Thursday, August 30, 2012
NEW DELHI — Here’s what the monsoon season looks like in India. This summer, the northern states have been lashed with rain. In the northeastern state of Assam, July rains swamped thousands of homes, killing 65 residents. Floods and mudslides in northeast India sent nearly 6 million people heading for the hills in search of temporary housing (a tarp, a corrugated roof) and government aid (when they can get it). In New Delhi, the monsoon hasn’t caused anything nearly as traumatic. But one cloudburst can easily flood roads and storm canals, sending bubbling streams of grease and sewage across the urban slums.
Haven’t heard about all this? Normally, I wouldn't have either. But this semester I’m living in New Delhi, near one of those storm canals, working as a Fulbright-Nehru Research Scholar affiliated with India’s Centre for Policy Research. My plan is to examine the ways in which Indians are adapting to climate change, at the national, regional, and local levels.
Perhaps no country in the world is as vulnerable on so many fronts to climate change as India. With 7,000 kilometers of coastline, the vast Himalayan glaciers, and nearly 70 million hectares of forests, India is especially vulnerable to a climate trending toward warmer temperatures, erratic precipitation, higher seas, and swifter storms. Then there are India’s enormous cities (home to nearly a third of the population), where all of these trends conspire to threaten public health and safety on a grand scale—portending heat waves, drought, thicker smog layers, coastal storms, and blown-out sewer systems.
Those floods I mentioned earlier are typical of India’s monsoon season—data for this season, in fact, show a monsoon with slightly less total precipitation than normal. But the floods demonstrate the kinds of extreme events that if multiplied in the future will bring even more risk to a fragile country. According to a recent report issued by India’s Ministry of Environment and Forestry, current projections indicate “a 3% to 7% overall increase in all-India summer monsoon rainfall in the 2030’s with respect to the 1970’s.” In contrast, during the winter and pre-summer “dry” season, most regions “are likely to have lower rainfalls.” Such a “barbell effect”—a more extreme wet season joined to a more extreme dry season—could mean trouble for India’s growing cities and struggling rural farmers.
India’s public and private sectors have begun developing adaptation strategies, although most are at the beginning stages. With prodding from the national government, some states are now developing vulnerability assessments and setting priorities. International non-profits like the Rockefeller Foundation are joining with local governments and citizens’ organizations to find better ways to control storm water, irrigate crops, and improve health against the backdrop of a changing climate. Manufacturers, insurance companies, and banks are also examining ways to adapt. This has led to an array of discussions about how public or private initiatives should be used to build resilience in the Indian communities, to make them “climate-ready.” Some of these ideas are particular to India, but many of them will be tested here and exported to the rest of the world, including the United States.
Should rural farmers in India be encouraged to protect against monsoon vagaries by investing in a legalized “weather derivatives” market, like some American hedge funds do? Is there a way that India’s expansive Public Trust Doctrine (inspired by American case law) could be used to protect threatened assets like coastal wetlands and groundwater supplies? Am I nuts to think that a megacity like New Delhi—home to 16 million people, 11 million vehicles, nearly half a million stray dogs, and scores of loitering cows—can coalesce into an environmentally sensible and climate resilient city of the future? Over the coming months, I’ll take on some of these subjects in this blog. I’ll talk with local experts, visit project sites, and venture an assessment or two. As for now, the afternoon thunder is rattling my office window, and I need to find my rubber sandals.
- Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans.
August 30, 2012 in Asia, Climate Change, Current Affairs, Environmental Assessment, Governance/Management, International, Land Use, Law, Sustainability, Water Resources | Permalink | Comments (0) | TrackBack (0)
In its upcoming term, the Supreme Court will consider two Clean Water Act/stormwater cases, which I think is two more Clean Water Act/stormwater cases than the Court has heard in all of its previous terms, combined. A few weeks ago, I posted about NRDC v. County of Los Angeles, which arises out of urban runoff and stormwater infrastructure in Los Angeles County. The post, in a nutshell, expressed my befuddlement about why the Court took the case. The other case—Decker v. Northwest Environmental Defense Center—is an entirely different story. It contains thorny jurisdictional and statutory interpretation questions, and the stakes are high.
The case addressed stormwater runoff from two privately-operated logging roads in Oregon’s Tillamook State Forest. The logging companies had channelized the runoff though systems of culverts and ditches, and the runoff was conveying sediment—which meets the CWA’s definition of “pollutant”—into surface rivers and streams. The companies didn’t have National Pollutant Discharge Elimination System permits for these discharges. According to the environmental plaintiffs, those unpermitted discharges violated the law. The defendants moved to dismiss the case, and while the district court granted the motion, the Ninth Circuit reversed. Its opinion cast doubt upon—and, perhaps, invalidated, though that point is in dispute—EPA’s decades-old regulation exempting some silvicultural activities from point source permitting.
So why is this a case to watch? A few reasons:
1. The Stakes. The United States contains a lot of logging roads. Those roads may be relatively invisible to most urban dwellers, but their aggregate length is fairly mind-boggling; in Maine alone, for example, one of my colleagues estimates there are about 15,000 miles of logging roads. Not all of those roads have stormwater conveyance systems, but many do. You can’t have forests without rain, and, in many places, you can’t protect a road from erosion without channelizing the runoff. The number of discharge points potentially affected by the Court’s decision therefore is huge. And, as one might expect, the environmental and economic implications are substantial. Logging roads can be major sources of sediment, and the water quality benefits of improved sediment controls could be significant. On the other hand, with so many miles of roads, the costs of managing that sediment could add up, as would the administrative burdens associated with drafting and implementing new permitting approaches.
2. The Jurisdictional Issues. The case below involved a challenge to EPA’s longstanding approach to silvicultural stormwater runoff. With a few narrow exceptions, EPA has never sought to regulate stormwater runoff from forestry activities, and in 1976 it issued regulations that exempt some—perhaps most—forestry activities from the NPDES permitting program. The plaintiffs argued, and the Ninth Circuit agreed, that this exemption was inconsistent with the text of the Clean Water Act. But there’s a jurisdictional catch. Section 509(b) of the Clean Water Act compels petitioners to challenge EPA’s actions in the United States Courts of Appeals, and to do so within 120 days of the action, unless the cause of action could not be brought within that time period. The plaintiffs here brought their case in a federal district court, and they brought it decades after EPA issued its silvicultural rule.
The Ninth Circuit found this approach unproblematic. It concluded that because the plaintiffs could not have brought their action within 120 days (EPA’s broad interpretation of the silvicultural rule was never really clarified, according to the court, until the litigation commenced and the United States filed an amicus brief), section 509(b) didn’t apply. That was a mistake, according to the defendants and intervenors; they argue that even if the Ninth Circuit was correct that the 120-day period couldn’t have been met, the case still had to be brought in a court of appeals. But the environmental groups counter that they weren’t really challenging EPA’s silvicultural rule itself, but instead were challenging private actions, which the private entities then attempted to defend by relying on an impermissible interpretation of EPA’s stormwater rule. In those circumstances, they argue, section 509(b) doesn't apply at all. If it all sounds rather complicated, well, it is. But that jurisdictional argument will likely receive some significant attention from the court.
3. The Merits. On the merits, the case raises two major issues. First, do the ditches in question meet the Clean Water Act’s definition of a point source? That issue seems, to me at least, like an easy one. No matter what EPA's silvicultural rule purports to say, it seems impossible to credibly interpret the Clean Water Act’s definition of point source—a definition that includes “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel…”—to exclude discrete, discernible systems of roadside ditches, pipes and channels.
But in 1987, Congress amended the Clean Water Act in ways that complicated the matter and created the second key merits issue. The 1987 amendments struck a compromise between EPA’s longstanding resistance to regulating stormwater runoff and Congress’s (accurate) sense that stormwater runoff created significant water quality problems. In CWA section 402(p) Congress exempted stormwater runoff—even stormwater runoff that is discharged from a point source—from regulatory coverage. But it then designated several types of point source stormwater runoff that still would be covered by the NPDES program, effectively creating narrower exemptions from the broad exemption. One of those sub-exemptions was for “discharges associated with industrial activity,” which begs the question: are stormwater discharges from forestry “discharges associated with industrial activity?”
EPA’s answer to this question (given at 40 C.F.R. 122.26(b)) was muddled. It clearly considered forestry to be an industrial activity, but seemed to say that stormwater discharges associated with forestry were not “discharges associated with industrial activity,” unless those discharges derived from one of the activities the 1976 silvicultural rule said would be covered. The Ninth Circuit rejected EPA’s answer (or at least rejected an interpretation of EPA’s answer under which the 1987 amendments exempted silvicultural stormwater from regulatory coverage), and the defendants/petitioners now argue that the Ninth Circuit’s approach was in tension with Chevron v. NRDC. Not so, say the plaintiffs; in their view, the Ninth Circuit (which did cite Chevron as its standard of review) appropriately applied a clear statute. Those questions (to which I have not done full justice here; they’re much too complicated to fully explain in a few paragraphs) also will likely occupy much of the Court’s attentions.
4. The Federalism Questions: Lurking behind these statutory construction issues are some important implications for our federalist system. As co-blogger Blake Hudson has often pointed out, management of private and state forests remains an area of state primacy, with relatively little federal involvement. On the other hand, water quality protection is well established as a shared federal and state prerogative. This case puts those traditional approaches in tension. That tension shouldn’t be overstated; in some areas, new CWA-based permitting requirements would supplement, and might not significantly add to, existing state regulatory approaches. Much of the implementation of those new requirements would be done by the states, most of which have delegated authority to implement the NPDES program. Nevertheless, in areas where state and local regulation of forest practices is minimal—and there are many such areas—this case could ultimately lead to significant changes in the ways forest roads are built and maintained, and those changes would occur pursuant to federal law.
So stay tuned. The Court’s decision probably won’t be easy reading; complex statutory interpretation cases rarely are. But it should be interesting, and it will be important.
(image from wikimedia commons; M.O. Stevens, photographer)
Tuesday, August 28, 2012
Teaching Environmental Law next semester? You have a veritable treasure trove of casebooks to choose from. Here are ELEVEN casebooks that have all been updated in the last three years!
Robin K. Craig, Environmental Law in Context: Cases and Materials, 3d (West, 2012).
Holly D. Doremus, Albert C. Lin, and Ronald H. Rosenberg, Environmental Policy Law, 6th (West, 2012).
David M. Driesen, Robert W. Adler, and Kirsten H. Engel, Environmental Law: A Conceptual and Pragmatic Approach, 2d (Aspen, 2011).
Daniel A. Farber, Jody Freeman, and Ann E. Carlson, Cases and Materials on Environmental Law, 8th (West, 2010).
Richard J. Finkmoore, Environmental Law and the Values of Nature (Carolina Academic Press, 2010).
Robert L. Glicksman, David L. Markell, William W. Buzbee, Daniel R. Mandelker, and Daniel Bodansky, Environmental Protection: Law and Policy, 6th (West, 2011).
Robert V. Percival, Christopher H. Schroeder, Alan S. Miller, and James P. Leape, Environmental Regulation: Law, Science, and Policy, 6th (Aspen, 2009).
Zygmunt J.B. Plater, Robert H. Abrams, Robert L. Graham, Lisa Heinzerling, David L. Wirth, Noah D. Hall, Environmental Law and Policy: Nature, Law, and Society, 4th (Aspen, 2010).
Richard L. Revesz, Environmental Law and Policy, 2d (West, 2012).
J.B. Ruhl, John Copeland Nagle, James Salzman, and Alexandra B. Klass, The Practice and Policy of Environmental Law, 2d (Foundation Press, 2010).
- Lesley McAllister
Monday, August 27, 2012
A couple weeks ago, Judge Gladys Kessler (DDC) issued an order directing the National Marine Fisheries Service (NMFS) and the New England Fisheries Management Council to review their decision not to include river herring as a non-target stock within the newly minted Atlantic herring fishery management plan. The order provides the remedy for Judge Kessler’s March opinion finding that the agencies’ decision not to include river herring in the plan violated the Magnuson-Stevens Act (MSA). Together, the decisions mark the convergence of two ongoing dramas: the evolution of the relationship between NMFS and the regional fisheries management councils, and the campaign to restore river herring and shad to the rivers and coastal waters of the Atlantic seaboard.
First, the political and legal dynamic between NMFS and the regional fishery councils. In theory, there is no question that NMFS has the final word on fishery management plans, but in practice the regional councils—which include federal, state, and industry representatives, as well as one at-large representative—exert tremendous political pressure on and are typically given a great deal of deference by NMFS, as well as its parent agency, NOAA. Courts have also been known to basically defer to the councils. This second-degree deference is similar to the permission courts give to agencies to defer to industry in areas at the “frontiers” of science and technology. Regional fishery councils are designed to be more neutral than a project proponent (like Shell drilling in the Arctic) but the structure and constitution of the Councils are controversial: members of the regulated industry sit on the councils and help write the rules that regulate them. Josh Eagle, Sarah Newkirk, and Buzz Thompson unpacked the problems with the system and proposed some important changes, and Mother Jones even ran with the situation as a kind of expose. But it remains as it has been.
In Judge Kessler’s opinions one can hear a reprimand. (And not for the first time – she also took NMFS to task for approving a controversial NEFMC groundfish plan in 2001.) NMFS had argued that the agency properly deferred to the Council’s decision to exclude river herring and to address them at a future date. Judge Kessler seems to have taken the argument as tantamount to a disavowal of responsibility: “According to Defendants, NMFS deferred to the Council…and needed to do no more. The crux of Defendants' argument is that [except in certain circumstances] NMFS should simply defer to the Council's determination of what stocks are in the fishery.” Judge Kessler rejected the argument, and reminded the agency that though the Council does put the fishery management plan together, “once the council completes its work, the MSA requires NMFS to review its plan to determine whether it comports” with the law. Thus, regardless of the fishery management councils’ clout, NMFS still must make its own assessment.
Second, the once-and-now-again prominent herring. On the ocean-side, the allowable catch-limits for Atlantic herring were at stake in the litigation (NMFS and the Council won that issue.) The catch-limits, in turn, tie into the larger cultural issue of who gets to fish for herring, and what equipment they get to use. Just last month the N.Y. Times reported that the industrial-scale damage caused by midwater trawlers fishing for herring in New England has forged an unusual coalition among environmentalists and traditional pure seine net and harpoon fishermen.
On the inland side, the case ties into a larger story surrounding alewife and blueback herring, collectively known as river herring. River herring were an important food for Native Americans and earlier settlers, and still are an important part of the marine and freshwater food webs. Their numbers have dropped precipitously in the last thirty years, as the cumulative impacts of old milldams, nutrient loading into aquatic habitat, trawler fishing, and climate change have taken their toll. Last August, the Natural Resources Defense Council submitted a petition to list river herring as threatened under the Endangered Species Act. NOAA found that the petition warranted further review, and is in the process of conducting a formal study.
The fate of river herring, in turn, is intertwined with the fate of the old milldams of New England. Last year, Dave Owen blogged about dam removal on the Penobscot River in Maine. Other dam removal projects are percolating around the region, including on the Winnicut River in New Hampshire, the Taunton River and other historic runs in Massachusetts, and the Pawtuxet River right here in Little Rhody. Of course, there is some resistance to the herring. Maine, for instance, had passed a law in Maine requiring state officials to operate a dam so as to block river herring from a portion of the St. Croix River. The U.S. Environmental Protection Agency recently issued a finding that the law violated the Clean Water Act by effectively, and improperly, revising the state’s water quality standards.
These conflicts over management of Atlantic and river herring reveal just some of the enormous weight that has been loaded onto the legal regimes established under the MSA, which will be up for reauthorization soon. Senator Chuck Schumer of New York has secured hearings for the fall. In this election year it is unlikely anything will happen, but it will, as fish tales often do, make for a good story.
-- Michael Burger
Sunday, August 26, 2012
The Romney campaign released its energy plan, which calls for expanded offshore drilling and a larger state role in fossil fuel extraction from federal lands.
A divided D.C. Circuit panel overturned EPA’s cross-state air pollution rule.
Another D.C. Circuit panel dismissed (on standing grounds) a food industry challenge to EPA’s decision to increase the allowable ethanol content of gasoline.
The Ninth Circuit Court of Appeals upheld the Fish and Wildlife Service’s incidental take regulations for oil and gas exploration in the Chukchi Sea.
The United States District Court for the Eastern District of Tennessee held that the Tennessee Valley Authority was liable for the 2008 coal ash spill in Kingston, Tennessee.
The Cape Wind project cleared another hurdle with an approval (its fourth) from the FAA.
Friday, August 24, 2012
I am following the developments in India regarding the allocation of coal to private companies and electricity boards with great interest. According to newsreports, the Comptroller and Auditor General's (CAG) report on the issue apparently concludes that government allocation of coal between 2004 and 2009 at non-market prices resulted in losses upto USD 33 billion to the Indian government. That is no small amount for a developing country such as India. As an op-ed in the Wall Street Journal claims, it is possible that the report fails to consider the context in arriving at its final figures. Equally, there are claims that the CAG's report may have grossly undervalued the loss of government revenue [see here for a newsreport on the matter]. Some in the government point out that the aim of the allocations was to promote coal mining and boost the power sector.
However, the politics and legal implications of the alleged corrupt practices aside, India's "coalgate" presents an important lesson as countries consider negotiating a new climate treaty that would include India and China. That is, what do such "scams" mean for establishing a carbon price and an emissions trading system? Can the possibility of mishaps in allocating "emissions" rights be precluded in countries where the market system is evolving and corruption apparently runs unabated? Who will actually benefit from such schemes? Simply, are developing countries such as India ready to embrace and implement a complex market mechanism for carbon? Or should we be re-thinking the architecture of the Kyoto Protocol?
Let me clarify, the question is not whether we need international cooperation on climate change. It is indispensable for effectively addressing the problem. The question is whether all countries are equally equipped to implement effective complex market mechanisms.
Thursday, August 23, 2012
In a matter previously discussed on this blog here and here, a Texas trial court judge summarily ruled last evening that TransCanada is a “common carrier,” such that the Canadian pipeline company is authorized to condemn private property in Texas for construction of the Keystone XL project.
In 15-word decision sent from his I-phone, Lamar County Judge Bill Harris concluded that TransCanada need not bear the burden of proving prior to construction of the pipeline that the pipeline will be available to carry petroleum for any producer in service to the public at a published price. Opponents of the pipeline contend that the pipeline only will benefit a select group of private oil companies. “Bold Nebraska” reports the extent of Judge Harris’s ruling:
My rulings as follows:
Transcanada's MSJ is GRANTED
Transcanada's NEMSJ is GRANTED
Crawford's Plea to the Jurisdiction is DENIED
Mr. Freeman would you please forward orders consistent with my ruling for my signature?
Sent from my iPhone
The decision is certain to disappoint an unlikely mix of property rights activists, tea party supporters, and environmentalists, who have mounted a spirited challenge against the pipeline for its infringement on private property interests and the threat of significant ecological harms. The New York Times is reporting that the landowner, farmer Julia Trigg Crawford, has vowed to appeal.
Construction on the pipeline began in another area of Texas earlier this month. The pipeline is anticipated to transport oil from Oklahoma and West Texas—and potentially from Canadian tar sands as well—to Texas Gulf Coast refineries. Extending the project into Canada requires State Department approval in light of the international boundary cross. The State Department at least temporally rejected approval in January after Congress set a narrow deadline for a final decision that the Obama Administration found too constricting.
Presumptive GOP presidential nominee Mitt Romney unveiled his views on energy policy this afternoon at a campaign event in New Mexico’s Permian Basin oil fields, promising a speedy approval of the extension of the Keystone XL into Canada should he prevail in November’s election. A story on EcoWatch raises the possibility that Crawford’s case could pose a bit of a conundrum for the GOP as its convention begins this weekend in Tampa, given that the party’s 2008 platform included a firm stand against the use of eminent domain and called on “state legislatures to moot the [U.S. Supreme Court’s] Kelo decision.”
Stay tuned to the Environmental Law Prof Blog for continuing updates on Keystone XL.
Wednesday, August 22, 2012
On Tuesday, China's State Council announced plans to spend 2.37 trillion yuan ($375.6 billion) on new energy and environmental measures designed to help meet its target of reducing energy intensity to 16 percent below 2010 levels by 2015. These commitments form part of China's Twelth Five-Year Plan, which runs from 2011 to 2015. According to Reuters, "steel producers must reduce their energy use per unit of production by a quarter over the five years, coal-fired power plants by 8 percent and cement manufacturers by 3 percent" under the State Council Plan.
These are impressive new commitments, but they also highlight the big picture problem. Despite major strides at energy intensity reduction, government officials expect China's greenhouse gas emissions to peak in 2030. This continued rise in total emissions even as intensity declines over the next 18 years is a serious concern. And yet major inequities persist, which are clear when China's per capita emissions are compared with those of other developed country major emitters.
Tuesday, August 21, 2012
Two recent, unrelated developments highlight the continuing centrality of coal to our society. In Germany, the government has permitted the construction of a new coal power plant. The reason? Germany's decision to shut down its nuclear power plants post-Fukushuma means other energy sources have to be provided. The implication of this decision is that Europe's emissions are predicted to increase in the next few years. The report can be found here.
In the meantime, the D.C. Circuit has struck down an EPA Transport Rule to reduce emissions from coal power plants with the objective of limiting cross-border pollution from sulfur dioxide and nitrogen oxides [the Cross State Air Pollution Rule]. In EME Homer City Generation, L.P., v. EPA, petitioners successfully argued that EPA had exceeded its authority in regulating emissions from power plants. The D.C. Circuit found that EPA erred in not allowing states the opportunity to plan their emissions reduction, but instead subjecting them to the Federal Implementation Plan (FIPs). It also held that upwind states could not be required to reduce their emission beyond what was their "significant contribution" to the non-attainment of air standards by downwind states.
I have not had a chance to study the decision closely and will not comment on the decision. However, these two developments do highlight, perhaps for entirely different reasons, the importance of coal and the challenges to regulating emissions (even though not CO2 emissions here) from coal-power plants. The question is whether coal emissions can be managed effectively within the framework of climate law. There is much at stake and perhaps, what the we need is a new plan, a new solution. The question, of course, is cliched--who will bell the cat?
Georgia State University College of Law is searching for a tenure-track Assistant/Associate Professor specializing in urban land use and environmental law to begin in fall 2013. The position is part of the University’s Second Century Initiative (“2CI”) that seeks to foster interdisciplinary collaboration around the environmental, planning, economic and urban policy issues related to shaping the future of cities. For more information about this position, please visit our faculty recruitment web page at http://law.gsu.edu/recruitment. To apply for, or to inquire about, this position, please contact Professor Julian Juergensmeyer, Chair, 2CI Recruitment Committee at lawrecruitment2CI@gsu.edu. You can view the full announcement here: 2CI hire announcement - final.
Please see the below announcement for the symposium and the call for papers, which can be downloaded here: CallforPapers.
"The 2013 Symposium topic is water rights with a focus on the Army Corps of Engineers’ role in national and local water regulation. The symposium will consist of 3 three-person panels covering various water law topics: the Corps's process for creating the manuals that govern rivers and dams, water supply planning and development with an emphasis on Georgia and regional water wars. If you have any questions, please email Lisa Scatamacchia at firstname.lastname@example.org."
- Blake Hudson
Sunday, August 19, 2012
The impact of the drought may be peaking, but only 23 percent of the corn crop is rated in good-to-excellent condition.
A California ballot initiative (the “California Right to Know Genetically Engineered Food Act,” Proposition 37), would require genetically engineered foods to be labeled as such in the supermarket. The pro-forces have raised about $2 million while the con-forces have $25 million.
The Canadian pipeline company TransCanada began construction of the southern leg of the Keystone XL pipeline in Texas.
Severe flooding in the Phillipines has claimed nearly 100 lives and displaced more than 800,000 families.
Friday, August 17, 2012
Following up on Dave's post yesterday, also see this New York Times article on the NRC's new leadership. As reported by the Times, the NRC has suspended some licensing decisions until it can prove that the lack of storage for nuclear waste does not threaten public health and safety (order available here). What exactly is being suspended is of interest: any licensing decisions dependent on the Waste Confidence Decision and Temporary Storage Rule. Of further interest is how this issue was brought to a head--through litigation in the D.C. Circuit. It is fascinating to watch as all the branches play a part in moving the conversation about nuclear energy--and spent nuclear fuel--forward.
Thursday, August 16, 2012
Today on the New York Times' Green Blog, Matthew Wald has a short piece on Allison Macfarlane, the newly-appointed chair of the Nuclear Regulatory Commission. The post includes a few quotes from Ms. Macfarlane, each of which highlights the rather challenging positions in which the NRC currently finds itself.
Readers interested in getting a sense of the new chairwoman's background--and, perhaps, some clues about how she'll handle her new role--would do well to check out Uncertainty Underground: Yucca Mountain and the Nation's High-Level Nuclear Waste (The MIT Press, 2006). Ms. Macfarlane co-edited the book, contributed two chapters, and co-authored the introduction. The compilation is thorough, thoughtful, and, considering the density of the subject matter, surprisingly readable. It's indispensable for anyone interested in going beyond the political rhetoric and press accounts and developing a real understanding of the scientific, engineering, and policy challenges raised by nuclear waste disposal. And it's encouraging, I think, that someone with such in-depth knowledge of those challenges is the new chairwoman of the NRC.
Wednesday, August 15, 2012
August 15th is India's Independence Day. On the eve of the nation's independence, its first Prime Minister Jawaharlal Nehru delivered his famous speech, " A Tryst with Destiny." He noted:
"The future beckons to us. Whither do we go and what shall be our endeavour? To bring freedom and opportunity to the common man, to the peasants and workers of India; to fight and end poverty and ignorance and disease; to build up a prosperous, democratice and progressive nation, and to create social, economic and political institutions which will ensure justice and fullness of life to every man and woman."
In 1947 the role of environmental policy in achieving the goals set out by Prime Minister Nehru were far from the minds of politicians. Now, sound environmental policy is quintessential for achieving "justice and fullness of life." From illegal mining of natural resources to increased lack of access to water and clean air, India faces challenges that reveal an unpleasant tryst with destiny. The nation's institutions are grappling with the daunting task of reigning in corruption and ensuring some form of equity in resource distribution. Droughts and floods beleaguer several states. Power failures are attributed to slow environmental clearances.
Yet, Prime Minister Manmohan Singh in his Independence Day speech primarily stressed the link between economic development and national security. No doubt important, but inadequate. This is perhaps a time for all of us to pause and think what true independence means. I will not impose my version of the same, but will simply conclude with a thought that we can never be truly independent from nature and natural resources. So, perhaps, as we strive to achieve the goals that were at the foundation of so many nations, we should not forget the importance of sound environmental policy in achieving those goals.
Tuesday, August 14, 2012
* Mitt Romey selected Paul Ryan as a running mate, and analysis of Ryan's environmental and energy positions began.
* A new study by James Hansen and others claiming that recent heat waves were caused by climate change was published.
* Japan is struggling with energy shortages this summer due to all but two of its nuclear reactors off-line in the wake of the Fukushima accident.
* Harvard Law School's environmental clinic won a victory on behalf of solar developers in Massachusetts.
* New emails written by Energy Department staff members discussing White House involvement in the clean energy program about two months before the Solyndra scandal were released.
* Democratic Senate Majority Leader Harry Reid and Interior Secretary Ken Salazar opened a fifth annual green energy conference in Las Vegas by announcing a new wind energy farm will begin producing electricity.
This semester, I’m teaching Climate Change Law and Public Land & Natural Resources Law, and I thought that an updated list of casebooks for these two courses might be useful to some readers. I count three choices for Climate Change Law (one of which I am particularly proud to list) and four choices for Public Land Law. Let me know if I’ve missed something!
Climate Change Law Casebooks
Richard G. Hildreth, David R. Hodas, Nicholas A. Robinson, and James Gustave Speth, Climate Change Law: Mitigation and Adaptation, 2009 (West).
(NEW!) Hari M. Osofsky and Lesley K. McAllister, Climate Change Law and Policy, 2012 (Aspen/ WoltersKluwer).
Chris Wold, David Hunter, and Melissa Powers, Climate Change and the Law, 2009 (Lexis-Nexis).
I use the book I wrote with my fellow blogger Hari Osofsky of course, but I have also used Wold et al., and I liked it quite a bit. Our book is different in that it is part of the Aspen Elective Series, so it’s shorter and cheaper than a traditional casebook. It’s going to press in late August and will be on shelves by late September. If you’d like to get a PDF of the book to use until print copies are available, you can email Ellen Shapiro at WoltersKluwer.
Public Land & Natural Resources Law Casebooks
George C. Coggins, Charles F. Wilkinson, John D. Leshy, and Robert L. Fischman, Federal Public Land and Resources Law, 6th ed., 2007 (Foundation Press).
Christine A. Klein, Federico Cheever, and Bret C. Birdsong, Natural Resources Law: A Place-Based Book of Problems and Cases, 2d ed., 2009 (Aspen/WoltersKluwer).
Jan G. Laitos, Sandra B. Zellmer, Mary C. Wood, and Daniel H. Cole, Natural Resources Law, 1st ed. 2006, 2nd ed. 2012 (Thomson-West).
James Rasband, James Salzman, and Mark Squillace, Natural Resources Law and Policy, 2d ed., 2009 (Foundation Press).
I use Klein et al., and I really like it, but I haven’t used the others. For some commentary and comparative analysis, see the fine articles by Blumm, Becker, Gable, Fischman, and Krakoff from the symposium "From Martz to the Twenty-First Century: A Half-Century of Natural Resources Law Casebooks and Pedagogy," published by the University of Colorado Law Review (Volume 78 Issue 2, Spring 2007).
Friday, August 10, 2012
Over the last few years, I have taught a seminar on Law, Religion, and Environmentalism. The seminar grew out of my own interest in how cultural value systems impact our collective mark on the natural world, and was spurred on by the growing involvement of churches and faith traditions in environmental advocacy. It’s a fascinating subject to spend a semester on.
The last few times I have taught the course, we divided it into three segments: (1) an introductory section, in which we take an overview of the historical roots of environmentalism and environmental law, including parsing Lynn White’s argument that the Judeo-Christian tradition caused the environmental crisis; (2) a middle section, in which guest speakers from different faith traditions help us explore a variety of philosophies of the environment; and (3) an end section, in which we attempt to reweave the strands of the semester by asking whether and, if so, how environmentalism and environmental law should change as a result of religious activism.
I plan to teach the seminar again this year and, as with any intellectual exploration, it is certain to evolve. My law school’s environmental program, the Stegner Center for Land, Resources and the Environment, will also focus its eighteenth annual symposium this year on religion and the environment. In addition, I have found myself becoming increasingly active in exploring the intersection of these ideas, not just from an academic perspective but also from one of trying to put theory into action. Last year, I accepted an appointment to the board of directors of Utah Interfaith Power & Light, our local chapter of the national Interfaith Power & Light group—one of the clear leaders in helping bring the religious and environmental communities together. Earlier this year, I also gave a speech to the local chapter of the J. Reuben Clark Society explaining why Mormons should be some of the strongest environmental advocates of any Christian tradition.
Stemming from these interests, I plan to make a series of posts this year exploring different angles on the religion and environment topic. With the Olympics winding down and the election season about to heat up, however, I thought it might be appropriate to begin with a brief note on something certain to be on many people’s minds this autumn: With Mitt Romney, an active Mormon, apparently the inevitable Republican challenger to President Obama, what role might the theology of the Church of Jesus Christ of Latter-day Saints play in shaping how Romney sees environmental issues? As a devout Mormon myself, I think the theological answer to this question is abundantly clear. At multiple turns, Mormon doctrine teaches emphatically that members of the church should value God’s creation, find God in it, and protect and care for it. Of course, how that unambiguous doctrinal directive mixes with policy decisions is certain to be more complicated, especially when Romney’s own personal views are translated through the matrix of representational politics.
Still, recognizing that this may be a topic for conversation throughout the election season, there are two resources that may be of interest at the outset. The first is an excellent scholarly exposition of Mormon environmental theology by George Handley, a humanities professor at Brigham Young University and the current chair of the Utah Interfaith Power & Light board of directors. The second is a recent post from the Yale Climate Media Forum on Mormon views on climate change.
Thursday, August 9, 2012
A potentially critical pre-trial hearing is scheduled for tomorrow, August 10, as one Texan seeks to halt TransCanada’s use of eminent domain to facilitate the construction of a pipeline that would transport dense crude oil diluted with liquid natural gas.
As discussed here on this blog earlier this year, Julia Trigg Crawford is challenging TransCanada’s “common carrier” status. Texas statutory law grants “common carriers” the right and power of eminent domain. Yet for some time, private pipeline operators seeking to exercise this authority needed to do little more than check a box to indicate their status as a “common carrier” (as opposed to checking a box marked “private line”) on a one-page registration form submitted to the Railroad Commission of Texas. Reports suggest that the Commission has never denied one of these registration requests.
In its 2011 decision in Texas Rice Land Partners v. Denbury, a case involving a carbon-dioxide pipeline, the Texas Supreme Court authorized landowner challenges to an entity’s designating itself a “common carrier,” and generally called for a more thorough process for determining the public nature of pipeline projects. In other words, the court declared that checking the box is not sufficient in and of itself to establish condemnatory authority. The court said that it is the applicant—not the original landowner—who bears the burden of proving a “reasonable probability” that the pipeline “will at some point after construction serve the public.” The strength of this standard remains to be seen, as do larger questions surrounding the very applicability of the Denbury decision in the context of oil and gas pipelines.
Stay tuned to the Environmental Law Prof Blog for updates on this important takings case.