From Pristine to Earth: A Fictional Adventure About Many Environmental Realities

I freely admit that the children's novel From Pristine to Earth by Ashley Ivanov was written by my research assistant. So this is a biased review.

The novel, written for upper elementary and pre-teen students, is a creative means to a real-world end. It was written teach environmental concepts in an imaginative and entertaining way to make children aware of the need for a safe, healthy and clean environment. 

The novel touches on various topics, including the benefits of recycling and the need for clean air and water. However, the primary messages are the need to minimize the risks associated with harmful chemicals by creating safer alternatives and the need for society to develop and use plastics that break down faster in the environment. 

In the end the author leaves us not knowing whether these reforms will have a successful impact or merely be words on paper. As she writes, “[t]ime will tell.”

Students can learn that reform can be accomplished in various ways, including voting for candidates who support change and through the media which can sometimes influence Congressional action. Grassroots activists -- in the trenches planting the seeds for change -- are usually involved in both.

As the book points out, there are current attempts being made to influence Congress to pass new federal chemical legislation. Current federal law, the Toxic Substances Control Act (“TSCA”), was enacted in the 1970s and has been ineffective as it does not ensure that only safe chemicals are used in the United States. It is estimated that approximately eighty thousand chemicals available in the United States have not been fully tested for their safety. See Natural Resources Defense Council (NRDC), Of these eighty thousand chemicals, EPA has required testing for only an estimated two hundred (a quarter of one percent of the total) and has partially regulated only five (less than one percent).  Id.  

Congress is currently considering legislation to reauthorize TSCA. Perhaps, like the new law described in the book, a reauthorized TSCA would, among other things, shift the burden of proof from EPA to the chemical’s manufacturer to prove that that the chemical is safe and provide a means for adequate, independent validation and verification.  

You won’t find many (any?) books written for pre-teens that realistically addresses TSCA and other environmental issues in an entertaining story that engages kids. It could be used in science classes for upper elementary students to introduce these important environmental concepts through a good story with interesting characters.

The novel is available at Amazon.com and online only from Barnes & Noble.

CAN CONGRESSIONAL GRIDLOCK BE RESOLVED THROUGH MEDIATION?

The American Bar Association Section of Dispute Resolution announced the winner of the 2013 Boskey Dispute Resolution Essay competition. Sarah Gonski, a Harvard Law student, won the competition with her essay entitled “Easing Gridlock in the United States Congress Through Mediation: Letting Our Cities and States Teach Us Lessons On Getting Along.” 

The essay suggests that Congressional gridlock can be reduced by following the lead of several states and local governments by using mediators to mediate policy and legislative discussions, similar to the Negotiated Rulemaking Act (often called reg neg). Reg Neg was enacted to to encourage agencies to use negotiated rulemaking when it enhances the informal rulemaking process. (5 U.S.C § 561). 

The idea behind reg neg was set out in 1982 by Phillip Harter, an administrative law expert who developed the reg neg idea in a law review article, proposing negotiation as a means of alleviating the "malaise" that hindered the existing federal rulemaking process. See Harter, Philip J., Negotiating Regulations: A Cure for Malaise, Georgetown Law Journal, vol. 71, 1982 

Ms. Gonski’s essay sets forth some examples of successful uses of mediated legislative and policy negotiations by states and cities and the short and sad history of the few attempts to get Congress to establish a mediation office in Congress. She suggests that because of the institutional barriers in establishing a new agency, the Federal Mediation and Conciliation Service (FMCS), an existing federal agency that already provides mediation services in labor and employment disputes, could serve as home for legislative mediation.

I was directly involved in developing the legislation that authorizes FMCS to mediate reg neg and other federal sector policy issues by adding language to insure that the FMCS was specifically authorized to assist agencies by furnishing conveners, facilitators, and training in negotiated rulemaking. (See the Negotiated Rulemaking Act of 1990, reauthorized in 1996 and incorporated into the Administrative Procedure Act at 5 U.S.C. §§ 568 (b)). 

The need for mediation on the Hill is obvious. Gridlock is not good for anyone. 

While many issues will remain gridlocked because elections are the only way to resolve major public questions such as our budget priorities, not all legislation pending on the Hill is subject to those political pressures. If the appropriate stakeholders are involved in the negotiations over regulatory and other substantive issues, if the significant stakeholders on all sides of an issue can agree, then Members of Congress will not block the legislation. 

This would allow for Congress to actually conduct much of the business of the public, while, if they wish, continue to play their electoral/political games on the large (mostly budget-related) issues. 

Mediation on the Hill will not solve all issues and certainly will not eliminate the split between red and blue partisans. However, placing legislative/policy mediators in the FMCS and authorizing them to mediate legislative issues for Congress could result in better, less partisan legislation. 

This is a worthwhile goal.

Parisian of the Month

The Eye Prefer Paris blog is “an ex-New Yorker’s insider’s guide to Paris” by Richard Nahem.  One of the best blogs for and about visitors to the City of Light, Nahem produces a valuable resource about everything Paris.

A recent post, Parisian of the Month is about my son Daniel, whom he describes as “passionate about life.”

I agree. 

Fourth Circuit Affirms Ashley District Court Decision

In a much anticipated decision, the United States Court of Appeals for the 4^th Circuit finally issued a decision in the PCS Nitrogen v Ashley II of Charleston, 2013 U.S. App. LEXIS 6815 (4^th Cir. 4/4/13) case.

The decision, however, did not provide the clarity that many were hoping for about the controversial decision by the District Court that the purchaser of the property, Ashley II of Charleston, did not qualify as a Bona Fide Prospective Purchaser (BFPP) and receive exemption from liability because it had indemnified a responsible party and, therefore, had an improper “affiliation” with that party.   

Larry Schnapf’s always illuminating blog, Business Environmental Law and Transactional Support, has a full discussion of the ruling and many of the other issues in the case here.

I served as a mediator for the parties to assist them in resolving the allocation issues and settle the case before litigation. I will not comment about the many issues in the case or the 4^th Circuit decision – except to point out that, given the “much ado about nothing” results, as Larry described the decision, the parties could have resolved the case without litigation. Instead, no party “won” much and all parties lost something.

Certainly the cost of litigation could have funded some if not all of the costs of a negotiated settlement. 

Abraham Lincoln and the Team of Rivals; Compassion, Wisdom and Peacemaking

While the Golden Globes may not have honored the genius of Stephen Spielberg’s direction of the movie Lincoln, I hope and believe the Oscar voters will.  As anyone who has a feel for history will, I think, agree, Lincoln is a uniquely moving portrait of Abraham Lincoln and the late part of the Civil War. 

Much of Spielberg’s movie is based on Team of Rivals: The Political Genius of Abraham Lincoln, the wonderfully researched and written book by Doris Kearns Goodwin.

For those who have not read it, Goodwin tells the story of “Lincoln’s political genius revealed through his extraordinary array of personal qualities that enabled him to form friendships with men who had previously opposed him, to repair injured feelings that, left unattended, might have escalated into permanent hostility; to assume responsibility for the failures of subordinates, to share credit with ease; and to learn from mistakes.” 

  

The movie makes the people and politics of the lame duck Congress in late 1864 and early 1865 understandable to viewers of today.  Before watching the movie I had doubts that the director and Daniel Day-Lewis, the actor who plays Lincoln, could make this iconic figure into a living, breathing human being. There is no doubt they succeeded.

The movie shows how Abraham Lincoln was different from other leaders, then and now. Goodwin writes that his “decency, morality, kindness, sensitivity, compassion, honesty and empathy” were “impressive political resources.” Lincoln may have said : “I destroy my enemies when I make them my friends.” We saw him doing that in this movie.

Abraham Lincoln was a lawyer – apparent in the movie – and that was a critically important part of his career; it helped shape who he was. He was famously quoted as advising attorneys to “Discourage litigation. Persuade your neighbors to compromise whenever you can.  As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”

Lincoln was a good man and a peacemaker both before and during the Civil War, and his wisdom, compassion and humanity were central to his greatness. 

Federal Agencies Told to Use ADR Techniques to Resolve Environmental Issues

Federal agencies have yet again been directed to use Alternative Dispute Resolution (ADR) techniques to resolve disputes.  This time the Acting Director of the Office of Management and Budget and the Chair of the Council on Environmental Quality have directed relevant departments and agencies to

“increase the appropriate and effective use of third-party assisted environmental collaboration as well as environmental conflict resolution to resolve problems and conflicts that arise in the context of environmental, public lands, or natural resources issues, including matters related to energy, transportation, and water and land management. See Memorandum on Environmental Conflict Resolution.

Of course this is not the first time the White House has encouraged the use of ADR techniques in the federal government. For example, in 1998 President Clinton ordered agencies and departments to take steps to promote greater use of ADR techniques to resolve disputes and to negotiate regulations See Memorandum for Heads of Executive Department and Agencies

The memo sets out the use of ADR techniques to address environmental matters and directs federal agencies to use neutral facilitation to settle conflicts in issues related to energy, transportation and water and land management issues.

The memo applies to all executive branch agencies with regard to each agency’s enabling legislation, the National Environmental Policy Act (NEPA) and other laws aimed at managing and conserving the environment, natural resources and public lands. The complete memo is here.

Information about other relevant federal environmental ADR resources can be found at the Department of Justice web site the Department of Interior Office of Collaborative Action and Dispute Resolution web site and the EPA Conflict Prevention and Resolution Center site.

Coal King No Longer: Is Natural Gas the Long Term Solution?

This has not a good year for coal in the United States. Fifty-five coal-burning power plants haveshut down this year alone  including the Big Sandy power plant in Louisa, Kentucky

The significance of the Big Sandy plant is that it is located right in the heart of coal country; near the Appalachian Mountains, an area that has relied on coal, not only for energy, but as an economic driver for decades.

EPA regulations have forced coal companies to decide whether to pay for expensive retrofitting to their existing coal-burning electric power plants or to shut the burners down permanently. The American Electric Power company has decided to shut down both coal furnaces of Big Sandy, keeping open the possibility of retrofitting one at a later date to burn natural gas.

For most environmentally-concerned individuals this would seem like a major win. Burning coal not only emits a great deal of carbon dioxide but also other harmful pollutants like particulate matter and sulfur dioxide. Plus mining coal often involves significant environmental and human costs.

The fact that a coal plant would shut down in an area where coal is plentiful is an example of how social changes, concerns about global warming and EPA regulations are changing the energy industry. But this begs the question: what happens next?

Relying less on coal for energy means that burden going to be placed on other sources of energy. At the present one of the main sources of electrical energy is natural gas; while not renewable or devoid of emissions, it is a much cleaner option than coal. But there are ramifications to this shift to natural gas, making the environmental costs of hydraulic fracturing (fracking) an even greater concern.

If natural gas becomes relied on for more electrical energy production, natural gas companies have to find a safer way of removing it from the earth for it to be a sustainable source of energy.

The options other than natural gas to coal are clean, renewable sources of energy like wind. A decline in coal use presents a good opportunity for renewable energy, but companies still need financial and government support for these clean, renewable sources. And a much better electrical distribution system infrastructure, particularly to move electricity generated from wind and solar to customers.

Although increased use of natural gas over coal may be an encouraging trend and a step towards reducing our carbon emissions in the short term, it is pertinent to keep in mind one of the significant costs of increased use of natural gas - increased fracking - and the effects fracking will have on the environment.

Assisted by Michael Ciccarone