‘Backed into a corner’: Duncan’s First Nation sues Alberta for cumulative impacts of industry

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Monday, October 3, 2022

By Drew Anderson and Matt Simmons (Local Journalism Initiative Reporter) A First Nation in northern Alberta is suing the Alberta government for infringement of Treaty Rights, leaning heavily on a B.C. Supreme Court decision last year, which found that province liable for violations based on the cumulative impacts of industry on the Blueberry River First Nation’s territory.  The outcome of the lawsuit could have a profound impact in a province heavily reliant on an oil and gas industry that has caused significant cumulative impacts, including in the Peace River district that is home to Duncan’s First Nation — the nation that has launched the suit.  In B.C., the court ordered the government to sit down with the Blueberry River First Nation to develop a plan to address its concerns and gave the nation the power to block new developments on its land. Both Blueberry River and Duncan’s First Nations are signatories to Treaty 8. The Duncan’s First Nation suit alleges the government has violated the nation’s Treaty Right to practise its traditional ways of life by approving too many industrial activities on its traditional territories, effectively preventing use of the land.  The case closely echoes the wording used in the successful Blueberry River decision. “Alberta has engaged in a pattern of conduct that, taken together, has significantly diminished [community members’] right to hunt, fish, trap and gather as part of their way of life,” the statement says.  The promises of Treaty 8 and death by a thousand cuts Each of these are rights the nation was told would be protected when it signed onto Treaty 8 in the late 1800s. But since signing, the province has authorized and permitted widespread development, including agriculture, oil and gas, forestry, mining and, most recently, peat bog harvesting. “Among other things, habitats have been fragmented, lands and waters have been degraded, substances have been introduced that cause legitimate fears of contamination and pollution and lands have been put to uses that are incompatible with the continued meaningful exercise of [Duncan’s First Nation’s] Treaty Rights.” In other words, like its B.C. neighbours, Duncan’s First Nation says it’s experiencing what is known as a “death by a thousand cuts.” Duncan’s First Nation Chief Virginia Gladue had previously urged Premier Jason Kenney, Indigenous Relations Minister Rick Wilson and area MLA Todd Loewen in a May 17 letter to engage in a meaningful discussion in order to stave off the lawsuit. “It is not too much to say that the extensive and ever increasing development in [Duncan’s First Nation’s] territory — development that has been directly caused and permitted by Alberta — poses an existential threat to our culture, identity and way of life,” Gladue writes. Her letter also details a long list of impacts identified in studies conducted by the nation, including roads, traffic, logging, pollutants, agriculture, private land and pollution. The chief was unavailable for an interview for this story. Jeff Langlois is the lawyer representing the nation and says Duncan’s has always played by the rules, showing up to make submissions on projects and going through the processes, none of which dealt with the decreasing amount of undisturbed land. He says the nation doesn’t want to go to court, doesn’t want to pay lawyers, but that it feels “backed into a corner in a lot of ways.” “Duncan’s has gone through those processes and tried to address this issue,” Langlois says.  “So, you’re gonna take up all this land in order to develop a new gas pipeline, but we’re already underwater, right? It’s not a case that you’re taking a cup out of a full bucket, you’re scraping the bottom of the bucket.” Gladue says in her letter the nation wants the government  to establish a robust framework that includes plans for guiding development, land and wildlife protection on the nation’s territory or the lawsuit will go forward.  She says such a framework would help overturn what she characterizes as “years of indifference and inaction” on behalf of the government. “As intended by our ancestors and those that signed the Treaty on your behalf, we invite you to work in the spirit of cooperation, mutual respect and responsibility,” writes Gladue. “The choice is yours: whether to commit to this path or continue own the path of indifference, uncertainty and conflict.” Alberta Premier Jason Kenney and his government have taken a pro-industry approach when it comes to development on First Nations territory. Photo: Government of Alberta / Flickr The current United Conservative Government has taken a pro-industry approach to First Nations in Alberta, creating a government-backed litigation fund to help Indigenous groups or affiliated organizations fight opposition to projects. “For too long, pro-development First Nations have been ignored in the debate over resource development,” Premier Jason Kenney said while launching the fund in 2019. The Blueberry River decision set significant precedent The Blueberry decision was the first time the B.C. courts ruled on cumulative impacts. Chris Tollefson, professor of law at the University of Victoria, told The Narwhal in a previous interview the case set a significant precedent because B.C. didn’t appeal the decision. “It’s presumed to state the law accurately and … that decision now becomes the law, at least in British Columbia, binding on all parties and in particular upon the government.” He added the legal decision is “especially persuasive in relation to Treaty 8” — the same treaty Duncan’s First Nation signed. But it’s unclear how the B.C. ruling will play out in Alberta. Kate Gunn, lawyer with First Peoples Law, a firm based in Vancouver, told The Narwhal the Blueberry River decision is not legally binding on Alberta’s court but agreed with Tollefson that it is “persuasive,” especially given both nations are signatories to Treaty 8. “It would be hard for an Alberta court to say that only the nations who signed in B.C. are guaranteed their continued way of life,” she said. She added that when the B.C. Supreme Court handed down its ruling in 2021, it interpreted and clarified a Supreme Court of Canada decision on the rights of the Mikisew Cree First Nation in northern Alberta, also a signatory to Treaty 8.  “The Mikisew case said governments may be liable for treaty infringement if there is so much land taken up by a province that the First Nation can’t exercise their Treaty Rights at all,” Gunn explained. “What Blueberry said is, ‘Yes, that’s correct — but the court didn’t say that there couldn’t be an infringement at a lower threshold.’ ”  She explained that while the B.C. ruling is not binding on other provinces or territories, the Supreme Court of Canada decision is. It’s still open to the Alberta court to decide whether it agrees with the interpretation and proceed on that basis or make contrary findings, which she said would likely be appealed.  Duncan’s isn’t the first Alberta nation to test the waters with litigation against the province on cumulative impacts. Beaver Lake Cree First Nation — a Treaty 6 nation located 100 kilometres northeast of Edmonton — has been battling in the courts since 2008. The basic premise of the argument is the same: government-approved development has diminished the ability of its members to exercise Treaty Rights.  Recently, the nation successfully petitioned the Supreme Court of Canada to overturn a provincial decision that denied them advance costs to see the case through to full trial. The estimated total cost of the litigation is $5 million.  Alberta lacks regional land use plans Both B.C. and Alberta have policies in place to assess cumulative effects, but critics in Alberta have lamented the “sad state” of land use plans meant to address those effects.  Tara Russell, the program director for the Canadian Parks and Wilderness Society in northern Alberta, says there are tools that have been identified to deal with cumulative impacts in Alberta, but consecutive governments have failed to implement them — specifically regional land use plans.  “So we have this tool, we’re just not using it and there’s been quite a distinct lack of will or intent or ambition by government and industry to get them in place,” she says. The Alberta Energy Regulator says it’s unable to comment on the Duncan’s First Nation claim as it’s before the courts and that “inquiries on cumulative effects are best directed at Alberta Environment and Parks.” A view of Suncor’s oilsands base plant. The region that houses the oilsands is one of only two where regional land use plans have been developed in Alberta. Photo: Suncor Energy / Flickr Responding on behalf of the government, a spokesperson for Alberta Justice said the government could not comment due to the lawsuit. When the province backed down from its changes to Alberta’s coal policy last year in the face of public backlash, then-environment minister Jason Nixon said the government takes a comprehensive approach to environmental management to understand cumulative impacts, and pointed specifically to land-use plans. A freedom of information request filed by The Narwhal last year requesting memos and briefing notes for Alberta Energy Regulator executives regarding the potential impact of the Blueberry decision for Alberta’s oil and gas industry was denied due to the records containing “legal advice and analyses that are subject to legal privilege.”  The regulator did point to sections of the Responsible Energy Development Act, Alberta Land Stewardship Act and associated regional plans, Water Act and the Environmental Protection and Enhancement Act that can take into account the cumulative impacts of development on the land.  “The regional plans are the primary policy mechanism by which Alberta considers cumulative effects,” the regulator said in an emailed response to questions.  To date, Alberta has only created two of seven such regional plans — in the Lower Athabasca region and the South Saskatchewan region — the Lower Athabasca plan is up for its mandated 10-year review this year.  Duncan’s First Nation territory sits at the convergence of three regions considered for plans, none of which have entered into initial stages of development.  The Land Stewardship Act was created in 2009.  Robert Hamilton, a law professor at the University of Calgary who has written on the significance of the Blueberry River decision, says the different regulatory regimes in B.C. and Alberta could have an impact on the outcome of the Duncan’s lawsuit.  “It was important to the court that the B.C. regulatory regime had failed in the way that it did,” he says.  But, he says, if the nation is able to demonstrate the impacts have prevented them from meaningfully exercising their rights, it’s not difficult to argue the regulatory regime is failing.  The traditional territory of Duncan’s First Nation sits on lesser-known oilsands deposits and on the Montney formation — a big oil and gas play — but there is also extensive logging in the area, with large forest management agreements in place as well as impacts from agriculture and mining.  That mirrors what’s happening on the B.C. side of the border and Hamilton says the facts presented in the Blueberry River about how much impact there was on the land were a key factor in leading to the final decision. “That level of impact is almost unmatched. Almost. Where is it matched? Well, it’s matched in northern Alberta,” he says.  Duncan’s First Nations case could have profound impacts for oil and gas industry The Blueberry River decision said the government had to sit down with the First Nation to ensure there was a collective plan to address projects going forward and to account for the cumulative impacts of development on the territory. Failing to do so could result in an indefinite pause on development. If the same thing happened in Alberta, it could have a profound impact on the oil and gas industry, the province’s largest source of income. In fact, the industry is expected to bring in $28.4 billion in provincial revenues by the end of this fiscal year.  The Narwhal reached out to the Canadian Association of Petroleum Producers as well as Obsidian Energy, Tourmaline Oil and Baytex Energy, which all operate in the region. None responded to requests for comment on the potential impact of the case.  Langlois says all the nation wants is for the government to address the concerns raised by the community over the years and to develop a plan to address the cumulative impacts of industry.  “Post filing the claim, all we get is well, we’re just going to defer to the land use planning processes that have proved just manifestly unable to deal with this issue, like by design,” he says.  He says there are difficult discussions that need to happen to solve complex problems.  Hamilton, from the University of Calgary, anticipates there will be more cases filed from First Nations dealing with cumulative impacts.  “Treaty Rights throughout the country are under considerable pressure and duty to consult and accommodate has not really been able to satisfy Indigenous people’s desire to have a really meaningful voice in decision making that impacts their rights,” he says.

By Drew Anderson and Matt Simmons (Local Journalism Initiative Reporter) Lawsuit follows in the footsteps of B.C. Supreme Court’s precedent-setting Blueberry River decision, which could have profound impacts for oil and gas industry

Read the full story here.
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Thanksgiving Is Trapped In Nostalgia for a Lost Era of Harvest Festivals. It’s Time to Reckon With the Reality of American Farming.

If fall is the season of agricultural cosplaying—apple picking, pumpkin carving, frantically posing in textiles developed before the advent of central heating—then Thanksgiving is the event toward which all the practice of September and October builds. Thanksgiving is many things, after all, but its aesthetic markers scream “harvest festival,” from the table settings to the dessert options. While the United States ditched seasonal eating somewhere around the middle of the twentieth century with the advent of refrigerated transport, seasonality comes roaring back each November in the apple, pecan, pumpkin, and cranberry pies.It’s hard to know how to feel about this ritualistic reminder of the farming year. Some might argue that any reconnection between postindustrial man and the environment is good. But the reality, of course, is that Americans are pretty well checked out of modern agricultural practices, whether or not a decorative gourd adorns their holiday table. While some of the 88 percent who reportedly eat turkey on Thanksgiving may be dimly aware they’re commemorating the consumption of a bird European colonizers quickly extirpated via hunting and deforestation, fewer probably comprehend the dystopian dynamics of the modern turkey industry. Cute autumnal media features like The New York Times’ recent photo-essay on wild turkey mating rituals are unlikely to enlighten them. Zero wild turkey “wingmen,” regrettably, are involved in breeding the birds that wind up on most tables, which overwhelmingly hail from a single breed of unnervingly lopsided turkeys bearing little resemblance to their wild cousins. In addition to the grisly realities of poultry production in general, turkey breeding also relies on artificial insemination, a technology considerably grimmer in the execution than you might imagine from the clinical terminology. These concentrated poultry operations pose a serious threat of water pollution—often to already marginalized communities where the farms are located. They’re increasingly suspected to be a risk factor in emerging (and antibiotic-resistant) diseases. They’re kept afloat by cheap, subsidized, mass-produced American grain, which comes with its own host of environmental and equity problems. And then, of course, almost all meat is on the emissions-heavy side of the spectrum, as compared to plant foods.That last bit is darkly ironic, given that climate change is already threatening the plant portion of the Thanksgiving plate. Erratic temperature patterns make it hard to grow cranberries—with sunscald damaging crops and leading to fruit rot and unusually early blossoms getting killed off by frost. Global warming is turbocharging fire blight, the scourge of apple orchards, pushing the fungal disease further and further north. Pumpkin harvests suffer with global warming’s torrential rains—as happened in 2015.This is a depressing list of problems. But for what it’s worth, I don’t think the answer is to give up on Thanksgiving. Rather, as TNR columnist Liza Featherstone suggested last year, it may be time for Americans to deepen their engagement with the holiday. There’s a radical strain of Thanksgiving celebration that could still be reclaimed—and even serve as an antidote to overconsumption. “Gratitude can feel like a reprieve from all the tiresome aspiration of capitalism; an embrace of what we have,” Liza wrote. “Giving thanks is a respite from the struggle to achieve more.” If you like your radicalism to be more action-oriented, finish your Thanksgiving meal by reading Gabriel Rosenberg and Jan Dutkiewicz’s classic call to “Abolish the Department of Agriculture.” Maybe the best way to celebrate the harvest is to save American farming, remaking it for a more sustainable and equitable future.Good NewsIn a surprising turn of events, rich countries including the U.S. finally gave in and agreed to establish a fund to help poorer and more vulnerable countries deal with the fallout from climate change. Read Kate Aronoff’s piece on the turnaround here.Bad NewsIt’s looking increasingly likely from the lack of emissions-reduction progress at the COP27 climate summit that the world will blow past the goal of limiting warming to 1.5 degrees Celsius (2.7 degrees Fahrenheit). This week at TNR, Stephen Lezak argues that giving up on 1.5 degrees is “a luxury only the rich can afford.”Elsewhere in the EcosystemClimate Change From A to Z“Despair is unproductive. It is also a sin.” Not all of the entries in Elizabeth Kolbert’s alphabetical guide to climate change are as pithy as the letter Ds, but all transcend what you might otherwise suspect to be a cutesy gimmick. F stands for “Flight,” an entry in which Kolbert takes the reader on a tour of the Alia, an electric plane. K stands for “Kilowatt,” an entry that focuses on America’s outsize per-capita energy consumption. Complete with great illustrations and data visualization, this centerpiece of the magazine’s climate issue is the perfect item to curl up with in a quiet moment this holiday weekend—or discuss at the table. Check out this excerpt from N (“Narratives”):“Narratives are socially constructed ‘stories’ that make sense of events,” thereby lending “direction to human action.” So observes a paper published recently in the journal Climatic Change by a team of European researchers. Climate-change narratives, the team notes, typically foreground “doom and gloom.” … This approach, the researchers argue, can be counterproductive: “Narratives of fear can become self-fulfilling prophecies.” If people believe that things will only get worse, they feel overwhelmed. If they feel overwhelmed, they’re apt to throw up their hands, thus guaranteeing that things will only get worse. A diet of bad news leads to paralysis, which yields yet more bad news.What’s needed instead, the paper goes on, are narratives that “empower people to act.” Such narratives tell a “positive and engaging story.” They “articulate a vision of ‘where we want to go’” and outline steps that could be taken to arrive at this metaphorical destination. Positive stories can also become self-fulfilling. People who believe in a brighter future are more likely to put in the effort required to achieve it. When they put in that effort, they make discoveries that hasten progress. Along the way, they build communities that make positive change possible.Read Elizabeth Kolbert’s article at The New Yorker.This article first appeared in Apocalypse Soon, a weekly TNR newsletter authored by deputy editor Heather Souvaine Horn. Sign up here.

If fall is the season of agricultural cosplaying—apple picking, pumpkin carving, frantically posing in textiles developed before the advent of central heating—then Thanksgiving is the event toward which all the practice of September and October builds. Thanksgiving is many things, after all, but its aesthetic markers scream “harvest festival,” from the table settings to the dessert options. While the United States ditched seasonal eating somewhere around the middle of the twentieth century with the advent of refrigerated transport, seasonality comes roaring back each November in the apple, pecan, pumpkin, and cranberry pies.It’s hard to know how to feel about this ritualistic reminder of the farming year. Some might argue that any reconnection between postindustrial man and the environment is good. But the reality, of course, is that Americans are pretty well checked out of modern agricultural practices, whether or not a decorative gourd adorns their holiday table. While some of the 88 percent who reportedly eat turkey on Thanksgiving may be dimly aware they’re commemorating the consumption of a bird European colonizers quickly extirpated via hunting and deforestation, fewer probably comprehend the dystopian dynamics of the modern turkey industry. Cute autumnal media features like The New York Times’ recent photo-essay on wild turkey mating rituals are unlikely to enlighten them. Zero wild turkey “wingmen,” regrettably, are involved in breeding the birds that wind up on most tables, which overwhelmingly hail from a single breed of unnervingly lopsided turkeys bearing little resemblance to their wild cousins. In addition to the grisly realities of poultry production in general, turkey breeding also relies on artificial insemination, a technology considerably grimmer in the execution than you might imagine from the clinical terminology. These concentrated poultry operations pose a serious threat of water pollution—often to already marginalized communities where the farms are located. They’re increasingly suspected to be a risk factor in emerging (and antibiotic-resistant) diseases. They’re kept afloat by cheap, subsidized, mass-produced American grain, which comes with its own host of environmental and equity problems. And then, of course, almost all meat is on the emissions-heavy side of the spectrum, as compared to plant foods.That last bit is darkly ironic, given that climate change is already threatening the plant portion of the Thanksgiving plate. Erratic temperature patterns make it hard to grow cranberries—with sunscald damaging crops and leading to fruit rot and unusually early blossoms getting killed off by frost. Global warming is turbocharging fire blight, the scourge of apple orchards, pushing the fungal disease further and further north. Pumpkin harvests suffer with global warming’s torrential rains—as happened in 2015.This is a depressing list of problems. But for what it’s worth, I don’t think the answer is to give up on Thanksgiving. Rather, as TNR columnist Liza Featherstone suggested last year, it may be time for Americans to deepen their engagement with the holiday. There’s a radical strain of Thanksgiving celebration that could still be reclaimed—and even serve as an antidote to overconsumption. “Gratitude can feel like a reprieve from all the tiresome aspiration of capitalism; an embrace of what we have,” Liza wrote. “Giving thanks is a respite from the struggle to achieve more.” If you like your radicalism to be more action-oriented, finish your Thanksgiving meal by reading Gabriel Rosenberg and Jan Dutkiewicz’s classic call to “Abolish the Department of Agriculture.” Maybe the best way to celebrate the harvest is to save American farming, remaking it for a more sustainable and equitable future.Good NewsIn a surprising turn of events, rich countries including the U.S. finally gave in and agreed to establish a fund to help poorer and more vulnerable countries deal with the fallout from climate change. Read Kate Aronoff’s piece on the turnaround here.Bad NewsIt’s looking increasingly likely from the lack of emissions-reduction progress at the COP27 climate summit that the world will blow past the goal of limiting warming to 1.5 degrees Celsius (2.7 degrees Fahrenheit). This week at TNR, Stephen Lezak argues that giving up on 1.5 degrees is “a luxury only the rich can afford.”Elsewhere in the EcosystemClimate Change From A to Z“Despair is unproductive. It is also a sin.” Not all of the entries in Elizabeth Kolbert’s alphabetical guide to climate change are as pithy as the letter Ds, but all transcend what you might otherwise suspect to be a cutesy gimmick. F stands for “Flight,” an entry in which Kolbert takes the reader on a tour of the Alia, an electric plane. K stands for “Kilowatt,” an entry that focuses on America’s outsize per-capita energy consumption. Complete with great illustrations and data visualization, this centerpiece of the magazine’s climate issue is the perfect item to curl up with in a quiet moment this holiday weekend—or discuss at the table. Check out this excerpt from N (“Narratives”):“Narratives are socially constructed ‘stories’ that make sense of events,” thereby lending “direction to human action.” So observes a paper published recently in the journal Climatic Change by a team of European researchers. Climate-change narratives, the team notes, typically foreground “doom and gloom.” … This approach, the researchers argue, can be counterproductive: “Narratives of fear can become self-fulfilling prophecies.” If people believe that things will only get worse, they feel overwhelmed. If they feel overwhelmed, they’re apt to throw up their hands, thus guaranteeing that things will only get worse. A diet of bad news leads to paralysis, which yields yet more bad news.What’s needed instead, the paper goes on, are narratives that “empower people to act.” Such narratives tell a “positive and engaging story.” They “articulate a vision of ‘where we want to go’” and outline steps that could be taken to arrive at this metaphorical destination. Positive stories can also become self-fulfilling. People who believe in a brighter future are more likely to put in the effort required to achieve it. When they put in that effort, they make discoveries that hasten progress. Along the way, they build communities that make positive change possible.Read Elizabeth Kolbert’s article at The New Yorker.This article first appeared in Apocalypse Soon, a weekly TNR newsletter authored by deputy editor Heather Souvaine Horn. Sign up here.

Energy & Environment — Drought costing California agriculture billions

A new study finds that drought is costing California’s agriculture industry billions. Meanwhile, Russian strikes knocked Ukraine’s electricity offline, and the Biden administration approved a new oil export terminal. This is Overnight Energy & Environment, your source for the latest news focused on energy, the environment and beyond. For The Hill, we’re Rachel Frazin and Zack Budryk. Sign up...

A new study finds that drought is costing California’s agriculture industry billions. Meanwhile, Russian strikes knocked Ukraine’s electricity offline, and the Biden administration approved a new oil export terminal.  This is Overnight Energy & Environment, your source for the latest news focused on energy, the environment and beyond. For The Hill, we’re Rachel Frazin and Zack Budryk. Sign up below or online here. Programming note: We will be taking a break on Thursday and Friday. We'll be back Monday. Happy Thanksgiving! Close Thank you for signing up! Subscribe to more newsletters here The latest in politics and policy. Direct to your inbox. Sign up for the Energy and Environment newsletter Persistent drought adds to California losses: study As California’s drought stretches into a third straight year, the state’s agriculture industry is incurring billions in related losses, a new study has found.  The report estimates direct impacts on farm activity of $1.2 billion this year — up from $810 million in 2021.But the effects of the drought in 2022 extended far beyond that $1.2 billion sum, according to the report, released by the University of California, Merced’s Water Systems Management Lab.Impacts on food processing industries that depend on farm products were about $845 million in 2022 — up from $590 million last year.  What makes this particularly bad? “California is no stranger to drought, but this current drought has hit really hard in some of the typically water-rich parts of the state that are essential for the broader state water supply,” co-author John Abatzoglou, a professor of climatology at UC Merced, said in a statement.  Altogether, the combined direct and indirect consequences of the drought have reached about $2 billion in value-added losses this year alone, researchers found. By the numbers: These losses amount to a 5.9 percent reduction when compared to those of 2019 and also resulted in 19,420 job cuts, according to the study.  In addition to suffering the impacts of the drought, California’s agricultural economy has also suffered from supply chain disruptions, including the ability to ship crops out of state, the authors explained.  Such delays could result in increased inventory and influence some of California’s specialty crop prices, according to the study.  While acknowledging such negative effects of the drought on agriculture, the researchers found that things could have been worse.  Read more from The Hill’s Sharon Udasin. Officials OK Gulf oil terminal over local opposition Federal regulators this week approved a new oil terminal in the Gulf of Mexico off Texas over the objections of local activists, who argued the move contravenes the Biden administration’s stated climate goals. The Transportation Department’s Maritime Administration formally granted the license Nov. 21, ending a process that began under the Trump administration three years ago.The Sea Port Oil Terminal would be located offshore of Freeport, Texas, with a capacity of 2 million barrels a day.The project would involve two pipelines running through the city of Surfside Beach, where the City Council unanimously voted in opposition to the project in March 2020.  Greenpeace blasted the Biden administration’s approval of the terminal, pointing to an environmental impact statement published in July projecting the terminal would generate 83,000 tons of carbon emissions per year through the construction process alone, with a projected total of 219 million tons a year in downstream refining and combustion emissions.  The environmentalist group also pointed to President Biden’s recent attendance at the COP27 United Nations climate conference in Sharm el-Sheikh, Egypt, and the Biden administration’s stated commitment to cutting carbon emissions by 50 percent by 2030.  “When we say oil and gas companies are sacrificing communities to make a buck this is exactly what we’re talking about. We have less than a decade to cut emissions by half. Approving new oil and gas projects is not a bridge, it is an on-ramp to planetary collapse,” Destiny Watford, climate campaigner at Greenpeace US, said in a statement. “It is peak hypocrisy for President Biden and [Transportation] Secretary Pete Buttigieg to shorten the fuse on the world’s largest carbon bomb by greenlighting additional oil export terminals right after lecturing the world about increasing climate ambitions at COP27.” Read more about the approval here. Ukraine electricity rocked by Russian strikes Russia launched mass strikes on critical infrastructure in Ukraine on Wednesday, knocking out power across much of the country and causing temporary blackouts at power plants, Ukrainian officials said.  Ukraine’s Energy Ministry said the “vast majority of electricity” for consumers in Ukraine was disrupted after the shelling.Officials also reported a temporary blackout for all nuclear plants and most heating and hydroelectric plants, affecting millions of people.  The details: “There are some emergency outages happening. The lack of electricity can affect the availability of heat and water supply,” the ministry said in a Facebook update. “The power workers are already working and doing their best to restore power as soon as possible. But [given] the scale of the impact, it will take time.”  Russia has launched missile strikes targeting civilian infrastructure and energy grids in Ukraine since October following heavy losses in the war.  The Energy Ministry said despite the widespread blackouts, “Russia will not succeed in intimidating Ukrainians.”  “Ukrainians are not afraid of the cold. Ukrainians are not afraid of the dark. Ukrainians are not afraid of terrorists,” officials wrote in the Facebook post.  Wednesday’s strikes included 70 missiles, about 51 of which were shot down by anti-air defenses, according to a Telegram post from state grid operator Ukrenergo, which is working quickly to repair the damage.  Read more from The Hill’s Brad Dress.  TALES FROM THE CRYPT(O) New York Gov. Kathy Hochul (D) on Tuesday signed a law temporarily restricting cryptocurrency mining in the state over environmental concerns, making it the first state nationwide to implement such a move. The bill was delivered to the governor on Tuesday after the state legislature passed the measure in June, and The Associated Press reported that Hochul signed the measure.  The restrictions also come after the collapse of cryptocurrency exchange FTX, which has led to growing scrutiny of the industry.  But the New York law instead takes aim at the technology’s environmental impact, establishing a two-year moratorium on permits for fossil fuel plants used for cryptocurrency mining that utilizes “proof-of-work authentication.”  The technology, which is used for Bitcoin and other cryptocurrencies, requires large amounts of energy, and the law’s text suggests its use makes achieving the state’s climate goals more difficult.  Read more from The Hill’s Zach Schonfeld.  ON TAP NEXT WEEK Tuesday The Senate Environment and Public Works Committee is slated to vote on advancing nominees including (the many-times-delayed nomination of) Joseph Goffman to lead the EPA’s air and radiation office, Beth Prichard Geer to be a member of the Tennessee Valley Authority and Shailen Bhatt to lead the Federal Highway Administration.  Wednesday The Senate EPW Committee will hold a hearing on the Bipartisan Infrastructure Law and the private sector. Thursday The Senate Energy and Natural Resources Committee will hold a hearing on a large slate of energy bills.  WHAT WE'RE READING How China, the world’s top polluter, avoids paying for climate damage (The Washington Post) U.S. aims to sanction Brazil deforesters, adding bite to climate fight (Reuters) How the U.S. Abruptly Shifted Decades of Climate Policy (The New Republic) EPA skips stricter aircraft pollution regs (E&E News)  🦃 Lighter click: Go Turkeys!  That’s it for today, thanks for reading. Check out The Hill’s Energy & Environment page for the latest news and coverage. We’ll see you next week. 

Absent Federal Oversight of Animal Agriculture Safety, States and Others Step Up for Change

During his first few years in the country, Efrain, who has asked that we not use his last name for fear of retaliation from immigration authorities, never felt completely safe or secure in his job. That changed in 2018 when his current employer, a medium-sized Vermont dairy, joined Milk with Dignity, a program that sets […] The post Absent Federal Oversight of Animal Agriculture Safety, States and Others Step Up for Change appeared first on Civil Eats.

When he arrived in the United States from Guatemala in 2012, Efrain got a job at a dairy farm in Vermont. There, he slept on a wooden pallet on the floor of the calf barn because his employer didn’t provide housing. Two years later, when he slipped and injured his back on the icy steps at another dairy, he worked the remaining six hours of his shift, afraid of what would happen if he stopped. Injured and Invisible: Our InvestigationRead all the stories in our series: Animal Agriculture Is Dangerous Work. The People Who Do It Have Few Protections. Federal OSHA protections don’t apply to 96 percent of the animal agriculture operations that hire workers in America. When people die on the job, the federal agency doesn’t respond 85 percent of the time. ‘I Was Coughing So Hard I Would Throw Up’ Workers at the tens of thousands of hog, chicken, and cow CAFOs in the US face severe respiratory health burdens. The corporate response is risk management. Biogas Expansion May Compound Worker Risks Government incentives are driving larger, more crowded CAFOs—while protections for the workers inside lag behind. Tyson Says Its Nurses Help Workers. Critics Charge They Stymie OSHA. The company’s on-site care system is emblematic of risk-management practices that disadvantage workers farther down the supply chain. During his first few years in the country, Efrain, who has asked that we not use his last name for fear of retaliation from immigration authorities, never felt completely safe or secure in his job. That changed in 2018 when his current employer, a medium-sized Vermont dairy, joined Milk with Dignity, a program that sets worker-developed standards for wages, safety, housing, and scheduling, among other things. Now, the 30-year-old works alongside a few other hired workers. He is paid more, his schedule is stable, he has a full day off every week, and he can take paid time off when he’s sick. The whole feeling of work is different now, he said. He feels safe, comfortable, and supported. “Beforehand, they didn’t care about the conditions; you just had to get the work done however you could. There was nobody checking to see if you could do it safely,” Efrain said through a translator. “Now, it’s very different. They have to give you protective equipment, and if there’s not, you speak up and they provide it. They take measures to make sure we can work safely.” “I think the COVID crisis exposed the intense fragility of this industry. It started people asking how efficient is too efficient? At what point does efficiency become violence?” This a bright spot. In animal agriculture, where a budget rider exempts 96 percent of the operations that hire workers from federal Occupational Safety and Health Administration (OSHA) protections, innovative programs like Milk with Dignity—as well as a few states’ efforts to pass worker-centered legislation—are signaling that change is possible. They’re also proving it can be affordable for farms, too. While advocates have pushed to improve federal protections for years with only limited success, those worker-driven programs, as well as state-level innovations, have blanketed the nation in a patchwork of fixes. Even as federal changes lag behind, smaller-scale efforts are gaining momentum. “I think the COVID crisis exposed the intense fragility of this industry,” said Alex Blanchette, a professor of anthropology at Tufts University who worked in pork production to write the book Porkopolis. “It started people asking how efficient is too efficient? At what point does efficiency become violence?” A Worker-Developed Standard After years of pursuing protections for dairy workers in Vermont and New York, the immigrant-led organization Migrant Justice created Milk with Dignity, taking inspiration from the Coalition of Immokalee Workers (CIW), the tomato pickers from south-central Florida who developed the worker-driven Fair Food Program. Through Milk with Dignity, dairy farms can receive a premium for milk in exchange for complying with a code of conduct developed by workers. The Milk with Dignity Standards Council (MDSC) monitors compliance, audits dairies annually, and leads corrective action when needed. If working conditions aren’t up to standard—workers can report concerns without fear of retaliation. “This really takes that extreme power imbalance, upends it, and says to corporations, ‘The workers in your supply chain are now your business partners.’” Ben & Jerry’s became the first buyer to sign on to Milk with Dignity in 2014 after three years of negotiation and campaigning by workers, signaling the impact that corporate buy-in to worker initiatives can have. By last year, 51 dairy farms in Vermont and New York employed more than 200 workers to cover 100 percent of Ben & Jerry’s northeast dairy supply chain—all protected by Milk with Dignity standards. Participating farms are required to collaborate with workers on developing site-specific health and safety processes. Those include practices around maintaining and operating heavy machinery, avoiding repetitive stress and musculoskeletal disorders, handling needles and chemicals, managing animals, ensuring proper ventilation, weathering extreme temperatures, communicating during emergencies, and accessing safety data sheets. Additionally, farms are required to offer new employees paid training and provide them with personal protective equipment. “This really takes that extreme power imbalance, upends it, and says to corporations, ‘The workers in your supply chain are now your business partners—you’re signing a contract with them, where in essence, you are ceding power to them to determine the conditions in the supply chain,’” said Will Lambek of Migrant Justice. A farmworker education session led by Migrant Justice. (Photo courtesy of Migrant Justice) Tom Fritzsche, the MDSC executive director, noted that almost none of the farmers in the program had ever had their working conditions monitored before. “It can be uncomfortable to welcome an inspection and interviews with employees when that type of thing hasn’t happened before,” he said. The result has been big improvements. Since 2019, the program has conducted hundreds of education sessions and farm audits and developed 1,340 corrective action plans—all of which were agreed to by farmers. The 24/7 worker support line has also received more than a thousand inquiries from farmers and workers. Efrain feels fortunate to have landed at a farm where the human rights-focused program sets the standard. He no longer works 16-hour shifts, sleeps on the floor, or works for a supervisor who drinks and is difficult, like one of his first jobs. Now he is paid $875 a week, about double a prior wage. And where before, “There was no rest,” he’s now guaranteed a full day off every week. State-Level Innovation Many experts see the removal of the OSHA budget rider as key to protecting workers in animal agriculture from both short- and long-term dangers. But they aren’t optimistic its elimination will come soon. “You have to have the political will to bring these CAFOs [Confined Animal Feeding Operations] under regulatory oversight,” said Robert Martin of the Johns Hopkins Center for a Livable Future. In the absence of federal change, it isn’t just programs like Milk with Dignity that serve as models for innovation. Some states are also testing ideas and retooling worker safety protections—and showing what is possible. “Federal labor standards are abysmal in a lot of ways, but we do see more promise with states kind of leading the charge to improve conditions for workers,” said Jessica Maxwell, the executive director of the Workers’ Center of New York. “You have to have the political will to bring these CAFOs under regulatory oversight.” States can choose to adopt stricter standards than those set by the federal government, and some do. Thirteen of the 22 states and territories that run their own State Plan OSHA offices—including California, Washington, Oregon, Kentucky, Maryland, and Puerto Rico—do not observe the federal “small farm” exemption created by the OSHA budget rider. Because they allow OSHA oversight of farm operations that employ 10 or fewer non-family employees, they’re able to more closely supervise animal-ag workers. Additionally, 14 states—Arizona, California, Colorado, Hawaii, Kansas, Kentucky, Louisiana, Massachusetts, Nebraska, New Jersey, New York, Oregon, Washington, and Wisconsin—have passed legislation guaranteeing collective bargaining rights for farmworkers. And some states—including California, Colorado, New York, Oregon, and Washington—have passed laws that give agricultural workers more protections than federal standards, addressing issues such as overtime pay, minimum wage, meal breaks, and rest periods. In 2019, for example, New York passed the Farm Laborers Fair Labor Practices Act, which took effect in January 2020. It grants farm workers overtime pay after 60 hours, a full day of rest each week, and disability and Paid Family Leave coverage, as well as unemployment benefits and other labor protections. “We hear from workers all the time who used to work seven days a week who now do get that day off, that day of rest,” Maxwell said. And while the Workers’ Center still hears about workarounds—like farmers paying their workers in cash once they get over 60 hours to avoid the increased wage—she said, “in general, it’s had a big impact in terms of starting a shift. And that speaks again to why we need regulation, because that does start to create change on a bigger level.” Photo credit: Vera Chang Two states have also expanded OSHA’s powers through Local Emphasis Programs that extend OSHA’s authority in industry-specific ways. The programs began addressing worker safety in dairies beyond the federal standard in Wisconsin in 2011 and in New York in 2014. Both allow the agency to make random, unannounced compliance inspections. A study found they raised producers’ awareness of the workplace hazards and ways to mitigate them. “We certainly heard from workers at the time that they were getting training that they’ve never gotten before, that they were getting equipment that they’ve never had before—whether it was more appropriate length gloves, or boots, or even something as simple as an eye washing station in case of exposure to chemicals,” said Maggie Gray, a political science professor at Adelphi University in New York who studies low-wage, immigrant agriculture workers. To increase worker safety, she said, “Other states could also push for Local Emphasis Programs.” A Culture of Safety—What Farmers Say Has Worked As individual states enact worker protections, industry pushback often follows. “What you hear all the time is ‘You can’t do it, you’re going to kill the industry,’” said Maxwell of increased worker protections. But that isn’t true, she said. For example, while the U.S. Farm Bureau Federation and other industry players said lowering the overtime threshold in New York to 40 hours would devastate the industry, California’s success in implementing a similar threshold reduction proved the opposite. In a round of hearings in New York in January, California’s success “allowed us to make the argument of, ‘Look, the agricultural industry did not collapse. We don’t see a huge shuttering of farms; we haven’t seen a big layoff of workers,’” she said. “States moving on worker protection allows other states to show proof that the industry will not collapse when you provide worker protection like the ag lobby says it will.” Farmers and workers inside the Milk with Dignity program provide key insights into why worker-centered changes have worked. Matt Maxwell, who operates Maxwell’s Neighborhood Farm, a third-generation dairy in Newport, Vermont, enrolled his operation in the Milk with Dignity program as soon as it was offered in 2018. Before joining, the farm treated its workers well, he said. But he reported in the program’s first biennial report in 2020 that in adhering to the industry standard, the farm had unintentionally paid low wages and offered substandard housing. Milk with Dignity positioned the farm to increase its wages—and improved “both the business and employee sides of the operation,” he said. “Since joining Milk with Dignity, our farm has maintained an 85 percent employee retention rate,” Maxwell noted in the report. “Less turnover has led to higher morale and greater workplace continuity.” Photo courtesy of Migrant Justice. He said the program also enabled his farm to make huge strides in communication with its employees. “Where before we may have had a company-wide meeting once a month, now they are held weekly,” Maxwell said. “The increased interaction has been a benefit to us both. Problems are identified earlier and corrections made where necessary.” In addition to more open lines of communication, “everyone has a job description and has been trained on safety and procedural protocols.” Clement Gervais of the large, three-generation Gervais Family Farm in Franklin County, Vermont said the program helped his farm respond to COVID and better address safety issues, according to the 2022 Milk with Dignity report. In addition to coordinating employee vaccinations during the COVID outbreak, Milk with Dignity also helped create safety protocols, bilingual safety posters, and pamphlets for new employees. Like the Maxwell farm, the Gervais farm credits Milk with Dignity for improving its communication with workers. “That can be bridging the language barrier, or helping both sides negotiate conflicts if they arise,” Gervais said in the report. Overall, “Milk with Dignity has been a very positive program helping immigrant workers on my farm.” For workers, the energy at dairies just feels different in the Milk with Dignity program. “The bosses have more trust in our work; they aren’t always looking over our shoulders,” Efrain said. “I don’t know exactly what the Milk with Dignity people told them, but it’s really changed their mindset, whatever it is,” he said. “Now, I feel freer, I feel calmer, I feel safer at work.” Efrain explained the improved safety response. On a snowy morning before the Milk with Dignity program existed, he was leading cows in from a corral to be milked when he slipped on the icy steps of the milking parlor. “I didn’t feel anything other than the pain when I landed, just excruciating pain on my left side,” he said. He let his bosses know about his fall, he said, “but they didn’t really care.” Because there was no one else to fill in for him, Efrain felt he had no other option but to continue milking the cows. “To be honest, at that time, we all worked with the fear that if you couldn’t do your work, you would just get fired,” he said. “I couldn’t bend over, and I couldn’t turn to one side or the other,” he said. For the next month, he worked in a back brace—and finally started feeling some relief when a man came to his house to adjust his spine. When a broken metal gate fell on his foot at his current workplace, however, he was able to tend to his injury. His employer provided a first aid kit—and then paid time off to recover. “The protocols farms follow aren’t not cheap or easy, but farms are able to afford the changes through premiums paid on the milk.” Still, getting animal-agriculture companies to sign onto worker-safety programs has proven difficult, because human rights often fall at the bottom of companies’ priority lists. “We see focus on organic and environmental practices,” Jessica Maxwell said, “and workers’ rights have really lagged in terms of getting the attention that it deserves in sustainable agriculture. “Even Ben and Jerry’s, which is a progressive company, it’s not like they went out and created or supported a version of this program—workers did it,” she said. “We see it over and over again, that corporations consistently resist this sort of change.” Milk with Dignity is currently applying similar pressure to Hannaford Supermarkets to get the New England and New York grocery chain to sign onto the program for its store-brand milk. Although companies resist, the program has proven that farms are capable of complying with regulations when forced to, said Fritzsche of the MDSC. “The protocols that farms follow as a consumer protection measure are strict. They’re not cheap or easy to follow,” he said, adding the premiums farms receive through the program help them afford the changes. Changes at the Federal Level A concern among worker advocates about the state-centered approach is that it doesn’t reach workers in less progressive states. “At some point, we need that to shift to a federal level,” Jessica Maxwell said. Though most experts are also not optimistic that federal change will come soon, Martin of the Center for a Livable Future said the Biden administration’s approach to monopolies—including those that control the meat and poultry industries and promote an anti-regulatory agenda—is encouraging. “The source of most of the dysfunction in the animal ag industry is the concentrated economic and political power of the companies,” he said. “So, when Joe Biden says he’s going to look at antitrust and price fixing of the companies, that’s a good thing to do.” Martin believes there OSHA should meanwhile step up inspections and enforcement to make sure existing rules are followed until additional legislation to protect workers can be passed. This includes providing training and instructions for personal protective equipment in the languages that workers actually speak, not just in English, he said. “I don’t think any state is allocating enough financial and human resources to CAFO oversight,” Martin said. “It’s an across-the-board lack of oversight of these operations . . . [resulting in] a mistreatment of workers and the broader community.” A 2020 report on the agency in the American Journal of Public Health suggested OSHA can also benefit from more standards-writing staff and a nimbler process by which to update its health and safety standards. Many OSHA safety standards, created in the 1970s, don’t reflect the present, industrial conditions of animal agriculture. For example, 90 percent of the chemical exposure limits don’t account for the majority of the chemicals in the present-day workplace. Building Momentum, Pushing Forward Jessica Maxwell stressed that for improved regulations to be meaningful, however, the animal-agriculture industry needs to overhaul—and slow down—the way it operates, putting less emphasis on peak speed and efficiency. “Some of the ways we do our agriculture have become so unsustainable that it’s like we’re putting Band-Aids on,” she said. “We need more systemic change.” Dr. Athena Ramos, a professor at the University of Nebraska Medical Center and principal author of a 2018 study of swine confinement workers in Missouri, hopes that as systemic changes take hold, researchers can collaborate with willing producers to fine-tune solutions to safety issues, including workers’ chronic respiratory problems. Ramos and her collaborators recommend baseline health screening to assess respiratory health as people are hired, for example, so that workers could be assigned to job sites that don’t exacerbate preexisting health conditions, she said. Follow-up screenings throughout a worker’s tenure can help detect changes in health and further inform assignments. At right, Efrain, with his brother Ervin (at left), who works at the same dairy. Also pictured are Ervin’s wife and daughter. She also proposed farms conduct regular safety audits to check whether workers are using available personal protective equipment and donning it properly. And safety training—or safety messaging—should be offered throughout a worker’s tenure, in their primary language, by a qualified and trained professional—not just someone who happens to speak the language. “It’s about developing a culture of safety where worker health is prioritized at the same level as the animal health and well-being,” Ramos said. “Contract growers face tremendous pressures. But we’ve got to find a way that we can balance the productivity and the bottom line with worker health and safety.” For now, workers like Efrain take solace in their gains. Since the Milk with Dignity program increased his pay and days off, Efrain has been able to start enjoying his life more. His brother Ervin got a job at the same dairy a few years after he did, and Ervin’s wife was able to join him. The two recently had their first child. “Vermont has been a beautiful place to live, and every year has been different and new,” Efrain said. In the spring, “all the wildflowers come out, and you’re surrounded by flowers. It’s a very happy and pleasant area.” He recently bought a car and can now leave the farm with friends to play soccer. “I feel comfortable here,” he said. “I feel comfortable with the changes that have happened.” As workers realize success—at the state and local levels, and through industry-focused programs—momentum builds. “Workers see that they’re able to make changes, and then able to benefit from those changes,” Maxwell said. “And that creates momentum and empowerment to continue pushing forward and doing more.” “I feel comfortable here,” he said. “I feel comfortable with the changes that have happened.” Such worker empowerment is one of the most important levers for creating change, she said. “The most protected worker is an informed and educated worker who feels like they have the support to speak out and advocate for themselves,” said Maxwell. Another key is educating lawmakers—and consumers—about the conditions under which animal agriculture workers work. Changes come from people caring about the treatment of the workers behind their food and applying pressure to elected officials, according to Martin. “Politicians see the light when they begin to feel the heat,” he said, and, in this case, “the heat comes from political activity and organization.” Read the entire series here, our methodology here, and check back here for our follow-up reporting. Gosia Wozniacka contributed reporting to this story. The post Absent Federal Oversight of Animal Agriculture Safety, States and Others Step Up for Change appeared first on Civil Eats.

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