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Chapter 2THE CURRENT STATE OF ENVIRONMENTAL DISCOURSE: IS IT “FAIR” OR OTHERWISE?Chapter AbstractThe previous chapter developed criteria for “fair and reasoned” decisions in the context of our social discourse as it concerns environmental considerations; i.e. whether this discourse was inclusive (or paternalistic), informed, logical, and uncorrupted. The discourse examples addressed here concern (i) “clean coal” and its associated “acid rain,” (ii) agriculturally caused water pollution and its associated “dead zones,” (iii) gas and oil drilling on public lands, and (iv)“species preservation” and its associated obfuscations. They are examined here via our “fair and reasonable criteria.” The conclusions drawn from these case examinations indicate the extents of fulfilling these criteria.IntroductionThe theme of this monograph is that clarity with respect to the ethical norms applicable to a reasoned social discourse concerning the environment enables judgement of the fairness and reasonableness of our current decisions. This discourse has been led by environmental coalitions of non-government organizations (NGOs), industry trade-groups and representatives, and government entities. Decisions for preservation, restoration, or resource development resulted from this discourse. Obfuscations have, however, obscured whether these resolutions were fair: whether they resulted from informed deliberations; whether they resulted from inclusive discourse or merely represent elitist and paternalistic assertions; whether they represent logical conclusions; or whether they met various equity criteria. In previous chapters the framework of Kantian constructivism was presented as a useful organizational device for describing our democratic society’s notions of informed, inclusive, equitable, and reasoned social discourse. It is a framework for helping us to judge whether our notions of criteria for fairness are met, or whether our resolutions are merely paternalistic assertions or perhaps exhibit some other deviancy. In this light, this chapter reviews four examples of our environmental social discourse and associated decisions. These are examined for the purpose of judging our conformance to the fairness and reasonableness criteria, or whether obfuscations have dominated. These four examinations include:“clean coal” and associated “acid rain” abatement efforts,agricultural-based water pollution abatement efforts,gas and oil drilling on public lands,“species preservation” efforts and reactionary obfuscations.Clean Coal and Acid RainCoal and its effectsBeyond Coal is the name for the Sierra Club’s campaign to promote the closings of coal-fired power-generation plants and to replace them with renewable energy sources. Since 2010 in the US, 270 coal energy plants have been closed; which is more than half of the plants existing at the initiation of the campaign. As an indication of the popularity of this endeavor, Michael Bloomberg has given $80 million to Sierra Club’s efforts. In addition, with the Sierra Club’s assistance, a Europe Beyond Coal campaign began in 2017. The latter campaign has already helped prevent a coal plant being built in Kosovo.Prior to 2010, 100 million tons of toxic airborne solid waste - including mercury, uranium and arsenic - were produced annually in the US by coal plants. In 2008, the World Health Organization (WHO) estimated that perhaps world-wide as many as a million lives were previously lost annually due to the health effects of coal; as many as 24,000 lives were possibly lost annually in the US. The WHO also estimated that compared to using natural gas as a fuel, coal is 10 to 100 times more toxic depending upon the type of coal. As part of greenhouse gas emissions, burning coal is the largest single contributor of any fossil fuel. A 2001 European Union Study, “ExternE,” found that when health externalities were considered, the cost of coal-based power was actually twice the market value of the energy generated, and these costs amount to 1to 2 percent of Europe’s GDP. Among these adverse externalities are asthma, lung cancer, other respiratory diseases, cardiovascular disease, and birth defects. In addition, the sulfuric acid from coal has been the major contributor to acid rain and its effects on infrastructure, forests, and water resources.The coal and power generation industries have offered the potentials of clean coal technology as a remedy for the negative aspects of dirty coal. These proposed technologies include gasification of coal, chemical washing of coal, and “carbon capture” for the gas emissions. These technologies are not currently economically viable in that natural gas and renewable energy are cleaner and are also substantially lower cost sources of energy than clean coal. Concerning the potential of clean coal, Robert Murray, CEO of Murray Energy - the largest privately owned coal-mining company in the US – stated, “It is neither practical nor economic, CCS (carbon capture storage) is just cover for the politicians, both Republicans and Democrats that say, “Look what I did for coal!” knowing all the time that it doesn’t help coal at all.” (Parentheses added.) Robert Murray is a member of the American Coalition for Clean Coal Electricity, which has spent millions of dollars to persuade the public that clean coal is the solution to global warming. Other “front organizations” that give the appearance of being unconnected to the coal industry, but that are actually funded by the industry, include America’s Power Army, Families to Represent the Coal Economy, and Kansas for Affordable Energy. These organizations were essentially formed to market the industry’s vision of “clean coal.”For example, in 2010, America’s Power Army launched a “Clean Coal Technology: It Works” campaign aimed at “educating people” at state fairs, festivals, sporting events, college campuses, and town squares through mobile classrooms and other presentations. The goal was to educate the public about the role of clean coal technology in “providing affordable, reliable electricity, well-paying jobs, and cleaner environment.” These efforts supposedly instruct the public about reduced emissions of sulfur dioxide, nitrogen oxide, particulate matter, mercury and carbon.Carbon capture storage (CCS) requires liquifying the CO2 from captured coal emissions and injecting it into a stable underground reservoir. In response to these efforts, Prof. Michael Economides, University of Wyoming, indicated that these reservoirs require 5 to 20 times greater volume than previously estimated, and this renders the storage option not feasible. Capturing and compressing CO2 raises costs by 30-60% above other energy sources such as natural gas and renewable sources. There are, however, two new US power plants that use some version of clean coal technology – Petra Nova and Kemper – the former is located close to Houston and the latter is located in Mississippi. Petra Nova attempts to liquify CO2 and pumps it into oil fields to render additional oil. The Department of Energy’s subsidy for this plant was $290 million. Kemper gasifies the coal in order to attempt cleaner burning. The Department of Energy’s subsidy for Kemper was over $100 million. (As of July 1, 2017, there were 1,600 new coal plants planned in 62 countries.) Neither gasification nor CCS substantially “cleans” the coal.Much of the social discourse concerning clean coal has occurred in the context of presidential politics. At his State of the Union address of 2010, President Obama called for rapid adoption of the clean coal technology in order to “overcome barriers to the widespread cost-effective deployment of CCS within ten years, with the goal of bringing 5 to 10 commercial demonstration projects online by 2016.” Federal Government stimulus subsidies of $3.8 billion were authorized in 2009 for “clean coal development.” On September 20, 2012, the US House passed the “Stop the War on Coal Act,” by a vote of 233-175. This would have eliminated the EPA’s ability to regulate coal-fired power. The Act did not pass the Senate, but on June 19, 2019, President Trump issued his “Affordable Clean Energy Rule” that allowed regulation of carbon emissions from power plants to be the responsibility of states rather than the federal government. This overturned the Obama Administration’s climate initiatives for federally regulating these plants. President Trump has frequently mentioned “clean coal,” but while apparently generating public skepticism with respect to his understanding of the technology. This has been noted by various commentators, i.e. he speaks of “clean coal,” or “beautiful coal” as a campaign-rally slogan in locations where coal mining and its power generation are important to the local economies. (A partial list of these rallies with these slogans can be found on YouTube for the dates of February 29, 2016; March 1, 2016; April 20, 2016; October 4, 2016; October 16, 2016; and August 22, 2017.)In 1985, seven states – New York, Connecticut, Minnesota, Rhode Island, New Hampshire, Vermont, and Massachusetts – plus four environmental groups, sued the EPA over acid rain generated from nineteen coal-fired power plants in Pennsylvania, Ohio, West Virginia, and Kentucky. The “good neighbor” provision of the Clean Air Act’s (CAA) 1999 amendment requires the EPA and the states to assure that air pollution in home states do not affect downwind states. Acid rain is a downwind precipitation containing carbonic acid, sulfuric acid and nitrogen oxide. The “good neighbor” provision of the CAA was designed to control this downwind phenomenon; i.e. downwind pollution that crosses state boundaries was to be regulated by the EPA. This CAA amendment (Title IV) requires large cuts in acid emissions from power plants. This was manifested in EPA’s “Clean Air Interstate Rule.” Because of these regulations, between 2000 and 2006, SO2 emissions declined by 54 percent, and by 85 percent between 1980 and 2012. A 2011 EPA report by its “Office of Science and Technology Policy” estimated that the direct human- health annual benefits from the EPA’s regulation of acid rain was $170 billion. The nonhuman effects of acid rain include forest destruction (especially the New England red spruce), the acidification of water bodies and its associated effects on aquatic life, plus acidic degradation of the organic nutrients in soils. The forest destruction occurs in part through soil degradation that weakens the trees. After this weakening, the red spruce forests were subsequently attacked by the “swift moth” which ultimately killed much of these forests.Coal and “reasoned” discourseCan we claim that the social discourse of “clean coal” is reasoned? The evidence is a bit mixed. We note that the industry’s obfuscations have been refuted by EPA reports and other government agencies, and by the arguments of environmental NGOs such as the Sierra Club and Greenpeace. These obfuscations stemmed from two categories. We should first recognize that much of the propaganda comes from the coal industry which masks its proponents in the form of supposedly non-industry related civic organizations such as Families to Represent the Coal Economy. These organizations have conflicts of interest in being funded by the industry, but these conflicts have now been unmasked. We should also note, however, that the expense in terms of government subsidies and negative externalities, especially health effects, are somewhat hidden from the view of the general public. In the US, renewable energy sources receive little if any subsidies, but their costs are substantially lower than that of a complete cleaning of coal that is sufficient enough to make it as clean as the renewable energy sources.The policy conclusions that follow from the biased arguments of the coal industry are therefore not logical. The evidence indicates that subsidies for clean coal are not warranted, that expansion of the less expensive renewable energy sources are warranted, especially when negative externalities are considered. Furthermore, since pollution crosses artificial political boundaries, regulation must be sufficiently regional in geographic breadth so as to capture the externalities. Should one impose non-compensated negative externalities on another? Equity suggests otherwise. This “crossing of political boundaries,” however, is a problem of “acid rain,” and of the agricultural pollution examined below.The Dead Zone States’ Rights, and State Pollution ResponsibilitiesEvery summer, nutrients from agricultural runoff drain into the Mississippi River and its tributaries. These nutrients then drain into the Gulf of Mexico fueling algae blooms that starve the water of oxygen thereby killing marine life. These nutrients are from crop fertilizers (including on-sight animal wastes), and from concentrated animal feeding operations (CAFOs). The latter include industrialized swine, poultry, and dairy operations all of which have rapidly spread throughout the Mississippi Basin. (These operations are also prevalent in other Southern US states.) Every summer, at the mouth of the Mississippi a dead zone of oxygen-starved seawater is created in the Gulf of Mexico. This year (2019), because of the heavy rainfall in the watershed, the dead zone is expected to reach a record size of 7, 829 square miles (approximately the size of the state of Massachusetts). The “Pure Farms, Pure Waters” campaign of the environmental coalition Waterkeepers is an attempt to promote regulations of CAFOs. Over the last 50 years, these industrialized animal feeding operations have been a growing phenomenon. They involve large concentrations of animals for feeding, and associated large concentrations of untreated animal wastes which are either stored in “lagoons” (earthen sided pools) or are spread in excessive amounts on feeder-crop fields. Subsequent rainfall causes the “lagoons” to overflow, and the manured fields to drain. Like the large dump-truck driving fast down the highway with an uncovered bed filled with fall-leaf cleanup, these lagoons and excessively manured fields intentionally dissipate the waste into negative externalities. This appears to be intended by the design of this concentrated industrial process, i.e. the design of the waste systems of these CAFOs necessitates that the rainfall creates a sewer of untreated animal wastes that eventually drains into the Mississippi Basin. In 2017, the Environmental Protection Administration (EPA) reported that only 30 percent of the CAFOs had the permits required by the Federal Clean Water Act (CWA, 1972). The enforcement of permits, however, was left to the states.In 2005, the EPA initiated its National Aquatic Resource Surveys (NARS) for the purpose of identifying nitrogen and phosphorus pollution in American waters. It found that in the Upper Mississippi Basin -where 61 percent of the land is agricultural - 50 percent of streams had unacceptably high levels of nitrogen and phosphorus. In the Lower Basin, the pollution levels were higher. In response, The Mississippi River Collaborative (MRC) - a coalition of environmental NGOs – was formed for the purpose of seeking stronger EPA oversight of the state-controlled permitting processes for CAFOs. Under the Clean Water Act (CWA), however, the states were to take the initiative in setting standards for, and the regulation of non-point agricultural pollution. The CWA’s authorization of state regulations resulted in legal conflicts. The MRC sued the EPA asking it to regulate this pollution. The National Pork Producers Council, the American Farm Bureau Federation (AFBF), and a coalition of 44 other states and agricultural coalitions joined in defending the EPA’s “states rights” decision, and challenged the MRC’s suit by pointing out that the states were assigned the pollution control under the CWA. Note that the FDA had previously reached a precedent consent-decree for “total maximum daily loads” of agricultural non-point pollution in the Chesapeake Bay area, and the AFBF feared this sort of consent decree might be established for the Mississippi River Basin. These sorts of maximum limits on the total pollution from geographic areas would force the states to regulate under the supervision of the EPA, a practice the AFBF resisted because it considered the EPA to be a stricter regulator than the states acting alone.This sort of area wide regulation under EPA supervision was not, however, the court’s decision. In December, 2016, the court found in favor of allowing states to lead in these regulations. The AFBF argued that, “States are working on the issue; they are performing their role and it would be bad policy to overstep states at this time.” The AFBF general counsel stated, “The time may come when the EPA may no longer reasonably let states remain in the lead. The AFBF and all these organizations will need to redouble their efforts to help generate programs and assistance for farmers to do the good work they want to do and get those right practices in place to see those improvements.” In the meantime (2019), the dead zone is reaching record size.CAFOs and “reasoned discourse”The problem here is that like the downwind pollution from acid rain (reviewed above), downstream pollution is a negative externality forced by upstream producers onto others. The AFBF and other agricultural coalitions have clear conflicts of interest in arguing for the dumping of external costs onto those who are downstream. The science is, however, established concerning the dead zone. The external costs are clear, and are also clearly the result of intentional design, i.e. not by accident. The regulation and supervision must be regional; in this case it must be by a regional body such as the EPA that has authority and intent to regulate the entire Mississippi Basin as an entity. In addition, the political pressure that the agricultural industry places on one state to allow its pollution to flow to another is extreme and corrupting. States are not “performing their role,” and have no incentive to effectively regulate the externalities imposed on other states.The social discourse concerning the dead zone problem appears to be reasoned, but the law is cumbersome in expecting states to regulate. The Waterkeepers associations, and the Mississippi River Coalitions have led the discourse, but this reasoning has not yet led to the resolution of regional EPA supervised regulation. If the individual states do not respond with regulations – and they likely will not – then the time of ultimate resolution is delayed at best.Permit Processes and the Natural Gas GlutThe BLM’s “Resource Management Plans”The Bureau of Land Management (BLM) is a division within the US Department of the Interior. This “division” manages federal lands (largely in the West) such as parks and monuments and other lands that are primarily leased for grazing rights and also oil, natural gas, and mineral leases. To facilitate this, the BLM forms resource management plans (RMPs), which are longer-term visions for the various possible commercial leases or other recreational environmental amenity usage in the areas in question. These RMPs are designed to be revised every twenty to thirty years, but up-to-date shorter-term “master leasing plans” (MLPs) are also designed for the area’s management of current issues. MLPs began in 2010 as a new approach by the BLM for managing oil and gas activity of sensitive landscapes. Before gas, oil or mineral leasing, MLPs are intended to identify and resolve conflicts with local entities such as municipal watersheds, and cultural preservation areas. MLPs are to accomplish this through robust engagement with public interests and various stakeholders, and might use a variety of activity restrictions to manage these conflicts. These leases can be problematic becauseRMPs can only be updated every 20-30 years,RMPs apply areas so large that they don’t take into account various site-specific details that might make specific areas prone to leasing conflicts,the MLPs are can be written separately or concurrently with an RMP so that any area with a need for an MLP can initiate the process to create one.The MLPs are formed without the presumption that there is a prior preference for gas and oil leasing as compared to other uses. By application to smaller areas than the RMPs, the conflicts between drilling, farming, recreational and other local interests can be resolved particularly by capping the amounts of surface disturbance allowed. These plans can also be more “holistic” in controlling facilities such as access roads and other infrastructure. For these reasons, environmental coalitions heralded the initiation of MLPs as providing the opportunity for analyses of issue specifically posed by oil and gas leasing.As an example of the applicability of MLPs, in Southwest Colorado the RMP would allow drilling rigs within a small ski resort, but in forming the MLP, the local maps were consulted so that these site obstructions were eliminated. The “fracking” glut“Fracking” combined with horizontal drilling has produced a glut of natural gas production in the US, and also a radical increase in oil production. For example, the surging oil production in the Permian Basin of Texas, which resulted from the fracking technology, has caused gas production associated with oil pumping to become so large that drillers are paying to have the gas transported off site, or are just “flaring” (burning) the gas at the wellhead. Other producers are reinjecting the natural gas down wells to further pump oil. Despite the glut, the Trump Administration has radically increased issuing gas-exploration leases and drilling permits. The Bureau of Land Management (BLM) – a division of the US Department of the Interior, that has the permit authority – increased the drilling permits from 2,887 in 2017 to 3,991 in 2018. In 2018, the BLM cut the time for processing permits from 120 days to 63 days. Katheleen Sgamma, Western Energy Alliance (WEA) President – WEA being an energy industry trade group – stated about the permit process,“The improvement in automation (for the permit process) started under President Obama, but having an Administration which wants to move forward is even more important.” (parenthesis added). Environmentalists, such as Kelly Fuller of the Western Watersheds Project, claim that the increased speed of the permit process has come at the expense of soliciting and including public input concerning the drilling applications. The applications are posted on the permit web page for 30 days and then withdrawn. This process now only allows a ten-day window for public comments on the permit.At the end of the W. Bush Administration, the BLM leased 77 tracts for oil and gas extraction in Southeast Utah. These leases generally followed the Green River and also clustered at the edges of the Arches and Canyonlands National Parks and Dinosaur National Monument. The sizeable tourist interests indicated their concerns with the potential sight disruptions, and a barrage of lawsuits followed that resulted in court decisions that the process for granting the leases failed to follow the federal law. The BLM canceled the leases. The new Obama Administration sought to avoid confrontations with environmentalists by developing an advanced planning process that would pose possible compromises among the competing interests. The idea was to anticipate the conflicting demands and to be proactive in seeking resolutions prior to legal proceedings.For the public lands posed for lease consideration, the Obama Administration allowed local BLM agents to form Master Lease Plans (MLPs) that considered the input from hunters, anglers, and groups hoping to preserve cultural artifacts. Eight MLPs were finalized across three Western states. They covered lands that bordered national parks and monuments, that contained popular hunting and fishing grounds, and that sheltered cultural artifacts. The Trump Administration responded to the oil and gas industry’s push-back. The MLPs were eliminated along with their solicitation of public input. Kathleen Sgamma, president of the Western Energy Alliance – an industry trade group – said that the MLPs just added additional layers of review to the permit process; that the MLPs added time-consuming processes and duplicative environmental reviews. Assessing contested lands before the leasing fights began, however, gave the BLM a chance to forge consensus among litigious stakeholders, who could agree to protect some areas for conservation while selecting others for development. Mike Freeman, lawyer for the environmental NGO Earth Justice stated with reference to these MLP negotiations, “If they strike a reasonable balance, they’re a lot less likely to be sued. There’s always going to be some conflict, but this goes a long way towards reducing it.” The evidence for this claim is that the number of lease challenges dropped significantly (by one half) after the MLP process was initiated. The Moab Area Master Leasing Plan was the first MLP implemented in 2016. This region is Southeast Utah’s tourist mecca. It occupies Arches and Canyonlands National Parks and is bisected by the Colorado River. It has been the site of oil, gas and potash extraction; it is the site of significant archeological finds; and it was the site of numerous classic Hollywood westerns and other films. The change in administrations, however, eliminated the MLP process. Despite the glut in natural gas, on December 12, 2017, a lease sale in Utah’s Green River Area offered 74 new parcels, more that a 300% increase since the previous year. The shift in priorities was clear; the conservation community was shut out of the process. The new expedited process was applied to 2017’s radical reduction in protections for the Bears Ears Monument and Grand Staircase Escalante Monument, both in Southern Utah. Stephen Bloch of the Southern Utah Wilderness Alliance called this a “lease first, think later” policy that is “fundamentally inconsistent with federal laws that demand agencies think before they act and consider a full range of impacts from selling oil and gas leases.” Michael Saul, Senior Attorney for the Center for Biological Diversity, stated that it is “deeply disturbing that the Trump Administration wants to give fossil fuel companies free rein over public land without community input or disclosing environmental harms.” Senator Maria Cantwell (D-WA), the ranking member of the US Senate’s Committee on Energy and Natural Resources, said,“The fact that the Trump Administration places no value on the booming recreation economy that generates over $887 billion annually is no surprise to those of us who have been watching their shameful record of exploiting our public lands over the last two years.” Of particular concern is the potential for further environmental degradations to local areas from the elimination of the Master Lease Plans. For an example, consider the small town of Vernal, Utah. The BLM’s local office has held a strong reputation for processing the most drilling permits of any BLM office. Vernal is located in the Uinta Basin where there are currently 11,000 oil and gas wells, with thousands more permits already approved. The air quality in the once pristine Vernal area has suffered greatly from the energy development where winter temperature- inversions trap pollutants in a haze that has ozone levels above those of major cities. The Utah Physicians for a Healthy Environment contend that if the BLM’s plans for development are completed, the ozone levels could double. Tom Elder is a retired science teacher and guide at nearby Dinosaur National Monument. He states that on some winter days, Vernal is covered by photochemical smog; “It looks like L.A.” The BLM’s Master Leasing Plans were designed to take these local characteristics into consideration, and manage the drilling process so as to avoid problems such as those found at Vernal. The Department of the Interior has now abandoned MLPs for the expressed purpose of expanding drilling on these public lands.Vernal is close to Dinosaur National Monument where 300,000 tourists visit per year. This generates millions in revenue from recreation and tourism per year, but this depends upon the Vernal area remaining environmentally pristine. Recently, the Tonapah-Nevada field office has been ordered to no longer limit drilling in critical habitat areas. BLM is required by law to consult with the Federal Fish and Wildlife Service (FWS) when considering a drilling permit. The FWS can either issue a letter of concurrence that agrees with BLM’s preliminary environmental analysis or conduct its own review. The consultation between agencies is a pillar of the Endangered Species Act and is one of the few checks on BLM’s authority to lease. An October, 2017, report by the Department of the Interior concerning the barriers to energy development stated that that the costs associated with these BLM and FWS consultations were “unnecessarily burdensome,” and ordered the FWS to streamline their efforts.In 2019, environmental groups tryed to halt a plan to lease over 4,000 acres for oil and gas exploration near the Petrified Forest National Park of Arizona. A suit filed on July 15, 2019, in the US District Court in Phoenix contend that the BLM failed to look at the environmental impacts and effects on water quality resulting from these leases. These land parcels are located on each side of the Park which is over the Coconino Aquifer, the most important and productive aquifer in Northern Arizona for providing a dependable water supply. The oil and gas drilling in this area will use the “fracking” technology. Waters from the Coconino Aquifer will be mixed with environmentally contaminating fracking chemicals and reinjected into the wells. The potentials for contaminating the aquifer, and through spills also contaminating the Little Colorado River and ultimately the Colorado River is considerable. Elizabeth Potter is an attorney for the environmental law group Advocates for the West, and represents the parties to the suit referred to above: The Center for Biological Diversity, The Sierra Club, and Wild Earth Guardians. Potter states in her suit, “Millions of downstream water users rely on the Little Colorado River, which flows into the Grand Canyon and feeds the Colorado River.” She calls the “reasonably foreseeable impacts” of the oil and gas development as “staggering.”“Such development will divert millions of gallons of water from limited local supplies, produce significant quantities of air and water pollution, destroy and degrade landscape and wildlife habitat, and industrialize this quiet, rural area.”This lawsuit gives the federal courts the opportunity to determine if the Trump policies can override environmental law and other laws concerning mineral development. Oil leasing and a rational decision processIn this case of BLM drilling permits, it appears its policies are exclusive rather than inclusive of scientific information. Those potentially affected, such as the downriver interests for the Little Colorado River, were not consulted. With respect to environmental concerns, such as those in Vernal Utah, the plans for managing the local drilling pollution were also discarded. More particularly, since the process for evaluating drilling permits were recently (2017) accelerated, those defending environmental interests have insufficient time for input and consideration. It appears the Department of the Interior’s policies are of exclusion, not inclusion, and are also thereby designed to limit scientific input. The Department’s policy is not fair nor reasonable since (i) it purposely is exclusive of relevant input from local interests, (ii) it is not fully informed especially scientifically informed, and (iii) it is therefore not equitable to these various interests. 5. Species PreservationIn the US, our political movement for wildlife preservation began in the late 1800s. At the century’s turning, the Western frontier had closed with all that its disappearing implied for American culture. The age of electrification was looming with all of its implications. Railroad transportation and telegraph communication linked a culturally coherent continental US. Politically active big agriculture and big industry may have appeared to dominate the Country, but their cultural and political reaction was the progressive era’s Sherman Act with its Standard Oil decision. We were taking from the land all that we could: oil, coal, and the tilling of our great prairies. We also took the wild bison and our great bird flocks. We drove the passenger pigeon to extinction, and the bison, bald eagle, and whooping crane to near extinction. The politics ripened for preservation. The Audubon Society and aviary protectionOutrage over the slaughter of millions of water birds for the millenary business (primarily women’s hats), particularly egrets and other waders, led to the formation of the Massachusetts Audubon Society in 1896. This facilitated further cultural-political changes related to Audubon activities as indicated here:Between 1896-1898, following the formation of the Massachusetts chapter, sixteen other state Audubon Societies were formed. In 1901, these state-level Societies joined in a loose national-level organization to help establish the first National Wildlife Refuge – Pelican Island in Florida in 1903 – and facilitated the engagement of wardens to protect breeding areas in several states. In 1905, the National Audubon Society was formed with the stated priority of protecting water birds of various sorts: gulls, terns, egrets, herons, and others. In 1910, New York State enacted the Audubon Plumage Law which prohibited the sale or possession of feathers from protected bird species. Since New York City was the center of the fashion industry, this substantially changed the women’s fashion trend away from feathered hats. In 1918, the Migratory Bird Treaty Act was passed and signed. It remains one of the strongest laws protecting wild North American Birds. In 1923-24, the Audubon Society established its first system of water-bird sanctuaries in seven Eastern Coast states, and also Rainey Sanctuary in Louisiana and the Theodore Roosevelt Sanctuary on Long Island. This initiated large-scale scientifically-based bird conservation efforts. The Migratory Bird Conservation Act of 1937, plus the Bald and Golden Eagle Protection Act of 1940 were passed under Audubon’s impetus. In 1945, the Audubon magazine first warned about the hazards of DDT.In 1960, the Audubon Society began to document the decline of bird species, including the bald eagle, due to DDT. With Audubon’s engagement, Rachel Carson’s Silent Spring was published in September, 1962.In 1972, The Audubon Society and the Environmental Defense Fund successfully campaigned for the EPA to ban DDT.In 1973, the Endangered Species Act was passed which helped to protect hundreds of threatened and endangered species.In 1980, 79.5 million acres was preserved in the Artic National Wildlife Refuge.In 1987, the last wild California Condor was placed in Audubon’s captive breeding program with other survivors. In 1988, the first condor chick was born in captivity.In 1994, The Bald Eagle was down-listed to “threatened.”In 1998, Audubon held its first “Great Backyard Bird Count,” 14,000 people participated. In 1999, 50,000 participated in the “100th Christmas Bird Count.” In 2000, The Everglades Protection and Restoration Act was passed which committed $7.8 billion to repurchase the polluting farms controlled by Big Sugar. The Everglades is the Country’s most significant threatened aviary. In 2002, more than 40 California Condors were released back into the wild.In 2004, Audubon’s scientists released the first “State of the Birds Report,” the best data available since Silent Spring for documenting our Country’s aviary health. In 2014, Audubon released its “Watershed Climate Report.” This was based on decades of data gathered by Audubon’s scientists. The report predicts that by 2080, 314 species will be threatened, endangered, or possibly extinct due to habitat loss related to climate change.By 1941, only sixteen whooping cranes remained in the wild. By 1963, only 487 nesting pairs of bald eagles remained. Loss of habitat, DDT poisoning, and hunting were our aviary enemies. Rachel Carson’s Silent Spring, published in 1962, emphasized these issues, and reignited the environmental movement. Silent Spring and it noisy opponentsRachel Carson was an employee of the federal Fish and Wildlife Service. In the mid-1940s she became concerned about the use of synthetic pesticides which were developed from military funding after WW II. The Department of Agriculture’s 1957 “fire ant eradication program” involved aerial spraying of DDT, and other pesticides which were mixed with oil and aerial sprayed including over private lands. Observers noted the associated effects on wild birds.The Audubon Society actively opposed these chemical spraying programs, and hired Carson to publicize the federal government’s spraying practices.In 1959, the Department of Agriculture’s “Research Service” responded to Carson’s criticism with a public service film Fire Ants on Trial. Carson called it “flagrant propaganda” that ignored the dangers of spraying pesticides to humans and wildlife. She publicly blamed the 1950s’ decline in bird populations on spraying pesticides. At that time, the 1959 crop of cranberries were withdrawn from the market due to high levels of herbicide. In 1959, the FDA held a meeting on revising pesticide regulations which Carson attended. She noted the aggressive approach of the pesticide industry’s representatives who presented expert testimony that was entirely contradicted by the scientific literature that Carson was studying. During this time, the research at the National Institutes of Health and the National Cancer Institute led to many pesticides being classified as carcinogens.Rachel Carson’s main argument in Silent Spring was that pesticides have detrimental effects on the environment; that they should more properly be called “biocides” because their effects go way beyond the targeted pests. DDT is a prime example, but many other synthetic pesticides are subject to bioaccumulation. Carson accused the chemical industry of intentionally spreading disinformation, and also of public officials of being uncritical of these claims. Although most of Silent Spring concerns the effects of overuse of pesticides on the ecology, much of it also concerns the human effects of these carcinogens. At that time, DDT had been linked to liver cancer. In addition, the overuse of aerial spays of pesticides created insect resistance, and therefore failed to kill the target population. Prior to its publication in September 1962, Silent Spring was peer reviewed by independent scientists with the necessary relevant expertise. The publisher, Houghton Mifflin, was concerned because Carson was about to undergo chemotherapy for cancer, and consequently would not be capable of defending the book through a publicity tour. Before publication, proof copies were distributed to knowledgeable reviewers. Carson also sent a copy to her long-term friend Associate Justice William O. Douglas, an environmental advocate, who provided Carson with some of the material included in her chapter on herbicides. The reception of the book was generally very positive. The publisher was confident that the book was entirely defensible. The book was serialized in The New Yorker, and was selected as a “Book-of-the-Month” for October, 1962. It received a positive review in The New York Times, and excerpts were published in Audubon Magazine.In the weeks before the book’s publication, the chemical industry voiced strong opposition. The general claim was that Carson was attacking all pesticide use, but this was particularly obfuscating since she was careful to argue that the evidence was against overuse, and it demonstrated lack of awareness of the particular chemical’s impact on ecosystems. She concluded her section of DDT with the advice to spray as little as possible to limit the effects on development of resistance. American Cyanamid biochemist Robert White-Stevens was among the most aggressive critics of Carson. He said, “If man were to follow the teachings of Miss Carson, we would return to the Dark Ages, and the insects and diseases and vermin would once again inherit the earth.” Others tried to attack Carson’s personal character and scientific credentials. She was a biologist, not a biochemist. Former Secretary of Agriculture Ezra Taft Benson in a letter to former President Eisenhower stated that, “..because she was unmarried despite being physically attractive, she was probably a “communist.” Monsanto published 5,000 copies of a parody called “The Desolate Year,” (1962) which projected a world of famine and disease caused by banning pesticides.The academic community largely supported Carson’s claims. Public opinion was very supportive. A CBS Reports television documentary “The Silent Spring of Rachel Carson,” April 3, 1963, included segments of Carson reading from Silent Spring, and interviews with other experts were largely well received except the interview with White-Stevens. Carson’s biographer Lear stated, “ in juxtaposition to the wild-eyed loud-voiced Dr. Robert White-Stevens in a white lab coat, Carson appeared anything but the hysterical alarmist that her critics contended.” The 10-15 million people audience reacted positively. The documentary spurred a Congressional review of the hazards of pesticides. This review was also positive to Carson. Within a year of publication, criticism was little. In late 1963, she received “The Audubon Medal” from the National Audubon Society, and the “Cullum Geographical Medal” from the American Geographical Society.Impacts of Silent SpringSilent Spring inspired the “boomer” generation to pay attention to serious environmental science, and in many cases, to personally engage in environmental science. In June of 1968, on the day after Robert Kennedy’s assassination, I was approached by one of the more brilliant young men who worked at Associated Press in Boston, where I also worked at that time. The year before, he had recently graduated from Harvard and was admitted to Columbia University Law School for the Fall term. He had already asked, however, for a year’s delay in admission so he could work for Kennedy’s campaign. Now, his idealism had been shattered. He just wanted to ask what I might have thought about “what to do now?” We, and so many others, were emotionally and physically shattered by the events of that Spring, with both King’s and Kennedy’s assassination. Working long hours motivated by a sense of idealism seemed a fool’s errand. How do I respond to my friend? I didn’t really reflect on an answer; this I couldn’t do since it would be too crushing. I only gently asked, “Can Columbia prepare you in environmental law? That might be worthwhile. You could actually do something meaningful!” To that question, he appeared to straighten up and brightened up a bit. The environmental movement seemed a decent way to spend one’s life. It wasn’t cynical; it was a sort of “Come on, be of use to the world!” Perhaps one could still contribute despite all the troubles around us. The Nation needed to change during the post WW II era. It needed to change from the Vietnam era. It needed to change from the “hippie heavy-rock drug culture.” The environmental movement offered a different perspective, one that was emotionally and mentally engaging and healthy for those individual’s involved, and for the world around us. Rachel Carson was a foundation stone of that movement. The Carson scholar Patricia Hynes stated, “Silent Spring altered the balance of power in the world. No one since would be able to sell pollution as the necessary underside of progress so easily or uncritically.” She was, in the words of Mark Lytle, “The Gentle Subversive.”Carson’s most immediate contribution was the banning of DDT. In 1967, the Environmental Defense Fund was organized as motivated by this issue, and its first significant task was banning DDT. In 1972, the Fund along with the Audubon Society and other organizations succeeded in phasing out DDT from American use.The third significant impact of Carson’s work was the creation of the Environmental Protection Agency (EPA). Carson saw the conflict of interest that the Department of Agriculture had in being responsible for environmental matters related to farm policy, and wrote about this in Silent Spring. The EPA was created in 1970 to handle environmental matters including the phaseout of DDT. History Professor Gary Kroll stated, “Rachel Carson’s Silent Spring played a large role in articulating ecology as a subversive subject – as a perspective that cuts against the grain of materialism, scientism, and the technologically engineered control of nature.”Silent Spring was perhaps the first popular presentation of rational scientific discourse concerning environmental matters. It set a standard for environmental discourse. It was stimulated by the Audubon Society and it directly led to a strong environmental movement spawned during the 1960s. It had a significant impact on the chemical industry, and in 1970 it was the impetus for the creation of a new environmentally oriented federal Agency, the EPA. It substantially led to our current reasoned environmental decision processes.Endangered Species Act of 1973In 1972, President Nixon declared that the current species conservation effort was inadequate. Congress responded, and the Endangered Species Act of 1973 (ESA) was signed at the end of December, 1973. As part of this Act, Congress authorized the Secretary of the Interior to acquire habitat lands necessary for the conservation of threatened or endangered species. The purpose of the Act is to not only protect the species, but also the ecosystem upon which they depend. ESA is administered by the Fish and Wildlife Service and the National Marine Fisheries Service. The significant provisions of the Act include:The federal government must determine whether a species is endangered or threatened. If so, it must list the species for protection as either “threatened or endangered.”If it can be determined, the critical habitat must be designated for the listed species.Federal agencies must use their authorities to conserve both threatened and/or endangered species so listed.For a species to be listed as either threatened or endangered, it usually means that its habitat is itself is being endangered, i.e. the habitat is the thing to be preserved. Therefore the habitat also poses the point of confrontation with so called economic interests. The ESA was written and worded so as to not take so called economic opportunity costs associated with habitat preservation into consideration, but only the existence of the species. The ESA, therefore, poses a program that supports general natural preservation. A 1978 amendment, however, had Congress adding the words “… taking into consideration the economic impact …” in the Act’s provision concerning critical habitat designation. The 1978 amendment, however, linked the listing procedure with the critical habitat designation and its economic considerations. This almost completely halted new listings, with almost 2,000 species being withdrawn from consideration following the amendment’s passage. The habitat in question might have had other valuable commercial value, but the reservation demand (explained in Chapter V) for preservation was not considered under this 1978 amendment. Preserving habitat, however, not only means preservation for the particular species, but also preserving areas in a wild state for other species and for the human visitor who does not disturb the habitat. This poses likely reservation demands and the benefits from eco tourism.The 1982 ESA amendment, however, added the word “solely” to specify that only the biological status of the species would be considered, not the economic impact the habitat preservation might pose. The ESA and its amendments also require that for any listing, the EPA must solicit comments from the public, and that one or more public hearings must be held. Since being placed on the endangered species list, the following have increased in population size as of January 2019:The Bald Eagle increased from 417 to 11,040 pairs between 1963 and 2007. It was removed from the endangered list in 2007.The Whooping Crane increased from 54 to 436 birds between 1971 and 2003.Kirtland’s Warbler increased from 210 to 1,415 pairs between 1971 and 2005. The Peregrine Falcon increased from324 to 1,700 pairs between 1975 and 2000, and was removed from the list in 1999.The Gray Wolf populations increased dramatically in the Northern Rockies and Western Great Lakes States.The Mexican Wolf increased to its minimum population of 109 wolves in 2014. The Red Wolf increased from 17 in 1980 to 257 in 2003.The Gray Whale increased from 13,095 to 26,635 whales between 1968 and 1998, and it was removed from the list.The Grizzly Bear increased from 271 to 580 in the Yellowstone area between 1975 and 2005.California’s Southern Sea Otter increased from1,789 to 2,735 between 1976 and 2005.The San Clemente Indian Paint Brush increased from 500 plants to 3,500 between 1979 and 1997.Florida’s Key Deer increased from 200 to 750 between 1971 and 2001.Texas’ Big Bend Gambusia increased from 24 to over 50,000. The Hawaiian Goose increased from 400 to 1,275 between 1980 and 2003.Virginia’s Big-Eared Bat increased from 3,500 to 18,442 between 1979 and 2004.The Black-Footed Ferret increased from 18 to 600 between 1986 and 2006.Eleven other species have become extinct since the 1973 Act was passed. In general, however, the ESA has been somewhat effective for the preservations of both species and natural habitats.Habitat preservation and a reasoned processAt the end of the 19th century and early years of the 20th century, the US had dramatic loss of species and the threats of still more losses of nationally significant species such as the bison and the Bald Eagle. During the early 20th century’s specie-preservation movement, the Country was able to preserve these two nationally significant symbols, but it lost others. Preserving species currently, however, requires preserving habitat, and that is a point often obfuscated by development interests. The habitat is wanted for development, and therefore the particular species (for example the small fish known as the “snail darter”) is belittled as unimportant. It is, however, the habitat that is particularly important. It represents the environmental preservation. Reasoned discourse requires a public understanding of this habitat preservation issue.ConclusionIn this chapter, 22 environmental coalitions (NGOs) were mentioned, all of which provided scientific evidence to the social discourse that is supposed to lead to informed policy decisions. There were also 6 industry trade-groups mentioned that also provided input. Off course, there were many more of each type of organization providing information to environmental decisions than those listed, but there were also many more decisions than those reviewed here. The public environmental coalitions mentioned in this chapter include: The Sierra Club, The World Health Organization, Greenpeace, Mississippi River Collaborative, Waterkeepers Alliance, Western Energy Alliance, National Academies of Science, American Geophysical Union, American Physical Society, European Academy of Sciences, European Science Foundation, American Association for the Advancement of Science, Western Watersheds Project, Southern Utah Wilderness Alliance, Center for Biological Diversity, Physicians for a Healthy Environment, Wild Earth Guardians, National Research Council, Intergovernmental Panel on Climate Change, Union of Concerned Scientists, National Academy of Sciences, US Climate Alliance.The industry related coalitions and representatives include: American Coalition for Clean Coal Electricity, American Power Army, Families to represent the Coal Economy, Kansas for Affordable Energy, National Pork Producers Council, American Farm Bureau Federation.Environmental matters pose key “wedge issues” for our political process, issues upon which political fundraising depends. The social discourse related to these issues are therefore often contentious. Environmental groups, for example, often use wedge issues as the keys for fundraising. Industry, however, appears forever capable of buying the result it prefers. Since the onset of the industrial revolution, our popular environmental rhetoric has often been ignored, less often in the 21st century than in the 19th. It appears that industry still has the political clout to sometimes limit scientific input to the policy process and thereby bias the fairness and reasonableness of decisions. This is evidenced by the policies towards “acid rain,” the “dead zone” generation due to agricultural runoff, the policies towards gas and oil drilling on public lands, but not the chemical spraying policies thwarted by Carson’s Silent Spring. These have all been reviewed above. The criteria applied to reach these decisions should have been the ethical norms of fairness and reasonableness for these processes, i.e. that the discourse be scientifically informed, inclusive of all affected, and therefore not paternalistic, logical in its deliberations and decisions, and ultimately uncorrupted. The evidence indicates, however, that industry can still buy the political process so as to inhibit logical criteria in actual application. Note that Scott Pruitt, former recent EPA Administrator, and Ryan Zinke, former Secretary of the Interior, were both formerly consultants for the energy industry, and therefore their conflicts of interest should have posed questions for their fitness as competent moral judges, one of the criteria for considered moral judgements in environmental matters. (See Chapter III.) The ethical norms that we understand and believe in are therefore violated, but when we have clarity about these norms, perhaps the process has a higher probability of being improved. This is the meaning of pursuit of the moral community within the environmental context. Carson’s example is still encouraging. Her arguments have become part of our fair and reasoned discourse.ReferencesCarson, Rachel (1962), Silent Spring, Houghton Mifflin, New York, NY.Hynes, H. Patricia (1989), The Recurring Silent Spring, Pergamon Press – Athene Series, New York, NY.Lytle, Mark Hamilton (2007), The Gentle Subversive: Rachel Carson, Silent Spring, and the Rise of the Environmental Movement, Oxford University Press, New York, NY.Lear, Linda (1997), Rachel Carson: Witness for Nature, Henry Holt and Company, New York, NY.Murphy, Priscilla Coit (2005), What A Book Can Do: The Publication and Reception of Silent Spring, University of Massachusetts Press, New York, NY. ................
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