Saturday, April 30, 2011
People often confuse unusal weather with climate change.* While talking about climate change and weather together does not have much of a basis in fact, a recent study suggests that it might not be a bad strategy if what you want to do is influence public opinion. The study shows that people are more likely to believe that climate change is occurring if they confront the question on a day that is hotter than normal.
While I would oppose any strategy to win over the public that exploits their confusion about climate change, this study underlines the point that part of winning over the public will require us to better understand how to communicate the nature of climate change and its risks. Many of those interested in addressing the problem understand this at a basic level, but research along these lines is at its beginning stages. My estimation is that we ought to add the topic of how to communicate the risks of climate change to the long list of uncertainties related to the problem.
* Today it is snowing at my house, which is unusual for this time of year. So, I will bundle up and prepare for climate skeptics who see the snow as proof sufficent to debunk climate scientists. This sort of thinking fails to grasp the concept of climate change in a couple of ways. First, climate is measured over decades or centuries, not days. Second, the sort of climate at issue in discussions of climate change is the global climate, so even if we witness a cooler or warmer climate for a particular area, this is only one of many data points that make up the global climate. Of course, one confusing aspect of this is that one of the findings of climate change scientists is that climate change will lead to increased incidences of extreme weather events like droughts, heat waves, cold waves, tropical storms, hurricanes, and floods. Because of this, it is not unusual to hear even informed spectators of climate change opine on climate change when news cycles are covering extreme weather events. When we do, the general line we are likely to hear is that while it is difficult (at best) to attribute an extreme weather event to climate change, over the longer term we should expect more of them and extreme weather is likely to become even more extreme when it occurs.
-- Brigham Daniels
Friday, April 29, 2011
On April 6, a bipartisan group of federal congressmen from Connecticut, Oklahoma, and Texas introduced a bill--H.R. 1380--which is an "offshoot" of the energy strategy that T. Boone Pickens has advocated for several years now; indeed, the bill embodies a key element of the Pickens Plan, and Pickens predicts that it will pass by "late May." The Pickens Plan encompasses four goals, which include building wind energy (and some solar) capacity (an element that Pickens seems to have moved away from since first introducing his plan), updating the electrical grid, providing home energy efficiency incentives, and replacing imported oil with domestic natural gas. The recently introduced bill focuses on this final component.
H.R. 1380--the "New Alternative Transportation to Give Americans Solutions Act of 2011" (the "NAT GAS Act") would expand existing natural gas subsidies in the Internal Revenue Code. Section 4081 of the Internal Revenue Code, for example, taxes "the removal of a taxable fuel from any refinery" or "terminal," among other activities, and Section 6426 of the Code exempts certain fuels from this tax, including biodiesel and compressed or liquefied natural gas, among others; this exemption expired at the end of 2009, with the exception of the exemption for hydrogen. The NAT GAS Act would extend the tax exemption for natural gas through December 31, 2016. The Internal Revenue Code also taxes sales of compressed natural gas and other alternative fuels in Section 4041, and the exemptions to this tax also expired at the end of 2009 (with the exception of liquefied hydrogen); the NAT GAS Act would extend this exemption through December 31, 2016, for natural gas. Perhaps the most influential components of the NAT GAS Act--infrastructurally speaking--are its proposed extensions and expansions of credits for manufacturing and purchasing natural gas vehicles, investing in R&D for natural gas vehicles, and placing natural gas "refueling property" in service.
The NAT GAS Act might be a promising development, but, depending on one's perspective, it may also have a key flaw: it subsidizes one important domestic resource while leaving others--particularly renewables--behind.
Thursday, April 28, 2011
No doubt that one of the most important forces in environmentalism over the last three decades has been the environmental justice movement. Leaders in this field -- Bunyan Bryant, Robert Bullard, Sheila Foster, Eileen Gauna, Hazel Johnson, and Beverly Wright, to name only a few -- changed the way environmental issues are seen. They point out that much of environmental protection has been myopic, and that its focus must change: to include equity, gender, income, race, and, ultimately, justice.
This week, the Department of Energy, the EPA, and the Department of the Interior, among others, are sponsoring what looks to be a phenomenal conference on the state of environmental justice today. From the press release:
The U.S. Department of Energy, along with the U.S. Department of Agriculture, the U.S. Department of Interior, the U.S. Environmental Protection Agency, the National Small Town Alliance, the Howard University School of Law and others, kicked off the State of Environmental Justice in America 2011 Conference today in Washington, D.C.
This year's conference theme is "Building the Clean Energy Economy with Equity," and will focus on climate change, green jobs and equity for low-income, minority and Tribal populations. The goal is to continue bringing together participants from Federal agencies, academia, business and industry, nonprofit organizations, faith-based organizations and local communities to participate in a dialogue on achieving equality of environmental protection.
Tuesday, April 26, 2011
No, it’s not for the Royal Wedding. The ABA Standing Committee on Environmental Law (SCEL), in coordination with the London School of Economics and Political Science and the UK Environmental Law Association, will present “Navigating the New Green Economy: The Challenges of Climate Change and the Opportunities for Clean Energy” on May 23-24, 2011.
Keynote speakers include Lord Anthony Giddens, member of the House of Lords and author of The Politics of Climate Change, and Lisa Heinzerling, professor at Georgetown University Law Center and former Assistant Administrator of the U.S. Environmental Protection Agency. Topics of discussion will include:
• Financing a sustainable reduced-carbon future
• Regulations and incentives in emerging green technologies
• Energy efficiency
• Carbon marketplaces
• Renewable energy subsidies and trade
• Technology transfer
• REDD – Reduced Emissions from Deforestation and Degradation.
N.B. I serve as the ABA Section of State and Local Government Law’s liaison to SCEL, but I haven’t played a role in the organization of this conference. Congratulations to the good people at SCEL for putting it together!
- Lesley McAllister
Monday, April 25, 2011
Discover recently highlighted a new (and old) tool to combat climate change - dirt. The article, titled "Could Dirt Help Heal the Climate?," details new research demonstrating that better stewardship of agricultural soils "would have the potential to soak up 13 percent of the carbon dioxide in the atmosphere today - the equivalent of scrubbing every ounce of CO2 released into the atmosphere since 1980."
The research is focused on the benefits of "regenerative agriculture," which boosts soil fertility and moisture retention by increased use of composting, keeping fields planted year round and increasing plant diversity. Not only do these methods have the potential to combat climate change, but they also can rejuvinate farmlands upon which a variety of developing societies depend for subsistence.
Agriculture has been one of the most disruptive forces interfering with the planet's carbon soil building process, both with respect to the planting of crops and grazing of animals. Land use changes associated with agriculture have "stripped 70 billion to 100 billion tons of carbon from the world's soils and pumped it into the earth's atmosphere, oceans, and lakes since the dawn of agriculture."
In one case study, the researchers determined that by adjusting agricultural methods to achieve 1.5 additional tons of carbon dioxide absorption a year - a task certainly within reach of agricultural practices - 28 million acres of California grazing lands could absorb nearly 40 percent of the state's total yearly carbon emissions from electricity generation.
This research further demonstrates the important role that land use practices play in combatting climate change. States and private actrors could certainly be more proactive in guiding agricultural practices on the nation's farmlands. Given that states are the primary arbiters of land use, however, the federal government and states should also be more proactive in seeking cooperative approaches to adjust land uses associated with agricultural soil retention and enhancement. When a few modifications to such a simple resource as dirt could have such profound impacts on carbon sequestration capabilities, failure to act should leave our governments and private actors feeling, well, down right dirty.
- Blake Hudson
Friday, April 22, 2011
This week has been a busy one in the world of hydraulic fracturing. Representatives Waxman, Markey, and DeGette released a report that describes "the types, volumes, and chemical contents of the hydraulic fracturing products used by the 14 leading oil and gas service companies." The report observes that between 2005 and 2009, the fourteen companies used 780 million gallons of more than 2,500 different hydraulic fracturing products, and these products ranged from common household chemicals to "extremely toxic" substances. Methanol has been the most "widely used" chemical. Much of this information already was available through summaries of chemicals used in Pennsylvania and New York, but this is the most comprehensive report to date and provides more specific information about the quantity of chemicals used than previous summaries have offered. The report concludes, for example, that "[t]he [fourteen] companies used the highest volume of fluids containing one or more carcinogens in Texas, Colorado, and Oklahoma."
Also this week, the Chesapeake Energy Corporation, the "second-largest producer of natural gas," suspended hydraulic fracturing operations in Pennsylvania after a natural gas well blowout "spewed thousands of gallons of fracking fluid into a nearby creek" and farm fields, according to Reuters and the Tulsa World.
Thursday, April 21, 2011
Bob Adler has posted to SSRN a fascinating new article on drought's role in climate change. Specifically, Prof. Adler argues that policy will need to shift how it balances the compassionate impulse to offer relief in times of disaster and the ways in which it encourages and discourages risky behaviors. Noting that we are already "committed" to a certain amount of climate change because of past greenhouse gas emissions, Adler concludes:
"[V]ulnerability increases with the frequency of the event, which decreases the recovery interval between disasters. The result will likely be a vicious cycle of relief and increased risk. Given the likelihood of this scenario, perhaps a more 'compassionate' approach is to implement systemic policies to reduce vulnerability to climate-induced disasters by increasing the sustainability of various economic sectors in advance." To demonstrate what changes we might make, Adler uses the agricultural industry, though there are of course applications to numerous other economic sectors.
Adler's article is an important addition to the climate change literature, in particular because it adds to the growing discourse on climate adaptation -- and the increasingly clear consensus that we need both climate change mitigation and adaptation. The focus on water is especially apropos given the close nexus between water availability and one of the key climate change inputs: energy production.
The article is Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought and Agricultural Law. It can be downloaded here.
This article compares risk spreading and risk reduction approaches to climate adaptation. Because of the buildup of greenhouse gases in the atmosphere from past practices, the world is "committed" to a significant amount of global average warming. This is likely to lead to significant increases in the frequency, severity and geographic extent of drought. Adaptation to these and other problems caused by climate disruption will be essential even if steps are taken now to mitigate that disruption. Water and drought policy provide an example of the significant policy tension between compassion and risk reduction in climate adaptation, and how those tensions affect broader national economic policies. Because water is essential to lives and livelihoods, the compassionate response to drought is to provide financial and other forms of relief. Guaranteed, unconditional drought relief, however, can encourage unsustainable water uses and practices that increase vulnerability to drought in the long-term. Moreover, the agricultural sector is the largest consumptive user of water in drought-prone regions, but longstanding U.S. agricultural policy encourages excess production and water use. Effective adaptation to climate disruption will have to strike a balance between providing essential short-term relief from hardship and promoting longer-term measures to reduce vulnerability through more sustainable water use and other practices. It will also require fundamental reconsideration of laws and policies that drive key economic sectors that will be affected by climate disruption. Although water, drought and agricultural law provide one good example of this tension, the same lessons are likely to apply to other sectors of the economy vulnerable to climate disruption, such as real estate development and energy production.
- Lincoln Davies
Wednesday, April 20, 2011
If the Clean Air Act Displaces Public Nusiance Claims, What Happens if Congress Displaces the Clean Air Act?
During yesterday’s oral argument of AEP v. Connecticut, it seems that things did not go so well for the states attempting to address climate change through public nuisance litigation, see for example here, here, here, and here as representative of typical prognostications of the argument. Because those reading the tea leaves seem to agree the states will lose, the main question up for grabs is how they will go down.
Earlier today, Richard Frank posted a very thoughtful post on this subject. According to Professor Frank, the states will likely lose on the grounds that the Clean Air Act displaces the ability of litigants to bring public nuisance suits arising from greenhouse gas emissions because they are covered by the Act. This is certainly the gist, for example, of the now familiar Justice Ginsburg barb: “Congress told EPA to set the standards [in the Clean Air Act]. You are setting up a District judge as a kind of ‘super EPA.’”
I agree with Prfoessor Frank. However, if this is how the case is resolved, it is interesting to speculate whether or not congressional attempts to strip EPA of its power to regulate greenhouse gases under the Clean Air Act, if indeed successful, would reopen the door for public nuisance claims. In other words, by displacing the Clean Air Act’s ability to regulate greenhouse gases would Congress also displace a litigant’s ability to argue that the Clean Air Act displaces such public nuisance claims?
Indeed, as the attorneys and the Justices have prepped for AEP’s oral argument over the past few weeks, the news has been filled with the unfolding saga of many of those in Congress attempting to eliminate or cutback the Clean Air Act’s reach to regulate greenhouse gases.
Additionally, as the Justices work into the summer attempting to hammer out an opinion in this case, it also seems likely that further efforts to eliminate or cut back the EPA’s power in this area will continue. In fact, on the heels of the most recent attempt to make EPA’s regulation the ransom necessary to avoid a shutdown of the federal government, Speaker Boehner told us this will not be the last attempt to go after EPA’s regulatory powers. Looking forward, it seems that the question of raising the country’s debt ceiling, which is probably going to be debated within the next few weeks, is a very likely flashpoint in this ongoing congressional battle.
As disturbing as it might be if litigants like those in AEP v. Connecticut ask a district court to act like a Super EPA, one has to question what happens if EPA is forced to act as a Miniature EPA or stripped of its power to act like EPA at all.
-- Brigham Daniels
Tuesday, April 19, 2011
Oral argument has now been heard in the case of AEP v. Connecticut, with insightful initial reports out from Legal Planet and SCOTUSBlog. Meanwhile, I’ve been having some thoughts about why the notion that climate change is a nuisance may not be particularly convincing to the justices of the Supreme Court or many other Americans for that matter.
Of course, the Supreme Court did not spend its time this morning hearing argument about whether or not climate change is a nuisance. As I discussed previously, the questions presented were threshold questions: plaintiffs' standing to sue, statutory preemption of plaintiffs’ common law claims, and the application of the political question doctrine. But we all know that a judge’s views on the merits may influence her views on procedural issues.
A public nuisance is, as I teach my students, an "unreasonable interference with a right common to the general public." Plaintiffs’ argument on the merits is essentially that the emissions from the nation’s largest powerplants interfere unreasonably with the public’s right to climate stability. But is this the day-to-day experience of Americans? Isn’t our day-to-day experience instead that these emissions contribute in a positive way to the types of climate stability that we are most aware of? These emissions enable our climate-controlled homes and offices. They enable us to live and work comfortably on bone-chilling winter days and scorching-hot summer days. Emissions from energy use also enable us to transport ourselves from place to place with little awareness of terrain, weather, distance, or changes in altitude. We buy more-than-plenty food at the grocery store regardless of soil quality, rainfall, and other climate-related growing conditions.
So, here is an irony: climate change is caused by climate-control and other energy-intensive practices that allow us to ignore changes in climate. Our energy use makes us disconnected from the climate and keeps us from recognizing the critical importance of climate stability. In other words, our energy use prevents us from seeing just how great a nuisance climate change actually is.
- Lesley McAllister
Monday, April 18, 2011
Sarah Krakoff, Colorado Law School, has posted an intriguing article titled "Planetarian Identity Formation and the Relocalization of Environmental Law" on SSRN. The article is forthcoming in the Florida Law Review and can be downloaded here. The abstract can be read at the bottom of this post.
In a time of rapid globalization, Krakoff provides refreshing insights into the resurgence of localism regarding environmental issues, specifically in the context of climate change. Krakoff assesses a model in which society prepares itself to mitigate and adapt to climate change, regardless of whether the state is or is not successful in "prodding" individuals to act. She also clearly describes what we, and the state, can learn from local initiatives to tackle climate change.
In doing so, she grapples with the realistic concern that despite important local action on climate, communities very well may fall short in their efforts if steps are not taken by other levels of government, especially since climate change is the "mother of all collective action problems." Krakoff further assesses the political and psychological barriers to breaking through to the world citizenry regarding the urgency of the climate change problem.
Despite localism not being a silver bullet solution, Krakoff provides analysis often overlooked by scholars. She provides a unique level of detail regarding just how much local action occurs at levels more local than even municipalities - which is beyond what conventional scholarship often considers meaningful local action. Krakoff details first-hand interviews with formal local groups aimed at tackling climate change - called "Carbon Rationing Action Groups" - as well as more informal groups called "Neighborhood Climate Action and Sustainability Groups."
Ultimately, Krakoff's article is an engaging critique that manages to weave in the philosophical perspectives of the likes of Aldo Leopold, Wendell Berry, and Elinor Ostrom while at the same time providing an extremely practical guide to the role of localism in climate change mitigation and adaptation. Krakoff's thesis rings true in her statements that "there will be no solution to the world's environmental problems if we fail to focus on the livelihood and well-being of local communities throughout the world" and that "if we overemphasize the state's role at the expense of the role of the local law of climate change, we come away bored, despairing, apathetic, or all three."
"Planetarian Identity Formation and the Relocalization of Environmental Law"
Local food, local work, local energy production – all are hallmarks of a resurgence of localism throughout contemporary environmental thought and action. The renaissance of localism might be seen as a retreat from the world’s global environmental problems. This paper maintains, however, that some forms of localism are actually expressions, and appropriate ones, of a planetary environmental consciousness. The paper’s centerpiece is an in-depth evaluation of local climate action initiatives, including interviews with participants as well as other data and observations about their ethics, attitudes, behaviors, and motivations. The values and identities being forged in these initiatives form the basis for timely conceptions of the human relationship with the planet, which in turn provide grist for environmental law and policy design. One overarching conclusion is that environmental laws, even those aimed at solving problems of planetary scale, should include elements that foster localism. The reasons to do so are two-fold, and strangely complementary. First, in an instrumentalist vein, sustained attitude and behavior changes are most likely to be accomplished through the positive feedbacks between personal and community norms. Second, if we fail to reign in carbon emissions as a global matter, at least some communities will have nurtured the attitudes, behaviors, and patterns of living that might be most adaptive to the vicissitudes of a post-climate changed world. By fostering the planetarian identity, localism therefore has the potential to redeem environmental law, even in the face of its potential failure.
- Blake Hudson
Friday, April 15, 2011
On April 12, the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission announced the opening of a new and innovative website (FracFocus.org) that reveals the specific chemicals that twenty-four hydraulic fracturing ("fracing" or "fracking") companies use in oil and natural gas wells around the country. This is an important and interesting development. Several states require fracing companies to disclose the chemicals that they plan to use in a fraced well in their permit applications or to reveal the actual chemicals used in a well completion report. These agencies have, in turn, published general lists of the more than 250 unique chemicals that producers potentially use in fraced wells in their state, but this tells a member of the public little about the specific handful of chemicals that may be mixed with water and injected at any given site. It appears that only a minority of state agencies, such as those in Wyoming and Arkansas, have made more specific information about chemicals used at fraced wells available to the public. Further, although the public may currently request material safety data sheets from local emergency planning committees under the Emergency Planning and Community Right-to-Know Act, EPCRA allows those entities submitting material safety data sheets to claim trade secret status for the chemicals that they are supposed to disclose.
The new website that discloses fracing chemicals to the public is user-friendly and offers useful, detailed data. A user can search wells by state, which pulls up a long list of individual well sites; searches by specific well are also available. The user may then click on the well site and receive detailed information about the chemicals used there, including a description of the trade name of each product used at the well, the ingredients in the product and the ingredients' Chemical Abstract Service (CAS) numbers, the maximum concentration of each chemical in the frac fluid additive and in the full frac water-chemical solution, the "purpose" of the product, and the supplier. The companies also disclose the total water volume used at each well.
According to the Tulsa World, "The two state coalitions behind the registry, the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission, are hoping to block federal oversight and keep regulatory authority at the state level." Indeed, the federal government has recently ramped up attention to fracing. The EPA is conducting a study of the impacts of fracing in shale on groundwater (at the direction of a House committee) and has subpoenaed companies that have refused to disclose chemical information requested as part of the study, while the Department of the Interior has proposed to require companies that frac wells on public lands to disclose the chemicals used to the public. Congress, in turn, questioned officials this week about the safety of the practice and has proposed the "FRAC Act," which would also require public disclosure of fracing chemicals. Whether the motivations behind recent voluntary industry disclosure through FracFocus are to keep regulation at the state level or simply to mollify the public, the website is an encouraging development. Although certain chemicals on the site remain proprietary, the site provides a wealth of useful information.
Thursday, April 14, 2011
Following report comes from the Hill:
House Speaker John Boehner (R-Ohio) isn’t ruling out putting curbs on EPA regulations in play when lawmakers cast high-stakes votes next month on raising the federal debt ceiling.
The House passed legislation last week that strips EPA’s power to regulate greenhouse gases, but the Senate rejected the measure and Republicans failed to graft temporary limits to spending legislation.
Asked at a Thursday press conference whether he expects the issue to be part of negotiations on the debt limit, Boehner replied that there have not been decisions yet about what’s on or off the table in the debate.
He added: “Clearly, the direction of the EPA and the direction they're heading with their numerous regulations are going to cripple our economy and cripple the ability of employers to create jobs.”
Congress is likely to take up a debt limit increase measure after it returns in May, so stay tuned.
-- Brigham Daniels
Drive by any large power plant, and you are bound to notice the obvious. The facility announces itself long before you make its acquaintance. Big power plants come with big transmission needs, so the wires emanating from the facilities always make a striking sight.
This is perhaps no more apparent anywhere than it is in nuclear power plants. Because their generating capabilities are so large -- and their capacity factors so high -- the bundle of wires running from nuclear facilities is inevitably noticeable. A good example, if you find yourself in the vicinity, is Southern California Edison's San Onofre plant. Drive by on I-5, and you can't miss the mass of perfectly parallel lines overhead.
The image of precise bundles of wires is fitting, perhaps, because the exactness that the nation's electrical transmission circuits demand stands in sharp contrast to the many loose ends currently in the nuclear industry. Prior posts have touched on some of these points, but the recent developments continue only. Looking at it today, if we were all weather anchors on the local news, the only forecast we could offer the industry would be "cloudy, with likely more clouds on the way."
- The United States Court of Appeals for the Federal Circuit ruled last week largely in favor of the U.S. government in a case brought by Energy Northwest. Energy Northwest's claim is for breach of contract for the government's failing to take its spent nuclear fuel, when Yucca Mountain remained non-operational. The case is certainly notable for its ruling in favor of the government, but it may be even more notable for two other reasons. First, the decision now stands with numerous other cases the government has lost as a result of the political stalemate over Yucca, as the DOE used a standard contract in promising to take utilities' waste under the Nuclear Waste Policy Act. Second, Energy Northwest had won an award of nearly $57 million, but the government only appealed about $10 million of that award. It let the rest -- $47 million -- stand.
- The New York Times is reporting increased resistanceto the Jaitapur nuclear power plant proposed to be built in India. If it goes forward, it will be the largest in the world. If it does not, we will know that Fukushima's shadow can reach at least as far as this only growing, energy-hungry nation.
- Meanwhile, in the U.S., the Nuclear Regulatory Commission has approved an increase in Exelon's Limerick Generating Station's capacity by about 32 MW. Why? Because in a nation that seems increasingly skittish about nuclear energy, we also need more energy. Clouds, and more clouds.
Wednesday, April 13, 2011
Today, President Obama in a speech set out a rough-sketch plan for how he would propose that United States make headway on its budget deficit. There are certain to be many who disagree with him about his plan. Speaker John Boehner, for example, made sharp criticisms that the plan does not go nearly far enough. It is obvious that Obama’s plan could be attacked by both those that are further right and further left of Speaker Boehner. Also, this speech seems to signal that Obama understands that—whether he likes or not—cutting the deficit will be a major issue during the next presidential election cycle. Because of this, it is likely that those both on the left and the right will have ample time to make their case.
In contrast, this sort of conversation has largely been absent from the latest round of budget cuts used to round up a majority of those in Congress to fund the government for the remainder of the fiscal year. In that process, we did not hear much from our leaders about what should be cut and what should not; about how much is too much and how much is not enough; and about the consequences—both in the short term and in the long term—of taking one path instead of another.
Instead, what we saw was a series of political compromises that have gone on behind closed doors, with no public explanation or examination. For example, as part of the recent budget compromise, as I already mentioned earlier this week, it seems that Congress has decided to remove the gray wolf from the endangered species list. Recently, it also became clear that compromise entailed stripping funding from the Department of the Interior’s Wild Land Initiative, cutting federal funding to state greenhouse gas programs, and in fact substantial cuts in a myriad of additional environmental programs.
Certainly cutting the deficit will enviably call for sacrifices. That, in fact, is the reason that cutting the deficit is so difficult. However, I find it disturbing that discussion and analysis of what we ought to do have been replaced by mere after-the-fact reports of deals that our politicians have struck. While I believe that we need to take drastic steps to cut the deficit, these cuts should come from reasoned analysis and public debate. If we are going to tackle the deficit, it will take real political leadership and courage. This is an instance where adding to backroom politics just won’t cut it.
-- Brigham Daniels
Tuesday, April 12, 2011
I just have to take this opportunity to announce the University of San Diego School of Law’s exciting Third Annual Climate & Energy Law Symposium this Friday, April 15. In case you are not able to join us in person, the symposium proceedings will be posted and available for viewing online soon after the event. This year's theme is “Advancing a Clean Energy Future,” and our spectacular set of speakers includes:
• Jon Wellinghoff, Chairman, Federal Energy Regulatory Commission
• Karen Douglas, Commissioner and Former Chairman, California Energy Commission
Panelists and Moderators
• Sophie A. Akins, Best Best & Krieger LLP
• Lincoln Davies, University of Utah S.J. Quinney College of Law
• Kirsten Engel, University of Arizona James E. Rogers College of Law
• Robert L. Glicksman, George Washington University Law School
• Dian M. Grueneich, Former Commissioner, California Public Utilities Commission
• Jennifer A. Hein, NRG Energy
• Alexandra B. Klass, University of Minnesota Law School
• Richard J. Lazarus, Georgetown Law Center
• Michael Picker, Senior Advisor to the Governor for Renewable Energy Facilities, State of California
• Michael Reed, University of San Diego School of Law
• Jim Rossi, Florida State University College of Law
• Nilmini Silva-Send, University of San Diego School of Law
• David B. Spence, University of Texas at Austin McCombs School of Business
• Joseph P. Tomain, University of Cincinnati College of Law
• Steven Weissman, University of California Berkeley School of Law
The symposium is co-hosted by the University of San Diego School of Law’s Energy Policy Initiatives Center and San Diego Journal of Climate & Energy Law. Symposium papers will be published in the 2011 volume of the San Diego Journal of Climate & Energy Law.
- Lesley McAllister
Monday, April 11, 2011
Wetlands expert Roy Gardner, Stetson University College of Law, has recently published a fascinating book on U.S. wetland law and policy. The book, Lawyers, Swamps, and Money, U.S. Wetland Law, Policy, and Politics has recently become available for purchase (Island Press), and you may purchase a copy here. You can read the press release for the book below.
Professor Gardner is one of the nation's leading experts on wetland law and policy. His book reflects not only his expertise, but also his special ability to make the details of wetland law and policy accessible to all - even despite the complex web of constitutional, administrative, and environmental questions raised. I recommend this book to anyone interested in wetlands, and think it would be great supplementary reading for Natural Resources Law and Policy or related courses.
Professor Gardner is the director of Stetson's Institute for Biodiversity Law and Policy, and was instrumental in Stetson University College of Law becoming the first school in the country to gain membership to the US National Ramsar Committee, which supports the Ramsar Convention on Wetlands in the United States. Stetson students worked with the site manager of Audubon’s Corkscrew Swamp Sanctuary to seek its designation as a Wetland of International Importance under the Ramsar Convention, and it was successfully designated as such in the spring of 2010.
Lawyers, Swamps, and Money
U.S. Wetland Law, Policy, and Politics
By Royal C. Gardner
Washington, D.C. (April 2011) — A leading expert on wetlands law and policy has written an engaging guide to the complex set of laws governing these critical natural areas.
Lawyers, Swamps, and Money explains the importance of America’s wetlands and the threats they face, and examines the evolution of federal law, principally the Clean Water Act, designed to protect them. Royal Gardner’s writing is simultaneously substantive and accessible to a wide audience — from policy makers to students to citizen activists.
Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:
• the geographic scope and activities covered by the Clean Water Act
• the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency
• the goal of no net loss of wetlands
• the role of entrepreneurial wetland mitigation banking
• the tension between wetland mitigation bankers and in-lieu fee mitigation programs
• wetland regulation and private property rights.The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.
The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.
- Blake Hudson
April 11, 2011 in Biodiversity, Constitutional Law, Environmental Assessment, Governance/Management, International, Land Use, Law, Physical Science, Science, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
According to the New York Times, House and Senate leaders have agreed to include a bipartisan proposal to remove Endangered Species Act protections for gray wolves as part of a final compromise to fund the government through the end of the fiscal year.
-- Brigham Daniels
Friday, April 8, 2011
I noted in a recent "Property and Renewable Energy" post on Land Use Prof Blog that I am teaching a "Law of Electricity" seminar this semester, which describes the laws that apply to all phases of electricity production (from the siting and construction of generation to transmission and distribution). The course focuses primarily on wind energy, and I have assigned each of my students to compose a portion of a model wind energy code for Oklahoma and to suggest how portions of the code could benefit other states' energy policy projects. As part of the project we have begun to speak with state senators and representatives in Oklahoma to identify the policy challenges facing wind and other energy industries. One point raised in a recent call struck me as particularly relevant to professors teaching in this area and looking for creative projects for students. One state senator expressed frustration over the lack of energy "facts" from neutral third parties, such as information on the current and projected price per kilowatt hour of electricity from all energy sources--both traditional and renewable. If state legislators want these facts, why not have our students research, compile, and analyze them and send them to policymaking bodies? The facts could be combined with relevant legal analysis, such as comparisons of local, state, and federal energy subsidies and other laws that have affected the pace of various forms of energy development. Students in policy, economics, business, or science programs might be better equipped to provide many of these neutral third-party facts, but it seems that law students have an important role to play, too. If federal policymakers in Washington benefit from hoards of white papers and briefs from active research institutions, why not give state and local policymakers similar information that could better inform their decisions?
Professor Michael Gerrard at Columbia Law School is already putting this idea in action through the Center for Climate Change Law's Model Municipal Ordinance Project; the Center is currently seeking comments on its model ordinance. Other law schools have also begun providing valuable information on energy to local, state, and federal policymakers. To name a few, the University of Houston's Energy, Environment and Natural Resources Center presented carbon trading ideas to federal policymakers at the conclusion of its "Practice of Carbon Trading Class," which included business and law students. Berkeley Law's Center for Law, Energy & the Environment similarly involves students in analysis of energy policy, as does the University of Colorado Law School's Center for Energy & Environmental Security, the University of Connecticut School of Law's Center for Energy and Environmental Law, the UC Davis School of Law's California Environmental Law & Policy Center, the UNC School of Law's Center for Law, Environment, Adaptation and Resources, Pace Law School's Pace Energy and Climate Center, Stanford's Steyer-Taylor Center for Energy Policy and Finance, San Diego School of Law’s Energy Policy Initiatives Center, the University of Texas School of Law's Center for Global Energy, International Arbitration, and Environmental Law, the University of Tulsa's and George Kaiser Family Foundation's National Energy Policy Institute, and Vermont Law School's Institute for Energy and the Environment. I am sure that I have omitted key institutions here; I welcome comments and additions.
With the rise of energy and environmental policy work in law schools, I also pose a question: Are state policymakers getting the message? How can we better distribute the valuable information produced by bright law students so that policymakers have access to the neutral, third-party information that they are demanding? In a world of overabundant information, it seems that classes embarking on code writing projects or policy whitepapers should include communications students to ensure that the information produced does not go to waste.
Thursday, April 7, 2011
In only the latest of the many twists and turns of the saga that is Yucca Mountain, the House Energy and Commerce Committee announced last week that it will investigate the Obama administration's decision to de-fund the only site in the nation slated for long-term storage of high-level nuclear waste. At least two factors clearly informed this move: the ongoing disaster at Fukushima Daiichi, and the growing GOP push-back against the incumbent administration's environmental agenda.
The press release makes this clear. Some highlights:
- "Energy and Commerce Committee Chairman Fred Upton (R-MI) and Environment and the Economy Chairman John Shimkus (R-IL) are launching the inquiry after reviewing available evidence indicating there was no scientific or technical basis for withdrawing the [DOE's] application [for approval of the project]."
- "Congress is demanding answers about the administration’s decision to halt development of the only permanent U.S. site for spent nuclear fuel."
Congressman Upton's view of the Obama administration's decision, clearly, is quite dim:
The administration’s move to shutter Yucca raises serious red flags. Despite the scientific community's seal of approval, extensive bipartisan collaboration, as well as nearly three decades and billions of taxpayer dollars spent, this administration has recklessly sought to pull the plug on the Yucca repository without even the sensibility of offering a viable alternative.
No matter what conclusions the investigation ultimately reaches, both the fact that it's happening and the tone in which it has been launched are notable. They remind us of a few truths of energy policy in the United States: We constantly allow what will eventually be pressing energy issues lie dormant in the background until a catastrophe or disaster pushes us to action. When we do take action, we allow politics to divide us. And our allowance of those divisions, in turn, fractures our overall energy policy.
Only time will tell whether the latest turn of events for Yucca Mountain will lead us down the same road we have repeatedly trod over the last century, or whether, as we enter the second decade of this millennium, we might find new hope in old problems.
Wednesday, April 6, 2011
In a 50-50 vote, the Senate today rejected the Energy Tax Prevention Act. (A tiebreaking vote was not cast because the vote that took place related to cloture—which requires 60 votes.) As a comic side note, it is worth knowing that House member Rep. Gerry Connolly (D-VA) suggested that the bill be renamed the “Koch Brothers Appreciation Act” or “Protecting Americans from Polar Bears Act.” Regardless of what one calls the bill, however, had it become law, the bill would have stripped away a substantial chunk of the EPA’s power to use the Clean Air Act to address climate change. While the bill would have preserved the more stringent mobile emission standards put in place to address greenhouse gases, it would have put an end to other regulations under the Act, particularly the regulations associated with major stationary sources. While the House is almost certain to pass the bill later today and while President Obama would have been likely to veto the bill had it made it to his desk, all of this doesn’t matter much given its death in the Senate.
(For those following the legislative process closely, note that the Senate also decisively rejected a number of other amendments, including amendment 215 proposed by Senator Rockefeller, amendment 236 by Senator Baucus, and amendment 265 by Debbie Stabenow.)
Despite the fact that that the Senate rejected the bill, it should not come as a surprise to anybody that Congress is rethinking EPA regulations. And, this is not just because many in Congress oppose addressing climate change (though that is true). In fact, it was not all that long ago that many of the present defenders of the EPA’s greenhouse gas regulations assumed that Congress would and should preempt these regulations. The major difference being that at the time, these same advocates assumed that we would not only dump these regulations but also replace them with some other form of regulation, most likely a cap-and-trade. For example, consider the following response to a question that Administrator Lisa Jackson received at a press conference held at the White House on the day that the Obama administration announced its intention to regulate light-duty vehicles many months ago:
Q: If Congress doesn't come through, though, on some sort of climate legislation, would you be ready to pull the trigger using the Clean Air Act with some of the work that you’re doing right now?
ADMINISTRATOR JACKSON: I have said before that I actually hope that doesn’t come to pass. I believe very strongly that legislation is the preferable route. It allows for a comprehensive economy-wide discussion of the issues that are going to make for a successful program. That being said, the Clean Air Act is a strong and extraordinarily successful piece of legislation. It has made huge differences in air quality in our country.
And we have an obligation under the law, based on the Supreme Court ruling, to continue to do our job. And that is what we will do. I have also said that I believe strongly that that job can be done in a way that's, step one, that's reasonable, that complies with all administrative processes.
It is uncertain whether, as some have argued, the EPA actually used the Clean Air Act to force Congress into addressing climate change back in the days when Democrats controlled both chambers. Regardless, the EPA is living with the reality that its endangerment finding and regulation of greenhouse gases under the Clean Air Act have come at a political cost. While the EPA is not likely to have its statutory authority clipped by our present Congress, the EPA is not out of the woods. It seems quite likely that it will still face a substantial budget cut or—at the very least—have to live with the burdens that go along with a mobilized opposition both inside and outside the halls of Congress.
-- Brigham Daniels
Update: The House indeeded passed the Energy Tax Prevention Act passed by a 255-172 vote. However, because the same bill died in the Senate, it is largely a symbolic gesture at this point.