NOTE: Earth Matters will not appear on November 19 and 26. It will return December 3.
One hundred fifteen years ago, the U.S. Supreme Court ruled in Winters v. United States that American Indian tribes had an inherent right to water because treaties were written with the idea that tribes would become self-sufficient, and without water they couldn’t be. It was one of the most important recognitions of Native sovereignty that ever emerged from the high court. Unfortunately, for most of the tribes of the basin, the 1908 promise in Winters has yet to be fulfilled.
The ruling was ignored in the 1922 Colorado River Compact that divvied up the shares of water each of the seven upper and lower basin states would get. The tribes were expected to beg their water from each state’s share, a losing prospect given the racist hostility toward Natives found among government officials of that era. Meanwhile, the federal government, in the midst of terminating 100 reservations and tribes in the 1950s and ‘60s, grabbed pieces of Native land for massive water projects, with paltry compensation and no guarantee the tribes would themselves benefit from the dams and reservoirs built on land taken from them.
Anna V. Smith and Mark Olalde at High Country News and ProPublica recently collaborated on a lengthy investigative story on how Indigenous Americans in the Colorado River Basin were left out of their share of the river’s water 100 years ago, and that the seven states in the basin, most particularly Arizona, have ever since aggressively fought to keep the tribes from securing their share. Thus, to this day, the Navajo Nation—with the geographically largest reservation in the country and, as of June 2023, the second largest tribally enrolled population (closely behind the Cherokee Nation)—has not secured rights to its share of the water, and neither have 22 other basin tribes, including eight in Arizona.
It’s not easy to condense their excellent reporting, but here goes anyway.
Because the states battled among themselves over water shares, a case arose that came to be known as Arizona v. California. It provided an opportunity to settle the rights of the tribes of the basin, but state officials figured the prevailing attitude at all levels of government would stop that.
Smith and Olalde write:
So it was a shock to states when, in November 1953, Attorney General Herbert Brownell Jr. and the Department of Justice moved to intervene in the states’ water fight and aggressively staked a claim on behalf of tribes. Tribal water rights were “prior and superior” to all other water users in the basin, even states, the federal government argued.
Western states were apoplectic.
Arizona Gov. John Howard Pyle quickly called a meeting with Brownell to complain, and Western politicians hurried to Washington, D.C. Under political pressure, the Department of Justice removed the document four days after filing it. When Pyle wrote to thank the attorney general, he requested that federal solicitors work with the state on an amended version. “To have left it as it was would have been calamitous,” Pyle said.
The federal government refiled its petition a month later. It no longer asserted that tribes’ water rights were “prior and superior.” [...]
In 1956, W.H. Flanery, the associate solicitor of Indian Affairs, wrote to an Interior Department official that Arizona and California “are the Indians’ enemies and they will be united in their efforts to defeat any superior or prior right which we may seek to establish on behalf of the Indians. They have spared and will continue to spare no expense in their efforts to defeat the claims of the Indians.”
It took until 1964 before the Supreme Court quantified the water rights of the Lower Basin states— California, Arizona and Nevada—and five tribes whose lands abut the river. While the ruling defended tribes’ right to water, it did little to help them access it. By excluding all other basin tribes from the case, the court missed a chance to bring their rights into line with Winters once and for all.
Six decades later, the Supreme Court stepped in again this past summer to rule in Arizona v. Navajo Nation that the 1868 Treaty of Bosque Redondo did not require the government to ensure access to water for the tribe. Neil Gorsuch dissented and was joined by Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson. The justice is noted for his stance favoring an affirmative approach on American Indian rights. He does so on the basis of a textualist and originalist interpretation of the law. something his conservative colleagues proclaim in various cases, but not this one. He wrote:
Today, the Court rejects a request the Navajo Nation never made. This case is not about compelling the federal government to take “affirmative steps to secure water for the Navajos.” [...] Respectfully, the relief the Tribe seeks is far more modest. Everyone agrees the Navajo received enforceable water rights by treaty. Everyone agrees the United States holds some of those water rights in trust on the Tribe’s behalf. And everyone agrees the extent of those rights has never been assessed. Adding those pieces together, the Navajo have a simple ask: They want the United States to identify the water rights it holds for them. And if the United States has misappropriated the Navajo’s water rights, the Tribe asks it to formulate a plan to stop doing so prospectively. Because there is nothing remarkable about any of this, I would affirm the Ninth Circuit’s judgment and allow the Navajos’ case to proceed.
Understanding this lawsuit requires at least three pieces of context the Court’s opinion neglects. It requires some understanding of the history that led to the Treaty of 1868 establishing the Navajo Reservation. It requires some insight into the discussions that surrounded that Treaty. Finally, it requires an appreciation of the many steps the Navajo took to avoid this litigation.
Smith and Olalde point out that eight tribal nations still haven’t been able to reach an agreement about how much water they have rights to in Arizona. Democratic Gov. Katie Hobbs has vowed to resolve the matter, and the Navajo Nation began negotiating with the state last month. But, the pair writes, the tribes and their representatives wonder if the state will bring a new approach. Jay Weiner, an attorney who represents several tribes’ water claims in Arizona, told them, “It’s not clear to me Arizona’s changed a whole lot since the 1950s.”
WEEKLY ECO-VIDEO
GREEN BRIEF
California is already the nation’s leader in electric school buses, having committed to buying 2,078 of them, 34% of which are already on the road. Last month, Gov. Gavin Newsom signed Assembly Bill 579, making California the fifth state to mandate electric school buses, joining Connecticut, Maine, Maryland, and New York. The California mandate requires all new school buses to be electric as of 2035, a date some critics would like to see backed up to 2030 or even earlier. New York’s deadline is 2027.
Nationwide, as of June 2023, there were 2,277 electric school buses on order, delivered, or operating. School districts are now committed to acquiring 5,982 electric buses, according to the World Resource Institute’s the Dataset of Electric School Bus Adoption.
Electric buses are expensive, as much as three times the price of a diesel bus. Making those pricey purchases possible is a provision of the bipartisan Infrastructure and Investment Jobs Act (IIJA) that includes $2.5 billion exclusively for electric school bus buys, and another $2.5 billion for clean school buses, which can include electrics or alternative fuel vehicles. School districts are also eligible for up to $40,000 per electric bus purchased and up to $100,000 per charger via the Inflation Reduction Act.
Thirty-nine percent of all committed electric school buses come from the Environmental Protection Agency’s (EPA) Clean School Bus Rebate Program, which awarded over $900 million for more than 2,300 electric school buses to 365 school districts in 2022, in its first round of funding. In addition to 49 states and Washington, D.C. (Wyoming sent its share back), American Samoa, Guam, Puerto Rico, the U.S. Virgin Islands, the Morongo Band of Mission Indians, Mississippi Band of Choctaw Indians, Lower Brule Sioux Tribe, and the Soboba Band of Luiseño Indians have all received electric school bus funding. In California, there’s an additional source of money—the Hybrid and Zero-Emission Truck and Bus Voucher Incentive Program. So far it has paid for 1,029 electric buses. .
Regarding the benefits of the switch, Michelle Lewis at Electrek reports:
- It will save the school districts money in the long run—Transit Chicago estimates that each of its electric transit buses saves $25,000 per year in fuel costs. To repeat, that’s each bus. Electric buses also get school districts off the diesel price roller-coaster.
- It will reduce global warming emissions and result in massive public health benefits. The American Lung Association actively campaigns for electric buses because “close to 25 million kids ride to school every day on diesel-powered school buses that emit millions of tons of pollution per year … The toxic pollution in diesel exhaust can harm children’s brain development and respiratory health.”
RESOURCES
HALF A DOZEN OTHER THINGS TO READ (OR LISTEN TO)
Burning Questions: A history of the gas industry’s campaign to manufacture controversy over the health risks of gas stove emissions by Rebecca John at the Climate Investigations Center. Since the early 1970s, the gas industry has successfully employed Big Tobacco’s tactics to manufacture and magnify controversy over links between gas stove emissions and respiratory illness, obscuring science and undermining public health. The gas industry funded its own studies in the 1970s and 1980s using the same laboratories, management consultants, and statisticians as its tobacco counterparts—and was advised by the same public relations company that masterminded the tobacco strategy, Hill & Knowlton. The gas industry’s tactics influenced regulatory decision-making at the Environmental Protection Agency and Consumer Product Safety Commission and have continued up to the present day. As new scientific findings reawaken long-standing concerns about the health impacts of indoor gas cooking, the gas industry has launched a barrage of attacks, casting doubt by making spurious complaints against academic studies, framing discussion of the issue as “reckless,” and hiring influencers to push back against the latest evidence. A new report outlines the gas industry’s efforts over five decades to manufacture and magnify controversy over links between gas stove emissions and respiratory illness—obscuring science and undermining public health.
Majority-Black Pennsylvania community fights back against proposed $6 billion LNG terminal by Ben Seal at Environmental Health News. In what was once a proud and neighborly community where residents sat on their porches and looked after kids playing in the streets, the noxious smell and degraded air quality attributable to the Covanta waste incinerator—the largest in the country, burning as much as 3,500 tons of trash a day—have driven residents indoors or out of town. The city’s population, which is 72% Black, has dwindled by 20% in the past three decades, falling to about 33,000. Many who remain suffer from health problems linked to the incinerator and other industrial facilities, including the Delcora sewage treatment facility, a Kimberly Clark paper mill, and a PQ Corp. chemical plant, all of which have a history of pollution. The Covanta facility alone emits as much as 200,000 pounds per year of particulate matter 2.5 (PM2.5), a pollutant that contributes to respiratory illness, diminished lung function and is even linked to cancer. Childhood asthma rates in the city are at least three times higher than the national average. In the same year the incinerator came to town, the community formed Chester Residents Concerned for Quality Living, an organization advocating for clean air, community health and environmental justice. The organization has had its hands full for more than 30 years, fending off a range of efforts to heap more industrial weight upon Chester’s shoulders, including a soil remediation plant, a proposal to burn tires for energy, and a Thermal Pure Systems facility treating infectious medical waste. Now, as Penn America Energy seeks to capitalize on Pennsylvania’s abundance of shale gas by building a $6.4 billion liquefied natural gas terminal on the city’s waterfront, residents are fighting back once more. Their impassioned pleas to keep the LNG plant out of Chester reflect fears of the potential disaster that follows a leak at such facilities and concerns about the assortment of pollutants they emit, from PM2.5 and particulate matter 10 (PM10) to nitrogen oxides, sulfur dioxide, carbon monoxide and a host of volatile organic compounds. Penn America’s proposal was discussed with state and local officials for five years before the public learned about it. It would support the export of 7 million tons of LNG each year.
Abandoned in Osage by Naveena Sadasivam, Lylla Younes, and Allison Herrera at Osage News and Grist. For a time in the early 20th century, oil made citizens of the Osage Nation some of the wealthiest people in the world. Martin Scorsese’s recent film Killers of the Flower Moon unravels one thread of that story. Since then, the tribe’s roughly 2,300 square miles in northeastern Oklahoma have become pockmarked with abandoned oil and gas wells. The companies that drill and operate these wells are legally obligated to close drill holes and clean up sites once they finish extraction, but when they go bankrupt or abdicate their responsibilities, tribal citizens and landowners are left to deal with the fallout. Left unplugged, these wells become legacy sources of pollution. They can emit methane, a potent greenhouse gas, as well as leak saltwater, oil, and other toxic materials into the surrounding earth, posing an environmental and public health threat. Tribal officials have identified numerous abandoned wells releasing dangerous liquids and gases near schools, playgrounds, and homes. Grist and Osage News analyzed Interior Department data and found that there are roughly 2,300 orphaned wells across the Osage Nation—a higher concentration per square mile than any state, including oil-rich Texas and Pennsylvania. Due to poor record-keeping by federal agencies and officials, the true number could be as high as 16,000. In recent years, the federal government has been stepping in to help clean up the mess, announcing $19 million in funds earlier this year. But with the cost of plugging wells in Osage running anywhere between $40,000 and $500,000 per well, it won’t be nearly enough to fix the problem.
How wild elephants solve puzzles may help humans resolve wildlife conflicts by Malavika Vyawahare at Mongabay. Sarah Jacobson at the City University of New York’s Comparative Cognition for Conservation Lab and her team designed an experiment engaging Asian elephants (Elephas maximus) at Thailand’s Salakpra Wildlife Sanctuary in an open-air puzzle. She said: “In other species that have been tested for innovation, bigger brains have been correlated with more innovation. We wanted to come up with a way to measure this in wild elephants.” They designed a contraption with three small compartments that had doors that opened in three different ways: push, pull, and slide. Inside each nook lay a morsel of juicy jackfruit, their favorite snack. Five of the 44 elephants that engaged with the box managed to open all three doors. Eight managed to open two, and another 11 opened just one. The number of doors they opened captured their ability to innovate under the experiment, with the findings recently published in the journal Animal Behaviour. The five who scored all doors were older males. It wasn’t clear from the data what role gender played in their success. What the results did show was that persistence paid off. The more time an elephant spent interacting with the puzzle, the higher its chances of success. Trying different actions also yielded rewards. In Kenya’s Lewa Wildlife Conservancy, for instance, electric fences haven’t been able to deter tuskers. Elephants there quickly learned that their tusks didn’t conduct electricity. Soon, they started using them to manipulate and break through the barriers. In one video uploaded by researchers at Lewa, an African elephant can be seen holding the wires up with its tusks, allowing another to pass beneath. Such ingenious displays may make for compelling viewing on social media, but on the ground, it can signal trouble to come.
An effort to create the strictest workplace heat rules in the U.S. failed by Nicolás Rivero at The Washington Post. Miami-Dade County commissioners rejected a bill on Tuesday that would have created the first county-level workplace heat protections in the United States. The defeat for local labor groups signals how difficult it will be to protect workers from increasingly dangerous temperatures in the absence of federal rules. As climate change ratchets up global temperatures, most of the roughly 32 million people who work outdoors in the United States are not protected by any workplace heat safety regulations. The Occupational Safety and Health Administration (OSHA) has published voluntary guidelines on heat safety, but these are not enforceable. Only three states —California, Washington and Oregon—require companies to give outdoor workers breaks to cool down on hot days. No states in the South, where workplace heat deaths are most common, have created their own heat safety rules. The Miami-Dade ordinance offered an opportunity to break this impasse, and to pave the way for similar rules across the country.
IRA clean energy projects could create 403,000 jobs: E2 report by Diana DiGangi at Utility Dive. A new study released last week by the nonpartisan business group E2 estimated that announced projects funded in the first year of the Inflation Reduction Act will create more than 400,000 new jobs and hundreds of dollars in new wages, tax revenues, and economic growth. The study modeled the economic benefits of the 210 clean energy and electric vehicle factories and other projects that have been announced in 38 states tracked by E2 from August 2022 to August 2023. It found that if all the projects are completed, this would provide:
In a statement released with the study, E2 Executive Director Bob Keefe said:
“This is another indication that we’re witnessing one of the biggest and most far-reaching economic revolutions in generations, thanks to the IRA. What this study shows is that this boom extends beyond clean energy and clean vehicles and to everything from construction to restaurants to retailers to real estate. Even if you don’t care about climate change, even if you don’t like clean energy or electric vehicles, you ought to like the jobs, investments, sales and tax dollars coming to your state and your community because of this clean economy transformation.”
ECO-TWXXT
ECOPINION
Rich People Are the Big Barrier to Stabilizing the Climate by Tom Athanasiou at The New Republic. Efforts to curb climate change are failing. That’s partly due to the staggering contributions of the global elite. The Stockholm Environment Institute’s Carbon Inequality Era paper shows that, in the period since 1990, as emissions almost doubled, the rising consumption of the world’s top 10% was responsible for almost half of that increase—almost as much as the entire remaining 90% of the world’s population. The emissions of the richest 5 percent (37% of all post-1990 emissions) were particularly notable, and the emissions of the top 1% (who contributed 21% of all post-1990 emissions) were far greater still. Many of us will live to see the consequences of this emissions growth, as the temperature begins a true overshoot (and not just a transient spike) above 1.5 degrees Celsius (2.7 degrees Fahrenheit). To have a 50/50 chance of holding the 1.5-degree line, we have to limit emissions from the beginning of 2023 onward to about 250 metric gigatons of carbon dioxide. At current global emissions levels, that budget will be exhausted in 2029. But the world’s richest 10% would exhaust it on their own by about 2035, even if the rest of us were to cease emitting anything at all. The problem isn’t just that wealthy people generate more carbon emissions than poor people. It’s that the sheer overwhelming extent to which they do so belies the endlessly repeated claim that rising fossil fuel consumption and even the destabilization of the climate system are justified by the need to lift the world’s poor from poverty.
Nuclear Energy & Free Market Capitalism Aren’t Compatible by Michael Bernard at CleanTechnica. Nuclear energy has had some successful scalings in the past, but seems incapable of it today. A big part of it is that the tenets of free market capitalism cause it to fall over. The same is true for small modular reactors. As people who like nuclear tend to be politically conservative and hence much more likely to be free market ideologues, the cognitive dissonance must require a jar of Ibuprofen a week. Let’s explore why. First of all, nuclear is completely fine as a low-carbon electricity generation technology in my books. It’s efficient enough, it’s effective, it doesn’t emit greenhouse gases in operation, it lasts a few decades and it doesn’t emit air pollution. The fears of radiation are vastly overblown and a lot more people are a lot more exposed to radiation from burning coal and flying in passenger jets than from nuclear plants. But that doesn’t mean I think it’s worth spending a lot of time or money on this decade or next. I think in the end game it will be lucky to be generating 5% of global energy when all energy is electric. That’s up a bit in absolute terms from where it is now, but down quite a bit in terms of relative share of electrical generation, and down a lot in terms of share of low-carbon generation.Why? Let’s explore the successful nuclear generation programs of the past and then what’s happening in China. Wait, China? That’s not a free market capitalist state, you say? Read on. [...] Building nuclear reactors requires a Nuclear New Deal, and no government in the world seems interested in doing that. While market economics work brilliantly for lowering costs of modular, manufacturable, and simpler solutions, they don’t work for commercial nuclear generation.
Wars are closing down the window for climate action by Nick Buxton and Deborah Burton at Climate Home News. The failure of the richest countries to meet their 2009 commitment to provide $100 billion in climate finance to impoverished and climate vulnerable countries has long sowed distrust and hindered climate negotiations. Resources that never materialize to address the climate emergency seem to be easily available when it comes to supporting wars. This looks set to get worse. The world’s largest military alliance, NATO, has committed for all its members to spend at least 2% of GDP on the military. Climate Crossfire, a recent report by Transnational Institute, StopWapenhandel and Tipping Point North South, reveals that this would lead to a total spending of $11.8 trillion by 2028. That’s enough to pay for the rich world’s promised $100 billion a year of climate finance for 118 years.
The Major Questions Doctrine is a Fundamental Threat to Environmental Protection. Should Congress Respond? By Michael Burger and Cynthia Hanawalt at Climate Law—a Sabin Center blog. In the year since the Supreme Court embraced the “major questions doctrine” (MQD), industry and Republican state attorneys general have argued that federal regulations ranging from stricter vehicle emissions standards to climate change disclosures must be struck down under its banner. Results have been mixed in the lower courts, which, given the MQD’s lack of definition and clarity, is unsurprising. But there is little question that regulatory efforts to address the climate crisis are at risk. With many federal judges sympathetic to the MQD’s anti-regulatory bent, and the Supreme Court majority that created this doctrine predicted to last for years, a legislative response from Congress may be a practical solution—if the politics can handle it. In its June 2022 decision in West Virginia v. Env’t Prot. Agency, the Supreme Court formally announced its embrace of the MQD, holding that the Environmental Protection Agency (EPA) did not have authority to issue a greenhouse gas emissions rule that shifted electricity generation away from coal. [...] Parties eager to challenge regulations have sought to characterize a wide range of agency decisions as “major,” and therefore invalid under West Virginia. Agency rulemaking across the federal government—from fiduciary duties and antitrust enforcement, to telecommunications and the authority of the FDA, to immigration policy and nuclear waste storage, among many other issues—has been challenged as unlawful under the principles of the MQD. Seemingly any subject that can be deemed important enough to regulate cannot actually be regulated without precise authorizing language from Congress (at least according to the challenger). [...] Through the MQD, the Supreme Court has claimed a muscular new authority that tilts the balance of power among our three branches of government, allowing courts to unilaterally unwind the actions of federal agencies taken at the direction of Congress. Absent a forceful response from our elected officials, the accelerating harms of climate change may prove even more difficult to address.
It’s Long Past Time to Rewrite Outdated US Mining Laws by Jeremy Miller at The Nation. The White House and some legislators have a plan to reform the General Mining Act of 1872. Today, over half a million abandoned hardrock mine sites litter the landscape of the United States, poisoning ecosystems, blighting public lands, and threatening human health. From the mountaintop coalfields of Appalachia to the uranium quarries of the Four Corners, the scale of the ecological devastation is massive—and so are the projected costs of fixing it. A 1993 report from the Mineral Policy Center estimated that reclaiming more than 350,000 of the most polluted and hazardous sites would cost between $32 billion and $72 billion at that time—or between $67 and $152 billion today. The problem, critics say, can be traced largely to a single piece of antiquated and ineffective legislation, the mining act of 1872. The law, adopted in response to the extractive free-for-all that defined the Gold Rush era, has changed little since its passage during the administration of Ulysses S. Grant. The law allows a host of players, from multinational companies to individual prospectors, to stake placer mining claims on public lands without environmental review or public hearings. The process requires little more than a small bit of paperwork, a nominal processing cost and an annual fee on par with an average trip to the grocery store. Changes to the current law won’t come easily. Earlier this year, Democratic senators Ed Markey of Massachusetts and Martin Heinrich of New Mexico and House Natural Resources Committee chair Raúl Grijalva of Arizona introduced the Clean Energy Minerals Reform Act. But the bill has been stuck in limbo—an unfortunate replay of earlier attempts to update the antiquated law. Since 2000, more than a half dozen mining reform bills have been introduced. All died in Congress, thanks in large part to aggressive lobbying campaigns by the mining industry and perennial obstruction from leaders in mining states, notably West Virginia Democratic senator Joe Manchin, who has reaped massive profits from the coal industry.
How America’s grid modernization stakes echo Eisenhower’s interstate revolution by José Zayas at Utility Dive. Without the interstate highway system, U.S. GDP would decline by upwards of $578 billion, according to the National Bureau of Economic Research. Like our interstate system, enacting sound policies that deliver a 21st century grid and spur interregional transmission development will drive tremendous economic benefits, increase resilience and national security operations, and maximize the ability to deliver affordable and reliable energy when we need it most. Given the nation’s aging grid infrastructure and our growing need for energy, there is no time to waste. More than 70% of the nation’s transmission and power transformers are over 25 years old and, in many cases, have exceeded their original design life. Additionally, the system must expand 60% by 2030 and triple in size by mid-century to accommodate projected U.S. energy demand. And experts have warned that the existing system is inadequate to meet the nation’s needs in the modern threat environment. To quote Eisenhower, the nation is “confronted with inescapable evidence that action, comprehensive and quick and forward-looking, is needed.”
GREEN LINKS
Department of Energy analysis says coal carbon capture project would emit more greenhouse gases than it stores • Prince William pushes for global network to fight wildlife trafficking • Biden’s $8 billion quest to solve America’s groundwater crisis • The new film ‘Tatanka’ and the many narratives of the buffalo • When Idiot Savants Do Climate Economics • The EPA Has Found More Than a Dozen Contaminants in Drinking Water but Hasn’t Set Safety Limits on Them • Nigeria to receive 500 solar mini-grids in renewable energy push • DOE announces ‘largest-ever investment in America’s grid,’ giving $3.5B across 44 states • GOP states raise fees on electric cars as gas taxes fall • A huge US solar developer just committed to recycling its solar panels • Bifacial Solar Panels To Open Floodgates Of Agrivoltaic Potential