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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

What Do We Really Value? An Exploration Of Our Environmental Ethic  Posted: October 16, 2005
What Do We Really Value? An Exploration
of Our Environmental Ethic

Keynote Lecture For the 14th Public Conference
of the Filson Institute
October 14, 2005

I was asked to give a name to our conversation, and I said “ok, how about ‘What do we really value?’ For I have been struck, throughout the years, with the gulf between our professed values, and our actions.

Now firmly in my middle age, I can state with some certainty that we all arrive here naked and all leave in a box roughly the same size, and all end up in a hole about the same depth, with not a lot of room for extra “stuff.”

What we value gives meaning to this transient existence in between those bookends.

The popular historian Thomas Cahill, by way of illuminating the truism that history is written by the victors, explains the story of the gentleman who invited the lion to dinner, and graciously opened his mansion and fine art collection, which contained numerous historical paintings of humans victorious in mortal combat with noble lions.

When asked later his impression of the art collection, the lion remarked simply that “had lions written the history, lions would have fared better.”

Well, tonight, since I have the lectern it is, I guess, my turn.

The quote from the poet and philosopher Santayana, carried on a banner through the streets of Rome every year to commemorate the great shame of the city in failing to prevent the Nazis from detaining, imprisoning and murdering their Jewish neighbors, reminds the residents of the city that “those who do not remember the past are condemned to repeat it.”

Robert Fisk, a veteran Middle East Correspondent, reported on a document nailed to a wall in Baghdad read “to the people of Baghdad – we come here not as conquerors but as liberators, to free you from generations of tyranny.” Sound familiar? Well, it was actually written in 1917 during the British invasion of Iraq, which was soon thereafter followed by an insurgency that began in Fallujah, spread to Najaf, and found Lloyd George in the House of Commons defending the British presence explaining “If the British army leaves Iraq, there will be a civil war.”

Condemned to repeat indeed.

I was asked to reflect on the Kentucky's environment to keynote this important conference - to give an overview of where we've been, where we are and where we are going. I must confess that I am probably the last person you would want to give you "the big picture" on the state of the environment. As you are probably aware, the Kentucky Resources Council is a nonprofit environmental advocacy organization providing legal and technical assistance without charge to low-income individuals, to community organizations, and to local governments concerning air, waste, water, land use and resource extraction issues. For over a quarter of a century, I have been engaged in trench warfare on environmental issues, and it has affected my vision somewhat – I don't see the "big picture" clearly, but have a keen sense of what is right in front of my face.

In the interests of full disclosure, I have been involved in environmental advocacy for thirty-three years, and for the past twenty-five years I have represented low-income citizens, community groups and some communities in environmental matters in this Commonwealth - four as a legal aid attorney with the eastern Kentucky legal services corporation grantee Appalachian Research and Defense Fund of Kentucky, and the last 21 as director of the Kentucky Resources Council, Inc., a non-profit provider of free legal and strategic assistance on environmental matters.

My perspective has been forged, (some might say jaundiced) by my experiences with the underside of our economy, and particularly, our coal economy. I have buried one client who was crushed to death in a slurry impoundment collapse, and have watched the quality of life of many thousands of others suffer at the hands of coal mining operations, improper hazardous waste management, and from water and air pollution.

If the field of environmental protection can be characterized in gross terms as the adjustment of the rights and responsibilities as between those upwind and downwind, uphill and downhill, upstream and downstream, KRC represents those who live downhill, downwind and downstream, and who have borne disproportionately the adverse health and quality of life impacts of our economic and political decisions. The impacts should be internalized but are instead shifted off budget where they are paid, at dear cost, by those least able to bear them. The costs they are forced to pay come from our thoughtless, careless, indifferent expenditure of our natural capital – the building blocks of life, as if they were interest. They are costs borne disproportionately by disadvantaged people, by people without means and lacking political power.

No one ever calls me because they are having a good day – they call because they are in crisis – the things most precious to them – family, health, home - have been placed in jeopardy, and they are frightened and angry. And they have lost their faith. KRC exists to try to end the harm, to provide tools to prevent harm, and to restore their lost faith.

So with my disclosure, you can take what follows with a grain of salt. Let us turn to our topic for tonight.

In providing an overview from the Kentucky shores of the historic forces that have shaped the current conditions of the Ohio Valley environment, let me preface the discussion by noting that, unquestionably, during the intervening 35 years since the first Earth Day, we have improved in stewardship of our natural resources. The level of responsibility for management of wastes, for air pollution, for water discharges has been raised from the era when strip miners indiscriminately bulldozed family cemeteries over the outslopes of east Kentucky's mountains, and hazardous wastes were dumped into ravines at the Valley of the Drums. We no longer dig trenches and shoot drums of waste to dispose of them, as did the M&T Chemical Plant in Carrolton. Our major rivers no longer catch fire as did Ohio's Cuyahoga. Many of the major releases of pollutants into our air, land and water resources occur under controls contained in permits issued by state or federal agencies. Our tolerance for the most obvious abuses of the environment is less than in the past, and even the largest polluting industries seek to spin a "green" image.

Yet despite the progress that has been made in reducing the pollution loading, we have not kept pace with the needs in improving and safeguarding our air, water and land quality. It is only the most undiscerning person who could state with any confidence that our efforts have been successful in restoring the legacy of environmental damage, in preventing current damage, and in achieving a level of performance and accountability in resource use and waste management that assures that our children will have the choices that we have, and will have the quality of environment and life that we enjoy and take for granted.

While most people believe that the time in which they live is one of "great choices," ours is indeed a critical time in which we will, by design or by default, make choices in our economic and natural resource policy that will define the future of our state. We face growing natural resource development pressure and see evidence daily of the adverse impacts of that pressure on our private and public forest and agricultural lands, on urban air quality, on land and water resources damaged by oil, gas and coal operations.

Our farms face an uncertain future where loss of the traditional twin sources of financial support - tobacco and livestock, coupled with our cheap food policies, and increasing development pressures threaten the continued viability of agricultural communities as independent, small and moderate-scale operations.

The biological integrity of our streams, the quality and supply of our water, the productive capability of our forest and agricultural lands, the air quality of, and the quality of life in our commonwealth hang in the balance, depending on the wisdom of our decisions concerning regulatory and budgetary policy.

And at a time when we need strong, reasoned, bipartisan leadership, we are beset by corrosive partisanship. These are difficult days, days of deepening mistrust and disaffection of individuals for government, of growing rifts in the body politic between the haves and have nots, a time when the political center where responsible environmental policies have been forged has given way to environmental policies dictated by short-term scorched earth politics.

Kentucky is in some ways not that different from many of our sister states in the Ohio basin. We are one of 22 or so states that labor under the weight of a powerful and harmful myth that environmental quality and economic progress are in conflict and that too much emphasis on accountability for pollution is bad for business. We have enshrined in almost all of our major environmental laws the edict that we will be “no more stringent than” federal minimum standards, so that the federal floor has become our ceiling. We have not tended to lead in policy areas, which in the case of electricity restructuring was a blessing since the legislature and past administrations understood that the vast majority of Kentuckians would lose in a deregulated marketplace. We have heavily subsidized our extractive industries, both with direct financial subsidies, and with indirect subsidies in the form of burdens disproportionately inflicted on residents of the regions from which the natural resources are extracted, through which they are transported and in which they are burned and their wastes dumped. For many counties in eastern and western Kentucky, the state of the environment and the environmental history of the regions are inextricably intertwined with extraction of coal, oil and gas, and how the costs associated with that extraction, beneficiation and transportation are accounted for. Our “cheap” power has been paid for at dear cost by those living in the producing regions who have, in many ways, paid the tab for our failure as a Commonwealth to require that the producers and consumers of the resources pay the full price for the commodity and for the energy produced through the combustion of coal, oil and gas.

The price for cheap coal-fired power has been paid in life, in premature death due to occupational illness and avoidable workplace accidents, it has been paid on the roads where coal trucks, loaded by the producers, haul overloaded and overweight, it has been paid in the loss of security for individuals whose homes have been damaged by blasting, whose properties have been devalued and made unlivable by loss of water supplies, and whose peace of mind has been taken by fear of flooding made more likely and more severe by denuding of the forested watersheds up stream, and the alteration of stream channels for sediment control and mine waste disposal.

My first direct involvement in advocacy on mining regulatory issues was in 1973, but I had read of the ecological damage and human misery inflicted by contour strip mining even before that time. In the intervening 28 years since the adoption of the 1977 Surface Mining Control and Reclamation Act, there have been changes in mining practices, and some of the more blatant abuses associated with surface coal mining have been halted – spoil over the outslope, water damage without liability, routine flyrock damage to lands from excessive blasting, disturbance of family cemeteries. Yet even as the bar has been raised somewhat in what is expected of the coal mining industry in the management of the mining operations, we have failed and continue to fail to require anything approaching full accountability by the industry, in both ecological and human terms, and the short-term insular interests of the companies and their Boards and shareholders in maximizing profit are yet allowed to trump the public’s interest.

The next fifty years will see dramatic changes in how coal is extracted, processed and utilized by the handful of coal companies that control the lion’s share of the resource. As the pressure inexorably builds to isolate and sequester carbon dioxide, and as gasification technologies are more widely deployed, mine-mouth gasification plants producing electricity as well as fuels and feedstock for other products will become more common. Surface mining of coal in the eastern Appalachian coalfields will continue to decline as recoverable reserves continue to be depleted, and production will continue to shift in the east to underground mining and possibly to in situ recovery, and also to western coalfields.

The challenge for our Commonwealth today is to utilize existing tools in local, state and federal law, and where necessary to craft new tools, to demand full accountability from the industry for the footprint it leaves on land and water resources and on community safety and health. We have raised the bar from blatant abuse to a level where mediocrity in engineering design and execution is accepted, but that footprint, in terms of area disturbed and land and water resources diminished, remains much larger than it should or could be.

I appreciate the focus that has been given to the impacts of mountaintop removal. KRC views these issues in a slightly different screen – one of minimizing the footprint of all forms of mining – from the area mining operations in eastern and western Kentucky to the mountaintop removal operations, to strip contour, auger, and underground mines. We have failed – as a state, as a nation, to fulfill Congress’ vision – that mining would be a temporary use of land, that the mined land would be restored to beneficial uses, and that mining methods would be driven by proper planning and environmental protection rather than by profit. While the industry loves to blame others for its woes, the truth is that the industry, through its bottom-line, skating-on-the-edge approach to mining, to worker safety, and to social responsibility, has brought its woes on itself, and that the viability of the eastern coal industry in the short-term will rest on the industry’s ability to understand and resolve, not avoid and ignore, need for reform in areas such as hauling overweight, excessive and improper blasting practices, end-dumped fills, and damage to water supplies. Anyone with passing familiarity of the lay of the land in the coalfields would have to note the resurgence of vocal communities and coalfield citizens groups, fueled by anger at the scale of abusive practices as perhaps the most significant trend in recent years in the area of coal mining. It is not going to end until the practices are reformed. When Congress enacted the federal Surface Mining Control and Reclamation Act of 1977, it was concerned with the damage done from the dumping of earth and rock from mining benches into headwater streams in Appalachia.

In order to minimize the damage to land and water resources, and to restore the mined land to productive capability, Congress demanded that the earth and rock (called "spoil") be replaced on the mine bench and that the original contour of the mountain be restored.

An exception to this requirement to restore the approximate original contour was created, allowing the removal of all earth and rock material from over a coal seam (called "mountaintop removal") without having to restore the original contour if specific plans and commitments were demonstrated for development of the land for industrial, commercial, residential, agricultural or public use. Most of the mining operations that are viewed as mountaintop removal are not technically categorized as such – they are mine plans that use a combination of point removal, area mining and deep contour cuts, and produce similar ecological consequences without the promise of beneficial post-mining uses of value to the community and environment.

When I say that mediocrity in environmental performance is the rule in the coalfields, I mean this:

Where the law contemplates that the approximate contour of land be restored both in elevation and configuration, the agencies have ignored the elevation requirement, and allowed significant amounts of spoil material to be disposed of off-site in valley fills that should have been replaced on the minesite.

Where the industry norm was once the hauling and placement of spoil material in compacted fills, spoil material is now routinely disposed of in end or wing-dumped durable rock fills that are located lower in the watershed and are larger in area displaced than needed.

Where the federal regulation provides for 100-foot stream buffer zones to protect intermittent and perennial streams from adverse effects of mining on water quality and habitat, OSM has allowed the states to adopt disparate rules often ignoring those areas filled by spoil when applying buffer zones, and has proposed to further “enable” this destruction by eliminating the rule.

Where the Corps of Engineers regulations formerly banned disposal of spoil and coal mine wastes in streams for the purpose of disposal, for years that agency ignored its own regulations. Now, having changed its regulations to remove the ban on disposal of wastes, and requiring prior authorization and approval for disposal of spoil and coal mine waste, and sediment pond construction in streams, the Corps of Engineers has yet to take enforcement action against hundreds of mining fills, sediment ponds, and waste dams constructed in headwater streams without receiving Corps authorization.

In 1977, Congress made a clear choice – that the technology would follow, rather than dictate, environmental protection. Yet rather than utilizing smaller equipment more appropriate to the terrain and to careful management of materials, the industry has systematically replaced the workforce with larger machines, and has violated the spirit and letter of water and mining laws in order to, literally, move heaven and earth in order to maximize profit.

The time has come for a rededication to the principles of the 1977 mining law "to protect society and the environment from the adverse effects of surface coal mining operations" and to give effect to the mission of the Clean Water Act to "end water pollution". The state and federal regulatory agencies have the necessary tools to demand much more accountability in all forms of surface mine planning and performance – better mine planning with the goal of reducing the size and number of fills in valleys by enforcing both the aspect and elevation components of AOC to demand maximum safe retention of the soil and rock on the mined area and the use of excess material to reclaim abandoned mines through disposal on pre-existing benches, raising the bar on the requirement that the mining permit applicant demonstrate that the mine method, equipment selection and mine plan are all designed to minimize adverse environmental effects; requiring that disposal of spoil occur in a manner that through location, design and configuration minimizes and compensates fully for adverse impacts on the environment, including requiring constructed, compacted fills; prohibiting the construction of new high and moderate hazard coal waste impoundments, and requiring approaches to coal transfer from minesite to market to minimize disruption to communities and relieve stress on minor roads, among others.

How well the state and federal agencies, and the industry, respond to the need for improvement in these areas remains to be seen. The health of our state’s headwater streams, which are the most productive components of our river systems and play essential roles in delivering ecological goods and services, mitigating flooding, retaining sediments, attenuating nutrients, providing unique habitats for aquatic biota, processing plant and animal material into useable forms for aquatic life, hangs in the balance, and with it, the health of the Ohio, Kentucky, and Upper Cumberland River basins.

And it is not just the impact of coal on these streams, though its footprint in the headwaters is unparalleled. Headwater streams across the Commonwealth are threatened by an array of land use activities conducted with little understanding and less concern over the cumulative burden imposed on the riverine systems.

In the area of energy, our nation will inexorably be drawn into better control of precursors of global warming, for while some remain skeptical, the overwhelming weight of scientific thought underscores the very real and very disruptive impacts of global warming on the health and welfare of nations and their economies. The US will ultimately embrace strategies for significant reduction of precursor pollutants. The impact of those strategies on the combustion of fossil fuels will certainly affect the Ohio Valley states producing significant tonnage of coal and relying on coal for most of its electrical output.

Kentucky will be dramatically affected, for our economic prosperity – a prosperity that has not been universal in a state where abject poverty is still the norm for many and third-world living conditions are still all too prevalent, has been tied to our artificially low energy costs. There are a number of forces at play that will cause a greater internalization of those costs of extracting and combusting fossil fuels for power. How we become and remain prosperous and healthy depends on our ability to understand and our willingness to accept change, and our wisdom to craft paths towards success out of chaos.

The role of the research, applied technology and creative engineering in addressing these challenges has never been more important. The question is not only we can adjust technologically, but also whether the political and cultural environment within the business community and government has enough wisdom and commitment to address these challenges.

In the utility sector, our Public Service Commission has performed well the traditional functions of demanding reliability and nondiscrimination in service, and moderating the pricing of energy services for investor-owned and co-op utilities. But it is no longer enough. We have, as likely is the case in other states, a public that increasingly expects and demands the opportunity to participate in decisions concerning the siting of facilities and transmission lines, and which is very resistant to accepting the centralized risk of hosting a new generation of merchants plants while bearing the burden of pollution from the aging fleet of existing units that are not equipped with the full range of pollution controls. We expect cheap, reliable power and are more than happy to let someone else pick up the tab for those parts of the costs that we don’t pay.

As the Chinese call each year by a symbolic name – the year of the horse, or the dragon, this year promises to be for Kentucky the “Year of The Transmission Line” as we grapple with the impacts to landowners and the environment of constructing new lines across the state to support regulated and merchant units. A number of drivers will raise the cost of electricity from our existing fleet of coal-fired plants. The new mercury standards; the NOx SIP call; the recent call for significant reductions in the fine particulates air quality standard and the adoption of the new final California ozone standard – these trends portend higher costs of generation of electricity from existing plants as they retool to more fully capture their pollution, and will in turn make the costs of deployment of a new generation of plants more cost-competitive and attractive to investors.

With this challenge of increased electricity costs will come increasing pressure on state utility commissions to demand more accountability from the utilities for another historic “externality,” which is the assurance of affordability of basic service for fixed and low-income residents. Kentuckians have access to affordable utility service commensurate with their ability to pay. The prospect of sharply rising prices for essential service create a very real crisis that has profound moral overtones for any nation that calls itself civilized. Already an issue fraught with conflict and once historically considered by commissions as being outside of the scope of the ratesetting process, the increasing costs of power and the profligate waste of energy by Kentucky consumers in heating and cooling that has accompanied the artificially low pricing of energy, presents both a challenge and an opportunity to substantially increase end use efficiency.

If we are to craft a more rational energy policy, it must fully cost and fairly price energy by accounting for the ecological, health and safety impacts of the production and utilization of energy. The consumer cost of energy has not historically incorporated environmental and public health costs associated with combustion of fossil fuels, and instead those costs have been paid in public and occupational injury and health impacts, environmental degradation, water and air pollution, and loss of economic opportunity.

For the oil and gas industries, the sustained increases in prices have spurred new interest in exploration and production from both traditional and non-traditional sources. A number of challenges face an industry that is increasingly in conflict with local governments and landowners.

The production of oil, gas, coalbed methane, and other fossil fuels occurs under a regulatory framework that is inadequately protective of the rights of surface landowners and of groundwater and surface water resources. A mandate from 2003 that the state develop a comprehensive set of regulations protecting landowners and the public from impacts of oil and gas production remains unfulfilled by the state agency, even as record number of new well permits are being applied for in the Appalachian region. Despite its awareness of the contamination of land and water resources in certain oil-producing regions from elevated levels of naturally-occurring radioactive material (NORM), the state has failed abjectly in the development of regulations for remediation of contaminated properties.

In the area of energy conservation and renewable energy, Kentucky, and I would imagine other states have numerous incentives in law for use of fossil fuels – but where are comparable incentives and mandates if needed for utility investment in energy efficiency and diversification? End-use conservation measures and renewables are available today, at prices that are competitive but being ignored by utilities. For example, right here on the Ohio River, there are three new hydroelectric plants, FERC-licensed and ready to be built. But even though the costs of this power is competitive or even lower cost than coal, each utility in this region has developed a creative excuse as to why they don't want this power. These plants offer 240 MW of clean power, but no one wants it in an environment where tax credits are available to build coal plants and burn coal. The provision of incentives for electricity generation from fossil fuels through a tax and rate policy that favors lowest cost power but defines “cost” in a manner that skews and fails to require capture and accounting for the full range of costs, is indefensible, and will dig deeper the hole out of which we must climb when carbon restrictions are imposed.

Many states now have renewable energy portfolios. Texas and Virginia are the only Southeastern states on this growing list. There is a move in Washington for a national renewable portfolio, in order to get all the states on the same page. This same trend is beginning to happen with respect to CO2 emissions, and will have a significant impact on the southeastern states, and responding to the inevitable need to address CO2 should be part of the regulatory policy equation now.

Carbon emissions are the 800-pound gorilla in the living room that no one wants to acknowledge about in the hope that denying its existence will cause it to disappear. Our nation and our region will inexorably be drawn into better control of precursors of global warming, for while some remain skeptical, the overwhelming weight of scientific thought underscores the very real and very disruptive impacts of global warming on the health and welfare of nations and their economies.

The United States is responsible for some 22% of the world's CO2 emissions, with power plants, mainly coal-fired, responsible for 1/3 of US emissions. Stated alternatively, power plants in the US, mainly coal plants, and mainly in the Southeast, are thus responsible for over 7% of all the CO2 emissions in the world.

The impact of carbon reduction strategies on the combustion of fossil fuels will dramatically affect a state producing significant tonnage of coal and a region relying on coal for most of its electrical output. A new power plant built today will be in service for the next fifty years, and within that time frame, regulatory restrictions and potentially carbon taxes will be in place. From a climate change perspective, coal is the dirtiest fuel. For regulators to ignore this when new coal fired plant are proposed and alternatives are considered is irresponsible, and could lead to the Southeast becoming uncompetitive in the future.

We do a great disservice to the ratepayers and the industry if we fail to define carbon sequestration and reduction as a central benchmark in the choice of technologies for electricity generation. Putting our heads in the sand doesn’t make the problem go away, and leaves us all the more vulnerable to significant unanticipated costs.

Within the utility industry and in our regulatory framework for the utility and fossil fuel industries, we need a new definition of the “bottom line.”

Efficiency in terms of conversion of fuels and utilization, represents an area of significant potential. The artificially low cost of electricity and natural gas has historically dampened conservation measures and investment in efficiency. Investing in available energy conservation technologies that if deployed can create value, cut precursor emissions, and address the central consideration in our energy usage – the tremendous benefit of investment in energy conservation and efficiency in curbing pollution loading and controlling the rate of growth in energy consumption. The state can and should utilize both tax policy and its role as a “consumer” to affect the development and deployment of alternative fuels and of responsibly-produced power. In the agricultural sector, the challenges are no less pressing. With the dramatic changes in the markets for both tobacco and livestock, the two reliable cash producers have declined. It is not happenstance that Kentucky has had among the highest number of small and moderate independent farming operations, and the challenge facing rural Kentucky, and indeed the state, is how to grow markets, to invest in farm communities, to create a stable, environmentally responsible, sustainable agricultural sector in the state.

The rise of the corporate, industrial agricultural model in chicken, hog and other livestock operations in the state has had a corrosive effect on the fabric of rural communities, pitting neighbor against neighbor, and rural towns against adjacent farms. The concentration of poultry and livestock on feedlots brings attendant air, waste and water pollution problems, and replaces independent farming operations with a contractual production model in which the control and financial gain is concentrated up the chain and drained from communities while the risks and responsibility for adverse environmental impacts are shifted to the backs of the individual contract operators. Providing for a more sustainable, locally-owned and locally-operated agricultural model, will depend on the wisdom of both state and local governments, and on you as consumers.

Another issue of significance is the legacy of waste mismanagement. We have thousands of sites across the state in which hazardous substances were released, uncontrolled, into the environment and have contaminated land and water resources. Among these is the category of former industrial or commercial sites known as "Brownfields," ranging from mildly contaminated to superfund-eligible sites, and hundreds that are under the current control and ownership of the companies whose previous activities caused the contamination. In the area of hazardous waste management, the past decade has seen a steady drumbeat from industry to lower clean-up responsibility, to make less conservative risk assumptions, and to erode accountability for improperly disposed and poorly managed wastes. There are profound scientific and moral issues associated with remediation of contaminated properties, and we have succeeded in hammering out consensus in the regulatory framework for assuring that these sites are returned to productive use while protecting human health. Yet central in the “brownfields” strategy is the idea that some of the cost of non-remediation of the contamination, by leaving properties less than cleaned and “managing” the wastes in place through paving over and fencing off areas, is the reality that we are passing those costs to the next generation, who will have fewer options in the uses of that land unless they pay the costs that we knowingly failed to.

The budgetary and systems management situation within the regulatory agencies must be addressed. It would be difficult to overstate the importance of the budget to environmental quality. In order to assure that energy development, transportation, conversion and waste disposal are properly managed to minimize impacts, agencies must have the resources necessary to fully implement and administer environmental and workplace safety and health programs, and systems for managing compliance, permitting and enforcement information must be such that they facilitate rather than hinder effective delivery of the investigative, licensure and enforcement functions of those agencies. Those advances that have been made in many areas – from natural resource management to protection of our natural heritage, from underground storage tank cleanup to reclaiming abandoned oil and gas wells, have been jeopardized by budgetary policy decisions at the federal and state level.

Air toxics and urban air quality remain significant concerns. Here in Jefferson County, in response to multi-year monitoring reflecting a score of air toxics above acceptable risk levels, the local air pollution control district developed an air toxics program using authority, under state law, to depart from state and federal minimum standards and timetables in order to craft a toxics reduction strategy that would accelerate reductions in these toxics from major stationary sources. Predictably, a bill has been prefiled to strip the community of its authority to set standards sufficient to protect the public health.

In land management, our future is no less challenging. We certainly are an interesting and dangerous mixture at times of arrogance and ignorance in our manipulation of our physical environment. We are, as Paul Ehrlich once noted, in a spaceship hurtling through the universe, pulling out the bolts of species diversity and ecological health from the ship's hull and discarding them one by one. In our unrelenting pursuit of creature comfort, we upend heaven and earth to get at natural resources, pave and widen more roads to move more quickly from one place to another, fill floodplains, wetlands and river headwaters to reshape the face of the earth to our whim, simply because we can. In this community, and probably elsewhere, we punctuate our destruction of habitat and conversion of farmland and natural areas with a flourish of contempt, naming the development for the prominent natural features we drained, ditched or obliterated to make way for the development.

But our great challenge lies not in any particular industrial practice. It lies in ourselves – in our inability to envision that we are and can be better than we've become. We are so used to being a cheap date – a state whose attractiveness to industry has been a combination of rock-bottom environmental standards and cheap power -- that we have a hard time envisioning ourselves otherwise. The tension between the new economy and the old, between community health and our unquenched desire for cheap power and the efforts by those who stands to profit in the short-term to advance the interests of the Kentucky extractive industries over the public interest, is unrelenting. Our greatest challenge in protecting Kentucky's natural resources is to change a mindset that doing the bare minimum required of us is a fit legacy for our children – to become firmly and creatively intolerant of environmental injustice and of mediocrity in our management of our environment.

Our public policy and that of a number of sister states has been driven for many years by a powerful myth – that environmental quality is at odds with economic progress. We have enshrined in each of our major environmental laws the NO MORE STRINGENT policy – converting national minimum standards, adopted in order to prevent states from racing to the bottom, our maximum standards, shackling us to the bottom rung of environmental progress. We wear it like a badge of honor.

Quite a legacy – not that our kids need any more reasons to resent adults, since they are kids, after all, but when they look at you and ask, “what did YOU do to assure that we would have the same options that you had, I would hope that we could to better than “we did the bare minimum required of us, and we made that our state policy!”

We starve the budget of the agency sworn to protect the very building blocks of our states health, and wonder why it is that many of our rivers are unsafe to wade or swim, and why the air quality in our state's largest city continues to injure public health each summer.

Well, here’s a newsflash: You cannot build a healthy economy with an ailing environment. You cannot expect to create a healthy economy while failing to invest in public health and environmental protection.

After a brief period of bipartisan effort in the late 1960’s and early 1970’s culminating in major federal initiatives in air, land and water protection, the federal framework of environmental protection has been chipped away at systematically since the advent of the Reagan Revolution made the environmental a wedge issue.

Bill Moyers, lamenting the loss of the optimism and momentum of the early environmental movement that saw so much progress in adoption of air, water and land pollution laws in the early 1970s, told the Society of Environmental Journalists at their recent Austin convention that “the threat to the environmental movement comes from the predatory power of money and the pathological enmity of right wing ideology.” And while that is certain true, the environmental movement has done its fair share of inflicting flesh wounds in its own lower extremities by focusing on “retail” issues and failing to understand the necessity of reforming the institutions of governance.

The environmental community has been slow to learn the linkage between policy and politics. (Sarah Lynn Cunningham noted that in German, “politik” is defined as politics, policy and strategy). We fail to grasp that when elections are bought and paid for; when we who grew disaffected in the wake of Watergate and Vietnam disdain a career in public service and in elective office as being for chumps, when a void is created through the non-engagement of people of good will in the political process, mediocrity in governance is too often the outcome, and injustice in all of its manifestations is inflicted on the poor, on children, on the environment, on the health of communities.

It has been, in many ways, a pretty grim 30 years for environmental policy, with some notable exceptions. We have seen the elimination of the precautionary principle of medicine and instead we place the burden on the agencies to justify why the public’s air, land and water resources should not be contaminated. Hamstrung by budget cuts, obstructed by OMB and laws designed to undercut sound science in favor of political science, EPA is unable to effectively regulate the witches brew of potentially toxic chemicals that are used and released in products and as wastes.

We have seen an erosion in polluter accountability, brought on in no small part by our unwillingness to pay our bills for the contamination that has occurred due to our mismanagement of industrial and municipal wastes.

Where formerly the rule of law was that if you contaminate land, you clean up your mess, we have eroded that accountability and shifted the cost of cleaning up the mess to the public and in particular, to future generations. We profess to value children, yet saddle them with the costs we refuse to pay as the bills for our lifestyles come due.

Where our goal was to end pollution of air and water, we now have stalled, reducing our agencies to licensing degradation rather than setting the bar higher to keep pace with the need and our capability. We set standards based on an unwritten presumption that a certain degree of pollution is “acceptable risk” for unconsenting, unknowing exposure to kids, elders, and the rest of us.

We aspire to a healthy environment, even to the point that the polls consistently show that environmental protection is favored even over economic growth (as if that were a real choice), yet we accept so much less as public policy and in our elected officials.

In a speech some time back at the Cathedral, Robert Kennedy Jr. that we as a species were “hardwired for destruction.” With due respect, I cannot accept that fatalistic, that mechanistic a viewpoint, because I have seen in Kentuckians over these past 35 years, an occasional glimpse of something very different. While it is true that we have not tended to lead as a general matter, we have lead when we felt put upon – a strong undercurrent of resentment at being dumped on occasionally wells up and produces progressive policy. I have seen enough progress from people of good will working together to have faith that we can do the heavy lifting that remains.

At the heart of the problem, I fear that we have lost something dear. We have lost sight of the importance of civic engagement, and have all but accepted as the highest of all virtues the aggrandizement of wealth, the accumulation of the “mountains of things” that Tracy Chapman sang of. Where is the sense of common purpose, of shared sacrifice that carried our parents through the depression and through the Second World War?

In The Death of Common Sense, the author laments mightily the sense of “entitlement” that he believes has helped to ruin the nation. In a way he might be right- yet it is different sense of entitlement that I believe presents the real threat – an Orwellian recasting of the relationship between the individual and the larger society that has a corrosive effect on community and ultimately, on our very souls.

A movement grounded in a distorted conception of “takings” jurisprudence, has advocated grinding the mechanisms of government to a halt in the fields of environmental protection, workplace health and safety standards, by forcing the government to pay for any diminution in the value of property necessitated to protect public health, safety or the environment. The Pombo Endangered Species bill, for example, supported by all members of Kentucky’s Congressional delegation save one, would force the Fish and Wildlife agencies to essentially pay for the privilege of preventing destruction of T&E species and their habitat. Where has it ever been written that any individual has the right, not the power but the right, to hasten the destruction of God’s creation in order to increase profit from land conversion?

Where is it written that the ability of any individual to exploit private land is paramount over restraints for the common good (and ultimately, for the individual good)?

Why is it the responsibility of government to defend imposition of controls on a polluter’s ability to appropriate public air, land and water for their waste disposal?

Across the board, the principles of ending pollution and of protecting the “commons” - the building blocks of a health society and healthy economy - have been under unrelenting attack for 35 years after a brief period of consensus legislation that established as goals for a nation the end of pollution and the consideration, in all undertakings funded, licensed or overseen by the federal government, the prevention of avoidable harm. This concept of “entitlement to pollute” is anathema to public health and community well-being.

So, what do we value?

Former Governor Patton framed the challenge in the presentation of his environmental agenda to the 2002 General Assembly: “Those things we hold dear about our state - the unique beauty of our landscapes, prime farmland, wildlife, recreational opportunities- have become even more important. As have our small towns and large cities, which offer citizens a sense of community and a high quality of life.

These qualities will determine our ability to compete for quality jobs in the new economy of the 21st century, where technology allows companies to locate virtually anywhere. Those areas that offer a high concentration of skilled workers and are attractive, clean and have a high quality of life will be the most successful.”

I believe firmly that we are up to the task of reforming our energy and environmental policies in order to reinfuse them with the concepts of accountability, justice and survivability, and how we get the job done.

We can make a cleaner Kentucky, by being more accountable in the waste we generate and demanding that those who contaminate land and water resources bear the full cost of cleaning up, not hiding, paving or masking, their mess.

We can make a safer Kentucky, by requiring that those who store, manufacture, transport and use hazardous materials reduce their reliance on those materials and in so, reduce the risks to host communities. Homeland security comes from risk reduction through decreased reliance on hazardous chemicals, not from duct tape, plastic and depriving communities of the right to know of the chemical risks posed by their industrial neighbors. We must demand that environmental agencies be fully funded, not as an afterthought, and not on a starvation budget but at a level sufficient to assure that environmental laws and permits are fully enforced.

We can make a healthier Kentucky, by investing our consumer food dollars in locally owned, healthy agricultural products providing Kentucky farmers with fair prices for their product. We need to eliminate tax breaks for industrialized farm operations that feed and house livestock and poultry in confined conditions, support expanded programs for conservation of agricultural lands. We should impose, through current regulations and the state permitting process, full accountability for air, land and water impacts of these operations and their wastes and wastewaters. Full accountability includes: refusing to allow corporate integrators to shift the burdens of the unsustainable method of livestock production onto the back of the farmers. It means full accounting of all air, land and water impacts. There are pending today before the Cabinet nine permits seeking to construct and operate industrial hog feeding operations in Hickman and Fulton Counties. We must adopt and revise state policies to protect and conserve our agricultural land base and to encourage the next generation of small, diversified farms. Remove barriers that prevent locally-grown, healthy foods from competing in the marketplace on a fair basis.

Agricultural operations are the heart of real “homeland security” and have, and will again, be the source of not only food but a range of good, products and services that the petroleum economy has been providing at far greater ecological cost for the past century. George Washington Carver once observed:

I believe that the great Creator has put ores and oil on this Earth to give us a breathing spell…as we exhaust them, we must be prepared to fall back on our farms, which are God’s true storehouse. We can learn to synthesize materials for every human need from things that grow.

Some 20% or more of the GNP is state and local government purchasing. Let’s use that market clout! Urge adoption by the institutions of which you are a part – church, school, civic organizations, city, county and state government, of policies supporting fair and healthy food purchasing policies that place a premium on healthy food grown and produced in a responsible manner. Urge city, county and state governments to explore incentives and disincentives that affect the market share of such produce and livestock.

Talk it up, where you shop, where you work, where you eat. “Excuse me, but is this food purchased locally and grown or produced responsibly?”

As educators, (and are all educators), we can learn more about the “footprint” of our food and teach our families, our friends, our children, and our leaders to value farms, farmers and community.

We can make a more robust Kentucky by investing in clean energy - - in renewable hydro, biomass, wind and solar energy; in net metering, in requiring that fossil fuel combustion occur under the most stringent controls and that the choice of fuels fully account for the life-cycle costs from extraction to disposal. We create direct and indirect subsidies for combusting Kentucky coal – where is our public investment in harnessing Kentucky's sun and wind?

I look around this audience, and I see the collective hundreds of years of potential energy, and I have no doubt that you; that we are up to the task. But we’ve got to get busy. Our recent environmental history is replete with examples of how people of good will can become so much more when working together as co-conspirators for positive change:

-the 1991 Solid Waste Law Reforms, which melded farm, rural economic justice, and conservation groups into a potent coalition;

-the KFTC campaign, employing effective use of the media and personal witness, to end the broad form deed, and the coalition of legal talent, of which I was privileged to play a small role alongside my mentor John Rosenberg and other colleagues;

-extending permanent protection to Black Mountain's peak, which coupled the legal support of KRC with the courage and the vision of Harlan County activists;

-protecting the Pine Mountain Settlement School; which required the efforts of thousands of supporters, legal support from KRC, and the courage of Robin Lambert, Robert Gipe and the Harlan County KFTC Chapter; among many other examples.

We must become less “retail” and more focused on the institutions, on the economic policies, on the politics that create such a disconnect between what we profess to value and believe, and the policies of our elected officials and business leaders.

How do we get there? How do we build a more sustaining, a more just political and economic environment?

As Mother Teresa told the interviewer who wondered how she persevered in the face of overwhelming need – "one soul at a time" beginning with our own. Never despair that your efforts are too small; too little to make a difference.

Act on your values. Reflecting on a life of advocacy for children, Marian Wright Edelman penned this prayer:

God did not call us to succeed, but to serve. Not to win, but to work. Not to be happy, but to be hopeful. Not to fame, but to faith. Not to seek power, but to seek peace. God did not call us to loot the earth and each other, God called us to love our earth and each other.

Whether it is a secular belief in the importance of service and the inherent value of each life or one grounded in faith, it is nothing without action.

Develop relationships with “others” and understand their languages and the commonalities of shared core values. We must build real bridges based on common values, with others who may not share our beliefs or approach those values from the same path. Moyers noted with interest what Cal Thomas noted with panic – that among many of the leaders of the 50 million who categorize themselves as evangelical Christians, there is a growing belief that, to quote the National Association of Evangelicals that our Bible “implies the principle of sustainability: our uses of the earthy must be designed to conserve and renew the earth rather than to deplete or destroy it.” Evangelical leaders like Rev. Jim Ball of the Evangelical Environmental Network, are standing up to demagogues like Dobson, Falwell and Robertson, and that grassroots movement is, at the heart, aligned with the secular environmental and environmental justice movements. It will require respect and dialogue.

What I found most delightful in Moyers speech was his example of Noah as an example of a moral man acting on his convictions to conserve diversity and preserve God’s creation in the face of a flood of consumerism and indifference by a materialistic world. His imagining of Noah being called a “doom and gloom environmentalist” for attempting to alert his community of the impending ecological disaster, resonates through the millennia as concerted corporate efforts to discredit honest science and to vilify and marginalize those urging conservation and caution, are replayed in our day.

Build coalitions with others grappling with justice issues in all forms.

Take the plunge into active volunteerism.

Work for reform in governance. When offices go to the highest bidder and the wealthiest candidate, decisions reflecting the broader public interest over the insular interests of those investing in the candidates are rare. When we aspire to mediocrity in governance, when democracy isn't working, the poor, children, the environment, the public's interest suffer. As we go forward together, we must remind ourselves always that accommodating injustice never made the unjust more just.

We've got to jump in. Roll up your sleeves and run for office. Quiz candidates on their environmental platforms – support those who stand for improved environmental quality, and oppose those whose records justify that opposition. Go door to door for those who share your values. Educate those candidates who don't.

Hold your elected officials accountable. The current Administration has embarked on a concerted campaign to roll back environmental and worker safety protections, and substantially cutting research for renewable and efficient energy. Environmental policies should be the defining criteria for your votes in 2005 and beyond.

Bear witness, risk being thought a fool, lest your silence in the face of injustice be regarded as complicity. Speak truth, always. Even when it is inconvenient. We must reconnect our policies with our moral values. Our failure in stewardship of natural resources, and the careless and at times horrific damage inflicted on nature in war and in peace, reflects a moral crisis. Our policies must be driven by values more enduring and more robust, than the quarterly bottom line.

Mentor. Sit at the feet of those who came before you, and mentor those who follow. Learn from the past in order to make sense of the present and to inform the future.

Be intolerant. Just as accommodating injustice never made an unjust person more just, tolerating mediocrity in environmental pollution never made a polluting industry or an indifferent politician more responsible.

Finally, if you haven’t joined the Filson Historical Society, you should. Filson plays a critical role – through collecting, archiving, and making available the historical record of the Ohio Valley and Kentucky, it brings to life and connects the past with the present in order to hopefully illuminate the options for the future.

Let me close with a reflection from Protestant theologian Reinhold Niebuhr, wrote these words in the early 1950's at a time like now when, it is at times difficult to find evidence that we have made progress in those things that matter:

Nothing that is worth doing can be achieved in our lifetime, therefore we must be saved by hope. Nothing that is true and beautiful or good makes complete sense in any immediate context of history; therefore we must be saved by faith. Nothing we do, however virtuous, can be accomplished alone; therefore we are saved by love. No virtuous act is quite as virtuous from the standpoint of our friend or foe as it is from our standpoint; therefore we must be saved by the final form of love, which is forgiveness.

Let us aspire to be less acquisitive, less aggressive in our relationships with each other and our environment. Let us face our tomorrows with hope and humility and continue together in struggle and in fellowship to improve the environmental legacy we will leave.

Enjoy the conference, and thank you for having me here this evening.


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