on the planet. We just don't use that food to feed the people who are hungry.
Hunger today revolves around the way that global trade is structured. Indeed, since the global food price crisis of 2008, Olivier De Schutter, the United Nations' Special Rapporteur on the right to food, has been cautioning about the need for structural measures to address food price increases. Even though this year's wheat crop is one of the largest ever recorded, food prices are skyrocketing. The Special Rapporteur identifies main culprits responsible for increasing prices in a time of plenty seem to be commodity speculation on international food markets, disinvestment in social protection schemes, and a global governance scheme that hinders the ability of governments to mitigate price shocks.
Perhaps we should rename it World Hunger Day.


(Personal note: About 195 million children are part of that 1 billion who suffer from food insecurity. As I watched my 4 year old eat her dinner after writing this post, all I could think about was the unbearable pain that a parent unable to feed her child must suffer. I made a donation to Doctors Without Borders' Starved for Attention campaign. Please consider doing something similar.)

No Alien Tort Liability for Corporations?

A serious, perhaps, mortal blow has been dealt to the Alien Tort Statute by the U.S. Court of Appeals for the Second Circuit. The ATS creates federal jurisdiction over

any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
In its opinion in Kiobel v. Royal Dutch Petroleum Co., however, the Second Circuit dramatically narrowed the scope of the ATS by ruling that it did not apply to "juridical persons," meaning corporations.
Since the groundbreaking judgment in Filártiga v. Peña-Irala (2d Cir. 1980), which was brought by my dearly-missed colleague Rhonda Copelon and the Center for Constitutional Rights, the ATS has offered victims of human rights abuses the prospect of access to U.S. courts.
In Kiobel, the oil company defendants stood accused of aiding and abetting the Nigerian government's campaign of human rights abuses in the Niger Delta, Nigeria's oil-producing region. The litany of human rights violations at issue in the case included allegations of torture, arbitrary detention, and crimes against humanity. Unfortunately, these allegations can no longer be heard in U.S.courts. The Second Circuit ruled on September 17th that corporations cannot be sued under the Alien Tort Statute because they are “juridical” entities rather than natural persons. Should this ruling be adopted throughout the U.S. court system, it would gut the scope of the ATS, making it very likely that corporations participating in human rights abuses will escape any accountability for their conduct.
The Niger Delta is home to 31 million people. (map credit) Since oil exploration began some 50 years ago, the region has suffered an Exxon Valdez-sized oil spill every year. As you can imagine, these spills have devastated the local population. In 2009 Amnesty International reported that the oil industry in the Niger Delta of Nigeria
has brought impoverishment, conflict, human rights abuses and despair to the majority of the people in the oil-producing areas.
Local populations have failed to benefit from the wealth generated by oil production, even as they suffer its environmental consequences. Before being despoiled by oil pollution, the Niger Delta was one of the most important wetlands in the world. BP's oil spill in the Gulf of Mexico (see previous Intlawgrrl posts here, here and here) focused public attention, albeit briefly, on the ongoing environmental devastation in the Niger Delta. (You can hear an interview I did with WBEZ Chicago Public Radio’s Worldview Program on this topic here.)
Just last year, Shell Oil settled an ATS case alleging the company’s complicity in the hanging deaths of nine Ogoni activists, including the world-renown poet Ken Siro Wiwa. Cases alleging similar human rights abuses in oil production have been brought against Talisman Energy for its activities in the Sudan, Unocal for its activities in Burma, and Chevron for its activities in Ecuador. (News on that last suit here.)
Second Circuit Judge José A. Cabranes interpreted international law precedents extremely narrowly in order to concluded that, throughout history,
the principle of individual liability for violations of international law has been limited to natural persons—not ‘juridical' persons such as corporations.
This despite the fact that the Universal Declaration of Human Rights explicitly applies to "every individual and every organ of society." Over the objections of Judge Pierre N. Leval, Judge Cabranes, joined by Judge Dennis Jacobs concluded that that U.S. courts lacked jurisdiction over ATS claims brought against corporate entities.
Given that oil production often takes place in countries without robust judicial systems, this cramped ruling virtually assures that victims will have no avenue of redress.
The United States consumes a quarter of the world’s oil—10% of which comes from Nigeria. That makes the United States the largest purchaser of oil produced in the Niger Delta. Our participation as end-consumers makes us unwitting collaborators to abuse in Nigeria and around the world. We surely have an interest in giving victims of these human rights abuses a forum in which to seek justice.

Umpire strikes out

In the hearing that led to her installation as an Associate Justice of the U.S. Supreme Court, Elena Kagan (at left) took issue with the remarks of Chief Justice John G. Roberts Jr. (at right), who said during his own confirmation hearing:

'Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.'
Kagan criticized Roberts' umpire metaphor on the ground that it
'might suggest to some people that law is a kind of robotic enterprise. That there’s a kind of automatic quality to it. That it’s easy. That we just sort of stand there, and we go “ball” and “strike” and everything is clear cut, and there’s no judgment in the process. And I do think that that’s not right, and that it’s especially not right at the Supreme Court level, where the hardest cases go.'
Justice Sonia Sotomayor (left) also rejected the analogy in her confirmation hearing last year.
Legal commentators have noted the provenance of the umpire analogy -- mostly, one dismissed by courts as inappropriate. For example:
► In State v. Crittenden, La. Ann. 448 (1886), reviewing an appeal of a criminal conviction, Louisiana Supreme Court Justice Hicks wrote that "[a] trial is not a mere [game] between counsel, in which the judge sits merely as an umpire to decide disputes which may arise between them."
► In 1910, the Ohio Court of Common Pleas declared that "[a] judge presiding at the trial of a jury case is not a mere umpire of a game of ball, to call balls and strikes." Morrison & Snodgrass Co. v. Hazen, 22 Ohio Dec. 772.
Indeed, when judges have invoked the umpire analogy, is has usually been as a model for what trial judges should avoid, not for what Supreme Court Justices should do.
Was now-Justice Kagan perhaps channeling Earl Warren in his younger days?
Nearly 2 decades before he would become Chief Justice of the United States, then-prosecutor Warren (below right) wrote, in "Organized Crime and Unorganized Law Enforcement," California Journal of Development, June 1934, at 18 (h/t Jed Shugerman):

'It has been my observation over a period of years that when a judge assumes the role of a baseball umpire, merely calling balls and strikes, . . . that justice is seldom done in important cases, but that on the other hand, when the judge assumes the responsibility placed on him by law . . . justice is usually accomplished.'

Another day, another rig blast

Another oil rig exploded in the Gulf of Mexico yesterday (left).
Fortunately, none of the 13 workers on the rig were seriously injured, and the fire was quickly brought under control. There are conflicting reports about leaks, with a mile-long sheen spotted in nearby waters. (credit for Reuters/Lee Celano photo)
While it looks like this particular spill will not turn into a replay of BP's Deepwater Horizon environmental catastrophe, what about next time? How many warnings do we need before getting serious about safety and environmental regulation of offshore drilling?
This latest incident directly contradicts attempts to spin the BP spill as "not so bad" -- attempts that have focused on characterizing the Deepwater Horizon catastrophe as an isolated case of bad judgment. BP has twice pleaded guilty to environmental crimes, one a felony and one amisdemeanor, and has amassed a lengthy record of hefty fines for other violations. Mariner Energy, the owners of the latest oil rig to explode, have been cited for 10 accidents in the Gulf over the last four years, ranging from blowouts to platform fires to pollution spills.
This morning, BP announced that the spill had cost it $8 billion so far. That number sounds suspiciously low to me (though not as patently false as BP's laughably lowball estimates of the quantity of oil gushing from the well into the Gulf had been.) Whatever effective regulation would have cost the industry, it would have been significantly less than $8 billion. And regulation probably could have prevented contamination of our environment with the:
► Hundreds of thousands of gallons of oil that leaked from the well, plus
► Millions of gallons of dispersant that were dumped into the Gulf in response.
Both are fouling th environment and wreaking as-yet-unknown havoc on the Gulf ecosystem, already harmed by disastrous losses in the tourism and fishing industries, and, of course, by the deaths of those 11 workers.

Coral Reefs Dying From Climate Change

Last week, the Wildlife Conservation Society (WCS) reported that coral reefs off the coast of Indonesia are being devastated by unusually warm sea waters. In what is being called "one of the most rapid and destructive coral bleaching events on record" large swaths of coral off the coast of Sumatra have died.Climate change poses a serious threat to coral reefs. Indeed, the Intergovernmental Panel on Climate Change (IPCC) devoted much of the marine ecosystems chapter of its 2007 Report to coral reefs. The International Union for the Conservation of Nature (IUCN) lists many species of coral on its "red list" of threatened species.
Corals reefs are some of the most diverse ecosystems on earth. They occupy only one percent of the world's ocean surface but provide a home for 25 percent of all sea life - including fish that millions of people rely on for food.
Ordinarily coral reefs are brightly colored because coral lives in a symbiotic relationship with algae. Coral bleaching occurs when environmental stresses like excessive heat cause coral to expel the algae with which they normally coexist. When this occurs, the coral reefs turn a dull and lifeless grey. If the bleaching is severe enough, the coral die from a lack of the energy and oxygen that the algae provide.
Not only does the increased water temperature associated with global warming jeopardize coral survival, so does the increased ocean acidification caused by excess atmospheric carbon dioxide being absorbed by the world’s oceans. Reefs protect the coastlines of many countries, especially islands, from storm surges. Thus, coral reef losses put small island states, already threatened by rising sea levels associated with climate change , in further jeopardy.
Aside from their coast-protecting and biodiversity promoting utility, coral reefs are also breathtakingly beautiful. The loss of that beauty compounds the biological and ecological losses. If the current rate of loss continues, we may lose 70% of the world's coral reefs in the near future.
This past May, Indian Ocean water temperatures were significantly warmer than usual (about 7 degrees Fahrenheit above average.) The stress associated with warmer water is killing what had been some of the most biodiverse coral reefs in the world. Indeed, the WCS reports that reefs are up to 80 percent bleached, with more colonies expected to die off in the coming months
The loss of these coral reefs (which incidentally were either unaffected or recovering well from the 2004 Indian Ocean tsunami) is a devastating blow to the region, and the world. Not only is the loss of biodiversity a tragedy in itself, but it comes as a tremendous loss to the regions inhabitants, many of whom are impoverished and dependent on the reef for their food and livelihood.
And, unfortunately, rather than a one-off occurrence, this is a harbinger of things to come. As climate change unfolds, the rate and nature of environmental changes will exceed the ability of coral to adapt. The steady warming and acidification of the world’s oceans will pose a threat to reefs around the world, and to the communities that depend on them.
Dr. Caleb McClennen, WCS-Marine Program Director, described the coral die-off as “another unfortunate reminder that international efforts to curb the causes and effects of climate change must be made if these sensitive ecosystems and the vulnerable human communities around the world that depend on them are to adapt and endure.”

Beets banned

The most common sugar beet planted in the US is now banned.
Planting of Monsanto’s “Roundup Ready” sugar beets—a form of beet genetically modified to be resistant Monsanto’s glyphosate-based weedkiller Roundup—was banned Friday, by a federal judge in San Francisco, until the U.S. Department of Agriculture complies with the requirements of NEPA, the National Environmental Policy Act.
The ruling came in a lawsuit filed by environmental and organic farming nongovernmental organizations. The NGOs challenged the decision of the Agricultural Department to deregulate genetically engineered sugar beets without preparing an Environmental Impact Statement. Deregulation means that the crop could be planted freely throughout the United States, with no further regulatory oversight from the USDA. Critics complain that the department has routinely determined that genetically modified crops pose no threat to the environment without conducting an adequate assessment of the environmental risks posed by these crops.
In September 2009, the Court agreed with these critics. It found that the department's decision to deregulate genetically modified beets without first completing an Environmental Impact Statement violated the National Environment Protection Act. Friday’s ruling:
► Vacated the USDA’s deregulation of biotech sugar beets; and
► Prohibited any future planting or sale pending the agency’s compliance with NEPA and all other relevant laws.
The ruling allows the sugar beets already in the ground to be harvested, but bars further planting until the Environmental Impact Statement is complete. USDA has estimated that such a statement may be ready by 2012.
This decision comes on the heels of an 7-to-1 judgment issued by the Supreme Court in June (J. Breyer took no part in the decision). In that decision, Monsanto Co. v. Geertsons Seed Farms, the Court overturned a similar ban, on the planting of genetically modified alfalfa, again until the USDA completed an Environmental Impact Statement. The majority concluded that the scope of the injunction—which prohibited any partial deregulation of the biotech alfalfa until the statement was completed—was too broad.
The federal ruling issued Friday took Geerstons into account. Specifically, the judge was careful to leave room for interim measures that might allow planting to proceed, so long as:
► Interim measures adequately protect the public’s interest in completion of a thorough environmental assessment; and
► No irreparable environmental harm occur in the interim.
Unlike gentically modified alfalfa, which had yet to be commercialized, genetically modified beets currently make up the vast majority of the United States' crop.
Among the benefits claimed for the new technology, are the assertions that genetically modified beets
require fewer herbicide applications to effectively control weeds. Fewer trips across the field mean reduced greenhouse gas emissions, reduced soil erosion, reduced soil compaction and enhanced water conservation. These sugar beets are helping growers manage weeds, improve productivity and lessen impacts on the environment, while preserving a sustainable and geographically diverse supply of sugar.
Supporting Monsanto, the sugar beet industry also asserts:

Independent scientific analyses conducted by internationally recognized laboratories showed that the sugar from Roundup Ready sugar beets, which are enhanced through biotechnology, is identical at the molecular level, to the sugar from other, comparably grown sugar beets.
Even if true, molecular equivalence of the ultimate food product says nothing about the impacts that genetically modified beet plants might have on their environment.
In particular, the technology’s critics contend that gene flow between genetically altered crops and conventionally grown food, or wild relatives, might result in irreversible genetic pollution. This concern has particular traction with sugar beets because genetically modified beets have been embraced by farmers and now representing about 95% of the sugar beet crop, accounting for about half the United States' annual sugar production.
Genetically modified crops in the United States fall in a nether zone—a patchwork of federal regulation under the auspices of the Agriculture Department, the Environmental Protection Agency, and the Food and Drug Administration. In theory, no genetically engineered organism is approved for commercial use until its proponent has demonstrated that the GM organism conforms with the standards set by federal law. Unfortunately, the gap between theory and reality is significant. Part of the problem is that no regulatory agency has a clear statutory mandate to regulate agricultural biotechnology. As a result, no coherent, overarching government policies ensure that this new technology is safely explored and exploited.
The regulatory regime governing biotechnology crops dates back 25 years, to 1986, when the Office of Science and Technology finalized the Coordinated Framework for Regulation of Biotechnology.
The Coordinated Framework, a product of the sharply anti-regulatory Reagan administration, embraced the notion of “substantial equivalence”—that genetically modified organisms were functionally equivalent to their unmodified counterparts and should be treated accordingly. Thus, the Coordinated Framework proclaimed that no new laws were needed to respond to challenges posed by this new technology. Instead, regulatory authority was parceled out to various agencies based on their existing statutory authority.
At its most superficial, the regulatory regime established by the Coordinated Framework is very easy to describe: Food and Drug Administration is responsible for food safety; Environmental Protection Agency is responsible for microbes and pesticides; and the Animal and Plant Health Inspection Service, an agency within USDA, is responsible for all plants. Each agency concentrates on its own narrow piece of the genetic modification universe. With no single agency considering the full range of problems posed by genetically modified crops, regulatory gaps are inevitable. Critics assert that overarching safety questions go unexplored. Because of the assumption of substantial equivalence, the burden of proof is on the authorities to prove that a genetically modified organism is unsafe before they may impose use restrictions.
This ruling highlights a significant breaking point between the supporters and opponents of genetically modified crops.
Supporters point to molecular similarity of the endproducts, while opponents focus on differences in the plants themselves. The approval standards in the United States don’t require consideration of some key environmental concerns. This leaves big gaps and unknowns in the science.
Whether this lack of information as reason for concern or reason to relax depends significantly on one’s perspective about whether regulation should be precautionary or reactive.
Indeed, the United States and the European Union have differed sharply on this point, leading to a 3,000-plus-page World Ttrade Organization dispute resolution decision that, while it ruled for the United States, left this key question unanswered.
There is a difference between a demand for certainty, and a demand that appropriate questions be explored. The former focuses on results—do the fruits of exploration point so conclusively to a particular outcome that no other explanation is tenable. The latter addresses process—has the exploration been structured in a fashion likely to uncover relevant information. Both sets of demands can be obstructionist—the insistence of the Tobacco Institute insistence that the link between cigarettes and cancer was “not proven” is perhaps the best example of how a demand for certainty can be wielded to prevent otherwise reasonable social actions. However, to suggest that demands for more or more appropriate study are always or even predominantly obstructionist is to caricature wholly legitimate and important public participation in public decisionmaking.
The lack of a transparent, well-organized regulatory system threatens public trust in biotechnology and, more fundamentally, in government itself. The success of agricultural biotechnology depends fundamentally on society’s willingness to accept and consume food produced via this technology. This willingness hinges on the level of trust that the technology is being developed and used in a safe manner. Adequate regulatory oversight and information gathering are central to the future of the technology.

 
Bloggers Team