January 01, 2016

Literary Resources

JoAnne L. Dunec

BOOKS

International Environmental Law and the Global South

Shakwat Alam, Sumudu Atapattu, Carmen G. Gonzalez, and Jona Razzaque, eds.
Cambridge University Press, 2015

It is not commonly realized that the damage presently being done to the environmental rights of future generations is unprecedented in human history. The environment is being damaged not merely on a global scale but also across all barriers of time, for the damage now being done will last for thousands of years.

—Judge Christopher Weeramantry, Foreword, International Environmental Law and the Global South

This book examines international environmental law from the perspective of the global South in terms of the North-South divide, and as noted in Chapter 1, it “is the first volume that examines the North-South divide in international environmental law in its historical context.” As described in Chapter 1,

the terms North and South distinguish wealthy industrialized nations (including the United States, Canada, Australia, New Zealand, Japan, and the member states of the European Union) from their generally less prosperous counterparts in Asia, Africa, and Latin America. . . . However, this volume also recognizes the conflicts and tensions within the North and South. As the negotiations over climate change illustrate, the environmental priorities of certain Southern states, such as India and China, often diverge from those of more ecologically vulnerable nations, such as the small island states.

“Furthermore,” note the chapter authors,

China’s growing economic clout in the global South and middle-income Southern nations’ acquisition of agricultural lands in Asia, Africa, and Latin America for biofuels production and to satisfy domestic food needs (the so-called land grabs) have generated South-South debates about sustainable investment. Similarly, the European Union and the United States have frequently clashed over environmental policy, most notably over the regulation of genetically modified organisms and toxic chemicals and over efforts to address climate change.

“The persistent mistrust between the global North and the global South,” the authors note, “is grounded in colonial and postcolonial economic law and policy. . . . Most Southern countries were under colonial rule when the global North created the legal architecture for contemporary globalization.”

The following overview of the book is provided in the introductory chapter:

The volume proceeds in five parts: Part I addresses the history of the North-South divide and global environmental governance; Part II discusses selected environmental law examples; Part III examines trade, investment, and sustainable development; Part IV addresses environmental justice and vulnerable groups; and finally Part V is devoted to a discussion of options and challenges.

Issues chosen for “in-depth analysis include: water conflicts, access to food, forests and indigenous peoples, trade, investment, energy, extractive industries, human rights, climate change, biodiversity, land grabs, and hazardous waste trade.”

PERIODICALS

Brownfields Redevelopment

K. B. Walker, “The Increasingly Steep Climb to Regulatory Closure for Contaminated Sites,” 24 Environmental Law News No. 1 (Summer 2015), analyzes “[t]wo recent key developments [that] will significantly impact the way prospective purchasers and landowners identify and address the presence of contamination.” According to author, Keith Walker,

[f]irst, the U.S. Environmental Protection Agency [(EPA)] has adopted a new environmental due diligence standard that requires a new focus on soil vapor. The second development is a noticeable shift by federal and state environmental agencies with respect to evaluating human health risks resulting from contaminated soil vapor off-gassing from soil and groundwater which may enter indoor air quality (i.e., “soil vapor intrusion”).

The combined effect, the author notes, “requires (1) more precisely defining the extent of subsurface impacts in multiple environmental media; and (2) more extensive evaluation to determine whether there is a potentially complete exposure pathway for soil vapor intrusion.”

As a result, the “changes have significant impacts for both landowners and prospective purchasers by further complicating purchase and sale negotiations,” observes Walker, “especially in regard to responsibility for completing the investigation and remediation processes.” According to the author,

[t]hey also introduce significant uncertainties in regard to the time it will take and the costs that will need to be incurred with respect to achieving regulatory closure. Consequently, sellers may frequently be forced to either take on significant post-closing obligations or cut purchase prices [and] buyers may have to accept deed restrictions that prohibit the unfettered use of the property and/or require maintenance of human health risk mitigation measures in perpetuity, which may greatly inhibit their ability to re-sell the property.

Furthermore, notes Walker, “new emphasis on indoor air quality, which may or may not be related to the subsurface contamination giving rise to the initial regulatory requirements, introduces a wild card into the equation.”

The first change involves a new standard for satisfying the “all appropriate inquiries” (AAI) requirement, which permits the assertion of the “bona fide prospective purchaser defense to liability under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). (See 40 CFR 312 et seq.) As a result, further investigation may be necessary, which, the author observes, “increases the likelihood of discovering additional previously-undiscovered environmental impacts.”

The practical effect, according to Walker,

means that pre-acquisition environmental due diligence conducted by prospective purchasers will become far more extensive in scope, with a heightened focus on soil vapor. It also likely means additional ambiguity regarding the environmental and human health risks at issue and, consequently, far more heated negotiations over price [and negotiations regarding] responsibility for remediation and/or mitigation measures . . . .

Following a discussion of various approaches to remediation and site closure approaches and changes, Walker concludes that “[t]he amount of analysis necessary to arrive at [site closure], however, will increase at least proportionately with the regulatory standards for granting regulatory closure. And the climb to regulatory closure will become much steeper.”

Energy

D. F. Borchers, “First-of-its-Kind Municipal Solar and Storage Project Under Construction in Minster, Ohio,” Bricker & Eckler LLP (Oct. 16, 2015) and J. Anderson, “7-MW Energy Storage Facility, 4-MW Solar Plant to be Installed in Public Power Village,” Public Power Daily (Sept. 15, 2015), showcase a unique energy storage project, which according to S&C Electric Company (as quoted by Anderson) “is expected to be one of the largest energy storage facilities in the state.” Per Borchers:

The project was developed by American Renewable Energy and Power and is owned by Half Moon Ventures. S&C Electric Company, a global provider of equipment and services for electric power systems, is supplying and building the energy storage facility. . . . The storage component makes it unique.

Per Anderson, Village Administrator Donald Harrod said “[t]he village utility had decided a couple of years ago that it wanted to add solar power to its portfolio, with the idea that this would be helpful for both Minster’s demand-response and for peak shaving [and] the combined energy storage and solar system also is expected to lower the utility’s costs.” Borcher notes,

The project is being built in conjunction with the Village of Minster’s municipal utility. The village has entered into a purchase power agreement (PPA) to purchase the electricity generated by the project. By entering into a PPA, the Village of Minster is able to take advantage of the benefits of solar power while minimizing up-front expenditures and outsourcing operation and maintenance costs.

According to S&C Electric (as quoted by Borcher), “[o]nce complete, the solar + storage system will be the largest U.S. facility of its kind connected through a municipal utility.” The project is anticipated to be in operation by February 2016.

JoAnne L. Dunec