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Winter 2024: Environmental Health & Safety

Literary Resources

Frederick H Turner


  • Book review of Fire Weather: A True Story from a Hotter World (2023) by John Vaillant
  • Book review of Vanishing Sands: Losing Beaches to Mining (2022) by Orrin H. Pilkey, Norma J. Longo, William J. Neal, Nelson G. Rangel-Buitrago, Keith C. Pilkey, and Hannah L. Hayes
  • Book review of Environmental Bankruptcy Law: A Practice Guide (ABA, 2023) by Alan S. Tenenbaum and Jeanne T. Cohn
Literary Resources
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Fire Weather: A True Story from a Hotter World

John Vaillant

Alfred A. Knopf, 2023

Two powerful forces collide in John Vaillant’s Fire Weather: wildfire, which is increasing in frequency and ferocity, and the petroleum industry, which is fundamentally altering the atmosphere. The collision occurs in western Canada in May 2016, when a wildfire ravaged the city of Fort McMurray, Alberta, which is a key extraction point for bitumen and the “epicenter of Canada’s multibillion-dollar petroleum industry.” The thrust of Fire Weather is that one of the locations leading to the superheating of the world suffered a direct hit from a wildfire that forced nearly 90,000 people to flee for their lives.

Before Vaillant recounts the apocalyptic events of that 2016 collision, he brilliantly describes the circumstances that led to it; this part of the book represents some of the best nonfiction writing that I have read in recent years. We ride alongside Vaillant as he drives into Alberta, passing “expanses of hardscrabble subarctic prairie.” We learn about the composition of bitumen, which is a form of petroleum that is colloquially called “tar sands” and that geologists call bituminous sand—as Vaillant writes, it “is to a barrel of oil what a sandbox soaked in molasses is to a bottle of rum.”

We discover that long before companies like Suncor and Syncrude began pulling bitumen out of the Canadian ground, the Hudson’s Bay Company extracted fur from the region’s beavers and other animals at an industrial scale. The Hudson’s Bay Company received its charter in 1670, which shows the centuries-long scope of this utilitarian approach to the natural world. Vaillant adds that just three years later, John Milton published Paradise Lost. This reference is well-placed because it suggests the cost of the extraction of resources. And in an ironic twist, Vaillant returns to Paradise Lost in the next chapter to suggest Milton anticipated the use of bitumen for lighting because Milton wrote: from the arched roof / Pendent by subtle magic, many a row / Of starry lamps and blazing torches, fed / With naphtha and bitumen, yielded light / As from a sky.”

But the bitumen backstory extends even further. We learn that in Babylon, bitumen “mortared the ancient urban center’s great, concentric walls” and the Tower of Babel. And Vaillant writes that the Fort McMurray community center “is in a way a Babel, too” because 80 languages are spoken in and around the city. We also read about Vaillant’s new term for humans, Homo flagrans, which roughly translates to “burning man.”

The perspective shifts from the human species to individual people when Vaillant starts detailing the Fort McMurray fire. Vaillant focuses on one person for each of the city’s neighborhoods. The result is a real-time sense of what it was like as the city went about its daily life and then witnessed the fire’s rapid expansion. In Beacon Hill, for example, Vaillant focuses on Paul Ayearst, who “found himself in the same cognitive dilemma as so many others that day: he had heard the warnings, he had seen the fire growing bigger and closer, and yet, on some crucial, active level, he did not, and could not acknowledge the immediate and terrible implications of a Rank 6 boreal fire at his doorstep.” When it becomes clear that staying means death, Ayearst drives away. In his car, the “line between sanctuary and death trap was narrowing”—the “window glass was too hot to touch and embers were blistering the paint.”

Fire Weather is not only an excellent microhistory of one place and the wildfire that now defines it. The book also tells an epochal story about what Vaillant calls the Petrocene Age, which is

the period in our history in which our Promethean pursuit of fire’s energy, most notably crude oil, in conjunction with the internal combustion engine, took a quantum leap to transform all aspects of our civilization and, with it, the atmosphere. This period covers, roughly, the last 150 years, and it is peaking now.

The Petrocene represents an alternative to the similar yet distinct term Anthropocene and to what fire historian Steven Pyne has called the Pyrocene. For Vaillant, the defining factor is not people or fire, but rather the medium that allows people to do so much damage vis à vis fire: petroleum. Vaillant touches on a compelling confluence of events that helped kick off the Petrocene Age: in 1859, the first oil well was drilled in Pennsylvania, a prototype of an internal combustion engine was manufactured, and a scientist proved that the makeup of gases in the air could alter the Earth’s climate.

Vaillant suggests that the Petrocene Age may be coming to an end for a number of reasons, including lawsuits brought against petroleum giants, a realization in the economic markets of the losses that could accrue from climate change and thus make fossils fuels “unburnable,” and nature itself in the form of viriditas, or greening energy. “Homo sapiens got us to the Petrocene Era,” writes Vaillant. “Homo flagrans is who we have become. Homo viriditas can guide us forward—and, possibly, back.”

Vaillant is a gifted storyteller and Fire Weather is a riveting account of how Fort McMurray transformed from a tar sands boomtown to a city ravaged by a cataclysmic fire.

Vanishing Sands: Losing Beaches to Mining

Orrin H. Pilkey, et al.

Duke University Press, 2022

Vanishing Sands tells the story of how the world’s beaches are being transformed by the mining of coastal and riverside sand. Each year, a staggering 50 billion tons of sand is mined around the globe. That sand has multiple uses, but the most common is as a component of concrete, which is made of aggregate (either sand or gravel) and cement. Concrete represents a key resource for construction, and one of the themes of this enlightening book is that the drive to build by the ocean is, ironically, leading to the destruction of the very beaches that people want to live on.

Recent events on the Caribbean island of Barbuda provide a stark example of this dynamic. Under the Beach Protection Act, sand mining is prohibited on both nearby Antigua and on Barbuda, unless a permit has been issued. According to the authors, the punishment for violating that law is weak and enforcement is infrequent. They add that extensive mining of Barbuda’s beaches has damaged many of its sand dunes. When the eye of Hurricane Irma passed over the island in 2017, nearly all the island’s buildings were destroyed, due in part to the dearth of dunes. Post-Irma, the residents must rely on concrete to help rebuild. According to the authors:

This dilemma foreshadows the Sisyphean cycle Barbuda faces moving forward: beaches and protective dunes are mined to support construction mostly on Antigua. But then new storms will strike and wreak more damage due to the mining, and then ever-more sand must be mined to supply sand to rebuild structures lost from the latest storms.

This dilemma is playing out in an interesting way in the United States. Reading the term “mining” to include the movement of earth materials, the authors discuss two methods of coastal management known as beach renourishment and beach scraping. The first entails replacing lost sand with sand taken from elsewhere while the second entails moving sand from a low tide location to a high tide location with bulldozers. The authors present numerous downsides. Perhaps the most surprising is the fleeting nature of the replenishment: some of the renourished beaches last only two to three years. The process also requires substantial financial investment, and approximately 90% of that cost is borne by state and federal taxpayers. And ecological impacts abound, including impacts to nesting habitat for turtles.

There are also impacts at the source, which is often another beach. This sand exchange is evident in Singapore, which has expanded dramatically through land reclamation projects and “sits literally atop sands that were obtained to the detriment of the environment and economy of other South Asian countries.” Some of those countries have instituted bans on sand exports, but they are usually ineffective, and Singapore has either turned to another nation or tapped into its national reserves of sand.

Vanishing Sands cogently explains how sand is mined and moved for renourishment and reclamation. The book also reveals that the rush for sand, like the rush for gold, oil, and diamonds, has been and continues to be accompanied by “illegalities, violence, and atrocities.” Illicit mining is often connected to groups known as sand mafias, and the authors suggest that “India has the most well-documented examples of the violence of sand mafias, probably reflecting a free and abundant media.” The victims include forest rangers, activists, and journalists.

The authors indicate that illegal sand mining is widespread. They do not rely on court documents or enforcement data; instead, they cite mostly the reporting of others. Though lawyers reading the book might wish for a closer look at legal side of these environmental crimes, the information is eye-opening. And the authors effectively focus on the direct impacts not only to mining opponents but also those engaged in the mining. For example, in Morocco, “[y]oung men, including boys as young as eleven, stand knee-deep in the ocean, shoveling sand into bags. . . . Some have been drowned by strong wave activity during storms.”

African countries like Morocco are leading examples of what the authors call the “sand paradox.” Although one-third of the world is covered by deserts, including the Sahara and Kalahari, they are not typically a source of sand. Rather, most sand comes from beaches and rivers. Why? First, “this desert sand is too distant from most constructions sites to be economically feasible for use in construction.” Second, there exists a long-standing assumption that desert sand is useless because it is too spherical and too fine. The authors push back on the second, suggesting that more analysis of desert sand is needed. They also discuss alternatives to mining sand, such as crushing concrete and finding new materials.

For those grappling with the sand paradox and those facing the dilemma of sand, concrete, and coastal construction, time is of the essence. As the authors aptly note in their discussion of Barbuda, the “sand in the hourglass is running out.”

Vanishing Sands is thoughtful and well-researched. While the ordering of the chapters is somewhat scattered, the book helpfully contains a number of photographs that illustrate phenomena described by the authors. In short, the book provides valuable insights on a natural resource that often garners scant attention.

Environmental Bankruptcy Law: A Practice Guide

Alan S. Tenenbaum and Jeanne T. Cohn

American Bar Association, 2023

Although the topic of bankruptcy often garners little attention in the field of environmental law, I anticipate that this authoritative guide by Alan S. Tenenbaum and Jeanne T. Cohn will help to change that by shedding light on the intersection between environmental law and bankruptcy law with a fluency that defies the complexity of the issues.

The intersection between environmental law and bankruptcy law has been called the “Clash of the Titans” because the former seeks to hold parties responsible for harm to the environment, “potentially forever,” while the latter “seeks to provide debtors with a ‘fresh start’ free and clear of their past problems.” The intersection became increasingly salient in the wake of congressional action in both spheres in the 1970s and 1980s. This period saw the passage of numerous environmental laws, including the two that occur the most frequently in bankruptcy matters—the Resource Conservation and Recovery Act (RCRA) of 1976 and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980. In the years between RCRA and CERCLA, Congress enacted the Bankruptcy Reform Act of 1978, which replaced the Bankruptcy Act of 1898 and established the modern bankruptcy paradigm.

Before Tenenbaum and Cohn examine how courts reconcile these two strands of law, they provide a primer on bankruptcy. But even in these early chapters on the key concepts of bankruptcy law, the authors weave in environmental issues. For example, when describing the debtor’s filing of a bankruptcy petition, which officially starts the case, they highlight a petition question that requires disclosure of “any real property or personal property that needs immediate attention” in terms of imminent and identifiable hazards. The authors note that this item is commonly referred to as the “environmental question.”

The larger environmental question addressed by this book is how courts attempt to harmonize bankruptcy’s goal of a fresh start with pressing environmental concerns. Tenenbaum and Cohn deftly explain the intricacies of this harmonization in numerous contexts. For example, the authors explore the principle that debtors and trustees must comply with nonbankruptcy law. This principle is captured in 28 U.S.C. § 959(b), which requires a debtor or a trustee to “manage and operate the property in his possession . . . according to the requirements of the valid laws of the State in which such property is situated.” This provision “is a key indicator of Congress’s intent that bankruptcy courts not become a safe haven for wrongdoers and scofflaws.”

The provision also ties in with the prioritization of claims. Establishing priorities is a central function of bankruptcy law because most “debtors do not have sufficient assets to satisfy their debts.” The second highest priority under the Bankruptcy Code—administrative expense—is especially relevant for environmental law. It covers the “actual, necessary costs and expenses of preserving the [bankruptcy] estate.” Courts have found that both cleanup costs and penalties for violations of environmental law incurred after the filing of the bankruptcy petition are entitled to this priority. Here and throughout the book, the authors highlight key cases in the text and include extensive lists of other cases in the footnotes.

Another foundational concept is the intersection between environmental law and bankruptcy’s automatic stay, which “prohibits creditors (and other entities) from taking any action outside of the bankruptcy court to collect pre-petition claims or judgments.” The stay gives a debtor “breathing room,” but it is not limitless. Under 11 U.S.C. § 362(b), there are numerous exceptions; the most relevant allows for “the commencement or continuation of an action or proceeding by a governmental unit . . . to enforce such governmental unit’s . . . police and regulatory power, including the enforcement of a judgment other than a money judgment.” Whether the governmental unit is seeking a money judgment is a knotty issue, and Tenenbaum and Cohn present a clear and logical analysis of how it plays out with respect to various forms of relief. This exception to the automatic stay also touches on a recurring theme in Environmental Bankruptcy Law, namely the distinction between compliance obligations and monetary liabilities.

As with the automatic stay exception, environmental concerns can limit the scope of the principle of abandonment. Under 11 U.S.C. § 554(a), a debtor or trustee can “abandon any property of the estate that is burdensome.” But as shown by the seminal case of Midlantic National Bank v. N.J. Department of Environmental Protection, 474 U.S. 494 (1986), abandonment cannot be “in contravention of a state statute or regulation that is reasonably designed to protect the public health or safety.” As described by the authors, that case involved a trustee’s effort to abandon facilities with “deteriorating and leaking containers of toxic, PCB-contaminated oil as well as contaminated oil that presented risks of explosion, fire, injury, and death.” The Supreme Court rejected the abandonment effort, and the authors delve into the legacy of Midlantic. They also link abandonment with other topics in the book, such as using environmental response trusts as an alternative.

Environmental Bankruptcy Law is a user-friendly guide that will help lawyers navigate the complicated nexus between environmental law and bankruptcy law. But the book also transcends the practical because it shows the organic nature of that nexus and how it has changed over time.