EIS in Antarctica

USA's McMurdo Station, Antarctica (USAP)

A recent issue of the Journal of Historical Geography had an article by Alessandro Antonello and Adrian Howkins, "The rise of technocratic environmentalism: the United States, Antarctica, and the globalisation of the environmental impact statement". The abstract:

Environmental impact statements (EISs), and the related environmental impact assessments (EIAs) which precede them, have become central elements of environmental management, governance, and policy worldwide since their introduction in the United States in 1970. Assessing environmental impact has a particular force and centrality within modern Antarctic environmental management and governance too. This article investigates the ways in which the United States used EISs and EIAs in Antarctica between 1970 and 1982 – during their first decade of existence in US law and during a geopolitically and scientifically vibrant decade in Antarctic affairs – as a way of illuminating the broader conceptual and historical aspects of this central, though understudied, environmental governance tool and framework. We historicise and draw attention to the EIS – individually, as a regulatory genre, and as a genre that articulates regional, global and planetary environments – as highly influential and powerful documents demanding attention from environmental historians and historical geographers. We argue that the prominence of EISs in Antarctica arose because they appealed to top-down, process-oriented approaches favoured in Antarctic governance – a technocratic environmentalism – and because of their spatial elements, particularly their tendency to upscaling.

The Storm King controversy

The recent Environmental History has a review by Ted Steinberg of Robert Lifset's Power on the Hudson: Storm King Mountain and the Emergence of Modern American Environmentalism (U Pittsburgh Press, 2014). Steinberg writes:

Con Ed seemed to be cruising toward its goal of building the plant when Scenic Hudson, an environmental group formed in 1963 to stop the project, began reckoning with the full ecological impact of the hydroelectric plant. Writer Robert Boyle had discovered that the Hudson River was alive with marine life. Boyle equated the prospect of licensing a plant in the Storm King area with the thought of slaughtering sheep in his own living room. The idea was slowly dawning on environmentalists that the hydroelectric plant would doom the river’s population of striped bass. Lifset argues that the introduction of ecological issues transformed the environmental movement in the Hudson Valley and helped lay the groundwork for its ultimate success.

This increased focus on ecology alone would never have led to the demise of Con Ed’s plans were it not for an equally important turn in the law that Lifset also explores in his book. In 1965 a federal appeals court ruled that Scenic Hudson was an aggrieved party and had the legal standing to launch a challenge to the Federal Power Commission with respect to Storm King. The decision reprimanded the power commission for failing to create an adequate evidentiary record, thereby foretokening the later implementation of environmental impact statements.

*****

Lifset offers a solid work of history that draws attention to the role of both ecological and energy issues in shaping environmentalism. His focus on legal change is also a welcome addition for those seeking a fuller understanding of the environmental movement. 

Fighting Westway

The latest Environmental History has a review by Sarah Elkind of William Buzbee's Fighting Westway: Environmental Law, Citizen Activism, and the Regulatory War That Transformed New York City (Cornell UP, 2014). Elkind writes:

In 1973 portions of an elevated highway on Manhattan’s West Side collapsed. A powerful coalition of local business, real estate, and government leaders proposed Westway, a four-mile long, six-lane, underground highway, built entirely on landfill. The project included parks and new space for real estate development; federal highway funds would pay 90 percent of construction costs. But Westway was never built. The Army Corps of Engineers approved landfill for Westway but only after ignoring evidence that Westway would devastate Hudson River striped bass. In 1985 after a federal court excoriated the Army Corps and enjoined the landfill, New York City officials “traded in” the proposed highway for a modest surface road, riverside bike path, and over a billion dollars for mass transit. In New York, Westway remains a symbol of antidemocratic overreach (for opponents) or excessive regulation (for proponents). As environmental history, the “regulatory war” over Westway reveals how the Clean Water Act (CWA), Clean Air Act (CAA) and National Environmental Protection Act (NEPA) transformed regulatory and environmental politics in the late twentieth century.

*****

When the New York State Urban Development Corporation proposed Westway, most New Yorkers assumed that the shallow waters slated for landfill were a biological wasteland. The Army Corps of Engineers’ first draft Environmental Impact Statement (EIS) on Westway landfill concluded that the area was so polluted that filling it would have no negative ecological consequences. The Environmental Protection Agency and other natural resource offices contested this, but the 1977 final EIS asserted the biological wasteland theory even more strongly. When a storm of protest forced the Army Corps to reexamine the ecology of the areas slated for landfill, preliminary results showed that these areas were vitally important habitat for young striped bass. The Army Corps cut the fish survey short and granted the permit for Westway landfill in violation of the CWA. Opponents sued. Court testimony revealed that the Army Corps manipulated and ignored the results of fish studies, and made no effort to explain why their final EIS insisted that Westway would have no adverse effects when the evidence clearly showed it would.

Buzbee provides an excellent explanation of regulatory processes and the limitations of both the CAA and NEPA. He explains “regulatory war,” court procedures, legal standing, the requirements and strengths of specific environmental regulations, and other critical features of environmental policymaking. His biographies of key players demonstrate how expertise and political connections contributed to the Westway controversy. But the real heart of the book is Buzbee’s able and compelling explanation of the legal strategy, evidence, and reasoning behind the Westway verdicts. So the Westway story is a sound case study of the impact of local priorities on federal policies, and environmental regulations on federal agencies like the Army Corps. Buzbee does engage opponents’ arguments and strategy with more nuance and detail than he does Westway’s supporters. His insistence that the outcome was not inevitable does not seem all that important in the face of this careful legal and regulatory history. These are small faults in a very interesting book that is exceptionally well suited to undergraduate courses on environmental law and politics. Fighting Westway may not do precisely what Buzbee says it does, but it will give readers a clear understanding of how regulations work, how government institutions interact, and why it can be so difficult to stop a big project once it is underway. 

Lynton Caldwell and NEPA

H-Net recently posted a review by Laura Gifford of Wendy Read Wertz's Lynton Keith Caldwell: An Environmental Visionary and the National Environmental Policy Act (Indiana UP, 2014). Gifford writes:

As author Wendy Read Wertz rightly asserts, political scientist and environmental activist Lynton Keith Caldwell’s remarkable contributions to the development of the modern environmental movement have gone largely unrecognized—and this constitutes a grave omission. Based at Indiana University for most of his career, Caldwell, whose wide-ranging work over a long career in public administration, environmental studies, and environmental policy advocacy produced a bibliography of work some fifty-four pages in length (p. 398), has been referred to by many as the father of interdisciplinary environmental studies. Long before most, Caldwell understood that to craft effective environmental policy, policymakers must be trained to understand and appreciate the ecological world surrounding them. Public administration skills must be joined with scientific and even philosophical understanding of the planet as an integrated whole. Caldwell’s expertise in both public administration and environmental policy brought him into a position of international influence, and he traveled widely both to conduct training and to advocate for his systematic ecological vision. Domestically, his achievements include the creation of an interdisciplinary school of environmental studies at Indiana University and, perhaps most notable, a leading role in drafting the National Environmental Policy Act (NEPA) of 1969.

*****

Wertz has given a signal service in providing the field with a resource through which we can learn about this remarkable scholar. Her coverage of the NEPA, often regarded as the “Magna Carta” of U.S. environmental policy, is deeply insightful—though..., depending on the audience, further editing could have been useful. The field of environmental policy is richer for this addition. Serious scholars of NEPA, Caldwell, or environmental studies will find this volume a wonderful resource. More casual readers should bear in mind that some skimming may be required. 

Procedure and environmental history

A little while back Liz Fisher gave an interesting paper at a conference at TAU Law on how courts in New South Wales have approached judicial review of environmental impact assessments. My colleague Issi Rosen-Zvi, commenting on the paper, related Fisher's discussing of Australian courts' manipulation of the law/fact distinction to a centuries-long phenomenon of courts arrogating power to themselves (and taking it away from juries and administrative agencies) by casting questions as ones of law rather than of fact.

Rosen-Zvi's comment is a reminder that current debates over procedural issues such as standing, scientific evidence, class action lawsuits, and the like not only hold great importance for today's environmental law, but have a long history behind them, a history tied up in politics and power struggles over (among other things) which institutions, social classes, professional groups, etc. get to make decisions of environmental import.

William Hogarth, The Bench (1758)