Thursday, April 24, 2014
Jared Goldstein has a fascinating piece in Thursday's morning edition of Slate on the roots of constitutional vigilantism behind the recent protests on the Bundy Ranch in Nevada. Goldstein traces a common perspective linking the Klan, the Posse Comitatus, the '90s militia movement, the Tea Party and the groups out in force at the protests over one man's desire to continue illegal grazing on federal lands. Well worth the 5 minute diversion!
-- Michael Burger
Monday, April 21, 2014
Landowners flooded by the Missouri River in 2011 have sued the Corps of Engineers for a Fifth Amendment “taking” under the U.S. Constitution. Their attorneys hope to rake in over $250 million in claims for their clients and at least $1 million in expenses and fees for themselves. They’re likely to be disappointed.
Lawsuits seeking recovery of flood damages from the federal government almost always fail. First, the United States is immune from suit for negligent construction or handling of flood control structures under the sovereign immunity shield of the 1928 Flood Control Act, as plaintiffs whose lives were destroyed when levees failed during Hurricane Katrina quickly discovered. My co-author Christine Klein and I have called for a repeal of this provision in our article and book on Unnatural Disasters, but it hasn’t happened.
In hopes of avoiding the immunity problem, the Missouri River plaintiffs have brought a claim under the Fifth Amendment, which is not barred by the Flood Control Act. However, this claim is just as unlikely to stick, for good reason. As we document in our previous work, courts find that floodplain management constitutes a regulatory taking in only the rarest of cases, whether the impact to private property occurs through land use restrictions on construction or through flood control structures like dams and levees. This is because the impact is neither a “permanent physical occupation” of the property by the government, nor is it an excessive regulation that deprives property of “all economically beneficial use” or has otherwise gone “too far” in adversely affecting reasonable investment-backed expectations of the floodplain owners (in the words of the U.S. Supreme Court). It is simply not reasonable to settle in the floodplain and expect that the property will never flood.
These plaintiffs are attempting to bring their claims within the purview of a 2012 Supreme Court case, Arkansas FGC v. U.S, where a landowner (the State Fish & Game Commission) prevailed on its claim that the Corps had physically taken a flowage easement over its land. The case raised a unique set of facts and the decision is a remarkably narrow one, and it is completely inapposite to what happened on the Missouri River. Here’s why.
In Arkansas, the Corps opted to depart from its Water Control Plan for the dam in question by releasing water over longer periods each year during a seven-year period, not because of any physical imperative (e.g., unusual amounts of rain or snow) but because farmers urged it to do so to keep their croplands dry for longer periods during harvests. The deviation caused a dramatic increase in flooding in a wildlife management area owned by the State, causing widespread and permanent damage to its trees. The flooding was significant enough, for long enough periods, to change the character of the area and to substantially interfere with the State’s ability to use its land. The Corps had effectively taken title to the land without going through the appropriate processes for exercising the government’s power of eminent domain.
In stark contrast to the 2011 Missouri River flood, the Corps’ intentional flooding of Arkansas’s land was the direct and proximate cause of the foreseeable destruction of the State’s property. The Corps deviated from its Arkansas Plan in order to benefit the farmers, when it knew (or should have known) that the deviation would inevitably destroy the State’s land. The Corps created winners and losers, and the Supreme Court forced it to pay the loser.
On the Missouri, the 2011 flood made losers out of just about everyone. The Corps’ flood control structures were taxed to their limits by unprecedented amounts of snowmelt and rain over a long period of time in the spring and summer of 2011. In April, Rocky Mountain snowpack was 140% of normal; later in the summer, rainfall was three to six times normal in the upper Missouri River Basin. At Sioux City, Iowa (the demarcation between the upper and lower river), runoff measured 13.8 million acre feet (MAF), smashing the old 1952 record of 13.2 MAF. The third wettest month ever documented on the Missouri River happened to be May 2011 (10.5 MAF) and the fifth wettest was July 2011 (10 MAF). See National Weather Service, The Historic Missouri River Flood of 2011; Senate Report 112-075 - Energy and Water Development Appropriations Bill, 2012. That water had to go somewhere, and once the dams were filled to capacity, it went downstream and into the floodplain, as rivers naturally do (especially the Missouri, which is widely known for its flood-prone tendencies).
The plaintiffs argue that the Corps has abandoned its flood control mission in favor of other priorities on the Missouri River. Specifically, they claim that the Corps kept the reservoirs full in the spring to benefit recreation and endangered species, and that fuller reservoirs means less storage for flood waters. The factual record doesn’t back them up, and the law is more nuanced than they allege. In truth, Congress directed the Corps to build the dams and manage the system for seven purposes in addition to flood control: navigation; hydropower; water quality; water supply; irrigation; recreation; and fish and wildlife. Flood control and navigation may be toward the top of the list, but they are far from the only concerns that drive river management. More to the point, none of the other purposes were prioritized at the expense of flood control in 2011. The Missouri River system was operated in accordance with the Master River Manual in response to abnormal snowmelt and rainfall that just kept coming for months on end. The operations were dictated by conditions, not by other priorities. Sometimes, the river simply reclaims its floodplain, despite human efforts to hold it back.
The tired refrain that the government elevated the concerns of fish over people is a red herring. The real problem is that people wanted to settle in the floodplain, so the federal government undertook flood control, which prompted more people to move into harm’s way. It’s ironic that the landowners who cry “foul” today have received a bounty of flood control-related benefits from the government through the years. No doubt the flood damage to their properties in 2011 would have been worse if the federal government hadn’t built dams and other structures on the Missouri River. Consider the 1993 flood, which set the record for the highest water level in Kansas City, but resulted in much lower discharges (flooding) than pre-dam floods in the 1800s and early to mid-1900s.
Meanwhile, individuals and communities who chose to reside in the floodplain demanded additional protection through the construction of levees, dikes, and revetments on the river and its tributaries, along with subsidized flood and crop insurance. Once they put themselves in harm’s way (aided and abetted by government), it’s only natural for sympathetic officials to provide federally funded disaster relief when the inevitable happens. These are policy choices that the government and floodplain communities have made throughout the many years of floodplain occupation, and we can argue the pros and cons of these choices until we’re out of breath without ever reaching a consensus. Don’t get us wrong—no one wants to see human suffering in the wake of a flood. But adding a constitutional takings claim to the list of government payouts demanded by property owners is a wholly unwarranted sort of “double take” from the government (and the taxpayers) (see Unnatural Disasters Chapter 10). Instead, we should be talking about how to make people safer, how to make buildings more flood resilient, and about cases where it is more prudent to retreat from the floodplain and out of harm’s way.
- Sandi Zellmer
Friday, April 11, 2014
On Friday, April 11, I blogged live from the Global Environmental Constitutionalism Symposium held at Widener Law in Delaware. A remarkable group of scholars from Australia, the Bahamas, Columbia, New Zealand, Canada, the Philippines, Italy, Israel, South Africa, France, Nigeria, and the United States converged to discuss the value of incorporating environmental rights and protections for resources explicitly within the text of national and subnational constitutions.
Klaus Bosselmann, of the University of Auckland Faculty of Law, provided an overview of the different typologies of eco-constitutionalism, and the many different forms that it might take - from loose models focused on connections between economics and the environment (i.e. "sustainable development") to more robust models prioritizing ecological limitations and systems over protection of other rights, such as those related to economics (since sound economics depends upon a healthy environment). Germany has moved along this spectrum toward the latter, with the German Constitution "greening" over time with a number of environmental amendments. This shift, of course, has manifested in the aggressive renewable energy targets established by the German Renewable Energy Act of 2000, among other shifts in German policies related to the environment. Bosselmann believes more comparative work needs to be done between "green" constitutions globally and that society should consider exploring whether a global or international environmental constitution is emerging that would be a natural extension of increased globalization over recent decades. We have a number of global environmental agreements - is there enough cohesiveness to see a global environmental constitution emerging?
Don Anton, of the Australian National University College of Law, discussed regions of the world where environmental constitutionalism is most needed, but where it has currently not gained a foothold - that is, liberal economically advanced nations. Market economies, such as Australia, the United States, and many nations in Europe do not have environmental constitutional protections. Anton has long argued for incorporating environmental constitutionalism into these nations and doing so to protect the environment or resources per se. Having not seen sufficient action in that area, however, he argues for a pragmatic incrementalism that establishes protection of human rights to environmental quality in an environmental bill of rights detailing limits on government and private actions related to the balance of economic and environmental priorities. One of the reasons he believes this approach is more likely to succeed is because such provisions effectively extend already established and well-respected notions of due process that inform other bills of rights (like the U.S.), but they just happen to be in an environmental context. Contrast this to the Christopher Stone approach of protecting trees for their own sake, which may be a much harder argument to make, at least in the current political climate. So, Anton would focus on procedural protections for how humans interact with the environment as a first step. Procedural rights receive widespread support internationally, so an incremental move toward environmental bills of rights may be able to capitalize on this inertia.
Erin Daly, constitutional law scholar at Widener Law, notes the lack of environmental constitutionalism in the text of the U.S. Constitution, and that it relies solely on judicial interpretation for limited direct effect on environmental policy. Daly then describes the recent Robinson Township case and how the Pennsylvania Supreme Court's decision went a long way toward demonstrating the potential of environmental constitutionalism within states in the U.S. (and elsewhere).
Badrinath Rao, of Kettering University, notes that developing nations like India and China are inextricably wedded to neoliberalism, and so environmental constitutionalism is of increasing importance. The Supreme Court of India has recognized the right to a clean environment under Article 21 of the constitution. The court has also incorporated notions of sustainable development, intergenerational equity, the precautionary principle, polluter pays principles, and even environmental impact assessments within its jurisprudence. The Indian Supreme Court has made a number of rulings advancing environmental protections, yet problems remain. Government bodies and private entities have ignored environmental rights recognized by the court. Complicating the issue is different views on what "right to a clean and healthy environment" means, the fact that many supreme court mandates are difficult to implement, and ideology that has pervaded the court and governmental systems. Rao ultimately asks if the judiciary is the best institution to facilitate environmental constitutionalism, and whether a fixation with neoliberal capitalism will ultimately hinder the creation of important environmental rights.
Afshin Akhtarkhavari, of the Griffith University Law School, argues that the right to water is potentially problematic when weighed against other rights, especially in post-conflict contexts, such as South Sudan. The "right to water" discussion can actually escalate conflict itself in water scarce regions. One concern is that the rhetoric of the conversation has been co-opted by special interests who would use the argument to gain control over water resources.
Itzchak Kornfeld, of the Hebrew University of Jerusalem Faculty of Law, argues that having a right to water is largely unenforceable, but is nonetheless gaining some traction in certain areas. Western neoliberalism has given rise to calls for controlling or conquering resources, whereas aboriginal cultures maintained a very different relationship to the environment. And we are starting to see these two worldviews clash. In particular the nomadic Bedouin have survived for hundreds of years in areas of scarce water supply. Yet today they do not receive a number of recognized rights that the remaining Israeli population receives. In a recent court case, a group of Bedouin sued for water rights, and the district court ruled against them. The case worked its way up to the supreme court, which said there are three normative rights for water: 1) the right under "regular" Israeli law and customary domestic and international law, 2) a constitutional right for water (though not explicit; rather it was found under the constitutional "right to dignity"), 3) and a legislative right. The court laid such a broad foundation in order to legitimate its ruling. So by bringing in international human rights and other globally recognized rights to water, the court was trying to support what was otherwise a shaky domestic legal ground for finding a water right for the Bedouin under the circumstances of the case. This represents how international law might infuse itself into domestic constitutional law in a way that protects environmental rights.
John Dernbach, of Widener Law, talked about the recent Robinson Township case, which involved a state statute that effectively preempted and prohibited local government restrictions on fracking activities in Pennsylvania. The Supreme Court of Pennsylvania held that the preemption was a violation of the "Environmental Rights Amendment" of the Pennsylvania Constitution. The amendment states: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” Historically, courts have basically ruled that the amendment only applies when the legislature invokes it. So this opinion, even though a plurality opinion as to the reasoning, reinvigorated the status of constitutional environmental rights in state constitutions in the U.S. [NOTE: Dernbach was instrumental in providing the foundation for the court's finding. He had laid the foundation many year's before the court's ruling. The court's reasoning finally caught up to his foresight regarding the appropriate interpretation of the law].
Jack Tuholske, who teaches at Vermont Law when not practicing public interest environmental law in Montana, discussed from a litigator's perspective a number of states that have environmental constitutional rights, and how they have been enforced with varying degrees of success. Tuholske tells a "tale of two states": Illinois and Montana. Each developed their constitutional environmental rights in the early 1970's, during the time of the greening of American law. Illinois has subsequently seen some pretty sloppy court decisions regarding its own provisions. In effect, the courts have limited the constitutional provision to only creating standing rights and allows any limitations on that standing to be implemented as the Illinois legislature sees fit. This has "emasculated" the provision in Illinois. Montana is a different story. The courts in Montana have actually applied strict scrutiny to statutes that might violate Montana's constitutional environmental provision. The value of these cases in Montana is far more than the court's holding because environmental constitutionalism has become part of the state's public discourse and culture going forward.
Professor Catherine Iorns Magallanes, of the Victoria University of Wellington, also focused on indigenous notions of the human relationship with the environment - that humans could not own or dominate nature, and that the western world has largely tried to undo this notion. Global environmental constitutionalism encapsulates an effort to regain original, pre-western notions of our relationship to the environment. She reiterated Don Anton's point that while it might work to protect nature itself through constitutional provisions, a more practical first step is to protect people's rights in the environment, since it is more likely to gain traction. She highlighted legislation in New Zealand that actually incorporates native Mauri notions of the human relationship with the environment (and even incorporates Mauri language) to protect a number of rivers in the nation. The legislative definition of one river states that: "Te Awa Tupua comprises the Whanganui River as an indivisible and living whole, from the mountains to the see, incorporating its tributaries and all its physical and metaphysical elements." It allows the Mauri to speak on behalf of the river. Similarly Te Urewera is a forested area in northern New Zealand. The government settled with the Mauri and recognized the forest as the ancestor of the Mauri (with the Mauri being the descendants). The actual legislation states that Te Urewera "is ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty," that it is "a place of spiritual value, with its own mana and mauri," and that it "has an identity in and of itself inspiring people to commit to its care." This, she argues, tries to take us back to original indigenous perspectives on the relationship between humans and the environment.
Dante Gatmaytan, of the University of the Philippines College of Law, gave a presentation titled "Dead End," which expressed his view that the environmental constitutional rights provisions embedded in the Philippine Constitution have effectively become ineffectual. He argues that constitutional provisions do not matter if you do not have procedures in place allowing citizens to enforce them. In the Philippines it is standing that gets in the way. Also, other constitutional doctrines may get in the way of environmental provisions, as is the case in the Philippines, and those should be changed to allow environmental provisions to be efficacious.
A number of other fantastic speakers presented, though I was unable to attend all of the presentations and break-out sessions and capture all of those thoughts (the above summaries are also my interpretation of presenter thoughts, and may not be entirely accurate!).
As for my talk, I presented on "Structural Environmental Constitutionalism." My primary point was that much of the focus of environmental constitutionalism scholarship is on "fundamental environmental constitutionalism," which are provisions related to protecting certain resources or citizen rights in the environment. These are undoubtedly important. But structural constitutionalism is just as important, if not more - that is, how environmental governance authority is allocated across levels of government. This problem manifests particularly in federal systems, where nested constitutionally created legal systems exist. Sometimes structural environmental constitutionalism manifests in explicit constitutional text, such as in Brazil, Russia, and India where the central (federal) government is granted ultimate control over forest resources. Or it may manifest through judicial interpretation, as in the United States where federal environmental authority is construed under the Commerce Clause. Sometimes that authority is called into question, as the Supreme Court did with regard to any future "isolated wetlands" regulation that the federal government might engage in (dicta from the SWANCC and Rapanos cases). Finally, it may manifest through legislative enactments made pursuant to constitutional provisions. This happens when state governments seek to constitutionally retrieve from local governments previous grants of regulatory authority, such as when Pennsylvania attempted to preempt local government regulation of fracking (at issue in Robinson Township). Many implications arise from structural environmental constitutionalism. First, where there is an imbalance in environmental management authority across scales, correcting it can result in better management. This is the point of the emerging literature on dynamic federalism. In addition, structural adjustments to environmental regulatory authority may be more efficacious than fundamental environmental constitutionalism in some circumstances, as I have previously argued, and building off of J.B. Ruhl's work. Structural environmental constitutionalism might also bolster the efficacy of fundamental constitutionalism to the extent that latter provisions are being ignored. If levels of government previously unempowered to manage resources gain that control, then fundamental environmental provisions may be taken more seriously across all scales. Many more implications of structural environmental constitutionalism exist, and you can see the forthcoming issue of the Widener Law Review for greater detail on my arguments and the arguments of the presenters above.
Overall it was a fantastic conference and a great opportunity to hear the perspectives of the global community on this important issue. Thanks to all at Widener Law who made the conference possible.
- Blake Hudson
(David Hodas and Bob Percival present at the closing plenary):
Wednesday, April 9, 2014
The San Diego Journal of Climate and Energy Law just announced its upcoming symposium. Here's the conference description and a call for papers:
Proposals Due: Monday, April 21, 2014
On Friday, November 7, 2014, the University of San Diego School of Law will host its Sixth Annual Climate & Energy Law Symposium.
You are invited to submit a title and abstract of an article that you can present at the symposium and publish in the sixth volume of the San Diego Journal of Climate & Energy Law. If we select your proposal, the university will pay for all travel expenses to and from the symposium. You must submit your completed article to the journal’s editors by Monday, December 8, 2014, for consideration in the journal's sixth volume. View agendas and webcasts of past symposia online.
THEME FOR 2014 CLIMATE & ENERGY LAW SYMPOSIUM
The theme for the 2014 Climate & Energy Law Symposium is "Innovative Regulatory and Business Models in a Changing Electric Industry."
Regulatory frameworks and business models for electric utilities developed decades ago, and the fundamentals of the landscape are changing. Public policy, technological, and economic shifts are undermining the logic of the current system. Policies to encourage energy efficiency, increase renewable energy production, and reduce greenhouse gas emissions are changing the context in which the industry operates. Technological innovations, including distributed photovoltaics, smart meters, and energy storage are enabling customers to understand and control their energy needs. Slower economic growth, increased efficiency, and more distributed generation are contributing to slower load growth. The confluence of these factors presents challenges and opportunities for the electric industry
Academic and policy experts will analyze and assess three aspects of this complex issue:
- Regulatory Changes
- Utility Business Models
- Market Structures
All article proposals related to these broad issues in climate and energy law are welcome. It is not necessary for an article to focus specifically on California law and policy. If you are interested in participating, please submit the following materials to Zachary Flati, editor-in-chief of the San Diego Journal of Climate & Energy Law, at [email protected]:
- The proposed title of your article and a brief 300-word abstract
- Your CV
- Written acknowledgement that you will attend the symposium on Friday, November 7, 2014, and submit a complete draft of your article to theSan Diego Journal of Climate & Energy Law by Monday, December 8, 2014.
Please submit your proposal by Monday, April 21, 2014.
Tuesday, April 8, 2014
Across the country, law students are registering for their fall courses, and some of them are choosing whether or not to take environmental law. This, then, is a good time to make the case for enrolling in the course. The target of my argument isn’t the student who is determined to make a career in environmental law (and, therefore, the kind of student who actually might read this blog, but never mind that). I’m assuming those students will take a basic environmental law class, and several other related courses as well. Instead, it’s the student with a passing or uncertain interest in the subject.
I think there really are three primary reasons why environmental law remains a course well worth taking.
The continued importance of environmental law practice. A few years ago, many people thought that the environmental law field was primed for expansion, with new climate change laws likely serving as the key driver of the change. That hasn’t happened. On the whole the field doesn’t seem to be growing, and the economic downturn’s impacts on development activity translated into less work for environmental lawyers. But the field also isn’t going away. Environmental due diligence remains a crucial part of almost every commercial real estate transaction and or corporate merger; Clean Water Act and Clean Air Act compliance still generate lots of work; and both governmental and non-governmental enforcement still generate many cases. The environmental law boom of the 1980s will probably never recur, but there still will be work.
The continued relevance of environmental law has implications for students who intend to focus primarily in this area, and it also matters to students who intend to enter other fields. For example, future real estate lawyers, corporate transactional lawyers, energy lawyers, and state or local government lawyers all are likely to encounter environmental law over the course of their careers, and they’ll be stronger within their core practice areas if they have some prior understanding about how environmental law works.
The skills. Among many students, I suspect there’s a belief that environmental law is something of a warm, fuzzy, and esoteric subject—fun to study, but not particularly practical. The reality is nearly the opposite. Environmental law is in large part a course about statutory and regulatory interpretation, and interpreting dense, somewhat technical statutes and rules isn’t warm and fuzzy at all. The course is actually pretty hard work, even though most of us who teach it work hard to make it interesting. But interpreting statutes and regulations forms the core of modern legal practice, and a student who takes environmental law therefore will develop and refine skills that will be useful in fields ranging from tax to immigration.
The importance of the subject matter. One reason that environmental practice isn’t going away is that environmental issues aren’t going away. They might not rise to the top of the general public’s list of concerns. But we breathe air, drink water, and consume natural resources constantly, and all of those activities make us both beneficiaries of environmental protection and contributors to environmental degradation. And if anyone doubts the importance of law to environmental protection, a quick review of this remarkable series of posts ought to provide a compelling reminder that we are surrounded by experiments in the non-development, or non-implementation, of environmental law, and those experiments generally do not go well. Similarly, the 40-year history of environmental law shows that designing law that effectively responds to these problems is no easy task, even if those laws are backed by the best of intentions. We still need people--lots of them--who understand the intricacies of this field.
- Dave Owen
Wednesday, April 2, 2014
Monday, March 31, 2014
Recently I have been reading Windfall: The Booming Business of Global Warming, by the journalist McKenzie Funk. It is a fun and illuminating, if somewhat frightening, read. Funk takes to the road—in a trans-planetary sense—to report on the entrepreneurs, engineers, hedge funds, investment banks, corporations, nations and others who are angling to profit from climate change. The prose is accessible and engaging, the perspective deeply informed. The chapters would serve as excellent conversation generators in the classroom.
I mention this not only to share a good read, but also because the concept at the center of Funk’s book is closely related to an interdisciplinary study I am undertaking with the visual artist and landscape photographer Alex Heilner. Alex and I hope to explore the industrialization of the Arctic that will inevitably come with increased access to offshore oil and gas and to onshore mineral and carbon deposits, with the opening up of the Northern Sea Route and the Northwest Passage that makes transport of extracted resources more feasible, with easier cruising for tourist vessels, and with the re-focusing of the world’s attention on the Far North. The process, of course, is already underway. Last summer Alex and I embarked on our maiden voyage, a two-week road trip across North Norway. A selection of Alex’s photos is here.
I am still working on sorting through my interview notes and observations to craft an intelligent story about what is going on up there, but, in short, what we found was an intriguing instance of interlocal competition on the Arctic frontier. Ports, municipalities and private investors are all looking for opportunities to build facilities that can serve the Arctic oil and gas and maritime shipping industries. Planners and economic development officials are dreaming big. Everyone in North Norway wants to be a climate “winner.” There is some resistance to increased Arctic drilling from the Green Party, but Norway is, as one interviewee told me, a “benevolent petrostate,” and for most people “oil and gas is king.” As a result, North Norway—long a land of cod fishing and reindeer herding and mining for iron ore, and a place absolutely devastated by WWII—is in growth mode. It is a microcosm of the broader changes Funk writes about, making the global phenomenon visible in development pressures and land use changes in a few of the small places at the top of the world.
- Michael Burger
Saturday, March 29, 2014
Wednesday, March 26, 2014
Russia is rapidly becoming a pariah in part of the international community following its inclusion of Crimea within it's territories. The United States and the European Union notably have imposed several sanctions; more recently they agreed to oust Russia from the G-8, a powerful, if informal, economic coalition. Whether Russia's actions violate international law amd whether sanctions will be effective in persuading Russia to undo its deeds are important and significant questions. Much has been written, and will be written, on the issue.
I worry, however, about the impact of these developments on ongoing climate change negotiations. Those who remember the history of Kyoto Protocol's (the Protocol) will recall that Russia ratifiaction was pivotal for it's entry into force. At that point it was largely speculated that Russia joined the Protocol because of two reasons--1) The European Union made its support for Russia joining the World Trade Organization conditional on Russia accepting the Kyoto Protocol, and 2) that Russia was not required to reduce emissions below 1990 levels, because of its economic collapse, and therefore Russia had a significant advantage in participating in Kyoto Protocol's emissions trading scheme. (See e.g. http://news.bbc.co.uk/2/hi/science/nature/4269921.stm).Since then, however, Russia has turned away from the Kyoto Protocol. In 2012, it rejected the Protocol's second commitment period. At the COP meetings in Qatar, Russia with Belarus and Ukraine tried to retain the emission permits, effectively to continue increasing their emissions post-2015. When Russia was unsuccessful in getting all its viewpoints heard, the three countries objected to the procedure and threatened to oppose any 2015 framework that did not clarify the procedure.
The events unfolding in Ukraine may change it...for better of worse. If the new Ukrainian government refuses to cooperate with Russia, Russia will lose an ally in its climate change negotiations. Even so, it may not help resolve the problem of Russian isolation, unless all nations boycott oil from Russia; this is unlikely to happen. The biggest question is whether Russia, which has so far taken sanctions in its stride, may simply step out of the negotiations unless it has its way--which is unlikely given the general mood in the United States and the European Union. It is perhaps time to think what the Russia-Crimea issue means to climate change.
PACE UNIVERSITY SCHOOL OF LAW
2014 LLOYD K. GARRISON LECTURE
March 26, 2014
David Sive (1922-2014) and Joseph Sax (1936-2014)
In 1995, Professor of Law David Sive and Pace’s Law Faculty established this lectureship, in honor of Lloyd K. Garrison, to commemorate Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F. 2nd 608 (2d Cir., 1965). Known as the “Storm King” case, this ruling inaugurated what we today call environmental law. Two individuals above all others, guided and framed the jurisprudential foundations for environmental law. We honor these founders today. Their lives are intertwined.
Pace’s faculty insisted that David Sive give the inaugural Garrison lecture. David did so, but insisted that his friend and fellow legal pioneer for the stewardship of nature, Prof. Joseph Sax, deliver the second lecture in the series. Lloyd had passed away four years before. It was timely to commemorate Lloyd’s remarkable civic career and his seminal contribution to the birth of contemporary environmental law in the battle to safeguard “Storm King” mountain. A descendent of abolitionist William Lloyd Garrison, Lloyd was a pre-eminent civil liberties attorney, former Dean of Wisconsin Law School, and a leader of the Bar in New York, who had been called to service on many governing boards for federal agencies under three presidents. I came to know Lloyd before his passing, conferring with him on historic preservation law matters.
When the Consolidated Edison Company decided to build a huge hydroelectric power plant on Storm King, the northern portal to the great fiord of the Hudson River Highlands, citizens and local governments were appalled. This was no “NIMBY” response. Con Ed had forgotten that these fabled Highlands had inspired the Hudson River School of landscape painting. This artistic rendering of nature in turn engendered the birth of America’s conservation movement of the late 19th century. The Hudson was also instrumental to the birth of this nation; here the patriots’ control of the Highlands had kept the British from uniting their forces. Here above Storm King George Washington assembled soldiers from across the freed colonies for their final encampment before being demobilized. The Army’s West Point Military Academy overlooks the River and Storm King.
Con Ed had assembled the political and legal power to secure approvals for its plan. A small coalition of citizens, led by Francis Reese and others, persuaded Lloyd to represent their cause: preserve Storm King. He served as legal counsel to the Scenic Hudson Preservation Conference. With his able associate, Albert K. Butzel, who delivered a Garrison lecture in 2010, Lloyd Garrison won a landmark decision of the US Court of Appeals granting the citizens standing, reversing the FPC’s grant of a license to Con Ed., and determining that aesthetics, history and nature conservation had equal standing to economic interest, and must be considered before the FPC could lawfully act.
Among those who joined the Scenic Hudson Preservation Conference’s legal battle was the Atlantic Chapter of the Sierra Club. David Sive and Alfred Forsythe had formed the Atlantic Chapter in the early 1960s, despite heated opposition from Californians who felt the Club belonged there, and worried the Club would be stretched too thing. Dave chaired the Chapter. In those days, I recall how its Conservation Committee debated issues from Maine to Florida. The Chapter’s center was with Sive in New York, campaigning for example to save Olana, the Hudson painter Frederick Church’s home and studio. Having the prestige of the Sierra Club meant a lot to the Storm King cause. Sive represented the Sierra Club in its intervention in the Storm King case.
While litigation over Storm King battled on, David Sive also agreed to represent a similar grassroots community movement, the Citizens Committee for the Hudson Valley v. Volpe. Federal Transportation Secretary John Volpe had approved siting a super- highway in the Hudson River adjacent to the shore in Tarrytown and Sleepy Hollow, located there to accommodate Governor Nelson Rockefeller’s proposal to connect his Hudson estate to the Tappan Zee Bridge. Without the benefit of any environmental statutes, which would only be enacted beginning in the 1970s, and relying upon a slender but critical provision of a late 19th century navigation law, after a full trial in the US District Court for the Southern District of New York, Sive prevailed against the State and federal defendants. Upheld on appeal, Congress also ended up backing the citizens. Pace’s Dean Emeritus, then Congressman Richard L. Ottinger successfully blocked a bill intended to overturn the court decisions. Sive had won major victories on procedure, granting standing to sue, and on substance, a ruling that the government acted ultra vires. David Sive saved this lovely part of the Tappan Zee, Kingsland Point Park, beaches and marinas, a rare location where a person can reach the River’s banks without being barred by the NY Central’s railroad tracks. Had Joseph Sax’s public trust scholarship been published a decade earlier, Sive might have relied on that legal doctrine as well.
[Parenthetically, I served as Dave Sive’s law clerk in 1969 on the appeal of the Hudson River Expressway case, and every summer since 1972 I have swum in the Hudson where the highway would have been built. My daughters learned to swim there, and my grandchildren and I swim there still.]
Public interest litigation to safeguard the environment was born in these cases. Citizen outrage about pollution and degradation of nature was then wide-spread. In September 1969, the Conservation Foundation convened a conference on “Law and the Environment,” at Airlie House near Warrenton, Virginia. David Sive and Joseph Sax were prominent among participants. Their essential conclusion was that “environmental law” needed to exist. Like Sive, Sax , while a young professor at the University of Colorado, had helped the Sierra Club opposing development of the Colorado River, and had become involved in a legal campaign, launched by Victor Yannaconne, to ban DDT in the wake of Rachael Carson’s Silent Spring. At Airlie House, I was privileged to listen to Sive and Sax debate strategies about how to expand beyond the scope of administrative legal remedies to forge this new field of “environmental” law. Participants took heart from the civil rights movement, and argued that if the NAACP Legal Defense Fund could engage courts to remake the law against all odds, so could those who defended the environment. They left that conference motivated to act.
On December 1, 1970, Congress enacted the National Environmental Policy Act, creating the world’s first Environmental Impact Assessment procedures and establishing the President’s Council on Environmental Quality (CEQ). In Michigan, Joe Sax wrote and saw enacted the Michigan Environmental Act of 1970, with provisions for citizen access to justice to enforce environmental rights. In the wake of both NEPA and his Michigan legislation, Joe Sax articulated and published doctrinal and civic foundations to support public interest litigation and define the environmental duties government owed its citizens. His landmark book, defending the Environment: A Strategy for Citizen Action appeared in 1971. The CEQ named a Legal Advisory Committee to recommend how agencies should implement NEPA. Dave Sive and Joe Sax emerged as the environmental leaders on this Committee, which was chaired by US Attorney Whitney North Seymour (SDNY). CEQ issued its NEPA ”guidelines” on recommendation of this Committee. That year launched the “golden age” of NEPA litigation. Courts everywhere began to hear citizen suits to protect the environment. Nicholas Yost later codified the case law for CEQ in 40 CFR Part 1500.
Dave Sive, withhis law firm, Sive Paget & Riesel, went on to represent citizens in a number of NEPA cases, winning rulings of first impression. Sive was a founder of Natural Resources Defense Council (NRDC), which became the pre-eminent champion of public environmental rights before the courts. Sive also led the establishment of the leading environmental lobby group in Albany, now known as Environmental Advocates, and campaigned for stronger State legislation. To continue the Airlie House conference precedent, Sive institutionalized the professional study of environmental law as a discipline through creation of the Environmental Law Institute (ELI). With ELI and ALI-ABA, he launched nation-wide continuing legal education courses to education thousands of lawyers in environmental law, a field that did not exist when they attended law school. On becoming a Professor a Pace, Dave helped launch its Doctor of Juridical Sciences degree, mentoring Dr. Robert Goldstein in his thesis; Robert is now a Professor in the Law Department at West Point. He vetted Prof. Robert F. Kennedy Jr.’s exposé of mismanagement in the NYC Catskill Watershed; Bobby Kennedy’s work launched the much-remarked regime of ecosystem services between New York City and Catskill communities. Sive, honored as a Member of the IUCN Commission on Environmental Law, was celebrated by its long-time Chairman, Wolfgang E. Burhenne, as being a legend in his time.
David Sive epitomized the best of what makes law a learned profession. He was a true role model. Michael J. Walker, director of the US EPA’s National Enforcement Training Institute, wrote last March 24th of his hope that each of the 54 new law clerks being trained at EPA this week ”will continue the work that Mr. Sive began 50 years ago. We will begin with a ‘thank you’ to a leader and patriarch in the environmental movement: David Sive.”
Joe Sax went on to become America’s pre-eminent professor of environmental law. In that fertile year, 1970, he also had published “The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention” (68 Mich. L. Rev. 47). His teaching and research in water law brought him perceptions about the public trust doctrine hidden to others. His article inspired a generation of law professors and public interest litigators who engaged the courts to protect public trust interests, especially access to public shores along rivers like the Hudson. The idea of legally protected pubic rights , which citizens can defend, is fundamental to environmental law. Sax’s work inspired Bob Boyle and other founders of the Hudson Riverkeeper, and in turn the world-wide Waterkeeper movement. Pace’s Environmental Litigation Clinic recently won a major public trust case in New York State courts. Law schools nation-wide are indebted to Joe Sax for his inspired scholarship and vision. In his prolific career, Joe’s many further books and articles engaged the minds of environmental law professors across America. Internationally, he was a laureate of the Elizabeth Haub Prize in Environmental Law, and lectured to law professors of the IUCN Academy of Environmental Law its annual Colloquium in Sydney Australia, in 2004. His ideas won a global audience. When India’s Supreme Court recognized the public trust doctrine in that nation, the research of Prof. Joseph Sax was evident.
Looking back at his four decades of cultivating environmental law in 2007, Sax reflected on the duty of the state to protect the people’s common heritage: “Only when this precept is expanded into a general principle of our domestic law governing all out natural resources will we be able to say we have truly implanted environmental jurisprudence into our legal system.” When Joe passed, the law professors’ Internet list serve buzzed with praise for all his contributions. He mentored a generation of law professors. Another Garrison lecturer, Prof. Oliver Houck, observed : “In late l969 I heard Joe Sax and David Sive speak in DC. Like watching dawn break. I've never looked back ...”
David and Joe were both humble and self-effacing men. They would have been pleased to be celebrated together, each basking in the earned accolades of the other. That was their demeanor when they were here together with the first 10 Garrison laureates, who were assembled at Pace in 2005 by Prof. Robert Goldstein. John Cruden, President of ELI, last March 20th observed: “I have now had the opportunity, in three separate events, to pay homage to Joe and David. It is a rare audience that people do not know one or both, and everyone has heard of them. Each time I speak about them, stories follow. Joe was an inspiration for me, David a mentor. Their legacy is golden, but thinking about them both challenges me to do more.”
The ripples from their professional work have spread far and wide. It is fair to observe that the reforms that Sive and Sax engendered in time produced Principle 10 of the Declaration of Rio de Janeiro on Environment and Development, adopted by the UN 1992 Earth Summit. This principle embodies many of the reforms that they urged in the 1970s and beyond: rights of access to environmental information, to pubic participation in environmental decision-making and to access to the courts. These are today recognized as global norms. The combined legacy of their lives is global.
We are honored that David’s wife, Mary Sive, a great outdoors woman, and his daughter Helen, are with us here today. In his last years, when he was able, Dave enjoyed attending the Garrison lectures. On behalf of us all, may I thank the Pace Law Library and Environmental Law Program staff, especially Leslie Crincoli and Prof. Lin Harmon, for the commemorative exhibits that accompany this 2014 lecture, honoring Joe and Dave. David Sive would have been pleased to have been here today to welcome Prof. J.B. Ruhl to deliver the 2014 Garrison lecture. J.B. is a pre-eminent environmental law scholar, and is very much the heir to Joe Sax’s scholarly legacy of innovation. This year especially, the spirit of Sive and Sax infuses the Garrison Lecture.
Nicholas A. Robinson
March 26, 2014
 See the 1971 CEQ Annual Report, Appendix, Membership of Legal Advisory Committee, at p. 355.
 Principle 10 of the Declaration of Rio de Janeiro on Environment and Development provides: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the enviro9nment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” This norm today is embodied in national statutes and constitutions around the world, as well as in a number of treaties.
Thursday, March 20, 2014
Over the past few years, I’ve spent a fair amount of time thinking about water rights and the takings clause. One outcome of that work is an article, which just came out in the Washington University Law Review, on takings and groundwater use regulation.
Another output is a case study designed for law school teaching. It draws upon an ongoing conflict between the Bragg family and the Edwards Aquifer Authority. That conflict already produced several published decisions—with more potentially on the way—and a fair bit of commentary (examples here and here). Its facts also make it a good fit for a classroom.
The very quick summary is that the Braggs planted one pecan orchard, and bought another, well before the modern regulatory regime for the Edwards Aquifer came into existence (but after conflict over that aquifer had begun to brew). They planned to use Edwards Aquifer water to irrigate their orchard, but not immediately. By the time their trees had grown large enough to need the water, a different and much more extensive regulatory regime was in place, and it favored existing users. So the Braggs sued, alleging a taking. Their claims raise a whole host of interesting issues, including, among others, what analytical framework is appropriate for a water rights/takings case, what counts as a reasonable investment-backed expectation, how diminution in value should be measured, what forms the relevant unit of property in a water rights/takings case, and what basic values takings doctrine should serve.
My case study provides students with a summary of the conflict and a few documents from the record (there are many more that could be included, but I elected to keep it simple), and it asks them to argue the case from the point of view of the Braggs, the EAA, Environmental Defense, or the Texas Attorney General’s office. I’ve tested it out once (after covering a few water/takings cases in the previous class), and it seemed to go very well.
If you’re interested in an MS Word version of the case study, in seeing the exhibits, or in seeing other documents from the case, please let me know. And a big thank you to Deborah Clarke Trejo, who represents the Edwards Aquifer Authority in this litigation and who provided me with some of the key documents.
Thursday, March 13, 2014
Texas A&M University School of Law seeks applicants for one or more Visiting Professors for one or two semesters in the 2014-15 academic year. We are focusing our search on two subject areas: (1) natural resources and environmental law (including related areas such as energy law, land use law, water law, biodiversity law, hazardous waste law, and wildlife law); and (2) patent law (including related intellectual property subjects). Applicants should have demonstrated outstanding academic and scholarly achievement in their respective areas, as well as strong classroom teaching. The Visiting Professors will teach one or two courses each semester and will be encouraged to participate broadly in the intellectual life of the law school.
Salary will be commensurate with qualifications and experience. Funding is available for professional travel and development activities.
Review of candidates will begin immediately. Expressions of interest should be submitted as soon as possible and will be reviewed on a rolling basis until positions are filled. Candidates should submit a cover letter including a statement of interest, a curriculum vitae, and a list of references, including their telephone numbers and email addresses, to Professor Meg Penrose, Chair of the Faculty Recruitment Committee, at the following email address: [email protected].
An Equal Opportunity Employer, Texas A&M University is committed to employing quality faculty who will enhance the rich diversity of our academic community. In that regard, we are particularly interested in receiving applications from a broad spectrum of qualified people who are representative of the state’s diversity.
- Tim Mulvaney
Wednesday, March 12, 2014
Environmental law lost a giant last weekend. Since Joe Sax passed away, the environmental law professors’ listserve has been a steady stream of remembrances, many focused on his enormous contributions to the field. For me, a different memory stands out above all the others.
It was just a brief moment in water law. One of my classmates had a baby during the semester, and, perhaps because of trouble finding childcare, she started bringing her infant to class. The baby was usually quiet, but one particular day was a fussy one. This made the rest of us uncomfortable. We were twenty-somethings without children, living the glorious extended youth of the Bay Area, and working through the challenges of childcare was part of a distant future we rarely contemplated. This intrusion of a baby into our sheltered worlds seemed weird. And it wasn’t just any class the baby was intruding upon. We all worshipped—and, at least a little bit, feared—Professor Sax, not because of his personality but because of his stature and obvious intellect, which stood out even at a place like Berkeley. Poor manners had no place in that room. So we felt a palpable sense of relief when the student picked up her fussing baby and started toward the door.
Then Professor Sax spoke up. “There’s no need to leave,” he said, as though only a fool would have thought otherwise. “Babies fuss. That’s just what babies do. I don’t think anyone minds.” And saying it, of course, made it true. We realized that this person we thought of as an intellectual demigod was also a father and a grandfather. Everyone relaxed. Class went on. And we all learned something about the possibility of combining greatness with kindness and compassion.
Years later, I still want to be Joe. He could turn rigorous legal analysis into something profoundly elegant—charismatic, even—in a way I’ve never quite seen emulated, though not through any lack of trying. But even if I never achieve that grace, I at least can imitate him in other ways. It doesn’t happen often, but on the rare occasions when students bring their children to class, I smile, think of that day in water law, and try to make sure the parent and child both feel welcome. And if a baby ever does start fussing in my class, I’ll have my line ready, and I’ll think with fondness of the man I learned it from. I hope he would be proud, but more likely he’d think nothing of it. After all, that’s just what professors should do.
What a loss.
- Dave Owen
Tuesday, March 4, 2014
Last Saturday’s New York Times had a story describing the “defanging” of North Carolina’s environmental regulatory agency. The story began with this depressing quote:
“The General Assembly doesn’t like you,” an official in the Department of Environment and Natural Resources told supervisors called to a drab meeting room here. “They cut your budget, but you didn’t get the message. And they cut your budget again, and you still didn’t get the message.”
Trip Gabriel, Ash Spill Shows How Watchdog Was Defanged, N.Y. Times, Feb. 28, 2014. What follows has become all too familiar: intimidated by political pressure, the state agency finds itself in disarray, even the threat of regulatory enforcement dissipates; and, sooner or later, massive amounts of coal ash start flowing downriver.
The story made me think of my own first in-depth lesson in the value of environmental enforcement. It came in what may initially seem like a very different context: universities. But the story provides an interesting morsel of recent environmental history, and it says a lot (I think) about enforcement’s role.
For years, universities weren’t accustomed to thinking of themselves as targets of environmental enforcement. But in the mid-1990s, EPA audited Yale’s environmental compliance, and the results would shock anyone accustomed to thinking of universities as environmental leaders. According to a Boston Globe story about the resulting settlement, Yale wound up pledging over half a million dollars to environmental programs and paying a $69,750 fine. Many New England Colleges Break Environmental Rules, Boston Globe, May 27, 1996. EPA’s northeast regional office also announced that it was making the educational sector a target of its enforcement efforts. More audits and more fines, many of them quite large, soon followed. See, e.g, Tatsha Robinson, UNH Faces Fine in EPA Waste Investigation, Boston Globe, March 15, 1999; Peter J. Howe, BU to Spend $2M in EPA Settlement, Boston Globe, October 9, 1997.
At the time, I was a recent college graduate working for an environmental consulting firm just outside Boston. For us, enforcement meant opportunity, and we aggressively marketed our own auditing services, promising universities that we would find, and fix, their problems before EPA came knocking. As a business move, it worked well, and I soon found myself seeing parts of college campuses that I’d never seen as a student. Some of what I found shocked me. I had worked on plenty of hazardous waste sites. But the scariest things I ever saw were in the chemistry labs of universities. Even a well-managed lab—and I did see some--is a dangerous place; chemicals that seem familiar to most researchers become quite worrisome once one reads their material safety data sheets. And many of these labs weren’t well managed. Among other problems, I saw old and potentially explosive picric acid containers; incompatible wastes stored together; and, in some places, unidentified, abandoned, frothing messes. The labs weren’t Love Canal, but they also weren’t anywhere I would want to work—or would want to send my children to school.
So why was this happening? The answer isn’t some old trope about evil, greedy corporations placing profits above environmental quality and human well-being. Universities are financially driven, of course, but I believed then, and still believe now, that most universities take their public service missions quite seriously. Nor was it a lack of expertise. One sometimes hears complaints that environmental laws have become too complex for anyone to comply with, but at most of these campuses, there were health and safety managers who had a pretty good idea what their school was doing wrong and how it might do better. Instead, the institutional problems were more mundane. Health and safety departments were understaffed. They also lacked leverage. At most universities, the star researchers rule the roost, and those researchers are unlikely to listen when a health and safety manager with only a bachelor’s degree explains why the lab needs to be managed differently—unless, of course, an enforcement threat adds force to the health and safety manager’s words. And for years, most universities hadn’t even considered the possibility of that threat.
When the enforcement threat did arise, it changed all of those dynamics. A few months after EPA announced that universities would be an enforcement priority, it hosted a public informational meeting on compliance at colleges and universities, and I went. The room was filled with high-level administrators, most of the people who would never have shown up at a health and safety conference a few months earlier. They were paying close attention, and they took what they heard seriously. Universities started hiring consultants to perform audits. They started listening to their consultants—and their own health and safety managers—when they recommended changes to environmental management programs. And they made the changes. Labs got cleaned up. Plans were updated and modernized. Better management protocols went into place. Training improved. When I left for law school, the transition still was just beginning. But even in my short time working with universities, I thought we were able to make a huge and positive difference.
So what does enforcement do? Part of the answer is so obvious that it’s disheartening how often it needs to be restated. It provides people with incentives to actually comply with environmental and safety laws. And every institution—not just evil corporations—needs those incentives; compliance requires persistent attention to detail, and we all have the impulse to cut corners. In addition, enforcement often creates change not by punishing the environmentally bad actors within in institution, but instead by empowering the people within the institution who want to do things right. At least, that’s what happened with universities, and the consequence has been a safer working and learning environment for thousands of students.
- Dave Owen
Wednesday, February 26, 2014
In late January Royal Dutch Shell announced that the company was putting an end to its efforts to drill exploratory wells in the Arctic Ocean off Alaska’s north coast this summer, and intimated that it may never drill there, at all. The announcement was timed with other recent climate news. Just a day or two later the State Department released its Supplemental Environmental Impact Statement for the 2012 Presidential Permit application for the proposed Keystone XL pipeline. Two weeks after that it was revealed that the Arctic archipelago of Svalbard has been experiencing average temperatures 15 degrees C above normal. But I don’t think Shell made its decision because it worried what President Obama will do with Keystone XL, or because of the ever-mounting evidence of climate change impacts in the Arctic. Rather, the company probably made the decision because the Ninth Circuit held the week before, in Village of Point Hope v. Jewell, that the environmental impact statement prepared for the 2008 lease sale in the Chukchi Sea violated the National Environmental Policy Act.
The Ninth Circuit’s decision is important, of course, because of its immediate impact on oil and gas drilling in the U.S. Arctic. It is also notable, though, from a teaching perspective, for at least three reasons:
First, the decision affirms, in one of the most visible environmental battles of the day, that NEPA remains an important, even essential, tool in the environmentalist’s toolkit, capable of stopping major projects from moving forward, or at least stalling them for the time being. This remains as true as ever, even though NEPA is just a “procedural” statute.
Second, the decision provides a nice illustration of how courts treat the “missing information” requirement under Section 1502.22 of the Council on Environmental Quality’s NEPA regulations in the context of a tiered environmental review. Under this provision, an agency must either obtain information that is “essential to a reasoned choice among alternatives” or explain why such information was too costly or difficult to obtain. But the Outer Continental Shelf Lands Act explicitly provides for multiple levels of environmental review as an offshore lease moves from the original lease sale to actual production and development. Here, the court found that the Bureau of Ocean Energy Management’s analysis of the impacts of a major oil spill did not fail even though it lacked specific information about such things as species population numbers, migratory patterns and breeding habits. According to the court, that data would be relevant at a later stage. Increasingly, it seems that knowledge of programmatic EIS’s is essential to understanding how NEPA works today.
Finally, the decision illustrates how far afield an agency has to go in a technical analysis to run afoul of the statute, and what kinds of evidence attorneys use to demonstrate the “arbitrary and capricious” application of agency expertise. In this way, it stands as a contemporary comparable to the Westway litigation and the Second Circuit’s decision in Sierra Club v. U.S. Army Corps of Engineers, with its improperly timed studies and ignored population of winter bass among the piers on the Hudson River. Here, BOEM estimated the amount of recoverable oil in the Chukchi lease area by estimating production from a theoretical first offshore oil field, an amount that totaled the nice round number of one billion barrels. One apparent reason for focusing on the first field, rather than the entire lease area, was that the BOEM analyst wouldn’t have the relevant data for the larger analysis for two months. Not exactly the best reason to take a predictive approach to a five-year lease sale in a frontier region of the Arctic. And according to two of the judges on the panel, at least, an arbitrary one.
There is, of course, more: A series of emails that do not paint the agency staff in the best light, ultimately whittling down a range of options to a single number. Skeptical comments on the draft analysis from other BOEM staff. Highly critical comments from EPA and Fish and Wildlife. Public comments that make plain some of the more obvious flaws in the logic of BOEM’s decision. Courts will defer to agency expertise, and that deference reaches its height out here in the predictive realm, but get enough in-house experts, sister agency staff and clear-thinking citizens to disagree and you might just have a winning case.
At the end of the day, it was probably most damaging that BOEM chose a number that represented “the lowest possible amount of oil that was economical to produce as the basis for its analysis.” This number then factored into all of the environmental impact assessments, including seismic effects, habitat effects, and effects of the sale on global warming, as well as Fish and Wildlife’ determination that the lease sale would not jeopardize listed species. As it turns out, it was a close call on the spectacled and Stellar’s eiders. Even a slightly higher estimate may have resulted in a jeopardy finding.
That, students will see, is a bad fact for the defense, a good one for the plaintiffs.
- Michael Burger
Wednesday, February 12, 2014
In the last few weeks, I’ve seen several reports and articles, some written by prominent people (I’m not naming names) that contain some version of this basic description of the Clean Water Act:
The Clean Water Act divides pollution sources into two general categories. Point sources are things like factory and wastewater treatment plant discharges. They’re mostly regulated under the NPDES program, which has worked pretty well. Agricultural and urban stormwater runoff are non-point sources. They’re regulated under the TMDL program, which hasn’t worked so well.
There’s some truth to this statement, but in one key way it reflects a very common misunderstanding of the Clean Water Act. Urban stormwater runoff actually doesn’t fall neatly into the non-point-source category. In fact, much of our urban stormwater moves through point sources regulated by the NPDES program; some urban stormwater runoff discharges through point sources exempted from the NPDES program; and some urban stormwater really is non-point source pollution.
This might seem surprising, because people constantly refer to urban runoff as non-point source pollution—without any acknowledgment that the statement isn’t categorically correct. But a simple comparison of a photograph and a statutory definition ought to illustrate why that’s wrong. What you see below is how most of our urban stormwater ultimately gets into waterways, and it sure looks like a point source to me (and, more importantly, to EPA, where people understand quite well what is and isn't a point source).
Clean Water Act Section 502(14): The term “point source” means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.
Image from cenews.com.
Why does this matter? I think there are several reasons. First, any attorney who believes urban stormwater runoff is all non-point source pollution is going to have some embarrassing moments in practice. When your municipal client asks, “so why do we have an MS4 permit?” or when your industrial client says “so we don’t need to comply with our general stormwater permit?”, you’ll either quickly realize you misunderstood the Clean Water Act or you’ll give some very bad advice. More generally, figuring out what to do about urban stormwater is a big, big challenge, and it’s difficult to address that challenge if a common starting point is a misunderstanding of the Clean Water Act. If you believe that all urban runoff is non-point source runoff, then a logical conclusion is that reforming urban stormwater management is inextricably linked to TMDL reform, which, sadly, may be a tall order. You wouldn’t even realize the possibility that reforming NPDES stormwater permitting is both possible and, perhaps, promising.
So let’s get our terms right.
Wednesday, January 29, 2014
In my second year as an academic, I became involved in a major NSF-funded interdisciplinary research project. Initially, this did not go well. I learned, the hard way, that it is not easy to conduct interdisciplinary research with people you’ve barely met, who work in other fields, and who live two hours’ drive away from you. Yet I would count the project—in which I am still involved, now more productively—as one of the best learning experiences of my academic career.
That experience convinced me that it would be useful to write an article addressing the challenges of interdisciplinary environmental law research. It also led me to think that the standard debates about interdisciplinary legal research might not apply particularly well to environmental law, and that perhaps some empirical research might help inform those debates. So I distributed a survey to my peers, conducted some interviews, and, working with UMaine economist Caroline Noblet, wrote up an article, which now is available (in draft form) here.
Our hope is that the article will be useful to environmental law faculty—particularly at the junior level—who are interested in getting into interdisciplinary work; to non-legal environmental researchers who want some information about what environmental law professors do and how they think; and to anyone who wants to pontificate in an informed way about the role of interdisciplinary research in the legal academy.
For those who prefer the Cliff Notes version, here are a few key conclusions from the study (most of which are intuitive but some of which are potentially surprising or controversial):
- Environmental law professors are generally very interested in conducting interdisciplinary research, yet it forms a relatively small part of their research portfolios;
- Conducting interdisciplinary research successfully requires a large up-front time investment—you need to take time to get to know your collaborators and learn about their fields, and they have to get to know you—and the need for that time investment is one of the primary barriers to successful collaborations;
- Publication systems and institutional divisions do create pressure toward traditional disciplinary work (in other words, the legal academy generally doesn't push professors to become interdisciplinarians);
- Compared to tenured faculty, junior faculty tend to perceive more pressure to do traditional disciplinary work, though that pressure is by no means universally felt; and
- Law professors may be more interested in, and prepared for, collaborations with non-lawyers than the non-lawyers are for collaborations with lawyers.
And a few recommendations:
- Law schools and universities should work hard to create opportunities for informal contact between law professors and other faculty—in research settings, social settings, and in the classroom;
- Law schools ought to abandon any tenure or promotion policies that favor law review or single-author publications over peer-reviewed or team publications, and they ought to put their new policies in writing, so that junior faculty know about them;
- Visiting assistant professor and fellowship programs should consider adding an instructional component focused on research methodologies (and, perhaps, allowing full-time faculty to participate in the program);
- Law professors interested in working beyond the boundaries of their field should be aware that they will need to spend some time educating their potential partners about how legal research works, what kinds of questions it typically focuses upon, and how it could contribute to a larger project.
Again, the full article is here, and comments are welcome.
Wednesday, January 8, 2014
I love history, and have always been torn between my interests in both the function of the physical world (biology and the environment) and the function of reviewing historical events as a means of bettering the social world (history and other social studies). Historians interpret the past for many reasons, including to gain understanding of how both desirable and undesirable circumstances can be replicated or avoided (respectively) in the future. Consider the "technological optimist" view of history. I suppose the purest form of technological optimist would look back and note that society has always been improving - advances in medicine, food systems, transportation systems, the internet - to name only a handful of technological advances - have helped society increase wealth, human lifespan, and overall well-being. And increased access to information regarding calamities and human violence arguably mask the fact that, as some commentators have argued, society is overall becoming less violent. In other words, society is continually improving. Even though we can look back at some of the empires that have existed in the past, and arguably trace their fall to environmental calamities (see Easter Island, the Mayan civilization, the Roman Empire, etc.), modern society has no doubt moved to a place where it can avoid some of those pitfalls through technology. Thus, a technological optimist would at his or her most optimistic view society as fully capable of engineering its way out of the seemingly dire environmental challenges faced today.
In my International Environmental Law class we discuss the IPAT formula: Human Impact (I) on the environment equals the product of P= Population, A= Affluence (consumption), T= Technology. Thus if technology increases sufficiently, then it can offset population growth and increased consumption to reduce environmental impact. Of course, some commentators highlight the virtually impossible impact technology would need to have in order to offset the current rate of population growth and increased consumption (see Paul Ekins, The Sustainable Consumer Society: A Contradiction in Terms?, International Environmental Affairs, Volume 3, Number 4, at 242-257 (Fall 1991)). It seems clear then that reductions in both consumption and control of population growth will be necessary ingredients to any future that is sustainable.
I am somewhat 1/3 technological optimist and 2/3 pessimist. My family's Christmas dinner conversations involve my brother and I arguing over whether the future will be like Star Trek (his view) or The Road/The Postman/The Book of Eli (which I tend toward). Now, nothing I am about to say is groundbreaking, but it is helpful to ask: what does history tell us about the role of technology in achieving sustainability? How likely is it that we will be able to innovate fast enough to forestall calamity and continue to improve society the way we have done in the past? There are two important factors we see today for which there is no historical reference: population growth and the rate at which we have released greenhouse gases into the atmosphere. In 4.5 billion years this earth has never seen as dramatic of an increase in a species with such profound impacts on the environment as it has in the last few centuries with humans (as strikingly depicted in the chart at the beginning of this post). Thus, making projections about our future based upon the past is of far less value with this new variable thrown in. Also, while carbon levels and other GHGs have fluctuated in the atmosphere for millennia, never before has such a sudden release of fossil-fuel gases taken place over a two century period. These two variables should cause even the most optimistic technological optimist to proceed with caution when harnessing the value of history in projecting future outcomes.
On the flip side, all too often I hear discussions of the I=PAT formula framed as if each variable were completely independent. Of course, I tell my class that the "Affluence" (or consumption) variable is in large part only a problem because of what we are consuming. That is, we are consuming non-renewable substances in large part - products, goods, and services that are themselves made of non-renewables and that are produced using non-renewable energy sources. In fact, technology plays a key role in increasing the impact of both the "T" part of the equation AND reducing the "A" variable. If technology can change what we are consuming, to make the product/service as well as the energy inputs providing it renewable, then we are left with only the "P" variable as a primary challenge. As I've discussed before, perhaps one day our vehicles made entirely out of recyclable metals and renewable plastics (from lignin in pine tree bark), will be plugged into (via renewably created extension cords) power sockets in homes built out of renewable materials and powered by solar panels (an obviously renewable energy source), while the solar panels themselves are made out of the same recyclable metals and renewable plastics from biological sources. In other words, the 1/3 technological optimist in me sees a world with a closed loop system of consumption (affluence), and technology plays a key role in that future.
Ultimately, the most recent history of advanced civilization includes an almost complete reliance on the consumption of non-renewable, fossil fuels. If we are unable to project our future based upon history given new variables of population growth and GHG emissions, then we will need to change the game and foster a new variable of our own - that is, technology that we have never before used to make modern society a completely renewable society. Otherwise, I will win my bet with my brother, which I really would prefer not to do.
- Blake Hudson
Thursday, December 19, 2013
Pennsylvania's Act 13, signed by Governor Thomas Corbett in 2012, is one of the most sweeping state actions relating to unconventional gas development and hydraulic fracturing. The Act required municipalities to allow gas development in all zones, even residential ones. It also updated various state environmental regulations of unconventional gas wells and allowed local governments to place an unconventional gas well fee--essentially a tax--on gas development, which goes into a state fund and is redistributed to local governments for expenditures on roads, affordable housing, environmental projects, and other infrastructure and services. The commonwealth court in Robinson Township v. Commonwealth of Pennsylvania found, among other things, that the portion of the Act requiring municipalities to allow unconventional gas development in all zones was unconstitutional--it violated substantive due process by essentially requiring unfair zoning results and forcing arbitrary zoning not in accordance with a comprehensive plan. Today, a Supreme Court of Pennsylvania majority also found this portion of the Act unconstitutional because it violated the Environmental Rights Amendment of the Pennsylvania Constitution, which provides that "[t]he people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment." (One justice believes that this portion of the Act is unconstitutional because of substantive due process, not the Environmental Rights Amendment.) The opinion also addresses provisions of the Act that allow the Pennsylvania Department of Environmental Protection to grant waivers from mandatory setbacks of well sites from various resources.
Tuesday, December 17, 2013
From our friends at the University of Washington. Several current and former Environmental Law Prof bloggers have participated in this conference, and I think we would all agree that it's well worth the trip.
Call for Abstracts
UW Junior Environmental Law Scholars Annual Workshop
University of Washington School of Law
July 9-11, 2014
The University of Washington is pleased to announce the 3rd Annual UW Young Environmental Law Scholars Workshop.
This collegial two-day workshop features discussion of works-in-progress by early career environmental law scholars: professors with two or fewer years of tenure, pre-tenure professors, visiting assistant professors, or legal fellows. We invite submissions from the broad fields of environmental, natural resources, and energy law. Prior workshop participants are welcome to submit new works.
Participating junior scholars will be asked to submit an unpublished work-in-progress approximately one month before the workshop. Each paper will be circulated to the entire group for review and assigned to one senior scholar and one junior scholar for detailed commentary.
At the workshop, each paper will receive an hour of discussion: a short introduction by the author, followed by detailed comments from the designated junior and senior scholars, and then a more general review by the group. The overall aims of this process are to promote scholarly discussion and to facilitate rigorous early review for works to be offered for publication in a law journal.
The senior scholars participating in this year’s workshop are:
- Robert T. Anderson - Director, Native American Law Center, University of Washington
- Lisa Heinzerling - John Carroll Research Professor of Law, Georgetown University
- Christine A. Klein - Chesterfield Smith Professor of Law, University of Florida
- John Copeland Nagle - John N. Matthews Professor of Law, University of Notre Dame
- William H. Rodgers - Stimson Bullitt Professor of Environmental Law, University of Washington
To apply, please submit a cover letter, an abstract of no more than 500 words, and a C.V. to [email protected] by March 15, 2014.
All meals will be included. Participants will be responsible for their travel and lodging costs.