October 05, 2020

Literary Resources

Reviewed by Madeline June Kass

REPORTS

American Bar Association Climate Change Resolution

American Bar Association House of Delegates

August 2019

In the summer of 2019, the American Bar Association (ABA) House of Delegates stepped up its leadership on climate change and sustainable development with adoption of Resolution 111 (Climate Change Resolution). The Climate Change Resolution contains four declarations. First, the Resolution “urges” federal, state, local, territorial, and tribal governments, along with the private sector, to “recognize their obligations to address climate change.” These climate obligations may be fulfilled, according to the Resolution, by reducing greenhouse gas (GHG) emissions and doing their “fair share” to hold down increases in global temperature. Second, the Resolution “urges Congress to enact legislation” to (1) reduce GHG emissions using a range of regulatory tools, (2) “encourage and enable adaptation to climate change,” (3) “provide for a just transition,” and (4) “recognize and incorporate sustainable development principles” in these efforts. Third, the Resolution “urges the United States government” to pursue and remain engaged in international efforts to reduce GHG emissions and adapt to climate change. Lastly, the Resolution “urges lawyers to engage in pro bono activities” that aid efforts to reduce GHG and adapt to climate change and to “advise their clients of the risks and opportunities that climate change provides.”

The report accompanying the ABA Climate Change Resolution (Report) provides background and support for the Resolution. The Report begins with an explanation of how the 2019 resolution fits with, builds on, differs from, and updates the ABA’s 2008 and 2011 climate change resolutions. Next, the Report lays out scientific evidence on the existence of climate change, the adverse public health and welfare consequences of climate change, and the urgent need for action. The Report goes on to describe the current U.S. role in efforts to address climate change internationally and current federal, state, tribal, and local governmental efforts to address climate change nationally.

The final part of the Report looks forward, examining the tools needed to achieve net zero GHG emissions. The Report refers to this goal as “deep decarbonization,” meaning reductions requiring “systemic changes to the energy economy.” Encouragingly, the drafters report that “[m]ore than a thousand legal tools are available to federal, state, tribal, territorial, and local governments, as well as the private sector, to get the job done.” Discouragingly, the drafters identify an enormous “gap” between current law and the laws needed for the herculean task of deep decarbonization. In conclusion, the Report calls on the United States to reclaim a leadership role in addressing climate change.

The ABA views its Climate Change Resolution as a living document. Plans for the upcoming ABA year to implement the Resolution include a special focus on deep decarbonization efforts, as well as pro bono activities. The ABA’s deep decarbonization efforts include making use of subject matter experts such as those in the ABA’s climate change committee, and action via a variety of programming and outreach efforts. Pro bono efforts will seek to enable lawyers across the ABA to pursue pro bono activities for those aspects of climate change where they believe they can have the greatest impact.

The Resolution, along with ongoing ABA work on Resolution implementation, embody the ABA’s commitment and leadership in moving the United States in the right direction. For further information about SEER’s ongoing efforts to implement Resolution 111, feel free to contact Amy L. Edwards (amy.edwards@hklaw.com) or Tracy Hester (tdheste2@central.uh.edu).

Practitioners’ Guide to the Proposed NEPA Regulations

James McElfish

ELI, 2020

In January 2020, the Council on Environmental Quality (CEQ) proposed a major overhaul of the regulations implementing the National Environmental Policy Act (NEPA). According to CEQ, the proposed changes (referred to as a comprehensive “update”) seek to “modernize and clarify the regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action.” 85 Fed. Reg 1684 (Jan. 10, 2020). CEQ held hearings on the proposed NEPA Update in February 2020 and allowed submission of comments until March 2020.

In a Practitioners’ Guide to the Proposed NEPA Regulations (Guide), ELI Senior Attorney James McElfish pinpoints and explains important changes in CEQ’s NEPA rule proposal. The Guide, according to McElfish, is “in the nature of an issue-spotter to assist . . . in determining what changes have been proposed and how they may relate to familiar NEPA regulatory concepts.” Accordingly, the Guide highlights proposed changes to fundamental NEPA rule provisions on categorical exclusions, alternatives analysis, review of environmental effects, use of science, public commenting, agency NEPA procedures, and report preparation, timing, and formatting, among others. As one example, McElfish writes:

CEQ’s proposed rule would completely remove the concept of “cumulative” effects from the NEPA regulations. The sole reference to cumulative impacts in the proposed rule is a new sentence that states, “Analysis of cumulative effects is not required.” The term “indirect effects” would also be entirely excised from the definition of “effects or impacts” . . . and from the evaluation of “environmental consequences” . . . as well as all other places where it currently appears in the regulations.

Regarding use of science, McElfish explains:

In proposed §1502.24, new language says agencies shall “make use of reliable existing data and resources and are not required to undertake new scientific and technical research to inform their analyses.” While consistent with the view that agencies need not create new science or create new methods specifically to comply with NEPA, this provision would represent a substantial change if interpreted to deny the need for field work or study of particular resource environments that are not adequately covered by “existing data and resources.”

On report preparation, McElfish notes, “[t]he proposed rule would allow applicants themselves to prepare EISs and EAs (as long as they are under guidelines from a federal official and ultimately signed by a federal official), will no longer require the agency to select contractors, and removes all the existing conflict-of-interest requirements for contractors.”

In addition to careful attention to provision, word, and definitional changes, the Guide concludes with big picture insights on the consequences of the proposed rule change. First, McElfish asserts, “[i]f adopted as proposed, the regulations would, as CEQ recognizes, necessarily sweep away all existing CEQ guidance documents and handbooks” and “require complete revision of the NEPA procedures of all federal agencies, as well as all their handbooks, manuals, forms, and guidance documents.” Second, “[a]t the same time, the substantive changes would call into question the continuing applicability of a half-century of federal court decisions and administrative tribunal decisions.” Lastly, McElfish concludes,

the proposed rule, if finalized, will likely draw challenges in scores of federal district courts across the country. In addition to substantive issues, it can be expected that there will be fierce contests over standing, ripeness, deference or lack thereof, retroactivity, and the relationship of current agency NEPA procedures (embodied in regulations, handbooks, and contracts) to new CEQ regulations.

Editor’s Note: After submission of this review, CEQ published its final rule updating NEPA. See 85 Fed. Reg. 43,304 (July 16, 2020) effective date Sept. 14, 2020.

BOOKS

Tales from America’s National Parks: Campfire Stories

Edited by Dave Kyu & Ilyssa Kyu

Mountaineers Books 2018

Every now and again I cannot resist slipping in a review of a non-law environmental book of potential interest to NR&E readers. Tales from America’s National Parks: Campfire Stories edited by Dave and Illyssa Kyu falls squarely in this category. Campfire Stories is not a law treatise, academic article, litigation manual, or environmental report. It’s a gather-round-the-campfire storybook of folklore, songs, poems, legends, yarns, and musings about our beloved national parks.

The dozens of collected entries center on six national parks, their names alone resonate both profound and magical. Acadia National Park, “An Island on the Sea.” Great Smokey Mountains National Park, “Home in the Mountains of Blue Smoke.” Rocky Mountain National Park, “A Place for the Wild.” Zion National Park, “A Sanctuary in the Desert.” Yosemite National Park, “A Cathedral of Granite.” And last but not least, Yellowstone National Park, “A Storied Wonderland.” Each of these treasured national parks receives individual attention—a descriptive introduction, a handful of stories, and a post-script on each story’s origin and author. I share below just a snacking of the many authentic, diverse, and magical stories found in Campfire Stories.

The section devoted to Acadia contains a legend called The Coming of Glooskap by Joseph Nicolar. We learn Nicolar is “an elder and political leader of the Penobscot Nation of Maine,” that his story “tells of the coming of Glooskap,” a kind and benevolent Creator, and the story imparts “the beginning of the world.” An early section reads,

When he opened his eyes lying on his back in the dust,

His head toward the rising of the sun,

And his feet toward the settling of the sun;

The right hand pointing to the north

And his left hand to the south.

Having no strength to move any part of his body,

yet the brightness of the day revealed to him

all the glories of the whole world:

the sun was at its highest standing still,

and beside it was the moon without motion

and the stars were in their fixed places

while the firmament was in its beautiful blue.

While yet his eyes were held fast in their sockets

he saw all that the world contained.

Beside what the region of the air revealed to him,

he saw the land, the sea:

mountains, lakes, rivers, and the oceans of the waters;

and in it he saw the fishes.

On the land were the animals and beasts,

and in the air the birds.

For Yellowstone, the editors present us with a more contemporary story. Wolf, written by Lucy Jane Beldsoe, “explores with humor and sensitivity both the curious culture of the wolf watchers,” a passionate group of park visitors who spend their days observing the wolves in Yellowstone, and “the powerful pull of being chosen by nature.” Wolf tells the story of a woman whose husband’s sudden passion for wolf watching transforms both their lives,

I thought he was startled, maybe frightened, but then I realized that the look on his face was deep calm, intense concentration. That howling wolf spoke to his heart more directly than the cries of our babies had.

That night, while Jim was in the shower, I called Barbara from our room at the Mammoth Hot Springs Hotel and told her, “Your father has fallen in love with a female alpha wolf.”

“Meaning?” I could hear the background of clanking dinner pots.

“There’s this culture of people who go into the park every single day, and they stay all day, looking for the wolf packs.”

“Why?”

“I don’t know.”

“And this has what to do with Dad?”

“I think he does know.”

Campfire Stories also contains an excerpt from Thirty-Seven Days of Peril by Truman Everts. This story offers a firsthand account of Everts’ journey of survival after being separated from his party in Yellowstone. Most famously, the story includes his hair-raising encounter with a mountain lion. “There was no mistaking that fearful voice. It was the screech of a mountain lion, so alarmingly near as to cause every nerve to thrill with terror.” After scrambling up a tree, Everts describes how he “shook, with a strength increased by terror, the slender trunk until every limb rustled with the motion. All in vain. The terrible creature pursued his walk around the tree, lashing the ground with his tail, and prolonging his howlings almost to a roar.” What happens over the next days and weeks? You will need to read to find out! If the author’s name sounds familiar, the editors illuminate, it is because “both Mount Everts and Evert’s Thistle, a plant he famously subsisted on during his misadventure, were named after him.

These illustrations capture only a mere sliver of the range and eclectic nature of the tales in Campfire Stories. So forget for a moment the global pandemic that has locked us inside and shuttered our wonderous national parks and—as the book’s foreward urges—“grab your marshmallow sticks, find a comfortable place to sit, and open up to the voices and hearts of the storytellers in these pages. The magic is here for the taking.”

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Reviewed by Madeline June Kass

Professor Kass is a distinguished scholar in residence at the Seattle University School of Law in Seattle, Washington; professor emeritus at Thomas Jefferson School of Law in San Diego, California; and a member of the editorial board of Natural Resources & Environment. She may be reached at kassm@seattleu.edu.