Thursday, June 30, 2011
Legal scholarship of late has highlighted the need not just for climate mitigation but also for climate adaptation. One energy option that falls somewhere in between these two ends of the spectrum is carbon capture and sequestration ("CCS"): removing carbon dioxide streams from commercial operations, especially coal-fired power plant emissions, and then transporting it to geologic formations where it can be stored long-term underground.
Despite the fact that the oil and gas industry has used this process for years in enhanced oil reocvery operations, commercial-scale CCS has yet to get off the ground as a climate change solution. Numerous recent scholarly articles have addressed legal concerns related to carbon capture and sequestration, including, to name just a few, excellent pieces by Victor Flatt and by Alex Klass and Elizabeth Wilson.
While many studies have suggested barriers to using CCS on a broad-scale basis -- including its high cost compared to traditional coal combustion, possible legal liability for underground storage gone awry, and difficulties in building the massive pipeline infrastructure that would be needed for commercial CCS -- no study to date has methodically addressed which of these barriers is greatest. The answer to that question is important, because it implicates what CCS regulation should look like.
One study that I have been working on with colleagues from the University of Utah's Institute for Clean and Secure Energy takes up this question (and several others). While we are still in the process of finalizing the report, here is a partial preview.
The study includes a survey of about 230 industry, professional, regulatory, and academic representatives involved in CCS. One of the survey questions asked the participants to rate, on a 1 to 5 scale, a number of possible barriers to CCS commercialization. A score of 1 means that the barrier is "no obstacle" to CCS commercialization, a 2 is a "minor" barrier, a 3 is a "measurable" barrier, 4 a "significant" barrier, and 5 a "critical barrier.
Four obstacles to CCS commercialization ranked highest in the survey: cost, lack of a carbon price or other financial incentive for using CCS, liability, and lack of comprehensive CCS regulation.
In one respect, this ranking is unsurprising. Cost, liability, and the lack of climate change legislation have been widely acknowledged as problematic for the roll-out of CCS, so one might expect them to top the list. Perhaps more interesting, however, is how highly the lack of CCS regulation rates. What this means is that before CCS is likely to get off the ground, a predictable, comprehensive regulatory regime will need to be put in place.
The survey has more to say on that front. Look for the full report later this summer.
Tuesday brought big news in the East's biggest water war, with the Eleventh Circuit Court of Appeals handing what looks like a major victory to Georgia and what clearly is a big loss to Alabama and Florida.
For decades, Georgia, Alabama, and Florida have been battling over the Apalachicola-Chattahoochee-Flint River system (the ACF, for short). The conflict is complicated, but in a nutshell, Atlanta relies on Lake Lanier, a reservoir on the upper Chattahoochee, as a major water supply; Alabama wants enough water to support barge traffic and provide power; and Florida wants adequate environmental flows to sustain the rich ecosystem of the Apalachicola River estuary and Apalichocala Bay. When drought strikes, as it recently did, those uses come into sharp conflict. The states have been trying for years to negotiate a settlement, but without success, and more recently have been playing what J.B. Ruhl aptly described as "three dimensional chess in the federal courts."
Until this week, the chess game hadn't been going well for Georgia. It, and the Army Corps of Engineers, which operates the dam that impounds Lake Lanier, had successfully fended off Florida's claims under the Endangered Species Act (yes, Florida was an ESA plaintiff). But in two recent decisions, first the D.C. Circuit (Southeastern Federal Power Customers, Inc. v. Geren, 514 F.3d 1316 (2008)) and then the U.S. District Court for the Middle District of Florida (In re Tri-State Water Rights Litigation, 639 F.Supp.2d 1308 (2009)) dealt crushing blows to Georgia's position. They held that Lake Lanier was built for flood control, navigation, and hydropower purposes, but not as a municipal water supply, and that the Army Corps of Engineers could not sustain Atlanta's current water supplies, let alone increase them, without additional Congressional authorization. For Georgia, this was a potential disaster, "the most important case for Georgia's future in decades," according to the state's attorney general (as quoted in the Atlanta Journal-Constitution). For Alabama and Florida, it was a trump card.
Tuesday's decision changed the game. The Eleventh Circuit held that that the Rivers and Harbors Act, which contains passages specifically authorizing the impoundment of Lake Lanier, did contemplate the use of the reservoir as a water supply. It also held that Congress anticipated some increase in municipal allocations as Atlanta grew, and that some increase in Atlanta's water supply could happen without a new Congressional approval. The court did not say how much change would be allowable; that, it held, was a question for the Corps to resolve on remand. It also did not remove all of Georgia's potential legal worries, for Florida and Alabama are promising to seek en banc review, and the endangered species in the Apalichola Estuary may still trigger additional limits Atlanta's water use. But Georgia still stands in a much stronger position today than it did a week ago.
Or so it seems. Until recently, Georgia seemed to be going through the growing pains of a major water user who gradually realizes the existence of environmental limits. This doesn't seem to be an easy process, as the struggles of Los Angeles, Las Vegas, San Antonio, and a great many other water-challenged metropolitan areas illustrate. In fact, a transition out of the stage of water-oblivious development sometimes seems to require staring down the twin barrels of a drought and a judicial injunction. But it is an important transition. Once big water users come to grips with the realities of environmental limits, they can do remarkably creative things. From water-efficient building codes to block pricing to water recycling and xeriscaping incentives, we now have a broad menu of options for saving water, and, often, energy and money along the way, without sacrificing the qualities that make a city a desirable place to live.
Prior to the recent drought and litigation, Georgia showed little interest in such options, and was widely perceived as the arrogant bully in the ACF fight. That was unfortunate for all parties involved, not just Alabama and Florida, for Georgia backed itself into a corner by squandering many opportinities for water-smart development. What happens now is anyone's guess. If Georgia builds on its initial efforts at water reform, it and its neighbors will likely be better off in the long run. But water reform tends to be a slow process requiring a sustained commitment, and with a primary incentive gone, Georgia may well go back to its old ways.
- Dave Owen
Wednesday, June 29, 2011
In the lead-up to the 2012 U.S. presidential election, the divisions in this country are in the news. An article this morning in the Washington Post noted that the appointees to the Supreme Court by President George W. Bush vote very similarly to one another, as do President Obama’s appointees. An interesting opinion piece in yesterday's Tuscon Citizen reflected upon how Representatives Gabriel Giffords and Michele Bachman (mentioned in Brigham’s post earlier today for her calls to abolish the EPA) have, together with former-Governor Sarah Palin, changed the political landscape for women-- without mention of their widely divergent views on environmental and energy issues.
All this takes place as June comes to a close, which will bring with it a new monthly mean from the Mauna Lau observatory of carbon dioxide atmospheric concentrations. The concentrations have been steadily rising—May 2011 was 394.16 parts per million, well above the 350 parts per million that leading climate change scientists say we should stay below to minimize risks.
This combination makes me reflect upon one a conversation I had with a climate skeptic shortly before moving from rural Virginia last year. He started the nearly hour-long conversation in a somewhat combative posture, until I started talking about the nuances of climate science. I explained that there’s a lot of certainty about the big picture, but greater uncertainties (both because of less research and because prediction is harder) about the here and now. Once I did that, he became open to talking about the question I think is most crucial—regardless of one’s perspective on climate change science, what should we do in response to the risks?
I continue to believe that the vast majority of people in this country are not so divided in response to that question if we can get to it and that “clean energy” paired with “green jobs” is probably the most politically viable way of getting there right now. However, the “can we get to it” problem becomes ever harder in the current partisan environment. Recent polling data suggests the U.S. public has become less certain about climate change even as scientific consensus solidifies. And Doug Kysar wrote an interesting reflection on the way in which climate change science was portrayed in the AEP v. Connecticut opinion.
How do we encourage thoughtful dialogue about science and complex environmental problems? How do we ensure that lawyers and policymakers have enough exposure to science that they feel comfortable having nuanced conversations about it? We need to somehow address these issues even as the latest presidential election cycle heats up.
Disturbing Report From the Coal Industry: Wind Farms May Blow the Earth Off It's Orbit (as reported on ONN)...
....and it's not just wind. The clip also highlights the dangers of solar energy:
SATIRE DISCLAIMER: This is satire
- Blake Hudson
In some senses, it is tempting to write off Michele Bachmann's presidential campaign. After all, despite the controversy it caused, many watching on the sidelines would agree with the gist of Chris Wallace’s recent question to Michele Bachmann, “Are you a flake?” Furthermore, regardless of what one thinks of her, it is hard to deny that her chances of becoming the next president seem quite low. (If you disagree with this assessment, you can currently get roughly 8 to 1 odds with the political futures market Intrade.com on the prospect of her becoming president in 2012.)
Because of this, it may also be easy to brush aside the fact that as a presidential candidate, she has repeatedly called for the abolition of EPA. In a June 13 debate in New Hampshire, for example, Bachmann called for “mother of all repeal bills” that would target “job-killing regulations.” She went on to clarify, “And I would begin with the EPA, because there is no other agency like the EPA. It should really be renamed the job-killing organization of America.” This past week, she returned to that theme in an interview with the Associated Press.
Even though it may be tempting to do so, I believe ignoring her calls to abolish the agency is a mistake. While I do not believe she will be our next president, I think her voice is important in the ongoing debate surrounding EPA. Does that mean I think EPA's days are numbered? Absolutely not. However, I do believe that the rhetoric coming out of her campaign is particularly important for candidates courting the support of the Tea Party and is likely to be mimicked by them. Her calls to end EPA are likely to echo in one way or another through the halls of Congress and in nominating conventions all over the country. I worry that the power of her words will become manifest in increased efforts to slash EPA's budget, cut away its authority, and water down its policies.
So, regardless of whether you think Michele Bachmann's campaign will falter, I believe it is a mistake not take the potential impact of her words seriously--even if she slips up and confuses the serial killer John Wayne Gacy with John Wayne the movie star.
-- Brigham Daniels
Tuesday, June 28, 2011
Have you ever thought of electronic appliances in your home as vampires? It's true: they suck electricity in a secretive and disturbing way. We probably think about turning off the lights when we go to sleep or leave the house, but we need to think about turning off all our electronics. And there’s the rub: they often aren’t designed to turn off.
Standby power is part of the problem. Standby power is the electricity your appliances use when they are in standby mode. Standby mode enables our gadgets to turn on quickly, and it supplies a plentitude of digital clocks in our homes. A typical American home has forty products that constantly draw power, amounting to almost 10% of residential electricity use (see Lawrence Berkeley Lab's website on standby power for this and other fun facts).
Energy wonks have been discussing standby power since the 1990s (referred to early on as “leaking electricity.”) Since then, they have also been recommending that policymakers limit standby power consumption to one watt per device. Bush’s Executive Order 13221 (the “1-Watt Standby Order”) responded to some degree by requiring that federal agencies purchase products with low standby energy consumption. Mandatory efficiency standards that apply to manufacturers, however, have not been forthcoming.
As featured in a recent article in the New York Times, the real Dracula these days are the set-top boxes that provide cable and digital recording services. According to the recently released NRDC study described therein, they consume an incredible $3 billion in electricity annually in the United States, two-thirds of which is wasted when no one is watching and shows are not being recorded. Basically, these devices don’t even have a standby mode. They are electron-thirsty 24/7.
So what's a concerned citizen to do? Here's a slogan I just thought of that seems to capture our primary alternatives: unplug, educate and advocate. And if that one doesn't do much for you, here are a few others:
Save energy for a brighter future;
Don’t be fuelish;
If it’s not in use, turn off the juice;
Today’s wastage is tomorrow’s shortage;
and, Conservation is power.
- Lesley McAllister
We are thrilled to announce that Professor Dave Owen has joined us as co-editor of Environmental Law Professors Blog! Dave will be a fantastic addition to our line-up, and we look forward to his weekly contributions. If you do not already know Dave, here is a brief introduction:
Dave teaches courses in environmental law, natural resources law, water law, coastal zone law, and administrative law. His scholarly interests range from the study of ecosystem restoration to climate change, and he is particularly interested in legal responses to environmental uncertainty and change. He's also a water law geek, and many of his posts are likely to relate to water resource management. Some of his recent research has involved the Endangered Species Act's critical habitat protections and, before that, the impacts of urbanization upon water quality, which is a nice way of saying that he's spent a lot of time pondering the law and ecology of shopping malls. He lives a few blocks from the ocean in Maine, where he spends most of his time chasing his 15-month old son in circles and reading Angelina Ballerina over and over and over again to his three-year-old daughter.
We expect Dave's first post will be later this week.
Monday, June 27, 2011
As I got deeper and deeper into my Natural Resources Law and Policy material on water, I lamented to a friend that "we just don't have enough water." My friend, an economist, said "no, we just don't have enough properly priced water." My concern was driven by a Scientific American article about the Ogallala Aquifer, which supports the breadbasket of the world and stretches all the way from South Dakota to Texas. In West Texas alone, the number of irrigation wells grew from 1,166 in 1937 to more than
66,000 in 1971. The overdraft of the aquifer in 1975 was equivalent to the entire flow of the Colorado River, but today the aquifer is being depleted at an annual volume equivalent to 18 Colorado Rivers. In some places agriculture is withdrawing four to six feet a year, and nature is putting back half an inch. Natural aquifer recharge would would take 6,000 years if it were to be fully drained.
In a fascinating guest post on freakonomics.com, Charles Fishman describes some of the drivers of water overconsumption within the context of a very interesting case study. Fishman highlights a move by the National Basketball Association's Cleveland Cavaliers to remove all of the 18 water fountains in Quicken Loans Arena (the "Q"). As an alternative to the water fountains - which, of course, provided free water - the organization directed people to free cups of water available in the concession stands, or patrons could purchase a $4 bottle of Aquafina. Of course, to receive either of those options, people had to be willing to stand in line - which can be a lengthy proposition at a sporting event. Three months passed, and over 1 million spectators attended events in the Q with not one complaint. About halfway through the NBA season, however, a newspaper reported the removal of the water fountains. The fans were furious, even though the Q had sold out 29 home games prior to fans' awareness of the removal. The Q scrambled to put the water fountains back in.
This story demonstrates, first, the entitlement people feel toward things that they obviously do not need - which is a disturbing commentary on the societal drivers of overconsumption and environmental degradation as a general matter. But second, the story raises some very interesting facts about water and why we should consider paying more for it. Fishman notes that if you buy a 17 ounce bottle of water for $0.99, you could take it home and continuously refill it every day with tap water for 6 years before you spent $0.99 on that amount of tap water! Even cheap bottled water is 2,000 times more expensive than tap water at home. This demonstrates an amazing disparity between what we are willing to pay for water when we are at sporting events, on road trips, going to the beach, etc., and what we are not willing to pay, and indeed feel entitled to, in our homes - the place where most water overconsumption occurs. Fishman notes that "[R]esidents act as if increasing the water bill from $23 a month to $30 a month will force them to choose between their heart medicine and their water," even though the average household water bill in the U.S. is less than half the average cable TV or cell phone bill.
Though there are obviously big problems with bottled water - not to mention the toxic chemical and waste disposal issues posed by the plastic used to manufacture them - when considering overconsumption of water it may be useful not to rely too heavily on conventional wisdom ("convenient wisdom") regarding the parcelization of water resources. As Fishman notes, "'Free' is the wrong price for water. In fact, the lack of a price for routine water service is the most important thing that’s wrong with water — resources that are free are wasted; there’s no incentive to learn to use them smartly; there’s no money to maintain and modernize the existing water system; there’s no incentive to reach back and protect the source of something that’s free."
- Blake Hudson
Saturday, June 25, 2011
* The Supreme Court issued its decision in AEP v. CT, holding 8-0 that federal public nuisance law was displaced by Congress's delegation of regulatory authority over greenhouse gases to the EPA in the Clean Air Act.
* Al Gore criticized the media and President Obama for not getting the message out to the public that strong action to address climate change is needed (Rolling Stone).
* Governor Rick Perry of Texas signed a bill that requires oil and gas companies to disclose to the public the chemicals in their hydraulic fracturing fluids and the volume of water used to fracture wells (Washington Post).
* The Chinese government hosted a three day international conference on climate change and kicked it off by announcing its determination to develop a low-carbon economy (Huffington Post).
* The House of Representatives is currently debating (and perhaps fast tracking) a bill that would make major revisions to the Clean Water Act (NY Times).
* Larry Sabato suggests Republicans are at least slightly favored to take the Senate in the 2012 elections (centerforpolitics.org).
* The Wall Street Journal published an editorial questioning claims about the risks of hydraulic fracturing for natural gas and arguing, "If we let the fear of undocumented pollution kill this boom, we will deserve our fate as a second-class industrial power."
Friday, June 24, 2011
Several weeks ago, I noted that New York's Attorney General had sued the federal government under NEPA. Attorney General Schneiderman, in a May 31 complaint, argued that the Delaware River Basin Commission (DRBC)--a regional governmental entity that operates under a compact approved by Congress--had erred in failing to complete an environmental impact statement before adopting its proposed regulations that address hydraulic fracturing in the Basin. (The DRBC has not yet finalized the regulations, although the comment period is closed.) I noted several interesting questions in that case, including, among others, whether the DRBC is a federal agency or whether there is other sufficient federal involvement in the proposed regulations to trigger NEPA's procedural requirements. As a follow-up to the "federal" question in the suit, note New York's argument in its complaint: "The congressional statute approving and effectuating the [Delaware River Basin] Compact on behalf of the federal government designates the DRBC as a 'federal agency.' Pub. L. 87-328, 75 Stat. 688, §15(o) (1961)." New York also argues that the Army Corps of Engineers "is a federal agency with decision-making authority under the Compact." Further, it claims that other federal agencies such as the Fish and Wildlife Service and National Park Service "have decision-making authority under the Compact" and that the Corps "reports" to the EPA on DRBC "matters."
In other hydraulic fracturing news, Texas has taken an interesting step forward with Governor Rick Perry's recent signing of a bill that requires fracturing companies to disclose to the public the chemicals and volumes of water that they use; the bill anticipates a process by which companies will be able to claim trade secret status for chemicals. For an excellent discussion on fracturing disclosure and other natural gas matters, see Professor Betsy Burleson's recent Bloomberg interview.
Thursday, June 23, 2011
Earlier this week, it was hard to tell whether the cries coming from southern California were of joy or despair. San Diego Gas & Electric is in the process of building a massive transmission line from the Imperial Valley to its load center in San Diego. Increasingly, it looks like SDG&E will be able to fend off the numerous legal challenges to the project and bring scores of renewable electrons home.
The Sunrise Powerlink project is, by any measure, impressive. According to SDG&E, the line will run nearly 120 miles. It will cost almost $2 billion to build. It will create hundreds of construction jobs and "thousands" of jobs in renewable energy. It should save consumers $100 million annually. It will give SDG&E access to numerous renewables projects. And it will have a capacity of 1,000 MW, enough to power "650,000 homes."
All this sounds like a good thing. One would think so. It is well established that one of the biggest impediments to renewables is the need for more transmission lines -- lots of them in many places. On that score, the Sunrise Powerlink project should be most welcome news. SDG&E repeatedly has pointed out that this project can only help the state achieve its renewable portfolio mandate of 33% renewable electricity by 2020.
Still, the fact that the Sunrise project has been plagued by litigation highlights the contentious natureof completing any large energy developmenttoday. NIMBYism reigns not only when developments harm the environment but also when they help. Companies building environmentally beneficial projects know well by now that environmentalism is not a proper noun, a capitalized word representing a unified front. It's very much lower-cased; disaggregated, splintered, fractured, multifarious, subject to hijacking.
This, then, underscores three important points that are becoming more and more obvious as we, it increasingly seems, begin a transition to a more sustainable energy infrastructure. First, the process will be slow. Sunrise is all about renewables but still facesopposition. What will be the fate of more mixed projects? Second, if we are to move to renewables, legislation facilitating transmission build-outs will be extremely helpful, if not necessary. Utilities clearly prefer big, centrally planned projects. Without transmission, they can't go forward. Third, a united front will be necessary. Climate change certainly has been a galvanizing force for environmentalists over the last decade, and more. If they want meaningful progress, environmentalists cannot say no to everything. Some things have to be yes, and the yes needs to be resounding. That especially goes for projects that have both environmental and economic benefits.
Then there will be some good news indeed.
Wednesday, June 22, 2011
I know that a number of law students follow this blog. For them (or you, as the case may be), I thought I would post this announcement regarding Pace's Environmental Law Moot Court Competition.
The annoucement regarding the cometition is as follows:
National Environmental Law Moot Court Competition
February 23-25, 2012
Registration Deadline – September 27, 2011
Registration is open for the 2012 National Environmental Law Moot Court Competition (NELMCC), to be held at Pace Law School on February 23-25. Now in its 24th year, it is the preeminent environmental law moot in the U.S., attracting participants from over 75 law schools annually. The competition provides an invaluable educational experience by simulating the process of preparing a legal case and presenting it to a Federal Court of Appeals. Registrations are limited, so sign up early.
June 22, 2011 | Permalink
Supreme Court's ruling this week in American Electric Power v. Connecticut raises a myriad of questions about the best way forward for those interested in reigning in the United States' greenhouse gas emissions.
A number of strategies worth thinking about have been floated in the blogosphere over the past couple days. The initial reaction of many is that AEP leaves untouched a number of alternative claims that still could be brought, particularly state common law public nuisance claims. Others focused on how the implications of this case might play out at EPA or in Congress. While there is a lot out this week on this case worth reading (and certainly still more to come), here are some the most interesting first impressions I have ran across so far: Doug Kysar's commentary for nature.com along with Jason Czarnezki response to Doug on Jason's blog; Hari Osfsky's post on this blog and cross posted elsewhere; and Dan Farber's post on Legal Planet with a very interesting response from J.B. Ruhl in the comments section of Dan's post.
With all that has already been said, let me comment on an aspect of the problem that I have not seen discussed much this week: the increased importance of winning over the general public. While there's still are some avenues litigants can pursue court to address climate change, AEP reduced the number of options and, in my opinion, the probability that courts will end up addressing climate change in a meaningful way in the foreseeable future. Rather, it seems likely that if we are to make progress, the forum will likely be Congress or EPA or both. Of course, public opinion will in large part determine the fate of those efforts.
Very often when I come across discussions about public opinion on climate change, the American public is divided into two: the believers and the skeptics. It turns out that this way of framing the challenge is not only an oversimplification but also an inaccurate caricature of reality. A couple years ago co-authors from the Yale School of Forestry and George Mason University released a report titled Global Warming's Six Americas 2009: An Audience Segmentation Analysis. This report included a number of interesting insights. Perhaps most surprising to me was a small number of people who the authors identified as either doubtful (11%) or dismissive (7%) with regards to the threats presented by climate change. The report also highlighted a large number of people were on the fence on this issue--labeled in he report as those who were either cautious (19%) or disengaged (12%) with the issue. I also found it reassuring that the authors identified more than 50% of respondents were those who believed climate change is a serious issue--labeled in the report as those who are alarmed (18%) or concerned (33%). While the last minute of the following video morphs into an infomercial the Yale School of Forestry, the first few minutes provide a nice summary of the reports major findings. I I believe that if we are going to get the law right on this issue, it is going to take much more thinking along these lines.
-- Brigham Daniels
Tuesday, June 21, 2011
When it comes to films that relate to comparative environmental law, the pickings are slim. But there is one film that stands out for me: They Killed Sister Dorothy.
Sister Dorothy Stang, an American-born nun who became a Brazilian citizen, would have turned 80 years old on July 7, 2011. But she was killed in February 2005 in the Brazilian Amazon, where she worked on behalf of poor peasant farmers. She helped lead an effort to establish a “Sustainable Development Project” (PDS, Projeto de Desenvolvimento Sustentável), in which peasant farmers are given a 250-acre plot of land on the condition that they farm only 20% of it, or 50 acres, and leave the other 200 acres uncut. Major conflict arose when large ranchers claimed that the land on which Sister Dorothy and the farmers wanted to establish the PDS was theirs. Ultimately, Sister Dorothy was murdered, shot six times at point-blank range.
The film is excellent for a comparative environmental law class not just because it illustrates the conflict involved in protecting Brazilian rainforests, but also because it has extensive footage of the trials of two ranchers implicated in the murder. I don’t know of any other environmentally-related film which focuses so much on another country’s legal system and legal actors. The filmmakers interview the ranchers’ lawyers as well as Brazilian public prosecutors and capture their strategizing on tape. The film also allows you to look inside the courtroom to form your own opinion about whether the criminal legal proceedings were fair.
Of course, as you watch the film, you should keep in mind how many murders occur because of land disputes in the Amazon and how few of the murderers are actually brought to trial. The film tells us that out of 800 murders that had occurred over land disputes in the Amazon, there had been only six trials, and only one person had been sent to jail. As someone in the film says, “those with money in Brazil don’t go to jail.”
They Killed Sister Dorothy (2008, 93 mins): On the murder of Sister Dorothy Stang and deforestation in the Amazon (Netflix)
Flow: For Love of Water (2008): about growing water scarcity worldwide (Netflix)
Crapshoot: The Gamble with our Wastes (2003, 52 mins): About sewage and waste water in the US and other countries
- Lesley McAllister
Monday, June 20, 2011
Implications of Today’s U.S. Supreme Court Decision in AEP v. Connecticut for Climate Change Regulation
Thank you so much for the warm welcome. I really look forward to being part of the dialogue and am honored to be joining this interesting group. As a first post, I wanted to share some reflections on today's Supreme Court decision in AEP v. Connecticut.
In an 8-0 decision authored by Justice Ginsburg (with Justice Sotomayor recusing herself), the U.S. Supreme Court held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” The Court made clear that this displacement did not hinge on EPA deciding to regulate greenhouse gas emissions:
The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing §7411 rulemaking, federal courts would have no warrant to employ the federal common law of nuisance to upset the agency determination
If the plaintiffs in this case are dissatisfied with the outcome of the EPA’s forthcoming rulemaking, their resource under federal law is to seek Court of Appeals review, and ultimately, to petition for certiorari in the Court.
While shutting down federal nuisance law actions (except, as Dan Farber has blogged, in the circumstance in which Congress votes to repeal EPA jurisdiction), the Court reinforced that climate change litigation can continue to play an important regulatory role. First, the opinion, before reaching the merits, states that 4 votes (without Justice Sotomayor weighing in) remain in support of Massachusetts v. EPA’s approach to standing and that “no other threshold obstacle bars review,” which indicates that they do not view the political question doctrine as a barrier. Second, the opinion highlights the appropriateness of regulatory actions under the Clean Air Act. Third, the opinion does not reach the question of whether a federal nuisance action would be allowed if Congress decided that EPA could no longer regulate greenhouse gas emissions or whether state law nuisance actions are preempted. The opinion thus limits federal common law as a “parallel track” but maintains future possibilities for courts to be involved in assessing federal climate change regulation and state law nuisance actions. It also leaves untouched the many actions, generally brought in state courts, challenging power plants (especially coal-fired ones) based on their greenhouse gas emissions.
This has been cross-posted on Intlawgrrls, http://intlawgrrls.blogspot.com/2011/06/implications-of-todays-us-supreme-court.html, and SaltLaw Blog, http://www.saltlaw.org/blog/2011/06/20/implications-of-today%E2%80%99s-u-s-supreme-court-decision-in-aep-v-connecticut-for-climate-change-regulation/.
- Hari Osofsky
We are happy to announce that Professor Hari Osofsky has joined us as a co-editor of the Environmental Law Professors Blog! For those of you who know Hari, you'll understand why we are so pleased to have her company. If you don't know her yet, here's a brief introduction:
In 2010, she joined the faculty of the University of Minnesota Law School. At that time, she also was made an adjunct professor of geography and the associate director of law, geography, and environment with the Consortium on Law and Values in Health, Environment & the Life Sciences. Previous to this, she has held previous academic appointments at Washington and Lee University, the University of Oregon, and Whittier Law School. Her scholarship brings an interdisciplinary law and geography perspective to environmental law and particularly lately to questions relating to climate change governance. She teaches courses regularly in environmental, energy, and property law.
We expect Hari will post her first post with us sometime later today, so stay tuned.
The U.S. Supreme Court has issued its opinion in AEP v. Connecticut, holding, by an equally divided Court, that the Second Circuit properly exercised jurisdiction over nuisance claims arising from carbon dioxide emissions. The Court's opinion also holds that the Clean Air Act and the EPA actions enabled by the Act displace the common law nuisance claims in the case. More analysis to come soon.
Saturday, June 18, 2011
* EPA announced that it would delay the release of proposed new source performance standards (NSPS) for greenhouse gas emissions from power plants and other major pollution sources (NY Times).
* Five wind companies "filed a claim with the Federal Energy Regulatory Commission" this week, arguing that the Bonneville Power Administration--which owns the transmission lines that the companies use to sell their power--has violated the Federal Power Act in curtailing wind power (Portland Business Journal).
* Solar installations in the United States were up 66% in the first quarter of this year, reaching 252 MW of installed capacity in those three months (PVTECH).
* Swiss lawmakers voted this week to join Germany and phase out the nation's use of nuclear power by 2034 (AP/Yahoo! News).
* Portland city officials decided to drain an 8 million gallon reservoir after security cameras captured a man urinating into it. The move will cost the city over $40,000. Hopefully NASA will not adopt this policy, otherwise there will be a lot of thirsty astronauts.
* The FDA changed sunscreen labeling rules, prohibiting manufacturers from labeling their product as "sun block," "waterproof," or anything more than 50 SPF. The agency also has determined from animal testing that nanoparticles in sunscreens "do not penetrate the skin," according to the LA Times.
Thursday, June 16, 2011
Professor Ben Trachtenberg's article entitled "Health Inflation, Wealth Inflation, and the Discounting of Human Life" just went to print in the Oregon Law Review, and it's well worth a read. In this thought-provoking article, Professor Trachtenberg provides new arguments against discounting human lives in agencies' regulatory cost-benefit analyses. He argues that economically (not even ethically) speaking, those who calculate regulatory benefits ignore society's increasingly high willingness to pay for healthcare and the rising standard of living in developed countries. He provides two case studies to support these points, describing greenhouse gas controls and--for any techies out there--the NASA Asteroid Deflector. In a practical application of Professor Trachtenberg's points, might individuals be able to influence agencies' calculation of benefits by arguing in the notice and comment process that the benefits are too low? Under a cynical public choice model, perhaps not. But if agencies do take comments seriously, criticisms like those raised in Health Inflation might just persuade them to change their calculations--at least a bit.
Each summer, the Land Use and Environmental Law Review reprints articles chosen as the top in the field for the prior year. The articles are voted on by environmental law professors and practitioners. The volume is co-edited by Dan Tarlock and David Callies.
Word has it that this year's articles have been selected. It's a list full of fine scholarship from leading and emerging professors in the area:
- Camacho, Alejandro E. Assisted migration: redefining nature and natural resource law under climate change. 27 Yale J. on Reg. 171-255 (2010).
- Craig, Robin Kundis. “Stationarity is dead”—long live transformation: five principles for climate change adaption law. 34 Harv. Envtl. L. Rev. 9-73 (2010).
- Freyfogle, Eric T. Property and liberty. 34 Harv. Envtl. L. Rev. 75-118 (2010).
- Klass, Alexandra B. and Elizabeth J. Wilson. Climate change, carbon sequestration, and property rights. 2010 U. Ill. L. Rev. 363-428.
- Owen, Dave. Probabilities, planning failures, and environmental law. 84 Tul. L. Rev. 265-335 (2009).
- Ruhl, J.B. and James Salzman. Climate change, dead zones, and massive problems in the administrative state: a guide for whittling away. 98 Cal. L. Rev. 59-120 (2010).
- Salkin, Patricia E. Sustainability and land use planning: greening state and local land use plans and regulations to address climate change challenges and preserve resources for future generations. 34 Wm. & Mary Envtl. L. & Pol’y Rev. 121-170 (2009).
- Sax, Joseph L. 5th Annual Norman Williams Lecture in Land Use Planning and the Law, February 5, 2009. The property rights sweepstakes: has anyone held the winning ticket? 34 Vt. L. Rev. 157-172 (2009).
- Serkin, Christopher. Existing uses and the limits of land use regulations. 84 N.Y.U.L. Rev. 1222-1291 (2009).
- Wagner, Wendy, Elizabeth Fisher and Pasky Pascual. Misunderstanding models in environmental and public health regulation. 18 N.Y.U. Envtl. L.J. 293-356 (2010).
Congrats to everyone whose work was selected!