Friday, March 9, 2012

Live Blogging from Silent Spring @ 50

This morning, I will be blogging live from the University of Utah law school's 17th Annual Stegner Center Conference, "Silent Spring at 50: The Legacy of Rachel Carson." As usual, the conference offers a stellar line-up.

If you want more, you can watch the symposium live (or, later, view the archived version).

The morning session is entitled "The Edge of the Sea: Rachel Carson and the Protection of the Marine World" and features the following speakers:

"Heeding the Signs of a Changing Ocean" -- Susan Avery, President and Director, Woods Hole Oceanographic Institution:
  • "Every second breath you take is provided by the ocean."

  • "We have entered a new geologic age -- the anthropocene era."

  • "The Gulf and other coastal waters have long been a dumping ground for human activities."

  • "One thing that I think Rachel would be pleased about is that science [is now] at the stage where you can predict the emergence of harmful algal blooms."

  • NOAA "has begun now issuing seasonal red tide alerts in the Northeast."

  • "I really think it's harder to get into the ocean than to space. We probably know more about the surface of the moon and Mars than we do the ocean."

  • "It's not funded, but we have a national ocean policy."
"Corporate Ocean Responsibility: Business, Sustainable Use and Stewardship of the Marine World" -- Paul Holthus, founding Executive Director, World Ocean Council
  • "If we think about where we are now with the oceans, and what Rachel Carson would think today, I think she we be partly despairing and partly hopeful."

  • "The economic benefit of the ocean is huge, and it is just beginning to be documented."

  • "Everyone has a stake in the oceans."

  • "One of the keys" to ocean management "is the realization that best practices by an individual corporation is not enough . . . . Collaboration is needed . . . . The problem is that there has not been a structural process to" bring ocean industries together.

  • "Thinking to the future . . . , these are the kind of cross-sectoral things that . . . businesses can get involved in and be part of the solution and not just part of the problem:" (1) ocean governance -- Convention on Biological Diversity, (2) marine spatial planning, (3) regional ocean business councils, (4) smart ocean / smart industries.

  • "Marine mammal issues will increasingly affect marine activities, especially shipping."

  • "We need to balance that growing need for resources and food and energy with those areas that already have resources."

  • "Better data means better modeling and better forecasting," which fundamentally helps businesses, "let alone leading to better environmental management."

"Challenges for Ocean Governance in a Climate Change Era" -- Robin Kundis Craig, Attorneys' Title Professor of Law and Associate Dean for Environmental Programs, Florida State University College of Law

  • "I think what we should really be thinking about is how to keep those ecosystems healthy, functioning, and resilient rather than collapsing."

  • "The problem is we have one ocean but many governments."

  • "As much as we'd like to treat the ocean as one place, there are serious problems for doing that under our current legal system."

  • "Marine spatial planning was introduced, internationally at least, before governments were really thinking about climate change. . . . It is not a panacea. . . . It will not really help with climate change mitigation . . . ."

  • "Marine spatial planning can help with climate change adaptation, and it" can become "more climate change adaptable."

  • "Ocean acidification is the technical fix for anyone who wants to [address] climate change" in the oceans.

  • Australia has a climate change adaptation plan for the Great Barrier Reef. In part, it seeks to "fill knowledge gaps," "identify critical ecosystem thresholds," and translate that into management practices.

  • "Australia is also using the Reef as a reason to engage in climate change mitigation."
  • An example of dynamic zoning possibilities is TurtleWatch, which predicts on a daily basis where sea turtles will be so that fishers can avoid them (and thus prevent closure of the fishery).

-Lincoln Davies

March 9, 2012 in Biodiversity, Books, Climate Change, Current Affairs, Economics, Environmental Assessment, Governance/Management, International, Law, North America, Science, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Thursday, March 8, 2012

Jeremy Lin and Environmental Cases at the Supreme Court

Jeremy Lin’s stunning rise from an undrafted Ivy Leaguer to an international basketball sensation is the stuff of legends. Having received no scholarship offers out of high school, Lin enrolled at Harvard and enjoyed a relatively successful career on the hardwood in a conference with a reputation, let’s say, for things other than sports. A major professional team last drafted a Harvard player in 1954, and, as noted above, Lin did not end that drought. Lin’s recent successes with the NBA’s New York Knicks are nothing short of remarkable.

As “Lin-sanity” first took hold across the country and around the world a few weeks ago, I had the pleasure of participating in a symposium on judicial takings theory at Widener University School of Law. I found the original impetus for the Widener conference---the U.S. Supreme Court’s unexpected decision to grant a writ of certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection---mirrored the story of Lin’s emergence in both its unexpected nature and its potential to transform perceptions about longstanding institutions.

The ultimate decision in Stop the Beach resolved very little. The Court issued a unanimous opinion upholding the lower court’s rejection of a takings claim, and only mused on the existence and scope of a viable judicial takings construct in splintered dicta. While each of the three separate opinions in Stop the Beach could be interpreted as invitations to the lower courts to grapple with the complicated issues surrounding judicial takings, a review of the forty-three citations to Stop the Beach to date reveals that the lower courts have thus far largely declined these invitations. Of course, however, the conclusion to the story of the Court’s unexpected choice to take up the Stop the Beach case is, as it is in the case of Lin’s story, yet to be written.

As for the other recent cert grants in environmental cases at the U.S. Supreme Court, it was not altogether surprising---to the extent that forecasting cert grants is remotely possible---that the Court decided to hear PPL Montana, LLC v. Montana and Southern Union Co. v. United States. In the former, the Court sought to clarify the navigability-for-title test (a post on the Court’s recent opinion is available here); in the latter, the Court will assess a circuit split on whether only juries, not judges, are authorized to impose criminal fines and fees in the context of prosecutions under the Resource Conservation and Recovery Act (oral argument is scheduled for March 19th). However, the Court’s decision to hear Sackett v. EPA could be considered a “Lin-like” surprise, for it represents the two basic characteristics outlined above. First, the Court unexpectedly is reviewing a Ninth Circuit conclusion---that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders---that seemingly echoes the disposition of all of the other circuits that have addressed the issue. Second, Sackett has the potential to alter in significant ways the process of environmental enforcement under the Clean Water Act and multiple other federal environmental statutes. (The Court heard oral argument in Sackett on January 9th and has yet to issue its decision.)

To the extent readers are interested in considering the most surprising but transformational cert grants in environmental cases at the U.S. Supreme Court over the past several decades, feel free to contribute your leanings in the comments section below.

-Tim Mulvaney

March 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Good News in New EPA Report on Personal Vehicle Emissions and Fuel Economy

When I presented one of my works in progress on climate change and suburbs recently, a good friend and colleague asked me how I could keep working on climate change given how depressing the topic generally is.  Her comment likely related to the fact that I've taken to starting presentations on climate change with the statement that I wish I were a climate skeptic because I'm very concerned about our failures to regulate at the rates scientists say are needed.  But it's important to recognize that amid the generally troubling big picture, there are delightful nuggets of good news (if you're not a climate skeptic and think progress on reducing emissions is important).  One such nugget came from the EPA in a new report, Light-Duty Automotive Technology, Carbon Dioxide Emissions, and Fuel Economy Trends: 1975 Through 2011.

Here are two highlights from the executive summary that are particularly relevant to emissions and fuel economy:

"Highlight #1: MY 2010 had the lowest CO2 emission rate and highest fuel economy since the database
began in 1975."

"Highlight #4: Most manufacturers increased fuel economy in MY 2010, resulting in lower CO2
emission rates."

In addition, the EPA projects that fuel economy will double and carbon dioxide emissions will halve from 2009 to 2025 as a result of the harmonized standards created in response to Massachusetts v. EPA, and that consumers' gas savings will outweigh the higher initial costs of the new technology, making the program an economic win-win:

These projected levels for MY 2025 represent an approximate halving of CO2 emissions and doubling of fuel economy levels since the National Program was announced in May 2009. Taken together, the MY 2011 CAFE standards, the MY 2012-2016 greenhouse gas emissions and CAFE standards, and the proposed MY 2017-2025 greenhouse gas emissions and CAFE standards are projected to save approximately 6 billion metric tons of greenhouse gas emissions and 12 billion barrels of oil over the lifetimes of the vehicles produced in MY 2011-2025. Based on the agencies' most recent estimates of the cost and effectiveness of future technologies, Department of Energy forecasts of future fuel prices, and other assumptions, the fuel savings to consumers are projected to far outweigh the higher initial cost of the vehicle technology that will be necessary to meet the new standards.

And I write all this while sitting in a hotel room touting its various green efforts after increasing my carbon footprint flying to LA.....

Hari Osofsky

March 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 6, 2012

Circular (Ir)rationality and Energy

Supplementing yesterday's post...

Energy circular reasoning- Blake Hudson

March 6, 2012 | Permalink | Comments (4) | TrackBack (0)

Monday, March 5, 2012

Is foreign funding to support environmental protection measures wrong?

The Prime Minister of India, Dr. Manmohan Singh has for long enjoyed a reputation as a rare type of politician. In a country where politics are cloaked with corruption problems, he has stood out as a politician of serious intellectual rigor, humble demeanor, and personal integrity. Recently, however, Dr. Singh gave in to a rather unexpected frustration when he decried American NGO-funded support for protests against the nuclear power plant in Kudankulam in Tamil Nadu and the use of genetically modified crops in India. These NGOs, Dr. Singh argued, did not understand the energy needs of India. He emphasized that the nuclear power plant could not be left idle and had to move forward. Additionally, cases have apparently been filed against four NGOs for alleged misuse of foreign donations to fund protest, and 77 foreign NGOs listed in a government watch list. (The newsreport can be found here). 

In a follow up to the Prime Minister’s comments, US charge d’affaires Peter Burleigh reportedly responded that the United States would comment after verifying the factual accuracy of the statement. Russian Ambassador Alexander Kadakin, however, felt no such compunction. Ambassador Kadakin reportedly responded that the Russian administration had suspected such funding, particularly since the protests began following the Fukushima tragedy and not before the accident. (the report can be found here).

Indian NGOs reportedly responded with a letter addressed to the Prime Minister Singh’s remarks and by bringing legal action. A group of NGOs including a former Indian Supreme Court judge, former Chairperson of the Atomic Energy Regulatory Board, and former Union Power Secretary wrote a letter to the Prime Minister (the report and letter can be found here), challenging the undemocratic underpinnings of the Prime Minister’s remark. They provocatively added, “We are not China.” The head of another NGO filed a defamation action against the Prime Minister for labeling their efforts as a foreign plot or agenda. (report can be found here)

The main question, though, is this: so what if environmental protests are funded by foreign NGOs?

Barring a few restrictions, it is not illegal to provide funding to civil society in India. Unless there are accounting illegalities, there is no reason that local communities should not be legally funded by those with a shared concern. By all means the Indian government could try to enact legislation prohibiting foreigners to fund local civil society initiatives. Of course, such an effort would be ironic considering that foreign investors are vested in nuclear power plants. Surely, Ambassador Kadakin’s concern did not stem so much from his altruistic interest in India’s energy needs as it did from the fact that the Nuclear Power Corporation of India Limited had planned to collaborate with Russia in building two nuclear power plants.

It would be equally ironic that the government, which few months back battled to allow foreign direct investment in India, would oppose foreign funding for supporting civil society endeavors. It is certainly not something that one would expect from Dr. Manmohan Singh, a major architect of India’s economic liberalization reforms.

Let me add, however, that India indeed faces a steep challenge in meeting its energy needs. Millions remain without basic power infrastructure. The sub-continent has limited natural energy resources and has to rely on foreign supplies. Of late, its ability to import oil from Iran has been greatly impeded by foreign sanctions that have limited its ability to make payments to the government. (see report here). India faces serious energy predicament, even as growth rates drop and competition consistently looms across the border from China. Prime Minister Singh is certainly not in a pretty spot right now.

However, questioning legal and peaceful protests by concerned members of the civil society is not the solution. The need of the hour is transparency and efforts by the government to explain and persuade those living in the vicinity of a nuclear power plant of its safety. As we near the first anniversary of the 2011 Japanese Tsunami (March 11), we cannot ignore or wish away the terrifying moment when the nuclear plants in Japan did not shut down. We cannot ignore how Japan’s tragedy paralyzed the world, including its economy. Japanese continue to grapple with radiation challenges. That is the state in an economically developed nation.

Further, as the challenge to the U.S. Nuclear Regulatory Commission’s approval of the two nuclear power plants in Georgia by the Tulane Environmental Law Center for failing to consider the effect of the Fukushima tragedy in the EIA demonstrates, convincing people that nuclear energy is safe is not going to be a cakewalk in a post Fukushima world. The promise of electricity is alluring. But, it is no match to the fear of potential annihilation. Such promise must be backed by technology, sound safety procedures, effective compensation schemes, and legitimate efforts to engage in dialogue. Democratic governance has its own price.

--Deepa B.--

March 5, 2012 in Asia, Economics, Energy, Law | Permalink | Comments (0) | TrackBack (0)

Disprove Climate Change, Win a Gun!

The RoadViggo Mortensen in "The Road"

I've posted before about the environmental protection positions of "Field and Stream" magazine (with their Google search headline reading "Hunting, Fishing, Survival, Guns, Gear"), and specifically about their segment "The Conservationist" and it's position against Republican efforts to strip the budget of important environmental protection measures. Recently, "The Conservationist" posted another intriguing headline: "If Climate Change Isn’t Real, I’ll Give You My Beretta." The post highlighted the group known as the "Conservation Hawks," who describe themselves thusly,

"Who are we? We’re a group of passionate hunters & anglers devoted to protecting our Child Climate Hawk sporting heritage and passing on a healthy natural world to our kids and grandkids. Our motto says it all: HUNTERS & ANGLERS DEFENDING OUR FUTURE

What makes us different? We focus on the most important issues for sportsmen. That’s why we’re leading the fight against the biggest threat we’ve ever faced - CLIMATE CHANGE."

Conservation Hawks chairman Todd Tanner recently offered a tempting wager to those Wall Street Journal and Fox News loyalists allowing political discourse to drive the climate change discussion rather than actual facts: prove to him with facts and data that climate change is not real, and he will give you one of his most prized shotguns. Tanner further provides an effective metaphor based upon a situation where such a gun might be useful, analogizing climate change with your family being charged by a bear in the wilderness. Would you just stand there, or would you take action? Tanner continues to place the debate in terms that conservatives typically tout, and in response to the question "what about those who say this is just another excuse for more government intrusion and power?," states:

I don’t think they’ve really thought it through. You want to talk about government intrusion, think about what it means if we don’t address this now while we have the time and resources. We will lose the freedoms that we have because somebody—and it will be government—will be in an all out effort to try and address the effects. To try and address the effects of our neglect. We’ll face the worst thing of all- losing our freedom. And we’ll already have lost most of hunting and fishing. That’s how serious I believe this is.

This approach highlights how the discussion increasingly needs to be re-framed by infusing into the discourse the values that those who may be opposed to climate change typically hold dear. Don't want government intrusion? Well, imagine what it will be like when the government is really forced to act because we did not act now. Frustrated by high gas prices? Exercise personal responsibility and drive a more fuel efficient vehicle to self-determine your transportation costs rather than clamoring for the government to bail you out now that gas prices are high (note the rapid drop in sales of gas guzzlers and rapid increase in sales of fuel-efficient vehicles when gas prices rise). Don't like the government spending your tax dollars on handouts? End subsidies to the fossil fuel industry that facilitate our continued reliance on fuels sure to run out over ridiculously short geologic times scales. What's that? You DO want the state and federal governments to come to your aid after a hurricane/flooding natural disaster event (even though you typically want them to stay out of your business)? Enact responsible land use plans that don't exacerbate the human and economic destruction of such disasters by filling in and developing wetlands that act as important buffers to storm surge. Your religious convictions tell you to put others before yourself? How again does that not include your grandchildren and descendants even further down the line who decidedly will not have access to fossil fuels? Should we not ease the transition to renewable fuels so the shock of transition is not foisted on them? Want to be a true conservative? Then conserve natural resources, finite fossil fuels, and your family's future. It might not win you a gun, but it will allow you to ensure that there is a natural landscape for you to take your gun to in the future.

- Blake Hudson

March 5, 2012 | Permalink | Comments (0) | TrackBack (0)

After Partial Settlement, Oil Spill Case on a Slow Boil


The BP Oil Spill case settled! Well, part of it. The smaller part. But, still, we must count this a victory for U.S. District Judge Carl Barbier, whose reported 72 million pages of assigned reading will inevitably be shaved down. (Does this man have an iPad?)

On Friday evening the court announced that BP had reached a settlement with the steering committee that represents thousands of private plaintiffs in the case. Judge Barbier postponed the trial indefinitely while the remaining parties, including the federal government, regroup. According to news reports, the settlement would cover claims for economic loss and medical harm. BP estimated that the settlement, which has no firm cap, might total $7.8 billion; the actual number would depend on how many plaintiffs accept the deal and how much they’re ultimately paid. Plaintiffs displeased with the offer could opt out and stay in the litigation. And all private claims against Transocean and other defendant companies remain.

On balance, the settlement appears to be a good thing. But this plate is just the appetizer. The main course—a pepper pot of federal civil claims and criminal charges—has yet to come. And that’s a dish that could really bust a gut.

Before I get to the federal claims, here’s why I like the settlement. The private claims—brought by shrimpers, restaurant owners, injured responders, the families of fallen rig operators and more—were incredibly diverse in factual elements and dogged by the uncertain standard that controls large punitive awards. That not only made their claims hard to value, but insured that any generous verdict would be sent into the deep-­‐space of federal appeals, delaying for years the compensation that many families and small businesses need now.

For those, like me, who hope the oil industry will be driven to reduce catastrophic risk offshore, the more powerful lever has always been in the grip of government lawyers. As I explained in my last post, the current litigation also includes federal claims seeking civil fines under the Clean Water Act. If Judge Barbier finds that the spill resulted from gross negligence, the maximum fine for the release could total $21.5 billion ($4,300 assessed for each of 5 million barrels the government estimates was spilled). In addition, U.S. Attorney General Eric Holder suggested last week that “within months” his office could announce plans to prosecute. (These actions would not be a part of the current litigation.) Provisions under the Clean Water Act allow for criminal penalties up to twice the total amount of the economic loss resulting from the accident. No one yet knows the extent of economic loss (which would include loss to private claimants, natural resource damages claimed by states and federal agencies, and more), but it doesn’t take much imagination to conceive of criminal penalties in the $30-­‐50 billion range. (Take $6 billion in compensation fund pay-­‐outs; add $8 billion for the settlement; add another $10 billion for estimated resource damage; double.) Did I mention fines and jail time for individual employees?

To be sure, I am talking about the high end of federal fines and penalties, but even the possibility of such liability must leave BP executives staring at the clouds. Could BP settle with the government? Perhaps, but to contain all liability, the company would almost certainly seek to settle the civil and criminal actions together. That makes Eric Holder the head chef. And for now he’s got these cases on a slow but steady boil. 

--Rob Verchick, Loyola University New Orleans College of Law

cross-posted at CPRBlog


March 5, 2012 in Cases, Energy, Governance/Management, North America, US, Water Resources | Permalink | TrackBack (0)