A look at RESTORE Act implementation

What would you do if you had about a billion dollars for ecological restoration?

That's exactly what the Gulf Coast Ecosystem Restoration Council (or, Council) is trying to figure out. That's no easy task given that the Council is a powerhouse, high-level government entity composed of the five Gulf Coast governors and six executive branch Cabinet members (think secretaries of Agriculture, Interior, Homeland Security, Commerce, EPA administrator, etc.)The Council came into being when President Obama signed the RESTORE Act last year. That Act put 80% of the Clean Water Act fines BP and Transocean are going to pay for the 2010 Deepwater Horizon spill into the hands of the Council. It's the largest pot of money for restoration in the US ever.

Question is, how do you even go about spending that much money in a time when any sort of surplus in government hands seems like the work of a divine hand, and so usually gets cannibalized in the ritual sacrifices that follow? [Update: the sequester is already taking a 5% toll on RESTORE Act funds] Well, this Council has a comprehensive plan. More accurately, as of late last week the Council has put out their initial comprehensive plan that describes the principles for how it will distribute money to various Gulf Coast restoration projects and programs. I had the chance to read it; here are my initial reactions:

1. "The decisions made pursuant to the Plan will be based on the best available science, and this Plan will evolve over time to incorporate new science, information, and changing conditions. The Council will coordinate with the scientific community to improve decision-making." (5)It's a living, breathing document. It's meant to change over time, as funding levels and priorities change, but also with new science. Whether scientists can tell them what they want or need to hear, is of course another question.

2. No one actually knows how much money there is, since so much of it is tied to pending litigation. The number could go up past 10 billion when BP pays up.

3. The plan doesn't actually spell out how the Council will fund anything, nor what it would most like to fund. A funding strategy and priorities list come later.

4. "Storm risk, land loss, depletion of natural resources, compromised water quality and quantity, and sea-level rise are imperiling coastal communities’ natural defenses and ability to respond to natural and man-made disruptions." (4) It's clear that the Council sees ecosystem health as fundamental to community health, though no necessarily vice versa, and that this means a weaker ability to adapt to future climate and other disasters.

5. Scientists do seem to have gotten across the point that restoring species alone, on postage-stamp size sites is not the best approach to restoration. "The Council recognizes that upland, estuarine, and marine habitats are intrinsically connected, and will promote ecosystem-based and landscape-scale restoration without regard to geographic location within the Gulf Coast region." The planners apparently see themselves as immune to geographic bias and politics, and there's some good landscape ecology here.

6. It only comes up once, but it's unclear what the role of the private sector is here. However, much ado is made about coordinating with other efforts, in general: "The Council will encourage partnerships and welcome additional public and private financial and technical support to maximize outcomes and impacts. Such partnerships will add value through integration of public and private sector skills, knowledge, and expertise" (7) There are a growing number of voluntary restoration projects in the works, not to mention talk of linking up with California's cap and trade scheme for wetland blue carbon credits, and how to coordinate these market sector activities with a federal plan will be worth watching.

7. You don't spend a billion dollars and not have anything to show for it. "The Council recognizes the importance of measuring outcomes and impacts in order to achieve tangible results and ensure that funds are invested in a meaningful way." (7) There's an opening here for ecosystem services accounting, but we'll have to wait and see.

8. The money quote from the whole thing is the Council's definition of ecosystem restoration. That's kinda what they're about anyway:

"All activities, projects, methods, and procedures appropriate to enhance the health and resilience of the Gulf Coast ecosystem, as measured in terms of the physical, biological, or chemical properties of the ecosystem, or the services it provides, and to strengthen its ability to support the diverse economies, communities, and cultures of the region. It includes activity that initiates or accelerates the recovery of an ecosystem with respect to its health, integrity, and sustainability. It also includes protecting and conserving ecosystems so they can continue to reduce impacts from tropical storms and other disasters, support robust economies, and assist in mitigating and adapting to the impacts of climate change (per Executive Order 13554)."

There's a lot going on here! What is restoration? Well, it's not just bulldozers and backhoes, it's methods and procedures. In other words, it's science and technical expertise just as much as it is new wetlands. Watch for this to become controversial, with conservationists claiming that not enough money is being spent on the ground in actual projects. What's the goal? Health, resilience, and mitigation of climate impacts. It's not clear to me that there isn't potentially a huge tradeoff between the ecosystem health and ability to mitigate climate impacts, but we'll see. How do you get there? You initiate or accelerate recover, or you protect and conserve. And finally, how do you measure it all? Straight out of the CWA, it's physical, biological, or chemical properties. Or, ecosystem services.

9. The last point is, again, the Council won't be just drawing on existing marine and wetland science, and they won't just be incorporating the best available science as it hits the presses, they're producing it. The sense is that there's a lot yet to figure out yet in the planning, technical assistance, and implementation phases of restoration, and that the Council is more than ready to dish out money to "evaluation and establishment of monitoring requirements and methods to report outcomes and impacts; and measurement, evaluation, and reporting of outcomes and impacts of restoration activities." (15) The question will be, what kind of science is the Council interested in funding?

Forever forever? What the heck does permanent mitigation mean?

In a recent op-ed for USA Today, mitigation banker Wayne Walker argues for establishing prairie chicken conservation banks, as a way to prevent the looming "train wreck" between environmentalist and oil/gas industry interests. It's a well-written piece that tries to spell out in basic terms, what mitigation is all about (EcosystemMarketplace renamed it, "How to explain mitigation to your grandmother"). Sometimes, though, it's deceptively simple. A big part of Walker's case is that offsets, like diamonds, are forever. He points to wetland and stream mitigation: "The logic of permanent easements is straightforward: Draining a wetland to build something is permanent -- not temporary -- and therefore the mitigation should also be permanent. The same principle holds true for the chicken. Impacts to it and its habitat are both permanent – the offset should be as well." Problem is, there's a clear difference between a permanent easement and a permanent offset, a difference Walker doesn't sort out. An easement is no guarantee of ecological function. Sure, the Corps will require an easement, but are they going to come back to the site in 50 years and check in to see what's up? To assess whether the wetland, stream, or prairie habitat is in a condition or performs such that it will account for the original impact the site offset? Maybe, but even if the Corps/USFWS did come around, would they require the bank to do anything about it? Should we even care? If the wetlands your local Wal-Mart paved over today are going to dry up or sink into the sea anyway in the next 20 years because of climate change, does it matter that the compensatory mitigation site Wal-Mart buys credits from function in the same way the wetlands currently do? I've walked through similar issues here and here. If, as Walker notes, the goal for all sides is "certainty," these are key questions if mitigation banking is to gain a sense of (ecological) legitimacy in an era of rapidly changing climates.

New climate adaptation lawsuit in Louisiana

A flood protection agency in Southeast Louisiana is suing oil and gas companies including BP and Exxon Mobil for damages to wetlands caused by pipeline canals, and their case is making it above the fold of the NYT. Southeast Louisiana Flood Protection Authority-East claims that the canals have altered hydrology in the area in such a way that has caused hurricane damage to increase and that, over time, will cause coastal lands to "slip into the Gulf of Mexico by the end of this century, if not sooner." Though they don't state it as such (itself interesting), the object in question in this case is ecosystem services: "BP and Exxon Mobil, you've destroyed the flood mitigation service these wetlands are supposed to provide to us, and we're going to hold you accountable for our loss" As cities and states attempt to preserve, design, and restore dunes, marshes, reefs, wetlands, etc. in the aftermath of Hurricane Sandy, SLFPAE's case will tell us more about the extent to which not just these habitats, but the climate-buffering services they provide will be treated by the courts (see Keith Hirokawa's work here and here for excellent first answers).

At first glance, a water agency in SE LA doesn't seem like the sort of entity to be bringing suit against some of the world's most powerful corporations. But they're pulling absolutely. no. punches. The gem of the case is here - to them, the oil/gas pipelines constitute a:

“mercilessly efficient, continuously expanding system of ecological destruction”

BOOM. So what are they asking for? 

"many billions of dollars. Many, many billions of dollars.”

Um...It's hard not to think of a certain late 90s comedy here, making it difficult to take the agency's case seriously. From the starting gates, the flood protection agency is equivocating on the role of the federal government, namely the Army Corps of Engineers, and why that entity shouldn't be held liable as well for its part in reworking the bayou's hydrology.

At any rate, it seems the lawsuit's hooks are not in the Clean Water Act per se, but in common law: negligence, nuisance, and some archaic LA code dating back to French rule called "Servitude of Drain" requiring downstream landowners to provide means for conveying water off adjacent upstream properties. It's not spelled out for us how SLFPAE thinks it applies to this case, but I suppose the argument is that BP and Exxon Mobil have altered the area's hydrology in a way that downstream areas too effectively drain, indeed conveying stormwaters onto higher ground than before.

Bringing it back: we can probably think of this as perhaps the US's second major climate adaptation lawsuit - NYT explicitly makes the link to the first: Kivalina, the Alaskan community that sued Exxon Mobil for the effects of climate-caused sea level rise on their village. The court there said that Kivalina's case was more a political question than a justiciable one. We'll see how SLFPAE's case pans out, but hopefully it'll regain some ground, as common law applications to the environment become increasingly tenuous, from Kivalina to Wisconsin.

Thesis

I've been working for the past couple of years at the University of Kentucky on my master's thesis. Building from a bigger NSF-funded project on stream mitigation banking, my research has argued that market planning and design for wetland and stream ecosystem services in Oregon has not been as easy a task as some pundits might think it, nor has it as of yet been as devastating as others might imagine it. The thesis is available here:

http://uknowledge.uky.edu/geography_etds/9/

I'll be moving to the University of Wisconsin-Madison to carry on with the Ph.D. I look forward to keep exploring and communicating how market environmental law and policy is (not) equipped to account for climate change and its effects on ecosystem services.

Optimal natures

Recently, the Natural Capital Project released its new tool for watershed-based ecosystem services decision-making, the Resource Investment Optimization System, or RIOS (spanish for rivers). It builds on InVEST, NCP's tool for mapping and valuing all sorts of services. Where InVEST could tell you for instance where to invest in a watershed to achieve the best water quality gains (efficiency), RIOS is geared to help you decide between different sets of investment (optimization).

RIOS joins a fast-growing cadre of other ecosystem services decision-making software tools. A short list includes:

Social Values for Ecosystem Services (SOLVES) - the USGS's tool of choice
Integrated Water Resources planning suite  - led by the Army Corps of Engineers
Simple and Effective Resource for Valuing Ecosystem Services (SERVES) - from Earth Economics
i-Tree - USFS built this one
ARtificial Intelligence for Ecosystem Services (ARIES)

These models literally instantiate ecosystem services as a framework by providing the means for framing services - ES is a framework for understanding tradeoffs in managing nature and here are the algorithms for modeling them. One of the key points the tools have in common is that they are spatially-explicit; what might distinguish them is whether they aim to inform either investment or policy decisions. Or, since ecosystem service policy tends toward treating nature as always already an investment (or lack thereof), the distinction is probably: what kind of investment (public or private)?

These tools parallel a number of data analytics firms working with so-called Big Data on the environment. Many, like Cloudera and Ayasdi work with oil and gas companies to visualize optimize the use of their drilling equipment, in the name of preventing future environmental catastrophes. Others, like Remsoft's suite of tools aim to improve forestry practices by incorporating extensive data on tree health, location, etc. - Google and Microsoft are working on similar software for "seeing the trees and the forest."

In short, the stated goal of these models is to "optimize" environmental management, which, for many of them, also means optimizing business practice. Is there a difference between optimal and efficient? For some, maybe not. But Remsoft's tools, they claim, allow you to "understand and manage the supply-demand balance, identify current and future supply chain bottlenecks, manage production and delivery capacity, forecast costs and revenues, and generate plans that stay within budget." Clearly something more than the sense of efficiency as input/output is going on here. Indeed, optimization, in the language of mathematics and computer programming, means to choose the best from among several alternatives given a particular criteria. Yes, the criterion for Remsoft might be $, but that may or may not be the case for USFS's community forestry tool, i-Tree.

Where does all this talk of optimization come from? That's hard to say, and 600 pg. tomes have been written about it. But there is a curious perpendicular conversation happening in the weird realm of biology, computer programming, and artificial intelligence themselves meet: where NCP, Remsoft, and others want to optimize nature, these researchers think nature optimizes. They "use and abuse" evolutionary concepts (note: optimization is not necessarily about selection pressure) as metaphor for informing tech design, their goals ranging from the everyday to the lethal. Researchers have found that ants respond to disaster and disruption - to their environment - in ways that may inform optimal transmission of information over internet protocols. The US military has enrolled apiologists to use bee swarms as an analogue for drone maneuvering. The goal, of course, being to optimize surveillance and kill rates. What brings together the "optimize nature" modelers and the "nature optimizes" researchers and designers is the idea that the environment serves as a model for our treatment of it.

This is not to get us lost in the thickets of environmental philosophy or social theory. The question is: on the ground, what is lost and gained by thinking in terms of optimizing ecosystem services? Who stands to win and lose? These models are meant to inform land use decisions, and in doing so, they help to bring about the optimized world they only purport to represent. If you model it, they will come. In this performance, the way the models are programmed matters. And what differences are there between the flavor of optimization led by the conservationists using NCP and the timber managers using Remsoft's Spatial Optimizer? One has to inform policy, the other business - can optimization serve as an adequate guiding concept for both?

Militant climate particularism?

Militant climate particularism: it's a mouthful, but it's an idea to follow-up on recent posts about the tensions between local and global problems and solutions when it comes to restoring ecosystem services in the face of climate change.

Flood mitigation is an ecosystem service that this driver who abandoned their Ferrari during some recent severe flooding in Toronto, ON, Canada sorely could have used. Poor guy.

Don't feel to bad for 'em. In an editorial, the National Post argues for bailing out that driver and all the rich dudes who in the future may face that most dreaded decision to ditch their $200k PCV. Why spend money on climate mitigation - wind turbines, solar panels, and carbon sequestration - the newspaper asks, when what these floods and those recently in Alberta tell us is that we need to adapt to changing weather patterns.

Ignore the gross misunderstanding of climate science here (i.e. their claim that there is no link between extreme weather and climate change and that such extreme weather events and the problems they cause are entirely predictable), and even set aside the fact that this is the worst of "climate resignation" - giving up on the goal of preventing high concentrations of GHGs. Whistle past the part about the limited growth in renewables. Just about the only thing the editorial might have right is that carbon sequestration and offsetting are rabbit holes not worth falling into.

But what the National Post is calling for is not any flavor of "climate protectionism" either. Yea, they'd rather keep money in the province, but they're proposing raising tariffs on goods coming in from countries without carbon markets, because they're arguing against setting up something like a carbon market to being with. They're not suggesting taxing imported turbines and panels - the NP would rather have the province abandon new renewable energy projects all together. The argument here isn't even "climate austerity", in which taking action on climate change is believed to be the fix for shoring up dwindling coffers.

So what's going on here with the newspaper's utter rejection of climate as anything but a very local problem? David Harvey uses the term "militant particularism" to describe social movements that are based on particular struggles in particular times and places. He worries that although such struggles can produce intense solidarities and achieve immediately positive and perhaps necessary results, they often aren't informed by - and in turn contribute to - broader movements and approaches. These particular struggles may tend toward single issues over a short time frame, employing responsive tactics rather than embracing a long term strategy.

That's exactly what's going on with the Post's editorial: let's fix the problems of climate - which amount only to extreme weather - here and now, and call it a day. Let the Pacific Islanders eat carbonated saltwater.

Now, the National Post is a conservative rag, and what their approach would hardly fall within the realm of what would be called socially progressive to begin with. But as the drive towards climate resilience and adaptation grows stronger, we may see a retreat from the left into a militant climate particularism, where all that matters is saving in particular the city (After all, with all the doom and gloom that surrounds impending climate change as an urban phenomenon, it's easy to think: we have to do everything we can, here and now!). The idea that cities - "smart cities" especially - are at the heart of responding to a changing climate - and may be best suited to addressing ecosystem service provision - is perhaps the germ of this. Maybe. But even the influential US Mayors' Climate Protection Agreement is primarily about reducing carbon emissions. The question is, to what extent can climate planning qua city design overcome that most perennial problem of urban planning: the idea that the city is a containerized unit apart from the rest of the world.

At any rate, I can't imagine that a Toronto-only strategy is something the city will ultimately benefit from, at least with this guy in charge.

Restoring climatized ecosystem services for the market: Part 2

In my earlier post I asked whether and how regulators might respond to the effects of climate change by changing how they ask industry to do environmental restoration as compensation. This week's events provide a good opportunity to follow-up briefly:

1. Obama's climate speech. Not only was this the biggest occasion upon which he's said anything about his plans for mitigating climate change, he also laid out a strategy for responding to the effects. The point? Adaptation is finally on the table in a big way at the federal level.

2. The SCOTUS ruling on Koontz. You can find good analyses here, there, and over yonder. In short, the case was about a landowner who wanted to turn some wetlands into a shopping mall (sound familiar?), but the local authorities wanted him to dump some cash into area conservation efforts as a condition of him paving those wetlands over. The court was unclear on the merits of this specific case, but ruled that asking for money can constitute an unconstitutional taking of property. At any rate, the points to keep in mind here are: 1. the impact on existing wetland and stream compensation practice is uncertain; time will tell; 2. As Kagan argued in her dissent - and which others have duly noted - part of this uncertainty means that that local regulators will be hesitant to condition developers' permits for fear of litigation. Given that most interest in adapting to "climatized" ecosystem services in the US so far has come from local level action, what we might see then is local regulators less willing/able to ask developers to do forms of restoration or compensation that are more than they would otherwise get away with asking for. Concretely: if Local Water Management District X were to say to Developer Y that climate change could mean Y's postage-stamp wetland restoration will fail and so it should pay into an area-wide restoration fund, does it have a takings claim on the basis that such predictions about the effects of future climate change on one particular parcel are uncertain and therefore excessive? Here again we raise the question of how science can and will interface with law.

So, to put this week's two big environmental law new stories side by side, let's ask: if the feds are getting serious about climate planning, to what extent can they see and account for what so many claim is at the core of a changing climate (and ecosystem services) - localized hydrological impacts?