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Coalition Sues NY State for Putting Industrial Milk Production Before Clean Water
A coalition of environmental groups has filed a lawsuit against the New York State Department of Environmental Conservation (DEC) for its deregulation of industrial dairy farms with 200–299 cows. DEC’s rulemaking has rolled back clean water protection standards to allow medium size dairy CAFOs (concentrated animal feeding operations) to operate without a permit, in clear violation of both federal and state law, with the likely result that untreated cow manure will run off into and contaminate nearby waters. The groups are co-represented in the lawsuit by Pace Law School’s Environmental Litigation Clinic and Earthjustice.
Photo courtesy of Shutterstock
Less than a year ago, in a filing with the U.S. Environmental Protection Agency (EPA), the DEC asserted that a non-regulatory approach to medium-sized CAFOs, the same approach it is now taking, would be "neither credible nor effective" to protect the health and environment of New Yorkers. Just six weeks later, Gov. Cuomo announced that New York State would weaken state environmental protections put in place to protect public health, safety and the environment by exempting some medium size industrial dairy operations from its CAFO permit program.
“Factory farms are one of the greatest sources of water pollution in the country,” stated Robert F. Kennedy, Jr., president of Waterkeeper Alliance and chief prosecuting attorney for Riverkeeper. “Deregulating an already dirty business in other states has destroyed water quality and done nothing more than put money in the hands of a few corporations at the expense of the public. It is a shame that New York would want to follow that terrible precedent, rather than support family farms with the resources they need to operate in a way that protects the water quality we’ve fought so hard to maintain.”
“What the state did, when it eliminated key clean water regulations for medium sized dairy farms, is a textbook case of sacrificing the environment in a misguided attempt to advance economic interests," said Paul Gallay, president and Hudson Riverkeeper. "Rather than eliminating these regulations, which had been on the books for years, the state should have assisted farmers in meeting those standards. Instead, they adopted a voluntary approach to protecting our precious rivers, lakes and streams from farm runoff, which they had explicitly rejected as ‘neither credible nor effective,’ only a year ago.”
The groups filed formal comments in response to Governor Cuomo’s proposed rule-making in January 2013, stating that DEC had not adequately reviewed the human health, environmental and economic impacts such an action would have on state and local communities, which it must do prior to taking such an action. An independent team of experts in agricultural waste management also reviewed the proposed rule changes at the request of the groups and concluded that without clean water protections, "human health risks are substantial." In addition, these experts concluded that the proposed rule changes "would likely result in increased environmental degradation of water, soil and air quality."
“The burden of the massive amounts of manure and other waste generated by industrial-sized dairy facilities is borne by the communities who live near them and by the environment,” said Eve Gartner, the Earthjustice attorney handling the case. “Requiring regulatory oversight of the disposal of these tons of manure is just common sense.”
The groups’ lawsuit raises a number of claims against the state’s action, including that:
- DEC exceeded its regulatory authority by creating a loophole for industrial dairies in the Water Pollution Control Law enacted by the New York State legislature, undermining the legislature’s intent to prevent discharges of pollutants into state waters.
- DEC did not adequately examine all adverse environmental impacts the deregulation will have, nor fully consider alternative strategies that could provide both an economic and environmental benefit to the state and its dairy farmers.
- DEC failed to obtain EPA approval as required prior to revising Clean Water Act permitting standards.
- DEC violated the Clean Water Act and state law by making its CAFO Permit Program less stringent than the minimum federal requirements.
“DEC admits that animal manure and other dairy waste will be discharged into New York’s waterways unless these dairy operations voluntarily implement the permitting system pollution controls, which is highly unlikely,” said Marc Yaggi, executive director of Waterkeeper Alliance. “DEC acknowledges that the nitrogen, phosphorus and pathogens that would be discharged pose serious threats to public health, water quality, fisheries, water supplies, recreation and groundwater wells in New York. DEC’s actions are unacceptable and violate state and federal law.”
“The health of New Yorkers cannot be placed at risk by exposing us to raw, untreated manure. Industries should not be exempt from clean water regulations nor should the laws be weakened to accommodate a particular industry. Weakening and ignoring clean water regulations is bad public health policy and unacceptable to the people and environment of our state. Citizens Campaign for the Environment is happy to stand with our partners to protect public health, our water and our environment,” said Adrienne Esposito, executive director of Citizens Campaign for the Environment.
“The false narrative that water quality protections are suppressing milk production will hurt everyone in the long run,” said Roger Downs, conservation director for the Sierra Club Atlantic Chapter. “Clean water is a central element to any successful dairy farm and removing protections that keep manure out of our rivers and streams will only make people sick and harm the quality of milk and the products made from that milk. ”
“The impact of changing the regulation will be felt at a much greater distance than where the cattle waste is deposited because of the brooks, streams and tributaries that will lead to the Hudson River that is used extensively for recreational fishing. Drinking water will also be negatively impacted throughout whatever water system the new regulations allow the spreading of cattle manure,” stated Bert Darrow, president of Theodore Gordon Flyfishers.
Michael R. Helfrich, Lower Susquehanna Riverkeeper, added: “The lower Susquehanna River is thick with algae, mostly from agricultural pollution. We have been working diligently to improve Pennsylvania’s implementation of pollution reductions to heal the Susquehanna River and Chesapeake Bay. We don’t need New York to reduce their standards on controlling their agricultural pollution.”
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By Tara Smith
Fires in the Brazilian Amazon have jumped 84 percent during President Jair Bolsonaro's first year in office and in July 2019 alone, an area of rainforest the size of Manhattan was lost every day. The Amazon fires may seem beyond human control, but they're not beyond human culpability.
Bolsonaro ran for president promising to "integrate the Amazon into the Brazilian economy". Once elected, he slashed the Brazilian environmental protection agency budget by 95 percent and relaxed safeguards for mining projects on indigenous lands. Farmers cited their support for Bolsonaro's approach as they set fires to clear rainforest for cattle grazing.
Bolsonaro's vandalism will be most painful for the indigenous people who call the Amazon home. But destruction of the world's largest rainforest may accelerate climate change and so cause further suffering worldwide. For that reason, Brazil's former environment minister, Marina Silva, called the Amazon fires a crime against humanity.
From a legal perspective, this might be a helpful way of prosecuting environmental destruction. Crimes against humanity are international crimes, like genocide and war crimes, which are considered to harm both the immediate victims and humanity as a whole. As such, all of humankind has an interest in their punishment and deterrence.
Crimes against humanity were first classified as an international crime during the Nuremberg trials that followed World War II. Two German Generals, Alfred Jodl and Lothar Rendulic, were charged with war crimes for implementing scorched earth policies in Finland and Norway. No one was charged with crimes against humanity for causing the unprecedented environmental damage that scarred the post-war landscapes though.
Our understanding of the Earth's ecology has matured since then, yet so has our capacity to pollute and destroy. It's now clear that the consequences of environmental destruction don't stop at national borders. All humanity is placed in jeopardy when burning rainforests flood the atmosphere with CO₂ and exacerbate climate change.
Holding someone like Bolsonaro to account for this by charging him with crimes against humanity would be a world first. If successful, it could set a precedent which might stimulate more aggressive legal action against environmental crimes. But do the Amazon fires fit the criteria?
Prosecuting crimes against humanity requires proof of widespread and systematic attacks against a civilian population. If a specific part of the global population is persecuted, this is an affront to the global conscience. In the same way, domestic crimes are an affront to the population of the state in which they occur.
When prosecuting prominent Nazis in Nuremberg, the US chief prosecutor, Robert Jackson, argued that crimes against humanity are committed by individuals, not abstract entities. Only by holding individuals accountable for their actions can widespread atrocities be deterred in future.
The International Criminal Court's Chief Prosecutor, Fatou Bensouda, has promised to apply the approach first developed in Nuremberg to prosecute individuals for international crimes that result in significant environmental damage. Her recommendations don't create new environmental crimes, such as "ecocide", which would punish severe environmental damage as a crime in itself. They do signal, however, a growing appreciation of the role that environmental damage plays in causing harm and suffering to people.
The International Criminal Court was asked in 2014 to open an investigation into allegations of land-grabbing by the Cambodian government. In Cambodia, large corporations and investment firms were being given prime agricultural land by the government, displacing up to 770,000 Cambodians from 4m hectares of land. Prosecuting these actions as crimes against humanity would be a positive first step towards holding individuals like Bolsonaro accountable.
But given the global consequences of the Amazon fires, could environmental destruction of this nature be legally considered a crime against all humanity? Defining it as such would be unprecedented. The same charge could apply to many politicians and business people. It's been argued that oil and gas executives who've funded disinformation about climate change for decades should be chief among them.
Charging individuals for environmental crimes against humanity could be an effective deterrent. But whether the law will develop in time to prosecute people like Bolsonaro is, as yet, uncertain. Until the International Criminal Court prosecutes individuals for crimes against humanity based on their environmental damage, holding individuals criminally accountable for climate change remains unlikely.
This story originally appeared in The Conversation. It is republished here as part of EcoWatch's partnership with Covering Climate Now, a global collaboration of more than 250 news outlets to strengthen coverage of the climate story.
By Natalie Hanman
Why are you publishing this book now?
I still feel that the way that we talk about climate change is too compartmentalised, too siloed from the other crises we face. A really strong theme running through the book is the links between it and the crisis of rising white supremacy, the various forms of nationalism and the fact that so many people are being forced from their homelands, and the war that is waged on our attention spans. These are intersecting and interconnecting crises and so the solutions have to be as well.
The book collects essays from the last decade, have you changed your mind about anything?
When I look back, I don't think I placed enough emphasis on the challenge climate change poses to the left. It's more obvious the way the climate crisis challenges a rightwing dominant worldview, and the cult of serious centrism that never wants to do anything big, that's always looking to split the difference. But this is also a challenge to a left worldview that is essentially only interested in redistributing the spoils of extractivism [the process of extracting natural resources from the earth] and not reckoning with the limits of endless consumption.
What's stopping the left doing this?
In a North American context, it's the greatest taboo of all to actually admit that there are going to be limits. You see that in the way Fox News has gone after the Green New Deal – they are coming after your hamburgers! It cuts to the heart of the American dream – every generation gets more than the last, there is always a new frontier to expand to, the whole idea of settler colonial nations like ours. When somebody comes along and says, actually, there are limits, we've got some tough decisions, we need to figure out how to manage what's left, we've got to share equitably – it is a psychic attack. And so the response [on the left] has been to avoid, and say no, no, we're not coming to take away your stuff, there are going to be all kinds of benefits. And there aregoing to be benefits: we'll have more livable cities, we'll have less polluted air, we'll spend less time stuck in traffic, we can design happier, richer lives in so many ways. But we are going to have to contract on the endless, disposable consumption side.
Do you feel encouraged by talk of the Green New Deal?
I feel a tremendous excitement and a sense of relief, that we are finally talking about solutions on the scale of the crisis we face. That we're not talking about a little carbon tax or a cap and trade scheme as a silver bullet. We're talking about transforming our economy. This system is failing the majority of people anyway, which is why we're in this period of such profound political destabilisation – that is giving us the Trumps and the Brexits, and all of these strongman leaders – so why don't we figure out how to change everything from bottom to top, and do it in a way that addresses all of these other crises at the same time? There is every chance we will miss the mark, but every fraction of a degree warming that we are able to hold off is a victory and every policy that we are able to win that makes our societies more humane, the more we will weather the inevitable shocks and storms to come without slipping into barbarism. Because what really terrifies me is what we are seeing at our borders in Europe and North America and Australia – I don't think it's coincidental that the settler colonial states and the countries that are the engines of that colonialism are at the forefront of this. We are seeing the beginnings of the era of climate barbarism. We saw it in Christchurch, we saw it in El Paso, where you have this marrying of white supremacist violence with vicious anti-immigrant racism.
That is one of the most chilling sections of your book: I think that's a link a lot of people haven't made.
This pattern has been clear for a while. White supremacy emerged not just because people felt like thinking up ideas that were going to get a lot of people killed but because it was useful to protect barbaric but highly profitable actions. The age of scientific racism begins alongside the transatlantic slave trade, it is a rationale for that brutality. If we are going to respond to climate change by fortressing our borders, then of course the theories that would justify that, that create these hierarchies of humanity, will come surging back. There have been signs of that for years, but it is getting harder to deny because you have killers who are screaming it from the rooftops.
One criticism you hear about the environment movement is that it is dominated by white people. How do you address that?
When you have a movement that is overwhelmingly representative of the most privileged sector of society then the approach is going to be much more fearful of change, because people who have a lot to lose tend to be more fearful of change, whereas people who have a lot to gain will tend to fight harder for it. That's the big benefit of having an approach to climate change that links it to those so called bread and butter issues: how are we going to get better paid jobs, affordable housing, a way for people to take care of their families?
I have had many conversations with environmentalists over the years where they seem really to believe that by linking fighting climate change with fighting poverty, or fighting for racial justice, it's going to make the fight harder. We have to get out of this "my crisis is bigger than your crisis: first we save the planet and then we fight poverty and racism, and violence against women". That doesn't work. That alienates the people who would fight hardest for change.
This debate has shifted a huge amount in the U.S. because of the leadership of the climate justice movement and because it is congresswomen of colour who are championing the Green New Deal. Alexandria Ocasio-Cortez, Ilhan Omar, Ayanna Pressley and Rashida Tlaibcome from communities that have gotten such a raw deal under the years of neoliberalism and longer, and are determined to represent, truly represent, the interests of those communities. They're not afraid of deep change because their communities desperately need it.
In the book, you write: "The hard truth is that the answer to the question 'What can I, as an individual, do to stop climate change?' is: nothing." Do you still believe that?
In terms of the carbon, the individual decisions that we make are not going to add up to anything like the kind of scale of change that we need. And I do believe that the fact that for so many people it's so much more comfortable to talk about our own personal consumption, than to talk about systemic change, is a product of neoliberalism, that we have been trained to see ourselves as consumers first. To me that's the benefit of bringing up these historical analogies, like the New Deal or the Marshall Plan – it brings our minds back to a time when we were able to think of change on that scale. Because we've been trained to think very small. It is incredibly significant that Greta Thunberg has turned her life into a living emergency.
Yes, she set sail for the UN climate summit in New York on a zero carbon yacht ...
Exactly. But this isn't about what Greta is doing as an individual. It's about what Greta is broadcasting in the choices that she makes as an activist, and I absolutely respect that. I think it's magnificent. She is using the power that she has to broadcast that this is an emergency, and trying to inspire politicians to treat it as an emergency. I don't think anybody is exempt from scrutinising their own decisions and behaviours but I think it is possible to overemphasise the individual choices. I have made a choice – and this has been true since I wrote No Logo, and I started getting these "what should I buy, where should I shop, what are the ethical clothes?" questions. My answer continues to be that I am not a lifestyle adviser, I am not anyone's shopping guru, and I make these decisions in my own life but I'm under no illusion that these decisions are going to make the difference.
Some people are choosing to go on birth strikes. What do you think about that?
I'm happy these discussions are coming into the public domain as opposed to being furtive issues we're afraid to talk about. It's been very isolating for people. It certainly was for me. One of the reasons I waited as long as I did to try and get pregnant, and I would say this to my partner all the time – what, you want to have a Mad Max water warrior fighting with their friends for food and water? It wasn't until I was part of the climate justice movement and I could see a path forward that I could even imagine having a kid. But I would never tell anybody how to answer this most intimate of questions. As a feminist who knows the brutal history of forced sterilisation and the ways in which women's bodies become battle zones when policymakers decide that they are going to try and control population, I think that the idea that there are regulatory solutions when it comes to whether or not to have kids is catastrophically ahistorical. We need to be struggling with our climate grief together and our climate fears together, through whatever decision we decide to make, but the discussion we need to have is how do we build a world so that those kids can have thriving, zero-carbon lives?
Over the summer, you encouraged people to read Richard Powers's novel, The Overstory. Why?
It's been incredibly important to me and I'm happy that so many people have written to me since. What Powers is writing about trees: that trees live in communities and are in communication, and plan and react together, and we've been completely wrong in the way we conceptualise them. It's the same conversation we're having about whether we are going to solve this as individuals or whether we are going to save the collective organism. It's also rare, in good fiction, to valorise activism, to treat it with real respect, failures and all, to acknowledge the heroism of the people who put their bodies on the line. I thought Powers did that in a really extraordinary way.
What are you views on what Extinction Rebellion has achieved?
One thing they have done so well is break us out of this classic campaign model we have been in for a long time, where you tell someone something scary, you ask them to click on something to do something about it, you skip out the whole phase where we need to grieve together and feel together and process what it is that we just saw. Because what I hear a lot from people is, ok, maybe those people back in the 1930s or 40s could organise neighbourhood by neighbourhood or workplace by workplace but we can't. We believe we've been so downgraded as a species that we are incapable of that. The only thing that is going to change that belief is getting face to face, in community, having experiences, off our screens, with one another on the streets and in nature, and winning some things and feeling that power.
You talk about stamina in the book. How do you keep going? Do you feel hopeful?
I have complicated feelings about the hope question. Not a day goes by that I don't have a moment of sheer panic, raw terror, complete conviction that we are doomed, and then I do pull myself out of it. I'm renewed by this new generation that is so determined, so forceful. I'm inspired by the willingness to engage in electoral politics, because my generation, when we were in our 20s and 30s, there was so much suspicion around getting our hands dirty with electoral politics that we lost a lot of opportunities. What gives me the most hope right now is that we've finally got the vision for what we want instead, or at least the first rough draft of it. This is the first time this has happened in my lifetime. And also, I did decide to have kids. I have a seven year old who is so completely obsessed and in love with the natural world. When I think about him, after we've spent an entire summer talking about the role of salmon in feeding the forests where he was born in British Columbia, and how they are linked to the health of the trees and the soil and the bears and the orcas and this entire magnificent ecosystem, and I think about what it would be like to have to tell him that there are no more salmon, it kills me. So that motivates me. And slays me.
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By Ben Jervey
Drivers of electric cars are being unfairly punished by punitive fees in several states, according to a newly published analysis by Consumer Reports. Legislators in 26 states have enacted or proposed special registration fees for electric vehicles (EVs) that the consumer advocacy group found to be more expensive than the gas taxes paid by the driver of an average new gasoline vehicle.
By Oliver Milman
Two-thirds of Americans believe climate change is either a crisis or a serious problem, with a majority wanting immediate action to address global heating and its damaging consequences, major new polling has found.