On December 6

On this day in ...

... 1947 (65 years ago today), President Harry S. Truman dedicated Everglades National Park, thus setting aside for conservation 1.5 million acres of wetlands and subtropical wilderness in south Florida. His dedication speech lavished praise on the site:

'Here is land, tranquil in its quiet beauty, serving not as the source of water, but as the last receiver of it. To its natural abundance we owe the spectacular plant and animal life that distinguishes this place from all others in our country.'

To this day, the park is home to threatened species like the Florida panther and the American crocodile, to multiple fish and wading birds, and to a huge mangrove forest. (credit for photos here and here)

(Prior December 6 posts are here, here, here, here, and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'Shark fins do not constitute a traditional ingredient of the European diet, but sharks do constitute a necessary element of the Union’s marine ecosystem; therefore, their management and conservation, as well as, in general, the promotion of a sustainably managed fishing sector for the benefit of the environment and of the people working in the sector, should be a priority.'

– One of several amendments aimed at stiffening the ban on removal of fins of sharks aboardship, which the European Parliament adopted Thursday. A 2003 ban on the practice had been riddled with loopholes, prompting Rapporteur Maria do Céu Patrão Neves (right), a European Parliament member from Portugal, to propose the amendments just adopted, the full text of which may be found at pp. 104-10 of the document available here. (photo credits here and here) As posted, efforts to restrict shark finning appear to be on the rise.

BP Guilty Plea: Vindication or Drop in the Ocean?

Four billion dollars.
That is the total of the criminal fines the Department of Justice has assessed against BP for its criminal actions associated with the 2010 Deepwater Horizon spill, the worst environmental disaster in US history. As described in posts available here, the 2010 explosion (left) and oil spill killed 11 people, and sent millions of gallons of oil gushing into the Gulf of Mexico. (photo credit)
BP will plead guilty to 14 criminal charges related to the disaster, including twelve felonies and two misdemeanors:
► Eleven of the felony guilty pleas are for BP’s criminal violations of 18 U.S.C. § 1115 (Misconduct or Neglect of Ship Officers), for negligence that resulted in the 11 worker deaths. The twelfth felony guilty plea is for violation of 18 U.S.C. § 1505 (Obstruction of Congress), by misrepresenting the flow rates from the wells – the company reported flow rates of 5000 barrels a day, despite internal BP data showing flow rates at least an order of magnitude greater.
► The misdemeanor guilty pleas are for violations of the Clean Water Act, 33 U.S.C. §§ 1319(c)(1)(A) &1321(b)(3), and the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 and 707(a).
Under the plea deal, BP will pay $1.256 billion in criminal fines, $2.394 billion for remediation efforts, and $350 million to the National Academy of Sciences.
In a parallel proceeding resolved along with the criminal charges, BP also agreed to $525 million to settle civil charges, brought by the U.S. Securities and Exchange Commission, for misleading regulators and investors about the flow rate of oil from the well. With the SEC settlement, the aggregate amount of the deal announced Friday is approximately $4.5 billion, with payments scheduled over a period of five years.
Four and a half billion dollars, by many measures, is a lot of money.
It is more than the nominal gross domestic product of 44 nations, including Belize and Montenegro, and roughly on par with that of Kyrgyztan.
It is well over half of 2011 budget of the U.S. Environmental Protection Agency, which is $8.7 billion.
However, $4.5 billion is significantly less than the $7.7 billion profits BP reported in the fourth quarter of 2011.
The criminal penalty assessed for the worst environmental disaster in the United States' history did not even amount to one quarter’s profit for the main perpetrator!
Context is everything.
Whether one views the goal of criminal punishment as retribution or deterrence, it is difficult so see how the proposed plea deal and penalty accomplish the goal. Eleven people are dead because of BP’s criminal actions. Untold numbers of fish, endangered turtles, marine mammals, and seabirds perished because of BP’s criminal actions.

Aerial view of spill a month after explosion, with inset locator map

During the 87 days it took BP to finally stop the leak, over 4.9 million barrels of crude oil (170 million gallons) gushed into the Gulf of Mexico. For perspective, that makes the BP spill about fifteen times the size of the Exxon-Valdez disaster of 1989.
Vulnerable marine and coastal ecosystems were contaminated, perhaps beyond repair, because of BP’s criminal actions.
Had the company lost at trial, BP could have faced up to $40 billion in fines for its criminal actions. Instead, BP has agreed, with great fanfare, to pay less than one quarter’s profit as a penalty. When measured against the devastation BP wrought, as well as BP’s profit margin, this settlement for one-tenth the potential criminal liability looks like a pretty sweet deal for the company.
Moreover, under the terms of the settlement, BP will have five years to pay the assessed penalties, with nearly half the penalty not due until 2017. At standard present value calculations, the fine will actually cost BP somewhere around $3.74 billion.
There is another context that matters as well.
BP is a criminal recidivist – a repeat offender.

Rhino horn trading & resilience of criminal networks

(Many thanks to IntLawGrrls for inviting me to contribute this introductory post)

Wildlife crime is a growing global problem, with major implications for biodiversity conservation.
The trafficking of rhinoceros horn provides a clear illustration of the difficulties that are encountered in attempting to combat the illegal transnational wildlife trade. All five species of rhinoceros are under threat; three of the five ((Black, Sumatran and Javan rhinos) have ‘critically endangered’ status on the Red List of Threatened Species produced by the International Union for the Conservation of Nature, a Switzerland-based nongovernmental organisation. (prior IntLawGrrls posts here, here, here, here, and here)
While habitat destruction is contributing to a massive decline in numbers of rhinos worldwide, poaching for horn is the main culprit.
Recently I wrote a paper about the illegal trade in rhino horn, as part of the Transnational Environmental Crime Project being undertaken at the Australian National University. The project is funded by the Australian Research Council, and conducted in partnership with the Australian Department of Sustainability, Environment, Water, Population and Communities.
About 80% of the remaining world rhinoceros population is in South Africa. In the last five years, the numbers of rhinoceros poached in that country alone has increased exponentially, rising from 13 in 2007 to 448 in 2011. The 2012 number is well on the way to surpassing 500.
The population growth rate for South Africa’s estimated 20,700 rhino is 6% per year, but rhino poaching escalated by 35% between 2010 and 2011 alone.
These figures have given rise to concern that extinction of the species is a real possibility, despite the limits on trade imposed by the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, known as CITES.
The main black market for rhino horn lies in Southeast Asia, particularly Vietnam and China, where demand is driven by a belief that horn has curative properties for a range of ailments (recently expanded to include cancer), and by its use as a status symbol amongst elites. Organized crime networks are taking advantage of opportunities, presented by cultural norms and by the wealth of the growing middle class in the region, to traffic rhino horn to these markets.
Greed is a powerful driver of the trade, with enormous profits to be made. But this alone does not alone determine the trade’s sustainability.
As my paper notes, the illegal trade in wildlife is increasingly meeting with resistance from states and the international community, in the form of law enforcement and regulatory initiatives. Both money and effort are going into training and deployment of personnel to patrol poaching hotspots. New technologies for monitoring rhinos and tracking and catching poachers and smugglers are being deployed. More international agreements, designed to strengthen political will and law enforcement responses, are being signed. Campaigns are under way to inform consumers that rhino horn has no medicinal qualities and make them aware of the horrendous consequences of the trade for the animals themselves.
So why does the illegal trade persist?

On September 27

On this day in ....

(credit)

... 1937 (75 years ago today), occurred the last killing of a Balinese tiger, in western Bali. The occasional claimed sightings of members of the subspecies never were substantiated, and these tigers are now believed extinct, as is another of the 3 subspecies found in Indonesia, the Javan tiger. The 3d, the Sumatran tiger, is critically endangered. Loss of habitat and hunting parties, like the 1911 one pictured at right, are said to be the causes.

(Prior September 27 posts are here, here, here, here, and here.)

On August 28

On this day in ...
... 1867 (145 years ago today), a Navy captain "formally took possession," on behalf of the United States, of a 2.4-square-mile coral atoll comprising several islands in the North Pacific, a third of the distance from Honolulu, Hawaii, to Tokyo, Japan. "The atoll became the first Pacific islands annexed by the U.S. government, as the Unincorporated Territory of Midway Island, and administered by the United States Navy. Though considered part of the Hawaiian archipelago, it is a separate territory and not part of the State of Hawaii. It is, however, part of a U.S. wildlife preserve known as the Papahānaumokuākea Marine National Monument. (credit for photo by Suzanne Canja of so-called gooney birds; Midway is home to the world's largest population of these Laysan Albatross) Midway's bounty and history are described here.

(Prior August 28 posts are here, here, here, here, and here.)

Fin skinned

Official functions in China soon will have to do without a "delicacy."
Shark fin soup is to be banned within the next 3 years, according to a report published by Xinhua, the government-run news agency. (photo credit)
China's Government Offices Administration of the State Council will be "instructing all levels of government agencies," Xinhua reported, "to restrict expenses on luxury food at official receptions, and impose stronger supervision over banquets funded with public money."
The Washington, D.C.-based NGO Humane Society International praised the promise of a ban:

'The news that the government of China will stop serving shark fins marks a watershed moment for the global movement to protect sharks and pushes China onto the world’s stage as an emerging leader in shark conservation.'

Not addressed by China's announcement are non-official-function sales of shark fins -- the consumption of which is said to be contributing to the endangerment of numerous shark species.
Thus will be interesting to see whether and when a makeover's in store for the menu board in the photo at right. Yours truly captured the image last month outside a Shanghai restaurant said to have hosted Clintons and Castro, among other global notables.

Another Sad World Ocean Day

Viewed from space, the Earth is dominated by oceans. Indeed, oceans cover more than 70% of the surface of the planet. And the marine environment is by far the largest ecosystem on Earth, with many distinct and irreplicable sub-ecosystems. In terms of ecosystem services, habitat, and vulnerability to human-induced threats the marine environment is unrivaled. Yet, we know remarkably little about this immense, beautiful and vulnerable ecosystem.
The graph at right, from a 2010 article by Webb, et al., documenting our chronically under-informed state concerning the deep ocean, is particularly illustrative.
The reds and oranges on the graph shows where we have significant knowledge about ocean life, and the blues and yellows indicate regions of the ocean for which we have very little information. There are vast sections of the ocean, indeed, the overwhelming majority, for which we have little or no information on what lives there. (image credit)
As we've posted, in December 2008, the U.N. General Assembly designated this day, June 8, as “World Oceans Day” (resolution 63/111, paragraph 171). World Ocean Day is an opportunity not only to recognize the limited state of is our knowledge about the oceans, but to pause and take stock of what we do know about the current state of the world’s oceans. In his World Ocean Day message, U.N. Secretary General Ban Ki-moon proclaimed:

'World Oceans Day is an opportunity to reflect on the importance of oceans to humankind’s sustainable development. It is also a time to recognize the many severe challenges related to oceans.'

Taking stock of the state of the world’s oceans is a depressing task and each year the news seems to get worse. Some statistics:
► According to the National Oceanic and Atmospheric Administration, the worldwide ocean surface temperature this past April was 0.38°C (0.68°F) above the 20th century average of 16.0°C (60.9°F). It was the 11th-warmest April on record.
► Both the Atlantic and Pacific oceans have garbage patches, where, due to ocean currents known as gyres, millions of tons of plastic that has been dumped into the world’s oceans accumulates, killing seabirds, marine mammals and fish. (credit for photo of plastic-bag pollution)
► This past Sunday, the European Project on Ocean Acidification warned the Intergovernmental Panel on Climate Change of measurable changes that had already occurred in ocean chemistry and pH, with a marked fall in pH over the past few decades. This means that the world’s oceans are already acidifying, and the process is only expected to continue, jeopardizing marine food webs in the process.
► The world’s coral reefs are suffering a global bleaching event, possibly the worst ever recorded.
► The United Nations' Food and Agriculture Organization reports that 32% of the worlds fisheries are either overexploited or depleted, with the overwhelming majority of the rest fully exploited. That means there is no room for fishing to increase even as human population increases by more than a third, to over 9 billion by midcentury and 10 billion by 2100.
► In the Gulf of Mexico, unusual turtle and marine mammal mortalities are being attributed to the millions of gallons of oil released because of the 2010 BP oil spill (prior posts available here), and because of BP’s subsequent decision to dump massive quantities of toxic chemical dispersants.

Beset by warming, acidification, bleaching, overfishing, and plastic and other pollutants, the world’s oceans are in serious jeopardy. International and domestic laws seem powerless to reverse these trends and protect coral reefs, fish populations, and ecosystem integrity.

As if these existing threats were not enough, the world’s oceans are facing yet another threat -- contamination from radioactivity.

Earlier this year, as chronicled in posts available here, an earthquake and tsunami destroyed the Fukushima nuclear facility in Japan. In a desperate attempt to avoid a catastrophic meltdown, the Tokyo Electric Power Co., known as TEPCO, began pumping seawater into the facility.
Now, even as pumping of water into the damaged reactors continues unabated, TEPCO is struggling to cope with an additional problem -- tens of thousands of gallons of contaminated water. Somewhere between 10,000 and 15,000 gallons of that water has already been dumped back into the ocean, and an untold amount has reached the ocean through other means. (credit for map of Japan with Fukushima prefecture in red)
Already, Greenpeace has documented high levels of radioactive iodine in fish and waters more than 40 km from the damaged reactors. Whatever contamination has already occurred as a result of releases from the damaged nuclear facility might be about to get much worse.

The French company Areva is currently setting up treatment plants to decontaminate the radioactive water used to cool the devastated Fukushima nuclear facility. The plan is that the treated water will then be dumped back into the ocean.

Areva already operates a similar decontamination facility off the coast of Normandy. That French facility has been a hotbed of controversy, because of alleged harms from the same process Areva proposes to use in Japan. For decades, Greenpeace and Physicians for Social Responsibility have repeatedly alleged that the water released from this French facility still contains illegally high levels of radioactivity. Moreover, the treatments proposed at Fukushima stretch this technology beyond all past experience. Indeed, the best that Areva’s spokeswoman could offer was:

'Honestly it’s hard to say how it will work. We hope everything will be fine.'

Not exactly the ringing endorsement we might have hoped for on World Ocean Day.

On April 19

On this day in ...
... 1920, the U.S. Supreme Court issued its judgment in Missouri v. Holland. The case involved a 1918 federal statute enacted to implement a 1916 U.S.-Britain treaty that aimed to protect birds that traveled between the United States and Canada (at the time, a British holding). (photo credit) The opinion for the Court, by Justice Oliver Wendell Holmes, Jr., rejected a challenge based on a contention that enforcement of the law against citizens of a constituent state would violate the 10th Amendment to the U.S. Constitution, which reserves to the states powers not delegated to the federal government. Interpreting the President's treaty-making power to be "not limited to what may be done by an unaided act of Congress," Holmes posited an overarching national interest in wildlife protection. Two Justices dissented but did not file an opinion explaining their opposition.

(Prior April 19 posts are here, here, here, and here.)

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.

On October 12

On this day in ...
... 1998, the Appellate Body of the World Trade Organization issued its report in a case brought by India, Malaysia, Pakistan, and Thailand, entitled United States - Import Prohibition of Certain Shrimp and Shrimp Products. The suit concerned a U.S. decision to restrict the importation of shrimp harvested by means that the United States determined risked undue "incidental taking" of endangered species of sea turtles. (credit for U.S. government photo of turtle escaping net thanks to the requisite TED device) The WTO Appellate Body interpreted Article XX of GATT, the General Agreement on Tariffs and Trade that governed the dispute, which permits countries to take certain actions that might limit trade in order to "protect...animal...life or health," or to "conserv[e]...exhaustible natural resources." The precise actions of the United States, though they fell within these exceptions, nevertheless were held in violation of the Article XX prohibition on "arbitrary or unjustifiable discrimination between countries where the same conditions prevail."

(Prior October 12 posts are here, here, and here.)

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.”

Ballet at Sea? Who does BP think it is kidding?

Much of BP’s s-called “charm offensive” (e.g. attempts to spin the Deepwater Horizon disaster as less than catastrophic) is already well known. The shameless attempts to minimize size of the spill, the ridiculous commercials, the attempts to prevent reporters from informing the public about the horrendous effects the oil is having on wildlife (warning—very upsetting video) and beaches, the dead sperm whale found not far from the spill, not to mention the 11 oil workers who lost their lives, all show a company more focused on minimizing liability exposure than on minimizing the harms that flow (no pun intended) from its actions.
But, even with all that evidence that BP’s crisis management cares more about damage control than on transparency, this “Report from the Gulf” on BP’s website made my jaw drop. I am all for finding the beauty in the everyday, but who do they think they’re kidding??? Oil skimming is dirty, polluted work that puts the health of the clean up workers, whom BP at first didn’t even provide with protective gear, at risk, even as it barely makes a dent in the toxic soup they are spewing into the Gulf.
A few days ago, the Representatives Henry A. Waxman (D-Cal.) and Bart Stupak (D-Mich.), of the House Committee on Energy and Commerce sent BP a fourteen page letter detailing all of the multiple errors and poor choices that combined to create this disaster. Each one involved choosing to minimize costs by increasing risks. I have previously blogged about how the poor deregulatory choices the U.S. made over the last decade enabled BP to be so cavalier with the public good. (here, here and here). But, no amount of thinking about how this crisis occurred, or what lessons to learn from it could prepare me for the unmitigated gall of a company in full CYA mode. Hayward's testimony yesterday was more of the same.
In case you missed it, here is a link to a Rachel Maddow segment where someone read the “report” aloud against a backdrop of what sea skimming actually looks like.

p.s. This is a take that sums up the hypocrisy of BP’s “manage the public” approach to crisis response.

A Grim World Oceans Day

Today is the Second Annual Commemoration of the United Nations' World Oceans Day, first proclaimed by the General Assembly in ¶ 171 of Resolution 63/111 (2008). (Prior IntLawGrrls posts.)
The theme for this year’s celebration is “Our oceans: opportunities and challenges."
Unfortunately, right now the challenges are pretty overwhelming.
In last year's World Oceans Day speech, U.N. Secretary-General Ban Ki-Moon acknowledged that

human activities are taking a terrible toll on the world’s oceans and seas.

And, that was before Deepwater Horizon pumped hundreds of thousands of gallons of oil into the Gulf, killing an unknown number of fish, marine mammals, sea turtles and birds. (Prior IntLawGrrls posts available here.) The toxic dispersants being sprayed by the ton are taking an additional heavy toll. All told, the Gulf ecosystem has been devastated in ways that were unimaginable a few short months ago.
As we struggle to respond to the acute crisis of oil in the Gulf of Mexico, it is easy to lose sight of the profound impact that Global Warming is having on the world's oceans. Polar ice caps are melting, coral is dying, fish stocks have collapsed, and ocean acidification may be eroding the base of the ocean food chain.
Secretary-General Ban's 2010 World Oceans Day message is as timely as it is troubling:

The diversity of life in the oceans is under ever-increasing strain. Over-exploitation of marine living resources, climate change, and pollution from hazardous materials and activities all pose a grave threat to the marine environment.

UPDATE: A few hours ago, Jane Lubchenco, Administratof of the National Oceanic and Atmospheric Administration confirmed that deep sea plumes of oil are spreading across the Gulf. A very bad World Oceans Day just got much worse.

Coming soon to the ICJ: Australia v. Japan over whaling

In a joint release, Australia's foreign and environmental ministers announced yesterday that early next week, "Australia will initiate legal action in the International Court of Justice in The Hague against Japanese 'scientific' whaling in the Southern Ocean."
The twin goals, they said, are:
► in the shorter term, "to bring to an end Japan's program of so-called 'scientific' whaling" (prior IntLawGrrls posts here and here), and
► in the longer term, "to do what it takes to end whaling globally."
The decision comes after the failure to date of diplomatic efforts, not only with Japan on a bilateral plane, but also, on a multistate level, with member states of the International Whaling Commission (logo above left). Yesterday's release was notably pointed in its criticism of some in the latter group:

Recent statements by whaling countries in the Commission have provided Australia
with little cause for hope that our serious commitment to conservation of the world's whales will be reflected in any potential IWC compromise agreement.

How will the decision affect bilateral relations? The Australians said:

Both Australia and Japan have agreed that, whatever our differences on whaling, this issue should not be allowed to jeopardise the strength and the growth of our bilateral relationship.

While a Japanese minister said upon hearing yesterday's announcement:

I do not wish to harm Japan-Australia relations over all, but I hope to assert that what’s wrong is wrong.

He did not mean to refer to his own country's practices.

Should We Nationalize the Response to Deepwater Horizon?

Deepwater Horizon is an unparalleled disaster, but it is also the inevitable result of a concerted and ongoing assault on the regulatory state.
The Bush administration did its best to gut the health and safety regulations, a project in which it was aided, abetted and funded by regulated industries. Indeed, as recently as last month, BP was still asserting that environmental risks from its offshore drilling activities were non-existent!
In 2002, the U.S. Coast Guard and the oil industry conducted a simulated response to an oil spill. One clear lesson from the exercise was that the industry did not have the technology to respond to a spill. The Coast Guard wrote in its after-report:

'Without requirements in place to require use of new response technologies they will not be developed and deployed adequately.'

That was eight years ago. Unfortunately, regulatory oversight was non-existent during the Bush years, and nothing happened.
After the Deepwater Horizon crisis began, President Obama partially reversed his earlier decision in favor of offshore drilling, and announced a moratorium for drilling new offshore wells. Unfortunately, the message doesn't seem to have gotten through. The New York Times reports that Mineral and Mining Service has been issuing permits anyway.
This moratorium must be invigorated and extended.
But what about the growing chorus demanding that the federal government take charge of the response to the disaster unfolding in the Gulf?
Dissatisfaction with BP’s transparency, its attitude, and its CYA approach to the cleanup are fueling the calls for taking direct governmental control over the response process.
To my mind, the real question is this:

What would change if we nationalized the response to the Deepwater Horizon blowout and spill?

It seems to me that there are three pressing goals:
► 1) stop the oil gushing into the gulf;

► 2) increase transparency; and

► 3) minimize and, if possible, reverse the ongoing environmental damage.

(Responding to economic injuries is obviously an equally pressing goal, but that process is already ongoing, and does not raise the same kind of “control of the process issues” that inhere to the ongoing environmental crisis. And, unfortunately, nothing can bring back the 11 people who perished in the explosion depicted above left.) (credit for April 21 photo)

I am not persuaded that the federal government needs to take actual control over the response in order to achieve whatever is possible on those fronts. Let’s take them in turn.

1) Stop the oil gushing into the Gulf. The federal government clearly has the authority to “federalize” the attempts to stop the flow of oil into the Gulf of Mexico. Section 311(c) of the Clean Water Act gives the government the authority to direct removal actions for a discharge determined to be a substantial threat to the public health or welfare of the United States. The April 29 designation by Homeland Security Secretary Janet Napolitano (right), stating that Deepwater Horizon is “a spill of national significance” under Section 300.323 of the National Contingency Plan, would seem to satisfy that criterion. Moreover, Section 2704(c)(3) of the Oil Pollution Act and Section 300.415(b) of the National Contingency Plan clearly contemplate that the federal government might conduct removal actions.

However, I am not persuaded that it is what we need most. As National Incident Commander Admiral Thad Allen said on Monday, in response to Interior Secretary Ken Salazar’s threat to push BP aside:

'[A]nd replace them with what?'

It is looking more and more like a relief well is going to be the only viable solution. If that is the case, it is really not clear how direct federal control would help things: the drilling of such a well or wells can’t be sped up, and the federal government would still need BP’s technical resources to drill the well, and to operate the technology.

Of course, Admiral Allen didn’t help things when he appeared to publicly endorse BP's leader. Admiral Allen may trust BP President Tony Hayward, but the rest of America doesn’t.

So, in terms of stopping the spill, maybe what we need isn’t the government actually doing the response, but instead using its oversight authority to the fullest extent, which the Administration, despite an admirable focus on the crisis, has not always done.

2) Increase transparency. Congress, and the public, have been infuriated by BP’s claims that various aspects of its response to the spill are secret -- in fact, are Confidential Business Information. (BP has made this claim with regard to footage of the leak, and to the composition of the acutely toxic dispersant Corex that it is dumping in the Gulf.) This is an area where the federal government can definitely do more with the authority that it has.

Having dumped 160,000 gallons of Corex, and defied the Environmental Protection Agency's directive to select a less toxic alternative, BP should not be able to turn around and claim that the composition of its chosen dispersant is confidential business information! Shame alone should have kept BP from even trying to do so. The EPA should aggressively use Section 14 of the Toxic Substance Control Act, which allows the EPA to release the information when it is

'necessary to protect against an imminent, unreasonable risk of injury to health or the environment.'

As Richard Denison of the Environmental Defense Fund points out, it is hard to imagine what would qualify as an "imminent unreasonable risk" if this doesn't.

Moreover, under Section 311(c)(1) of the Clean Water Act, the government has the authority to

'make any arrangements for removal or prevention, [and] direct removal actions.'

That authority clearly includes the authority to demand the release of information, like the videotape footage of the spill itself, that is necessary to make an effective response possible. In particular, without that footage, estimating of the size of the catastrophe is next to impossible, which is presumably the reason BP doesn't want to share it. As soon as independent scientists can analyze the footage, it seems pretty clear that BP's claim, that (only!) 5,000 barrels a day are gushing into the gulf, will lose what little credibility it retains.

3) Minimize environmental damage. Sadly, the feds, the states and local communities are already taking all kinds of actions. But, there is little to be done. The injury is devastating and likely permanent. As IntLawGrrls have noted in posts available here, birds, turtles, marine mammals, fish, and the communities that depend on those resources are suffering and dying.

What the federal government should be doing is shutting down all deepwater offshore wells until the oil industry develops technology for responding effectively to this kind of a crisis.

In light of what has occurred, any well approved with a similarly cursory glance at its environmental and safety risks clearly presents an imminent risk. Before any project can be restarted, we need real environmental impact statements, not categorical exemptions. The environmental impact statements should be prepared by an agency other than MMS, and should include explicit analysis of the technically daunting challenges of responding to a deepwater blowout.

At awful odds, turtle's in trouble

Heard a provocative radio interview yesterday, on a BBC report broadcast in San Francisco.
Irish bookie Paddy Power's taking bets on the 1st species to become extinct as a result of the oil gusher in the Gulf of Mexico. (Prior IntLawGrrls posts available here.)
Unfortunately, couldn't find the audio online. But articles linked here give the gist.
► Odds are that Kemp's Ridley Turtle, the species of the hatchling swimming above right (credit), will be the 1st to go, Power says.
► Not far behind is the bluefin tuna (below right) (credit) -- which, just this past March, failed to win protected status in negotiations under the rubric of CITES, the Convention on International Trade in Endangered Species.
► Louisiana's state bird, the brown pelican, lags in this macabre race, though yesterday's photo of an oil-blackened member of that "brown" species (left) (credit) may alter its odds.
This latest betting option seems to have turned a few stomachs. Power's response?

[T]he Irish bookmaker said it hoped the betting would 'highlight the environmental catastrophe' and the 'sure bet' that it would lead to the loss of some marine species.

The stated goal's a good one -- stirring environmental awareness among the punters, and, as Power said in the radio interview, reminding the human species of the costs of its "greed" for oil.

Power did stop well short of promising to contribute profits to animal welfare. Still, anger would be better placed at the industry (and regulators) responsible for the tragedy and the so-far-ineffective response to same.

On December 23

On this day in ...

... 1911, Adelaide Young was born in New York City. She went to college in Georgia, and then worked at a variety of jobs, among them as a server of tea on transatlantic cruise ship and as a cigarette girl in the New York nightclub that her father owned. As a newlywed Young --- whose prior outdoor experience had been limited to summer-camp counseling in New Hampshire -- in 1934 became the 1st American woman to explore the Himalayas:

Accompanied by her husband, brother-in-law, and an ever-changing cast of local porters, Young preserved botanical specimens for the American Museum of Natural History and slept with a loaded pistol under her pillow as protection against bandits.

(credit for photo of Adelaide, center, on the Young family expedition, along with her husband Jack and her brother-in-law Quentin) Adelaide Young then worked as a journalist for various newspapers in China. She met Ruth Harkness, the woman who brought the 1st giant panda to the United States; on arrival in 1937 at Chicago's Brookfield Zoo, the panda (right) was given Young's nickname, "Su-Lin." (photo credit) A disc jockey in Taiwan before moving back to the United States, Young died in Hercules, California, in May 2008, at age 96.



(Prior December 23 posts are here and here.)

On July 4

On this day in ...
... 1960, the 50th and final star was placed on the current U.S. flag in commemoration of Hawaii having become the 50th state on August 21, 1959, nearly 8 months after its closest predecessor, Alaska.
... 1971, a lowland gorilla named Koko was born at the zoo in San Francisco, California. As detailed here, since Koko was an infant Dr. Penny Patterson (right, with Koko) and colleagues have studied the language abilities of this member of an endangered species. They say that Koko has learned more than 1,000 American Sign Language signs.

(Prior July 4 posts are here and here.)