Tuesday, December 20, 2016

ELC Essay #13: Juliana v. United States and our Zero-Sum Climate System

By Melissa Powers

On November 10, 2016, federal district court Judge Ann Aiken issued an astonishing decision in the atmospheric trust climate case, Juliana v. United States. The decision holds that the plaintiffs in the case, who include children and young adults ranging from 9 to 21 years old, have a fundamental right “to a climate system capable of sustaining human life.” The decision further recognizes that the federal government has a public trust obligation to protect resources from the consequences of climate change, including ocean acidification and sea level rise. As a result of this decision, the plaintiffs will now be able to go to trial to prove, among other things,

that defendants played a significant role in creating the current climate crisis, that defendants acted with full knowledge of the consequences of their actions, and that defendants have failed to correct or mitigate the harms they helped create in deliberate indifference to the injuries caused by climate change.

If the plaintiffs succeed at trial—as I believe they should—the case should then proceed to the relief stage. Plaintiffs have asked the court to order the federal government to protect the plaintiffs’ fundamental rights and to ensure protection of the trust assets by developing a plan to reduce greenhouse gas emissions. Although resolution of the case could take years, and will almost certainly involve appeals to the Ninth Circuit and Supreme Court, the Juliana decision is already a landmark decision. In the context of this blog series, moreover, the Juliana decision illustrates how and when zero-sum framing is a useful environmental and moral device.

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December 20, 2016 | Permalink | Comments (0)

Monday, December 19, 2016

ELC #12: Deconstructing Zero Sum Environmental Games: Bears Ears National Monument as Reparations and Reconciliation

By Sarah Krakoff

Owls versus jobs. Water for farmers versus water for salmon. Big dam versus tiny fish. Environmental disputes are often described in this way, as contests over limited resources that require one side to lose in order for the other to win. Many environmental conflicts may not be zero-sum games according to technical game theoretic definitions, but characterizing them in this way has traction with the media, the public, and the parties themselves. The zero-sum description frames our debates, often hardening positions and limiting the range of options, both practically and conceptually. Indeed, “I win, you lose” views of the world seem to be corroding every aspect of our public and private lives.

Rather than tinker from within this frame, what if we pulled back the lens and viewed natural resource conflicts in their historical and social contexts? Owls-versus-jobs is the snapshot. The long view would describe how federal forest service policies subsidized unsustainable logging, resulting in undiversified and therefore fragile economies. It would also include how efforts to undermine labor organizing in the Pacific Northwest prevented alliances between environmentalists and loggers. Another part of the story would acknowledge that limitations in federal environmental laws lead to over-reliance on single species strategies. The longer view is harder to describe in a bumper sticker. But excavating the historical forces that lead to particular environmental disputes may help us move beyond pat and unhelpful dichotomies. In the heat of the conflict, it may feel like owls are the opposite of jobs, but reifying that feeling is neither historically accurate nor normatively attractive. Who wants to live in a world where we have to choose between those two?

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December 19, 2016 | Permalink

Friday, December 16, 2016

ELC Essay #11: Less than Zero: The Zero-Sum Game that Hurts Local Communities & Ecologies

Jonathan Rosenbloom

Local communities and their ecology suffer hardship from a zero-sum game over governance authority. This game pits communities (and their local governments, including special purpose districts) against state governments in a constant and unwinnable(ish) conflict over the authority to regulate (or, often, not regulate). Although this zero-sum game is a struggle between states and communities over the authority to regulate, the manner in which it is skewed against local communities has dire consequences on the environment and discourages local communities from protecting and investing in their local ecology.

In our federalist form of government, states hold plenary power. Since the mid-nineteenth century, most courts have held that local governments are creatures of and subject to the whim of state legislatures. Two limitations on state legislative control over local communities are state constitutions (see, e.g., Robinson Township v. Commonwealth (holding state’s attempt to preempt local government regulation of fracking was in violation of state constitution)) and state statutes (see, e.g., Virginia Code § 15.2-2280 (authorizing local communities to regulate land uses)).

State and local governments frequently exercise regulatory authority over critical environmental issues, such as those related to fracking, waste management, and water. As a legal matter, local authority to intervene in potentially controversial activities may turn on whether that authority has been preempted by the state or even the federal government. While the preemption analysis varies by state, it typically prohibits local governments from regulating: (1) where the state expressly preempts local action; (2) where the state heavily regulates the field (but does not expressly preempt); and (3) where there is a direct conflict between the state and local regulation (again, in lieu of express preemption).

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December 16, 2016 | Permalink

Thursday, December 15, 2016

ELC Essay #10: Questioning the Value of Solar

Shalanda H. Baker

At last, energy—that elusive thing that exists all around us, sustains myriad plant and animal life, and illuminates our homes—no longer requires massive infrastructure to be harnessed and converted into electricity. Technology now allows individuals and communities to erect solar panels that convert the sun’s rays into electric currents to power homes, hospitals and community centers. This rare moment in the transition of the energy sector from a system in which electricity is generated by burning fossil-fuels in centralized locations managed by public utilities, to a system where a range of electricity generation and management alternatives exists, has spurred a heightened level of regulatory and economic turmoil in jurisdictions around the United States. The disequilibrium created by customer-sited energy generation threatens to destabilize and reinvent our energy system. If only we would let it.

Industry observers attribute the swift rise of rooftop solar adoption over the past decade to progressive policies and rapid technological advancements. Tax incentives have effectively decreased the cost of owning and installing solar panels. Net energy metering policies pay rooftop solar owners at the customer’s retail electricity rate for each kilowatt-hour of electricity generated by the customer. These programs leave some customers with electricity bills totaling zero dollars, effectively turning their electricity meters backwards when solar panels are fully engaged.  

This dramatic increase in customer-sited distributed energy generation has challenged the utility sector and destabilized the so-called “regulatory compact,” whereby utilities receive a regulated reasonable return on electricity infrastructure investments in exchange for providing electricity. The overall dynamic confronting utilities in this transitional moment has led to what some have termed the “utility death spiral.” In the new, distributed-energy paradigm, utilities can no longer rely on the prior revenue levels from their customer bases to recover costs for infrastructure improvements or to recoup their regulated reasonable return on such investments. Further, in an era of increased distributed energy generation, utilities cannot easily predict what types of infrastructure investments are needed. Thus, they face a “death spiral,” a term that reflects an operating environment with rife economic uncertainty.

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December 15, 2016 | Permalink

Wednesday, December 14, 2016

ELC Essay #9: Energy Policy: No Place for Zero-Sum Thinking

By Inara Scott

The popular notion of a zero-sum game is a scenario in which, for one party to gain value, another party must lose it. We can imagine a pie cut into six pieces, with six people standing beside it. For any one individual to get two pieces means someone else must go hungry. One of the key assumptions here, of course, is that the number of slices of pie is fixed. We can’t add to the pie.

Any simplistic metaphor is certain to break down under scrutiny, but in the energy context, this image is particularly inapt. In December 2005, natural gas was trading around $15.39/MMBtu. Today, the price is closer to $2.90. The reason for this precipitous drop? New techniques in fracking and horizontal drilling in shale rock, which allowed developers to shake loose massive stores of natural gas that had previously been inaccessible. The pie suddenly got a whole lot bigger.

Improvements in materials and efficiency have also drastically lowered the cost of renewable energy generation—so much so that current cost projections for 2020 are half what they were about a decade ago. The cost of wind energy alone fell almost 60% from 2009-2015. If we think of the pie as the amount of renewable energy we can generate per dollar, there can be no doubt it continues to grow.

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December 14, 2016 | Permalink | Comments (0)

Monday, December 12, 2016

ELC Essay #8: Making Economic Development and Job Creation Drivers of Serious Action on Climate Change and Environmental Protection

by John C. Dernbach

We’re fighting for policy changes that will make it possible for us to have better choices; utilities that offer us renewable options, electric trains that make short-haul flights obsolete, public transit. Exxon and its ilk have been fighting for decades to keep these choices out of our reach, and then claim that we are voting with our dollars every time we sit in traffic or heat our homes with fossil fuels supplied by a utility that has a monopoly. They can play gotcha as much as they want, but all it proves is how badly we need better options.

                        Bill McKibben

One of the most longstanding narratives in environmental law and politics is the alleged necessity of choosing between development and environment. The narrative persists in industrial projects, dams, mines, shale-gas development, highways, construction projects, and in a variety of other projects and activities. As Bill McKibben points out, it also persists in the debate about what to do about climate change. In every case, some people win, and some people lose. The narrative, based on conventional development, has a built-in zero-sum game—development or environment. 

A competing narrative, which has been slowly gaining supporters over several decades, is built on the idea of sustainable development—development and environment.  When there are attractive ways of making environmental protection and economic development mutually reinforcing, there is a way of escaping the zero-sum framing of environmental issues, including climate change.  As Bill McKibben says, people want better choices. 

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December 12, 2016 | Permalink

Friday, December 9, 2016

ELC Essay #7: Zero Sum Games in Pollution Control: The Games We Create versus the Games We Discover

by Robin Kundis Craig

Environmental pollution lands us in zero-sum games. The more interesting question is: Do we discover these games? Or do we invent them? In other words, are there hard environmental limits on how much anthropogenic pollution natural systems can absorb, which we eventually discover? Or do we create zero-sum games for pollution purely as a result of our own goals for both ecosystems and social-ecological systems (SESs, a recognition that human societies are both part of and depend upon functioning ecosystems)? In fact, we do both, and the intersection of the two in a climate change era is worth examination.

There is no doubt that natural systems respond to, and can be altered by, human pollution, and at all sorts of scales. The emerging discipline of resilience theory posits that ecosystems can exist in alternative stable states and that they transform from one state to another by crossing an ecological threshold. While resilience theory imposes no normative value on these alternative states, as a pragmatic matter humans tend to find one state more desirable than the others. Relatedly, and importantly, crossing an ecological threshold in one direction is often easier than reversing the process. Thus, when ecosystems are in human-desired states, keeping that system from crossing an ecological threshold in the first place is often far less costly than trying to restore the ecosystem afterwards. As a result, identifying ecological thresholds and the most desirable of alternative states can help to inform legal and policy goals.

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December 9, 2016 | Permalink

Thursday, December 8, 2016

ELC Essay #6: Zero-Sum Environmental Governance

By Shannon Roesler

The political climate that facilitated the passage of major pollution-control statutes, such as the Clean Air Act (CAA) and the Clean Water Act (CWA), may seem difficult to imagine today. When Congress passed the major pollution-control laws in the 1970s, it was responding to a growing consensus that federal environmental regulations were essential to protection of human health and the environment. In their absence, many feared that states would engage in a “race to the bottom,” setting lax environmental regulations in an effort to attract industry and economic growth. Policymakers also recognized that environmental pollution increasingly presented problems of scale; pollutants emitted into the air and discharged into water bodies did not always remain within the political borders of a state. A federal role was perceived as a necessary means to ensure the efficient regulation of interstate pollution.

Today, political support for new environmental regulations at the federal level appears less uniform, particularly given the resistance to federal regulation by a sizeable number of states. Along with industry, states now routinely file lawsuits challenging new environmental regulations as abuses of federal power. Instead of thinking seriously about shared governance, the political default in many states is to litigate with the hope of invalidating the federal rule. This turns environmental governance into a zero-sum jurisdictional game; if the federal rule is invalidated, the state wins, and if it stands, the state loses. When states treat environmental governance as a zero-sum game, they preclude the consideration of win-win scenarios. Along the way, time, effort, and money are wasted in protracted legal battles that delay important protections for human health and the environment.

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December 8, 2016 | Permalink | Comments (0)

Wednesday, December 7, 2016

ELC Essay #5: Beyond Zero-Sum Thinking for Environmental Law

by Keith Hirokawa

The issue addressed by this meeting of the Environmental Law Collaborative—zero-sum thinking and its application to environmental law—questions whether environmental quality is appropriately characterized as a zero-sum game in which regulation is an expensive, job-destroying monster. Describing a choice as a zero-sum game can be insightful for understanding the architecture of choice in a battle of particular circumstances. The notion of the zero-sum game comes from game theory and describes an “I win, you lose” (or vice versa) situation in which the amount you lose is proportional to my gains in winning. The game provides insights into how particular resolutions may have been predictable or even beneficial under the circumstances. However, when posed as a zero sum-game, environmental quality appears too costly: every dollar spent on the environment takes food from the table of some employee.

Aside from the problem that the zero-sum characterization is seldom, if ever, an accurate description of environmental regulation, this zero-sum framing presumes that environmental values are somehow divorced from economic livelihoods.

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December 7, 2016 | Permalink

Tuesday, December 6, 2016

ELC Essay #4: Deep Equity, Zero Sum Environmentalism, and a Sustainable Planet

By David Takacs

As humans appropriate ever more of the planet’s bounty, leaving less for nonhuman species and the ecosystems they inhabit, conflicts emerge over who or what gets which resources. Such skirmishes result in some of the unproductive zero-sum framings we too often see. 

These zero-sum skirmishes extend to what are the appropriate frames through which to view the natural world, and thus how we set priorities to manage that world. Are ecosystems gardens to be cultivated and manipulated for human needs?  Or are they wildernesses imbued with intrinsic value, whose species are valuable for their own sake, to be managed for continued ecological function and evolutionary potential?

In three of my research arenas, promoters of new conservation strategies split the difference, modulating between nature as sacred and nature as profane. In all cases, these three multifaceted approaches to solving problems serve as counter-narratives to win-lose, zero-sum environmentalism.

Public funders and private investors are pouring billions of dollars into Reducing Emissions from Deforestation and Forest Degradation (REDD+) in the developing world. In REDD+, investors pay people to preserve carbon in trees, and then sell credits based on the stored carbon to those who wish to offset their own greenhouse gas emissions. In biodiversity offsetting, rapidly gaining currency as a tool that (potentially) promotes prudent economic and ecological planning, developers degrade biodiversity in one place in exchange for paying to protect it elsewhere. The South Africa government is managing water as ecological infrastructure in its attempt to fulfill the Constitutionally guaranteed right to safe, clean drinking water.  Focusing on the 8% of the nation’s land that provides the source for 50% of its water  policy makers plan simultaneously to create more and cleaner water, augment local ecosystem services, protect nonhuman species, and create jobs for poor people in rural areas. Each of these examples presents non-zero sum solutions to environmental problems and broadens the way we frame the problems in the first place.

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December 6, 2016 | Permalink | Comments (0)

Monday, December 5, 2016

Call for Presentations (SCALE conference) and Papers (Morrison Prize)

Call for Presentation and Panel Proposals for its Third Annual Sustainability Conference of American Legal Educators.  This conference will be held on May 12, 2017, at ASU’s new law school building in downtown Phoenix, AZ.  Roughly 50 faculty speakers from throughout North America will be selected to speak at the conference, and their airfare (up to $500) and lodging are covered by ASU.    

Here’s a link with more information about it:  https://conferences.asucollegeoflaw.com/sustainabilityconference2017/.   Carol Rose will be this year’s keynote speaker

In connection with the conference, there’s also a $10,000 prize contest for recent sustainability-related law journal articles that are ALREADY WRITTEN!  Entrants must merely send five offprints of their article and a cover letter to the address in the Call for Entries.  Here’s a link to that, too:  https://conferences.asucollegeoflaw.com/sustainabilityconference2017/morrison-prize-contest/.

December 5, 2016 | Permalink

Call for Presentations/Paper: Climate Law and Policy Conference in Buffalo

The Buffalo Environmental Law Journal is seeking proposals for its spring symposium, "Climate Change: Law, Policy, and Regulation." The symposium will be held at the University at Buffalo School of Law on Saturday, March 11, 2017

Climate change is the most pressing environmental and human rights issue of our time. Yet, actual lawmaking in this arena has been slow to occur. Without comprehensive climate change legislation, efforts in the United States have largely focused on regulatory solutions under the Clean Air Act. The Obama Administration’s Clean Power Plan is the most recent attempt at a wide-reaching regulatory framework to address climate change drivers in the US. Yet, the Clean Power Plan faces many challenges. Advocates are grasping for other legal theories, including drawing upon the Endangered Species Act, the National Environmental Policy Act, and developing new theories like Atmospheric Trust Litigation. At the same time, challengers oppose increasing federal regulation. The Buffalo Environmental Law Journal is interested in exploring the legal challenges for climate change advocacy, alternative policy approaches, and the stumbling blocks for existing and proposed legal theories.  

Speakers are invited to discuss climate change law on all themes and content areas. Articles will be published in the Buffalo Environmental Law Journal's summer issue. Some suggestions for panel topics include -- 

Natural resource security

Alternative energy 

Climate change and endangered species 

Air and water quality

National and international security

Land use 

Human rights and environmental refugees

Environmental Justice and climate change

International agreements

Comparative climate change law

Climate change tax and finance

To submit a proposal, please send an article abstract (max. 250 words), as an email or attached document, to belj1993@gmail.com by 5pm EST on December 16, 2016. 


Posted by Jessie Owley

December 5, 2016 | Permalink

Dakota Access – Three Things to Watch in the Coming Weeks

Yesterday, the Army Corps of Engineers issued a statement that it would “not grant an easement” for the Dakota Access Pipeline (DAPL) to cross Lake Oahe “at the proposed location” (within half a mile of the Standing Rock Sioux Reservation) “based on the current record.”  The Army Corps instead will conduct a further evaluation of the pipeline route under NEPA implementing regulations, including a “robust consideration and discussion of alternative locations” for the crossing.  The DAPL, which is 99% complete, would bring half a million barrels of oil per day past the Standing Rock Sioux Reservation en route from the Bakken oil fields of northern North Dakota to refineries located in Illinois.  While opponents of the pipeline are celebrating the Corps’ decision as a victory for the tribe and for Lake Oahe, there may be more to this story in the coming weeks.  Three things to watch:

1. The Litigation –Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers is the tribe’s suit seeking to enjoin construction of the DAPL under the Rivers and Harbors Act, the National Historic Preservation Act, and the Clean Water Act. After the district court ruled that the Corps satisfied its tribal consultation obligations under these three statutes (and CEQ guidance on the administration of federal statutes impacting tribal affairs), the tribe appealed and the D.C. Circuit halted construction temporarily to consider the consultation issue.  The D.C. Circuit later lifted the stay, allowing construction to proceed, and is currently considering the merits of the consultation issue.  The merits briefs are due in the next several weeks, but given the Corps’ statement yesterday, the tribe has filed a motion to dismiss this appeal as moot, which is unopposed.  Therefore, this appeal’s days are numbered.   However, this litigation did not involve the easement required to cross under Lake Oahe pursuant to the Mineral Leasing Act (MLA), which is the final federal approval that Dakota Access needed to finish the pipeline.  If the result of the new NEPA analysis is that the pipeline should cross in the same location as originally proposed (considering there is another one following roughly the same trajectory under the lake, this is not outside the realm of possibility), the tribe would likely re-file the consultation claims if the Army Corps does not fully engage the tribe in the promised NEPA review (see number 3), along with an appeal of the easement decision.    

2. The Treaty Rights – The Corps’ decision is based in part on the tribe’s “treaty hunting and fishing rights.” It is unclear from the language of the Corps’s statement whether the Corps is reviewing treaty claims to the lake itself or usufructuary rights in the lake, although it is most likely the latter. Under the 1851 Treaty of Fort Laramie, which was the original treaty partitioning the Great Sioux Nation, the tribes (Standing Rock Sioux among them) retained off-reservation hunting and fishing rights in and around the Missouri River, part of which later became Lake Oahe.  In Article V, the Treaty provides that the tribes “do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.”  Unless successive treaties (or legislation) abrogated these off-reservation rights, the Sioux still possess them, and any pipeline completion route could not interfere with the exercise of these rights.  Unraveling this history and mapping the hunting and fishing locales may take the Corps some time, as it will require extensive consultation with the tribes (the Standing Rock Sioux are not the only tribe with usufructory rights in the lake, either, which could complicate this portion of the review).  If the tribes disagree with the Corps’ conclusions on the scope and nature of the treaty rights, that could form the basis for an additional federal claim.

3.The Army Corps under Trump – The Army Corps’ statement yesterday was a policy position, essentially promising further NEPA review of the decision already issued – allowing DAPL to cross at the same location as currently proposed. Indeed, Assistant Secretary Darcy stated that she had concluded that “a decision on whether to authorize the Dakota Access Pipeline to cross Lake Oahe at the proposed location merits additional analysis…” and that she could not give that authorization “based on the current record.”  She did not say that a) she would not grant authorization for the current proposed crossing in the future, based on a more complete record, or b) that there was any solid basis upon which to completely and finally eliminate the current proposed location.  She only stated that the Corps would more thoroughly review “reasonable alternatives”, “spill risk[s] and impacts”, and “treaty rights” to comply with the MLA and NEPA.  Even if the agency completes this review under President-elect Trump (which it might not, given the President-elect’s somewhat freewheeling approach to the rule of law thus far), there is no indication that the Corps will not revert back to the crossing at Lake Oahe, as long as it does not interfere with treaty hunting and fishing rights.

- Hillary Hoffmann

December 5, 2016 | Permalink | Comments (0)

ELC Essay #3: Strategies for Zero Sum Challenges

By Jim Salzman

Politicians love to talk about the glossy world of “Win-Win Scenarios.” Battling climate change will also grow the renewables sector and create thousands of green jobs. Catch shares programs will increase the fishing community’s incomes and also conserve fisheries. Energy conservation saves fuel bills and drives efficiency improvements. Famed Harvard Business School professor, Michael Porter, has even hypothesized that countries with stricter environmental regulations are more competitive in the global marketplace.

To be sure, there are plenty of examples of win-win scenarios in the environmental field, but it’s wishful thinking to assume that many, much less most, environmental conflicts can be solved with all parties better off. It is often that case that one or more parties feel trapped in a zero-sum game. Farmers in the Klamath Valley see their irrigation water allocation reduced because the endangered salmon need more. Fish win. Farmers lose. In the 1990s spotted owl saga in the Pacific Northwest, logging companies lost access to old growth redwood stands that were deemed to be critical habitat for the endangered owl. Owls win. Loggers lose. One could easily provide similar examples in the pollution context.

Most environmental policies have winners and losers. One might argue that these policies benefit society overall, but it sure doesn’t feel like a benefit to the local resource-dependent communities. These are decisions with diffuse winners and locally concentrated losers. To them, they are trapped in a zero-sum conflict where they need to stand their ground against opposing interests who would have them reduce their emissions, water usage, or timber harvest. "Either I win and continue the status quo, or they win and I have to pay, or perhaps even go out of business."

Given the ubiquity of such zero-sum framing, it shouldn’t be surprising that environmental law has developed a range of strategies to address them. They fall under three basic categories: screw them, grow the pie, or regulatory steam valves.

  • The first category, Screw Them, recognizes the zero-sum game for what it is and lets the consequences flow. Put another way, there are some activities or actors that should lose out. This is a normative position, of course, that favors certain results over others. Companies that discharge dangerous toxics into a local stream should be forced to stop, even if it does hurt their bottom line. In the zero-sum conflict of continuing polluting versus safe waters, safe waters should win. This may seem a satisfying strategy, but keep in mind that the measure of “unacceptable” behaviors varies according to the observer. Conservation interests may well view overgrazing on public lands as a travesty that has gone on for far too long. Ranching interests take the opposite view. Which will win out in a zero-sum conflict of grazing versus range conservation? That depends on which administration is running BLM. A strategy that assumes the losers in zero-sum conflicts deserve to lose looks great if your team is in power. It can seem punitive or worse if you are on the losing side. No wonder, then, that this strategy leads to protracted litigation, overblown rhetoric, and, in the extreme, armed standoffs such as the one that occurred at the Malheur Wildlife Refuge.
  • A second category seeks to Grow the Pie. What looks like a zero-sum game with only eight slices of pie to go around morphs into a win-win scenario if suddenly the pie is enlarged with four more pieces to go around because the government pays off the losers. We generally see this approach where the potentially losing party is politically powerful. As J.B. Ruhl has documented, agricultural interests are more often paid to protect the environment than required to do so. Some fisheries facing restrictions have benefited from vessel buyback programs. The farmers and fishers may be losing, in the sense their actions are restricted, but at least they are being paid for the sacrifice. Similarly, the 1990 Clean Air Act Amendments explicitly sought to compensate coal mining communities for the expected losses in jobs digging high-sulfur Appalachian coal. Growing the pie can be a popular strategy for the parties involved, but not so attractive to taxpayers and those concerned over budget deficits. If regulation proves politically infeasible, however, then growing the pie may be palatable. Even here, though, the parties may not all be happy. Penn Central was certainly not content to receive Tradable Development Rights for Grand Central Station in place of its lost air rights, nor do some environmental groups approve of paying farmers not to pollute.

The third category presents the Regulatory Flexibility of growing the pie. Here, the losers are paid off through regulatory paths rather than through dollars. This is evident in the Clean Water Act’s 404 permit program for wetlands. On its face, the program seems to prohibit dredging and filling wetlands under a wide range of circumstances. In practice, wetlands mitigation banking acts as a political steam valve, allowing much development to proceed by compensating with constructed wetlands somewhere else. We see a similar dynamic with habitat conservation plans. Developers who would have perceived the lack of a permit as a zero-sum dynamic—local economic growth versus a wetland or endangered fly—instead see, if not a win-win dynamic, at least a situation where the costs of doing business are acceptable and the project goes forward. Similar to growing the pie, regulatory steam valves tend to be put in place when the losers are politically powerful and regulating them runs either legal or political risks.

None of these strategies is necessarily better than the other. The relative merits of Screw Them, Grow the Pie, and Regulatory Flexibility will vary depending on the politics of the actors, the nature of the harm, and the public funds available. The key point is that zero-sum games need to pay special attention to the losers, whether they warrant compensation and, if so, what type of benefit is most appropriate.

December 5, 2016 | Permalink | Comments (0)

Friday, December 2, 2016

ELC Essay #2: Seeing Past the Zero Sum Game in Environmental Policy – Harder than it Looks

by J.B. Ruhl

In Nonzero: The Logic of Human Destiny, Robert Wright offers a sweeping view of human evolution that culminates in his argument that modern society has become so complex and interconnected that there are no true “zero sum” games to be played between people or institutions. Economists and game theorists use the zero sum game concept to describe a situation in which each participant's gain (or loss) of utility is exactly balanced by the losses (or gains) of the utility of the other participant(s). A zero sum game isn’t necessarily a bad situation—in fact, it’s what economists argue markets and trading should produce. The reason is that if the situation is nonzero sum, then by definition one participant can gain by more than another loses, or even both can gain. That’s why sellers sell products and consumers buy them! The market depends on traders to identify nonzero sum situations and trade away until they reach zero sum, which is what economists refer to as Pareto optimality.

Being in a zero sum game can be a sticky situation, however, if there is some reason why redistribution of the pie is necessary.  If it were just up to the participants in a zero sum game, and assuming they are what economists describe as “rational economic actors,” they would not agree to redistribute the pie unless someone (irrationally) volunteers to be made worse off to make someone else better off. But it is not always up to just the participants. Sometimes government, in pursuit of a desired social policy, intervenes to force a “trade” at least some of the participants would not voluntarily (rationally) make.

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December 2, 2016 | Permalink | Comments (0)

Thursday, December 1, 2016

ELC Essay #1: What We Talk About When We Talk About Zero-Sum Environmentalism

By Jessica Owley

This past summer, a small but hardy group of law professors gathered to discuss the concept of zero-sum environmentalism. In particular, we had set for our agenda to get “beyond” zero-sum environmentalism. The suggestion was that there is a dominant approach to environmental law issues that frames them as zero-sum and that this framing can be damaging to environmental progress. What we grappled with, though, is whether environmental problems really are (at least at times) zero-sum. Is the description of an environmental issue as zero-sum ever accurate? Are laws treating issues as zero-sum when they shouldn’t be doing so? Or maybe ignoring a zero-sum framework that is at play? Perhaps there are no zero-sum environmental dynamics in the real world and instead “zero-sum” is just the language we (or some of us) use to describe environmental tradeoffs. Zero-sum as used in the context of environmental policy implies stark winners and losers. If the environment wins, the economy must lose. To protect the owls, we destroy the lives of the loggers. To prevent global climate change, Americans must completely change life as we know it.

Our discussions revealed (unsurprisingly) that we all came to this question with different examples, assumptions, and solutions. Some people rejected the idea that zero-sum problems ever actually exist and suggested that reliance on the framework and use of the term can be damaging to environmental governance. Not just because it is an overly constrained view of how tradeoffs actually work, but because the language of zero-sum necessarily creates a combative stance that can impede collaboration and creative thinking. Others suggested that for some environmental concerns, the zero-sum framework was actually underused. That is, we might reach better results if we confront the actual tradeoffs. What work does it do to label environmental problems a zero-sum game? In this case, climate change and biodiversity protection served as key examples. Maybe we do need to emphasize that you can’t have your cake and eat it too. Building that hospital will indeed lead to the extinction of a species. Putting the conundrum in stark terms might help highlight the need for embracing the principle of in dubio pro natura (when in doubt act in favor of nature). Most of us agreed, however, that when we see the zero-sum rhetoric or when we use it ourselves, we aren’t really talking the language of economists. We are taking their term and simplifying it (taking a complex topic from another discipline and simplifying it for our use is something we legal academics are good at). But more than that, we realized that we aren’t actually the ones using this term. In fact, it is not heavily used in the legal academy. It is used in the media, though, and by politicians.



This chart shows an increase use of the phrase “zero-sum” in books first appearing around 1940 and increasingly used since then with a tapering off beginning in 2000. However, overall there is not a high frequency of use of the phrase. Zero-sum Environmentalism did not appear often enough to be plotted with google’s ngram function. What would be more interesting is to chart this phrase in speeches, academic publications, and news articles, but well … I don’t know how to do that.

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December 1, 2016 | Permalink | Comments (0)

Environmental Law Collaborative (ELC) Essays on Zero-Sum Environmentalism

This past summer, members of the Environmental Law Collaborative tackled the concept of Zero-Sum Environmentalism. As an initial foray into our experience with the phrase and its implications, we have followed our pattern of earlier sessions and have written initial essays on our view of the topic. We had anticipated beginning to post these essays mid-November (is the Ides of November a thing?). All of these essays were written before the election, some well before the election. With the election, we faced a real conundrum of whether these essays still have value. What needs rethinking here? In particular, many of us now feel that this conversation is actually more urgent than previously contemplated. Indeed, I confess to being one of the authors who perhaps did not take on the task as seriously as I should have. Some authors have responded directly to the election results and others feel that the results only heighten the urgency of the discussion. As always, the ELC essays represent for us an initial foray into a topic area in which we plan to delve deeper. Thus, I hope you read these essays in that light and help us investigate these ideas with active use of the conversation potential of blogs that allows us to comment and respond to each other. We also welcome other essays tackling this same question and I hope to hear from many of you in the coming months.

Sincerely – Jessie Owley

The Environmental Law Collaborative appreciates the support and funding of the Rocky Mountain Mineral Law Foundation. ELC is also now a 501(c)(3)

December 1, 2016 | Permalink

Thursday, November 17, 2016

Bad Public Lands Bills in Congress - H.R. 866 and H.R. 1484

In what is hopefully not an indicator of legislative initiatives under the Trump Administration, the House Natural Resources Committee held a hearing on Tuesday on two public lands bills that would open up virtually all Forest Service and BLM lands (except Wilderness Areas) for oil and gas drilling and remove almost all environmental protections currently governing drilling activity.  The first bill, H.R. 866, The Federal Lands Freedom Act, would transfer oil and gas permitting authority from the federal government to the respective states, in every state containing federal public lands managed by the Forest Service and the Bureau of Land Management.  It would also exempt those decisions from the Administrative Procedures Act (APA), the Endangered Species Act, the National Environmental Policy Act and the National Historic Preservation Act, basically removing all protection for endangered species, public participation in leasing and permitting decisions (in states lacking a state version of the APA), environmental planning, judicial review, and cultural and historic resource protections in any states that do not have equivalent versions of these laws.  The revenue sharing arrangement between the states and the federal government currently allows states to receive 49% of oil and gas leasing revenue from federal lands located within their borders, and this would remain the same under H.R. 866, which will add financial incentives for states to rapidly increase exploration and drilling.  

H.R. 866 imposes no environmental restrictions on state permitting programs, which would simply take over oil and gas leasing upon filing a “declaration” of intent to do so with the Secretary of Interior.  Although this bill threatens the environmental and cultural values of public lands everywhere, it sends a particularly ominous message about the future of National Monuments, National Forests, and Wilderness Study Areas.  Areas like the Grand-Staircase Escalante National Monument, the Colorado National Monument, the White River National Forest (targeted specifically in written testimony supporting the bill filed by the Heritage Foundation), and National Forest lands throughout the Appalachian region would be immediately open for drilling if H.R. 866 were enacted.   

The second bill, H.R. 1484, is a land transfer bill aimed at divesting the federal government of 45 million acres of BLM and National Forest lands in the State of Nevada.  Titled the “Honor the Nevada Enabling Act of 1864 Act,” this is the latest in a series of efforts by western states to seek ownership and control of vast amounts of federal public lands under the theory that Congress promised these lands to the states in the various enabling acts admitting each state into the Union.   Aside from several flaws in the legal arguments supporting these bills, which strain to bend the plain text of the enabling acts and Supreme Court precedent in Pollard v. Hagan and Dred Scott v. Sandford into support for a federal divestiture the likes of which this country has not seen in over a hundred years, many are based on economic studies that lack critical information about how states will manage the immense administrative burdens they would assume if their efforts succeed.  H.R. 1484 in particular cites a legislative task force report commissioned by the Nevada legislature and finalized in 2014, which concludes that the State could assume title and generate net revenue by immediately ramping up oil and gas development to the maximum extent possible, in a model similar to the way school trust lands are managed (to maximize revenue).  Yet, this conclusion is belied by the detail in the report.  For instance, even if all 45 million acres of transferred lands in Nevada were mineral-bearing, which the report concedes is impossible, the State could not shoulder the massive financial expenses associated with fire management and suppression, which is one of the largest current expenditures for the BLM and the Forest Service in the public lands states.  The report concedes that it lacks critical information on fire suppression and other key details.  In short, the numbers don’t add up, at least not as they are presented now.

Entirely missing from the discussion of H.R. 1484 is any explanation of how the state will manage conservation and environmental protection on the 45 million acres of acquired lands.  It is clear that mining and grazing will continue unabated.  The report indicates that recreational uses will be preserved, as will all valid existing rights of way across public lands.  Wilderness Areas, National Parks, National Wildlife Refuges, National Monuments, desert tortoise Areas of Critical Environmental Concern, and Herd Management Areas for Wild Horses and Burros would remain federal and are expressly excluded from H.R. 1484, but National Forests and all BLM lands not expressly exempted would be transferred.  This means that all 60 of the current Wilderness Study Areas in Nevada would be abolished, and 2.5 million acres of currently protected WSAs would likely opened for mineral extraction, grazing, or other uses that would eliminate future Wilderness potential.  The shift in ownership “style” between the federal government and the State of Nevada would be simply devastating for wildlife, watersheds, fragile Great Basin ecosystems, and other environmental values.

Two weeks ago, it would have appeared unlikely that these bills would ever leave committee, but given the recent election results and the huge shake-up in Washington that is sure to come, these bills (and similar efforts in the Senate) may be ones to watch in the coming year.  More information about H.R. 866 and H.R. 1484 can be found here.

Hillary Hoffmann, Vermont Law School

November 17, 2016 | Permalink | Comments (0)

Call for Papers: California Western Law Review Special Issue, "On the Border: A Legal Survey of the Southwest"

A Call for Papers from California Western Law Review:

California Western Law Review is excited to invite submissions for its special spring issue. Entitled On the Border: A Legal Survey of the Southwest, the edition intends to seize upon California Western’s close proximity to the southern border to highlight the myriad legal issues impacting our region.

While we are interested in showcasing new and innovative scholarship on immigration and criminal issues, we also hope to incorporate a more holistic view of the legal terrain of San Diego and the Southwest. Accordingly, we encourage submissions that address environmental and Native American law; legal developments in biotechnology and intellectual property; military and trade issues; and any other topic that might help illuminate the legal dynamism of San Diego and the Southwest.

Submissions from all members of the intellectual community are welcome; our Spring 2017 issue hopes to feature members of the bench, the bar, and the academy.

If you have an article you would like to submit, please email California Western Law Review with a copy of your manuscript and your CV at lawreview@cwsl.edu, with the subject line “Spring 2017 Special Issue.”

If you would like additional information, please do not hesitate to contact Jake Novack, Editor-in-Chief of California Western Law Review, at janovack@law.cwsl.edu.

November 17, 2016 | Permalink

Thursday, November 10, 2016

Six Thoughts for an Environmental Law Student Wondering what this all Means

As a future environmental attorney, I'm confused and angry and sad. And as a human being, I'm equally as confused and angry and sad. A lot of us students are trying to process all of this today.

That was the beginning of an email that one of my students sent me yesterday.  I think she speaks for a lot of us.  So I thought it might be helpful to share a few thoughts, some but not all of them optimistic, about what we face going forward.  I should say at the outset that I am writing for the benefit of readers who, like me, think environmental protection is important and that climate change and other environmental problems are all too real.

This is going to be a battle.  There have been a few hints of hopeful speculation that perhaps Trump’s tense relationship with mainstream Republicans means he won’t adopt their traditionally anti-environmental positions.  I don’t share much of that hope.  Election Day revealed that other than a few outlying voices in the wilderness like Mitt Romney, the embrace between Trump and conservative Republicans is a big, warm bear hug.  Trump’s transition team selections also suggest that he’s going to be just another far-right conservative, albeit with fewer ideas and a shorter attention span.  And I think those far-right conservatives believe, perhaps with some basis, that loud anti-environmentalism is a key component of the glue that binds their unlikely coalitions together.

We have fought this battle before, and we have won.  Political defeats have a way of feeling new each time.  And this one is new in some ways, but the new elements have more to do with basic common decency than with the environment.  For as long as it has existed, the environmental movement and its predecessors have encountered intense opposition from extractive industries and their political allies.  And it’s often been an uphill fight.  We have lost, over and over again.

But by being persistent, we have also won major and lasting gains.  In most of the United States, air quality is dramatically better now than it was in the 1970s.  It is even more dramatically better than it would have been had we not enacted environmental laws.  Water quality also is greatly improved, though not everywhere, and we just aren’t making toxic waste dumps like we used to.  A few iconic species have been nursed out of threatened or endangered status, and we’ve also kept many, many species from going extinct.  Cities have become more livable, which reduces demand for many resources.  Renewable energy is becoming an increasingly large part of our energy mix.  Per capita water use has been dropping.  And all across the country, there are still beautiful places—some very wild, some urban, and some in between—to go enjoy the outdoors, and to be reminded of why it is so important.

We also have succeeded in building stronger institutions for environmental protection.  Environmental compliance is now baked into the operational cultures of many companies.  Other businesses, like mitigation bankers, manufacturers of pollution control technologies, renewable energy developers, and environmental consultants, use business models that depend upon environmental protection (and put a lot of people to work).  Despite the caricatures of overbearing, insensitive bureaucrats, environmental regulators have gotten much better at finding ways to make genuine environmental protections work for businesses.  There are, of course, some industries whose basic model is opposed to environmental protection, and many of those industries are old enough to have thoroughly insinuated themselves into the political sphere.  But they don’t stand for the economy as a whole.

We have many forums in which to work.  The President is obviously very important to environmental law.  But he isn’t everything.  A lot of good can still come from work at the state and local level.  Direct advocacy toward corporations has sometimes been quite effective, and there is much we could do (like, for example, providing more encouragement to corporations to stop funding industry groups whose real agendas are defined by conservative activists rather than the businesses they ostensibly serve).  And on the greatest environmental challenge of our time—climate change—progress anywhere is progress everywhere.  So we should make gains, and fight losses, on many fronts, and the net result may be positive even if we suffer crushing setbacks in some places.

We have many tools with which to work.  The classic environmental advocacy strategy has been to pass a regulatory statute, which the executive branch then implements.  On the side of land preservation, it’s been to get Congress or the executive to set land aside.  While neither strategy looks quite so promising in the years to come, it’s worth remembering that elements of each have succeeded in every presidential administration in decades.  Even the George W. Bush Administration, never known as a champion of environmental protection, signed strong new fisheries laws, advanced stream and wetland protections, and designated massive areas of the Pacific Ocean as marine sanctuaries.

But the environmental movement has long been creative in finding alternative advocacy strategies, and we can be creative again.  When finding market-oriented regulatory strategies seemed like a way to build coalitions with center-right Republicans, environmentalists embraced economic incentive-based regulation.  If supporting manufacturing and construction goals is a central priority of the new administration, we can do that, too, and it wouldn’t be anything new.  From the Clean Water Act of 1972, which included major funding for wastewater treatment infrastructure, to more recent support for solar and wind construction, the environmental movement has a history of striking alliances with people who want to build things.  There are plenty of opportunities to do more of that.

The American Voters Did Not Repudiate Environmental Protection.  Most voters want environmental protection.  Poll after poll shows that.  Environmental protection may not be a high-salience issue in many places, but this razor-thin election was not a mandate for Donald Trump to begin tearing up our system of environmental law.  Of course, he may act like he has a mandate.  But overreach provides opportunities for responses.

We Have a Powerful Advocate on our Side.  Part of the reason environmentalism was once such a bipartisan issue is that most people derive value from the natural environment.  And that’s true even in—perhaps particularly in—some of the greatest strongholds of Trump support.  Montana and Idaho are spectacular places.  The hills of rural Ohio are beautiful, as are the beaches of the Carolinas and the Gulf Coast.  I spend part of each summer in northern Michigan; it is gorgeous.  And I’m hopeful that the persistent, insistent advocacy of the environment itself will eventually bring people back to the idea that environmental protection is something worth doing—that part of the pride of culture and place that motivates many voters on all sides of the political spectrum means embracing, again, pride in the landscapes within which we live.

You signed up for this.  When you became interested in environmental law, did you think it was going to be an easy field to work in?  I doubt it.  Probably what drew you to the field, at least in part, was your sense that your participation in it would matter, and that wouldn’t be true if victories came easily.  So let’s roll up our sleeves and get to work.  Maybe that means working for an advocacy group.  Maybe it means working with business clients to find new ways to protect the environment and comply with the law while still making money and keeping people employed.  There are so many possible ways to help.  But whatever it means for you, you are needed today, now more than ever.

- Dave Owen

November 10, 2016 | Permalink | Comments (5)