Sea Level Rise in New Jersey: The Effects that it has on the State and its Peoples

Abstract

This paper will discuss sea level rise along the Mid-Atlantic, specifically New Jersey.  A state ravaged by Hurricane Sandy, climate change and sea level rise has become a heavily discussed topic within the state and the local and state level.  Many New Jerseyan’ s have neglected to even think about this issue, but after the disaster that has caused billions of dollars in damage, climate change and sea level rise have taken the reigns as one of the most talked about issues in my home state.  I will also discuss recent studies that have discovered new estimates in sea level rise in New Jersey, as well as possible solutions to the problem and what the future may look like for New Jersey, the Mid-Atlantic and the world as a whole.

Introduction

New Jersey is my home state and I have spent most of my childhood and every summer at the Jersey Shore.  I have countless memories of waking up early to go to the boardwalk for breakfast with my family, going to Surf Street beach during the days, riding my first surfboard, the amusement parks at night and the saltiness in the air that one will always remember.  These memories were not exclusively mine, but were shared by millions of families. 

Other than the popular MTV show, “Jersey Shore”, New Jersey is well known for many other things: accents, its pristine beaches and nationally rated coastal communities, Wawa (a convenience store), a corrupt state government, Bruce Springsteen and of course, its population.  New Jersey is the most densely populated state in the nation.  As of now, there are currently 8.8 million people living there (Census, 2012).  Of that, as of 2012, 5.5 million people live in the coast counties, which make up 11 of its 21 total counties  (Census, 2012).

Hurricane Sandy brought many things to the New Jersey and the Mid-Atlantic: widespread devastation, coastal erosion, immense flooding, power outages lasting weeks, and hundreds of families that lost their homes.  All of this added up to tens of billions of dollars in damage.  Of course, there is one thing that cannot be labeled with a price, the loss of 100 plus lives. 

In the wake of Hurricane Sandy, climate change has been a heavily discussed topic in politics, the media and by many New Jerseyan’s.  For as long as I can remember, sea level rise and climate change were rarely ever talked about in my state, at least among the citizens.  In the past few months, not only are more people discussing climate change, but they are demanding action be taken by Governor Chris Christie and President Obama.  Unfortunately, climate change is not a new phenomenon and the call for action may be coming a tad too late.  With UN and independent research constantly being done on climate change and the sea level rise that will occur as a result, it seems as if possible scenarios continue to look worse than the previous models. 

Data and Methods

New Jersey is a relatively low-lying state, and is very low lying in the Southern half of the state where the famous Pine Barrens are located.  Most living in New Jersey know that the Pine Barrens, known as “Pinelands”, is the largest pine barren complex in the world ("New Jersey Pinelands.", 2012), but not many know exactly how the Pine Barrens were formed.  The soil, that early settlers found to be nutrient-poor, was deposited on the ocean floor during the Miocene period 13-15 million years ago ("Pinelands Soil Background.", 2012).  At a time when sea levels were much higher, most of, if not all of, New Jersey was under water.  The true significance of the Pine Barrens is the sandy topsoil that resembles the beaches just miles away and that plays an imperative role in the filtration for the aquifer that lays just beneath it (“Pine Barrens…”, 2012).  Geologists and climatologists believe that this formation was created Pleistocene Epoch.  During this period of time, there were multiple glacial expansions and recessions.  As glaciers moved south, they carried grounded sediment and sand from the north.  Due to a terminal moraine that runs horizontal across Southern New Jersey, this sediment carried by the glaciers was deposited in the area now known as the Pine Barrens (Sheridan, 2005).  This formation plays an integral role in the climate change effects currently taking place in New Jersey, as well as the significant sea level rise that could follow. 

Since the early to mid-1900’s, New Jersey saw a population boom; after World War II, people flooded to the barrier islands in search of beachfront properties.  During this period, the towns of Ocean City, Sea Side Heights, Atlantic City, Long Beach Island and Cape May, were developed and from then on, would forever change the socio-economic status of New Jersey.  In addition, unforeseen environmental and ecological barriers were developed.

Barrier islands are natural geologic formations developed from the erosion of beaches over hundreds of thousand of years.  With time, barrier islands actually move closer and away from the shores of the coastline.  This process is called barrier island migration.  Barrier islands’ main purposes are to shield the coastline from violent storms, such as hurricanes, that may threaten the coast.  As humans develop on these islands, they not only put themselves at risk of violent storms, which is what was seen with Hurricane Sandy, but they also prohibit the natural process of barrier island migration with the constant dredging of beaches to prevent erosion. 

As climate change progresses and the earth gets warmer, ground ice will melt and make its way into the ocean, causing global sea levels to rise.  Science proves that this is inevitable, but what is unknown is by how much seas will rise.  For a low-lying state such as New Jersey, as well as for the majority of the states in the Mid-Atlantic, it is quite easy to understand what sea levels were like hundreds of thousands of years ago, which can be used to project what may happen in the future.  The Pine Barrens prove to be a useful tool for scientists as this area was underwater just a few thousand years ago. 

Sea level rise, environmentally speaking, is one of the top threats to New Jersey.  With over half of its population living in the coastal communities, and with over 1 million people living on the barrier islands, natural disasters, like Hurricane Sandy, have sparked the government to plan for climate change and sea level rise.  In a recent article published by Nature Climate Change titled “Sea versus Senators”, author Leigh Phillips discusses a startling find that scientists have found recently that may be reason to take sea level rise seriously in New Jersey.  According to Asbury Sallenger, an oceanographer for the United States Geological Survey in St. Petersburg Florida, sea level rise along the Mid-Atlantic region of the United States is rising at a rate 3 to 4 times greater than the global average (Phillips, 2012).  Specifically, Sallenger noted that since 1980, the sea level for the Mid-Atlantic (between North Carolina and Massachusetts) has risen 2.0 – 3.7 centimeters (3/4 to 1.5 inches).  Sallenger believes that these increased rates of sea level rise could be to changes in the North Atlantic Gyre, a circular rotation of water caused by numerous currents in the North Atlantic.  With more freshwater entering the North Atlantic, the changes that this freshwater could cause to the North Atlantic Oscillation may result in a weakening of the Gyre causing sea level rise which may be higher than the global average.  He also states in his piece, “These low levels could rise with warming and/or freshening of surface water in the sub-polar north Atlantic, where less dense water inhibits deep convection associated with the Atlantic Meridional Overturning Current (AMOC). The AMOC weakens and pressure gradients along the North American east coast decrease, raising sea levels” (Sallenger, 2012).  At this rate, Sallenger believes that the Mid-Atlantic could see a 30-centimeter addition to the already one meter global average sea level rise by 2100.  This 1.3 meter, or 4.25 foot, rise would inundate the many of the barrier islands, as well as much of the coastal counties of New Jersey. 

This of course is one model out of the thousands that are run every year.  The United States Environmental Protection Agency also released a study in which they provide a “best-case” and “worst case” scenario for climate change, temperature change and sea level rise.  They calculate these models based off of possible carbon dioxide, the leading cause of global warming during our lifetime, emissions from the present until 2100.  Based off of the carbon emission trend from the 1960’s into the 1970’s and a continuation of lower levels of carbon emissions, the United States could expect to see an average temperature increase of 4-6 degrees Fahrenheit, with a 6-10 degree increase in Alaska.  In the higher-level emissions model, the entire country will see an 8-10 degree increase with all of Alaska experiencing a 10+-degree increase by 2100 (EPA, 2012).  Similar results are found when these measurements of emissions are applied globally.  Low-level emissions will result in a 6-10 degree increase for much of the Northern Hemisphere and an 8-10+ increase using the high-level emissions model.  Something not shown in these models was ice melting from the regions of Greenland, Antarctica and other glacial formations.  In these regions, using low level emissions testing, Greenland and the northern part of the North Hemisphere would see an 8 degree average increase by the end of the century and a 5 degree increase in Antarctica.  These temperature increases are significantly different when applied to the high emissions test in which Greenland and the northern part of the Northern Hemisphere would see a 10-14 degree increase and Antarctica would see an 8-10 degree increase.  As a result of the high level model, in which nations such as China and India would continue to emit continuously higher levels of carbon-dioxide and the United States and the other top 10 emitting nations would barely cut back emissions or stay on pace with current emissions, the average 1 meter global rise in sea level could turn into a 6 meter (~20 feet) rise if just Greenland were to loose most of its ice and an unimaginable 60 meters (~200 feet) should Antarctica lose all of its ice.  This is the worst-case scenario (DOSEWPC: AAD, 2008).  Of course if all of Antarctica were to melt, all of Greenland, as well as all frozen ground ice, would melt as well.  Scientists are not ruling this out, but do consider this to be highly unlikely to happen by the end of the century.  But on a continuation of the current societal path, this scenario very well could happen at some point into the next century.  Should this happen, not only would the entire state of New Jersey be hundreds of feet underwater, the entire map of the world would have to be redone and almost every metropolis in the world will be gone, displacing billions of people inland

Aside from the apocalyptic scenario just presented, New Jersey would be still be severely threatened by the more likely, and expected, 2-4 meter rise in sea level by 2100.  Inundated regions will cause billions of dollars in damage as well as forcing hundreds of thousands, if not millions of people from their homes forcing them to relocate.  Geology.com has produced a model to show how sea level rise would affect New Jersey by showing the flooding that would incur from different rises in sea level from 1m to 60m.  Figure 4 shows New Jersey at present sea level and what the state would look like from a 4-meter rise in sea level, which is on the higher end of the more likely scenario.  In addition to the inundation of the barrier islands that would be uninhabitable, the inlet regions of the state in major population hubs – such as Toms River, Brick, Galloway Township, Egg Harbor Township, Camden, Gloucester City, Hoboken, Wall Township, Red Bank and Perth Amboy – would all suffer heavy flooding (Tingle, 2012).  A very concerning aspect of this sea level rise is the possibility of the flooding of the Salem Nuclear Power Plant in Southern New Jersey.  This power plant lies on the Delaware Bay and would be entirely underwater should a 4-meter rise in sea level occur.  Aside from a shutdown of a major source of energy for this area, there is the obvious concern of the safety hazards when nuclear power plants flood with seawater – as we saw in Fukushima.   

Results and Recommendations

Governor Christie and his administration are working intensively with the New Jersey Department of Environmental Protection to begin to prepare vulnerable regions of the state for sea level rise and other side effects of climate change that may threaten New Jersey.  In 2008 the current Administrator of the United States Environmental Protection Agency, Lisa Jackson (the then Commissioner of the New Jersey Department of Environmental Protection) created the Office of Climate and Energy under her department and began to address climate change concerns facing her state (Mauriello, 2009).  This office enforces the New Jersey Global Warming Response Act and Global Warming Solutions Fund Act, signed into effect in 2007, which address the call for carbon-dioxide emission reduction to 1990 levels by 2020, an 80% reduction in emissions from the 2006 levels by 2050, and increased usage of alternative energy resources creating “green” jobs.  Unfortunately, this plan does not answer sea level concerns, nor would New Jersey’s carbon emissions reduction have any significant impact on global levels. 

Recently, there has been talk within the state governments of New Jersey and New York about the halting of development on these barrier islands and areas vulnerable to sea level rise.  The New York Times spoke with Dr. Norbert P. Psuty, a professor at the Institute of Marine and Coastal Sciences at Rutgers University in New Jersey, in which he states, “We can avoid damage like that of Hurricane Sandy if we encourage people to move and discourage further development” (Psuty, 2012).  While politicians have been hesitant to listen to scientists for economic development tips over the years, they have been more accepting of their advice recently.  In New Jersey, advice, such as that given by Dr. Psuty, is being considered more than possible economic benefits of development in these areas.  Some believe that the damage inflicted by Hurricane Sandy was not due to sea level rise; while this may be true, the flooding that resulted in most of the damage can shed light on what future flooding from sea level rise could do to the state.  The main difference is that unlike the hurricane flooding, the water from sea level rise would not recede. 

One of the main concerns by developers and scientists is the development of communities on the barrier islands.  As stated, over 1 million New Jerseyan’s live on the barrier islands that line more than 3/4 of the coastline.  After Hurricane Sandy, those living in the state saw first hand what heavy flooding could do to these areas.  In a recent post on my website, Worn Trails, I recommended that New Jerseyan’s living here should seriously consider relocating and moving inland.  While the idea of living just minutes from the beach is ideal for some, the rising seas and permanent inundation of this area may outweigh the benefits of staying put (Clementi, 2012).  Barrier islands were never meant to be inhabited.  Their natural responsibilities are hindered and weakened as development continues.  With over 200+ years of development, cultivation and dredging, barrier islands have not been able to perform their duties and in some ways are becoming more dangerous than helpful.  People are now at the front lines of natural disasters.  By the end of the century, millions of people will be displaced from their communities in search of new homes.  Many underestimate the seriousness of this situation.  As seas rise, the value of these homes will drop significantly; thus, the window for relocating and getting good value for ones home is closing.  Should people opt to stay put, they not only put themselves and their families at risk from the flooding that will occur, but they put the lives of others, such as first responders, at risk as we continue to see the “100 year flood” every year, as New York Governor Andrew Cuomo stated after Hurricane Sandy (Sledge, 2012). 

This is a large task to ask more than one million people to do.  The economic benefits that these islands and low-lying areas provide to New Jersey may very well be irreplaceable.  The tourism industry brings billions of dollars each year to this state, not to mention the hundreds of billions of dollars in real estate that lines the coastline that provide billions more in tax revenue.  This issue was once an economic and political issue that was put off for years, and often viewed as a ridiculous consideration.  But as always, it usually takes a disaster to force those in power to reconsider.  After Hurricane Sandy, the possibility of relocation is slowly becoming more accepted, but it will be the task of convincing these citizens to pack up and leave the communities, in which many have lived their whole lives, that will prove to be the most difficult.  While there are still decades until the impacts of sea level rise start to threaten people’s homes and lives, the time for preparation is now.  In discussing this issue with many of those that I know that live on these barrier islands, the general consensus amongst them is that they are not overwhelmingly concerned with sea level rise at the moment.  Some do not believe that where their homes currently sit could be under water by the time many of them are in their later years in life.  Those that do realize that sea level rise will happen and will inundate the areas in which they live believe that there is still time before any precautions or relocations need to take place, and some are optimistic about the idea that governments and scientists may be able to reverse the effects of climate change or develop ways to shield coastal communities from sea level rise. 

Conclusion

Sea level rise is not isolated to just one part of the world, as water is added to the oceans from the melting of ground ice – such as Greenland, Antarctica and glaciers all over the world - every coastal region will be impacted.  Due to changes in oceanic processes, the geological composition of the coastlines, and underwater bathymetry of the shoreline, some regions of the world will experience more detrimental sea level rises than others.  With population set to increase three billion people to a total of ten billion by 2100, according to the UN, New Jersey’s population is also on track to increase (United Nations, 2011).  More people now live towards near the coast instead of the regions in the center of the majority of countries.  That is no different in New Jersey.  With more than half of the close to 9 million people living in its 11 coastal counties, the majority of its population faces serious changes in the near future. 

New Jersey relies heavily on the tourism that coastal communities provide to the millions of visitors each summer, the tax revenue that the real estate provides and the energy resources, such as the Salem Nuclear Power Plant that provides millions with electricity.  For many decades, climate change and sea level rise was not considered at the government level, but within the last few years, steps have been taken to prepare the state and its peoples for disastrous situations that may occur as a result of coastal flooding from sea level rise, or violent storms as a result of the warming coastal waters.  Thanks to breakthroughs in technology, climatologists, politicians and developers can use extremely accurate models that have the ability to predict what may happen in a number of scenarios showing sea level rise.  This technology is being put to use every day to test different variables that may change the outcome or prediction of climate change and sea level rise in the future.  While many are apprehensive about the thought of relocating to higher ground, this idea is becoming accepted my more people living in vulnerable areas of the state. 

Many different organizations have conducted studies that show variations in the extent to which sea levels will rise in this region.  The recently released study by Asbury Sallenger is proving to be one in which many scientists and politicians are accepting.  With new information showing the sea level is rising 3 to 4 times faster in this region than the global average, the focus now points to politicians and how they will handle this situation.  There is no more room for political gridlock or economic cost benefit analyses; the general consensus of the science community that seas will rise by a meter or more by 2100 needs to be the only factor that politicians consider when planning for the future development and status of their state.  

Law, Society and Climate Change

 In the wake of Hurricane Sandy, there has been a significant increase and focus on an issue, that for decades, has been a subject of controversy and divide – climate change.  Since the 1970’s, climate change and climate research has been the backbone of monumental environmental legislation, political and legal tensions and caused a push, both foreign and domestic, to act on this process that could have detrimental effects on the global society.  This paper will consist of peer-reviewed information about how societal factors, as well as legal factors play a role in the action, and inaction, of climate change.   Each of the four main legal theories – positivism, realism, natural law and formalism – all offer a different viewpoint on the legal and political influences of climate change legislation.  By using these legal theories and applying them to Massachusetts v. EPA (arguably the most important case yet as it relates to climate change), one will have a better understanding of how these theories can not only play a role in the courts, but also in the mindset of everyday peoples and politicians.

In 2007, the United States Supreme Court announced their 5-4 decision in Massachusetts v. EPA.  This suit was brought against the Environmental Protection Agency not only by Massachusetts, but also eleven other states and a number of organizations, municipalities and political territories.  In addition to the Environmental Protection Agency, defendants also included ten states, a number of automobile organizations and pro fossil fuel firms.  With this decision, the Supreme Court would now make it mandatory for the EPA to regulate carbon dioxide as a greenhouse gas, but more importantly as a pollutant (549 U.S. 497, 127 S.Ct. 1438).  The Supreme Court Justices – J. Scalia, J. Stevens, J. Kennedy, J. Souter, J. Thomas, J. Ginsburg, J. Breyer and J. Alito – each with there own preferred legal theory to interpret the law, contributed in different ways to each opinion (Horwitz, 1975).  With certain Justice’s more vocal about their preferred legal theory (for example, Justice Scalia is known to be a Formalist), each brought forth specific and important interpretations of the requirements of the Environmental Protection Agency and how they should, or should not, handle carbon dioxide.

Aside from the judiciary opinions having to do with climate change and Massachusetts v. EPA, there is also a very important political aspect that influences its mission and implementation.  When the Environmental Protection Agency was created under the Nixon Administration in 1970, Congress “has ordered the EPA to protect Massachusetts (among others) by prescribing standards applicable to the ‘emission of any air pollutant from any class or classes of motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may be anticipated to endanger public health or welfare.’” (Percival, 2009).  Congress granted the EPA specific powers, none more important than to protect the health and wellbeing of humans.  In addition, Congress’ specific language that they include in bills or legislation creating a federal agency are imperative to the obligations of the agency, but also to the interpretations by any judiciary that may follow the agency’s creation. 

Before one can understand the judicial and legal factors of climate change, the social factors must be well understood.  At this point in our nation’s history, one could argue that the polarization in our nation is at an all time high.  Climate change is no exception, and this divide between “believers” and “non-believer” has been apparent for decades.  Skepticism may arise from any number of sources, but there is a strong belief that a large source of skepticism is politically driven.  When climate change science was first heavily studied in the mid to late 20^th century, there was a strong consensus among citizens, but more importantly, politicians, that action must be taken.  There was a strong sense of unification when it came to environmentalism and environmental concerns.  For the next few decades (from the 1970’s to 1990) there were many monumental environmental regulations and agencies that were created – Environmental Protection Agency, Clean Air Act, Clean Water Act, National Environmental Policy Act, etc – and were highly accepted among Congress and the United States.  The tides changed with the Reagan Administration and into President George H. W. Bush’s Administration.  In this period of time, these two presidents were strongly opposed to environmental regulation, specifically regulations placed on fossil fuel production and regulations that could “hinder” economic progression.  In fact, The Jewish Policy Center (a think-tank aimed at Jewish Republicans) states, “Federal regulation was widely viewed as a substantial factor in the slow economic growth of the decade [under the Reagan Administration]” and goes on to say, “his [President Reagan] administration aimed to bring regulatory activity back into a proper economic balance” (Hayward, 2009). 

It was this era that stemmed the political and national polarization in environmental issues, specifically climate change.  As presidents and politicians began to separate themselves from one another, with some, taking a hostile stance against climate change, so did their constituents.  From the 1990’s to the present, polarization has increased exponentially.  Democratic Presidents (Clinton and Obama) tend to favor environmental regulations, and Republican Presidents (Bush, Sr. and Bush, Jr.) tend to oppose environmental regulations.  These trends are mirror images of the trends among Democrats and Republican Americans over the past 20 years.  Fortunately (or unfortunately, depending on how you look at it), with recent environmental disasters – such as Hurricane Sandy, Hurricane Katrina, horrific droughts, sea level rise, forest fires, etc – there has been an increase in those who not only believe that climate change is real, but that human factors are a leading cause.  Many of these same people are calling for government action to combat climate change; consequently, due to the political gridlock in our government, that seems to be a dream among the hopeful. 

Legal theories, such as the ones that will be discussed in this paper, not only can be used by justices or judges, but also by ordinary people.  Whether they know it or not, how a person interprets an issue or expresses his or her beliefs can most likely be matched up with one kind of legal theory.  There seems to be some sort of wiggle room, though; this idea is strictly circumstantial.  A person’s view is usually based on the outcome that they desire.  For example, in a matter concerning climate change action by the EPA, an activist in support of the law that the EPA must regulate all pollutants would most likely take a liberal, contextual legal theory approach.  On the other hand, someone opposed to this action would look to the conservative, text-based approach.  This can be easily switched if the case were one in which those (the public) who took a text-based approach in Massachusetts v. EPA were presented with a case that they did favor – they would then, most likely, favor a broader, contextual approach in an effort to seek the outcome that they want.  Of course, this really only applies to the public.  Our justices and judges do not have the ability to pick and choose which side of the argument they want – they can only interpret the law for what it is and only what it is.  But what really is the law?  It is this question that draws the main issue in our judicial system and is the reason that main legal theories – positivism, realism, formalism and natural law – were created. 

Perhaps the most prominent and well-known legal positivist is legal philosopher, H.L.A. Hart.  Hart created a guideline system for legal positivists to follow that established two categories to determine what law is and how to interpret the same.  He first believes that law consists of two parts, primary and secondary rules; these rules are very straight forward – primary being “do” and “do not do” laws, and secondary being law making laws (for example the U.S. Constitution) (Koulish, 9/18/2012).  Next, he divides law into two parts: core and penumbra.  Core law needs no interpretation; “Do not litter” and “Do not dump hazardous waste into streams” are both examples of core law (Koulish, 9/18/2012).  Then there is penumbra, which is a little more in depth.  Penumbra law are ambiguous and are “resolved by judicial interpretation and look for ought statements” (Koulish, 9/18/2012). 

In general, legal positivism is not favored among those who are environmental activists, specifically those that are advocates of environmental protection, some even going so far as to call it the “the so-called tool of tyrants” (Nicholson, 1982).   This theory has, in many cases, gone against the ideals of environmentalism.  Many environmentalists, at least in modern times, believe that morality must be fully considered when interpreting environmental law, a factor that some, such as Joseph Raz – a world renowned legal positivist scholar -, believe (Himma, 2001).  When interpreting law, some believe a judge must consider the possible future effects of perhaps, a decision on whether or not to overturn a decision such as Massachusetts v. EPA, and the implications that the non-regulation of carbon dioxide could have on climate change.  Consequently, others have a different view towards legal positivism and environmental law.  Ming-Sun Kuo, an international environmental law scholar states, in the context of international environmental law, “given the absence of agreement on content-based criteria and of an agreed political theory, it is doubtful whether any approach to law other than legal positivism can provide a baseline acceptability for determining what is law” (Kuo, 2012). 

As it relates to Massachusetts v. EPA, a legal positivist would have ruled in favor of mandatory EPA regulation.  The language of the law clearly states that Congress empowered and expects the EPA to protect citizens from air pollutants that may be emitted by any sort of vehicle (Massachusetts v. EPA, 2007).  Being that carbon dioxide is a pollutant, as made clear by the science community, the EPA must regulate carbon dioxide.  One benefit to the legal positivist theory in this case is the fact that a legal positivist would separate the politics from the law itself.  The political lobbying by fossil fuel corporations, that unfortunately have an influence on our elected leaders, would not influence a legal positivist.  By eliminating that factor, a legal positivist can more easily interpret the law as Congress intended. 

Oliver Wendell Holmes, at one time a Justice on the Supreme Court of the United States, was the focal point of legal realism.  Environmentalists would greatly prefer legal realism to legal positivism, if anything, for one specific reason: legal realism looks at the time and space of law, because it depends on the current state of society and current circumstance, thus taking the larger context of the issue into consideration when interpreting law (Koulish, 9/25/2012).  By using the current state of society, trends in the way society is moving, and common opinions, this theory is much more favorable among environmentalists.  At a time when climate change is among us, and already affecting many nations and peoples, a legal realist would take into consideration that there are strong environmental movements taking place in the United States and around the world where people are advocating for government action, stricter regulations and reductions in fossil fuel usage, when interpreting a related environmental law.  While some theories are criticized for considering morality, legal realism does not, but seems to find common ground.  At one point in time, legal realists were heavily criticized for how they interpreted the law.  Michael Green, a scholar at the William & Mary School of Law, states, “realists' rejection of legal rules was an attack on the idea of political obligation and the duty to obey the law.” (Green, 2005).  Legal realists do not believe that morality is relevant to understanding law, nor do they believe that conforming to political “obligations” is necessary, they will instead argue that interpreting current societal circumstances are relevant and very important when studying and interpreting law.  A legal realist would most likely vote in favor of a law, such as Massachusetts v. EPA, strictly because there was, and still is, a strong environmentalist push for the regulation of fossil fuels and carbon dioxide, due to its significant impact on climate change.  In addition, the fact that climate change was one of the main reasons for this law suit would probably be enough of a reason for a legal realist to rule in favor of this case; climate change is a serious threat to man kind and given that legal realists look at contextual matters, regulating carbon dioxide as a pollutant would answer societal trends, but more importantly would answer the question of whether or not this “threat” is one that our government should begin to consider. 

Legal formalism, as viewed through an environmentalists’ perspective, is an adversary.  This legal theory is very text-based and offers no consideration to morality, nor any outside factor other than the law itself.  This negative view towards legal formalism is partly due to a famous formalist that currently sits on the United States Supreme Court – Justice Anthony Scalia (Horwitz, 1975).  Justice Scalia is notorious for his narrow-minded, anti-environmental opinions that favor conservative ideologies and a text-based approach to interpreting laws.  Legal formalists will tell you that this system is autonomous and separates itself from politics and society, but a non-legal formalist can debunk argument by suggesting that Justice Scalia, in many ways, uses his conservative values in his work.  These conservative values include deregulation, anti-environmental opinions, increased fossil fuel usage, etc.  In Massachusetts v. EPA, Justice Scalia presented the dissenting opinion and believed that the court had no jurisdiction to answer the question presented in the case: Should the EPA regulate carbon dioxide? (Massachusetts v. EPA, 2007). 

Morton Horwitz, an expert on legal formalism, describes legal formalism as a theory that is catered to support the “men of commerce and industry” since its creation in the 1800’s (Horwitz, 1975).  This same rationale still holds true today and is believed by many in the legal theorist field, politics and the public.  Today, men of commerce and industry would be stereotyped as conservatives; this is how much of modern society views these types of people and in many cases these men (there are now women that fall under this label) justify being labeled as this.  As it relates to environmentalism, an environmentalist would specifically point out fossil fuel executives and anti-environmental regulation politicians as the “men of commerce and industry”.  These men would look to legal formalism as favorable to their interests.  Justice Scalia is a great example because he has voted against almost every pro-environment case, and voted in favor of almost every anti-environment case, that has come to the Supreme Court.  Just as Justice Scalia voted against Massachusetts v. EPA, a strong argument can be made that any legal formalist judge would have done the same.  The strong implications of carbon dioxide regulation, to a conservative, is very much against their values and to them, would hurt industry and economic growth.  While this is a stereotype, due to the action, and inaction, of prominent legal formalists, many people give the formalist label to anyone that associates themselves with anti-environmental ideologies that many show in their judicial obligations.

The last of the four main legal theories is the polar opposite of legal formalism.  Natural law embodies the belief that law must be moral in order for it to be law.  Famed natural law theorist Lon Fuller formulated a system to distinguish that a law was actually law by running it through 8 points.  If it cleared these requirements then it is, in fact, law.  More importantly is the idea that natural law encompasses the theory that law is determined by nature and human nature – how things are supposed to be in society, not how others want things to be in society.  Natural law has been associated with common law, which has been mostly eradicated since modern laws typically have replaced and made common laws irrelevant.  This is a common misconception that Peter Byrne, a lawyer and professor at Georgetown Law School, discusses in his piece “Rising Seas and Common Law Baselines: A Comment on Regulatory Takings Discourse Concerning Climate Change”.  He writes that since common law utilizes older cases for precedent, they are “blissfully ignorant of the types of environmental harms” (Byrne, 2010). 

This legal theory is, arguably, one of the most relatable to environmentalists and the climate change movement.  A judge using natural law in the case Massachusetts v. EPA would look at the moral grounds of the argument and the natural and human impacts of climate change.  By doing this, they would come to the conclusion that it would be morally and naturally imperative for the EPA to regulate carbon dioxide in an attempt to curb carbon dioxide emissions.  The impacts that climate change will have on our society would be enough evidence for a natural law theorist to understand that regulations are what is supposed to happen, but more importantly, what needs to happen for the betterment of society. 

With the current obstacles that humans face, environmentally speaking, of all legal theories, natural law may be the most important and could have monumental impacts on our society. Judith Koons, a professor at Loyola University New Orleans College of Law, calls for Earth Jurisprudence, which she describes as, “a developing field that rethinks law and governance from an Earth-centered perspective”, and believes that Earth Jurisprudence has the ability “to guide the transformation of law and governance for the well-being of humanity and the Earth community.” (Koons, 2012).  With this type of thought process, Earth Jurisprudence seems to evolve natural law ideologies from legal theories into a fully functional system with the ability to sustain an entire society. 

These legal theories have been in practice for decades now, each being applied to the thousands of cases that are brought to our courts each day.              Whether it be the application of law to facts that positivists use, the circumstantial and real life applications that realists use, the text-based and conservative approach of formalism or the use of morality and human nature in natural law, all of these legal theories, in their own way, play an imperative role in our legal system.  Each has their uses and flaws and some are favored over others, but nonetheless, whether loved or hated, the combination of these legal theories through their uses in cases throughout our history are what makes our society what it is. 

But our society faces new challenges.  As our climates continue to change with each passing day, there is a sense of built up frustration amongst environmentalists, scientists, legal theorists, scholars and even politicians.  The want and need for climate change action is higher now than ever before in our nation’s history.  Many look to those in the legal field - whether it be lawyers, politicians or judges - for guidance and some sort of signal that action is coming.  Unfortunately, at least for now, that hope is being lost due to political gridlock in Washington. 

Society is becoming more aware of the adverse affects that climate change could have on it and our families, and there is a general consensus that something needs to be done.  There is no doubt that in the coming years, the legal theories discussed in this paper will be used in cases concerning climate change, carbon emissions, sea level rise, food crises, fossil fuel shortages, and socio-economic suits that may eventually be presented in court.  Whenever that day comes, the legal theories used by judges and lawmakers and the environmental legal actions taken now, will ultimately determine the state of our society and climate in the future. 

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After the Election: What the Result Means, What Needs to be Done Now, and What is the Future of American Politics?

I think I can speak for everyone, including the President himself, by saying “Finally…the election is over.”  No matter what your political views are, the past 18 months brought annoyance, frustration, pride and hope for all of us.  Some are disappointed with the results of the election, while others are overjoyed.  Nonetheless, we are relieved it is over.

Nothing can be done at this point; President Obama will be back for another 4 years.  I have seem a plethora of tweets and Facebook statuses with cynical remarks by Romney supporters about how this country is doomed, how the next four years will be horrible and how minorities will tear this country apart.  Do not think you’re out of the clear Democrats.  The gloating and rubbing this election into the face of your Republican counterparts gets us nowhere as well.  It was already known, but based off of the results of this election (specifically the popular vote) this nation is deeply divided – almost equally.  Speaking to Republicans, the bashing of the President and Democrats further divides us.  How can we unite if we have two parties that hate each other with a passion? We can’t.  To Democrats, gloating is taking away from the win. Be proud about the win.  Showboating is just as bad as talking down upon the other party. 

Aside from the vote in the presidential race, there were monumental and historical decisions that will shape our future.  In a few states there were referendums such as the legalization of marijuana and same-sex marriage approval in four out of four states, the election of the first openly gay Congresswoman, the first bi-sexual Congressman, the first Hindu-American Congresswoman, the largest minority vote percentage of all time and one of the closest elections of all time.  This is the beginning of an entirely new social revolution that has never been seen before in the United States.  And no one can stop it. 

With our eyes now set on the next four years, we face a rapidly approaching fiscal cliff, social issues, economic issues, environmental issues and just about every other issue one can think of.  Just because President Obama was re-elected does not mean that we are in the clear.  What needs to be done now is TRUE bipartisan effort.  There should be absolutely no reason whatsoever that Congress should not reach across the isle to work with their colleagues and the President.  It was clear that the Republican Congress’ main objective in President Obama’s first term was to assure that he would be a one term president – well that didn’t happen.  It is time to man up and start to get work done.  Not one Congressmen or Congresswoman should be proud of the work that they have done, or have not done, nor should they be proud about the single-digit approval rating that this country has given them.  It is a disgrace. 

In addition to Congress needing to get their act together, there needs to be a drastic change in the way the government addresses social issues.  It is no secret that President Obama was more supportive of the key social issues in this election – gay marriage, abortion, climate change, healthcare, women’s rights, etc.  It is these specific issues that will shape the future of our nation.  This result was an offering of hope to many who were worried about whether or not their voices would be heard.  I was one of them.  In President Obama’s victory speech after the election, he addressed the issue of global warming; to me this was a sign that he may tackle this issue in his next term.  I have constantly stated that this election would be the most important election in our lifetime and the reason for it being so is due to the future of social issues – the issues that many of which went unheard during the campaigns.  I strongly believe that it was these issues, in some ways more than economic factors, which were the deciding factors for many voters in this election. 

Again, what needs to be done now is a coming-together of the Congress and action to be taken by the federal government on social issues.  Many argued that this was an election for the economy, and it was in a lot of ways but very few realize that the economy is directly affected by all of these social and environmental issues. So it in ways was not as much of a question of who was better for the economy, but a question of who is better for all of those issues.  

It will be interesting to see how the issues voted on in this election play out. With the legalization of marijuana in Colorado and Washington, how will the federal government react to these policy changes?  The country will now reconceptualize how we view marijuana and treat it as a drug. Even with the legalization of marijuana in these states, it is still illegal under federal law.  It will be up to the Obama Administration to dictate how they will approach this; will they 1) pull back on their opposition to the legalization of marijuana and allow this change, or 2) keep with their current stance, oppose it and continue to arrest those that use marijuana.  I have a feeling that they will choose the first option and we will see changes in the federal opinion of marijuana.  Gay marriage was approved in Maryland, Maine and Washington and the constitutional ban proposal in Minnesota was struck down.  This is the first time that gay marriage has won on an election ballot and this was not only a win for the LGBT community, but also for our society.  To me, this was the biggest win last night.  The suppression of millions, who only want to love and marry a person that equally loves them back regardless of their sexual orientation, has ended.  This could very well spark a domino effect as we can expect to see these referendums passed in more states in the future.  

As it relates to the environment, the election of President Obama means more than words can explain to any environmentalist.  Many feared that a President Romney would mean the demise of our environment due to the cutting back of regulations on carbon emissions, the increased production and consumption of fossil fuels, decreasing usage of renewable energy resources and the assurance of a Keystone XL Pipeline.  With President Obama remaining in office through 2016, environmental supporters (and even those who do not place the environment as a high priority) can sleep knowing that we will have a president that will continue to push for regulations on carbon emissions, increasing the production and usage of every type of renewable energy resource and, hopefully, a president that will finally take a stance on climate change.  The assurance is not all there, though.  There is still a possibility that President Obama will sign and allow the building of the Keystone XL Pipeline; the motives for doing this seem to point at an economical boost as well as a temporary increase in a few hundred thousand jobs.  There is no environmental benefit to such an action and just about every environmentalist and climate scientist will agree with that statement.  Going forward with the Keystone XL Pipeline may very well put us past the “Point of No Return” as it relates to atmospheric carbon dioxide levels.  More so, this point of no return is the point that if passed means that any effort to combat climate change and global warming will be utterly useless.  If passed, we could go into a downward spiral of environmental and climatic changes that will result in uncontrollable sea level rise, increased major storm activity, droughts, floods and worst of all, famine.  The scientific evidence is there, and it is widely supported by virtually every scientific academy in each nation as well as almost every scientist in the world. 

It is time for climate change deniers to wake up.  No more time can be wasted arguing over an issue that is an occurring reality.  Fossil fuel companies and climate change deniers - such as the Koch Brothers and Oil PAC’s - are spending billions of dollars each year trying to lobby against action combating climate change.  These entities are destroying our nation and our world.  By suppressing action that will inevitably save millions of lives, they are the ones that will be, if no action is taken by politicians to combat climate change, the route cause of the climatic changes that are so close to becoming permanent. 

While these social and environmental issues will most likely shape the future of our nation, there are other issues at hand that will ultimately shape the future of our current political system.  With the nations demographical make-up rapidly shifting, politicians and political parties must now adapt to these changes if they plan on surviving.  In addition, extremist groups that have infiltrated the two main parties, if not eradicated, will be one of the reasons that these parties fail.  In 2012, it was clear which party had adapted to these changes prior to the election – it is clear because they won. 

After the election, Fox News figurehead Bill O’Reilly, said on post-election coverage, “It's a changing country. ... It's not a traditional America anymore. And there are 50 percent of the voting public who want stuff. They want things. And who is going to give them things? President Obama. He knows it. And he ran on it.” The traditional America he is referring to is White America. This can be proven by comments he later made in the same statement, “Whereby 20 years ago, President Obama would have been roundly defeated by an establishment candidate like Mitt Romney, the white establishment is now the minority....” 

It is not only Bill O’Reilly, Facebook and Twitter were polluted with negative and racist comments that emulated O’Reilly’s statements.  It was very discouraging to see that friends of mine, after hearing the election results, took to social media to express their outrage by saying things such as, “Its clear that the white people are now the minority we had a good run we built a great country its time to continue to let others tear it apart..... moving back to my homeland Abruzzi Italy” This seems to be one of the main issues in Right-Wing America, the inability to accept change and adapt to it.  The traditional old-school political views cannot and will not survive for much longer. 

The two-party system in America was created to allow for people to identify with different ideological views on certain issues, to cater to our voting system, and mainly due to two opposing views on how to interpret the Constitution (an issue that is still heavily debated today).  But since the formation of the two-party system by Thomas Jefferson and Alexander Hamilton some two hundred years ago, our nation has become a polarized mutant of political division. 

Going back to adaptation of the Republican Party, it seems that the actual minorities in this election (Latino’s and African-Americans) have been put off by the current opinions on social issues that the GOP has.  This is even clearer for the women demographic, which seems to be rapidly shifting towards Democratic values due to the issues of contraception, abortion and equality.  These are the three issues that have placed a heavy burden on the Republicans and have not only cost them the women vote, but it has cost them the respect of many Americans and the international community. 

The extreme division in America seemed to start as soon as the 2008 election was decided and Barack Obama was announced President-Elect.  Prior to that, while many heavily disagreed with Bush policies, there wasn’t a massive division of this country, ideologically speaking.  There was still respect given to President Bush by his political opponents and other Democrats.  Once President Obama was elected, there was an overwhelming sense of rage among Republicans in Congress and Republicans all over the country.  Some of this rage was due to, as horrible as this sounds since it is 21^st century, the presidents skin color, while others saw his 21^st century political views as alien and socialist.  I think that the biggest signal for disgust in the President’s election came in October 2010 when Senate Minority Leader, Mitch McConnell (R-KY) said, “The single most important thing we want to achieve is for President Obama to be a one-term president.”  This to me was the biggest issue and clearest indicator that there was an issue in our political system.  Putting aside the wellness of our nation and most importantly its peoples, Senator McConnell, speaking on behalf of the entire Republican delegation, said that the single most important goal for their party over the next two years was to make sure that the president did not get re-elected.  It wasn’t healthcare, or the economy, or immigration or our national debt, or passing a budget.  No, it was denying President Obama a second term.  In this same year, there was a massive shift in Congress that would shape how the next two years went – the rise of the Tea Party in Congress, specifically the House of Representatives. 

The Tea Party is an extremist, far right, newly formed party that radicalized the entire base of ideologies in the Republican Party.  I believe that this was the worst thing that could have happened to the Republican Party.  The opinions taken by these newly elected leaders seemed as if these Congressmen and Congresswomen came right from the 1920’s.  In what seemed to be an overnight transformation, these views infected almost every single Republican member of Congress.  From 2010, when the GOP took control of the House, to 2012, we saw nothing but gridlock, hate, and a Congress with a single digit approval rating. 

On November 6, 2012, the people spoke; many of those Tea Party members that were elected in 2010 were gone and in many of these elections, a Democrat took their spot.  In just those two years, our nation seemed to have taken a step backwards – actually more like 100 steps.  The Republican Party stuck to their tradition beliefs on key issues (that in many ways became radicalized), while the Democratic Party accepted the change that was taking place in America and adapted their entire political ideology to them. 

Here is where the issue comes in for the Republican Party, just like climate change, in politics, when there is rapid social change going on in a nation, there is a point of no return for the party that does not conform to accept the changes taking place.  This is what is happening in America.  Democrats are ahead of the game and Republicans in Congress are standing still, and actually moving away from the change.  This is not just my opinion, but after the election, many Republican correspondents and activists expressed this same concern.  I propose two solutions to the Republican Party that they should do if they expect to have a place in American politics in the future. 

The first is straightforward: Change and Adapt.  The reason you lost this election was because of minorities, the youth and women.  Many are offended by the fact that you have discriminated against them and demoralized them with your stances on equality, immigration, women’s rights, and environmental issues.  It is clear that the GOP’s extreme and old school views are not wanted nor are they warranted in modern society.  In order for this party to still be competitive, drastic reconstruction needs to be done from within the party, starting with the leaders.  Even former Secretary of State Condoleezza Rice suggested that the GOP broaden its views on issues.  This can start with the people that are elected into the Republican Party.  Which brings me to my next suggestion:

Split from the Tea Party. 

This is essential for the survival of the entire Republican Party.  Their view caters to such a small percentage of the population, yet they have had such an influence on how that party runs.  There is no longer such a thing as a Moderate Republican in Congress; you are both firm and far right, or you are shunned from the party and labeled as a traitor of what it means to be a Republican.  Think I’m crazy? Ask Republican Senator Dick Luger, who served in Congress as the Senator of Indiana for 36 years and was beloved by his party and his state.  Luger lost in the Primary Election to the State Treasurer – and Tea Party Member - Richard Mourdock.  Mourdock is the same person that said babies born from rape were part of God’s plan.  Mourdock went on to lose the general election to Democrat Joe Donnelly.  Lugar is just one case; from 2010 to 2012, this happened numerous times to some of the most prominent figures in both the Democratic and Republican Parties. 

In 2012, Tea Party incumbents and candidates cost the Republican Party many seats that were lost to Democratic nominees.  After just two years, and after some of the best Republican politicians lost their seat, America voted these narrow-minded, extremist, “Americans” out.  In just two years, the reputation of the Republican Party - once strong and willing to work with Democrats, and a party that has put some of the best and most famous presidents in the White House - went from good to bad.  The Tea Party brought Sarah Palin and Michelle Bachman (the laughing stocks of the Party), Richard Mourdock and Todd Akin, and Donald Trump and the Koch Bothers into the national political spectrum more now than ever before.

With a combination of these two solutions, the Republican Party can regroup and become a stronger more likable party that will be able to compete with the Democratic Party in the future.  If they do not do either of these, they will not have a future, at least not a future where they are competitive party for the presidency.  They must accept the changes that are taking place in our nation and conform their policies to them.  While they do not have to completely take a liberal approach to everything, with certain historically red states starting to turn more liberal and becoming purple states (Florida, Colorado, New Mexico, etc), it will become harder for Republicans to compete for the presidency in an Electoral College Voting System. 

By accepting and not discriminating peoples (whether they be constituents or those in Congress) that believe in climate change, gay marriage, equality for women and men, abortion, the Republican Party will be able to have a better chance of not only surviving as a political party, but they will also be able to recruit the youth, more women and minorities.  With these demographics becoming the future of American politics, as well as becoming the majority demographics in future elections, the Republican Party does not have much of a choice at this point.  It is crunch time for them; only time will tell what they choose to do.