As the recession grinds on, financial news continues to grab front-page headlines. The national deficit is a central flashpoint for controversy, triggering debate on the appropriate balance between spending today and increasing our children’s growing mountain of debt. In the midst of this battle, it is easy to overlook another looming problem: the growth of the environmental deficit. Overall, we are spending down the planet’s “natural capital” at unsustainable rates. As the nation’s most thoughtful minds address our economic woes, their wisdom provides three important lessons for environmental sustainability. The moment is particularly ripe for such analysis as the international community struggles with the overwhelming issue of climate change, certainly a key to achieving any sort of sustainable environmental future.
Re-regulation to promote responsibility: Even as taxpayers bailed out financial institutions deemed too big to fail, executives received huge bonuses. Growing outrage has prompted a call for increased governmental oversight, reversing the nearly three-decade deregulatory agenda initiated by Ronald Reagan, who mocked durable federal agencies and programs as “the nearest thing to eternal life we’ll ever see on this earth.” Even Alan Greenspan, former chairman of the Federal Reserve and a staunch supporter of deregulation, admitted in 2008 that his “whole intellectual edifice” had collapsed and that he was in “shocked disbelief” to discover that his faith in the unregulated free market had been woefully misplaced.
In the environmental realm, this deregulatory frenzy most recently manifested itself through a spate of “midnight regulations” promulgated by the Bush administration during its final months. These agency rules—largely invisible to the general public—dismantled numerous important environmental safeguards. For example, in the name of “streamlining” the permitting process for coal mines, one new rule would have allowed over 1,000 miles of Appalachian streams to be filled with the debris from so-called “mountaintop removal” mining, as entire peaks are blasted off to expose underlying coal deposits. A second late-term rule, ostensibly enacted to “clarify” existing requirements and to produce a process that is “less time-consuming and a more effective use of our resources,” would have allowed federal agencies to conduct activities that may harm threatened or endangered species without even consulting federal wildlife experts. In all, the Bush administration rushed through dozens of such regulations.Full text
The interstate water wars have gone underground. For more than a century, the U.S. Supreme Court has been the arbiter of last resort to settle fights between states over the right to use surface streams that cross state lines. But now, the high Court may be asked to settle a long-standing feud between Mississippi and Tennessee over a vast underground formation—the Memphis Sand aquifer, which underlies about 10,000 square miles of Arkansas, Tennessee, Mississippi, and Kentucky.
The stakes are high, and the rhetoric inflammatory. Mississippi sued the City of Memphis, seeking hundreds of millions of dollars in damages and claiming that Memphis is stealing Mississippi’s “share” of the aquifer. The problem is that no one has ever determined the two states’ respective “shares” of the aquifer, and that Tennessee (and not merely Memphis) must be part of any lawsuit that makes such a determination. In June, the Fifth Circuit Court of Appeals affirmed the dismissal of Mississippi’s claims in Hood v. City of Memphis, holding that Tennessee is an “indispensable party” to the action. Further, the court said, Mississippi had filed its action in the wrong court because only the Supreme Court has the authority to decide such an interstate dispute.
Mississippi will likely try again, this time in the Supreme Court. That would be a case to watch for at least two reasons.
First, it would present the Supreme Court with its first opportunity to apply the doctrine of “equitable apportionment”—the fair allocation of water among neighboring states—to groundwater. Although the Court has divided up three surface watercourses—the Laramie River (1922), the Delaware River (1931), and the North Platte River (1945)—it has yet to venture underground. According to the Fifth Circuit, the Supreme Court should not treat groundwater any differently than surface water in terms of equitable apportionment because the “Aquifer flows, if slowly, under several states, and it is indistinguishable from a lake bordered by multiple states or from a river bordering several states depending upon it for water.”Full text