Environmental Law Prof Blog

Dam Futures

A standard environmental history of American dams unfolds something like this: As a nation, we had a long love affair with dams.  And while they helped our nation grow into an industrial power, the environmental side-effects were immense: lost forests and farmland, drowned canyons, and, perhaps most importantly, devastated fisheries.  Yet even after some of those consequences became apparent, the story goes, dam-building marched on, powered by bureaucratic inertia and the seemingly unstoppable engine of pork-barrel politics.  Finally, in the 1980s, we stopped, but by then we had built approximately one dam for every day of our national existence.  As former Secretary of the Interiror Bruce Babbitt once put it, “we overdosed.”  We’re now starting to take dams out, and those dam removals often lead to dramatic environmental improvements.  But, in the standard narrative, the removals aren’t coming nearly fast enough.

I agree with this story, and most of the underlying facts aren’t really in dispute.  But another narrative of dams lingers on, particularly — but not exclusively — in the reports of the government agencies that manage much of our hydropower.  In this story, hydropower remains an essential part of our energy mix.  Hydropower still comprises approximately 7 percent of our national energy-generating capacity (globally, the percentage is higher).  While that number may seem small, it dwarfs the contributions of wind, solar, geothermal, and other renewables.  For a few key reasons, that 7 percent is also particularly useful.  First, the greenhouse gas emissions of existing hydropower are minimal, at least in the United States.  Second, both solar and wind power are somewhat intermittent in their availability, and studies finding that we can rely much more heavily on renewable energy (like this one here, which Lesley McAllister recently blogged about) generally assume that hydropower will even out some of the dips in the supply curve. 

Hydropower’s share also could grow.  Some recent studies have identified huge amounts of untapped hydropower capacity, much of it at sites where we already have dams (the United States has  approximately 80,000 non-hydropower dams).  How much of that capacity is economically available, given a reasonable set of environmental constraints, is a hotly debated question. But at least some capacity for expansion exists, and renewable portfolio standards or—dare we hope—a price on carbon could make expanded hydro look much more economically appealing.   In this alternative narrative, then, hydro occupies a crucial and potentially dynamic role in our energy future.  And this narrative is not just idle storytelling.  In multiple bills, including, most recently, the Water Resources Development Act recently passed by the Senate, Congress has signaled its continuing enthusiasm for hydropower.

We often think that our energy needs inevitably will conflict with environmental protection, and these two narratives might on their face seem to reinforce that view. But is the tension between these narratives unavoidable?  The answer, perhaps surprisingly, is "not always," and a case study illustrates the possibilities.  On the Penobscot River in Maine, an ambitious dam removal project is currently underway.  Once completed, the project (which I’ve blogged about here, and which is described in more detail here, here, and here) will involve multiple dam removals and fish passage improvements on the dams that remain.  Hundreds of miles of river habitat will be opened to the river’s many anadromous species — fish that breed in freshwater, but spend most of their lives in saltwater — and scientists anticipate exponential increases in their populations, with benefits for both freshwater and saltwater ecosystems.  All of this will happen without any loss of hydropower.  By moving and upgrading facilities, Black Bear Hydro LLC, which owns the dams, will be able to sustain its present generating capacity.   Both the upgrades and the environmental improvements arose out of one big negotiated deal, with environmental groups and the Penobscot Indian Nation essentially offering support for what otherwise would have been contentious license renewals (as well as a substantial financial payment, which some of the groups helped raise) in return for the environmental improvements.  In short, on the Penobscot, environmental improvements and hydropower efficiency upgrades were closely, and legally, linked.

 

 

 

 

 

 

 

The Great Works Dam site, before and after.

Could that be repeated?  Physically, it seems possible.  Most river basins in the United States contain multiple dams, and trading removals or improved fish passage in some locations for energy upgrades in others seems like a sensible step.  But the legal challenges are substantial.  On most rivers, many different entities own the dams, creating a significant coordination challenge, and public governance of watersheds is famously fragmented.  As anyone who has worked with FERC licensing knows, renewing even a single license is a long and difficult process, and linking multiple licensing processes together sounds like a formidable task.  Consequently, the legal challenges are daunting.

But are they insurmountable?  I don’t yet know.  But over the next few months, I’ll be taking a close and careful look at hydropower law to try to figure these questions out.  The research project goal, ultimately, is to identify legal reforms that will allow our hydropower system to sustain or increase its benefits while reducing, hopefully substantially, the environmental burdens it imposes.

-Dave Owen

Glen Canyon Dam image from wikimedia.com; other images courtesy of the Penobscot River Restoration Trust.

Auction Results in California Cap and Trade

The California Cap and Trade Program’s third auction was held last Thursday 5/16/13, and the results were released today.  I’ve been watching the auction results to see what clues they offer as to whether California’s program will suffer from the suite of problems associated with overallocation (low allowance prices, delayed emissions reductions, and large allowance banks).

Overallocation, however, really only becomes clear in retrospect.  Indeed, it is precisely the unknowns of the future that make overallocation hard to avoid.  There might be a recession that reduces allowance demand, or there might be solid economic growth.  There might be technological change that reduces allowance demand (fracking, for example), or not.  Economic change and technological change are just a couple of the exogenous factors that have contributed to overallocation in past programs (others include weather fluctuations, the success of legal challenges, etc.). 

Yet there are hints to be gleaned from the results of allowance auctions.  One can look at whether the allowances are selling for more than the reserve price.  They didn’t for several years in the Regional Greenhouse Gas Initiative (RGGI), but a reform in February to tighten the cap have led to slightly higher allowance prices (latest auction results here).  In California, they are, and the third auction looks better by this measure than did the second (see the Settlement Prices below).  One can also look at the extent to which the auction is oversubscribed or not.  RGGI’s auctions have often been undersubscribed.   In this latest Claifornia auction, there were almost double the bids for allowances (1.78 times) than there were allowances. But this is down from California’s February auction, in which there were almost two and a half times (2.47) more bids than available allowances.  Notably, all three of California “advance auctions,” which sell allowances that cannot be used for several years, have been undersubscribed (see below).  These advance auction allowances have always sold at the reserve price ($10 in 2012, $10.71 in 2013).

I do think there is some "early overallocation" in California’s program, meaning that program caps are above business-as-usual (BAU) emissions in the early years.  Indeed, an analysis by Energy GPS (discussed here) finds that the 2011 emissions of the entities regulated by California’s cap and trade program were about 12% lower than the 2013 cap (140.8 mmtCo2eq emitted, as compared to the 2013 cap of 160.4 mmtCo2eq).  The analysis further forecasts that the 2013 cap will be about 8% higher than 2013 emissions.  Whether overallocation becomes a real problem for the California program (as it has not just for RGGI, but also for the EU Emissions Trading Scheme), will depend on many factors, several of which are out of California's control.        

- Lesley McAllister 

Auction	Allowances Offered	Allowances Sold	Settlement Price
11/14/12 Current Auction (2013 Vintage)	23,126,110	23,126,110	$10.09
11/14/12 Advance Auction (2015 Vintage)	39,450,000	5,576,000	$10.00
2/19/13 Current Auction (2013 Vintage)	12,924,822	12,924,822	$13.62
2/19/13 Advance Auction (2016 Vintage)	9,560,000	4,440,000	$10.71
5/16/13 Current Auction (2013 Vintage)	14,522,048	14,522,048	$14.00
5/16/13 Advance Auction (2016 Vintage)	9,560,000	7,515,000	$10.71

On NEPA and Duplicity

A few days ago, John Bonine, an environmental law professor at the University of Oregon, sent an email to the environmental law professors’ listserve asking for stories about “fraud, lies, omissions, and plagiarism” in environmental assessment documents.  I contributed a story—a true tale involving a little bald-faced lying and some hidden deception by the United States Bureau of Reclamation.  Judging from a followup email John sent this morning, I wasn’t the only one.  In a short time, it seems, he’s compiled a long list.

But if John had posed a different question, and had asked either about helpful environmental assessment documents or successful assessment processes, I would have had other stories to contribute.  I know I’m not the only one.  In fact, two of my favorite academic articles about the National Environmental Policy Act involve detailed exploration of the ways—sometimes counterintuitive—in which environmental assessment can generate positive outcomes.   The first, a 2002 article by Brad Karkkainen, points out that NEPA generates many environmental benefits not from disclosure and open discussion, as Congress seems to have anticipated, but instead from project revisions designed to avoid the need to disclose and discuss adverse environmental impacts.  The second, a 2006 article by Bob Adler, and provides a detailed case study of NEPA in action.  Though NEPA did not stop the project in question, Adler credits NEPA with compelling project changes that substantially reduced the adverse environmental impacts that would have resulted from the original proposal.  Both articles are entirely consistent with my own experience as a practicing NEPA (and California Environmental Quality Act) lawyer.

Indeed, in a strange way, some of John’s evidence of nefarious behavior may well support arguments—particularly Karkkainen’s—about NEPA’s effectiveness.  After all, if NEPA were simply a toothless wonder, a statute that required only meaningless disclosures, there would be no need for fraud and lies (plagiarism would be another matter; there are plenty of other reasons to cut corners).  Agencies could simply tell the truth, acknowledge the forthcoming environmental damage, and get on with their business.  The lies may show that the public reactions to (or the legal implications, under other environmental laws, of) disclosures of impacts remain significant concerns for project proponents. 

I once asked a client, a good planner who bore the burden of working for a county high on massive-scale development and low on funds, about this dynamic.  “Don’t ever underestimate,” he told me, “how much we fear that public reaction.”  For him, that fear was also leverage.  The threat of controversy gave him at least a little ability to inject progressive planning principles into an otherwise headlong rush toward sprawl.  I doubt his situation was unique.  So even as we condemn, as we should, the deception that sometimes appears in environmental assessments, we should keep in mind that the same incentives that sometimes generate duplicity also sometimes—perhaps much more often—change environmental outcomes for the better.

-Dave Owen

Standing in Recent Environmental Cases

On Wednesday (May 15), the Environmental Law Institute is hosting a lunchtime seminar on The Future of Standing in Environmental Cases, with a great panel: 

• F. William Brownell, Partner, Hunton & Williams (moderator)
• Amanda Leiter, Associate Professor, American University, Washington College of Law
• Thomas Lorenzen, Assistant Section Chief, Environment & Natural Resources Division, Department of Justice
• Roger R. Martella, Jr., Partner, Sidley Austin LLP
• Allison Zieve, Director, Litigation Group, Public Citizen

I hope that the panel addresses what I regard as one of the most interesting recent developments in standing cases:  the number of significant environmental cases in which the D.C. Circuit is finding that industry plaintiffs lack standing.  Environmentalists and environmental law scholars have often regarded rigorous standing requirements as biased against citizen environmentalist plaintiffs.  See, e.g., Shi-Ling Hsu, The Identifiability Bias in Environmental Law, 35 Fla. St. U. L. Rev. 433, 465-73 (2008).  Indeed, the Supreme Court has essentially admitted as much, noting that plaintiffs who are the target of government regulation generally satisfy standing requirements, whereas establishing standing for other plaintiffs is "substantially more difficult.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992).  But many of the recent significant environmental cases in which plaintiffs have lost on standing grounds involve industry plaintiffs:

• Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012), held that states and industry groups lacked standing to challenge EPA’s Timing and Tailoring Rules.
• Nat'l Chicken Council v. EPA, 687 F.3d 393 (D.C. Cir. 2012), held that the National Chicken Council, National Meat Association, and National Turkey Federation lacked standing to challenge an EPA rule interpreting a provision in the Energy Independence and Security Act of 2007 regarding renewable fuel credits.
• Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169 (D.C. Cir. 2012), held that engine manufacturers, food suppliers, and petroleum suppliers lacked standing to challenge EPA decisions approving the introduction of E15—a blend of gasoline and 15 percent ethanol—for use in select motor vehicles and engines.
• Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6 (D.C. Cir. 2011), held that the NAHB lacked standing to challenge findings by EPA and the Army Corps of Engineers that two reaches of the Santa Cruz River in southern Arizona are “waters of the United States” and therefore within the jurisdiction of the Clean Water Act. 
• Nat’l Ass’n of Home Builders v. Army Corps of Engineers, 663 F.3d 470 (D.C. Cir. 2011), held that the NAHB lacked standing to challenge the Army Corps of Engineers’ Nationwide Permit 46 authorizing discharges of dredged or fill material into certain non-tidal ditches.
• Chamber of Commerce v. EPA, 642 F.3d 192 (D.C. Cir. 2011), held that the U.S. Chamber of Commerce and National Automobile Dealers Association lacked standing to challenge EPA’s decision granting California a waiver from federal preemption of vehicle emission standards under Clean Air Act § 209.

This pattern of losses for industry plaintiffs does not appear to reflect a new development in standing doctrine; each of these decisions relies on well-established standing principles.  This makes me wonder whether this string of industry losses is a coincidence, or has some underlying common cause.  For example, are industry plaintiffs seeking judicial review more aggressively or expansively?

I am equally interested in seeing whether, if this pattern continues, environmentalists and environmental law scholars will soften their skepticism about standing doctrine.  Of course, the obstacles encountered by industry plaintiffs in establishing standing are not necessarily the same as those encountered by environmentalist plaintiffs, and so one can take a principled position that courts have interpreted standing doctrine too stringently as applied to losing environmental groups but correctly as applied to these losing industry plaintiffs.  But it does seem to me that, these days, the results in standing cases seem somewhat less disproportionately against environmentalist plaintiffs.

--Todd Aagaard

LSU Law Center Launches New Laborde Energy Law Center

In a bit of shameless self-promotion of my home institution, I wanted to highlight that LSU's Laborde Energy Law Center has now been officially launched. You can check out the new website here. The Center was made possible in large part by a gift from LSU Law graduate John P. Laborde, who graciously gave the largest gift to the law school in its history. The Laborde Center will have many missions, but its academic programming will focus in large part on providing students practical training and experiential learning opportunities in the area of energy law prior to graduation, including (but not limited to): field trips to energy facilities to learn about the regulatory compliance and other obligations of those industries; white papers informing the broader legal community of timely energy and environmental legal issues; a speaker series with prominent speakers from both the state of Louisiana and nationally; a concentration program in energy law with expanded energy and environmental course offerings; collaboration with the newly formed LSU Journal of Energy Law and Resources to put on a yearly symposium; development of networking and internship opportunities for students in the energy law field; development of robust interdisciplinary curricular and experiential learning opportunities with programs on main campus (such as Geology, Petroleum Engineering, Nuclear Sciences, Coastal Sciences, Environmental Science, Business, and Chemical Engineering).

We are very excited about the center and hope that it will be a resource that the broader energy and environmental law communities can turn to for expertise in the field. Below is the vision statement of the Laborde Energy Law Center:

The twenty-first century presents no challenge to Louisiana, the United States, and indeed the global community greater than that of producing and distributing energy in an effective, safe, equitable and environmentally sound fashion.  To meet this challenge, decision-makers in both the private and public sectors increasingly must rely on attorneys with a sophisticated understanding of the energy industry and the legal and regulatory framework with which the industry operates, in Louisiana and beyond.  In recognition of this need, the LSU Law Center has created the LSU John P. Laborde Energy Law Center that will serve as a leading focal point for educating highly skilled attorneys deeply grounded in the law, business and science of twenty-first century energy in all of its manifestations.

Legal and regulatory issues surrounding the energy industry have become increasingly complex and specialized over the past 30 years as new forms of energy have emerged and regulation of the energy sector has increased. In this context, the demand for legal professionals with a broad, deep and interdisciplinary background in energy law will only grow more pressing. To meet this demand, the Energy Law Center will work to provide superlative preparation for “client ready” attorneys ready to meet the needs of our State and the broader national community.

The Energy Law Center will provide an integrative, multidisciplinary approach to energy law specialization that will complement and add to cutting-edge thinking about legal education.  Our graduates pursuing specialization in the energy sector will be “prepared for practice” and ready to assist with complex projects involving teams of interdisciplinary professionals in the energy industry.

The interdisciplinary mission of the Energy Law Center will provide an additional link between LSU Law and other LSU campuses and disciplines, such as geology, geophysics, biology engineering, and finance.  The Center will also provide new opportunities to build relationships with other interested organizations in the state and across the nation.

Fundamentally, there is no state that is more appropriate for housing such a center, no state in greater need of a comprehensive Energy Law Center, than Louisiana, and no law school better positioned to foster such a center than LSU Law.

- Blake Hudson

Call for Papers: "Stuck in Forward?" due May 15

Below is a Call for Papers that inspires critical, big-picture thinking.  Among the possible topics, conference organizers have included the following environmentally-related ones:

• Population and shifting demographics—opportunities and rhetorical strategies
• Capture and the regulated state
• The economy, class and energy policy
• Class, race, climate change and the environment
• The contracting state, private governance and the emergence of a new feudalism?
• The dysfunctional corporate food sytem

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ClassCrits VI: Stuck in Forward? Debt, Austerity and the Possibilities of the Political

Sponsored by Southwestern Law School & U.C. Davis School of Law, Los Angeles, CA, November 15-16, 2013

Excerpt from the Call for Papers:

"What are the possibilities and alternatives for a genuinely progressive economic project in an age of resurgent neoliberal policies and politics, worldwide shifts in population and demographics, and hegemonic economics? How can we address the challenges of our age including, but not limited to: globalization; shifting power relationships between the developed world and formerly “third world” countries; massive intergenerational and upward transfers of wealth; abject poverty; staggering debt; wage stagnation; a declining middle class; an increasingly dysfunctional food system; and environmental and climate risks that will require concerted national and international efforts. Stuck in Forward? Debt, Austerity and the Possibilities of the Political will address these questions by bringing together scholars, economists, activists, policymakers, and others to critically examine and take stock of who wins, who loses, how the law facilitates the hierarchical and spatial distribution of winners and losers, and how we may use law and politics to develop both real and utopian interstitial spaces of classlessness within the new post-recession global order."

Proposal Submission Procedure and EXTENDED Deadline 

Please submit your proposal by email to classcrits@gmail.com by May 15, 2013.  Proposals should include the author’s name, institutional affiliation and contact information, the title of the paper to be presented, and an abstract of the paper to be presented of no more than 750 words.  Junior scholar submissions for works in progress should be clearly marked as “JUNIOR SCHOLAR WORK IN PROGRESS PROPOSAL.”

See the full Call for Papers and Presentations for more information about this year’s themes and topics.

- Lesley McAllister

A Law Review Submissions Dilemma

Recently, one of my colleagues faced a dilemma involving submissions.  Two months ago, he agreed to publish an article in a top specialty journal.  It was late in the submission season and he was somewhat naive about the process, so he didn't realize any journals might still be considering the article, and he didn't withdraw the submission from other law reviews.  To his surprise, a top law review recently expressed interest.  What to do?

I'm curious how other colleagues (and law review editors) have handled this situation.  Of course, the best answer is to avoid the situation entirely by withdrawing your submission everywhere else immediately upon accepting a journal's publication offer.  But that clearly doesn't alert every journal--most years, I get a few rejections, and occasionally an inquiry, from journals I withdrew from weeks earlier--and I've heard of two other instances where this situation arose.  In both, the initial offeror retained the article.  But I'm wondering if that's a typical resolution.

- Dave Owen

Welcome to Professor Robin Craig!

We are very glad to welcome Professor Robin Kundis Craig to Environmental Law Prof Blog.  Robin completed her doctorate in English literature at UC Santa Barbara and her law degree at Lewis & Clark.  Before entering academia, she worked for the Natural Resources Section of the Oregon Department of Justice and clerked for U.S. District Judge Robert Jones. She is presently the William H. Leary Professor of Law at the University of Utah S.J. Quinney School of Law.
 
While first and foremost a water law guru, Robin also has great expertise in property law, civil procedure, administrative law, toxic torts, and environmental law generally.  She is the author or co-author of four books – Comparative Ocean Governance: Place-Based Protections in an Era of Climate Change (2012); Environmental Law in Context (3rd ed. 2012); Toxic and Environmental Torts (2010); and The Clean Water Act and the Constitution (2nd ed. 2009) – and she is working on a new water law casebook, Modern Water Law, with Professors Bob Adler and Noah Hall, due out in June 2013.  She has also published over 50 law review articles and book chapters.

Given Robin’s broad expertise and prolific writing, we are delighted to have her in our ranks this summer!

- Lesley McAllister

Supreme Court Reaffirms Agency Discretion in Interpreting Regulations

The following was authored by Eric Lorber and reposted from RegBlog, with the permission of Cary Coglianese.

When federal agencies impose regulations on businesses, who decides what those rules actually mean?  In a recent decision, the Supreme Court said that agencies do.

In Decker v. Northwest Environmental Defense Center, the Court examined whether the Environmental Protection Agency (EPA) reasonably interpreted its regulations when concluding that permits were not required under the Clean Water Act to discharge storm water runoff from logging operations. The Court – ruling that the EPA’s interpretation was reasonable – affirmed the principle that courts should defer to an agency’s interpretation of its own regulation unless that interpretation is plainly erroneous or inconsistent with the regulation.

The dispute in Decker arose following the actions of logging and paper-product companies in Oregon. Under a contract with the state, Georgia-Pacific West and other logging companies harvested timber from a state forest using graded roads to transport the timber. When it rained, water from those roads – often filled with sediment, dirt, and crushed gravel – ran off into nearby rivers and streams.

In September, 2006, the Northwest Environmental Defense Center (NEDC) filed suit in the United States District Court for the District of Oregon, alleging that the logging companies caused discharges of storm water runoff into two waterways and had not obtained the necessary permits to do so under the Clean Water Act. 

The District Court dismissed the action, concluding that the discharges were permissible, but the Court of Appeals for the Ninth Circuit reversed.

The Supreme Court granted certiorari to address the question of whether the EPA’s interpretation of its own regulations – that permits are not required for discharges from storm water runoff from logging roads– was reasonable.

The Clean Water Act requires a permit if storm water runoff “associated with industrial activity” is discharged into navigable waters. The EPA, the agency responsible for enforcing the Clean Water Act, issued regulations defining “associated with industrial activity” as only those discharges “directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” The EPA later interpreted storm water runoff from logging roads as excluded from this definition.

In a 7-1 decision, the Court sided with the EPA, concluding that the agency’s interpretation was reasonable and therefore entitled to deference under a previous Supreme Court decision in Auer v. Robbins.

After noting that jurisdictional issues did not preclude the courts from hearing the case, the Court turned to whether the EPA’s interpretation of “associated with industrial activity” was reasonable.

First, relying on the general rule enunciated in Auer that courts should defer to an agency’s interpretation of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation,” the Court concluded that while the term “industrial” can refer to business activity in general, the term also might apply more narrowly to the manufacture of goods in factories, which does not include outdoor timber harvesting.

Second, the Court determined that the EPA’s interpretation that the regulation extends only to traditional industrial activities was rational and therefore permissible.

Finally, the Court concluded that the EPA “could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive,” given the backdrop of extensive state regulation of storm water runoff from logging roads

Although the Court acknowledged that the EPA’s interpretation might not necessarily the best one, it noted that the interpretation was consistent with the regulation and therefore entitled to deference.

Justice Scalia, disputing the majority’s deferential approach, argued in dissent that the Court should not grant such discretion to federal agencies. He asserted that Auer should be reconsidered because no persuasive justifications exist for affording federal agencies both deference in creating regulations and interpreting them. In its place, Scalia suggested the Court should instead determine whether the agency’s interpretation of the regulations was the most fair.

The Court – refusing to endorse Scalia’s arguments limiting agencies’ interpretive discretion – reversed the Ninth Circuit and remanded the case for proceedings consistent with its opinion.  

Justice Stephen Breyer did not take part in the decision because his brother, a judge in the United States District Court for the Northern District of California, sat on the Ninth Circuit panel that had decided the matter under review.

(reposted by Lesley McAllister)

A Water Quality/Fish Passage Controversy Reaches Closure

Last week brought closure to a rather interesting legal controversy at the northeastern corner of the country.  The St. Croix River, which forms part of the boundary between Maine and Canada, once supported millions of alewives (also known as river herring).  Dams and pollution decimated alewife runs throughout the northeast, but by the mid-1990s, the St. Croix run had partially recovered.  That recovery alarmed local fishing guides, who blamed the alewives for declining smallmouth bass populations.  In response to these concerns, Maine enacted legislation requiring closure of a key fish ladder.  With the ladder blocked, alewife populations again declined precipitously.

This second decline eventually led to both litigation and legislative activity.  On the litigation front, the Conservation Law Foundation, a regional environmental group, began by suing EPA.  CLF argued that the state’s actions constituted a de facto amendment of water quality standards for the St. Croix, and that EPA was obligated to review that change.  That suit culminated in an EPA letter to the state of Maine, in which EPA concurred in CLF’s position.  But the state initially brushed off the letter, and it appeared that CLF would need to file another lawsuit to compel state action.  CLF did file that lawsuit, but the suit raised a host of jurisdictional issues, some of them quite thorny.  As thoroughly explained here, bringing lawsuits to compel compliance with water quality standards is no easy matter.  Those jurisdictional issues now have been briefed but not yet addressed by the court.

Now, however, those same issues are moot.  The state legislature recently passed a bill requiring the reopening of the fish ladder.  The legislation had broad support: Native American tribes and commercial fishing interests joined environmentalists in support of the bill, while only a few fishing guides remained opposed.  That alone was no guarantee of gubernatorial support.  Maine’s governor spent part of last week speaking at an anti-Agenda 21 rally, and when it comes to pro-environmental legislation, all bets are currently off.  But even if he could not bring himself to sign the bill, the governor also declined to veto it, and last week the bill quietly became law.

So why should anyone outside of an obscure corner of Maine care?  There are three main reasons.  First, this controversy highlights intriguing questions about EPA’s obligation to review state actions that serve as de facto amendments of water quality standards.  Many state actions arguably could meet that description.  Installing a board in a fish ladder, and thus preventing fish migration through a river system whose designated uses include supporting native fisheries, seems like an obvious example.  But what about approving subdivisions that alter stormwater runoff in ways that damage water quality?  Could that require EPA approval as well?

Second, the litigation, had it proceeded, would have compelled the courts to confront some interesting questions about the enforceability of water quality standards.  And those theories in turn would have implicated basic questions of federalism.  For example, the plaintiffs’ most plausible source of a cause of action might have been the U.S. Constitution’s supremacy clause.  And the United States Supreme Court recently raised, without resolving, questions about whether such a cause of action exists.

Finally, and perhaps most importantly, the ecological benefits of this recovery project could be substantial.  Alewives are the anadromous equivalent of rabbits; they reproduce in astonishing numbers, and just about every predator that lives in northeastern river systems or the near-shore ocean eats them.  Right now, they’re under consideration for ESA listing, but a recovered population could help New England’s iconic, and beleaguered, groundfishery bounce back.

-Dave Owen

A Child's Perspective on the European Crisis

Following Dave’s lead and apropos to Jonathan Zasloff’s commentary at Legal Planet on UCLA's tobacco ban, here is a funny tidbit from my 6 year old daughter.

As we drove to school a couple days ago, we were listening to an NPR story about the economy.  The reporter was summing up the situations of various regions of the world.  As to Europe, the reporter said something like “Europe doesn’t look great either.”

Now my daughter knows a thing or two about Europe.  We lived in Spain last year for 6 months.  From the backseat, she speaks up in a very deliberate and confident voice:

“Of course Europe doesn’t look great -– there are cigarettes all over the ground!”

- Lesley McAllister

The New (Old) Euclid. The More Things Change, the More They Stay the Same.

This past week I took a trip to Toronto via Cleveland (long story) to attend the Urban Forests, Political Ecologies Conference (which was a truly fantastic conference). In addition to seeing the Cuyahoga River for the first time (a river that makes its way into every intro to environmental law course), I got to drive through the city of Euclid, Ohio. I felt as if I was living in a case book! Euclid, as many of you know, became famous in the case of Euclid vs. Ambler Realty, where the Supreme Court, for the first time, upheld a municipality's authority to enact zoning regulations. These regulations were ultimately an exercise of the police power intended to preempt nuisance claims by separating well-recognized nuisances (like industry) from those who might bring claims. Well, as I traveled down the main drag back toward the interstate, what filled the windshield of my car but one of the largest windmills in North America. That's right, Euclid was at it again. Innovating. From the same grid upon which modern zoning was built, you could now view a growing source of alternative energy in the U.S. I snapped a picture, shown to the right, and as you can see this is no slight change to the Euclid skyline (it appears, however, that Euclid has not mandated underground powerlines through its zoning power).

The mayor of Euclid hopes this is the beginning of Euclid's renewable energy revolution, and Euclid has indeed followed up by placing solar panels on city buildings. The turbine is poised over Lincoln Electric's headquarters and is expected to cut a half a million dollars from Lincoln's annual electric bill. Of course, just as with complaints about zoning regulations in 1926, the city has received complaints about the turbine obscuring views of Lake Erie. But overall, residents seem quite happy with the attention the windmill brings, and with the potential for future investment in windmill manufacturing for a region in great need of re-investment in growth industries. 

Of course, the case of the city of Euclid provides an interesting metaphor for the broader intersection between zoning and renewable energy. As Professor Troy Rule has explored in many fine articles, municipalities may often use zoning authority to keep renewable energy projects out of their municipal limits. In this way, the city of Euclid provides a wonderful example of a city embracing such projects - and not just a project on the fringe of the city limits, but one that can be seen from pretty much any street in downtown. Hopefully more municipalities will embrace Euclid's vision of what is not a nuisance in a time when renewable energy is in need of major adoption across the 88,000 or so subnational governments across the nation. And maybe they can do something about those powerlines too.

- Blake Hudson      

Introducing Todd Aagaard

We’re happy to introduce our newest blogger.  Todd Aagaard attended the University of Michigan’s School of Natural Resources and the Environment and Michigan Law School, where he was the editor-in-chief of the Michigan Law Review, and clerked for Judge Guido Calabresi.  He then spent eight years at the United States Department of Justice, where, last I checked, his former colleagues are still in mourning over his departure.  He now is an associate professor at Villanova, where he teaches and writes on a variety of environmental law topics.

Todd will be joining us for a three-month stint, which is part of a series of changes coming to the blog.  In the future, we anticipate that some of our editors will remain indefinitely, while others will rotate through for shorter visits.

-Dave Owen

On the Lighter Side

This afternoon, out of the blue, my four-year-old daughter said, "Daddy, today is Earth Day!"

"Oh," I said.

"I told kids at school about pollution.  But I didn't have time to talk about you."

"What did you tell them about pollution?"

"Pollution is..."  she paused.  "Pollution is... endangered species!"

Let's all hope.

-Dave Owen

China Environmental Experiences: Table of Contents

Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China.  A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays.  That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):

New Series: Environmental Adventures in China.  “This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”

China Environmental Experiences #2: Rocky Mountain Arsenal.  “But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here….”

China Environmental Experiences #3: Breathing Air with Heft.  “…It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it.…”

China Environmental Experiences #4: Wifi Without Potable Water.  “This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power….” 

China Environmental Experiences # 5: Milk, Pesticides, and Product Safety.  “Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were.…” 

CEE #6: Environmental Philosophy and Human Relationships with Nature.  “In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy…."

CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity.  “[Previously], I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development….”

CEE #8: Environmental Protection as an Act of Cultural Change.   “This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China….”

CEE #9: Post Script: Returning from China to the U.S.   “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”

--Erin Ryan

The Reliability of the Sun and the Wind

The electric utility industry often complains that renewable energy proponents don’t pay enough attention to the intermittency of renewable resources.  A common refrain is “the sun doesn’t always shine and the wind doesn’t always blow.”  The industry then reminds us that, for a reliable electricity grid, supply and demand must be in balance at all times. The implication is that this will be impossible if we rely heavily on renewable energy.

A new report published by the Civil Society Institute models a year 2050 scenario in which renewable energy is used to generate about half of all electricity in the US, and the lights still reliably come on.  In the scenario, about 22% of demand is met by solar (almost all PV), 16% by wind, 8% by hydro, and 5% by biomass. The rest is supplied primarily by natural gas and nuclear energy.  The scenario includes no coal-fired generation.

The authors explain that the intermittency problem of solar and wind is greatly reduced when you consider generation on a regional rather than local scale. Also, weatherpeople are actually pretty good at forecasting available solar resources (i.e. cloud cover) and wind resources (i.e. wind speed) on the time scale that’s needed for sophisticated grid operators to balance supply and demand – namely, several hours ahead of time.  It also helps that as a general matter, solar electricity is most plentiful and reliable when we most use electricity: during daylight hours. To the extent that disparities between energy supply and demand occur in the 2050 scenario, the report shows that reliability can be achieved using interregional transfers of electricity, energy storage, demand response, and other available approaches.

So it seems we can build electric power systems that bank on the reliability of the sun and the wind.  A new refrain could be “the sun’ll come out tomorrow, bet your bottom dollar that tomorrow, there’ll be sun!” and we can recall that our forebears didn’t name places Windy Mountain, Windy Plains, and the Windy City for nothing. 

- Lesley McAllister

Inappropriate for Class?

Perhaps I should not admit it, but I used the picture below in my environmental law class this semester. I showed it after we had had a pretty heavy discussion on the science of climate change, with the thought that it might bring some levity to an otherwise difficult topic. While no one suggested it was inappropriate, I later found myself regretting it. A female professor might get away with it, but I think a male professor could really catch some flack!

 

-Lesley McAllister

A Happy Fiftieth Birthday to Dugan v. Rank

Fifty years ago today, in Dugan v. Rank, 372 U.S. 609 (1963) the United Supreme Court did something it has not done since: it issued a decision in a takings case involving water allocation. 

That statement might seem surprising.  The Court has decided many takings cases in the last five decades.  Those decisions have addressed wetlands (Palazzolo), floodplains (Dollan, First English), lakes (Tahoe Sierra Preservation Council), and, with particular frequency, beaches (Nollan, Lucas, Stop the Beach Renourishment).  This past term, a flooding case and a wetlands case both occupied the docket.  The Court, in short, has shown no lack of interest in water.  And in that same period, water allocation controversies have produced a tremendous amount of litigation, some of it involving the takings clause.  But not one of the resulting cases has found its way to the Supreme Court.

Is this a problem?  Ten years ago, many water lawyers would have said so.  In the absence of guidance from the Supreme Court, takings plaintiffs pressed some rather aggressive theories about how the takings clause should apply to regulation of water rights.  Most notoriously, in Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001), they argued, successfully, that a regulatory restriction on water use should be analyzed as a physical taking.  The case, and a host of copycat claims, created a fear, widely shared among the many people (including me) who strongly believe in government regulation of water use, that caselaw at the intersection of water rights and takings was in danger of turning seriously astray.  And in the wake of the Court’s Tahoe-Sierra Preservation Council decision—and with Justice O’Connor the likely deciding vote—the Supreme Court seemed like a promising forum for those seeking a change in course.

Now, however, the picture looks different.  In surface water cases, the Tulare Lake case has never gained a following.  Only one other decision (Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed.Cir. 2008)) has adopted a physical takings framework for a regulatory restriction, and that decision involved a rather complicated and unique fact pattern (and the plaintiffs still eventually lost).  In groundwater cases, I recently discovered, courts have uniformly rejected that more categorical approach.  Many questions remain about the application of takings doctrine to water use allocation, and some academic debate lingers, but most courts at least seem to be moving toward a view that the regulatory takings doctrines the Court has developed for land will serve equally well for water. 

If that trend continues, there may be little need for Supreme Court intervention.  So, on the fiftieth birthday of Dugan v. Rank, perhaps water lawyers can raise a toast to judicial restraint, lack of interest, fear of the complexities of water law, or whatever else it is that has kept water rights out of the Supreme Court.

-Dave Owen

Better Block Baton Rouge - Because Riding a Bicycle in Town Shouldn't be Deadly

Last Saturday I had the pleasure of attending the Better Block Baton Rouge event on Government Street here in Baton Rouge. As you can see from the attached images, it was a lively "demonstration project . . . exploring possibilities for transforming the corridor into a vibrant and safe destination for pedestrians and cyclists, while maintaining quality road design that optimizes traffic flow and access to businesses." I bike to work, about 7 miles each way. It takes roughly the same amount of time as driving, I do not have to pay for campus parking, and when I get home I am done with my exercise for the day. I do not ride on the main corridors here in Baton Rouge, however, because it is so very dangerous. As the Louisiana Center for Planning Excellence reports, while Baton Rouge is the worst city of its size in America for traffic congestion, Louisiana has the worst drivers in the nation and ranks 49th (second worst) for bicycle and pedestrian fatalities. Louisiana is also the fifth most obese state in the nation. Thus, a city with a great need for more cycling also happens to be one of the more dangerous cities in which to cycle.

Programs like Better Block BR are crucial to raise awareness of what our streets could look like if they were re-designed to take into account a broader suite of societal values than the status quo: more walkable, cycle-able cities, aesthetic benefits, improved traffic flows, greater access to community amenities, environmental benefits, health benefits, among a variety of other positives. I applaud the mayor's office and other organizers for putting on this program and certainly will be looking for opportunities to help Baton Rogue become a more bike and pedestrian friendly city. My life and the lives of many other cyclists may depend upon it.

- Blake Hudson

Workshop Classes

Yesterday, I enjoyed discussing a new paper I've written about solar subsidies with Professor Ann Carlson’s Climate Change and Energy Law Workshop class at UCLA.  In past years, I’ve participated in similar workshop classes at Georgetown and Stanford, but this one worked particularly well because the students were required to write substantial comment papers. I received their comment papers several days before my visit, and they were generally well written and helpful.  During the class, I tried my best to answer all their great questions.  

I wonder if this type of class could be successful using virtual visits.  Ann mentioned that the students really enjoy the opportunity to engage in peer-like communication with professors on cutting-edge academic work, but the travel costs of ten presenters (most from far away places) make it an expensive course for a law school to run. It certainly wouldn’t be as fun for us profs (I really enjoyed dinner afterwards!), but could students still get a lot out of it?

- Lesley McAllister