Green Homes and the Changing Demands for Sustainable Real Estate

 Photo: Jeremy Levine

Photo: Jeremy Levine

With Hurricanes Harvey and Irma dominating our thoughts these last few weeks, national news headlines are paying more attention (see here or here for examples) to the resilience of our built infrastructure.  That's a step in the right direction, of course, though a priority on environmental sustainability and resilience needs to be maintained (especially suring times of relative environmental calm) in order to foster meaningful long-term policy changes. 

It's a welcome sign, then, that the real estate market itself is showing signs of increasing interest in green homes.  Greg Geilman, a realtor who blogs about shifting trends in the real estate market, provides the guest post below.  His points hit close to home.  When I was in the market for a home last year, I found myself attracted to homes that included green features such as solar panels, high-efficiency lighting, or a pellet stove.  Now that I'm settled in, I have been debating the costs and benefits of installing solar panels. According to Greg, I'm not alone in having these thoughts, and the collective interest in green homes is having a measurable impact on the real estate market.  Without further ado:

 

The New Generation of Home Buyers Wants to go Green

Guest Post by Greg Geilman

There have always been trends in home buying, and the latest trend is buyers that are
demanding green homes. These buyers are focused on ways to have a smaller carbon
footprint and a lower impact on the planet. Because of their desire to have green homes,
the construction and real estate market are also being required to change. These are
markets that are often slow to change and do things differently, but they are finding that
they really do not have a choice moving forward. If sellers and builders want to attract
buyers, they have to go green as much as possible.

How Do Green Home Buyers Affect the Construction Market?

The construction market is affected by green home buyers in two different ways. The first
is simple. Builders need to create houses that will sell, and if more buyers want green
homes
more builders will create them. These homes can include features such as energy
efficient windows and appliances, along with certifications for the type of lumber used
and other factors. With so many options, builders will have to pick and choose what
works for them and for their buyers.

The second way is more subtle. Builders and the overall construction market can be
affected financially, because building green homes has a different pricing structure than
building more standard homes. But whether buyers will pay more for these homes or not
affects the markup that builders receive. This can change the construction market, for
both good and bad. It forces builders to make a choice about what level of green homes
they are willing to build, as well.

What Does the Green Home Buying Movement Mean for Current Homeowners?

New construction homes that are being created by builders are not the only aspect of the
market to consider when it comes to buyers wanting green homes. It also affects the real
estate market, because sellers must consider the issue when they put their homes on the
market. Their biggest question is whether they want to make changes to their home to
make it more green before they try to sell. In most instances, whether they do this or not
will be affected by the cost of the changes that would need to be made.

Overall, anything that is energy efficient can be a good choice for a seller to consider.
Appliances, windows and doors, water heaters, and other items that reduce the amount of
power the home uses are popular with sellers who want to make changes. Buyers may
also like LED light bulbs, an automated thermostat, and apps that let them control
lighting, temperature, and other aspects of their home from other locations. Sellers will
have to decide which, if any, of these options are worth the expense in an effort to get
their home sold. The earlier these changes are made can make the difference, too. If a
homeowner makes an efficiency upgrade years in advance of selling, they reap the
rewards of saving energy over time, and making extra money on the price tag of the
home down the line.

Is This Trend Only for the Younger Generation?

The younger generation of home buyers helped kickstart this trend, but now other
generations are starting to come on board. Nearly all buyers use technology, and they are
interested in some of the ways their home can be automated, or ways they can have more
control over things like their power bill based on how much energy they consume. While
not as interested overall as younger buyers, older buyers are not shying away from green
homes, either.

One of the reasons these older buyers like green homes is because these kinds of homes
can be less expensive to operate and maintain. Once proper green systems are installed
there is little that needs to be done to maintain them over and above more standard
systems, so they can save a homeowner a lot of money over the long term. Older or
younger, buyers are starting to see the advantage to saving money and the planet at the
same time, and that is what green homes can provide them, both now and in the future –
and builders are taking notice.

Incremental environmental peacebuilding between the US and Cuba

 The Malecon in Havana.  Photo: Guillaume Baviere.

The Malecon in Havana.  Photo: Guillaume Baviere.

It's been a while since I wrote about Cuba's natural resources, and their importance in thawing US-Cuba tensions.  Two posts last year highlighted the need for more cooperation between the US and Cuba with respect to offshore resources, particularly oil and gas development.  I wrote this in May 2015:

An oil spill off the northwestern coast of Cuba would hit Florida within 6 to 8 days.  And yet, Cuba and the United States don't have a bilateral agreement in place to deal with that scenario.  The US and Mexico have a bilateral agreement that regulates oil and gas development in the Gulf of Mexico, establishing safety standards, emergency protocols, and inspection procedures.  A similar agreement is needed to protect the Florida straits.

Late last year there was some noise about opening offshore exploration, and further calls for cooperation.  That led to a "joint statement" between the US and Cuba in November, calling for more cooperation on environmental issues, including objectives such as:

  • protection of coastal and marine ecosystems
  • protection of biodiversity
  • climate change mitigation and adaptation
  • regulation of energy development and oil spill preparedness
  • academic exchange and information sharing

There's been little evidence of breakthrough progress on these points, but slow and steady advancements are to be expected given the many issues (environmental and otherwise) to be worked out for the first time.  In early July of this year US and Cuban officials met to discuss marine protection and biodiversity. The outcome of the talks was rather vague, and appeared not to focus on oil spill prevention and preparedness, a major area of need.  Still, the talks signal an intent to move forward with bilateral agreements and initiatives, a positive sign that environmental challenges remain high on the peacebuilding agenda.  

How those talks will move forward under a new Presidential administration remains to be seen, but at least one other objective from the joint statement - academic exchange - does appear to be moving forward.  Universities are increasingly in contact with one another, and US federal agencies are sponsoring high-level meetings of scientific and policy experts on environmental issues.  Some of these meetings may take place at or with the participation of my FIU colleagues, something that wasn't possible for us (or other Florida state university academics) until last year.  

Water Privatization vs Human Rights: Lessons from Flint

This blog post initially appeared on JURIST.  It can be accessed in its original form here.

 Flint River.  Photo: Sarah Razak.

Flint River.  Photo: Sarah Razak.

When I teach Water Resources Law to my students, I often start each semester by juxtaposing two competing conceptualizations: water as a private commodity vs. water as a human right.  The contrast demonstrates the diversity in approaches to water management, while foreshadowing the public-private tensions that permeate contemporary water law debates.  Some students are attracted by the promises of privatization, including capital investments to upgrade infrastructure and the efficiencies of allowing market forces to allocate water where it is most valued.  Other students push back, noting the fundamental human need for water as a justification for holding water resources in common, while citing the negative externalities that frustrate attempts to monetize water accurately. 

Both viewpoints are playing out in the wake of the Flint, Michigan water crisis.  Last month I wrote about the rhetoric following the crisis, noting that many critics were echoing the human right to water perspective.   One Michigan state representative even proposed a bill that would declare water to be a human right.  To many observers, the crisis was caused by water managers holding financial considerations above public health and environmental justice.  Indeed, Flint's decision to switch from water provided by the Detroit Water and Sewerage Department to water provided by the Karegnondi Water Authority was largely a financial one, as the move was projected to save the city $19 million over eight years.  When the Flint city council voted to return to Detroit water, the city’s emergency manager opposed the move on financial grounds.  To many, water cannot be managed with such financial tunnel-vision, and a human right to water might rebalance water managers’ priorities.

But in the last several weeks, another view has (re)emerged.  Some have called for further privatization of water resources.  To these critics, the Flint water crisis is a crisis of public governance, one that may have been avoided had a private utility been in charge.  A private utility would still have received government oversight, while avoiding the messy political battles necessary to receive infrastructural investments.  A private utility, furthermore, would not have enjoyed sovereign immunity, providing an incentive to avoid litigation arising from water contamination.

So, which view is the right view?  It is important to get this right, to extract some broader lessons learned instead of dismissing the Flint ordeal as flukey mismanagement.  On the contrary, water infrastructure is crumbling across the country.   The American Society of Civil Engineers gives our drinking water infrastructure a D+ grade, and despite capital investments not keeping pace with upgrade costs, Congress has been spending less and less on local infrastructure maintenance.  The upshot of all this is that more and more pressure will be placed on water managers to provide safe, clean drinking water despite all these challenges. 

Just this week, the long-running water troubles experienced by residents of St. Joseph, Louisiana made headlines.  Their water has iron levels thirty-two times higher than the US EPA’s recommendations.  State engineers blame the iron concentration on faulty infrastructure in need of repair.  The small town’s representatives, though, have done little to address the problem.   In places where human and financial resources are scarce it will be difficult to promote sound water management, whether public officials are managing water resources directly or overseeing private operators.  As long as infrastructure continues to deteriorate and little to no resources are allocated to address water problems, we can expect to see more cases like Flint, Michigan, and St.Joseph, Louisiana.

For critics on both sides of the privatization vs. human right spectrum the Flint water crisis is Exhibit A for the need to reform.  Unfortunately, water resources can be mismanaged in many different ways, whether privately or publicly held.  Water users in Flint paid a staggering $864 a year for water.  But a report by Food and Water Watch found that on average private utilities charge more for water than public utilities.  Complicating the matter further are the many water management frameworks that constitute a public-private enterprise.  Around the country there are examples of both public and private water providers working well, while others are struggling to meet the needs of their communities in safe, sustainable, and equitable ways. 

Regardless of which end of the spectrum you’re on, what should be clear is that water is a vital human resource, and to manage it well requires investment and expertise.  In the face of crumbling infrastructure and shrinking budgets, it will be tempting for water managers of any utility to short-change the system in favor of short-term payoffs.  Short-changing Flint’s water quality in favor of cost-saving measures was not a unique trade-off, but rather a circumstance public and private utilities will likely find themselves facing in the future.  If Flint provides one lesson learned, then, it’s that water regulators may want to reconsider the costs and benefits of short-term water management thinking.  The nation’s water infrastructure is in need of repair, and water resources are in need of responsible governance.  There may be more than one way to accomplish those objectives, but it will be hard to do so without significant investments.  

Flint water crisis evokes the 'human right to water' debate

 The Holloway Reservoir Dam, which supplied Flint, Michigan with water from 1955-1967 and 2013-2015.  Photo: Tony Faiola. 

The Holloway Reservoir Dam, which supplied Flint, Michigan with water from 1955-1967 and 2013-2015.  Photo: Tony Faiola. 

In the 1990s the 'Washington Consensus' became the conventional wisdom for managing water resources.  Based on the premise that privatizing water and selling it as a commodity would finance delivery services and infrastructure while allocating water more efficiently, many countries (from Bolivia to the United States) endorsed water privatization.  While some transitions were effective, many became high-profile disasters, in many cases pricing lower and middle class households out of the water market.  Being a good necessary for survival, this led to a backlash and global movement to reconceptualize water not as a commodity but as a human right.   In 2010 the United Nations General Assembly passed a resolution recognizing a human right to water.  122 countries voted in favor of the resolution; the United States was not one of them.

In many cases municipal water in the United States is supplied by regional government institutions or public-private partnerships.  As water allocation has historically been the purview of state law, a diversity of institutional arrangements have developed over the years, many of which work well.  Nonetheless, the Flint water crisis shows that the conceptual debate (with very real consequences) over water as a commodity or human right is alive and well.  Although Flint's water supply was never fully privatized nor guaranteed by human right, the crisis as it emerged showed the fundamental tensions government service providers must grapple with.

To be fair, it should be noted that water infrastructure is crumbling across the country.  Most of it was built in the twentieth century, and is now in dire need of repair or replacement.  The American Society of Civil Engineers gives our drinking water infrastructure a D+ grade, estimating that replacement costs for pipes alone would exceed $1 trillion.  Despite capital investments not keeping pace with upgrade costs, Congress has been spending less and less on local infrastructure maintenance.  As a result, state and local governments must pick up the tab, leading to skyrocketing water bills for consumers.  In Detroit water bills average nearly $150/month, and Flint's water rates are among the highest in the United States.  When Detroit shut off water connections to households that couldn't pay, the UN condemned the move as a violation of human rights.

Given these circumstances, it shouldn't be surprising that water policies have prioritized cost-cutting and short-term gains.  Flint's decision to switch from water provided by the Detroit Water and Sewerage Department to water provided by the Karegnondi Water Authority was a financial one, as the move was projected to save the city $19 million over eight years.  While that's a good chunk of change for a cash-strapped city like Flint, it's worth noting that even at the time of the decision, huge risks were apparent.  On the one hand, officials knew it would take three years to connect to the KWA.  On the other hand, officials also knew that an interim water supply was not guaranteed - the DWSD had a termination clause that would allow it to stop providing water to Flint after 12 months.  Sure enough, the clause was exercised, putting Flint on the clock to obtain an alternate water source.

There were a number of problems with the Flint River option, but it did have one major advantage: it was the cheapest option, saving the city $5 million over two years.   On the surface, though, the rhetoric echoed the responsibility of government to provide water to citizens.  Flint Mayor Dayne Walling said "water is an absolute vital service that most everyone takes for granted...It's a historic moment for the city of Flint to return to its roots and use our own river as our drinking water supply."  When the Flint city council voted to reconnect to the Detroit water system after water quality concerns emerged, however, the state's emergency manager cited costs as justification for opposing the move.  

The outrage over the handling of the crisis is predicated on a few different factors, including political affiliations, race, and class.  But weaving in and out of these debates is the tension between water being managed as a commodity and the fundamental dependency that human populations have on water resources.  Just like water privatization efforts in the 1990s and 2000s led to public fury and protests around the world, so the Flint water crisis flames are stoked by water management decisions repeatedly based on financial considerations.  President Obama offered his own critique, calling the crisis "a reminder of why you can’t shortchange basic services that we provide to our people and that we, together, provide as a government to make sure that the public health and safety is preserved."  In the wake of the disaster, one Michigan state representative declared water to be a human right, and proposed legislation that would make the same point: "Are there teeth behind this bill? Possibly not, but at least we're making a statement that everybody in Michigan has a right."

Given the state of the country's water infrastructure, Flint is unlikely to be a one-off disaster.  Local governments are in a tough spot, with few resources available to maintain crumbling infrastructure, and an obligation to provide basic services like water supply to their citizens. Flint can demonstrate to other municipalities around the country that setting water policies based on short-term financial considerations not only may not pay off in the long-run, it may also strike a nerve shared by many people who view water as one of the most basic and essential services a government provides for its people.  Understanding that sensitivity and cultural connection to water will be a prerequisite for navigating the tough water management decisions that lie ahead.

Will frackers be held liable for inducing earthquakes in Oklahoma?

 A flare releases pressure from a natural gas fracking well in Oklahoma.  Photo: Joshua Pribanic.

A flare releases pressure from a natural gas fracking well in Oklahoma.  Photo: Joshua Pribanic.

Five years ago, before hydraulic fracturing became a common method to extract natural gas, Oklahoma recorded only three magnitude three earthquakes.  In 2015, Oklahoma recorded 907.  2016 is off to another record-breaking start: last week two earthquakes (magnitude 4.7 and 4.8) struck northern Oklahoma, where fracking dominates.  It's hard to predict if a larger earthquake will rock the state, but these recent quakes suggest that may be likely:

“I do think there’s a really strong chance that Oklahoma will receive some strong shaking,” said Daniel McNamara, a research geophysicist at the National Earthquake Information Center in Colorado, who has followed the state’s quakes.  Referring to the shocks that occurred Wednesday night, he added, “I’m surprised it didn’t rupture into a larger event.”

Most experts believe the drastic increase in earthquake incidence is the result of forcing fracking wastewater into the ground.  While that process is effective in disposing of fracking waste, it also disturbs fault lines.  In some cases, especially in Oklahoma, these disturbances become earthquakes.  

But while the science is clear to some in a broad "A is causing B" sense (fracking is causing earthquakes), the more specific causal connection between a particular fracking operator's activities causing damage to people or property is less clear.  It would be hard for a homeowner whose property has been damaged from an earthquake to present a strong scientific case that the earthquake was caused by a discrete defendant in order to assign liability and claim damages.   Some cases are already popping up, and in most of these property owners are suing a bundle of oil and gas companies in the hopes that they will be collectively responsible.  In regions where more than one company is injecting wastewater underground, that may be the strongest approach, but it dilutes the causal connection.

An added difficulty in these cases is the reality that, in most states, injecting water into the ground is illegal or negligent behavior.  In Oklahoma, neither the state legislature or the governor have taken any meaningful action to curb fracking activities.  Only the Oklahoma Corporation Commission has been assigned to propose restraints, and it has limited regulatory powers:

With no explicit authority to regulate seismic issues, the commission has persuaded producers to voluntarily follow a series of ever-stricter directives on waste disposal in earthquake zones. But while those orders appear to have curtailed earthquakes in some areas, the overall number has continued to soar.  Last month, a financially troubled producer in the northern oil and gas fields struck by Wednesday’s quakes, SandRidge Energy Incorporated, broke industry ranks and refused the commission’s request to scale back its underground waste disposal.

Professor Blake Watson (Dayton) believes courts should impose strict liability on fracking producers on the grounds that groundwater injection is inherently dangerous - a finding that would eliminate the need to show that producers were negligent in their activities.  The downside is that courts aren't the ideal branch of government to sift through scientific studies emerging in real-time and impose liability after-the-fact.  Ideally a strong administrative agency would do so.  In many cases they have proved effective:

In recent years, other states with oil and gas exploration have also seen an unusual number of earthquakes. State authorities quickly suspected that the earthquakes were linked to disposal wells. In Youngstown, Ohio, in 2011, after dozens of smaller quakes culminated in a 4.0, a nearby disposal well was shut down, and the earthquakes stopped. Around the same time, in Arkansas, a series of earthquakes associated with four disposal wells in the Fayetteville Shale led to a ban on disposal wells near related faults. Earthquakes were also noted in Colorado, Kansas, and Texas. There, too, relevant disposal wells were shut down or the volume of fluid injected was reduced and the earthquakes abated.

Absent a strong regulatory agency, though, property owners may have no other recourse than to pursue compensation through litigation, however challenging causation arguments may prove to be.  If Oklahoma's agencies continue to meekly regulate fracking activities and wastewater injection, we'll soon find out how the courts address induced-earthquake liability.

COP 21: "Loss and Damage" provisions have become the sticking point

 Protesters at COP 21 target developed countries in demanding reform.  Photo: Ryan Stoa.

Protesters at COP 21 target developed countries in demanding reform.  Photo: Ryan Stoa.

Ever since the United Nations Framework Convention on Climate Change was created in 1992, there has been a division between rich industrialized countries and poorer industrializing countries.  The rich countries have typically been the strongest proponents of climate action, arguing that with all this new climate science it's everyone's responsibility to cut back on emissions.  In response the poor countries point out that rich countries got to reap the rewards of fossil-fuel driven industrial growth, and that growth is largely responsible for the GHGs trapped in the atmosphere. 

The COP 21 negotiations are showing that both groups have succeeded in making their point, to some extent.  That each country has shown up and pledged to reduce their emissions, including developing country giants like China, India, and Brazil, means the developed countries have succeeded in making emissions reductions a near obligation.  On the other hand, the developing countries have hinged the success of the Paris Agreement on the strength of the text's "loss and damages" provisions.  Essentially, in exchange for reducing emissions, developing countries want financial assistance from developed countries to help them cope with climate impacts. 

It's a reasonable request, and one the developed countries have essentially already agreed to in a broad sense, but it raises a number of thorny particulars that negotiators are having trouble resolving.  Resolving questions like Who has to pay, and how often?  and Who gets to receive, and for what purpose? are one challenge, but a potentially bigger hurdle will be the conceptualization of "loss and damage" provisions.  Developed countries are categorically against any language in the text suggesting they have legal liability for climate damages like loss of land, building damage, etc.  They are willing to make voluntary financial payments, but won't accept legal responsibility for climate impacts:

Industrialised countries acknowledge that they are obligated to provide climate finance, but with an eye on the changing global realities, would like developing countries "in a position to do so" to contribute to the money pot. This attempt to increase the donor base has been strongly contested by the developing countries.

The other contentious issue is who is eligible to receive the funds. All developing countries are eligible but increasingly there is talk of funding for "vulnerable" countries. There is however no clarity on what defines vulnerability. Many in the negotiations see this talk of vulnerable countries as a bid to divide up the developing countries bloc. The G-77 and China comprising a diverse developing countries have presented a resolutely unified front on the question of finance.

Ultimately the developing countries may realize that no country is going to accept the legal implications of a robust "loss and damages" provision.  Instead, they might end up angling for a strong financial commitment.  Rich countries, for their part, can make those commitments without implicating any legal obligations.  Instead of providing compensation for damages incurred from climate hazards like hurricanes, they can subsidize hazard insurance for countries in particularly vulnerable areas.  Many are saying the "loss and damage" provisions will come down to the wire.  Stay tuned.

Energy Firms Move Into Cuba

 Image: Jorge R. Pinon, 2012.

Image: Jorge R. Pinon, 2012.

Back in May I predicted that, with the warming of US-Cuba relations, energy companies would start lining up for a chance to explore Cuba's potentially lucrative offshore oil and gas reserves.  Firms have been showing interest, but perhaps not as enthusiastically as some (including myself) predicted.  French energy giant Total allegedly struck a deal with the Cuban government, but later denied the claims.  Since then energy firms from Angola and Australia have signed deals to explore and potentially exploit offshore oil reserves.  

So far these oil and gas deals have been limited, in part because Cuba has retained certain nationalization requirements for foreign companies.  It also appears that the absence of US energy firms, due to the ongoing embargo, removes some of the industry's biggest players from the market.  The embargo's conditions also limit the extent to which foreign firms can use American equipment and technologies, and this might significantly increase the risk of environmental damage.  

[Former EPA Administrator William Reilly] noted that Cuba's expertise lies with drilling in shallow waters. U.S. drilling equipment and technology is widely regarded as the best and safest in the world, he said, and American companies might highlight that expertise in a push for access to Cuba.  “The companies could well make the case — and I would help them make the case — that it would advance the safety of Florida and the environment and the Gulf if American companies ...were doing the drilling in Cuba,” Reilly said. “There ought to be a blanket exemption for anything relating to spill control.”

The "blanket exemption" refers to the requirement that US companies obtain a special license from the federal government to conduct oil spill clean-up activities in Cuban waters.  At present there are too few licenses to ensure that a spill would be effectively contained before hitting the coast of Florida.  According to one estimate, less than 5 percent of the equipment, vessels, and services used to clean up the Deepwater Horizon spill would be legally available to respond in Cuban waters.  Whether French, Angolan, or Australian energy firms are compliant with embargo terms or not, the US remains unprepared to unleash the full force of oil spill clean up capacities.  

It is unclear when these companies will actually start extracting oil and gas.  Cuba claims production could begin in 2016 with the lifting of the embargo.  US energy heavyweights are taking notice, and some included Cuba in their lobbying disclosure statements:

Shell Oil Company, the U.S.-based subsidiary of Royal Dutch Shell, reported spending almost $2.5 million from April through June lobbying the federal government on a laundry list of topics—including issues related to Cuba sanctions, disclosure reports show. Chevron U.S.A. Inc. reported shelling out almost $2.2 million to influence the federal government on issues including the “lifting of Cuba sanctions.” Meanwhile, Halliburton spent $100,000 plugging multiple matters, including “Cuba status,” the disclosures show.

In October a high-level meeting will take place in Havana in order to "work on establishing uniform environmental and safety policies for offshore drilling throughout the Gulf of Mexico and the Caribbean Sea."  While safety and the environment will be on the agenda, industry reps will surely be keen to discuss the lifting of the embargo in order to facilitate the involvement of US firms.  And while that may be a worthy topic, US representatives would do well to prioritize the easing of restrictions to licensing requirements that impede oil spill recovery efforts.  

Weed and Wildfire (and Insurance Law)

 Image: Texas Military Forces 

Image: Texas Military Forces 

The last two posts on this blog have covered wildfire policy and marijuana regulation, so it seems like a good time to address the convergence of those dynamics.  In the American West, which just happens to host an inordinate amount of high intensity wildfires and marijuana farms, the wildfire season is taking its toll on the marijuana industry.  Other industries are taking a beating as well, but the marijuana industry is particularly vulnerable.  First, because its clandestine history pushed marijuana farming into remote and mountainous locations, otherwise known as the wildland-urban interface, where people and property are most at risk of wildfire damage.  Almost a third of US housing units are located in the wildland-urban interface, but land use laws, zoning ordinances, and building codes can mitigate wildfire risk to some extent.  For the marijuana community, many of whom have long been operating in the shadows, those legal adaptation mechanisms haven't historically been available to reduce risk.

But now that marijuana cultivation is being legalized in many states, the farming community should be more comfortable working with firefighters and fire prevention programs.  That appears to be happening, according to Madeleine Thomas:

Some growers, like Tim McCormack, have been lucky. McCormack serves as CEO of Antoine Creek Farms, one of the largest licensed farms permitted by the state of Washington. The few thousand plants he tends comprise nearly 20,000 square feet of plant canopy. Flames from the Chelan Complex fire, one of the largest wildfires still burning across the state, were about five feet from his farm before firefighters were able to divert their course elsewhere. Had Antoine Creek Farms been caught in the Chelan Complex, McCormack estimates he would have lost several hundred thousand dollars [...] "the courageous firefighters actually did a back-burn on the back third of my property, and they saved us from a third fire."

But the legalizing marijuana industry still has a second hurdle to overcome: the reticence of financial institutions to participate in the market.  In the case of wildfires, farmers don't have access to crop insurance:

Compounding McCormack's worries, the issue of financing in the marijuana trade is a cumbersome one, as many farms and shops continue to find themselves spurned by pessimistic (sometimes moralistic) banks and insurance agencies.
"If I was growing wheat or if I was growing grapes, it wouldn't be that bad because I would file an insurance claim and they would send in an adjuster and they would evaluate what we had and make some appropriate claims based on the loss," McCormack says. "Well, the marijuana industry doesn't yet have crop insurance, so basically if we had burned down we would be out of business. That'd be it for us."

That's not entirely the banks' fault, as the federal government hasn't exactly embraced marijuana financing.  The Obama administration issued marijuana banking guidelines earlier this year, but reserved the right to penalize banks if they reported inaccurate information about marijuana businesses.  At this point the benefits of servicing the marijuana industry don't appear to outweigh the costs:

"There's tremendous risk and little reward," said Rodney K. Brown, president and chief executive of the California Bankers Assn. "The bottom line is it's still against federal law … and you're subject to both prosecution and loss of a bank's charter."

Complaints about the banking issue have so far focused on the security risks of marijuana businesses dealing in large quantities of cash, or the inefficiencies of a cash-only marketplace, but now we can add crop insurance and wildfire vulnerability to the list.

Wildfire and Causation: Climate Change or Disaster Policy?

 Firefighting in Utah.  Photo: US Army.

Firefighting in Utah.  Photo: US Army.

Wildfires are in the news again after portions of Idaho, Washington, and California were ravaged by high intensity fires this month.  Which means it's time for another reminder that climate change is to blame.  Here's The Guardian's Char Miller:

What [firefighters] have encountered on the firelines in the past few years is evidence that everything has changed as a result of global warming [...] Temperatures that spike above long-held norms, record-breaking low-humidity levels, multi-year droughts, tinder-dry vegetation and fierce winds are among the factors fueling these new, more massive infernos. The sooner that firefighting agencies, public officials, policymakers and citizens acknowledge the impact that climate change is having on the frequency, intensity, duration and behavior of fire, the sooner that they will begin to develop new responses to wildland fire in the US west."

Climate change is one of the factors.  But is it the most significant factor?  Perhaps more importantly, is it the factor that firefighters and land management agencies should be paying the most attention to?  Agencies and policymakers may not need to "develop new responses" if revisiting an old one is available instead.

Last year I wrote an article about disaster law in the US, in which I argued that the climate change debate is obscuring the fact that our current disaster laws - such as wildfire policy - aren't close to providing resilience to begin with (that article was published online this summer, see here).  While the focus today is on climate change, and how it exacerbates wildfire risk, there are other causal factors that wouldn't be as massively challenging to address.   First among those is a predilection for firefighting that, over the past hundred years or so, has been successful in putting out the small, low-intensity fires that were common in North America when the best defense was fire prevention or adaptation.  These small fires would clear vegetative growth and provide breathing room for forests.  After a century of firefighting, our forests are now choked with vegetation, providing the perfect conditions for the large, high-intensity fires we are seeing today.  Take a look at this chart showing trends in wildfires and acres burned:

 Chart produced from data provided by the National Inter-Agency Fire Center.

Chart produced from data provided by the National Inter-Agency Fire Center.

A wildfire policy of firefighting has been successful in reducing fire frequency, but has resulted in an increase in acres burned.  Putting out small fires only builds up the fuel needed to create the big ones that firefighters are helpless to stop.  Firefighting agencies may not be able to solve climate change, but they can adjust their strategic priorities to favor more fire prevention and proscribed burns (policies that have been around for a while) instead of relying on firefighting quite so heavily.  Climate change may make things worse no matter what, but a second look at our disaster laws might show that a basic change in approach might go a long way toward building resilience.  

 Wildfire in Yellowstone National Park.  Photo: National Park Service.

Wildfire in Yellowstone National Park.  Photo: National Park Service.

Haiti's Red Cross problem

 Photo: IFRC

Photo: IFRC

I'm in Haiti this week, splitting my time between Cap Haitien and Port au Prince.  Haiti has been in the news again lately, this time as a result of the NPR's investigation into the Red Cross' $500 million of disaster relief.  Much of the money has either not been spent, or was spent poorly or non-transparently:

NPR and ProPublica went in search of the nearly $500 million and found a string of poorly managed projects, questionable spending and dubious claims of success, according to a review of hundreds of pages of the charity's internal documents and emails, as well as interviews with a dozen current and former officials.
The Red Cross says it has provided homes to more than 130,000 people, but the number of permanent homes the charity has built is six.

Some of the allegations aren't as severe as they might seem.  Sub-contracting projects to third party organizations is decried as wasteful spending, but remains standard when managing large sums of development aid, for example.  Still, $500 million is a lot of money that should have been accounted for and closely monitored to ensure results were being produced.  In April I wrote a three part series looking at disaster law and displacement in Haiti.  I argued that most shortcomings were the result of three factors: 1) weak building codes and a lack of enforcement; 2) an archaic land tenure scheme; and 3) a multitude of NGOs operating outside the parameters of a guiding legal framework.  The Red Cross controversy is emblematic of all three factors, but especially 2 and 3.  

From the Red Cross' perspective, building homes in Haiti is a vastly more difficult undertaking than one would assume, largely because potential homeowners have a hard time proving ownership over land.  NGOs are hesitant to invest when the beneficiaries are ambiguous.  The NPR report too quickly dismissed land rights:

The original plan was to build 700 new homes with living rooms and bathrooms. The Red Cross says it ran into problems acquiring land rights.  Their internal memos, however, show there were other serious problems, including multiple staffing changes and long bureaucratic delays. And then there was a period of almost a year when the whole project appears to have sat dormant.

Anyone who has worked in international development knows how frustrating it can be to wait for approvals from higher-ups, but acquiring land rights, or at least obtaining documentation sufficient to verify title to property, is more challenging than it's being given credit for.

On the other hand, the absence of a framework capable of governing foreign organizations and their various projects in Haiti meant Haitians were at risk of being misled.  NPR touts the ability of one organization to overcome land tenure schemes by employing mostly Haitians, whereas the Red Cross struggled to build a Haitian-led team.  In other instances, Red Cross staff couldn't speak French or Creole.  And their financial history is vague at best, with most records kept private.  Even the Prime Minister couldn't obtain financial documentation to verify the Red Cross' claims.  A robust legal framework for managing NGOs and other international organizations as they conduct development projects is obtainable, and can provide safeguards such as language requirements or financial transparency laws.  

While not immediately apparent, governance and the rule of law play a large role in development.  One email from the Red Cross suggests they had more money than they knew what to do with:

"We still are holding $20 million of contingency," she writes in an email. "Any ideas on how to spend the rest of this? (Besides the wonderful helicopter idea?) Can we fund Conrad's hospital? Or more to [Partners in Health]? Any more shelter projects?"

My suggestion: invest in public administration and the Haitian justice system.

Disaster Law and Displacement in Nepal, Ctd

Fresh off its 7.8 magnitude earthquake on April 25, a 7.3 magnitude earthquake struck Nepal today about 80km to the east of the capital, Kathmandu.  The aftershock further exacerbates the displacement of populations who have been without meaningful shelter for weeks.

As detailed after the April 25 quake, building codes and construction standards have an enormous impact on the final death tolls.  In this case, it appears that many children were spared from the quake because the Nepalese government had wisely chosen to close what schools and colleges remained upright until May 14 in order to inspect their integrity.  While sustained school closures present short-term disruptions to youth development and education, the regulation in this case may have been worth the short-term costs.  

As if the April 25 quake wasn't enough, this is another reminder to rapidly developing countries in the region to get their building codes, construction standards, and disaster management plans in order.  

Disaster Law and Displacement in Nepal, Ctd

 Photo: Domenico

Photo: Domenico

Last week I wrote the following about Nepal's building codes contributing to seismic vulnerability:

Nepal ranks near the bottom in a list of countries on preparedness for natural disasters.  Despite being located on a known fault-line, Kathmandu, like Port au Prince, did not develop stringent building codes, zoning laws, or urbanization management plans to mitigate risk.  What plans do exist have not been enforced. 

And weak building code standards and enforcement did contribute to widespread infrastructural and human losses.  But engineers are starting to find evidence - from buildings that did not collapse - that construction standards may be improving in Nepal.  Simple details like bending steel rods around vertical bands has helped some buildings stay standing, which, while not salvaging the building itself, saved human lives:

These are precisely the construction details that were absent in the wreckage of many of the schools that collapsed on students and teachers in China’s Sichuan Province in 2008.

Miyamoto said Nepal’s two-decade effort to improve building codes is important, but that adoption of new norms and habits by contractors there and in many other developing countries is likely more a function of spreading understanding of why such simple steps make a difference.*

“They have to know why that bend matters,” he said. “A few extra seconds of effort can keep a building from falling on their kids.”

He and others have credited the sustained work of Nepal’s National Society for Earthquake Technology and nonprofit groups such as GeoHazards International in helping spread such insights.

But they are racing the clock in many ways. The same is true around the world.

The need for more stringent building code regulation appears to be getting more attention in nearby India as well, where low, mid, and high-rise buildings share the same minimum building code  standards (h/t Andrew Revkin).

Why countries need an international volcano response plan, Ctd

You may have heard that the Calbuco volcano in southern Chile erupted last week, five days after I wrote about the need for an international volcano response plan to deal with and prepare for the climate impacts of large volcanic events.  The Calbuco eruption is not a large volcanic event by historic standards, but NASA satellite data is starting to show that the eruption's sulfur dioxide may nonetheless have climate impacts because it was injected so high into the stratosphere:

The SO2 total is much lower than the recent Holuhraun eruption, which released about 11–12 teragrams, or 30 to 40 times more than Calbuco. “But the SO2 from Holuhraun was emitted over several months and was mostly confined to the lower troposphere, limiting its climate impacts,” Carn noted. “In terms of climate impacts, Calbuco is probably more significant due to the stratospheric SO2 injection.”

There have already been direct impacts felt in Chile and Argentina, but the potential indirect impacts of sulfur dioxide particles creating a cooling effect could play a disruptive role in upcoming climate change negotiations.  As countries move toward a binding greenhouse gas emission reductions treaty to deal with climate change, now is the time to consider how volcanic cooling effects should be discussed and planned for in the future.  

 Image: NASA

Image: NASA


Disaster Law and Displacement, Nepal Edition

Disaster Law and Displacement, Nepal Edition

Earlier this month I wrote about displacement and disaster in Haiti, highlighting some legal obstacles that were (and still are) frustrating efforts to reduce displaced populations after the 2010 earthquake.  The legal framework was weak on three fronts: domestically, building codes were not optimized for seismic activity and rarely enforced, while property documentation processes were confusing; regionally, while the Dominican Republic pledged aid at first, long-running tensions emerged eventually; and internationally the NGO and intergovernmental community operated without meaningful checks and balances.  

On Saturday, a 7.8 magnitude earthquake struck Nepal, with an epicenter roughly 80 kilometers from the capital and most populous city, Kathmandu.  Compare that to Haiti's 7.0 magnitude earthquake 25 km from Port au Prince, Haiti's capital and most populous city, and the seismology looks similar.  But vulnerability is a product not only of earthquake strength and duration, but population and property preparedness as well.  A comparison between rich and poor countries illustrates the dynamic quite well (see chart below the jump).

So far the impact of the earthquake in Nepal - and immediate relief efforts - appear to be mirroring the Haitian experience.  The death toll (so far) is lower than estimated for the region, but hundreds of thousands of survivors are sprawled across large tent cities near Kathmandu, with power, freshwater, food, and hospital services being stretched thin.  International relief agencies are pouring into the country, and the relief effort will inevitably become a rebuilding project, with familiar echoes of Haiti's infamous "Build Back Better" campaign.   Given the impending transition in Nepal, it's worth comparing the lessons of Haiti's experience with the Nepalese context.  

Low building code standards and enforcement

Nepal ranks near the bottom in a list of countries on preparedness for natural disasters.  Despite being located on a known fault-line, Kathmandu, like Port au Prince, did not develop stringent building codes, zoning laws, or urbanization management plans to mitigate risk.  What plans do exist have not been enforced.  According to The Atlantic's City Lab:

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Why countries need an international volcano response plan

Why countries need an international volcano response plan

Among the topics covered by the April 11th 2015 issue of the Economist: the US presidential election, the Iran nuclear deal, terrorism in Kenya and Malaysia, and economic projections for the European Union.  It might be surprising, then, that the lead-in is an article on volcanoes and climate whose introductory setting is Indonesia in 1815.  That was the year Mount Tambora erupted.  The most powerful volcanic eruption of the past 500 years , Tambora released ash over a million square kilometers, and killed 60,000-120,000 people.  But the global impact was much more subtle.  By releasing sulfur dioxide into the atmosphere, particles reflected sunlight away from the earth, cooling and drying the planet:

The year after the eruption clothes froze to washing lines in the New England summer and glaciers surged down Alpine valleys at an alarming rate.  Countless thousands starved in China's Yunnan province and typhus spread across Europe.  Grain was in such short supply in Britain that the Corn Laws were suspended...And no one knew that the common cause of all these things was a ruined mountain in a far-off sea.

Volcanoes don't feature much in modern discourse about climate change, natural disasters, and societal resilience.  Perhaps they should.  While there is a direct risk to people and property from lava and ash, that risk is minimized by relatively sophisticated early warning systems.  The real danger may be the indirect impacts on the global environment.

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The Law of Disaster and Displacement in Haiti (Part III)

The Law of Disaster and Displacement in Haiti (Part III)

The third in a three-part series on disaster and displacement in Haiti.  Read the rest of the series: Part IPart II.

Five years since the earthquake, the number of people living in camps has dropped by over 90%.  Still, between 100,000 – 150,000 remain, and for those that returned to their homes, life remains difficult.  67% of households that were displaced by the earthquake are unable to meet their basic needs, compared to 43% of households that were not displaced.  Families that were displaced are more likely than non-displaced families to report that their living conditions have worsened, that they feel insecure, or that they have poor access to water, sanitation facilities, or healthcare.   Despite a reduction in the number of people living in camps, replacing what was lost during the earthquake and its aftermath remains a struggle. 

Of additional concern though is the prospect of another disaster, be it an earthquake or a hurricane.  The particular legal problems addressed above have received little attention, and what attention has been paid appears not to have made a significant change to realities on the ground. 

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The Law of Disaster and Displacement in Haiti (Part II)

The Law of Disaster and Displacement in Haiti (Part II)

The second in a three-part series on disaster and displacement in Haiti.  Read the rest of the series: Part IPart III.

Once 1.5-2 million Haitians lost their homes, displacement was exacerbated by complex property laws and land tenure administration.  Simply put, it is difficult to confidently know who owns what in Haiti.  Formal institutions purporting to administer property rights function poorly, giving rise to informal arrangements between landowner and occupant.  The informal system works well enough for Haitians, but was mistrusted by foreign aid agencies financing reconstruction.  The agencies sought durable solutions that provided tenants with security and a respectable standard of living, ignoring the fact that poor living conditions had been the norm before the earthquake. The disconnect forced many to continue living in camps far longer than necessary as agencies grappled with property law entanglements.  The camps themselves became the subject of land disputes as owners of land on which camps were established tried to evict camp occupants from their land.  Fearing that settlements would become permanent, landowners asserted their rights under national law to evict occupants and, when that proved unhelpful, by other demonstrations of power, including force and corruption.  The international community, meanwhile, leaned on international law to block evictions, including human rights law and international principles on internal displacement.  The government was unable to mediate as it had conflicting interests (some camps were on public lands), and through its numerous institutions did not speak with one voice.  Thus an archaic and complex land law and land administration system paralyzed the effort to return displaced communities to their homes.

On the other side of the island of Hispaniola, the Dominican Republic uses its own laws to frustrate Haitians displaced from the earthquake.  

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The Law of Disaster and Displacement in Haiti (Part I)

The Law of Disaster and Displacement in Haiti (Part I)

This is the first in a three-part series about disaster and displacement in Haiti.  Read the rest of the series: Part IIPart III

Port-au-Prince is Haiti’s capital and most populous city, with a metropolitan population of nearly 2.5 million.  On January 12, 2010, a magnitude 7.0 Mw earthquake struck 25 kilometers southwest of the city.  An additional 52 aftershocks with a magnitude of at least 4.5 followed.  The island of Hispaniola – which Haiti shares with the Dominican Republic – is no stranger to extreme natural events like earthquakes and tropical cyclones, but the 2010 earthquake was unprecedented in its destructive impact.   Death toll estimates range from 100,000 - 300,000.   Critical infrastructure designed to respond to disasters (e.g., hospitals, roads, seaports, airports, communication systems) was destroyed.   Many of the city's other buildings - including private residences, government institutions, and business centers - were likewise completely or functionally destroyed.  In sum, Haiti’s largest city and the epicenter of government and economic activity was ground to a halt.

While recovering and respectfully disposing of the deceased proved trying, responding to the needs of the living became a challenge of epic proportions.  The United States Agency for International Development estimates that 1.5 million people were displaced into some 1,500 camps.  Many others forced to leave their homes sought refuge with family in other parts of the country.  And by almost all accounts, the response to displacement was inadequate.  A year after the earthquake 500,000 Haitians were still living in camps, and although the rough official number in 2014 was ‘only’ 100,000, the effect of displacement is persistent and hard to fully discern in a city where camps can be hard to distinguish from slums.  A 2014 survey found that 74% of families forced to leave their homes in 2010 still consider themselves displaced, even though they no longer live in displacement camps.   Meanwhile, life in the camps was ill-conceived: many had no electricity, clean water, sanitation facilities, or protection from the elements.  Sexual, domestic, and gang violence was common, and a cholera outbreak (likely introduced by foreign aid workers) exacerbated a fragile public health environment. 

The inadequacy of the response to displacement has many intertwined roots, the totality of which is still being uncovered.  One of the most distressing concerns for Haiti and the international community, however, was (and continues to be) the weak legal framework designed to mitigate and respond to extreme natural events. 

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