April 26, 2012
The Link Between Policy and Innovation
Most of us intuitively recognize that laws can spur technology innovation. But what about the other way around? Is there a certain threshold of technology availability and reliability necessary to motivate policy changes? That's the topic of an intriguing blog post here, which spotlights General Electric's policy and innovation study. The study, which comes complete with a new data visualizer, provides a graphic look at the prevalence of words like "wind" and "renewables" in GE's annual reports going back to 1892. Take a look at wind:
GE argues that the Energy Policy Act of 1992's production tax credits were key to the development of renewable energy technologies, like GE's industry standard 1.5-MW wind turbine. It also links the availability of those technologies to policymakers' willingness to implement renewable portfolio standards in many states.
If GE is right, what investments should we be making now? What technologies need more policy support, and what new policies are ripe given the technology we have available now?
(H/T to my energy law students for bringing this study to class!)
April 25, 2012
After Mono Lake
Like almost all environmental law students, my legal education included reading National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709 (1983), better known as the Mono Lake Case. The decision seemed iconic, and not just because I was taking trips to the Sierra Nevada as often as I could. It reads like an epic, and for years environmental lawyers and activists have treated the decision as a turning point in the history of western water law.
Then I went into practice. For four years, I wor ked on some of California’s biggest water controversies, and the Mono Lake decision and the public trust doctrine were almost nowhere to be found. Though I worked with environmental groups committed to increasing environmental protection of California’s water resources, we almost always grounded our arguments in statutory environmental law. I can only think of one time that I even tried to use the Mono Lake case in a brief. We lost, 7-0. I did see a few other attorneys raise public trust claims in freshwater cases, but usually as a sort of add-on hail mary claim, almost like the boilerplate laches and statute of limitations defenses that defendants often include in their answers. Those claims never prevailed.
So two years ago, when I was invited to participate in UC Davis Law Review’s symposium on the public trust doctrine, I decided to research questions that had bugged me ever since I began practicing. Was my experience anamolous? And how much, outside of the Mono Lake basin, did the Mono Lake Case really matter? The results of that inquiry are available here, and the full symposium issue is here. My conclusion, in a nutshell, is that in California (and outside of the Mono Lake basin, where the decision did matter quite a lot), there’s little documentary evidence supporting the Mono Lake case's reputation as a transformative event.
That conclusion comes with a whole host of caveats. First, it shouldn’t diminish the importance of what the Mono Lake plaintiffs achieved. To restore even one waterway can be a lifetime’s work, at least if you’re remarkably resourceful, persistent, and perhaps a little lucky. Otherwise it can take much longer, or not happen at all. Second, there’s an intriguing contrast between my research, which suggests that California’s public trust doctrine holds relatively minor importance for California water law, and Michael Blumm and Rachel Guthrie’s contribution to the same symposium issue. They found that courts across the world have cited the Mono Lake decision, often in support bold decisions restraining environmentally destructive practices. I’m not sure exactly what to make of that contrast, but maybe the Mono Lake decision offers an inspiring precedent where an environmentally progressive judiciary finds itself at odds with weak or corrupt legislative and executive branch institutions, but exerts less force where legislative and administrative systems are relatively mature. Third, I did not explore whether the Mono Lake decision might have broadly changed perceptions or environmental outcomes in ways that escaped documentation. Though this seems implausible to me, perhaps the decision shifted the paradigms of California water law while generating relatively little written evidence of that influence.
But even with those caveats, I think the research provides a cautionary tale for scholars and activists—and there are many—who would lean heavily on the public trust doctrine as a core instrument of environmental protection. If there is slim evidence of such influence on California water resource management, why should we expect dramatic change somewhere else?
- Dave Owen
(photo courtesy of Hudson Henry (www.hudsonhenry.com))
Engaged Learning and Collaborative Teaching
A few weeks ago, my face appeared in real-time on a screen at Drake Law School in a room of eager students of Professor Jonathan Rosenbloom’s sustainability course, called Sustainability & the Law. As a guest, sitting in my office before a computer screen and video camera, I engaged Jon’s students on issues of ecosystem governance and watersheds. The students were spectacular, and in my view, it will be worthwhile to share some thoughts on my experience.
First, a note on the course: Jonathan has really pushed the envelope of innovative teaching methods with this course. The course description for Sustainability & the Law provides as follows:
This course is an excellent and unique opportunity to make a positive impact on your community. You will be introduced to a diverse, emerging, and innovative area of the law, as well as creative practitioners and public officials working in this area. The course is designed to operate similar to a small firm focusing on issues relevant to sustainability. We have a real client, The Greater Des Moines Partnership, who has asked for our help. Through our representation of the client, we will explore the concept and practice of sustainability and its integration of economic, environmental, and social considerations. Students will draft actual proposals to advance issues relevant to sustainability and receive feedback from public and private sector officials, including the Des Moines City Council.
In his article that describes the teaching methods employed, Jonathan suggests that engaged learning provides a productive path toward professional competency in law students: “The combination of practical application, collaborative learning, formative evaluation, and peer review in teaching sustainability has the potential to give the students a real understanding of the law, to get them engaged, and to have them take ownership over the content.” The students’ successes were acknowledged last year, and due to (what I perceived to be) a great mixture of the student’s energy and Jonathan’s professionalism, I am sure this year’s students performed at least as well (and they present to the Des Moines City Council on Thursday). Jonathan has managed to engage his students at a fairly demanding and sophisticated level of professional problem solving, and their interest may be, in large part, the impressive consequence. Jonathan has posted the students’ final reports from this year.
Second, I recognize that I may be a newcomer to this type of distanced participation, but I think I can still say that I found the technology surprisingly effective. Innovative teachers have already developed uses and opportunities for video chatting in the classroom, including: experimenting with collaborative project-based learning between students at other schools; enabling access to guest speakers; conducting interviews with authors, activists, or other subjects of study; engaging students in lessons on cultural difference; allowing students to share experiences or performances; and a host of others. Students are, or need to be, comfortable with today’s communication technologies and the accompanying opportunities, and we should be willing to bring technology into the classroom. (As an aside, I was made aware that the projection of my image on the screen in the classroom magnified my face to extent that should have made me self-conscious.)
Both during the class meeting and in subsequent conversations, Jonathan suggested that all players win in this exchange and provided me his perspective on the additional benefits of assigning articles that were authored by the guest speaker (in this case, a piece of mine on watershed governance). The experience was interesting to Jonathan because I brought my research interests to the classroom in a way that added to the course knowledge. For the students, participating with the author of their assignment was an honor and fostered a demanding, professional atmosphere in the classroom. The students clearly rose to meet me at a high level of competency through their preparation. And, although we would all love to think of our own scholarship as universally true and insightful into everything, Jonathan also reminded me that my watershed governance ideas sounded different in Iowa than in New York or Oregon.
Ultimately, the distance separating me from the Drake students may have fostered more engaging and open dialogue on the issues presented because of the newness (and uncertain boundaries) of the relationship, but it also forced us to address important cultural and norm-based differences (that we tested and tried throughout our 75-minute meeting). These students were forthcoming on both their intrigue and skepticism about the governance model I had proposed, but through an engaged dialogue I believe we were able to find common ground on a number of issues. Notably, much of our discussion pertained to water issues (flooding and drainage tiles) that have particular importance in Iowa.
This was a great experience for me, and I learned a great deal about remote guest speakers, teaching in general, and my own scholarship. My experience suggests we would all benefit from reaching out to one another as Jonathan did.
- Keith Hirokawa
April 24, 2012
Likeable Bikeable Cities
Last month, I was in Amsterdam to give a talk, and I fell in love with the city. What I liked most was all the bicycles. The Netherlands ranks first in the world in terms of bikes per capita (about 1 bike per person), and in the mid-2000s, bicycle use surpassed car use in Amsterdam. Here's a parking garage in Amsterdam:
Spain, where I am currently living, has also made some great progress on urban bikeability. I have seen bikesharing facilities with spiffy bikes and catchy names in both Seville and Barcelona. Seville has “sevici” (with Spanish pronunciation, you can hear the "bici" for "bicicleta" in there) and Barcelona has “bicing”. If my kids were a little older, we would have jumped on...
And then there’s San Diego, my home for the past 7 years. San Diego has perhaps the most bikeable (and likeable) weather in the US, yet never makes the list of bike-friendly cities. Maybe this will change as one of the mayoral candidates unveiled a bike-friendly plan for the city last month. This is one of those issues on which progressive local government can really make a difference.
- Lesley McAllister
April 23, 2012
Sustainability and Public-Private Partnerships Event at the United Nations
Patricia Salkin at the Government Law Center of Albany Law School sent out a general invitation to a special program at the United Nations on May 16, 2012 that focuses on sustainability and public-private partnerships. The afternoon program includes Elizabeth Thompson (Executive Coordinator, Rio + 20 Conference United Nations), Kenneth Bond (Squire Sanders LLP) and Scott Fein (Whiteman Osterman & Hanna), as well as Professor John Dernbach from Widener Law School (and his forthcoming book on sustainability will be released at the program), Professor John Nolon from Pace Law School, and me and Professors Patricia Salkin, James Gathii, and Alexandra Harrington from Albany Law School. The program is free and open to the public but an RSVP is required for security purposes. Please see the announcement for details, and I hope to see you there!
- Keith Hirokawa
Emerging Issues in the Arctic
(This series of guest posts will track emerging issues in the Arctic. Big thanks to the editors at Environmental Law Prof blog for the opportunity to share my thoughts on and impressions of goings-on at the world’s “last frontier.”)
As this blog’s readers are probably aware, climate change is causing significant reductions in both the extent and the thickness of Arctic sea ice. With these reductions a number of long-imagined economic opportunities are becoming realities. Summer shipping routes are opening up along Russia’s Arctic coast (the Northern Sea Route) and across the top of Canada and the U.S. (the Northwest Passage). Oil and gas accounting for an estimated 25% of the world’s untapped reserves are becoming accessible for offshore drilling. Tourist cruises to the North Pole, Greenland, Svalbard, the Canadian Arctic and elsewhere are increasing. Looking forward, the most remote fisheries are going to be fished. Deep sea mining beds are going to be mined. Massive deepwater ports will be built in towns you’ve never heard of. And all of this is happening against the backdrop of international negotiations over who owns what under the United Nations Convention on the Law of the Sea (UNCLOS), super hi-tech sea floor mapping, war games staged by national militaries in frozen landscapes, under-ice intelligence operations, and the complicated responses from indigenous peoples across the Arctic Circle who risk losing their traditional ways of life yet stand to make a lot of money.
So there’s plenty of action in the Arctic these days, and an increasing awareness of what is at stake. Whether you see the Arctic as a frontier to be explored in the name of science or adventure or self-reinvention, a periphery from which to extract natural resources to serve those who live closer to the center of civilization, or a romantic wilderness to preserve for the good of wildlife, future generations, and the planet as a whole, the battle is on. Decisions made in the coming years—even in the coming months—will set the terms for what happens in the region for generations to come.
Recently, I attended a fascinating conference hosted by the Fletcher School of Diplomacy at Tufts University, titled “Voyage of Re-Discovery: Panning for Wealth in the Warming Arctic,” where more than 50 government officials, business leaders, academics and environmentalists convened to talk about Arctic energy, environment and governance issues. The conference featured an impassioned speech by Senator John Kerry, in which he advertised that he will be holding a series of hearings on ocean policy and advocated for the ratification of UNCLOS, as well as a presentation by conference organizer Crocker Snow and international sustainability maven Wilford Welch of a “Wealth of Arctic Nations Triangle Index” (a presentation of an earlier draft of the index is here). At the end of the conference, the President of Iceland, Olafur Ragnar Grimsson, delivered a thoughtful and engaging keynote, in which he addressed the history and direction of international Arctic governance (a transcript of the speech is available here).
Since 1996, the eight Arctic nations (the U.S., Canada, Iceland, Denmark, Norway, Sweden, Finland and Russia) have worked with indigenous peoples through an intergovernmental forum called the Arctic Council to protect the Arctic environment and promote sustainable development. President Grimsson argued that the Council’s model for international environmental governance is both unique and worth replicating. He began by discussing the six elements of his “Arctic model” of governance:
1) The Council has been “non-bureaucratic” in that, until recently, it had no permanent secretariat and a rotating directorship that changed every two years. (In 2011 the nations agreed to establish a permanent secretariat to increase the Council’s capacity.) President Grimsson implied that this created a political dynamic that fostered mobility and innovation. In a keen response to the President’s speech, Alexander Pilyasov, Head of Center for Arctic & Northern Ecos in Moscow, noted that this structure itself derived from, or at least shared some characteristics of, the governance structures of Arctic indigenous peoples.
2) The Council is democratic in that it has been inclusive of both indigenous peoples and NGOs in planning and research activities. Indigenous peoples are, under certain circumstances, granted “permanent participant” status in the Council. NGOs may be granted observer status. Non-Arctic states may also be granted observer status, either as permanent or ad hoc observers (Dr. Pilyasov offered an important correction here, noting that the Council is institutionally diverse, though not necessarily democratic.)
3) The Council adapted to new and emerging diplomatic norms. Both within the Council and in broader discussions, President Grimsson maintained that there is a vertical as well as a horizontal exchange, meaning that there is discussion in which civil society representatives and state and local officials engage directly with national leaders and senior members of various government bodies, both within and between nations.
4) The Council has placed an emphasis on science-based policies (or, as Dr. Pilyasov called them, knowledge-based policies). This includes the production of scientific reports, such as the 2004 Arctic Climate Assessment Report, which serve as the basis for decision-making, and scientific cooperation, as evidenced by the establishment o the University of the Arctic and the Northern Research Forum.
5) The Council has operated on the premise that all partners are of an equal status. Certain states supposedly “leave outside the room” their super-power status.
6) The Council was, from the outset, future-oriented, and built upon the recognition that cooperation was not to settle old differences but to plan for the future for both the environment and the people of the Arctic.
This model, according to President Grimsson, has produced a number of positive results, including the development of diplomatic dialog and progressive cooperation in a formerly militarized international region; the effective integration of civil society into the governance process; the production of actual agreements, including the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic and the ongoing preparation of an instrument on Arctic Marine Oil Pollution Preparedness and Response; and the establishment of an area where Russia and the U.S. actually cooperate. There are obvious gaps in the Council’s work—there is, for instance, no coverage of security issues—and there are plenty of critics to challenge President Grimsson’s optimistic take on its structure and success, but there does seem to be evidence that this toothless, under-funded, soft law approach has produced some significant cooperation in managing a large and still largely unknown commons.
Toward the end of his talk, President Grimsson suggested that the Arctic model might be useful in forging a new governance regime in the Himalayas and the Tibetan Plateau, the planet’s “Third Pole.” Like the Arctic, this region is defined by ice; its glaciers, extending across parts of India, Pakistan, Nepal, Bhutan and China, provide water for the big rivers of India and China and for downstream populations. Though the climate change impacts on the Himalayan glaciers are less certain than in the Arctic, there is no question of the risks posed by glacial melt. It may well be that, as President Grimsson suggested, the Arctic model affords a potential means to generate cooperation between India and China, as well as the smaller nations.
Going a step further, I wonder if the Arctic model offers a way to think about another large-scale commons problem, namely, the emission of greenhouse gases into the atmosphere. Is this model helpful in thinking about potential ways to overcome the impasse to a comprehensive international agreement on climate change? Would the collaborative, soft law approach work? Or is this just another utopian vision of the Arctic imagination? I am, at first blush, skeptical, and for two reasons. First, Arctic nations share a geography that is visible and tangible, one that is easily comprehensible (and as President Grimsson joked during his talk, they also share the experience of Arctic winter). Everybody shares the earth, of course, but the awareness of this fact has yet to get us over the hump with climate change. Second, it feels like a step backwards, away from binding commitments, and I worry that it is too late to even consider the option. But I think it’s open for discussion, and as we move toward Rio+20, it’s a discussion worth having. What do you think?
- Michael Burger
Walmart is Bigger than the Entire Island of Manhattan - Literally
The Good and the Bad in the BP Settlement, and the Main Course Still Ahead
I spent last Friday--the second anniversary of the BP Blowout--in the vast basement of the Orleans Parish Criminal District Court building, shifting in my metal chair, ignoring the talk-show chatter from the flat screens, and keeping an eye on the red digit counter to know when my number was up.
I'd been called for jury duty.
Whether I will eventually be deployed is up to the gods, but until then I have resolved to study (with the help of this building's creaking Wi-Fi system) all 2,000 pages of the proposed multibillion-dollar settlement in the Deepwater Horizon case--the settlement made public last week by BP and thousands of Gulf Coast residents and businesses. (I blogged earlier when the broad outline of this settlement was first announced here.)
Now some of you may wish to savor the details, poring over the documents page-by-page between sips of Courvoisier. But for the rest, I've got the bottom line [SPOILER ALERT]: The proposed settlement rewards plaintiffs' hard bargaining, puts a crimp in federal and state hopes for a speedy trial, and demonstrates once again that despite the size of this deal, the main course is yet to come, in the form of federal civil fines and possible criminal prosecution.
Hard Bargaining Rewarded
The documents propose a class-action structure, in which private plaintiffs would be compensated for economic harm and health claims by way of a settlement fund. The fund would replace the one that began as Ken Feinberg's Gulf Coast Claims Facility, but would be administered by the court rather than BP. Payouts under the new fund could begin within weeks, following Judge Barbier’s preliminary approval of the plan.
Settlement claims are divided into those for economic loss and medical harm. It is the package for economic loss that offers the most sparkling feature: a Risk Transfer Premium or "RTP." The RTP is a kind of bonus, based on an agreed-upon "multiplier." It's meant to compensate plaintiffs for future uncertainty or for less concrete losses that are hard to monetize. So if you are the captain of a crabbing boat who can show $20,000 of lost earnings, you will get compensation in that amount plus a premium of $100,000--the $20,000 loss multiplied by the RTP multiplier for crab boat captains, which is 5. The multiplier varies by category. For coastal property owners, the multiplier is 2.5. For star-crossed oystermen, it is 8.75. I was especially pleased to find that subsistence fishers had secured an RTP multiplier (2.25) to compensate for non-monetized cultural losses, in addition to the multiplier for the economic value of the fish. In Louisiana and Mississippi, Vietnamese-American fishers often use self-caught fish as ceremonial gifts or as objects of community barter. Perhaps in exchange for RTPs, plaintiffs agreed to a total cap on seafood claims of $2.3 billion. All other claims are uncapped.
As for medical claims, any claimant who worked or lived on the coast may receive up to $60,700 for some specific ailments (but not many others), with the right to sue for medical harms that are identified in the future. Class members are also guaranteed 21 years of free medical monitoring.
The promise of quick payouts, combined with the RTP, gives plaintiffs compelling reasons to consider it. Surely, plaintiffs' lawyers will like it: BP has agreed not to object when they press the court for $600 million in fees (which would be paid in addition to plaintiffs' award). I suspect even BP is relieved to get this confusion of high-stakes claims out of the way.
Lost Hope for a Speedy Trial?
I envision federal and state lawyers, somewhere in Swampville, gritting their teeth over what appears the smallest of details. As part of the plan, BP has suggested the trial containing the state and federal claims be postponed all the way until November of this year. Ostensibly, that's because final approval of this settlement could not happen before then. But the timing all but ensures that the meatiest part of the trial--as well as last-minute settlement negotiations with the federal government--would occur half-a-year from now, when public concern has dissipated and a presidential election has just taken place, possibly putting a Republican in charge of the Justice Department next year. It will be up to Judge Barbier to decide that schedule, but right now the government lawyers must be steaming.
The Main Course
When that trial does happen, or when the federal and state claims settle, remember that those claims lie at the heart of this dispute. The partial settlement, valued at around $8 billion, is unquestionably one of the largest settlements in American history. But the remaining federal and state civil claims could eclipse that by many times. And it is possible that criminal penalties could add tens of billions of dollars more to BP’s bill. (See my itemizations here.)
Is their number up? Today, not by a long shot. But we’ll see.
April 23, 2012 in Current Affairs, Energy, Governance/Management, Law, North America, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack
April 22, 2012
In Case You Missed It - Week of April 16-22
- Sunday was Earth Day.
- EPA issued air pollution standards for fracking.
- The Department of Energy released a report finding that existing, non-power-generating dams could generate an additional 12 gigawatts.
- Studies documented significant deep-seal impacts from the Deepwater Horizon spill.
- EPA released an inventory of U.S. greenhouse gas sources and sinks for the 1990-2010 period. The inventory showed that emissions rose approximately 3.2% ub 2010.