Saturday, September 10, 2011
I recently started a project to identify state environmental enforcement at oil and gas wells, including hydraulically fractured wells. In trying to locate this information, I was surprised to discover states' divergent methods of collecting and sorting information. Pennsylvania's Department of Environmental Protection, for example, lists on its website all violations and enforcement activity (scroll down) in the oil and gas area and describes this activity in enough detail to show the activity that caused the violation as well as the laws that were violated and/or enforced in each case. It also describes which enforcements occurred in the Marcellus Shale--the formation in the state in which hydraulic fracturing is common. A New York Department of Environmental Conservation staff member, on the other hand, indicated that New York does not maintain a separate database of enforcements and violations. Many other states appear to keep separate enforcement records but only in paper form. (North Dakota and Montana, for example, are just now switching to an online system, and Texas appears to have some oil and gas enforcement data available online, but it has no easily accessible online data for the many cases with violations but no enforcement.) Colorado (see "Orders") similarly posts formal orders and associated documents online, while requiring more extensive searches for the many violations that do not lead to formal orders. Ultimately, compiling a list of environmental law violations at oil and gas wells in most states is quite difficult. In many cases, one would have to search thousands of individual well files and look for violations in each in order to make this list. Perhaps members of the public should have to invest in this rather unwieldly effort if they are genuinely interested in knowing about enforcement. But agencies, who are familiar with this information and produced it in the first place, seem better situated to take on the task.
In the course of my search for enforcement data, I was even more surprised by the variation in state public records laws and state responses to public records requests (both formal and informal). Pennsylvania, for example, has a number of sweeping exemptions that enable broad denials of requests. The state's Right to Know Law exempts all "[i]nvestigative materials, notes, correspondence and reports" of agencies from public disclosure, for example, and contains twenty-nine other exemptions. Agency employees in other states seemed to strongly resist my efforts to get enforcement data (one response: "Crazies call all of the time looking for these records"; another: "We're concerned about what people would do with the preliminary data"), while staff in states like Michigan promptly sent enforcement files and answered questions about staff numbers and total numbers of enforcement actions in various years.
If we really want to know whether environmental laws are working--whether they are controlling the potential effects of drilling and fracturing for oil and gas, for example--we need to know whether states are enforcing them consistently and correctly. We also need to know how many staff members are available to do this enforcement work. The current online and paper data do not consistently offer this sort of information in an accessible format. It's a shame that even when some information is available, states do not, in many cases, make it easily accessible. Hopefully as online agency enforcement logs become more common, as states notice other states' approaches to collecting and publishing information, and as the public demands more information, this situation will improve. With ongoing state budget struggles, however, even efforts as simple as updating an agency website may end up on back burners.
Friday, September 9, 2011
A few days ago, Lesley posted a question about article reprints. That question echoed a recent discussion on the environmental law professors’ listserve, which started with one professor querying why law professors send each other reprints at all. Similar debates have also played out on other blogs.
In some of these debates, the participants seem to assume or imply that reprints are sent primarily to other law professors. If that’s so, I think we may be missing an opportunity. And it begs larger questions about who the appropriate audiences are for our writing, and how we can best reach them.
Obviously writing for other environmental law professors has a lot of value, and that value reaches beyond purely academic realms. I rely heavily on my colleagues work (and, often, on student work) as I prepare for teaching, particularly when I’m trying to develop a basic understanding of the controversies in an area of environmental law that I don’t know well. Through my teaching those ideas influence my students, few of whom will ever become academics. Most of us also maintain networks of contacts in practice, and those people often look to us as conduits for innovative ideas.
The audiences who gain the most from reading legal scholarship may not be legal academics, however. They may not even be lawyers. Judges are one potential audience, of course, though I don’t agree with those who imply that the measure of legal scholarship should be the frequency with which judges who read and cite it. Legislative aides, administrative agency staff, local government officials, and practicing lawyers all also play major roles in developing and implementing environmental law, and all may be interested in the broader perspective and (somewhat) impartial analysis that good scholarship can provide. Yet they generally lack the time to go searching for interesting articles to read. Similarly, environmental academics in non-legal fields deal with environmental law constantly, yet often have only a facile understanding of how it actually works. For all of these people, environmental law articles can be really useful and helpful.
But here lies the problem, and the potential role of the reprint. We have wonderful systems for disseminating articles to other law professors. SmartCILP, SSRN E-Journals, conferences, listserves, and blogs all provide important supplements to the already-powerful searching and linking capacities of Lexis and Westlaw. We have OK systems for disseminating our work to non-academic lawyers. They generally know how to search for writing on a particular topic, but they generally don’t have access to the notification services we academics rely on to find relevant new work. Hence, perhaps, the reluctance of some judges and lawyers to read academic work; they have access to everything but aren’t sure where to start. For non-lawyers, the systems are pretty bad. Imagine trying to find relevant scholarship without access to Lexis or Westlaw (when I was a practitioner attempting to write, I tried; it was awfully hard). Google Scholar and SSRN are making the situation better, as is the increasingly common practice of posting PDFs on law review websites and faculty profiles, but the process is still archaic and difficult. For someone in that position, having a reprint appear in the mail could be the difference between reading legal scholarship and not reading at all. So if we’re sending our reprints only to each other, we’re favoring the audience that probably needs those reprints the least, and missing the audiences that might get the greatest benefit.
I don’t think bombarding non-legal academics and non-academic lawyers is an ideal solution. The bigger question for academics to ponder may be how we can better notify non-academic lawyers and non-legal academics about relevant legal work. But sending out a few reprints is at least a step toward bringing legal scholarship to people who might appreciate receiving it and could benefit from reading it.
In the meantime, those of you who have sent me reprints, please continue to do so. I like getting them. There’s something irreplaceable, for me at least, about reading something on paper.
There was recently a dialogue on the environmental law professors listserve about the practice of sending around reprints of one’s articles, and I appreciated the thoughtful post by Lesley McAllister earlier this week reflecting on whether to keep sending them. I wanted to weigh in on this issue as part of a broader concern about environmental mass mailings. As we come into the U.S. News & World Report ranking season, I wanted to make a plea to all law professors and programs, but especially environmental ones, to reduce the amount of paper you print and send and to encourage your colleagues to do the same.
I am troubled by how many paper brochures and mailings I get from environmental programs. As much as I have trouble getting through my in-box, I would much prefer that these programs promote sustainability by minimizing the paper that they send and share the exciting things that they and their faculty and students do electronically. Similarly, I am honored when people think to send me their work in a personal way, but I would much prefer to receive it via email. These seem like simple individual steps we can take that can have an aggregate impact. While using our computers also has a footprint, that footprint is likely less than these mass mailings that programs continue to send out as a business as usual practice.
I personally have been shifting to ordering a minimal set of reprints and primarily sharing my work electronically. I also have asked my faculty to default to double-sided printing (and ask their assistants to do the same) when they need to print. I am incredibly excited about all of the new developments in our environmental and energy program at the University of Minnesota Law School, including our launching a new concentration in the area this year, and am encouraging us to share this news electronically without sending paper around. These are all small things, but as we think about all of the exciting possibilities in renewable energy and energy efficiency, it’s critical that we keep conservation in mind.
- Hari Osofsky
Thursday, September 8, 2011
Please see the below announcement from the Brookings Institution:
Brookings Institution Invites Young Scholars to Participate at a Global Governance Audit
The growing significance of global interdependence is well understood, as is the inherent difficulty of managing global problems through the voluntary and ad hoc cooperation of nation-states. The field of global governance would benefit from a global and inclusive audit that addresses its breakthroughs and failures. The Brookings Institution and the Global Policy journal invite senior university students and young scholars from around the world to ponder the following three questions:
• What are notable achievements in global governance and global cooperation, and why? Please be specific.
• Name three major breakthroughs in global governance arrangements that you would like to see achieved in the next 5-10 years, and explain why.
• What are the key obstacles to the development of global governance, global cooperation and solidarity, and explain why?
The essays addressing these three questions should be no longer than 1,200 words and should be submitted by students and scholars currently affiliated with an academic institution or a think tank and between 20-35 years of age. Please send submissions to both email@example.com and Journal.Global.Policy.Audit@lse.ac.uk by October 15, 2011. Accepted essays will be published on Global Policy's website and will be featured in a Brookings working paper.
- Blake Hudson
Wednesday, September 7, 2011
As Cara Horowitz posted about earlier on Legal Planet, some recent polling data emerged today regarding politics and global warming, looking at the views of Democrats, Republicans, Independents and the Tea Party. The report was put together by the Yale Project on Climate Change Communication and the George Mason Center for Climate Change Communication. The data contained lots of interesting information, but the most interesting tidbit to me was that:
"Tea Party members are much more likely to say that they are 'very well informed' about global warming than the other groups. Likewise, they are also much more likely to say they 'do not need any more information' about global warming to make up their mind."
Certainly being a specialist in an area does not always make one correct, but reading reports and keeping up with the science of climate change is part of what many of us do for a living. For me personally that is a task separate and apart from my politics, as there is plenty on both sides of the political spectrum with which I both agree and do not agree. So while I have to rely on the understanding and processes of the scientists engaged in the research, due to my woeful scientific incompetence (I am not, after all, a climate scientist), I can still be somewhat sure from my review of the materials that 95% of scientists truly do maintain a consensus position on the human contribution to climate change, ocean acidification, etc. Yet I have seen the mindset reflected in the poll when discussing the science of climate change, where I can throw paper after paper and report after report at someone and within minutes they are responding that it just cannot be true, that the debate is still open, etc. Speed readers? I don't think so.
It reminds me of the Dunning-Kruger effect, but before I get into that let me make very clear that what I am discussing is a derivation of the actual effect. The actual effect is seen across all segments of society regardless of political affiliation, and involves less capable people overestimating their abilities while those more capable underestimate their own abilities relative to others. But I wonder how this combines with political affiliation to cause people to purposefully put themselves in a position of being "less capable." By that I mean is there a bias toward not believing in climate change that is ideological, but that causes those people to exhibit some Dunning-Kruger-esque view that they are "very well informed" about global warming - more-so than folks who actually trust the science - and that they "do not need any more information"? This is certainly not an argument on my part that members of the Tea Party are less "capable" from an intellectual perspective. I have many, many extremely capable acquaintances who sympathize with the concerns of the Tea Party, but who simply aren't interested in digging deeper than Fox News to find the facts about climate change. Rather, it is that Tea Partiers seem to choose to put themselves into a position where their capability to understand and accept the science is compromised by their political views - they don't even want to track down the data and study it closely because if they do it might demonstrate something incongruous with their political viewpoints. Until one reads the reports and makes an effort to understand the science, that person is "unskilled" in the sense that Dunning-Kruger posits, and is prone to overestimate his or her skill in assessing the "truth" of climate change - just as unskilled as I am at performing surgery or engineering the construction of a building.
John Cook actually posted about Dunning-Kruger over on Skeptical Science last year. The site is widely regarded as a respectable source that addresses the arguments for and against the human contribution to climate change. Cook states:
There are many with a cursory understanding who believe they're discovered fundamental flaws in climate science that have somehow been overlooked or ignored by climate scientists. Some take this a step further and believe they're being deceived . . .
Cook provides the following example:
In the discussion on whether CO2 is a pollutant, a graph was included to show CO2 levels over the last 10,000 years. The graph includes ice core data for CO2 levels before 1950. For values after 1950, direct measurements from Mauna Loa, Hawaii were used.
A comment was posted querying the data in this graph. Here is the comment in full:
"Whoa, hold on a minute here. CO2 readings from ONE LOCATION prove we have an enormous GLOBAL spike in CO2 levels? You've got to be kidding me. This is science? That would be like me taking hydrological readings at the bottom of Lake Superior and then declaring that the entire surface of the earth must be covered with water based on my readings.
By the way, isn't Mauna Loa an active shield volcano? (http://en.wikipedia.org/wiki/Mauna_Loa) Hmmmm, you don't suppose that's where all that extra CO2 came from, do you? C'mon, people, wake up. I find it shameful that this obvious manipulation is allowed to pass as "proof". This is certainly NOT an unbiased scientific conclusion."
The commenter is asking whether it's appropriate to take CO2 readings from one location. Particularly when situated near a volcano which are known to emit CO2. Surely a better metric would be a global average of CO2 levels? These are legitimate questions. However, I deleted this comment as our Comments Policy allows no accusations of deception, whether the attack is directed towards skeptics, scientists or myself. This restriction is necessary to keep discussion constructive and restricted to science. Unfortunately, the comment began with a commendable question and ended with a not-so-commendable personal attack.
If the comment had stayed on methods and not strayed into motive, I would have posted the following response. Mauna Loa was used is because its the longest, continuous series of directly measured atmospheric CO2. The reason why it's acceptable to use Mauna Loa as a proxy for global CO2 levels is because CO2 mixes well throughout the atmosphere. Consequently, the trend in Mauna Loa CO2 (1.64 ppm per year) is statistically indistinguishable from the trend in global CO2 levels (1.66 ppm per year). If I used global CO2 in Figure 1 above, the result "hockey stick" shape would be identical.
Unfortunately, this type of presumptive misunderstanding is seen all too often. Someone doesn't understand a certain aspect of climate science which is understandable considering the complexities of our climate. Rather than investigate further, they assume a flaw in the climate science or worse, an act of deception. This response is often more a reflection of the gap in their own understanding than any flaw in the climate science.
Perhaps most interesting when considering the Dunning-Kruger effect is that cross-cultural comparisons have demonstrated that Americans may be more prone to the effect than other cultures. If so, perhaps it is not surprising that American acknowledgement of the threat of climate change trails almost the entire rest of the world: "People nearly everywhere, including majorities in developed Asia and Latin America, are more likely to attribute global warming to human activities rather than natural causes. The U.S. is the exception, with nearly half (47%) -- and the largest percentage in the world -- attributing global warming to natural causes. Americans are also among the least likely to link global warming to human causes, setting them apart from the rest of the developed world."
Ultimately, I wonder if the Tea Party suffers from a politics-induced version of the Dunning-Kruger effect, and simply does not want to dig deeper. Actually, maybe they do want to dig deeper, but only so they can continue to bury their head in the sand.
- Blake Hudson
Tuesday, September 6, 2011
When I started teaching, I remember being very skeptical about the practice of sending out reprints (think embedded carbon). When I raised the question with some of my new colleagues, they strongly encouraged me to distribute reprints both at my law school and nationally. And so I did.
Post-tenure, the decision is a little harder. The wastefulness still bothers me and there are several other means of getting the word out that one has published. For colleagues on your faculty, I think that making a copy of the first page of the published article with a note that you would be glad to provide a full copy upon request is an effective substitute. For other environmental law professors, notice via the envlawprofs listserve or by personalized email seems a good option.
On the other hand, I have found the reprints that I have received over the years to be a resource. I have them sorted by topic (e.g., with relation to climate: environmental justice/ liability for harms; cap and trade/ emissions trading; endangered species/ ecosystems; energy regulation/ renewable energy; international law/ tropical forests), and when I want to look at an article on a given topic, I often look there first. Reprints are a lot more enjoyable to read than Westlaw/Lexis printouts and, unlike Hein, they are already printed out. Also, I have brought them to my climate change class to give students a sense of the legal literature on climate change and help them generate paper ideas.
And now for the reason this is on my mind: I have a set of reprints that I ordered this time last year that I am going to send out in the next couple weeks. But it might be the last time I do. I'd be happy to hear your thoughts on the matter!
- Lesley McAllister
Sunday, September 4, 2011
* The Obama administration decided to abandon proposed ozone regulations, which the oil industry and other business interests had criticized as unnecessarily costly.
* Although most of the 9 million people who lost power due to Hurricane / Tropical Storm Irene have had their electricity restored, utilities have gone on the defensive, launching PR campaigns in the face of likely investigations from regulators.
* Tropical Storm Lee has forced evacuation of over a third of oil and gas production platforms and drilling rigs in the Gulf of Mexico.
* Japan has adopted a feed-in tariff that will take effect next year and seeks to incent 30,000 MW of new renewables installations in the next decade.
* A beetle called the goldspotted oak borer is threatening trees in southern California.
* President Obama is pushing for a transportation spending bill, to fund federal highway projects and keep fuel taxes in place.