May 12, 2012
In Case You Missed It -- Week of May 6 - 12
- It's National Bike Month
- It's also Asthma Awareness Month
- The New York Times reported that Japan has shut down the last of 50 nuclear reactors, leaving the country without nuclear power for the first time in 42 years
- TransCanada submitted a revised application for the Keystone pipeline
May 10, 2012
Scientific Uncertainty, Again
Scientific uncertainty is one of the most challenging realities for environmental law. As many have noted, uncertain science requires policy choices, but policymakers too often claim their decisions are dictated by science. In addition--as we have seen with climate change as well as Bisphenol A--scientific uncertainty is a frequently-used reason for failing to regulate.
The Wall Street Journal recently ran an interesting article on analytical trends in medical research. It describes the increasing prevalence of observational studies, which typically involve large analyses of already-existing data (as opposed to randomly controlled experimental studies). There is nothing wrong with observational studies in general, but the results can be hard to interpret if researchers aren't very clear about their methodologies; indeed, they have very low replicability rates.
This is just one example of how scientific uncertainty can cause confusion even among researchers in a given field. How can law respond if scientists aren't even sure what the data mean? It comes back to policy, of course. The FDA recently decided to deny a rulemaking petition to regulate BPA, reasoning there is still too much scientific uncertainty about its health effects. If we'd prefer our regulators to take a more cautionary approach, are there ways to structure that into authorizing statutes? And does anyone have an example of that kind of structural constraint working?
A New Critique of Sector Allocation
If you're interested in fisheries law, you may want to check out a comment in the most recent issue of the Ocean and Coastal Law Journal, Maine's one and only specialty journal. The author (Shannon Carroll, a graduating 3L, former commercial fisherman, and former recreational fishing guide) critiques New England's recent experiment with a "sector allocation" trading program.
A little background may help put the issue in context. Fisheries regulation, perhaps to a greater extent than any other area of environmental or natural resources law, has seen a dramatic shift toward market-based instruments. After initially meeting with resistance, individual fishing quota programs have become all the rage. And while fishery management has produced more than its share of debacles, multiple studies have concluded that the enthusiasm for IFQ programs has ample basis in fact as well as theory. But a standard fear of IFQs is that even if they will create a more sustainable, economically efficient fishery--which tends to make economists and environmentalists happy--they will do so through consolidation, which will push some fishermen out of business and will turn many of those who remain into employees of larger fishing interests rather than independent small business owners.
Sectors therefore sound like an enticing alternative. The basic idea of a sector, as implemented for the New England groundfish fishery, is to allocate fishing shares not to individuals but to groups. The groups would retain some control over membership, over the method of allocating fishing shares within the group, and over self-policing, potentially preserving some of the autonomy, control, and connections to local communities that might be lost under an individual quota program. It all sounds like a rather appealing compromise. At least, that's what I thought until I read Shannon's comment.
Though he is generally sympathetic to the arguments in favor of catch share programs, he draws a very different conclusion about sectors. In a nutshell, here it is:
"Understanding the legal rationale for sectors will, in turn, help demonstrate that sectors are not the innovative solution they are touted to be, but, rather, a cleverly crafted program designed to evade [Congress's] referendum requirement and still comply with legal requirements."
There's much more to it, and I won't try to summarize the arguments or proposed reforms here. But if you're interested in fisheries, or in market-based environmental regulation more generally, I recommend giving the comment a look. The cite is 17 Ocean & Coastal L.J. 163.
May 9, 2012
Standing to Sue
Recently, while walking in the woods with my children, I came across an old stone-sheltered spring. It looked as though the structure had not been touched by human hands in years, perhaps even decades. Although my camera work leaves something to be desired, I found the experience delightful.
I spoke with others about this find, including past residents and neighbors, but the spring seems to have preceded them all. In the meantime, I wondered why I had attributed so much value to the experience. Perhaps I enjoyed contact with the past, as my friend Shannon Roesler suggested.
As it turns out, this experience matured into an excellent learning opportunity. I showed this picture to a few of my students and asked for interpretations of the scene. We collaboratively engaged in the process of organizing this messy site into categories of rights and responsibilities and concluded upon a handful of interesting (and perhaps pleasantly vague) answers. One student explained to me that the scene illustrated the rule of capture – that the stones signified intent and domination of the water. One student made references to Tuck Everlasting and we all considered the level of commitment it would take to drink the waters. Another student told me in some detail about the likely origins of the stones (possibly robbed) and their building value to past generations.
One peculiarly perceptive student told me that the scene was really about standing to sue. Imagine a newly-platted development on adjacent property. Construction commences, and onlookers struggle to identify an injury that would support standing. She pointed out that in the absence of the stones, changes to the ground and surface water flow may have gone unnoticed – not much different, she mused, than displacing a few rabbits or birds. The placement of the stones (which may not have changed much in terms of the physical feature or operation of the spring) transformed a natural geological feature into something of legal value by converging natural features and human dependency.
An engaged learning approach allows teachers to develop opportunities outside of the casebook and in the world. We will follow-up on this exercise by visiting the site, walking the neighborhood, and touching the dirt.
- Keith Hirokawa
May 8, 2012
San Diego Journal of Climate & Energy Law Publishes 3rd Symposium Issue
I am proud to announce that the San Diego Journal of Climate & Energy Law recently published its third symposium issue, featuring the articles of terrific colleagues who participated in the University of San Diego’s Third Annual Climate & Energy Law Symposium. The symposium theme was “Advancing a Clean Energy Future,” and the full list of fantastic articles that resulted is below. All are presently available on Westlaw and should be on HeinOnline soon.
- Lesley McAllister
Lincoln L. Davies, State Renewable Portfolio Standards: Is There a “Race” and is it “To The Top”? 3 SAN DIEGO J. CLIMATE & ENERGY L. 3 (2011-2012).
Kirsten H. Engel, Why Not a Regional Approach to State Renewable Power Mandates, 3 SAN DIEGO J. CLIMATE & ENERGY L. 79 (2011-2012).
Robert L. Glicksman, Solar Energy Development on the Federal Public Lands: Environmental Trade-Offs on the Road to a Lower Carbon Future, 3 SAN DIEGO J. CLIMATE & ENERGY L. 107 (2011-2012).
Alexandra B. Klass, Energy and Animals: A History of Conflict, 3 SAN DIEGO J. CLIMATE & ENERGY L. 159 (2011-2012).
Michael W. Reed, Port and Coastal State Control of Atmospheric Pollution from Merchant Vessels, 3 SAN DIEGO J. CLIMATE & ENERGY L. 205 (2011-2012).
Jim Rossi, Clean Energy and the Price Preemption Ceiling, 3 SAN DIEGO J. CLIMATE & ENERGY L. 243 (2011-2012).
David B. Spence, Regulation, Climate Change, and the Electric Grid, 3 SAN DIEGO J. CLIMATE & ENERGY L. 267 (2011-2012).
Joseph P. Tomain, The Politics of Clean Energy: Moving Beyond the Beltway, 3 SAN DIEGO J. CLIMATE & ENERGY L. 299 (2011-2012).
Steven Weissman, Effective Renewable Energy Policy: Leave it to the States? 3 SAN DIEGO J. CLIMATE & ENERGY L. 345 (2011-2012).
May 7, 2012
Emerging Issues in the Arctic, Part II: An Arctic Utopia?
As hinted at in the first post in this series, the Artic has become a battleground for competing narratives that are deeply imbedded in environmental discourse. The most heated of these contests is between the narrative of the frontier as an extractive periphery that serves the businesses and consumers at the core and the narrative of the frontier as the boundary to a romantic wilderness that warrants and/or requires preservation. I will write later this spring about how these two narratives are playing out in the ongoing litigation surrounding Shell Oil’s attempt to drill in Arctic waters off the Alaskan coast. Today, I want to flag the appearance of an emerging environmental narrative – the sustainable utopia. The Arctic has long been associated with different types of utopian visions, from a residence for ancient deities to a pristine preindustrial ecology. In the story of the sustainable utopia, the Arctic presents an opportunity to achieve an ideal balance of environment, economics, and equity, and to implement the ideal domestic and international governance structures for achieving that balance.
This idea pervaded a recent interdisciplinary conference titled “Leadership for the Arctic.” The conference was organized by the U.S. Coast Guard Academy and the Law of the Sea Institute to address the primary challenges and opportunities facing decision-makers and stakeholders in the region. I missed the first day, which included panels on Arctic science and maritime safety, as well as a keynote by Dr. Jane Lubchenco, who heads the National Oceanic and Atmospheric Administration. But on the second day I attended two stellar panel discussions on law and governance in the Arctic, as well as an hour-long talk by Admiral Robert J. Papp, Jr., Commandant of the U.S. Coast Guard. (Craig Allen has posted a short summary of the conference on SSRN.)
Perhaps the clearest utopian vision was set forth by Lisa Speer, director of the International Oceans Program at the Natural Resources Defense Council and an expert on conservation and management of marine biodiversity on the high seas. Humanity does not have a great track record on the high seas. At the moment, we are looking at enormous dead zones, collapsed and collapsing fisheries, large congregations of rogue rubber ducks, and floating islands of trash. The question Ms. Speer addressed is: Can we do better with the newly accessible Arctic Ocean?
Ms. Speer, like President Obama and, I imagine, many readers, is an advocate for ecosystem-based management. In her presentation, Ms. Speer argued that EBM should provide the framework for environmental decision-making in the Arctic. Canada assumes the chair of the Arctic Council in 2013, and the U.S. follows in the rotating seat in 2015. Ms. Speer suggested that the United States and Canada use the four years ahead to move toward EBM in the Arctic. To accomplish this, Ms. Speer proposed three concrete steps.
- Identify key wildlife habitat for species and the indigenous peoples who depend on them. At the moment, decision-makers suffer from a lack of information about the ecological relationships that define and sustain Arctic wildlife. So, as a preliminary matter, there should be more research into ecologically and biologically significant areas. Once ecologically and biologically significant areas are identified, the Council should begin to make linkages among them to establish a network of protected areas.
- Strengthen regulation of individual industry sectors. In regards to oil and gas, Ms. Speer noted that though there have arguably been some advances in planning for oil spill response and clean-up far less has been done to establish Arctic-specific standards for oil and gas operations that would tend toward prevention. In regards to newly accessible fisheries in the Arctic Ocean, Ms. Speer asserted an immediate need for an international fisheries management regime, before industry captures the initiative and a property rights ideology that can prove politically powerful. (On April 23, the Pew Environment Group issued a letter spelling out this argument in more detail.) Ms. Speer also noted that the impacts of shipping are not limited to spills. Noise, invasive species, and air pollution are all problems that come along with marine traffic. Marine pollution in the Arctic could be limited by a special area designation under the MARPOL Convention.
- The Arctic Council Experts Group on Arctic Ecosystem-Based Management should be elevated to a higher organizational status, such as a task force or working group. Ms. Speer expressed the concern that the experts group might not develop meaningful recommendations and would instead devolve into another “talk-fest.” (According to a Council press release, the experts group has met twice, including a meeting last month in Sweden, and intends to provide deliverables in advance of the next ministerial meeting in 2013.)
The threats to the Arctic Ocean are real. As Ms. Speer suggested in her talk, we have the opportunity to manage oceans effectively from the outset, rather than waiting until the harm is done and difficult to repair. Doing so could provide a roadmap for ocean management in other areas, and it could set a precedent for a more intentional collaboration on ocean issues. But it also suggests complications that other, often parallel visions have suffered. Can the nations of the world recognize the reality of the threats, the benefits of collaboration, and the strength of consensus? Can nations recognize the relative values of competing uses and agree to a coordinated management plan that provides for sustainable development? This is a storyline cast in utopian hues. Will it prevail?
- Mike Burger
May 6, 2012
In Case You Missed It - Week of April 30 – May 6
- Settlement filed requiring municipality to seek permission before accepting hydraulic fracturing wastewater at treatment plants.
- BLM issued draft rule for operations on tribal and public lands that requires disclosure of hydraulic fracturing chemicals after fracturing operations have been completed.
- Vermont House of Representatives voted 103-36 to ban the practice of hydraulic fracturing for natural gas.
- EPA issued draft guidance for permitting hydraulic fracturing operations using diesel fuels.
- Earth Economics issued new ecosystem services analysis of the value to the State of Washington of investments in Puget Sound’s natural capital.