Tuesday, December 5, 2017
The map of central and southern Utah changed dramatically on December 4. That day, roughly half of the Grand Staircase-Escalante National Monument and over 90% of the Bears Ears National Monument were eliminated, returning those lands to the status they held prior to the designations (federal, but with fewer protections). Within hours of Trump signing Proclamations creating new, smaller monuments to replace Grand Staircase and Bears Ears (proclaimed by Presidents Clinton and Obama, respectively), multiple complaints have been filed in federal district court in Washington, D.C.
Earthjustice took the lead in the first Grand Staircase-Escalante National Monument lawsuit, representing 7 other national and regional environmental groups, and raising four claims against the President, the Department of Interior, and the BLM. The five claims involve constitutional arguments (separation of powers and Take Care Clause violations), APA and Antiquities Act violations, all of which focus on Trump’s lack of authority to revoke the proclamations of his predecessors. The constitutional arguments mirror those in other recent litigation challenging Trump’s executive actions – that he has exceeded the Constitutional limitations placed on his office and intruded on the functions of Congress. Regarding the Antiquities Act, the environmental groups argue that the narrow delegation to the President to create national monuments does not carry with it the implied authority to revoke them. The APA claim is against Interior and the BLM only, asserting that any implementation of Trump’s Monday order constitutes “arbitrary and capricious agency action not in accordance with law” because the order is unconstitutional.
A second Grand Staircase lawsuit was filed by a local nonprofit, Grand Staircase-Escalante Partners, along with the Society for Vertebrate Paleontology and the Conservation Lands Foundation, raising five claims against the President and Secretary of Interior Ryan Zinke. These largely mirror the claims in the Earthjustice complaint, although the constitutional claims do not include the Take Care Clause and focus on the separation of powers issues. A new argument in this complaint is that given the length of time since Grand Staircase was created, Congress has demonstrated that it has exclusive authority over the Monument (potentially heading off any argument related to Congressional acquiescence that Trump or Zinke might make in the future). The final claim in this complaint is that the Federal Lands Policy and Management Act, combined with the Antiquities Act, creates a statutory “superstructure” governing this Monument, which neither Trump or Zinke are authorized to circumvent in any way.
The Native American Rights Fund filed a complaint on behalf of the five tribal proponents of the Bears Ears National Monument (Navajo Nation, Hopi Tribe, Zuni Tribe, Ute Mountain Ute and Ute Indian Tribes), asserting four claims against Trump, the Secretaries of Interior and Agriculture, and the directors of the Forest Service and BLM. This complaint also alleges constitutional violations, and claims under the Antiquities Act and the APA. This Antiquities Act claim is slightly different than the one in the Earthjustice complaint, and argues that not only Trump’s orders, but any agency implementation of those orders is ultra vires action violating the Antiquities Act. The tribes also argue that Trump’s orders are unconstitutional based on separation of powers concerns and the Property Clause (which vests all decisions about federal land ownership with Congress, unless expressly delegated to the President or to an agency). Finally, the tribes' APA claim is based on section 706(1) (authorizing courts to “compel agency action unlawfully withheld”) because BLM and Forest Service have failed to develop a Monument Management Plan under the lawful proclamation issued by President Obama, which created the Bears Ears National Monument on December 28, 2017.
On December 6, Utah Dine Bikeyah, a nonprofit organization focused on preserving places of cultural value to the Navajo Nation, filed a complaint on Bears Ears, joined by 7 other plaintiffs, including Patagonia and the Access Fund. This complaint largely mirrored the tribes' complaint, especially as to the causes of action. The first two claims allege that the Revocation Proclamation was an ultra vires action outside the scope of the Antiquities Act. They add more factual detail about the impacts to excluded areas by off-road vehicle use, in particular. Counts three and four allege separation of powers and Take Care Clause violations, mirroring the claims in the Earthjustice complaint on Grand Staircase-Escalante.
The next day, NRDC filed a complaint on Bears Ears as well, joined by 9 other national and regional environmental groups. This complaint largely mirrors that of Earthjustice on the Grand Staircase-Escalante Proclamation.
Some of these issues are ones of first impression, and others are not. It is clear that the Property Clause places decisions about public lands squarely within Congress’s domain, but that those powers can be delegated to the Executive. The issue of whether the Antiquities Act contains an implied power to reverse Monument proclamations is one of first impression, although at least one Attorney General opinion and several public lands scholars’ recent analysis have concluded no such authority exists (see opposing arguments here). Parties to the litigation have created maps representing their best estimation of the new Monument boundaries.
- Hillary Hoffmann
Arizona State University recently announced its Call for Presentation and Panel Proposals for its Fourth Annual Sustainability Conference of American Legal Educators. The conference will be held on May 11, 2018, at ASU’s new law school building in downtown Phoenix, AZ. Roughly 50 faculty speakers from throughout North America are selected annually to speak at the conference, and their airfare/transportation costs (up to $500) and lodging are covered by ASU.
Here’s a link with more information about the conference and how to submit proposals: https://law.asu.edu/degree-programs/sustainability/annual-conference . Buzz Thompson (Stanford) will be this year’s keynote speaker.
In connection with the conference, ASU is also conducting the Third Annual Morrison Prize Contest. The Morrison Prize comes goes to the top sustainability-related article, as chosen by a panel of professors, that was published in the preceding year (it is not a prize for works in progress). Entrants must merely send five offprints of their article and a cover letter to the address in the Call for Entries.
December 5, 2017 | Permalink
Wednesday, September 27, 2017
Lately, judicial deference to agency decision-making is a hot topic (by administrative law standards, at least). Judges and law professors are always talking about deference, but the recent attack on Chevron deference, spearheaded by now-Justice Gorsuch, has upped the ante.
In those debates, we often hear two justifications for deference. One—the delegation justification—is grounded in Congressional intent. The basic idea is that when Congress allocates a task to an administrative agency, it wants the agency, not the courts, to take the lead. While judicial oversight remains appropriate, the courts should not upend Congress’s choice of delegate. The other justification—the expertise justification—is grounded in relative institutional competence. The idea is that agencies have more expertise than judges on the subject matter at hand.
Both of these justifications are compelling, but I think a third justification ought to inform the deference jurisprudence. That justification is simple. An additional reason for judicial deference to agency decision-making is our respect for work.
To illustrate that point, consider an example that does not involve judges or agencies. Suppose a colleague and I are co-teaching a course in a subject area that we know equally well. Suppose that, for reasons of scheduling, my colleague does more work than I do in preparing a class. And suppose that we then have a disagreement about how the class should be taught. The appropriate response, most of us would agree, would be for me to defer to my colleague’s judgment. I wouldn’t be deferring because my colleague received delegated authority to make the decision, or because my colleague has more generalized expertise in the subject matter than I do. I would be deferring to my colleague because my colleague has done the work. And that, in turn, would seem appropriate for several reasons. One blurs into the expertise rationale a little bit; a likely byproduct of my colleague’s work is greater knowledge of the subject matter directly at hand. But the other reason is grounded in cultural values and the positive incentives they create. We understand, as a culture, that work is hard and that work is important, and therefore we respect, and we defer to, people who actually do it.
Or, at least, we should. But when we talk about the work of administrative agencies, that basic respect for work often seems absent. For me, this has been particularly striking in the judicial and political responses to the 2015 Clean Water Rule, which attempted to clarify the scope of federal jurisdiction under the Clean Water Act. EPA and the Army Corps of Engineers put a ton of work into that rule, and they based it on a peer-reviewed scientific synthesis document, which in turn was based on a review of over 1,000 peer-reviewed studies. Even preparing just one peer-reviewed study is a lot of work; collectively, those studies represented years of effort by hundreds of stream scientists. The rule, in other words, stood atop a massive foundation of careful thinking and hard work, and that ought to command respect.
Yet first judges and now the Trump Administration are doing their best to throw all that work aside. A federal district court judge in North Dakota went first, enjoining the rule in a dismissive and inaccurate opinion that demonstrated neither any respect for the work the agencies had put into their rule nor even awareness that reading an administrative record is part of the work of judging. Next came an injunction from the Sixth Circuit, which was more respectful in its tone and careful in its prose, but which still offered just a brief analysis explaining why it was putting years of effort on hold. Now, most recently, the Trump Administration’s appointees at EPA and the Army Corps have proposed to repeal the 2015 rule, in a cursory rulemaking proposal that, as some colleagues and I explain in these comments, simply ignores the scientific record informing the 2015 rulemaking (and some basic requirements of administrative law). The new rule, in other words, neither reflects nor respects work.
It isn’t hard to see where at least some of this is coming from. To politicians of President Trump’s ilk, the idea of a hardworking agency staff member is the sort of joke that gets a good laugh on the golf green. It isn’t reality. And there’s no need to respect agency work agencies actually do no work (or work only when scheming to maximize their own power). But as anyone who actually interacts with agency staff knows, there are thousands of hardworking government agency staff in this country, and our nation could not subsist without the work they provide. Judges, and the rest of us, ought to respect that—except, of course, when the work really is absent. And that’s why the Trump Administration’s new rulemaking deserves no deference at all.
- Dave Owen
Friday, September 1, 2017
Earlier this week, Lesley McAllister, who taught environmental law at the University of San Diego and then at UC Davis, passed away after a long battle with cancer. Among the many accomplishments of Lesley's too-short career was playing a major role in the resurrection of this blog.
Here are links to two stories about Lesley: the written version of a speech given by her former colleague Orly Lobel, and an article in the Princeton alumni magazine. As the stories show, Lesley had tremendous determination, compassion, and intelligence. We will miss her.
Tuesday, August 29, 2017
Editor's note - Since I originally posted this, LSU, Wake Forest, and Denver have advertised openings. I've added each of those to the list.
Several law schools are looking to hire environmental law professors this year. So I've put together a list of openings. The text below is pasted from position announcements if I have them, though I have not always pasted the whole announcement. Importantly, every school strongly encourages applications from people who would diversify the legal profession and the environmental law field.
If you're on the entry level market, and you're wondering if these are the only places that will consider hiring an environmental law professor this year, the answer is probably not. These schools have all launched somewhat targeted (or very targeted) searches, but among the schools conducting more open searches, some are probably interested in environmental law candidates.
If you know of an opening I've missed, please feel free to comment or send me an email and I will update the post.
Legal-academic hiring has not been strong in recent years, so this, I think, is a pretty impressive list of openings.
- Dave Owen
The University of Colorado Law School is accepting applications and nominations to fill entry level tenure track positions and/or lateral positions in the following areas: tax law; natural resources, energy, climate change, and environmental law; contracts, corporate and commercial (including consumer and bankruptcy) law; among others. Applicants should hold a law or equivalent advanced degree with a strong academic record, scholarly achievement and teaching skills. Colorado Law is committed to diversity and equality in education and employment. Application materials will be considered as they are received until the positions are filled. Contact by mail or air courier: Professor Sarah Krakoff, Chair, Faculty Appointments Committee, University of Colorado Law School, Campus Box 401, Boulder, CO, 80309-0401 or by e-mail: firstname.lastname@example.org.
The University of Colorado Law School also seeks applicants for a full-time academic year clinical faculty position in its Natural Resources, Energy and Environmental Law Clinic. Founded in 1978, the Clinic was one of the first of its kind in the country.
The clinical faculty member: is responsible for developing a docket of projects concerning natural resources, energy, and environmental law issues; has primary responsibility for supervising students in their case or project work, and organizing/teaching a companion clinical seminar. The faculty member will work closely with the Getches-Wilkinson Center and faculty members who teach environmental law and related subjects.
Candidates must have a JD degree and minimum five years practical experience. Prior teaching experience strongly preferred. Candidates must be licensed to practice law in at least one state and be eligible to sit for the Colorado bar or waive admission into Colorado.
Please submit a resume and three references, with a letter describing: your interest, initial thoughts on the projects you would develop for the clinic, relevant practice experience, and prior teaching experience. Send to: Colene Robinson, Clinical Professor, University of Colorado Law School, Wolf Law Building, 404 UCB, Boulder, CO 80309-0404.
We will begin reviewing applications on September 10, 2017. Teaching will begin August 2018. Rank and appointment classification will depend on qualifications and experience.
The University of Denver Sturm College of Law seeks applications from entry-level and junior-lateral candidates for one or more full-time, tenure-track faculty positions at the rank of Assistant or Associate Professor of Law to begin in August 2018. We seek candidates with J.D. or Ph.D. degrees (or their equivalent), exceptional academic records, relevant professional experience, and the capacity to make outstanding contributions in the areas of scholarship, teaching, and service. Although we welcome candidates across all subject matter areas and methodological perspectives, we anticipate particular interest in the following fields: environmental and natural resources law, including both doctrinal and clinical teaching; evidence; healthcare law; professional responsibility; and regulatory compliance. ... Interested persons should send a cover letter, resume (including at least three references), teaching statement, and research agenda to Professor Alan Chen, Chair, Faculty Appointments Committee (email@example.com).
Louisiana State University seeks to hire three (3) tenure-track or tenured faculty members. Areas of particular interest to us include the following: business & transactional law; civil procedure; criminal law & procedure; environmental law; energy law; ethics and professionalism; evidence; family law; and juvenile justice clinical teaching... We also seek applications for the position of Director of the John P. Laborde Energy Law Center.
Contact: Melissa T. Lonegrass, Chair of the Faculty Appointments Committee, c/o Pam Hancock, Paul M. Hebert Law Center, Louisiana State University, 1 East Campus Drive, Baton Rouge, LA 70803-0106.
Loyola University Chicago School of Law invites applications for a tenure-track position beginning in the fall of 2018, pending final approval of funding. We welcome applicants whose primary area of expertise is Environmental Law with a willingness to teach either Civil Procedure or Property. We are particularly interested in candidates whose scholarship aligns with Loyola’s mission of social justice, as well as candidates who are members of communities traditionally under-represented in the legal profession. We seek applicants whose research and teaching will contribute to Loyola University’s commitment to solving societal and environmental problems, and advance Loyola's position as a national university leader on environmental research, policy and justice. Appointment rank will be determined commensurate with the candidate’s qualifications and experience.
Questions about the position can be directed to the Chair of the Committee. Applicants should submit a current Curriculum Vitae, a teaching statement and research agenda, sample publications, and a letter of interest to http://www.careers.luc.edu.
Miami: entry level or lateral candidates in environmental law (I don't have a full position description).
Montana: seeks "one or more full-time, tenured or tenure-track professor(s) beginning in the 2018-2019 academic year to teach Natural Resources/Environmental law courses and direct our Land Use and Natural Resources Clinic and/or to teach Indian law related courses and potentially assist with supervising the Margery Hunter Brown Indian Law Clinic... . For more information about the position and to apply, please visit https://umjobs.silkroad.com/."
Oregon: The University of Oregon School of Law invites applications for an assistant or associate professor (with tenure) in Land Use/Transportation/Green Development Law, to begin in August 2018. Preference will be given to applicants with scholarship, teaching, or practice expertise in land use law, transportation law, green development law, and related fields.
More details here.
Pace University’s Elisabeth Haub School of Law seeks to hire a full-time tenured faculty member for an endowed chair, and is interested in receiving applications from candidates with expertise in Environmental Law and International Law.
Please direct inquiries and letters of interest to Jennifer Chin, assistant to the Appointments Committee, at firstname.lastname@example.org.
Vermont Law School invites applications for a tenured or tenure-track faculty position teaching environmental law courses and potentially a first-year course. Hiring rank will be dependent on the background and experience of the applicant. The successful candidate will be an environmental expert with a strong academic background including a demonstrated interest in scholarship; a commitment to excellence in teaching; and relevant experience in private practice, government service, or non-governmental organization.
Please submit a cover letter, curriculum vitae, and references to Vice Dean Stephanie J. Willbanks, Vermont Law School, 164 Chelsea Street, South Royalton, VT 05068. Electronic applications are strongly preferred and can be submitted to email@example.com. Materials should be submitted by October 20, 2017, although submissions received after this time may be considered until the position is filled.
Vermont Law School also invites applications for a clinical professor at the law school’s Environmental and Natural Resources Law Clinic. The Environmental and Natural Resources Law Clinic at Vermont Law School and Earthjustice are partnering to expand our environmental justice capacity through the creation of a new environmental justice initiative. We are hiring an attorney professor who will be located at the Clinic and will work with Earthjustice’s Healthy Communities program and as part of the Clinic’s growing environmental justice program area. Cases and projects will include Vermont and New England-based initiatives as well as efforts at the national level and in other areas of the United States.
... Please submit a cover letter, resume, law school transcript, writing sample, and references online here https://vermontlaw.interviewexchange.com/static/clients/494VLM1/index.jsp.
The cover letter should clearly convey your interest in and experience with environmental justice communities and issues. The writing sample need not be a traditional legal writing sample but may reflect your past work on environmental justice issues. Electronic applications are strongly preferred and can be submitted online. Applications will be considered as they are submitted. Please submit your information no later than September 15, 2017.
Wake Forest seeks an entry-level tenure-track, assistant professor to begin in the 2018-19 academic year. We are particularly interested in Civil Procedure, Torts, Contracts, but will consider other subject areas including: Family Law, Negotiations, Environmental Law, Land Use Planning, Natural Resources, Energy, and related subjects." Applications should be sent to firstname.lastname@example.org.
Monday, August 21, 2017
The Washington Journal of Environmental Law & Policy (WJELP) invites submissions for papers and speakers for a symposium this winter, focused on environmental justice and the law. Submitted papers should center around how the law currently acts as a barrier to environmental justice and what the law can do to codify protections. Accepted papers will be featured at the symposium and later printed in a monograph book. Paper and speaker submissions are due by November of 2017.
Please submit articles via email to email@example.com or via ExpressO.
For WJELP’s publishing criteria, please see: http://www.law.washington.edu/WJELP/EditorialPolicy.aspx.
August 21, 2017 | Permalink
Wednesday, August 16, 2017
Fifty Shades of Gray Infrastructure: Land Use & the Failure to Create Resilient Cities - Jonathan Rosenbloom
Jonathan Rosenbloom, of Drake Law, has posted "Fifty Shades of Gray Infrastructure: Land Use & the Failure to Create Resilient Cities." In the article, Rosenbloom highlights the path dependency of local governments in investing in gray infrastructure—hardened, concrete, human-designed structures—rather than investing in projects that integrate ecosystem services into infrastructure projects. He then highlights promising examples of green, ecosystem service-driven infrastructure and how local governments might adopt more effective mechanisms for creating resilience within our nation's cities. Plus, the article has a racy title. The paper can be downloaded here. Here is the abstract:
Land use laws, such as comprehensive plans, site plan reviews, zoning, and building codes, greatly affect community resilience to climate change. One often-overlooked area of land use law that is essential to community resilience is the regulation of infrastructure on private property. These regulations set standards for developers’ construction of infrastructure in conjunction with millions of commercial and residential projects. Such infrastructure provides critical services, including potable water and energy distribution. Throughout the fifty states, these land use laws regulating infrastructure on private property encourage or compel “gray infrastructure,” as part of private development. Marked by human-made, engineered solutions, including pipes, culverts, and detention basins, gray infrastructure reflects a desire to control and manipulate ecosystems. Often these ecosystems are already providing critical services. This article assesses how current land use laws focus too heavily on engineered, gray infrastructure and how that infrastructure is reducing community resilience to change. By creatively combining human engineered solutions with ecosystem services already available and by incorporating adaptive governance into the regulation of infrastructure for private development, the article describes how land use laws can enhance community resilience. The article concludes with several examples where land use laws are relied upon to help build cost-effective, adaptive infrastructure to create more resilient communities.
- Blake Hudson
August 16, 2017 | Permalink
Wednesday, July 12, 2017
For years, I, like many other professors, have been using case studies in the classroom. Some of my favorites have come from the Stanford Law School case study series and from Harvard Law School's series of negotiation exercises (I've used Long River and Flooding, both to rave reviews from students). But I've also created several of my own. In hopes that others might also find them useful, I've provided a short description and a link for each in the text below.
Environmental Law Case Studies:
NEPA/New University Facility Case Study: This case study addresses the application of NEPA to a development in an urban environment. It's designed to raise questions about what counts as an environmental impact, what counts as a significant environmental impact, and how attorneys can advance the interests of different clients through a NEPA process. Each group also receives confidential instructions, which I'm happy to provide but have not posted here.
Emissions Reduction Game: This case study involves an in-class simulation of a carbon trading market. I begin by using a technology-specifying standard and a technology-based performance standard to establish baselines for comparison, then simulate an idealized market, and then simulate a market designed to incorporate a few of the real-world complexities of environmental trading systems. It's usually a lot of fun. The summary writeup here is skeletal, and many of the key details are in confidential instructions for each team (which I have not posted).
Natural Resources Law Case Studies:
Drilling in the Chukchi Sea: This case study considers the application of environmental laws to proposals for offshore drilling in the Arctic. I've used it in a coastal zone law class, but it also would work for an environmental or natural resources law course.
Allagash: This case study considers the application of the Wild and Scenic Rivers Act to a state management proposal for the Allagash River in northern Maine. The case study raises statutory interpretation and federalism issues as well as questions about the meaning and importance of wilderness. The case study itself here is here, and the exhibits are here.
Pitegoff Creek State Forest: This case study asks students to consider alternative management approaches for a new state forest. The fact pattern is hypothetical, but it draws on issues arising in forests in Maine and Oregon. It works best near the end of a natural resources course, when students can use the exercise to synthesize some of the ideas they have been considering throughout the course.
Fishing the Commons. This case study simulates the management of a common resource under conditions of uncertainty. The case study is really just a dice game, with rules spelled out in the short writeup and this Excel table, which contains a very simple numerical model, designed to track the results. It's fun, but it also illustrates how hard it can be to manage a shared-access, theoretically renewable resource under uncertain conditions.
Water Law Case Studies:
Groundwater Regulation and the Takings Clause. This case study uses the fact pattern from Bragg v. Edwards Aquifer Authority, an important takings/groundwater case out of Texas. It requires students to address a variety of thorny takings questions in the context of water use regulation.
Shady Acres. This case study addresses the intersection of water supply and land use law. It asks students to simulate a hearing in which a county board of supervisors will decide whether it can approve a proposed new mega-development while complying with California's show-me-the-water law. The case study also raises deeper questions about resource and land use planning in contexts of environmental uncertainty and change.
Delta Wetlands. This case study addresses water rights trading. It asks students to advocate for or against a specific proposal, advanced in the mid-2000s, to turn several islands in California's Sacramento/San Joaquin Bay-Delta into new, private water supply reservoirs. The case study raises statutory interpretation questions--students must evaluate the consistency of the project with specific provisions of water and environmental law--as well as deeper policy questions about the desirability of water marketing. While the fact pattern is specific to California, I've taught the case study elsewhere (as have other professors), with good results.
Advising Westlands. This case study asks students to evaluate the threats posed by environmental laws to Westlands Water District, a major water supplier in California's Central Valley. Unlike most of the other case studies, the format is non-adversarial; the students all represent Westlands. When I last taught the exercise, an attorney who actually does represent Westlands visited the class and provided feedback on the students' conclusions, but I've also taught the exercise successfully without a guest speaker (and outside California).
The Apalachicola-Chattahoochee-Flint Controversy: This case study asks students to evaluate negotiating positions of the three states involved in the ACF controversy. It's now a little dated--many important legal events have happened since I wrote it, and more or coming--so if you use it, you'd want to explain that you're asking students to evaluate interests as they existed at a past moment in time, not as they exist today.
Leg-Reg Case Study
Plan B Rulemaking Advocacy Discussion Problem. This case study asks students to think about advocacy strategies they would use to persuade an agency to adopt--or not adopt--a rule. The fact pattern is based on Lisa Heinzerling's Plan B Fiasco article, which chronicles a series of rulemaking debacles surrounding the morning-after pill. In creating the problem I also borrowed ideas (and ideas for source materials) from Bill Funk, Sidney Shapiro, and Russell Weaver's excellent administrative law casebook.
If you'd like to use any of these, please do! Let me know how it goes, but there is no need to ask for permission. Many of the case studies here are in Microsoft Word format, so you can easily adapt or update them as you see fit.
Lastly, if you're interested in an entire environmental law book built around case studies (though this one is not available for free), please check this out.
- Dave Owen
Tuesday, July 11, 2017
Here is a blurb describing what is sure to be a though-provoking, engaging conference:
The conference explores the takings issue as it relates to land use, environmental rules and other forms of regulation. In addition to offering a basic education in modern takings law, the conference brings together a diverse group of leading scholars and experienced practitioners to discuss cutting-edge issues. The conference will examine the U.S. Supreme Court's 2017 decision in Murr v. State of Wisconsin and its implications for the future of takings doctrine. Deputy United States Solicitor General Edwin Kneedler will offer reflections on his experience over the last 30-plus years arguing takings cases on behalf of the United States before the Supreme Court. Other topics will include important new developments in the application of the Takings Clause to water management, the relationship between private property rights and housing opportunity, and the property issues associated with siting of renewable energy projects and other energy infrastructure. The primary oral advocates before the U.S. Supreme Court in the Murr case will be speaking at the conference.
July 11, 2017 | Permalink
Tuesday, June 27, 2017
EPA and the Army Corps of Engineers just released a proposal to repeal the Clean Water Rule and to return to previous regulations. The Clean Water Rule (also known as the WOTUS Rule) would have clarified the scope of federal regulatory jurisdiction under the Clean Water Act. It was one of the Obama Administration’s signature environmental initiatives, and it was one of candidate and then President Trump’s signature targets. So the emergence of this proposal is no surprise. Nevertheless, the contents of the new document are surprising in several ways.
First, I’m not sure I have ever seen a notice of proposed rulemaking that makes so little effort to justify the rule it proposes. EPA and the Corps seem to have offered two, and only two, justifications for switching from the newer regulations to the old ones:
- First, they want to think a little bit more about the implications of Clean Water Act section 101(b), which affirms the importance of state involvement in water quality protection;
- Second, they worry that keeping the new rule could cause confusion if, as I think is likely to happen, the Supreme Court rules that the Sixth Circuit Court of Appeals does not have jurisdiction over challenges to the old rule.
The first rationale isn’t really a justification at all; one could do that thinking with the new or the old regulations in place, and the notice of proposed rulemaking does not even try to explain why the old regulations are more consistent with section 101(b). The second rationale is only slightly less sketchy. In the most confusing possible scenario, the Sixth Circuit would lose jurisdiction over the challenges, the federal district court cases would not be consolidated, and those district court cases would lead to conflicting results, so that some parts of the country are working under the new regulations and others under the old ones. But that still means just two systems in place, and they really aren’t very different. Whether that’s more confusing than operating under the old regulations—which were widely, if somewhat unfairly, lambasted for being confusing—is a tricky question, and a question the notice does not even try to answer.
In short, the agencies’ basic proposal is to repeal now and think and explain later; not once do they try to explain why the old regulations, which they would put back in force until they come up with a new approach, are worth readopting. To put it kindly, that is a fairly novel approach to administrative law. It also is an impossible approach to reconcile with the basic administrative law principles that agencies must offer reasonable explanations for the legal rules they adopt.
Later on, the notice offers a few more gems. It claims that this change “will not have a significant economic impact on a substantial number of small entities.” I think that might actually be true, but it’s completely inconsistent with the overheated rhetoric previously coming from the Clean Water Rule’s opponents, who argued, in then-Speaker John Boehner’s fairly typical words, that the Clean Water Rule would “place landowners, small businesses, farmers, and manufacturers on the road to a regulatory and economic hell.” In their defense, the agencies might try to say that the lack of impact arises because the rule is already stayed, but it’s hard to reconcile that claim with their argument that the repeal is necessary largely because the stay might be lifted.
Next comes the claim that “[t]his action does not have federalism implications.” So much, then, for the other justification of the rule: if the other key purpose of this repeal is to think about the federalism implications of Clean Water Act jurisdiction, how can the repeal be completely lacking in federalism implications? Either these claims are false, or the stated justifications are smokescreens (or both).
For months, this administration has suggested, in its rhetoric, that it had little respect for the rules of administrative law. Today’s action suggests, probably to the surprise of no one, that the rhetoric wasn’t just bluster.
- Dave Owen
Monday, June 5, 2017
How do we tax water consumption? And how should we? These aren’t questions that either water lawyers or tax lawyers are accustomed to thinking about. Water lawyers do think, sometimes, about using economic incentives to adjust water use patterns, but they typically assume that those incentives would arise through water trading or through pricing by utilities. Tax lawyers and law-and-econ types, meanwhile, have put quite a lot of thought into carbon taxes, but water rarely seems to enter their discussions.
One might think that mutual lack of interest arises because the fields are completely disconnected. But they’re not. A variety of tax code provisions do affect water consumption. Some do so directly—there’s a production tax credit for drinking water, for example—and some, like the mortgage interest deduction, do so indirectly. All of the interconnections may not amount to much, at least when viewed in comparison to aggregate tax revenues or aggregate water consumption, but they do exist.
And it’s interesting to consider whether more connections should exist. After all, many of the arguments that have made carbon taxes a popular idea (in some circles, at least) also apply to water consumption. In an era of water scarcity and conflict, we would do well to use less water, and economic studies suggest that the persistent pressure of tax liability could promote more water conservation. Taxation also would generate revenues, which could serve a variety of important ends—reducing other taxes, for example, or funding badly-needed upgrades to water infrastructure. The devil, of course, would be in the details, but the basic concept of water consumption taxation is sound.
Or, at least, that’s the argument I make in a recent paper. The paper identifies ways existing tax laws intersect with water law and then makes a broad argument for more ambitious reform. That argument is grounded in law and policy, not politics, and I realize that water taxation would be a tough political sell. But if taxes are, as Justice Oliver Wendell Holmes once put it, “what we pay for civilized society,” then taxing water consumption might be a good way to pay part of that price.
Thursday, June 1, 2017
This post first appeared on The Rural Environment on May 31, 2017 (you can subscribe to posts from The Rural Environment here: https://ruralenvironment.net)
In President Trump’s inaugural address, he stated: “We must protect our borders from the ravages of other countries making our products, stealing our companies and destroying our jobs.” Trump blames job loss on “bad” trade deals, like NAFTA, and economists have expressed great concern regarding Trump’s persistent threats to companies that might do business outside the United States. Trump voters—and particularly those who have been characterized as “angry” rural conservatives that increasingly vote Republican—are not likely comforted by the fact that it is unclear if American job loss is attributable to trade or technology or some combination of the two. They just care that the jobs have gone away. I know these areas. I am from there. Grove Hill, Alabama (Clarke County), has a population of 1,200 people in the poorest and most rural part of the state. But it is difficult for me to fully empathize with rural anger on jobs, primarily because our material-obsessed society has led to overconsumption that has undermined the ability of rural Americans to set aside income and grow household wealth. The failure of conservatives to adhere to the long-standing conservative tenant of fiscal responsibility at least partially explains the rural American plight. It is a failure in personal responsibility.
Both Democrats and Republicans have supported liberalized trade policies over the last thirty years, and these policies have given Americans one thing that they all seem to want—cheaper goods. As the price of goods has dropped dramatically in recent decades, per-capita consumption has risen. Prices of most goods have fallen almost every year since NAFTA, and “clothes now cost the same as they did in 1986; furnishing a house is as cheap as it was 35 years ago.” With cheaper goods in supply, Americans have increased demand. While many residents of Grove Hill may be “angry,” when I visit I see many people of otherwise limited means with flat-screen TVs, new Ford F-150s, smartphones, or many other items that have come to symbolize American prosperity. I doubt rural parts of key electoral states like Michigan, Wisconsin, and Pennsylvania are much different.
The consumptive patterns of Americans, in turn, have significant environmental consequences. By some estimates, if everyone on the planet consumed as much as the average American, we would need about 4 earth’s worth of resources to sustain demand. Consumption directly contributes to water pollution, air pollution, habitat destruction for species upon which we depend (for medicines and other ecosystem services, like pollination), hazardous wastes, and a host of other environmental problems. The environmental strain from overconsumption causes American taxpayers to turn around and expend even more income to fund basic environmental regulatory programs aimed at cleaning up the mess. So, overconsumption results in a double tax—we overspend on unessential items, undermining household wealth, and then must expend even more income to keep consumptive behaviors from harming human health and welfare.
But we should ask: has rural America capitalized on access to cheaper goods, padding household savings accounts to absorb a job loss until families can make a suitable transition to a new job or a new location? Most have not. Consider that at the time of the first Reagan administration, the bottom 90% of households saved 10% of their income. By 2006, their savings rate dropped to nearly negative 10% (though it has since rebounded to slightly above 0%). While rural areas may not be as poor as the narrative Trump used to stoke “rural anger,” rural counties often have even lower savings rates than average American homes. Blaming low savings rates on income stagnation or a host of other prevailing theories is insufficient (in the 1990’s income grew even as savings continued to plummet). So rural America should turn its anger into introspection and consider how personal decisions have contributed to its plight. And voters of all stripes are now primed to better understand the choice society faces between jobs and cheap goods.
U.S. goods are cheap because they can be made more cheaply elsewhere. One result is job loss, and it is difficult to have both the cheapest goods and lots of jobs down the street. Soon after NAFTA was passed, Camptown Togs, a textile mill in Grove Hill, closed. Walmart moved in, and two Walmart Supercenters are now located in Clarke County (total population, 25,000). Jobs were lost. Many other “mom and pop” stores disappeared from Grove Hill city streets. The fabric of the community was damaged, leading not only to job and resident losses but also increases in crime and substance abuse. Southwest Alabama is the poorest region of one of the poorest states in the country. But what do I see in abundance when I visit there? Flat-screen TVs, new Ford F-150s, and smartphones.
In recent decades there have been some fairly visible instances of disdain for the French arising from conservative circles (who can forget “freedom fries“?). Nonetheless, when teaching in France a few years ago I was struck by how proud the country is to protect local shops and to combat Walmart and Amazon from putting the mom and pop retailers out of business. As I discovered, a bag of potato chips may cost 3 times as much in France as it does at a U.S. Walmart, but local shops abound. Perhaps we don’t need to eat all those potato chips after all. And pricing can be a useful tool to signal what products we truly need versus those we merely want. In the end, there is a trade-off between local jobs and cheap goods, and Americans need to carefully consider their options—to be more protectionist for the sake of maintaining jobs and (perhaps?) the fabric of rural communities or to change consumption and saving patterns to capitalize on access to cheaper goods to grow household wealth. Conservative America in particular needs to look inward, since it has elected a man whose rhetoric is the antithesis of the free-market principles conservatives have touted the last few decades.
Ultimately, rural Americans cannot have their potato chips and eat them too. They should exercise the personal responsibility long-touted by conservatives and not place a disproportionate degree of blame on trade and job loss for their plight. They must question whether they really want to turn to a Trump government to interfere with free markets to save them, because that sounds a lot like a stereotypical liberal platform (mirroring a general take home from the New York Times best seller Hillbilly Elegy). Excess consumption harms both household wealth and what was once a fundamental tenant of conservative philosophy—conservation. Jason Clay of the World Wildlife Fund has noted that humans currently consume 1.33 earth’s worth of resources, and that “if we were farmers, we’d be eating our seed. If we were bankers, we’d be living off the principal, not the interest.” Do American consumption and saving patterns mirror foundational principles of conservative philosophy? Not exactly. Rural conservatives have chosen to consume, and not to conserve. The job loss resulting from trade policies that make goods cheap, and the reduced household wealth resulting from reckless excess consumption, have made many of them angry. But by blaming their plight on trade, rural Americans may be unwittingly making their lives even more expensive, rejecting longstanding principles of conservatism, and harming the environment in the process.
– Blake Hudson
Saturday, April 22, 2017
Brigham Daniels, a professor at BYU Law School, spoke today at Salt Lake City's March for Science. We asked for permission to post his remarks, and he agreed.
According to Daniels, it was a challenging speech to give. He said, "I knew that many in the crowd of a few thousand people would not be religious and some would dislike religion, and yet, I was asked to talk about faith and science."
Here are the written remarks he prepared for the speech:
I am a person of faith. I am going to speak about how I view the connection between science and faith.
I would like to begin with a story. A few years ago, my spouse was diagnosed with cancer. As we waited in the Huntsman Cancer Institute for the doctors to operate on her, I tried to put on a brave face. In my heart though, I prayed with desperation.
The operating team assembled. Each of them were women who had devoted their lives to the study of science. Each had allowed the scientific method, research, and peer review to train their judgment.
I felt this team was an answer to my prayers. As so frequently has been the case, God answered my prayers through the goodness of other people—this time good people guided by cutting edge science. Beyond medicine, science blesses our lives in so many ways. It has given us unparalleled libraries at our fingertips, made it possible to better face the challenge of world hunger, provided vaccinations to deadly diseases, increased our quality of life, made us prosperous, freed up our time, and extended our life span.
As a person of faith, I am embarrassed that others would use their faith to deny empirical findings of science. In some cases, this not only is dishonest, but denying the blessings and findings of science also turns a blind eye to God’s goodness, discounts the prayers and service of others, and reduces our ability to help and love each other. Much of the perceived conflict between faith and science comes from people trying to fit God and empirical findings into a tight box that meshes with our prior understanding of God and Universe.
All of us should approach the many difficult questions posed by both science and religion with humility. There is so much we don’t know. There is no shame in this. Rather, it is the beginning of wonder and the seeds of progress.
I would say that rather than shaking my faith, science has helped shape my faith. Science provides glimpses into the grandeur of the Creation, and thereby the greatness of the Creator. MRI machines, DNA research, computer modeling, satellites, experiments, labs, and statistical analysis all provide lenses to enhance our understanding and can add to our gratitude and awe. Even simple observations can do the same thing. Consider the complexity of your hand or the view into the Universe from the night sky.
While science often provides facts relevant to moral decisions, faith and ethics tells us how to act. My faith tells me that air pollution is more than a public health problem. It is a moral problem. Part of loving my neighbor means loving my neighbor’s lungs. My neighbors are also those who live on the Marshall Islands, who are losing their homes due to sea level rise caused by climate change. If we don’t make significant changes, 100s of millions more—the vast majority of whom are poor—will join their ranks by the end us the century. Once understood, faith tells me to show love by driving less, using green energy, and consuming less.
One of my heroes, John Muir, once said of his most treasured landscape, Yosemite, “Yet this glorious valley might well be called a church, for every lover of the great Creator who comes within the broad overwhelming influences of the place fails not to worship as they never did before. The glory of the Lord is upon all God’s works; it is written plainly upon all the fields of every clime, and upon every sky, but here in this place of surpassing glory the Lord has written in capitals.” Protecting open spaces and wildness—and all parts of the creation—is a way to show gratitude to God.
I truly believe that protecting the environment is vital for the human soul.
Thursday, April 20, 2017
At a recent admitted students event, a soon-to-be 1L with an interest in environmental law asked me what she should read this summer. I thought it was a good question, so I shared it with an environmental law professors’ listserve. This post takes suggestions I received and turns them into a short summer reading list.
The list comes with a few caveats. First, I focused on environmental law books. There are many wonderful books about environmental issues more generally, including classics like A Sand County Almanac and Silent Spring that helped inspire the environmental movement, and thus helped create environmental law. Many wonderful books have also been written about law more generally. Those other categories contain enough good books for many summers of happy reading, and perhaps in another post I’ll say more about the general environmental category, but the focus here will be somewhat narrower.
Second, while this list reflects the input of dozens of professors, I didn’t do a formal poll, and any glaring omissions or weird choices can be blamed on me alone.
So, the recommendations:
- The Favorite
Three decades ago, industrial solvents contaminated two wells that the City of Woburn used for municipal water supplies. The awful consequence was a leukemia cluster that killed many Woburn residents. The tragic story also produced what I think is the greatest environmental law book ever written. Jonathan Harr’s A Civil Action tells the story of the contamination and the subsequent litigation. The book is as gripping as a top-notch thriller, rich enough in its legal discussion to be assigned as a companion to first-year civil procedure courses, and deeply humane in its treatment of the human dramas of the tragedy. If you want to read just one environmental law book, this is it.
There’s also a movie, but don’t bother.
- The Storytellers
There are many great storytellers in the field of environmental law, but among academics, no one spins tales better than Oliver Houck and Zyg Plater. In The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River, Plater (now a professor at Boston College) tells the story that gave rise to (and followed) Tennessee Valley Authority v. Hill, a classic case you’re likely to read in your environmental class, if not before. And in Taking Back Eden: Eight Environmental Cases that Changed the World, Houck tells the stories behind a series of David v. Goliath environmental cases from around the world—with David sometimes winning.
- The Backstories
You’ll read a lot of cases in law school. And you’ll often wonder about the stories behind the cases. Some cases—like TVA v. Hill—have whole books devoted to them. But if you want shorter summaries, as well as an introduction to the lawyering that goes into an environmental case, Environmental Law Stories is a great choice. Each chapter in the book tells about a major environmental case and the details are sometimes surprising and occasionally even humorous. For example, Jody Freeman’s account of befuddled, bored, sleepy judges stumbling their way through environmental cases is not to be missed.
- The Consolidated History
In 2004, Richard Lazarus, who now teaches environmental law at Harvard, published what is still the most comprehensive historical account of American environmental law. The Making of Environmental Law is wonderfully accessible—it would make a great companion to an environmental law course, but you would also be able to follow it without prior legal coursework—and it does a great job of explaining the interplay between legal developments and changes in politics and society.
If you’ve followed environmental controversies recently, you’ve heard about coal. President Obama’s efforts to tighten environmental regulation of the coal industry were widely cheered by environmentalists (and economists), but Donald Trump has now made a coal revival into a major priority. But this is nothing really new; coal has been generating environmental controversies, and good writing, for a long time. In The Buffalo Creek Disaster, Gerald Stern tells the story of a disastrous coal sludge spill in the early 1970s and the litigation that followed. Like A Civil Action, the book sometimes serves as a companion to first-year law courses; it introduces you to a wide variety of lawyering challenges in the context of a compelling story. It also is just part of a longer tradition of environmental writing about coal country, with older and more recent examples here and here.
The books I’ve listed here are, of course, just the tip of an iceberg, and if I were to include general environmental writing, the list would grow much, much longer. The list also leaves off several books (Paul Barrett’s The Law of the Jungle is one example) that colleagues recommended and that are now on my own summer reading list. In other words, it’s not at all complete. But sampling some of the works mentioned here would be a great way to introduce yourself to the study of environmental law.
- Dave Owen
Wednesday, April 12, 2017
The Trump Administration plans massive cuts to EPA’s budgets (the latest numbers suggest a cut of around thirty percent). For people who care about environmental quality, this is very alarming. But suppose you don’t personally value blue skies, clear lungs, clean water, or any other environmental amenity, and instead care only about the well-being of American businesses (suppose, also, that you do still acknowledge the reality that other people do value those things). Would you have any reason share the concerns about the proposed EPA budget cuts? The answer, I think, is yes, and here are just a few reasons why.
- Your business may sell environmental quality. Imagine that you run a beachfront hotel, or sell real estate in an area with natural amenities, or you manufacture clothing or equipment for outdoor recreation, or you’re a rafting or fishing guide, or you own a restaurant near a national park, or you sell bottled or tap water, or you run a ski area threatened by warming temperatures. Environmental quality is the part of the good you’re selling, but you probably can’t protect it on your own. For that, you’ll need regulatory oversight, which means you’ll need something like EPA.
- Your business may depend upon environmental quality for manufacturing inputs. Many businesses depend upon a quality environment for their raw materials. Clean water, for example, isn’t just a human health need. It’s also important for many manufacturing processes. If your manufacturing plant can’t use tap water because it’s too polluted—which recently happened to a GM factory in Flint, Michigan—replacing that water could cost you a lot of money. If your city has to pay higher treatment costs because its source water is contaminated, those costs will likely be passed on to businesses. Similar issues can arise if dirty air damages crops or forests, if lost pollinators lead to damaged crops, or if damaged habitat quality leads to declining fish catches.
- Environmental quality may help your business recruit. I used to live in Maine, and quality of life—including environmental quality—was a huge part of Maine employers’ recruiting pitches. Live here, the argument went, and these beaches and rivers and lakes can be part of your daily life (it was a pretty good pitch). Companies in many other parts of the country can offer the same argument. Indeed, in an international recruiting battle with, say, Beijing or New Delhi, any American metropolitan area could offer those arguments, largely because of our history of EPA-led environmental protection. But if the environmental quality goes away, so too does the recruiting pitch.
- Your employees (or their family members) may drink water and breathe air. You might not think of environmental health problems as a business expense. But they are; if an employee’s daughter has a pollution-induced asthma attack, that employee is probably staying home for a day, or coming to work with a lot of extra stress. Either way, productivity drops. Similarly, if lead exposure does permanent damage to a child’s intelligence, that child’s economic productivity is also likely to drop. A healthy population provides a major economic asset (among other benefits). And that’s an asset we ought to grow, not give up.
- Your business model may depend upon environmental mandates. The Trump Administration’s rhetoric includes mantra-like accusations that environmental regulations kill jobs. But there are many jobs that owe some of their value, if not their entire existence, to environmental regulation. Many companies’ business models revolve around finding ways to reconcile environmental protection and economic activity. The environmental consulting industry, which helps businesses figure out how to comply with environmental regulations while continuing to make money, is one example. Wetlands mitigation bankers are another. Manufacturers and installers of energy efficiency technologies are a third. The list could go on and on. Without regulatory oversight from EPA, the incentive to hire these businesses would diminish, if not disappear.
- Your business may want clarity about its environmental obligations. Sometimes businesses need help understanding their environmental obligations. Businesses will often turn to consultants or lawyers for the answers—thus creating work, and jobs, for the lawyers and consultants—but sometimes they will want a cheaper explanation (and sometimes the consultants and lawyers also have questions). A well-staffed environmental regulatory agency can answer those questions when people call, or can put out guidance documents that anticipate the questions before they are asked. In other words, it can provide regulated entities with clarity and predictability, both of which can be very valuable. But if one-third of the office staff are gone, there may be no one to put out those guidance documents or answer the calls.
- Your business may require innovative regulation. Suppose your business model is new, and existing regulations cover its operations—but not very well. You might want regulatory changes that are responsive to the unique needs of your business while also providing the public (and your employees) with the traditional protections of environmental laws. That will mean asking government to work with you to come up with new regulations or new permitting approaches. A well-staffed agency can provide that kind of support. But an agency with bare-bones staffing—or much less than that—is highly unlikely to take on the labor-intensive task of coming up with new and better ways to regulate. Instead, your business is likely to remain burdened with rigid, potentially obsolete obligations.
There is a broader point here. Quite often, we think of relationships between environmental regulators and businesses as adversarial, and sometimes that traditional view is accurate. But business-regulator relationships are also often collaborative, and those collaborative relationships have played a huge part in improving our environmental quality in many ways at the same time our economy has grown. Because collaboration requires staff time, gutting EPA means cutting that collaboration. That will leave many businesses worse off.
- Dave Owen
Monday, April 3, 2017
When I teach environmental law, I dislike teaching the material dealing with constitutional law. I am thinking, for example, of the commerce clause cases challenging the constitutionality of the Endangered Species Act and wetlands regulation, the cases on standing to bring environmental citizen suits, and regulatory takings. Students often enjoy this material, but I am embarrassed by the legal gymnastics that are required for courts to approve of federal action, to hear citizen-initiated environmental cases, and to decide them in a way that favors the broad public interest in environmental protection.
It shouldn’t be this way. To start with, the commerce clause should have nothing to do with environmental law. Do most Americans think that our national government should be able to make comprehensive laws to protect human health and the environment? I am pretty sure they do. There are many reasons that we would want the federal government to be the primary actor in environmental protection aside from the fact that economic interests are at stake. Wetlands are a valuable national resource, as are threatened and endangered species. State governments often don’t have the expertise to evaluate and protect these resources, and even if they did, would we really want all 50 states to do it themselves? For its part, standing doctrine was rewritten in the past thirty years by a few Supreme Court justices who were hostile to environmental law who wanted to keep environmental cases out of the courts. The hoops that citizen groups are required to jump through just to stay in court are ridiculous.
We really need to amend the Constitution. Perhaps the best option would be to create an express right to clean air, safe drinking water and a healthy environment. The right to a healthy environment is widely recognized in international law and endorsed by an overwhelming proportion of countries. Environmental rights are included in more than 90 national constitutions (see graphic below), and they are having significant impacts, ranging from “stronger environmental laws and landmark court decisions to the cleanup of pollution hot spots and the provision of safe drinking water.” Many U.S. states also have environmental rights provisions in their state constitutions.
While creating an environmental right seems reasonable and makes good sense to me, I think that many would say that it is out of line with the US’s constitutional tradition. They may be more open to a more limited, but still useful option: an “environmental responsibility” provision. Twenty-five years ago, one legal academic suggested the following wording for an amendment: “In all acts of government, the integrity and sustainability of natural systems shall not be impaired except to protect health and safety where no acceptable alternative exists. Maintenance, restoration, and renewability of natural systems, enhancement of environmental quality, and fairness to posterity shall be governing principles of policy.” With such a statement in the Constitution, the Supreme Court and the federal government generally would have to consider the protection of our environment as their responsibility. What a difference that could make.
And while we are amending the constitution, let's talk about the electoral college!
 D.R. Boyd, The Constitutional Right to a Healthy Environment, Environment Magazine (Jul/Aug 2012) available at http://www.environmentmagazine.org/Archives/Back%20Issues/2012/July-August%202012/constitutional-rights-full.html; See also D. R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver: University of British Columbia Press, 2012).
 Audrey Wall, State Constitutions and Environmental Bills of Rights (Sept. 1, 2015) at http://knowledgecenter.csg.org/kc/content/state-constitutions-and-environmental-bills-rights
 Lynton K. Caldwell, The Case for an Amendment to the Constitution of the United States for Protection of the Environment, Duke Environmental Law & Policy Forum 1 (1991), available at available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1198&context=delpf.
Monday, March 13, 2017
Last Friday, UC Davis School of Law’s Environmental Law Society and the Environs journal held their 2017 Symposium, The Future of Climate Change Law & Policy: View to 2030. It was an excellent event, with many great speakers and terrific attendance -- big congratulations to the student organizers: Sophie Wenzlau, Dane Jones and Jamie Katz! Panels dealt with California’s new SB32 (which updates AB32 by writing into law California’s 2030 goal of reducing its emissions to 40% below 1990 levels by 2030); climate change and agriculture; zero emissions vehicles; and California’s leadership in international climate law.
A couple speakers on the final panel about international connections couldn’t come at the last minute, so I and several of my colleagues were asked to step in. The panel went well, but I had one of those experiences that one should not have after more than 10 years of teaching and presenting on panels – I spoke for 9 (out of 10) minutes without getting to the point! Of course, we all hate when professors do this! I can only offer the excuse that I am out of practice, and I have been through a ridiculous amount of cancer treatment in the past three and a half years. But it was a shame because I really had some important knowledge that I wanted to convey, and I bombed it.
This blog post is my attempt at a re-do. The very interesting and timely question that I wanted to address was how and why California has made so many international linkages in climate policy. Everyone knows that California has been a climate change leader within the United States. But it may be forgotten that California has also been extremely active internationally, working with other subnational jurisdictions throughout the world. The map below gives you a clear picture:
An early demonstration of California’s interest and capability to make agreements with other subnational jurisdictions came from California’s leading role in the Western Climate Initiative (WCI) starting in 2007. Other participants included six states (AZ, NM, UT, OR, WA, and MT) and four Canadian provinces (BC, Manitoba, Ontario and Quebec). WCI contemplated a cap-and-trade program that would include all the WCI jurisdictions. Why did California try so hard to work with other states and Canadian provinces? Was it to look big and impress? Well, maybe, but there was an important economic policy reason, too. As WCI recognized, “a broad geographic scope will also reduce overall compliance costs and can help mitigate leakage risks.” it was in this same timeframe that the US came closest to getting a federal climate law. In June 2009, the House passed the Waxman-Markey Bill in a 219-212 vote. But then the bill died in summer 2010 without a hearing or a vote in the Senate. WCI also progressively fell apart in 2009/10 as new state leaders came into office. By 2011, only California and Quebec were working on establishing cap-and-trade programs.
They both did, and in January 2014, the two cap-and-trade systems were formally linked. This meant that compliance instruments from Quebec’s program could be used in California’s program, and vice versa. This is useful for regulatory compliance because it might be that there are emissions reductions that can be obtained at lower cost in Quebec. Or more broadly, the overall cost of reducing emissions might be lower in Quebec. When the two systems are linked (and in the absence of rules that make it otherwise), those lower-cost emissions reductions will happen first, and the joint California-Quebec program will be able to collectively reduce emissions at a lower cost than a California-only program would.
If you, for whatever reason, wanted to see those emission reductions happen in California, you may not be happy about all this. But for those who are subject to the regulation and want to buy compliance instruments (i.e. tradable permits) rather than reduce emissions themselves, this linkage should reduce their compliance costs. California is now preparing to formally link with the province of Ontario by January 1, 2018.
In large part, it is this pursuit of the lowest cost emissions reductions that has fueled California’s foreign policy on climate change. Aside from linked programs in Canadian provinces, the other international opportunity that California has extensively cultivated is in tropical forestry offsets. In 2008, California founded the Governors’ Climate and Forests Task Force (GCF) to influence the development of the regulatory architecture to ultimately enable emissions reductions in the tropical forests of several developing countries to serve as compliance instruments in California’s cap-and-trade program. Currently, GCF includes 29 subnational jurisdictions in eight countries sharing information and best practices.
A 2010 MOU among California, the Brazilian state of Acre, and the Mexican state of Chiapas contained recommendations for how Acre and Chiapas would be able to generate “REDD offset credits” that could serve as compliance instruments in California’s cap-and-trade program. Of course, the idea is that reducing deforestation in tropical rainforests has the dual benefits of saving rainforest ecosystems and preventing emissions. And, at some point, reducing emissions by preventing deforestation is expected to be cheaper than additional emissions reductions within California, Quebec, and Ontario. These credits could enable California and other cap and trade jurisdictions to meet ambitious emissions reduction goals for 2020 and beyond.
With these efforts, California and its Governor became important players on the international climate stage. The 2014 Rio Branco Declaration was produced at the eighth meeting of the GCF. In this Declarations, governors from 22 states in countries with tropical forests committed to reduce deforestation by 80% by 2020, if they receive a guarantee of “adequate, sufficient, and long-term performance-based funding.” Enabling REDD credits to be used as compliance instruments in an ongoing, functioning cap and trade program could be a source of long-term funding.
Also, in the lead-up to the UN climate meeting in Paris in late 2015, California forged the Subnational Global Climate Leadership MOU, known as the Under2 MOU. Two goals are adopted: (1) limiting warming to below 2° Celsius, which scientists say is needed to avoid dangerous consequences; and (2) limiting greenhouse gas emissions to 2 tons per capita, or 80-95% below 1990 level by 2050. The MOU included 12 founding jurisdictions in addition to California: Oregon; Washington; Vermont; Acre, Brazil; Baden-Württemberg, Germany; Baja California, Mexico; Catalonia, Spain; Jalisco, Mexico; Ontario, Canada; British Columbia, Canada; and Wales, United Kingdom. It has grown to 167 jurisdictions from 33 countries, representing 1.09 billion people and $25.9 trillion in GDP, which is 35% of the global economy. With the arrival of the Trump administration, which is completely abdicating in climate change policy both domestically and internationally, California continues to stand by its climate law commitments. Long live California’s climate change leadership!
Okay – so the above is what I should have said last Friday. And I might have been able to say it all in 10 minutes, but instead I started out with some preliminary musings that ate up my time. These musings mainly focused on how California’s rigorous emissions reduction regulation and its international actions were a puzzle – how and why did California become such a leader? If we think about the principles of regulatory design, California’s climate change regulation makes little sense. Certainly, it doesn’t follow the rule that there should be a match between the size of the problem and the size of the jurisdiction addressing it. And how is it that California seems to simply defy the foundational tragedy-of-the-commons problem? Why is the state willing to invest so much in reducing emissions when almost no other jurisdictions are? And what led to California becoming such a policy leader not just in the US, but internationally?
There has been some good writing on these questions – indeed we’ve had ten years to think about them – but I don’t feel like I have a good grip on the answers. As I note above, I think that California’s decision to implement a cap-and-trade program motivated its early international linkages. It has also turned out that emissions reductions have been cheaper than expected, which has helped California’s cap-and-trade program run smoothly. And surely, part of the explanation regards political leadership: Governor Jerry Brown emerged as a truly inspired leader, effective in bringing not just the state into the fold, but more than a third of the global economy. What other factors have enabled California’s leadership? I welcome your thoughts below!
And as for panel presentations, I hope I have learned not to start a short talk with an idea that puzzles me - next time I hope I can just get the puzzling facts out for all to appreciate and then see if there’s time leftover for additional ramblings!
Friday, March 10, 2017
On Tuesday, the Ninth Circuit Court of Appeals released an important decision in Agua Caliente Band of Cahuilla Indians v. United States. The decision addressed whether the Agua Caliente Tribe, which has a reservation in southern California’s Coachella Valley, could assert a federal reserved right to groundwater. The Ninth Circuit held that the tribe could assert such rights.
Before I explain some of the potential implications of the case, some background on reserved rights may be helpful. In general, state law defines water rights, even where the waters in question are found on federal land. But in Winters v. United States, 207 U.S. 564 (1908), the United States Supreme Court held that when the federal government reserves federal land for a specific use, it also reserves sufficient water rights to accomplish the purpose of the reservation. Reserved rights doctrine applies to federal reservations in all their forms, but many of the most prominent reserved rights cases have involved Indian reservations.
The resulting rights can be valuable. Federal reserved rights date to the time of the reservation, which means they tend to be old. And the age of a water right can be crucially important, particularly in the American West, where older rights theoretically trump newer ones. In practice, reserved rights function as the most senior rights in western water allocation systems. That creates an interesting paradox: Native American tribes, which historically were on the short end (to put it mildly) of most western resource allocation decisions, can hold some of the West’s most valuable water rights.
Until this past week, the tribes had successfully asserted reserved rights only to surface water. But for the Agua Caliente Tribe, that wasn’t a likely option; their homeland falls within one of the driest deserts in the United States, and surface water is largely absent. If the tribe was to assert a meaningful reserved right, that right had to be for groundwater. And in Tuesday’s decision, the Ninth Circuit held that such a reserved groundwater right was possible.
So how important is the case? It seems safe to predict that other tribes now will assert similar claims. But there reasons both for and against expecting a more widespread impact. I’ll start with the reasons why we might expect this case to be consequential.
First, and at the risk of stating the obvious, the case will support other tribes’ claims to a new kind of water source. In an area like the Coachella Valley, where surface water is scarce and groundwater rights are contested, the ability to assert old rights to that additional source can give a tribe a trump card in water disputes with its neighbors. In most of the United States, the climate is not as extreme as it is in the Coachella Valley, and surface water is more abundant. But there still are many other places where groundwater provides the primary water source. For that reason alone, the case will likely have ripple effects across the West, and perhaps in eastern states as well.
Additionally, a right to groundwater is sometimes valuable because groundwater is more physically accessible that surface water. Surface water can be hard to exploit, even if one theoretically has a legal right to that water, because exploitation often requires constructing and operating canals, pipes, intake pumps, and other infrastructure. For a tribe with very little money to spend (and no offers from the Bureau of Reclamation to subsidize construction, as routinely happened with the tribes’ non-native neighbors), building that infrastructure could be prohibitively difficult. Because of that difficulty, many tribes have had limited ability to exploit their reserved rights. Accessing groundwater, by contrast, can be much easier. A landowner just needs to sink a well and install a pump and a sprinkler system. That still costs money, but the infrastructure costs are often much lower.
On the other hand, there are reasons to anticipate less impact. One is that many tribes already have state-law groundwater rights, which they hold by virtue of current landownership rather than past federal reservations. Reserved groundwater rights could give tribes older priority dates, but in many places, those rights would not conjure legal groundwater access where it had not existed before. Second, any additional water that some tribes gain through access to groundwater might be lost when their surface water reserved rights are recalculated. To measure the aggregate scale of tribal reserved rights, courts typically use a practically-irrigable-acreage standard, which—in theory—looks at tribes’ ability to use water, not at water availability or at competing demands. In other words, measures of demand, not supply, theoretically determine the scope of reserved rights, and the emergence of a new supply therefore might not impact the overall scope of the right. In practice, things could play out differently; some legal uncertainty hovers over Winters doctrine and Native American claims (for an interesting and still-relevant article, see Andew C. Mergen & Sylvia F. Liu, A Misplaced Sensitivity: The Draft Opinions in Wyoming v. United States, 68 U. Colo. L. Rev. 683 (1997). But it is at least plausible that a tribe with recognized reserved rights to surface water would see little benefit in also asserting a groundwater claim.
The Agua Caliente litigation is not over, and in subsequent phases (or settlement negotiations), and in cases elsewhere, litigants are likely to address many of these remaining questions.
- Dave Owen
Thursday, March 2, 2017
On Tuesday, President Trump signed an executive order directing EPA and the Army Corps of Engineers to begin work on a new rule defining the scope of federal jurisdiction under the Clean Water Act. The rule, if and when it is finalized, would replace the “Clean Water Rule” released by EPA and the Corps during the summer of 2015. Much of the political rhetoric surrounding the Clean Water Rule has suggested that the 2015 rule was responsible for massive economic impacts and that removing it will be a source of economic relief. President Trump’s own remarks, for example, were riddled with such complaints. But for several years, I’ve been researching the implementation of federal stream and wetland protections (the results of those inquiries appear in just-published articles here and here and in an earlier article here). The truth, I’ve learned, bears little resemblance to President Trump’s claims.
In fact, the 2015 rule has had hardly any impact. That’s partly because the Sixth Circuit stayed implementation of the rule not long after it was enacted. But even if the rule had remained in force, its primary consequences would have been minor adjustments in the scope of federal jurisdiction and somewhat heightened levels of consistency and predictability. Indeed, the scope of federal jurisdiction would have been narrower than it was in 1986, when EPA and the Army Corps—overseen by the Reagan Administration—last promulgated regulations defining Clean Water Act jurisdiction. The rule, in short, should not have been a big deal.
So why, then, did the rule generate a firestorm, and why has Donald Trump made replacing it such a priority? One reason is that some regulated entities have never been comfortable with the scope of Clean Water Act jurisdiction (for others, that jurisdictional scope is only a minor concern, or, if the they need clean water, an important benefit). For those entities, the Obama-and-EPA-are-overregulating story was just a convenient hook upon which to hang forty years of annoyance. The second reason is that even though jurisdictional boundaries have not expanded in decades, the thoroughness and scope of regulation within those boundaries has. It used to be fairly easy, in many parts of the country, to fill jurisdictional waters. As Clean Water Act regulation evolved, some of that ease went away. Again, this trend was not peculiar to the Obama Administration, or even to the federal government; some of the changes emerged from red states and during the Bush I, Clinton, and Bush II administrations. Pinning the changes on the Obama Administration is just a convenient rhetorical device.
Because the Clean Water Rule didn’t actually change much, the most important part of the executive order isn’t the language directing EPA and the Army Corps to rescind the old rule. Instead, it’s language at the end of the order directing EPA and the Army Corps to “consider interpreting the term "navigable waters," as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).” Justice Scalia’s Rapanos standard would eliminate federal jurisdiction for any waterway that lacks a relatively continuous surface connection to navigable-in-fact waterways. In somewhat plainer English, that means the Clean Water Act would no longer protect ephemeral or intermittent wetlands and streams. That would be a drastic shift. Across the nation, a huge percentage of our streams are ephemeral or intermittent, and in drier regions, a continuous-surface-connection standard would eliminate Clean Water Act protections for nearly all aquatic features.
That drastic shift would have terrible implications for water quality. Ephemeral and intermittent streams and wetlands are not the most charismatic of environmental resources, but they are important. In recent years—particularly in the years since the Supreme Court’s Rapanos decisions—a growing body of scientific literature has explored the implications of tributary waterways, including intermittent and ephemeral streams, for downstream water quality. Scientists have discovered that very small tributaries play crucial roles in processing nutrients, and thus protecting downstream waterways from algae blooms and dead zones; limiting floods; recharging groundwater; sustaining steady flows; supporting biodiversity; filtering pollutants; and maintaining fluxes of sediment and debris. In simpler terms, they protect water quality, water supplies, and public safety; they make the rivers, lakes, and bays that we love places worth loving. Fill them in, and those benefits will disappear. Yet that is exactly what the new executive order asks EPA and the Army Corps to do.
Beyond water quality, this controversy reflects a larger tension between environmental law’s narratives of conflict and of collaboration. In their speeches about the Clean Water Rule, Donald Trump and the rules other opponents have emphasized a story of less-than-zero sum conflict, in which EPA (they never mention the Corps) is driving thousands of Americans out of work for little environmental gain. It isn’t just the latter part of that story that is false. One of the most striking lessons of my research on stream and wetland protection was the extent to which the Army Corps has found ways to increase regulatory protections for waterways while also finding more efficient, predictable, and low-cost ways to implement those protections. Stream and wetland protection wasn't stuck in zero-sum conflict. Instead, the environmental law of stream and wetland protection had been on a decades-long trajectory of improvement.
That trajectory can continue. I don’t expect the Trump Administration will help; its leaders are screamers, and screamers have no use for narratives of creative compromise or governmental improvement. But the rest of us do have use for those narratives, particularly when, as is often the case, they are true. So hopefully cooler heads will eventually prevail, and we will continue finding sensible ways to improve protect our streams and wetlands—and the millions of people who depend upon them.
- Dave Owen
Wednesday, March 1, 2017
Did you know that as of July 2016, we have a new federal law mandating that genetically engineered food be labeled? It is true – see 7 U.S.C. § 1639(b)(2)(D) (Jul. 29, 2016). So when, you might ask, will you be able to know which of all those foods we buy at the grocery store are produced with GMOs?
It could be a very long wait. For one thing, the law – the National Bioengineered Food Disclosure Standard – didn’t actually mandate a label that directly states that the food is a GE food. Rather, Congress left open the possibility that USDA allow scannable QR codes (pictured below) instead of on-package labeling as the means of disclosure. Congress charged the USDA with completing a study within one year (i.e. by July 2017) regarding whether QR codes would preclude consumer access to the disclosure (and if so, the agency shall provide “additional and comparable options to access the bioengineering disclosure.”) As of early January, USDA didn’t have the funds to conduct the study.
The Disclosure Standard itself is supposed to be established within two years of the passage of the law. But in Trump’s administration, with its strong anti-regulatory ideology, the best guess is that forward motion will be further delayed. On the campaign trail in Iowa Trump said he opposed efforts to require mandatory labeling of GE food. Even though mandatory labeling is now the law of the land, it seems very unlikely that the 90% of Americans who have expressed their interest in labeling will be satisfied any time soon.
Perhaps most significantly, this federal action (and non-action) on GMO labeling has paralyzed all state labeling for the foreseeable future. The federal law was passed (with the support of industry) just weeks after Vermont’s law went into effect that required on-package labeling. The federal law expressly preempted Vermont’s law and other state efforts to require labeling. Indeed preemption was the raison d’etre for the federal law. So now, all those consumers are left without any option. States can’t regulate because they are preempted, and the federal government won’t likely regulate because it doesn’t like regulation (despite the existence of the law). While the courts could intervene, that possibility is still years away.
Such regulatory paralysis by preemption could become a new strategy for delaying and preventing protective regulations in the future. As some states start acting more aggressively to deal with environmental problems that the federal government is not acting on, Congress could simply pass laws that purport to regulate the matter and expressly preempt the states from doing so. In reality, however, those laws could be so poorly written or designed (as many pro-labeling advocates argued that this law was) that they will never be effectively implemented or enforced.