Olive Heffernan
Greystone Books, 2024
The part of the ocean that lies beyond the jurisdiction of any nation is known as the high seas, and over the course of her far-reaching, brilliant book, Olive Heffernan uses numerous phrases and allusions to capture its essence. She describes the high seas as the “blue frontier,” a “wild west,” “Earth’s last wilderness,” and “Paradise Lost.” Each of these is fitting given the pollution and resource exploitation that is happening in this part of the ocean, as well as the geographic remoteness and lack of regulation.
Yet as I finished reading Heffernan’s book, another image came to my mind: the high seas as nature’s mirror. Indeed, the high seas reflects our views about the ocean environment and how we manage the natural resources it holds. Heffernan explores many of these facets, including the drive to harvest fish and minerals from the high seas. She also discusses the human focus on finding and sharing medicines derived from creatures that call the high seas home, as well as the push to fashion creative, ocean-based ideas to solve the climate crisis. And she details collective legal action, such as the High Seas Treaty of 2023.
Heffernan devotes much of her book to fleshing out the complexities surrounding our current and future interaction with the high seas, and her analysis of two issues—fishing and ice—are emblematic of the deft touch she brings to the page. To meet an increasing demand for seafood, and to overcome the ever-diminishing supply of fish in coastal waters, several countries have explored fisheries in what is known as the ocean’s “twilight zone,” which is situated between 300 and 3,000 feet below sea level and is largely outside the jurisdiction of nations, which generally extends 200 nautical miles offshore. She journeys to Norway and learns that although challenges exist to fishing at such depths and distances, the volume of fish to be gleaned from the experimental fishery could be substantial. There are also potential downsides. Heffernan writes:
The twilight zone is now recognized as the ocean’s most reliable pathway for taking CO2 from the Earth’s atmosphere to the deep sea, where it can remain locked up for hundreds or thousands of years. No one yet knows, and to what degree, we can fish the twilight zone without wrecking the ocean’s carbon storing service.
This example is one of many places where Heffernan connects the high seas to climate change. She also connects the uncertainty around the impacts of resource extraction from the high seas with regulation, or more often, its absence. Although there are numerous Regional Fishery Management Organizations, they only “oversee certain fish stocks or certain areas,” and thus it is unclear whether they would be able to effectively manage twilight zone fisheries.
The absence of regulatory oversight is also relevant to illegal, unreported, and unregulated fishing in the high seas. According to Heffernan, this “pirate fishing takes a greater toll on national economies and on the planet’s health than more well-known instances of wildlife crime, such as the poaching of pangolins.” Heffernan travels to Panama, where Global Fishing Watch successfully persuaded that country to provide it with data to help “catch fishers flying the Panamanian flag, a move that could expose some big offenders, including the Chinese fleet of squid jiggers.” She lucidly recounts both the technology for tracking fishing vessels on the ocean and the way in which “flags of convenience” allow fishers to evade enforcement. Taken together, Heffernan’s chapters on fishing capture the multiple layers of complexity at play in the high seas.
Ice also has multiple layers of complexity, including the scientific and the geopolitical. Notably, Heffernan provides two perspectives on the Fram Strait, “a deep, frozen passage that connects the high seas of the Arctic to those of the Atlantic.” First, the Arctic Ice Project is trying to “restore thawing sea ice” to the Fram Strait to curb the rise in melting ice. Second, and in stark contrast, China has envisioned a “Polar Silk Road” that would cross the Arctic Ocean and replace the Northwest and Northeast Passages. For this vision to take shape, the Fram Strait would need to be ice free.
An ice-free Fram Strait may occur sooner rather than later given the way Arctic ice floes coming out of the Strait “toboggan their way across the ocean.” But there’s another layer. Heffernan reveals recent discussions about transporting icebergs from the poles to the warmer, drier parts of the globe to provide much-needed freshwater. She observes that this idea “may be a folly of sorts, but it’s symptomatic of our relationship with the planet. As challenging as such a scheme sounds, to us it sounds somehow easier than looking for durable solutions to our environmental problems.”
As I encountered terms like “blue frontier” in The High Seas, I was reminded of Frederick Jackson Turner’s frontier thesis. His theory was that 19th-century life on the frontier shaped the American character. But instead of viewing the “blue frontier” as a place that forges our character, I might suggest that this new frontier serves as a mirror that reflects our character. Hopefully, when we look at the high seas in the future, we like what we see.
Vince Beiser
Riverhead Books, 2024
Like The High Seas, Vince Beiser’s Power Metal considers the future of natural resources and some of the challenges the world will face in extracting and conserving them in the 21st century. Beiser begins the book by characterizing the early 21st century as the “Electro-Digital Age,” a term designed to capture the era’s “three pillars”: digital technology, renewable energy, and electric vehicles. The development of these pillars signifies a positive step toward addressing the climate crisis; however, the picture is more complex. As Beiser writes, “[d]riving those electric cars doesn’t create carbon emissions, but generating the electricity that powers them often does.” And herein lies the rub at the heart of the book: efforts to combat climate change “may create a whole other set of catastrophes.”
Beiser teases out this paradox in the context of metal, which is “like concreate, a material that is everywhere but that we don’t see, either literally because it’s concealed inside something else, or figuratively because we just take its presence for granted.” He examines critical metals such as copper, nickel, cobalt, and the 17 rare earth elements, all of which are essential to high-tech products ranging from solar panels to smartphones. Yet critical metals “don’t fall from the sky,” writes Beiser. “They are ripped from the Earth.” He discusses how metal mining in one part of Siberia created “one of the most ecologically ravaged places on Earth.” He also recognizes that the impact to those working in the mines is just as damaging.
Despite the paradoxical nature of renewable resource extraction, or perhaps because of it, the need for electric power has driven people to reopen shuttered mines and explore new locations. Reopening has occurred at the Mountain Pass mine in California, where operations were closed in 2008 following the discovery of water contamination at the site. In 2022, the reopened mine produced 42,000 tons of rare earths, which represents almost 15% of the worldwide total. Beiser also examines the exploratory efforts around harvesting resources from the seabed. The primary “thing holding them back, at this point, is international law, which forbids deep-ocean mining,” writes Beiser. But there is a loophole that allows a country to notify the governing body—the International Seabed Authority (ISA)—that it intends to mine and to then begin digging up the seafloor two years later if the ISA has not issued any regulations. Further complicating matters is the fact that the ISA “has the contradictory task of protecting the ocean floor while organizing its commercial exploitation.”
The delicate balance between protection and exploitation is evident in Chile, where a company extracts lithium—possibly “the oldest metal in the universe”—from beneath the surface of the Atacama Desert. In my favorite chapter of the book, Beiser crisply discusses the unique process for obtaining this valuable metal:
The mines sit in a huge salt flat—a salar, in Spanish—several miles from the nearest village. Beneath that salt flat lies an enormous reservoir of brine—water thick with salts and minerals, including lithium, that has accumulated over thousands of years.... The mines slurp up water both sweet and salty. They pipe in fresh water for their employees to drink, wash with, and clean equipment. And they pump up boatloads of brine, at a rate of thousands of gallons per second, into those colorful surface ponds. The brine is left out in the sun to evaporate over the course of many months. It takes more than one hundred thousand gallons of brine to produce a single ton of lithium.
On the surface, this evaporation process seems less destructive than traditional mining, but Atacama’s Indigenous people believe that the withdrawal of vast amounts of water has deleterious impacts on the water supply, which is critical to their well-being and that of animals, such as the rare flamingos that rely on the Atacama’s freshwater lagoons.
For this chapter on lithium mining and other chapters, Beiser employs a technique that is increasingly common in journalistic nonfiction about the environment: he begins with a short anecdote about what he heard or saw on the ground in a specific location and then dives into the particular issue or metal. This approach works well in Power Metal not only because the opening vignettes are succinct but also because Beiser’s prose makes one feel as though you are alongside him. For example, in a chapter about metal recycling (also known as urban mining), Beiser provides an absorbing recounting of his time with a freelance metal scrapper named Steve Nelson as he scrounges for metal in Vancouver, British Columbia.
Recycling metal is one way to curb the paradox of renewable energy. Reusing objects containing critical metals is another. But toward the end of the book, Beiser states that these approaches will be insufficient and calls for a shift away from cars and toward bicycles, including electric bicycles, which require far less energy than cars. Beiser understands the structural barriers to such a transition and thus recommends that we also “redesign our cities, to orient them around human beings rather than automobiles.”
Power Metal underscores that we have arrived at an inflection point marked by uncertainty about how and where we dig up more natural resources and about whether we can manage them effectively. But this book, like The High Seas, provides thought-provoking concepts and strategies on how to navigate that uncertainty.
Susan L. Stephens, Kim D. Connolly, and Sarah P. Jarboe
American Bar Association, 2024
Uncertainty is one of the hallmarks of wetlands law and policy, as shown by this newly updated treatise on the topic. The regulatory landscape is shifting and evolving, which makes the authors’ comparison to “swamp soccer” fitting. In that sport, athletes compete “in a muddy field or even in a fen—with various players exhausting themselves in a messy arena.” And in some respects, this area of law embodies the nature of wetlands themselves. The authors note that the amount of water in a wetland “can fluctuate over time based on seasons, weather, and other factors” and that indicators such as “saturated soils may be present along the ‘fringe’ of a wetland during one site visit but not the next,” making it hard to “draw precise wetland boundaries.”
In the face of this messiness and these fluctuating boundaries, Susan Stephens, Kim Connolly, and Sarah Jarboe provide a detailed and well-organized guide to the federal law and regulations that govern wetlands. The focal point of this legal landscape is section 404 of the Clean Water Act (CWA), which states that “[t]he Secretary [of the Army] may issue permits, after notice and comment and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified sites.” The opening part of the book analyzes key terms from this statutory language. The answer to the first chapter’s titular question “When is a (Wet) Land a Water of the United States?” revolves in part on navigable waters, which are defined in the CWA as “waters of the United States.” This phrase, often shorthanded to WOTUS, has been in flux. The latest interpretation from the Supreme Court came two years ago in Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023), and one of the benefits of this second edition (the first edition appeared in 2005), is its incorporation of judicial and regulatory interpretations from the last two decades, including Sackett.
According to the authors, Sackett “represents a seismic shift.” The Sackett Court held that “the CWA extends only to those wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’” and described a two-part test. First, there must be a showing that the water adjacent to a wetland is itself a water of the United States, namely a “relatively permanent body of water connected to traditional interstate navigable waters.” Second, the wetland must have “a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Here, the Court adopted language from the plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). This was a departure from Justice Kennedy’s concurring opinion in Rapanos, which had been “embraced” by the agencies tasked with administering section 404, the U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA).
Wetlands Law and Policy also explores the terms fill material and dredged material. Although the authors note that regulation of the former is straightforward, the latter has been more contentious, especially in terms of redeposit, which the authors helpfully explain. When dredged material is excavated from one water and discharged into a water of the United States, it is covered by section 404; however, things are more complicated when “the dredged material is not moved to another location to be discharged (e.g., discharging the material excavated from dredging a shipping channel into near-shore shallower waters as a means of disposing of the material) but rather is discharged or ‘redeposited’ in the same general area from which it was removed.” The book explores how redeposit has been regulated, culminating in a 2008 rulemaking. Since then, the issue has been fairly stable, but the authors suggest the ground on these interpretations may shift “given the move of the U.S. Supreme Court away from the Chevron deference that served to underpin many of the judicial decisions in this arena.”
Another area of section 404 regulation—compensatory mitigation—has also remained relatively stable since 2008, but here too the issue could experience change in the years ahead. Compensatory mitigation grows out of EPA’s role in establishing guidelines for permitting under section 404. Under those guidelines, a permittee must avoid adverse impacts to wetlands when practicable and consider how to minimize those impacts. For any impacts that cannot be avoided and minimized, mitigation must be implemented as an offset. This approach to mitigation parallels the policy goal first established under President George H. W. Bush of achieving “no net loss” of wetland functions. The authors weave together these two threads, which led to a set of Corps and EPA rules on compensatory mitigation in 2008. While much is “unchanged” since then, one of the more significant changes over the last 15 years “is the explosive growth of wetland mitigation banks,” which more than doubled between 2008 and 2018, and the creation of an entire industry around such banks.”
Quite a bit has changed in wetlands law and policy in the time between the first edition of this book in 2005 and the second edition in 2024. For those navigating this “constantly shifting landscape,” this practitioner-focused treatise will be a handy resource.
