Can Saving Jaguars Sustain Local Economies?

Residents of southern Arizona are protecting jaguar habitat and creating jobs in the hopes that a restoration economy can beat an extraction economy.

Biologist Ron Pulliam is used to being at the center of America’s most pressing wildlife and public lands issues. He led the U.S. Biological Survey (now part of the U.S. Geological Survey) and served as science advisor for Secretary of the Interior Bruce Babbitt under President Bill Clinton. But despite his high-powered positions, he says, “I never felt like I was making a difference.”

Retired now, Pulliam is still trying to make a difference — this time in the Sky Islands of southern Arizona rather than the halls of Washington, D.C. As controversy mounts over President Trump’s border wall, Pulliam finds himself knee deep in saving one of the Southwest’s most iconic species: the endangered jaguar.

But he’s not doing it through traditional conservation measures. Instead he’s launched a for-profit company that’s working to prove that saving jaguars and other wildlife has economic benefits for the community.

On the Move

Many Americans think of jaguars (Panthera onca) as the big cats of Latin America, slinking through Amazonian jungles or climbing Guatemala’s Mayan ruins. Yet jaguar populations are scattered throughout Mexico — some not far from the U.S. border — and the species once ranged from California through Texas. They essentially disappeared from the United States in the 20^th century as ranching, cities and suburbs took over the scrub oak and mesquite landscape of the Southwest.

Less habitat meant less wild prey, so jaguars had more incentive to attack livestock, giving ranchers more incentive to shoot jaguars on sight.

But a renaissance of sorts has emerged over the past two decades: Since 1996 at least seven male jaguars have been spotted in southern Arizona and New Mexico, almost certainly moving north from populations in Mexico. The species that the late carnivore expert Alan Rabinowitz once called “the indomitable beast” is now trying to recover its lost American ground.

But politics could thwart that advance. A solid wall along the entire border with Mexico would stop jaguars from moving north, halting their already tenuous return. Dr. Howard Quigley, jaguar program director for the global wild cat conservation group Panthera and one of the lead authors of the U.S. Fish and Wildlife Service’s Jaguar Recovery Plan, says Mexican populations are critical to the recovery of jaguars in the U.S. “If there will ever be a population in the States, it will require animals moving up from the south,” he says.

Yet even if the border remains open, other modern-day obstacles such as roads, houses, cities and ranches threaten the big cats’ survival. Jaguars need good cover, lots of prey and vast wild landscapes. They typically shy away from people, meaning that the crowded 21st century offers few routes north leading them to safe habitat. And by nature female jaguars are less likely to venture the trek. Most jaguars disappear a few years after arriving in the States without establishing a population.

Scientists identified land between disconnected parts of the Arizona’s Coronado National Forest as important for jaguars moving north from Mexico. (Photo by U.S. Forest Service)

A Restoration Economy

Pulliam hopes to change that by preserving the most important route for recolonizing jaguars in Arizona.

He didn’t set out to protect jaguars specifically when he retired to the region in 2009. Rather he wanted to explore new approaches to conservation that would protect large landscapes while simultaneously supporting local economies.

“From the beginning I took the attitude that we can restore an area, but in the long run this is all for naught unless local people buy into it,” he says. He held a series of workshops with local conservationists, government agencies and others, and developed criteria for choosing worthwhile projects that fit his vision of a “restoration economy,” a model that would benefit both local people and ecologies.

Jaguars, it turned out, would be the ideal conservation investment.

Based on his criteria, the location for a restoration economy conservation project first has to be valuable from a scientific standpoint. A 2008 study by scientists at Northern Arizona University identified a corridor of private land between two disconnected sections of the Coronado National Forest near the town of Patagonia, Ariz. as the most important habitat link for jaguars moving north from Mexico into Arizona.

Next the site must face an imminent threat. The jaguar corridor did: A developer had proposed a housing development on the private land bisecting the national forest. The planned 189 housing lots on more than 1,300 acres of land fell within a two-mile gap linking prime habitat in the Patagonia Mountains to that in the Santa Rita Mountains — the exact corridor jaguars would use to move upstate.

Finally, the solution has to be economically feasible. One obvious way to make money is through tourism. Patagonia is already a birding mecca, and hiking, biking and equestrian trails run throughout the property that would have become the housing development. Pulliam is working to link these trails to the nearby 800-mile-long Arizona Trail that connects the Mexican border with Utah, making the town a hiking destination as well.

Another long-distance trail — the Juan Bautista de Anza Trail, running from Hermosillo, Mexico through Nogales, Ariz. all the way to San Francisco, Calif. — lies about 20 miles away. Connecting the corridor trail network with these longer trails could increase its tourism appeal.

But the restoration economy goes far beyond that. Instead of asking a nonprofit land trust to purchase the property, Pulliam created a for-profit company called Wildlife Corridors LLC to accomplish that task. The corporation, in turn, offers investors the possibility of a profit — a high risk, low return venture, but enough for do-gooders with a few dollars to sign up.

Overcoming Challenges

However, realizing both a profit and a conservation goal has been a challenge.

The housing developers filed for bankruptcy after reportedly sinking millions into roads and connecting some lots to power and water. And so the Wildlife Corridors crew negotiated with the developers’ bank for more than a year to acquire the land for the bargain price of little more than $1 million in 2014. That included more than 1,200 acres with 173 lots (the developers already had sold 16 lots) of which 149 lay within the essential jaguar corridor.

“Six or eight [investors] pooled funds,” Pulliam says, including himself. “We raised $400,000 in equity and then bought the property with a big mortgage.”

Then they hatched a plan to generate funds to pay off the mortgage and support their conservation efforts through three income streams.

The first stream involved philanthropy. Wildlife Corridors LLC partnered with the nonprofit Biophilia Foundation, which could accept tax-deductible donations to purchase the development rights on the lots from the company and then retire the rights.

The second stream comes from selling 24 lots on the southern edge of the property, where roads and power infrastructure had already been built.

The third comes from federal grants to restore habitat on the property. So far, this has included removing invasive species, halting erosion and planting thousands of agave plants to protect the endangered lesser long-nosed bat (Leptonycteris curasoae yerbabuena).

An endangered lesser long-nosed bat visits a hummingbird feeder. (Photo by Nancy Bailey, CC BY-NC-ND 2.0)

“The only reason we have succeeded is because we have all three revenue streams,” Pulliam says. Still, they had to weather a rough first few years, including battling a developer lawsuit that halted their income and incurred more legal expenses.

So far Wildlife Corridors LLC has retired 840 acres of development rights, sold 11 lots and reduced its debt to less than $300,000, according to Pulliam. Investors haven’t yet received any dividends, but several have swapped their investments for lots, which could appreciate in value. Pulliam remains optimistic that real profits eventually will emerge.

Wildlife Corridors is just one part of a larger effort to stimulate a restoration economy. The company works closely with nonprofit and limited-profit organizations that Pulliam and collaborators created to bring in additional revenue by restoring habitat. For example Borderlands Restoration L3C is a limited-profit corporation that sells native and pollinator plants to federal agencies for regional restoration projects. Collectively this Borderlands Restoration Network boasts a $3 million budget and employs about 20 local people — jobs that Pulliam claims are better than those offered by the mining industry because they are sustainable and will last long into the future.

“We’re tiny now,” he says, “but we’re growing.”

Pulliam believes this combination of diverse revenue streams, local jobs and engagement is critical for success in any restoration economy venture. In Patagonia people are using the land and “putting their own blood, sweat and tears into it,” he says. The mistakes of past conservation efforts, in his view, occurred when national conservation groups bought land and sealed it off, triggering local resentment.

“We won’t consider ourselves successful until we can offer as much to the local economy as mining and local extraction,” says Pulliam.

He’s got a ways to go on that front. Although the recently approved Rosemont Copper Mine 25 miles north doesn’t directly affect this restoration project, it will, if constructed, offer jobs while likely impeding jaguar movement. And of course, President Trump’s proposed border wall remains a threat.

The full economic potential will take time to emerge and so will the conservation value of the project. Camera traps on the protected property have recorded numerous mammal species, but no jaguars, although at least one jaguar has been seen in the region this year in Arizona. Two others have crossed the border in the past few years.

Challenges remain to boosting that number. But for now, with a key U.S. corridor preserved, jaguars have more of a fighting chance.

Fenced in: A Surprising Threat to Coral Fish and Biodiversity

Massive traditional fish traps called fish fences catch hundreds of types of fish — many before they’re old enough to reproduce.

A 15-year study of traditional fishing techniques has revealed a surprising threat to coastal ecosystems in the tropics: fish fences.

What’s a fish fence, you ask? They’re massive structures of mangrove wood and nets used to funnel and trap hundreds of species. The technique has been used for centuries, but the new research reveals that they’re actually quite damaging.

“These fences — which are common across the Pacific, Atlantic and Indian oceans — are so large they can be seen from space using Google Earth,” said Richard Unsworth from Swansea University, co-author of the study. “Because they are unselective, they catch more than 500 species, many as babies or which are of conservation concern. It’s not surprising that these fisheries are having a disastrous impact on tropical marine ecosystems such as seagrass meadows, mangroves and coral reefs.”

In the process they’re also harming human livelihoods and food supplies in areas dependent upon coastal fisheries.

The authors of the study recommend that local governments now restrict the use of fish fences as part of the goal toward ensuring sustainable fisheries. “But we have to move quickly,” the authors warn in an essay in The Conversation. “Every year that fish fences continue to be used so intensively brings us one step closer to the point of no return.”

To find out more about fish fences and the threats they pose, check out our video below.

New California Bill Could Revolutionize How the U.S. Tackles Plastic Pollution

A sweeping “circular economy” bill in the California legislature aims to drastically reduce plastic waste and boost domestic recycling.

The ubiquity of plastic in our lives is leaving a mark — on the geologic record, in remote regions of the Earth, in the bodies of 90 percent of seabirds. Our oceans are a toxic soup, swirling with an estimated 50 million tons of plastic waste. But the tide is changing.

Mounting global pressure to curb plastic pollution is gaining steam. A significant leap came last year with the European Union’s vote to ban single-use plastic items by 2021 and boost bottle recycling 90 percent by 2025. On June 10 Canada announced it would follow Europe’s lead.

In the United States, efforts to reduce plastic waste have so far been piecemeal — bans on specific items, like plastic bags, and only in certain municipalities. But California could help the country take a massive leap forward.

At the end of May, the California Senate passed S.B. 54, the California Circular Economy and Plastic Pollution Reduction Act, introduced by Senator Ben Allen and modeled after the European effort. A day later, the state’s assembly passed identical legislation, A.B. 1080, introduced by Assemblywoman Lorena Gonzalez. If the bills clear opposite houses and earn the governor’s signature, it will be groundbreaking.

“We haven’t seen anything like this elsewhere in the U.S.,” says Angela Howe, legal director of Surfrider, a nonprofit devoted to clean oceans and beaches, which is part of a coalition of organizations working in support of the legislation and reducing plastic pollution.

The focus of the legislation is on producer responsibility — both reducing the amount of waste generated and making sure what is absolutely necessary is either compostable or recyclable. On average only 9 percent of plastics are recycled in the United States, and that already-modest number is expected to decrease even further as more countries follow China’s lead in closing their doors to waste exports from the United States and elsewhere.

Plastic isn’t just washing up on beaches, it’s piling up at landfills, making the crisis in the country even more urgent and expensive.

Marine litter — Plastic washes ashore with other marine litter. (Photo by Bo Eide, public domain)

As written now the legislation would require manufacturers and retailers in California to reduce the waste generated by single-use packaging and products by 75 percent by 2030 through producing less plastic, recycling more of it, making reusable packaging, or using compostable materials. It would also set guidelines for manufacturers of single-use plastic packaging and products that would ensure that 20 percent of their products are recycled by 2024, 40 percent by 2028, and 75 percent by 2030.

“The single-use plastic crisis is so pervasive that we’re seeing microplastics in the tiniest plankton to the largest whales,” says Ashley Blacow-Draeger, Pacific policy and communications manager at Oceana, which is helping to support the legislation. “It just drives home the message that we can’t recycle our way out of this crisis. We need really strong, bold and timely action now and we don’t have any more time to wait to address the issue.”

Previous efforts to tackle banning or restricting items like foam food containers, plastic bags and plastic straws has been tantamount to winning battles but not winning the war, says Stiv Wilson, director of campaigns for the Story of Stuff, which is producing a film about the global fight against plastic pollution and is a leading coalition partner supporting the legislation.

“If we’re going to fix the system, we have to actually take a systemic approach,” he says.

He admits that regulating the materials economy isn’t as easy as a simple message like banning bags, but it’s the only effective way to tackle the problem.

One of the biggest issues is that there’s simply too much plastic, which is why the bill has an emphasis on source reduction, he says.

“We have to get to a manageable supply to be able to create a reasonable demand,” says Wilson. “Once that lever gets pulled where there is a statutory obligation on a supply chain, all of a sudden you will see investment in that supply chain to meet that demand.”

And that, advocates of the legislation say, should spur investment domestic recycling, build green jobs, and enable companies to develop alternative delivery systems for products meant to create reusability instead of disposability.

The potential benefits would be far-reaching — aiding not just oceans, but wildlife and human health, as well as economies, says Blacow-Draeger.

“It’s shocking how expensive it is for cities and counties to remediate all the single-use plastics waste that is being produced,” she says. “The hope with these pieces of legislation is that they will actually lessen the burden on municipalities and on ratepayers by not producing as much waste to have to process in the future.”

For many industries it would also be a big change.

“It wouldn’t just be the one major plastic bag manufacturer that’s affected,” says Howe. “It’s everything from grocery stores to the natural gas plants that make plastics to retailers and manufacturers.”

Proponents of the legislation say they anticipate pushback from these industries as the bills go through committee in the opposite houses over the next few months. The Plastics Industry Association (PLASTICS) didn’t return a request for comment, but an industry publication, Plastics Today, reported that the association was urging legislators to vote against the bills: “PLASTICS notes that it has attempted to work with the bills’ sponsors ‘to try and redirect the bills toward policies that are proven to reduce litter and increase diversion rates. Unfortunately, we’ve been unable to have the bills amended to a point where we can support them,’” according to the publication.

Wilson says that the comprehensive nature of the legislation is the only way to effectively reduce plastic pollution, and with California being the fifth biggest economy in the world, the impact of this legislation is likely to be felt in other states.

“I think it’s fair to say that we have a history of seeing manufacturers conform to California laws,” he says. “We saw it with auto emissions — it’s a big enough market that it should spur change across the industry.”

For that ripple effect to happen, California first needs to pass its landmark legislation.

The bills will now need to clear the natural resources and appropriations committees in the opposite houses of their origin before having a chance at a floor vote by Sept. 13. If they pass those hurdles and earn the governor’s signature, the legislation would set a high bar for other states.

“I think it is a line in the sand that essentially says if we don’t take this approach, we don’t solve the problem,” says Wilson. “It’s not only trying to solve a problem, it’s trying to shift the narrative on how you solve the problem. This is actually an expression of the world we want and one we think that can work, and absent that, we’re a dog chasing its tail.”

Artifishal: New Film Asks, Have We Reached the End of Wild?

A new film from Patagonia explores the threats to wild salmon and asks questions about how we value wild animals.

That salmon sitting in your neighborhood grocery store’s fish counter won’t look the same to you after watching Artifishal, a new film from Patagonia.

The project, which got its start when Patagonia founder Yvon Chouinard wanted to make a film about the arrogance of humankind, turned out to be a film about salmon… and what we’re doing to them.

The film uses salmon as a lens to tell a larger story about wilderness.

“It’s about how we keep trying to control nature rather than allowing it to do what it does,” says the film’s director, Josh Murphy.

Artifishal looks specifically at how fish hatcheries and fish farms threaten wild salmon populations, which in turn has ecosystem-wide effects — all because of our desire to eat these culturally significant species.

“We fell in love with this wild thing and then we took too many of them and we degraded the environments that produce them,” explains Murphy of the genesis of the film.

But instead of helping wild salmon recover, we’ve created hatcheries and farms to make more of them — at great cost, both economically and ecologically. The film explores the process, the tradeoffs, and what’s at stake if we continue down this path.

As Artifishal and its filmmakers travel around the country conducting screenings with community organizations, we spoke with Murphy about what he learned making the film and why wild salmon are so important.

It seems like the heart of this film is fish hatcheries, which don’t get a lot of attention. What did you learn about them?

There’s this narrative that hatcheries are a good thing. But I wanted to know where that came from because there’s no other animal that I can find that’s mass produced, much less by a state or a federal government, and then released into the wild. It doesn’t happen.

Josh Murphy directed the film Artifishal from Patagonia. (Photo by Liz Seabrook)

I found the story of George Perkins Marsh, who wrote a book in 1864 called Man and Nature about the irreparable harm humans were having on the environment. And that was a big thing. Creeks and rivers had been so degraded by industry, dams, mills and forest practices [that] he proposed that we should restore fish. He had just heard about this technique brought over by some French guys about how to take the fish eggs and milt and combine them. And he thought that this is how we’ll solve the problem — we’re just going to make more fish. Within five years of the Civil War ending there were fish hatcheries all over New England.

It played on our agricultural norms — we do this for chickens, sheep, cows — of course we’re going to do this for fish. But we didn’t realize that fish are going into an uncontrolled environment.

What are some of the risks to wild salmon from this?

Fast forward to today and now you have certain people who wanted to further degrade rivers, for example, people that want to develop the rivers for hydropower, and they’re allowed to do that — they can dam the whole river and just put a hatchery at the bottom of it.

Hatcheries have enabled people to believe that you could control the river and still have fish.

And what we’re realizing now is the science over the last 25 years says that’s a completely false narrative. It’s actually degrading the biological diversity.

By bringing fish into a hatchery, you’re decreasing all of the natural selection that would have happened and so you’re taking the fitness out. And then we started selecting certain breeds within a river, like fall-run Chinook, because it was easier and cheaper for us to produce those. But we only do that with economically viable species, not the biologically viable species. So we don’t have, for example, hatcheries for lampreys, which are an important part of the ecosystem. And we don’t have hatcheries for spring-run in many places or winter-run, which some rivers have. It’s only fall-run.

I think the scariest thing is that in choosing as we are, we are actually degrading the fishes’ ability to adapt in the future to things like climate change. They’re becoming more like a monocrop.

The first part of the film is about hatcheries and then it jumps to fish farms. You show the risks of Atlantic salmon being raised in open pens in Pacific waters. Was this a commentary on that practice specifically or fish farms in general?

Net-pen salmon farm, Norway. — Net-pen salmon farms concentrate fish at unnaturally high levels, creating ideal conditions for disease, parasites and other health issues. Alta, Norway. (Photo by Ben Moon)

In open net-pen aquaculture, when you have opportunities for the farmed fish to escape and interbreed with wild fish — when you have Atlantic salmon in the Pacific — one has to wonder, what are we doing? What’s driving this? And it’s just money.

There are other ways. There’re opportunities for fish to be raised on land with either freshwater or saltwater with less harm to the wild environment. But we don’t do it because we want more money. Floating a net in the ocean costs nothing. You don’t even pay property taxes. You may have a license fee to the state, but that’s it. And you get to dump everything into the water.

We may need to have aquaculture in the future and I think that it’s a promising sector. But if we need more fish, if there’s a demand for that, we need to do it in a way that does not harm wild fish.

What do we lose if we don’t have wild salmon?

There’re the obvious benefits that salmon give to ecosystems.

So for example, right now in rivers that have hatcheries, there’s often a fish weir on the river and the fish will swim up to it until they can go no further. So they’ve taken all of the nutrients that they have acquired in the ocean, and they swim up to that weir, turn the corner and they swim themselves into the hatchery. The hatchery kills the fish, takes the gametes, makes the new generation and throws the fish into a landfill. All of those nutrients that used to funnel from the ocean to the headwaters of these rivers are gone. That means all of the animals that relied on those nutrients no longer have that.

But we don’t care because we just want to make more fish and release them. For who? Commercial and sport fishers. That’s it. That means there’s no other value that salmon have to anything else in the ecosystem. If fish are not seen as wildlife and they’re only seen as food and fun, then we will just try to churn them out and manufacture them as quickly as we can because of the economic benefits.

But we don’t do that for grizzly bears. We don’t have hatcheries for deer, for elk, for waterfowl. When you hear the word “hatchery,” it sounds quaint, but if we call these “fish factories,” which is what they really are, people might consider the whole thing differently.

Sawtooth Hatchery, Idaho — Raceways for raising juvenile spring Chinook salmon at the Sawtooth Hatchery, in Stanley, Idaho which is managed by the Idaho Department of Fish and Game, and funded by the U.S. Fish and Wildlife Service. (Photo by Ben Moon)

What do you hope people take away from this film?

If we don’t respect wild and we just try to replicate them in farms and replicate them in hatcheries, then we could lose wild altogether. What I hope the movie leaves people with is this kind of disquieting question, which is, are we at the end of wild?

If we are then that’s a really frustrating reality. If, in fact, that’s what we’ve decided, what then for birds? What then for bears? For elephants?

Some people just don’t want to hear that because they’re so focused on themselves — their livelihood or their recreation. But what about the rest of the entire ecosystem that relies on wild fish? It’s not just about us. That is the arrogance of man — this whole story is just about us. And I think that’s what we have to reconsider.

Fish are really indicators of water quality. I think about that in terms of the metaphor of the canary in the coal mine. If a miner was descending into a mine and the canary dies, it says to the miner, “don’t go any farther.” Right?

With fish it’s like we’re descending into that mine, the fish dies, and we just make more of them to put in the cage. It’s telling us something. It’s saying the environment can’t support them. Fix that problem. Don’t make more of them. We have to fix the disease, not just manage the symptom, which is a lack of fish. And until we do that, our future for wild fish, and our future for other wild things is in question.

Previously in The Revelator:

Farmed Fish Threaten British Columbia’s Wild Salmon Population

Dragon Quest: Australia Kicks Off Search for Possibly Extinct Lizard

The Victorian grasslands earless dragon hasn’t been observed for 50 years, but conservationists haven’t given up hope yet.

Got good eyesight and some time on your hands? Australia needs you.

Zoos Victoria has issued a public appeal to help find a lizard species that hasn’t been credibly observed in 50 years. The Victorian grasslands earless dragon (Tympanocryptis pinguicolla) was last seen in 1969 and could possibly be mainland Australia’s first reptile extinction — if it isn’t just hiding.

And hiding is something this dragon is good at. In addition to being small, elusive and camouflaged, the species also managed to hide its very existence from scientists until this year.

Its cover was blown last month when researchers announced that what had previously appeared to be one lizard species — the grassland earless dragon — was actually four different species with minor morphological differences and unique genetic makeups.

The previous taxonomic name, T. pinguicolla, has been assigned to the lizards once found, but now long unseen, in the Victoria region. The three new species, all found in different locations, have been named T. lineata in the Canberra region; T. osbornei in Cooma; and T. mccartneyi near Bathurst.

The new dragon species — including the possible extinction — were announced in a paper published May 22 in the journal Royal Society Open Science.

The paper’s title identifies the Victorian dragon as “the first possible extinction of a reptile in mainland Australia,” but the write-up takes a much more cautious approach. The researchers note that the species is difficult to detect and surveys may not have covered all the dragons’ remaining habitat. Therefore, they wrote, “we suggest that T. pinguicolla does not yet meet the criteria for being considered either Extinct or Critically Endangered (Possibly Extinct).”

Its extinction risk, however, still needs to be assessed, as does that of the other three species.

“Now that they are four separate species the conservation recovery teams will be working to re-evaluate the status of the species,” lead author Jane Melville told the Australian Associated Press. She also noted that the recovery plan for the previously recognized species is a decade old and in need of revision.

If the Victorian dragon still exists, now is the time to find it. The grasslands where it was previously seen have mostly been paved over or converged to agricultural fields, leaving little possible habitat. A 2017 study identified a few possible locations to search, but intensive trapping in 2018 failed to turn up any living dragons, according to Zoos Victoria. (The search did, however, improve their understanding of the local invertebrate community, showing that the areas could still potentially support the lizards.)

The zoo is still looking, and they hope the general public can aid in the dragon quest. “We need your help,” the zoo posted last month. “Nine possible sightings have been reported by the community in the past two years. Upon further investigation these were identified as other dragon species, but the more people looking, the higher the chance of finding the dragons if they are out there.” Sightings can be reported to the Dragon Search website.

Does the Victorian grassland earless lizard still exist? In a recent post for The Conversation, Melville acknowledged that the news of the possible extinction was worrying, but quickly added “We’re not leaving this lizard for dead just yet.”

The quest continues — as it does for so many other lost and possibly extinct species.

Justice Through Citizen Science: How ‘Chemical Fingerprinting’ Could Change Public Health

The technology exists to hold polluters accountable, but can it now be used to help monitor pollution and prevent toxic messes?

In the early 2000s, residents of a small, Rust Belt city called Tonawanda, New York, began noticing something strange: Over the years, it seemed, an increasing number of people were getting sick — primarily with cancer.

Tonawanda’s a highly industrial city with more than 50 polluting facilities situated within a three-mile radius. It was common for the air to feel dense and to smell like gasoline. Residents wondered what toxic chemicals might be in the air and if they were making them sick.

Seeking to answer that question, in 2005 a small group of concerned residents took to their streets armed with five-gallon buckets, plastic baggies, plastic hoses and a handheld vacuum to suck out samples from the heavy, foul-smelling air.

Lab testing confirmed their fears: Air samples they’d taken near a plant called Tonawanda Coke, which produced a high-carbon form of coal, contained extremely high levels of industrial toxins, including benzene — a hydrocarbon linked to cancers, infertility, growth problems and an array of blood diseases. It was present in the air at a rate of 25 times what the federal government estimates an average American is exposed to in a lifetime.

The group’s work resulted in a legal investigation, a federal lawsuit and the eventual shutdown of Tonawanda Coke in 2018. It was a major victory spurred by a small, DIY investigation. But the success didn’t end there. It led to a first-of-its-kind “chemical fingerprinting” study that could have far-reaching impacts to hold polluters accountable and even prevent towns like Tonawanda from becoming toxic dumping grounds in the future.

Tonawanda Coke aerial — The Tonawanda Coke plant in Tonawanda, NY. (Photo by EPA/Google Earth)

Bottom-up Research

In 2013 a judge found Tonawanda Coke guilty of violating 11 counts of the Clean Air Act and three counts of the Resource Conservation and Recovery Act. The company was ordered in 2014 to pay a $12.5 million penalty plus $12.2 million for community health and environmental research that could reveal the full extent of the factory’s pollution legacy — the first time in history such a legal decision has ever been made.

Today the environmental component of that court-ordered research — a $711,000 soil project that involves testing for specific chemical signatures in soil to map areas that have been exposed to the highest levels of air pollution — is in its final phase, with its results to be made public later this year.

Residents will then learn the extent of the pollution in the region caused by the coke plant. But much has already been accomplished thanks to the continued work of local residents, who have assumed “citizen scientist” roles in collecting soil samples for study. While chemical fingerprinting has been done before to find polluters, this is the first federally court-ordered project funded by a convicted party and designed by local scientists to uncover the extent of an industrial polluter’s impacts on its community by testing chemical fingerprints with the help of citizen scientists.

Experts believe this kind of community-driven project is a cost-effective way to understand long-term pollution legacies from companies like Tonawanda Coke and also to identify additional polluted areas that need to be cleaned up.

“Soil sampling is a surrogate for historic air pollution, especially for the most carcinogenic compounds emitted by industrial plants,” says Joseph Gardella Jr., State University of New York at Buffalo chemistry professor and research leader. “Many pollutants in the air end up depositing themselves in soil, providing us with a record of what factories have historically been pouring out, what people have been breathing in and what needs to be cleaned up now.”

Fingerprinting Polluters

The scientific process of developing a specific chemical fingerprint and tracing it back to a specific source, in this case Tonawanda Coke, is known as “source apportionment.” Each factory releases its own specific mixture of pollutants. They perform some kind of combustion process or processes, and so they release chemicals specific to those processes belonging to a class of cancer-causing chemicals called polycyclic aromatic hydrocarbons (PAHs).

Burning cigarettes, running vehicles, cooking on a charcoal grill and making a bonfire also releases PAHs — albeit in much smaller amounts. Different types of combustion — including the production of coke, which comes from heating coal at high temperatures — release different types of PAHs and other associated health-harming chemicals, such as particulate matter, sulfur and carbon dioxide.

In 2017, while Tonawanda Coke was still running some of its coke ovens, Gardella and his team took air and soil samples on site, as well as a sample of the coke the plant produced, to gather data that could be used to develop a chemical fingerprint unique to the factory. Then they held community meetings where they called on the public for help collecting soil samples from their properties and taught them how to collect samples that could be used for scientific analysis.

In total residents collected 182 soil samples, and Gardella’s team also analyzed public data on contaminants from 65 toxic release sites in their test area in northwestern Erie County, New York. The scientists sent both the air and soil samples to independent laboratory ALS Environmental to be analyzed for 169 different industrial chemicals. The results?

“On the Tonawanda Coke property, soil samples had levels of PAHs that were through the roof,” says Gardella. “I had never seen anything this contaminated before, and I’ve seen some pretty contaminated sites.”

Analysis of the resident-collected soil samples also revealed high levels of pollution, specifically on properties immediately surrounding the plant; as well as properties east, northeast and west of the plant. Chemicals found in soil samples included PAHs, PCBs, cyanide and heavy metals such as lead, mercury and arsenic. Some of the residential samples in the worst polluted areas had levels of toxic chemicals that exceeded federal and state guidelines that would necessitate a cleanup.

Mapping the Risks

Understanding the kind of pollutants in the area was just the first step. Next, to understand whether or not the pollutants on residential properties definitely came from Tonawanda Coke and not another industrial polluter, researchers need to do more testing. In 2018 the scientists asked residents to take 130 more samples within the most highly polluted areas and began the process of determining source apportionment — matching the chemical fingerprint.

“I am currently building a library of chemical standards from pollutants found on the Tonawanda Coke property so I know what chemicals we are looking for and what its unique chemical fingerprint should look like,” says Kaitlin Ordiway, a State University of New York at Buffalo graduate student now working on the source apportionment component of the study.

Because Tonawanda was the only coke plant in this highly industrial area of New York, Ordiway says she’s using advanced chemical tests to look specifically for PAHs associated with coke production. These include anthracene, phenanthrene, benzo(a)pyrene and benzo(g,h,i)perylene. PAHs are more complex versions of one of the simplest aromatic hydrocarbons, benzene, a very common — and toxic —emission from industries of all kinds.

Chemicals from soil samples — These vials contain chemicals extracted from soil samples. (Photo by Douglas Levere / University at Buffalo)

“The PAHs I’m looking for have a more complex molecular structure than benzene, and so they can be used to develop a more detailed and accurate fingerprint,” Ordiway says.

Chemical fingerprinting and the methods used by the University at Buffalo team have been widely used to uncover sources of industrial pollution, according to Paul Boehm, corporate vice president and principal scientist at Exponent, an engineering and scientific consulting firm. This includes cases for all kinds of pollution, he says, such as from the Deepwater Horizon and Exxon Valdez oil spills.

He adds that “what makes or breaks such investigations” includes the quantity and quality of samples used to establish the fingerprints, considerations of all other possible chemical sources in the area including natural “background” levels of PAHs, the techniques used to analyze the data, and most importantly, the experience and skills of the scientists who are analyzing and interpreting the data.

Gardella and his team say that, after their fingerprinting process is finished, they’ll use GIS technology to develop contamination maps with their data that will inform environmental agencies about the exact location of various contaminants. Specifically, they’ll determine where a cleanup of toxic soil might be necessary and whether or not Tonawanda Coke is responsible for it or if another polluter is to blame and should be investigated. Gardella says he and his team expect to announce the results in later 2019.

Chemical fingerprinting research and map-making can be time consuming, Gardella says, but when citizen scientists are used to help gather data, it’s not very expensive. He believes the process should be used routinely by state and federal environmental agencies to identify polluters and polluted areas instead of waiting for a court order, as in the case of Tonawanda. Because the technology to perform source apportionment already exists and the testing methods are relatively inexpensive, environmental agencies just have to develop the capacity and training to carry it out, he says.

“When that happens, this could become proactive work rather than retrospective work, resulting in better pollution monitoring across the country and healthier lives for people living in areas affected by industrial pollution,” Gardella says.

The Unseen Threat: Noise in the Arctic Marine Environment

Increasing levels of underwater noise threaten Arctic whales, seals, fish and other species. A new report offers an opportunity for Arctic nations to lead on the issue.

In recent years we’ve experienced a growing awareness that the noise generated by humans in the world’s oceans affects life beneath the waves. That noise comes from a variety of sources — including acute sounds associated with military sonar, oil exploration, mining and seabed construction — but the most common and widespread source is the chronic noise made by ships as they travel.

This chronic noise affects a variety of marine species, including fish and invertebrates, but it can be particularly disruptive for mammals like whales and seals that use sound to communicate — sometimes over vast distances — and to detect prey.

The increasing concern about underwater anthropogenic (human-caused) noise was reflected in the 2018 Canadian federal budget, which made multiyear funding commitments to help three populations of whales the country lists as “at risk”: right whales in the Bay of Fundy, belugas in the Gulf of St. Lawrence, and resident killer whales in the Salish Sea on Canada’s West Coast.

This was an important step in three busy, noisy habitats, but what about whales in the more remote Arctic, including narwhals and long-lived bowhead whales? While these populations experience less exposure to noise than whales in more crowded oceans, conditions in the Arctic are unique and warrant special consideration.

bowhead whale — Bowhead whale. Photo: Dr. Kristin Laidre/NOAA

For one thing the Arctic generally has low background-noise levels, so noise from ships can be heard from farther away and will therefore affect a much larger area. At the same time, the relative lack of anthropogenic noise in the Arctic means that any future increase in ship traffic — as is projected to occur as a result of declining sea ice, new shipping technologies and global economic trends — will have a greater relative impact on species, including whales that aren’t used to living in a noisy environment. (For more information on ocean noise in the Arctic, see my colleague Bill Halliday’s blog, What’s that sound? What underwater listening can teach us about the Arctic. )

whales and shipping noise — Whales near shipping vessel. Photo: NOAA

Moreover, even modest impacts — such as a geographical shift in the movement of whales, seals or walruses to avoid ship traffic — can significantly disrupt the traditional seasonal hunting patterns of Indigenous communities. In the Arctic these potential impacts directly threaten Indigenous communities, whose food and cultural security are intimately associated with and depend upon these species. This challenges us to consider how we can maintain healthy populations of whales and other Arctic marine species as the level of human activity increases.

Here’s where the Arctic Council comes in. The Council is the leading intergovernmental forum promoting cooperation, coordination and interaction among the Arctic states, Indigenous communities and other inhabitants on common Arctic issues — in particular on issues of sustainable development and environmental protection. It’s made up of representatives from the eight Arctic nations, as well as six “permanent participants” that represent the Arctic’s Indigenous peoples.

Its work is carried out collaboratively through six working groups, including PAME (Protection of the Arctic Marine Environment), which has taken the lead on issues related to shipping, such as the ground-breaking “Arctic Marine Shipping Assessment.” PAME is now leading the process to better understand the impacts of ship noise in the Arctic and how to mitigate those impacts.

To help achieve those goals, Fisheries and Oceans Canada commissioned WCS Canada to prepare a “State of Knowledge” report on underwater noise in the Arctic for the PAME working group. That report has now been approved by PAME and published on their website. The report reviews scientific studies that measure background-noise levels in the Arctic. It then compares those levels to non-Arctic regions, documents how noisy different anthropogenic activities are in the Arctic, and assesses how Arctic marine animals are affected by noisy anthropogenic activities.

We found, for example, that the presence of solid sea ice for at least part of the year effectively isolates the underwater environment from most weather-related noise sources. On the other hand, ice-breaking activity introduces loud noises from powerful engines, as well as from the ice itself as it breaks up after being rammed.

Two Canadian icebreakers. Photo: Patrick Kelley, U.S. Coast Guard

Among the report’s other findings are several important knowledge gaps, including the fact that the effects of oceanic noise have only been studied in four of the region’s 11 marine mammals and just two of the 633 Arctic fish species — and none of its 4,000-plus invertebrate species. This will need to be a critical area of study in the coming years.

At their recent high-level meeting in Rovaniemi, Finland, the Arctic Council ministers welcomed the report and approved a two-year program of work for PAME that will focus on underwater noise. This work is based on recommendations that were developed jointly by WCS and WWF.

The first step will estimate the total cumulative underwater-noise emissions from shipping throughout the Arctic. Next PAME will identify the areas where ship noise overlaps with areas of heightened ecological or cultural significance.

With this important information in hand, it will be possible to investigate possible strategies to reduce the impact of underwater noise generated by shipping in the Arctic so that the ocean remains relatively quiet and the marine species there continue to thrive. There’s still a long way to go to achieve this goal, but in an ever-noisier world, it deserves the world’s attention.

seal pup — Seal pup. Photo by Dr. Brandon Southall, NMFS

The opinions expressed above are those of the author and do not necessarily reflect those of The Revelator, the Center for Biological Diversity or their employees.

How to Protect Sharks From Overfishing

Marine protected areas can benefit sharks and other oceanic species — but only if they’re properly established, according to a new guidebook.

How can we better protect sharks and rays from overfishing?

These related species — which, along with chimaeras, are known collectively as chondrichthyans — include some of the most threatened marine fishes in the world. Sharks and rays face a variety of threats depending on where they live and swim, but the biggest risk comes from overfishing, which takes a noticeable toll on these slow-growing, slow-to-reproduce animals. As a result, nearly 1 in 4 species of chondricthyan fishes is estimated to be, or assessed as, threatened, according to the IUCN Red List.

To fight this threat, nations have increasingly turned to a popular policy tool called a marine protected area — a part of the ocean where fishing is restricted or banned entirely. Between 2016 and 2018 the total area of ocean designated as MPAs to protect sharks and rays doubled to more than 8.1 million square miles.

However, not all MPAs are created equal. Some ban all fishing, while some only ban certain types of fishing gear. Some are focused on a particular habitat, while others are enormous and aim to protect a large ocean area. Many actually fail to protect the ocean, often because of preventable problems that occurred when they were being designated.

“There may be a lot of shark- and ray-focused MPAs, but very few of them have been demonstrated to be effective,” says marine scientist Cassandra Rigby of James Cook University.

The MPAs that succeed, on the other hand, tend to have a few things in common, according to a paper published last year. Researchers found that sites that were most likely to accomplish their biological goals of protecting the ocean also include socioeconomic goals and incorporate stakeholder input.

sand tiger shark — Sand tiger shark/NOAA

Now conservationists hope to replicate what we know about those successes and take future efforts to the next level. Last month the World Wide Fund for Nature and James Cook University published a new handbook called “A Practical Guide to the Effective Design and Management of MPAs for Sharks and Rays” which summarizes the science about what works — and what doesn’t — and provides tips and tricks for future decision makers who want to get this right.

What Makes an MPA Effective for Sharks?

The authors found that in general it takes a lot of time, planning, engagement and consideration of stakeholders like fishermen, who may lose their source of income and food security if an MPA doesn’t provide an alternative livelihood.

Rigby, the guide’s lead author, explains that effective MPAs also need “committed and sufficient resources,” which can include scientific research, government monitoring and enforcement, expert scientific advice, stakeholder outreach, and, of course, the money to pay for it all.

Without that commitment, Rigby warns, MPAs could become “paper parks” — protected sites that exist on maps but don’t actually do anything to reduce threats to sharks and rays.

In addition, Rigby says, MPAs “should be designed to meet the goals using the most relevant available science on movement, biology and habitat use.” She says easily accessible information for a wide range of shark and ray species is available to help make this planning possible.

Finally, it’s important to regularly check in and see how an MPA is doing through monitoring and adaptive management. “There should be ongoing evaluation of the MPA to ensure it is accomplishing its goals,” Rigby says.

Although the guide is specifically aimed at shark conservation, it offers tools that have a broad application. As experts point out, a properly executed MPA can be a highly effective way to conserve a wide range of marine life, including apex predators such as sharks, which help ensure a healthy ecosystem.

“MPAs that are strategically placed, well-resourced and highly protected from human impact can help protect areas of biodiversity and habitat critical to buffering our oceans from the effects of global climate change,” says conservation scientist Beth Pike, who manages the Atlas of Marine Protection and was not involved with the new guide.

What Doesn’t Work?

Shark and ray MPAs that don’t succeed in their goals tend to repeat the same mistakes. According to the guide, some MPAs don’t even have stated goals, making it impossible to measure success. Sometimes they don’t incorporate the best available science — for example, an area designed to protect a species isn’t particularly useful if the species isn’t actually found there.

In addition, many MPAs are designated through a top-down, heavy-handed approach, without first building support from local communities affected by a fisheries’ closure. This can lead to higher levels of illegal fishing if community members feel disenfranchised by the process.

But the most common problem identified by the new guide is when governments announce a new protected area without actually putting in the work to ensure it succeeds.

“Designation of MPAs without the commitment of adequate resources can lead to poor planning, lack of engagement of the local communities, and then relying on enforcement to achieving compliance,” Rigby says. “This is not realistically achievable in many of the developing countries with large shark and ray MPAs, where the ocean area is larger than the land area.”

Here’s something else that doesn’t work: banning all shark and ray fishing.

According to the guide and experts interviewed for this article, the best available science says that we shouldn’t flat out ban all fishing in MPAs or other areas except in cases where specific species are in need of recovery in a given habitat. While unsustainable fishing is common, sustainable shark fisheries exist and serve as important sources of employment and food. In many cases we can stop unsustainable fishing without banning all fishing — and in the process build support for future conservation efforts.

In particular, many small island nations don’t have the resources to patrol and enforce huge no-fishing zones, making it all the more important to get fishermen to support the new rules. “Fishers might be supportive of a much larger area where controls on catching sharks aim to achieve sustainability than they would a no-take zone,” explains Andy Cornish, a coauthor on the guide and leader of WWF’s shark and ray initiative.

white cheek sharks slaughtered — White cheek sharks slaughtered for the illegal shark fin trade. Photo: Interpol.

Swimming Forward

Rigby and Cornish say they’re optimistic that their new guide will help future shark- and ray-focused MPAs get it right from the start and also help to improve existing MPAs. They hope it will be read by environmental activists and concerned citizens pushing for new marine protected areas, as well as by decision-makers who create and implement the programs and sites.

With so many shark and ray species at risk of extinction, the authors suggest that implementing new MPAs and fixing existing ones could be the most effective tool to protect these ecologically important predators. And that, in turn, could help all marine species — and human stakeholders — gain the edge they need to survive for decades to come.

Extinction Risk and Rebellion: 15 Environmental Books Coming in June

This month brings new books from Greta Thunberg, Robert Macfarlane, the activists behind Extinction Rebellion and other conservation experts.

When 16-year-old climate activist Greta Thunberg spoke to the British Houses of Parliament last month, she had harsh words for the politicians in the audience: “You did not act in time,” she said.

Want to learn how not to be like the Houses of Parliament? This month will see the publication of more than a dozen important new environmental books (including one by Thunberg) offering readers the opportunity to take action — and not just any action, but the best actions to protect the environment. These books offer policymakers, activists, conservationists and other environmentalists the latest information and tools to help do their jobs and make this a better planet.

We’ve picked the best 15 environmentally themed books of June 2019, with new titles about activism, climate change, conserving rare species (everything from rhinos to butterflies), wildlife trafficking, sustainable energy and a whole lot more. Links are to publishers’ websites, but you can also find any of these titles at your favorite neighborhood bookstore. Pick your favorites, learn a few new things, and then put that information to good use.

Climate Change:

This Is Not a Drill: An Extinction Rebellion Handbook — Worried about climate breakdown? This new book contains dozens of chapters about how to take action, mostly written by participants in the Extinction Rebellion movement that has taken Europe by storm over the past few months.

No One Is Too Small to Make a Difference by Greta Thunberg — A slim, inspirational volume collecting 80 pages of speeches by the 16-year-old Swedish school strike organizer who’s putting the adult world on notice to take action on climate change.

The Ice at the End of the World: An Epic Journey into Greenland’s Buried Past and Our Perilous Future by Jon Gertner — The story of Greenland’s rapidly melting glacial ice contains the history of the planet…and insight into our future. But studying this remote, dangerous territory comes with its own set of challenges. Gertner helps tell the story of the scientists who work there and what they’re revealing.

The Fate of Food: What We’ll Eat in a Bigger, Hotter, Smarter World by Amanda Little — How do we feed the growing population of the planet when the world itself is experiencing the dramatic effects of climate change? Little takes us on a global journey looking for answers.

How Solar Energy Became Cheap: A Model for Low-Carbon Innovation by Gregory F. Nemet — A rather pricey tome about the history of solar power and how it might offer policy recommendations to accelerate future innovation in other low-impact energy technologies.

Wildlife, Extinction and Endangered Species:

The Last Butterflies: A Scientist’s Quest to Save a Rare and Vanishing Creature by Nick Haddad — An ecologist takes us into the conservation efforts to protect six rare butterfly species. Haddad shows that they may need intense and cooperative efforts to keep them flying — a process that may help other species along the way.

Survival or Extinction? How to Save Elephants and Rhinos by Bridget Martin — We recently lost the last male Sumatran rhino in Malaysia. Will other rhino and elephant species soon follow? This new academic book explores how we can prevent that through collaboration, law enforcement and investigation into the illegal markets fueling elephant and rhino extinctions. And speaking of those markets….

The Illegal Wildlife Trade in China: Understanding the Distribution Networks by Rebecca W. Y. Wong — The latest volume in a series on “green criminology” offers insight for policymakers and law enforcement to help understand and take down the illegal smuggling networks that are killing endangered animals in China and around the world.

A Death in the Rainforest: How a Language and a Way of Life Came to an End in Papua New Guinea by Don Kulick — Extinction happens to cultures, too. And when they go, so does everything around them. An important history lesson from an anthropologist who spent three decades watching a language and a people go extinct as the rainforest around them disappeared.

Slime: How Algae Created Us, Plague Us, and Just Might Save Us by Ruth Kassinger — We often look for big solutions, but the reality is that the smallest things often offer hope. This globetrotting book showcases the “algae innovators” (the phrase of the month) exploring what we can learn from these often-ignored plants.

Human-Wildlife Interactions: Turning Conflict Into Coexistence edited by Beatrice Frank, Jenny A. Glikman and Silvio Marchini — A massive academic book with contributors from around the world of conservation offering case studies on improving how people can live better with their animal neighbors.

Conservation Politics: The Last Anti-colonial Battle by David Johns — The author argues that conservation often fails because humans continue to impose their colonial mindset on the natural world. As he writes in his introduction, “Conservation is essentially an anti-colonial struggle with one important difference — non-human species are ill-equipped to effectively resist and overcome the human onslaught, amplified as it is by technology and social organization.” Challenging stuff.

Nature, Wild Spaces and Public Land:

Underland: A Deep Time Journey by Robert Macfarlane — A rather magical look at the world beneath our feet, and what that world means to humanity, from the award-winning author of The Lost Words and The Death of Grass. This contains the most beautiful writing of the month, and some of the most thought-provoking.

Arches Enemy by Scott Graham — Sometimes you need to get away from the real world in order to understand it better. This latest volume in Graham’s National Parks Mystery series includes, as you’d expect, fictional murder most foul, but it also addresses the history and environmental importance of the American West. (Check out our interview with Graham about his previous book, Yosemite Fall.)

Up in Arms: How the Bundy Family Hijacked Public Lands, Outfoxed the Federal Government, and Ignited America’s Patriot Militia Movement by John Temple — If you want to understand the extremist militia groups popping up around the country lately, you need to start with Nevada’s notorious Bundy clan. Temple shines a light on the people as well as the religious, political and economic factors that gave rise to this dangerous movement.

That’s our list for this month, but there’s a lot more to add to your reading lists. For dozens of additional recent eco-books, check out the “Revelator Reads” archive.

Question of the Century: Do We Have a Right to a Livable Climate?

The Youth v. Gov lawsuit moves forward this week, and it could help determine if U.S. citizens have a constitutional right to a safe environment.

The climate is changing, the changes are human-caused, and most of them will be detrimental to people and ecosystems. But while public sentiment and plausible policy measures on these threats have been maturing in recent years, the law has not kept up.

Today climate change as a legal matter remains blurry and disconnected from the principles our system of government aspires to follow. The question remains unanswered: Do we — including future generations — have a legal right to a climate in which we can pursue our rights to life, liberty, property and happiness?

This is the question that a case called Juliana, et al. v. United States has thrown like a crowbar into the American legal system. If strong enough leverage is applied by the case and any resulting ruling, the whole edifice of environmental law and its position in constitutional law will undergo a deep shift.

Juliana — better known as Youth v. Gov — was filed in 2015 in the U.S. District Court in Eugene, Oregon, on behalf of 21 young plaintiffs and climate scientist James Hansen, serving in this case as a guardian for future generations. Our Children’s Trust is the Eugene-based nonprofit sponsoring the case. Since it was filed, the defendant (the U.S. government) has made five appeals to higher courts — three to the Ninth Circuit Court of Appeals and two to the U.S. Supreme Court — to throw the case out on various procedural and summary motions. Currently its third appeal to the Ninth Circuit hangs in the balance, with oral argument before a three-judge panel set for June 4 in Portland.

The plaintiffs have astonished legal experts by persisting through these attempts to prevent the case from coming to trial under District Court Judge Ann Aiken.

“We’re confident we’re right,” says Andrea Rodgers, an Our Children’s Trust staff attorney. “Our hope is that the Ninth Circuit will issue a very narrow decision that will bring us back to trial as soon as humanly possible.”

Aiken has already stated in a November 2016 ruling related to this case that in her “reasoned judgment…a climate system capable of sustaining human life is fundamental to a free and ordered society” — but she also dismissed one of plaintiffs’ claims, that the Ninth Amendment assures just such a right even though it is unenumerated in the Constitution, unlike the guarantees of due process and equal protection made explicit in the Fifth and 14th Amendments.

Climate as Public Trust — Innovative Concept or Wild Speculation?

This has not stopped the plaintiffs, however, because they have also made arguments under those amendments, based mainly on the public trust doctrine. This is the principle that certain resources — those necessary to everyone, such as air and water — must be protected and managed so as to remain available to future generations. It is considered a property right.

Does that apply to the climate? That’s an argument made over the past two decades by Mary Christina Wood, director of the Oregon School of Law’s Environmental and Natural Resources Law Center, who asserts that the public trust doctrine applies to the climate system, and particularly to the atmosphere. “We would be fools to not recognize such law as the supreme law of the land, or ever to doubt for a moment that the jurisdiction over our very survival falls first to the air, the waters, the food sources, and the climate system,” Wood said last year in a keynote address to the University of Colorado Boulder Law School.

Public trust reasoning has been used at least since the sixth-century Roman emperor Justinian declared that “the air, running water, the sea, and consequently the shores of the sea” belong to everyone. English law interpreted this very narrowly to mean that the public should have access to paths and beaches leading to public waters in order to enjoy benefits like fishing, bathing, and boating.

Although Wood and other experts say that the public trust can also apply more broadly to climate, conservative legal scholars, perhaps obviously, disagree. James Huffman, a professor at Lewis & Clark Law School and an affiliate of the conservative Heritage Foundation, says he would like to see American law stick to the “paths and beaches” interpretation.

“It was a very narrow doctrine…and that was the extent of the theory as a legal matter,” Huffman says. “There are no cases that get it away from water.”

But the Juliana plaintiffs have shown that the federal government considers itself a trustee over several other kinds of natural resources, including forests and wildlife. A win by the Juliana plaintiffs would achieve what American University legal scholar David B. Hunter called for in 1988 — “to switch the debate in public trust cases from a discussion of the doctrine’s historical roots to a discussion of the ecological values that should be protected in the public interest.”

Isn’t It Obvious?

To a non-lawyer, a right to a livable climate and an uncontaminated environment may seem blatantly obvious. They surely are so fundamental that they precede the rights guaranteed by the Constitution, because without them, life, liberty and the pursuit of property and happiness are impossible, or at least severely constrained. That is, they are natural and inalienable rights, endowed by a creator or at least existing in such a pervasive way that no political agreement or government should be able to remove them. The Declaration of Independence and the Constitution recognize both the naturalness and inalienability of fundamental rights, because the framers valued these concepts and intended them to be part of the new American law.

A 2017 Youth v Gov rally, photo by Christian O’Rourke (CC BY 2.0)

But it’s not always that obvious from a legal standpoint. Bizarrely, the authority for regulating pollution relies on the Constitution’s Commerce Clause, based on the idea that natural resources are commodities that can be commercially exploited.

Along those lines the federal government has tried to make Juliana about pollution, citing Guertin v. Michigan, an appeal in the Flint water contamination case, in its recent appeal brief, which stated that the “Constitution does not guarantee a right to live in a contaminant-free, healthy environment.” Notably, in a case Guertin relied on, the government minimized a statement that Juliana represents “an arguable exception” in the debate.

But Juliana is not following previous environmental arguments.

“We are not advocating for a right to be free of pollution,” says Rodgers. Rather they’re advocating for the government to stop harming children by continuing policies that alter the climate. For example, the government has known since 1965 that burning fossil fuels changes the climate by releasing too much carbon dioxide into the atmosphere, and has ignored the advice of its own experts in favor of granting leases for fossil fuel extraction on public lands.

Staff attorney Andrew Welle adds that the right to a livable climate is entirely in line with already recognized rights to “life, property, personal security, and family autonomy,” as well as the privacy right inherent in autonomy. “Madison and other founders based [the Constitution] on naturalist philosophy and concern for intergenerational equity,” he says, noting that the latter requires equal protection under the 14th Amendment.

Intrusive Courts?

Huffman, the conservative legal expert, believes that if Juliana prevails it will result in the judiciary deciding on policy rather than the legislature and will create “a separation of powers problem, a democracy problem and a rule of law problem.” In his view courts should not prescribe specific steps to the executive branch.

Supreme Court — Mark Fisher (CC BY-SA 2.0)

Juliana, however, does not propose imposing detailed policy actions on the executive branch, and according to Welle there is precedent for the type of remedy the case seeks in many complex cases and bankruptcy proceedings.

“When a court finds a constitutional violation, it doesn’t say this is exactly what you have to do to correct the problem.” Rather, he says, “The court says, ‘You need to come up with a plan of your own devising and bring it back to the court to correct the problem,’ so specific policies are left to other branches.”

Juliana wants the courts to recognize a right to a livable climate based on the same reasoning that led to school integration, reproductive choice and gay marriage — and to get the government to stop doing things that make climate change worse. It’s these actions that foreclose the young plaintiffs’ ability to lead the lives our founding documents promise.

The Right Tool for the Right Job

The law is slower to adapt to changing conditions than the other two branches of government, and looking to the court to impel progress on climate change seems quixotic — except that the legislative and executive branches have failed to halt or mitigate the climate crisis for nearly half a century, and time is of the essence. Admittedly the tools plaintiffs are using in their monumental attempt to refurbish our national values and policies in time to apply the brakes to climate change — natural and inalienable rights; explicit rights to life, liberty, happiness, property, education, privacy; equal protection under the law; and the public trust doctrine — may not be up to the task.

It’s not clear yet whether Juliana will be allowed to come to trial and the plaintiffs’ massive trove of factual material and expert opinion be entered into the public record. But if it is, Aiken has already signaled that she intends to modernize environmental jurisprudence, writing in her November 2016 order, “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”

Any trial court judgment will certainly be appealed by the loser. Few observers expect the higher courts — especially the Supreme Court — to sympathize with the plaintiffs’ approach. Securing that sympathy will occur only if the plaintiffs can offer the justices the legal equivalent of stepping stones they can use to cross the stream of conflict and reach the other side in a way that doesn’t violate their reading of the Constitution, settled law and their political leanings.

It’s a huge gamble, but the stakes are literally life and death for both people alive today and their descendants. Will the courts value tradition over dire present danger? Huffman believes they should. He would rather die with his privacy rights intact, he says, than accept what he sees as Juliana’s goal of government force crushing individual freedom and privacy.

But as Juliana’s complaint states: “Without a stable climate system, both liberty and justice are in peril…. Fundamental to our scheme of ordered liberty, therefore, is the implied right to a stable climate system and an atmosphere and oceans that are free from dangerous levels of anthropogenic CO₂. Plaintiffs hold these inherent, inalienable, natural, and fundamental rights.”

In fact, the climate crisis could be viewed as a right-to-life problem. Because without a climate capable of sustaining human life, the public’s right to life at all is destroyed.